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songer_appbus
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of 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.
Theodore V. HOLTUN, Minority and Preferred Stockholder, Claimant, Appellant, v. Henry M. KALSCHEUER, Trustee of The Emporium of St. Paul, Inc., Debtor, et al.
No. 13044.
Circuit Court of Appeals, Eighth Circuit.
March 12, 1945.
Otis H. Godrey, of St. Paul, Minn., for appellant.
Joseph W. Finley and Matthew J. Finley, both of St. Paul, Minn., for appellee The Emporium of St. Paul, Inc., debtor.
C. Paul Smith, of St. Paul, Minn., for appellee United Properties Incorporated.
Lewis L. Anderson, of St. Paul, Minn., for appelleee Henry M. Kalscheuer, Trustee of The Emporium of St. Paul, Inc., debtor.
T. B. Hart and G. G. Roberson, Attys., Securities and Exchange Commission, both of Chicago, 111., for appellee Securities and Exchange Commission.
John A. Burns and.W. T. Goddard, both of St. Paul, Minn., for appellees Fred J. Metzger, Clarence C. Newquist, and James J. Walsh, Stockholders’ Committee.
PER CURIAM.
Petition of appellant for extension of time for preparation of record on appeal and transmission to this Court denied; motions of appellees, The Emporium of St. Paul, Inc., Debtor, United Properties Incorporated, and Henry M. Kalscheuer, Trustee of The Emporium of St. Paul, Inc., debtor, to dismiss appeal granted and appeal from order of District Court entered in the Matter of The Emporium of St. Paul, Inc., Debtor, under date of October 16, 1944, confirming plan of reorganization and directing consummation thereof dismissed at costs of appellant.
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_initiate
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
PORTER, Adm’r, Office of Price Administration, v. McCOLLOCH, Judge.
No. 11024.
Circuit Court of Appeals, Ninth Circuit.
March 21, 1946.
Herbert H. Bent, Jacob Chaitkin, and Austin Clapp, Attys., OPA, all of San Francisco, Cal., for petitioner.
S. J. Graham, William M. Langley, and John M. Hickson, all of Portland, Or., for respondent.
C. M. Gould and Hill, Morgan & Farrar, all of Los Angeles, Cal., and Reuben G. Lenske, of Portland, Or., for A. G. E. Abendroth.
Before STEPHENS, FIEALY, and BONE, O'rcuit Judges.
PER CURIAM.
This proceeding is an outgrowth of our decision in Bowles, Administrator, v. Abendroth, 9 Cir., 151 F.2d 407, in which we reversed an order of the district court denying an application of the Administrator, made pursuant to § 202(c) of the Price Control Act, 50 U.S.C.A.Appendix, § 922(c), for the enforcement of a subpena. As appeared on the face of the application and supporting' papers, the subpena had been issued over the signature of James F. Brownlee, Acting Price Administrator of the Office of Price Administration. No question was raised concerning Brownlee’s authority in the premises. We decided that on the showing made it was the duty of the district court to grant the application.
Mandate was issued commanding the taking of further proceedings in the cause by the district court in accordance with our opinion and decree. Thereafter the Administrator, Petitioner here, submitted to Honorable Claude McColloch, judge of the district court, a proposed order responsive to the mandate. The judge, however, on the supposed authority of Cudahy Packing Co. v. Holland, 315 U.S. 357, 62 S.Ct. 651, 86 L.Ed. 895, declined to make any order enforcing compliance with the subpena in view of the fact that it had been issued over the signature of the Acting Price Administrator rather than the Price Administrator, Chester Bowles. Instead an order was entered denying the enforcement application for want of jurisdiction.
The Administrator petitioned this court for a writ of mandamus commanding the district judge to comply with our decree. An order to show cause was issued, and the matter is before us on the petition of the Administrator and the return of the Respondent judge.
The law of the case requires the granting of the writ petitioned for. No new facts were before the district court after mandate went down. The court was not, as it appears to have thought, without jurisdiction to proceed. Questions, if any, concerning the authority of the Acting Price Administrator to issue the subpena were waived by the failure timely to raise them. It is not now open to the Respondent to question the mandate.
Some claim is made that the desired inspection has already been had and that the proceeding is therefore moot. This was not a ground of the trial judge’s decision, and there is no sufficient basis for the suggestion of mootness.
Since the views here expressed will serve to remove the obstacles to enforcement thought by Respondent to exist, we assume that the writ need not formally issue at this time. Instead, the clerk is directed to furnish certified copies of this opinion to the Respondent and to the Clerk of the District Court of Oregon for Respondent’s information and guidance.
The subpena was denominated an “inspection requirement.”
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
|
songer_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.
UNITED STATES of America, Appellee, v. Riddick BROWN, Appellant.
No. 8205.
United States Court of Appeals Fourth Circuit.
Argued Jan. 6, 1961.
Decided Jan. 9, 1961.
Len Holt, Norfolk, Va. (Joe Jordan and Ed Dawley, Norfolk, Va., on the brief), for appellant.
Shanley Keeter, Asst. U. S. Atty., Richmond, Va. (Joseph S. Bambacus, U. S. Atty., Richmond, Va., on the brief), for appellee.
Before SOBELOFF, Chief Judge, HAYNSWORTH, Circuit Judge, and HUTCHESON, District Judge.
PER CURIAM.
The defendant, convicted of theft of government property, complains of the court’s charge. He says that the court emphasized -the elements of the offense, particularly by defining the element of asportation. The District Judge was required to do so, and his definition of asportation was extremely pertinent in light of the emphasis by the defense upon the fact that the property had not been removed from the Navy Yard.
There is no contention that the charge was in any way incorrect. We have reviewed the entire charge and find it to be fair, balanced and unobjectionable.
Affirmed.
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_appfed
|
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 "the federal government, its 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.
UNITED STATES of America, Appellant, v. Gordon SIMMONS and I. V. Simmons, Executors of the Estate of B. Hill Simmons, Appellees.
No. 21464.
United States Court of Appeals Fifth Circuit.
May 27, 1965.
James F. Flug, Atty., Dept, of Justice, Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, Atty., Dept, of Justice, Washington, D. C., Donald H. Frazer, U. S. Atty., Savannah, Ga., Richard M. Roberts, Acting Asst. Atty. Gen., David O. Walter, Michael I. Smith, Attys., Dept, of Justice, Washington, D. C., for appellant.
Louis A. Thompson, Savannah, Ga., for appellees.
Before WISDOM and GEWIN, Circuit Judges, and BREWSTER, District Judge.
WISDOM, Circuit Judge:
This taxpayer’s suit for an estate tax refund grew out of executors’ settling for $42,000 an estate’s claim for an income tax refund of $60,000, listed in the estate tax return as having “no value” at the date of the decedent’s death.
The decedent, B. Hill Simmons, died December 27, 1955. Some time before his death, the Internal Revenue Service began investigating, on a net worth basis, Simmons’s income tax returns for the years 1941 through 1953. As a result of the investigation, the decedent paid a deficiency in the amount of $43,000. The decedent never entertained the idea of filing a claim for a refund of these taxes. Shortly after Simmons’s death, the executors of the estate employed an attorney, Mr. Louis B. Thompson, counsel for appellee, to investigate the decedent’s tax affairs. By November 1956 the attorney decided that a claim for a refund should be filed for the decedent’s taxable years 1941 through 1953. February 1, 1957, Mr. Thompson filed the claim for refund amounting to $60,000. Upon the Service’s disallowing the claim, Mr. Thompson filed suit on behalf of the estate. In 1960, the Department of Justice approved the executors’ offer of compromise for $41,187. Meanwhile, the taxpayer’s attorney had filed an estate tax return listing the income tax claim as having no value, but had requested that the estate tax liability be held in abeyance pending the outcome of the claim. The Commissioner determined that the claim was includible in the decedent’s estate and valued the claim at the amount of the settlement.
Under Section 2031 of the Internal Revenue Code of 1954, the federal estate tax includes “all property, real or personal, tangible or intangible” of the decedent. When Simmons died, his “property” included the claim for refund of federal income taxes. Both parties agree that the claim for refund of income taxes is a part of Simmons’s gross estate. But as far as it is possible to disagree as to value, they disagree: the United States contends that the amount of the compromise, $42,000, fixed the estate tax value of the claim; the Estate of B. Hill Simmons (the taxpayer) contends the claim had no value when Simmons died. The taxpayers asserts that at the time of death the executors thought the claim was worthless and would have sold it for $1,000. Allegedly, a key factor in filing the claim was the discovery in October 1956 of a pencil memorandum tending to disprove fraud in that it showed the decedent’s intention to report certain cotton sales that had not been reported. The executors paid the tax assessed against the estate and sued for a refund.
The district court submitted the issue of valuation to the jury. The jury found that the claim was valueless at the time of the decedent’s death. The district court denied the Government’s motions for a directed verdict, a judgment n. o. v., and a new trial. We hold that the trial court correctly denied the motions for a directed verdict and judgment n. o. v., but we reverse the judgment and remand the case for a new trial, because there was no rational basis for the jury’s finding that the claim for an income tax refund was valueless on the date of the decedent’s death.
I.
Since a motion for a judgment notwithstanding the verdict in effect renews an earlier motion for a directed verdict, the applicable judicial standard is the same for both motions. Fed.R. Civ.P. 50. Professor Wright comments on these two motions and on the motion for a new trial as follows:
“The motion for judgment n. o. v., like the motion for directed verdict, raises only the legal question whether there was enough evidence to make an issue for the jury. It differs from the motion for a new trial, where the court has a discretion to set aside a verdict and grant a new trial even if the verdict is supported by substantial evidence. The motion for judgment n. o. v., on the other hand, must be denied if there is any substantial evidence which would support a verdict. The credibility of witnesses and weight of the evidence, proper considerations on a motion for a new trial, are not the concern of the court on a motion for a directed verdict or for judgment n. o. v. The evidence must be viewed in the light most favorable to the party against whom the motion is made, he must be given the benefit of all legitimate inferences which may be drawn in his favor from that evidence, and the motion must be denied if, so viewed, reasonable men might differ as to the conclusions of fact to be drawn.” Wright, Federal Courts § 95 at 370.
See also 2B Barron & Holtzoff (Wright ed.) § 1075. Professor Moore writes: “In ruling on the motion for directed verdict or for judgment n. o. v. it is the duty of the trial court to take that view of the evidence most favorable to the party against whom the motion is made, and from that evidence, and the inferences reasonably and justifiably to be drawn therefrom, determine whether or not, under the law, a verdict might be found for him.” 6 Moore, Federal Practice, § 59.08(5) at 3814.
Bearing these principles in mind, we hold that a review of the record shows abundant evidence to make an issue for the jury as to the value of the claim. The Commissioner contends, however, that the trial judge should have directed the verdict in favor of the United States or granted a judgment n. o. v. because, as a matter of law, the amount of the compromise fixed the value of the claim for estate tax purposes.
The few decided cases in this area of tax law reject the Commissioner’s contention. At one time the Board of Tax Appeals took the position that the amount later recovered on an income tax refund claim fixed the value of the claim for estate tax purposes. Security-First National Bank of Los Angeles, Executor of Estate of Milton Sills v. Commissioner, 1937, 35 B.T.A. 815; Estate of Harriet E. Barneson, 1941, P-H B.T.A. Memorandum Decisions 41,283. On appeal the Ninth Circuit reversed Barneson, sub nom., Bank of California, National Ass’n v. Commissioner, 9 Cir. 1943, 133 F.2d 428. The court held that the decedent’s claim for refund of income taxes was a part of the decedent’s gross- estate; that the value of the claim was the fair market value as between a willing buyer and a willing seller at the time of the decedent’s death. Instead of determining the fair market value, the Board had arbitrarily used the amount of the recovery. The Ninth Circuit remanded the case for a proper finding. On remand, the Board found that at the time of decedent’s death the fair market value of the claim was $4000 as against $8000 recovered in the taxpayers’ refund action. Estate of Harriet E. Barneson, 1945, P-H.B.T.A. Memorandum Decisions |¶ 45,129. Later cases support Barneson, at least by implication. See e. g., Duffield v. United States, E.D.Pa.1955, 136 F.Supp. 944; Estate of Isaac W. Baldwin v. Commissioner, T.C. Memo. 1959-203 D.N. 9446. Many of the cases the Government cites do not involve a determination of “fair market value”.
The Treasury Regulation applies the “willing buyer and seller test” to all questions of valuation. Reg. § 20.2031-1(b). When, as in this case, the claim cannot be lawfully sold or assigned, the test approaches the outer limits of an acceptable test. However, we cannot say that the regulation exceeds the statutory authority of the Treasury. And the test probably cuts across the board with a minimum of harm about as well as any other test that might be devised. See Frank, J. in Commissioner of Internal Revenue v. Marshall, 2 Cir. 1942, 125 F. 2d 943, 141 A.L.R. 445.
Applying the willing buyer and seller test to the claim for income tax refund, we see no reason for concluding that the amount of the settlement necessarily represents the fair market value of the claim at the date of death. The amount of the settlement is relevant but not conclusive.
The issue was a factual one for the jury. The record supports the trial judge’s denial of the motions for a directed verdict and a judgment n. o. v.
II.
“A motion for new trial (Fed.R.Civ.P. 59) unlike the motion for directed verdict or for judgment n. o. v. * * * is addressed to the sound discretion of the trial court; and the grant or denial of a motion for new trial is not reviewable, except where the trial court acts under the compulsion of a mistake of law, or lacks power to grant the motion, as where the motion is not timely, or where the court failed to exercise its discretion, or where it abuses its discretion. And a motion for a new trial on the ground that the verdict is against the weight of the evidence and the trial court’s ruling thereon are within the foregoing principles.” 6 Moore, Federal Practice § 59.08 at 3816.
If the jury had found that, based on “a reasonable knowledge of relevant facts” (Reg. § 20.2031-l(b)), the claim for a tax refund, at the moment of the decedent’s death, had a much smaller value than the amount of the settlement, we would not question the jury’s finding. But there is no rational basis in the evidence for the jury to bring in a verdict that the claim had no value.
For estate tax purposes, a value must be fixed for each asset in a decedent’s estate. Reg. §§ 20.2031-1 (b) and 20.2031- 2 through 20.2031-7. The regulations define “value” as “fair market value”. This is the “price at which the property would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or sell and both having reasonable knowledge of the relevant facts”. Reg. § 20.2031- 1 (b).
Reasonable knowledge of the relevant facts would have revealed to the decedent and his accountant, as later discovered by present counsel, that there were gross errors in the revenue agent’s report sent to the decedent nine months before his death. And reasonable knowledge of decedent’s records would have led the decedent, his accountant, attorney, and executors to know that a certain memorandum tended to rebut the Commissioner’s finding of fraud. All of the records were in existence and among the decedent’s papers when he died.
In similar circumstances the Tax Court has held that the later discovered facts determine the value of the property at the date of death: The Tax Court said:
“Even if the executors were totally ignorant of the claim, we do not agree that it would for that reason be without value. An estate may possess many assets, tangible and intangible, of which the deceased’s representative or even the deceased himself may be unaware, and which may not become apparent until the lapse of a substantial period of time after death. Such property is for that reason no less an asset of the estate, nor can it necessarily be said to be valueless at the date of death. This is particularly true where, as here, the asset is one which by its nature is discoverable in the ordinary course of administration of the estate.” Estate of I. W. Baldwin, 1959, P-H. T.C. Memo ¶ 59,203.
The administration of every estate involves a delay before the succession representative knows all the relevant existing facts affecting the value of the property. The federal estate tax law is sufficiently flexible and realistic to take account of this delay.
The taxpayer contends that what brought the claim into being was a memorandum Mr. Thompson “discovered [October 1956] among a bunch of old papers that appeared to be of no value”. This memorandum concerned the sale of seven bales of cotton for $5,954.80. In one corner, in the decedent’s handwriting, were the words “income taxes”. One of the executors testified that the memorandum showed that the decedent “had no intention to defraud, and it would be impossible for the agent to go further back than three years in the investigation”.
This discovery may have affected the taxpayer’s appraisal of the claim. But the claim existed wholly apart from the memorandum. The “willing buyer and seller” are a hypothetical buyer and seller having a reasonable knowledge of relevant facts. It is impossible to believe that Congress intended valuation to be tested subjectively according to the state of mind of the executor making the return in question, the valuation depending on whether he was diligent and efficient in examining the decedent’s records.
In any event, the relevancy of the memorandum to the issue of valuation does not mean that all other evidence is irrelevant. The record shows conclusively that the claim had value and was considered to have value wholly aside from the memorandum. The original attorney for the estate, just a few days after the decedent’s death, December 27, 1955, recommended that the executors employ Mr. Thompson to inquire into the possibility of income tax refunds. March 22, 1956, within three months after the date of death, the executors engaged Mr. Thompson to make “a detailed investigation into the financial affairs and transactions” of the decedent. A week later they authorized him to file claims for refund of income taxes. By that time he had been “going through the records * * * and had come up with some evidence that several mistakes had been made”. April 5, 1956, the estate’s preliminary estate tax notice referred to a “contingent claim pending for refund of taxes, penalties, and interest on Fed. and State income taxes”. Thus, there is no doubt that before the discovery of the memorandum in October 1956, the executors, knew that the estate had a claim worth something. The executors, attorneys, and accountants simply had not sufficiently examined the decedent’s records to be able to make an intelligent guess as to the value of the claim and to support the claim with evidence. But the evidence was always there to be found. The revenue agents testified that as soon as the full facts were known to them or to their superiors, the value of the claim was accepted. Mr. Thompson testified that all of the relevant facts existed at the time of Simmons’s death, and that with full knowledge of these facts he reluctantly recommended that the estate settle for $4200. He would have discovered the agents’ errors along with the memorandum had Simmons retained him. In short, ignorance of the value of an asset at the time of a decedent’s death does not justify treating the asset as valueless, any more than ignorance of the existence of an asset, discovered after the date of death, justifies exclusion of the asset from the decedent’s gross estate.
Finally, although we do not accept the extreme position taken by the Government, that the amount of the compromise was necessarily the value of the claim at the time of death, that amount is certainly highly indicative of the fact that the claim had value at the time of Simmons’s death.
We11 are conscious of the limited scope of appellate review of a judgment entered on a jury’s verdict. But as Judge Rives has said:
“[T]his Court owes a duty not as a mere automaton, but as a judicial function to determine whether there is really a rational basis for a jury’s verdict. * * * Unless every jury verdict in cases of this kind is to be upheld, this one should be set aside * * Cole v. Usry, 5 Cir. 1961, 294 F.2d 426, at 430.
Considering this case in its entirety, we conclude that the controlling facts make it utterly unreasonable for the jury to bring in a verdict that the refund claim had no value at the time of the decedent’s death. The absence of any rational basis for the jury’s verdict makes it a mistake of law for the trial judge to deny the motion for a new trial.
III.
The appellant also objected to the district court’s charge to the jury. We consider that the charge was generally correct although, in the circumstances of this case, on remand the court should eliminate the words "if any”, to remove the implication that the jury was free to find that the claim had no value. We suggest, too, that without unduly complicating the charge, the court add a sentence to inform the jury that “reasonable knowledge of relevant facts”, within the meaning of Reg. 20.2031 includes knowledge of documents in existence at the time of death and later discovered by the estate’s attorney. The judgment below is reversed and remanded.
. E. g., Commissioner of Internal Revenue v. Estate of Shively, 2 Cir. 1960, 276 F.2d 372; Rose v. United States, 10 Cir. 1942, 128 F.2d 622.
. “I charge you that the standard of value contemplated by the estate tax statute is the fair market value of property at the time of the owner’s death which fair market value is the price at which the property would change hands between a willing buyer and a willing seller, neither under compulsion to buy or sell.
“Time of death, as used in provision requiring assets to be included at their value at date of death of decedent, means the exact moment of death.
“Also Gentlemen, one of the important issues in this case is the value, if any, of the taxpayer’s contingent claim for refund of income taxes. The value, if any, to be determined by you is the fair market value on the date of death of the decedent. You have heard evidence of the final refund received by the estate; however, this does not determine the fair market value of the claim at the date of death.
“In determining the value of the claim for refund, if any, you may consider the fact that the Government denied the claim upon receipt thereof and that it was necessary to bring an action in court before the Government would make refund.” (Emphasis added.)
Question: What is the total number of appellants in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
|
songer_genapel1
|
B
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
The Second National Natural Gas Rate Cases AMERICAN PUBLIC GAS ASSOCIATION et al., Petitioners, v. FEDERAL POWER COMMISSION, Respondent.*
No. 76-2000.
United States Court of Appeals, District of Columbia Circuit.
Argued March 23,1977 and March 24,1977.
Decided June 16, 1977.
As Amended on Denial of Rehearing Aug. 17, 1977.
See also, 180 U.S.App.D.C. 380, 555 F.2d 852.
Charles F. Wheatley, Jr., Washington, D. C., with whom William T. Miller and Stanley W. Balis, Washington, D. C., were on the brief for petitioners in No. 76-2000 and intervenors, American Public Gas Ass’n, et al.
James L. Feldesman, Washington, D. C., was on the brief for petitioner, Consumer Federation of America in No. 76-2000.
Warren R. Spannaus, Atty. Gen., State of Minnesota, St. Paul, Minn., was on the brief for petitioner, State of Minnesota in No. 76-2000.
Rodney A. Wilson, Sp. Asst. Atty. Gen., State of Minnesota, St. Paul, Minn., was on the brief for petitioner, Minnesota Public Service Commission in No. 76-2000.
Steven M. Schur, Chief Counsel, Public Service Commission of Wisconsin, Madison, Wis., was on the brief for petitioner, Public Service Commission of Wisconsin in No. 76-2000.
David B. Graham, Washington, D. C., was on the brief for petitioner, Natural Rural Elec. Co-op. Ass’n in No. 76-2000.
John Gunther, Washington, D. C., was on the brief for petitioner, United States Conference of Mayors in No. 76-2000.
James F. Flug, Washington, D. C., was on the brief for petitioner, Energy Action Committee in No. 76-2000.
Stephen Schlossberg, Detroit, Mich., was on the brief for petitioner, United Automobile, Aerospace and Agriculture Implement Workers of America in No. 76-2000.
Frank W. Frisk, Jr., Washington, D. C., was on the brief for petitioner, American Public Power Ass’n in No. 76-2000.
Charles Brannan, Denver, Colo., was on the brief for petitioner, National Farmers Union in No. 76-2000.
Lee D. Sinclair, Potomac, Md., was on the brief for petitioner, National Farmers Organization in No. 76-2000.
Leslie G. Foschio, Corp. Counsel, Buffalo, N. Y., was on the brief for petitioner, City of Buffalo, New York in No. 76-2000.
William Straub, Erie County Atty., Buffalo, N. Y., was on the brief for petitioner, County of Erie, New York in No. 76-2000. James L. Magavern, Buffalo, N. Y., also entered an appearance for petitioner in No. 76-2000.
Geoffrey L. Brazier, Helena, Mont., was on the brief for petitioner, Montana Consumer Counsel in No. 76-2000.
Felix G. Forlenza, Newark, N. J., was on the brief for petitioner, New Jersey Bd. of Public Utility Commissioners in No. 76-2000. Carla Vivian Bello, Newark, N. J., also entered an appearance for petitioner, New Jersey Bd. of Public Utility Commissioners in No. 76-2000.
Daniel Guttman, Washington, D. C., with whom Alan Roth, Washington, D. C., was on the brief for petitioners in No. 76-2001 and intervenors, Senators James Abourezk, et al.
Richard A. Solomon, Washington, D. C., with whom Peter H. Schiff, Albany, N. Y., Gen. Counsel, Public Service Commission of the State of New York and Sheila S. Hollis, Washington, D. C., were on the brief for petitioner in No. 76-2072 and intervenor, The Public Service Commission of the State of New York.
Frederick Moring, Washington, D. C., with whom Philip M. Marston, Washington, D. C., was on the brief for petitioner in Nos. 76-2137 and 77-1013 and intervenors, Associated Gas Distributors. Dana Contratto, Washington, D. C., also entered an appearance for intervenor, Associated Gas Distributors.
John F. Bates, Salt Lake City, Utah, with whom Robert S. Campbell, Jr., and R. G. Groussman, Salt Lake City, Utah, were on the brief for petitioner in No. 77-1005.
C. William Cooper, Falmouth, Mass., and Tilford A. Jones, Bethesda, Md., for petitioners in No. 76-2041 and intervenor, United Distribution Companies.
Gordon Gooch, Washington, D. C., with whom Charles M. Darling, IV, Washington, D. C., John M. Young, Michael B. Silva and Phyllis Rainey, Houston, Tex., were on the brief for petitioners in Nos. 77-1060 and 77-1067 and intervenors, Pennzoil Co., et al. and Tenneco Oil Co., et al.
Thomas G. Johnson, Houston, Tex., for petitioner in No. 77-1065 and intervenor, Shell Oil Co.
J. Evans Attwell, Houston, Tex., with whom Judy M. Johnson, Houston, Tex., was on the brief for petitioners in Nos. 76-2108, 77-1068, 77-1069 and intervenors, Austral Oil Co., Inc., Aztec Oil and Gas Co., Belco Petroleum Corp. and Transocean Oil, Inc.
Bernard A. Foster, III, Washington, D. C., with whom H. H. Hillyer, Jr., New Orleans, La., was on the brief for petitioners in No. 77-1075.
Paul W. Mallory, Chicago, 111., with whom Joseph M. Wells, Paul E. Goldstein, Chicago, 111., and Harry L. Albrecht, Washington, D. C., were on the brief for petitioner in No. 77-1121 and intervenor, Natural Gas Pipeline Co. of America in Nos. 76-2053, 76-2041 and 76-2072.
Drexel D. Journey, Gen. Counsel, Federal Power Commission and Patrick J. Keeley, Atty., Federal Power Commission, Washington, D. C., with whom Robert W. Per-due, Deputy Gen. Counsel and Allan Abbot Tuttle, Sol., Federal Power Commission, Washington, D. C., were on the brief, for respondent. Philip R. Telleen, Atty., Federal Power Commission, Washington, D. C., also entered an appearance for respondent.
John L. Williford, Bartlesville, Okl., was on the brief for petitioner in No. 76-2069 and intervenor, Phillips Petroleum Co.
B. James McGraw and A. Randall Friday, Houston, Tex., were on the brief for petitioner in Nos. 77-1022 and 77-1140 and intervenor, Gulf Oil Corp.
Derrill Cody and' Patricia D. Robinson, Oklahoma City, Okl., were on the brief for petitioner in No. 77-1118 and intervenor, Kerr-McGee Corp.
Tom P. Hamill, R. D. Haworth and Roscoe Elmore, Houston, Tex., were on the brief for petitioner in No. 77-1126 and in-tervenor, Mobil Oil Corp.
W. B. Wagner, Jr., Pat F. Timmons, James M. Dunnam, Houston, Tex., and David Bonderman, Washington, D. C., were on the brief for petitioner in No. 77-1052 and intervenor, The Superior Oil Co.
Martin N. Erck, Paul W. Wright and Edmunds Travis, Jr., Houston, Tex., were on the brief for petitioner in No. 77-1127 and intervenor, Exxon Corp.
David M. Whitney, Houston, Tex., was on the brief for petitioner in No. 77-1066 and intervenors, Aminoil Production Co.
Wm. H. Emerson, Tulsa, Okl., was on the brief for petitioner in No. 77-1120 and in-tervenor, Amoco Production Co.
R. F. Generelly, Washington, D. C., was on the brief for petitioner in No. 77-1016 and intervenors, Ashland Oil, Inc. and General American Oil Co. of Texas and also entered an appearance for petitioner in No. 77-1063.
E. J. Kremer and D. Aston, Dallas, Tex., were on the brief for petitioner in No. 77-1220 and intervenor, Atlantic Richfield Co.
Edwin S. Nail, Boston, Mass., was on the brief for petitioner in No. 77-1117 and in-tervenor, Cabot Corp.
Robert S. Wheeler and Sam Riggs, Jr., Tulsa, Okl., were on the brief for petitioner in No. 77-1119 and intervenor, Cities Service Oil Co.
Tom Burton and John M. Badger, Houston, Tex., were on the brief for petitioner in No. 77-1039 and intervenor, Continental Oil Co. Gordon Gooch, Houston, Tex., and Charles M. Darling, IV, Washington, D. C., also entered an appearance for petitioner in No. 77-1039.
Scott P. Anger, Washington, D. C., was on the brief for petitioner in No. 77-1070 and intervenor, Enserch Exploration, Inc.
Wm. Neal Powers, Jr., Houston, Tex., was on the brief for petitioners in Nos. 77-1072 and 77-1074 and intervenors, Free-port Minerals Co., Ecee, Inc., et al. and Estate of E. Cockrill, Jr., et al.
Clay D. Monzingo was on the brief for petitioner in No. 77-1219 and intervenor, Getty Oil Co. Jack L. Brandon also entered an appearance for intervenor, Getty Oil Co.
Robert W. Henderson, Dallas, Tex., was on the brief for petitioners in No. 77-1071 and intervenors, Hunt Oil Co., et al.
Arthur S. Berner, New York City, was on the brief for petitioner in No. 77-1073 and intervenor, Inexco Oil Co. Wm. Neal Powers, Jr., Houston, Tex., also entered an appearance for petitioner in No. 77-1073.
William A. Sackman, Findlay, Ohio, was on the brief for petitioner in No. 76-2103 and intervenor, Marathon Oil Co.
Paul W. Hicks, Dallas, Tex., was on the brief for petitioner in No. 77-1064 and in-tervenor Placid Oil Co. Jimmy C. Bailey, Dallas, Tex., also entered an appearance for petitioner in No. 77-1064 and intervenor, Placid Oil Co.
Richard F. Remmers, Oklahoma City, Okl, was on the brief for petitioner in No. 77-1141 and intervenor, Sohio Petroleum Co.
Roger L. Brandt, Houston, Tex., was on the brief for petitioner in No. 77-1139 and intervenor, Texaco, Inc. William T. Ben-ham, Houston, Tex., also entered an appearance for intervenor, Texaco, Inc.
Kenneth L. Riedman, Jr., and Richard F. Wornson, Los Angeles, Cal., were on the brief for petitioner in No. 77-1221 and in-tervenor, Union Oil Co. of California.
Gordon P. MacDougall, Sp. Asst. Counsel, Commonwealth of Pennsylvania, Washington, D. C., was on the brief for interve-nors, Commonwealth of Pennsylvania and Pennsylvania Public Utilities Commission in No. 76-2000.
Harold B. Scoggins, Jr., Oklahoma City, Okl., was on the brief for intervenor, Independent Petroleum Ass’n of America in Nos. 76-2000 and 76-2001.
J. Randolph Elliott, Los Angeles, Cal., was on the brief for intervenor, Statex Petroleum, Inc.
Gordon Gooch, Houston, Tex., was on the brief for intervenors, Felmont Oil Corp., Coquina Oil Corp. and The Rodman Co.
A. S. Lacy, Birmingham, Ala., was on the brief for intervenor, Alabama Gas Corp. in No. 76-2000.
Ben Stead, Asst. Atty. Gen., for the Public Utilities Commission of the State of South Dakota, was on the brief for interve-nor, Public Utilities Commission, State of South Dakota.
M. Howard Petricoff and Henry J. Bour-guignon, Toledo, Ohio, filed a brief on behalf of the City of Toledo, Ohio as amicus curiae urging reversal.
Philip C. Wrangle, Birmingham, Ala., filed a brief on behalf of Sonat Exploration Co. and the Offshore Co. as amicus curiae urging reversal.
J. Evans Attwell and Judy M. Johnson, Houston, Tex., filed a brief on behalf of Small Producers as amicus curiae urging reversal.
Eugene W. Ward and T. E. Midyett, Jr., Nashville, Tenn., entered appearances for petitioner in No. 76-2053.
J. David Mann, Jr., Washington, D. C., entered an appearance for petitioner in No. 76-2147 and intervenor, Laclede Gas Co.
H. Lamar Curtis, Houston, Tex., entered an appearance for intervenor, J. M. Huber Corp.
Jerome J. McGrath, Washington, D. C., entered an appearance for intervenor, Interstate Natural Gas Ass’n of America.
Ronald E. Jarrett and Ronald J. Jacobs, Tulsa, Okl., entered appearances for inter-venor, Skelly Oil Co.
James D. Olsen, Richardson, Tex., entered an appearance for intervenor, Sun Oil Co. (Delaware).
George W. Hugo, Houston, Tex., and Bruce F. Kiely, Washington, D. C., entered an appearance for intervenor, Texas Gulf, Inc.
Thomas W. Lynch, Tulsa, Okl., entered an appearance for intervenor, Texas Pacific Oil Co., Inc.
Peter W. Hanschen, Malcolm H. Furbush and Daniel E. Gibson, San Francisco, Cal., entered appearances for intervenor, Pacific Gas and Elec. Co.
David G. Stevenson, Tulsa, Okl., entered an appearance for intervenor, Amerada Hess Corp.
Justin R. Wolf, Washington, D. C., entered an appearance for intervenors, The California Co., et al. and Chevron Oil Co., Western Division.
T. Brooke Farnsworth and Wm. Neal Powers, Jr., Houston, Tex., entered appearances for intervenor, Damson Oil Corp.
Harold L. Talisman, Dale A. Wright, Melvin Richter, Gregory Grady and Terence J. Collins, Washington, D. C., entered appearances for intervenors, Cities Service Gas Co. and Tennessee Gas Pipeline Co., etc.
Toney Anaya, Atty. Gen., New Mexico and Cameron R. Graham, Sp. Asst. Atty. Gen., Santa Fe, N. M., entered appearances for intervenor, State of New Mexico.
Jeffrey A. Meith and Thomas D. Clarke, Los Angeles, Cal., entered appearances for intervenor, Southern California Gas Co.
James L. Bomar, Jr., Shelbyville, Tenn., entered an appearance for intervenor, East Tennessee Group.
John B. Randolph, Washington, D. C., entered an appearance for intervenor, Mississippi River Transmission Corp.
Before FAHY, Senior Circuit Judge, LEVENTHAL, Circuit Judge, and GER-HARD A. GESELL, United States District Judge for the United States District Court for the District of Columbia.
Consolidated with the following cases (identified by this Circuit’s case number and petitioner) originally arising in or transferred to this Circuit, in all of which the Federal Power Commission is the respondent:
Originally filed in this Circuit: 76-2001, Senators James Abourezk, John Durkin, and William Proxmire, and Representatives Les Aspin, Berkley Bedell, William Brodhead, et al.; 76-2041, United Distribution Companies; 76-2053, Tennessee Public Service Commission; 76-2069, Phillips Petroleum Company; 76-2072, Public Service Commission of the State of New York; 76-2103, Marathon Oil Company; 76-2108, Belco Petroleum Corporation; 76-2137, Associated Gas Distributors; 76-2147, Laclede Gas Company; 77-1005, Mountain Fuel Supply Company; 77-1016, Ashland Oil Inc.; 77-1022, Gulf Oil Corporation:
From the First Circuit: 77-1117, Cabot Corporation;
From the Second Circuit: 77-1126, Mobil Oil Corporation; 77-1127, Exxon Corporation;
From the Third Circuit: 77-1139, Texaco, Inc.; 77-1140, Gulf Oil Corporation; 77-1141, Sohio Petroleum Company;
From the Fiñh Circuit: 77-1039, Continental Oil Company; 77-1052, Superior Oil Company; 77-1060, Tenneco Oil Company; 77-1063, General American Oil Company of Texas; 77-1064, Placid Oil Company; 77-1065, Shell Oil Company; 77-1066, Aminoil USA, Inc., et al.; 77-1067, Pennzoil Company, et al.; 77-1068, Aztec Oil and Gas Company; 77-1069, Austral Oil Company, Inc; 77-1070, Enserch Exploration, Inc.; 77-1071, Hunt Oil Company, et al.; 77-1072, Freeport Minerals Company; 77-1073, Inexco Oil Company; 77-1074, Ecee, Inc., et al.; 77-1075, Louisiana Land and Exploration Company, et al.;
From the Seventh Circuit: 77-1120, Amoco Production Company; 77-1121, Natural Gas Pipeline Company of America;
From the Ninth Circuit: 77-1219, Getty Oil Company; 77-1220, Atlantic Richfield Company; 77-1221, Union Oil Company;
From the Tenth Circuit: 77-1118, Kerr-McGee Corporation; 77-1119, Cities Service Oil Company; 77-1288, Skelly Oil Company.
Sitting by designation pursuant to 28 U.S.C. § 292(a).
Opinions for the Court filed by LEVEN-THAL, Circuit Judge, and FAHY, Senior Circuit Judge.
Opinion dissenting in part by FAHY, Senior Circuit Judge.
TABLE OF CONTENTS
Opinion for the Court by Circuit Judge LEVENTHAL........•...............1025
I. OVERVIEW AND SCOPE OF REVIEW..............................1027
A. Regulatory Background.........................................1027
B. Procedure in FPC Docket....................................... 1027 •
C. Scope of Issues................................................1028
D. Standards of Judicial Review....................................1028
1. General FPC Approach......................................1030
2. Examination of Reasons and Changes...........................1031
3. Experimental and Dynamic Features of Novel Regulation...........1031
II. PROCEDURAL ISSUES..................'.........................1032
III. REINSTATEMENT OF VINTAGING TO AVOID EXCESSIVE PROFITS.. 1033
IV. COST ALLOWANCE FOR INCOME TAXES PAYABLE................1034
A. Departure from Prior Policy.....................................1034
B. Use of an Economic Model......................................1036
C. Specific Objections to the Model..................................1039
1. Consolidated Returns........................................1039
2. Increased Intangible Drilling Costs.............................1040
D. Conclusion....................................................1042
V. PRODUCTIVITY AND GAS RESERVES.............................1043
VI. ATTACKS ON NATIONAL APPROACH TO COSTS AND PRICES.......1049
A. Failure to Distinguish Between Onshore and Offshore Gas Costs........1049
B. Claimed Need for Area Rate Regulation...........................1051
VII. COST IMPACT OF ADVANCE PAYMENTS..........................1052
VIII. CONTINUATION OF THE OPINION 699 RATE FOR “ROLLOVER” GAS.. 1057
IX. APPLICATION OF BIENNIUM RATES......'........................1061
X. CONCLUSION....................................................1063
Opinion for the Court bv Senior Circuit Judge FAHY.......................1064
XI. THE PROCEDURES FOLLOWED BY THE COMMISSION
WERE LAWFUL.................................................1064
XII. THE COMMISSION WAS NOT DISQUALIFIED TO ISSUE
OPINION NO. 770-A..............................................1067
Attachment.......................................................1070
Opinion of Senior Circuit Judge FAHY. dissenting in part...................1073
I. THE INCOME TAX COMPONENT..................................1073
II. PAST ADVANCE PAYMENTS......................................1078
LEVENTHAL, Circuit Judge:
This case presents petitions to review the 1976 orders of the Federal Power Commission in the second nationwide natural gas rate proceeding.
The pertinent orders embrace Opinion No. 770, issued July 27, 1976; clarifying orders issued in September and October 1976; and Opinion No. 770 — A, on rehearing, issued November 5, 1976. In brief, the FPC’s orders prescribed the following rates:
(a) $1.42 per Mcf, for sales of gas from wells commenced on or after January 1, 1975 — with provision for escalation.
(b) $0.93 Mcf — reduced from the $1.01 rate prescribed in Opinion 770 — for 1973-1974 biennium gas, i. e., sales of gas from wells commenced on or after January 1, 1973 and prior to January 1, 1975. This rate is also subject to escalation.
(c) $0.52 per Mcf, applicable to sales of gas under “renewal contracts” where a contract has expired by its own terms. Again there is escalation.
These rates represent increases from the nationwide rate of $.52 per Mcf, established by Opinion No. 699-H, which was upheld in Shell Oil Co. v. FPC, 520 F.2d 1061 (5th Cir. 1975), cert. denied sub nom. California Co. v. FPC, 426 U.S. 941, 96 S.Ct. 2660, 49 L.Ed.2d 394 (1976).
The impact of the increase was estimated by the Commission at from $1.49 to $1.78 billions during the next 12 months.
Within seconds after Opinion 770-A issued, competing petitions for review were filed in this circuit and in other circuits. A panel of this court heard oral argument on the question of the proper venue for this proceeding and held that although petitions for review had been filed simultaneously in this circuit and the Fifth Circuit, the ultimate standard announced by 28 U.S.C. § 2112(a), “the convenience of the parties in the interest of justice,” dictated that the case be heard in the District of Columbia, American Public Gas Association v. FPC, No. 76-2000, 180 U.S.App.D.C. 380, 555 F.2d 852 (1976).
This court issued orders for an expedited briefing schedule. We heard oral argument on March 23 and 24, 1977. All petitioners complain that the FPC orders violate pertinent statutory mandates, lack support in substantial evidence and are arbitrary and capricious. Essentially, the consumer petitioners complain that the rates by the FPC are too high; the producer petitioners complain that those rates are too low. There are also other parties and positions, as will appear.
Pending disposition, this court provided for contingent refunds. While Opinion 770 was under reconsideration by the Commission, this court exercised its jurisdiction under the All Writs Act, 28 U.S.C. § 1651 (1970), to preserve the possibility of a refund. See Order of August 9, 1976, American Public Gas Association v. FPC, 177 U.S.App.D.C. 209, 543 F.2d 356 (1976). After issuance of Opinion 770-A, this court stayed the FPC’s orders except as to producers who undertook to refund portions of the rate increases subsequently held unlawful and except as to gas from onshore wells commenced after July 27, 1976. Order of November 9, 1976, amended November 18, 1976, included as appendices to American Public Gas Association v. FPC, No. 76-2000, 180 U.S.App.D.C. 380, 555 F.2d 852 (1976)
We have given due consideration to a vast number of issues raised by the various petitioners. We cannot practicably speak separately to each of the issues, but the considerable discussion we provide, for the issues of primary consequence, will fairly identify the bases of our conclusion that the orders before us should be affirmed. For convenience, we have provided a Table of Contents, supra, identifying the topics specifically discussed by the court and in the dissenting opinion of Judge Fahy.
I. OVERVIEW AND SCOPE OF REVIEW
A. Regulatory Background
The FPC’s first venture into a national rate for new natural gas came in its Docket No. R-389-B. This resulted in Opinion 699 and amendments, culminating in Opinion No. 699-H, issued December 4, 1974, which fixed a nationwide base rate of 52$ per Mcf throughout the United States (except Alaska) for new gas (governing wells commenced and deliveries begun after January 1, 1973, and also new contracts replacing expired contracts on “flowing gas”). Opinion 699 and its subsequent clarifications were affirmed in the 1975 Shell opinion of the Fifth Circuit. That opinion sketches, and we do not repeat, the background of previous developments in producer regulation — the FPC’s early abstinence; the 1954 Phillips decision, that the Natural Gas Act provided for regulation of prices charged by natural gas producers in interstate sales; and the FPC’s regulation of producers by regional areas, upheld in the Permian Basin Area Rate Cases, 390 U.S. 747, 88 S.Ct. 1344, 20 L.Ed.2d 312 (1968).
Shortly after beginning Docket R-389-B, the FPC commenced a separate Docket No. R-478, to fix nationwide rates for “flowing gas,” from wells drilled prior to January 1, 1973. Opinion No. 749, issued on December 31,1975, established a rate of 23.5$ per Mcf, increasing to 29.5$, as of July 1, 1976, the date when the 22% depletion tax allowance expired for regulated gas production. That is pending on review in the Fifth Circuit.
B. Procedure in FPC Docket
On December 4, 1974, the same day that Opinion 699-H issued, the FPC instituted Docket RM-75-14, which culminated in the orders and opinions (770 and 770-A) currently under review. The notice projected need for a revision of Opinion 699-H to govern new natural gas for the 1975-1976 biennium and such changes as might further the public interest.
The FPC did not propose specific rates in its Notice but stated it would rely on responses by the parties and Commission staff. The order designated as respondents all interstate pipeline companies, and all producers with jurisdictional sales exceeding 10 million Mcf per annum, who have since participated as Indicated Producer Respondents. Ultimately some 46 parties and groups of parties, representing all segments of the natural gas industry and the consuming public, filed written comments and cross-comments on a host of matters.
The ability of parties to comment was limited in one respect much stressed to this court — concerning the matter of the Staff’s study of 31 off-shore Louisiana gas leases in order to probe the issue of gas reserves.
C. Scope of Issues
Opinions 770 and 770A establish rates dramatically higher than the national rates previously established in Opinion 699-H: - a near-tripling for new gas; for the 1973 — 74 biennium, an increase from 52 to 93 cents. As already noted, the Commission estimated an impact of the increase over the next year ranging from $1.49 to $1.78 billions.
Commensurate with these figures are the complexity, variety and range of the issues raised by the consumer protests. Nor have the producers been supine. Their complaints against the level of the rates, and their perceived inadequacy, are sharpened by their anguish that the FPC has reverted to the practice — abandoned in Opinion 699-H — of vintaging gas prices according to the period of production; and by resentment that Opinion 770-A, in response to consumer presentations on rehearing, set a price for the 1973-74 biennium of 93 cents instead of the $1.01 set in Opinion 770, and narrowed the eligibility for higher new rates.
This is a major case. This court’s 1976 orders provided for submission on a expedited basis. The need for expedition of the decision and opinion has been underscored by the increasing awareness that the country is in the midst of an energy crisis, and is considering measures to cope with it.
The court has also sought to expedite issuance of its opinion. All issues tendered have been given careful consideration, although they have not been discussed in the detail used by the parties. Issues not discussed in this opinion are technical; many concern matters where we agree with the disposition in Shell, and they would not account for any significant portion of the rate increase under review.
D. Standards of Judicial Review
The matrix of a court’s consideration of the validity of a natural gas rate order lies in the scope of and standard for judicial review defined in pertinent decisions.
“[Judicial review] begins at the threshold, with enforcement of the requirement of reasonable procedure, with fair notice and opportunity to the parties to present their case.” Greater Boston TV v. FCC, 143 U.S.App.D.C. 383, 392, 444 F.2d 841, 850 (1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 29 L.Ed.2d 701 (1971). The de tails and techniques differ, but the essential principles apply even in proceedings governed by notice-and-comment disposition rather than evidentiary hearings. Portland Cement Assn. v. Ruckelshaus, 158 U.S.App.D.C. 308, 486 F.2d 375 (1973), cert. denied, 417 U.S. 921, 94 S.Ct. 2628, 41 L.Ed.2d 226 (1974).
In substantive terms, the Administrative Procedure Act describes the principal judicial function with the direction that the reviewing court shall set aside agency action found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). The APA’s terms direct inquiry whether the agency is “unsupported by substantial evidence” only in a case subject to 5 U.S.C. §§ 556, 557, or reviewed “on the record of an agency hearing provided by statute.” The Natural Gas Act does not expressly require a hearing on the record. United States v. Florida East Coast Ry., 410 U.S. 224, 93 S.Ct. 810, 35 L.Ed.2d 223 (1973). Section 19(b) of the Natural Gas Act, 15 U.S.C. § 717 et seq., does provide that the “finding of the Commission as to the facts, if supported by substantial evidence, shall be conclusive.”
The issue of procedure — the permissibility of notice-and-written comment (informal rule making) — is considered separately, in Judge Fahy’s Opinion for the Court.
Some commentators have also put it that a statutory reference to “substantial evidence” requires a more rigorous standard of review than the arbitrary-capricious standard. We agree with Judge Friendly that the issue is largely semantic, and that the two criteria “tend to converge” in notice-and-comment rule making. Associated Industries of New York v. Dept. of Labor, 487 F.2d 342, 348-350 (2d Cir. 1973). What is basic is the requirement that there be support in the public record for what is done, City of Chicago v. FPC, 147 U.S.App.D.C. 312, 458 F.2d 731 (1971), cert. denied, 405 U.S. 1074, 92 S.Ct. 1495, 31 L.Ed.2d 808 (1972).
The ultimate standard of reasonableness of Federal Power Commission rate-making was given an early gloss by the Supreme Court in terms of the “end result” test. FPC v. Hope Natural Gas Co., 320 U.S. 591, 64 S.Ct. 281, 88 L.Ed. 333 (1944). The decision in Permian Basin Area Rate Cases, 390 U.S. 747, 38 S.Ct. 1344, 20 L.Ed.2d 312 (1968) reshapes that test and guides us as to the principal ingredients of the court’s functions.
(a) In assessing the numerous and disparate contentions arising out of a lengthy proceeding, the court has an authority “essentially narrow and circumscribed” and need not examine every detail if the total effect be reasonable. 390 U.S. at 766-67, 88 S.Ct. 1344.
(b) A presumption of validity attaches to each exercise of the Commission’s expertise and those who would overturn its judgment have a heavy burden of making a convincing showing that it is unjust and unreasonable in its consequences. 390 U.S. at 767, 88 S.Ct. 1344.
(c) However, there is a need for rate criteria, for “reviewing courts will require criteria more discriminating than justice and arbitrariness if they are sensibly to appraise the Commission’s orders.” 390 U.S. at 790, 88 S.Ct. at 1372.
(d) There is a “zone of reasonableness” in ratemaking, and within this zone the Commission may employ rates functionally to encourage production. 390 U.S. at 796-8, 88 S.Ct. 1344.
In a much-quoted passage Permian summed up the ultimate criteria governing the reviewing court. See 390 U.S. at 791-92, 88 S.Ct. at 1373:
It follows that the responsibilities of a reviewing court are essentially three. First, it must determine whether the Commission’s order, viewed in light of the relevant facts and of the Commission’s broad regulatory duties, abused or exceeded its authority. Second, the court must examine the manner in which the Commission has employed the methods of regulation which it has itself selected, and must decide whether each of the order’s essential elements is supported by substantial evidence. Third, the court must")3etermlne 'whether the order may reasonably be expected to maintain financial integrity, attract necessary capital, and fairly compensate investors for the risks they have assumed, and yet provide appropriate protection to the relevant public interests, both existing and foreseeable. The court’s responsibility is not to supplant the Commission’s balance of these interests with one more nearly to its liking, but instead to assure itself that the Commission has given reasoned consideration to each of the pertinent factors. Judicial review of the Commission’s orders will therefore function accurately and efficaciously only if the Commission indicates fully and carefully the methods by which, and the purposes for which, it has chosen to act, as well as its assessment of the consequences of its orders for the character and future development of the industry. We are, in addition, obliged at this juncture to give weight to the unusual difficulties of this first area proceeding; we must, however, emphasize that this weight must significantly lessen as the Commission’s experience with area regulation lengthens.
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
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sc_caseorigin
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160
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York.
S. D. WARREN CO. v. MAINE BOARD OF ENVIRONMENTAL PROTECTION et al.
No. 04-1527.
Argued February 21, 2006
Decided May 15, 2006
William J. Kayatta, Jr., argued the cause for petitioner. With him on the briefs was Matthew D. Manaban.
G. Steven Rowe, Attorney General of Maine, argued the cause for respondents. With him on the brief for Maine Board of Environmental Protection were Paul Stern, Deputy Attorney General, and Carol A. Blasi and Gerald D. Reid, Assistant Attorneys General. Richard J. Lazarus, Daniel H. Squire, Ethan G. Shenkman, Sean Mahoney, and Ronald A. Shems filed a brief for American Rivers et al. as respondents under this Court’s Rule 12.6.
Jeffrey R Minear argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Clement, Assistant Attorney General Wooldridge, Deputy Solicitor General Hungar, Greer S. Goldman, Ellen J. Durkee, John L. Smeltzer, and Ann R. Klee.
Briefs of amici curiae urging reversal were filed for Augusta, Georgia, by George A. Somerville; for the Edison Electric Institute et al. by Jeffrey L. Fisher, Daniel M. Adamson, Edward H. Comer, Kristy A. N. Bulleit, James H. Hancock, Jr., and Richard S. Wasserstrom; for the National Association of Home Builders et al. by Virginia S. Albrecht, Karma B. Brown, Kathy Robb, Duane J. Desiderio, and Thomas Jon Ward; for the New England Legal Foundation by Martin J. Newhouse, Andrew R. Grainger, and Michael E. Malamut; and for the Salt River Project Agricultural Improvement and Power District by John B. Weldon, Jr., and Lisa M. McKnight.
Briefs of amici curiae urging affirmance were filed for the State of New York et al. by Eliot Spitzer, Attorney General of New York, Caitlin J. Halligan, Solicitor General, Robert H. Easton, Deputy Solicitor General, Peter H. Lehner, Gregory Silbert, Assistant Solicitor General, and James M. Tierney, Assistant Attorney General, by Rob McKenna, Attorney General of Washington, and Brian Fatter and Ron Lavigne, Assistant Attorneys General, by Roberto J. Sanchez Ramos, Secretary of Justice of Puerto Rico, by Susan Shinkman, and by the Attorneys General for their respective States as follows: David W. Marquez of Alaska, Terry Goddard of Arizona, Bill Lockyer of California, Richard Blumenthal of Connecticut, Carl C. Danberg of Delaware, Mark J. Bennett of Hawaii, Lisa Madigan of Illinois, Thomas J. Miller of Iowa, Gregory D. Stumbo of Kentucky, Charles C. Foti, Jr., of Louisiana, J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly of Massachusetts, Michael A. Cox of Michigan, Mike Hatch of Minnesota, Jeremiah W. (Jay) Nixon of Missouri, Mike McGrath of Montana, George J. Chanos of Nevada, Kelly A. Ayotte of New Hampshire, Peter C. Harvey of New Jersey, Patricia A. Madrid of New Mexico, Roy Cooper of North Carolina, W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Patrick C. Lynch of Rhode Island, Henry McMaster of South Carolina, Lawrence E. Long of South Dakota, Paul G. Summers of Tennessee, Mark L. Shurtleff of Utah, William H. Sorrell of Vermont, Darrell V. McGraw, Jr., of West Virginia, and Peggy S. Lautenschlager of Wisconsin; for Friends of the Everglades by John E. Childe; for Former Assistant Administrators of the United States Environmental Protection Agency by Robert G. Dreher, Jennifer Chavez, and Howard I. Fox; for the Hoopa Valley Tribe et al. by Thomas P. Schlosser, Carl Ullman, and Daniel A. Raas; for the Miccosukee Tribe of Indians of Florida by Dexter W. Lehtinen, Claudio Riedi, Sonia Escobio O’Donnell, and Enrique D. Arana; the National Wildlife Federation et al. by David K. Mears; for Trout Unlimited et al. by James B. Dougherty; for Water Quality and Riverine Scientists by Richard Roos-Collins and Steven P. Malloch; and for Senator James M. Jeffords by Mr. Jeffords, pro se.
Benjamin S. Sharp, Guy R. Martin, and Karen M. McGaffey filed a brief for the Western Urban Water Coalition as amicus curiae.
Justice Souter
delivered the opinion of the Court.
The issue in this case is whether operating a dam to produce hydroelectricity “may result in any discharge into the navigable waters” of the United States. If so, a federal license under §401 of the Clean Water Act requires state certification that water protection laws will not be violated. We hold that a dam does raise a potential for a discharge, and state approval is needed.
I
The Presumpscot River runs through southern Maine from Sebago Lake to Casco Bay, and in the course of its 25 miles petitioner, S. D. Warren Company, operates several hydro-power dams to generate electricity for its paper mill. Each dam creates a pond, from which water funnels into a “power canal,” through turbines, and back to the riverbed, passing around a section of the river just below the impoundment.
It is undisputed that since 1935, Warren has needed a license to operate the dams, currently within the authority of the Federal Energy Regulatory Commission (FERC) under the Federal Power Act. 16 U. S. C. §§817(1), 792; see also Public Utility Act of 1935, §210, 49 Stat. 846. FERC grants these licenses for periods up to 50 years, 16 U. S. C. § 799, after a review that looks to environmental issues as well as the rising demand for power, § 797(e).
Over 30 years ago, Congress enacted a specific provision for licensing an activity that could cause a “discharge” into navigable waters; a license is conditioned on a certification from the State in which the discharge may originate that it will not violate certain water quality standards, including those set by the State’s own laws. See Water Quality Improvement Act of 1970, § 103, 84 Stat. 108. Today, this requirement can be found in § 401 of the Clean Water Act, 86 Stat. 877, 33 U. S. C. § 1341: “Any applicant for a Federal license or permit to conduct any activity... which may result in any discharge into the navigable water[s] shall provide the licensing or permitting agency a certification from the State in which the discharge originates....” § 1341(a)(1).
“Any certification provided under this section shall set forth any effluent limitations and other limitations, and monitoring requirements necessary to assure that any applicant for a Federal license or permit will comply with [§§ 1311, 1312, 1316, and 1317] and with any other appropriate requirement of State law set forth in such certification, and shall become a condition on any Federal license or permit subject to the provisions of this section.” § 1341(d).
In 1999, Warren sought to renew federal licenses for five of its hydroelectric dams. It applied for water quality certifications from the Maine Department of Environmental Protection (the state agency responsible for what have come to be known as “401 state certifications”), but it filed its application under protest, claiming that its dams do not result in any “discharge into” the river triggering application of §401.
The Maine agency issued certifications that required Warren to maintain a minimum stream flow in the bypassed portions of the river and to allow passage for various migratory fish and eels. When FERC eventually licensed the five dams, it did so subject to the Maine conditions, and Warren continued to deny any need of §401 state certification. After appealing unsuccessfully to Maine’s administrative appeals tribunal, the Board of Environmental Protection, Warren filed this suit in the State’s Cumberland County Superior Court. That court rejected Warren’s argument that its dams do not result in discharges, and the Supreme Judicial Court of Maine affirmed. 2005 ME 27, 868 A. 2d 210. We granted certiorari, 546 U. S. 933 (2005), and now affirm as well.
II
The dispute turns on the meaning of the word “discharge,” the key to the state certification requirement under §401. The Act has no definition of the term, but provides that “[t]he term ‘discharge’ when used without qualification includes a discharge of a pollutant, and a discharge of pollutants.” 33 U. S. C. § 1362(16). It does define “discharge of a pollutant” and “discharge of pollutants” as meaning “any addition of any pollutant to navigable waters from any point source.” § 1362(12). But “discharge” presumably is broader, else superfluous, and since it is neither defined in the statute nor a term of art, we are left to construe it “in accordance with its ordinary or natural meaning.” FDIC v. Meyer, 510 U. S. 471, 476 (1994).
When it applies to water, “discharge” commonly means a “flowing or issuing out,” Webster’s New International Dictionary 742 (2d ed. 1954); see also ibid. (“[t]o emit; to give outlet to; to pour forth; as, the Hudson discharges its waters into the bay”), and this ordinary sense has consistently been the meaning intended when this Court has used the term in prior water cases. See, e. g., Marsh v. Oregon Natural Resources Council, 490 U. S. 360, 364 (1989) (describing a dam’s “'multiport’ structure, which will permit discharge of water from any of five levels”); Arizona v. California, 373 U. S. 546, 619, n. 25 (1963) (Harlan, J., dissenting in part) (quoting congressional testimony regarding those who “ 'take... water out of the stream which has been discharged from the reservoir’ ”); United States v. Arizona, 295 U. S. 174, 181 (1935) (“Parker Dam will intercept waters discharged at Boulder Dam”).
In fact, this understanding of the word “discharge” was accepted by all Members of the Court sitting in our only other case focused on §401 of the Clean Water Act, PUD No. 1 of Jefferson Cty. v. Washington Dept. of Ecology, 511 U. S. 700 (1994). At issue in PUD No. 1 was the State of Washington’s authority to impose minimum stream flow rates on a hydroelectric dam, and in posing the question presented, the Court said this:
“There is no dispute that petitioners were required to obtain a certification from the State pursuant to §401. Petitioners concede that, at a minimum, the project will result in two possible discharges — the release of dredged and fill material during the construction of the project, and the discharge of water at the end of the tailrace after the water has been used to generate electricity.” Id., at 711.
The Pud No. 1 petitioners claimed that a state condition imposing a stream flow requirement on discharges of water from a dam exceeded the State’s §401 authority to prevent degradation of water quality, but neither the parties nor the Court questioned that the “discharge of water” from the dam was a discharge within the ambit of §401. Ibid. And although the Court’s opinion made no mention of the dam as adding anything to the water, the majority’s use of the phrase “discharge of water” drew no criticism from the dissent, which specifically noted that “[t]he term ‘discharge’ is not defined in the [Clean Water Act] but its plain and ordinary meaning suggests ‘a flowing or issuing out,’ or ‘something that is emitted.’ ” Id., at 725 (opinion of Thomas, J.) (quoting Webster’s Ninth New Collegiate Dictionary 360 (1991)).
In resort to common usage under §401, this Court has not been alone, for the Environmental Protection Agency (EPA) and FERC have each regularly read “discharge” as having its plain meaning and thus covering releases from hydroelectric dams. See, e. g., EPA, Water Quality Standards Handbook § 7.6.3, p. 7-10 (2d ed. 1994) (“EPA has identified five Federal permits and/or licenses that authorize activities that may result in a discharge to the waters[, including] licenses required for hydroelectric projects issued under the Federal Power Act”); FPL Energy Maine Hydro LLC, 111 FERC ¶ 61,104, p. 61,505 (2005) (rejecting, in a recent adjudication, the argument that Congress “used the term ‘discharge’ as nothing more than a shorthand expression for ‘discharge of a pollutant or pollutants’ ”). Warren is, of course, entirely correct in cautioning us that because neither the EPA nor FERC has formally settled the definition, or even set out agency reasoning, these expressions of agency understanding do not command deference from this Court. See Gonzales v. Oregon, 546 U. S. 243, 258 (2006) (“Chevron deference... is not accorded merely because the statute is ambiguous and an administrative official is involved”); Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944). But even so, the administrative usage of “discharge” in this way confirms our understanding of the everyday sense of the term.
m
Warren makes three principal arguments for reading the term “discharge” differently from the ordinary way. We find none availing.
A
The first involves an interpretive canon we think is out of place here. The canon, noscitur a sociis, reminds us that “a word is known by the company it keeps,” Gustafson v. Alloyd Co., 513 U. S. 561, 575 (1995), and is invoked when a string of statutory terms raises the implication that the “words grouped in a list should be given related meaning,” Dole v. Steelworkers, 494 U. S. 26, 36 (1990) (internal quotation marks omitted); see also Beecham v. United States, 511 U. S. 368, 371 (1994) (“That several items in a list share an attribute counsels in favor of interpreting the other items as possessing that attribute as well”).
Warren claims that the canon applies to §502(16) of the Clean Water Act, which provides that “[t]he term ‘discharge’ when used without qualification includes a discharge of a pollutant, and a discharge of pollutants.” 33 U. S. C. § 1362(16). Warren emphasizes that the “include[d]” terms, pollutant discharges, are themselves defined to require an “addition” of pollutants to water. § 1362(12). Since “discharge” pure and simple is keeping company with “discharge” defined as adding one or more pollutants, Warren says “discharge” standing alone must require the addition of something foreign to the water into which the discharge flows. And because the release of water from the dams adds nothing to the river that was not there above the dams, Warren concludes that water flowing out of the turbines cannot be a discharge into the river.
The problem with Warren’s argument is that it purports to extrapolate a common feature from what amounts to a single item (discharge of a pollutant plus the plural variant involving more than one pollutant). See Beecham, supra, at 371. The argument seems to assume that pairing a broad statutory term with a narrow one shrinks the broad one, but there is no such general usage; giving one example does not convert express inclusion into restrictive equation, and noscitur a sociis is no help absent some sort of gathering with a common feature to extrapolate. It should also go without saying that uncritical use of interpretive rules is especially risky in making sense of a complicated statute like the Clean Water Act, where technical definitions are worked out with great effort in the legislative process. Cf. H. R. Rep. No. 92-911, p. 125 (1972) (“[I]t is extremely important to an understanding of [§402] to know the definition of the various terms used and a careful reading of the definitions... is recommended. Of particular significance [are] the words ‘discharge of pollutants’ ”).
B
Regardless, Warren says the statute should, and even must, be read its way, on the authority of South Fla. Water Management Dist. v. Miccosukee Tribe, 541 U. S. 95 (2004). But that case is not on point. Miccosukee addressed §402 of the Clean Water Act, not § 401, and the two sections are not interchangeable, as they serve different purposes and use different language to reach them. Section 401 recast pre-existing law and was meant to “continu[e] the authority of the State... to act to deny a permit and thereby prevent a Federal license or permit from issuing to a discharge source within such State.” S. Rep. No. 92-414, p. 69 (1971). Its terms have a broad reach, requiring state approval any time a federally licensed activity “may” result in a discharge (“discharge” of course being without any qualifiers here), 33 U. S. C. § 1341(a)(1), and its object comprehends maintaining state water quality standards, see n. 1, supra.
Section 402 has a historical parallel with §401, for the legislative record suggests that it, too, was enacted to consolidate and ease the administration of some predecessor regulatory schemes, see H. R. Rep. No. 92-911, at 124-125. But it contrasts with §401 in its more specific focus. It establishes what Congress called the National Pollutant Discharge Elimination System, requiring a permit for the “discharge of any pollutant” into the navigable waters of the United States, 33 U. S. C. § 1342(a). The triggering statutory term here is not the word “discharge” alone, but “discharge of a pollutant,” a phrase made narrower by its specific definition requiring an “addition” of a pollutant to the water. § 1362(12).
The question in Miccosukee was whether a pump between a canal and an impoundment produced a “discharge of a pollutant” within the meaning of §402, see 541 U. S., at 102-103, and the Court accepted the shared view of the parties that if two identified volumes of water are “simply two parts of the same water body, pumping water from one into the other cannot constitute an 'addition’ of pollutants,” id., at 109. Miccosukee was thus concerned only with whether an “addition” had been made (phosphorous being the substance in issue) as required by the definition of the phrase “discharge of a pollutant”; it did not matter under § 402 whether pumping the water produced a discharge without any addition. In sum, the understanding that something must be added in order to implicate §402 does not explain what suffices for a discharge under §401.
c
Warren’s third argument for avoiding the common meaning of “discharge” relies on the Act’s legislative history, but we think that if the history means anything it actually goes against Warren’s position. Warren suggests that the word “includes” in the definition of “discharge” should not be read with any spacious connotation, because the word was simply left on the books inadvertently after a failed attempt to deal specifically with “thermal discharges.” As Warren describes it, several Members of Congress recognized that “heat is not as harmful as what most of us view as ‘pollut-. ants,’ because it dissipates quickly in most bodies of receiving waters,” 1 Legislative History of the Water Pollution Control Act Amendments of 1972 (Committee Print compiled for the Senate Committee on Public Works by the Library of Congress), Ser. No. 93-1, p. 273 (1973) (remarks of Rep. Clark), and they proposed to regulate thermal discharges less stringently than others. They offered an amendment to exclude thermal discharges from the requirements under § 402, but they also wanted to ensure that thermal discharges remained within the scope of § 401 and so sought to include them expressly in the general provision covering “discharge.” See id., at 1069-1070, 1071. The proposed definition read, “[t]he term ‘discharge’ when used without qualification includes a discharge of a pollutant, a discharge of pollutants, and a thermal discharge.” Id., at 1071.
Of course, Congress omitted the reference to “thermal discharge,” and settled on the definition we have today. See Federal Water Pollution Control Act Amendments of 1972, § 502(16), 86 Stat. 887. Warren reasons that once Congress abandoned the special treatment for thermal pollutants, it merely struck the words “thermal discharge” from 33 U. S. C. § 1362(16) and carelessly left in the word “includes.” Thus, Warren argues, there is no reason to assume that describing “discharge” as including certain acts was meant to extend the reach of § 401 beyond acts of the kind specifically mentioned; the terminology of § 401 simply reflects a failed effort to narrow the scope of § 402.
This is what might be called a lawyer’s argument. We will assume that Warren is entirely correct about the impetus behind the failed attempt to rework the scope of pollutant discharge under § 402. It is simply speculation, though, to say that the word “includes” was left in the description of a “discharge” by mere inattention, and for reasons given in Part IV of this opinion it is implausible speculation at that. But if we confine our view for a moment strictly to the drafting history, the one thing clear is that if Congress had left “thermal discharge” as an included subclass of a “discharge” under §502(16), Warren would have a stronger noscitur a sociis argument. For a thermal discharge adds something, the pollutant heat, see n. 3, supra. Had the list of examples of discharge been lengthened to include thermal discharges, there would have been at least a short series with the common feature of addition. As it stands, however, the only thing the legislative history cited by Warren demonstrates is the congressional rejection of language that would have created a short series of terms with a common implication of an addition.
Warren’s theory, moreover, has the unintended consequence of underscoring that Congress probably distinguished the terms “discharge” and “discharge of pollutants” deliberately, in order to use them in separate places and to separate ends. Warren hypothesizes that Congress attempted to tinker with the definition of “discharge” because it wanted to subject thermal discharges to the requirements of §401, but not §402. But this assumption about Congress’s motives only confirms the point that when Congress fine-tunes its statutory definitions, it tends to do so with a purpose in mind. See Bates v. United States, 522 U. S. 23, 29-30 (1997) (if “Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion” (internal quotation marks omitted)).
IV
Warren’s arguments against reading the word “discharge” in its common sense fail on their own terms. They also miss the forest for the trees.
Congress passed the Clean Water Act to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters,” 33 U. S. C. § 1251(a); see also PUD No. 1, 511 U. S., at 714, the “national goal” being to achieve “water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water,” 33 U. S. C. § 1251(a)(2). To do this, the Act does not stop at controlling the “addition of pollutants,” but deals with “pollution” generally, see § 1251(b), which Congress defined to mean “the man-made or man-induced alteration of the chemical, physical, biological, and radiological integrity of water,” § 1362(19).
The alteration of water quality as thus defined is a risk inherent in limiting river flow and releasing water through turbines. Warren itself admits that its dams “can cause changes in the movement, flow, and circulation of a river... causing] a river to absorb less oxygen and to be less passable by boaters and fish.” Brief for Petitioner 23. And several amici alert us to the chemical modification caused by the dams, with “immediate impact on aquatic organisms, which of course rely on dissolved oxygen in water to breathe.” Brief for Trout Unlimited et al. as Amici Curiae 13; see also, e.
Question: What is the court in which the case originated?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
006. U.S. Court of Veterans Appeals
007. U.S. Customs Court
008. U.S. Court of Appeals, Federal Circuit
009. U.S. Tax Court
010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
012. U.S. Consular Courts
013. U.S. Commerce Court
014. Territorial Supreme Court
015. Territorial Appellate Court
016. Territorial Trial Court
017. Emergency Court of Appeals
018. Supreme Court of the District of Columbia
019. Bankruptcy Court
020. U.S. Court of Appeals, First Circuit
021. U.S. Court of Appeals, Second Circuit
022. U.S. Court of Appeals, Third Circuit
023. U.S. Court of Appeals, Fourth Circuit
024. U.S. Court of Appeals, Fifth Circuit
025. U.S. Court of Appeals, Sixth Circuit
026. U.S. Court of Appeals, Seventh Circuit
027. U.S. Court of Appeals, Eighth Circuit
028. U.S. Court of Appeals, Ninth Circuit
029. U.S. Court of Appeals, Tenth Circuit
030. U.S. Court of Appeals, Eleventh Circuit
031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction)
032. Alabama Middle U.S. District Court
033. Alabama Northern U.S. District Court
034. Alabama Southern U.S. District Court
035. Alaska U.S. District Court
036. Arizona U.S. District Court
037. Arkansas Eastern U.S. District Court
038. Arkansas Western U.S. District Court
039. California Central U.S. District Court
040. California Eastern U.S. District Court
041. California Northern U.S. District Court
042. California Southern U.S. District Court
043. Colorado U.S. District Court
044. Connecticut U.S. District Court
045. Delaware U.S. District Court
046. District Of Columbia U.S. District Court
047. Florida Middle U.S. District Court
048. Florida Northern U.S. District Court
049. Florida Southern U.S. District Court
050. Georgia Middle U.S. District Court
051. Georgia Northern U.S. District Court
052. Georgia Southern U.S. District Court
053. Guam U.S. District Court
054. Hawaii U.S. District Court
055. Idaho U.S. District Court
056. Illinois Central U.S. District Court
057. Illinois Northern U.S. District Court
058. Illinois Southern U.S. District Court
059. Indiana Northern U.S. District Court
060. Indiana Southern U.S. District Court
061. Iowa Northern U.S. District Court
062. Iowa Southern U.S. District Court
063. Kansas U.S. District Court
064. Kentucky Eastern U.S. District Court
065. Kentucky Western U.S. District Court
066. Louisiana Eastern U.S. District Court
067. Louisiana Middle U.S. District Court
068. Louisiana Western U.S. District Court
069. Maine U.S. District Court
070. Maryland U.S. District Court
071. Massachusetts U.S. District Court
072. Michigan Eastern U.S. District Court
073. Michigan Western U.S. District Court
074. Minnesota U.S. District Court
075. Mississippi Northern U.S. District Court
076. Mississippi Southern U.S. District Court
077. Missouri Eastern U.S. District Court
078. Missouri Western U.S. District Court
079. Montana U.S. District Court
080. Nebraska U.S. District Court
081. Nevada U.S. District Court
082. New Hampshire U.S. District Court
083. New Jersey U.S. District Court
084. New Mexico U.S. District Court
085. New York Eastern U.S. District Court
086. New York Northern U.S. District Court
087. New York Southern U.S. District Court
088. New York Western U.S. District Court
089. North Carolina Eastern U.S. District Court
090. North Carolina Middle U.S. District Court
091. North Carolina Western U.S. District Court
092. North Dakota U.S. District Court
093. Northern Mariana Islands U.S. District Court
094. Ohio Northern U.S. District Court
095. Ohio Southern U.S. District Court
096. Oklahoma Eastern U.S. District Court
097. Oklahoma Northern U.S. District Court
098. Oklahoma Western U.S. District Court
099. Oregon U.S. District Court
100. Pennsylvania Eastern U.S. District Court
101. Pennsylvania Middle U.S. District Court
102. Pennsylvania Western U.S. District Court
103. Puerto Rico U.S. District Court
104. Rhode Island U.S. District Court
105. South Carolina U.S. District Court
106. South Dakota U.S. District Court
107. Tennessee Eastern U.S. District Court
108. Tennessee Middle U.S. District Court
109. Tennessee Western U.S. District Court
110. Texas Eastern U.S. District Court
111. Texas Northern U.S. District Court
112. Texas Southern U.S. District Court
113. Texas Western U.S. District Court
114. Utah U.S. District Court
115. Vermont U.S. District Court
116. Virgin Islands U.S. District Court
117. Virginia Eastern U.S. District Court
118. Virginia Western U.S. District Court
119. Washington Eastern U.S. District Court
120. Washington Western U.S. District Court
121. West Virginia Northern U.S. District Court
122. West Virginia Southern U.S. District Court
123. Wisconsin Eastern U.S. District Court
124. Wisconsin Western U.S. District Court
125. Wyoming U.S. District Court
126. Louisiana U.S. District Court
127. Washington U.S. District Court
128. West Virginia U.S. District Court
129. Illinois Eastern U.S. District Court
130. South Carolina Eastern U.S. District Court
131. South Carolina Western U.S. District Court
132. Alabama U.S. District Court
133. U.S. District Court for the Canal Zone
134. Georgia U.S. District Court
135. Illinois U.S. District Court
136. Indiana U.S. District Court
137. Iowa U.S. District Court
138. Michigan U.S. District Court
139. Mississippi U.S. District Court
140. Missouri U.S. District Court
141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court)
142. New Jersey Western U.S. District Court (West Jersey U.S. District Court)
143. New York U.S. District Court
144. North Carolina U.S. District Court
145. Ohio U.S. District Court
146. Pennsylvania U.S. District Court
147. Tennessee U.S. District Court
148. Texas U.S. District Court
149. Virginia U.S. District Court
150. Norfolk U.S. District Court
151. Wisconsin U.S. District Court
152. Kentucky U.S. Distrcrict Court
153. New Jersey U.S. District Court
154. California U.S. District Court
155. Florida U.S. District Court
156. Arkansas U.S. District Court
157. District of Orleans U.S. District Court
158. State Supreme Court
159. State Appellate Court
160. State Trial Court
161. Eastern Circuit (of the United States)
162. Middle Circuit (of the United States)
163. Southern Circuit (of the United States)
164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
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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
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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
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209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
212. United States Supreme Court
Answer:
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songer_district
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G
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What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
UNITED STATES of America, Plaintiff-Appellee, v. Milton JOHNSON, Defendant-Appellant.
No. 17618.
United States Court of Appeals, Seventh Circuit.
May 20, 1970.
Rehearing Denied July 22, 1970.
Ronald P. Alwin, Federal Defender Program, Chicago, 111., for defendant-appellant.
Thomas A. Foran, U. S. Atty., Lawrence J. Cohen, Asst. U. S. Atty., Chicago, 111., for plaintiff-appellee; Michael B. Nash, Asst. U. S. Atty., of counsel.
Before DUFFY and HASTINGS, Senior Circuit Judges, and FAIRCHILD, Circuit Judge.
HASTINGS, Senior Circuit Judge.
A one count indictment charged that defendant Milton Johnson, on or about May 7, 1968, “fraudulently and knowingly did receive, conceal, buy, sell and facilitate the transportation, concealment and sale of approximately 10 grams of * * * heroin * * * ” in violation of Title 21, U.S.C.A. § 174. After a hearing before the court, defendant’s motion to suppress the evidence and testimony was denied. Defendant was represented at all times in the trial court by privately employed counsel. The record shows that defendant in open court knowingly and voluntarily waived a trial by jury. The issues were then tried to the court without a jury. Judgment of conviction was entered upon a finding of guilty. Defendant, having previously been convicted of violation of federal narcotic laws, was thereupon committed to the custody of the Attorney General for the minimum mandatory period of ten years. Defendant appeals from the judgment of conviction and sentence. We affirm.
Defendant asserts as reversible error the denial of his motion to suppress. Critical to this issue is whether the federal narcotics agents had probable cause for the warrantless arrest of defendant for possession of narcotics and the warrantless incident search which led to the discovery of the narcotics on his person.
We have read the entire transcript of the evidence introduced in the suppression hearing, as well as that introduced in the bench trial on the merits. From this the following seems clearly established.
Federal narcotics Agents Kukstra and Jackson had defendant’s place of residence in Chicago under surveillance about 9:45 a. m. on May 7, 1968. They had been prompted to do this because of information received from an informant “that Milton Johnson was again big in the narcotics traffic;” because they had been able to effect an arrest and conviction through the use of information secured from this informant in one other case; and because defendant was known to the Bureau of Narcotics in Chicago through his record.
At that time they saw defendant leave in a car in the company of Charles Ellis whom they recognized and knew was “of record” with the Bureau. The agents trailed them to 86th and Cottage Grove, where Agent Jackson followed Ellis into a National Tea Store and observed him making several telephone calls. Ellis then rejoined defendant and they drove to 86th and Drexel, where Ellis left defendant’s car and walked east on 86th Street and entered a north-south alley. About thirty-five minutes later, defendant drove his car around the block and parked. At that point the agents saw Ellis walk up to the car. Agent Jackson, using binoculars, saw Ellis hand defendant an aluminum foil package through the window on defendant’s side of the ear. At that time the agents moved to arrest defendant and Ellis. However, on reaching the corner where the suspects had been and after stopping their car, the agents saw that Ellis had disappeared through a gangway. They then lost sight of defendant after trying to catch up with his car. The agents gave up their attempt to make these arrests and resumed their surveillance of defendant’s residence.
About twenty minutes later they again saw defendant leave his house with one Alonzo Oliver. Defendant and Oliver were followed to 67th and Jeffrey, where defendant was seen to leave his car and converse with an unidentified man, return to his ear and drive to 43rd and Cottage Grove, where he met another unidentified man outside his car and talked with him. Defendant then drove to the Lake Meadows Shopping Center, arriving about 1:00 p. m. There defendant was seen making several telephone calls and receiving one call inside the Walgreen drugstore. He met Oliver outside the drugstore and together they returned inside for lunch. About forty-five minutes later, defendant and Oliver drove to 51st and King Drive where defendant talked to a third unidentified man. Defendant and Oliver then drove to near 60th and Stony Island, where defendant left his car and met Ellis again. While they were seen talking together, Agent Jackson, again using his binoculars, saw defendant hand a white envelope to Ellis and receive an aluminum foil package in exchange. Ellis entered a nearby hotel and defendant drove to Jeffery and Marquette Road where, with the assistance of other agents, defendant was arrested by Agents Jackson and Kukstra. The aluminum foil package was removed from his left inside coat pocket at that time.
At the conclusion of the evidence on the motion to suppress, the trial court stated the following conclusion on probable cause: “Well, the record shows that according to this agent, who has been in the Bureau for eight years, that he was aware of the narcotics background of both parties involved here. The court has seen enough of these silver packages here and on the west side [Cook County Criminal Courts Building] to realize this seems to be the standard method of wrapping contraband. Usually, there is an exchange of money for the contraband and that, of course, appeared to be what was going on at the time at 60th and Stony Island. The motion to suppress is denied.”
Thus, the issue before us is whether or not on the record of the hearing before the district court there was a sufficient showing of probable cause to justify the agents in making a warrantless arrest and incident search of defendant.
Defendant contends that the information the agents had, together with their personal observations, amounted to nothing more than a suspicion. The Government asserts a contrary view.
We first consider the informant’s tip. The Government does not argue that this information alone was sufficient to establish probable cause. We may assume arguendo that the informer’s tip in the instant case would not be sufficient due to its vague and general character. Nevertheless, in the words of the Supreme Court, “this is not to say that the tip was so insubstantial that it could not properly have counted in the [agents’] determination. Rather, it needed some further support.” Spinelli v. United States, 393 U.S. 410, 418, 89 S.Ct. 584, 590, 21 L.Ed.2d 637 (1969).
On the question of the existence of such further support, defendant contends that Spinelli requires a reversal of his conviction. We believe that a close reading of that case indicates an opposite conclusion. In Spinelli, the Court held that an informer’s tip, which standing alone did not meet the tests of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), was not sufficiently supported by other factors present in that case to justify a magistrate’s finding probable cause to believe a crime was being committed.
The crime alleged there was interstate gambling activities. The additional factors relied upon to support the informant’s tip were: 1) An FBI surveillance that disclosed that the defendant on four of five days was seen going from Illinois to Missouri, parking his car in a certain lot and, on one occasion, going into a certain apartment; 2) a check with the telephone company which revealed that such apartment had two telephones; and 3) the fact that defendant was “known” to the FBI as a gambler. Given these factors, the Court concluded that “there can be no question that the * * * informant’s tip, has a fundamental place in this warrant application. Without it, probable cause could not be established.” Spinelli, supra, 393 U.S. at 414, 89 S.Ct. at 588. The Court specifically noted that the first two items were completely innocent and that the case would be different if there had been an unusual number of telephones or some abnormal activity. Id. The fact that Spinelli was “known” was no more than police suspicion entitled to no weight in these circumstances. Id.
If we apply this same technique of carefully assessing all facts known to the agents to ascertain what support they give each other in the determination of probable cause, the contrast between Spinelli and the instant case is compelling. Here the informant’s tip was not “fundamental” to a finding of probable cause. Rather, the information that defendant was again engaging in the narcotics business merely served to alert the agents to undertake a surveillance of the defendant to determine whether he was in fact so engaged.
That surveillance revealed • activities that cannot be justly characterized as “innocent-seeming.” Defendant was observed twice meeting the same known narcotics violator and twice obtaining from him a tinfoil packet. Both instances followed a series of telephone calls and trips to apparently pre-arranged meeting points. Defendant was seen delivering a white envelope in exchange for the second packet.
In Spinelli, the Court cited McCray v. Illinois, 386 U.S. 300, 302, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967), as a case where, unlike Spinelli, a defendant’s “abnormal activity” served to buttress an informer’s tip. In that case narcotics agents, acting on a tip which was apparently more reliable than that in the instant case, saw the defendant talk briefly and separately with two persons and then walk “hurriedly” between two buildings after seeing the police car. It was at this point that the agents concluded they had probable cause. The Court agreed. While the tip in the instant case may be less reliable, the suspicious activity is far greater. Without doubt, it was sufficient to “permit the suspicions engendered by the informant’s report, to ripen into a judgment that a crime was probably being committed.” Spinelli, supra, 393 U.S. at 418, 89 S.Ct. at 590.
Above all else is the fact that the agents twice saw defendant receive an aluminum foil packet from a known narcotics violator. Such packages are well-known to experienced narcotics agents as a hallmark of the traffic in drugs. See Fisher v. United States, 92 U.S.App.D.C. 247, 205 F.2d 702 (1953), cert. den. 346 U.S. 872, 74 S.Ct. 122, 98 L.Ed. 381. Any contention that they could have contained innocent commodities is substantially overcome by the fact that they were passing between two known narcotics violators, that the incident occurred twice in the span of a few hours and that both incidents were surrounded by other suspicious activities.
Finally, whereas in Spinelli all the magistrate knew was that Spinelli was a “known” gambler, here the agents knew that not only defendant, but also the man from whom he was getting the suspicious packets, were “of record” with the narcotics bureau. This indicates more than “suspicion.” It indicates that both had prior convictions for violation of the narcotics laws. And most important is the fact that the agents were not simply giving weight to defendant’s reputation as a “bad man,” as was the case in Spinelli. Rather, they were giving weight to the fact that two prior offenders were twice seen engaging in conduct that gave strong indication they were again engaging in illegal activity. In Spinelli all that was shown was that a reputed “bad man” had done a number of perfectly normal and innocent things which an unproven informer alleged were evidence of illegal activity. Spinelli is clearly distinguishable from the instant case.
We are led to the firm conviction that the totality of the information possessed by the agents under the circumstances of this case was sufficient to establish probable cause.
In his brief defendant raises a second issue, the constitutional validity of the statute under which he was convicted, 21 U.S.C.A. § 174. However, after his brief was filed, the Supreme Court decided this issue adversely to defendant in Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (January 20, 1970), and he abandoned it on oral argument.
Mr. Ronald P. Alwin, of the Chicago Bar, ably represented defendant on this appeal following our appointment pursuant to the Criminal Justice Act of 1964. He was assisted by Jean Kamp, of the University of Chicago Law School. We appreciate their services.
The judgment of conviction and sentence is affirmed.
Affirmed.
. Cf. Sibron v. United States, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). There the arresting officer saw defendant converse with known addicts over a period of time and subsequently meet with other addicts at a restaurant and hold a conversation. However, the officer had no information concerning defendant and was not acquainted with him. The Court then stated: “It must be emphasized that Patrolman Martin [the officer] * * * saw nothing pass between Sibron and the addicts. * * * Nothing resembling probable cause existed until after the search had turned up the [glassine] envelopes of heroin.” Id. at 62-63, 88 S.Ct. at 1902.
. Also distinguishable from the ease at bar is United States v. Burhannon, 7 Cir., 388 F.2d 961 (1968), heavily relied upon by defendant. There we were faced with an arrest based solely on observations and information so remote in time from the actual arrest as to be almost useless in the determination of probable cause to believe that the defendant had narcotics in his possession at the time of the arrest. The arresting officers there as much as admitted that they lacked probable cause at the time they made the arrest.
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
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songer_direct1
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A
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine the 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.
COYNE et al. v. SIMRALL CORPORATION et al.
No. 9596.
Circuit Court of Appeals, Sixth Circuit.
Feb. 10, 1944.
Karl H. Hogan, of Saginaw, Mich., Virgil W. McClintic, of Mount Pleasant, Mich., and Devere Kostoff, of Saginaw, Mich., for appellants.
R. Lee Browning, of Mt. Pleasant, Mich., and William E. Knorr, of Alma, Mich. (R. Lee Browning, of Mount Pleasant, Mich., William E. Knorr, of Alma, Mich., and Donald E. Holbrook, of Clare, Mich., on the brief), for appellee.
Before HAMILTON, MARTIN, and McAllister, circuit judges.
McALLISTER, Circuit Judge.
The' Simrall Corporation filed its complaint against friendly and hostile defendants, asking that the court adjudge a certain provision in an oil lease to be invalid, and for an injunction, accounting, and appointment of a trustee. The district court held that the provision in question, relating to apportionment of royalties under a pro rata, pool arrangement, did not control the rights of subsequent grantees, whose deeds recited that they were subject to the lease; and on amended pleadings, asking reformation, the court removed the restrictions of the pool provision from the deeds in question.
The circumstances leading up to the controversy are as follows: Flora Coyne, a widow, was the owner of a tract of approximately 345 acres of farm land in Clare County, Michigan, where she had formerly made her home. The land was poor and worn out, and all of the buildings erected upon the place, had been torn down. At the time when the incidents giving rise to this suit occurred, a small part of the land was used for grazing. On May 3, 1937, Mrs. Coyne executed and delivered an oil lease to the Carter Oil Company of Tulsa, Oklahoma, in which it was agreed that she would receive, as royalty, one-eighth of the value of any oil produced from the premises.
In the lease, which was prepared by the Carter Oil Company, there was inserted a provision, which resulted in this suit, in form as follows: “It is covenanted and agreed that should the fee of said land be divided into separate parcels, held by different owners, or should the rental or royalty interests hereunder be so divided in ownership, after the execution of this lease, the obligations of the lessee hereunder shall not be added to or changed in any manner whatsoever as specifically provided by the terms of this lease. Notwithstanding such separate ownership, lessee may continue to drill and operate said premises as an entirety. Provided, each separate owner shall receive such proportion of all rentals and royalties accruing after the vesting of his title as the acreage of the fee, or rental or royalty interest, bears to the entire acreage covered by the lease, or to the entire rental and royalty interest as the case may be. * * *”
Although relying upon it at the present time, Mrs. Coyne, who is one of the appellants herein, never saw this pooling, or pro rata, provision at the time the lease was made, nor for two and a half years thereafter, and knew nothing about it during that time. It was first called to her attention by the Simrall Corporation. Apparently, Mrs. Coyne was interested only in the stipulation as to the one-eighth royalty interest. The lessee, Carter Oil Company, however, had caused the lease to be recorded, and successors to its interest thereunder, drilled and completed producing wells in part of certain sections, while the rest of the land, which was not promising, remained undeveloped. The Simrall Corporation is the purchaser of the oil produced from the Coyne farm and has previously paid the royalties therefor in accordance with what it understood was the agreement between Mrs. Coyne, the original owner of the land, the Carter Oil Company, the lessee under the oil lease, and Mrs. Coyne’s grantees.
The grantees of Mrs. Coyne had, subsequent to the execution of the oil lease, received from her “royalty deeds,” or deeds conveying to them a certain interest in the oil rights in the land, subject to the lease. Deeds of mesne grantees contained the same provision. Such grantees thought that they were receiving royalty rights to oil from the land specified in the deeds, and Mrs. Coyne thought the same. But the deeds from her stated that the land mentioned therein was under oil lease to the Carter Oil Company and subject to its terms; and the lease provided that royalties would be paid, not to the owner of the interest in a parcel described in a deed, for oil taken therefrom, but that each owner of any part of royalty rights in the entire tract, would receive royalties for oil produced from any part of the entire acreage of the Coyne farm, in such proportion as the acreage mentioned in the royalty deed bore to the acreage of the whole tract.
While an examination of the lease would have disclosed the pool agreement, neither the Simrall Corporation nor any of the numerous grantees under deeds of Mrs. Coyne, made such an examination; and although their deeds recited that they were subject to the terms of the lease, the grantees and the corporation were ignorant of the pro rata provision, and understood and assumed that the lease was the type of oil lease ordinarily used in Michigan, which merely discloses the right of owners of interests in parcels described, to a percentage of amounts realized out of the oil produced therefrom.
Acting on this assumption, the Simrall Corporation made payments of royalties from time to time to Mrs. Coyne and to the various grantees of mineral rights, apportioning such royalties among them as their shares appeared under the deeds, without reference to the stipulation in the oil lease relating to the pro rata payment of royalties from the entire tract.
Payments of royalties were made by the Simrall Corporation to Mrs. Coyne and to the above-mentioned grantees in accordance with division orders. Mrs Coyne, in the division order signed by her, advised the corporation of the proportion of royalties to which she was entitled, based on her understanding that her interest therein depended upon her rights in the parcels from which the oil was produced, rather than upon the pro rata provision set forth in the oil lease. The other grantees were paid in like manner. Thereafter, in October, 1939, the Simrall Corporation discovered that the original oil lease contained the pro rata provision, and some time during the following month, informed Mrs. Coyne of this circumstance. She was told by counsel for the corporation that, according to such provision, she was being greatly underpaid, and the provision was read over to her. Whereupon, she informed counsel that the pro rata provision was not fair; that she wanted to be fair and, accordingly, wished to have the royalties paid in the future as in the past, remarking: “Those people paid their money they should receive their money. * * * Can you draw up something for me to sign?” At this time, she expressed her willingness to sign anything that might be prepared to effect payment of royalties to owners of interests in parcels described in the deeds, for oil produced therefrom. An agreement was thereupon drafted, to carry out her disclosed intentions and to be signed by her. and the other interested parties. She actually signed the agreement but retained it in her possession and did not deliver it. The corporation did not cease the payment of royalties, but continued them on the former basis for some months — until it was informed that Mrs. Coyne had changed her mind and had demanded payment of back royalties in accordance with the pro rata provision in the oil lease. This demand led to the filing of the present suit by the corporation.
Apart from the Simrall Corporation, appellees are mostly grantees of Mrs. Coyne, who asked reformation of the deeds from her in order to remove the pro rata lease provision to which they are subject, by virtue of the recital in the deeds that the deeds are subject to the lease. Appellants include Mrs. Coyne and certain of her grantees, who oppose reformation and insist on continuation of the pro rata provision because their deeds recite that they are subject to the lease, which includes the provision in question.
In seeking to enforce payment of royalties upon the pro rata basis, rather than to owners of rights in the specific parcels from which the oil was produced, appellants contend that reformation of the deeds in question, on the ground of mutual mistake, was error. They insist that both the grantor and the grantees in such deeds were conscious of the existence of the oil lease to which the deeds were subject; and although they might have been ignorant of the specific lease provision, nevertheless, the parties intended that the deeds were to be subject thereto and, therefore, there was no mutual mistake to justify reformation. In making this contention, appellants rely upon the authority of Harley v. Magnolia Petroleum Co. et al., 378 Ill. 19, 37 N.E.2d 760, 766, 137 A.L.R. 900.
In the above-mentioned case, the facts were similar to those here disclosed, in the following particulars: There was an oil lease similar in its pro rata provision to the one here in controversy. Deeds to oil rights, subject to the lease, were issued to two grantees. Both grantor and grantees were ignorant of the pro rata provision— except as may be hereafter noted. Upon discovery of its existence, the grantor asked for an accounting under the pro rata provision; and the grantees, in counterclaims, asked reformation of the deeds, to limit payment of the royalties to the owners of interests in the parcels from which the oil was produced. In an opinion, reversing the trial court, the Supreme Court of Illinois denied reformation on the ground that, although the parties testified that they were ignorant of the terms of the lease, “yet the intention of the parties to the deeds was that they were to be subject to the lease”; and it was held that there was no such showing of mutual mistake as would justify reformation of the deeds.
Much is said in the above-mentioned opinion, with regard to the granting of reformation where parties have contracted in ignorance of facts, and denial thereof in case of conscious want of knowledge, all of which appellants urge in support of their argument. The case may be distinguished, however, from that before us. In the cited case, one of the grantees, who claimed to be ignorant of the pro rata provision in the lease, had referred the lease for examination to his counsel, who had examined it before the grantee’s acceptance of the deed; and the court remarked that such grantee could scarcely be said to have had no notice of the pro rata provision. The other grantee in the cited case was told of the pro rata provision in the lease shortly after he received his deed, and before any oil was discovered, and admitted that he then deemed it of no importance. Even though it were conceded that such grantees were ignorant of the lease terms, there appears no evidence that they actually intended something other than that disclosed in the deeds.
In discussing the legal principles applicable to the cited case, it was said that reformation would be granted on the ground of mutual mistake where the mistake was one of fact, and where the proof clearly and convincingly shows that a mistake was made and that it was mutual and common to both parties. Moreover, it was observed that there is a presumption that a written agreement expresses the mutual intention of the parties, unless the evidence of mistake is of a strong, convincing character; and that the right to reformation requires proof that both parties understood alike the agreement that they made, but failed to express their common understanding and intention in the written instrument. The court said: “An action to reform a written agreement rests upon a theory that the parties came to an understanding, but in reducing it to writing, through mutual mistake, * * * some provision agreed upon was omitted, and the action is to so change the instrument as written as to conform it to the contract agreed upon, by inserting the provisions omitted or striking out the one inserted by mutual mistake. Equity cannot make a new agreement for the parties under the color of reforming the one made by them, or add a provision which they never agreed upon. Where a writing expresses an actual agreement it cannot be reformed by inserting provisions not agreed upon. * * * In Farmers’ Loan & Trust Co. v. Suydam, 69 Neb. 407, 95 N.W. 867, 868, ignorance of facts was held not to be ground for reformation but for rescission. The court there observed: ‘The difficulty in decreeing a reformation in this case consists in the fact that the minds of the parties do not seem to have ever met upon the contract in the form in which it is sought to be put.’ That observation is pointedly applicable to the facts in this case. It can scarcely be said that the deeds were made with intention to make them other than subject to the lease.” 37 N.E.2d 765.
The real distinction between the Harley case and the case before us, is found in the statement from the above opinion, that the evidence did not indicate that the intention to make the deeds “other them sub ject to the lease was mutual.” “In' fact, no evidence of such an intention at the time of the making of the deeds appears on the part of either party thereto. * * * We are of the opinion that the evidence * * * does not show, with required clarity, such mutual mistake as would justify reformation of the deeds.” 37 N.E.2d pages 765, 766. (Italics supplied.)
In the present- case, the district court held that the parties — the grantor and the grantees — mutually intended that the deeds should convey rights to royalties from oil produced from the parcels mentioned in the deed, and that deeds conveying royalty rights on the pro rata basis were contrary to the common intention and understanding of the parties. The Harley case was decided on the ground that, while the parties did not know whht the terms of the lease were, there was no evidence to show that they intended to agree to anything other' than that the deeds would be subject to the lease. Here, it appears that, while the parties did not know what the terms of the lease were, the evidence clearly disclosed that they mutually intended and contracted on'the common understanding that royalties would be paid only to the owners of interests in the parcels from which oil was produced.
It is unnecessary to discuss the testimony at length. The evidence shows that the grantor and grantees contracted on the mutual understanding that, in the conveyances of mineral rights, they were dealing with royalties from the specific acreage mentioned therein, and that no grantee had any interest in royalties from the lands described in the deeds of other grantees. Prices for the oil rights were calculated by Mrs. Coyne, depending upon the location of the parcels described in the deeds. The situation of the acreage mentioned therein, was a controlling factor in the sales, from the standpoint of both the grantor and the grantees, who paid their money, which was accepted by Mrs. Coyne, on the above-mentioned understanding. Division orders, based on ownership of rights in specific parcels, were filed by the grantor and the grantees, advising the Simrall Corporation of their respective shares of royalties, and payment of such shares were repeatedly made in accordance* therewith. None of the parties knew of the pro rata provision in the lease, and none of them had ever heard of such a provision in an oil lease. When the stipulation for allotment of royalties to all owners in the -tract, on a basis of proportionate acreage therein, was first discovered, Mrs. Coyne stated that such provision was not fair, and should be corrected, although she was advised that such a correction would result in less royalty income to her and her children and brothers.
All parties understood alike the agreement that they made — which was not expressed in the deeds. Subjecting the deeds to a pro rata royalty provision in the lease, was a mistake on the part of both grantor and grantees. They never intended to do this; but, as it affirmatively appeared, they intended to do something entirely different. The evidence showed what they intended, and revealed the agreement on which their minds met, and such evidence amply sustained the findings of the trial court. Reformation may be granted to carry out a contract in accordance with the mutual intention of the parties, which was inadvertently disfigured by a mistake in the written instruments. Scott v. Grow, 301 Mich. 226, 3 N.W.2d 254, 141 A.L.R. 819; Conlin v. Masecar, 80 Mich. 139, 45 N.W. 67; Damm v. Moon, 48 Mich. 510, 12 N.W. 679. Where there is mistake on one side, and knowledge of the mistake plus concealment, on the other, reformation will be decreed. Blake v. Fuller, 274 Mich. 534, 265 N.W. 455; Ross v. Damm, 271 Mich. 474, 260 N.W. 750; Retan v. Clark, 220 Mich. 493, 190 N.W. 244; and when one party has a certain understanding of the agreement, and the other so represents the matter, and conducts himself, that the first party, exercising ordinary reason and judgment, construes such acts or conversations as representing the agreement, reformation of a written instrument is granted to carry out such understanding. Bates v. Bates, 56 Mich. 405, 23 N.W. 63. Under the circumstances of this case, reformation is the proper remedy to effectuate the mutual intention of Mrs. Coyne and her grantees.
With one exception, appellants, other than Mrs. Coyne, are her children and her brothers. The trial court found that they paid no consideration for their deeds, and there is substantial evidence to sustain the finding. A subsequent grantee of one of the children paid for royalty interests in the specific acreage named in the deeds. Under the foregoing circumstances, any claims of appellants, based upon the provisions of the oil lease, must yield to the rights of bona fide purchasers for value, who contracted on the mutual understanding with their grantor, that the royalties were to be paid to owners of rights in specific parcels described in the deeds, from oil produced from such parcels.
While the original lessee is not a party to this suit, the Simrall Corporation is the purchaser of oil under the lease provisions and pays the royalties in accordance with the amount therein agreed to. No rights of the lessee, its successors, or of the Simrall Corporation, are in any way affected by a determination of the proper recipients of the royalties. The amount to be paid is the same, whether the royalty interests are owned by one party or by several. The oil lease did not, in any way, affect Mrs. Coyne’s right to sell royalty shares in the land under lease, in whatever manner she desired; and, under the circumstances of this case, the Carter Oil Company, or its successors under the lease, had no interest in any transactions between Mrs. Coyne and her grantees, unless it was one of convenience in the method of payment of the royalties. No rights of bona fide purchasers for value without notice, have intervened, subsequent to the agreements between Mrs. Coyne and her grantees, which would defeat reformation and payment of royalties in accordance with their intention and understanding. Royalties impounded prior to this suit, are payable in accordance with the deeds reformed by the trial court.
The judgment of the district court is affirmed.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
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sc_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.
JONES v. UNITED STATES
No. 97-6203.
Argued October 5, 1998
Decided March 24, 1999
Souter, J., delivered the opinion of the Court, in which Stevens, Scalia, Thomas, and Ginsburg, JJ., joined. Stevens, J., post, p. 252, and Scalia, J., post, p. 253, filed concurring opinions. Kennedy, J., filed a dissenting opinion, in which Rehnquist, C. J., and O’Connor and Breyer, JJ., joined, post, p. 254.
Quin Denvir argued the cause for petitioner. With him on the briefs were Fmncine Zepeda and John P. Balazs.
argued the cause for the United States. With him on the brief were Solicitor General Wax-man, Assistant Attorney General Robinson, Deputy Solicitor General Dreeben, and Nina Goodman.
David M. Porter and Edward M. Chikofsky filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae urging reversal.
Justice Souter
delivered the opinion of the Court.
This case turns on whether the federal carjacking statute, 18 U. S. C. §2119, as it was when petitioner was charged, defined three distinct offenses or a single erime with a choice of three maximum penalties, two of them dependent on sentencing factors exempt from the requirements of charge and jury verdict. We think the better reading is of three distinct offenses, particularly in light of the rule that any interpretive uncertainty should be resolved to avoid serious questions about the statute’s constitutionality.
t — 1
In December 1992, petitioner, Nathaniel Jones, and two others, Oliver and McMillan, held up two men, Mutanna and Mardaie. While Jones and McMillan went through the victims’ pockets, Oliver stuck his gun in Mutanna’s left ear, and later struck him on the head. Oliver and McMillan made their getaway in the Cadillac Jones had driven to the scene, while Jones forced Mardaie into Mutanna’s Honda and drove off after them. After stopping to put Mardaie out, Jones sped away in the stolen car subject to police pursuit, which ended when Jones crashed into a telephone pole. United States v. Oliver, 60 F. 3d 547, 549 (CA9 1995); Tr. 159, 387, 310 (July 27-28, 1993).
A grand Jones and his two accomplices on two counts: using or aiding and abetting the use of a firearm during and in relation to a crime of violence, in violation of 18 U. S. C. § 924(c), and carjacking or aiding and abetting carjacking, in violation of 18 U. S. C. § 2119, which then read as follows:
''Whoever, possessing a firearm as 921 of this title, takes a motor vehicle that has been transported, shipped, or received in interstate or foreign commerce from the person or presence of another by force and violence or by intimidation, or attempts to do so, shall—
"(1) be fined under or than 15 years, or both,
“(2) if serious bodily injury (as of this title) results, be fined under this title or imprisoned not more than 25 years, or both, and
“(3) if prisoned for any number of years up to life, or both.” 18 U. S. C. §2119 (1988 ed., Supp. V).
The indictment made no reference to the statute’s numbered subsections and charged none of the facts mentioned in the latter two, and at the arraignment the Magistrate Judge told Jones that he faced a maximum sentence of 15 years on the carjacking charge. App. 4-5, 7. Consistently with this advice, the District Court’s subsequent jury instructions defined the elements subject to the Government’s burden of proof by reference solely to the first paragraph of § 2119, with no mention of serious bodily injury. Id., at 10. The jury found Jones guilty on both counts.
a new turn, however, with the arrival of the presentence report, which recommended that petitioner be sentenced to 25 years for the carjacking because one of the victims had suffered serious bodily injury. The report noted that Mutanna had testified that Oliver’s gun caused profuse bleeding in Mutanna’s ear, and that a physician had concluded that Mutanna had suffered a perforated eardrum, with some numbness and permanent hearing loss. Id., at 15-16; 60 F. 3d, at 554. Jones objected that the 25-year recommendation was out of bounds, since serious bodily injury was an element of the offense defined in part by §2119(2), which had been neither pleaded in the indictment nor proven before the jury. App. 12-13. The District Court saw the matter differently and, based on its finding that the serious bodily injury allegation was supported by a preponderance of the evidence, imposed a 25-year sentence on the carjacking count, ibid., together with a consecutive 5-year sentence for the firearm offense, 60 F. 3d, at 549.
of Appeals did not read §2119(2) as setting out an element of an independent offense. Id., at 551-554. The Ninth Circuit thus agreed with the Eleventh, see United States v. Williams, 51 F. 3d 1004, 1009-1010 (1995), in reasoning that the structure of the statute, particularly the grammatical dependence of the numbered subsections on the first paragraph, demonstrated Congress’s understanding that the subsections did not complete the definitions of separate crimes. 60 F. 3d, at 552-558. For its view that the subsections provided sentencing factors, the court found additional support in the statute’s legislative history. The heading on the subtitle of the bill creating §2119 was “Enhanced Penalties for Auto Theft,” which the court took as indicating that the statute’s numbered subsections merely defined sentencing enhancements. Id., at 553. The court also noted several references in the Committee Reports and floor debate on the bill to enhanced penalties for an apparently single carjacking offense. Ibid. Because of features arguably distinguishing this case from Almendarez-Torres v. United States, 523 U. S. 224 (1998), we granted certiorari, 523 U. S. 1045 (1998), and now reverse.
Much, turns on the determination that a fact is an element of an offense rather than a sentencing consideration, given that elements must be charged in the indictment, submitted to a jury, and proven by the Government beyond a reasonable doubt. See, e. g., Hamling v. United States, 418 U. S. 87, 117 (1974); United States v. Gaudin, 515 U. S. 506, 509-510 (1995). Accordingly, some statutes come with the benefit of provisions straightforwardly addressing the distinction between elements and sentencing factors. See McMillan v. Pennsylvania, 477 U. S. 79, 85-86 (1986) (express identification of statutory provision as sentencing factor). Even without any such help, however, §2119 at first glance has a look to it suggesting that the numbered subsections are only sentencing provisions. It begins with a principal paragraph listing a series of obvious elements (possession of a firearm, taking a motor vehicle, connection with interstate commerce, and so on). That paragraph comes close to standing on its own, followed by sentencing provisions, the first of which, subsection (1), certainly adds no further element. But the superficial impression loses clarity when one looks at the penalty subsections (2) and (3). These not only provide for steeply higher penalties, but condition them on further facts (injury, death) that seem quite as important as the elements in the principal paragraph (e. g., force and violence, intimidation). It is at best questionable whether the specification of facts sufficient to increase a penalty range by two-thirds, let alone from 15 years to life, was meant to carry none of the process safeguards that elements of an offense bring with them for a defendant’s benefit. The “look” of the statute, then, is not a reliable guide to congressional intentions, and the Government accordingly advances two, more subtle structural arguments for its position that the fact specified in subsection (2) is merely a sentencing factor.
Like the Court of Appeals, the Government stresses that the statute’s numbered subsections do not stand alone in defining offenses, most of whose elements on anyone’s reckoning are set out in the statute’s opening paragraph. This integrated structure is said to suggest that the statute establishes only a single offense. To the same point, the Government argues that the numbered subsections come after the word “shall,” which often divides offense-defining provisions from those that specify sentences. Brief for United States 15-18. While these points are sound enough as far as they go, they are far short of dispositive even on their own terms, whereas they are weakened here by a number of countervailing structural considerations. First, as petitioner notes, Reply Brief for Petitioner 1-2, if the shorter subsection (2) of § 2119 does not stand alone, neither does the section’s more voluminous first paragraph. In isolation, it would merely describe some very obnoxious behavior, leaving any reader assuming that it must be a crime, but never being actually told that it is. Only the numbered subsidiary provisions complete the thought. Section 2119 is thus unlike most offense-defining provisions in the federal criminal code, which genuinely stand on their own grammatical feet thanks to phrases such as “shall be unlawful,” see, e. g., 18 U. S. C. § 922(g), “shall be punished,” see, e. g., § 511A(a), or “shall be guilty of,” see, e.g., 18 U. S. C. §514 (1994 ed., Supp. II), which draw a provision to its close. Second, as for the significance of the word “shall,” although it frequently separates offense-defining clauses from sentencing provisions, it hardly does so invariably. One of the robbery statutes that served as a model for §2119, see 18 U. S. C. §§ 2118(a)(3), (b)(3), for example, places elements of the offense on either side of “shall.” And, of course, where the supposedly “elements” side is itself grammatically incomplete (as here), the placement of “shall” is oddly equivocal. Indeed, both the Government and the Courts of Appeals treat the statute perhaps most closely resembling this one, § 1365(a) (consumer tampering), as defining basic and aggravated offenses, one of which is defined in terms of serious bodily injury. See, e. g., United States v. Meling, 47 F. 3d 1546, 1551 (CA9 1995).
These clues derived from ing of wording, like those the dissent holds up to distinguish the carjacking act both from the robbery statutes upon which it was modeled and state aggravated robbery statutes, see post, at 260-262, 263-264 (opinion of Kennedy, X), turn out to move us only so far in our effort to infer congressional intent. The text alone does not justify any confident inference. But statutory drafting occurs against a backdrop not merely of structural conventions of varying significance, but of traditional treatment of certain categories of important facts, like the degree of injury to victims of crime, in relation to particular crimes. If a given statute is unclear about treating such a fact as element or penalty aggravator, it makes sense to look at what other statutes have done, on the fair assumption that Congress is unlikely to intend any radical departures from past practice without making a point of saying so.
We engaged in just such an enquiry this past Term in Almendarez-Torres, where we stressed the history of treating recidivism as a sentencing factor, and noted that, with perhaps one exception, Congress had never clearly made prior conviction an offense element where the offense conduct, in the absence of recidivism, was independently unlawful. 523 U. S., at 230. Here, on the contrary, the search for comparable examples more readily suggests that Congress had separate and aggravated offenses in mind when it employed the scheme of numbered subsections in §2119. Although Congress has explicitly treated serious bodily injury as a sentencing factor, see, e. g., 18 U. S. C. § 2262(b)(2) (interstate violation of a protection order); § 248(b)(2) (free access to clinic entrances; bodily injury), it has unmistakably identified serious bodily injury as an offense element in any number of statutes, see, e. g., 10 U. S. C. § 928(b)(2) (assault by a member of the armed forces); 18 U. S. C. § 37(a)(1) (violence at international airports); § 1091(a)(2) (genocide). The likelihood that Congress understood injury to be an offense element here follows all the more from the fact that carjacking is a type of robbery, and serious bodily injury has traditionally been treated, both by Congress and by the state legislatures, as defining an element of the offense of aggravated robbery. As the Government acknowledges, Brief for United States 20-21, and n. 8, Congress modeled the federal carjacking statute on several other federal robbery statutes. One of them, 18 U. S. C. §2118 (robbery involving controlled substances), clearly makes causing serious bodily injury an element of the offense. It provides that “[wjhoever takes or attempts to take from the person or presence of another by force or violence or by intimidation any [of certain controlled substances] shall... be fined... or imprisoned not more than twenty years, or both, if (1) the replacement cost of the [controlled substance] was not less than $500,... or (3) another person was killed or suffered significant bodily injury as a result of such taking or attempt.” § 2118(a)(3); see also § 2118(b)(3). A second model, § 2113 (bank robbery), as the Government concedes, see Brief for United States 17, makes related facts of violence, that is, assault and jeopardizing life by using a dangerous weapon, elements defining an aggravated form of that type of robbery. See §§ 2113(d), (e); cf. Almendarez-Torres, supra, at 231 (citing bank robbery statute as example of statute establishing greater and lesser included offenses); McMillan, 477 U. S., at 88 (contrasting § 2113(d) with provision defining a sentencing enhancement).
When pressed unable to explain why Congress might have chosen one treatment of serious bodily harm or violence in defining two of the three offenses it used as its models for § 2119 and a different treatment in writing the carjacking statute itself, see Tr. of Oral Arg. 41-44, and we are unable to imagine a convincing reason ourselves. We thus think it fair to say that, as in the earlier robbery statutes, so in the carjacking statute, Congress probably intended serious bodily injury to be an element defining an aggravated form of the crime.
causation of serious bodily injury or harm as an element defining a distinct offense of aggravated robbery. See, e. g., Ala. Code § 13A-8-41(a)(2) (1994) (robbery in the first degree defined in part by the causing of “serious physical injury”); Alaska Stat. Ann. § 11.41.500(a)(3) (1996) (same); Ark. Code Ann. § 5-12-103 (1997) (aggravated robbery; “[ijnfliets or attempts to inflict death or serious physical injury”); Conn. Gen. Stat. § 53a-134(a)(l) (1994) (robbeiy in the first degree; “[c]auses serious physical injury”); Iowa Code §711.2 (1993) (robbery in the first degree; “purposely inflicts or attempts to inflict serious injury”); Kan. Stat. Ann. §21-3427 (1995) (aggravated robbery; “inflicts bodily harm”); Ky. Rev. Stat. Ann. §515.020(l)(a) (Miehie 1990) (robbery in the first degree; “causes physical injury”); N. H. Rev. Stat. Ann. § 636:l(III)(c) (1996) (class A felony of robbery; “[ijnflicted or attempted to inflict death or serious injury”); N. Y. Penal Law §160.15 (McKinney 1988) (robbery in the first degree; “[clauses serious physical injury”); Ore. Rev. Stat. § 164.415(l)(c) (1990) (robbery in the first degree; “[clauses or attempts to cause serious physical injury'); Tex. Penal Code Ann, § 29.03(a)(1) (1994) (aggravated robbery; “causes serious bodily injury”); Utah Code Ann. § 76-6-302(l)(b) (1995) (aggravated robbery; “causes serious bodily injury”); Wash. Rev. Code § 9A.56.200(l)(c) (1994) (robbery in the first degree; “[ijnfliets bodily injury55). While the state practice is not, admittedly, direct authority for reading the federal carjacking statute, it does show that in treating serious bodily injury as an element, Congress would have been treading a well-worn path.
Despite these indications and the equivocal structural clues, the Government suggests that a 1996 amendment supports its reading of the carjacking statute as previously enacted. In the Carjacking Correction Act of 1996,110 Stat. 3020, Congress provided that the term “serious bodily injury” in subsection (2) should include sexual abuse and aggravated sexual abuse as defined in §§2241 and 2242. The Government points to several statements in the 1996 amendment’s legislative history in which subsection (2) is described as providing a “penalty enhancement,” see, e. g., H. R. Rep. No. 104-787, pp. 2, 3 (1996), as showing that subsection (2) defines a sentencing factor. Even those of us disposed to treat legislative history as authority, however, find the quoted statements unimpressive. Assuming that “penalty enhancement” was meant to be synonymous with “sentencing factor,” the legislative history also contains contrary indications in some of the statements made by the 1996 amendment’s sponsors, suggesting an assumption that subsection (2) established an element or elements that had to be proven at trial. See 142 Cong. Rec. 19769 (1996) (statement of Sen. Biden) (“[T]he defendant had been convicted, of raping the woman” (emphasis added)). This hardly seems the occasion to doubt that “subsequent legislative history is a ‘hazardous basis for inferring the intent of an earlier’ Congress.” Pension Benefit Guaranty Corporation v. LTV Corp., 496 U. S. 633, 650 (1990) (quoting United States v. Price, 361 U. S. 304, 313 (1960)). Indeed, our leeriness of relying on hindsight expressed in legislative history is only confirmed by recognizing what oddity there would be in defining the fact of serious bodily injury by reference to a distinct offense with its own offense elements, like sexual abuse, while at the same time assuming that the fact so defined is merely a sentencing consideration.
Nor do we Court of Appeals is any more helpful to the Government. See 60 P. 3d, at 553. The Committee Reports and floor debate on the statute refer to its augmentation of the criminal law in the singular, not the plural, speaking only of a new federal “crime” or “offense” of carjacking in the singular. See, e. g., H. R. Rep. No. 102-851, pt. 1, p. 17 (1992); 138 Cong. Rec. 32500 (1992) (statement of Rep. Dingell). But what we make of the singular-plural distinction turns on the circumstances. Characterizing a cluster of provisions as enacting something to be described by the singular terms “offense” or “crime” would signify a good deal if the speakers or writers were addressing a point on which the distinction mattered. That is not, however, what they were doing in the passages cited, where those references couched in the singular did not occur in discussions of the issue of offense elements versus sentencing factors that we confront here. So, we think their significance is slight. On the subject of legislative history, we should add that we see nothing favorable to the Government in the fact that the statement in the House Report explaining that the drafters of the carjacking statute drew on the examples of other federal robbery statutes referred to an early version of the carjacking statute when it lacked any reference to the aggravated forms of the offense now defined by subsections (2) and (8). See H. R. Rep. No. 102-851, supra, at 17. As against the suggestion that Congress looked to the earlier robbery statutes only when it settled on the language contained in the carjacking statute’s first paragraph, we think it would have been strange for Congress to find guidance in the other robbery statutes at the beginning of the legislative process and then just forget about them. As the Government itself suggests in a somewhat different context, there is no reason to think that Congress “might have abandoned [those] ready federal models” in developing the more fully elaborated version of the statute that it ultimately adopted. Brief for United States 21, n. 8.
Ill
While we think the fairest reading of §2119 treats the fact of serious bodily harm as an element, not a mere enhancement, we recognize the possibility of the other view. Any doubt that might be prompted by the arguments for that other reading should, however, be resolved against it under the rule, repeatedly affirmed, that “where a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter.” United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U. S. 366, 408 (1909); see also United States v. Jin Fuey Moy, 241 U. S. 394, 401 (1916). It is “out of respect for Congress, which we assume legislates in the light of constitutional limitations," Rust v. Sullivan, 500 U. S. 173, 191 (1991), that we adhere to this principle, which “has for so long been applied by this Court that it is beyond debate." Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U. S. 568, 575 (1988); see also United States v. X-Citement Video, Inc., 513 U. S. 64, 78 (1994).
As the Government us would be open to constitutional doubt in light of a series of cases over the past quarter century, dealing with due process and the guarantee of trial by jury. The first of these, Mullaney v. Wilbur, 421 U. S. 684 (1975), reviewed a Maine murder statute providing that the element of malice (in the sense of want of provocation, Patterson v. New York, 432 U. S. 197, 215 (1977)) would be presumed upon proof of intent to kill resulting in death, subject to a defendant’s right of rebuttal that he had acted on provocation in the heat of passion, which would reduce the offense to manslaughter. Mullaney, supra, at 686, and n. 3. The challenge was that the presumption subject to rebuttal relieved the State of its due process burden to prove every element of the crime beyond a reasonable doubt, as explained in In re Winship, 397 U. S. 358, 364 (1970). The State replied that the challenge was merely formalistic, that the State’s law in effect established a generic crime of felonious homicide, Mullaney, supra, at 688, 696-697, on which view the fact subject to presumption and rebuttal would have gone simply to sentence, and Winship would not have been controlling. But the Court declined to accord the State this license to recharacterize the issue, in part because the State’s reading left its statute at odds both with the centuries-old common law recognition of malice as the fact distinguishing murder from manslaughter and with the widely held modern view that heat of passion, once raised by the evidence, was a subject of the State’s burden, 421 U. S., at 692-696, and in part because an unlimited choice over characterizing a stated fact as an element would leave the State substantially free to manipulate its way out of Winship, 421 U. S., at 698.
Two Terms later, in Patterson v. New York, supra, the Court ruled on a Winship challenge to a scheme defining murder as causing death with intent, subject to an affirmative defense of extreme emotional disturbance for which there was a reasonable explanation. 432 U. S., at 205-206. Unlike Maine’s law, New York’s raised no presumption of malice; malice was omitted from the elements of murder. Patterson contended that because the presence or absence of an extreme emotional disturbance affected the severity of sentence, Winship and Mullaney required the State to prove the absence of that fact beyond a reasonable doubt. We rejected this argument and “decline[d] to adopt as a constitutional imperative... that a State must disprove beyond a reasonable doubt every fact constituting any and all affirmative defenses related to the culpability of an accused.” 432 U. S., at 210. We identified the use of a presumption to establish an essential ingredient of the offense as the curse of the Maine law, because the “shifting of the burden of persuasion with respect to a fact which the State deems so important that it must be either proved or presumed is impermissible under the Due Process Clause.” Id., at 215. With one caveat, therefore, Patterson left the States free to choose the elements that define their crimes, without any impediment from Winship. The caveat was a stated recognition of some limit upon state authority to reallocate the traditional burden of proof, 432 U. S., at 210, which in that case was easily satisfied by the fact that “at common law the burden of proving” the mitigating circumstances of severe emotional disturbance “rested on the defendant.” Id., at 202; see also id., at 211; Mullaney, supra, at 693-694. While a narrow reading of this limit might have been no more than a ban on using presumptions to reduce elements to the point of being nominal, a broader reading was equally open, that the State lacked the discretion to omit “traditional” elements from the definition of crimes and instead to require the accused to disprove such elements.
tions about the charging obligation and the requisite quantum of proof, were succeeded by McMillan v. Pennsylvania, 477 U. S. 79 (1986), in which the Winship issue rose from a provision that a judge’s finding (by a preponderance) of visible possession of a firearm would require a mandatory minimum sentence for certain felonies, but a minimum that fell within the sentencing ranges otherwise prescribed. Although the Court rejected the petitioner’s claim insofar as it would have required a finding beyond a reasonable doubt of any fact upon which a mandatory minimum sentence depended (and rejected certain subsidiary arguments as well), it did observe that the result might have been different if proof of visible possession had exposed a defendant to a sentence beyond the maximum that the statute otherwise set without reference to that fact. 477 U. S., at 88.
McMillan is notable not only for question of due process requirements for factfinding that raises a sentencing range, but also for disposing of a claim that the Pennsylvania law violated the Sixth Amendment right to jury trial as well. The petitioner’s basic argument was for a right to jury determination of all “ultimate facts concerning the offense committed,” id., at 93, and although the Court disposed of this by reference back to its due process discussion, that discussion had broached the potential constitutional significance of factfinding that raised the sentencing ceiling.
Process Clause of the Fourteenth Amendment and the jury guarantee of the Sixth: when a jury determination has not been waived, may judicial factfinding by a preponderance support the application of a provision that increases the potential severity of the penalty for a variant of a given crime? The seriousness of the due process issue is evident from Mul-laney’s insistence that a State cannot manipulate its way out of Winship, and from Patterson's recognition of a limit on state authority to reallocate traditional burdens of proof; the substantiality of the jury claim is evident from the practical implications of assuming Sixth Amendment indifference to treating a fact that sets the sentencing range as a sentencing factor, not an element.
The terms of the carjacking statute illustrate very well what is at stake. If serious bodily injury were merely a sentencing factor under §2119(2) (increasing the authorized penalty by two thirds, to 25 years), then death would presumably be nothing more than a sentencing factor under subsection (3) (increasing the penalty range to life). If a potential penalty might rise from 15 years to life on a rionjury determination, the jury’s role would correspondingly shrink from the significance usually carried by determinations of guilt to the relative importance of low-level gatekeeping: in some cases, a jury finding of fact necessary for a maximum 15-year sentence would merely open the door to a judicial finding sufficient for life imprisonment. It is therefore no trivial question to ask whether recognizing an unlimited legislative power to authorize determinations setting ultimate sentencing limits without a jury would invite erosion of the jury’s function to a point against which a line must necessarily be drawn.
tional doubt rule requires if the history bearing on the Framers' understanding of the Sixth Amendment principle demonstrated an accepted tolerance for exclusively judicial factfinding to peg penalty limits. But such is not the history. To be sure, the scholarship of which we are aware does not show that a question exactly like this one was ever raised and resolved in the period before the framing. On the other hand, several studies demonstrate that on a general level the tension between jury powers and powers exclusively judicial would likely have been very much to the fore in the Framers’ conception of the jury right.
The fact that we point to no exemplifying the distinction between elements and facts that elevate sentencing ranges is unsurprising, given the breadth of judicial discretion over fines and corporal punishment in less important, misdemeanor cases, see, e. g., J. Baker, Introduction to English Legal History 584 (3d ed. 1990); 4 W. Blackstone, Commentaries on the Laws of England 372 (1769) (hereinafter Blackstone); Preyer, Penal Measures in the American Colonies: An Overview, 26 Am. J. Legal Hist. 326, 350 (1982), and the norm of fixed sentences in cases of felony, see Langbein, The English Criminal Trial Jury on the Eve of the French Revolution, in The Trial Jury in England, France, Germany 1700-1900, pp. 36-37 (A. Sehioppa ed. 1987); 4 Blaekstone 238-239; A. Scott, Criminal Law in Colonial Virginia 27-28,108-106 (1930).
Even in this system, however, competition developed between judge and jury over the real significance of their respective roles. The potential or inevitable severity of sentences was indirectly checked by juries’ assertions of a mitigating power when the circumstances of a prosecution pointed to political abuse of the criminal process or endowed a criminal conviction with particularly sanguinary consequences. This power to thwart Parliament and Crown took the form not only of fiat-out acquittals in the face of guilt but of what today we would call verdicts of guilty to lesser included offenses, manifestations of what Blaekstone described as “pious perjury” on the jurors’ part. 4 Blaekstone 238-239.
Countervailing measures to diminish the juries’ power were naturally forthcoming, with ensuing responses both in the mother country and in the Colonies that validate, though they do not answer, the question that the Government’s position here would raise. One such move on the Government’s side was a parliamentary practice of barring the right to jury trial when defining new, statutory offenses. See, e. g., Frankfurter & Corcoran, Petty Federal Offenses and the Constitutional Guaranty of Trial by Jury, 39 Harv. L. Rev. 917, 925-930 (1926); 4 Blackstone 277-279. This practice extended to violations of the Stamp Act and recurred in statutes regulating imperial trade, see C. Ubbelohde, Vice-Admiralty Courts and the American Revolution 16-21,74-80 (1960); Wroth, The Massachusetts Vice Admiralty Court, in Law and Authority in Colonial America 82, 50 (G. Billias ed. 1965), and was one of the occasions for the protest in the Declaration of Independence against deprivation of the benefit of jury trial, see P. Maier, American Scripture 118 (1997). But even before the Declaration, a less revolutionary voice than the Continental Congress had protested against the legislative practice, in words widely read in America. The use of nonjury proceedings had “of late been so far extended,” Blackstone warned in the 1760’s, “as, if a check be not timely given, to threaten the disuse of our admirable and truly English trial by jury.” 4 Blackstone 278. Identifying trial by jury as “the grand bulwark” of English liberties, Blackstone contended that other liberties would remain secure only “so long as this palladium remains sacred and inviolate, not only from all open attacks, (which none will be so hardy as to make) but also from all secret machinations, which may sap and undermine it; by introducing new and arbitrary methods of trial, by justices of the peace, commissioners of the revenue, and courts of conscience. And however convenient these may appear at first, (as doubtless all arbitrary powers, well executed, are the most convenient), yet let it be again remembered, that delays, and little inconveniences in the forms of justice, are the price that all free nations must pay for their liberty in more substantial matters.” Id., at 342-344,
A second response to the juries’ power to occurred in attempts to confine jury determinations in libel eases to findings of fact, leaving it to the judges to apply the law and, thus, to limit the opportunities for juror nullification. Ultimately, of course, the attempt failed, the juries’ victory being embodied in Fox’s Libel Act in Britain, see generally T. Green, Verdict According to Conscience 318-355 (1985), and exemplified in John Peter Zenger’s acquittal in the Colonies, see, e. g., J. Rakove, Original Meanings 300-302 (1996). It is significant here not merely that the denouement of the restrictive efforts left the juries in control, but that the focus of those efforts was principally the juries’ control over the ultimate verdict, applying law to fact (or “finding” the law, see, e. g., id., at 301), and not the factfinding role itself. There was apparently some accepted understanding at the time that the finding of facts was simply too sacred a jury prerogative to be trifled with in prosecution for such a significant and traditional offense in the common-law courts. That this history had to be in the minds of the Framers is beyond cavil. According to one authority, the leading account of Zenger’s trial was, with one possible exception, “the most widely known source of libertarian thought in England and America during the eighteenth century.” L. Levy, Freedom of Speech and Press in Early American History 133 (1963). It is just as much beyond question that Americans of the period perfectly well understood the lesson that the jury right could be lost not only by gross denial, but by erosion. See supra, at 245-247. One contributor to the ratification debates, for example, commenting on
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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sc_issue_8
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01
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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.
UNITED STATES v. GRINNELL CORP. et al.
No. 73.
Argued March 28-29, 1966.
Decided June 13, 1966.
Daniel M. Friedman argued the cause for the United States in all cases. With him on the brief were Solicitor General Marshall, Assistant Attorney General Turner, Robert B. Hummel, Gerald Radish and Noel E. Story.
John F. Sonnett argued the cause for appellant in No. 74 and for appellees in No. 73. With him on the briefs for Grinnell Corp. were Denis G. Mclnemey, Roger T. Clapp, Harold F. Reindel, Jerrold G. Van Cise and Robert F. Martin.
Macdonald Flinn argued the cause for appellant in No. 75 and for appellees in No. 73. With him on the briefs for American District Telegraph Co. were Robert O. Donnelly and Thomas B. Leary.
John W. Drye, Jr., argued the cause for appellant in No. 76 and for appellees in No. 73. With him on the briefs for Holmes Electric Protective Co. were Francis S. Bensel and Bud G. Holman.
J. Francis Hayden argued the cause for appellant in No. 77 and for appellees in No. 73. Mr. Hayden also filed a brief for Automatic Fire Alarm Co. of Delaware.
Together with No. 74, Grinnell Corp. v. United States, No. 75, American District Telegraph Co. v. United States, No. 76, Holmes Electric Protective Co. v. United States and No. 77, Automatic Fire Alarm Co. of Delaware v. United States, also on appeal from the same court.
Mr. Justice Douglas
delivered the opinion of the Court.
This case presents an important question under § 2 of the Sherman Act, which makes it an offense for any person to “monopolize . . . any part of the trade or commerce among the several States.” This is a civil suit brought by the United States against Grinnell Corporation (Grinnell), American District Telegraph Co. (ADT), Holmes Electric Protective Co. (Holmes) and Automatic Fire Alarm Co. of Delaware (AFA). The District Court held for the Government and entered a decree. All parties appeal, the United States because it deems the relief inadequate and the defendants both on the merits and on the relief and on the ground that the District Court denied them a fair trial. We noted probable jurisdiction. 381 U. S. 910.
Grinnell manufactures plumbing supplies and fire sprinkler systems. It also owns 76% of the stock of ADT, 89% of the stock of AFA, and 100% of the stock of Holmes. ADT provides both burglary and fire protection servicesj Holmes provides burglary services alone; AFA supplies only fire protection service. Each offers a central station service under which hazard-detecting devices installed on the protected premises automatically transmit an electric signal to a central station. The central station is manned 24 hours a day. Upon receipt of a signal, the central station, where appropriate, dispatches guards to the protected premises and notifies the police or fire department direct. There are other forms of protective services. But the record shows that subscribers to accredited central station service (i. e., that approved by the insurance underwriters) receive reductions in their insurance premiums that are substantially greater than the reduction received by the users of other kinds of protection service. In 1961 accredited companies in the central station service business grossed $65,000,000. ADT, Holmes, and AFA are the three largest companies in the business in terms of revenue: ADT (with 121 central stations in 115 cities) has 73% of the business; Holmes (with 12 central stations in three large cities) has 12.5%; AFA (with three central stations in three large cities) has 2%. Thus the three companies that Grinnell controls have over 87% of the business.
Over the years ADT purchased the stock or assets of 27 companies engaged in the business of providing burglar or fire alarm services. Holmes acquired the stock or assets of three burglar alarm companies in New York City using a central station. Of these 30, the officials of seven agreed not to engage in the protective service business in the area for periods ranging from five years to permanently. After Grinnell acquired control of the other defendants, the latter continued in their attempts to acquire central station companies — offers being made to at least eight companies between the years 1955 and 1961, including four of the five largest nondefendant companies in the business. When the present suit was filed, each of those defendants had outstanding an offer to purchase one of the four largest nondefendant companies.
In 1906, prior to the affiliation of ADT and Holmes, they made a written agreement whereby ADT transferred to Holmes its burglar alarm business in a major part of the Middle Atlantic States and agreed to refrain forever from engaging in that business in that area, while Holmes transferred to ADT its watch signal business and agreed to limit its activities to burglar alarm service and night watch service for financial institutions. While this agreement was modified several times and terminated in 1947, in 1961 Holmes still restricted its business to burglar alarm service and operated only in those areas which had been allocated to it under the 1906 agreement. Similarly, ADT continued to refrain from supplying burglar alarm service in those areas earlier allocated to Holmes.
In 1907 Grinnell entered into a series of agreements with the other defendant companies and with Automatic Fire Protection Co. to the following effect:
AFA received the exclusive right to provide central station sprinkler supervisory and waterflow alarm and automatic fire alarm service in New York City, Boston and Philadelphia, and agreed not to provide burglar alarm service in those cities or central station service elsewhere in the United States.
Automatic Fire Protection Co. obtained the exclusive right to provide central station sprinkler supervisory and waterflow alarm service everywhere else in the United States except for the three cities in which AFA received that exclusive right, and agreed not to engage in burglar alarm service.
ADT received the exclusive right to render burglar alarm and nightwatch service throughout the United States. (Under ADT’s 1906 agreement with Holmes, however, it could not provide burglar alarm services in the areas for which it had given Holmes the exclusive right to do so.) It agreed not to furnish sprinkler supervisory and waterflow alarm service anywhere in the country and not to- furnish automatic fire alarm service in New York City, Boston or Philadelphia (the three cities allocated to AFA). ADT agreed to connect to its central stations the systems installed by AFA and Automatic.
Grinnell agreed to furnish and install all sprinkler supervisory and waterflow alarm actuating devices used in systems that AFA and Automatic would install, and otherwise not to engage in the central station protection business.
AFA and Automatic received 25% of the revenue produced by the sprinkler supervisory waterflow alarm service which they provided in their respective territories; ADT and Grinnell received 50% and 25%, respectively, of the revenue which resulted from such service. The agreements were to continue until February 1954.
The agreements remained substantially unchanged until 1949 when ADT purchased all of Automatic Fire Protection Co.’s rights under it for $13,500,000. After these 1907 agreements expired in 1954, AFA continued to honor the prior division of territories; and ADT and AFA entered into a new contract providing for the continued sharing of revenues on substantially the same basis as before. In 1954 Grinnell and ADT renewed an agreement with a Rhode Island company which received the exclusive right to render central station service within Rhode Island at prices no lower than those of ADT and which agreed to use certain equipment supplied by Grinnell and ADT and to share its revenues with those companies. ADT had an informal agreement with a competing central station company in Washington, D. C., “that we would not solicit each other’s accounts.”
ADT over the years reduced its minimum basic rates to meet competition and renewed contracts at substantially increased rates in cities where it had a. monopoly of accredited central station service. ADT threatened retaliation against firms that contemplated inaugurating central station service. And the record indicates that, in contemplating opening a new central station, ADT officials frequently stressed that such action would deter their competitors from opening a new station in that area.
The District Court found that the defendant companies had committed per se violations of § 1 of the Sherman Act as well as § 2 and entered a decree. 236 F. Supp. 244.
I.
The offense of monopoly under § 2 of the Sherman Act has two elements: (1) the 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. We shall see that this second ingredient presents no major problem here, as what was done in building the empire was done plainly and explicitly for a single purpose. In United States v. du Pont & Co., 351 U. S. 377, 391, we defined monopoly power as “the power to control prices or exclude competition.” The existence of such power ordinarily may be inferred from the predominant share of the market. In American Tobacco Co. v. United States, 328 U. S. 781, 797, we said that “over two-thirds of the entire domestic field of cigarettes, and . . . over 80% of the field of comparable cigarettes” constituted “a substantial monopoly.” In United States v. Aluminum Co. of America, 148 F. 2d 416, 429, 90% of the market constituted monopoly power. In the present case, 87% of the accredited central station service business leaves no doubt that the congeries of these defendants have monopoly power — power which, as our discussion of the record indicates, they did not hesitate to wield — if that business is the relevant market. The only remaining question therefore is, what is the relevant market?
In case of a product it may be of such a character that substitute products must also be considered, as customers may turn to them if there is a slight increase in the price of the main product. That is the teaching of the du Pont. case {supra, at 395, 404), viz., that commodities reasonably interchangeable make up that “part” of trade or commerce which § 2 protects against monopoly power.
The District Court treated the entire accredited central station service business as a single market and we think it was justified in so doing. Defendants argue that the different central station services offered are so diverse that they cannot under du Pont be lumped together to make up the relevant market. For example, burglar alarm services are not interchangeable with fire alarm services. They further urge that du Pont requires that protective services other than those of the central station variety be included in the market definition.
But there is here a single use, i. e., the protection of property, through a central station that receives signals. It is that service, accredited, that is unique and that competes with all the other forms of property protection. We see no barrier to combining in a single market a number of different products or services where that combination reflects commercial realities. To repeat, there is here a single basic service — the protection of property through use of a central service station — that must be compared with all other forms of property protection.
In § 2' cases under the Sherman Act, as in § 7 cases under the Clayton Act (Brown Shoe Co. v. United States, 370 U. S. 294, 325) there may be submarkets that are separate economic entities. We do not pursue that question here. First, we deal with services, not with products; and second, we conclude that the accredited central station is a type of service that makes up a relevant market and that domination or control of it makes out a monopoly of a “part” of trade or commerce within the meaning of § 2 of the Sherman Act. The defendants have not made out a case for fragmentizing the types of services into lesser units.
Burglar alarm service is in a sense different from fire alarm service; from waterflow alarms; and so on. But it would be unrealistic on this record to break down the market into the various kinds of central station protective services that are available. Central station companies recognize that to compete effectively, they must offer all or nearly all types of service. The different forms of accredited central station service are provided from a single office and customers utilize different services in combination. We held in United States v. Philadelphia Nat. Bank, 374 U. S. 321, 356, that “the cluster” of services denoted by the term “commercial banking” is “a distinct line of commerce.” There is, in our view, a comparable cluster of services here. That bank case arose under § 7 of the Clayton Act where the question was whether the effect of a merger “in any line of commerce” may be “substantially to lessen competition.” We see no reason to differentiate between “line” of commerce in the context of the Clayton Act and “part” of commerce for purposes of the Sherman Act. See United States v. First Nat. Bank & Trust Co., 376 U. S. 665, 667-668. In the § 7 national bank case just mentioned, services, not products in the mercantile sense, were involved. In our view the lumping together of various kinds of services makes for the appropriate market here as it did in the § 7 case.
There are, to be sure, substitutes for the accredited central station service. But none of them appears to operate on the same level as the central station service so as to meet the interchangeability test of the du Pont case. Nonautomatic and automatic local alarm systems appear on this record to have marked differences, not the low degree of differentiation required of substitute services as well as substitute articles.
Watchman service is far more costly and less reliable. Systems that set off an audible alarm at the site of a fire or burglary are cheaper but often less reliable. They may be inoperable without anyone’s knowing it. Moreover, there is a risk that the íocal ringing of an alarm will not attract the needed attention and help. Proprietary systems that a customer purchases and operates are available; but they can be used only by a very large business or by government and are not realistic alternatives for most concerns. There are also protective services connected directly to a municipal police or fire department. But most cities with an accredited central station do not permit direct, connected service for private businesses. These alternate services and devices differ, we are told, in utility, efficiency, reliability, responsiveness, and continuity, and the record sustains that position. And, as noted, insurance companies generally allow a greater reduction in premiums for accredited central station service than for other types of protection.
Defendants earnestly urge that despite these differences, they face competition from these other modes of protection. They seem to us seriously to overstate the degree of competition, but we recognize that (as the District Court found) they “do not have unfettered power to control the price of their services . . . due to the fringe competition of other alarm or watchmen services.” 236 F. Supp., at 254. What defendants overlook is that the high degree of differentiation between central station protection ánd the other forms means that for many customers, only central station protection will do. Though some customers may be willing to accept higher insurance rates in favor of cheaper forms of protection, others will, not be willing or able to risk serious interruption to their businesses, even though covered by insurance, and will thus be unwilling to consider anything but central station protection.
The accredited, as distinguished from nonaccredited service, is a relevant part of commerce. Virtually the only central station companies in the status of the non-accredited are those that have not yet been able to meet the standards of the rating bureau. The accredited ones are indeed those that have achieved, in the eyes of underwriters, superiorities that other central stations do not have. The accredited central station is located in a building of approved design, provided with an emergency lighting system and two alternate main power sources, manned constantly by at least a required minimum of operators, provided with a direct line to fire headquarters and, where possible, a direct line to a police station; and equipped with all the devices, circuits and equipment meeting the requirements of the underwriters. These standards are important as insurance carriers often require accredited central station service as a condition to writing insurance. There is indeed evidence that customers consider the unaccredited service as inferior.
We also agree with the District Court that the geographic market for the accredited central station service is national. The activities of an individual station are in a sense local as it serves, ordinarily, only that area which is within a radius of 25 miles. But the record amply supports the conclusion that the business of providing such a service is operated on a national level. There is national planning. The agreements we have discussed covered activities in many States. The inspection, certification and rate-making is largely by national insurers. The appellant ADT has a national schedule of prices, rates, and terms, though the rates may be varied to meet local conditions. It deals with multistate businesses on the basis of nationwide contracts. The manufacturing business of ADT is interstate. The fact that Holmes is more nearly local than the others does not save it, for it is part and parcel of the combine presided over and controlled by Grinnell.
As the District Court found, the relevant market for determining whether the defendants have monopoly power is not the several local areas which the individual stations serve, but the broader national market that reflects the reality of the way in which they built and conduct their business.
We have said enough about the great hold that the defendants have on this market. The percentage is so high as to justify the finding of monopoly. And, as the facts already related indicate, this monopoly was achieved in large part by unlawful and exclusionary practices. The restrictive agreements that pre-empted for each company a segment of the market where it was free of competition of the others were one device. Pricing practices that contained competitors were another. The acquisitions by Grinnell of ADT, AFA, and Holmes were still another. Grinnell long faced a problem of competing with ADT. That was one reason it acquired AFA and Holmes. Prior to settlement of its dispute and controversy with ADT, Grinnell prepared to go into the central station service business. By acquiring ADT in 1953, Grinnell eliminated that alternative. Its control of the three other defendants eliminated any possibility of an outbreak of competition that might have occurred when the 1907 agreements terminated. By those acquisitions it perfected the monopoly power to exclude competitors and fix prices.
II.
The final decree enjoins the defendants in general terms from restraining trade or attempting or conspiring to restrain trade in this particular market, from further monopolizing, and attempting or conspiring to monopolize. The court ordered the alarm companies to file with the Department of Justice standard lists of prices and terms and every quotation to customers that deviated from those lists and enjoined the defendants from acquiring stock, assets, or business of any enterprise in the market. Grinnell was ordered to file, not later than April 1, 1966, a plan of divestiture of its stock in each of the other defendant companies. It was given the option either to sell the stock or distribute it to its stockholders or combine or vary those methods. The court further enjoined any of the defendants from employing in any capacity the President and Chairman of the Board of Grinnell, James D. Fleming. Both the Government and the defendants challenge aspects of the decree.
We start from the premise that adequate relief in a monopolization case should put an end to the combination and deprive the defendants of any of the benefits of the illegal conduct, and break up or render impotent the monopoly power found to be in violation of the Act. That is the teaching of our cases, notably Schine Theatres v. United States, 334 U. S. 110, 128-129.
We largely agree with the Government’s views on the relief aspect of the case. We start with ADT, which presently does 73% of the business done by accredited central stations throughout the country. It is indeed the keystone of the defendants’ monopoly power. The mere dissolution of the combination through the divestiture by Grinnell of its interests in the other companies does not reach the root of the evil. In 92 of the 115 cities in which ADT operates there are no other accredited central stations. Perhaps some cities could not support more than one. Defendants recognized prior to trial that at least 13 cities can; the Government urged divestiture in 48 cities. That there should be some divestiture on the part of ADT seems clear; but the details of such divestiture must be determined by the District Court as the matter cannot be resolved on this record.
Two of the means by which ADT acquired and maintained its large share of the market are the requirement that subscribers sign five-year contracts and the retention by ADT of title to the protective services equipment installed on a subscriber’s premises. On this record it appears that these practices constitute substantial barriers to competition and that relief against them is appropriate. The pros and cons are argued with considerable vehemence here. Again, we cannot resolve them on this record. The various aspects of this controversy must be explored by the District Court and suitable protective provisions included in the decree that deprive these two devices of the coercive power that they apparently have had towards restraining competition and creating a monopoly.
The Government proposed that the defendants be required to sell, on nondiscriminatory terms, any devices manufactured by them for use in furnishing central station service. It seems clear that if the competitors are to be able to compete effectively for the existing customers of the defendants when the present service contracts expire, they must be assured of replacement parts to maintain those systems.
The Government urges visitation rights, that is, requiring reports, examining documents, and interviewing company personnel, a relief commonly granted for the purpose of determining whether a defendant has complied with an antitrust decree. See United States v. United States Gypsum Co., 340 U. S. 76, 95. The District Court gave no explanation for its refusal to grant this relief. It is so important and customary a provision that the District Court should reconsider it.
Defendants urge and the Government concedes that the barring of Mr. Fleming from the employment of any of the defendants is unduly harsh and quite unnecessary on this record. While relief of that kind may be appropriate where the predatory conduct is conspicuous, we cannot see that any such case was made out on this record.
The Government objects, as do the defendants, to the broad and generalized terms of the restraining order. They properly point out, as we emphasized in Schine Theatres v. United States, supra, at 125-126, that the precise practices found to have violated the Act should be specifically enjoined. On remand we suggest that that course be taken.
The defendants object to the requirements that Grin-nell divest itself of its hqldings in the three alarm company defendants, but' we think that provision is wholly justified. Dissolution of the combination is essential as indicated by many of our cases, starting with Standard Oil Co. v. United States, 221 U. S. 1, 78. The defendants object to that portion of the decree that bars them from acquiring interests in firms in the accredited central station business. But since acquisition was one of the methods by which the defendants acquired their market power and was the method by which Grinnell put the combination together, an injunction against the repetition of the practice seems fully warranted. The defendants further object to the requirement in the decree that the alarm company defendants report to the Department of Justice any deviation they make from their list prices. We make no comment on that because in view of the other extensive changes necessary in the decree, the District Court might well deem it to be unnecessary in the fashioning of the new decree. In other words, we leave that matter open, to rest finally in the discretion of the District Court.
III.
The defendants contend that Judge Wyzanski, who tried the case, was personally biased and prejudiced and should have been disqualified from sitting in the case, and that he denied them a fair trial. We think this point is without merit.
The complaint was filed in April 1961, the answers in July 1961. Shortly thereafter extensive taking of depositions began. The District Court in January 1963 directed that no depositions be taken after September 1, 1963. In response to an inquiry from the court both sides suggested that the trial be set no earlier than January 1964.
At a pretrial conference in December 1963, government counsel told the court that the parties had been trying to reach agreement on a consent decree but were far apart and asked how the court would like to handle the presentation of the evidence in the event a settlement was not reached. Grinnell’s lawyer suggested that the next appropriate procedure would be a pretrial on the question of relief — a suggestion that the District Court construed as an invitation to the court to discuss the relief apart from the merits. The Government objected. The court then asked for a brief from each side setting forth its views on relief if the Government prevailed on the merits. In response to the court’s statement that “as I understand it, you want to find out what kind of relief I would be likely to allow if the government’s case stood virtually uncontradicted,” Grinnell’s counsel replied: “That is what I had in mind, your Honor, yes.” Thereupon the court set a day for such a hearing. At the next pretrial conference Grinnell’s counsel stated that “if your Honor would indicate the relief that might be appropriate in this case that would help both sides to come to a better understanding.”
Then the following colloquy occurred:
“The Court. I don’t think it would help very much.
“Mr. McInerney. Well, your Honor, I think it would help both the plaintiff and the defendants to know what is really at stake here in this trial.
“The Court. I assure you that you would not be helped by anything I would say. You would do better to get together with the government rather than run the risk of what I would say from what I have seen. Let me just assure you of that. . . .”
The case was then set for trial on June 15,1964. When Grinnell’s counsel sought to argue further, the court stated: “There is no use in discussing it with me. I have read enough to know that if I have to decide this case on what I have seen from the government you will not be in a position at this stage to agree to it.”
On June 3, 1964, defendants argued for a postponement of the trial, saying they needed more time. The court denied the motion. Then they argued that the relief issues to be tried be limited to those raised by the pleadings so as to eliminate what they considered to be extraneous issues raised by the Government. To that the court replied:
“I can’t understand frankly why you don’t realize that you have forced me to look at the documents in this case, which I dislike doing in advance of trial. You have invited me, therefore, into what I regard as, from your point of view, a rather undesirable situation. I think I made that clear at the beginning. I have told you that, forced by you to look, my views are more extreme than those of the government; and I have also made you realize that if I am required to make Findings and reach Conclusions I am opening up third-party suits that will make, in view of the size of the industry, the percentage of people involved higher than in the electrical cases.”
Shortly thereafter defendants filed a motion for the disqualification of Judge Wyzanski on the grounds of personal bias and prejudice.
The alleged bias and prejudice to be disqualifying must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case. Berger v. United States, 255 U. S. 22, 31. Any adverse attitudes that Judge Wyzanski evinced toward the defendants were based on his study of the depositions and briefs which the parties had requested him to make. What he said reflected no more than his view that, if the facts were as the Government alleged, stringent relief was called for.
During the trial he repeatedly stated that he had not made up his mind on the merits. During the trial he ruled certain evidence to be irrelevant to the issues and when the lawyer persisted in offering it Judge Wyzanski said, “Maybe you will persuade somebody else. And if you think so, all right. I just assure you it is a great ceremonial act, as far as I am concerned.” We do not read this statement as manifesting a closed mind on the merits of the case but consider it merely a terse way of repeating the previously stated ruling that this particular evidence was irrelevant.
We have examined all the other claims of the defendants made against Judge Wyzanski and find that the claim of bias and prejudice is not made out. Our discussion of the relief which he granted shows indeed that he was, in several critical respects, too lenient with those who now charge him with bias and prejudice.
The judgment below is affirmed except as to the decree. We remand for further hearings on the nature of the relief consistent with the views expressed herein.
It is so ordered.
26 Stat. 209, as.amended, 15 U. S. C. §2 (1964 ed.).
Expediting Act § 2, 32 Stat. 823, as amended, 15 U. S. C. § 29 (1964 ed.); United States v. Loew’s, Inc., 371 U. S. 38.
These are the record figures. Since the time of the trial, Grinnell’s holdings have increased. Counsel for Grinnell has advised this Court that Grinnell now holds 80% of ADT’s stock and 90% of the stock of AFA.
Among the various central station services offered are the following:
(1) automatic burglar alarms;
(2) automatic fire alarms;
(3) sprinkler supervisory service (any malfunctions in the fire sprinkler system — e. g., changes in water pressure, dangerously low water temperatures, etc. — are reported to the central station); and
(4) watch signal service (night watchmen, by operating a key-triggered device on the protected premises, indicate to the central station that they are making their rounds and that all is well; the failure of a watchman to make his electrical report alerts the central station that something may be amiss).
In 1959, ADT complained that AFA’s share of the revenues was excessive. AFA replied, in a letter to the president of Grinnell (which by that time controlled both ADT and AFA), that its share was just compensation for its continued observance of the service and territorial restrictions: “[T]he geographic restrictions placed upon us plus the requirement that we confine our activities to sprinkler and fire alarm services exclusively, since 1907 and presumably into the future, has definitely retarded our expansion in the past to the benefit of ADT growth. . . . [AFA’s] contribution must also include the many things that helped make ADT big.” (Emphasis added.)
Thus, of the 38 nondefendant firms operating a central service station protective service in the United States in 1961, 24 offered all of the following services: automatic fire alarm; waterflow alarm and sprinkler supervision; watchman’s reporting and manual fire alarm; and burglar alarm. Of the other firms, 11 provided no watchman’s reporting and manual fire alarm service; six provided no automatic fire alarm service; and two offered no sprinkler supervisory and waterflow alarm service. Moreover, of the 14 firms not providing the full panoply of services, 10 lacked only one of the above-described services. Appellant ADT’s assertion that “very few accredited central stations furnish the full variety of services” is flatly contradicted by the record.
Since the record clearly shows that this monopoly power was consciously acquired, we have no reason to reach the further position of the District Court that once monopoly power is shown to exist, the burden is on the defendants to show that their dominance is due to skill, acumen, and the like.
Although the Government originally urged that the decree was inadequate as to divestiture in -that it permitted Grinnell to distribute the stock of the other companies to Grinnell’s shareholders, it has abandoned that point in this Court.
Specifically, the areas of disagreement are: (1) Defendants urge that barring them from offering five-year contracts would put them at a competitive disadvantage vis-á-vis nondefendant firms; the Government responds that since they violated the law, they may properly be subjected to restrictions not borne by others. See United States v. Bausch & Lomb Co., 321 U. S. 707, 723-724. (2) Some customers of defendants may wish to have long-term contracts; the Government responds that this may be explored on remand. (3) There is some dispute as to whether, if the central station company cannot retain title to the equipment it installs, the insurance companies will accredit the system. This, too, is a proper subject for inquiry on remand.
Prior to trial, the defendants agreed that this would be an appropriate provision in a decree were the Government to prevail in all its claims of antitrust violations. Although defendants now maintain that this pretrial discussion was “settlement talk,” that earlier concession is a relevant factor that the District Judge can properly take into account on remand.
This provision, too, gained pretrial acceptance. See n. 10, supra.
28 U. S. C. § 144 (1964 ed.) provides in relevant part:
“Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.”
Judge Wyzanski referred the question of his disqualification to Chief Judge Woodbury of the Court of Appeals for the First Circuit who after hearing oral argument held that no case of bias and prejudice had been made out under § 144.
Question: What is the issue of the decision?
01. antitrust (except in the context of mergers and union antitrust)
02. mergers
03. bankruptcy (except in the context of priority of federal fiscal claims)
04. sufficiency of evidence: typically in the context of a jury's determination of compensation for injury or death
05. election of remedies: legal remedies available to injured persons or things
06. liability, governmental: tort or contract actions by or against government or governmental officials other than defense of criminal actions brought under a civil rights action.
07. liability, other than as in sufficiency of evidence, election of remedies, punitive damages
08. liability, punitive damages
09. Employee Retirement Income Security Act (cf. union trust funds)
10. state or local government tax
11. state and territorial land claims
12. state or local government regulation, especially of business (cf. federal pre-emption of state court jurisdiction, federal pre-emption of state legislation or regulation)
13. federal or state regulation of securities
14. natural resources - environmental protection (cf. national supremacy: natural resources, national supremacy: pollution)
15. corruption, governmental or governmental regulation of other than as in campaign spending
16. zoning: constitutionality of such ordinances, or restrictions on owners' or lessors' use of real property
17. arbitration (other than as pertains to labor-management or employer-employee relations (cf. union arbitration)
18. federal or state consumer protection: typically under the Truth in Lending; Food, Drug and Cosmetic; and Consumer Protection Credit Acts
19. patents and copyrights: patent
20. patents and copyrights: copyright
21. patents and copyrights: trademark
22. patents and copyrights: patentability of computer processes
23. federal or state regulation of transportation regulation: railroad
24. federal and some few state regulations of transportation regulation: boat
25. federal and some few state regulation of transportation regulation:truck, or motor carrier
26. federal and some few state regulation of transportation regulation: pipeline (cf. federal public utilities regulation: gas pipeline)
27. federal and some few state regulation of transportation regulation: airline
28. federal and some few state regulation of public utilities regulation: electric power
29. federal and some few state regulation of public utilities regulation: nuclear power
30. federal and some few state regulation of public utilities regulation: oil producer
31. federal and some few state regulation of public utilities regulation: gas producer
32. federal and some few state regulation of public utilities regulation: gas pipeline (cf. federal transportation regulation: pipeline)
33. federal and some few state regulation of public utilities regulation: radio and television (cf. cable television)
34. federal and some few state regulation of public utilities regulation: cable television (cf. radio and television)
35. federal and some few state regulations of public utilities regulation: telephone or telegraph company
36. miscellaneous economic regulation
Answer:
|
songer_geniss
|
G
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
In re LLEWELLIN. JAHN v. LLEWELLIN.
Nos. 5899, 5929.
Circuit Court of Appeals, Seventh Circuit.
Nov. 19, 1936.
William Beebe, of Chicago, 111., for appellant.
Charles A. Williams and Albert Martin, both of Chicago, 111., for appellee.
Before EVANS and SPARKS, Circuit Judges, and LINDLEY, District Judge.
EVANS, Circuit Judge.
The dispute which this appeal is to settle involves the feasibility of the plan of reorganization which the debtor submitted for her creditor’s and the court’s approval. This plan, which met the approval of the District Court, is seriously challenged by appellant who is debtor’s sole creditor.
Debtor’s plan calls for an extension of time within which to pay her debts, which amount to $13,750 and interest, besides money, advanced by mortgagee to pay taxes. She, the debtor, is the owner of a parcel of real estate located at 3643-45 Sheffield Avenue, Chicago. Upon this real estate is a three story brick six flat building and a two car garage. Each apartment contains six rooms. One apartment is occupied by debtor and her family who manage the property.
The property is encumbered by a first mortgage which secures promissory notes of the principal sum of $13,750, with accrued interest of approximately $600. Appellant, in addition to holding the notes and mortgage, has paid certain taxes on the premises, aggregating $1,491.21.
In 1932, the debtor made an assignment of rents. Not all the rents were collected, however, and a new collector was designated who applied the installments of rent on taxes and interest. After these proceedings were instituted the debtor deposited the net monthly rentals with the clerk of the court. Out of the same, the 1934 taxes of $612.11 were paid. Unpaid expenses of these proceedings are less than the undistributed rentals collected during the pendency of these proceedings.
The plan, briefly stated, calls for extension of the debt for five years from date of order approving confirmation, to-wit, April, 1936. Interest at the rate of 3% per annum is to be paid semi-annually on the indebtedness of $14,369.03. The remaining 3% per annum is to be added to the principal indebtedness and paid at the end of the extension period. Debtor is to pay appellant $1,491.21 (being moneys advanced for the payment of taxes) and interest thereon at 6% from May 11, 1935. $745.65 of this sum is to be paid by the end of the first year and the balance at the end of the second year. Debtor is to pay all current taxes and current costs' of operation. After the payment of costs of administration, .. attorneys’ fees, moneys advanced on account of taxes, current and accrued interest, and current taxes, any net income shall be used to retire the principal.
Debtor is to manage said premises, do the janitor and decorating work free of charge, and is to receive for her services, the free use of the apartment now occupied by her. She is to file with the clerk of the court on the 10th day of each month an itemized statement of receipts and disbursements for the preceding month and •shall deposit the net rentals monthly with the clerk. The plan. contained the following:
“9. In the event that at the end of extension period the indebtedness due and •owing under aforesaid trust deed is not liquidated, or upon the failure of the debt- or to make the payments required under this extension proposal, the court may order a liquidation of this estate, as provided by law for the benefit of creditors, or may grant the mortgagee the right to foreclose, or to take any other appropriate proceedings. Debtor shall be allowed a period of sixty days grace for all payments required to be made under this extension proposal, with the exception of deposits which are to be made monthly with the Clerk of the United States District Court.”
The cost of the administration was to be fixed by the court and assessed against the estate and shall constitute a prior lien on the income of the property involved herein. $346 was allowed for further attorneys’ fees, $750 having been previously paid.
The clerk’s office shows receipts to be as follows:
Balance in Clerk’s hand to April, 1936 (From May, 1935) $ 759.91
May, 1936 52.75
June, 1936 239.80
July, 1936 183.25
August, 1936 00.00
Sept., 1936 142.91
$1,378.62
Average monthly income for five months 123.74
The property for 30 months prior to these proceedings netted 3,567.65
Average monthly income , 118.92
The schedules placed a value of $20,000 on the property.
Was the proposed plan, upon the facts stated, feasible?
Appellee’s assurances of fulfilment of promises depend upon an expected increase in rentals. Doubtless, the court may take notice of the fact that there has been some increase in the rental of Chicago real estate, and it may also assume that this will continue. There are, however, many other factors bearing on this issue of feasibility.
The feasibility of any plan of reorganization presents problems which are highly practical. They involve the study of estimated receipts and expenditures, of the possibility of change in either, as well as questions of value. To illustrate: Such questions as these call for answer. Will values rise in the next five years? If they do generally, how much will they affect the value of this debtor’s property? How much should one discount cost price? In view of the sorry record of Chicago 1927-29 building operations and the irresponsible flotation of securities worth less than par during the ’20s with padded cost items a common practice, should cost price not be entirely ignored in determining present day values? May an investor in Chicago real estate bonds reasonably expect his bonds to rise to par when the total bonded indebtedness equaled or exceeded the original padded cost of the building? To what extent should the court look to the year or the time when the building was erected as a factor of value? Likewise, location in a city like Chicago has a most important bearing upon future earnings and value. In some instances courts are asked to assume a value for 1928 or 1929 which has never been duplicated in any other period of the city’s history. Commenting upon the proposal of frantic investors vainly seeking to recover their lost investment, Chief Justice Hughes, in the recent decision in the case of Tennessee Publishing Company v. American National Bank et al., 57 S.Ct. 85, 87, 81 L.Ed. —, decided November 8, 1936, said:
“However honest in its efforts the debt- or may be, and however sincere its motives, the District Court is not bound to clog its docket with visionary or impracticable schemes for resuscitation.”
As to the recent market value of this real estate we are left in the dark so far as opinion evidence is concerned. It may well be so, for opinions of value at all times, and particularly today, vary greatly and are hard to reconcile.
Any plan of reorganization must be fair to both parties. The mortgagee is entitled to equal consideration with the mortgagor. While the collection efforts of the mortgagee may well be stayed for a reasonable time provided there exists a reasonable likelihood of her mortgage being paid at that time, it is manifestly unfair to postpone interest payment, repayment of moneys advanced to pay taxes for a period of five years, and leave the mortgagee’s recovery of principal and interest to chance or speculative uncertainties based wholly on “hopes” born of wistful wishing, strong desires or urgent necessities. In the absence of facts to support hopes, there exists no sufficient support for a plan which postpones mortgagee’s rights and remedies arising out of a past due secured indebtedness.
We are not prepared, however, upon the facts disclosed by the record in this case to reject the debtor’s plan in view of its approval by the District Court. By that plan the court can and no doubt will protect the mortgagee if reimbursement for interest and back tax payments is not made. The net yearly rental of $1500 will cover taxes and the interest payments provided for in the plan and leave approximately $470. The debtor may supplement this income from outside sources, and the amount required to meet the back taxes each year will be less than $300. At the end of two years the back tax reimbursements will be at an end and the current taxes and all interest charges at 6% would be more than earned. All of this contemplates vigilance on the part of the court. The plan must not be viewed as a paper plan — a theoretical solution of a present pressing problem. If the obligations of debtor are not met or the default satisfactorily explained, action to protect mortgagee must follow immediately. This we think the plan contemplates.
As an appellate court we are not called upon to pass upon the feasibility of this plan as an original proposition. We may have grave doubts as to its feasibility. The determination of that matter was the District Court’s function. He was in a better position than we (certainly in as good a position), and he found the plan was feasible. The evidence does not justify our setting aside this finding.
The decree is
Affirmed.
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
|
sc_petitionerstate
|
07
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state associated with the petitioner. If the petitioner is a federal court or federal judge, note the "state" as the United States. The same holds for other federal employees or officials.
COLORADO v. NUNEZ
No. 82-1845.
Argued January 17, 1984
Decided February 21, 1984
Steven L. Bernard argued the cause for petitioner. With him on the brief was James F. Smith.
Kenneth H. Stern argued the cause and filed a brief for respondent.
Briefs of amici curiae urging reversal were filed for the United States by Solicitor General Lee, Assistant Attorney General Trott, Deputy Solicitor General Frey, and David A. Strauss; and for the Colorado District Attorneys Council by Brooke Wunnike.
Burt Neubome and Charles Sims filed a brief for the American Civil Liberties Union as amicus curiae.
Per Curiam.
The writ is dismissed as improvidently granted, it appearing that the judgment of the court below rested on independent and adequate state grounds.
Question: What state is associated with the petitioner?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
26. Massachusetts
27. Michigan
28. Minnesota
29. Mississippi
30. Missouri
31. Montana
32. Nebraska
33. Nevada
34. New Hampshire
35. New Jersey
36. New Mexico
37. New York
38. North Carolina
39. North Dakota
40. Northern Mariana Islands
41. Ohio
42. Oklahoma
43. Oregon
44. Palau
45. Pennsylvania
46. Puerto Rico
47. Rhode Island
48. South Carolina
49. South Dakota
50. Tennessee
51. Texas
52. Utah
53. Vermont
54. Virgin Islands
55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer:
|
sc_caseorigin
|
094
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York.
NELSON v. ADAMS USA, INC., et al.
No. 99-502.
Argued March 27, 2000
Decided April 25, 2000
Ginsburg, J., delivered the opinion for a unanimous Court.
Debra J. Dixon argued the cause for petitioner. With her on the briefs was James L. Deese.
Jack Allen Wheat argued the cause for respondents. With him on the brief were Vance Armentrout Smith, Joel Thomas Beres, and John William Scruton.
Justice Ginsburg
delivered the opinion of the Court.
This litigation began when Ohio Cellular Products Corporation (OCP) sued respondent Adams USA, Inc. (Adams), claiming patent infringement. The District Court eventually dismissed OCP’s claim and ordered OCP to pay Adams’ costs and attorney fees. Adams feared that OCP might be unable to pay the fee award and therefore sought a means to recover from petitioner Nelson, president and sole shareholder of OCP, in his individual capacity. In pursuit of that objective, Adams moved under Rule 15 of the Federal Rules of Civil Procedure to amend its pleading to add Nelson as a party; Adams also asked the court, under Rule 59(e), to amend the fee award. The District Court granted the motion in full, simultaneously making Nelson a party and subjecting him to judgment. The Court of Appeals affirmed. We hold that the District Court erred in amending the judgment immediately upon permitting amendment of the pleading. Due process, as reflected in Rule 15 as well as Rule 12, required that Nelson be given an opportunity to respond and contest his personal liability for the award after he was made a party and before the entry of judgment against him.
I
OCP and its successor corporation held two patents relating to the method of manufacturing a foamed padding used in athletic equipment. In 1994, OCP sued Adams for infringement. Adams maintained that the patents had been anticipated by prior art and were therefore invalid under 35 U. S. C. § 102(b). The District Court ruled in Adams’ favor and dismissed the infringement complaint.
Adams then moved for attorney fees and costs. The District Court granted the motion on the ground that Nelson, who was at all relevant times president and sole shareholder of OCP, had deceitfully withheld the prior art from the United States Patent and Trademark Office. This behavior, the District Court concluded, constituted inequitable conduct chargeable to OCP. On January 20,1998, the District Court awarded Adams costs and fees in the amount of $178,888.51 against OCP.
Adams feared, however, that it would be unable to collect the award. This was an altogether understandable concern; it stemmed from a letter OCP’s counsel had sent Adams warning that OCP would be liquidated if exposed to a judgment for fees more than nominal in amount. Adams therefore moved to amend its pleading to add Nelson, personally, as a party from whom fees could be collected. In this post-judgment endeavor, Adams reasoned that Nelson was the flesh-and-blood party behind OCP, the person whose conduct in withholding prior art precipitated the fee award, and a person with funds sufficient to satisfy that award. The District Court granted the motion.
Adams’ motion, however, sought more than permission to amend the pleading. It sought simultaneously an amended judgment, subjecting Nelson to liability as soon as he was made a party. See Record, Doc. No. 126, p. 1 (“Defendants [i. e., Adams] hereby move the Court... for an order granting Defendants leave to amend their third party complaint to name Donald E. Nelson (Nelson) as a third party defendant in his individual capacity, and amending the judgment in this action to include Nelson as an additional party against whom judgment is entered.”). In presenting the motion, Adams offered no reason why the judgment should be altered immediately. See id., at 7-8. The motion did contend that an amendment to the judgment was “necessary to prevent manifest injustice,” id., at 8 (internal quotation marks omitted), but it did not explain why Nelson, once joined as a party, should not be permitted to state his side of that argument. The District Court seems not to have paused over this question, for it allowed the pleading amendment and altered the judgment at a single stroke. Record, Doc. No. 131. The memorandum explaining the District Court’s decision addressed only the propriety of adding Nelson as a party. It did not address the propriety of altering the judgment at the very same time. Record, Doc. No. 130, at 3-7.
The Court of Appeals for the Federal Circuit affirmed the amended judgment against Nelson. Ohio Cellular Prods. Corp. v. Adams USA, Inc., 175 F. 3d 1343 (1999). It was “uncommon,” the appeals court acknowledged, to add a party after the entry of judgment. Id., at 1348. The court con-eluded, however, that Nelson had not been prejudiced by the postjudgment joinder. The Federal Circuit based that conclusion on Nelson’s failure to show that “anything different or additional would have been done” to stave off the judgment had Nelson been a party, in his individual capacity, from the outset of the litigation. Id., at 1351. The panel, over a vigorous dissent by Judge Newman, was apparently satisfied that adding Nelson as a party and simultaneously amending the judgment to obligate him individually met due process requirements. See id., at 1345,1349, n. 5.
We granted certiorari, 528 U. S. 1018 (1999). In his request for this Court’s review, Nelson did not dispute the portion of the District Court’s order that granted Adams leave to amend its pleading to add Nelson as a party against whom costs and fees were sought. Pet. for Cert. 11. What he does challenge, and what is now before us, is the portion of the District Court’s order that immediately adjudged Nelson personally liable the moment he was made a party.
II
A
The Federal Rules of Civil Procedure are designed to farther the due process of law that the Constitution guarantees. Cf. Fed. Rule Civ. Proc. 1 (Rules “shall be construed and administered to secure the just, speedy, and inexpensive determination of every action.”). Rule 15 sets out the requirements for amended and supplemental pleadings. On that score, the Court of Appeals observed that as long as no undue prejudice is shown, “due process requirements are met if the requirements of Rule 15 are met.” 175 F. 3d, at 1349, n. 5. But in the instant case, the requirements of Rule 15 were not met. As Judge Newman recognized in her dissent, below, due process does not countenance such swift passage from pleading to judgment in the pleader’s favor. See id., at 1352.
The propriety of allowing a pleading alteration depends not only on the state of affairs prior to amendment but also on what happens afterwards. Accordingly, Rule 15 both conveys the circumstances under which leave to amend shall be granted and directs how the litigation will move forward following an amendment. When a court grants leave to amend to add an adverse party after the time for responding to the original pleading has lapsed, the party so added is given “10 days after service of the amended pleading” to plead in response. Fed. Rule Civ. Proc. 15(a). This opportunity to respond, fundamental to due process, is the echo of the opportunity to respond to original pleadings secured by Rule 12. See Fed. Rule Civ. Proc. 12(a)(1). Thus, Rule 15 assumes an amended pleading will be filed and anticipates service of that pleading on the adverse party.
Nelson was never served with an amended pleading. Indeed, no such pleading was ever actually composed and filed in court. Nor, after the amendment naming him as a party, was Nelson accorded 10 days to state his defenses against personal liability for costs and fees. Instead, judgment was entered against him the moment permission to amend the pleading was granted. Appeal after judgment, in the circumstances this case presents, did not provide an adequate opportunity to defend against the imposition of liability. Cf. American Surety Co. v. Baldwin, 287 U. S. 156 (1932). Adams points to nothing in the record indicating that Nelson affirmatively relinquished his right to respond on the merits of the case belatedly stated against him in his individual capacity. Accordingly, the proceedings did not comply with Rule 15, and neither did they comport with due process. See, e.g., Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 314 (1950) (“ ‘The fundamental requisite of due process of law is the opportunity to be heard.’ ”) (quoting Grannis v. Ordean, 234 U. S. 385, 394 (1914)).
It is true that Nelson knew as soon as Adams moved to amend the pleading and alter the judgment that he might ultimately be subjected to personal liability. One could ask, therefore, whether Nelson in fact had a fair chance, before alteration of the judgment, to respond and be heard. Rule 15 and the due process for which it provides, however, demand a more reliable and orderly course. First, as the Rule indicates, pleading in response to an amended complaint is a prerogative of parties, see Fed. Rule Civ. Proc. 15(a), and Nelson was not a party prior to the District Court’s ruling on Adams’ motion to amend. Second, as Rule 15 further prescribes, the clock on an added party’s time to respond does not start running until the new pleading naming that party is served, see ibid., just as the clock on an original party’s time to respond does not start running until the original pleading is served, see Fed. Rule Civ. Proc. 12(a)(1)(A). This is not to say that Rule 15 is itself a constitutional requirement. Beyond doubt, however, a prospective party cannot fairly be required to answer an amended pleading not yet permitted, framed, and served.
In support of its holding that Nelson was not prejudiced when added as a party and subjected to judgment, the Federal Circuit relied on its prior decision in Fromson v. Citiplate, Inc., 886 F. 2d 1300 (1989). See 175 R. 3d, at 1349-1350, and n. 7. The reliance is puzzling, for the circumstances in Fromson were crucially different from those presented here. The plaintiff in Fromson prevailed on an infringement claim and subsequently moved to hold the owners of the judgment-proof defendant corporation individually liable. To that extent only, Fromson resembles the instant case. Notably unlike Adams, however, the plaintiff in Fromson had moved before trial to add the individual owners as parties, because it suspected from the start that the defendant corporation might not be able to pay. The District Court denied that motion in reliance on the defendant corporation’s false assurances that it was solvent. See 886 F. 2d, at 1301, 1304. Having been informed before trial that the plaintiffs sought to sue them in their individual capacities, and having acted deliberately to derail such a suit, the owners of the defendant corporation in Fromson could hardly assert that another’s mistake or choice of whom to sue had compromised their ability to defend. Their problem, the Federal Circuit aptly observed in its Fromson opinion, was “a bed of their own making.” Id., at 1304.. Here, in contrast, Adams never sought to sue Nelson individually until after judgment was entered against OCP. Nor is there any indication that Adams initially sought relief solely against OCP because of some false assurance regarding OOP’s solvency
To summarize, Nelson was never afforded a proper opportunity to respond to the claim against him. Instead, he was adjudged liable the very first moment his personal liability was legally at issue. Procedure of this style has been questioned even in systems, real and imaginary, less concerned than ours with the right to due process.
B
Adams strongly urges, however, that Nelson waived his objections to the swift process of the District Court. Adams first maintains that Nelson waived arguments based on personal jurisdiction and the absence of service of process by failing to raise them promptly after being added as a party. Brief for Respondents 82-41. Nelson’s winning argument, however, is based neither on personal jurisdiction nor on service of process. It rests on his right to have time and opportunity to respond to the claim once Adams gained leave to sue Nelson in his individual capacity, and thereby to reach beyond OOP’s corporate till into Nelson’s perspnal pocket. Waiver of arguments based on personal jurisdiction and service of process is therefore beside the point.
In a similar vein, and this time coming closer to the dis-positive issue, Adams submits that the Federal Circuit “did not address the ‘due process’ issues now sought to be presented, . . . because these issues were never raised by Petitioner” before that court. Id., at 47 (emphasis deleted). It is indeed the general rule that issues must be raised in lower courts in order to be preserved as potential grounds of decision in higher courts. But this principle does not demand the incantation of particular words; rather, it requires that the lower court be fairly put on notice as to the substance of the issue. See, e. g., Beech Aircraft Corp. v. Rainey, 488 U. S. 153, 174-175 (1988). And the general rule does not prevent us from declaring what due process requires in this case, for that matter was fairly before the Court of Appeals.
In response to questioning from the appellate bench, Nelson’s counsel explained that the core of his client’s argument was the fundamental unfairness of imposing judgment without going through the process of litigation our rules of civil procedure prescribe. Both the majority and the dissent in the Federal Circuit understood that an issue before them concerned the process due after Adams’ postjudgment motion. See 175 F. Bd, at 1349, n. 5 (majority opinion); id., at 1B52 (Newman, J., dissenting). Our resolution of the case as a matter of due process therefore rests on a ground considered and passed upon by the court below.
Beneath Adams’ technical and ultimately unavailing arguments about waiver, its essential position in the litigation is reflected in the Federal Circuit’s decision: There was sufficient identity between Nelson and OCP to bind Nelson, without further ado, to a judgment already entered against OCP. Nelson was president and sole shareholder of OCP. See id., at 1346. It was Nelson who withheld prior art from the Patent Office. See id., at 1349. He had actual notice that Adams was seeking to collect a fee award from OCP, because he was the “effective controller” of the litigation for OCP and personally participated as a witness at the hearing on whether OCP had engaged in inequitable conduct. See ibid.
The Federal Circuit did not conclude that these factors would have justified imposing liability on Nelson by piercing OOP’s corporate veil, see id., at 1349, n. 6, and Adams, for its part, has disavowed reliance on a veil-piercing theory, see Record, Doc. No. 129, at 3 (stating, before the District Court, that “Adams does not request that the Court ‘disregard the corporate form’ ”); Tape of Oral Arg. in No. 98-1448 (CA Fed. Feb. 3, 1999) (expressly stating that this case does not concern piercing the corporate veil). One-person corporations are authorized by law and should not lightly be labeled sham. See, e. g., Gregory v. Helvering, 293 U. S. 465, 469 (1935) (finding corporation a sham not because it was owned entirely by one person, but because it had “no business or corporate purpose”); Kirno Hill Corp. v. Holt, 618 F. 2d 982, 985 (CA2 1980) (a corporation’s veil may not be pierced merely because it has only one owner). Indeed, where patents are concerned, the one-person corporation may be an altogether appropriate means to permit innovation without exposing inventors to possibly ruinous consequences. The legitimacy of OOP as a corporation, in short, is not at issue in this case.
Instead, the Federal Circuit reasoned that nothing much turned on whether the party opposing Adams’ claim for costs and fees was OCP or Nelson. “[N]o basis has been advanced,” the panel majority concluded, “to believe anything different or additional would have been done to defend against the allegation of inequitable conduct had Nelson individually already been added as a party or had he been a party from the outset.” 175 F. 3d, at 1351. We neither dispute nor endorse the substance of this speculation. We say instead that judicial predictions about the outcome of hypothesized litigation cannot substitute for the actual opportunity to defend that due process affords every party against whom a claim is stated. As Judge Newman wrote in dissent: “The law, at its most fundamental, does not render judgment simply because a person might have been found liable had he been charged.” Id., at 1354.
Our decision surely does not insulate Nelson from liability. As counsel twice represented at oral argument, see Tr. of Oral Arg. 9, 19-20, Nelson seeks only the right to contest on the merits his personal liability for fees originally sought and awarded solely against OCR That right, we hold, is just what due process affords him.
* * *
For the reasons stated, 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.
Even when an amendment relates back to the original date of pleading under Rule 15(c), as Adams contends its amendment does, the relation back cannot, consistently with due process, deny a party all opportunity to be heard in response to the amendment. We also note in this regard that the instant case does not fall under Rule 15(c)(3), which deals with amendments that change the party or the name of the party against whom claims are asserted. That subsection applies only in cases involving “a mistake concerning the identity of the proper party.” Fed. Rule Civ. Proc. 15(c)(3)(B). Respondent Adams made no such mistake. It knew of Nelson’s role and existence and, until it moved to amend its pleading, chose to assert its claim'for costs and fees only against OGP.
A well-known work offers this example:
“ ‘Herald, read the accusation!’ said the King.
On this the White Rabbit blew three blasts on the trumpet, and then unrolled the parchment scroll, and read as follows:
‘The Queen of Hearts, she made some tarts,
All on a summer day:
The Knave of Hearts, he stole those tarts,
And took them quite away!’
‘Consider your verdict,’ the King said to the jury.
‘Not yet, not yet!’ the Rabbit interrupted. ‘There’s a great deal to come before that!’” L. Carroll, Alice in Wonderland and Through the Looking Glass 108 (Messner 1982) (emphasis in original).
We note that a waiver of service of process does not waive a party’s right to time in which to respond to the substance of charges that, absent the waiver, would have been included in a served document. It would make little sense to penalize a party’s waiver of process, which can help streamline litigation, by barring such a party from stating its side of the case. Indeed, such waiver can sometimes extend a party’s time to respond. See Fed. Rule Civ. Proc. 12(a)(1)(B) (rather than having to respond within 20 days of service, a party waiving service may respond at any time within 60 days of the request for waiver).
Nelson’s counsel stated his position as follows: “[I]t’s legally -wrong to subject the individual, nonserved, nonsued, nonlitigated-against person to liability for that judgment. Because there are rules. The rules say if you want a judgment against somebody, you sue them, you litigate against them, you get a judgment against them.” Tape of Oral Arg. in No. 98-1448 (CA Fed. Feb. 3, 1999).
Once the amended pleading is served and Nelson’s response is submitted, it will be open to Adams to urge, as Adams prematurely does here, Brief for Respondents 22-28, that issue preclusion (collateral estoppel) bars Nelson from contesting findings made during the litigation between OOP and Adams. See Restatement (Second) of Judgments §39 (1980). We venture no opinion here about the possible success of such an argument, made at the proper time.
Question: What is the court in which the case originated?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
006. U.S. Court of Veterans Appeals
007. U.S. Customs Court
008. U.S. Court of Appeals, Federal Circuit
009. U.S. Tax Court
010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
012. U.S. Consular Courts
013. U.S. Commerce Court
014. Territorial Supreme Court
015. Territorial Appellate Court
016. Territorial Trial Court
017. Emergency Court of Appeals
018. Supreme Court of the District of Columbia
019. Bankruptcy Court
020. U.S. Court of Appeals, First Circuit
021. U.S. Court of Appeals, Second Circuit
022. U.S. Court of Appeals, Third Circuit
023. U.S. Court of Appeals, Fourth Circuit
024. U.S. Court of Appeals, Fifth Circuit
025. U.S. Court of Appeals, Sixth Circuit
026. U.S. Court of Appeals, Seventh Circuit
027. U.S. Court of Appeals, Eighth Circuit
028. U.S. Court of Appeals, Ninth Circuit
029. U.S. Court of Appeals, Tenth Circuit
030. U.S. Court of Appeals, Eleventh Circuit
031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction)
032. Alabama Middle U.S. District Court
033. Alabama Northern U.S. District Court
034. Alabama Southern U.S. District Court
035. Alaska U.S. District Court
036. Arizona U.S. District Court
037. Arkansas Eastern U.S. District Court
038. Arkansas Western U.S. District Court
039. California Central U.S. District Court
040. California Eastern U.S. District Court
041. California Northern U.S. District Court
042. California Southern U.S. District Court
043. Colorado U.S. District Court
044. Connecticut U.S. District Court
045. Delaware U.S. District Court
046. District Of Columbia U.S. District Court
047. Florida Middle U.S. District Court
048. Florida Northern U.S. District Court
049. Florida Southern U.S. District Court
050. Georgia Middle U.S. District Court
051. Georgia Northern U.S. District Court
052. Georgia Southern U.S. District Court
053. Guam U.S. District Court
054. Hawaii U.S. District Court
055. Idaho U.S. District Court
056. Illinois Central U.S. District Court
057. Illinois Northern U.S. District Court
058. Illinois Southern U.S. District Court
059. Indiana Northern U.S. District Court
060. Indiana Southern U.S. District Court
061. Iowa Northern U.S. District Court
062. Iowa Southern U.S. District Court
063. Kansas U.S. District Court
064. Kentucky Eastern U.S. District Court
065. Kentucky Western U.S. District Court
066. Louisiana Eastern U.S. District Court
067. Louisiana Middle U.S. District Court
068. Louisiana Western U.S. District Court
069. Maine U.S. District Court
070. Maryland U.S. District Court
071. Massachusetts U.S. District Court
072. Michigan Eastern U.S. District Court
073. Michigan Western U.S. District Court
074. Minnesota U.S. District Court
075. Mississippi Northern U.S. District Court
076. Mississippi Southern U.S. District Court
077. Missouri Eastern U.S. District Court
078. Missouri Western U.S. District Court
079. Montana U.S. District Court
080. Nebraska U.S. District Court
081. Nevada U.S. District Court
082. New Hampshire U.S. District Court
083. New Jersey U.S. District Court
084. New Mexico U.S. District Court
085. New York Eastern U.S. District Court
086. New York Northern U.S. District Court
087. New York Southern U.S. District Court
088. New York Western U.S. District Court
089. North Carolina Eastern U.S. District Court
090. North Carolina Middle U.S. District Court
091. North Carolina Western U.S. District Court
092. North Dakota U.S. District Court
093. Northern Mariana Islands U.S. District Court
094. Ohio Northern U.S. District Court
095. Ohio Southern U.S. District Court
096. Oklahoma Eastern U.S. District Court
097. Oklahoma Northern U.S. District Court
098. Oklahoma Western U.S. District Court
099. Oregon U.S. District Court
100. Pennsylvania Eastern U.S. District Court
101. Pennsylvania Middle U.S. District Court
102. Pennsylvania Western U.S. District Court
103. Puerto Rico U.S. District Court
104. Rhode Island U.S. District Court
105. South Carolina U.S. District Court
106. South Dakota U.S. District Court
107. Tennessee Eastern U.S. District Court
108. Tennessee Middle U.S. District Court
109. Tennessee Western U.S. District Court
110. Texas Eastern U.S. District Court
111. Texas Northern U.S. District Court
112. Texas Southern U.S. District Court
113. Texas Western U.S. District Court
114. Utah U.S. District Court
115. Vermont U.S. District Court
116. Virgin Islands U.S. District Court
117. Virginia Eastern U.S. District Court
118. Virginia Western U.S. District Court
119. Washington Eastern U.S. District Court
120. Washington Western U.S. District Court
121. West Virginia Northern U.S. District Court
122. West Virginia Southern U.S. District Court
123. Wisconsin Eastern U.S. District Court
124. Wisconsin Western U.S. District Court
125. Wyoming U.S. District Court
126. Louisiana U.S. District Court
127. Washington U.S. District Court
128. West Virginia U.S. District Court
129. Illinois Eastern U.S. District Court
130. South Carolina Eastern U.S. District Court
131. South Carolina Western U.S. District Court
132. Alabama U.S. District Court
133. U.S. District Court for the Canal Zone
134. Georgia U.S. District Court
135. Illinois U.S. District Court
136. Indiana U.S. District Court
137. Iowa U.S. District Court
138. Michigan U.S. District Court
139. Mississippi U.S. District Court
140. Missouri U.S. District Court
141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court)
142. New Jersey Western U.S. District Court (West Jersey U.S. District Court)
143. New York U.S. District Court
144. North Carolina U.S. District Court
145. Ohio U.S. District Court
146. Pennsylvania U.S. District Court
147. Tennessee U.S. District Court
148. Texas U.S. District Court
149. Virginia U.S. District Court
150. Norfolk U.S. District Court
151. Wisconsin U.S. District Court
152. Kentucky U.S. Distrcrict Court
153. New Jersey U.S. District Court
154. California U.S. District Court
155. Florida U.S. District Court
156. Arkansas U.S. District Court
157. District of Orleans U.S. District Court
158. State Supreme Court
159. State Appellate Court
160. State Trial Court
161. Eastern Circuit (of the United States)
162. Middle Circuit (of the United States)
163. Southern Circuit (of the United States)
164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas
166. California U.S. Circuit for (all) District(s) of California
167. Connecticut U.S. Circuit for the District of Connecticut
168. Delaware U.S. Circuit for the District of Delaware
169. Florida U.S. Circuit for (all) District(s) of Florida
170. Georgia U.S. Circuit for (all) District(s) of Georgia
171. Illinois U.S. Circuit for (all) District(s) of Illinois
172. Indiana U.S. Circuit for (all) District(s) of Indiana
173. Iowa U.S. Circuit for (all) District(s) of Iowa
174. Kansas U.S. Circuit for the District of Kansas
175. Kentucky U.S. Circuit for (all) District(s) of Kentucky
176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
177. Maine U.S. Circuit for the District of Maine
178. Maryland U.S. Circuit for the District of Maryland
179. Massachusetts U.S. Circuit for the District of Massachusetts
180. Michigan U.S. Circuit for (all) District(s) of Michigan
181. Minnesota U.S. Circuit for the District of Minnesota
182. Mississippi U.S. Circuit for (all) District(s) of Mississippi
183. Missouri U.S. Circuit for (all) District(s) of Missouri
184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
212. United States Supreme Court
Answer:
|
songer_genapel1
|
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 is to determine the nature of the first listed appellant.
PUBLIC CITIZEN, INC.; McCracken Poston; Ralph Paige; Betty Lee Sargent, Plaintiffs-Appellants, v. Zell MILLER, Governor of the State of Georgia; Max Cleland, Secretary of State of the State of Georgia and Director, Georgia State Board of Elections; Paul Coverdell, Defendants-Appellees.
No. 93-8273.
United States Court of Appeals, Eleventh Circuit.
June 14, 1993.
Kenneth S. Canfield, Doffermyre Shields Canfield & Knowles, Atlanta, GA, for plaintiffs-appellants.
Mark Cohen, Asst. Atty. Gen., Michael P. Kenney, Alston & Bird, Atlanta, GA, for defendants-appellees.
Before FAY and DUBINA, Circuit Judges, and HENDERSON, Senior Circuit Judge.
PER CURIAM:
The judgment of the district court is AFFIRMED for the reasons set forth in the Order entered by that court on January 4, 1993, 813 F.Supp. 821.
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_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".
H. A. HURLEY and H. A. and Opal Hurley, Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
No. 12536.
United States Court of Appeals Sixth Circuit.
April 9, 1956.
Percy C. Young, Memphis, Tenn., for petitioners.
H. Brian Holland, Ellis N. Slack, S. Dee Hanson, and R. P. Hertzog, Washington, D. C., for respondent.
Before SIMONS, Chief Judge, and MARTIN and McALLISTER, Circuit Judges.
PER CURIAM.
This petition for review of the decisions of the Tax Court of the United States, brought to us by the taxpayer, H. A. Hurley, a dealer in tractors and farm implements and a farmer, and by his wife, Opal Hurley, has been heard and considered upon the oral arguments and printed briefs of the respective attorneys for the petitioner and respondent and upon the entire record in the case:
From which it appears that the findings of fact of the Tax Court are supported by substantial evidence and are not clearly erroneous, and that the opinion of the United States Tax Judge, which was reviewed by the Tax Court, demonstrates that the Commissioner of Internal Revenue was justified in the circumstances of the case in resorting to the net-worth method of determining income taxes;
That the revised net-worth statement was prepared from the books of the company, as corrected; and includes, moreover, amounts representing assets and liabilities not appearing on the taxpayer’s books; that the figures obtained from such books and records made a sufficient showing of the value of the assets to shift to the petitioners the burden of going forward with the evidence;
That the books and records kept by the petitioner for the company were inadequate to reflect his income; and that, except for the years 1948 and 1949, petitioner’s farming activities were not reported in his returns;
That numerous sales of automobiles and trucks were made without reflecting such transactions on his books of account ;
That a bank account was carried in petitioner’s name and used for dealings of the company without being reflected on the books maintained for the compar ny’s operation; and that the inadequacy of the books of the company for computation of income tax was shown by the efforts of accountants' to adjust them for an adequate reflection of income:
For all of which reasons, the decisions of the tax court holding deficiencies in income taxes in the respective amounts found for the years in controversy are affirmed.
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
|
sc_decisiontype
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the type of decision made by the court among the following: Consider "opinion of the court (orally argued)" if the court decided the case by a signed opinion and the case was orally argued. For the 1791-1945 terms, the case need not be orally argued, but a justice must be listed as delivering the opinion of the Court. Consider "per curiam (no oral argument)" if the court decided the case with an opinion but without hearing oral arguments. For the 1791-1945 terms, the Court (or reporter) need not use the term "per curiam" but rather "The Court [said],""By the Court," or "By direction of the Court." Consider "decrees" in the infrequent type of decisions where the justices will typically appoint a special master to take testimony and render a report, the bulk of which generally becomes the Court's decision. This type of decision usually arises under the Court's original jurisdiction and involves state boundary disputes. Consider "equally divided vote" for cases decided by an equally divided vote, for example when a justice fails to participate in a case or when the Court has a vacancy. Consider "per curiam (orally argued)" if no individual justice's name appears as author of the Court's opinion and the case was orally argued. Consider "judgment of the Court (orally argued)" for formally decided cases (decided the case by a signed opinion) where less than a majority of the participating justices agree with the opinion produced by the justice assigned to write the Court's opinion.
GERSTEIN et al. v. COE et al.
No. 73-1157.
Decided June 3, 1974
Per Curiam.
A three-judge District Court entered a declaratory-judgment holding unconstitutional a Florida statute, Fla. Stat. Ann. §458.22 (3) (Supp. 1974^-1975), which forbids an abortion without the consent of the husband, if the woman is married, and if unmarried and under the age of 18, without the consent of a parent. Because it was anticipated that the State would respect the declaratory judgment, the court declined to issue an injunction against the enforcement of the statute. The State of Florida appeals from the declaratory judgment invalidating the statute. The appeal ' is dismissed for want of jurisdiction. Title 28 U. S. C. § 1253, under which this appeal is sought to be taken, does not authorize an appeal from the grant or denial of declaratory relief alone. Gunn v. University Committee, 399 U. S. 383 (1970); Mitchell v. Donovan, 398 U. S. 427 (1970); Rockefeller v. Catholic Medical Center of Brooklyn & Queens, Inc., Division of St. Mary’s Hospital, 397 U. S. 820 (1970); see also Roe v. Wade, 410 U. S. 113, 123 (1973). The declaratory judgment is appealable to the Court of Appeals, and we are informed that an appeal to that court has already been taken. It is suggested that we treat the statement of jurisdiction as a petition for certiorari before judgment to the Court of Appeals pursuant to 28 U. S. C. § 1254 (1). The petition for certiorari is denied.
Question: What type of decision did the court make?
A. opinion of the court (orally argued)
B. per curiam (no oral argument)
C. decrees
D. equally divided vote
E. per curiam (orally argued)
F. judgment of the Court (orally argued)
G. seriatim
Answer:
|
songer_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 - taxes, patents, copyright - patents. 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".
DELTEC, INC., Plaintiff-Appellant, v. Moya H. LASTER, Floyd J. Moltchan and Webster B. Harpman, DefendantsAppellees.
No. 15168.
United States Court of Appeals Sixth Circuit.
Jan. 20, 1964.
Francis J. Elempay, Youngstown, Ohio, for appellant.
Jack C. Harris and Fred C. Lanz, Wilson & Wyatt, Youngstown, Ohio, for Floyd H. Laster and Floyd J. Moltchan.
Frank P. Anzellotti, Youngstown, Ohio, for Webster B. Harpman.
Before MILLER and WEICE, Circuit Judges, and DARR, Senior District Judge.
PER CURIAM.
This appeal is from an order of the District Court granting defendants’ motion to dismiss the complaint on the ground that it did not state a claim upon which relief could be granted.
The complaint charged the defendants with a conspiracy to violate the anti-trust and patent laws. 15 U.S.C. § 15 and 28 U.S.C. § 1338. It alleged six acts of defendants in support thereof, namely: (1) the filing in the Patent Office by Floyd Laster of a spurious patent application covering design features of the plaintiff’s products; (2) the dissemination to plaintiff’s dealers, distributors, suppliers, business associates, employees and potential purchasers of plaintiff’s products with false information pertaining to the contractual and patent rights of the plaintiff, thus preventing the marketing of plaintiff’s products; (3) the filing in the Patent Office of a false affidavit by the defendant Floyd Moltchan disclaiming inventorship in a pending patent application; (4) the surreptitious obtaining of plaintiff’s drawings, bills of materials, engineering and manufacturing records and threatening to make this information available to other manufacturers who could then compete unfairly with the plaintiff; the filing and prosecution of two unwarranted suits for damages in the Court of Common Pleas, Ma-honing County, Ohio, one of the suits being filed by Laster and the other filed by Moltchan; (6) the prosecuting of an interference proceeding in the Patent Office knowing that the Laster application and the Moltchan disclaimer affidavit were both false.
The complaint further alleged:
“7. Plaintiff is rapidly approaching serious financial difficulty which can be alleviated and possibly avoided altogether by the outright sale of its trencher development project, and while there is a market for this asset, plaintiff finds it impossible to effect any sale because of the existence of the above mentioned interference proceedings in the Patent Office and of defendants’ widespread claims based thereon. Plaintiff will suffer further very serious losses unless it can dispose of this asset very promptly.”
The prayer of the complaint was for the recovery of treble damages for violation of the anti-trust laws and “[t]hat the defendants be ordered to withdraw and abandon the aforesaid Laster U. S. Patent application referred to above, to terminate the above mentioned interference proceedings, and to retract the above mentioned Moltchan ‘disclaimer’' affidavit.”
The controversy between the parties-related to an invention known as a “Ditcher Attachment for Farm-Type-Tractors.” The plaintiff and the defendant Laster had applications for patent, for the ditcher attachment pending in the Patent Office at the same time. The-Patent Office declared an interference-which had not been heard and determined! at the time the present appeal was submitted to this Court. We are advised! that the Patent Office has since ruled in: favor of the defendant Laster and awarded priority of invention to him. Plaintiff has filed an action in the District-Court to determine the priority of invention pursuant to 35 U.S.C. § 146. This case is pending and has not yet been tried.
In our judgment, the present action was prematurely brought. The Patent Office had exclusive jurisdiction to hear and determine the interference proceeding. Plaintiff had an adequate remedy, which it invoked, under the provisions of 35 U.S.C. § 146 to review the decision of the Patent Office in awarding priority of invention to Laster. In the action under 35 U.S.C. § 146, the Court may determine the questions relating to the applications for patent which plaintiff attempted to litigate in the present action.
Furthermore, if Laster has a valid patent, the anti-trust laws would not be violated by notices sent to plaintiff’s customers informing them of Laster’s patent rights. International Visible Systems Corp. v. Remington-Rand, Inc., 65 F.2d 540, 542 (C.A.6); Cf. Kobe, Inc. v. Dempsey Pump Co., 198 F.2d 416, 425 (C.A.10) and Morny v. Western Union Telegraph Co., 40 F.Supp. 193, 201 (S.D N.Y.).
The District Court lacked jurisdiction of plaintiff’s action for unfair competition because there was no diversity of citizenship. All of the parties were citizens of Ohio.
The judgment of the District Court is affirmed.
Question: What is the second general issue in the case, other than economic activity and regulation - taxes, patents, copyright - patents?
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_authoritydecision
|
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.
BEARDEN v. GEORGIA
No. 81-6633.
Argued January 11, 1983
Decided May 24, 1983
O’Connor, J., delivered the opinion of the Court, in which Brennan, Marshall, Blackmtjn, and Stevens, JJ., joined. White, J., filed an opinion concurring in the judgment, in which Burger, C. J., and Powell and Rehnquist, JJ., joined, post, p. 675.
James H. Lohr, by appointment of the Court, 459 U. S. 819, argued the cause pro hoc vice and filed briefs for petitioner.
George M. Weaver, Assistant Attorney General of Georgia, argued the cause for respondent. With him on the brief were Michael J. Bowers, Attorney General, Robert S. Stubbs II, Executive Assistant Attorney General, and Marion 0. Gordon and John C. Walden, Senior Assistant Attorneys General.
Justice O’Connor
delivered the opinion of the Court.
The question in this case is whether the Fourteenth Amendment prohibits a State from revoking an indigent defendant’s probation for failure to pay a fine and restitution. Its resolution involves a delicate balance between the acceptability, and indeed wisdom, of considering all relevant factors when determining an appropriate sentence for an individual and the impermissibility of imprisoning a defendant solely because of his lack of financial resources. We conclude that the trial court erred in automatically revoking probation because petitioner could not pay his fine, without determining that petitioner had not made sufficient bona fide efforts to pay or that adequate alternative forms of punishment did not exist. We therefore reverse the judgment of the Georgia Court of Appeals upholding the revocation of probation, and remand for a new sentencing determination.
I
In September 1980, petitioner was indicted for the felonies of burglary and theft by receiving stolen property. He pleaded guilty, and was sentenced on October 8, 1980. Pursuant to the Georgia First Offender’s Act, Ga. Code Ann. § 27-2727 et seq. (current version at § 42-8-60 et seq. (Supp. 1982)), the trial court did not enter a judgment of guilt, but deferred further proceedings and sentenced petitioner to three years on probation for the burglary charge and a concurrent one year on probation for the theft charge. As a condition of probation, the trial court ordered petitioner to pay a $500 fine and $250 in restitution. Petitioner was to pay $100 that day, $100 the next day, and the $550 balance within four months.
Petitioner borrowed money from his parents and paid the first $200. About a month later, however, petitioner was laid off from his job. Petitioner, who has only a ninth-grade education and cannot read, tried repeatedly to find other work but was unable to do so. The record indicates that petitioner had no income or assets during this period.
Shortly before the balance of the fine and restitution came due in February 1981, petitioner notified the probation office he was going to be late with his payment because he could not find a job. In May 1981, the State filed a petition in the trial court to revoke petitioner’s probation because he had not paid the balance. After an evidentiary hearing, the trial court revoked probation for failure to pay the balance of the fine and restitution, entered a conviction, and sentenced petitioner to serve the remaining portion of the probationary period in prison. The Georgia Court of Appeals, relying on earlier Georgia Supreme Court cases, rejected petitioner’s claim that imprisoning him for inability to pay the fine violated the Equal Protection Clause of the Fourteenth Amendment. The Georgia Supreme Court denied review. Since other courts have held that revoking the probation of indigents for failure to pay fines does violate the Equal Protection Clause, we granted certiorari to resolve this important issue in the administration of criminal justice. 458 U. S. 1105 (1982).
II
This Court has long been sensitive to the treatment of indigents in our criminal justice system. Over a quarter-century ago, Justice Black declared that “[t]here can be no equal justice where the kind of trial a man gets depends on the amount of money he has.” Griffin v. Illinois, 351 U. S. 12, 19 (1956) (plurality opinion). Griffin’s principle of “equal justice,” which the Court applied there to strike down a state practice of granting appellate review only to persons able to afford a trial transcript, has been applied in numerous other contexts. See, e. g., Douglas v. California, 372 U. S. 353 (1963) (indigent entitled to counsel on first direct appeal); Roberts v. LaVallee, 389 U. S. 40 (1967) (indigent entitled to free transcript of preliminary hearing for use at trial); Mayer v. Chicago, 404 U. S. 189 (1971) (indigent cannot be denied an adequate record to appeal a conviction under a fine-only statute). Most relevant to the issue here is the holding in Williams v. Illinois, 399 U. S. 235 (1970), that a State cannot subject a certain class of convicted defendants to a period of imprisonment beyond the statutory maximum solely because they are too poor to pay the fine. Williams was followed and extended in Tate v. Short, 401 U. S. 395 (1971), which held that a State cannot convert a fine imposed under a fine-only statute into a jail term solely because the defendant is indigent and cannot immediately pay the fine in full. But the Court has also recognized limits on the principle of protecting indigents in the criminal justice system. For example, in Ross v. Moffitt, 417 U. S. 600 (1974), we held that indigents had no constitutional right to appointed counsel for a discretionary appeal. In United States v. MacCollum, 426 U. S. 317 (1976) (plurality opinion), we rejected an equal protection challenge to a federal statute which permits a district court to provide an indigent with a free trial transcript only if the court certifies that the challenge to his conviction is not frivolous and the transcript is necessary to prepare his petition.
Due process and equal protection principles converge in the Court’s analysis in these cases. See Griffin v. Illinois, supra, at 17. Most decisions in this area have rested on an equal protection framework, although Justice Harlan in particular has insisted that a due process approach more accurately captures the competing concerns. See, e. g., Griffin v. Illinois, supra, at 29-39 (Harlan, J., dissenting); Williams v. Illinois, supra, at 259-266 (Harlan, J., concurring). As we recognized in Ross v. Moffitt, supra, at 608-609, we generally analyze the fairness of relations between the criminal defendant and the State under the Due Process Clause, while we approach the question whether the State has invidiously denied one class of defendants a substantial benefit available to another class of defendants under the Equal Protection Clause.
The question presented here is whether a sentencing court can revoke a defendant’s probation for failure to pay the imposed fine and restitution, absent evidence and findings that the defendant was somehow responsible for the failure or that alternative forms of punishment were inadequate. The parties, following the framework of Williams and Tate, have argued the question primarily in terms of equal protection, and debate vigorously whether strict scrutiny or rational basis is the appropriate standard of review. There is no doubt that the State has treated the petitioner differently from a person who did not fail to pay the imposed fine and therefore did not violate probation. To determine whether this differential treatment violates the Equal Protection Clause, one must determine whether, and under what circumstances, a defendant’s indigent status may be considered in the decision whether to revoke probation. This is substantially similar to asking directly the due process question of whether and when it is fundamentally unfair or arbitrary for the State to revoke probation when an indigent is unable to pay the fine. Whether analyzed in terms of equal protection or due process, the issue cannot be resolved by resort to easy slogans or pigeonhole analysis, but rather requires a careful inquiry into such factors as “the nature of the individual interest affected, the extent to which it is affected, the rationality of the connection between legislative means and purpose, [and] the existence of alternative means for effectuating the purpose . . . Williams v. Illinois, supra, at 260 (Harlan, J., concurring).
In analyzing this issue, of course, we do not write on a clean slate, for both Williams and Tate analyzed similar situations. The reach and limits of their holdings are vital to a proper resolution of the issue here. In Williams, a defendant was sentenced to the maximum prison term and fine authorized under the statute. Because of his indigency he could not pay the fine. Pursuant to another statute equating a $5 fine with a day in jail, the defendant was kept in jail for 101 days beyond the maximum prison sentence to “work out” the fine. The Court struck down the practice, holding that “[o]nce the State has defined the outer limits of incarceration necessary to satisfy its penological interests and policies, it may not then subject a certain class of convicted defendants to a period of imprisonment beyond the statutory maximum solely by reason of their indigency.” 399 U. S., at 241-242. In Tate v. Short, 401 U. S. 395 (1971), we faced a similar situation, except that the statutory penalty there permitted only a fine. Quoting from a concurring opinion in Morris v. Schoonfield, 399 U. S. 508, 509 (1970), we reasoned that “ ‘the same constitutional defect condemned in Williams also inheres in jailing an indigent for failing to make immediate payment of any fine, whether or not the fine is accompanied by a jail term and whether or not the jail term of the indigent extends beyond the maximum term that may be imposed on a person willing and able to pay a fine.’” 401 U. S., at 398.
The rule of Williams and Tate, then, is that the State cannot ‘“impos[e] a fine as a sentence and then automatically conver[t] it into a jail term solely because the defendant is indigent and cannot forthwith pay the fine in full.’” Tate, supra, at 398. In other words, if the State determines a fine or restitution to be the appropriate and adequate penalty for the crime, it may not thereafter imprison a person solely because he lacked the resources to pay it. Both Williams and Tate carefully distinguished this substantive limitation on the imprisonment of indigents from the situation where a defendant was at fault in failing to pay the fine. As the Court made clear in Williams, “nothing in our decision today precludes imprisonment for willful refusal to pay a fine or court costs.” 399 U. S., at 242, n. 19. Likewise in Tate, the Court “emphasize[d] that our holding today does not suggest any constitutional infirmity in imprisonment of a defendant with the means to pay a fine who refuses or neglects to do so.” 401 U. S., at 400.
This distinction, based on the reasons for nonpayment, is of critical importance here. If the probationer has willfully refused to pay the fine or restitution when he has the means to pay, the State is perfectly justified in using imprisonment as a sanction to enforce collection. See ALI, Model Penal Code §302.2(1) (Prop. Off. Draft 1962). Similarly, a probationer’s failure to make sufficient bona fide efforts to seek employment or borrow money in order to pay the fine or restitution may reflect an insufficient concern for paying the debt he owes to society for his crime. In such a situation, the State is likewise justified in revoking probation and using imprisonment as an appropriate penalty for the offense. But if the probationer has made all reasonable efforts to pay the fine or restitution, and yet cannot do so through no fault of his own, it is fundamentally unfair to revoke probation automatically without considering whether adequate alternative methods of punishing the defendant are available. This lack of fault provides a “substantial reaso[n] which justified] or mitigate[s] the violation and make[s] revocation inappropriate.” Gagnon v. Scarpelli, 411 U. S. 778, 790 (1973). Cf. Zablocki v. Redhail, 434 U. S. 374, 400 (1978) (Powell, J., concurring) (distinguishing, under both due process and equal protection analyses, persons who shirk their moral and legal obligation to pay child support from those wholly unable to pay).
The State, of course, has a fundamental interest in appropriately punishing persons — rich and poor — who violate its criminal laws. A defendant’s poverty in no way immunizes him from punishment. Thus, when determining initially whether the State’s penological interests require imposition of a term of imprisonment, the sentencing court can consider the entire background of the defendant, including his employment history and financial resources. See Williams v. New York, 337 U. S. 241, 250, and n. 15 (1949). As we said in Williams v. Illinois, “[a]fter having taken into consideration the wide range of factors underlying the exercise of his sentencing function, nothing we now hold precludes a judge from imposing on an indigent, as on any defendant, the maximum penalty prescribed by law.” 399 U. S., at 243.
The decision to place the defendant on probation, however, reflects a determination by the sentencing court that the State’s penological interests do not require imprisonment. See Williams v. Illinois, supra, at 264 (Harlan, J., concurring); Wood v. Georgia, 450 U. S. 261, 286-287 (1981) (White, J., dissenting). A probationer’s failure to make reasonable efforts to repay his debt to society may indicate that this original determination needs reevaluation, and imprisonment may now be required to satisfy the State’s interests. But a probationer who has made sufficient bona fide efforts to pay his fine and restitution, and who has complied with the other conditions of probation, has demonstrated a willingness to pay his debt to society and an ability to conform his conduct to social norms. The State nevertheless asserts three reasons why imprisonment is required to further its penal goals.
First, the State argues that revoking probation furthers its interest in ensuring that restitution be paid to the victims of crime. A rule that imprisonment may befall the probationer who fails to make sufficient bona fide efforts to pay restitution may indeed spur probationers to try hard to pay, thereby increasing the number of probationers who make restitution. Such a goal is fully served, however, by revoking probation only for persons who have not made sufficient bona fide efforts to pay. Revoking the probation of someone who through no fault of his own is unable to make restitution will not make restitution suddenly forthcoming. Indeed, such a policy may have the perverse effect of inducing the probationer to use illegal means to acquire funds to pay in order to avoid revocation.
Second, the State asserts that its interest in rehabilitating the probationer and protecting society requires it to remove him from the temptation of committing other crimes. This is no more than a naked assertion that a probationer’s poverty by itself indicates he may commit crimes in the future and thus that society needs for him to be incapacitated. We have already indicated that a sentencing court can consider a defendant’s employment history and financial resources in setting an initial punishment. Such considerations are a necessary part of evaluating the entire background of the defendant in order to tailor an appropriate sentence for the defendant and crime. But it must be remembered that the State is seeking here to use as the sole justification for imprisonment the poverty of a probationer who, by assumption, has demonstrated sufficient bona fide efforts to find a job and pay the fine and whom the State initially thought it unnecessary to imprison. Given the significant interest of the individual in remaining on probation, see Gagnon v. Scarpelli, supra; Morrissey v. Brewer, 408 U. S. 471 (1972), the State cannot justify incarcerating a probationer who has demonstrated sufficient bona fide efforts to repay his debt to society, solely by lumping him together with other poor persons and thereby classifying him as dangerous. This would be little more than punishing a person for his poverty.
Third, and most plausibly, the State argues that its interests in punishing the lawbreaker and deterring others from criminal behavior require it to revoke probation for failure to pay a fine or restitution. The State clearly has an interest in punishment and deterrence, but this interest can often be served fully by alternative means. As we said in Williams, 399 U. S., at 244, and reiterated in Tate, 401 U. S., at 399, “[t]he State is not powerless to enforce judgments against those financially unable to pay a fine.” For example, the sentencing court could extend the time for making payments, or reduce the fine, or direct that the probationer perform some form of labor or public service in lieu of the fine. Justice Harlan appropriately observed in his concurring opinion in Williams that “the deterrent effect of a fine is apt to derive more from its pinch on the purse than the time of payment.” 399 U. S., at 265. Indeed, given the general flexibility of tailoring fines to the resources of a defendant, or even permitting the defendant to do specified work to satisfy the fine, see Williams, supra, at 244, n. 21, a sentencing court can often establish a reduced fine or alternative public service in lieu of a fine that adequately serves the State’s goals of punishment and deterrence, given the defendant’s diminished financial resources. Only if the sentencing court determines that alternatives to imprisonment are not adequate in a particular situation to meet the State’s interest in punishment and deterrence may the State imprison a probationer who has made sufficient bona fide efforts to pay.
We hold, therefore, that in revocation proceedings for failure to pay a fine or restitution, a sentencing court must inquire into the reasons for the failure to pay. If the probationer willfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources to pay, the court may revoke probation and sentence the defendant to imprisonment within the authorized range of its sentencing authority. If the probationer could not pay despite sufficient bona fide efforts to acquire the resources to do so, the court must consider alternative measures of punishment other than imprisonment. Only if alternative measures are not adequate to meet the State’s interests in punishment and deterrence may the court imprison a probationer who has made sufficient bona fide efforts to pay. To do otherwise would deprive the probationer of his conditional freedom simply because, through no fault of his own, he cannot pay the fine. Such a deprivation would be contrary to the fundamental fairness required by the Fourteenth Amendment.
HH f — I H-H
We return to the facts of this case. At the probation revocation hearing, the petitioner and his wife testified about their lack of income and assets and of his repeated efforts to obtain work. While the sentencing court commented on the availability of odd jobs such as lawnmowing, it made no finding that the petitioner had not made sufficient bona fide efforts to find work, and the record as it presently stands would not justify such a finding. This lack of findings is understandable, of course, for under the rulings of the Georgia Supreme Court such an inquiry would have been irrelevant to the constitutionality of revoking probation. The State argues that the sentencing court determined that the petitioner was no longer a good probation risk. In the absence of a determination that the petitioner did not make sufficient bona fide efforts to pay or to obtain employment in order to pay, we cannot read the opinion of the sentencing court as reflecting such a finding. Instead, the court curtly rejected counsel’s suggestion that the time for making the payments be extended, saying that “the fallacy in that argument” is that the petitioner has long known he had to pay the $550 and yet did not comply with the court’s prior order to pay. App. 45. The sentencing judge declared that “I don’t know any way to enforce the prior orders of the Court but one way,” which was to sentence him to imprisonment. Ibid.
The focus of the court’s concern, then, was that the petitioner had disobeyed a prior court order to pay the fine, and for that reason must be imprisoned. But this is no more than imprisoning a person solely because he lacks funds to pay the fine, a practice we condemned in Williams and Tate. By sentencing petitioner to imprisonment simply because he could not pay the fine, without considering the reasons for the inability to pay or the propriety of reducing the fine or extending the time for payments or making alternative orders, the court automatically turned a fine into a prison sentence.
We do not suggest by our analysis of the present record that the State may not place the petitioner in prison. If, upon remand, the Georgia courts determine that petitioner did not make sufficient bona fide efforts to pay his fine, or determine that alternative punishment is not adequate to meet the State’s interests in punishment and deterrence, imprisonment would be a permissible sentence. Unless such determinations are made, however, fundamental fairness requires that the petitioner remain on probation.
>
The judgment is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
The trial court ordered a payment of $200 restitution for the theft by receiving charge; and ordered payment of $50 in restitution and $500 fine for the burglary charge.
The other conditions of probation prohibited petitioner from leaving the jurisdiction of the court without permission, from drinking alcoholic beverages, using or possessing narcotics, or visiting places where alcoholic beverages or narcotics are sold, from keeping company with persons of bad reputation, and from violating any penal law; and required him to avoid places of disreputable character, to work faithfully at suitable employment insofar as possible, and to report to the probation officer as directed and to permit the probation officer to visit him.
The State’s petition alleged two grounds for revoking probation: petitioner’s failure to pay the fine and restitution, and an alleged burglary he committed on May 10,1981. The State abandoned the latter ground at the hearing to revoke probation, and counsel has informed us that petitioner was later acquitted of the charge. Brief for Petitioner 4, n. 1.
The trial court also found that petitioner violated the conditions of probation by failing to report to his probation officer as directed. Since the trial court was unauthorized under state law to revoke probation on a ground not stated in the petition, Radcliff v. State, 134 Ga. App. 244, 214 S. E. 2d 179 (1975), the Court of Appeals upheld the revocation solely on the basis of petitioner’s failure to pay the fine and restitution.
The trial court first sentenced petitioner to five years in prison, with a concurrent 3-year sentence for the theft conviction. Since the record of the initial sentencing hearing failed to reveal that petitioner had been warned that a violation of probation could result in a longer prison term than the original probationary period, as required by Stephens v. State, 245 Ga. 835, 268 S. E. 2d 330 (1980), the court reduced the prison term to the remainder of the probationary period.
Hunter v. Dean, 240 Ga. 214, 239 S. E. 2d 791 (1977), cert. dism’d, 439 U. S. 281 (1978); Calhoun v. Couch, 232 Ga. 467, 207 S. E. 2d 455 (1974).
See, e. g., Frazier v. Jordan, 457 F. 2d 726 (CA5 1972); In re Antazo, 3 Cal. 3d 100, 473 P. 2d 999 (1970); State v. Tackett, 52 Haw. 601, 483 P. 2d 191 (1971); State v. De Bonis, 58 N. J. 182, 276 A. 2d 137 (1971); State ex rel. Pedersen v. Blessinger, 56 Wis. 2d 286, 201 N. W. 2d 778 (1972).
We have, previously applied considerations of procedural and substantive fairness to probation and parole revocation proceedings. In Morrissey v. Brewer, 408 U. S. 471 (1972), where we established certain procedural requirements for parole revocation hearings, we recognized that society has an “interest in treating the parolee with basic fairness.” Id., at 484. We addressed the issue of fundamental fairness more directly in Gagnon v. Scarpelli, 411 U. S. 778 (1973), where we held that in certain cases “fundamental fairness — the touchstone of due process — will require that the State provide at its expense counsel for indigent probationers or parolees.” Id., at 790. Fundamental fairness, we determined, presumptively requires counsel when the probationer claims that “there are substantial reasons which justified or mitigated the violation and make revocation inappropriate.” Ibid. In Douglas v. Buder, 412 U. S. 430 (1973), we found a substantive violation of due process when a state court had revoked probation with no evidence that the probationer had violated probation. Today we address whether a court can revoke probation for failure to pay a fine and restitution when there is no evidence that the petitioner was at fault in his failure to pay or that alternative means of punishment were inadequate.
A due process approach has the advantage in this context of directly confronting the intertwined question of the role that a defendant’s financial background can play in determining an appropriate sentence. When the court is initially considering what sentence to impose, a defendant’s level of financial resources is a point on a spectrum rather than a classification. Since indigency in this context is a relative term rather than a classification, fitting “the problem of this ease into an equal protection framework is a task too Procrustean to be rationally accomplished,” North Carolina v. Pearce, 395 U. S. 711, 723 (1969). The more appropriate question is whether consideration of a defendant’s financial background in setting or resetting a sentence is so arbitrary or unfair as to be a denial of due process.
We do not suggest that, in other contexts, the probationer’s lack of fault in violating a term of probation would necessarily prevent a court from revoking probation. For instance, it may indeed be reckless for a court to permit a person convicted of driving while intoxicated to remain on probation once it becomes evident that efforts at controlling his chronic drunken driving have failed. Cf. Powell v. Texas, 392 U. S. 514 (1968); Robinson v. California, 370 U. S. 660 (1962). Ultimately, it must be remembered that the sentence was not imposed for a circumstance beyond the probationer’s control “but because he had committed a crime.” Williams, 399 U. S., at 242. In contrast to a condition like chronic drunken driving, however, the condition at issue here — indigency—is itself no threat to the safety or welfare of society.
Numerous decisions by state and federal courts have recognized that basic fairness forbids the revocation of probation when the probationer is without fault in his failure to pay the fine. For example, in United States v. Boswell, 605 F. 2d 171 (CA5 1979), the court distinguished between revoking probation where the defendant did not have the resources to pay restitution and had no way to acquire them — a revocation the court found improper — from revoking probation where the defendant had the resources to pay or had negligently or deliberately allowed them to be dissipated in a manner that resulted in his inability to pay — an entirely legitimate action by the trial court. Accord, United States v. Wilson, 469 F. 2d 368 (CA2 1972); United States v. Taylor, 321 F. 2d 339 (CA4 1963); In re Antazo, 3 Cal. 3d, at 115-117, 473 P. 2d, at 1007-1009; State v. Huggett, 55 Haw. 632, 525 P. 2d 1119 (1974); Huggett v. State, 83 Wis. 2d 790, 800-802, 266 N. W. 2d 403, 408 (1978). Commentators have similarly distinguished between the permissibility of revoking probation for contumacious failure to pay a fine, and the impermissibility of revoking probation when the probationer made good-faith efforts to pay. See, e. g., ABA Standards for Criminal Justice 18-7.4 and Commentary (2d ed. 1980) (“incarceration should be employed only after the court has examined the reasons for nonpayment”); ALI, Model Penal Code § 302.2 (Prop. Off. Draft 1962) (distinguishing “contumacious” failure to pay fine from “good faith effort” to obtain funds); National Advisory Commission on Criminal Justice Standards and Goals, Corrections § 5.5 (1973); National Conference of Commissioners on Uniform State Laws, Model Sentencing and Corrections Act §§ 3-403, 3-404 (1978). See also Me. Rev. Stat. Ann., Tit. 17-A, § 1304 (Supp. 1982); Ill. Rev. Stat., ch. 38, ¶ 1005-6-4(d) (1981).
The State emphasizes several empirical studies suggesting a correlation between poverty and crime. E. g., Green, Race, Social Status, and Criminal Arrest, 35 Am. Sociological Rev. 476 (1970); M. Wolfgang, R. Figlio, & T. Sellin, Delinquency in a Birth Cohort (1972).
As our holding makes clear, we agree with Justice White that poverty does not insulate a criminal defendant from punishment or necessarily prevent revocation of his probation for inability to pay a fine. We reject as impractical, however, the approach suggested by Justice White. He would require a “good-faith effort” by the sentencing court to impose a term of imprisonment that is “roughly equivalent” to the fine and restitution that the defendant failed to pay. Post, at 675. Even putting to one side'the question of judicial “good faith,” we perceive no meaningful standard by which a sentencing or reviewing court could assess whether a given prison sentence has an equivalent sting to the original fine. Under our holding the sentencing court must focus on criteria typically considered daily by sentencing courts throughout the land in probation revocation hearings: whether the defendant has demonstrated sufficient efforts to comply with the terms of probation and whether nonimprisonment alternatives are adequate to satisfy the State’s interests in punishment and deterrence. Nor is our requirement that the sentencing court consider alternative forms of punishment a “novel” requirement. In both Williams and Tate, the Court emphasized the availability of alternative forms of punishment in holding that indigents could not be subjected automatically to imprisonment.
See cases cited in n. 5, supra.
Question: What is the basis of the Supreme Court's decision?
A. judicial review (national level)
B. judicial review (state level)
C. Supreme Court supervision of lower federal or state courts or original jurisdiction
D. statutory construction
E. interpretation of administrative regulation or rule, or executive order
F. diversity jurisdiction
G. federal common law
Answer:
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songer_respond1_3_2
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E
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
RYAN CAR CO. v. COMMISSIONER OF INTERNAL REVENUE.
No. 4309.
Circuit Court of Appeals, Seventh Circuit.
Oct. 24, 1930.
James F. Spoerri, Sanders, Childs, Bobb & Wescott and Clarence N. Goodwin, all of Chicago, Ill. (Louis A. Gravelle, of Washington, D. C., of counsel), for petitioner.
John G. Remey, of Washington, D. C., G. A. Youngquist, Asst. Atty. Gen., and J. Louis Monarch and Morton Poe Fisher, Sp. Assts. to Atty. Gen. (C. M. Charest, Gen. Counsel, Bureau of Internal Revenue, and W. E. Davis, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C., of counsel), for respondent.
ALSCHULER, SPARKS, and PAGE, Circuit Judges. ’
PAGE, Circuit Judge.
Petitioner asked the Commissioner to assess its 1930 income tax under sections 327 and 328 of the 1918 Revenue Act (40 Stat. 1057). On his refusal so to do, it appealed to the Board of Tax Appeals. Limiting its inquiry to that single question, the Board heard evidence and sustained the action of the Commissioner.
Relying upon Blair v. Oesterlein Co., 275 U. S. 220, 48 S. Ct. 87, 72 L. Ed. 249, and Williamsport Co. v. U. S., 277 U. S. 551, 556, 48 S. Ct. 587, 588, 72 L. Ed. 985, the parties agree that the Board of Tax Appeals had jurisdiction to review the action of the Commissioner in his refusal to make the special assessment, hut the Commissioner is here denying jurisdiction in this court.
In the Williamsport Case, the Supreme Court, referring to the Oesterlein Case, said: “We there held that the exercise of the judgment or discretion of the Commissioner to allow or deny the special assessment provided for in sections 327 and 328 was subject to review by the Board of Tax Appeals.”
If that language means that the Board had jurisdiction to review the Commissioner’s discretion to proceed or not to proceed under sections 327 and 328, and not that the Board had the discretion to review the assessment after it was made’ under those sections, we are not able to reconcile that holding with our understanding of the Oesterlein Case. But the Supreme Court has said that it did so hold, and the parties here agree that the Board had jurisdiction in this matter. Therefore we proceed on that theory.
The Commissioner denies the jurisdiction of this court largely on the authority of the Williamsport Case, whereof he says: “The question of special assessment is characterized as a ‘power discretionary in character’ which could only he performed ‘by an official or body having wide knowledge and experience with the class of problems concerned’; and one in which the ‘conclusions reached would rest largely upon considerations not entirely susceptible of proof or disproof.’ The court concluded, therefore, that the problem had been confided by Congress to the Commissioner, and ‘could not, under the Revenue Act of 1918, be challenged in the courts —at least in the absence of fraud or other irregularities.’ ”
The question there under consideration was whether the Court of Claims had jurisdiction of an action to recover taxes alleged to have been illegally collected under the 1918 act because the Commissioner had denied petitioner the right to have the lax specially assessed under sections 327 and 328. That action was brought in the Court of Claims fourteen months before the passage of the Revenue Act of February 26, 1926, which was the first act giving Circuit Courts of Appeals jurisdiction to review decisions of the Board. Section 1226, 26 USCA, being section 1003 of the Act of 1926 (44 Stat. 110), reads:
“(a) The Circuit Courts of Appeals and the Court of Appeals of the District of Columbia shall have exclusive jurisdiction to review the decisions of the board (except as provided in section 346 of Title 28); and the judgment of any such court shall he final, except that it shall be subject to review by the Supreme Court of the United States upon certiorari, in the manner provided in section 347 of Title 28.
“(b) Upon such review, such courts shall have power to affirm or, if the decision of the board is not in accordance with law, to modify or reverse the decision of the board, with or without remanding the case for a rehearing, as justice may require.”-
That section was in no way considered in either of the eases above cited. Nearly two years after the passage of the act of 1924, creating the Board of Tax Appeals, the Congress made the above provision, by which the Circuit Courts of Appeals, with a single exception not here material, was vested with “exclusive jurisdiction to review the decisions of the Board.” Broader language could not have been used to vest in the Courts of Appeals jurisdiction to review decisions of the Board. The first part of section 1226(b) is: “Upon such review, such courts shall have power to affirm.” Here again broad language is used. Then follows the provision authorizing the courts, if the decision being reviewed “is not in accordance with law,” to do “as justice may require.” The right, if the ease is not to be affirmed, to take any action that “justice may require,” is in no way limited, except that the court must first find that the decision of the Board is not in accordance with law. There is not in this language anything to except from review in this court anything reviewable by the Board. We are of opinion that Courts of Appeals have jurisdiction to review any decision, of the Board of Tax Appeals.
Petitioner relies upon two conditions in its business as establishing its right to have an assessment under sections 327 and 328. The first proposition is that, in computing invested capital, respondent excluded $1,500,000 of petitioner’s capital stock, which had been issued for good -will. Petitioner was in the ear-repairing business, and the years in question here followed immediately after the return of the railroads by the government to their owners, when, because of the fact that repairs had not been kept up by the government, it was necessary to make such large repairs that all ear-repairing concerns were doing business. Petitioner did business largely with the New York Central and the Pennsylvania Railroads. It appears that it got its business from those railroads because of the relation of three of its principal stockholders with officers of the railroads in question, and it was admitted, and it is also apparent from the record, that the influence, which the stockholders had with the officers of those railroads, probably could not be sold or passed on to any one else. There seems to have been, in addition to this fact, an absence of all evidence to establish a good will of any value, or at least of any considerable value.
The other element relied upon by petitioner is that the three stockholders in question rendered large service to the company for which they did not receive any salary. That service was what is commonly called a “pull” that those stockholders had with the railroad companies. It is urged that that “pull” took the place of the services of agents of other 'repair concerns, for which services those concerns had to expend large sums of money, and therefore there should have been taken into consideration what would have been fair compensation or salaries for the three stockholders in question.
We are of opinion that the Commissioner, and also the Board of Tax Appeals, had a broad discretion in determining the question as to whether there should or should not have been a special assessment under the sections in question, and that there is nothing in the record to indicate that the Commissioner and the Board did not exercise a fair and reasonable discretion in their determination not to allow the special assessment.
The decision of the Board of Tax Appeals is affirmed.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant?
A. cabinet level department
B. courts or legislative
C. agency whose first word is "federal"
D. other agency, beginning with "A" thru "E"
E. other agency, beginning with "F" thru "N"
F. other agency, beginning with "O" thru "R"
G. other agency, beginning with "S" thru "Z"
H. Distric of Columbia
I. other, not listed, not able to classify
Answer:
|
songer_r_natpr
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, Appellant, v. BUFFALO COAL MINING COMPANY, Inc., et al., Appellees. BUFFALO COAL MINING COMPANY, Inc., et al., Cross-Appellants, v. UNITED STATES of America, Cross-Appellee.
No. 19206.
United States Court of Appeals Ninth Circuit.
Feb. 19, 1965.
Rehearing Denied May 7, 1965.
See 345 F.2d 517.
John W. Douglas, Asst. Atty. Gen., Alan S. Rosenthal, Max Wild, Attys., Dept, of Justice, Washington, D. C., Warren C. Colver, U. S. Atty., Anchorage, Alaska, for appellant and cross-appellee.
Richard O. Gantz, Anchorage, Alaska, for appellees and cross-appellants.
Before CHAMBERS, MERRILL and KOELSCH, Circuit Judges.
KOELSCH, Circuit Judge.
These appeals concern the liability of Buffalo Coal Mining Company, and two of its shareholders, on a promissory note executed by Buffalo to Reconstruction Finance Corporation, an agency of the United States.
During World War II the United States Army seized Buffalo’s coal mine near Palmer, Alaska and commenced making substantial physical changes in the property for the purpose of increasing production. Before the project was finished, the war ended and the army returned the property to Buffalo, but in an inoperable condition. Buffalo lacked money to complete the work and was unable to borrow it. All activity ceased and the mine became flooded.
Some years later Buell A. Nesbett, together with several other individuals, became interested in the mine. Upon investigating, they concluded that, with production of not less than 400 tons of coal per day, the mine could be profitably operated; that the cost of completing the Army’s unfinished work and rendering the mine capable of such production would be about $400,000, and that a loan in that amount could be secured from RFC. They acquired control of Buffalo and made Nesbett president. After considerable negotiating he succeeded in securing RFC’s commitment to loan Buffalo $425,775. To evidence the loan and secure payment, Buffalo executed its note in that amount and a chattel mortgage to RFC. As further security Nesbett and W. T. Malcolm, another of Buffalo’s shareholders, each “unconditionally” guaranteed payment of the note. The guarantees were in writing and limited the amount of Nesbett’s liability to $30,-000 and that of Malcolm to $20,000.
Buffalo immediately began construction, paying expenses with moneys advanced by RFC from time to time against the loan. When the work was well under way and a large portion of the loan was spent, Buffalo encountered an unexpected ground condition that necessitated a major revision of its plans, and indicated a considerably greater outlay of money than Buffalo had expected or anticipated. Buffalo then applied to RFC for an additional loan of $208,329.-33. The application contained a detailed progress report, together with an itemized statement of expenditures to date; it described the difficulties recently encountered and the nature of the required changes in plan, and it set out Buffalo’s estimate that the remainder of the present loan, plus the additional $208,329.33, would cover the cost of making the mine operable. RFC rejected the application. Moreover, RFC refused to disburse all remaining portions of the loan except for $60,000 to keep the mine “unwatered.” Afterward, Buffalo failed to meet several installment payments on the note. RFC declared a default and, invoking the acceleration clause in the note, declared the full amount of the loan immediately due. Payment was refused. The United States then commenced this suit in the district court to recover judgment against Buffalo and foreclose the mortgage. It also sought judgment against Nesbett and Malcolm in the amount of their respective guarantees. Buffalo filed a counterclaim for breach of contract based upon RFC s refusal to perform its loan agreement. The district court had jurisdiction of the controversy under 28 U.S.C. § 1345.
Following a trial, the district judge, sitting without a jury, decided that the United States was entitled to recover on its claim against Buffalo, but not on its claims against Nesbett and Malcolm. It further decided that Buffalo’s counterclaim should be dismissed. Both Buffalo and the United States have appealed from the ensuing judgment.
We conclude that the judgment was right, with respect to Buffalo and the latter’s counterclaim, but wrong to the extent that it awarded the United States nothing on its claim against Nesbett and Malcolm, and that the United States is entitled to recover the full amount of its claims against the latter two defendants.
It is clear from this record that Buffalo and RFC (as well as Nesbett and Malcolm) understood that RFC would not pay the entire amount of the loan to Buffalo in a lump sum, but rather agreed that RFC would make partial disbursements from time to time until the entire amount was paid. And the district court found, on substantial evidence, that major revisions in the original plans, entailing considerably greater costs than had been originally estimated, were necessitated ; that the project could not be carried out within the limits of the present loan and that more money would be required if the mine was to be made operative.
We agree with the district court that these facts fully justified RFC’s action. It is familiar contract law that prospective inability of one party’s performance will excuse a condition precedent of the other’s performance, unless the disability is removed before the other relies thereon. This rule is well stated in RESTATEMENT, CONTRACTS § 306 (1932):
“Where failure of a party to a contract to perform a condition or a promise is induced by a manifestation to him by the other party that he cannot or will not substantially perform his own promise or that he doubts whether though able he will do so, the duty of such other party becomes independent of performance of the condition or promise. He has power to nullify his manifestation of unwillingness or inability by retracting it, so long as the former party, in reliance thereon, has not changed his position.”
We reject Buffalo’s contention that RFC’s decision was arbitrary. Before making the loan RFC had insisted that Buffalo attempt to secure the money from some bank or other source. Buffalo made diligent efforts to do so but was uniformly turned down because the risk was too great. Moreover, the loan was not haphazardly made; naturally enough it was based upon Buffalo’s representation of what would be required and the cost of the work, and the amount of the loan was directly geared to Buffalo’s considered cost estimates. Thus when RFC was suddenly confronted with Buffalo’s application for an additional loan and learned that Buffalo had miscalculated; that its plans required major revision, and that a considerable additional sum of money beyond the amount previously committed would be required to finance the changes, we think RFC acted prudently in refusing to become more deeply involved in the venture and that its action was fully in accord with Federal policy, which the district court observed in its findings that “requires the protection of the security of Federal investments to the extent that the government need not, as expressed by the witness Plein, send good money after bad.”
Nesbett and Malcolm argue that their liability was conditioned on RFC’s full performance of its loan agreement. Their written guarantees contain no such express condition, but simply provide that: “[T]he undersigned hereby unconditionally guarantees to Reconstruction Finance Corporation * * * the due and punctual payment when due, whether by acceleration or otherwise * * * of the principal and interest on * * * the note of the debtor * * ”
But it is clear that Nesbett and Malcolm knew that the total amount of the loan was needed to put the mine into production and that they expected that this in turn would provide Buffalo with the means to repay RFC. As the district court found “[A] 11 parties realized that the project would be a total loss- unless the mine was placed on a production basis and it was understood that the guarantors would be liable only if the venture failed after the full amount of the loan had been disbursed.”
When, however, it became apparent that Buffalo could not put the mine into production within the limits of the amount RFC had agreed to loan, the principle of prospective inability, applicable to excuse RFC from performing its promise to Buffalo to disburse the entire loan also applied to this condition precedent to the guarantors’ liability on their guarantees. The reason is plain: In the light of the circumstances, it would have gained Buffalo nothing to have received the remainder of the loan proceeds. Even if those moneys were disbursed and spent, the mine could not have been made productive; Buffalo would have defaulted on its note and the guarantors would be called upon to pay. The law does not require a useless act, particularly where, as here, it would only enhance the actor’s loss. 6
The judgment is modified in accordance with the conclusions stated in this opinion and, as modified, is affirmed.
. The guarantees were unconditional and constituted guarantees of payment rather than collection. 24 Am.Jur. Guaranty, § 17. Accordingly, the guarantees could be enforced separately from Buffalo’s primary obligation and bence it was not necessary for RFC to first proceed against Buffalo and the security before seeking recovery for Nesbett and Malcolm. Ludington Lumber Co. v. Metropolitan National Bank, 55 F.2d 169, 84 A.L.R. 287 (6th Cir. 1932); Joe Heaston Tractor & Implement Co. v. Securities Acceptance Corporation, 243 F.2d 196 (10th Cir. 1957). See Terry v. Tubman, 92 U.S. 156, 160, 23 L.Ed. 537 (1875).
. The following was one of the court’s findings:
“The disclosures of fact in the application for the additional loan constituted sufficient evidence of ‘adverse change’ to justify the Agency Manager of RFC to refuse to advance further funds on the loan by reason of the inability of Buffalo to reach the projected production total of 400 tons per day and by reason of the fact that Buffalo would not have been able to pay back the original loan according to the terms of said note unless additional funds were made available to it by RFC.”
. The guarantees are properly construed to be bilateral in nature with a condition precedent of full disbursement of the loan, rather than unilateral and hence dependent upon RFC’s full disbursement of the loan. As shareholders in Buffalo, Nesbett and Malcolm were personally interested in the success of the business. It would seem reasonable to conclude that they wanted RFC’s present assurance that it would disburse the full amount Buffalo needed and that RFC likewise intended to secure immediate protection and, since Buffalo’s note, which they were guaranteeing, indicated that the proceeds of the loan would be disbursed in partial payments rather than a lump sum, it is unlikely that RFC and the guarantors did not intend to be under obligations to one another until after the full amount was disbursed. “In case of doubt,” says the Restatement of Contracts, § 31, “it is presumed that an offer invites the formation of a bilateral contract by and acceptance amounting in effect to a promise by the offeree to perform what the of-feree requests, rather than the formation of one or more unilateral contracts by actual performance on the part of the offense.” See also Hammond v. C. I. T., 203 F.2d 705 (2d Cir. 1953) ; Friedman v. Decatur, 77 U.S.App.D.C. 326,135 F.2d 812 (1943); Davis v. Jacoby, 34 P.2d 1026 (Cal.1934).
. The district court excused RFO from full performance of its agreement with Buffalo on the basis of an “adverse change” clause in the written loan authorization which RFC issued in connection with the loan. This clause stated in substance that RFC could discontinue making disbursements whenever it appeared there was an “adverse change” in Buffalo’s financial prospects. Although the court found Buffalo was not “a party” to this instrument, it concluded Buffalo was bound because of its knowledge of the contents. However, the court held that the authorization was not binding on the guarantors because they were not “parties” to it.
That parties may by private agreement excuse performance due one to the other may be freely conceded. The mere fact that they have done so, however, does not preclude a like result from arising by operation of law. Thus where, as here, the adverse change became tantamount to prospective inability, Buffalo was excused from full performance by operation of law.
. Had the guarantees been of the entire amount of the loan, we entertain no doubt that the guarantors would have objected, and properly so, to any further advances when it became apparent Buffalo could not repay them.
Question: What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
sc_respondent
|
155
|
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.
FEDERAL BUREAU OF INVESTIGATION et al. v. ABRAMSON
No. 80-1735.
Argued January 11, 1982
Decided May 24, 1982
White, J., delivered the opinion of the Court, in which Burger, C. J., and Powell, Rehnquist, and Stevens, JJ., joined. Blackmun, J., filed a dissenting opinion, in which Brennan, J., joined, post, p. 632. O’Connor, J., filed a dissenting opinion, in which Marshall, J., joined, post, p. 633.
Deputy Solicitor General Getter argued the cause for petitioners. With him on the briefs were Solicitor General Lee, Acting Assistant Attorney General Schiffer, Elinor Hadley Stillman, Leonard Schaitman, and Howard S. Scher.
Sharon T. Nelson argued the cause and filed a brief for respondent.
Briefs of amici curiae urging affirmance were filed by Cornish F. Hitchcock, Alan B. Morrison, David C. Vladeck, and Katherine A. Meyer for Freedom of Information Clearinghouse; and by Bruce W. Sanford, Richard M. Schmidt, Jr., Erwin G. Krasnow, Arthur B. Sackler, and J. Laurent Scharff for the Society of Professional Journalists, Sigma Delta Chi, et al.
Justice White
delivered the opinion of the Court.
The Freedom of Information Act (FOIA), 5 U. S. C. § 552 (1976 ed. and Supp. IV), does not require the disclosure of “investigatory records compiled for law enforcement purposes” when the release of such records would interfere with effective law enforcement, impede the administration of justice, constitute an unwarranted invasion of privacy, or produce certain other specified consequences. § 552(b)(7). The sole question presented in this case is whether information contained in records compiled for law enforcement purposes loses that exempt status when it is incorporated into records compiled for purposes other than law enforcement.
I
Respondent Howard Abramson is a professional journalist interested in the extent to which the White House may have used the Federal Bureau of Investigation (FBI) and its files to obtain derogatory information about political opponents. On June 23, 1976, Abramson filed a request pursuant to FOIA for specific documents relating to the transmittal from the FBI to the White House in 1969 of information concerning particular individuals who had criticized the administration. The Bureau denied the request on grounds that the information was exempt from disclosure pursuant to § 552(b) (6) (Exemption 6) and § 552(b)(7)(C) (Exemption 7(C)), both of which protect against unwarranted invasions of personal privacy. Abramson, believing his first request was flawed by its specificity, filed a much broader request, which was denied for failure to “reasonably describe the records sought” as required by § 552(a)(3).
In December 1977, after unsuccessfully appealing both denials within the agency, Abramson filed suit in the United States District Court for the District of Columbia to enjoin the FBI from withholding the requested records. While the suit was pending, the FBI provided Abramson with 84 pages of documents, some intact and some with deletions. The District Court rejected the Bureau’s assertions that all deleted material was exempt. Abramson v. U. S. Dept. of Justice, Civ. Action No. 77-2206 (Jan. 3, 1979). In response, the FBI submitted an affidavit to the District Court explaining the justification for each deletion. In light of the released material and the Bureau’s affidavit, Abramson modified his request, seeking only the material withheld from a single document consisting of a one-page memorandum from J. Edgar Hoover to John D. Ehrlichman, together with approximately 63 pages of “name check” summaries and attached documents. The “name check” summaries contained information, culled from existing FBI files, on 11 public figures.
The District Court found that the FBI had failed to show that the information was compiled for law enforcement rather than political purposes, but went on to rule that Exemption 7(C) was validly invoked by the Government because disclosure of the withheld materials would constitute an unwarranted invasion of personal privacy. The District Court thus granted the Government’s motion for summary judgment with respect to material withheld pursuant to Exemption 7(C). Abramson v. FBI, Civ. Action No. 77-2206 (Nov. 30, 1979).
The Court of Appeals reversed, holding that with the exception of those documents attached to the summaries that may have been duplicates of original FBI files, the Government had failed to sustain its burden of demonstrating that the documents were compiled for law enforcement purposes, and that Exemption 7(C) was therefore unavailable even though disclosure would constitute an unwarranted invasion of personal privacy. 212 U. S. App. D. C. 58, 658 F. 2d 806 (1980). To reach this conclusion, the Court of Appeals rejected the Government’s claim that Exemption 7(C) was applicable because the “name check” summaries contained information taken from documents in FBI files that had been created for law enforcement purposes. Thus, with the exception noted, the Government’s invocation of Exemption 7(C) was rejected. Because this interpretation of the Exemption has important ramifications for law enforcement agencies, for persons about whom information has been compiled, and for the general public, we granted certiorari. 452 U. S. 937 (1981). We now reverse.
r*H I — <
The Freedom of Information Act sets forth a policy of broad disclosure of Government documents in order “to ensure an informed citizenry, vital to the functioning of a democratic society.” NLRB v. Robbins Tire & Rubber Co., 437 U. S. 214, 242 (1978); EPA v. Mink, 410 U. S. 73, 80 (1973). Yet Congress realized that legitimate governmental and private interests could be harmed by release of certain types of information and provided nine specific exemptions under which disclosure could be refused. Here we are concerned with Exemption 7, which was intended to prevent premature disclosure of investigatory materials which might be used in a law enforcement action. This provision originally exempted “investigatory files compiled for law enforcement purposes except to the extent available by law to a private party.” A sweeping interpretation given the Exemption by some courts permitted the unlimited withholding of files merely by classifying them as investigatory files compiled for law enforcement purposes. As a result, the Exemption underwent a major revision in 1974. As amended, Exemption 7 authorizes disclosure of law enforcement records unless the agency-can demonstrate one of six specific harms. The provision now protects
“investigatory records compiled for law enforcement purposes but only to the extent that the production of such records would (A) interfere with enforcement proceedings, (B) deprive a person of a right to a fair trial or an impartial adjudication, (C) constitute an unwarranted invasion of personal privacy, (D) disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence invéstigation, confidential information furnished only by the confidential source, (E) disclose investigative techniques and procedures, or (F) endanger the life or physical safety of law enforcement personnel.” 5 U. S. C. § 552(b)(7).
The language of the Exemption indicates that judicial review of an asserted Exemption 7 privilege requires a two-part inquiry. First, a requested document must be shown to have been an investigatory record “compiled for law enforcement purposes.” If so, the agency must demonstrate that release of the material would have one of the six results specified in the Act.
As the case comes to us, it is agreed that the information withheld by the Bureau was originally compiled for law enforcement purposes. It is also settled that the name check summaries were developed pursuant to a request from the White House for information about certain public personalities and were not compiled for law enforcement purposes. Finally, it is not disputed that if the threshold requirement of Exemption 7 is met — if the documents were compiled for law enforcement purposes — the disclosure of such information would be an unwarranted invasion of privacy. The sole question for decision is whether information originally compiled for law enforcement purposes loses its Exemption 7 protection if summarized in a new document not created for law enforcement purposes.
Ill
No express answer is provided by the statutory language or by the legislative history. The Court of Appeals resolved the question in favor of Abramson by construing the threshold requirement of Exemption 7 in the following manner. The cover letter to the White House, along with the accompanying summaries and attachments, constituted a “record.” Because that “record” was not compiled for law enforcement purposes, the material within it could not qualify for the exemption, regardless of the purpose for which that material was originally gathered and recorded and regardless of the impact that disclosure of such information would produce. The Court of Appeals supported its interpretation by distinguishing between documents and information. “[T]he statutory scheme of the FOIA very clearly indicates that exemptions from disclosure apply only to documents, and not to the use of the information contained in such documents.” 212 U. S. App. D. C., at 65, 658 F. 2d, at 813. A “record” is a “document” and, for the Court of Appeals, the document must be treated as a unit for purposes of deciding whether it was prepared for law enforcement purposes. The threshold requirement for qualifying under Exemption 7 turns on the purpose for which the document sought to be withheld was prepared, not on the purpose for which the material included in the document was collected. The Court of Appeals would apply this rule even when the information for which the exemption is claimed appears in the requested document in the form essentially identical to the original memorialization.
The Court of Appeals’ view is a tenable construction of Exemption 7, but there is another interpretation, equally plausible on the face of the statute, of the requirement that the record sought to be withheld must have been prepared for law enforcement purposes. If a requested document, such as the one sent to the White House in this case, contains or essentially reproduces all or part of a record that was previously compiled for law enforcement reasons, it is reasonably arguable that the law enforcement record does not lose its exemption by its subsequent inclusion in a document created for a nonexempt purpose. The Court of Appeals itself pointed the way to this alternative construction by indicating that Exemption 7 protected attachments to the name check summaries that were duplicates of original records compiled for law enforcement purposes. Those records would not lose their exemption by being included in a later compilation made for political purposes. Although in this case the duplicate law enforcement records were attached to the name check summaries, the result hardly should be different if all or part of the prior record were quoted verbatim in the new document. That document, even though it may be delivered to another agency for a nonexempt purpose, contains a “record” qualifying for consideration under Exemption 7.
The question is whether FOIA permits the same result where the exempt record is not reproduced verbatim but is accurately reflected in summary form. The Court of Appeals would have it that because the FBI summarized the relevant records rather than reproducing them verbatim, the identical information no longer qualifies for the exemption. The originally compiled record and the derivative summary would be treated completely differently although the content of the information is the same and although the reasons for maintaining its confidentiality remain equally strong. We are of the view, however, that the statutory language is reasonably construable to protect that part of an otherwise nonexempt compilation which essentially reproduces and is substantially the equivalent of all or part of an earlier record made for law enforcement uses. Moreover, that construction of the statute rather than the interpretation embraced by the Court of Appeals, more accurately reflects the intention of Congress, is more consistent with the structure of the Act, and more fully serves the purposes of the statute.
FOIA contains no definition of the term “record.” Throughout the legislative history of the 1974 amendments, Representatives and Senators used interchangeably such terms as “documents,” “records,” “matters,” and “information. ” Furthermore, in determining whether information in a requested record should be released, the Act consistently focuses on the nature of the information and the effects of disclosure. After enumerating the nine exemptions from FOIA, Congress expressly directed that “[a]ny reasonably segrega-ble portion of a record” be “provided to any person requesting such record after deletion of the portions which are exempt....” § 552(b). This provision requires agencies and courts to differentiate among the contents of a document rather than to treat it as an indivisible “record” for FOIA purposes. When a record is requested, it is permissible for an agency to divide the record into parts that are exempt and parts that are not exempt, based on the kind of information contained in the respective parts.
The 1974 amendments modified Exemption 7 in two ways. First, by substituting the word “records” for “files,” Congress intended for courts to “consider the nature of the particular document as to which exemption was claimed, in order to avoid the possibility of impermissible ‘commingling’ by an agency’s placing in an investigatory file material that did not legitimately have to be kept confidential.” NLRB v. Robbins Tire & Rubber Co., 437 U. S., at 229-230. Second, by enumerating six particular objectives of the Exemption, the amendments required reviewing courts to “loo[k] to the reasons” for allowing withholding of information. Id., at 230. The requirement that one of six types of harm must be demonstrated to prevent production of a record compiled for law enforcement purposes was a reaction to a line of cases decided by the Court of Appeals for the District of Columbia Circuit which read the original Exemption 7 as protecting all law enforcement files. The amendment requires that the Government “specify some harm in order to claim the exemption” rather than “affording all law enforcement matters a blanket exemption.” 120 Cong. Rec. 36626 (1974), 1975 Source Book 413 (statement of Rep. Reid). The enumeration of these categories of undesirable consequences indicates Congress believed the harm of disclosing this type of information would outweigh its benefits. There is nothing to suggest, and no reason for believing, that Congress would have preferred a different outcome simply because the information is now reproduced in a non-law-enforcement record.
The Court of Appeals would protect information compiled in a law enforcement record when transferred in original form to another agency for nonexempt purposes but would withdraw that protection if the same information or record is transmitted in slightly different form. In terms of the statutory objectives, this distinction makes little sense. If the Court of Appeals is correct that this kind of information should be disclosed, its position leaves an obvious means of qualifying for the exemption — transmittal of the law enforcement records intact. Conversely, to the extent that Congress intended information initially gathered in the course of a law enforcement investigation to remain private, the Court of Appeals’ decision creates a substantial prospect that this purpose, the very reason for Exemption 7’s existence, will no longer be served.
IV
Neither are we persuaded by the several other arguments Abramson submits in support of the decision below.
First, we reject the argument that the legitimate interests in protecting information from disclosure under Exemption 7 are satisfied by other exemptions when a record has been recompiled for a non-law-enforcement purpose. In particular, Abramson submits that Exemption 6 suffices to protect the privacy interest of individuals. Even if this were so with respect to the particular information requested in this case, the threshold inquiry of what constitutes compilation for law enforcement purposes must be considered with regard for all six of the types of harm stemming from disclosure that Congress sought to prevent. Assuming that Exemption 6 provided fully comparable protection against disclosures which would constitute unwarranted invasions of privacy, a questionable proposition itself, no such companion provision in FOIA would halt the disclosure of information that might deprive an individual of a fair trial, interrupt a law enforcement investigation, safeguard confidential law enforcement techniques, or even protect the physical well-being of law enforcement personnel. No other provision of FOIA could compensate for the potential disruption in the flow of information to law enforcement agencies by individuals who might be deterred from speaking because of the prospect of disclosure. It is therefore critical that the eompiled-for-law-enforcement requirement be construed to avoid the release of information that would produce the undesirable results specified.
For much the same reason, the result we reach today is fully consistent with our holding in NLRB v. Sears, Roebuck & Co., 421 U. S. 132, 148-154 (1975), that Exemption 5, § 552(b)(5), an exemption protecting from mandatory disclosure predecisional communications within an agency and other internal documents, does not protect internal advisory communications when incorporated in a final agency decision. The purposes behind Exemption 5, protecting the give-and-take of the decisional process, were not violated by disclosure once an agency chooses expressly to adopt a particular text as its official view. As we have explained above, this cannot be said here. The reasons for an Exemption 7 exemption may well remain intact even though information in a law enforcement record is recompiled in another document for a non-law-enforcement function.
The result is also consistent with the oft-repeated caveat that FOIA exemptions are to be narrowly construed, Department of Air Force v. Rose, 425 U. S. 352, 361 (1976). While Congress established that the basic policy of the Act is in favor of disclosure, it recognized the important interests served by the exemptions. We are not asked in this case to expand Exemption 7 to agencies or material not envisioned by Congress: “It is... necessary for the very operation of our Government to allow it to keep confidential certain material such as the investigatory files of the Federal Bureau of Investigation.” S. Rep. No. 813, 89th Cong., 1st Sess., 3 (1965). Reliance on this principle of narrow construction is particularly unpersuasive in this case where it is conceded that the information as originally compiled is exempt under Exemption 7 and where it is the respondent, not the Government, who urges a formalistic reading of the Act.
We are not persuaded that Congress’ undeniable concern with possible misuse of governmental information for partisan political activity is the equivalent of a mandate to release any information which might document such activity. Congress did not differentiate between the purposes for which information was requested. NLRB v. Sears, Roebuck & Co., supra, at 149. Rather, the Act required assessment of the harm produced by disclosure of certain types of information. Once it is established that information was compiled pursuant to a legitimate law enforcement investigation and that disclosure of such information would lead to one of the'listed harms, the information is exempt. Congress thus created a scheme of categorical exclusion; it did not invite a judicial weighing of the benefits and evils of disclosure on a case-by-case basis.
V
We therefore find that the construction adopted by the Court of Appeals, while plausible on the face of the statute, lacks support in the legislative history and would frustrate the purposes of Exemption 7. We hold that information initially contained in a record made for law enforcement purposes continues to meet the threshold requirements of Exemption 7 where that recorded information is reproduced or summarized in a new document prepared for a non-law-enforcement purpose. Of course, it is the agency’s burden to establish that the requested information originated in a record protected by Exemption 7. The Court of Appeals refused to consider such a showing as a sufficient reason for withholding certain information. The judgment of the Court of Appeals is therefore reversed, and the case is remanded to that court for further proceedings consistent with this opinion.
So ordered.
Section 552(b) in its entirety provides:
“This section does not apply to matters that are—
“(1)(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order;
“(2) related solely to the internal personnel rules and practices of an agency;
“(3) specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld;
“(4) trade secrets and commercial or financial information obtained from a person and privileged or confidential;
“(5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency;
“(6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;
“(7) investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) interfere with enforcement proceedings, (B) deprive a person of a right to a fair trial or an impartial adjudication, (C) constitute an unwarranted invasion of personal privacy, (D) disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source, (E) disclose investigative techniques and procedures, or (F) endanger the life or physical safety of law enforcement personnel;
“(8) contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or
“(9) geological and geophysical information and data, including maps, concerning wells.
“Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection.”
Abramson sought the following documents:
“ — Copies of any and all information contained in [FBI] files showing or indicating the transmittal of any documents or information from the FBI to the White House, or any White House aides, for the years 1969 and 1970, concerning the following individuals: Lowell P. Weicker, Jr.; Thomas J. Meskill; Joseph Duffey; Thomas J. Dodd; Alphonsus J. Donahue; John Lup-ton; Wallace C. Barnes; and Emilio Q. Daddario.
“ — Copies of any and all information so transmitted.
“ — An uncensored copy of the Oct. 6, 1969 letter from J. Edgar Hoover to John D. Ehrlichman by which Mr. Hoover transmits ‘memoranda’ on several individuals to Mr. Ehrlichman.
“ — A copy of the original request letter from Mr. Ehrlichman to Mr. Hoover for that data.
“ — Copies of all data so transmitted by the Oct. 6, 1969 letter from Mr. Hoover to Mr. Ehrlichman.
“ — A copy of the receipt signed by the recipient at the White House of the Oct. 6, 1969, letter.” 212 U. S. App. D. C. 58, 60, 658 F. 2d 806, 808 (1980).
In his revised request, Abramson sought the following documents:
—“All written requests and written
Question: Who is the respondent of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
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songer_appel1_2_3
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M
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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 organization or association", specifically "business, trade, professional, or union (BTPU)". Your task is to determine what subcategory of private association best describes this litigant.
CENTRAL AND SOUTHERN MOTOR FREIGHT TARIFF ASSOCIATION, INC., et al., Petitioners, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents, Motor Carriers Traffic Association, Inc., Intervenor.
No. 77-1458.
United States Court of Appeals, First Circuit.
Argued May 4, 1978.
Decided Aug. 14, 1978.
Thomas M. Auchincloss, Jr., with whom Frank J. Weiner, Boston, Mass., Bryce Rea, Jr., David H. Coburn, and Rea, Cross & Auchincloss, Washington, D. C., were on brief, for petitioners.
John J. McCarthy, Jr., Atty., Washington, D. C., with whom John H. Shenefield, Acting Asst. Atty. Gen., John J. Powers, III, Asst. Chief, Appellate Section, Antitrust Division, Mark L. Evans, Gen. Counsel, and Frederick W. Read, III, Associate Gen. Counsel, Washington, D. C., were on brief, for respondents.
Michael J. Morrissey, Washington, D. C., with whom J. Raymond Clark, Washington, D. C., was on brief, for intervenor Motor Carriers Traffic Ass’n, Inc.
Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.
BOWNES, Circuit Judge.
Four provisions of the Interstate Commerce Commission’s new rules governing the construction, filing and posting of tariffs are challenged by petitioners, Central and Southern Motor Freight Tariff Association, Inc., et al. (C&S), and intervenor, Motor .Carriers Traffic Association, Inc. (MCTA). Petitioner C&S, representing itself and several other rate bureaus, and intervenor MCTA, a tariff publishing agent, between them represent the views of a substantial portion of the motor common carrier industry. The intervenor attacks three provisions of the new rules as not having a rational basis; petitioners attack one provision as exceeding the authority of the Commission under section 217 of the Interstate Commerce Act (the Act), 49 U.S.C. § 317.
In July, 1973, the Commission issued a “Notice of Proposed Rulemaking and Order,” instituting a rulemaking proceeding under the provisions of section 553 of the Administrative Procedure Act, 5 U.S.C. § 553, and pursuant to sections 204(a) and 217 of the Act, 49 U.S.C. §§ 304(a) and 317. The purpose was to update the existing Commission regulations, known as Tariff Circular MF No. 3, comprising approximately fifty pages in 49 C.F.R. § 1307, governing the structure and form of tariff publications. The existing regulations had been adopted in 1940 with no general review since that time.
The notice announced proposed changes, many of which were substantial and important, in most of the existing rules. The most substantial and important changes were listed in fifty-four separate paragraphs of the notice. An appendix of two hundred forty-nine pages containing the proposed revised regulations was attached to the notice.
All motor common carriers and water carriers participating in joint rates with motor carriers were made respondents to the proceeding. The petitioners and the intervenor took an active part in the proceedings and made substantially the same objections they make here as well as others.
Petitions for reconsideration of certain of the proposed regulations were filed by several parties, including these petitioners. As a result, the proposed regulations were revised and a report was issued on August 23, 1977, by Division 2 of the Commission setting forth the latest revisions and the Commission’s reasons for adopting them. A request that the entire Commission reconsider the regulations was denied by order of September 23, 1977.
There is no contention by the government that the petitioners’ and intervenor’s positions were not pursued at every essential step of the agency’s proceedings, and they are, therefore, properly before us. 49 U.S.C. § 305(g). See United States v. Chesapeake & Ohio R. Co., 426 U.S. 500, 501 n.1, 96 S.Ct. 2318, 49 L.Ed.2d 14 (1976). The only challenge to the final regulations is to the following four provisions:
§ 1310.0(c)(1) . . . Except as otherwise authorized by special tariff authority, all tariff publications filed on or after October 5, 1978, must conform to the regulations in this part. Except as otherwise authorized by special tariff authority or in [various sections], all tariff publications filed prior to October 5,1978, which do not conform to the regulations in this part shall be brought into conformity therewith on or before October 5, 1979.
§ 1310.2(d) Period of notice. Except as otherwise authorized, each tariff publication must be posted continuously from a date at least 30 days prior to the effective date .
§ 1310.6(f)(3) Indexes of origins and destinations.
(i) Tariffs which name specific point to point rates shall provide an index of all points from which rates apply and a separate index of all points to which rates apply ....
§ 1310.7(f) Mixed Shipments .
Where different rates or ratings, or different minimum quantities are so provided, there must be a statement published to the effect that the deficit, if any, in the applicable minimum weight shall be rated at the lowest rate or rating used for any commodity in the shipment.
The first three provisions are challenged by intervenor MCTA. The fourth is opposed by petitioner C&S and those it represents.
In reviewing regulations which are the product of rulemaking, we review for the limited purpose of determining whether the regulations are “rationally supported.” United States v. Allegheny-Ludlum Steel Corporation, 406 U.S. 742, 749, 92 S.Ct. 1941, 32 L.Ed.2d 453 (1972). Although we do not substitute our judgment for that of the agency, neither do we serve as a rubber stamp for thoughtless agency action. Ethyl Corporation v. Environmental Protection Agency, 176 U.S.App.D.C. 373, 405-410, 541 F.2d 1, 33-38 (1975), cert. denied, 426 U.S. 941, 96 S.Ct. 2663, 49 L.Ed.2d 394 (1976).
1. The Time Limits
MCTA objects to the two basic time requirements contained in regulation 1310.0(c)(1). The first requires that by October 5, 1978, or thirteen months after the regulations were adopted, all tariff publications presented to the Commission for filing will have to conform to the new regulations. The second time requirement is that, on October 5, 1979, twenty-five months after the regulations were adopted, all tariff publications filed prior to October 5, 1978, must conform with the regulations. The intervenor’s basic contention is that the time limits are not sufficient to alleviate “the insuperable burdens that would be created if this timetable is adhered to.” This is so, MCTA contends, particularly if the index requirements contained in regulation 1310.6(f)(3) are upheld. See discussion, infra. MCTA argues that, because the new regulations represent a drastic departure from those with which tariff publishing agents are familiar, an extensive program of reeducation and compilation of new information will be involved. It argues that a two year period will be required for the submission of new tariffs, in accordance with the revised regulations, and a five year period to bring existing tariffs into conformity with the new regulations. Nowhere in its brief does MCTA state how it arrives at its conclusion that the reeducation program will require two years and five years respectively. It overlooks the fact that the rulemaking process has already consumed five years and, presumably, MCTA and other tariff publishing agents are already familiar with the revised regulations. A rule prescribed by the Commission is presumptively valid. Ethyl Corporation, supra, 176 U.S.App.D.C. at 406-408, 541 F.2d at 34-36. The periods are not patently unreasonable and would appear to allow sufficient time for compliance, particularly since petitioners are already thoroughly cognizant of the revised regulations.
Intervenor also suggests, almost as an afterthought, that the time period of thirteen and twenty-five months should not start running until the final decision of this court. Section 17(9) of the Act, 49 U.S.C. § 17(9)(h), provides in pertinent part: “Notwithstanding any other provision of this Act, any decision, order, or requirement of the Commission, or of a duly designated division thereof, shall be final on the date on which it is served.” The order adopting the new rules was served on August 23, 1977, and, therefore, became final on that date. The compliance dates of October 5, 1978, and October 5, 1979, control. The decision date of this opinion does not alter them in any way.
2. The Thirty Day Period of Notice
Section 1310.6(d) provides that each tariff publication must be posted continuously from a date at least thirty days prior to the effective date. Intervenor’s objections to the posting requirement are twofold: one, that it is an outmoded practice, and, two, that it will hold up the implementation of new rates and deprive the carriers of revenues. MCTA argues that no one ever looks at a posted tariff and, therefore, the thirty day posting requirement does not, as a practical matter, serve as a source of rate information. It states, without any documentation, that the requirement will severely “cripple the tariff bureaus.” It asserts that revenues are urgently needed by the carriers and the thirty day posting time plus the time required for preparation and sending the information to the carrier for posting plus uncontrollable delays caused by the United States Postal Service will all result in a drastic reduction in revenue. These conclusory statements are posited without any supporting evidence.
The Commission points out that “posting” means “the maintenance of a file of tariffs which the public may inspect. 49 C.F.R. § 1310(f)(23).” It also points out that the posting requirement is merely a restatement of what is required under section 217(c) of the Act, 49 U.S.C. § 317(c), and that there is no evidence that this posting requirement has been a burden since its inception in 1940. To the argument of MCTA that rate information is obtained through tariff service sources and not through posted rates, the Commission replies that such sources service only the paid subscribers of the tariff agency and not the general shipping public.
Moreover, there is a safety valve relative to the thirty day posting requirement, since the statute and the agency rule expressly authorize the Commission to permit less than thirty days notice if a person can demonstrate the circumstances warranting a shorter notice. We find the time requirement is not only reasonable, but is mandated by the statute, 49 U.S.C. § 317(c).
3. The Index Requirement
Section 1310.6(f)(3) requires that, “(i) Tariffs which name specific point to point rates shall provide an index of all points from which rates apply and a separate index of all points to which rates apply . .” MCTA complains that it will have to publish a colossal index naming city, town, village, or unincorporated area in every county it serves. Using the extreme example of a carrier which delivered one item to Vienna, Virginia, ten years ago, but which has not been back since, it contends that the carrier should be allowed to list only the State of Virginia or, perhaps, the counties in Virginia as its particular points of destination.
The Commission suggests that MCTA has read the regulation incorrectly and that “the required index would only need to include those cities or towns in Virginia to which the carrier has established specific rates from other cities and towns.” It states specifically:
If the carrier chooses to quote its rates on a specific point to point basis, the rule reasonably requires that the carrier must assist the public in locating the rate. The rule does not apply, however, to rates which are based on mileage zones, or on states or counties. Thus, MCTA’s supposed need to list ten pages of points in Virginia is nonexistent unless the carrier took the unusual step of listing specific rates from all municipalities in Virginia. To reiterate, a rate to or from all of Virginia would not have to be indexed.
I.C.C Brief at 18-19. MCTA insists that the Commission has misread its own rule and that they will be required to provide a constant updating, changing “with every request for. new to-or-from point service within its service area.” We must give deference to the agency’s interpretation of its own rule. If the regulation is read as the Commission sáys it should be, then it would not appear to impose an undue burden on MCTA or its members. Moreover, relief may be obtained if there is an undue burden: “We stress, however, that in those instances where the required indexes are not sufficiently useful to justify the expense of their compilation, applications for special tariff authority may be filed by requesting relief from the regulation.” Joint Appendix at 123. We see nothing unreasonable, unfair or burdensome in the regulations as to indexes of origins and destinations.
4. The Mixed Shipments Rule
We now turn to what is literally “much ado about nothing.” The new rule for mixed shipments provides, in effect, that, when there is less than a full shipment, the charge for the empty space shall be at the lowest rate charged for any commodity in the shipment.
We start our analysis against the backdrop of the statement of National Transportation Policy, part of which is
to encourage the establishment and maintenance of reasonable charges for transportation services, without unjust discriminations, undue preferences or advantages, or unfair or destructive competitive practices ....
54 Stat. 899, 49 U.S.C. preceding § 1.
“The Congress has charged the Commission with the task of determining whether the rates proposed by the carriers are ‘just and reasonable.’ 49 U.S.C. § 1(5).” United States v. Chesapeake & Ohio R. Co., 426 U.S. 500, 510, 96 S.Ct. 2318, 2323, 49 L.Ed.2d 14 (1976). While the technical and specific requirements of the Act cannot be flouted, the basic inquiry is whether the Commission acted fairly and the rule or rate is just and reasonable.
The main thrust of petitioners’ argument is that the mixed shipment rule really amounts to setting rates, and this can only be accomplished under the procedures outlined in section 216(e) of the Act, 49 U.S.C. § 316(e), which provides in pertinent part:
Complaints to and investigation by Commission — ; Power of Commission to fix reasonable rates, regulations . . . Whenever, after hearing, upon complaint or in an investigation on its own initiative, the Commission shall be of the opinion that any individual or joint rate, fare, or charge, demanded, charged, or collected by any common carrier or carriers by motor vehicle or by any common carrier or carriers by motor vehicle in conjunction with any common carrier or carriers by railroad and/or express, and/or water for transportation in interstate or foreign commerce, or any classification, rule, regulation, or practice whatsoever of such carrier or carriers affecting such rate, fare, or charge or the value of the service thereunder, is or will be unjust or unreasonable, or unjustly discriminatory or unduly preferential or unduly prejudicial, it shall determine and prescribe the lawful rate, fare, or charge or the maximum or minimum, or maximum and minimum rate, fare, or charge thereafter to be observed.
Petitioners maintain that section 216(e) of the Act requires an adjudicatory hearing pursuant to the provisions of sections 556 and 557 of the Administrative Procedure Act, 5 U.S.C. §§ 556, 557, and that the failure to follow such provisions is fatal to the rule. Petitioners do not claim that a trial type hearing is mandated by the statute, but argue that the word “hearing” means, at least, that there be an evidentiary proceeding at which specific facts relative to whether the rate “will be unjust or unreasonable, or unjustly discriminatory or unduly preferential or unduly prejudicial” will be adduced.
Petitioners, quite consistently, next argue that section 217 of the Act, 49 U.S.C. § 317, which the Commission used as its base for updating and changing the regulations and rules, applies only to the procedure and form for tariff publication and cannot be used as a statutory authority for setting rates.
The position that the Commission took initially was that it relied not only on section 217 of the Act, but also on section 204(a)(6), 49 U.S.C. § 304(a)(6), to promulgate the mixed shipments rule.
General duties and powers of the Commission — Powers and duties generally (a) It shall be the duty of the Commission—
(6) To administer, execute, and enforce all provisions of this chapter, to make all necessary orders in connection therewith, and to prescribe rules, regulations, and procedure for such administration . . .
Specifically, the Commission argues that its duty under section 204(6) “to make all necessary orders” and “to prescribe rules” authorized it to promulgate the mixed shipment rule so as to effectively administer section 216(b) of the Act, 49 U.S.C. § 316(b), which provides in pertinent part:
Rates, facilities for carriers of property. It shall be the duty of every common carrier of property by motor vehicle . to establish, observe, and enforce jüst and reasonable rates, charges, and classifications, and just and reasonable regulations and practices relating thereto .
The Commission’s reliance on section 204(a)(6) and section 216(b) would not be misplaced if it had proceeded under section 216.
It is clear, however, that the Commission proceeded solely under section 217. Section 204(a)(6) is a catchall administrative provision and the authority granted therein is subject to the more specific provisions contained in sections 216 and 217. It is not a separate grant of authority which is meant to be read in isolation from the other provisions of the Act, nor is there any legislative history or other authority cited by petitioners which would intimate otherwise. See United States v. American Trucking Associations, 310 U.S. 534, 539-540, 60 S.Ct. 1059, 84 L.Ed. 1345 (1940).
The Commission has belatedly recognized that section 216(e) is a hurdle which it must clear to establish the validity of the mixed shipments rule. Thus it now takes the position that the hearing requirements of section 216(e) were, in fact, met by the extensive five year rulemaking procedure that was followed in updating and revising the common motor carrier regulations. Petitioners’ cry of foul because this argument was raised for the first time before us and its insistence that the validity of the order must be judged on the grounds originally invoked by the Commission ignores reality. We are not bound by the positions of the parties as articulated in the Commission proceedings. The question is whether the requirements of section 216(e) have, in fact, been met. This is resolved by determining whether an adjudicatory or rulemaking hearing is mandated. If the appropriate procedures were followed, it would be pointless to remand for the sole purpose of forcing the Commission to state a different section as the one under which the hearing will proceed.
We have recently held that an adjudicatory hearing may be required, even though the words “on the record” do not appear in the statute.
At the outset we reject the position of intervenor PSCO that the precise words “on the record” must be used to trigger the APA. The Supreme Court has clearly rejected such an extreme reading even in the context of rule making under § 553 of the APA. See United States v. Florida East Coast Ry. Co., 410 U.S. 224, 245, 93 S.Ct. 810, 35 L.Ed.2d 223 (1973); United States v. Allegheny-Ludlum Steel Corp., 406 U.S. 742, 757, 92 S.Ct. 1941, 32 L.Ed.2d 453 (1972). Rather, we think that the resolution of this issue turns on the substantive nature of the hearing Congress intended to provide.
Seacoast Anti-Pollution League v. Costle, 572 F.2d 872, 876 (1st Cir. 1978).
It seems clear that, here, the substantive nature of the hearing Congress intended to provide was fulfilled by the rulemaking process the Commission followed. Petitioners’ assertion that section 216(e) requires some form of adjudicatory hearing finds no support in the Act or regulations. Compare section 15(8) of the Act, 49 U.S.C. § 15(8)(a), recently amended to provide a provision similar to section 216(e) for rail carriers, which specifies that the hearing required need not be formal: “The hearing may be conducted without answer or other formal pleading . . .” The case law clearly indicates that rate setting as a result of a broad rule is validated by the rulemaking procedures required under section 553 of the Administrative Procedure Act, without the necessity of the hearings prescribed by sections 556 and 557 of the A.P.A. In this case, the words “on the record” are not part
of the pertinent section of the Act. Moreover, no good reason has been advanced as to why an adjudicatory hearing is necessary. This is not the case of a specific rate having been set and evidence needed to determine whether it is fair and just. What we have here is a broad general rule that results in different rates for different shipments depending on the rate of the lowest rated article carried. Petitioners are attacking the rule, not the rate, because the rate varies with each shipment and cannot be determined until the mixed shipment is loaded. This is similar to the situation addressed by the Supreme Court in United States v. Florida East Coast R. Co., 410 U.S. 224, 245-246, 93 S.Ct. 810, 821, 35 L.Ed.2d 223 (1973):
While the line dividing them may not always be a bright one, these decisions represent a recognized distinction in administrative law between proceedings for the purpose of promulgating policy-type rules or standards, on the one hand, and proceedings designed to adjudicate disputed facts in particular cases on the other.
Here, the incentive payments proposed by the Commission in its tentative order, and later adopted in its final order, were applicable across the board to all of the common carriers by railroad subject to the Interstate Commerce Act. No effort was made to single out any particular railroad for special consideration based on its own peculiar circumstances. Indeed, one of the objections of appellee Florida East Coast was that it and other terminating carriers should have been treated differently from the generality of the railroads. But the fact that the order may in its effects have been thought more disadvantageous by some railroads than by others does not change its generalized nature. Though the Commission obviously relied on factual inferences as a basis for its order, the source of these factual inferences was apparent to anyone who read the order of December 1969. The factual inferences were used in the formulation of a basically legislative-type judgment, for prospective application only, rather than in adjudicating a particular set of disputed facts.
The Commission held what amounted to hearings over a five year period on the rule to be applied to the charge for unused air space as well as the other rules and regulations being studied for revision and updating. This is not an instance of the Commission’s arbitrarily imposing a rate without giving the interested members of the industry a chance to be heard and object. The petitioners’ brief, pages 21 and 22, makes it clear that its position and opposition to the rule was forcefully put forth before the Commission.
In the recent Trans Alaska Pipeline rate cases, the Supreme Court held that the Commission had the authority to suspend an initial tariff and set maximum interim rates without an adjudicatory hearing. The following language is particularly appropriate. Trans Alaska Pipeline Rate Cases, - U.S. -, -, 98 S.Ct. 2053, 2066, 56 L.Ed.2d 591 (1978).
No principle of law requires the Commission to engage in a pointless charade in which carriers desiring to exercise their § 6(3) rights are required to submit and resubmit tariffs until one finally goes below an undisclosed maximum point of reasonableness and is allowed to take effect. The administrative process, after all, is not modeled on “The Price is Right.” What the Commission did here, therefore, far from being condemnable, is an intelligent and practical exercise of its suspension power which is thoroughly in accord with Congress’ goal, recognized in Arrow [Arrow Transportation Co. v. Southern R. Co.], 372 U.S. 658 at 664-666, 83 S.Ct. 984, 10 L.Ed.2d 52; see United States v. SCRAP, 412 U.S. 669, 697, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973), to strike a fair balance between the needs of the public and the needs of regulated carriers.
It would be a “pointless charade” to now require a hearing under section 216 on the mixed shipments rule after five years of consideration by the Commission and the industry, albeit under another section of the Act.
The remaining issue of whether there is a rational basis for the rule needs no extended discussion. While a rule that requires the minimum rather than the maximum charge for unused space in a mixed shipment may understandably upset the carriers who hereto had been using the opposite standard, there is nothing inherently unreasonable, unfair, or unjust about it. Like the Commission, we see little merit in the argument that the rule will encourage shippers to “throw-in” low rated commodities in order to gain an advantage in price for the unused space. This assumes that a shipper will husband his lowest rated articles and apportion them to different shipments. This is a lot less likely than the carriers’ raising their rates, which, of course, they have a right to do subject to the Commission’s determination of what is just and reasonable. The basic principle that carriers should not be allowed to charge more for empty space than what they charge for the lowest rated article is both reasonable and fair.
The orders of the Interstate Commerce Commission are affirmed.
. The Supreme Court explained the interaction of rulemaking, the words of the implicated statute and the requirements of sections 553, 556, and 557 of the A.P.A. in United States v. Allegheny-Ludlum Steel, 406 U.S. 742, 756-757, 92 S.Ct. 1941, 32 L.Ed.2d 453 (1972).
. We said in Seacoast Anti-Pollution League v. Costle, supra, 572 F.2d at 876 n. 5, that “the words ‘on the record’ [are] more important in the context of rule making . . . See Davis, Administrative Law of the Seventies §§ 6.04-1 and 6.04-2.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private organization or association", specifically "business, trade, professional, or union (BTPU)". What subcategory of private association best describes this litigant?
A. Business or trade association
B. utilities co-ops
C. Professional association - other than law or medicine
D. Legal professional association
E. Medical professional association
F. AFL-CIO union (private)
G. Other private union
H. Private Union - unable to determine whether in AFL-CIO
I. Public employee union- in AFL-CIO (include groups called professional organizations if their role includes bargaining over wages and work conditions)
J. Public Employee Union - not in AFL-CIO
K. Public Employee Union - unable to determine if in AFL-CIO
L. Union pension fund; other union funds (e.g., vacation funds)
M. Other
N. Unclear
Answer:
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sc_petitionerstate
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12
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state associated with the petitioner. If the petitioner is a federal court or federal judge, note the "state" as the United States. The same holds for other federal employees or officials.
FLORIDA DEPARTMENT OF STATE v. TREASURE SALVORS, INC., et al.
No. 80-1348.
Argued January 20, 1982
Decided July 1, 1982
Stevens, J., announced the judgment of the Court and delivered an opinion, in which Burger, C. J., and Marshall and Blackmun, JJ., joined. Brennan, J., filed an opinion conneurring in the judgment in part and dissenting in part, post, p. 700. White, J., filed an opinion concurring in the judgment in part and dissenting in part, in which Powell, Rehnquist, and O’Connor, JJ., joined, post, p. 702.
Susan Gamble Smothers, Assistant Attorney General of Florida, argued the cause pro hac vice for petitioner. With her on the briefs were Jim Smith, Attorney General, and Sidney H. McKenzie III.
David Paul Horan argued the cause and filed a brief for respondents.
A brief for the State of Alabama et al. as amici curiae urging reversal was filed by Rufus L. Edmisten, Attorney General of North Carolina, W. A. Raney, Jr., Special Deputy Attorney General, and Daniel C. Oakley, Assistant Attorney General; Charles A. Graddick, Attorney General of Alabama; Wilson L. Condon, Attorney General of Alaska; Robert C. Hight, JackE. Rump; Tany S. Hong, Attorney General of Hawaii; Tyrone C. Fahner, Attorney General of Illinois; William J. Guste, Jr., Attorney General of Louisiana; Stephen H. Sachs, Attorney General of Maryland; Francis X. Bellotti, Attorney General of Massachusetts; William A. Attain, Attorney General of Mississippi; Daniel R. McLeod, Attorney General of South Carolina; Mark White, Attorney General of Texas; Donald M. Bouton, Acting Attorney General of the Virgin Islands; Aviata F. Faalevao, Attorney General of American Samoa; and Jack Avery, Attorney General of the Government of Guam.
Justice Stevens
announced the judgment of the Court and delivered an opinion, in which The Chief Justice, Justice Marshall, and Justice Blackmun joined.
In this admiralty in rem action, a federal court attempted to arrest property held by two state officials and bring it within the jurisdiction of the court. The property — artifacts of the Nuestra Señora de Atocha, a 17th-century Spanish galleon — was discovered by respondents on the floor of the ocean in international waters. The question presented is whether the Eleventh Amendment immunized the property from the federal court’s process.
I
Battered by a tropical hurricane, the Nuestra Senora de Atocha, a Spanish galleon carrying a cargo of New World treasure to King Philip IV of Spain, sank in 1622, 40 nautical miles west of what is today Key West, Fla. After years of searching the ocean floor and studying Spanish archives in Seville, respondent Treasure Salvors located the wreck site in the spring of 1971 near shoals known as the “Quicksands,” nine and one-half nautical miles west of the Marquesas Keys.
The State of Florida immediately claimed that the Atocha belonged to the State. The State claimed ownership pursuant to Fla. Stat. §267.061(l)(b) (1974), which then provided:
“It is further declared to be the public policy of the state that all treasure trove, artifacts and such objects having intrinsic or historical and archeological value which have been abandoned on state-owned lands or state-owned sovereignty submerged lands shall belong to the state with the title thereto vested in the division of archives, history, and records management of the department of state for the purpose of administration and protection.” (Emphasis added.)
Officials of the Florida Division of Archives threatened to arrest Mel Fisher, president of Treasure Salvors, and to confiscate the boats and equipment of Treasure Salvors if it commenced salvage operations on the Atocha without a salvage contract from the State. Under this threat of arrest, Treasure Salvors executed a one-year contract with the State that permitted it to conduct underwater salvage operations on the vessel. Similar contracts were executed during each of the three succeeding years.
Each of the contracts was expressly predicated on the assumption that the Atocha was the property of the State of Florida because it had been found on submerged lands within the boundaries of the State. The contracts permitted Treasure Salvors “to conduct underwater salvage from and upon certain submerged sovereignty lands of and belonging to the State of Florida.” App. 20. After describing in metes and bounds an area claimed to be “lying and being in Monroe County, Florida,” the contract provided that the shipwreck site “is to be worked for the purpose of salvaging abandoned vessels or the remains thereof including, but not limited to, relics, treasure trove and other materials related thereto and located thereupon and therein, which abandoned material is the property of the State of Florida.” Id., at 22 (emphasis added). The contract further provided:
“In payment for the Salvager’s satisfactory performance and compliance with this Agreement, the Division will award to the Salvager seventy-five percent (75%) of the total appraised value of all material recovered hereunder, which payment shall be made at the time division of such material is made by the parties hereto. Said payment may be made in either recovered material or fair market value, or in a combination of both, at the option of the Division’s director.” Id., at 32-33.
The bargain, in brief, was between the Division of Archives, as the owner of the Atocha and its cargo, and Treasure Salvors, as a contractor that agreed to perform services for the Division. Treasure Salvors agreed to pay the Division $1,200 each year, to post a performance bond, and to perform its work in a specified manner, all in exchange for the Division’s agreement to transfer ownership of 75% of the proceeds of the operation — or its equivalent — to Treasure Salvors. The contracts did not purport to transfer ownership of any property to the Division of Archives; the State’s claim to the property was predicated entirely on a provision of state law.
In its attempt to salvage the lost treasure of the Atocha, Treasure Salvors was immensely successful. The salvager held some of the artifacts at its headquarters in Key West, while state officials held the remainder at the Division of Archives in Tallahassee. All of the property was deemed to belong to the State, however, subject to a subsequent distribution in which Treasure Salvors would receive its 75% contractual share.
In proceedings unrelated to the salvage operation, the United States and the State of Florida were engaged in litigation to determine the seaward boundary of submerged lands in the Atlantic Ocean and the Gulf of Mexico in which the State had rights to natural resources. In February 1974, a Special Master filed a Report that defined Florida’s boundary landward of the site of the wreck of the Atocha. The State’s objections to the Report were overruled. United States v. Florida, 420 U. S. 531 (1975). A final decree was entered providing that, as against the State of Florida, the United States was entitled to the lands, minerals, and other natural resources in the area in which the remains of the Atocha had come to rest. United States v. Florida, 425 U. S. 791 (1976).
After this Court overruled Florida’s exceptions to the Special Master’s Report, Treasure Salvors filed a complaint in the Federal District Court for the Southern District of Florida demanding that “Plaintiffs be put into possession of the ATOCHA and other property and that all other persons, firms, and corporations or government agencies be enjoined from interfering with Plaintiffs title, possession, and property,” and that “Plaintiffs title be confirmed against all claimants and all the world.” App. 9. The complaint invoked the court’s admiralty and maritime jurisdiction pursuant to Federal Rule of Civil Procedure 9(h) and, as an admiralty action in rem, named the Atocha as defendant. Items recovered from the Atocha in Treasure Salvors’ possession were duly served with process and brought into the custody of the court. Most of the remainder of the wreck and its valuable cargo lay buried under sand in international waters; state officials held other artifacts in Tallahassee. No attempt was made at this time to serve the artifacts in Tallahassee.
The United States intervened in the action as a party-defendant and filed a counterclaim seeking a declaratory judgment that the United States was the proper owner of the Atocha. The District Court rejected the Government’s claim of ownership and held that “possession and title are rightfully conferred upon the finder of the res derelictae.” Treasure Salvors, Inc. v. Abandoned Sailing Vessel, 408 F. Supp. 907, 911 (1976). The court entered judgment in favor of Treasure Salvors “against the United States of America and all other claimants.” Record 270.
The Court of Appeals affirmed the judgment of the District Court as against the United States, but modified its decree. Treasure Salvors, Inc. v. Unidentified Wrecked and Abandoned Sailing Vessel, 569 F. 2d 330 (CA5 1978). The United States had argued that the District Court lacked in rem jurisdiction to determine rights of the parties to that portion of the Atocha lying beyond the territorial jurisdiction of the court. The Court of Appeals agreed that the District Court lacked in rem jurisdiction over those portions of the res located outside the district; the court noted that for a court to exercise admiralty in rem jurisdiction the res itself must be brought within the district and seized by the court. Id., at 333. The appellate court held, however, that by intervening in the action and stipulating to the court’s admiralty jurisdiction the Government had “waived the usual requirement that the res be present within the territorial jurisdiction of the court and consented to the court’s jurisdiction to determine its interest in the extraterritorial portion of the vessel. ” Id., at 335. The court concluded that jurisdiction thus existed to determine claims of the United States to those portions of the Atocha lying beyond the territorial jurisdiction of the court, but not claims of other parties who had not appeared and submitted to the jurisdiction of the court. On the merits, the Court of Appeals rejected the statutory and common-law claims advanced by the United States.
Throughout these proceedings, valuable artifacts of the Atocha remained in the custody of officials of the Florida Division of Archives in Tallahassee. Since Tallahassee is located in the Northern District of Florida, these artifacts also were located beyond the territorial jurisdiction of the District Court. Immediately following the decision of the Court of Appeals, Treasure Salvors filed a motion in the District Court for an order commanding the United States Marshal to arrest and take custody of these artifacts and bring them within the jurisdiction of the court. Record 318. That motion forms the basis of the present controversy.
The District Court issued a warrant to arrest. Although the warrant was addressed to two officers of the Division of Archives, the State itself filed a motion to quash the warrant, contending that the State of Florida was not a party in the case and had not waived the requirement that the court could exercise in rem jurisdiction only over that portion of the res within the territorial boundaries of the court. App. 43. The State also sought and obtained an emergency stay from the Court of Appeals. Record 368. The District Court denied the motion to quash, ruling that the extraterritorial seizure was proper under Supplemental Admiralty Rule C(5). App. 51. Since the Court of Appeals had stayed execution of the warrant, the District Court issued an order to show cause why the State should not deliver the artifacts into the custody of the Marshal.
In response to the order to show cause, the State raised several substantive issues in the District Court. Record 425. Contending that a supplemental complaint filed by Treasure Salvors, see n. 11, supra, demonstrated that the State of Florida was a defendant in the action, the State argued that the Eleventh Amendment barred an exercise of the court’s jurisdiction. The State also repeated its arguments that the court lacked in rem jurisdiction in admiralty because the res was not present within the district and that the decision of this Court in United States v. Florida did not affect the State’s “contractual” right to a share of the artifacts. Record 429-439.
The District Court rejected these arguments in a comprehensive memorandum. Treasure Salvors, Inc. v. Unidentified Wrecked and Abandoned Sailing Vessel, 459 F. Supp. 507 (1978). The court first held that, just as all claims of the United States had been resolved in the earlier proceeding, all claims of the State were barred because the State of Florida had acted in privity with the United States in that proceeding. Id., at 512; see n. 7, supra. Alternatively, the court held that the extraterritorial arrest of the salvaged articles was proper under Supplemental Admiralty Rule C(5) and that the court thus had obtained jurisdiction in rem to resolve ownership of the res. 459 F. Supp., at 518. On the merits, the court rejected on multiple grounds the State’s contractual claim to the property. Id., at 521.
At the conclusion of its memorandum opinion, the court rejected the State’s Eleventh Amendment defense. Id., at 526. The court first held that the State necessarily had waived the Amendment as to any claim to the property that it asserted in federal court. Ibid. The court then held that, apart from any claim advanced by the State, the Eleventh Amendment did not bar the seizure of the artifacts and subsequent transfer to the custody of the Marshal.
The Court of Appeals affirmed. 621 F. 2d 1340 (CA5 1980). As had the District Court, see n. 14, swpra, the court concluded that the Eleventh Amendment did not prevent the court from resolving the controverted claims to ownership of the res, since resolution of that dispute was essential to a determination of whether the Eleventh Amendment in fact barred an exercise of jurisdiction by the federal court. 621 F. 2d, at 1345. The court then held that the extraterritorial process issued pursuant to Supplemental Admiralty Rule C(5) was proper, id., at 1346, and that the State did not have a valid claim to the property. Id., at 1349.
The Florida Department of State filed a petition for writ of certiorari, presenting only one question: “Whether the Eleventh Amendment to the United States Constitution bars an in rem admiralty action seeking to recover property owned by a state.” Pet. for Cert. I. We granted the petition. 451 U. S. 982. We hold that the federal court had jurisdiction to secure possession of the property from the named state officials, since they had no colorable basis on which to retain possession of the artifacts. The court did not have power, however, to adjudicate the State’s interest in the property without the State’s consent.
II
Stripped of its procedural complexities and factual glamor, this case presents a narrow legal question. The District Court attempted to seize artifacts held by state officials and to bring the property within its admiralty in rem jurisdiction. Although the seizure in this case was extraterritorial, and thus involved an application of Supplemental Admiralty Rule C(5), the question presented for our decision would not be any different if the State merely resisted an attachment of property located within the district.
In response to the warrant of arrest, the State contended that it was immune from the federal process under the Eleventh Amendment. It argued that the contracts executed with Treasure Salvors “alone determined the rights and obligations of the contracting parties....” App. 44. The difficult question presented in this case is whether a federal court exercising admiralty in rem jurisdiction may seize property held by state officials under a claim that the property belongs to the State.
A suit generally may not be maintained directly against the State itself, or against an agency or department of the State, unless the State has waived its sovereign immunity. Alabama v. Pugh, 488 U. S. 781. If the State is named directly in the complaint and has not consented to the suit, it must be dismissed from the action. Id., at 782. Of course, the fact that the State should have been dismissed from an action that has proceeded to judgment does not mean that the judgment may not stand against other parties who are not immune from suit.
The Eleventh Amendment does not bar all claims against officers of the State, even when directed to actions taken in their official capacity and defended by the most senior legal officers in the executive branch of the state government. In Ex parte Young, 209 U. S. 123, the Court held that an action brought against a state official to enjoin the enforcement of an unconstitutional state statute is not a suit against a State barred by the Eleventh Amendment. In response to the árgument that the official in such a case could act only as an officer of the State and that the suit therefore could be characterized only as an action against the State itself, the Court explained:
“The act to be enforced is alleged to be unconstitutional, and if it be so, the use of the name of the State to enforce an unconstitutional act to the injury of complainants is a proceeding without the authority of and one which does not affect the State in its sovereign or governmental capacity. It is simply an illegal act upon the part of a state official in attempting by the use of the name of the State to enforce a legislative enactment which is void because unconstitutional. If the act which the state Attorney General seeks to enforce is a violation of the Federal Constitution, the officer in proceeding under such enactment comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct. The State has no power to impart to him any immunity from responsibility to the supreme authority of the United States.” Id., at 159-160.
There is a well-recognized irony in Ex parte Young; unconstitutional conduct by a state officer may be “state action” for purposes of the Fourteenth Amendment yet not attributable to the State for purposes of the Eleventh. Nevertheless, the rule of Ex parte Young is one of the cornerstones of the Court’s Eleventh Amendment jurisprudence. See Edelman v. Jordan, 415 U. S. 651, 663-664; Quern v. Jordan, 440 U. S. 332, 337.
In Tindal v. Wesley, 167 U. S. 204, the Court applied the analysis later enshrined in Ex parte Young in a suit to recover property wrongfully held by state officials on behalf of the State of South Carolina. In Tindal, the plaintiff claimed title and a right of possession to certain real property held by a state official; the defendant answered that the property belonged to the State and asserted the Eleventh Amendment as a defense to the action. The Court described the issue presented for decision:
“So that the question is directly presented, whether an action brought against individuals to recover the possession of land of which they have actual possession and control, is to be deemed an action against the State within the meaning of the Constitution, simply because those individuals claim to be in rightful possession as officers or agents of the State, and assert title and right of possession in the State. Can the court, in such an action, decline to inquire whether the plaintiff is, in law, entitled to possession, and whether the individual defendants have any right, in law, to withhold possession? And if the court finds, upon due inquiry, that the plaintiff is entitled to possession, and that the assertion by the defendants of right of possession and title in the State is without legal foundation, may it not, as between the plaintiff and the defendants, adjudge that the plaintiff recover possession?” 167 U. S., at 212.
Relying extensively on the earlier decision in United States v. Lee, 106 U. S. 196, the Court in Tindal held that the “settled doctrine of this court wholly precludes the idea that a suit against individuals to recover possession of real property is a suit against the State simply because the defendant holding possession happens to be an officer of the State and asserts that he is lawfully in possession on its behalf.” 167 U. S., at 221. The Court refused to accept the proposition that the “doors of the courts of justice are... closed against one legally entitled to possession, by the mere assertion of the defendants that they are entitled to possession for the State.” Id., at 222. In explaining the extent of its decision, the Court stated:
“[T]he Eleventh Amendment gives no immunity to officers or agents of a State in withholding the property of a citizen without the authority of law. And when such officers or agents assert that they are in rightful possession, they must make good that assertion when it is made to appear in a suit against them as individuals that the legal title and right of possession is in the plaintiff. If a suit against officers of a State to enjoin them from enforcing an unconstitutional statute, whereby the plaintiff’s property will be injured... be not one against the State, it is impossible to see how a suit against the same individuals to recover the possession of property belonging to the plaintiff and illegally withheld by the defendants can be deemed a suit against the State.” Ibid.
In holding that the action was not barred by the Eleventh Amendment, the Court in Tindal emphasized that any judgment awarding possession to the plaintiff would not subsequently bind the State. “It is a judgment to the effect only that, as between the plaintiff and the defendants, the former is entitled to possession of the property in question, the latter having shown no valid authority to withhold possession from the plaintiff,” id., at 223; “it will be open to the State to bring any action that may be appropriate to establish and protect whatever claim it has to the premises in dispute.” Ibid.
The rule of law set forth in United States v. Lee and Tindal v. Wesley was clarified in Larson v. Domestic & Foreign Commerce Corp., 337 U. S. 682. In that case the plaintiff brought suit against a Government official to compel specific performance of a contract. The plaintiff theorized that by withholding delivery of property as required by the contract the agent had exceeded his official authority and could be sued in federal court. The Court in Larson stated that “the action of an officer of the sovereign (be it holding, taking or otherwise legally affecting the plaintiff’s property) can be regarded as so ‘illegal’ as to permit a suit for specific relief against the officer as an individual only if it is not within the officer’s statutory powers or, if within those powers, only if the powers, or their exercise in a particular case, are constitutionally void.” Id., at 701-702. The Court held that the fact that an officer wrongfully withholds property belonging to another does not necessarily establish that he is acting beyond the permissible scope of his official capacity. Since in Larson it was not alleged that the Government official had exceeded his statutory authority — indeed, the plaintiff had affirmatively contended that the officer had authority to bind the Government on the contract at issue — or that the exercise of such authority was unconstitutional, the Court held that the action was barred by sovereign immunity.
These cases make clear that the Eleventh Amendment does not bar an action against a state official that is based on a theory that the officer acted beyond the scope of his statutory authority or, if within that authority, that such authority is unconstitutional. In such an action, however, the Amendment places a limit on the relief that may be obtained by the plaintiff. If the action is allowed to proceed against the officer only because he acted without proper authority, the judgment may not compel the State to use its funds to compensate the plaintiff for the injury. In Edelman v. Jordan, 415 U. S. 651, the Court made clear that “a suit by private parties seeking to impose a liability which must be paid from public funds in the state treasury is barred by the Eleventh Amendment.” Id., at 663. See Ford Motor Co. v. Department of Treasury, 323 U. S. 459; Quern v. Jordan, 440 U. S., at 337. In determining the relief that may be granted if a state officer is found to have acted without valid statutory authority, the question is whether the relief “constitute^] permissible prospective relief or a ‘retroactive award which requires the payment of funds from the state treasury.’ ” Quern v. Jordan, supra, at 346-347.
I — I I — I I — I
In light of the principles set forth above, the proper resolution of the Eleventh Amendment issue raised in this case requires an answer to each of three specific questions: (a) Is this action asserted against officials of the State or is it an action brought directly against the State of Florida itself? (b) Does the challenged conduct of state officials constitute an ultra vires or unconstitutional withholding of property or merely a tortious interference with property rights? (c) Is the relief sought by Treasure Salvors permissible prospective relief or is it analogous to a retroactive award that requires "the payment of funds from the state treasury”?
A
Treasure Salvors filed this admiralty in rem action in federal court, seeking a declaration of title to an abandoned sailing vessel that had been discovered on the ocean floor. The State of Florida was not named as a party and was not compelled to appear. Some of the property at issue, however, was held by officials of the Florida Division of Archives. Asserting that it was the rightful owner of the property, Treasure Salvors filed a motion “for an Order commanding the United States Marshal to arrest and take custody of those portions of the Plaintiffs’ vessel now being held by L. Ross Morrell or James McBeth or being held under their custody, care or control.” App. 11. As requested, the District Court issued a warrant of arrest commanding the Marshal of the United States for the Southern District of Florida “to take into your possession the portions of said vessel which have been in the possession or are in the possession of L. Ross Morrell and/or James McBeth, or under their custody, care or control and to bring said portions of said vessel within the jurisdiction of this Honorable Court and transfer possession of same to the substitute custodian appointed in this action.” Id., at 41-42. It is this process from which the State contends it is immune under the Eleventh Amendment.
It is clear that the process at issue was directed only at state officials and not at the State itself or any agency of the State. Neither the fact that the State elected to defend on behalf of its agents, nor the fact that the District Court purported to adjudicate the rights of the State, deprived the federal court of jurisdiction that had been properly invoked over other parties. See Alabama v. Pugh, 438 U. S. 781; n. 20, supra. The process thus is not barred by the Eleventh Amendment as a direct action against the State.
B
The second question that must be considered is whether the state officials named in the warrant acted without legitimate authority in withholding the property at issue. In Treasure Salvors’ first response to the State’s Eleventh Amendment argument, it contended:
“If the Division of Archives were allowed to retain this property, its officials would be acting outside the scope of their authority under state law since the state statute under which they claim [does] not apply outside the states territory. The rationale of Home Tel. & Tel. Co. v. Los Angeles, [227 U. S. 278 (1913),] prohibits this result since to allow such action would be to deprive Treasure Salvors of their property without due process in violation of the Fourteenth Amendment to the Constitution of the United States.” Record 472.
Thus from the outset, Treasure Salvors has asserted that state officials do not have valid statutory authority to hold the property at issue.
In Larson v. Domestic & Foreign Commerce Corp., 337 U. S. 682, this Court held that the actions of a federal official in withholding the delivery of goods pursuant to his interpretation of a disputed provision of a contract constituted at most a tortious deprivation of property. The proper remedy for the plaintiff was not an action in district court to compel delivery, but a suit for breach of contract in the Court of Claims. Actions of the Government official pursuant to legitimate contractual authority were neither ultra vires nor unconstitutional.
From the outset of the proceedings at issue here, the State of Florida has advanced the contracts that it executed with Treasure Salvors as a defense to the federal court’s attempt to secure possession of the artifacts held by the named state officials. It is noteworthy, however, that the State has never argued that the contracts conferred upon the State a right of ownership in the artifacts; the contracts simply “determined the rights and obligations of the contracting parties....” App. 44. The State has argued that the contracts are valid and “in no way affected” by the decision of this Court in United States v. Florida, 420 U. S. 531. App. 44.
We are not called upon in this case to determine “the rights and obligations” of two parties to a contract. The issue presented is whether state officials had authority to refuse to surrender possession of the artifacts to the District Court. The salvage contracts are not relevant to that question unless they provide a basis upon which the officials may claim a right to withhold possession of the property. Unless the contracts determine rights of the parties to the property, they are collateral to the issue before us.
It is apparent that the State does not have even a colorable claim to the artifacts pursuant to these contracts. The contracts did not purport to transfer ownership of any artifacts to the State; they permitted Treasure Salvors “to conduct underwater salvage from and upon certain submerged sovereignty lands of and belonging to the State of Florida,” id., at 20-21, “for the purpose of salvaging abandoned vessels or the remains thereof... which abandoned material is the property of the State of Florida.” Id., at 22 (emphasis added). The contracts provided for the performance of services on property that was believed to belong in toto to the State of Florida, in exchange for which the State agreed to “award to the Salvager seventy-five percent (75%) of the total appraised value of all material recovered....” Id., at 38. The State did not “yield” its claim to 75% of the artifacts in order to receive an undisputed right to the remaining 25%; the State agreed to pay Treasure Salvors the equivalent of 75% of the proceeds in compensation for the difficult and expensive work undertaken by Treasure Salvors in retrieving from the floor of the ocean property that was believed to belong to the State.
The salvage contracts might well provide a basis for a claim to the property by Treasure Salvors; for the contracts did purport to transfer a portion of the artifacts from the State to Treasure Salvors in compensation for the latter’s services. Treasure Salvors does claim a right to ownership, but based entirely on the fact that it was the finder of abandoned property and therefore entitled to the property independently of the contracts. Thus neither party’s rights to ownership is affected in any way by the salvage contracts; whether the contracts are valid or not, they provide no authority for the refusal of state officials to surrender possession of the artifacts.
The authority of state officials to claim the artifacts was derived solely from Fla. Stat. §267.061(1)(b) (1974), which provided:
“It is further declared to be the public policy of the state that all treasure trove, artifacts and such objects having intrinsic or historical and archaeological value which have been abandoned on state-owned lands or state-owned sovereignty submerged lands shall belong to the state with the title thereto vested in the division of archives, history and records management of the department of state for the purpose of administration and protection.” (Emphasis added.)
This Court has determined, however, that the Atocha was not found on “state-owned sovereignty submerged lands.” Rather, it was discovered on the Outer Continental Shelf of the United States, beneath international waters.
No statutory provision has been advanced that even arguably would authorize officials of the Division of Archives to retain the property at issue. Throughout this litigation, the State has relied solely on the contracts that it executed with Treasure Salvors as a defense to the federal court’s process; those contracts were predicated entirely on a state statute that on its face is inapplicable in this case. Actions of state officials in holding property on the assumption that it was found on state land and/or that reason belongs to the State— when it is undisputed that the property was not found on state land — is beyond the authority of any reasonable reading of any statute that has been cited to us by the State.
As recognized in Larson, “action of an officer of the sovereign (be it holding, taking or otherwise legally affecting the plaintiff’s property)” that is beyond the officer’s statutory authority is not action of the sovereign, 337 U. S., at 701; a suit for specific relief against the officer is not barred by the Eleventh Amendment. This conclusion follows inevitably from Ex parte Young. If conduct of a state officer taken pursuant to an unconstitutional state statute is deemed to be unauthorized and may be challenged in federal court, conduct undertaken without any authority whatever is also not entitled to Eleventh Amendment immunity.
If a statute of the State of Florida were to authorize state officials to hold artifacts in circumstances such as those presented in this case, a substantial constitutional question would be presented. In essence, the State would have authorized state officials to retain property regardless of the manner in which it was acquired, with no duty to provide compensation for a public taking. If the Constitution provided no protection against such unbridled authority, all property rights would exist only at the whim of the sovereign.
Thus, since the state officials do not have a colorable claim to possession of the artifacts, they may not invoke the Eleventh Amendment to block execution of the warrant of arrest. Of course, the warrant itself merely secures possession of the property; its execution does not finally adjudicate the State’s right to the artifacts. See Tindal v. Wesley, 167 U. S., at 223. In ruling that the Eleventh Amendment does not bar execution of the warrant, we need not decide the extent to which a federal district court exercising admiralty in rem jurisdiction over property before the court may adjudicate the rights of claimants to that property as against sovereigns that did not appear and voluntarily assert any claim that they had to the res.
C
Finally, it is clear that the relief sought in this case is consistent with the principles of Edelman v. Jordan, 415 U. S. 651. The arrest warrant sought possession of specific property. It did not seek any attachment of state funds and would impose no burden on the state treasury.
This case is quite different from In re New York (I), 256 U. S. 490, and In re New York (II), 256 U. S. 503, relied on by the State. In In re New York (I), the plaintiff brought an action in federal court to recover damages caused by canal boats chartered by the State of New York. Pursuant to admiralty practice, the action was brought in rem against the vessels themselves. The owner of the vessels answered the complaint, contending that the action should be directed against the Superintendent of Public Works of the State of New York. The District Court agreed and ordered the Superintendent to appear and answer; in the event that he could not be found the court directed that “the goods and chattels of the State of New York used and controlled by him” should be attached. 256 U. S., at 496.
The Attorney General of the State appeared on behalf of the Superintendent and asserted the Eleventh Amendment as a defense to the action. This Court held that the District Court lacked jurisdiction to proceed against the Superintendent. The Court noted that “the proceedings against which prohibition is here asked have no element of a proceeding in rem, and are in the nature of an action in personam against Mr. Walsh, not individually, but in his capacity as Superintendent of Public Works of the State of New York,” id., at 501; moreover, “[t]here is no suggestion that the Superintendent was or is acting under color of an unconstitutional law, or otherwise than in the due course of his duty under the constitution and laws of the State of New York.” Id., at 502. The Court concluded: “In the fullest sense, therefore, the proceedings are shown by the entire record to be in their nature and effect suits brought by individuals against the State of New York, and therefore — since no consent has been given — beyond the jurisdiction of the courts of the United States.” Ibid.
In In re New York (II), the plaintiff filed an action in admiralty to recover damages caused by the negligent operation of a canal boat owned by the State of New York. The action was brought in rem and the vessel was arrested. This Court held, as it had in In re New York (I), that the federal court lacked jurisdiction to adjudicate the claim. In broad language urged upon us here, the Court stated
Question: What state is associated with the petitioner?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
26. Massachusetts
27. Michigan
28. Minnesota
29. Mississippi
30. Missouri
31. Montana
32. Nebraska
33. Nevada
34. New Hampshire
35. New Jersey
36. New Mexico
37. New York
38. North Carolina
39. North Dakota
40. Northern Mariana Islands
41. Ohio
42. Oklahoma
43. Oregon
44. Palau
45. Pennsylvania
46. Puerto Rico
47. Rhode Island
48. South Carolina
49. South Dakota
50. Tennessee
51. Texas
52. Utah
53. Vermont
54. Virgin Islands
55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer:
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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.
CENTRAL GREYHOUND LINES, INC. v. MEALEY et al.
No. 14.
Argued October 13, 1947.
Decided June 14, 1948.
Tracy H. Ferguson argued the cause for appellant. With him on the brief were George H. Bond and Edward Schoeneck.
John C. Crary, Jr., Assistant Attorney General of New York, argued the cause for appellees. With him on the brief were Nathaniel L. Goldstein, Attorney General, Wendell P. Brown, Solicitor General, and Irving I. Wax-man, Assistant Attorney General.
Mr. Justice Frankfurter
delivered the opinion of the Court.
This is a proceeding arising out of a determination by the Tax Commission of the State of New York, sustained by the courts of the State, whereby § 186-a of the New York Tax Law was construed to impose a tax on appellant’s gross receipts from transportation between points within the State but over routes that utilize the highways of Pennsylvania and New Jersey. The appellant contends, against contrary conclusions below, that since the taxed transportation was interstate commerce, New York may not constitutionally tax the gross receipts from such transportation. In any event, it submits that the State may validly tax only so much of these gross receipts as are attributable to the mileage within the State. Before dealing with these issues, we must dispose of an objection to our right to deal with them.
The State urges that the constitutional claims here pressed by the appellant were not passed upon by the New York Court of Appeals. The record does not sustain this challenge to our jurisdiction. The constitutional issues were undeniably raised before the State Tax Commission and on review before the Appellate Division of the Supreme Court, 266 App. Div. 648. The suggestion that these issues were not before the Court of Appeals is based on its statement that the question urged there was “not one of constitutional taxing power but of statutory construction.” 296 N. Y. 18, 24. But the court proceeded to pass upon the constitutional issues and expressly held that “there is no constitutional objection to taxation of the total receipts here. This is not interstate commerce . . . .” 296 N. Y. at 25. Its amended re-mittitur stated explicitly that a question arising under the Commerce Clause of the Constitution “was presented and passed upon,” and that in sustaining the tax the court “held that the aforesaid statute as so construed is not repugnant to that provision of the Federal Constitution.” This amendment was not a retrospective injection of a non-existent federal question, but a formal certification that a federal claim had been presented and was adjudicated by the Court of Appeals. It is properly here for review. § 237 (a) of the Judicial Code, 28 U. S. C. § 344 (a).
This case serves to remind once more that courts do not adjudicate abstractions, such as, “What is interstate commerce?” Also, it again illustrates that even if it be found that certain transactions in fact constitute interstate commerce, such conclusion does not answer the further inquiry whether a particular assertion of power by a State over such transactions offends the Commerce Clause.
It is too late in the day to deny that transportation which leaves a State and enters another State is “Commerce . . . among the several States” simply because the points from and to are in the same State. Hanley v. Kansas City Southern R. Co., 187 U. S. 617; Western Union Tel. Co. v. Speight, 254 U. S. 17; Missouri Pacific R. Co. v. Stroud, 267 U. S. 404. In reaching the opposite conclusion the State court relied upon three decisions of this Court: Lehigh Valley R. Co. v. Pennsylvania, 145 U. S. 192; Ewing v. Leavenworth, 226 U. S. 464; New York ex rel. Cornell Steamboat Co. v. Sohmer, 235 U. S. 549. The Ewing case was based on the Lehigh Valley case; the Cornell Steamboat case relied on the Ewing and the Lehigh Valley decisions. The holding in the Lehigh Valley case was defined with precision by Mr. Justice Holmes in the Hanley case. He accounted for some State decisions which disregarded interstate commerce as a matter of fact, tested by the actual transaction, as “made simply out of deference to conclusions drawn from Lehigh Valley Railroad Co. v. Pennsylvania, 145 U. S. 192, and we are of opinion that they carry their conclusions too far.” He pointed out that in the Lehigh Valley case “the tax 'was determined in respect of receipts for the proportion of the transportation within the State.’ 145 U. S. 201. Such a proportioned tax had been sustained in the case of commerce admitted to be interstate.” Hanley v. Kansas City Southern R. Co., supra, at 621. This limited scope of the Lehigh Valley case was the basis of decision in United States Express Company v. Minnesota, 223 U. S. 335. In that case, the Minnesota Supreme Court had interpreted the Lehigh Valley decision “as allowing a recovery of taxes upon that proportion of the earnings derived from the carriage wholly within the state. This seems to us the safer rule, and avoids any question of taxing interstate commerce, and we adopt and apply it to this case. Nine per cent, of the taxes recovered on this class of earnings should be deducted from the amount of the recovery.” 114 Minn. 346, 350. On writ of error to the Supreme Court of Minnesota, this Court upheld the State court’s application of the Lehigh Valley decision. 223 U.S. 335, 341-42.
In view, however, of some contrariety of views to which the opinion in the Lehigh Valley case has given rise, it calls for a more candid consideration than merely quoting phrases from it congenial to a particular decision. The Lehigh Valley case was this. The Lehigh Valley Railroad Company attacked the validity of a Pennsylvania statute taxing the company’s gross receipts from its line between Mauch Chunk, Pennsylvania, and Phillipsburg, New Jersey. The Pennsylvania Railroad operated a connecting line between Phillipsburg and Philadelphia. The Lehigh and the Pennsylvania had arranged for continuous transportation of through passengers and freight between Mauch Chunk and Philadelphia. The trial court had found, as appears from the record, that the “total receipts from this transportation, seven per cent, of which were collected by the Lehigh Valley Railroad Company at point of shipment and the remainder by the Pennsylvania Railroad Company at point of destination, were apportioned between the companies upon a mileage basis — that is to say, each company’s share was in the proportion that the number of miles carried by it bore to the total number of miles carried.” It sustained the tax on the ground that the transportation was in substance “purely internal.” The Supreme Court of Pennsylvania affirmed on the trial court’s opinion. Lehigh Valley R. Co. v. Commonwealth, 1 Monag. 45, 17Atl. 179.
When the case got here, the Lehigh Valley contended that the transportation between Mauch Chunk and Phil-lipsburg constituted interstate commerce and therefore beyond the taxing power of Pennsylvania, because Phil-lipsburg, while on the Delaware River border between Pennsylvania and New Jersey, was in New Jersey and reached by the railroad via an interstate bridge. Pennsylvania, on the other hand, ignoring the stretch over the interstate bridge (apparently on the theory of de minimis) insisted that the gross receipts were deemed to be “wholly from traffic within the state” because so treated by the railroad itself. This was based on the fact that the Lehigh Valley and the Pennsylvania Railroad had apportioned the receipts from their through traffic, and the amount of the gross receipts which Pennsylvania taxed was the proportion which the railroads inter se attributed to the Lehigh Valley as its share of the earnings within Pennsylvania. This fiscal arrangement between the two railroads is the explanation and justification for the statement in this Court’s opinion that “The tax under consideration here was determined in respect of receipts for the proportion of the transportation within the State.” 145 U. S. at 201. And so, naturally enough, in the Hanley case the Court called the tax which had been sustained in the Lehigh Valley case “a proportioned tax,” and as such it “had been sustained in the case of commerce admitted to be interstate.” Hanley v. Kansas City Southern R. Co., supra, at 621.
In support of the proposition that “a proportioned tax had been sustained in the case of commerce admitted to be interstate” the Hanley case invoked Maine v. Grand Trunk R. Co., 142 U. S. 217. Unfortunately, the opinion in Lehigh Valley did not rely on that case. It did not even mention it. This silence is explicable by the fact that only a few months before, in the same term, the Court had sharply divided on this very issue in the Grand Trunk case. In the Lehigh Valley case Mr. Chief Justice Fuller spoke for a unanimous court. One is entitled to infer that such accord was obtainable by not renewing the battle of the Grand Trunk case. It would not be the first time in the history of this Court that agreement could be reached by one mode of reasoning but not by another. Mr. Justice Bradley and his fellow dissenters in the Grand, Trunk case were evidently content to sustain the Pennsylvania tax as a tax on “domestic transportation,” “internal intercourse,” in short as not “interstate commerce,” for thereby they would not bring into question the views so vigorously expressed by them a few months before.
It was reasonable enough to disregard the short distance in which the transportation in the Lehigh Valley case went over the interstate bridge on the Delaware River büt otherwise was wholly in Pennsylvania, and to treat it as de minimis when the railroad’s accounting itself treated the receipts as proportioned. “Regulation and commerce among the States both are practical rather than technical conceptions, and, naturally, their limits must be fixed by practical lines.” Galveston, Harrisburg and San Antonio R. Co. v. Texas, 210 U. S. 217, 225. But to label transportation across an interstate stream “local commerce” for some purposes when it is “interstate commerce” in other relations, see, e. g., Covington & Cincinnati Bridge Co. v. Kentucky, 154 U. S. 204, is to use loosely terms having connotations of constitutional significance. To call commerce in fact interstate “local commerce” because under a given set of circumstances, as in the Lehigh Valley case, a particular exertion of State power is not rendered invalid by the Commerce Clause is to indulge in a fiction. Especially in the disposition of constitutional issues are legal fictions hazardous, because of the risk of confounding users and not merely readers. The kind of confusion to which the Lehigh Valley opinion has given rise results from employing a needless fiction — calling commerce local which in fact is interstate — as a manner of stating that a particular exercise of State power is not invalid even though it affects interstate commerce. The difficult task of determining whether a phase of commerce, concededly interstate, is subject to a particular incidence of State regulation, through taxation or otherwise, is not lessened by calling interstate commerce local commerce in order to sustain its local control. To state this persistent and protean problem of our federalism in the form of a question-begging fiction, is not to answer it.
This brings us to the facts of the case before us. New York claims the right to tax the gross receipts from transportation which traverses New Jersey and Pennsylvania as well as New York. To say that this commerce is confined to New York is to indulge in pure fiction. To do so, does not eliminate the relation of Pennsylvania and New Jersey to the transactions nor eliminate the benefits which those two States confer upon the portions of the transportation within their borders. Neither their interests nor their responsibilities are evaporated by the verbal device of attributing the entire transportation to New York. There is no suggestion here that the interstate routes were utilized as a means of avoiding even in part New York’s taxation. Compare, e. g., Eichholz v. Public Service Commission of Missouri, 306 U. S. 268, and Ryan v. Pennsylvania Public Utility Commission, 143 Pa. Super. 517. We are not dealing with a necessary deviation or a calculated detour. Nor is New York seeking to tax transactions physically outside its borders but so trifling in quantity to the New York commerce, of which they form a part, as to be constitutionally insignificant. New York seeks to tax the total receipts from transportation of which nearly 43% of the mileage lay in New Jersey and Pennsylvania. Transactions which to such a substantial extent actually take place in New Jersey and Pennsylvania cannot be deemed legally to take place in New York.
Of course we are dealing here with “interstate commerce.” Of course Congress did not exceed its power to regulate such commerce when in the Motor Carrier Act of 1935 it explicitly included commerce such as that before us within the scope of that Act: “The term ‘interstate commerce’ means commerce between any place in a State and any place in another State or between places in the same State through another State, whether such commerce moves wholly by motor vehicle or partly by motor vehicle and partly by rail, express, or water.” 49 Stat. 543, 544, 49 U. S. C. § 303 (a) (10). In a case like this nothing is gained, and clarity is lost, by not starting with recognition of the fact that it is interstate commerce which the State is seeking to reach and candidly facing the real question whether what the State is exacting is a constitutionally fair demand by the State for that aspect of the interstate commerce to which the State bears a special relation. See Union Brokerage Co. v. Jensen, 322 U. S. 202, and Bob-Lo Excursion Co. v. Michigan, 333 U. S. 28. Such being the real issue inevitably “nice distinctions are to be expected.” Galveston, Harrisburg and San Antonio R. Co. v. Texas, supra, at 225. But such distinctions would be clearer and more reasonably made if, for instance, a fiat privilege tax applied by a municipality to an express company shipping packages between points within a State, but over routes which for a very short distance pass out of the State, had been frankly sustained on the ground that the tax did not burden interstate commerce in the constitutional sense rather than on the ground that it was not interstate commerce. Compare Ewing v. Leavenworth, supra, with Kirmeyer v. Kansas, 236 U. S. 568. Again, it would have made for a less dialectical, if not more coherent, development of the law to sustain a New York gross receipts tax on a New York corporation, engaged in towing vessels between ports in the State of New York on the Hudson River traversing the New Jersey side but not touching its shore, on the ground that upon the facts of that case, and more particularly New Jersey’s relation to the transactions (very different from those now before us), New York was not burdening interstate commerce, rather than to hold that “transportation between the ports of the State is not interstate commerce, excluded from the taxing power of the State, because as to a part of the journey the course is over the territory of another State.” Compare New York ex rel. Cornell Steamboat Co. v. Sohmer, supra, at 560, with Cornell Steamboat Co. v. United States, 321 U. S. 634.
It is significant that, so far as we are advised, no State other than New York seeks to tax the unapportioned receipts from transportation going through more than one State, (except to an extent so insignificant as to be disregarded), merely because such transportation returns to the State of its origin. If New Jersey and Pennsylvania could claim their right to make appropriately apportioned claims against that substantial part of the business of appellant to which they afford protection, we do not see how on principle and in precedent such a claim could be denied. This being so, to allow New York to impose a tax on the gross receipts for the entire mileage — on the 57.47% within New York as well as the 42.53% without— would subject interstate commerce to the unfair burden of being taxed as to portions of its revenue by States which give protection to those portions, as well as to a State which does not. This is not to conjure up remote possibilities. Pennsylvania’s claim to tax a portion of appellant’s gross receipts from the transportation which New York has taxed is not a matter of speculation. Apparently, Pennsylvania has so taxed since 1931. Penn. Laws 1931, No. 255, as amended by Act of June 5, 1947, No. 204. New York does not deny that Pennsylvania in fact so taxes, though there is dispute as to the meaning of the formula by which she does so. But even if neither Pennsylvania nor New Jersey sought to tax their proportionate share of the revenue from this transportation, such abstention would not justify the taxing by New York of the entire revenue. Freeman v. Hewit, 329 U. S. 249, 256. By its very nature an unapportioned gross receipts tax makes interstate transportation bear more than “a fair share of the cost of the local government whose protection it enjoys.” Id. at 253. The vice of such a tax is that it lays “a direct burden upon every transaction in [interstate] commerce by withholding, for the use of the State, a part of every dollar received in such transactions.” Crew Levick Co. v. Pennsylvania, 245 U. S. 292, 297; see Adams Manufacturing Co. v. Storen, 304 U. S. 307, 311; Freeman v. Hewit, supra; Joseph v. Carter and Weekes Stevedoring Co., 330 U. S. 422.
However, while the New York courts have construed the statute as levying an unapportioned gross receipts tax on this transaction, the entire tax need not fall. The tax may be “fairly apportioned” to the “business done within the state by a fair method of apportionment.” Western Live Stock v. Bureau of Revenue, 303 U. S. 250, 255. There is no dispute as to feasibility in apportioning this tax. On the record before us the tax may constitutionally be sustained on the receipts from the transportation apportioned as to the mileage within the State. See Ratterman v. Western Union Telegraph Co., 127 U. S. 411, 427-28. There is no question as to the fairness of the suggested method of apportionment. Compare Maine v. Grand Trunk R. Co., supra, with New Jersey Bell Telephone Co. v. State Board of Taxes and Assessments, 280 U. S. 338; cf. Wallace v. Hines, 253 U. S. 66. Both appellant and appellee have indicated here that, as a matter of construction, the statute under consideration permits such apportionment, but that is a matter for the New York courts to determine.
The judgment is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.
Mr. Justice Rutledge concurs in the result.
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_r_fiduc
|
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 "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.
JUBAS v. SAMPSELL.
No. 12524.
„ , „ . . United States Court of Appeals Ninth Circuit.
Nov. 14, 1950.
Gendel & Raskoff, Los Angeles, Cal,, for appellant.
Craig, Weller & Laughan, Los Angeles, Cal. (Thomas S. Tobin, Los Angeles, Cal., . ... .. °f counsel), for aPPcllee-
_ATC _. . , STEPHENS, Circuit Judge, ’ J
The court’s Findings of Fact are to the following purport and are unquestioned:
A copartnership composed of Gene L J ‘ f FaíTan. and Leo G- 01son was conducting a retail shoe business under the fictitious name of Fashion Bootery. The copartnership was adjudged a bankrupt and plaintiff-appellee thereafter became Trustee jn Bankruptcy. While yet solvent, the COpartnership sold 1240 pairs of shoes « . , , , £ which were of broken sizes and out of , ^ _ stylc: Tbey had “st betwcen $5'25 and $^*25 per pair and defendant-appellant purchased them for their then value of $1.00 per pair. This purchase and sale constituted 25% of the number of pairs of shoes and 15% of the value of the then held stock in trade. Prior to the sale “all available attempts to sell said shoes in the ordinary retail method of separate Pairs of shocs t0 mdivldual ^tomers had bcen ^successful.” The firm “had been tmable t0 obtam any hl^her or bctter offcr for sald shoes tban ?L0° Per Palr’ which was offered by defendant bercm-”
The California Bulk Sales Law, § 3440 of the Civil Code of California, provides that a sale in bulk of a substantial part oí a stock in trade “otherwise than in the ordinary course of trade and in the regular and usual practice and method of business of the vendor * * * will be conclusively presumed to> be fraudulent and void as against existing creditors * * * ” unless a seven days’ notice of intention is recorded with the county re-J corder. No such notice was recorded. Fagan and Olson were declared bankrupt and the Referee brought timely suit to recover on behalf of the bankrupt estate. The district court held that the goods sold constituted a substantial ■ part of the stock m trade and that it was conclusively fraudulent, and gave judgment for the value of the 1240 pairs of shoes at $1.00 per pair. Defendant appeals.
The sole question here is whether in the circumstances the court erred by holding that the sale was conclusively fraudulent because § 3440 of the Civil Code of California was not complied with.
Appellant claims that the sale was in „ , : j ™ it. j í regular and usual practice and method of , . r ,, , busmess of the vendor and that the merchandise which was the subject of the sale , , . , , was not a substantial part of the vendor s stock in trade. We are of the opinion that these claims cannot be sustained. The “regular and usual practice and method of business of the vendor” cannot be measured by a prevalent custom of merchants which the vendor followed. The vendors herein were retail shoe merchants whose regular and usual practice and method of business . e , , . was selling shoes to those who came into & , the store to buy from the stock m trade J for wear.
The plain meaning of the statute is that when a storekeeper disposes of a substantial part of his stock in trade in bulk, and selling in bulk sales is not the usual and ordinary way in which he conducts his business from day to day, the sale falls within the statute.
The Findings of Fact to the effect , v. . . .. . , , that the shoes m suit were m the stock in trade and constituted 25% in quantity and 15% in value of the whole stock supports the conclusion that the part sold was a substantial part of the whole. See Schainman v. Dean, 9 Cir., 1928, 24 F.2d 475 and Markwell & Co. v. Lynch, 9 Cir., 1940, 114 F.2d 373, 375.
Affirmed,
Question: What is the total number of respondents in the case that fall into the category "fiduciaries"? Answer with a number.
Answer:
|
sc_caseorigin
|
095
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York.
CUNNINGHAM v. HAMILTON COUNTY, OHIO
No. 98-727.
Argued April 19, 1999
Decided June 14, 1999
Thomas, J., delivered the opinion for a unanimous Court. Kennedy, J., filed a concurring opinion, post, p. 210.
Thomas C. Goldstein argued the cause for petitioner. With him on the briefs were Jonathan D. Schiller and Teresa L. Cunningham.
John J. Arnold argued the cause for respondent. With him on the brief were Carl J. Stick and Shannon M. Reynolds.
Justice Thomas
delivered the opinion of the Court.
Federal courts of appeals ordinarily have jurisdiction over appeals from “final decisions of the district courts.” 28 U. S. C. § 1291. This case presents the question whether an order imposing sanctions on an attorney pursuant to Federal Rule of Civil Procedure 37(a)(4) is a final decision. We hold that it is not, even where, as here, the attorney no longer represents a party in the case.
I
Petitioner, an attorney, represented Darwin Lee Starcher in a federal civil rights suit filed against respondent and other defendants. Starcher brought the suit after his son, Casey, committed suicide while an inmate at the Hamilton County Justice Center. The theory of the original complaint was that the defendants willfully ignored their duty to care for Casey despite his known history of suicide attempts.
A Magistrate Judge oversaw discovery. On May 29, 1996, petitioner was served with a request for interrogatories and documents; responses were due within 30 days after service. See Fed. Rules Civ. Proe. 33(b)(3), 34(b). This deadline, however, passed without compliance. The Magistrate Judge ordered the plaintiff “by 4:00 p.m. on July 12, 1996 to make full and complete responses” to defendants’ requests for interrogatories and documents and further ordered that four witnesses — Rex Smith, Roxanne Dieffenbach, and two individual defendants — be deposed on July 25, 1996. Starcher v. Correctional Medical Systems, Inc., No. C1-95-815 (SD Ohio, July 11, 1996), p. 2.
Petitioner failed to heed the Magistrate Judge’s commands. She did not produce the requested documents, gave incomplete responses to several of the interrogatories, and objected to several others. Flouting the Magistrate Judge’s order, she noticed the deposition of Rex Smith on July 22, 1996, not July 25, and then refused to withdraw this notice despite reminders from defendants’ counsel. And even though the Magistrate Judge had specified that the individual defendants were to be deposed only if plaintiff had complied with his order to produce “full and complete” responses, she filed a motion to compel their appearance. Respondent and other defendants then filed motions for sanctions against petitioner.
At a July 19 hearing, the Magistrate Judge granted the defendants’ motions for sanctions. In a subsequent order, he found that petitioner had violated the discovery order and described her conduct as “egregious.” App. to Pet. for Cert. 9a. Relying on Federal Rule of Civil Procedure 37(a)(4), the Magistrate Judge ordered petitioner to pay the Hamilton County treasurer $1,494, representing costs and fees incurred by the Hamilton County prosecuting attorney as counsel for respondent and one individual defendant. He took care to specify, however, that he had not held a contempt hearing and that petitioner was never found to be in contempt of court.
The District Court affirmed the Magistrate Judge’s sanctions order. The court noted that the matter “ha[d] already consumed an inordinate amount of the Court’s time” and described the Magistrate’s job of overseeing discovery as a “task assuming] the qualities of a full time occupation.” App. to Pet. for Cert. 10a. It found that “[t]he Magistrate Judge did not err in concluding that sanctions were appropriate” and that “the amount of the Magistrate Judge’s award was not contrary to law.” Id., at 11a. The District Court also granted several defendants’ motions to disqualify petitioner as counsel for plaintiff due to the fact that she was a material witness in the ease.
Although proceedings in the District Court were ongoing, petitioner immediately appealed the District Court’s order affirming the Magistrate Judge’s sanctions award to the United States Court of Appeals for the Sixth Circuit. The Court of Appeals, over a dissent, dismissed the appeal for lack of jurisdiction. Starcher v. Correctional Medical Systems, Inc., 144 F. 3d 418 (1998). It considered whether the sanctions order was immediately appealable under the collateral order doctrine, which provides that certain orders may be appealed, notwithstanding the absence of final judgment, but only when they “are conclusive, . . . resolve important questions separate from the merits, and . .. are effectively unreviewable on appeal from the final judgment in the underlying action.” Swint v. Chambers County Comm’n, 514 U. S. 35, 42 (1995) (citing Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541, 546 (1949)). In the Sixth Circuit’s view, these conditions were not satisfied because the issues involved in petitioner’s appeal were not “completely separate” from the merits. 144 F. 3d, at 424. As for the fact that petitioner had been disqualified as counsel, the court held that “a non-participating attorney, like a participating attorney, ordinarily must wait until final disposition of the underlying ease before filing an appeal.” Id., at 425. It avoided deciding whether the order was effectively unre-viewable absent an immediate appeal but saw “no reason why, after final resolution of the underlying ease ... a sanctioned attorney should be unable to appeal the order imposing sanctions.” Ibid.
The Federal Courts of Appeals disagree over whether an order of Rule 37(a) sanctions against an attorney is immediately appealable under §1291. Compare, e.g., Eastern Maico Distributors, Inc. v. Maico-Fahrzeugfabrik, G.m.b.h., 658 F. 2d 944, 946-951 (CA3 1981) (order not immediately appealable), with Telluride Management Solutions, Inc. v. Telluride Investment Group, 55 F. 3d 463, 465 (CA9 1995) (order immediately appealable). We granted a writ of cer-tiorari, limited to this question, 525 U. S. 1098 (1999), and now affirm.
II
Section 1291 of the Judicial Code generally vests courts of appeals with jurisdiction over appeals from “final decisions” of the district courts. It descends from the Judiciary Act of 1789, where “the First Congress established the principle that only ‘final judgments and decrees’ of the federal district courts may be reviewed on appeal.” Midland Asphalt Corp. v. United States, 489 U. S. 794, 798 (1989) (quoting 1 Stat. 84); see generally Crick, The Final Judgment as a Basis for Appeal, 41 Yale L. J. 589, 548-551 (1932) (discussing history of final judgment rule in the United States). In accord with this historical understanding, we have repeatedly interpreted § 1291 to mean that an appeal ordinarily will not lie until after final judgment has been entered in a case. See, e. g., Quackenbush v. Allstate Ins. Co., 517 U. S. 706, 712 (1996); Digital Equipment Corp. v. Desktop Direct, Inc., 511 U. S. 863, 867 (1994); Richardson-Merrell Inc. v. Roller, 472 U. S. 424, 430 (1985). As we explained in Firestone Tire & Rubber Co. v. Risjord, 449 U. S. 368 (1981), the final judgment rule serves several salutary purposes:
“It emphasizes the deference that appellate courts owe to the trial judge as the individual initially called upon to decide the many questions of law and fact that occur in the course of a trial. Permitting piecemeal appeals would undermine the independence of the district judge, as well as the special role that individual plays in our judicial system. In addition, the rule is in accordance with the sensible policy of avoid[ing] the obstruction to just claims that would come from permitting the harassment and cost of a succession of separate appeals from the various rulings to which a litigation may give rise, from its initiation to entry of judgment. The rule also serves the important purpose of promoting efficient judicial administration.” Id., at 374 (citations and internal quotation marks omitted).
Consistent with these purposes, we have held that a decision is not final, ordinarily, unless it “ ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’ ” Van Cauwenberghe v. Biard, 486 U. S. 517, 521-522 (1988) (quoting Catlin v. United States, 324 U. S. 229, 233 (1945)).
The Rule 37 sanction imposed on petitioner neither ended the litigation nor left the court only to execute its judgment. Thus, it ordinarily would not be considered a final decision under § 1291. See, e. g., Midland Asphalt Corp., supra, at 798; Richardson-Merrell, supra, at 430. However, we have interpreted the term “final decision” in § 1291 to permit jurisdiction over appeals from a small category of orders that do not terminate the litigation. E. g., Quackenbush, supra, at 711-715; Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U. S. 139, 142-147 (1993); Mitchell v. Forsyth, 472 U. S. 511, 524-530 (1985); Cohen, supra, at 545-547. “That small category includes only decisions that are conclusive, that resolve important questions separate from the merits, and that are effectively unreviewable on appeal from the final judgment in the underlying action.” Swint, supra, at 42.
Respondent conceded that the sanctions order was conclusive, Brief in Opposition 11, so at least one of the collateral order doctrine’s conditions is presumed to have been satisfied. We do not think, however, that appellate review of a sanctions order can remain completely separate from the merits. See Van Cauwenberghe, supra, at 527-530; Coopers & Lybrand v. Livesay, 437 U. S. 463, 469 (1978). In Van Cauwenberghe, for example, we held that the denial of a motion to dismiss on the ground of forum non conveniens was not a final decision. We reasoned that consideration of the factors underlying that decision such as “the relative ease of access to sources of proof” and “the availability of witnesses” required trial courts to “scrutinize the substance of the dispute between the parties to evaluate what proof is required, and determine whether the pieces of evidence cited by the parties are critical, or even relevant, to the plaintiff’s cause of action and to any potential defenses to the action.” 486 U. S., at 528. Similarly, in Coopers & Lybrand, we held that a determination that an action may not be maintained as a class action also was not a final decision, noting that such a determination was enmeshed in the legal and factual aspects of the ease. 437 U. S., at 469.
Much like the orders at issue in Van Cauwenberghe and Coopers & Lybrand, a Rule 37(a) sanctions order often will be inextricably intertwined with the merits of the action. An evaluation of the appropriateness of sanctions may require the reviewing court to inquire into the importance of the information sought or the adequacy or truthfulness of a response. See, e. g., Thomas E. Hoar, Inc. v. Sara Lee Corp., 882 F. 2d 682, 687 (CA2 1989) (adequacy of responses); Outley v. New York, 837 F. 2d 587, 590-591 (CA2 1988) (importance of incomplete answers to interrogatories); Evanson v. Union Oil Company of Cal., 619 F. 2d 72, 74 (Temp. Emerg. Ct. App. 1980) (truthfulness of responses). Some of the sanctions in this case were based on the fact that petitioner provided partial responses and objections to some of the defendants’ discovery requests. To evaluate whether those sanctions were appropriate, an appellate court would have to assess the completeness of petitioner’s responses. See Fed. Rule Civ. Proc. 37(a)(3) (“For purposes of this subdivision an evasive or incomplete disclosure, answer, or response is to be treated as a failure to disclose, answer, or respond”). Such an inquiry would differ only marginally from an inquiry into the merits and counsels against application of the collateral order doctrine. Perhaps not every discovery sanction will be inextricably intertwined with the merits, but we have consistently eschewed a case-by-case approach to deciding whether an order is sufficiently collateral. See, e. g., Digital Equipment Corp., 511 U. S., at 868; Richardson-Merrell, 472 U. S., at 439.
Even if the merits were completely divorced from the sanctions issue, the collateral order doctrine requires that the order be effectively unreviewable on appeal from a final judgment. Petitioner claims that this is the ease. In support, she relies on a line of decisions holding that one who is not a party to a judgment generally may not appeal from it. See, e. g., Karcher v. May, 484 U. S. 72, 77 (1987). She also posits that contempt orders imposed on witnesses who disobey discovery orders are immediately appealable and argues that the sanctions order in this ease should be treated no differently.
Petitioner’s argument suffers from at least two flaws. It ignores the identity of interests between the attorney and client. Unlike witnesses, whose interests may differ substantially from the parties’, attorneys assume an ethical obligation to serve their clients’ interests. Evans v. Jeff D., 475 U. S. 717, 728 (1986). This obligation remains even where the attorney might have a personal interest in seeking vindication from the sanctions order. See Richardson-Merrell, supra, at 434-435. In Richardson-Merrell, we held that an order disqualifying an attorney was not an immediately appealable final decision. 472 U. S., at 429-440; see also Flanagan v. United States, 465 U. S. 259, 263-269 (1984) (order disqualifying attorney in criminal case not a “final decision” under § 1291). We explained that “[a]n attorney who is disqualified for misconduct may well have a personal interest in pursuing an immediate appeal, an interest which need not coincide with the interests of the client. As a matter of professional ethics, however, the decision to appeal should turn entirely on the client's interest.” Richardson-Merrell, supra, at 435 (citing ABA Model Rules of Professional Conduct 1.7(b), 2.1 (1985)). This principle has the same force when an order of discovery sanctions is imposed on the attorney alone. See In re Coordinated Pretrial Proceedings in Petroleum Products Antitrust Litigation, 747 F. 2d 1303, 1305 (CA9 1984) (Kennedy, J.). The effective congruence of interests between clients and attorneys counsels against treating attorneys like other nonparties for purposes of appeal. Cf. United States Catholic Conference v. Abortion Rights Mobilization, Inc., 487 U. S. 72, 78 (1988).
Petitioner's argument also overlooks the significant differences between a finding of contempt and a Rule 37(a) sanctions order. “Civil contempt is designed to force the con-temnor to comply with an order of the court.” Willy v. Coastal Corp., 503 U. S. 131, 139 (1992). In contrast, a Rule 37(a) sanctions order lacks any prospective effect and is not designed to compel compliance. Judge Adams captured the essential distinction between the two types of orders when he noted that an order such as civil contempt
“is not simply to deter harassment and delay, but to effect some discovery conduct. A non-party’s interest in resisting a discovery order is immediate and usually separate from the parties’ interests in delay. Before final judgment is reached, the non-party either will have surrendered the materials sought or will have suffered incarceration or steadily mounting fines imposed to compel the discovery. If the discovery is held unwarranted on appeal only after the case is resolved, the non-party’s injury may not be possible to repair. Under Rule 37(a), no similar situation exists. The objective of the Rule is the prevention of delay and costs to other litigants caused by the filing of groundless motions. An attorney sanctioned for such conduct by and large suffers no inordinate injury from a deferral of appellate consideration of the sanction. He need not in the meantime surrender any rights or suffer undue coercion.” Eastern Maico Distributors, 658 F. 2d, at 949-950 (citation and footnote omitted).
To permit an immediate appeal from such a sanctions order would undermine the very purposes of Rule 87(a), which was designed to protect courts and opposing parties from delaying or harassing tactics during the discovery process. Immediate appeals of such orders would undermine trial judges’ discretion to structure a sanction in the most effective manner. They might choose not to sanction an attorney, despite abusive conduct, in order to avoid further delays in their proceedings. Not only would such an approach ignore the deference owed by appellate courts to trial judges charged with managing the discovery process, see Firestone Tire & Rubber Co., 449 U. S., at 374, it also could forestall resolution of the case as each new sanction would give rise to a new appeal. The result might well be the very sorts of piecemeal appeals and concomitant delays that the final judgment rule was designed to prevent.
Petitioner finally argues that, even if an attorney ordinarily may not immediately appeal a sanction order, special considerations apply when the attorney no longer represents a party in the case. Like the Sixth Circuit, we do not think that the appealability of a Rule 37 sanction imposed on an attorney should turn on the attorney’s continued participation. Such a rule could not be easily administered. For example, it may be unclear precisely when representation terminates, and questions likely would arise over when the 30-day period for appeal would begin to run under Federal Rule of Appellate Procedure 4. The rule also could be subject to abuse if attorneys and clients strategically terminated their representation in order to trigger a right to appeal with a view to delaying the proceedings in the underlying ease. While we recognize that our application of the final judgment rule in this setting may require nonparticipating attorneys to monitor the progress of the litigation after their work has ended, the efficiency interests served by limiting immediate appeals far outweigh any nominal monitoring costs borne by attorneys. For these reasons, an attorney’s continued participation in a case does not affect whether a sanctions order is "final” for purposes of § 1291.
We candidly recognize the hardship that a sanctions order may sometimes impose on an attorney. Should these hardships be deemed to outweigh the desirability of restricting appeals to “final decisions,” solutions other than an expansive interpretation of § 1291’s “final decision” requirement remain available. Congress may amend the Judicial Code to provide explicitly for immediate appellate review of such orders. See, e. g., 28 U. S. C. §§ 1292(a)(1)-(3). Recent amendments to the Judicial Code also have authorized this Court to prescribe rules providing for the immediate appeal of certain orders, see §§ 1292(e), 2072(c), and “Congress’ designation of the rulemaking process as the way to define or refine when a district court ruling is ‘final’ and when an interlocutory order is appealable warrants the Judiciary’s full respect.” Swint, 514 U. S., at 48 (footnote omitted). Finally, in a particular case, a district court can reduce any hardship by reserving until the end of the trial decisions such as whether to impose the sanction, how great a sanction to impose, or when to order collection.
* * *
For the foregoing reasons, we conclude that a sanctions order imposed on an attorney is not a “final decision” under § 1291 and, therefore, affirm the judgment of the Court of Appeals.
It is so ordered.
Starcher died sometime after he initiated the suit, and Casey’s sister became the new administrator of Casey’s estate.
He also ordered petitioner to pay $2,432 as costs and fees incurred by other defendants in the case. Those sanctions were later satisfied pursuant to a settlement agreement and are not at issue in this appeal.
Petitioner also sought review of the Sixth Circuit’s decision to apply its appealability ruling to petitioner rather than to apply that ruling only prospectively. We declined to review this question.
Most of our collateral order decisions have considered whether an order directed at a party to the litigation is immediately appealable. E. g., Coopers & Lybrand v. Livesay, 437 U. S. 463, 468-469 (1978). Petitioner, of course, was an attorney representing the plaintiff in the case. It is nevertheless clear that a decision does not automatically become final merely because it is directed at someone other than a plaintiff or defendant. See Richardson-Merrell Inc. v. Koller, 472 U. S. 424, 434-435 (1985) (rejecting, as outside collateral order doctrine, immediate appeal of order disqualiiying counsel). For example, we have repeatedly held that a witness subject to a discovery order, but not held in contempt, generally may not appeal the order. See, e. g., United States Catholic Conference v. Abortion Rights Mobilization, Inc., 487 U.S. 72, 76 (1988); United States v. Ryan, 402 U. S. 530, 533-534 (1971); Cobbledick v. United States, 309 U. S. 323, 327-330 (1940); Webster Coal & Coke Co. v. Cassatt, 207 U. S. 181, 186-187 (1907); Alexander v. United States, 201 U. S. 117, 121 (1906).
In 1970, the prerequisites for imposing sanctions were redesigned “to encourage judges to be more alert to abuses occurring in the discovery process.” Advisory Committee’s Notes on Fed. Rule Civ. Proc. 37(a)(4), 28 U. S. C., p. 748. Before 1970, the Rule required a court, after granting a motion to compel discovery but before imposing sanctions, to find the losing party to have acted without substantial justification. At that time, courts rarely exercised this authority to impose sanctions. See W. Glaser, Pretrial Discovery and the Adversary System 154 (1968). While the amended Rule retained the substantial justification requirement, the placement of the requirement was changed so that the Rule provided that the district court, upon granting the motion to compel, “shall” impose the sanction unless it found that the losing party’s conduct was “substantially justified.” The change in placement signaled a shift in presumption about the appropriateness of sanctions for discovery abuses. See Federal Discovery Rules: Effects of the 1970 Amendments, 8 Colum. J. L. & Soc. Probs. 623, 642 (1972) (“The Advisory Committee reversed the presumption in Rule 37(a)(4) in order to encourage the awarding of expenses and fees wherever applicable”).
Question: What is the court in which the case originated?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
006. U.S. Court of Veterans Appeals
007. U.S. Customs Court
008. U.S. Court of Appeals, Federal Circuit
009. U.S. Tax Court
010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
012. U.S. Consular Courts
013. U.S. Commerce Court
014. Territorial Supreme Court
015. Territorial Appellate Court
016. Territorial Trial Court
017. Emergency Court of Appeals
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022. U.S. Court of Appeals, Third Circuit
023. U.S. Court of Appeals, Fourth Circuit
024. U.S. Court of Appeals, Fifth Circuit
025. U.S. Court of Appeals, Sixth Circuit
026. U.S. Court of Appeals, Seventh Circuit
027. U.S. Court of Appeals, Eighth Circuit
028. U.S. Court of Appeals, Ninth Circuit
029. U.S. Court of Appeals, Tenth Circuit
030. U.S. Court of Appeals, Eleventh Circuit
031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction)
032. Alabama Middle U.S. District Court
033. Alabama Northern U.S. District Court
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035. Alaska U.S. District Court
036. Arizona U.S. District Court
037. Arkansas Eastern U.S. District Court
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039. California Central U.S. District Court
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041. California Northern U.S. District Court
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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
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050. Georgia Middle U.S. District Court
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053. Guam U.S. District Court
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056. Illinois Central U.S. District Court
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143. New York U.S. District Court
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148. Texas U.S. District Court
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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
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161. Eastern Circuit (of the United States)
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164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas
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171. Illinois U.S. Circuit for (all) District(s) of Illinois
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176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
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179. Massachusetts U.S. Circuit for the District of Massachusetts
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184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
212. United States Supreme Court
Answer:
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songer_treat
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B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
Charles W. MABRA, Petitioner-Appellant, v. Ramon L. GRAY, Respondent-Appellee.
No. 74-1690.
United States Court of Appeals, Seventh Circuit.
Argued April 25, 1975.
Decided July 3, 1975.
Rehearing Denied Aug. 11, 1975.
Charles F. Crutchfield, Dennis Mulshine, law student, Notre Dame Law School, Notre Dame, Ind., Joseph P. Bauer, Notre Dame, Ind., for petitioner-appellant.
William A. Platz, Asst. Atty. Gen., Madison, Wis., for respondent-appellee.
Before CUMMINGS, STEVENS and TONE, Circuit Judges.
STEVENS, Circuit Judge.
The question presented is whether appellant’s Fourth Amendment rights were violated by a custodial search of his wife’s purse and person. Currency, identified as the proceeds of a tavern holdup allegedly committed by appellant Mabra, was obtained during the search.
The appeal is from the denial of a petition for a writ of habeas corpus; appellant’s conviction of armed robbery while masked and first degree murder had previously been affirmed by the Wisconsin Supreme Court. State v. Mabra, 61 Wis.2d 613, 213 N.W.2d 545 (1974). Mabra and his wife were apprehended about four hours after the crime, the police investigation having revealed that Mrs. Mabra had borrowed the getaway car from her brother that morning and had not yet returned it. After what was apparently a cursory search for weapons at the time of arrest, Mr. and Mrs. Mabra were taken to the police station in separate vehicles. Thereafter a custodial search of Mrs. Mabra’s purse revealed $40.20, including sixteen $1 bills and the balance in change; a search of her person disclosed an additional $539 in currency; this evidence was admitted over objection at Mabra’s trial. On appeal from the denial of a motion for a new trial, the state Supreme Court held that Mabra had standing to challenge the validity of the search but that since Mrs. Mabra’s arrest was supported by probable cause, the search was proper.
As a matter of federal law, appellant may not assert an alleged violation of his wife’s Fourth Amendment rights as a basis for suppressing the evidence taken from her person. Alderman v. United States, 394 U.S. 165, 171-175, 89 S.Ct. 961, 22 L.Ed.2d 176; Jones v. United States, 362 U.S. 257, 261, 80 S.Ct. 725, 4 L.Ed.2d 697. Appellant argues that his rights were violated because the search of his wife was intended to uncover evidence that could be used against him; therefore, in the language used by Mr. Justice Frankfurter for the Court in Jones, he was “one against whom the search was directed.” 362 U.S. at 261, 80 S.Ct. at 731.
We may assume, even though the record is unclear on the point, that the police hoped to find evidence tending to incriminate Mabra when they searched his wife. Nevertheless, apart from that hope, they had two legitimate reasons for searching her that did not concern him. First, in connection with temporary incarceration at the police station, routine procedure includes a search to determine whether weapons or other dangerous instrumentalities are being brought inside. Second, since the police knew that Mrs. Mabra had procured the getaway car, they had reason to believe that she was involved in the robbery herself. Thus, if the search was designed to obtain evidence relating to the robbery, it was reasonable to expect that such evidence would be used against her. It is not accurate, therefore, to characterize the search as directed against her husband.
This is not a case in which Mabra can argue that there was an illegal invasion of his wife’s privacy for the sole purpose of obtaining evidence against him. We therefore need not squarely hold that he would not have standing to challenge the search in such circumstances, although we note respectable authority for a reading of the phrase “one against whom the search was directed” as merely another way of describing “a victim of a search or seizure,” rather than as an additional category of persons having standing to make the Fourth Amendment objection. See especially Chief Judge Murrah’s opinion in Sumrall v. United States, 382 F.2d 651, 654-655 (10th Cir. 1967), cert. denied, 389 U.S. 1055, 88 S.Ct. 806, 19 L.Ed.2d 853, a case remarkably similar to this one on its facts. See also W. White & R. Greenspan, “Standing to Object to Search and Seizure,” 118 U.Pa.L.Rev. 333, 346-348 & n. 81 (1970). But see Judge Swygert’s concurring opinion in United States v. Lisk, No. 75-1033, 522 F.2d 228 (7th Cir. 1975).
M Neither the custodial search of Mrs. Mabra, nor the seizure from her person of the proceeds of the armed robbery violated Mabra’s Fourth Amendment rights. Cf. United States v. Lisk, No. 75-1033, 522 F.2d 228 (7th Cir. 1975). Accordingly, as a matter of federal law, he had no right to object to the admissibility of that evidence.
. Appellant’s counsel has correctly pointed out that a number of states have held that the deterrent purpose of the exclusionary rule justifies a defendant’s vicarious reliance on a violation of another person’s Fourth Amendment rights as a basis for objecting to the admissibility of illegally seized evidence. The leading case is Judge Traynor’s opinion in People v. Martin, 45 Cal.2d 755, 290 P.2d 855 (1955). See also Wing v. State, 490 P.2d 1376 (Okl.Cr.App.1971), cert. denied, 406 U.S. 919, 92 S.Ct. 1772, 32 L.Ed.2d 119. The Wisconsin Supreme Court also noted that the Model Code of PreArraignment Procedure, Official Draft No. 1, recommended by the American Law Institute on July 15, 1972, has recommended that the existing standing rules be relaxed to accord standing to a spouse of the person searched. See 61 Wis.2d at 621-622 n. 4, 213 N.W.2d 545. However, we are, of course, bound by the decisions of the United States Supreme Court; and it is perfectly clear that in a collateral attack on a state conviction, a federal court may only consider alleged violations of the petitioner’s federal constitutional rights as a basis for relief.
. The relevant sentence in Mr. Justice Frankfurter’s opinion reads as follows:
“In order to qualify as a ‘person aggrieved by an unlawful search and seizure’ one must have been a victim of a search or seizure, one against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of a search or seizure directed at someone else.”
362 U.S. at 261, 80 S.Ct. at 731. The descriptions of (1) “a victim of a search”, and (2) “one against whom the search was directed” may be read as appositive.
. Nor do we believe there is any merit to Ma-bra’s contention that he was denied due process by the failure of the prosecutor to specify in the information which of the three paragraphs in Wis.Stat. § 939.05(2) (Parties to Crime) he was relying upon. State v. Cydzik, 60 Wis.2d 683, 688, 211 N.W.2d 421, 425 (1973).
Question: What is the disposition by the court of appeals of the decision of the court or agency below?
A. stay, petition, or motion granted
B. affirmed; or affirmed and petition denied
C. reversed (include reversed & vacated)
D. reversed and remanded (or just remanded)
E. vacated and remanded (also set aside & remanded; modified and remanded)
F. affirmed in part and reversed in part (or modified or affirmed and modified)
G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to another court
K. not ascertained
Answer:
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songer_respond1_1_4
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I
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". Your task is to determine what subcategory of business best describes this litigant.
Carol Anne KLEEMANN, Individually and as the Executrix and Personal Representative of the Estate of Henry M. Kleemann, as the Guardian of the minors Katherine M. Kleemann and Michael Andrew Kleemann; Susan E. Seiden; S.S. Seiden, Jr., Plaintiffs-Appellants, v. McDonnell DOUGLAS CORPORATION, Defendant-Appellee. Carol Anne KLEEMANN, Individually and as the Executrix and Personal Representative of the Estate of Henry M. Kleemann, as the Guardian of the minors Katherine M. Kleemann and Michael Andrew Kleemann; Susan E. Seiden; S.S. Seiden, Jr., Plaintiffs-Appellees, v. McDonnell DOUGLAS CORPORATION, Defendant-Appellant.
Nos. 89-2032, 89-2047.
United States Court of Appeals, Fourth Circuit.
Argued Oct. 4, 1989.
Decided Dec. 6, 1989.
Rehearing and Rehearing In Banc Denied Dec. 29,1989.
Robert Sibley Cooper, Jr., for plaintiffs-appellants.
Thomas C. Walsh (Douglas E. Winter, Robert W. Shely, Bryan, Cave, McPheeters & McRoberts; George L. Russell, Jr., Robert J. Mathias, Piper & Marbury, on brief), for defendant-appellee.
Before WILKINSON, Circuit Judge, HAYNSWORTH, Senior Circuit Judge, and WILLIAMS, United States District Judge for the Eastern District of Virginia, sitting by designation.
Judge Haynsworth participated in the consideration of this case but died prior to the time the decision was filed. The decision is filed by a quorum of the panel. 28 U.S.C. § 46(d).
WILKINSON, Circuit Judge:
To avoid liability for accidents involving military equipment, military contractors are required to show, inter alia, that their products conformed to reasonably precise specifications approved by the United States. Boyle v. United Technologies Corp., 487 U.S. 500, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988). Here we must decide what conformity means. Plaintiffs allege that the landing gear of an F/A-18 aircraft, in which plaintiffs’ decedent was killed, did not conform to general performance requirements contained in defendant’s original contract with the Navy. We cannot, however, equate as a matter of law a failure of performance with an absence of conformity. Nor do the precatory goals developed for a product at the start of the procurement process establish the “reasonably precise specifications” to which the product must conform. Because the landing gear plainly did not deviate from the ultimate design required by the Navy in the whole of its negotiations with the contractor, we uphold the grant of summary judgment for defendant and affirm the applicability of the government contractor defense to this case.
I.
On December 3, 1985, Captain Henry M. Kleemann, a U.S. Navy pilot, was killed when his F/A-18 aircraft went out of control during landing, left the runway, and overturned. Defendant McDonnell Douglas Corporation (MDC) had designed the F/A-18 for the Navy. The Navy concluded that Captain Kleemann’s accident was caused, in part, by failure of the planing link assembly on the main landing gear. The planing link assembly was designed to assist folding and unfolding the wheel assemblies into and from the wheel well and to lock the wheels appropriately for takeoff and landing. It allows the wheels to “deplane,” or move out of line with the direction of the aircraft, during retraction and extension of the landing gear.
Kleemann’s surviving spouse and children brought a diversity action in the district court of Maryland claiming that the plane was negligently and defectively designed by McDonnell Douglas. Plaintiffs contended that the landing gear did not conform to reasonably precise specifications contained in the Navy’s original contract with MDC. Specifically, they alleged that the landing gear failed to meet the requirement that it withstand normal landing loads without bending, unlocking or causing uncontrolled motion of the aircraft (citing SD-24K-Volume I, and Military Specification MIL-A-8863A).
Defendant, on the other hand, argued that the specifications proffered by plaintiff were not the “reasonably precise specifications” required by Boyle, because such general requirements do not tell the contractor what to build and how to design the product. MDC contended that the accident aircraft incorporated all Navy-approved landing gear designs and modifications through the date of delivery. As such, the landing gear conformed to all precise, quantitative specifications which evolved out of the continuous exchange between MDC and the Navy.
The district court held that the operative question was whether the product conformed to the “ultimate design specifications,” not to qualitative, precatory specifications used in the procurement process. The court concluded that plaintiffs had not presented evidence that the landing gear on the accident aircraft deviated from the ultimate design specifications approved by the Navy. It granted defendant’s motion for summary judgment, and this appeal followed.
II.
We review at the outset the elements of the government contractor defense. Under Boyle v. United Technologies Corp., 487 U.S. 500, 108 S.Ct. 2510, 2518, 101 L.Ed.2d 442 (1988), a contractor is not liable for design defects in military equipment when: (1) the United States approved “reasonably precise specifications;” (2) the equipment conformed to those specifications; and (3) the contractor warned the government about any dangers in the use of the equipment that were known to the contractor but not to the government.
Plaintiffs’ claim is precisely the sort for which the defense was intended. This is true both because of the nature of defendant’s product and the characteristics of the process by which it was designed. At issue here is a discretionary decision involving military hardware in which the government was a substantial participant. See Boyle, 108 S.Ct. at 2517. The F/A-18 aircraft was part of a broad defense initiative involving the Navy’s deployment of a new “CV” class of aircraft carrier. The “CY” carrier had multi-mission capabilities as compared to older, more specialized counterparts. The F/A-18 was designed to provide support for the new carrier, and to replace with a single aircraft the Navy’s clear weather fighters and all-weather fighters. It is hard to imagine a matter more uniquely in the province of the military — and one less appropriate to second-guessing by civilian courts — than the development of a high technology, multi-mission aircraft. See id. at 2517-18.
Similarly, the design details of the F/A-18 illustrate the balancing of military and technological factors, including “the trade-off between greater safety and greater combat effectiveness.” Id. at 2517. For example, the main landing gear at issue here had to absorb extremely high amounts of energy generated upon landing on a carrier. On the other hand, stowage of the gears could not interfere with external weapon storage. These competing concerns required a unique “levered gear” design to provide adequate distance between the extended right and left main landing gears and thereby ensure stability of the aircraft upon landing. The design, developed by MDC and approved by the Navy, employed a planing link assembly to deplane the wheels during retraction and extension of the landing gear.
The design and production of the F/A-18 also illustrate the exchange of views in the procurement process between military officials and the private contractor. See Harduvel v. General Dynamics Corp., 878 F.2d 1311, 1320 (11th Cir.1989); Tozer v. LTV Corp., 792 F.2d 403, 407 (4th Cir.1986). Beginning with bids for what would become the F/A-18, teams of Navy engineers met with each contractor for extended discussions of their submissions. When the Navy selected MDC to develop and build the F/A-18, the final design contracts for the aircraft incorporated MDC’s original proposal as modified during extensive negotiations between the parties. During design development, MDC was required to submit detailed engineering drawings to the Navy for approval. All changes to the design or specifications of the aircraft required Navy approval, including proposals to address problems with the allegedly defective landing gear. The government also maintained an extensive staff of aircraft engineers on site at MDC’s facilities in St. Louis.
It is this salient fact of governmental participation in the various stages of the aircraft’s development that establishes the military contractor defense. Indeed, active governmental oversight is relevant to all three elements of defendant’s burden. Where, as here, the Navy was intimately involved at various stages of the design and development process, the required government approval of the alleged design defect is more likely to be made out. See Ramey v. Martin-Baker Aircraft Co., 874 F.2d 946, 950-51 (4th Cir.1989); Dowd v. Textron Inc., 792 F.2d 409, 412 (4th Cir.1986). Similarly, the Navy’s extensive participation, including reservation of the power to approve or disapprove design modifications, enhances the likelihood of final product conformity. Government involvement in the process also makes it more likely, though not certain, that a sharing of information will occur with respect to potential dangers in the use of the equipment. As a final matter, extensive governmental participation provides tangible evidence of the strong federal interest which justifies the creation of a federal common law defense for government contractors in the first place.
III.
Plaintiffs argue nonetheless that the government contractor defense does not apply because the main landing gear of decedent’s F/A-18 failed to conform to the government’s “reasonably precise specifications” as required by Boyle. There is no evidence, however, that the landing gear failed to conform to the precise quantitative specifications embodied in the totality of documents exchanged between the parties.
A.
Plaintiffs contest the district court’s conclusion that ultimate design specifications are most relevant to the government contractor defense. They contend that the reasonably precise specifications for the main landing gear of the F/A-18 are contained in “Detail Specification for Model F/A-18 Aircraft” (SD-565-1-4), certain incorporated provisions from the Navy aircraft manual (SD24-K Volume I-General Specification For Design and Construction of Aircraft Weapon Systems), three relevant incorporated Military Specifications (MIL-A-8860, 8863A and 8866), and Procurement Specification 74-410051. Plaintiffs allege that these documents require that the landing gear be strong enough to withstand normal landing loads without bending, that it remain locked after extension until unlocked from the cockpit, and that any failure of the landing gear not result in uncontrollable movement of the airplane.
We do not dispute that the documents referenced by plaintiffs embody part of the universe of specifications to which the landing gear must conform. However, plaintiffs fail to appreciate that military hardware does not suddenly spring into being from initial design and procurement specifications, but evolves through drawings, blueprints and mockups agreed upon by the parties. See Harduvel, 878 F.2d at 1320-21; Ramey, 874 F.2d at 948 n. 4-5. The ultimate design of the product is determined not only by the original procurement and contract specifications, but also by specific, quantitative engineering analysis developed during the actual production process.
Indeed, many of the documents cited by plaintiffs reflect no more than the initial, theoretical phase of the development of the F/A-18 landing gear. The general qualitative specifications contained therein were incorporated by reference into the full scale development contracts issued to MDC for the development of the F/A-18. As part of its duties under the contract, MDC used the Navy specifications to develop required structural load parameters which served as a basis for the detailed design of the aircraft. These design loads comprised five volumes of material which were submitted to the Navy. The contract also required MDC to submit detailed design drawings to the Navy for approval as the general specifications became embodied in the actual landing gear. The Navy reserved the right to reject drawings and to require revisions and modifications. These working drawings, and not simply the general qualitative specifications from the procurement stage, comprise “the reasonably precise specifications” contemplated by Boyle.
Where the military procurement process involves this kind of continuous exchange between the contractor and the government, the process itself becomes persuasive evidence of product conformity to precise specifications. Here the government maintained discretion over the design of the product throughout; it did not simply turn over such discretion, and the military decisions inherent therein, to the private contractor. In contrast to the Fifth Circuit’s conclusion in Trevino v. General Dynamics Corp., 865 F.2d 1474, 1487 n. 13-14 (5th Cir.1989), that there had been inadequate review of the design drawings to make out the defense, the Navy here performed extensive review of detailed design drawings submitted by MDC. The Contract Data Requirements List, which laid out required document submissions under the contract, specifically required that Landing Gear Design Reports and Landing Gear Specifications be submitted for Navy review and approval. Moreover, Navy engineers and other personnel participated in the F/A-18 design process through periodic design review meetings including Detail Design Review meetings, Technical Coordination meetings, F/A-18 Specialty Design Reviews, Program Management Reviews, Flight Test Readiness Reviews, and Production Readiness Reviews. Such meetings, of course, bolster the underpinning of the defense, namely that the contractor should not be held liable at law for performing the government’s bidding. See Boyle, 108 S.Ct. at 2518.
It is also undisputed that the Navy exercised complete discretion over suggested design changes in connection with the landing gear design. Between 1979, when F/A-18 test flights began, and 1985, the Navy expressly approved or required a substantial number of landing gear design modifications and rejected others, as evidenced by the Safety Action Record maintained by MDC. For example, in 1983 the Navy declined to implement an MDC proposal for an improved planing link that incorporated a coiled spring design. MDC believed this design would offer greater resistance to the buckling of the planing link. On the other hand, the Navy accepted a proposed modification in 1984 which incorporated a hydraulic restrictor designed to protect the planing link from bending due to excessive torque forces. (Several years later, the Navy did incorporate a coiled spring design similar to the type MDC had proposed in 1983.)
Plaintiffs’ reference to the general failure of F/A-18 landing gear to withstand normal landing loads without bending or unlocking fails to take into account this significant history. Requirements such as an ability to withstand normal loads and prohibitions against operational failures represent little more than the hopes of participants that the project on which they are about to embark will turn out well. General qualitative specifications must be distinguished from the “detailed, precise and typically quantitative specifications for manufacture of a particular military product." Shaw v. Grumman Aerospace Corp., 778 F.2d 736, 745 (11th Cir.1985). These two broad types of specifications often overlap and may even be at cross purposes-for example, design specifications for a complex back-up system may conflict with the qualitative requirements of ease of maintenance, combat effectiveness or cost containment. Id. at 745. Only the detailed, quantitative specifications-and not those calling for such vagaries as a failsafe, simple or inexpensive product-are relevant to the government contractor defense.
In essence, plaintiffs' argument is that the ultimate design of the landing gear failed to produce an aircraft that performed perfectly. Plaintiffs' view would render the government contractor defense illusory. Nonconformance to precise specifications must mean more than that the design does not work in compliance with some "general admonition against an unwanted condition." Harduve4 878 F.2d at 1319 n. 3. A product involved in a design-induced accident would, as a definitional matter, always be deemed not to comply with such generalities since no performance specifications approved by the government would purposely allow a design that would result in an accident. In fact, plaintiffs describe exactly the situation in which the government contractor defense does apply: when the required ultimate military design fails to produce a "reasonably safe" product under state law. Contrary to plaintiffs' assertions, a product conforms to reasonably precise specifications if it satisfies "an intended configuration" even if it "may produce unintended and unwanted results." Id. at 1317. The evidence demonstrates that the alleged defect inhered in the unique design of the landing gear itself-as required by the Navy-and did not result from any deviation from the required military specifications.
B.
Plaintiffs further allege that the Navy had itself concluded that the landing gear did not conform to specifications. They rely upon a Notice of Defect issued by the Navy to MDC in November 1983, in connection with the recurring problem of bending of the planing link assembly on the main landing gear of the F/A-18.
Plaintiffs’ argument fails for several reasons. First, the very purpose of the government contractor defense is to encourage active communication between suppliers of military equipment and military authorities in the development and testing of equipment. McKay v. Rockwell Int’l Corp., 704 F.2d 444, 450 (9th Cir.1983). This cooperative effort must include identification by the parties of actual and potential problems during design and production. If a mere notification of defect precluded application of the government contractor defense, the climate of candid exchange between the government and the contractor would be compromised.
Second, it is undisputed that MDC addressed the problem of the bent planing links in response to the Notice of Defect. In early 1984, MDC and the Navy mutually concluded that the hydraulic system of the aircraft allowed the landing gear to rotate into stowage before the wheel stopped spinning, exposing the planing link to torque forces in excess of design specifications. In response, MDC designed a “hydraulic restrictor” to slow the rotation of the gear after takeoff and before stowage. The Navy approved the design of the hydraulic restrictor and directed that it be incorporated into all new production models, including the aircraft that Kleemann was flying at the time of the accident. On May 24, 1985, the Navy advised MDC that the Notice of Defect was formally closed.
IV.
In sum, we find no evidence that the landing gear deviated from the configuration which was proposed by the Navy and reduced to precise specification by the continuous back and forth exchange between the Navy and MDC. The judgment of the district court is therefore
AFFIRMED.
. The district court also denied a motion to dismiss filed by defendant on the grounds that the action was barred by California’s one-year statute of limitations for wrongful death claims. The court found that Maryland's three-year statute of limitations applied, and we decline to disturb its decision.
. Plaintiffs in their opposition to summary judgment below appear to dispute only whether the landing gear conformed to reasonably precise specifications. However, we are persuaded by our review of the evidence that the Navy also approved those specifications. Further, there is no evidence that MDC failed to warn the Navy of dangers in the design of the landing gear that were unknown to the government.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". What subcategory of business best describes this litigant?
A. auto
B. chemical
C. drug
D. food processing
E. oil refining
F. textile
G. electronic
H. alcohol or tobacco
I. other
J. unclear
Answer:
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songer_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.
Petition of PANAMA TRANSPORT CO. HENLEY et al. v. ELLIOTT et al. THE J. H. SENIOR.
No. 165, Docket 22234.
United States Court of Appeals Second Circuit.
Argued Feb. 13, 1952.
Decided March 3, 1952.
Jack Steinman, New York City, for appellant Mulligan and others.
Thacker, Proffitt, Prizer & Crawley, New York City, for claimants Henley, Green, Figgins, Eaton, Elmore, Torres, Prats and Sullivan, appellants; John C. Crawley and John S. Lockman, New York City advocates.
Jacob Rassner, New York City, and Norman Lustig, Brooklyn, N. Y., for elaimants-appellants Francis J. Mulligan, Public Administrator, and others.
Simone N. Gazan, New York City, for claimant-appellant Louis Pierre, administrator.
Alexander T. Wells, New York City, for appellee, Elliott.
William S. O’Connor, New York City, for appellee, Gehlert.
Elizabeth Robinson, New York City, for appellee, Kjoss.
Monica & Feury, New York City, for appellee, Emcken.
Duer, Strong & Whitehead, New York City, for appellee, Stoltenberg; Walter B. Hall, Elizabeth Robinson and Joseph P. Feury, all of New York City, advocates.
Before AUGUSTUS N. HAND, CHASE and FRANK, Circuit Judges.
PER CURIAM.
The decree is affirmed on opinion of Irving R. Kaufman, J. The motion to dismiss the appeals of claimants Pierre, Mulligan, Derich and Gerhartt is granted because of gross neglect to perfect their appeals.
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_casetyp1_7-2
|
A
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation".
Melvin S. COHEN, Eileen D. Cohen and Edith Phillips, Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
Nos. 89-2792, 89-2793 and 89-2794.
United States Court of Appeals, Seventh Circuit.
Argued Jan. 10, 1990.
Decided Aug. 13, 1990.
Rehearing and Rehearing En Banc Denied Sept. 20, 1990.
Phillip H. Martin, Michael J. McDonnell, Dorsey & Whitney, Minneapolis, Minn., for petitioners-appellants.
Gary R. Allen, Kenneth L. Greene, Mary F. Clark, Dept, of Justice, Tax Div., Appellate Section, Charles S. Casazza, U.S. Tax Court, Peter K. Scott, I.R.S., Washington, D.C., for respondent-appellee.
Before POSNER, RIPPLE, and KANNE, Circuit Judges.
KANNE, Circuit Judge.
Under § 2501(a)(1) of the Internal Revenue Code, a tax is imposed upon an individual’s transfer of property by gift. In Dickman v. Comm’r, 465 U.S. 330, 104 S.Ct. 1086, 79 L.Ed.2d 343 (1984), the Supreme Court held that an interest-free demand loan results in a taxable gift to the debtor for the use of the money lent. The issue presented for our review today — i.e., how the value of such a gift should be measured — was not expressly decided by the Court in Dickman, nor has it been addressed by any other court to date. As framed by the parties, the issue is whether the Commissioner of Internal Revenue may value the taxable gifts which resulted from interest-free demand loans outstanding pri- or to June, 1984, pursuant to the procedures and interest rates adopted in 1985 and set forth in Revenue Procedure 85-46. We conclude that he may and, accordingly, affirm the decision of the Tax Court.
I.
The facts in this case have been stipulated by the parties. Eileen Cohen, together with her husband Melvin Cohen, formed the Alyssa Marie Alpine Trust pursuant to a Trust Agreement for the Benefit of Alyssa Marie Alpine dated October 19, 1977. Alyssa is the granddaughter of Eileen and Melvin Cohen. Edith Phillips, Eileen’s mother and Alyssa’s great-grandmother, later established the Alyssa Marie Alpine Trust No. 2 pursuant to a Trust Agreement dated March 13, 1980. As in the first trust, Alyssa Marie Alpine is designated as the principal beneficiary. In June of 1983, Edith Phillips formed a second trust, the 1983 Cohen Family Trust, which designates certain of her lineal descendants as its principal beneficiaries. Hereinafter, all trusts are referred to collectively as “Trusts.”
In reliance on Crown v. Comm’r, 585 F.2d 234 (7th Cir.1978), Eileen Cohen and Edith Phillips made non-interest bearing demand loans to each of the Trusts during the years from 1979 to 1984. The total annualized amount of the loans made to the Trusts was over $69 million. Pursuant to our decision in Crown, however, neither taxpayer reported the value of these loans as taxable gifts on their gift tax returns for the taxable years at issue.
On February 22, 1984, the United States Supreme Court held in Dickman v. Comm’r, supra, that interest-free demand loans such as those made by petitioner result in taxable gifts of the reasonable value of the use of the money lent. In response to that decision, the IRS issued Information Release 84-60 on May 11, 1984, which provided a uniform procedure for valuing gifts which resulted from interest-free demand loans outstanding prior to January 1, 1984. The Commissioner set the interest rates to be used in valuing those gifts at the lesser of the statutory interest rate for refunds and deficiencies under § 6621 of the Internal Revenue Code or the annual average rate for three-month Treasury Bills. These interest rates were formally published by the IRS on September 16, 1985, in Revenue Procedure 85-46, 1985-2 Cum.Bull. 507 (“Rev.Proc. 85-46”), which set forth the procedures and rules for valuing gifts resulting from loans which were outstanding either prior to June 7, 1984, or after June 6, 1984, but which were repaid or modified prior to September 17, 1984.
Subsequent to and in light of the Supreme Court’s decision in Dickman, petitioner filed amended Forms 709, amended United States Quarterly Gift Tax Returns for the calendar quarters ended on December 31, 1980 and December 31, 1981, and amended Forms 709 for the calendar years ended December 31, 1982 and December 31, 1983. In these amended returns, petitioner reported the interest-free demand loans which she had made to the Trusts as taxable gifts. Petitioner also filed a Form 709 for the 1984 calendar year reporting as taxable gifts the value of the interest-free demand loans she had made to two of the trusts in that year. In valuing these gifts, petitioner, in apparent reliance on the language of Revenue Ruling 73-61, 1973-1 Cum.Bull. 408 (“Rev.Rul. 73-61”), utilized the interest rates specified in §§ 25.2512-5(e) and 25.2512-9(e) of the United States Treasury Regulations. These rates were 6% from the beginning of the taxable period at issue until November 30, 1983, and 10% from December 1, 1983, through the end of the period at issue.
After examination of petitioner’s amended gift tax returns, the Commissioner issued a statutory notice of deficiency. In determining the amount of the deficiency, the Commissioner measured the value of the taxable gifts at issue, as per Rev.Proc. 85-46, by applying the following interest rates to the loan balances outstanding during each calendar year.
Calendar Year Interest Rate
1979 6.0%
1980 11.5%
1981 12.0%
1982 10.6%
1983 8.6%
1984 9.9%
These rates are higher than the hypothetical 6.271% rate of return which the parties have stipulated would have been realized on the loans using the interest rates set forth in §§ 25.2512-5(e) and 25.2512-9(e) of the Treasury Regulations. These interest rates are also higher than the 6.28% average yield which the Trustees obtained through their investment of the proceeds of the interest-free demand loans over the period in question.
Ms. Cohen filed a petition in the United States Tax Court seeking a redetermination of the deficiency alleged by the Commissioner. Relying on the Supreme Court’s decision in Dickman and the limited guidance which that decision gives on the valuation issue, the Tax Court upheld as reasonable the Commissioner’s use of the interest rates prescribed in Rev.Proc. 85-46. Specifically, the Tax Court rejected petitioner’s argument that Rev.Rul. 73-61 required the Commissioner to value the gifts pursuant to the interest rates set forth in §§ 25.-2512-5(e) and 25.2512-9(e) of the Treasury Regulations. The Tax Court also rejected petitioner’s assertion that the actual yield realized by the loan proceeds was the proper measure of the use of the money lent. Finally, the Tax Court held, contrary to petitioner’s assertions, that § 483 of the Internal Revenue Code does not provide a cap on the interest rates which may be imputed to the taxable gifts which result from interest-free demand loans. Petitioner appeals from the Tax Court's decision.
II.
The Tax Court's analysis of the valuation issue which we review today adopted as reasonable the guidance provided by the Commissioner of Internal Revenue in Rev.Proc. 85-46. Revenue Procedure 85-46, issued after the Court's decision in Dickman, sets forth valuation and reporting procedures for taxable gifts which result from certain low-interest and interest-free ("below-market") demand loans. The stated purpose of Rev.Proc. 85-46 is to provide guidance on precisely the issue which was left open by the Court in Dickman. Indeed, referring to Dick-man, the Commissioner stated, "[w]hile the Court did not decide the issue of valuation of such a gift, the Court did state that the right to use money is plainly a valuable right, readily measurable by reference to current interest rates." Rev.Proc. 85-46, 1985-2 Cum.Bull. at 507. Relying on this interpretation of Dickman, the Commissioner proceeded to prescribe that the value of gifts which result from below-market demand loans may be computed by applying the lesser of the interest rate set forth in § 6621 of the Code or the average annual rate for three-month Treasury Bills; two relatively favorable interest rates from the standpoint of the market. Fundamental to petitioner's challenge to the application of Rev.Proc. 85-46 is the assertion that the Commissioner's selection of these rates finds no support in the Supreme Court's Dickman decision. We disagree.
Although the valuation issue was not expressly decided by the Court in Dickman, it was discussed. Specifically, the Court analogized the value associated with the use of money lent in an interest-free demand loan to the value which a hypothetical tenant receives from the rent-free use of property and land. The Court stated, "[t]he value of the use of money is found in what it can produce; the measure of that value is interest-'rent' for the use of the funds." 465 U.S. at 338, 104 S.Ct. at 1091. Elaborating, the Court stated, "[t]he right to use money is plainly a valuable right, readily measurable by reference to current interest rates; the vast banking industry is positive evidence of this reality." Id. Thus, without deciding the valuation issue, the Court did intimate as to how the value of such a gift may be determined. Indeed, speaking directly on the valuation issue, the Court stated, "the Commissioner need not establish that the funds lent did in fact produce a particular amount of revenue; it is sufficient for the Commissioner to establish that a certain yield could readily be secured and that the reasonable value of the use of the funds can be reliably ascertained." 465 U.S. at 344, 104 S.Ct. at 1094-95 n. 14. We, therefore, must determine whether the procedures and interest rates set forth by the Commissioner in Rev.Proc. 85-46 allow for a "reasonable value" to be imputed to the gifts. For the reasons discussed below, we believe that they do.
Two fundamental considerations support the reasonableness of the procedures and interest rates set forth in Rev.Proc. First, Rev.Proc. provides for the uation of these gifts in a manner that is inherently consistent with fundamental gift-valuation principles. As a general rule, the valuation of gift property under 2512 of the Code is to be undertaken pursuant to an objective "willing buyer- willing seller" test. Treasury Regulation which deals precisely with this generalized valuation principle, provides, value of the property is the price at which such property would change hands between a willing buyer and a willing er, neither being under any compulsion to buy or sell it, and both having reasonable knowledge of relevant facts." question. both having reasonable knowledge of relevant facts. The Su preme Court appeared to take cognizance of this fundamental valuation principle in Dickman when it alluded to the fact that the value of the use of money lent is the value of the “rent” which has been forgiven for the use of that money. A reasonable interpretation of this language, in light of the traditional objective manner in which gift property is valued, is that the “rent” alluded to is the interest rate at which persons and/or institutions in the marketplace would negotiate at arm’s length to borrow and/or lend that money. Revenue Procedure 85-46 simply accounts for this reality by providing for the lesser of two very favorable market interest rates to be applied in determining the value of the money lent in a below-market demand loan. We find nothing unreasonable about such an interpretation.
The reasonableness of the guidance provided by the Commissioner on this valuation issue becomes even more apparent in light of Congress’ efforts at dealing with an almost identical issue — i.e., § 7872 of the Code and its treatment for gift-tax purposes of below-market loans outstanding after June 6, 1984. Under § 7872(a), the amount of the gift resulting from the below-market loan is measured by reference to the amount of interest which has been foregone in the transaction. Section 7872(f)(2)(B) provides that the interest rate to be imputed in determining the value of these gifts is “the Federal short-term rate in effect under section 1274(d) for the period in which the amount of foregone interest is being determined, compounded semiannually.” That Federal short-term rate is “the rate determined by the Secretary based on the average market yield ... on outstanding marketable obligations of the United States with remaining periods to maturity of 3 years or less.” § 1274(d)(1)(C). Interestingly, one of the two potentially applicable rates under Rev. Proc. 85-46 — i.e., the rate set forth in § 6621 — utilizes this same Federal short-term rate as a base and differs only by adding two or three percentage points. Nobody suggests that § 7872 is directly applicable to the loans at issue in this case. See note 3, supra. Nevertheless, we refer to § 7872 because we think it significant that Congress has opted to value the below-market loans governed by that section in a manner that is not substantially different from that prescribed by the Commissioner for earlier loans in Rev.Proc. 85-46. Specifically, we note that pursuant to both procedures the value of the gift aspect of the loan is determined by reference to the amount of interest, measured by a relatively favorable market rate, which has been foregone in the below-market transaction. We, like the Commissioner and Congress, believe this to be a reasonable method of valuing the use of the money lent in below-market demand loans.
As is evident from the fact of this appeal, petitioner does not concur in this assessment of the reasonableness of the procedures and interest rates prescribed under Rev.Proc. 85-46. Her primary challenge is to the interest rates applied. Specifically, she argues that since the Commissioner had earlier indicated in Rev.Rul. 73-61 that below-market demand loans would be valued pursuant to the interest rates set forth in Treas.Reg. § 25.2512-5, it is unfair for the Commissioner to retroactively apply the higher interest rates set forth in Rev. Proc. 85-46. The fundamental premise of this “retroactivity” argument is that Rev. Rui. 73-61 affirmatively established that below-market demand loans would be valued under Treas.Reg. § 25.2512-5. As the Commissioner points out, this premise is anything but clear.
In Rev.Rul. 73-61, the Commissioner formally announced the IRS position that it would not follow the decision in Johnson v. United States, 254 F.Supp. 73 (N.D.Tex. 1966), in which the court held that interest-free loans made by a parent to his son were not taxable gifts. Two separate interest-free loans were at issue in Johnson: (1) a $50,000 loan payable in ten years (a “term” loan); and, (2) a $200,000 loan payable on demand (a “demand” loan). Revenue Ruling 73-61 purports to give advice as to the gift-tax consequences of both loans.
Fundamental to the ruling’s discussion of how to compute the value of the gifts resulting from these loans is the maxim that a gift cannot be valued until it is susceptible of valuation — that is, until it is “complete” in the sense that the donor has so parted with dominion and control such that he can no longer alter its disposition. Because the gift resulting from the term loan was “complete” for purposes of valuation on the date that the money and the note exchanged hands, the ruling concludes that the value of that gift is immediately ascertainable under accepted actuarial methods. A general “see” citation to § 25.2512-5 of the regulations is provided. With regard to the gift resulting from the demand loan, however, the ruling correctly points out that valuation on the date of the loan is not possible in light of the fact that the term of the loan was not yet determined. While recognizing that valuation of the gift resulting from the demand loan will eventually be possible once the “term” of the loan is set, the Commissioner makes no analogous reference to § 25.2512-5 of the regulations. The ambiguity which results from this omission has led to the conflict in opinion as to whether Rev.Rul. 73-61 stands for the proposition that below-market demand loans should be valued pursuant to the interest rates set forth in § 25.2512-5.
Petitioner argues that the clear import of the language was that § 25.2512-5 of the regulations was meant to apply to both types of loans. She posits that no rationale supports the conclusion that the Commissioner would choose to apply one set of interest rates to term loans and a different set to demand loans when the only difference between the two is the timing of the valuation determination. Indeed, it would appear that such a variation in rates would be one without meaning. The Commissioner responds that Rev.Rul. 73-61 does not even obligate the Commissioner to apply the interest rates set forth in § 25.2512-5 to term loans. According to the Commissioner, the reference to § 25.2512-5 is simply a “see” reference directing the taxpayer’s attention to an illustrative, though not necessarily applicable, set of actuarial tables. This position also has some merit. Section 25.2512-5 addresses the valuation of a variety of interests in property ranging from reversions to life estates. Revenue Ruling 73-61, however, is silent regarding which interest in property is most analogous to that acquired under an interest-free demand loan and which actuarial table should apply.
We need not resolve this issue, however, in that the manner by which interest-free demand loans may have previously been valued does not alter our resolution of the reasonableness of the interest rates set forth in Rev.Proc. 85-46. Referencing the discretion afforded the Commissioner under § 7805 of the Code, the Supreme Court has stated, “the Commissioner may change an earlier interpretation of the law, even if such a change is made retroactive in effect (citations omitted). This rule applies even though a taxpayer may have relied to his detriment upon the Commissioner’s prior disposition.” Dickman, 465 U.S. at 343, 104 S.Ct. at 1094; see also, Schuster v. Comm’r, 800 F.2d 672 (7th Cir.1986); Yarbro v. Comm’r, 737 F.2d 479 (5th Cir.1984). Petitioner argues that the flexibility afforded the Commissioner under this language is not applicable in this case because Rev.Proc. 85-46 does not “interpret the law” as that phrase is used by the Supreme Court. We believe that Rev.Proc. 85-46 does interpret the law, however. As is evident from its name, Rev.Proc. 85-46 is obviously a statement of procedure regarding the valuation of gifts which result from interest-free demand loans. As a response to the Court’s decision in Dickman, however, it is also apparent that Rev.Proc. 85-46 is an “interpretation” of the newly enunciated principles surrounding the gift-taxa-bility of interest-free demand loans. Thus, even if the application of Rev.Proc. 85-46 does amount to a departure from the practice set forth in Rev.Rul. 73-61, this was a departure which the Commissioner was permitted to pursue.
As an additional challenge to the reasonableness of the application of the interest rates set forth in Rev.Proc. 85-46, petitioner argues that the application of these rates to the loans at issue will create an anomalous situation in which the rates applicable to demand loans (via Rev.Proc. 85-46) will be higher than the rates applicable to térm loans (via Rev.Rul. 73-61) for the period in issue. This, petitioner argues, is contrary to the generally accepted principle that an interest-free term loan is more valuable to the donee than an interest-free demand loan. The reasoning underlying this principle is that a demand loan’s “demand” status makes more difficult for the donee to invest the loan proceeds in a long-term investment yielding more favorable returns. Thus, the interest rate a donee will be willing to pay to borrow funds under a demand loan will be lower than the interest rate he would pay to borrow the same funds under a term loan. See Dickman, 465 U.S. at 338, 104 S.Ct. at 1091. We do not dispute this general principle. We do dispute petitioner’s assertion that Rev.Proc. 85-46 turns this principle on its head, however.
In the gift tax context, the interest rate which is imputed to value the gift resulting from a below-market loan does not impact the donee; to the contrary, the impact is on the donor. The United States Tax Court observed this fact in Arbury v. Comm’r, 93 T.C. 136 (1989), when it stated, “[i]mpo-sition of the Federal gift tax, based upon the true value of the property actually transferred, is not the same as actually charging interest to the borrower....” Id. at 137. Put in its most fundamental form, a donor who loans money in an interest-free demand loan has not charged interest on that loan; nor has the donee paid interest. Rather, the donor has simply made a gift to the donee, the value of which will be determined by the interest rate which is imputed under Rev.Proc. 85-46. Thus, in the gift tax context, the concerns underlying the general principle that demand loans are less valuable to the donee than term loans are not implicated; the donee is paying no interest at all.
Setting the donee aside, the question becomes, “is a demand loan more valuable to the donor than a term loan?” Certainly, the “demand status” of a demand loan permits the donor to recall the loan at any time; a privilege not afforded donors by loans fixed for a specific term. In light of this fact, it is conceivable that the value to the donor of a gift resulting from a demand loan is greater than that which results from a term loan. Whatever may be the relative values to the donor between the gifts which result from the two types of loans (an issue which we care to explore no further), it is clear that the donee is not affected by the interest applied to the donor. It follows, therefore, that the donee, who was the focus of concern in the general principle referred to above, is not affected by our resolution of the reasonableness of the interest rates prescribed in Rev. Proc. 85-46.
As a final challenge to the application of Rev.Proc. 85-46, petitioner argues under this court’s decision in Ballard v. Comm’r, 854 F.2d 185 (7th Cir.1988), that § 483 of the Code applies as a cap on the rate of interest which may be imputed to these gifts. In Ballard, this court held that § 483 applied to limit the interest rate which could be used to value the gift which resulted from a below-market installment sales transaction between a mother and her children. Specifically, we held that § 483 applies to installment sales contracts, not only for income tax purposes, but also for gift tax purposes. Id. at 188. Petitioners argue that since the valuation of the gifts resulting from installment sales contracts are subject to § 483, it follows that the valuation of these interest-free demand loans must also be subject to the interest cap set forth in § 483. What petitioner’s argument ignores, however, is that § 483 is, by its very terms, applicable only to installment sales contracts for the sale or exchange of property. Indeed, the existence of an installment sales contract was the only basis upon which we could apply § 483 in Ballard. Since this case does not involve an installment sales contract, we conclude that neither § 483 nor our decision in Ballard have any bearing on the resolution of the issue presented herein.
III.
For all of the foregoing reasons, we AfFIRM the decision of the Tax Court.
. Eileen Cohen, Melvin Cohen, and Edith Phillips have each appealed the decisions of the Tax Court in their individual cases. For purposes of our review, however, the parties have stipulated that the opinion of the Tax Court in Eileen D. Cohen v. Comm’r of Internal Revenue, 92 T.C. 1039 (1989), will constitute the Tax Court opinion in each of the latter two petitioners' appeals and that our resolution of the issues raised by Eileen Cohen in her appeal will govern. Accordingly, the "petitioner” to which we refer is Eileen Cohen.
. In Crown v. Comm'r, this court held that interest-free demand loans made to family members did not give rise to gift-tax liability. This court's decision was subsequently overruled by Dickman v. Comm’r, supra.
. In the Tax Reform Act of 1984, Congress added § 7872 to the Internal Revenue Code, Pub.L. No. 98-369, Sec. 172(a), 98 Stat. 699. Section 7872, which became effective June 6, 1984, governs the income and gift tax consequences of gifts resulting from interest-free and beiow-mar-ket loans outstanding after June 6, 1984. Since all loans at issue in this case were outstanding prior to June 6, 1984, § 7872 is not directly applicable.
. The Trustees invested the proceeds of the interest-free demand loans primarily in short-term tax-exempt investments and tax-exempt money market funds.
. As the Tax Court correctly concluded, this test does not contemplate the consideration of sub-jectivities, such as the actual yield realized from the loan proceeds which petitioner would en graft upon the valuation question.
. Under § 7872(a)(1), the foregone interest is treated as having been "transferred from the lender to the borrower, and retransferred by the borrower to the lender as interest.”
. Section 25.2512-5 of the regulations provides valuation rules applicable to annuities, life estates, terms for years, remainders, and reversions. At the time Rev.Rul. 73-61 was issued, § 25.2512-5 was applicable to transfers which occurred prior to December 31, 1970. In 1984, § 25.2512-5 was amended to apply to transfers occurring after November 30, 1983. Section 25.2512-9 of the regulations applies to earlier transfers.
. Although not cited by the petitioner, 26 C.F.R. § 601.601 (1989), provides some support for this proposition. Section 601.601(d)(2) defines a "revenue ruling” as “an official interpretation” of the law and a "revenue procedure” as “a statement of procedure that affects the rights or duties of taxpayers_”
Question: What is the specific issue in the case within the general category of "economic activity and regulation"?
A. taxes, patents, copyright
B. torts
C. commercial disputes
D. bankruptcy, antitrust, securities
E. misc economic regulation and benefits
F. property disputes
G. other
Answer:
|
songer_circuit
|
D
|
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.
KRAUSE v. UNITED STATES.
Circuit Court of Appeals, Fourth Circuit.
November 8, 1928.
No. 2731.
Emil T. Mallek, of Baltimore, Md.. (George W. Cameron, of Baltimore, Md., on the brief), for appellant.
A. W. W. Woodcock, U. S. Atty., of' Baltimore, Md.
Before WADDILL and NORTHCOTT, Circuit Judges, and WATKINS, District Judge.
WADDILL, Circuit Judge.
This is an appeal from a judgment of the United States District Court for the district of Maryland,, at Baltimore, sentencing the appellant to-serve two years in the federal penitentiary at Atlanta, after trial and conviction on a. charge of sending obscene matter through, the mails.
The appellant, Victor Krause, was indicted on December 14, 1927, by the grand* jury for the district of Maryland, for a violation-of section 211 of the Criminal Code, as-amended (USCA tit. 18, § 334), in that he-mailed a letter to one Lincoln C. Baird, United States Naval Hospital, Annapolis, Maryland, which letter was alleged to be “obscene,, lewd, lascivious, and filthy,” and “designed by -the said Victor Krause to deprave the morals of the said Lincoln C. Baird,” and to-induce said Baird to commit sodomy and other unnatural and perverted practices with. said Victor Krause. Krause demanded a bill of particulars, which was furnished him by the government, in which the letter itself was quoted, which read as follows:
“Baltimore, June 1.
“My Dear Buddy
“No doubt you will be surprised to hear from me, but I just had to inquire how you are. I have been thinking of you every day since we met, as I enjoyed our meeting, and I hope you could meet me quite often, if convenience presents itself. Now, Buddy, I will be down the chateau this Friday night at 8. So if you can come which I hope you can, I will meet you at the station, at Sevema Park, in the meantime I will try to call for you at the Hospital with a Friend and his car. So try to get your little Pal to come with you no others. I will call you up Friday noon time if every think will be o. k. trusting you are well and happy as Sat morning last, you know. So try to come.
“Tours truly Vietor Krause.
“With sincere regards.”
—with the further statement that the prosecutor would rely upon the letter and paroj. evidence to be produced at the trial to prove the charges set out in the indictment.
The defendant filed a motion to quash the indictment for the reasons that the letter quoted in the bill of particulars, and referred to in the indictment, contained no word which was obscene, lewd, lascivious, or indecent; that the purpose of the statute was to purge the mails of obscene, lewd, lascivious, and indecent matter; and that the statute did not apply to cases which were not embraced in the language employed in it or implied from a fair interpretation of its contents, even though they might involve the same mischief which the statute was designed to suppress. This motion to quash was denied, and a demurrer to the indictment was overruled. The defendant pleaded “Not guilty,” and upon trial was convicted and sentenced.
The prosecution offered the testimony of two witnesses, Brill, a post office inspector, and Baird, the addressee of the letter, at the conclusion of whose testimony the government rested its case. The defendant offered no evidence, and made four requests for a directed verdict in his favor, which were refused, to which action of the court the defendant duly excepted, as he did to sundry other rulings of the court, covered by 21 exceptions regularly and formally taken and filed. Upon the return of a verdict of guilty by the jury, the defendant filed his motion for a new trial, and also moved in arrest of judgment, which motions the court overruled, to all of which actions the defendant duly excepted, as aforesaid.
A general discussion of the subjects covered by the 25 assignments of error need not be entered into, since the real question to be determined in this ease is whether the letter, the subject.of the alleged infraction of the statute, is one that comes within its meaning and purpose. If it is not, then manifestly the jury trial, in which appellant was convicted, should not have been had, but, on the contrary, the case should have been disposed of by sustaining the motion to quash the indictment upon the filing of the bill of particulars furnished.
This statute has frequently been the subject of review by the courts, and it has been found necessary, in ascertaining its meaning, to determine whether the letter under consideration, within and of itself, constitutes an infraction of the statute. This, of course, involves the purposes for which the statute was passed, and whether the same, as an aet of Congress, was not primarily intended as a regulatory measure for the conduct of the mails of the United States, and to keep them free and clear of improper, indecent, lewd, and lascivious matter, alleged to have been referred to in the letter, and to which exception is taken, rather than for the punishment of violations of criminal offenses provided for under the laws of the various states, it may not be said, of course, that the law should be construed only by the specific words used in the statute, but, on the contrary, its meaning must be arrived at from the general language used, the circumstances in which the same was written, and in the light of the purposes of the particular aet, and the evils sought to be remedied by its passage.
The manner and method of disposition of the case, whether upon demurrer to, or motion to quash, the indictment, necessarily depends upon its peculiar facts and circumstances, sight not being lost of the fact that the interpretation of an act of Congress is involved, and that its purpose is to keep the mails free and clear of indecent and improper matter. Unless the aet has been violated by mailing the letter in this ease, no offense within the purview of the statute has been committed, and there is no good reason why . the ease should not have been disposed of in the usual method prescribed for the disposition of criminal cases; that is, by raising the legal questions by preliminary motions at the threshold of the case, and subsequently, if necessary, depending upon the conclusion reached upon such preliminary motions by submitting the ease to the jury. United States v. Rosenberg, 7 Wall. 580, 583, 10 L. Ed. 263; Rosen v. United States, 161 U. S. 29, 30, 16 S. Ct. 434, 40 L. Ed. 606; Swearingen v. United States, 161 U. S. 446, 451, 16 S. Ct. 562, 40 L. Ed. 765; United States v. O’Donnell (C. C.) 165 F. 218; United States v. Benedict (C. C.) 165 F. 221; United States v. Journal Co., Inc. (D. C.) 197 F. 415, 416, 417; Bishop’s Criminal Procedure, §§ 758, 759, 761-763.
In passing upon the motion to quash the indictment upon filing of the bill of particulars, the character of the contents of the letter in question — that is to say, whether it came within the inhibited classes named in the statute — at once arose, and while, where serious doubt exists, arising upon the face of the letter, as to its character, meaning, or purpose, the same might have been submitted to the jury for determination, but not, as here, where the letter upon its face presented no serious question of doubt as to the paper not being one within the purview of the act. Generally it may be said that the determining feature as to the nonmailability of the letter, in the circumstances, is whether the same is obscene, lewd, or lascivious, and by its language would tend to deprave and corrupt the. morals of those into whose hands it might fall, open to such influences, by arousing lascivious- thoughts.
In Swearingen v. U. S., 161 U. S. 446, 450, 451, 16 S. Ct. 562, 563 (40 L. Ed. 765), supra, Mr. Justice Shiras, speaking for the Supreme Court of the United States, said:
“Assuming that it was within the province of the judge to determine whether the publication in question was obscene, lewd and lascivious, within the meaning of the statute, we do not -agree with the court below in thinking that the language and tenor of this newspaper article brought it within such meaning. The offense aimed at, in that portion of the statute we are now considering, was the use of the mails to circulate or deliver matter to corrupt the morals of the people. The words ‘obscene,’ ‘lewd,’ and ‘lascivious,’ as used in the statute, signify that form of immorality which has relation to sexual impurity, and have the same meaning as is given them at common law in prosecutions for obscene libel. As the statute is highly penal, it should not be held to embrace language unless it is fairly within its letter and spirit.
“Referring to this newspaper, article, as found in the record, it is undeniable that its language is exceedingly coarse and vulgar, and, as applied to an individual person, plainly libelous. But we cannot perceive in it anything of a lewd, lascivious and obscene tendency, calculated to corrupt and debauch the mind and morals of those into whose hands it might fall.”
This statute has been frequently under consideration by the courts of this circuit, and the decisions have not always been in harmony one with the other as to the interpretation of the same. We will briefly refer to some of the cases within our knowledge, or which have been brought to our attention.
In United States v. Martin (D. C.) 50 F. 918, Judge Paul, of the Western District of Virginia, held the letter in controversy to be in violation of the postal laws, and overruled a motion to quash and a demurrer to the indictment. Briefly the letter was one written by a married man to an unmarried woman, with whom he had no former acquaintance, soliciting her to take a trip with him from Danville to Lynehburg, Va., and spend the night, proposing to ‘pay her expenses and $5 additional, with the suggestion that, if she would go with him, he would give her a nice time, and she would contribute to his happiness, and that she would never regret it.
In United States v. Lamkin (C. C.) 73 F. 459, Judge Hughes, of the Eastern District of Virginia, sustained a motion to quash the indictment, holding that) while the eharge contained in the indictment was doubtless seeking to use the mails for a heinous offense against society and affecting assignation -and seduction, nevertheless there was nothing indecent in the language, words, or expressions used, or in the propositions as proposed, and that hence they were not indictable under the statute.
United States v. Journal Co., Inc. (D. C.), another decision from the Eastern District of Virginia, 197 F. 415, involved the publication of excerpts from the testimony in a celebrated criminal ease tried in the state court, claimed by reason of the alleged indecent language quoted in the publication to be in violation of the federal statute. This case was an interesting one, and will be found to contain a general discussion of the subject under consideration, with many of the authorities properly applicable. The court sustained the motion, and quashed the indictment, concluding, at page 419:
“The contents of the publication in question being clearly not within the prohibitions of the statute, as hereinbefore shown, the motion to quash the indictment will be sustained.”
The ease of Parish v. United States, 247 F. 40, a decision of this court, upon an appeal from the District Court for the Eastern District of South Carolina, involved the mailing of a certain letter written by the plaintiff in error, Parish, set out in the indictment and alleged to be obscene, lewd, and lascivious. The letter set forth that Parish, a married man, claimed that he, with others, had seen the addressee of the letter, a young woman school-teacher, in a compromising position with a man named, at a time and place mentioned, and requested the addressee to come to see him and have a private talk with him, either at his mill or' at a place to be selected by her, in which event he would keep the whole matter quiet; otherwise, he would inform the school authorities. The defendant in the court below moved to quash the indictment, because the letter in question was not obscene, lewd, or lascivious, nor of an indecent character, in violation of the statute, which motion was overruled, and a trial was duly had, resulting in a verdict and judgment of guilty. The motion to quash was properly,overruled, as the letter was plainly within the inhibited class, indicating upon its face an immoral purpose, going, in effect, to the extent of charging the addressee, a woman of apparent good character, with acts of impropriety, and making, threats of exposure if she did not comply with the sender’s request to meet him privately.
We think, after the most mature thought and careful consideration, that the letter in question is not one that should have been excluded from the mails, nor should it have been omitted from the indictment because of its alleged- indecent character, which omission operated to deny to the defendant the right to make his defense by demurrer to the indictment, and forced him to make the same by motion to quash upon the filing of the bill of particulars. The accused had the right to make his defense by appropriate pleadings, presenting legal questions, without embarrassment by the introduction of testimony seeking to supplement and add to the purpose and meaning of the letter, if upon its face it did not clearly fall within the statute. The letter here was written by one man to another, and does not on its face contain a single obscene, lewd, or lascivious word, or a suggestion of an immoral or indecent character, and in the absence of such obscene word or. indecent suggestion in the letter no such construction can he given thereto. The statute alone creates and defines the crime, and the government cannot, by suggestion, innuendo, averment, or charge, add to its provisions, nor can it widen the statute’s application by adding to the letter or writing something not contained therein.
This would seem to be too apparent to warrant argument, and the present case is a striking illustration of what would result if the view contended for by the government should prevail. In other words, the fact that no violation of the law is contained in • the letter, writing, or document would utterly be ignored, and the trial would turn upon what the government is pleased to term the purpose and intent of those alleged to have violated the statute, not apparent upon the face of such letter or writing. A conviction of an accused would thus be had, not for an offense condemned by the statute, but for something that the government felt was intended, although not provided for therein.
A careful review of the testimony in this ease indicates that this was the effect of what was done at the trial, without a line or syllable showing that the letter was one coming within the meaning of the statute. In other 'words, the indictment was for the misuse of the mails for an alleged immoral purpose by the use of a letter wholly insufficient to support the charge, whereas the trial resulted, in effect, in a conviction for the offense of sodomy, not covered by any federal statute, but by a law of the state of Maryland prescribing punishment for such offense.
Many cases eoulcl be cited, bearing especially on the question of the proper test to be applied in determining whether the particular writing comes within the statute, but only a few need be cited or especially referred to. Swearingen v. U. S., 161 U. S. 446, 16 S. Ct. 562, 40 L. Ed. 765, supra; Dysart v. U. S., 272 U. S. 655, 47 S. Ct. 234, 71 L. Ed. 461; U. S. v. Lamkin (C. C.) 73 F. 459; Knowles v. U. S. (C. C. A.) 170 F. 409; Sales v. U. S. (C. C. A.) 258 F. 597, 598.
In U. S. v. Lamkin, supra, Judge Hughes, while indicating that the letters in question may have been intended for a grossly immoral purpose, said at page 463 of 73 F.:
«* * * qijje starts ¿oes not declare that the letter must be written for an indecent or obscene purpose, but that ■ the letter itself, in its .language, shall be of indecent character. The letters set out in the indictment are not themselves of indecent character, and, if used for such purposes as have been named, Congress has not made sneh purposes criminal. "When a law denounces a letter containing obscene language, and does not denounce a letter decent in terms, but written for an indecent purpose, an indictment founded only upon the obscene purpose cannot be maintained.”
In Sales v. United States, supra, Judge Hook, speaking for the Circuit Court of Appeals for the Eighth Circuit, said at page 598 of 258 F.:
“ * * * * The evil character of the letter or publication declared nonmailable by the clause of the statute under consideration must be reasonably apparent or discernible on its face. * * * Instances of suggestive letters held to offend the statute may be found in Parish v. United States, 247 F. 40, 159 C. C. A. 258, and United States v. Moore (D. C.) 129 F. 159. We approve of those decisions. But we know of no case under this clause of the statute in which it has been held that, if the letter or publication in itself is not objectionable, an undisclosed motive or intent of the writer may be found to convict him. * * * ”
The ease of Dysart v. U. S., 272 U. S. 655, 47 S. Ct. 234, 71 L. Ed. 461, supra, contains the latest expression- of the Supreme Court of the United States on the subject under consideration, and seems quite conclusive of the questions involved here. Mr. Justice McReynolds, speaking for the court, at page 656 of 272 U. S. (47 S. Ct. 234), said:
“The Circuit Court of Appeals — 4 F.(2d) 765 — affirmed a judgment of conviction under an indictment which charged that petitioner deposited in the post office at El Paso, Texas, for conveyance through the mails, an obscene, lewd and lascivious printed card and letter, in violation of section 211, Criminal Code. There were eleven counts, identical in all respects except that eaeh named a different addressee, generally an unmarried woman.
“Copies of the card and letter were set out in hree verba. They were intended to advertise the Queen Ann Private Home for unmarried Women during pregnancy and confinement, who prefer to be away from home during such time, in order ‘to preserve individual character or family reputation.’ The letter, ostensibly intended for a doctor, states: The home is a private plaee for the care and protection of a few unfortunate women ‘until the time when they may return to their homes and friends, free from the burden of their mistake, to become useful members of society.’ “We find homes for infants by adoption when desired, or provide board for them at reasonable rates.’ Only persons recommended by reputable physicians are accepted. And it invites visits by physicians.”
After setting forth the statute, the learned justice further said, at pages 657 and 658 of 272 U. S. (47 S. Ct. 234):
“The Solicitor General, with his usual commendable candor, after calling attention to the facts disclosed by the record and relevant opinions, adds: ‘It is not so easy to believe that circulars of this kind could to any substantial degree undermine morals or induce delinquency. To some such a result would seem altogether fanciful.’
“In Swearingen v. United States, 161 U. S. 446, 450 [16 S. Ct. 562, 40 L. Ed. 765], where the indictment charged that the plaintiff in error mailed a newspaper containing an ‘obscene, lewd and lascivious article,’ contrary to section 3893, Revised Statutes, this court said: ‘The offense aimed at, in that portion of the statute we are now considering, was the use of the mails to circulate or deliver matter to corrupt the morals of thp people. The words “obscene,” “lewd,” and “lascivious,” as used in the statute, signify that form of immorality which has relation to sexual impurity, and have the same meaning as is given them at common law in prosecutions for obscene libel. As the statute is highly penal, it should not be held to embrace language unless it is fairly within its letter and spirit. Referring to this newspaper article, as found in the record, it is undeniable that its language is exceedingly coarse and vulgar, and, as applied to an individual person, plainly libelous. But we cannot perceive in it anything of a lewd, lascivious and obscene tendency, calculated to corrupt and debauch the mind and morals of those into whose hands it might fall.’
“Notwithstanding the inexcusable action of petitioner in sending these advertisements to refined women, it is not possible for us to conclude that the indictment charges an offense within the meaning of the statute as construed by the opinion just cited. The motion to quash should have been sustained by the trial court.”
Our conclusion is that the lower court erred in refusing to quash the indictment and dismiss the prosecution, and that, because thereof, its action should be reversed, its judgment set aside, and the ease remanded to that court to be dismissed. The dis-posa! of the appeal because of the lower court’s failure to quash the indictment makes it unnecessary to consider any of the other assignments of error presented herein.
Reversed and remanded.
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_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.
BRODERICK, Collector of Internal Revenue, v. KEEFE et al.
No. 3513.
Circuit Court of Appeals, First Circuit.
May 14, 1940.
James P. Garland, Sp. Asst, to Atty. Gen. (Samuel O. Clerk, Jr., Asst. Atty. Gen., Sewall Key, Sp. Asst, to Atty. Gen., Arthur L. Jacobs, of Washington, D. C., and J. Howard McGrath, of Providence, R. 1., on the brief), for appellant.
Richard F. Canning, of Providence, R. I. (Andrew P. Quinn, of Providence, R. I., on the brief), for appellees.
Roger B. Hull, of New York City, for National Ass’n of Life Underwriters, ami-cus curiae.
Before MAGRUDER, Circuit Judge, and PETERS and SWEENEY, District Judges.
SWEENEY, District Judge.
This is an appeal from a judgment of the District Court for the District of Rhode Island entered in favor of the plaintiffs below. The question presented is whether, after the exhaustion of the $40,000 exemption provided in the statute, the proceeds of two life insurance policies, taken out by the decedent on his own life, should have been included in his gross estate subject to federal estate tax. Both policies are sufficiently similar to treat them as one.
The facts disclose that John W. Keefe, who died on August 3, 1935, was the owner of two insurance policies for which he paid the annual premiums. In each case, on April 18, 1930, he executed a “Nomination of Beneficiary and Request” in which he designated a “vested, irrevocable beneficiary”, who "if she survives me” was to receive the income during her lifetime, and it was further declared that "her consent in writing is necessary before any subsequent change in the beneficial interest can be made” or any loans secured on the policies. After having designated the primary beneficiary, the insured also designated certain contingent beneficiaries who would receive benefits after the death of the primary beneficiary. As to the contingent beneficiaries, the assured expressly withheld any vested interest and reserved the right to cancel or change the beneficiaries without their consent.
The executrices filed a return, but did not include in the gross estate any value on account of the policies described. In 1937, the Commissioner made a deficiency assessment on this account which was paid. These suits were brought to recover the assessment in whole or in part.
The Revenue Act of 1926, c. 27, 44 Stat. 9, as amended by, section 803(a), Revenue Act 1932 and Section 401 of the Revenue Act of 1934, c. 277, 48 Stat. 680, 26 U. S.C.A.Int.Rev.Acts, p. 227, is as follows:
“Sec. 302. The value of the gross estate of the decedent shall be determined by including the value at the time of his death of all property, real or personal, tangible or intangible, wherever situated — * * *
“(c) To the extent of any interest therein of which the decedent has at any time made a transfer, by trust or otherwise, in contemplation of or intended to take effect in possession or enjoyment at or after his death, or of which he has at any time made a transfer, by trust or otherwise, under which he has retained for his life or for any period not ascertainable without reference to his death or for any period which does not in fact end before his death (1) the possession or enjoyment of, or the right to the income from, the property, or (2) the right, either alone or in conjunction with any person, to designate the persons who shall possess or enjoy the property or the income therefrom; except in case of a bona fide sale for an adequate and full consideration in money or money’s worth. Any transfer of a material part of his property in the nature of a final disposition or distribution thereof, made by the decedent within two years prior to his death, without such consideration, shall, unless shown to the contrary, be deemed to have been made in contemplation of death within the meaning of this title;
“(d) (1) To the extent of any interest therein of which the decedent has at any time made a transfer, by trust or otherwise, where the enjoyment thereof was subject at the date of his death to any change through the exercise of a power, either by the decedent alone or in conjunction with any person, to alter, amend, or revoke, or where the decedent relinquished any such power in contemplation of his death, except in case of a bona fide sale for an adequate and full consideration in money or money’s worth. * * *
“(g) To the extent of the amount receivable by the executor as insurance under policies taken out by the decedent upon his own life; and to the extent of the excess over $40,000 of the amount receivable by all other beneficiaries as insurance under policies taken out by the decedent upon his own life.”
The Government contends, if it is determined that the proceeds of this insurance are not brought into the gross estate by subdivision (g) above, that subdivision (d) covers the proceeds of an insurance policy as well as any other property. We prefer to reach our decision without recourse to subdivision (d). See Walker v. United States, 8 Cir., 83 F.2d 103, and to an opposite conclusion see Pa'ul on Life Insurance and Federal Estate Tax, 52 Harvard Law Review 1051. We can rest our decision in this case squarely on subdivision (g).
The language of Section 302(g) appears to cover much more than the Government claims for it, and seems broad enough to include the proceeds of policies involving no transfer of property in a testamentary sense. See Harvard Law Review, Vol. 52, 1047. However, it has never been the contention of the Treasury Department that subdivision (g) is as broad as this, and, in Treasury Regulations 80, Article 27, it limits the type of policies that are to be included in the gross estate to those where “the decedent possessed at the time of his death any of the legal incidents of ownership”. Since the adoption of this regulation, Congress has failed in its various amendatory acts to change this administrative interpretation. We are therefore hound to follow it. It is the settled rule that the practical interpretation of an ambiguous or doubtful statute that has been acted upon by officials charged with its administration will not be disturbed except for weighty reasons. Brewster v. Gage, 280 U.S. 327, 336, 50 S.Ct. 115, 74 L.Ed. 457. Treasury regulations and interpretations long continued without substantial change, applying to unamended or substantially reenacted statutes, are deemed to have received congressional approval, and have the effect of law.’ Helvering v. Win-mill, 305 U.S. 79, 83, 59 S.Ct. 45, 83 L.Ed. 52.
Section 302(g) and the Treasury Regulations promulgated thereunder seek to compel an estate, after the specified exemption, to pay a tax on proceeds of insurance policies in which the insured had an interest or legal incidents of ownership up to the time of his death. In Chase National Bank v. United States, 278 U.S. 327, 49 S.Ct. 126, 73 L.Ed. 405, 63 A.L.R. 388, the Supreme Court heldy where an insured retained until his death a legal interest in policies which gave him the power of disposition, and there was at his death a shifting of the economic benefits to the beneficiaries free from the exercise of the powers retained during the lifetime of the insured, that such a transfer was a legitimate subject of a transfer of a transfer tax. At page 338, of 278 U.S., at page 129 of 49 S.Ct., 73 L.Ed, 405, 63 A.L.R. 388, the court said: “Termination of the power of control at the time of death inures to the benefit of him who owns the property subject to the power and thus brings about, at death, the completion of that shifting of the economic benefits of property which is the real subject of the tax.”
The gift to the primary beneficiary, although declared to be a full and complete gift to a “vested, irrevocable beneficiary”, was nevertheless expressly made contingent upon the primary beneficiary’s surviving the insured. It was only a life estate. Consequently, it is plain that the event which effectively transferred the life estate to the beneficiary was the death of the insured. Cf. Helvering v. Hallock, 309 U.S. 106, 60 S.Ct. 444, 84 L.Ed. —, 125 A.L.R. 1368; Klein v. United States, 283 U.S. 231, 234, 51 S.Ct. 398, 75 L.Ed. 996. While these cases dealt with Section 302 (c), by parity of reasoning they throw light upon the proper construction of Section 302 (g). The insured retained the power “to cancel or change the interests” of the contingent beneficiaries “without their consent”. Under the power reserved, the insured, in the event of surviving the primary beneficiary, became complete master of the policy and could dispose of it as he pleased.
It follows that as to all the beneficiaries, the death of the insured was the “indispensable and intended event” [309 U.S. 106, 60 S.Ct. 448, 84 L.Ed.-, 125 A.L.R. 1368] which effected the transmission of the estate from the dead to the living. See Klein v. United States, supra. As the court pointed out in the Hallock case the basic purpose of the estate tax is to bring within the gross estate of the transferor that wh'ich he gave “upon a contingency terminable at his death”.
It is to be noted, further, that in the event of the insured’s surviving the primary and contingent beneficiaries, the insured had a reversionary interest in the proceeds of the policy. We are not called upon in this case to decide whether this possibility of reverter, standing alone, would have warranted the inclusion of the proceeds of the policy in the gross estate of the insured. See Bingham v. United States, 296 U.S. 211, 56 S.Ct. 180, 80 L.Ed. 160; Industrial Trust Co. v. United States, 296 U.S. 220, 56 S.Ct. 182, 80 L.Ed. 191; with which compare Helvering v. Hallock, supra.
The powers which this insured retained, and which became extinct at his death, thus effecting a transfer or a possibility of transfer of economic benefits, constituted such a legal interest and were such incidents of ownership as to bring the value of the policies within the gross estate of the insured for estate tax purposes. See Chase National Bank v. United States, supra, and Igleheart v. Commissioner of Internal Revenue, 5 Cir., 77 F.2d 704, 711.
The taxpayer further contends that the insurance proceeds should not be included in the gross estate since the issuance of the policies antedated the effective date of the Revenue Act of 1918, 40 Stat. 1057, and cites Lewellyn v. Frick, 268 U.S. 238, 45 S.Ct. 487, 488, 69 L.Ed. 934, and Bingham v. United States, supra, as authority for the rule that the Act does not apply to. insurance policies issued prior to the effective date of the first taxing statute. We d©' not think that the cases cited by the taxpayer are entitled to. this construction. In. both of them not only were the policies issued prior to the passage of the 1918 statute, but the beneficiaries had also been named long before the passage of that Act. Consequently, the question before the court in both cases was whether the Act applied to policies where the policies had been issued, and the transfer of interest in those policies had been made, before the adoption of the taxing statute. In the Frick case, Mr. Justice Holmes stated that doubts as to the constitutionality of a similar taxing statute could be “avoided by construing the statute as referring only to transactions taking place after it was passed”, and that the “general principle 'that the laws are not to be considered as applying to cases which arose before their passage’ is preserved”. We think that the word “transactions” as used by Mr. Justice Holmes is not directed to the issuance of the policies, but more likely was intended to mean the action which effected the transfer of interest in the insurance from the insured to the beneficiary or assignee. Support for this meaning of the word “transactions” is found in the second ground for the court’s decision in the case of Bingham v. United States, supra, where it said that the principles announced in Helvering v. St. Louis Union Trust Co., 296 U.S. 39, 56 S.Ct. 74, 80 L.Ed. 29, 100 A.L.R. 1239, and Becker v. St. Louis Union Trust Co., 296 U.S. 48, 56 S.Ct. 78, 80 L.Ed. 35, were decisive in favor of the taxpayers, and that those principles “establish that the title and possession of the beneficiary were fixed by the terms of the policies and assignments thereof, beyond the power of the insured to affect, many years before the act here in question was passed”. [296 U.S. 211, 56 S. Ct. 181, 80 L.Ed. 160.]
What effect the decision in Helvering v. Hallock, supra, which rejected the theories announced in the St. Louis cases, would have upon the Bingham case is not determined here. Nevertheless, the basis for the Bingham decision, at least in part, was that the rights of the parties to the transfer of interests were fixed prior to the passage of the taxing statute. In the instant case, the rights of the parties to the transfer of interest were not fixed until after the passage of the Act. There was therefore no imposition of an unexpected liability that, if known, could have been avoided by those concerned, as was found in both the Frick and Bingham cases. The tax imposed being in the nature of a transfer tax and the actual transfer of interests having taken place after the passage of the Act, we can see no reason why the proceeds of the policies should not be included in the gross estate of the deceased. Having found that the insured did retain incidents of ownership, in addition to a possibility of a reverter, we are of the opinion that rhe P'rick and Bingham cases are not controlling.
The judgment of the District Court is reversed, and the case is remanded to that court with directions to enter judgment for the defendant.
I, John W. Keefe, the insured under the aforesaid policy,.do hereby nominate and request that if the said policy becomes a claim by reason of my death, the proceeds due thereunder be retained by the Company in accordance with the conditions and provisions of Instalment Option C and paid as follows:
The interest income shall be paid monthly to my daughter, Gertrude S. Keefe, if she survives me, during her lifetime.
At the death of the survivor of myself and my said daughter the proceeds or principal sum shall be divided and paid in equal lump sum payments to the then surviving issue of my said daughter.
If the survivor of myself and my said daughter is not survived by any issue of my said daughter the proceeds or principal sum shall be divided into equal shares for my other daughters, Alice S. Keefe and Mary R. Keefe, which shares shall be paid as follows:
The shares of such daughters shall be retained under the said Option C and the interest income thereon paid monthly to my said daughters during their respective lives. At the death of either of my said daughters her respective share of the principal and interest shall pass and be paid to the survivor of my said daughters in accordance with the conditions and provisions governing the payment of her respective share. At the death of the survivor of my said daughters the principal sum retained by the Company shall be paid in one sum to the estate of such survivor.
If at the death of the survivor of myself and my said daughter, Gertrude S. Keefe, no issue of my said daughter are then living and one of my said other daughters is not then living, all of the proceeds or principal sum shall be paid to the surviv- or of my said other daughters in accordance with the conditions and provisions governing the payment of such survivor’s share.
If my said daughter, Gertrude S. Keefe, survives me and no issue of hers survive her and neither of my said other daughters survive ier, the principal sum retained by the Company shall be paid in one sum to the estate of my said daughter, Gertrude S. Keefe, at her death.
My said daughter, Gertrude S. Keefe, is herewith nominated as a vested, irrevocable beneficiary, and I declare that her consent in writing is necessary before any subsequent change in the beneficial interest can be made. However, I expressly withhold any vested interest from the contingent beneficiaries named hereunder, and the right is expressly reserved to cancel or change the interests of such contingent beneficiaries without their consent.
It is especially agreed that the right is reserved to myself and my said daughter, Gertrude S. Keefe, to secure loans from the Company on this policy and to assign the same to the Company on the signatures of myself and my said daughter, Gertrude S. Keefe, as collateral security for such loans, without the consent of any contingent beneficiary and without annulling or altering the terms of this nomination and request.
It is understood and agreed that the last survivor of my said daughters shall have the privilege while receiving interest income payments of withdrawing in one sum all of the principal sum retained by the Company. This right of withdrawal shall not pass to, or be exercised by, any attorney, trustee, assignee, or any other person in her behalf. The right to such withdrawal shall not be considered as having been effectively exercised unless the Company shall have received at its home office a written and dated request for withdrawal signed by such daughter entitled to make such withdrawal.
This nomination and request cancels and supersedes any nomination of any and all beneficiaries heretofore made.
The foregoing provisions of this nomination and request shall be null and void if the proceeds due under the said policy or policies at maturity, or at the death of the insured, are less than one thousand dollars, or if all the beneficiaries named herein predecease the insured; and in either event the said proceeds then due shall b<i paid in one lump sum to the executors or administrators of the insured. If the said insured shall be living at the expiration -of the endowment period (if suck period is named in said policy or policies), then said policy or policies and all rights thereunder shall revert to the said insured, unless otherwise provided herein.
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
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sc_adminaction_is
|
B
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether administrative action occurred in the context of the case prior to the onset of litigation. The activity may involve an administrative official as well as that of an agency. To determine whether administration action occurred in the context of the case, consider the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
BENNETT, SECRETARY OF EDUCATION v. NEW JERSEY
No. 83-2064.
Argued January 8, 1985
Decided March 19, 1985
O’Connor, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, White, Blackmun, and Rehnquist, JJ., joined. Stevens, J., filed a dissenting opinion, in which Marshall, J., joined, post, p. 646. Powell, J., took no part in the consideration or decision of the case.
Michael W. McConnell argued the cause for petitioner. With him on the briefs were Solicitor General Lee and Deputy Solicitor General Getter.
Mary Ann Burgess, Assistant Attorney General of New Jersey, argued the cause for respondent. With her on the brief were Irwin I. Kimmelman, Attorney General, Michael R. Cole, First Assistant Attorney General, and Regina A. Murray and Michael J. Haas, Deputy Attorneys General.
Fred N. Fishman, Robert H. Kapp, Norman Redlich, William L. Robinson, and Norman J. Chachkin filed a brief for the Lawyers’ Committee for Civil Rights Under Law as amicus curiae urging reversal.
Justice O’Connor
delivered the opinion of the Court.
The issue presented is whether substantive provisions of the 1978 Amendments to Title I of the Elementary and Secondary Education Act apply retroactively for determining if Title I funds were misused during the years 1970-1972. This case was previously before the Court, and we then held that the Federal Government may recover misused funds from States that provided assurances that federal grants would be spent only on eligible programs. Bell v. New Jersey, 461 U. S. 773 (1983). We expressly declined, however, to address the retroactive effect of substantive provisions of the 1978 Amendments. Id., at 781, n. 6, 782, and n. 7. On remand from our decision, the Court of Appeals for the Third Circuit held that the standards of the 1978 Amendments should apply to determine if funds were improperly expended in previous years. State of New Jersey, Dept. of Ed. v. Hufstedler, 724 F. 2d 34 (1983). We granted certiorari, 469 U. S. 815 (1984), and we now reverse.
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Title I of the Elementary and Secondary Education Act of 1965, Pub. L. 89-10, 79 Stat. 27, as amended, 20 U. S. C. §241a et seq. (1976 ed.), provided federal grants-in-aid to support compensatory education for disadvantaged children in low-income areas. Based on the theory that poverty and low scholastic achievement are closely related, Title I allocated funds to local school districts based on their numbers of impoverished children and the State’s average per-pupil expenditures. H. R. Rep. No. 95-1137, pp. 4, 8 (1978); S. Rep. No. 95-856, p. 5 (1978); see 20 U. S. C. §§241a, 241c(a)(2) (1976 ed.); S. Rep. No. 146, 89th Cong., 1st Sess., 5-6 (1965). Within particular school districts, Title I funds were in turn directed to schools that had high concentrations of children from low-income families. § 241e(a)(l)(A). Once Title I funds reached the level of targeted schools, however, all children in those schools who needed compensatory education services were eligible for the program regardless of family income. H. R. Rep. No. 95-1137, at 4; 45 CFR § 116a.21(e) (1977); 45 CFR § 116.17(f) (1972). Respecting the deeply rooted tradition of state and local control over education, Congress left to local officials the development of particular programs to meet the needs of educationally disadvantaged children. Federal restrictions on the use of funds at the local level sought only to assure that Title I moneys were properly used “to provide specific types of children in specific areas with special services above and beyond those normally provided as part of the district’s regular educational program.” H. R. Rep. No. 95-1137, at 4.
The goal of providing assistance for compensatory programs for certain disadvantaged children while respecting the tradition of state and local control over education was implemented by statutory provisions that governed the distribution of Title I funds. Local school districts determined the content of particular programs, and the appropriate state education agency approved the applications for Title I assistance submitted by local education agencies. 20 U. S. C. § 241e(a) (1976 ed.). After determining that the applications complied with the requirements of federal law, the state education agencies distributed Title I funds to the school districts. §§241e(a), 241g. The state education agencies in turn received grants from the Department of Education upon providing assurances to the Secretary that the local educational agencies would spend the funds only on programs which satisfied the requirements of Title I. Bell v. New Jersey, supra, at 776; 20 U. S. C. §241f(a)(1) (1976 ed.). As noted swpra, we previously held that if Title I funds were expended in violation of the provided assurances, the Federal Government may recover the misused funds from the States.
This case arises from a determination by the Department of Education that respondent New Jersey must repay $1,031,304 in Title I funds that were improperly spent during the years 1970-1972 in Newark, N. J. 461 U. S., at 777. There is no contention that the Newark School District received an incorrect allocation of Title I funds or that funds were not used for compensatory education programs. Instead, the Secretary’s demand for repayment rests on the finding that Title I funds were not directed to the proper schools within the Newark School District. Regulations in effect when the moneys were expended provided that school attendance areas within a school district could receive Title I funds if either the percentage or number of children from low-income families residing in the area was at least as high as the districtwide average. 45 CFR § 116.17(d) (1972). Alternatively, the entire school district could be designated as eligible for Title I services, but only if there were no wide variances in the concentrations of children from low-income families among school attendance areas in the district. Ibid. A federal audit completed in 1975 determined that the New Jersey Department of Education had incorrectly approved grant applications allowing 13 Newark schools to receive Title I funds in violation of these requirements. App. 9-51.
The auditors found that during the 1971-1972 school year, the percentage of children from low-income families for the 13 schools ranged from 13% to 33.5%, while the districtwide average for Newark was 33.9%. Id., at 23-24. Consequently, for that school year the auditors disallowed Title I expenditures totaling $1,029,630. The auditors also found that funds were misused during the 1970-1971 school year, but because of the statute of limitations, only $1,674 remains at issue for that year. App. to Pet. for Cert. 36a-37a. In June 1976, the Department issued a final determination letter to New Jersey demanding repayment of the misused funds. App. 52-58. New Jersey sought further administrative review, and hearings were held before the Education Appeal Board (Board). In those proceedings, New Jersey argued that the Department was not authorized to compel repayment, that the auditors had miscalculated the percentages of children from low-income families, and that the entire Newark School District qualified as a Title I project area under the regulations. App. to Pet. for Cert. 35a-58a. The Board rejected each of these arguments, id., at 37a-58a, and ordered repayment. The Secretary declined to review the Board’s order, which thereby became final. Id., at 59a.
New Jersey then sought judicial review, and the Court of Appeals for the Third Circuit held that the Department did not have authority to issue the order demanding repayment. State of New Jersey, Dept. of Ed. v. Hufstedler, 662 F. 2d 208 (1981). Accordingly, the Court of Appeals did not address arguments made by New Jersey challenging the Department’s determination that funds were misused. Id., at 209. After remand from our decision in Bell v. New Jersey, the State argued for the first time that the 1978 Amendments to Title I, Pub. L. 95-561, 92 Stat. 2143, 20 U. S. C. §2701 et seq., should determine whether the funds were misused during the years 1970-1972. 724 F. 2d, at 36, n. 1. The
Court of Appeals agreed and remanded the case to the Secretary to determine whether the disputed expenditures conformed to the 1978 standards. Id., at 37. We hold that the substantive standards of the 1978 Amendments do not affect obligations under previously made grants, and we reverse. Our holding does not address whether the Secretary correctly determined that Title I funds were misused under the law in effect during the years 1970-1972, and New Jersey may renew its contentions in this regard on remand.
The Court of Appeals based its holding on a presumption that statutory amendments apply retroactively to pending cases. Relying on language from Bradley v. Richmond School Board, 416 U. S. 696 (1974), the Court of Appeals observed that “[a] federal court or administrative agency must ‘apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary.’” 724 F. 2d, at 36, quoting416 U. S., at 711. We conclude, however, that reliance on such a presumption in this context is inappropriate. Both the nature of the obligations that arose under the Title I program and Bradley itself suggest that changes in substantive requirements for federal grants should not be presumed to operate retroactively. Moreover, practical considerations related to the administration of federal grant programs imply that obligations generally should be determined by reference to the law in effect when the grants were made.
As we explained in our first decision in this case, “the pre-1978 version [of Title I] contemplated that States misusing federal funds would incur a debt to the Federal Government for the amount misused.” 461 U. S., at 782. Although our conclusion was based on the statutory provisions, id., at 782-790, we also acknowledged that Title I, like many other federal grant programs, was “much in the nature of a contract.” Pennhurst State School and Hospital v. Halderman, 451 U. S. 1, 17 (1981). “The State chose to participate in the Title I program and, as a condition of receiving the grant, freely gave its assurances that it would abide by the conditions of Title I.” 461 U. S., at 790. A State that failed to fulfill its assurances has no right to retain the federal funds, and the Federal Government is entitled to recover amounts spent contrary to terms of the grant agreement. Id., at 791; see id., at 794 (White, J., concurring). In order to obtain the Title I funds involved here, New Jersey gave assurances that the money would be distributed to local education agencies for programs that qualified under the existing statute and regulations. See 20 U. S. C. §241f(a) (1976 ed.); 45 CFR § 116.31(c) (1972). Assuming that these assurances were not met for the years 1970-1972, see 461 U. S., at 791, the State became hable for the improper expenditures; as a correlative, the Federal Government had, before the 1978 Amendments, a pre-existing right of recovery. Id., at 782, and n. 7.
The fact that the Government’s right to recover any misused funds preceded the 1978 Amendments indicates that the presumption announced in Bradley does not apply here. Bradley held that a statutory provision for attorney’s fees applied retroactively to a fee request that was pending when the statute was enacted. This holding rested on the general principle that a court must apply the law in effect at the time of its decision, see United States v. Schooner Peggy, 1 Cranch 103 (1801), which Bradley concluded holds true even if the intervening law does not expressly state that it applies to pending cases. 416 U. S., at 715. Bradley, however, expressly acknowledged limits to this principle. “The Court has refused to apply an intervening change to a pending action where it has concluded that to do so would infringe upon or deprive a person of a right that had matured or become unconditional.” Id., at 720. This limitation comports with another venerable rule of statutory interpretation, i. e., that statutes affecting substantive rights and liabilities are presumed to have only prospective effect. See, e. g., United States v. Security Industrial Bank, 459 U. S. 70, 79 (1982); Greene v. United States, 376 U. S. 149, 160 (1964). Cf. Bradley, supra, at 721 (noting that statutory change did not affect substantive obligations).
Practical considerations related to the enforcement of the requirements of grant-in-aid programs also suggest that expenditures must presumptively be evaluated by the law in effect when the grants were made. The federal auditors who completed their review of the disputed expenditures in 1975 could scarcely base their findings on the substantive standards adopted in the 1978 Amendments. Similarly, New Jersey when it applied for and received Title I funds for the years 1970-1972 had no basis to believe that the propriety of the expenditures would be judged by any standards other than the ones in effect at the time. Cf. Pennhurst State School and Hospital, supra, at 17, 24-25. Retroactive application of changes in the substantive requirements of a federal grant program would deny both federal auditors and grant recipients fixed, predictable standards for determining if expenditures are proper.
Requiring audits to be redetermined in response to every statutory change that occurs while review is pending would be unworkable and would unfairly make obligations depend on the fortuitous timing of completion of the review process. Moreover, the practical difficulties associated with retroactive application of substantive provisions in the 1978 Amendments would be particularly objectionable, because Congress
expressly intended those Amendments to strengthen the auditing process by clarifying the Department’s responsibilities and specifying the procedures to be followed. See Bell v. New Jersey, 461 U. S., at 789; S. Rep. No. 95-856, at 37,131; H. R. Rep. No. 95-1137, at 53, 161. We conclude that absent a clear indication to the contrary in the relevant statutes or legislative history, changes in the substantive standards governing federal grant programs do not alter obligations and liabilities arising under earlier grants.
I — I I — I h*H
Neither the statutory language nor the legislative history indicates that Congress intended the substantive standards of the 1978 Amendments to apply retroactively. Congress adopted the amendments as part of a general reauthorization of Title I that did not depart from the program’s basic philosophy, but instead sought to clarify and simplify provisions concerning implementation. H. R. Rep. No. 95-1137, at 2, 8; S. Rep. No. 95-586, at 2, 8, 130. The substantive provisions of the .1978 Amendments to Title I were expressly made applicable for grants between October 1, 1978, and September 30, 1983. 20 U. S. C. §2702. See also Pub. L. 95-561, § 1530, 92 Stat. 2380 (provisions shall take effect on October 1, 1978, “[ejxcept as otherwise specifically provided in this Act”). The House Report similarly stated that the changed requirements were intended to clarify “the manner in which school districts are to distribute Title I funds among eligible schools and children.” H. R. Rep. No. 95-1137, at 21 (emphasis added). Thus, both the general purpose of the 1978 Amendments and the more specific references in the statute and legislative history suggest that the new requirements were intended to apply prospectively.
The Court of Appeals did not rely on evidence from the legislative history to conclude that the 1978 Amendments in general have retroactive effect. Instead, the court below observed that the amendments to the school attendance area
eligibility requirements “were designed to correct regulations that frustrated the basic objectives of the Title I program.” 724 F. 2d, at 36-37. This observation mischarac-terizes both the regulations in effect prior to 1976 and the provisions adopted by Congress in 1978. Regulations adopted in 1967, see 32 Fed. Reg. 2742, and in effect for nearly 10 years, generally restricted Title I assistance to school attendance areas having a percentage of low-income children at least as high as the districtwide average. Supra, at 636; see also Office of Education, Title I Program Guide No. 44, ¶ 1.1 (1968) (explaining eligibility requirements). This requirement deliberately channeled funds to the poorest areas within any particular school district. One consequence of this comparative approach, however, was that a school located in a disadvantaged district might be ineligible for assistance even though it would have qualified if it were located in a wealthier district. Although later changes in the eligibility standards attempted to mitigate this incidental effect, they do not indicate that the earlier regulations conflicted with the policies of Title I.
During consideration of 1974 Amendments to Title I, a House Committee observed that inflexible application of the existing regulations might make schools with high proportions of low-income children ineligible. H. R. Rep. No. 93-805, p. 17 (1974) (“[I]t was never intended by the Act to render any school with a 30% concentration ineligible”). Although the 1974 Amendments made changes in the school eligibility requirements, they did not specifically address this situation. Apparently prompted by the concerns of Congress, the Department modified its regulations in 1976 to permit a school attendance area to qualify for funds if more than 30% of its children were from low-income families, even though the districtwide average might exceed 30%. See 42 Fed. Reg. 42914, 42917 (1976), codified in 45 CFR § 116a.20 (b)(2) (1977); National Institute of Education, Title I Funds Allocation: The Current Formula 57, 109 (1977). The 1978 Amendments refined this alternative by lowering the percentage to 25% and requiring the school district to guarantee that state and federal funding for compensatory education would not be reduced for any other school attendance area that received Title I funds in the preceding year. 20 U. S. C. § 2732(a)(1).
The evolution of the school eligibility requirements no doubt reflects a reassessment of the proper means to implement the goals of Title I. Nonetheless, the changes made since 1976 simply do not support the conclusion of the Court of Appeals and the contention of New Jersey that the earlier regulations were inconsistent with Title I’s policies. The regulations in place from 1967 to 1976 targeted assistance to the neediest areas within each school district in conformance with the statutory directive that funds should go to school attendance areas having high concentrations of children from low-income families. See 20 U. S. C. §241e(a) (1976 ed.). Moreover, available funds never were sufficient to provide services to all eligible students, H. R. Rep. No. 95-1137, at 7, and Title I required funds to be concentrated on particular projects rather than diffused among all eligible school attendance areas. See 20 U. S. C. § 241e(a)(l)(B) (1976 ed.); 45 CFR § 116.17(c) (1972). Thus, the school eligibility requirements helped to assure that funds would not be spread so thinly as to impair the effectiveness of particular Title I projects. Cf. H. R. Rep. No. 1814, 89th Cong., 2d Sess., 3 (1966) (suggesting that limited funds should be directed to schools with highest concentrations of children from low-income families); S. Rep. No. 95-856, at 7 (“[TJitle I is successful in directing substantial federal aid to those areas which have the highest proportions of children from low-income families”).
Congress did not abandon the concerns underlying the earlier regulations when it enacted the 1978 Amendments. Legislative Reports spoke approvingly of the longstanding policy to direct funds to school attendance areas “having the highest concentrations of low-income families.” Id., at 11; H. R. Rep. No. 95-1137, at 21. Although the 1978 Amendments relaxed the eligibility requirements for school attendance areas, the intent was “to give districts more flexibility without watering down the targeting features intended to give the programs a focus when funds are limited.” Ibid. The 25% eligibility standard was itself the product of a compromise at Conference. The House bill, see id., at 22, 211, but not the Senate amendment, provided that any school attendance area having a 20% concentration of poor children must be designated as eligible for Title I. H. R. Conf. Rep. No. 95-1753, p. 255 (1978). The Conference agreed to an amendment that made the designation of these areas optional, increased the required percentage to 25%, and provided that other areas must retain the same amount of funds they received the preceding year. Ibid. Although it is fair to infer that Congress determined that the targeting features of Title I would not be unduly compromised by adoption of the 25% standard, the background to the 1978 Amendments does not suggest the earlier regulations frustrated the program or that Congress intended the Amendments to apply to prior grants.
IV
New Jersey urges that we affirm the holding below on the ground that the Court of Appeals reached an equitable result. The determination by the Secretary does not question the good faith of New Jersey or the Newark School District with respect to the disputed expenditures, which we acknowledge might be permissible under standards enacted in 1978 or currently in effect. Nonetheless, we find no inequity in requiring repayment of funds that were spent contrary to the assurances provided by the State in obtaining the grants. Particular cases might appear to present exceptions to this rule, but given the statutory and administrative framework for assuring compliance with the requirements of Title I, we do not think recognizing such exceptions is within the province of the courts. Congress has already accommodated equitable concerns in the statutory provisions governing recovery of misused funds. Those provisions limit liability for repayment to funds received during the five years preceding the final written notice of liability, 20 U. S. C. §884 (1976 ed.), repealed and replaced by 20 U. S. C. § 1234a(g), and authorize the Secretary, under certain conditions, to return to the State up to 75% of any amount recovered. § 1234e(a). Of course, if Congress believes that the equities so warrant, it may relax the requirements applicable to prior grants or forgive liability entirely. The role of a court in reviewing a determination by the Secretary that funds have been misused is to judge whether the findings are supported by substantial evidence and reflect application of the proper legal standards. Bell v. New Jersey, 461 U. S., at 792. Where the Secretary has properly concluded that funds were misused under the legal standards in effect when the grants were made, a reviewing court has no independent authority to excuse repayment based on its view of what would be the most equitable outcome. Cf. Bennett v. Kentucky Dept. of Education, post, at 662-663.
Because the Court of Appeals has not yet addressed New Jersey’s arguments that the demanded repayment does not reflect proper application of the standards in effect during 1970-1972, the State may renew these contentions on remand. Accordingly, the decision of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Justice Powell took no part in the consideration or decision of this case.
The Education Amendments of 1978, Pub. L. 95-561, 92 Stat. 2143, 20 U. S. C. §2701 et seq., reauthorized the Title I program and generally amended the Elementary and Secondary Education Act. The Title I program was subsequently succeeded by Chapter 1 of the Education Consolidation and Improvement Act of 1981, Pub. L. 97-35, 95 Stat. 464, 20 U. S. C. §3801 et seq. Chapter 1 retains Title I’s focus upon assisting educationally deprived children who live in low-income areas.
In 1980, the Department of Education replaced the former Office of Education as the federal agency responsible for administering Title I. See Bell v. New Jersey, 461 U. S. 773, 776, n. 1 (1983). For simplicity, unless the distinction is significant, we will refer to both the Office of Education and the Department of Education as the Department and to both the former Commissioner of Education and the Secretary of Education as the Secretary. See ibid.
In determining compliance with federal grant programs, other Courts of Appeals have consistently applied the legal requirements in effect when the grants were made. See, e. g., Indiana v. Bell, 728 F. 2d 938, 941, n. 6 (CA7 1984); North Carolina Comm’n of Indian Affairs v. Department of Labor, 725 F. 2d 238, 239 (CA4 1984); Woods v. United States, 724 F. 2d 1444, 1446 (CA9 1984); West Virginia v. Secretary of Education, 667 F. 2d 417, 420 (CA4 1981).
The eligibility requirements for school attendance areas have been altered many times since the years 1970-1972. Changes were made by 1974 Amendments to Title I, and the requirements were modified by regulation in 1976 and again amended in 1978. Infra, at 643, and n. 6. The Department issued regulations in 1981 clarifying the requirements of the 1978 Amendments. 34 CFR § 201.51(d)(ii) (1981). Later in 1981, the enactment of Chapter 1, see n. 1, supra, superseded the provisions of Title I. Chapter 1 has its own provisions governing eligibility for attendance areas within school districts, see 20 U. S. C. § 3805(b), and these provisions were amended in 1983. See Pub. L. 98-211, § 3, 97 Stat. 1413, 20 U. S. C. § 3805(d) (1982 ed., Supp. I).
Of course, relatively poor school districts would receive a greater districtwide allocation of Title I funds because this amount was determined by the number of poor children within the district. This fact is illustrated by the present case: for the period from September 1, 1970, to August 31, 1973, Newark was allocated more than $28 million in Title I funds, or 18.4% of New Jersey’s total allocation. App. 14.
Moreover, from the outset of the Title I program, the regulations provided that in certain circumstances an entire school district could qualify as a Title I project. 45 CFR § 116.17(b) (1966). This alternative responded to indications by Congress that districtwide eligibility might be appropriate for particularly impoverished areas. See S. Rep. No. 146, 89th Cong., 1st Sess., 9 (1965) (“There may be circumstances where a whole school system is basically a low-income area and the best approach in meeting the needs of educationally deprived children would be to upgrade the regular program”); H. R. Rep. No. 1814, 89th Cong., 2d Sess., 3 (1966) (“[W]hen 30 or 40 percent of the children in the school district are from low-income families, all of the children in the district could be considered disadvantaged and the whole school system could be upgraded”).
We do not address whether the Secretary correctly determined that Newark did not qualify for districtwide eligibility under the legal provisions in effect during the years 1970-1972. See supra, at 637.
The 1974 Amendments liberalized the eligibility standards by providing that an otherwise ineligible school attendance area would be deemed eligible if it had qualified and received Title I funds in either of the two preceding fiscal years. Pub. L. 93-380, § 101(a)(5)(D), 88 Stat. 500, 20 U. S. C. §241e(a)(13) (1976 ed.). Furthermore, the 1974 Amendments allowed a local education agency to deem a school attendance area eligible for Title I assistance based on the actual attendance, rather than the residency, of children from low-income families. § 101(a)(5)(B), 88 Stat. 500, 20 U. S. C. § 241e(a)(l)(A) (1976 ed.). See S. Rep. No. 93-763, p. 30 (1974); H. R. Rep. No. 93-805, pp. 16-17 (1974); S. Conf. Rep. No. 93-1026, p. 144 (1974).
New Jersey contends that 10 of the disputed attendance areas had concentrations of low-income children exceeding 25%, and under the 1978 standards, the State is liable for a minimum of $249,607. As the Court of Appeals noted, 724 F. 2d, at 37, the 1978 standards would not be satisfied if compensatory funding was not maintained at prior-year levels in other schools receiving Title I aid. Ibid. The present record leaves unclear whether this requirement was satisfied, ibid., and the possibility that the necessary information is no longer available merely underscores the practical problems resulting from retroactive application of changes in the eligibility requirements. Brief for Petitioner 46, and n. 37.
Question: Did administrative action occur in the context of the case?
A. No
B. Yes
Answer:
|
songer_procedur
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
L. M. ORCHARD, M. R. Orchard and Donald L. Orchard, doing business as Orchard Auto Parts Co., Appellants, v. AGRICULTURAL INSURANCE COMPANY OF WATERTOWN, NEW YORK, a corporation, Appellee.
No. 19379.
United States Court of Appeals Ninth Circuit.
Jan. 25, 1965.
Bert W. Levit, Victor B. Levit, Francis Willmarth, San Francisco, Cal., Thomas E. Brownhill, Riddlesbarger, Pederson, IBrownhill & Ingerson, Eugene, Or., for .appellants.
Roland F. Banks, Jr., Mautz, Souther, •Spaulding, Kinsey, & Williamson, Portland, Or., for appellee.
Before HAMLEY, HAMLIN and KOELSCH, Circuit Judges.
PER CURIAM.
Agricultural Insurance Company issued to L. M. Orchard and others, doing business as Orchard Auto Parts Co., a •policy of liability insurance. Thereafter two lawsuits were filed against Orchard .and others in which damages were sought arising out of an accident which occurred while the policy was in force. The aeci•dent was caused by a rear-axle wheel bearing which Orchard had sold and -delivered to an automobile mechanic and which the latter installed on one of the vehicles involved in the accident. The wheel bearing was sound but was for a 1955-56 Chevrolet, when in fact a wheel bearing for a 1957 Chevrolet had been required and ordered from Orchard.
Invoking its policy of liability insur.anee, Orchard tendered the defense of these lawsuits to the insurance company. ’The latter declined to defend. It did so on the ground that the duty to defend and to pay damages for which Orchard might become legally obligated as a result of this accident was excluded by reason of an endorsement on the policy. This endorsement is entitled: “Endorsement Eliminating Coverage with Respect to Products and Completed Operations.” In one of the two lawsuits arising from the accident, a judgment in the sum of twenty-five thousand dollars was thereafter rendered against Orchard.
Orchard then commenced this action against the insurance company for a judgment declaring that, under the policy of liability insurance, defendant was obligated to defend Orchard in the two lawsuits, is obligated to reimburse Orchard for sums expended by Orchard in defense of those suits, and is obligated to pay damages for which Orchard becomes legally obligated to pay as a result of the accident. Orchard also sought recovery of sums already expended in defense of the damage suits. Jurisdiction in the district court rests upon diversity of citizenship. At the time this action was filed the second damage lawsuit was still pending.
The district court, granting the insurance company’s motion to dismiss, entered judgment dismissing the action. Orchard appeals.
Orchard argues that the district court misconstrued the endorsement eliminating certain coverage and that properly construed, the endorsement does not eliminate the coverage Orchard here invokes. Plaintiff also contends that the action should not have been dismissed on motion, because, at the very least, the endorsement is ambiguous and extrinsic evidence would be admissible to assist the court in resolving the ambiguity.
We agree with the district court for the reasons stated in its opinion, Orchard v. Agricultural Insurance Co., D.C., 228 F.Supp. 564, that the endorsement, read as a whole is not ambiguous, and that it eliminates the coverage for which Orchard contends. The policy provisions in question are quoted in the district court’s opinion. See also, Tidewater Associated Oil Co. v. Northwest Casualty Co., 9 Cir., 264 F.2d 879, involving a generally similar exclusion of product liability endorsement, and in which this court rejected contentions much like some of those Orchard makes here.
Affirmed.
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_geniss
|
F
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
KUPPERMAN v. M. & J. BECKER, Inc.
No. 209, Docket 22228.
United States Court of Appeals, Second Circuit.
Submitted April 8, 1952.
Decided Aug. 15, 1952.
Clark, Circuit Judge, dissented.
Irving Rozen, New York City, for plaintiff-appellant.
Morris M. Marcus, New York City, Friedman & Friedman, Brooklyn, N. Y., for defendant-appellee.
Before CHASE, BIGGS, and CLARK, Circuit Judges.
BIGGS, Circuit Judge.
On September 4, 1947, the plaintiff, Kupperman, brought suit in the court below to recover from his employer, the defendant, M. & J. Becker, Inc., a New York City manufacturer of hats and caps, overtime wages alleged to be due him and an additional equal amount by way of liquidated damages, pursuant to Section 16(b) of the Fair Labor Standards Act, 29 U.S.C.A. § 216. Jurisdiction was founded on Section 16(b) of the Act and on 28 U.S.C. § 1337. The defendant interposed as its principal defense the contention that Kupperman fell within the exemptions of Section 13 of the Act, 29 U.S.C.A. § 213, which provide that “(a) The provisions of sections 206 and 207 of this title shall not apply with respect to (1) any employee employed in a bona fide executive, administrative, professional, or local retailing capacity, or in the capacity of outside salesman (as such terms are defined and delimited by regulations of the Administrator)”. The defendant’s position was and is that Kupperman at all times was employed by it in a bona fide executive capacity within the meaning of the exemption provided by Congress in the statute and as defined by the Administrator.
The complaint sought recovery fo the whole period of the plaintiff’s employment by the defendant, commencing in the third week of April 1939 and ending in August 1947. The court below restricted recovery, if there should be any, to the period commencing September 4, 1941, the earliest effective date within New York’s six-year statute of limitations. See N. Y. Civil Practice Act, Section 48. A further restriction on the period involved was imposed when it appeared from the evidence that in May 1945 Kupperman had become a union employee and had renounced all claim to unpaid overtime wages earned thereafter.
The court below, as the trier of the facts, concluded that the defendant had met the burden imposed on it to prove that the plaintiff was employed in a bona fide executive capacity as defined by the Administrator, Wages and Hours Division, United States Department of Labor, during the period September 4, 1941 to May 1945. The court took the position that the defendant had the obligation to, and did, prove that the plaintiff’s employment fell within each and every requirement of an “executive” as required by the Administrator’s Regulations, Section 541.1, 29 U.S.C.A. Appendix, § 541.1. See Fanelli v. United States Gypsum Co., 2 Cir., 141 F.2d 216; Stanger v. Vocafilm Corp., 2 Cir., 151 F.2d 894, 162 A.L.R. 216; McComb v. Utica Knitting Co., 2 Cir., 164 F.2d 670. We set forth the requirements of the pertinent Regulations in the margin. The court below entered judgment in favor of the defendant, and the appeal at bar followed. The only substantial question before us is whether the court below has made the necessary findings of fact and whether any finding of fact was clearly erroneous. See Rule 52(a), Fed.Rules Civ.Proc. 28 U.S. C.A., and McComb v. Utica Knitting Co., supra.
The plaintiff testified that in April 1939 he was unemployed and on relief; that in the latter part of April he commenced work at the defendant’s place of business at 2961 Atlantic Avenue, Brooklyn; and that he continued there throughout the period here in question. Kupperman further stated that in 1941 he was employed by the defendant in its “Parkahood” department, existing on the lower warehouse floor of the building occupied in part by the defendant, and that he was subsequently moved upstairs to its principal “Cap-making” department late in 1942 when the defendant stopped making parkahoods. The plaintiff said that he was a cutter of caps by trade, and testified to long hours of weekday and weekend overtime employment as a cutter. He admitted, however, that on the lower warehouse floor he handed out work to women there employed as cutters and kept the records of their employment; that the defendant was organized as a union shop and that its employees were required to punch time cards; that he, Kupperman, did not join a union until May 1945, when, for the first time, he was issued a time card; and that he was on such terms with Jacob Becker, the president of defendant, that he received several Christmas bonuses and rode home from work each day in President Becker’s automobile.
Kupperman also asserted that the records of the defendant surely had been falsified since he was listed therein as a foreman and shown to have worked only a 40 hour week. On cross-examination the plaintiff admitted that he had received a sum of money in settlement of a suit he had brought in the Municipal Court of New York against Bushwick Mills, Inc. for wages for August through October 1942. He explained that he was promised compensation by Bush-wick Mills to speed performance by the defendant of a contract to make army caps. The plaintiff testified that he had brought suit against Bushwick Mills, Inc. because “Mr. Becker said to me, ‘I am on the outs with [Bushwick Mills, Inc.] and I would like to get even with Margolin.’ ” and because “At the time I was really mad. I was not getting the money.”
Licato, an operator of a sewing machine on the defendant’s lower floor, testified that Kupperman was employed on that floor to “ * * * take care of the girls, and he used to cut out work once in a while.” Licato also said that the plaintiff assigned work to the women employees, kept records, gave out payroll envelopes, was consulted about complaints, and that she was in fact hired by him.
President Becker testified that he had hired Kupperman “to be a foreman,” that “He came up to manage the place,” and that a cutter was not in fact needed. Becker stated that the plaintiff hired and fired the “Parkahood” girls, and fixed their wages; that Kupperman rarely worked after the usual quitting time of 5:00 P.M. and then came upstairs to wait for his ride home; and that he received pay for his occasional weekend work at Ozone Park where Becker had another place of business, or was paid by Bushwick Mills, Inc., and for his Sunday work at 2961 Atlantic Avenue during August through October 1942. Becker testified that the plaintiff also received pay for periods when he was sick and did not work, which would not have been the case had he been employed by the hour; that throughout the period in question Kupperman remained free of the union because he was a foreman; and that it was for this reason that the plaintiff was entitled to bonuses. Becker explained that when the plaintiff moved upstairs from the “Parkahood” department he “helped the foreman,” “[gave out] the goods to cut,” “walked around the floor,” “watch[ed] * * * the packing,” and only worked at cutting “a couple of times a week, a couple of .hours a day.” Becker also stated that when the plaintiff moved upstairs he served as co-foreman with Steinberg, conceded by all to have been a foreman..
Steinberg testified that the plaintiff “prepared the material for the cutters” and that he did not remember seeing the plaintiff himself employed in cutting at any time. This testimony was corroborated by Brown, a cutter, who indicated that the plaintiff was not needed as a cutter, for he, Brown, by operating a “clicker” machine was, together with other cutters, able to supply sufficient cut goods for the sewers. Schurman, bookkeeper and sister-in-law to Becker, stated in further corroboration that Kupperman was a foreman and not a cutter and that her records were correct in showing that he had not earned compensable overtime.
The foregoing is ample to support the following findings of fact made by the court below:
“9. Plaintiff in many instances remained after working hours for the sole purpose of obtaining a ride home in the automobile of Becker, his employer.
“10. Plaintiff never spent any considerable time at defendant’s establishment on Saturdays or Sundays or before office hours, except possibly to lay out work for the other employees to do.
Plaintiff’s primary duty consisted in the management at first of the so-called Parka hood department on the first floor, and afterwards as foreman on the upper floor. 11.
“12. As part of his duties plaintiff customarily and regularly directed the work of several employees. Plaintiff also had the right to hire and fire employees and he customarily and regularly exercised discretionary power.
“14. Plaintiff did some cutting from time to time but the time spent on such activity amounted to only a very small fraction (less than 20 per cent) of the time spent on other duties.”
It will be observed, therefore, that the court below, item by item, has made all necessary findings, save one, as to the qualifications of an executive as required by the Regulations, paragraphs (a) through (f), Section 541.1, 29 U.S.C.A. See footnote 7, supra. There was ample evidence to support the findings made. Indeed, the weight of the evidence appears to favor the defendant’s contentions for, as noted by the court below, the fact that the plaintiff did not join the union until 1945, a date lying outside the period with which we are concerned, is very persuasive. It was indeed unlikely that Kupperman’s tasks became less managerial in character when he was moved to the defendant’s principal manufacturing floor for his salary continued to rise steadily.
But one essential finding was not made by the court below, viz., that relating to the plaintiff’s salary rates throughout the whole of the critical period. If the plaintiff received less than $30 a week he would not fall within the purview of earlier subpara-graph “(f),” applicable during the period with which we are concerned. See 5 F.R. 4077. The change in the regulation was effected December 24, 1949 and therefore is not pertinent here. See note 7, supra. It is abundantly clear from the testimony on these points, however, that the plaintiff’s salary rates were at all times within the required limitations of earlier subparagraph “(f).” We set them forth in the margin. To sum this point up we state that there would seem to be no doubt that the plaintiff received at least no less than the amount specified by subparagraph (f). We cannot, however, make the necessary finding since as an appellate tribunal we are without the power to do so.
Accordingly the judgment of the court below is vacated and the cause remanded. If the court below shall find that the evidence is sufficient to support the finding which we have indicated should be made, the trial judge will possess the authority to make such a finding and re-enter judgment in favor of the defendant.
. It was stipulated by the parties that M. & J. Becker, Inc. was a corporation engaged in interstate commerce.
. Relating to maximum hours and overtime.
. Administrator, Wages and Hours Division, United States Department of Labor.
. The two year statute of limitations of the Portal-to-Portal Act does not apply. See 29 U.S.O.A. § 255(c). There is no issue as to any statute of limitations.
. Trial was had to the court.
. No opinion for publication.
. Regulations, Section 541(1), 29 U.S.C.A. Appendix, provides and provided (with the exception of subparagraph (f)) as follows:
“The term ‘employee employed in a bona fide executive * * * capacity’ in section 13(a) (1) of the act shall mean any employee:
“(a) Whose primary duty consists of the management of the enterprise in which he is employed or of a customarily recognized department or subdivision thereof; and
“(b) Who customarily and regularly directs the work of two or more other employees therein; and .
“(c) Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring or firing and as to the advancement and promotion or any other change of status of other employees will be given particular weight; and
“(d) Who customarily and regularly exercises discretionary powers; and
“(e) Who does not devote more than 20 percent of his hours worked in the workweek to activities which are not directly and closely related to the performance of the work described in paragraphs (a) through (d) of this section: Provided, That this paragraph shall not apply in the case of an employee who is in sole charge of an independent establishment or a physically separated branch establishment, or who owns at least a 20-pereent interest in the enterprise in which he is employed; and
“(f) Who is compensated for his services on a salary basis at a rate of not less than $55 per week (or $30 per week if employed in Puerto Rico or the Virgin Islands) exclusive of board, lodging, or other facilities:
“Provided, That an employee who is compensated on a salary basis at a rate of not less than $100 per week (exclusive of board, lodging, or other facilities), and whose primary duty consists of the management of the enterprise in which he is employed or of a customarily recognized department or subdivision thereof, and includes the customary and regular direction of the work of two or more other employees therein, shall be deemed to meet all of the requirements of this section.”
It will be noted that the provision of subparagraph “(f),” supra, quoted supra, states that the salary of one who is to be considered an “executive" must amount to not less than “$55. per week.” At the time the suit was filed and the plaintiff was first employed the amount required was $30. a week. The increase in the amount was effected December 24, 1949. See 14 F.R. 7705-6.
. Bushwick Mills, Inc. was the prime Government contractor under contract for the manufacture of caps for the United States Army. The defendant was a subcontractor thereunder.
. Margolin apparently was employee! in some executive capacity at Bushwick Mills, Inc. He is not otherwise identified in the record.
. Becker stated that Kupperman worked an extra half-hour “maybe once a year.”
. According to the payroll records of Becker, Inc., Defendant’s Exhibit C, Steinberg’s salary was at all times less than Kupperman’s. For example, for the week ending September 4,1943, Steinberg earned $50 as compared to Kupperman’s $65.
. We are not unmindful of the fact that Hershkovitz, Manager, Capmakers’ Union, Local No. 2, which local had jurisdiction at the defendant’s shop between 1941 and 1946, stated that he found the plaintiff employed in cutting on one occasion in 1943 and had told both Becker and the plaintiff that the latter “ * * * would have to join the union.” Hersh-kovitz testified to the response to this demand as follows: “And both told me— both Kupperman and Becker told me: Well, he was a foreman. And so did Kupperman.”
. The pertinent portion of Plaintiff’s Exhibit 1 in the court below shows the following:
“Weekly Earnings of George Kupperman:
* * *
Nov. 22 1940 to March 7 1942 ...........................40 00
March 14 1942 to July 4 1942 ............................ 415 00
July 11 1942 to March 27 1943 ........................... 55 00 — and collecting money from Bushwick Mills
April 3 1943 to July 10 1943 ............................. 60 00
July 17 1943 to May 12 1945 ............................. 65 00
Left our employ May 12 1945, demanding a $375.00 bond for bonus. Re-hired May 26 on Union insistence that he become a Union cutter.
* * *
Extras:
Dec. 22 1942 50 00 Bonus
Sept. 23 1943 , 50 00 “
Dec. 23 1943 63 13 “
June 23 1944 100 00) to be deducted
June 2 19441 100 00) out from June 3 to June 30 1944
Dec. 22 1944 ............................. 86 20 Bonus
Dec. 24 1945 .............................100 00 Loan not repaid
Jan. 23 1045 to May 1st 1945 — $10.00 weekly.”
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
|
songer_r_bus
|
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.
CENTRAL TOOL COMPANY v. INTERNATIONAL ASSOCIATION OF MACHINISTS NATIONAL PENSION FUND, BENEFIT PLAN A, et al., Appellants. CENTRAL TOOL COMPANY, Appellant, v. INTERNATIONAL ASSOCIATION OF MACHINISTS NATIONAL PENSION FUND, BENEFIT PLAN A, et al.
Nos. 81-2047, 81-2056.
United States Court of Appeals, District of Columbia Circuit.
Argued June 7, 1982.
Decided Feb. 10, 1987.
Denis F. Gordon, with whom David M. Ermer, Washington, D.C., was on the brief, for International Ass’n of Machinists Nat. Pension Fund, Benefit Plan A, et al., appellants in No. 81-2047 and appellees in No. 81-2056.
Richard A. Perras, Boston, Mass., of the Bar of the Supreme Court of Massachusetts, pro hac vice by special leave of the Court, with whom Michael Joseph and Timothy Trushel, Washington, D.C., were on the brief, for Central Tool Co., appellee in No. 81-2047 and cross-appellant in No. 81-2056.
Before WALD, Chief Judge, TAMM and ROBINSON, Circuit Judges.
Circuit Judge Tamm participated in the consideration and decision of this case but died before preparation of this opinion.
Opinion for the Court filed by Circuit Judge SPOTTSWOOD W. ROBINSON, III.
SPOTTSWOOD W. ROBINSON, III, Circuit Judge:
The National Pension Fund maintained by the International Association of Machinists and Aerospace Workers, AFL-CIO (IAM), cancelled all past service credits for covered employees of the Central Tool Company after it discontinued its contributions to the Fund. The company now challenges this action as violative of Section 302(c)(5) of the Labor Management Relations Act. On cross-motions for summary judgment, the District Court ruled that the cancellation was arbitrary and capricious, and for that reason contravened Section 302(c)(5), insofar as it materially affects Fund determinations on satisfaction of vesting requirements by Central Tool employees, but not to the extent that it decreases their accrued benefits under the governing plan. In our view, the case is controlled by the Supreme Court’s decision in UMWA Health & Retirement Funds v. Robinson, the central teaching of which constrains us to hold that the termination of past service credits does not impinge upon Section 302(c)(5).
I
The Fund is a multi-employer, open-ended, defined benefit trust created in 1960 pursuant to an agreement and declaration of trust between the union and employers of employees represented by affiliated locals of the union. The Fund is administered by an equal number of union-designated and employer-selected trustees, and is financed by employers’ contributions made in accordance with collective bargaining agreements with union affiliates.
Central Tool inaugurated its relations with the Fund by contributions effective July 1, 1970, pursuant to a collective bargaining agreement with lAM’s Local Lodge 147, the representative of some of Central Tool’s employees. The participation agreement between Central Tool and the local, which was expressly incorporated into the collective bargaining agreement, listed the payments that Central Tool would be required to make to the Fund “under the Agreement and Declaration of Trust dated May 1, 1960, as amended, which has been signed by the Employer and I.A.M. Lodge in the place provided at the end of such Agreement attached hereto.” The terms of the pension plan agreement thus appear to have been incorporated by reference in the collective bargaining contract. The pension plan agreement provided for determination of the accrued benefits and the vesting status of each covered employee on the basis of how much “service credit” the employee possessed. Service credits were to be ascertained in accordance with Benefit Plan A, which contained rules governing the collection, investment, and distribution of the contributions of participating employers. Benefit Plan A granted two types of service credit to covered employees. One was future service credit for the period during which they worked for an employer then contributing to the Fund on their behalf; the other was past service credit for any period prior thereto during which they worked for the same employer if the service continued up to the point at which the employer’s obligation to contribute to the Fund commenced.
At the time Central Tool joined the plan, Benefit Plan A featured a rule, adopted by the Fund’s board of trustees pursuant to the original trust agreement, governing the amount of service credit to be retained by covered employees of employers who terminate their participation in the plan while continuing in the same or a similar line of business. Section 4 of Article IX of the plan provided then, as it does now, that such employees would keep all accrued future service credits but would forfeit all accrued past service credits.
In 1978, Central Tool withdrew from the plan in accordance with a new collective bargaining agreement which provided that Central Tool would establish its own pension fund for covered employees and would guarantee benefits accrued by them under Benefit Plan A. Upon notification of Central Tool’s withdrawal, the Fund invoked the rule cancelling past service credits. Since Central Tool had undertaken in the 1978 collective bargaining agreement to act as guarantor against any loss of those benefits, the cancellation increased its liability under its own pension plan. Central Tool then brought this action against the Fund and its trustees assailing the plan’s forfeiture provision, primarily under Section 302(c)(5).
The District Court applied the principle, then extant in this circuit, that an eligibility rule of a Section 302(c)(5) trust fund, or its application adversely to a covered employee or group of employees, is invalid if it is arbitrary or capricious. Recognizing the strong interest of Central Tool employees in retaining pension benefits they could reasonably have believed to be vested, the court struck down the plan’s forfeiture provision insofar as it deprived employees of their status as vested beneficiaries under the plan. The court grounded this action upon the Fund’s failure to demonstrate that forfeitures of vested status either served an “overriding purpose” or were “actuarially necessary” to prevent employers from undermining the Fund by dumping unfunded liability — through early withdrawals from the plan — after their employees had acquired substantial past service credits. At the same time, the court upheld the cancellation of past service credits for purposes of accrual benefits, reasoning that any injury to Central Tool employees resulting from an incremental reduction in benefits was outweighed by the Fund’s legitimate interest in preserving its financial integrity and the desirability of minimizing judicial alterations of a plan agreed upon through collective bargaining. Both sides now appeal.
II
At the outset, we must determine whether Central Tool has standing to challenge the plan’s forfeiture rule under Section 302 of the Labor Management Relations Act.
The District Court derived its jurisdiction from Section 302(e), which in general terms authorizes federal district courts to “restrain violations” of Section 302. There is no provision, however, indicating who may sue or be sued thereunder. Filling this interstice, courts have construed Section 302(e) to permit a contributing employer to bring suit when it has suffered or will incur injury from enforcement of plan rules or administration of the trust.
In the case before us, a collective bargaining agreement has required Central Tool to establish a new pension plan preserving the accrued benefit entitlements of its employees under Benefit Plan A. Application of the plan’s forfeiture provision increases Central Tool’s liability under its plan, and thus produces an injury we think sufficient to allow Central Tool to maintain this action.
Ill
Section 302 prohibits an employer from paying anything of value to a union or other representative of employees unless the payment falls within one of the exceptions set forth therein. Section 302(c)(5) validates employer-financed employee trust funds, such as Benefit Plan A, if, among other things, they operate “for the sole and exclusive benefit of the employees of [the contributing] employer and their families and dependents____” Central Tool asserts that the forfeiture provision in Benefit Plan A is arbitrary and capricious, and thus does not inure to the “sole and exclusive benefit” of those designated in Section 302(c)(5).
The statutory requirement embodied in this language was addressed by the Supreme Court in UMWA Health & Retirement Funds v. Robinson. Resolution of Central Tool’s claim, of course, must square with that decision. Moreover, since the holding in Robinson was framed on the basis of and by explicit reference to the substantial caselaw that Section 302(c)(5) had previously generated, a survey of that body of jurisprudence is essential to sound application of Robinson to the contentions Central Tool now presses.
Before Robinson, federal courts often encountered challenges to eligibility rules, or the application of such rules, promulgated for Section 302(c)(5) trust funds. With but few exceptions, these courts refused to interpret Sections 302(c)(5) and 302(e) as conferring general equity jurisdiction to enforce fiduciary duties of trustees with respect to these funds, or otherwise to supervise the Funds’ day-to-day administration. This limitation on the role of the judiciary reflected a number of considerations: fear of overextending judicial resources in an area traditionally governed by state law; concern about the absence of an explicit basis for such jurisdiction in the language or legislative history of Section 302; and apprehension that a criminal statute might be construed too broadly. Moreover, the legislative history of Section 302 provided some indication that Congress did not intend its enactment of this provision to establish comprehensive federal oversight of trust fund administration.
The provisions of this section shall not be applicable... with respect to money or other thing of value paid to a trust fund established by such representative, for the sole and exclusive benefit of the employees of such employer, and their families and dependents (or of such employees, families, and dependents jointly with the employees of other employers making similar payments, and their families and dependents): Provided, That (A) such payments are held in trust for the purpose of paying, either from principal or income or both, for the benefit of employees, their families and dependents, for medical or hospital care, pensions on retirement or death of employees, compensation for injuries or illness resulting from occupational activity or insurance to provide any of the foregoing, or unemployment benefits or life insurance, disability and sickness insurance, or accident insurance; (B) the detailed basis on which such payments are to be made is specified in a written agreement with the employer, and employees and employers are equally represented in the administration of such fund, together with such neutral persons as the representatives of the employers and the representatives of employees may agree upon and in the event the employer and employee groups deadlock on the administration of such fund and there are no neutral persons empowered to break such deadlock, such agreement provides that the two groups shall agree on an impartial umpire to decide such dispute, or in the event of their failure to agree within a reasonable length of time, an impartial umpire to decide such dispute shall, on petition of either group, be appointed by the district court of the United States for the district where the trust fund has its principal office, and shall also contain provisions for an annual audit of the trust fund, a statement of the results of which shall be available for inspection by interested persons at the principal office of the trust fund and at such other places as may be designated in such written agreement; and (C) such payments as are intended to be used for the purpose of providing pensions or annuities for employees are made to a separate trust which provides that the funds held therein cannot be used for any purpose other than paying such pensions or annuities.
Despite this reluctance to exercise jurisdiction under Section 302(e) broadly, the overwhelming majority of courts infused Section 302(c)(5) with a demand that trust fund administration not be arbitrary or capricious. Although some early cases did so without reference to particular statutory language, subsequent decisions identified Section 302(c)(5)’s command that qualifying trust funds must operate for the “sole and exclusive benefit” of covered employees as the source of the requirement.
Courts often justified the availability of judicial review for arbitrariness as necessary to protect the “structure” of trust funds under Section 302(c)(5), but frequently failed to articulate a consistent standard governing the scope or rigor of the analysis. While some courts limited review to challenges to eligibility rules on their face, others focused on the putative beneficiaries affected by the trustee action complained of, and denied review unless a size-able number faced injury. Still others expanded the scope of review to include lawsuits disputing the application of an otherwise valid requirement to a single employee, and courts occasionally utilized the arbitrary-or-capricious test to review trustee action alleged to be procedurally unfair. Although courts normally disturbed eligibility rules or trustee actions only if they lacked a rational relationship to distribution of benefits to covered employees or to protection of the long-run financial viability of the trust fund, some appeared to engage in a higher level of scrutiny to measure the validity of such rules or actions, thereby blurring even more the contours of the arbitrary-or-capricious standard.
In sum, courts construed Section 302(e) not to authorize federal enforcement of trustees’ fiduciary obligations with respect to Section 302(c)(5) trust funds. At the same time, however, they interpreted the “sole and exclusive benefit” language in the latter section to prohibit arbitrary or capricious action by fund trustees. Because of the inherently mercurial nature of this standard and judicial indecision as to its scope and rigor, courts ultimately proved unable entirely to avoid overseeing the day-to-day administration of employee trust funds.
Close scrutiny of the caselaw just chronicled underlay the Supreme Court’s decision in Robinson. The plaintiffs challenged a trust fund eligibility rule, established in a collective bargaining agreement between the United Mine Workers of America and the Bituminous Coal Operators Association, as arbitrary and capricious and therefore violative of Section 302(c)(5). Reversing the judgment of this court in favor of the plaintiffs, the Supreme Court held that the Section 302(c)(5) directive at issue — that the trust fund must operate for the “sole and exclusive benefit
of employees of [the contributing] employer, and their families and dependents”— does not establish a reasonableness requirement applicable to eligibility rules or benefit levels fixed by collective bargaining. The Court construed this provision to mean simply that employer contributions to the trust fund must inure solely to the benefit of protected employees and their families, and that the arbitrariness of the distribution scheme in general or of eligibility rules in particular was not a matter of judicial concern.
Although the Robinson decision had the potential altogether to eviscerate the arbitrary-or-capricious standard vis-a-vis Section 302(c)(5), the Court carefully refrained from so broad a holding. Distinguishing prior cases in this circuit, the Court held that eligibility rules adopted through collective bargaining, rather than by trustees in their discretion, are not subject to a reasonableness requirement under Section 302(c)(5). It follows, of course, that if the rule involved in the instant case was a product of collective bargaining, it is immune to invalidation under a reasonableness test. We turn, then, to an analysis of Robinson’s impact on this case.
IV
The origin of the forfeiture provision protested by Central Tool effectively precludes a simple or mechanical application of Robinson. Section 4 of Article IX was adopted by the fund trustees, under authority conferred by the original trust agreement, prior to Central Tool's participation in the plan. The provision, however, straddles the distinction drawn by the Robinson Court; it was approved, if only implicitly, through collective bargaining with subscribing employers, including Central Tool. For three reasons we think a proper interpretation of Robinson dictates that the forfeiture provision here, like the eligibility rule upheld in Robinson, not answer to any reasonableness requirement under Section 302(c)(5).
First, we can discern no relevant difference, from the perspective of either contributing employers or covered employees, between (a) an eligibility rule established initially by a collective bargaining agreement and (b) a rule promulgated by fund trustees, as authorized in the original trust agreement, prior to the time an employer becomes a plan member pursuant to a collective bargaining agreement. In each case, the employer’s entry into the plan results from collective bargaining, and the rule is part and parcel thereof. Since Robinson makes clear that Section 302 does not authorize federal courts to use a reasonableness standard to test the substantive content of an agreement reached through collective bargaining, the forfeiture provision challenged by Central Tool merits no greater scrutiny on these fact than the eligibility rule upheld in Robinson.
Second, the Robinson Court limited the scope of its holding by distinguishing the two prior decisions of this circuit. Examination of these cases suggests that the only question left undecided in Robinson was whether federal courts have jurisdiction under Section 302(e) to entertain challenges by a contributing employer or a covered employee to discretionary trustee actions taken unilaterally after, not before, commencement of the employer’s contributory obligation.
In one of these cases, Kosty v. Lewis, a miner challenged a resolution, adopted by pension fund trustees after his employer assumed its funding obligation, which deprived him of benefits accrued under the superseded eligibility rules. Reviewing the procedural “reasonableness of the [lack of] opportunity afforded to [those persons with accrued benefits] under current standards” to consider retirement before the effective date of the new standards, this court found it arbitrary and capricious to expect individuals to “work... at their peril in terms of the possibility that pension eligibility might be wiped out... by the sudden action of the Trustees in changing the requirements.” The Supreme Court’s express reference to Kosty militates, we think, for a construction of Robinson that recognizes the propriety of judicial review only of independent trustee revisions to a plan made after an employer signs on.
The second decision that Robinson distinguished, Pete v. UMWA Welfare & Retirement Fund, is consistent with this articulation of the scope of judicial review under Section 302(e). Pete involved a challenge by miners to a resolution by the trustees of the same UMWA trust fund, adopted after their employers had become participants in the plan, that deprived the miners of benefits they otherwise would have received. Although the court did not expressly limit its inquiry as in Kosty, the similarity of the trustees’ action in the two cases offers further support for our decision to utilize the rationale explicated in Kosty to inform our interpretation of Robinson.
The lack of explicit reference by this court in Pete or by the Supreme Court in Robinson to the rationale espoused in Kosty does not vitiate an interpretation of Robinson based thereon. The Robinson Court construed Section 302(c)(5) more restrietively than prior caselaw, and the cases chosen to illustrate the limits of the new interpretation could not have delineated the intended distinction with absolute precision or exhaustive prescience. We recognize the shortcomings inherent in any attempt to extract an understanding of Robinson from the cases limiting its holding, but we cannot ignore the deliberate selection of those cases as an indication of the Court’s intent to temper its decision. We thus take the narrow focus of both Kosty and Pete as support for the proposition that Robinson did not leave undecided, but instead repudiated, the jurisdiction of federal courts under Section 302(e) to adjudicate challenges to trustee action by contributing employers who became plan members pursuant to collective bargaining agreements after the disputed action occurred.
The third reason for our holding arises from the absence of any statutory contemplation of a reasonableness requirement as a means of protecting Central Tool’s employees from eligibility rules such as the forfeiture provision in issue here. The legislative history reveals that Section 302 was enacted, at least in part, to protect covered employees from improper management of employee trust funds. This legislative objective may well have promoted the emergence of the arbitrary-or-capricious test under Section 302(c)(5) as the best, if not the only, means by which covered employees might be shielded from arbitrary trustee actions. In cases such as this one, however, this type of review is not necessary adequately to safeguard the interests of covered employees. The eligibility rule in question already was part of Benefit Plan A when IAM and Central Tool negotiated for the company’s participation in the plan. The company might have taken steps to counteract any perceived unfairness in its terms, and the union had the opportunity to shelter its members therefrom. Section 302(c)(5)(B) required the plan to be in writing and that it specify eligibility rules in detail, thus ensuring that both the company and the union had sufficient knowledge of the provision to act responsively at the time they entered into their collective bargaining agreement.
We conclude, then, that whatever protection employees may need under Section 302(c)(5) against arbitrary trustee actions occurring after their employer has become a plan participant is afforded by union representation, as facilitated by the requirements of Section 302(c)(5)(B), and obviates the need for judicial review of such challenges. In light additionally of Robinson’s observation that neither the statutory text nor the legislative history of Section 302(c)(5) warrants judicial scrutiny of eligibility requirements fixed by collective bargaining under an arbitrary-or-capricious standard, we are persuaded that a forfeiture rule embedded in a benefit plan when an employer negotiates plan membership by collective bargaining — like eligibility rules fixed initially by collective bargaining — is not subject to a reasonableness requirement under Section 302(c)(5).
For these reasons, we hold that the forfeiture provision challenged by Central Tool falls within the ambit of Robinson and outside our proper authority to review. Accordingly, we need not reach the question whether the forfeiture provision in suit is arbitrary or capricious. We affirm the judgment of the District Court that the forfeiture provision is valid for benefit-accrual purposes, and reverse the judgment that the provision is invalid under Section 302(c)(5) insofar as it deprives any Central Tool employee of vested status under Benefit Plan A.
So ordered.
. Labor Management Relations Act of 1947, ch. 120, § 302(c)(5), 61 Stat. 157-158 (current version codified at 29 U.S.C. § 186(c)(5) (1982)), quoted infra note 32.
. Central Tool Co. v. International Ass’n of Machinists Nat'l Pension Fund, Benefit Plan A, 523 F.Supp. 812 (D.D.C.1981).
. 455 U.S. 562, 102 S.Ct. 1226, 71 L.Ed.2d 419 (1982).
. A multi-employer trust fund is one "to which more than one employer is required to contribute which is maintained pursuant to one or more collective bargaining agreements...” 29 U.S.C. § 1002(37)(A) (1982). Each participating employer makes contributions on behalf of its covered employees in accordance with its collective-bargaining obligations. See Affidavit of Alan W. Skolnick, Director of IAM National Pension Fund, Appendix to Defendants’ Motion for Summary Judgment, Central Tool Co. v. International Ass’n of Machinists Nat'l Pension Fund, Benefit Plan A, Civ. No. 79-2784 (D.D.C.) (filed July 21, 1980) at 3, Record Document (R. Doc.) 40 [hereinafter cited as Skolnick Affidavit].
. Skolnick Affidavit, supra note 4, at 3, R. Doc. 40. An open-ended trust fund is one in which "employers and employee groups are free at any time of their own choosing to apply for participation in the plan.” Id.
. Id. A defined benefit trust fund is one in which "contributions by individual employers on account of hours worked by or compensated to individual employees are pooled, rather than being maintained and accounted for separately with respect to each employer or each covered employee." Id. at 4, R. Doc. 40.
. Skolnick Affidavit, supra note 4, at 1, R. Doc. 40.
. Brief for Appellees/Cross-Appellants at 2-3. Equal representation of employers and employees in administration of the Fund seemingly meets the specific command of § 302(c)(5)(B), 29 U.S.C. § 186(c)(5)(B) (1982).
. Brief for Appellees/Cross-Appellants at 3.
. Brief for Appellant/Cross-Appellee at 3. After Central Tool became a participant in the plan in 1970, the Fund, in 1973, accepted certain so-called “special class" employees of Central Tool — salaried nonunion office employees — and made their coverage under the plan retroactive to 1970. See Skolnick Affidavit, supra note 4, at 10-12, R. Doc. 40.
. See Standard Form of Participation Agreement (Nov. 7, 1969), Exhibit 12 to Skolnick Affidavit, supra note 4, at 1, R. Doc. 40.
. See Central Tool Co. v. International Ass’n of Machinists Nat'l Pension Fund, Benefit Plan A, supra note 2, 523 F.Supp. at 813.
. See Brief for Appellees/Cross-Appellants at 3.
. Brief for Appellees/Cross-Appellants at 3.
. See Central Tool Co. v. International Ass’n of Machinists Nat'l Pension Fund, Benefit Plan A, supra note 2, 523 F.Supp. at 813-814 & nn. 1, 3.
. See Brief for Appellees/Cross-Appellants at 9; Reply Brief for Appellees/Cross-Appellants at 4.
. Article IX, § 4, states:
If the participation of a Contributing Employer terminates and should that employer, or its successor, thereafter continue in the same or a related business, then... Past Service Credit based upon employment with such employer shall be cancelled retroactively.
See I.A.M. National Pension Fund, Summary Plan Description, Benefit Plan A, Exhibit 2 to Skolnick Affidavit, supra note 4, at 112, R. Doc. 40. The plan specifies, however, that this provision does not apply to (i) employees of an employer who goes out of business; (ii) employees who stop working for an employer within 30 days after, or more than two years before, the employer's withdrawal from the plan; (iii) employees receiving pensions before the withdrawal, of who applied for pensions before the withdrawal and whose pensions had an effective date within 30 days after the withdrawal; (iv) employees who earn at least five years of future service credit through employment with another participating employer within the next eight years and before incurring a permanent break in service; and (v) employees whose bargaining unit transfers to another IAM lodge. See id. at 112-113, R. Doc. 40. Although the plan did not include all of these exceptions when Central Tool joined in 1970, the company does not rely upon any exception, but challenges generally the cancellation of past service credits, which was a basic feature of the plan before 1970 and has continued to be since. Central Tool Co. v. International Ass’n of Machinists Nat'l Pension Fund, Benefit Plan A, supra note 2, 523 F.Supp. at 813-814 & nn. 1, 3.
. See Brief for Appellant/Cross-Appellee at 4.
. See Letter from Alan W. Skolnick, Director of IAM National Pension Fund, to Central Tool Company (Aug. 25, 1978), Exhibit B to Complaint, Central Tool Co. v. International Ass'n of Machinists Nat'l Pension Fund, Benefit Plan A, Civ. No. 79-2784 (D.D.C.) (filed Oct. 17, 1979), R. Doc. 1.
. Central Tool also attacked the forfeiture provision under the Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001-1461 (1982). The District Court dismissed this claim for lack of standing, Central Tool Co. v. International Ass’n of Machinists Nat'l Pension Fund, Benefit Plan A, supra note 2, 523 F.Supp. at 814 n. 4, and Central Tool has not challenged this ruling on appeal.
. See Central Tool Co. v. International Ass’n of Machinists Nat'l Pension Fund, Benefit Plan A, supra note 2, 523 F.Supp. at 815.
. Id. at 816. The District Court relied both on the general presumption that vested rights are nonforfeitable and on the statement in plan booklets describing vesting as a "freez[ing]” of pension entitlement. The court did not take into consideration, however, the fact that Central Tool employees would not face an unexpected shortfall in benefits if Central Tool fulfills its guarantee that no employee would lose accrued pension benefits by virtue of the switch to the company’s pension fund.
. Id. at 818.
. Id.
. Id. The Fund has argued vigorously on appeal that the District Court employed a form of heightened scrutiny, not mandated by prior caselaw or by the common law of trusts, when it partially invalidated the forfeiture provision as not reasonably necessary to promote a compelling Fund interest. Brief for Appellees/Cross-Appellants at 28-35. Because we decide the case on other grounds, see Part IV infra, we do not reach the merits of this claim.
. Central Tool Co. v. International Ass’n of Machinists Nat'l Pension Fund, Benefit Plan A, supra note 2, 523 F.Supp. at 818.
. Id.
. Section 302(e), 29 U.S.C. § 186(e) (1982), provides:
The district courts of the United States and the United States courts of the Territories and possessions shall have jurisdiction, for cause shown, and subject to the provisions of section 381 of title 28 (relating to notice to opposite party) to restrain violations of this section, without regard to the provisions of section 17 of title 15 and section 52 of this title, and the provisions of chapter 6 of this title.
. See Copra v. Suro, 236 F.2d 107, 114 (1st Cir.1956); Employing Plasterers’ Ass’n v. Journeymen Plasterers’Protective & Benevolent Soc’y, 279 F.2d 92, 97-98 (7th Cir.1960); Denver Metropolitan Ass'n of Plumbing Contractors v. Journeyman Plumbers & Gas Fitters, 586 F.2d 1367, 1371-1372 (10th Cir.1978); Modern Woodcrafts, Inc. v. Hawley, 534 F.Supp. 1000, 1007-1008 (D.Conn.1982).
. Brief for Appellant/Cross-Appellee at 4.
. 29 U.S.C. §§ 186(a)-(c) (1982). Section 302(d), 29 U.S.C. § 182(d) (1982), provides that any person who willfully violates any of the provisions of § 302 is subject to criminal sanctions.
. Section 302(c)(5), 29 U.S.C. § 186(c)(5) (1982), provides:
. Central Tool Co. v. International Ass’n of Machinists Nat'l Pension Fund, Benefit Plan A, supra note 2, 523 F.Supp. at 813.
. Supra note 3.
. See Copra v. Suro, supra note 29, 236 F.2d at 114-116; Lewis v. Mill Ridge Coals, Inc., 298 F.2d 552, 558 (6th Cir.1962); Van Horn v. Lewis, 79 F.Supp. 541, 544 (D.D.C.1948); In re Bricklayers’ Local No. 1, 159 F.Supp. 37, 42 (E.D.Pa. 1958). See generally Preminger & Clancy, Aspecto of Federal Jurisdiction Under Sections 302(c)(5) and 302(e) of the Taft-Hartley Act — The “Sole and Exclusive Benefit" Requirement, 4 Tex. So.U.L.Rev. 1 (1976).
. E.g., Lewis v. Hogwood, 112 U.S.App.D.C. 105, 106 n. 4, 300 F.2d 697, 698 n. 4 (1962); Bowers v. Ulpiano Casal, Inc., 393 F.2d 421, 423-426 (1st Cir.1968); Burroughs v. Board of Trustees of Pension Trust Fund for Operating Eng’rs, 542 F.2d 1128, 1130 (9th Cir.1976), cert. denied, 429 U.S. 1096, 97 S.Ct. 1113, 51 L.Ed.2d 543 (1977); Insley v. Joyce, 330 F.Supp. 1228, 1231 (N.D.Ill.1971).
. See Bowers v. Ulpiano Casal, Inc., supra note 36, 393 F.2d at 426; Johnson v. Botica, 537 F.2d 930, 933 (7th Cir.1976). See generally Goetz, Employee Benefit Trusts Under Section 302 of Labor Management Relations Act, 59 Nw.U.L. Rev. 719, 736 (1965).
. See Bowers v. Ulpiano Casal, Inc., supra note 36; Moses v. Ammond, 162 F.Supp. 866, 869-871 (S.D.N.Y.1958). Courts also preferred to avoid knotty issues of federal-court jurisdiction under Article III of the Constitution. See Copra v. Suro, supra note 29, 236 F.2d at 114-115.
. See generally Bowers v. Ulpiano Casal, Inc., supra note 36, 393 F.2d at 425; Sanders v. Birthright, 172 F.Supp. 895, 901 (S.D.Ind.1959).
. There is some evidence, for example
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_numappel
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of appellants in the case. If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, Appellant, v. Alice E. LEAHEY, Defendant, Appellee.
No. 7628.
United States Court of Appeals, First Circuit.
Oct. 7, 1970.
Willie J. Davis, Asst. U. S. Atty., with whom Herbert F. Travers, Jr., U. S. Atty., was on brief, for appellant.
Thomas M. Mawn, Jr., Woburn, Mass., for appellee.
Before ALDRICH, Chief Judge, Mc-ENTEE and COFFIN, Circuit Judges.
COFFIN, Circuit Judge.
The issue presented by this case concerns the failure of the Internal Revenue Service (I.R.S.) to follow its own published general procedure, requiring its Special Agents to give certain warnings on initial contacts with taxpayers they are investigating. More precisely, the question is: should the courts exclude evidence obtained from an interview where a Special Agent fails to give the warnings required by that procedure?
After several initial contacts with I.R.S. employees who were not Special Agents, appellee, Alice Leahey, was visited by Special Agents in her own home. Although they identified themselves, they failed to observe the I.R.S. announced procedure of warning her that they were investigating the possibility of criminal tax fraud. At a second visit when the Agents obtained bank statements and books from appellee, they also failed to give any warnings. Appellee was subsequently indicted and arraigned. She filed a motion to suppress the information and books and records obtained by the Special Agents on their two visits to her home. Relying on the general principle that due process requires government agencies to follow their specified procedures and on the Fourth Circuit opinion in United States v. Heffner, 420 F.2d 809 (4th Cir. 1969), the district court allowed appellee’s motion to suppress. The government appeals.
Many courts and commentators have struggled with applying the due process limits on police interrogations to interviews conducted by the I.R.S. I.R.S. investigations differ from those of the police in several ways: they are usually, if not wholly civil, a hybrid civil-criminal investigation; suspects are rarely interrogated while in custody; and the focus is whether or not a crime has been committed as opposed to the normal police problem of identifying the perpetrator of a reported crime. Because of these differences, the rules governing police interrogations do not necessarily apply to interviews conducted by I.R.S. Agents. Although several commentators and a few courts have argued with some persuasiveness that the thrust of the Supreme Court’s opinion in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), requires that all taxpayers interviewed by I.R.S. Agents be warned of the potential criminal implications of a tax investigation, this court has refused to require that the full panoply of Miranda warnings be given a taxpayer, not in custody, who is interviewed by I.R.S. agents.
This difficulty of harmonizing noncustodial interviews conducted by I.R.S. Agents with the requirements of due process resulted in “a number of inquiries” to the I.R.S. As a result, the I.R.S. attempted to comply with the Court’s request in Miranda for “increasingly effective ways of protecting the rights of the individual while promoting efficient enforcement of our criminal laws.” 384 U.S. at 467, 86 S.Ct. at 1624. The I.R.S. publicly announced its new procedure in a news release on October 3, 1967.
On initial contact, Agents are instructed to state, "As a special agent, I have the function of investigating the possibility of criminal tax fraud.” If further investigation is required after preliminary inquiries, the Agent is required to advise the taxpayer of his rights to remain silent and to retain counsel. These procedures were adopted for the specific purpose of insuring “uniformity in protecting the Constitutional rights of all persons.” We face for the first time a case to which this procedure was applicable but not applied.
The government challenges the district court’s reliance on United States v. Heffner, 420 F.2d 809 (4th Cir. 1969), stating that the cases there relied upon all concerned adjudicatory proceedings. It asserts that the strict rules of due process applicable to such proceedings do not apply to investigative proceedings; that agencies have no power to impose exclusionary rules on the courts; and that excluding admissions secured in violation of the I.R.S. announced procedure will result in “endless motions to suppress”.
We consider first the impenetrability of these roadblocks and then search for any positive justification. The major argument advanced for reversal is the distinction, insofar as the applicability of due process rules of fair play are concerned, between adjudicative and investigative proceedings. It is quite true that the precedents relied on in Heffner, see n. 3 supra, as well as other cases, involved adjudicative action by agencies. But the adjudicatory-investigatory dichotomy is a talisman only in the context of an agency hearing. In that context, the distinction is relevant to whether or not the agency is functioning like a court and hence must follow the due process rules that courts follow or whether it is functioning like a legislature and is bound by the lesser restrictions that govern investigative fact-finding. Thus, in Hannah v. Larche, 363 U.S. 420, 80 S.Ct. 1502, 4 L.Ed.2d 1307 (1960), which the government quotes at length, the Supreme Court ruled that the Civil Rights Commission was not bound by the strict due process rules applicable to an adjudicatory agency because it was functioning in only an investigatory, fact-finding capacity in order that it might make legislative recommendations. We recently recognized .the distinction central to Hannah in Hahn v. Gottlieb, 430 F.2d 1243 (1st Cir. 1970).
Here we are faced with the question of the limits which due process imposes on a police agency in the course of a criminal investigation. There can be no doubt that such investigations are subject to due process. As Mr. Justice Frankfurter said, speaking for the Court in McNabb v. United States, 318 U.S. 332, 343, 63 S.Ct. 608, 614, 87 L.Ed. 819 (1943), “A democratic society, in which respect for the dignity of all men is central, naturally guards against the misuse of the law enforcement process.” In determining what limitations due process imposes on police agencies, it is not helpful to say that the due process requirements of adjudication are not imposed on agencies that conduct legislative investigations.
The remaining barriers to our inquiry require less comment. The government cited United States v. Luna (W.D.Tex.), 313 F.Supp. 1294 (May 7, 1970), which held that administrative agencies may not “dictate preconditions for the admissibility of evidence in a federal trial”. Of course we agree with the principle. But we cannot see its applicability. In form the I.R.S. announced procedure has nothing to do with admissibility. The decision as to the exclusionary implications of a violation of the procedure is ours, and based on our sense of the duties and rights so created. The crucial question is whether we must exclude this evidence so that agencies will be compelled to adhere to the standards of behavior that they have formally and purposely adopted in the light of the requirements of the Constitution, even though these standards may go somewhat further than the Constitution requires.
The government also raises the speetor of endless motions to suppress, and hearings thereon, if we affirm. Yet it cites Cohen v. United States, 405 F.2d 34 (8th Cir. 1968), cert. denied, 394 U.S. 943, 90 S.Ct. 1274, 22 L.Ed.2d 478 (1969), which announced that failure of an Agent to comply with I.R.S. procedures will be “among the factors considered * * * in determining whether the nature of the investigation has been misrepresented.” 405 F.2d at 39. Such an approach would seem to us to invite uncertainty and litigation. In contrast, a clear rule excluding admissions secured by an agent who has not conformed to required procedure would be more likely to decrease, rather than increase, the number of such motions and hearings.
What we have said does not answer our question. It merely gives us freedom (to pursue it. We begin our search for \ a rationale by observing that the Court ,/in Miranda, as we have noted, specifi- / cally asked law enforcement agencies to develop better ways of harmonizing the protection of individual rights with efficient enforcement of the law. The Service has tried to do this. We must assume that the publicly announced procedure was arrived at only after painstaking intra-agency assessment. Were we to say that Miranda is the ceiling rather than the floor of the rights of citizens vis-a-vis the government, we would make a mockery of the Miranda invitation.
Beyond this, we see a conjunction of two reasons why due process requires the I.R.S. to follow its announced procedures. The first is that announced in •'the press release itself — the objective of , uniform conduct by all Agents. This is an objective shared by the Service, the public, and the courts. If this self-imposed rule of conduct could be violated without the sanction of judicial exclusion, what would be the result? Of course internal disciplinary measures would be available. But if the case or the culprit were important, and the disobedient officer’s conduct resulted in a conviction, the court playing Pontius Pilate, we suspect that any penalties would be token. Indeed, if evidence obtained from such misconduct were not grounds for objection by defense counsel, or if the case never came to court, we doubt that violations would come to light. The I.R.S. has no great incentive to scrutinize carefully the conduct of interviews by its Agents, if the conduct does not affect the result of the prosecution. Indeed, an Agent’s violation of these procedures in selective cases may benefit the agency. More important, citizens’ faith in the even-handed administration of the laws would be eroded- — just as much as if a municipality applied an ordinance only to a selected group. Cf. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886).
The second reason is that the I.R.S. press release was deliberately in response to “a number of inquiries” and avowedly for the purpose of “protecting the Con\stitutional rights of persons suspected of criminal tax fraud”. When an agency “goes public” it does not do so lightly. Its obligations increase just as do those of a private corporation. This must be so since inquiry of personal, subjective knowledge of a person affected by a procedural dereliction is no more practicable than in the securities field. There is no way of assuring that, once the public announcement has been made, some alert\ taxpayers or their lawyers have not re.-' lied on it.
/■> We do not say that agencies always Violate due process when they fail to ad-There to their procedures. It is important here that the procedure set forth in the news release was an agency wide directive designed to protect taxpayers by setting a clear and uniform standard governing the first contact between a Special Agent and a tax fraud suspect. Our result would have been different if the ! I.R.S. had violated a procedure designed to promote some other agency goal. Thus, if I.R.S. procedures stated that ■ only trained Special Agents were to interview suspects, an interrogation which complied with all other procedures but was conducted by an accountant, would not seem to us to conflict with due process. Such a deviation from I.R.S. procedures would not deprive the person interviewed of protection that was afforded to other taxpayers; his interview would not differ significantly from others except that his questioner would be less adept. Only the efficiency of I.R.S. operations would be harmed. Unlike the situation here, the agency would gain no advantage from the selective unenforcement of its procedures, and the agency would have no disincentive to dis-. cipline the transgressing employee.
We further say that the public announcement of a procedure would not necessarily require exclusion of evidence obtained in violation thereof. For example, a procedure announcing that uniformed officials will conduct criminal investigations would not reasonably induce citizens to engage in criminal activity or to make incriminating statements in the presence of law enforcement officers who are not in uniform. No one has the right to commit a crime, even if misled by the government as to its enforcement methods. No one can complain of the internal authorization of known government interrogators if otherwise not likely to be misled as to the context of the questioning.
Here, however, we have the two factors intersecting: (1) a general guideline, deliberately devised, aiming at accomplishing uniform conduct of officials which affects the post-offense conduct of citizens involvecTnr'a crimlMTinves-. tigation; and (2) an jeqjndly deliberate, public announcement, made in response to inquiries, on which many taxpayers] and their advisors could reasonably and expeetably rely. Under these circumstances we hold that the agency had a duty to conform to its procedure, that citizens have a right to rely on conformance, and. that the courts must enforce both the right and duty.
Affirmed.
. Duke, Prosecutions for Attempts to Evade Income Tax: A Discordant View of a Procedural Hybrid, 76 Yale D.J. 1 (1966); Hewitt, The Constitutional Rights of the Taxpayer in A Fraud Investigation, 44 Taxes 660 (1966),; Andres. The Right to Counsel in Criminal Tax Investigations Under Escobedo and Miranda: The “Critical Stage”, 53 Iowa L.Rev. 1074 (1968); Note, Extending Miranda to Administrative Investigations, 56 Va.L.Rev. 690 (1970); United States v. Dickerson, 413 F.2d 1111 (7th Cir. 1969); United States v. Turzynski, 268 F.Supp. 847 (N.D.Ill.1967).
. Taglianetti v. United States, 398 F.2d 558 (1st Cir. 1968), aff’d, 394 U.S. 316, 89 S.Ct. 1099, 22 L.Ed.2d 302 (1969); Spinney v. United States, 385 F.2d 908 (1st Cir. 1967), cert. denied, 390 U.S. 921, 88 S.Ct. 854, 19 L.Ed.2d 981 (1968); Schlinsky v. United States, 379 F.2d 735 (1st Cir. 1967), cert. denied, 389 U.S. 920, 88 S.Ct. 236, 19 L.Ed.2d 265 (1967); Morgan v. United States, 377 F.2d 507 (1st Cir. 1967). Judge Heaney’s opinion in Cohen v. United States, 405 F.2d 34. 37 n. 7 (8th Cir. 1969), cert. denied, 394 U.S. 943, 89 S.Ct. 1274, 22 L.Ed.2d 478 (1969), catalogues an extensive list of cases in most of the circuits upholding convictions even though the full Miranda warning was not given. In most of those cases, however, some minimal warning was given.
. United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954); Service v. Dulles, 354 U.S. 363. 77 S.Ct. 1152. 1 L.Ed.2d 1403 (1957); Vitarelli v. Seaton, 359 U.S. 535. 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959).
. United States ex rel. Brooks v. Clifford, 409 F.2d 700 (4th Cir. 1969); Hammond v. Lenfest, 398 F.2d 705 (2d Cir. 1968); Dunmar v. Ailes, 121 U.S.App.D.C. 45, 348 F.2d 51 (1955); Smith v. Resor, 406 F.2d 141 (2d Cir. 1969); American Broadcasting Co. v. F. C. C., 85 U.S.App. D.C. 343, 179 F.2d 437 (1949); Sangamon Valley Television Corp. v. United States, 106 U.S.App.D.C. 30, 269 F.2d 221 (1959); Pacific Molasses Co. v. F. T. C., 356 F.2d 386 (5th Cir. 1966); Yellin v. United States, 374 U.S. 109, 83 S.Ct. 1828, 10 L.Ed.2d 778 (1963).
. IV e there held when a government agency engaged in legislative-like fact-finding, persons affected were not entitled to the same due process rights which would have been available had the agency been engaged in adjudication.
Question: What is the total number of appellants in the case? Answer with a number.
Answer:
|
sc_caseoriginstate
|
42
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state of the court in which the case originated. Consider the District of Columbia as a state.
ADKINS, ADMINISTRATRIX, v. E. I. DuPONT de NEMOURS & CO., INC. UNITED STATES, Intervenor.
No. 1,
Misc.
Argued October 18, 1948.
Decided November 22, 1948.
John W. Porter, Jr. argued the cause and filed a brief for petitioner.
G. C. Spillers argued the cause for the E. I. DuPont de Nemours.& Co., respondent. With him on the brief was Peter B. Collins.
Solicitor General Perlman, Assistant Attorney General Morison, Robert L. Stern, Paul A. Sweeney, Harry I. Rand and Morton Hollander filed a brief for the United States, intervenor. They expressed the view that this Court should remand the case to the District Court for reconsideration of the entire question of leave to proceed in forma pauperis — in the light of principles to be enunciated by this Court.
Mr. Justice Black
delivered the opinion of the Court.
The questions presented chiefly involve the scope and application of the statute which authorizes a citizen to prosecute or defend actions in federal courts “without being required to prepay fees or costs or for the printing of the record in the appellate court . . . upon filing in said court a statement under oath in writing, that because of his poverty he is unable to pay the costs of said suit or action or appeal, or to give security for the same, . . .”
This action was filed in the United States District Court for the Northern District of Oklahoma by P. V. Adkins. Mr. Adkins died while the litigation was pending and his wife having been appointed administratrix of his estate was substituted as plaintiff. The original complaint claimed overtime compensation, damages and attorneys’ fees on behalf of Mr. Adkins and twelve other employees of the respondent “under and pursuant to the Fair Labor Standards Act of 1938 (Title 29, U. S. C. A. Secs: 201-219) and Executive Order #9240 as amended (Title 40 U. S. C. A. following Sec. 326) . ...”
From a dismissal of her complaint in the District Court and the denial by that court of her motion to set the dismissal aside and grant a new trial, petitioner filed in the District Court a motion to appeal to the United States Court of Appeals for the Tenth Circuit. She also filed a motion that the appeal be allowed in forma pauperis. Her affidavit in support of this motion stated that petitioner was a widow 74 years of age; the estimated costs of the appeal record would be approximately $4,000; all she had was a home, inherited from her husband, appraised at $3,450; her only source of income was rent from parts of her home; and without such income she would not be able to purchase the necessities of life. No objection appears to have been filed to her motion to appeal in forma pauperis, but the motion was denied by the court. Apparently denial was for two reasons: (1) She could not proceed in forma pauperis where there were twelve other claimants involved who had filed no affidavits of poverty; (2) the court assumed that petitioner’s lawyers were employed on a contingent fee basis, and was of opinion that she therefore could not appeal in forma pauperis unless the lawyers either prepaid the costs, gave security for costs or filed an affidavit of their poverty along with petitioner and all other claimants.
Petitioner then filed an application for appeal in forma pauperis in the United States Court of Appeals. This application was denied. The denial, so the record indicates, was on the ground that to appeal in forma pauperis, Mrs. Adkins, the twelve employees, and all the members of the law firm representing her would have to make affidavits of poverty.
Petitioner then went back to the District Court. Ten of the twelve employees filed affidavits in each of which this statement appeared: . . because of my poverty I am unable to pay or give security for the costs ($4,000) of such appeal and still be able to provide myself and my dependents with the necessities of life.” An affidavit with identical language was filed by one member of the firm of lawyers representing petitioner. The affidavit also stated that the firm’s interest in all fees from this litigation had been assigned to affiant. No affidavit of poverty was filed by the other members of the firm. An affidavit was filed for the firm, however, stating a belief that the claims were meritorious, that appeal costs had been estimated at about $4,000, and that the total liquid assets of the firm did not exceed $2,000. One of the twelve claimants could not be located and one refused to sign an affidavit of poverty.
The district judge for the second time denied the motion to permit appeal without security for costs. His grounds seem to have been these. Two of the claimants had signed no affidavit of poverty; unless all signed, there could be no in forma pauperis appeal. The affidavits of petitioner, the ten claimants, and the attorneys were held insufficient in that they failed to show the precise financial condition of affiants, “whether they were or were not without property.” The judge was not sure just what affiants would have to show as to property, but felt that each should prove a complete inability to pay at least a portion of the costs. All interested in the recovery, he thought, including the lawyers, “have at least got to chip in to the extent of their ability to pay; and whatever they have, they have got to put in the pot for the purpose of taking the appeal.” The judge was “inclined to believe but not sure” that before Mrs. Adkins could be permitted to appeal in forma pauperis she must mortgage her home and “chip in” what she received on the mortgage loan. He construed all the affidavits as showing no more than that it would constitute a hardship to pay or give security for the payment of $4,000 to make the record. This statement as to “hardship” he thought did not meet the statutory requirement for an affidavit of inability to pay or secure costs due to “poverty.”
Furthermore, the judge thought petitioner had designated more for the record than was needed to decide the dismissal question raised by the appeal. He therefore believed that a $4,000 record was “wholly unnecessary.” Since the judge believed he was without power directly to limit the contents of the appellate record, he felt “persuaded to be more technical and more strict” on the type of in forma pauperis affidavits he required.
The Court of Appeals thereafter denied a second motion of petitioner to accept its appeal in forma pauperis. Petitioner then applied to this Court for certiorari to review the actions of the Court of Appeals and of the District Court in denying petitioner leave to appeal in forma pauperis. Petitioner further asked the court for leave to proceed here without giving security for costs. We set the motion down for argument. The matter has now been submitted on briefs and oral argument. The affidavits of poverty filed to proceed here in forma pauperis are the same as the affidavits filed in the two courts below.
If these affidavits are thought to be insufficient to support her motion, the petitioner urges that we give directions concerning additional requirements. While for our purposes the affidavits would have been more acceptable had they merely followed the language of the statute, our rules have provided no precise requirements. But the only questions presented here relate to the sufficiency of these affidavits in the two courts below. And to reach these questions, which are important, we must either accept the affidavits as sufficient or delay final consideration of the case. We accept the affidavits, grant the petition for certiorari, and the case having been fully argued, we proceed to pass on the questions presented so far as necessary. See Steffler v. United States, 319 U. S. 38.
First. We do not think the court was without power to protect the public from having to pay heavy costs incident to the inclusion of “wholly unnecessary” matters in an in forma pauperis appeal. Sections 1 and 4 of the statute provide that a court may exercise a limited judicial discretion in the grant or denial of the right and this Court has so held. Kinney v. Plymouth Rock Squab Co., 236 U. S. 43, 45, 46. Rule 75 (m) of our present Rules of Civil Procedure reads as follows:
Appeals in Forma Pauperis. Upon leave to proceed in forma pauperis, the district court may by order specify some different and more economical manner by which the record on appeal may be prepared and settled, to the end that the appellant may be enabled to present his case to the appellate court. [329 U. S. 870.]
We know of few more appropriate occasions for use of a court’s discretion than one in which a litigant, asking that the public pay costs of his litigation, either carelessly or wilfully and stubbornly endeavors to saddle the public with wholly uncalled-for expense. So here, the court was not required to grant the petitioner’s motion if she wrongfully persisted in including in the appeal record masses of matter plainly irrelevant to the issues raised on appeal. See Estabrook v. King, 119 F. 2d 607, 610. And, of course, under Rule 75 (m) the court may save the costs of printing by providing for a typewritten record. If exercise of discretion by a district court should result in an unfair and incomplete record to a litigant’s injury, the court’s error could be remedied. Its action would be subject to review by the appellate court. Moreover, if in obedience to court order a party should agree to a record inadequate for appellate court purposes, that court would have power, upon motion or sua sponte, to require addition of material necessary to enable the court fairly to decide the appeal questions presented.
Second. The statute allowing in forma pauperis appeals provides language appropriate for incorporation in an affidavit. One who makes this affidavit exposes himself “to the pains of perjury in a case of bad faith.” Pothier v. Rodman, 261 U. S. 307, 309. This constitutes a sanction important in protection of the public against a false or fraudulent invocation of the statute’s benefits. Furthermore, the statute provides other sanctions to protect against false affidavits. Section 4 authorizes a court to dismiss actions brought on affidavit of poverty “if it be made to appear that the allegation of poverty is untrue.” And § 5 provides another safeguard against loss by the Government due to false affidavits in that a court is permitted, in its discretion, to render judgment for costs “at the conclusion of the suit as in other cases.” Consequently, where the affidavits are written in the language of the statute it would seem that they should ordinarily be accepted, for trial purposes, particularly where unquestioned and where the judge does not perceive a flagrant misrepresentation.
Here, the affidavits were not couched in the language of the statute. They went outside that language. Estimating that the costs would be $4,000, each affidavit stated that the affiant could not pay or secure $4,000. In other words, the affidavits here tied inability to pay to a fixed cost of $4,000. Under these circumstances, we think the court was justified in looking further to see if the cost really should have been $4,000 and if not, the judge was right in requiring affidavits made with an appreciation by affiants of the lesser amount of expense to which they might be subjected by the appeal.
Third. We cannot agree with the court below that one must be absolutely destitute to enjoy the benefit of the statute. We think an affidavit is sufficient which states that one cannot because of his poverty “pay or give security for the costs . . . and still be able to provide” himself and dependents “with the necessities of life.” To say that no persons are entitled to the statute’s benefits until they have sworn to contribute to payment of costs, the last dollar they have or can get, and thus make themselves and their dependents wholly destitute, would be to construe the statute in a way that would throw its beneficiaries into the category of public charges. The public would not be profited if relieved of paying costs of a particular litigation only to have imposed on it the expense of supporting the person thereby made an object of public support. Nor does the result seem more desirable if the effect of this statutory interpretation' is to force a litigant to abandon what may be a meritorious claim in order to spare himself complete destitution. We think a construction of the statute achieving such consequences is an inadmissible one. See cases collected in 6 A. L. R. 1281-1287 for a discussion as to whether a showing of complete destitution should be made under this and similar statutes.
Fourth. We do not think that this petitioner can be denied a right of appeal under the statute merely because other claimants will neither give security for costs nor sign an affidavit of poverty. This case illustrates that such a restrictive interpretation of this statute might wholly deprive one of several litigants of a right of appeal, even though he had a meritorious case and even though his poverty made it impossible for him to pay or give security for costs. Such a deprivation would frustrate the basic purpose of the statute. This does not mean that one' of several claimants financially able but unwilling to pay his proportionate part of the costs could demand the benefits of an appeal perfected by another claimant under the in forma pauperis statute. But it does mean in this case that the petitioner, upon making the required affidavit of poverty, was entitled to appellate review of the issues the district court decided against her, without regard to whether other claimants filed an affidavit of poverty, or paid or secured their fair part of the costs.
Fifth. Petitioner’s appeal under the statute was denied in part because her attorneys, thought by the District Court to have been employed on a contingent fee basis, had not shown to the court’s satisfaction that they were unable on account of poverty to pay or give security for costs. We think the statute imposes no such burden on a lawyer who is to share in the recovery through contract by reason of his legal services. We are aware that some district and circuit courts of appeal have so construed the Act, and that some have even adopted rules which impose this requirement on lawyers. Other district and circuit courts of appeal have declined to interpret the statute as imposing such a burden on lawyers who represent litigants too poor to pay or secure the costs.
Many states, apparently including Oklahoma where this case was tried, make it illegal for lawyers to sign a bond to secure costs for their clients in any civil or criminal action. It would have been an innovation had Congress in this statute expressly permitted lawyers trying cases in federal courts to contract with their clients to pay or secure costs in their clients’ cases. But it would have been a surprising legislative innovation for Congress to command that lawyers pay or secure such costs. That Congress did not do this seems to be strongly indicated by the basic statute itself.
Section 1 of that statute is intended to guarantee that no citizen shall be denied an opportunity to commence, prosecute, or defend an action, civil or criminal, “in any court of the United States” solely because his poverty makes it impossible for him to pay or secure the costs. Not content with this safeguard for the poor in federal courts, Congress in § 4 of the Act provided that “the court may request any attorney of the court to represent such poor person, if it deems the cause worthy of a trial, . . .” Certainly a lawyer appointed under § 4 could not be required to pay the costs of an appeal. Nor could such an appointed lawyer have a burden of this kind cast upon him if Congress had required payment of a fee for appointed counsel in an amount fixed as reasonable by the court, a requirement that some state laws have provided. Yet, such a “reasonable fee” fixed by a court would be a “contingent fee” should we accept respondent's argument in this case. For respondent contends that because the Fair Labor Standards Act authorizes a court to fix a reasonable fee for attorneys prosecuting overtime claims for employees, this petitioner’s lawyers are on a contingent fee basis. They therefore according to respondent have a financial interest in the recovery. Consequently, respondent argues, petitioner must abandon her appeal and her claim unless these lawyers pay costs, secure them, or make affidavits of poverty.
No proof is needed that imposition of such onerous burdens on employees’ lawyers would put serious obstacles in the way of employees obtaining the kind of legal representation Congress intended to provide for them in the Fair Labor Standards Act. And since § 4 of the in forma pauperis statute was plainly intended to assure legal representation to the poor, it is also obvious that the purpose of that Act could be frustrated in part by construing the statute as imposing a guarantee of appeal costs on all lawyers employed to represent the poor on a contingent basis. For if a person is too poor to pay the costs of a suit, sometimes very small in amount, how can it be imagined that he could possibly pay a fair fee except from the recovery he obtains?
The statute here under consideration is not susceptible of a construction that would impose more burdens on lawyers employed by litigants unable to pay fees except on a contingent basis, than the burdens imposed on lawyers for those litigants who are able to employ counsel by the year or by payment of straight noncontingent fees. Section 3 of the statute specifically states that litigants who make affidavits of poverty shall be entitled to the same court processes, have the same right to the attendance of witnesses, and the same remedies as are provided by law in other cases. And as pointed out, § 4 of the statute makes it abundantly clear that poor litigants shall have the same opportunity to be represented by counsel as litigants in more fortunate financial circumstances. The statutory construction urged by respondent here would result in restricting the opportunities of the poor litigant in getting a lawyer who would follow his case through the appellate courts. For as was said by the Court of Appeals in Clark v. United States, 57 F. 2d 214, 216: “. . . The same poverty that compels a litigant to avail himself of this beneficent statute makes it impossible for him to hire counsel. He can procure counsel only by agreeing that out of the proceeds of his case, if there are proceeds, counsel shall be compensated. . . . In practical effect he [a poor litigant] is denied counsel if his counsel must either himself guarantee the costs or file an affidavit that he also is penniless. The statute was intended for the benefit of those too poor to pay or give security for costs, and it was not intended that they should be compelled to employ only paupers to represent them.”
It was error to deny petitioner’s motion for appeal under the statute on the ground that her lawyers had not made satisfactory affidavits of poverty. The statute requires no affidavit at all from them as a condition of appeal.
What we have said makes it unnecessary for us to pass on the contention of respondent that an agreement for a contingent fee payable out of an employee’s recovery to prosecute claims under the Fair Labor Standards Act is invalid.
The orders denying appeal in forma pauperis are vacated and the cause is remanded to the District Court for further proceedings not inconsistent with this opinion.
It is so ordered.
27 Stat. 252, as amended, 36 Stat. 866, 42 Stat. 666, 28 U. S. C. § 832. The substance of §§ 1 to 5 of the original statute as amended has now been incorporated in §§ (a) to (e) of 28 U. S. C. § 1915.
Section 16 (b) of the Fair Labor Standards Act, 52 Stat. 1069, 29 U. S. C. §216 (b), authorized employees’ suits by agents. Here the agent was acting “for a consideration contingent upon recovery.” An amendment of this section, the Portal-to-Portal Act, 61 Stat. 84, 29 U. S. C. Supp. I, §§ 251-252, limited the circumstances under which such representative actions could be maintained.
Executive Order No. 9240, 7 Fed. Reg. 7159 (1942), as amended, 7 Fed. Reg. 7419 (1942).
We do not mean to indicate that the issues sought to be raised by this petitioner on her appeal could have been properly presented to the Court of Appeals with nothing other than the very limited record the trial court apparently thought would be adequate. The case was dismissed because the District Court thought it had been deprived of jurisdiction by the Portal-to-Portal Act, supra. This Act purports to deprive federal courts of jurisdiction to enforce payment of overtime wages based on any activity except one com-pensable by either “(1) an express provision of a written or nonwrit-ten contract ... or (2) a custom or practice in effect, at the time of such activity,” at the place of employment, and not inconsistent with a written or nonwritten contract governing such employment. Petitioner had contended that examination by the court of the entire record including evidence already taken by a special master would show that employees’ claims for compensation were supported by express contracts or by custom. He contended that the Portal-to-Portal Act was therefore inapplicable under the facts 'of this case and that consequently the dismissal under that Act was erroneous. Petitioner’s application to amend her complaint to conform to the evidence was denied by the court. Cf. Maty v. Grasselli Chemical Co., 303 U. S. 197, 200-201; Hoiness v. United States, 335 U. S. 297. It would appear that the petitioner was entitled to have a record that was not so limited as to deprive the Court of Appeals of an opportunity to review these issues she raised.
United States ex rel. Randolph v. Ross, 298 F. 64; Bolt v. Reynolds Metal Co., 42 F. Supp. 58; Esquibel v. Atchison, T. & S. F. R. Co., 206 F. 863; Feil v. Wabash R. Co., 119 F. 490; Phillips v. Louisville & N. R. Co., 153 F. 795; The Bella, 91 F. 540, 543; Boyle v. Great Northern R. Co., 63 F. 539; Silvas v. Arizona Copper Co., 213 F. 504, 507-508.
Rule 26 (1), Rules of United States Court of Appeals for the Third Circuit; Rule 18 (2), Rules of United States Court of Appeals for the Sixth Circuit; Chetkovich v. United States, 47 F. 2d 894, but see Deadrich v. United States, 67 F. 2d 318.
Quittner v. Motion Picture Producers and Distributors of America, 70 F. 2d 331; United States ex rel. Payne v. Call, 287 F. 520; Jacobs v. North Louisiana & Gulf R. Co., 69 F. Supp. 5; Clark v. United States, 57 F. 2d 214; Evans v. Stivers Lumber Co., 2 F. R. D. 548.
See Okla. Stat. tit. 5, § 11 (1941). See also Watkins v. Sedberry, 261 U. S. 571, 576; Peck v. Heurich, 167 U. S. 624, 630. But see, Radin, Contingent Fees in California, 28 Calif. L. Rev. 587, 589, 598 (1940).
Clay County v. McGregor, 171 Ind. 634, 87 N. E. 1; County of Dane v. Smith, 13 Wis. 585; Ryce v. Mitchell County, 65 Iowa 447, 21 N. W. 771; State v. Hudson, 55 R. I. 141, 143, 179 A. 130, 131.
See Radin, Contingent Fees in California, supra at p. 589; United States ex rel. Payne v. Call, 287 F. 520, 522; Clark v. United States, 57 F. 2d 214, 216.
Question: What is the state of the court in which the case originated?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
26. Massachusetts
27. Michigan
28. Minnesota
29. Mississippi
30. Missouri
31. Montana
32. Nebraska
33. Nevada
34. New Hampshire
35. New Jersey
36. New Mexico
37. New York
38. North Carolina
39. North Dakota
40. Northern Mariana Islands
41. Ohio
42. Oklahoma
43. Oregon
44. Palau
45. Pennsylvania
46. Puerto Rico
47. Rhode Island
48. South Carolina
49. South Dakota
50. Tennessee
51. Texas
52. Utah
53. Vermont
54. Virgin Islands
55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer:
|
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.
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. DARLING & COMPANY, Respondent.
No. 17394.
United States Court of Appeals Seventh Circuit.
Jan. 6, 1970.
Marcel Mallet-Prevost, Asst. Gen. Counsel, Washington, D. C., Robert A. Giannasi, Atty., N. L. R. B., Washington, D. C., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, and Madge F. Jefferson, Attys., N. L. R. B., Washington, D. C., for petitioner.
J. Ternell Vaughan, Fred Leicht, Jr., Armstrong, Teasdale, Kramer & Vaughan, St. Louis, Mo., for respondent.
Before KNOCH, Senior Circuit Judge, and FAIRCHILD and KERNER, Circuit Judges.
KNOCH, Senior Circuit Judge.
This matter is before us on application of the National Labor Relations Board filed pursuant to § 10(e) of the National Labor Relations Act, as amended, Title 29 U.S.C. § 151 et seq., § 160(e), for enforcement of its Order of April 4, 1968, reported at 170 NLRB No. 127, in which the Board directed the respondent, Darling & Company, to cease and desist from specific violations found and from interfering in any similar manner with the rights of its employees under § 7 of the Act. The Board found that respondent violated § 8(a) (1), (3) & (4) » of the Act by withholding severance pay from one group of employees while granting it to another and further violated § 8(a) (1) by announcing its decision to do so. The Board directed respondent further to grant severance pay to the production employees on the same terms (with interest) as was awarded other employees on the payroll at the East St. Louis plant at the time that plant closed on March 31, 1967, with notices to be sent to the last known addresses of all the employees.
The difficulties between respondent and International Chemical Workers Union, AFL-CIO, Local No. 127, which represents the production employees, go back to 1965 when extended contract negotiations culminated in a lockout of the production employees on December 16, 1965. One of the production employees, Lewis Lane, as an individual, filed an unfair labor practice charge with the Board on January 4, 1966, and on March 30, 1967, the Trial Examiner found that the lockout had been unlawful and recommended an order directing respondent to make whole all the employees from the first day of the lockout. Subsequently on May 23, 1968, the Board held otherwise that this lockout had been a legitimate economic weapon and did not constitute an unfair labor practice. Mr. Lane’s petition to review that decision is pending before the Court of Appeals for the District of Columbia (#22,357) in which respondent has been allowed to intervene.
In the meantime, however, negotiations continued after the lockout and an agreement was reached February 15, 1966, which was to remain in force until December 1,1967 and to be renewed from year to year in the absence of written notice.
In the proceedings before the Trial Examiner respecting the lockout, Roy L. Thompson, a representative of the Chemical Workers Union testified that as part of that agreement his Union undertook not to file charges because of the December 16, 1965 shutdown, but that the action of an individual member was beyond Union control.
The crane operators and maintenance electricians at respondent’s East St. Louis plant were represented by the International Brotherhood of Electrical Workers, Local No. 309. The maintenance millwrights and carpenters were represented by the United Brotherhood of Carpenters and Jointers, Local No. 169.
Robert S. Rowe, Labor Relations Attorney for respondent, testified that on December 5, 1966, he notified representatives of all three unions that on failure of attempts then being made to sell the East St. Louis plant as a going concern the plant would be shut down. On or about February 14, 1967, he wrote the three unions that a complete shutdown of operations was contemplated on or about April 1, 1967. The Trial Examiner found that the plant was closed on March 31, 1967, concededly for purely economic reasons. He also found that respondent had made extensive efforts to find other employment for its employees.
On the morning of March 30, 1967, representatives of respondent met with representatives of the IBEW and Carpenters unions and agreed to grant severance pay to the employees they represented. The respondent stresses the fact that counsel for the Carpenters wrote requesting that meeting to bargain on specific proposals including severance pay, and that at the meeting with the Carpenters and IBEW together as had been the practice frequently in the past, it was tacitly understood that the aforesaid counsel was speaking for both unions.
In the afternoon at a meeting with the Chemical Workers, the Union President, Silas Watson, asked whether the respondent would give the production workers whom his Union represented similar severance pay. There was a conflict in the testimony as to the exact reply made by Mr. Rowe.
Mr. Rowe testified that he said the company had decided that it was not going to do so “at that time”; that the company wanted to defer the question on severance pay for the people in this bargaining unit until it ascertained what liability in connection with the unfair labor practice hearing would result (estimates ran as high as $50,000) and the company felt it wanted to know just what the economic situation was before it came to a decision on a severance pay arrangement. [The decision of the Trial Examiner, as it happened, issued the following day after the meeting with the Chemical Workers Union.] He also testified that he indicated if it developed there was no back pay liability, he felt that the company would treat the production employees on the same basis as those in the other two bargaining units; that the decision on severance pay at that time was not his to make. He denied ever saying that if the company were found liable for back pay, it would not give severance pay. Mr. Watson testified that Mr. Rowe had said that if the company did not “win” the case, it would not give severance pay. The Trial Examiner credited Mr. Rowe’s evidence as to the content of his statement.
The respondent contrasts the facts respecting the other two unions with the absence of any written or oral request from the Chemical Workers specifically to bargain over severance pay prior or subsequent to the meeting with Mr. Rowe. However, there was testimony by Mr. Thompson of the Chemical Workers respecting an exchange of telephone calls with respondent’s Plant Manager, Lee Stahlman, to set up a meeting to discuss the plant closing and related matters. Mr. Stahlman did not appear as a witness. The Trial Examiner found Mr. Thompon’s evidence credible. As indicated such a meeting was held on March 30, 1967 and the issue of severance pay was raised.
No severance pay has been given to the production employees. Such pay has been given to most of the employees represented by the other two unions.
The action of the respondent thus penalized employees represented by the one union involved in the pending Board proceedings on the lockout. Regardless of the asserted lack of intent to do so, respondent’s actions must have discouraged affiliation with the Chemical Workers. Radio Officers’ Union v. National Labor Relations Board, 1954, 347 U.S. 17, 45 et seq., 74 S.Ct. 323, 98 L.Ed. 455. Respondent would distinguish this case and similar cases on the ground that they deal with inherently discriminatory practices which require no specific evidence of an employer’s motive to discourage union membership on the ground that one is presumed to intend the foreseeable consequences of his conduct. We do not agree that the facts of this case take it out of the scope of Radio Officers. Nor do we agree that this case is distinguished from NLRB v. Great Dane Trailers, Inc., 1967, 388 U.S. 26, 33, 87 S.Ct. 1792, 18 L.Ed.2d 1027, on which the Trial Examiner relied because the vacation benefits there given to non-strikers and denied strikers accrued under a collective bargaining contract in a strike climate.
The respondent sees no possible threat in the announcement of a mere postponement in consideration of the issue, especially as the Union was powerless to withdraw the charge had it so desired. The respondent must have foreseen that its action would inhibit filing charges and testifying in support of them. Section 8(a) (4) has long been construed as designed to prevent “the Board’s channels of information from being dried up by employer intimidation of prospective complainants and witnesses.” John Hancock Mutual Life Insurance Company v. NLRB, 1951, 89 U.S.App. D.C. 261, 191 F.2d 483, 485.
It is respondent’s view that had punishment of the Union been an objective a flat refusal even to consider severance pay would have been more logical. We believe such a course of action would have represented a difference in degree rather than in kind.
The respondent also contends that even if there was an inference of a threat it was far outweighed by the clear business justification for the delay. But, as the Board noted, only employees represented by the Union whose member had filed the charge were made to bear the economic burden of the possible adverse results of that charge.
We do not agree with the respondent that there is an inconsistency in the Trial Examiner’s finding that Mr. Rowe did not use the words “win” or “lose” with reference to the outcome of the then pending Board case and then going on to conclude that his statements carried the intendment that if the respondent lost the pending case it would not grant severance pay to the production employees. The Trial Examiner said that Mr. Rowe was experienced in labor-management negotiations and it was most unlikely he would use the words “win” or “lose” in this discussion but that his admitted statements were sufficiently plain.
The respondent is still doing business at its other plants and to limit the negative “desist” aspects of the Order, as respondent asks, to the closed East St. Louis plant would render those aspects of the Order a nullity.
We do not read the Order as directing severance pay “in the same amounts” as respondent complains, pointing out that the vacation benefits which figured in the computations are not identical for all three unions, for example. The Order says “on the same terms and in the same amounts” as the other employees which merely calls for computation on the same non-discriminatory basis. Problems arising in such computation may be resolved in the compliance stage. The possibility of such problems does not justify denial of enforcement of the Board’s Order. NLRB v. Acme Mattress Co., 7 Cir., 1951, 192 F.2d 524, 528. The Order of the Board will be
Enforced.
. [§ 7] Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section [8] (a) (3).
. § 8(a) It shall be an unfair labor practice for an employer—
(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section [7] of this title;
(2) to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it: Provided, That subject to rules and regulations made and published by the Board pursuant to section [6], an employer shall not be prohibited from permitting employees to confer with him during working hours without loss of time or pay;
(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization :
* * * * *
(4) to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under this subehapter.
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_circuit
|
D
|
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, Appellant, v. F. Boyd FOWLER, d/b/a Fowler & Chaney Coal Company and Glen A. Smith, d/b/a Loose Jaw Coal Company, Appellees.
No. 80-1259.
United States Court of Appeals, Fourth Circuit.
Argued Feb. 4, 1981.
Decided April 21, 1981.
Rehearing and Rehearing En Banc Denied July 2,1981.
John S. Edwards, U. S. Atty., Enoch E. Ellison, Sp. Asst. U. S. Atty., Roanoke, Va. (Thomas R. King, Jr., Asst. U. S. Atty., Roanoke, Va., on brief), for appellant.
Eugene K. Street, Grundy, Va. (Street, Street & Street, Grundy, Va., on brief), and Thomas W. McCandlish, Richmond, Va. (Richard L. Williams, Robert E. Payne, McGuire, Woods & Battle, Richmond, Va., on brief), for appellees.
Before MURNAGHAN and ERVIN, Circuit Judges, and MERHIGE , District Judge.
The Honorable Robert R. Merhige, Jr., United States District Judge for the Eastern District of Virginia, sitting by designation.
ERVIN, Circuit Judge:
The government appeals denial of its motion for partial summary judgment, the district court, 484 F.Supp. 843 having certified an issue as a controlling question of law, which permits an interlocutory appeal under 28 U.S.C. § 1292(b). We affirm.
I.
Between 1970 and 1976, the Secretary of the Interior (the Secretary) inspected coal mines operated by J. Boyd Fowler d/b/a Fowler & Chaney Coal Company (Fowler) and Glen Smith d/b/a Loose Jaw Coal Company (Smith) and issued numerous notices of violations of the mandatory safety standards of the Federal Coal Mine Health and Safety Act of 1969, Pub.L. 91-173, 83 Stat. 742, 30 U.S.C. § 801 et seq. (the Act). Pursuant to section 104(b) of the Act, the inspector fixed times for the abatement of the violations.
In order to avoid having their mines closed, both Fowler and Smith abated the alleged violations within the allotted times, but they refused to pay the civil penalties assessed by the Secretary under section 109(a)(1) of the Act. The Secretary brought enforcement proceedings in district court, and the cases were consolidated for trial.
Fowler and Smith denied having committed the violations and requested a de novo trial by jury under section 109(a)(4) of the Act, which provides in pertinent part:
The [district] court shall have jurisdiction to enter a judgment enforcing, modifying, and enforcing as so modified, or setting aside in whole or in part the order and decision of the Secretary [under section 109(a)(3)] or it may remand the proceedings to the Secretary for such further action as it may direct. The court shall consider and determine de novo all relevant issues, except issues of fact which were or could have been litigated in review proceedings before a court of appeals under section 106 of this title, and upon the request of the respondent, such issues of fact which are in dispute shall be submitted to a jury. On the basis of the jury’s findings, the court shall determine the amount of the penalty to be assessed.
30 U.S.C. § 819(a)(4).
The government moved for partial summary judgment on the issue of liability, arguing that because the validity of the violations could have been litigated under the review procedures of sections 105 and 106 of the Act, only the amount of penalty could be determined de novo in the district court under section 109(a)(4). Section 105(a)(1), providing for review by the Secretary, reads in part:
An operator issued an order pursuant to the provisions of section 104 of this title, or any representative of miners in any mine affected by such order or by any modification or termination of such order, may apply to the Secretary for review of the order within thirty days of receipt thereof or within thirty days of its modification or termination. An operator issued a notice pursuant to section 104(b) or (i) of this title, or any representative of miners in any mine affected by such notice, may, if he believes that the period of time fixed in such notice for the abatement of the violations is unreasonable, apply to the Secretary for review of the notice within thirty days of the receipt thereof.... Upon receipt of such application, the Secretary shall .. . enable the operator and the representative of miners in such mine to present information relating to the issuance and continuance of such order or the modification or termination thereof or to the time fixed in such notice.
30 U.S.C. § 815(a)(1).
And section 106(a), outlining procedures for judicial review of the Secretary’s orders and decisions, reads in part:
Any order or decision issued by the Secretary or the Panel under this Act, except an order or decision under section 109(a) of this Act, shall be subject to judicial review by the United States court of appeals for the circuit in which the affected mine is located, or the United States Court of Appeals for the District of Columbia Circuit, upon the filing in such court within thirty days from the date of such order or decision of a petition by any person aggrieved by the order or decision praying that the order or decision be modified or set aside in whole or in part, except that the court shall not consider such petition unless such person has exhausted the administrative remedies available under this Act.
30 U.S.C. § 816(a).
Fowler and Smith argued that a section 104(a) violation notice is not reviewable under section 106, although a withdrawal order is: a section 105 administrative appeal must precede review by a court of appeals under section 106, and under section 105 administrative review of notices is limited to whether the abatement time is reasonable. Because they chose to correct the alleged violations within the allotted time, they argue, they could no longer contest the reasonableness of the time and therefore had no administrative remedy. There was, they contended, no order or decision of the Secretary for an appellate court to review under the statutory scheme of section 106, and section 109(a)(4) therefore does not preclude de novo review in this case.
The district court agreed with Fowler and Smith and denied the government’s motion, interpreting section 105(a)(1) to be applicable in notice eases only for review of the abatement time, not for review of the underlying violations. It found that section 109(a)(4) excludes de novo review in notice cases only of the reasonableness of the abatement period.
II.
In order to decide whether Fowler and Smith are now entitled to review on the merits, we must determine whether they could have litigated the validity of the violations notices under section 106, for if they could have done so, they are precluded from making the challenge de novo in a section 109 enforcement proceeding. The outcome of this inquiry depends upon whether they could have had a section 105(a)(1) administrative review of the underlying violations or merely of the reasonableness of the abatement time: without administrative review of the merits of the charges, there could have been no judicial review of the merits under section 106.
In our opinion, the language of section 105(a)(1) is plain: the only challenge an operator issued a notice may make is to the reasonableness of the abatement time, although one issued an order may get administrative review on the merits. This interpretation is based on the clear distinction in section 105(a)(1) between the review procedures for withdrawal orders and violations notices. An operator receiving an order may, without condition, “apply to the Secretary for review of the order,” and may “present information relating to the issuance and continuance of such order.” 30 U.S.C. § 815(a)(1). An operator receiving a notice, however, “may, if he believes that the period of time fixed in such notice for the abatement of the violation is unreasonable, apply to the Secretary for review of the notice,” and may “present information relating ... to the time fixed in such notice.” Id. (emphasis added). The necessary implication is that a violations notice is subject to agency review, and therefore appellate court review, only of the reasonableness of the allotted abatement time.
An operator receiving a notice thus may take one of three avenues available under sections 105, 106 and 109. He may seek review prior to abating the alleged violation, with review being limited to the reasonableness of the time allotted. He may choose to abate the violation, at which time the issue of reasonableness becomes moot and he is no longer entitled to agency review; any review on the merits would be available only through a section 109 enforcement proceeding. See Lucas Coal Co. v. Interior Board of Mine Operations Appeals, 522 F.2d 581, 587 (3d Cir. 1975). In addition the operator may refuse to abate the violation within the allotted time, according the Secretary the right to issue a withdrawal order under section 105(a)(1); the operator could then receive full review on the merits. Id.
Unless, therefore, the operator issued a notice is willing to subject his mines to closure, he is unable under section 105(a)(1) to contest the validity of the underlying violation on an agency appeal, and hence cannot qualify for section 106 appellate review. Because section 109 does not preclude review de novo of the alleged violation unless the operator has had the opportunity to contest it in the court of appeals, that breadth of review will not be precluded in this case. Operators such as Smith and Fowler who have corrected noticed violations without questioning the reasonableness of the abatement period — thereby foreclosing section 105 and section 106 review of the charges either on the reasonableness issue or on the merits — are entitled to de novo review in a section 109 enforcement proceeding.
We recognize that this result is at odds with the Sixth Circuit’s decision in Andrus v. Double “Q”, Inc., 617 F.2d 602 (1980), aff’g 466 F.Supp. 8 (E.D.Tenn.1977) (de novo trial under section 109(a)(4) only of the amount of penalty and not of the underlying violation, impliedly because the existence of the violation was a factual determination that would have been reached in the appellate review process). We decline, however, to follow Double “Q”.
The district court’s reasoning in Double “Q”, adopted by the Sixth Circuit, fails to convince us for two reasons. First, the district court’s interpretation of the statute ignores the clear distinction made between “notices” and “orders.” Second, the court’s only support for holding that abated violations could be litigated under sections 105-106 came in the form of dictum in National Independent Coal Operators’ Ass’n. (NICOA) v. Kleppe, 423 U.S. 388, 96 S.Ct. 809, 46 L.Ed.2d 580 (1976). In that case, during a broad background description of the enforcement scheme of section 109, the Court noted that “[ujnder § 105, 30 U.S.C. § 815, an operator may apply to the Secretary for review of the factual basis of any order or notice issued under § 104, or for review of the amount of time allowed for abatement of violations.” Id. at 391. The issue before the court in NICOA, however, was whether the Secretary is required to prepare a decision with formal findings of fact before assessing a civil penalty if the mine operator fails to request an administrative hearing. Not before the court was the scope of review under section 105, and we reject the Double “Q” court’s reading of the above-quoted language as controlling on the issue.
We instead are persuaded by the District of Columbia Circuit’s cogent and convincing analysis in UMW v. Andrus, 581 F.2d 888, cert. denied sub nom. Carbon Fuel Co. v. Andrus, 439 U.S. 928, 99 S.Ct. 313, 58 L.Ed.2d 321 (1978), offered in support of its conclusion that an operator served with a violation notice is not entitled to administrative review of the charge on the merits prior to issuance of a withdrawal order. The court’s determination was based on the distinction section 105(a)(1) “plainly made between administrative review of withdrawal orders and of violation notices,” 581 F.2d at 893, and its reading of the “fortunately unambiguous” legislative history. Id. at 892. The court additionally recognized the policy behind denial of immediate review of the merits in notice cases:
Congress ... in staking out goals for the 1969 Act ... solemnly declared that “[t]he first priority and concern of all in the coal mining industry must be the health and safety of its most precious resource — the miner . .. . ” That priority was reflected in the Act’s review provisions, which did not tolerate either temporary relief from notices of violation or, as we now hold, review on the merits of the violation charged while miners continued to work in the affected area. Only when the miners had been removed, or after the violation had been abated and civil-penalty proceedings instituted, did the operator become entitled to challenge the existence of conditions allegedly trespassing upon the Act. That, we think, was Congress’ decree, and we must respect it. Id. at 894 (footnotes omitted).
We agree with the District of Columbia Circuit’s reading of section 105(a)(1) and find that, because no administrative review was available to Fowler and Smith after abatement of the alleged violations, neither was section 106 judicial review of the merits available, and Fowler and Smith are entitled to de novo review of both the violations and penalties in the district court.
AFFIRMED.
. Although the 1969 Act was substantially altered by the Federal Mine Safety and Health Amendments Act of 1977, Pub.L. 95-164, 91 Stat. 1290, 30 U.S.C. § 801 et seq., the 1977 Act is not at issue in this case.
. Section 104 provides two procedures mine inspectors are to follow if health and safety standards have not been met. Section 104(a) provides that if “an imminent danger exists,” then a withdrawal “order” is to issue. Section 104(b) provides, however, that if “there has been a violation of any mandatory health or safety standard but the violation has not created an imminent danger,” then a “notice” shall be issued “fixing a reasonable time for the abatement of the violation.” The alleged violations for which Fowler and Smith were cited did not rise to the level of danger requiring issuance of a withdrawal order. If, however, they had failed to abate the violations, the Secretary would have been entitled to issue a withdrawal order. 30 U.S.C. § 814(b).
. The demarcation between notices and orders is evident throughout sections 104-106, 108. See, e. g., 30 U.S.C. §§ 814(b), 814(e), 815(a)(1), 815(d), 816(c)(1). There is wisdom, based on differing degrees of urgency, in granting two procedures.
. In dictum elsewhere in NICOA, moreover, the court said:
[t]he Government has suggested that trial de novo is available on the factual basis of the violation as well as on the amount of penalty. The statutory scheme is less than clear on this matter.
423 U.S. at 393 n.3, 96 S.Ct. at 812 n.3. It is interesting to note at this juncture that the government in NICOA advocated the very interpretation now advanced by Fowler and Smith. See also 43 C.F.R. § 4.530(d) (in effect from August 1971 to April 1978).
. Because we have found the language of the statute to be clear and to permit only one interpretation, we have not resorted to use of legislative history in our analysis.
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_appel2_1_4
|
F
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "other". Your task is to determine what subcategory of business best describes this litigant.
WASHINGTON CAPITOLS BASKETBALL CLUB, INC., a District of Columbia corporation, Appellee, v. Richard F. BARRY, III, also known as Rick Barry; Lemat Corporation, a Delaware corporation and the general partner of a limited partnership doing business under the name of San Francisco Warriors; and San Francisco Warriors, a limited partnership, Appellants.
No. 24921.
United States Court of Appeals Ninth Circuit.
Nov. 28, 1969.
Robert M. Ruben (argued) and Robert A. Holtzman, of Loeb & Loeb, Los Ange-les, Cal., Morrison, Foerster, Holloway, Clinton & Clark, San Francisco, Cal., for appellants.
Frederick P. Furth (argued), San Francisco, Cal., for appellee.
Before HAMLEY, MERRILL and TRASK, Circuit Judges.
TRASK, Circuit Judge:
This is an appeal from an order of The United States District Court for the Northern District of California which granted a preliminary injunction to the plaintiff, Washington Capitols Basketball Club, Inc., (1) enjoining the defendant, Richard F. (Rick) Barry III from playing basketball for any professional team other than the Washington “Caps” and (2) enjoining the San Francisco Warriors and Lemat Corporation from attempting to enforce a five year playing contract signed on August 26, 1969 between Rick Barry and the Warriors.
Barry and the Warriors appeal to this court pursuant to 28 U.S.C. § 1292. Jurisdiction is based upon diversity of citizenship. 28 U.S.C. § 1332.
The basic controversy is whether Rick Barry will play professional basketball pending final determination of this action as a member of the Washington “Caps” of the American Basketball Association or the San Francisco Warriors of the National Basketball Association. The District Court on Sept. 26, 1969, on the basis of the facts and the law then presented, ruled in favor of the Washington “Caps”. 304 F.Supp. 1193. We affirm.
All parties agree that the playing ability of Rick Barry on a basketball court is such that he is a legally “unique” party to a player’s contract. After an outstanding collegiate career at The University of Miami, he signed and played with the Warriors during the 1965-66 basketball season and was named the league’s “Rookie of the Year”. On August 29, 1966, he signed a second contract with the Warriors for one year beginning October Í, 1966 and executed a National Basketball Association Uniform Player Contract containing a “reserve” or “option clause”. Such a clause gives the club the right to contract with the player for an additional year. This option was exercised on or about June 22, 1967 by the Warriors for the playing year 1967-1968.
In the meantime, on June 19, 1967, Barry signed an option agreement with Pat Boone and Kenneth Davidson giving the optionees or their assigns the right on or before October 2, 1967, to contract with him for three years beginning 1967-1968, or if he were to be enjoined, to begin at a later date and in the meantime reserved the right to play with the Warriors. On October 31, 1967, Barry signed the contract in question here with Oakland Basketball, Inc. a corporation, to play for Oakland for three years commencing on October 2, 1968.
This contract likewise contained a reserve clause for an additional year. In addition to his salary, Barry also received an annual bonus plus a 15% stock interest in the corporation which owned the Oakland franchise.
The dispute resulting from Barry’s action in signing the allegedly conflicting contracts caused the Warriors to file suit against him to determine their contract rights under their 1966 contract. They asserted claims for both damages and equitable relief by way of injunction. The Court of Appeal of California determined that the Warriors were entitled to enjoin Barry from playing for anyone else until September 30, 1968. The Court further held that the Warriors were not entitled to injunctive relief beyond that date and that they could not recover damages from Barry in addition to the equitable relief granted. Lemat Corporation v. Barry, Cal.App., 80 Cal.Rptr. 240 (1969). That decision settled all issues as between the Warriors and Barry arising out of the August 29, 1966 contract. Neither the Oakland Club nor its franchise owners were parties to that litigation. Barry did not play during the 1967-1968 playing season. However, he played for Oakland during the 1968-1969 season pursuant to the terms of the contract with Oakland signed on October 31, 1967. No question was apparently raised by the Warriors against either Barry or the Oaks as to the legality of this performance under the contract.
On August 28, 1969, the Oaks, having lost substantial sums of money during their two years’ existence,, entered into an agreement of sale with the Washington Capitols Basketball Club, Inc. in which Washington contracted to purchase all property and assets of the Oaks including the contracts of basketball players under contract to the Oaks. A specific amount of the purchase price was allocated to the contract between Oakland and Barry which was being assigned. Subsequently a Bill of Sale was executed by Oakland transferring the assets to Washington.
Although his Oakland contract would remain in effect until October 1, 1971, upon the day following the Oakland-Washington purchase agreement, Barry entered into a new contract to play professional basketball with the San Francisco Warriors for a term of five years beginning October 2, 1969 and ending October 1, 1974.
Promptly upon learning of Barry’s contract with the Warriors, the plaintiff, Washington Capitols Basketball Club, Inc., brought this action against Barry, Lemat Corporation and the Warriors. The action sought to enjoin Barry from playing basketball with any club other than the Caps during the remainder of the term of the contract which Washington had acquired. It further sought to enjoin the Warriors from asserting any contract with Barry or interfering with the performance of the Caps contract. It also sought damages both compensatory and punitive. A temporary restraining order was issued on September 15, 1969, the date the action was filed.
A hearing was held on September 23, 1969 on the application for a preliminary injunction. The Honorable Gerald S. Levin issued an opinion and judgment on September 26, 1969, granting the injunction against both Barry and the Warriors pending final determination. Barry and the Warriors appeal from that order. The court required a bond in the sum of $100,000 from the plaintiff to secure the payment of all costs and damages and that bond was filed on September 29, 1969. Because of the urgency involved, this court agreed to expedite the appeal and heard the matter on oral argument on October 28, 1969.
The grant of an order for a preliminary injunction is not a final determination of the case. It evidences the exercise of the discretion of the trial court to maintain the status quo between the litigants until final judgment may be rendered. Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738 (2 Cir. 1953).
“The decision to grant or to refuse a preliminary injunction lies within the District Court’s sound exercise of its discretion. In an appeal from the grant of a preliminary injunction, the question before this court is, did the District Court abuse its discretion in granting a preliminary injunction?” Ross Whitney Corp. v. Smith Kline & French Labs., 207 F.2d 190, 194 (9th Cir. 1953).
On an appeal from such an order it is the responsibility of this court to decide only the question as to whether or not the grant of the order was an abuse of discretion. An abuse of discretion has been defined as “a plain error, discretion exercised to an end not justified by the evidence, a judgment that is clearly against the logic and effect of the facts as are found.” Bowles v. Quon, 154 F.2d 72, 73 (9th Cir. 1946). We consider that the District Court did not abuse its discretion and that pending a decision on the merits the order granting a preliminary injunction should stand. The discussion which follows, however, and any conclusions drawn therefrom should be read as preliminary and “are not to be construed as foreclosing any findings and conclusions to the contrary based upon evidence which may be received at the trial on the merits.” Ross Whitney Corp. v. Smith Kline & French Labs., 207 F.2d 190, 199 (9th Cir. 1953).
THE STATUS QUO
The function of a preliminary injunction is to maintain the status quo ante litem pending a determination of the action on the merits. The status quo is the last, uncontested status preceding the commencement of the controversy. Tanner Motor Livery, Ltd. v. Avis, Inc., 316 F.2d 804, 808-809 (9th Cir. 1963), cert. denied, 375 U.S. 821, 84 S.Ct. 59, 11 L.Ed.2d 55 (1963). It is therefore necessary to examine what constituted the last, uncontested status of the parties.
The plaintiff, Washington Caps, purchased the Oakland Oaks by agreement dated August 28, 1969. The action by Washington against the Warriors was commenced September 15, 1969. The status quo on these dates appears to have been as follows:
1. All rights under the Warriors’ contract with Barry, dated August 29, 1966, had been litigated and the judgment of the court had been performed. Lemat Corporation v. Barry, swpra. Neither Barry nor the Warriors had further rights or obligations under it due each other after September 30, 1968.
2. The Oakland contract, which Washington acquired and upon which this action was brought, was signed October 31, 1967 for Barry to play for three years beginning October 2, 1968 with an option for one year more.
3. Barry had played one year — the playing season of 1968-1969 — under his contract with Oakland — without legal interruption. This contract, by its terms, was to commence October 2, 1968 and to continue until 1972.
4. Washington had acquired the Oakland franchise, assets and player contracts on August 28,1969.
5. Barry signed a contract with the Warriors on August 29, 1969 for five years commencing August 2, 1969 and had announced his intention to play with the Warriors during the 69-70 season.
Thus, at this point in time there were no continuing obligations by Barry to play for Warriors under the 1966 contract. Barry had played for Oakland during 1968-1969 or during the first year of the three year term of the 1967 Oakland contract with the remainder of the term having been assigned to Washington; and the Warriors and Barry had signed a contract on the day following the Washington sale, for Barry to play for Warriors for five years for a greatly increased salary, beginning in 1969 and in direct conflict with the remainder of the Washington contract period. This action was begun on September 15, 1969 or prior to the .date of the beginning of the 1969-1970 playing season.
We hold that, under these facts, the preliminary injunction served to maintain the status quo ante litem.
ALLEGED ILLEGALITY
The legality of the Oakland contract which is under attack by the Warriors must be determined by the substantive law of California, the place of making of the contract. Erie R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Hutchinson v. Hutchinson, 48 Cal.App.2d 12, 119 P.2d 214, 217 (1941).
As no illegality of the contract is disclosed by plaintiff’s complaint or the contract itself, illegality is an affirmative defense and defendants-appellants have the burden of pleading and proof. Eaton v. Brooks, 124 Cal.App.2d 10, 268 P.2d 58, 60 (1954).
The District Court did find that “ [defendants have not shown that the contract between Oaks and Barry, which was assigned by Oaks to Washington, is itself unconscionable, unenforcible or otherwise void.” 304 F.Supp. at 1197. We agree with this finding. Appellants have not cited to us, nor have we found, any constitutional provision or civil or criminal statute which this contract violates. Nor do we think the contract is contrary to public policy. Appellants rely upon the Restatement of Contracts, § 576, which reads: “A bargain, the making or performance of which involves breach of a contract of a third person is illegal.” The comment to this Restatement section, however, reveals that the section is inapplicable to the facts of this case. The comment states: “a. Since breach of contract is a legal wrong, a bargain that requires for its performance breach of a contract with another is opposed to public policy.” (Emphasis supplied.) Barry’s performance under his Oakland contract to begin October 2, 1968, did not require breach of his Warrior contract which expired September 30, 1968. The Warrior contract, entered into on August 29, 1966, had a duration of one year beginning October 1, 1966. On or before September 1, 1967, the Warriors had a right to tender to Barry a contract for the 1967-1968 season. They exercised this right and, as Barry failed to sign and return the proffered contract by October 1, the contract was “deemed renewed and extended for the period of one year.” Barry was not obligated to perform for the Warriors during that year but was obligated, by the original contract, to refrain from playing for any other team until the contract terminated on September 30, 1968. This interpretation of the contract has been upheld in Lemat Corp. v. Barry, supra, 80 Cal.Rptr. 240 (1969).
Barry signed his contract with Oakland while still under contract to the Warriors, who claim that this act was a breach of Barry’s contract to them. The Oakland contract, however, was a contract for future services “for a term of three (3) years commencing on October 2, 1968, or such earlier date as [Barry’s] services as a basketball player are not enjoined.” Performance and consideration therefor were to begin only upon the termination of the Warrior contract.
Neither Barry’s signing nor Oakland’s inducement of him to sign was an illegal act rendering the Oakland contract illegal. Associate Justice Hufstedler of the California Court of Appeal, now Judge Hufstedler of this Court, stated in Diodes, Inc. v. Franzen, 260 Cal.App.2d 244, 67 Cal.Rptr. 19, 25-26 (1968):
“Even though the relationship between an employer and his employee is an advantageous one, no actionable wrong is committed by a competitor who solicits his competitor’s employees or who hires away one or more of his competitor’s employees who are not under contract, so long as the inducement to leave is not accompanied by unlawful action.”
See also, Sarkes Tarzian, Inc. v. Audio Devices, Inc., 166 F.Supp. 250, 264 (S.D.Cal.1958), aff’d, 283 F.2d 695 (2 Cir. 1960), cert. denied, 365 U.S. 869, 81 S.Ct. 903, 5 L.Ed.2d 859 (1961). In each of these cases, the hired-away employee was not under contract to his employer. Barry was under contract to the Warriors at the time he signed with Oakland but his performance under the Oakland contract was not to begin until after his obligations to the Warriors ceased on October 1, 1968. This fact distinguishes cases in which courts have found an actionable wrong where an employee was encouraged to terminate his contract prior to its termination date. See, e. g., Buxbom v. Smith, 23 Cal.2d 535, 145 P.2d 305 (1944). '
As Judge Learned Hand said a long time ago:
“Nobody has ever thought, so far as we can find, that in the absence of some monopolistic purpose every one had not the right to offer better terms to another’s employé so long as the latter is free to leave.” Triangle Film Corp. v. Artcraft Pictures Corp., 250 F. 981, 982 (2d Cir. 1918).
The language of the Oakland contract and amendment thereto dated October 31, 1967 indicate that the drafters were aware of Barry’s contractual obligations to the Warriors. It may be presumed that they drafted the Oakland contract with the intent of making it legal and binding. Calif.Code Civ.Proc. § 1963, Subds. 1, 33; Sweeney v. KANS, Inc., 247 Cal.App.2d 475, 55 Cal.Rptr. 673, 676 (1966). Parties to a contract are deemed to have intended a lawful rather than an unlawful act. Duntley v. Tutt, 48 Cal.App.2d 367, 119 P.2d 804, 806 (1941).
We believe the trial court was correct on the record before it in ruling that this contract was not illegal under general contract principles and neither was it violative of the provisions of the Sherman Anti-Trust Act. 15 U.S.C. § 1. See Dallas Cowboys Football Club, Inc. v. Harris, 348 S.W.2d 37, 47 (Tex.Civ. App.1961).
UNCLEAN HANDS
Appellant’s unclean hands argument arises because Boone and Davidson persuaded Barry to give them an option to play for the 1967-1968 season during which Barry was already under contract with the Warriors. But the playing contract which Washington seeks to enforce is not a contract with Oakland Basketball, Inc., a corporation. It was for playing rights for the period after the Warriors’ rights had terminated. There is thus the very serious question whether any inequity exists in the performance of this contract even as against the Oakland corporation. When carried one step beyond to the Washington corporation, the attempted attainder is even more remote.
To add to the doubt surrounding the validity of applying the clean hands doctrine against Washington it must be remembered that both Warriors and Barry have had their day in court in this alleged wrongdoing. Lemat Corp. v. Barry, supra. The issues have been resolved and the judgment performed.
The application or rejection of the clean hands doctrine in a given case is equitable in nature and within the discretion of the trial court. Johnson v. Yellow Cab Transit Co., 321 U.S. 383, 64 S.Ct. 622, 88 L.Ed. 814 (1943); Houston Oilers, Inc. v. Neely, 361 F.2d 36 (10th Cir. 1966); cert. denied, 385 U.S. 840, 87 S.Ct. 92, 17 L.Ed.2d 74 (1966); Precision Instrument Mfg. Co. v. Automotive Maintenance Mach. Co., 324 U.S. 806, 65 S.Ct. 993, 89 L.Ed. 1381 (1945).
Moreover, the bad conduct must pertain to the subject matter involved and affect the equitable relations between the litigants.
As was said in. Fibreboard Paper Prod. Corp. v. East Bay Union, 227 Cal. App.2d 675, 39 Cal.Rptr. 64, 97 (1964).
“[I]t is not every wrongful act nor even every fraud which prevents a suitor in equity from obtaining relief. The misconduct which brings the clean hands doctrine into operation must relate directly to the transaction concerning which the complaint is made, i. e., it must pertain to the very subject matter involved and affect the equitable relations between the litigants. Accordingly, relief is not denied because the plaintiff may have acted improperly in the past or because such prior misconduct may indirectly affect the problem before the court. (Bradley Co. v. Bradley, 165 Cal. 237, 242, 131 P. 750; Germo Mfg. Co. of Missouri v. McClellan, 107 Cal. App. 532, 541-543, 290 P. 534; Carman v. Athearn, 77 Cal.App.2d 585, 598, 175 P.2d 926; Treager v. Friedman, 79 Cal.App.2d 151, 173, 179 P.2d 387; Sheppard v. Wilcox, 210 Cal. App.2d 53, 61-62, 26 Cal.Rptr. 412.) As was said in Moriarty v. Carlson, supra 184 Cal.App.2d 51, 7 Cal.Rptr. 282: ‘The misconduct must infect the cause of action before the court. * * * A party may have relief in connection with a transaction itself untainted although his original title may have been tainted by improper conduct. * * *’ (184 Cal.App.2d p. 57, 7 Cal.Rptr. p. 285.).”
The contract which Washington seeks to enforce is one which the Warriors assert was negotiated while Barry’s 1966 Warriors contract was still uncompleted. Washington did not participate in this activity. Neither did the Oakland Club as an entity. It was Boone and Davidson who later organized the Oakland corporation. The contract when finally completed on October 31, 1967 was after the option held by Boone and Davidson had expired according to its terms. It was also for performance at a date to commence after the date (October 2, 1968) upon which the California Court of Appeal decided the Warriors contract terminated, i. e., September 30, 1968.
With respect to the attempted invocation of the clean hands doctrine by Barry against Washington, it is interesting to note the lack of consistency in the Barry position. For the purpose of entering into a contract with Oakland for more money than he was then getting from the Warriors, his attorney wrote the Oakland president on October 29, 1968 saying:
“Since Rick became free to play for Oakland commencing October 1, 1968 •X- -X -X-”
In this action, brought for the purpose of restraining Barry from jumping back to the Warriors for still more money, he asserts as against Washington, Oakland’s transferee, that he was not free to play for Oakland commencing October 1, 1968, and thus Washington is possessed of unclean hands. Any misconduct arising out of an interference with the 1966 Warriors contract is remote, as the trial court points out, and affects the present litigation only indirectly. The hands of this appellee are not unclean. The rights between Barry and Warriors under the old contract have been litigated and performed. The rights as between Warriors and Boone and Davidson for damages are being litigated in another jurisdiction.
What we have said here disposes of questions with respect to the assignment of the contract from Oakland to Washington. The entire history of this sorry series of events indicates that irreparable injury is involved and equitable jurisdiction justified.
Finally, appellant argues that the oral representations alleged to have been made by Boone and Davidson about keeping the franchise in Oakland constitute a breach of the contract and are a bar to relief. The express terms of the contract are to the contrary and must take precedence over alleged prior oral agreements. See Cal.Civ.Code § 1698. Moreover, we have difficulty being persuaded that a professional athlete who has signed as many conflicting contracts as Barry, is naive enough to believe (1) that he takes no risk of being traded or sold, or (2) that the franchise might not be transferred or (3) that the embryonic club for which he was playing incurred no risk of becoming a financial failure.
The record here supports the action taken by the trial court and it is affirmed.
. Lemat Corporation is the sole general partner of the San Francisco Warriors, a limited partnership. The two entities will be referred to hereafter as “San Francisco Warriors” or “Warriors”.
. This “option clause” reads as follows:
“24. On or before September first next following the last playing season covered by this contract and renewals and extensions thereof, the Club may tender to the Player a contract for the next succeeding season by mailing the same to the Player at his address shown below, or if one is not shown, then at his address last known to the Club. If the Player fails, neglects, or omits to sign and return such contract to the Club so that the Club receives it on or before October first next succeeding, then this contract would be deemed renewed and extended for the period of one year upon the same terms and conditions in all respects as are providéd herein, except that the compensation payable to the Player would be the same provided in the contract tendered to the Player pursuant to the provisions hereof, which compensation would in no event be less than 75% of the compensation payable to the Player for the last playing season covered by this contract and renewals and extensions thereof.
The Club’s right to renew this contract, as herein provided, and the promise of the Player not to play otherwise than for the Club and its assignees, have been taken into consideration in determining the amount of compensation payable under paragraph two hereof.”
Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "other". What subcategory of business best describes this litigant?
A. medical clinics, health organizations, nursing homes, medical doctors, medical labs, or other private health care facilities
B. private attorney or law firm
C. media - including magazines, newspapers, radio & TV stations and networks, cable TV, news organizations
D. school - for profit private educational enterprise (including business and trade schools)
E. housing, car, or durable goods rental or lease
F. entertainment: amusement parks, race tracks, for profit camps, record companies, movie theaters and producers, ski resorts, hotels, restaurants, etc.
G. information processing
H. consulting
I. security and/or maintenance service
J. other service (including accounting)
K. other (including a business pension fund)
L. unclear
Answer:
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songer_direct1
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D
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for assertion of broadest interpretation of First Amendment protection. 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.
Leon STEINBERG, Appellant, v. INTERNATIONAL CRIMINAL POLICE ORGANIZATION, et al.
No. 80-1336.
United States Court of Appeals, District of Columbia Circuit.
Argued Sept. 16, 1981.
Decided Oct. 23, 1981.
On Petition for Rehearing Feb. 16, 1982.
Robert A. Seefried, Washington, D. C., with whom Russell F. Canan, Washington, D. C., was on the brief for appellant.
Rebecca L. Ross, Asst. U. S. Atty., Washington, D. C., with whom Charles F. C. Ruff, U. S. Atty., Royce C. Lamberth, and Kenneth M. Raisler, Asst. U. S. Attys., Washington, D. C., were on the brief for amicus curiae, United States of America, urging affirmance.
John A. Terry, and Michael J. Ryan, Asst. U. S. Attys., Washington, D. C., also entered appearances for amicus curiae.
Before ROBINSON, Chief Judge, WRIGHT and GINSBURG, Circuit Judges.
Opinion for the Court filed by Circuit Judge GINSBURG.
Concurring statement filed by Circuit Judge J. SKELLY WRIGHT.
GINSBURG, Circuit Judge:
This is a defamation action commenced in January 1977 by Leon Steinberg, a United States citizen residing in Florida, against the International Criminal Police Organization (Interpol) and Interpol’s Secretary General. Headquartered outside Paris in Saint Cloud, France, Interpol was organized in 1923 to promote mutual assistance and facilitate communications among criminal police authorities in different countries. Steinberg alleges that Interpol published a document in the United States and in 125 other countries erroneously describing him as a wanted international criminal.
Invoking diversity jurisdiction under 28 U.S.C. § 1332, and asserting in personam jurisdiction pursuant to the District of Columbia Long Arm Statute, specifically, D.C. Code § 13-423(a)(1) and (a)(4), Steinberg delivered process in the District of Columbia to United States officials maintaining liaison with Interpol, and in France, to Interpol’s Secretary General at his residence. Interpol and its Secretary General did not acknowledge service and have not appeared in the action. However, on the suggestion of the United States, appearing as amicus curiae, the district court, in February 1980, dismissed the complaint for lack of personal jurisdiction over the defendants.
The district court expressed sympathy with Steinberg’s jurisdictional arguments observing:
Interpol appears to occupy a rather ambiguous and shadowy existence in this country. It claims not to exist in the United States, yet it disseminates information here, maintains close liaison with United States law enforcement authorities, is in effect represented in court by the U.S. Department of Justice and, if the complaint is to be believed — as it must be for present purposes — defames American citizens in the United States as well as elsewhere.
Appendix (A.) at 297. Nonetheless, the district court read our decision in Sami v. United States, 617 F.2d 755, 758-60 (D.C.Cir.1979), as according Interpol blanket immunity “from the reach of American tribunals.” It therefore remitted Steinberg “to whatever relief he may be able to secure from [the Court of Appeals] or from the Congress.” A. 297.
We reverse the judgment dismissing the complaint and direct reinstatement of the action. In extending the Sami ruling as to Interpol beyond the bounds of that controversy, the district court, tracking the position urged by the United States as amicus curiae, obscured a distinction important to analysis of issues concerning jurisdiction over persons in modem American law. The district court did not differentiate sharply between (1) general, “all purpose” adjudicatory authority to entertain a suit against a defendant without regard to the claim’s relationship vei non to the defendant’s forum-linked activity, and (2) specific jurisdiction to entertain controversies based on acts of a defendant that touch and concern the forum. See generally von Mehren & Trautman, Jurisdiction to Adjudicate: A Suggested Analysis, 79 Harv.L.Rev. 1121 (1966); cf. Donahue v. Far Eastern Air Transport Corp., 652 F.2d 1032, 1034, 1036-37 (D.C.Cir.1981).
Sami, to the extent the complaint cited Interpol as a defendant, involved an attempt to invoke general, “all purpose” jurisdiction. Plaintiff in that imbroglio stemming from a marital breakdown was a citizen of Afghanistan employed at the International Monetary Fund in Washington, D. C. He left the country with his two children in violation of a Florida court order, and was arrested by German authorities in Frankfurt. His presentations in the litigation identified no communication, here or abroad, during the episode about which he complained that emanated from Interpol itself. The plaintiff in Sami alleged that Interpol was “doing business” in the District of Columbia. “Doing business,” traditionally, ranked as a basis for general adjudicatory authority. A defendant who “did business” in the forum could be sued on claims that arose elsewhere, claims that had slim or even no ties to the forum. See 4 C. Wright & A. Miller, Federal Practice and Procedure §§ 1067-69, 1073 (1969) (discussing cases applying the “doing business” test since International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945)).
This ease, by contrast,- involves an invocation of specific, not general, adjudicatory authority, a category encompassing claims arising from forum-linked acts or consequences. Steinberg asserts that Interpol itself initiated a publication that defamed him, and transmitted the offending publication to its liaison in the District of Columbia, as well as to others in Interpol’s network here and abroad. Interpol’s publication, which it disseminated in the District, Steinberg alleges, gave rise in substantial part to the claim in suit. For the reasons developed below, we conclude that, on the record as it now stands, Washington, D. C., is a fair and reasonable place, within due process constraints, for the action Stein-berg has commenced and that Interpol was appropriately brought to court under the District of Columbia Long Arm Statute.
I. THE EPISODE IN SUIT
Steinberg’s complaint identifies an Interpol document, titled “Blue International Notification 500/59-A3674,” describing him as a wanted international criminal who used the alias “Mark Moscowitz.” Interpol widely communicated the Notification, Steinberg alleges, to its liaisons, among them, the United States National Central Bureau (USNCB), now located in the Department of Justice, this country’s liaison with Interpol. In the summer of 1975, on learning of the document and Interpol’s transmission of it to liaisons, Steinberg asserts, he notified Interpol and twice offered proof that the Notification was erroneous. Despite the proof he offered, Steinberg further states, Interpol continued to publish the Notification and other statements associating Steinberg with “Mark Moscowitz.” It did so, according to Steinberg, until late July 1976, when Interpol finally conceded Leon Steinberg was not “Mark Moscowitz.” Steinberg seeks general and punitive damages for the substantial injury he alleges he has suffered as a result of the Blue International Notification.
We emphasize the evident difference between Steinberg’s complaint against Interpol and the Interpol forum connections indicated in Sami v. United States, supra. While Steinberg complains solely of communications sent here and to other countries by Interpol itself, in Sami the demonstrated ties between the forum and Interpol were “remote from the wrongs alleged.” The record in Sami did not establish that communications “received in this forum from abroad” relating to the events in suit “were initiated by Interpol”; from all that appeared in Sami, the messages sent here from abroad were dispatched by officers acting “strictly ... as agents of their own states’ governments.” 617 F.2d at 760.
II. AUTHORITY TO SUMMON INTERPOL TO RESPOND IN THIS FORUM
At the outset, we stress a key feature of this case. The issue posed for decision is not whether the district court here is more or less appropriate than some other forum in the United States for adjudication of the claim in suit. Cf. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980) (suit against local dealer, although it could not proceed in Oklahoma, could be maintained in New York). The alleged offending Interpol Notification was transmitted to Interpol’s liaison, USNCB, in Washington, D. C., and no forum in this country is suggested to be more suitable than the District of Columbia for consideration of the case. Our task, therefore, is to determine whether Leon Steinberg, a citizen and domiciliary of the United States, may call Interpol to account at all in the United States for a publication Interpol sent here and abroad that Stein-berg claims is a libel, causing him shame, humiliation, and mental suffering.
Steinberg has invoked federal court subject matter competence on the basis of the parties’ diversity of citizenship. 28 U.S.C. § 1332(a)(2). He asserts no claim arising under federal law. Personal jurisdiction over the defendants, therefore, initially turns on local (state) law, in this case, District of Columbia law. See Arrowsmith v. United Press International, 320 F.2d 219 (2d Cir. 1963) (en banc); Ramamurti v. Rolls-Royce Ltd., 454 F.Supp. 407 (D.D.C.1978), aff’d mem., 612 F.2d 587 (D.C.Cir.1980); 4 C. Wright & A. Miller, Federal Practice and Procedure § 1075, at 309-10 & n.50 (1969). Application of that law, however, is subject to a federal check. In United States jurisprudence, the outer boundaries of a court’s authority to proceed against a particular person or entity is set by a due process measure, imposed on action at the national level by the Fifth Amendment, and on state action by the Fourteenth Amendment. See Donahue v. Far Eastern Air Transport Corp., supra, 652 F.2d at 1036 (separate local law, federal check (due process) inquiries are telescoped when state law standard is “any basis [of personal jurisdiction] not inconsistent with the Constitution”); Stabilisierungsfonds Fur Wein v. Kaiser Stuhl Wine Distributors Pty. Ltd., 647 F.2d 200, 203 (D.C.Cir.1981) (state law may be coextensive with due process, or it may require connections between defendant or episode in suit and forum beyond these due process commands). We examine first the question whether the District of Columbia Long Arm Statute supplies a rule of competence, i.e., a rule authorizing the exercise of personal jurisdiction, that covers this case. We next consider whether the exercise of jurisdiction over Interpol in this action is compatible with the due process measure.
Steinberg relies, in the alternative, on two provisions of the District of Columbia Long Arm Statute. First, he invokes D.C. Code § 13-423(a)(1), which authorizes the “exercise [of] personal jurisdiction over a person ... as to a claim for relief arising from the person’s ... transacting any business in the District of Columbia.” Second, he cites D.C.Code § 13-423(a)(4), which provides for suit against a nonresident “who causfes] tortious injury in the District of Columbia by an act or omission outside the District” so long as the nonresident “regularly does or solicits business, engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed, or services rendered in the District of Columbia.” Subsection (a)(4), we believe, provides a rule of competence fully appropriate to the claim in suit. We therefore pretermit the question whether the “transacting any business” provision, subsection (a)(1), also supports the exercise of personal jurisdiction in this case.
Interpol acted abroad (in France) in transmitting the Notification said to defame Steinberg, and allegedly caused injury to Steinberg in the District and elsewhere when it dispatched the Notification to USNCB and other liaisons. But subsection (a)(4) requires something more. The pivotal question with respect to that subsection’s application here is whether Interpol “engages in [a] persistent course of conduct ... in the District of Columbia.”
We emphasize that the “persistent course of conduct” to which the statute refers denotes connections considerably less substantial than those required to establish general, “all purpose” jurisdiction on the basis of “doing business” in the forum. Subsection (a)(4) is taken from the Uniform Interstate & International Procedure Act (13 U.L.A.) § 1.03(a)(4). It was the Commissioners’ design, in requiring something more than the in-forum impact at issue in the litigation, to exclude cases in which that impact is an isolated event and the defendant otherwise has no, or scant, affiliations with the forum. See 13 U.L.A. at 468-69 (1980) (Commissioners’ Comment); Founding Church of Scientology v. Verlag, 536 F.2d 429, 432 (D.C.Cir.1976) (the “persistent course of conduct” need not be related to the act that caused the injury; all that is required is “some other reasonable connection” between the defendant and the forum). See also Note, The Virginia “Long Arm” Statute, 51 Va.L.Rev. 719, 749 (1965).
It is undisputed that the United States, pursuant to statutory authorization, 22 U.S.C. § 263a, participates in Interpol, that USNCB, situated in the District, acts as this country’s Interpol liaison, and that USNCB regularly sends information to and receives information from Interpol. Even without the further Interpol-Washington, D. C., links indicated in discovery pursued in this action (e.g., dealings between Interpol and United States agencies other than USNCB; meetings here attended by Interpol officers), the subsection (a)(4) “persistent course of conduct” proviso is met. Interpol has constant liaison with the nation’s capital. Its longstanding ties to this forum, while they do not add up to “doing business” here, suffice to supply the “something more” subsection (a)(4) requires.
Finally, we find no due process infirmity in the application of subsection (a)(4) to this case. Given the mutually beneficial relationship between Interpol and the United States, and the regular contacts Interpol has with this country and District, we perceive no unfairness to the defendants in requiring them to appear and interpose an answer to Steinberg’s complaint. Nor is there any suggestion that adjudication in the District would intrude upon the sovereignty of another nation or state of the United States. Cf. World-Wide Volkswagen Corp. v. Woodson, supra, 444 U.S. at 291-92, 297, 100 S.Ct. at 564, 567. Taking into account the nature and quality of the alleged act and tortious injury, “the convenient administration of justice in all its aspects, including alternative forums,” and Steinberg’s interest, as a United States citizen and domiciliary, in vindicating his reputation as an individual without a criminal record, we hold that, whatever defenses Interpol and its Secretary General may have to the claim in suit, the litigation is not barred at the threshold for lack of in personam jurisdiction.
CONCLUSION
The judgment of the district court is reversed and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
. Interpol is composed of member countries represented by their law enforcement officials. The United States is not a party to any international agreement or treaty defining Interpol’s status. According to a Report of the Comptroller General on United States involvement in Interpol, some have referred to the organization as “intergovernmental,” others call it “private” or “nongovernmental.” Appendix (A.) 112, 123, 143. Interpol carries on no investigations but “distributes and coordinates the free flow of information between law enforcement entities throughout the world.” Brief of Amicus Curiae United States of America at 6.
. While affirming the dismissal of the action against Interpol, the court in Sami reversed the summary judgment dismissing the action against the United States. In this case, Interpol and its Secretary General are the sole defendants.
. See D.C.Code § 13-334(a) (traditional “doing business” test).
. See note 13 infra.
Our analysis and conclusion are guided by recent Supreme Court decisions elaborating upon Chief Justice Stone’s benchmark opinion in International Shoe Co. v. Washington, supra, particularly, Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977), Kulko v. Superior Court, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978), Rush v. Savchuk, 444 U.S. 320, 100 S.Ct. 571, 62 L.Ed.2d 516 (1980), and World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980).
. Steinberg does not maintain that USNCB acts as an agent for Interpol or that Interpol has an office here. See Sami v. United States, supra, 617 F.2d at 759-60. He does assert, however, that USNCB has “advertised itself’ as “Washington Interpol.” See Reply Brief at 3 n.5; A. 106, 107.
. We express no opinion at this juncture on the choice of law question that may be presented should this case proceed to adjudication on the merits. Cf. Founding Church of Scientology v. Verlag, 536 F.2d 429, 436 (D.C.Cir.1976).
. The United States, as amicus curiae, stresses that Interpol acted outside the forum and that its “business” is noncommercial. Brief of Amicus Curiae United States of America at 10. But cf. Stabilisierungsfond Fur Wein, supra, 647 F.2d at 205 (foreign country corporations transacted business here although they had not personally entered the district); McLaughlin v. Copeland, 435 F.Supp. 513, 524 (D.Md.1977); Novack v. National Hot Rod Ass’n, 247 Md. 350, 356, 231 A.2d 22, 26 (1967); Van Wagenberg v. Van Wagenberg, 241 Md. 154, 170, 215 A.2d 812, 820-21 (1966) (“transacting business” as a basis for long-arm jurisdiction is not confined to commercial ventures). The District of Columbia Court of Appeals has concluded that the “transacting any business” provision of the Long Arm Statute is coextensive with the due process measure, but has not yet determined the limits of other sections. See Mouzavires v. Baxter, 434 A.2d 988, at 991 (D.C. Aug. 5, 1981) (per curiam opinion on rehearing en banc).
. The forum is not rendered inappropriate because Steinberg alleges Interpol defamed him in other locations as well as in the District of Columbia. D.C.Code § 13-423(b) limits long-arm competence to “a claim for relief arising from acts enumerated” in subsection (a) of the statute. The District of Columbia Court of Appeals, however, has noted that “[t]he concept of cause of action or claim for relief [in subsection (b) ] should be broadly construed to cover an entire transaction so that, when possible, the entire dispute may be settled in a single litigation.” Cohane v. Arpeja-California, Inc., 385 A.2d 153, 159 (D.C.) (quoting Uniform Interstate & International Procedure Act (13 U.L.A.) § 1.03, Commissioners’ Comment at 288 (1975)), cert. denied, 439 U.S. 980, 99 S.Ct. 567, 58 L.Ed.2d 651 (1978). [The relevant Commissioners’ Comment appears in the new volume of Uniform Laws Annotated at 13 U.L.A. 470 (1980).]
. See Sami v. United States, supra, 617 F.2d at 759-60; text at note 3 supra.
. While the United States, as amicus curiae, successfully moved to quash service on USNCB on the ground that it is not an agent of Interpol, no assertion has been made that Interpol lacks notice of this litigation. Any objection to the sufficiency of process or of the service of process made in France may be interposed by Interpol or its Secretary General, see Fed.R.Civ.P. 12(b)(4), (5), but these notice-related objections would not go to the root question, whether the nexus between Interpol, the forum, and the claim in suit is sufficient to justify maintenance of the action here.
We further note the acknowledgement by the United States that a “blanket exemption for governmental contacts no longer exists in the District of Columbia” (Brief of Amicus Curiae United States of America at 15), and the absence of any specification by the United States of a First Amendment basis for exempting Interpol from suit here. See Rose v. Silver, 394 A.2d 1368, 1374 (D.C.1978) (“First Amendment provides the only principled basis” for “government contacts” exemption), petition for rehearing en banc denied, 398 A.2d 787 (D.C.1979).
. In World-Wide Volkswagen, the Supreme Court explained that, with respect to state court jurisdiction, the due process check serves twin purposes: it ensures fairness to the defendant; and it prevents states from treading upon each other’s sovereignty. The United States, as amicus curiae, has focused its argument on the fairness-to-defendant consideration, i.e., the reasonableness and convenience of the forum in view of its links with the defendant and the episode in suit. It has not urged that maintenance of this action would encroach upon the sovereignty of any foreign country or state of the United States.
. Restatement (Second) of Judgments, Reporter’s Note at 67-68 (Tent. Draft No. 5, 1978).
. Our decision is based on the record as it now stands. By clarifying that the decision in Sami does not impede the assertion of personal jurisdiction over Interpol in this case, we do not intend to foreclose any defense, jurisdictional or otherwise, Interpol itself, or its Secretary General, may raise predicated on material not before us. Cf. Rose v. Silver, supra, 394 A.2d at 1372 n.5.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. 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.
LAW ENFORCEMENT INSURANCE COMPANY, LTD., Plaintiff-Appellant, v. James P. CORCORAN, Defendant-Appellee.
No. 312, Docket 86-7658.
United States Court of Appeals, Second Circuit.
Argued Oct. 24, 1986.
Decided Dec. 12, 1986.
Frank H. Wright, New York City (Grand & Ostrow, New York City, of counsel), for plaintiff-appellant.
Thomas M. Campbell, New York City (Mathias E. Mone, Marc J. Korpus, Cahill, Gordon & Reindel, New York City, of counsel), for defendant-appellee.
Before KAUFMAN, NEWMAN and PRATT, Circuit Judges.
IRVING R. KAUFMAN, Ciruit Judge:
We are required in this case to revisit a recurring tension in our dual system of justice. The federal courts have a fundamental obligation to adjudicate controversies within their jurisdiction. Yet they also have a duty to abstain from doing so when the case falls within one of the narrow recognized categories of instances in which, because of related state proceedings, action by the federal courts would be thoroughly unproductive.
We have concluded that this is one of those rare cases in which the federal courts should, in deference to a state forum, withhold access from a suitor properly invoking their jurisdiction. Specifically, because continuation of the federal action here would disrupt New York’s unified administrative and judicial framework for the administration of the estates of insolvent insurance companies, we hold that the federal plaintiff must, in the first instance at least, seek relief from the New York courts.
FACTS
The relevant' facts are straightforward and not in dispute. Law Enforcement Insurance Company, Ltd. (“LEICL”) is a Bermuda insurance company that was established in 1977 to provide coverage to law enforcement personnel against liabilities arising from civil rights actions.
In December of 1983, LEICL entered into an agreement with Ideal Mutual Insurance Company (“Ideal”), a New York company. The parties agree that this agreement required Ideal to assume the obligation to provide reinsurance on various LEICL policies. In addition, LEICL claims that the agreement required Ideal to assume LEICL’s direct insurance obligation on the policies that had been issued during the year 1977.
In late December of 1983, the Superintendent of Insurance of the State of New York (“Superintendent”) commenced a proceeding in the Supreme Court, New York County, pursuant to N.Y.Ins.L. § 7402 alleging that Ideal was insolvent and asking to be named as rehabilitator. An order to this effect was entered by that court on December 26, 1984.
In January of 1985, having concluded that further attempts to rehabilitate Ideal would be futile, the Superintendent sought from the same court an order pursuant to N.Y.Ins.L. § 7417 terminating the rehabilitation proceeding and vesting the business of Ideal in himself for the purpose of liquidating it. On February 7, 1985, the court entered the requested order, which, pursuant to N.Y.Ins.L. § 7419, included a provision enjoining all persons with claims against Ideal “from bringing or further prosecuting any action at law, suit in equity, special or other proceeding against the said corporation or its estate, or the Superintendent and his successors in office, as Liquidator thereof.”
LEICL informed the Superintendent of its view that Ideal was obligated under the 1983 agreement to defend and pay claims on the 1977 policies, and received in response a letter rejecting its position.
On February 7, 1986, LEICL filed an action against the Superintendent in the United States District Court for the Southern District of New York. Premising jurisdiction upon diversity of citizenship, the action sought a declaration that Ideal was obligated as a direct insurer on the 1977 policies.
The Superintendent responded to the complaint by moving for an order dismissing the action in deference to the state liquidation proceedings. After full briefing and oral argument, the district court granted the motion. In an opinion reported at 640 F.Supp. 271 (S.D.N.Y.1986), it held that, under the doctrine of Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976), it should abstain from exercising its jurisdiction. LEICL appeals.
DISCUSSION
The Supreme Court of the United States has identified four categories of cases in which federal courts should abstain in deference to state courts, two of which are relevant here. While usefully separated for purposes of analysis, these categories are not watertight, and in considering the factors applicable to each category, the federal courts are not to apply “a mechanical checklist,” but rather are to conduct “a careful balancing of the important factors as they apply in a given case, with the balance heavily weighted in favor of the exercise of jurisdiction.” Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 16, 103 S.Ct. 927, 937, 74 L.Ed.2d 765 (1983). Because these factors are “to be applied in a pragmatic, flexible manner with a view to the realities of the case at hand,” id., at 21,103 S.Ct. at 940, the district court is granted some latitude in its decisionmaking; our review applies an abuse of discretion standard. Bethlehem Contracting Co. v. Lehrer/McGovern, Inc., 800 F.2d 325, 327 (2d Cir.1986).
With these principles in mind, we consider the application to this case of two categories of abstention. Since the district court confined its consideration to the possible applicability of Colorado River, supra, we begin our analysis at that point.
I. Colorado River Abstention
In Colorado River, the Supreme Court faced a factual situation in which state court litigation seeking to settle certain water rights threatened to proceed concurrently with a suit on the same subject brought by the United States on its own behalf and that of several Indian tribes against some 1,000 defendants in a distant federal courthouse. Faced with facts that did not fall within any of the narrow recognized grounds for abstention, the Court decided to recognize a new limited class of “exceptional” cases in which “for reasons of wise judicial administration” and conservation of resources, a federal court should defer to concurrent state proceedings, Colorado River, supra, 424 U.S. at 818, 96 S.Ct. at 1246.
In Moses H. Cone, the Court reaffirmed the doctrine, while emphasizing the rarity of its application by declining to apply it to the facts at hand, adding, as noted, that the federal courts’ weighing of cases must be “with the balance heavily weighted in favor of the exercise of jurisdiction,” Moses H. Cone, supra, 460 U.S. at 16, 103 S.Ct. at 937.
In light of this “heavy presumption favoring the exercise of jurisdiction,” Bethlehem Contracting, supra, 800 F.2d at 327, we believe that the decision of the district court to dismiss on Colorado River grounds was erroneous. This conclusion follows from a considered weighing of the various factors which the precedents counsel are to be evaluated in determining whether the circumstances are “exceptional.”
(a) Avoidance of Piecemeal Litigation
The district court viewed as the strongest exceptional circumstance here that opening the doors of the federal courthouse to LEICL would similarly open them to “countless other plaintiffs” nationwide. While this fear was soundly based, it did not of itself provide a basis for Colorado River abstention.
The “danger of piecemeal litigation” was the paramount factor in the Supreme Court’s approval of abstention in Colorado River, which involved a federal statute, the McCarran Amendment, whose “primary policy” was the avoidance of piecemeal litigation. Moses H. Cone, supra, 460 U.S. at 19 & 20 n. 22, 103 S.Ct. at 938 & 939 n. 22. In Moses H. Cone, in contrast, the Court agreed that the result of a refusal to abstain would be duplicative litigation, but refused to give this consequence any weight, since it resulted from the demands of the relevant federal law, in that case the federal Arbitration Act. Id. at 20, 103 S.Ct. at 939.
Here, the danger of suits nationwide arises solely as a result of the existence of diversity jurisdiction. And while there have been many scholarly and judicial expressions of doubt as to the desirability of its continuation, so long as Congress chooses to have us exercise diversity jurisdiction, we must do so unflaggingly.
LEICL informs us in its brief that it chose a federal forum because of “concern that its status as a foreign corporation and the fact that LEICL was suing the New York Superintendent of Insurance would redound to prejudice LEICL’s position in a state court action.” Whatever our view of the validity of that fear, Congress has given LEICL — and, by extension, plaintiffs in the same position — the right to act on it, and “we have a duty to respect that right.” Giardina v. Fontanta, 733 F.2d 1047,1053 (2d Cir.1984).
Thus, the factor upon which the district court relied most heavily was not an exceptional circumstance within the meaning of Colorado River. It was, rather, an unremarkable result of the application to this case of a considered federal policy. Cf. Lumbermens Mutual Casualty Co. v. Connecticut Bank & Trust Co., 806 F.2d 411 (2d Cir.1986) (nationwide suits against insurance company exceptional circumstance under Colorado River where failure to abstain could lead to inconsistent interpretations of same policy).
(b) Control of a Res
In Colorado River, the Court noted a line of cases holding that a “court first assuming jurisdiction over property may exercise that jurisdiction to the exclusion of other courts.” Colorado River, supra, 424 U.S. at 818, 96 S.Ct. at 1246.
However, the mere fact that the federal and state proceedings concern the same subject matter does not make a case exceptional. Colorado River, supra, 424 U.S. at 816, 96 S.Ct. at 1245. Rather, this rationale applies only where the exercise by one court of its jurisdiction would tend to impede or embarrass the other court in the exercise of its jurisdiction. See, e.g., Tol-free v. New York Title & Mortgage Co., 72 F.2d 702 (2d Cir.1934).
Viewing the present case in isolation, that is, without consideration of New York’s statutory scheme for the liquidation of insolvent insurance companies (which we discuss in Part II), this concern is not implicated here. LEICL could obtain in federal court the declaration it seeks and then present its claim to the New York liquidation court without any unseemly interference on the part of the federal courts in state court proceedings. Indeed, it is the general rule that there is no need for deference where the proceedings in one court seek no more than a declaration of rights to property being administered by another. General Baking Co. v. Harr, 300 U.S. 433, 57 S.Ct. 540, 81 L.Ed. 730 (1937); Commonwealth Trust Co. of Pittsburgh v. Bradford, 297 U.S. 613, 56 S.Ct. 600, 80 L.Ed. 920 (1936); Dempsey v. Pink, 92 F.2d 572 (2d Cir.1937), cert. denied, 303 U.S. 648, 58 S.Ct. 747, 82 L.Ed. 1109 (1938); Slotkin v. Brookdale Hospital Center, 357 F.Supp. 705, 707-08 (S.D.N.Y.1972).
(c) Other Factors
Various other factors canvassed by the Supreme Court are of relatively minor significance here. None of them, individually or in combination, provides “the clearest of justifications,” which alone will warrant a dismissal. Colorado River, supra, 424 U.S. at 819, 96 S.Ct. at 1247.
In Colorado River, the Supreme Court gave weight to the inconvenience of concurrent state and federal proceedings in light of the 300-mile distance between the state and federal courthouses. In this case, the two courthouses are adjacent to each other.
Nor is this a case where any weight may be put on the order in which the federal and state cases were begun. Again considering LEICL’s claim individually, the state forum had not made any substantial progress towards assessing its merits when the federal suit was filed. See Moses H. Cone, supra, 460 U.S. at 21, 103 S.Ct. at 939.
While state rather than federal law provides the rule of decision in this diversity case, only elementary contract principles, rather than novel or obscure state law issues, are involved. See Bethlehem Contracting, supra, 800 F.2d at 328. Cf. Telesco v. Telesco Fuel and Masons’ Materials, Inc., 765 F.2d 356, 363 (2d Cir.1985).
And, as more fully discussed below, the relief available in the state and federal courts seems to be of approximately equal efficacy.
There is a closer question concerning the weight to be given to the state court injunction. However, particularly considering the undesirability of permitting state court injunctions to control federal courts in the exercise of their jurisdiction, we do not consider this factor as being of nearly sufficient weight to tip the balance. Rather, following Dempsey, supra, we read the injunction narrowly, as not precluding the purely declaratory relief sought here. See Slotkin, supra.
From what has been said, it should be clear that we are unable to agree with the district court “that this is one of the rare cases in which Colorado River abstention is appropriate.” 640 F.Supp. at 272. Indeed, if LEICL’s claim had come to us in isolation, we should be constrained to reverse. But, as we now discuss, LEICL’s claim cannot, and should not, be wrenched from the context in which the state court acted, the context of a unified administrative/judicial proceeding.
II. Burford Abstention
Burford, supra, was an attack by an oil company in federal district court on a decision of the Texas Railroad Commission granting a drilling permit to a competitor. The Supreme Court held that the case was one for abstention because: (1) the order under attack was part of a unified regulatory scheme on a complex subject matter of special state interest, a scheme in which the state administrative agency and the state courts cooperated closely to safeguard the values of uniformity, expertise, and due process; (2) the state had expressed its interest in unified decisionmaking by creating a system on the state level to avoid multiple inconsistent adjudications, a system that would be disrupted by the exercise of jurisdiction by the federal courts; and (3) the issues sought to be adjudicated in federal court were largely ones of state law.
The facts here closely parallel those in Burford. New York has set up a comprehensive plan of regulation of insurance companies, with particularly detailed provisions concerning their rehabilitation and liquidation. In doing so, New York has legislated on a matter of special state concern — so declared by the federal McCarran-Ferguson Act, 15 U.S.C. §§ 1011-15.
The New York courts have long been active partners in the state’s regulatory plan. See Motlow v. Southern Holding & Securities Corp., 95 F.2d 721, 724 (8th Cir.), cert. denied, 305 U.S. 609, 59 S.Ct. 68, 83 L.Ed. 388 (1938). Not only have they on a number of occasions reviewed in considerable detail the propriety of liquidators’ decisions to grant or disallow claims, see, e.g., Matter of New York Title & Mortgage Co., 277 N.Y. 66, 13 N.E.2d 41 (1938), on later appeal 257 App.Div. 19, 11 N.Y.S.2d 828 (1st Dept.), rearg. den., 257 A.D. 822, 12 N.Y.S.2d 1021, app. dis’d., 281 N.Y. 829, 24 N.E.2d 491 (1939); In re Guardian Casualty Co., 161 Misc. 859, 293 N.Y.S. 142 (Sup.Ct., N.Y. Co. 1937), they have implemented the state’s policy of unified adjudication by requiring all claims and challenges to be centralized in the court supervising the liquidation or rehabilitation. See, e.g., Knickerbocker Agency, Inc. v. Holz, 4 N.Y.2d 245, 173 N.Y.S.2d 602, 149 N.E.2d 885 (1958); General Accident Fire & Life Assurance Corp. v. Hawkins, 115 A.D.2d 357, 495 N.Y.S.2d 398 (1st Dept. 1985); Powell v. All City Insurance Company, 74 A.D.2d 942, 426 N.Y.S.2d 135 (3d Dept.1980); Matter of Allcity Insurance Company, 66 A.D.2d 531, 413 N.Y.S.2d 929 (1st Dept.), app. den., 48 N.Y.2d 629, 421 N.Y.S.2d 192, 396 N.E.2d 474 (1979); Schenck v. Coordinated Coverage Corp., 50 A.D.2d 50, 376 N.Y.S.2d 131 (1st Dept. 1975); In re Bean, 207 App.Div. 276, 201 N.Y.S. 827 (4th Dept.1923); In re National Surety Co., supra. Indeed, that is the purpose of injunctions such as the one the liquidation court entered here. And while we do not read that injunction as barring this action of its own force, we do give it weight as an expression of state policy.
More significantly, the policy itself is an important one. As the court below recognized, the structure of the New York system serves the state’s strong interest in centralizing claims against an insolvent insurer into a single forum where they can be efficiently and consistently disposed of. 640 F.Supp. at 272, citing Fidelity Mortgage Investors v. Camelia Builders, 550 F.2d 47, 53, 55 (2d Cir.1976), cert. denied, 429 U.S. 1093, 97 S.Ct. 1107, 51 L.Ed.2d 540 (1977); see Ambiance, Inc. v. Commodore General Insurance Co., 553 F.Supp. 285, 289 (S.D.N.Y.1982). Cf. Lumbermens Mutual Casualty Co. v. Connecticut Bank & Trust Co., supra (abstaining so as to permit single inclusive determination concerning insurance coverage).
For all of these reasons, in Levy v. Lewis, 635 F.2d 960, 963-64 (2d Cir.1980), we applied Burford to abstain from deciding a case virtually identical to this one — a case in which the Superintendent as liquidator had disallowed a creditor’s claim, and the creditor had brought a federal action in response. We emphasized New York’s “complex administrative and judicial system for regulating and liquidating domestic insurance companies,” the expertise of the Superintendent, the necessity of marshall-ing the claims and assets in one place, and the “express federal policy of noninterference in insurance matters” embodied in the McCarran-Ferguson Act. All of these considerations are as relevant today as they were when Levy was decided, and persuade us that the same result should follow in this case as in that one. See Mathias v. Lennon, 474 F.Supp. 949, 954-55 (S.D.N.Y.1979) (abstaining on Burford grounds from deciding claims against Superintendent). This is particularly so since, in contrast to Levy, the current case presents no issues of federal law.
Because New York provides “a unified method for the formation of policy and determination of cases by the [Superintendent] and by the state courts,” Burford, supra, 319 U.S. at 333-34, 63 S.Ct. at 1107, a method which would only be impaired by federal court intervention, the district court acted correctly in abstaining.
Affirmed.
. This case does not involve abstention to permit state courts to interpret a state statute in a way that might avoid a federal constitutional question, see Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941) or abstention from interference in ongoing state criminal or quasi-criminal proceedings, see Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); see also Trai-nor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977); Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977); Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975).
. This case, then recently decided, was called to our attention on oral argument. In the interests of all concerned, we urge counsel who discover previously uncited authority to avail themselves of the mechanism of Fed.R.App.P. 28(j) to call it to the attention of both ourselves and opposing counsel in writing.
. We note, however, that since Colorado River abstention applies, if at all, only in cases where traditional forms of abstention do not, Moses H. Cone, supra, 460 U.S. at 14-15, 103 S.Ct. at 936; Colorado River, supra, 424 U.S. at 817, 96 S.Ct. at 1246, district courts should ordinarily consider the traditional abstention doctrines first, thereby reducing the chances of either unnecessary or incomplete legal discussions.
. As we discuss in Part II, this concern would have had a good deal of force in an analysis under Burford v. Sun Oil, 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943). But the district court expressly disclaimed such an analysis, 640 F.Supp. at 272.
. In view of the disagreements subsisting between the parties as to LEICL’s rights under state law, LEICL will remain free after pursuing its state remedies pursuant to our decision to return to the district court in the event that it is able to present evidence to the effect that its rights may not be adequately asserted by proceedings in the liquidation court.
. Although the opinion in Dempsey does not mention the fact specifically, the record of that case reveals that the Supreme Court, New York County, had entered an injunction virtually identical to the one here.
. These provisions are set forth in Article 74 of the New York Insurance Law. Sections 7408-15 of that Article constitute the New York enactment of the Uniform Insurance Liquidation Act. In summary, the statutory plan calls for the Superintendent to apply when he deems it appropriate to the Supreme Court in the judicial district in which the insolvent insurer is located foi an order naming himself as its rehabilitator or liquidator, depending on whether he believes that the business should be run as a going concern or should be terminated. In either event, if the order is granted, the Superintendent takes control of the company’s assets and conducts its business subject to the supervision of the court. See N.Y.Ins.L. § 7428.
. Although our holding does not turn on the procedural details of how that court discharges its responsibilities, we are confident that LEICL’s objection to the Superintendent’s disallowance of its claim could be heard by motion in the liquidation proceeding itself. We were informed at oral argument that a retired New York State judge has been appointed as referee to hear and report to the court on the appropriate disposition of such matters, and this appears to be the common practice. See generally In re Manhattan Casualty Co., 75 Misc.2d 357, 346 N.Y.S.2d 911 (Sup.Ct.N.Y.Co. 1972); In re National Surety Co., 176 Misc. 53, 26 N.Y.S.2d 370 (Sup.Ct.N.Y.Co.1941). In any event, it seems clear from Prince Carpentry Inc. v. Cosmopolitan Mutual Insurance Company, 124 Misc.2d 919, 479 N.Y.S.2d 284 (Sup.Ct.N.Y.Co.1984), that LEICL could obtain review by commencing in Supreme Court, New York County either a proceeding pursuant to N.Y. C.P.L.R. Art. 78 or a declaratory judgment action. As stated in note 5, supra, however, if LEICL’s pursuit of its state remedies should show us to be wrong in our understanding that it has open to it adequate review by the liquidation court, LEICL is free to return to the district court.
. Before the federal case in Levy was brought, the Superintendent had moved in the state liquidation court for approval of his disallowance of the claim. As a result, in abstaining we relied also on grounds analogous to those in Younger, supra. In addition, we relied on Colorado River, a reliance which, for the reasons explained in Part I, may not survive Moses H. Cone.
. Although not controlling, we note in this regard that by relegating claimants to a single proceeding centered in the state of domicile of the insolvent insurer, we further the state policies of uniformity that have led well over half of the states to join New York in adopting the Uniform Insurance Liquidation Act. See Emons Industries, Inc. v. Liberty Mutual Fire Insurance Company, 545 F.Supp. 185, 189-91 (S.D.N.Y. 1982); G.C. Murphy Co. v. Reserve Insurance Co., 54 N.Y.2d 69, 444 N.Y.S.2d 592, 429 N.E.2d 111 (1981).
. In light of our holding, we find it unnecessary to address the Superintendent’s other contentions, notably that the order below should be sustained as an exercise of the district court’s discretion under the Declaratory Judgment Act, 28 U.S.C. § 2201.
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_appel2_4_3
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed appellant. The nature of this litigant falls into the category "sub-state government (e.g., county, local, special district)", specifically "executive/administrative". Your task is to determine which specific substate government agency best describes this litigant.
Sandra C. SCHULTZ and Robert C. Braun, Plaintiffs-Appellees, v. Russell FRISBY, George R. Hunt, Robert Wargowski, Harlan Ross, Clayton A. Cramer, and the Town of Brookfield, Defendants-Appellants.
No. 85-2950.
United States Court of Appeals, Seventh Circuit.
Dec. 8, 1986.
Coffey, Circuit Judge, dissented and filed opinion.
Harold H. Fuhrman, Schetter, Keck & Fuhrman, Milwaukee, Wis., for defendants-appellants.
Walter M. Weber, Catholic League for Religious & Civil Rights, Milwaukee, Wis., for plaintiffs-appellees.
Before WOOD and COFFEY, Circuit Judges, and SWYGERT, Senior Circuit Judge.
SWYGERT, Senior Circuit Judge.
In this case we consider whether an organized group of anti-abortion activists may be prevented from picketing in front of the private residence of a physician who performs abortions as part of his medical practice. These picketers challenge, on constitutional grounds, a municipal ordinance prohibiting all picketing in residential areas. The suit was filed by two members of the group against the municipality and its officers. After a hearing the district court enjoined the enforcement of the ordinance, ruling that it probably offended the first amendment. Schultz v. Frisby, 619 F.Supp. 792 (E.D.Wis.1985). On appeal the decision of the district court is affirmed.
I
The Town of Brookfield, the situs of the controversy, is located in Waukesha County, Wisconsin, not far from Milwaukee. The Town covers an area of about five and one-half square miles and has a population of approximately 4300. State Highway 18, also known as the West Bluemound Road, is the Town’s sole commercial thoroughfare. The remainder of the Town is residential. Brookfield’s homes are grouped into subdivisions graced by their developers with imaginative names. One of those subdivisions is called the “Black Forest.” It consists of fourteen homes and is zoned exclusively for single-family residences. The streets are thirty feet wide; there are no sidewalks, curbs, gutters, or streetlights.
One of the private residences in Black Forest is owned by Benjamin Victoria, M.D. Dr. Victoria performs abortions at clinics in Appleton, Wisconsin and Milwaukee. Dr. Victoria does not practice medicine in Brookfield. The house in Brook-field is the Victoria family’s principal residence.
Plaintiff-appellee Sandra Schultz is a former elementary schoolteacher who describes herself as a full-time housewife and mother. She believes that abortion is a “tragic and immoral injustice.” In January of 1984 she helped found the Milwaukee Coalition for Life, a group dedicated to stopping abortion through sidewalk counseling, picketing, and leafleting. Schultz is currently president of the Coalition.
Plaintiff-appellee Robert Braun is a self-described “community activist” and “advocate on behalf of the poor and unemployed and other needy people.” Braun strongly opposes abortion and believes in “caring and supportive alternatives” to the problems posed by an unwanted pregnancy.
On April 20, 1985 the Milwaukee Coalition for Life sponsored the first of several picket lines in front of the Victoria residence to protest Dr. Victoria’s performance of abortions. Between April 20 and May 20 the Victoria residence was picketed on at least six separate occasions. Schultz was present at picketing occurring on April 20, May 9, and May 20. Braun was present on May 16 and May 20. Estimates of the number of picketers on each occasion varied, but the number was never less than ten nor more than fifty. The picketing received extensive press coverage.
The parties disagree as to the conduct of the picketers. The Town submitted sworn affidavits indicating that the picketing was not always calm and orderly. One of the Town’s police officers stated that on April 27, 1985 he was called to the Victoria residence by Mrs. Victoria and observed that red ribbons had been tied onto the bushes and door of the house. Red ribbons are a symbol of the pro-life movement in Wisconsin. The ribbon-tying incident took place only minutes after a crowd of picketers had left the Victoria home.
Another Town police officer stated that on April 20 he observed picketers singing “God Bless America” and carrying signs that said “baby killer.” At the conclusion of the song the picketers shouted at the house, “Baby killer, Dr. Victoria, you’re a killer, save our children,” or words to that effect. At other times the picketers carried signs inscribed with various anti-abortion themes such as “Stop Abortion Now,” “Aborted Babies Sold for Cosmetics,” “Abortion is Legal Murder,” and “Forgiveness is Yours for the Asking.”
The family of a five-year-old boy, residing down the street from the Victorias, stated that on April 20 they saw a group of people marching on the street carrying signs about abortion and that one member of the group, “a lady with a cross,” told the little boy that there was a man who lived up the road who killed babies and that the boy should not go there. The child became frightened and asked if the man would kill him too.
A family living one block from the Victo-rias stated that their six-year-old daughter was told by picketers that Dr. Victoria was killing babies, that she had become frightened, and that they had been forced to explain abortion to her.
The Victorias’ son, age sixteen, stated that the picketers took his picture, shouted at him, and temporarily blocked his exit from his home. Mrs. Victoria stated that she was blocked from entering her home and that the picketers placed a sign stating, “You are a shame to the United States,” on her front door. She further stated that the picketers took photographs of her home and backyard pool and published them in their organization’s newsletter.
Schultz and Braun have sworn that the picketing was entirely peaceful. They claim that the picketers confined themselves to the street, did not block traffic, and did not generate excessive noise. The plaintiffs submitted affidavits which supported their contention that the picketing was polite and restrained. No arrests were made. Indeed, the defendants’ own proposed statement of uncontested facts cited an article published in the Milwaukee Sentinel of May 21, 1985 that quoted a “neighbor of Victoria” as objecting more to Dr. Victoria’s abortion activities than to the picketing. The district court found that the picketing had been conducted, “for the most part,” in a peaceable and orderly fashion.
Schultz has stated that picketing of the Victoria residence is necessary because:
Picketing at locations at which Victoria performs abortions would not accomplish what picketing on the public street by his house can accomplish. Such picketing would not serve to inform those dwelling in Victoria’s neighborhood. Moreover, the greater media coverage of residential picketing allows us to reach audiences who might not otherwise receive our messages. As an additional concern, we do not wish to interfere with efforts of sidewalk counselors to contact prospective abortion clients; picketing near the Victorias’ residence (away from the site of the abortions) removes the possibility of such problems, while more effectively conveying our messages to the abortionist and those in his community.
On May 7, 1985, after the picketing had started, the Town of Brookfield enacted an ordinance that prohibited picketing before or about the residence or dwelling of any individual, except for picketing during a labor dispute of the place of employment involved in the labor dispute. The Town Attorney became convinced that the new ordinance conflicted with the Supreme Court’s decision in Carey v. Brown, 447 U.S. 455, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980), and instructed the Town Chief of Police to withhold enforcement. Picketing continued and the ordinance was repealed. On May 15, 1985 the Town passed a new ordinance, section 9.17 of the General Code. The key provision of the new ordinance reads: “It is unlawful for any person to engage in picketing before or about the residence or dwelling of any individual in the Town of Brookfield.” The Town also set forth its rationale for the ordinance:
It is declared that the protection and preservation of the home is the keystone of democratic government; that the public health and welfare and the good order of the community require that members of the community enjoy in their homes and dwellings a feeling of well-being, tranquility, and privacy, and when absent from their homes and dwellings, carry with them the sense of security inherent in the assurance that they may return to the enjoyment of their homes and dwellings; that the practice of picketing before or about residences and dwellings causes emotional disturbance and distress to the occupants; obstructs and interferes with the free use of public sidewalks and public ways of travel; that such practice has as its object the harassing of such occupants; and without resort to such practice full opportunity exists, and under the terms and provisions of this chapter will continue to exist for the exercise of freedom of speech and other constitutional rights; and that the provisions hereinafter enacted are necessary for the public interest to avoid the detrimental results herein set forth.
There has been no picketing of the Victoria residence since May 21, 1985, the effective date of the picketing ordinance.
On July 2, 1985 Schultz and Braun brought suit under 42 U.S.C. § 1983 seeking declaratory and injunctive relief from an alleged deprivation of their rights under the first and fourteenth amendments of the United States Constitution. The defendants are Russell Frisby and George Hunt, Supervisors of the Town Board; Robert Wargowski, Chairman of the Town Board; Harlan Ross, Chief of Police; Clayton Cramer, Town Attorney; and the Town of Brookfield. A hearing on plaintiffs’ request for a preliminary injunction was held on August 13, 1985. Finding that the picketers were likely to prevail on the merits, on October 7, 1985 the district court issued its decision granting the picketers a preliminary injunction and providing that the injunction would become permanent, absent an appeal or request for a trial, within sixty days. The basis of the district court’s decision was that the ordinance was not narrowly tailored to advance the Town’s asserted interests in protecting the privacy of its citizens and the unobstructed use of the streets and sidewalks. The defendants appealed.
II
It is well-settled law that: “To obtain a preliminary injunction, a plaintiff must show: (1) that he has no adequate remedy at law or will suffer irreparable harm if the injunction is denied; (2) that the harm he will suffer is greater than the harm the defendant will suffer if the injunction is granted; (3) that the plaintiff has a reasonable likelihood of success on the merits; and (4) that the injunction will not harm the public interest.” ON/TV v. Julien, 763 F.2d 839, 842 (7th Cir.1985). The decision to grant or deny a preliminary injunction will not be disturbed absent an abuse of discretion. Burlington Northern RR v. Brotherhood of Maintenance of Way Employees, 793 F.2d 795, 804 (7th Cir.1986); Maxim’s Ltd. v. Badonsky, 772 F.2d 388, 390 (7th Cir.1985).
In American Hospital Supply Corp. v. Hospital Products Ltd., 780 F.2d 589 (7th Cir.1986), a divided panel of this court seemed to cast doubt upon the continuing validity of this traditional approach. Building upon an earlier decision of this court, Roland Machinery Co. v. Dresser Industries, 749 F.2d 380 (7th Cir.1984), American Hospital appeared to suggest that these traditional considerations could be encapsulated in an algebraic formula. 780 F.2d at 593. Subsequent decisions of this court have clarified the meaning of the American Hospital decision. In Lawson Products v. Avnet, 782 F.2d 1429 (7th Cir. 1986), this court re-examined the doctrinal underpinnings of the law of preliminary injunctions and concluded, in light of the issues raised by the American Hospital formula, that “despite possible contrary readings of recent precedent, the granting of injunctive relief remains a discretionary equitable remedy.” 782 F.2d at 1430. The court in Lawson explicitly endorsed the traditional approach to injunctive relief. “[T]his opinion represent[s] a continued affirmation of the traditional equitable factors governing injunctions and the classic roles of both district and appellate courts.” Id. at 1441. “Roland and American Hospital did not change any of the law governing preliminary injunctions.” Id. at 1437. A subsequent decision of this court agreed with the position taken by the panel in Lawson. See Brunswick Corp. v. David Jones, 784 F.2d 271, 1330 n. 1 (7th Cir.1986) (“American Hospital does not set forth a new standard for granting preliminary injunctions.”); see also Ball Memorial Hosp. v. Mutual Hosp. Ins., 784 F.2d 1325, 1346 (7th Cir.1986) (Will, J., concurring).
It should be obvious then, that concerns about the continuing validity of the traditional approach to preliminary injunctive relief in this circuit are misplaced. The law remains unchanged. Applying the law to the facts of this case, we conclude, for the reasons set forth below, that the district court did not abuse its discretion in granting the preliminary injunction.
Ill
The first amendment prohibits governmental bodies from enacting laws “abridging the freedom of speech” or “the right of the people peaceably to assemble.” These words, by themselves, seldom serve to illuminate the precise contours of protected expression in cases such as the present one. Picketing, for example, is not an instance of “pure speech” because it usually involves conduct of some sort and may not include verbal utterances at all. Conduct is not always entitled to the same level of protection as pure speech. Shut-tlesworth v. Birmingham, 394 U.S. 147, 152, 89 S.Ct. 935, 939, 22 L.Ed.2d 162 (1969). Nevertheless, “[tjhere is no doubt that as a general matter peaceful picketing and leafletting are expressive activities involving ‘speech’ protected by the First Amendment.” United States v. Grace, 461 U.S. 171, 176, 103 S.Ct. 1702, 1706, 75 L.Ed.2d 736 (1983).
The Supreme Court has often stated that speech on issues of public concern occupies the “highest rung of the hierarchy of First Amendment values” and is entitled to “special protection.” Connick v. Myers, 461 U.S. 138, 145, 103 S.Ct. 1684, 1689, 75 L.Ed.2d 708 (1983); NAACP v. Claiborne Hardware, 458 U.S. 886, 913, 102 S.Ct. 3409, 3425, 73 L.Ed.2d 1215 (1982); Carey v. Brown, 447 U.S. 455, 466-67, 100 S.Ct. 2286, 2293-94, 65 L.Ed.2d 263 (1980). The Court has characterized freedom of speech as a fundamental personal right, Schneider v. State, 308 U.S. 147, 161, 60 S.Ct. 146, 150-51, 84 L.Ed. 155 (1939), and “as the essence of self-government.” Garrison v. Louisiana, 379 U.S. 64, 75, 85 S.Ct. 209, 216, 13 L.Ed.2d 125 (1964). The right to picket, however, like all other forms of expression, is not absolute and is subject to reasonable regulation. Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 3069, 82 L.Ed.2d 221 (1984). “[T]he First Amendment does not guarantee the right to communicate one’s views at all times and places or in any manner that may be desired.” Heffron v. International Soc’y for Krishna Consciousness, 452 U.S. 640, 647, 101 S.Ct. 2559, 2564, 69 L.Ed.2d 298 (1981).
There are several important limitations on the scope of the first amendment. The expressive activity for which a claim of protection is made must be appropriate to, or not incompatible with, its location. “The existence of a right of access to public property and the standard by which limitations upon such a right must be evaluated differ depending on the character of the property at issue.” Perry Education Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 44, 103 S.Ct. 948, 954, 74 L.Ed.2d 794 (1983); see also Cornelius v. NAACP Legal Defense and Education Fund, 473 U.S. 788, 105 S.Ct. 3439, 3448,. 87 L.Ed.2d 567 (1985); Grayned v. Rockford, 408 U.S. 104,106, 92 S.Ct. 2294, 2297-98, 33 L.Ed.2d 222 (1972). In evaluating the appropriateness of expressive activity to a particular location courts employ the “public forum” doctrine. In places which by tradition have been devoted to assembly and debate the state’s ability to limit expressive activity is “sharply circumscribed.” Perry, 460 U.S. at 45, 103 S.Ct. at 955. In places not traditionally devoted to assembly or debate the state may nevertheless create a public forum by intent or custom. In these limited public forums a state may not enforce exclusions even if it need not have established the forum to begin with. Id. at 45, 103 S.Ct. at 955. In addition, certain government properties, even if “public” in other respects, are nonpublic forums for first amendment purposes. United States Postal Serv. v. Greenburgh Civic Ass’ns, 453 U.S. 114, 129, 101 S.Ct. 2676, 2685, 69 L.Ed.2d 517 (1981); Greer v. Spock, 424 U.S. 828, 836, 96 S.Ct. 1211, 1216, 47 L.Ed.2d 505 (1976); Adderly v. Florida, 385 U.S. 39, 47, 87 S.Ct. 242, 247, 17 L.Ed.2d 149 (1966).
Regulations enacted for the purpose of restraining speech on the basis of its content “presumptively” violate the first amendment. Renton v. Playtime Theatres, — U.S.-, 106 S.Ct. 925, 928, 89 L.Ed.2d 29 (1986). Content-neutral time, place, and manner regulations, however, are permitted if they are narrowly tailored to serve a substantial governmental interest and leave open ample alternative avenues of communication. Clark v. Community for Creative Non-Violence, 468 U.S. at 293, 104 S.Ct. at 3069. In City of Watseka v. Illinois Public Action Council, 796 F.2d 1547, 1552 (7th Cir.1986), we stated that a time, place, and manner restriction on expressive activity may be sustained only if the Government can show that the restriction (1) is content neutral, (2) serves a legitimate governmental objective, (3) leaves open ample alternative channels of communication, and (4) is narrowly tailored to serve the governmental objective. To establish that a regulation is narrowly tailored the Government must show that there is a “significant relationship between the regulation and the governmental interest... and that less restrictive alternatives are inadequate to protect the governmental interest.” Id.
IV
We must first decide whether the street fronting Dr. Victoria's home is a public forum for purposes of the first amendment. We begin with the proposition that streets have historically been considered particularly appropriate locations for public assembly and debate.
Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied.
Hague v. CIO, 307 U.S. 496, 515-16, 59 S.Ct. 954, 963-64, 83 L.Ed. 1423 (1939). The Supreme Court has repeatedly reaffirmed the Hague principle. See, e.g., United States v. Grace, 461 U.S. at 177, 103 S.Ct. at 1707 (“public places historically associated with the free exercise of expressive activities, such as streets, sidewalks, and parks, are considered, without more, to be ‘public forums’ ”); Amalgamated Food Employees Union v. Logan Valley Plaza, 391 U.S. 308, 315, 88 S.Ct. 1601, 1607, 20 L.Ed.2d 603 (1968) (“streets... are so historically associated with the exercise of First Amendment rights that access to them for the purpose of exercising such rights cannot constitutionally be denied broadly and absolutely”); see also Carey v. Brown, 447 U.S. at 460, 100 S.Ct. at 2290; Hudgens v. NLRB, 424 U.S. 507, 515, 96 S.Ct. 1029, 1034, 47 L.Ed.2d 196 (1976); Shuttlesworth v. Birmingham, 394 U.S. at 152, 89 S.Ct. at 939.
It is not intuitively obvious, however, that all streets, in all places, must automatically be considered public forums. There are no doubt thousands of subdivisions scattered throughout this country, like the one involved in this case, on whose streets little, if any, first amendment activity has ever taken place. Homes like the Victo-rias’ were conceived, built, and purchased as private residences, havens from our loud and contentious inner cities. It seems incongruous to decide that this particular street is a public forum simply because streets in general have historically been centers of expressive activity.
In Pursley v. Fayetteville, 628 F.Supp. 676 (W.D.Ark.1986), the district court upheld the constitutionality of an ordinance essentially identical to the ordinance involved in this case. In Pursley the ordinance was also challenged by anti-abortion picketers wishing to picket the residence of a doctor who performed abortions as part of his medical practice. The Pursley court held that streets and sidewalks located in residential areas are not public forums. 628 F.Supp. at 679-80.
Nevertheless, the Supreme Court has always placed all streets, regardless of their differing characteristics, into the same privileged category for first amendment purposes. Twice, for instance, the Supreme Court has upheld the right of demonstrators to picket the streets fronting the private residence of the Mayor of Chicago. Carey v. Brown, 447 U.S. 455, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980); Gregory v. City of Chicago, 394 U.S. Ill, 89 S.Ct. 946, 22 L.Ed.2d 134 (1969). In neither case was the residential character of the neighborhoods sufficient to transform the streets at issue from public to non-public forums. In Heffron v. International Society for Krishna Consciousness, 452 U.S. 640, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981), the Court rejected the respondents’ attempt to equate, for first amendment purposes, streets and the state fairgrounds at issue in that case. “[I]t is clear that there are significant differences between a street and the fairgrounds. A street is continually open, often uncongested, and constitutes not only a necessary conduit in the daily affairs of a locality’s citizens, but also a place where people may enjoy the open air or the company of friends and neighbors in a relaxed environment.” Id. at 651, 101 S.Ct. at 2566. Justice White’s description of a hypothetical “street” entitled to characterization as a quintessential public forum serves as an accurate description of the Brookfield street in this case. The public forum status of streets and sidewalks may not be altered by legislative fiat. United States v. Grace, 461 U.S. at 180, 103 S.Ct. at 1708-09; Greenburgh, 453 U.S. at 133, 101 S.Ct. at 2687. Despite the tremendous changes in the patterns of residential life since the Hague decision, streets remain proper and natural places for the dissemination of ideas.
A holding that streets located in residential areas are not public forums would represent a radical departure from the general direction of first amendment jurisprudence. Such a holding would effectively place vast areas of this country out of the reach of the protection of the first amendment. Indeed, if streets like that fronting Dr. Victoria’s home are not protected by the first amendment, then primarily residential towns, like Brookfield, may effectively confine the right of their citizens to be exposed to a diversity of views on issues of public concern to those tiny areas of the community classified as “commercial” or “governmental.” The importance of free expression to our constitutional scheme of government makes this result inconceivable.
We think that if the issue were squarely presented to the Supreme Court it would hold that all streets, regardless of their situs, are public forums, and we therefore conclude that the Brookfield picketing occurred in a public forum.
V
This conclusion, however, does not answer the vexing questions that remain. We must also consider whether the Brook-field ordinance leaves open ample alternative channels for communication. Cf Clark v. Community for Creative Non-Violence, 468 U.S. at 293, 104 S.Ct. at 3069. For “a restriction on expressive activity may be invalid if the remaining modes of communication are inadequate.” Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 812, 104 S.Ct. 2118, 2133, 80 L.Ed.2d 772 (1984). And “one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.” Schneider v. State, 308 U.S. at 163, 60 S.Ct. at 151-52.
There are no clear guideposts to assist courts in determining when an alternative forum is “adequate.” The thrust of the cases seems to be that an alternative forum will not be judged inadequate because it restricts the quantity of the means of expression. See, e.g., Taxpayers for Vincent, 466 U.S. at 803, 104 S.Ct. at 2128. The Supreme Court seems to have analyzed the issue in terms of its effect on the quality of the means of expression. The restricted forum must constitute a “uniquely valuable or important mode of communication.” Id. at 812, 104 S.Ct. at 2133.
In Renton v. Playtime Theatres, 106 S.Ct. at 925, the Court rejected claims that a zoning ordinance which prohibited motion picture theatres from locating within 1000 feet of a residential zone, church, park, or school did not allow for reasonable alternative avenues of communication where five percent of the land area of the city remained open to unrestricted use as adult theatre sites. In Taxpayers for Vincent the Court upheld a ban on the posting of signs on public property because the ban did not “affect any individual’s freedom to exercise the right to speak... in the same place where the posting of signs on public property is prohibited.” 466 U.S. at 812, 104 S.Ct. at 2133 (emphasis added). But in Linmark Associates v. Willingboro, 431 U.S. 85, 97 S.Ct. 1614, 52 L.Ed.2d 155 (1977), the Court struck down a town ordinance that banned the posting of “For Sale” signs on real estate because the ban forced sellers to employ entirely different kinds of advertising, such as the newsme-dia.
There is no question that picketing per se is a valuable form of communication. The more difficult question is whether picketing in a residential neighborhood is an essential, “uniquely valuable,” element of the message Schultz and Braun seek to communicate. The question we must answer is whether the plaintiffs may effectively deliver their message elsewhere without, at the same time, changing the character of that message. The Brookfield ordinance restricts picketing to the commercial strip along West Bluemound Road, the Town’s main thoroughfare. We think it clear that in so doing the ordinance significantly impacts upon the quality of the means of expression Schultz and Braun have chosen to communicate their message. Forcing Schultz and Braun to picket in non-residential areas would be, in effect, to force them to engage in an entirely different form of expressive activity. Consigned to the “safe” and busy area along Bluemound Road, they may be conveniently ignored by passersby. They may be written off as eccentric and irrelevant nuisances. Residential picketing, however, does not permit the citizens of Brookfield to ignore or trivialize the message the picketers wish to communicate. Residential picketing, quite literally, brings the message home. More importantly, the fact that the message may reach and disturb families and children is clearly part of the point of the picketing, for, to a certain extent, the picketers seek to communicate their concerns about a perceived assault on the family and on childhood itself. There can be no better place to convey those concerns than in a residential area. The disturbance occasioned by the residential picketing in this case is actually one measure of its unique value as a means of communicating Schultz’ and Braun’s concerns. We conclude, therefore, that the Brookfield ordinance does not provide ample, alternative channels of communication.
VI
Neither Schultz nor Braun has been charged with a violation of the ordinance. Nothing in the record indicates that the ordinance has been enforced against anyone else. The general rule is that “constitutional adjudication requires a review of the application of a statute to the conduct of the party before the Court.” Taxpayers for Vincent, 466 U.S. at 798, 104 S.Ct. at 2125. This rule reflects both the personal nature of constitutional rights and prudential limitations on constitutional adjudication. New York v. Ferber, 458 U.S. 747, 767, 102 S.Ct. 3348, 3360, 73 L.Ed.2 1113 (1982). See generally Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). In some cases, however, courts have invalidated statutes “on their face” without inquiring into their particular applications to specific facts. An ordinance may be constitutionally invalid on its face “either because it is unconstitutional in every conceivable application, or because it seeks to prohibit such a broad range of protected conduct that it is unconstitutionally ‘overbroad.’ ” Taxpayers for Vincent, 466 U.S. at 796, 104 S.Ct. at 2124. In either case illegitimate enforcement of the statute against the complaining party will not be required. An ordinance is unconstitutional in every conceivable application because “any enforcement carries with it the risk that the enforcement is being used merely to suppress speech, since the statute is not aimed at a substantive evil within the power of the government to prohibit.” Id. at 797 n. 14, 104 S.Ct. at 2125 n. 14 (emphasis in original). This is almost a rule of per se unconstitutionality. Laws invalidated on this basis fail to define a “central core of constitutionally regulable conduct.” New York v. Ferber, 458 U.S. at 771 n. 26, 102 S.Ct. at 3362 n. 26; Parker v. Levy, 417 U.S. 733, 760, 94 S.Ct. 2547, 2563-64, 41 L.Ed.2d 439 (1974); CSC v. Letter Carriers, 413 U.S. 548, 580-81, 93 S.Ct. 2880, 2897-98, 37 L.Ed.2d 796 (1973). See generally Note, The First Amendment Overbreadth Doctrine, 83 Harv.L.Rev. 844 (1970).
An ordinance may also be constitutionally invalid on its face if it is written so broadly that it may inhibit — have a “chilling effect” on — the protected speech of third parties. Taxpayers for Vincent, 466 U.S. at 796, 104 S.Ct. at 2124; Thornhill v. Alabama, 310 U.S. 88, 97-98, 60 S.Ct. 736, 741-42, 84 L.Ed. 1093 (1940). This form of the overbreadth doctrine — the “classic” form of the doctrine — relaxes ordinary standing rules by permitting parties to raise the rights of third parties not before the court. Though the Court has cautioned that constitutionally invalid over-breadth must be “substantial” where conduct and not merely speech is involved, and that the doctrine itself should be invoked “only as a last resort,” Broadrick v. Oklahoma, 413 U.S. at 613, 93 S.Ct. at 2916, the Court has often invalidated statutes on the basis of this doctrine. Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980); Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972); Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S.Ct. 1116, 1120-21, 14 L.Ed.2d 22 (1965). See generally Monaghan, Over-breadth, 1981 S.CtRev. 1.
These two types of facial challenges to the constitutionality of legislative enactments are often conflated. “ ‘[OJver-breadth’ is not used only to describe the doctrine that allows a litigant whose own conduct is unprotected to assert the rights of third parties to challenge a statute, even though as applied to him the statute would be constitutional. ‘Overbreadth’ has also been used to describe a challenge to a statute that in all its applications directly restricts protected first amendment activity and does not employ means narrowly tailored to serve a compelling governmental interest.” Secretary of State of Maryland v. J.H. Munson Co., 467 U.S. 947, 965-66 n. 13, 104 S.Ct. 2839, 2852 n. 13, 81 L.Ed.2d 786 (1984) (citations omitted); see also Central Hudson Gas & Elec. v. Public Serv. Comm’n, 447 U.S. 557, 565 n. 8, 100 S.Ct. 2343, 2351 n. 8, 65 L.Ed.2d 341 (1980). In this case we are not presented with an instance in which the application of the classic overbreadth doctrine is appropriate. The facial challenge to the Brookfield ordinance is of the per se type upheld in J.H. Munson.
The complaint in this case is not that the ordinance might violate the rights of other potential picketers, but rather that the ordinance is unconstitutional and would constitute a direct restriction on protected first amendment activity if applied to Schultz and Braun and would
Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "sub-state government (e.g., county, local, special district)", specifically "executive/administrative". Which specific substate government agency best describes this litigant?
A. CEO or officials in charge of agency
B. Mayor/county executive
C. Primary or secondary school system CEO
D. Other CEO or administrative official (except prison)
E. not ascertained
Answer:
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songer_bank_r1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine whether or not the first listed respondent is bankrupt. If there is no indication of whether or not the respondent is bankrupt, the respondent is presumed to be not bankrupt.
JUBAS v. SAMPSELL.
No. 12524.
„ , „ . . United States Court of Appeals Ninth Circuit.
Nov. 14, 1950.
Gendel & Raskoff, Los Angeles, Cal,, for appellant.
Craig, Weller & Laughan, Los Angeles, Cal. (Thomas S. Tobin, Los Angeles, Cal., . ... .. °f counsel), for aPPcllee-
_ATC _. . , STEPHENS, Circuit Judge, ’ J
The court’s Findings of Fact are to the following purport and are unquestioned:
A copartnership composed of Gene L J ‘ f FaíTan. and Leo G- 01son was conducting a retail shoe business under the fictitious name of Fashion Bootery. The copartnership was adjudged a bankrupt and plaintiff-appellee thereafter became Trustee jn Bankruptcy. While yet solvent, the COpartnership sold 1240 pairs of shoes « . , , , £ which were of broken sizes and out of , ^ _ stylc: Tbey had “st betwcen $5'25 and $^*25 per pair and defendant-appellant purchased them for their then value of $1.00 per pair. This purchase and sale constituted 25% of the number of pairs of shoes and 15% of the value of the then held stock in trade. Prior to the sale “all available attempts to sell said shoes in the ordinary retail method of separate Pairs of shocs t0 mdivldual ^tomers had bcen ^successful.” The firm “had been tmable t0 obtam any hl^her or bctter offcr for sald shoes tban ?L0° Per Palr’ which was offered by defendant bercm-”
The California Bulk Sales Law, § 3440 of the Civil Code of California, provides that a sale in bulk of a substantial part oí a stock in trade “otherwise than in the ordinary course of trade and in the regular and usual practice and method of business of the vendor * * * will be conclusively presumed to> be fraudulent and void as against existing creditors * * * ” unless a seven days’ notice of intention is recorded with the county re-J corder. No such notice was recorded. Fagan and Olson were declared bankrupt and the Referee brought timely suit to recover on behalf of the bankrupt estate. The district court held that the goods sold constituted a substantial ■ part of the stock m trade and that it was conclusively fraudulent, and gave judgment for the value of the 1240 pairs of shoes at $1.00 per pair. Defendant appeals.
The sole question here is whether in the circumstances the court erred by holding that the sale was conclusively fraudulent because § 3440 of the Civil Code of California was not complied with.
Appellant claims that the sale was in „ , : j ™ it. j í regular and usual practice and method of , . r ,, , busmess of the vendor and that the merchandise which was the subject of the sale , , . , , was not a substantial part of the vendor s stock in trade. We are of the opinion that these claims cannot be sustained. The “regular and usual practice and method of business of the vendor” cannot be measured by a prevalent custom of merchants which the vendor followed. The vendors herein were retail shoe merchants whose regular and usual practice and method of business . e , , . was selling shoes to those who came into & , the store to buy from the stock m trade J for wear.
The plain meaning of the statute is that when a storekeeper disposes of a substantial part of his stock in trade in bulk, and selling in bulk sales is not the usual and ordinary way in which he conducts his business from day to day, the sale falls within the statute.
The Findings of Fact to the effect , v. . . .. . , , that the shoes m suit were m the stock in trade and constituted 25% in quantity and 15% in value of the whole stock supports the conclusion that the part sold was a substantial part of the whole. See Schainman v. Dean, 9 Cir., 1928, 24 F.2d 475 and Markwell & Co. v. Lynch, 9 Cir., 1940, 114 F.2d 373, 375.
Affirmed,
Question: Is the first listed respondent bankrupt?
A. Yes
B. No
Answer:
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songer_circuit
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
Edward SCHILLING, Trustee of North Atlantic and Gulf Steamship Company, Incorporated, and Nortropic Shipping Company, Incorporated, Debtors, in Reorganization pursuant to Chapter X of the Bankruptcy Act, Appellants, v. A/S D/S DANNEBROG et al., Appellees.
No. 363, Docket 28084.
United States Court of Appeals Second Circuit.
Argued May 28, 1963.
Decided July 5, 1963.
Milton M. Bergerman, New York City (Bergerman & Hourwich, Joseph Calderon, Albert F. Reisman, New York City, of counsel), for appellant.
Richard T. O’Connell, Healy, Baillie & Burke, New York City, for appellees National Shipping & Trading Corp. and Arequipa Compañía Naviera S. A.
Samuel Rosenbloom, New York City (Joshua Morrison, Sidney S. Goldstein, New York City, of counsel), for appellee Ocean Tramping Corp.
Paul F. McGuire, Kirlin, Campbell & Keating, New York City, for appellees Adra, etc.
Charles S. Haight, Jr., New York City (Haight, Gardner, Poor & Havens, John C. Moore, New York City, of counsel), for A/S D/S Dannebrog, Orvigs D/S A/S, I/S Norlindo, A/S D/S Neptun, D/S A/S Imica, and Rederi A/B Sigyn.
Before WATERMAN, FRIENDLY and SMITH, Circuit Judges.
FRIENDLY, Circuit Judge.
In an opinion reported in 204 F.Supp. 899, Judge Bryan laid down general principles to guide the resolution of a complex of claims by owners of vessels that had been time-chartered to the bankrupt, North Atlantic and Gulf Steamship Company (Norgulf), by stevedores who had rendered services to the chartered vessels, and by Nor gulf’s trustee in bankruptcy. The quality of his opinion, apparent from a reading of it, is even more impressively attested by the absence of appeal from any but two of the fourteen issues he decided. Although both these issues are, so far as we have been able to discover, of novel impression, and they seem somewhat more difficult to us than they did to Judge Bryan, we think he reached the correct results.
I.
The time charters, which were the standard New York Produce Exchange Form, provided that charter hire should be paid semi-monthly in advance and, in Clause 18,
“That the Owners shall have a lien upon all cargoes, and all sub-freights for any amounts due under this Charter, including General Average Contributions, and the Charterers to have a lien on the Ship for all moneys paid in advance and not earned, and any overpaid hire or excess deposit to be returned at once.”
The present question concerns cases where the vessels were turned back to the owner, prior to the filing of the petition in bankruptcy, after an installment of charter hire had come due and not been paid but before the semi-monthly period to which it related had expired. The owners claimed, and the District Judge held, that they were entitled to liens against the sub-freights for the full amounts of the unpaid installments. The trustee contends that the lien should be for only a fraction of the last unpaid installment, with the period of actual use by the debtor the numerator and the half-month the denominator. He relies on what he considers to be the equities, and on the authority of Jebsen v. A Cargo of Hemp, 228 F. 143, 149 (D.Mass. 1915), and Wehner v. Dene Steam Shipping Co. [1905], 2 K.B. 92, 101-02.
These two decisions did reduce the lien for the last unpaid installment to an amount proportional to the period of the charterer’s use. See also Italian State Railways v. Mavrogordatos [1919], 2 K.B. 305; Scrutton, Charterparties (10th ed. McNair & Mocatta, 1955), at 408; Carver, Carriage of Goods by Sea (10th ed. Colinvaux, 1957), at 272. But see Leslie Shipping Co. v. Welstead [1921], 3 K.B. 420, where an apparently inconsistent result was reached, without discussion. But all those cases differed from the instant one in a respect which the owners claim and Judge Bryan held to be vital. In each of them the owner had withdrawn the vessel for nonpayment of the installment, whereas here the already defaulting charterer took the initiative and returned the vessel prematurely, in breach of the charter. The language of the Wehner case, that the owner did not have “the right to retake possession in the middle of the half-month, and also to claim the hire for the whole of that period,” and of the Jebsen case, that as a result of the owner’s action, “the vessel was in fact withdrawn from the service of the [charterer],” is thus not exactly applicable; neither is the statement in Italian State Railways that “It would be strange if the law should allow the owner to withdraw his ship on January 11 and yet claim payment of a full month’s hire in advance dating from 10 P.M. on the previous day.”
Where leases of real estate are involved, the tenant’s surrender of the premises, even when it is accepted by the landlord and hence terminates the lease, does not relieve the tenant from liability for an installment of rent which has previously come due in advance for a period extending beyond the acceptance of the surrender. Sperry v. Miller, 8 N.Y. 336 (1853); Barkley v. McCue, 25 Misc. 738, 55 N.Y.S. 608 (1899); Hampton v. Flesser, 133 Misc. 705, 232 N.Y.S. 641 (1929); Petrelli v. Kagel, 37 Misc. 2d 246, 235 N.Y.S.2d 383 (N.Y.C.Civil Ct. 1962). But in contrast to a demise charter, see Gilmore and Black, Admiralty (1957), 215, the landlord and tenant analogy is not entirely apt as applied to an ordinary time charter, where, as pointed out in the Italian State Railways case, supra, the vessel has always been under the direction of the owner’s master. It might be argued that, if a time charter is thus treated as a simple bilateral contract rather than as a lease, the breach of contract resulting from a turn-back of the vessel “merges” the past-due installment of charter hire into an over-all claim for damages in the amount of the excess of the hire for the unexpired term of the charter, starting with the date when the installment was due, over the value of the use of the vessel to the owner for the same period— an unliquidated claim not contended by the owners to be comprehended within Clause 18. Compare Freights of the Kate, 63 F. 707, 723 (S.D.N.Y.1894). However, as pointed out in 4 Corbin, Contracts (1951), §§ 955-57, the rule against “splitting a cause of action” should not be applied in a mechanical fashion and without regard to the reasons that underlie it. Here the owner had contracted for a lien against sub-freights for unpaid installments of charter hire; we see no reason why the law should force him to forego that remedy and merge his secured claim for an installment that accrued before the turn-back with his unsecured claim for damages arising from the charterer’s later complete breach — even when, unlike the owners in the Jebsen' Wehner and Italian State Railways cases, he has taken no affirmative action that might be thought to evidence an election to forego his claim for charter hire from the date of such action and to rely solely on his claim for damages but has simply accepted a return of the vessel voluntarily tendered by the charterer, which he could not well refuse. The result might be different if, from rechartering the vessel or otherwise, the owner realized more than the total amount remaining due under the charter, including the unpaid installment. Cf. S & W Holding Co. v. Kuriansky, 317 F.2d 666 (2 Cir. 1963). But no one asserts this to be such a case. Still another question is whether the amount of the lien for an unpaid installment should be reduced if the owner got some value out of the vessel during the period covered by the installment. If the facts here present that issue, we do not understand Judge Bryan’s opinion to have ruled upon it.
Our ruling here is in no way inconsistent with our recent decision in S & W Holding Co. v. Kuriansky, supra, that the landlord of a bankrupt could not apply a security deposit to the entire amount of the rent that became due on the first day of the month in which bankruptcy occurred, in a situation where he was entitled to recover from the trustee for use and occupancy from the date of bankruptcy and suffered no damages from breach of the lease. We held long ago in a case cited with approval in S & W Holding Co., that where a trustee had ceased 'to occupy the premises leased by the bankrupt, the lessor was entitled to apply a security deposit against rent accruing even after bankruptcy but before acceptance of a surrender. In re Sherwoods, 210 F. 754, 761 (2 Cir. 1913).
II.
Clause 3 of the charters provided that “the Owners, at the port of re-delivery, shall take over and pay for all fuel remaining on board the vessel at the current prices in the respective ports * In cases where the redelivery was subsequent to the bankruptcy, Judge Bryan upheld the trustee’s contention that since the fuel on board was his property, the owners’ obligation to pay for it ran to him and could not be set off, under § 68 of the Bankruptcy Act, against the owners’ unsecured claims; this ruling has not been appealed. However, the judge reached an opposite conclusion and allowed such set-off as to fuel on board vessels redelivered prior to the bankruptcy; from that ruling the trustee appeals. The question for our decision is stipulated to be:
“Is the value of fuel on board a chartered vessel at the time of the vessel’s premature return by the charterer to the ship-owner, in breach of the charter party, an offset against the amount of the maritime lien of the shipowner; or is it an offset against the shipowner’s claim for damages for breach of charter ?”
The “maritime lien of the shipowner,” as the context makes clear, is the lien we have just discussed — the one given by Clause 18 against cargoes and sub-freights for charter hire unpaid at the time of redelivery.
The trustee does not contend, as we understand bim> that if the claim for fuel under Clause 3 was unsecured, he would be entitled to apply it in reduction of the owners’ secured claim for charter hire under Clause 18; his contention is rather that the claim for the value of fuel on board was secured by a maritime lien on the vessels in favor of the charterer, and that it therefore may be set off by the bankrupt estate against claims secured by liens on the sub-freights. Accepting the second proposition as resting on a sound practical basis, cf. S & W Holding Company v. Kuriansky, supra, 317 F.2d at 666, we think the trustee’s case fails on the first.
The trustee’s initial reliance is on the Maritime Lien Act, 46 U.S.C. § 971, which gives a maritime lien to “Any person furnishing * * * supplies * * * to any vessel * * * upon the order of the owner of such vessel, or of a person authorized by the owner * * *•” A claim for such a lien by the actual supplier of the fuel would not be precluded by the provision in Clause 2 of the charter that “the Charterers shall provide and pay for all the fuel except as otherwise agreed,” Dampskibsselskabet Dannebrog v. Signal Oil & Gas Co., 310 U.S. 268, 275, 60 S.Ct. 937, 941, 84 L.Ed. 1197 (1940), and if that were the only relevant provision the charterer might well argue that, having paid off the supplier, he is subrogated to the latter’s lien. See Rodriquez v. The G. K. Dauntless, 70 F.Supp. 958 (S.D.Fla.1947); The Maret, 145 F.2d 431, 444 (3 Cir. 1944). But 46 U.S.C. § 973 provides that “nothing in this chapter shall be construed to confer a lien when the furnisher knew * * * that because of the terms of a charter party, * * * the person ordering the * * * supplies * * * was without authority to bind the vessel therefor,” and Clause 18 of the present charter states that “Charterers will not suffer, nor permit to be continued, any lien or encumbrance incurred by them or their agents, which might have priority over the title and interest of the owners in the vessel.” Such a clause is,sufficient to preclude a lien in a supplier who knows or should know of its existence in the charter. United States v. Carver, 260 U.S. 482, 43 S.Ct. 181, 67 L.Ed. 361 (1923); Signal Oil, supra, 310 U.S. at 275, 60 S.Ct. at 941; Gilmore & Black, Admiralty (1957), at 566. It thus must be a fortiori sufficient to prevent the purchaser of fuel from creating a lien in the charterer himself, whether this is claimed directly- — in the teeth of his agreement to provide the fuel himself— or by subrogation to the rights of a third-party supplier. See Pensacola Shipping Co. v. United States Shipping Board, 277 F. 889, 893 (5 Cir. 1922).
The trustee also argues that even if a lien did not arise when the fuel was procured for the vessels, one sprang into existence when they were turned back with fuel on board, in view of the owners’ contractual obligation to pay for the fuel at that point. This position might seem supported by the statements in Gilmore & Black, supra, that “Most, but not all, maritime claims give rise to liens,” at 512, and, more specifically, that “liens arise for breach of charter-party in either direction. The charterer has a lien on the vessel for owner’s breach; the owner may have a lien on cargo and sub-freights for charterer’s breach * * At 517. It has the important backing of Judge Hough’s decision in The Oceano, 148 F. 131 (S.D.N.Y.1906), recognizing a lien for a charterer’s advances for a vessel’s disbursements where the advances by error had not been deducted from the charter hire, and stating, 148 F. at 133, that
“As soon as the performance of a charter party is commenced a lien exists on the vessel in favor of the shipper or charterer, and a suit in rem may be maintained for any liability of the master or owner arising therefrom. * * * Damages sustained by a charterer through breach •of a charter contract constitute a lien on the vessel. * * * It cannot be denied that unless explicitly excluded by the contract of charter party both shipper and owner may pursue their remedies for breach of contract by actions in rem.”
We thus do not find the absence of an •explicit charter provision conferring a lien for breach of the owner’s obligation under Clause 3 so persuasive against the trustee as Judge Bryan did — even in the face of the provision in Clause 18 spe•cifically giving the charterer a lien “on the Ship for all monies paid in advance •and not earned. * * * ” Neither do we think that a lien in favor of the charterer for amounts contracted by the owner to be paid for fuel on board at the time of redelivery would be excluded in a proper case by the “Charterers will not suffer” provision of Clause 18 quoted above. For we agree with Judge John R. Brown that the usual prohibition of liens ■clause “does not undertake to deal with the power of the owner himself to subject his vessel to maritime liens,” Roberts v. Echternach, 302 F.2d 370, 372 (5 Cir. 1962)—in that ease also in favor of a charterer. See also New York Trust Co. v. Bermuda-Atlantic S. S. Co., 211 F. 989, 999 (S.D.N.Y.1913).
Where the trustee’s case fails is in the absence of any sufficient proof of default by the owner under Clause 3. This is not like The Oceano, where the full charter hire was paid and the ship returned at the agreed time and the owner then defaulted on his obligation to pay a certain amount or to credit this against the charterer’s final payment. Here, when the ships were turned back, the owners had claims for unpaid charter hire and the very act of redelivery created substantial claims on their part for damages. The owners did not refuse to pay for the fuel in any real sense, see note 3 supra; they simply asserted the right to pay by applying the value of the fuel against their own larger claims against Norgulf arising out of the same act of the charterer. A system so devoted to equitable principles as the admiralty, see Swift & Co. Packers v. Compania Colombiana, 339 U.S. 684, 689-694, 70 S.Ct. 861, 94 L.Ed. 1206 (1950), would scarcely create a preferred claim in favor of a charterer against the ship when the very act giving rise to that claim created a larger, unpreferred claim against the charterer by the owner, and when the effect of giving the defaulting charterer a lien against the ship would thus be to defeat the owner’s equitable right to set off a related claim. Contrast United States v. Isthmian S.S. Co., 359 U.S. 314, 79 S.Ct. 857, 3 L.Ed.2d 845 (1959). Nothing to the contrary was decided in The Solhaug, 2 F.Supp. 294, 302 (S.D.N.Y.1931), where Judge Patterson affirmed a comprehensive report of Ralph W. Brown, Esq., as Special Commissioner, allowing the charterer to apply his claim for fuel on board in reduction of the owner’s lien on subfreights for accrued charter hire; this point does not seem to have been contested there, and it does not appear that the owner was asserting any claim other than that secured by the lien on the subfreights.
Affirmed.
. Since the order was made “in proceedings in bankruptcy,” it is appealable despite its interlocutory character, Bankruptcy Act, § 24a.
. The trustee does not dispute Judge Bryan’s holding that, to the extent that the owners have valid maritime liens, these are not liens “obtained by attachment, judgment, levy, or other legal or equitable process or proceedings within four months before the filing of a petition initiating a proceeding under this Act” under § 67, sub. a(1) of the Bankruptcy Act. See 4 Collier, Bankruptcy (Moore ed. 1962), at 48-49.
. Appellees have not contended that the charterer’s wrongful turnback of the vessels, by changing the time and place of redelivery and presumably increasing the amount of fuel on board and hence the amount owing for it, affected their obligation to pay for all the fuel on board at the current prices in the respective ports. The brief of appellees A/S D/S Danne-brog et al. states: “Appellees never denied that they were obligated for the amounts due under this clause (even though debtor’s redelivery of the vessels was not as contemplated in the contracts, being premature and in breach thereof). In each case, appellees included an appropriate credit against their general claims for breach of charter.”
. The parties have not argued, and we have not considered, the bold suggestion made in Gilmore & Black, supra, at 539, that the Maritime Lien Act now affords the sole source of maritime contractual liens, with “non-statutory general maritime liens all but forgotten.” But compare Piedmont & George’s Creek Coal Co. v. Seaboard Fisheries Co., 254 U.S. 1, 11-12, 41 S.Ct. 1, 65 L.Ed. 97 (1920) ; 1 Benedict, Admiralty (6 ed. 1940), at 272.
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_respond1_1_4
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". Your task is to determine what subcategory of business best describes this litigant.
Charles W. HARRIS, Jr., Plaintiff-Appellant, v. LOCKHEED AIRCRAFT CORPORATION, Defendant-Appellee.
No. 76-1725.
United States Court of Appeals, Sixth Circuit.
Argued Nov. 30, 1977.
Decided Feb. 28, 1978.
B. Stewart Jenkins, Crutchfield, Moore & Jenkins, Chattanooga, Tenn., for plaintiff-appellant.
Charles W. Lusk, Jr., Hall, Haynes, Lusk & Foster, Chattanooga, Tenn., for defendant-appellee.
Before PHILLIPS, Chief Judge, and PECK and KEITH, Circuit Judges.
PHILLIPS, Chief Judge.
This appeal involves the amount of retirement benefits to be paid to employees of the Lockheed Aircraft Corporation at the plant in Chattanooga, Tennessee. District Judge Timothy S. Hogan held that the Chattanooga employees are entitled only to benefits provided by their own collective bargaining agreement. Appellant in this class action for declaratory judgment contends that the Chattanooga employees are entitled to more liberal benefits negotiated by another union and its locals at other Lockheed plants.
We affirm.
Lockheed purchased its Chattanooga plant on February 11, 1966, from Wheland Division of Gordan Street, Inc. At the time of the purchase, a collective bargaining agreement was in effect between Wheland and Local Union No. 176 of the International Union, Allied Industrial Workers of America, AFL-CIO (AIWA) (hereinafter sometimes referred to as Local 176). Local 176 continued to represent the employees of the Chattanooga facility after the purchase by Lockheed. By an exchange of letters on January 20, 1966, and January 25, 1966, shortly before the Lockheed purchase, Lockheed agreed that it would assume and be bound by the provisions of the then existing collective bargaining agreement between Wheland and Local 176 of the AIWA.
During the fall of 1967, negotiations were conducted between Local 176 and Lockheed in regard to amendments and changes to the collective bargaining agreement (hereinafter sometimes referred to as the agreement), effective November 13, 1967, through July 31, 1970. Although the agreement noted that “the Lockheed Aircraft Corporation Retirement Plan for Certain Hourly Employees” (hereinafter sometimes referred to as Retirement Plan) would be extended to employees at the Chattanooga plant, a separate “Agreement for a Retirement Plan” was entered into by the parties on the same date regarding the Retirement Plan. This second agreement of November 13, 1967, provided in part:
[T]he provisions of said Lockheed Aircraft Corporation Retirement Plan for Certain Hourly Employees as that plan is in effect on December 25, 1967, shall be made available, effective December 25, 1967, with the exceptions provided below for amendment of said Retirement Plan as it applies to employees covered by the collective bargaining agreement of November 13, 1967, between the Company and the Union.
* * * * * *
This Agreement shall, for its duration, constitute the sole Agreement between the Company and the Union with respect to a retirement plan and a medical benefit plan.
* * * * * *
This Agreement shall remain in effect for the same period as the collective bargaining agreement of November 13,1967, between the Company and the Union and may be opened for modification, amendment, or termination at the same time and under the same conditions as provided for in said collective bargaining agreement of November 13, 1967.
In order to implement the benefits of the retirement plan agreements between Local 176 of the AIWA and Lockheed, the Board of Directors of Lockheed adopted an amendment, effective December 25,1967, to the “Lockheed Aircraft Corporation Retirement Plan for Certain Hourly Employees.” This amendment was attached to a booklet entitled “Lockheed Retirement Plan for Hourly Employees” distributed to employees at the Chattanooga plant.
Desiring to avoid labor disruption as the July 31, 1970 termination date approached, Lockheed and Local 176 began extensive collective bargaining negotiations in the spring of 1970. The district court found that the subject of improving retirement benefits was raised by the Union and was the subject of conscious and serious negotiations between the Union and the employer. This finding is fully supported by the record.
During the 1970 negotiations, Lockheed contended that the costs incurred by it in improving retirement benefits would be substantially higher than the benefit that would be realized by a majority of the Chattanooga employees. Judge Hogan made findings of fact that, after extensive negotiations, “the union dropped the pension retirement change matter”; that the Union and Lockheed “in 1970 considered and rejected what the plaintiffs in this case seeks”; and that the 1970 collective bargaining agreement did not contain any provision for increased retirement benefits.
The argument of appellant focuses, not on the agreements between Local 176 and AIWA and Lockheed, but on agreements between Lockheed and other unions. Of the estimated 30,000 workers in Lockheed plants over the world, only the approximately 150 workers at the Chattanooga plant are represented by the International Union, Allied Industrial Workers of America, AFL-CIO (AIWA). Most of the Lockheed employees at other plants are represented by the International Association of Machinists and Aerospace Workers (hereinafter referred to as IAM & AW).
During the period between November 13, 1967, and August 1,1970, numerous individual local unions of the IAM & AW at Lockheed locations around the world negotiated agreements with Lockheed improving the retirement benefits specified in the “Lockheed Aircraft Corporation Retirement Plan for Certain Hourly Employees.” In spite of the fact that those agreements were entered into between Lockheed and the particular local union negotiating the increased retirement benefits, appellant contends that Lockheed has only one retirement plan and that when one union negotiates an increase in retirement benefits for its members, the increased benefits should be available to Lockheed employees at all locations.
We agree with the district court that appellant’s contention is without merit. Although Lockheed has only one retirement plan, entitled “Lockheed Aircraft Corporation Retirement Plan for Certain Hourly Employees,” appellant’s argument fails to take into account the fact that local unions representing employees at individual Lockheed plants have negotiated separately for the benefits that their own union members will receive under the Lockheed retirement plan.
The district court found that during the years 1968 and 1969, Lockheed entered into at least 18 separate agreements with different locals pertaining to increasing retirement benefits. Although many of these agreements were substantially identical, each agreement referred exclusively to the individual local union negotiating the agreement. From the standpoint of the local unions, it was clear that each of them bargained for the increased retirement benefits of its own members; otherwise, 18 separate agreements would not have been necessary. Judge Hogan said in its findings of fact:
It is difficult to understand why it would be necessary for each separate union to enter into a separate agreement if the plaintiffs’ interpretation of the agreement is correct — i. e., that an amendment negotiated by one union applied to all.
Generally, a certified union is authorized to bargain only for those employees in the appropriate bargaining unit. See Local 620, Allied Industrial Workers of America, AFL-CIO v. N. L. R. B., 375 F.2d 707, 710 (6th Cir. 1967). See also N. L. R. B. v. Security-Columbian Banknote Co., 541 F.2d 135 (3rd Cir. 1976); N. L. R. B. v. Food Employers Council, Inc., 399 F.2d 501 (9th Cir. 1968); 29 U.S.C. § 159(b) (1973).
The agreements entered into between Lockheed and Local 176 of the AIWA indicate that the parties intended that the retirement benefits remain as specified in the November 13, 1967 “Agreement for a Retirement Plan” and the amendment to the retirement plan effective December 25, 1967. This 1967 agreement stated that modification, amendment or termination of the agreement would be under the same conditions as the other agreement of November 13, 1967, the formal collective bargaining agreement. Although the formal agreement required a 60 to 90 day written notice by either party of its desire to alter the agreement, no modification notice was given by either party regarding the “Agreement for a Retirement Plan.”
The district court found that the August 1,1970 collective bargaining agreement recognized that the 1967 Agreement for a Retirement Plan governed appellant’s retirement benefits. We agree with the district court that “this is basically a simple contract case” and that the contract is not ambiguous. Assuming that the agreement between Lockheed and Local 176 was ambiguous, this court has said in Rudd-Meliki-an, Inc. v. Merritt, 282 F.2d 924, 928 (6th Cir. 1960):
A contract is to be construed as a whole so as to ascertain and give effect to the true intent of the parties, and the circumstances under which the contract was executed and the conduct of the parties thereafter can be considered by the Court in determining what their intention was, without it being a violation of the parol evidence rule. * * *
In the determination of the meaning of an indefinite or ambiguous contract, the interpretation placed upon the contract by the parties themselves is given great weight by the Court, not to vary the terms of the written instrument, but to make definite that which the wording of the contract has left indefinite (citations omitted).
The actions of the parties and the language of the 1970 agreement convinced Judge Hogan that the retirement plan as it existed December 25, 1967, governed the amount of retirement benefits to which employees at the Chattanooga plant are entitled, and that “the amendments to the retirement plan negotiated by other unions at other facilities did not apply to the plaintiff” and other employees at the Chattanooga plant. We conclude that the findings of fact of Judge Hogan are not clearly erroneous, Fed.R.Civ.P. 52(a), and that his conclusions of law are correct.
Affirméd.
. Of the Southern District of Ohio, sitting by designation.
. The agreement provided that it would be renewed automatically from year to year after July 31, 1970, unless at least 60 days and no more than 90 days before the termination of the agreement, either party notified the other of their intent to amend, add to or terminate the agreement.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". What subcategory of business best describes this litigant?
A. auto
B. chemical
C. drug
D. food processing
E. oil refining
F. textile
G. electronic
H. alcohol or tobacco
I. other
J. unclear
Answer:
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sc_casesource
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028
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the 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.
VAN de KAMP et al. v. GOLDSTEIN
No. 07-854.
Argued November 5, 2008
Decided January 26, 2009
Breyer, J., delivered the opinion for a unanimous Court.
Timothy T. Coates argued the cause for petitioners. With him on the briefs was Steven J. Renick.
Deputy Solicitor General Dreeben argued the cause for the United States as amicus curiae urging reversal. With him on the brief were former Solicitor General Garre, Assistant Attorney General Katsas, Lisa S. Blatt, Barbara L. Herwig, and Mark W. Pennak.
E. Joshua Rosenkranz argued the cause for respondent. With him on the brief were Timothy S. Mehok, William H. Forman, Ronald O. Kaye, David S. McLane, Marilyn E. Bednarski, and David A. Thomas.
Briefs of amici curiae urging reversal were filed for the State of Kansas et al. by Stephen N. Six, Attorney General of Kansas, Stephen R. McAllister, Solicitor General, and Jared S. Maag, Deputy Solicitor General, by Kevin T. Kane, Chief State’s Attorney of Connecticut, by Peter J. Nickles, Acting Attorney General of the District of Columbia, and by the Attorneys General for their respective States as follows: Troy King of Alabama, Talis J. Colberg of Alaska, Terry Goddard of Arizona, Dustin McDaniel of Arkansas, Edmund G. Brown, Jr., of California, John W. Suthers of Colorado, Joseph R. Biden III of Delaware, Bill McCollum of Florida, Thurbert E. Baker of Georgia, Mark J. Bennett of Hawaii, Lawrence G. Wasden of Idaho, Lisa Madigan of Illinois, Steve Carter of Indiana, Tom Miller of Iowa, Jack Conway of Kentucky, James D. Caldwell of Louisiana, G. Steven Rowe of Maine, Douglas F. Gansler of Maryland, Martha Coakley of Massachusetts, Michael A. Cox of Michigan, Lori Swanson of Minnesota, Jim Hood of Mississippi, Jeremiah W. (Jay) Nixon of Missouri, Mike McGrath of Montana, Jon Bruning of Nebraska, Catherine Cortez Masto of Nevada, Kelly A. Ayotte of New Hampshire, Gary K. King of New Mexico, Andrew Cuomo of New York, Roy Cooper of North Carolina, Wayne Stenehjem of North Dakota, Nancy H. Rogers of Ohio, W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Thomas W. Corbett, Jr., of Pennsylvania, Patrick C. Lynch of Rhode Island, Henry McMaster of South Carolina, Lawrence E. Long of South Dakota, Robert E. Cooper, Jr., of Tennessee, Greg Abbott of Texas, Mark L. Shurtleff of Utah, William H. Sorrell of Vermont, Robert F. McDonnell of Virginia, Robert M. McKenna of Washington, Darrell V. McGraw, Jr., of West Virginia, J. B. Van Hollen of Wisconsin, and Bruce A. Salzburg of Wyoming; for Cook County, Illinois, by Richard A. Devine, Patrick T. Driscoll, Jr., and Paul A. Castiglione; for Los Angeles County, California, by Steve Cooley, Lael R. Rubin, Brentford Ferreira, and Roberta Schwartz; for the City of New York by Michael A. Cardozo, Leonard J. Koerner, and Elizabeth Susan Natrella; for the National Association of Counties et al. by Richard Ruda; and for the National District Attorneys Association et al. by W. Scott Thorpe.
Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by M. Allen Hopper, Steven R. Shapiro, and Jeffrey L. Fisher; for the Constitutional Accountability Center by Elizabeth B. Wydra, Sean H. Donahue, and David T. Goldberg; and for the Innocence Network et al. by Peter D. Isakoff, Peter J. Neufeld, and Barry Scheck.
Briefs of amici curiae were filed for Law Professors by John R. Cuti and Margaret Z. Johns; and for the New York State District Attorneys Association by Anthony J. Servino, James A Murphy III, Anthony J. Gírese, and Mark Dwyer.
Justice Breyer
delivered the opinion of the Court.
We here consider the scope of a prosecutor’s absolute immunity from claims asserted under Rev. Stat. §1979, 42 U. S. C. § 1983. See Imbler v. Pachtman, 424 U. S. 409 (1976). We ask whether that immunity extends to claims that the prosecution failed to disclose impeachment material, see Giglio v. United States, 405 U. S. 150 (1972), due to: (1) a failure properly to train prosecutors, (2) a failure properly to supervise prosecutors, or (3) a failure to establish an information system containing potential impeachment material about informants. We conclude that a prosecutor’s absolute immunity extends to all these claims.
I
In 1998, respondent Thomas Goldstein (then a prisoner) filed a habeas corpus action in the Federal District Court for the Central District of California. He claimed that in 1980 he was convicted of murder; that his conviction depended in critical part upon the testimony of Edward Floyd Fink, a jailhouse informant; that Fink’s testimony was unreliable, indeed false; that Fink had previously received reduced sentences for providing prosecutors with favorable testimony in other cases; that at least some prosecutors in the Los Angeles County District Attorney’s Office knew about the favorable treatment; that the office had not provided Gold-stein’s attorney with that information; and that, among other things, the prosecution’s failure to provide Goldstein’s attorney with this potential impeachment information had led to his erroneous conviction. Goldstein v. Long Beach, 481 F. 3d 1170, 1171-1172 (CA9 2007).
After an evidentiary hearing the District Court agreed with Goldstein that Fink had not been truthful and that if the prosecution had told Goldstein’s lawyer that Fink had received prior rewards in return for favorable testimony it might have made a difference. The court ordered the State either to grant Goldstein a new trial or to release him. The Court of Appeals affirmed the District Court’s determination. And the State decided that, rather than retry Gold-stein (who had already served 24 years of his sentence), it would release him. App. 54-55, 59-60.
Upon his release Goldstein filed this § 1983 action against petitioners, the former Los Angeles County district attorney and chief deputy district attorney. Goldstein’s complaint (which for present purposes we take as accurate) asserts in relevant part that the prosecution’s failure to communicate to his attorney the facts about Fink’s earlier testimony-related rewards violated the prosecution’s constitutional duty to “insure communication of all relevant information on each case [including agreements made with informants] to every lawyer who deals with it.” Giglio, supra, at 154. Moreover, it alleges that this failure resulted from the failure of petitioners (the office’s chief supervisory attorneys) adequately to train and to supervise the prosecutors who worked for them as well as their failure to establish an information system about informants. And it asks for damages based upon these training, supervision, and information-system related failings.
Petitioners, claiming absolute immunity from such a § 1983 action, asked the District Court to dismiss the complaint. See Imbler, supra. The District Court denied the motion to dismiss on the ground that the conduct asserted amounted to “administrative,” not “prosecutorial,” conduct; hence it fell outside the scope of the prosecutor’s absolute immunity to §1983 claims. The Ninth Circuit, considering petitioners’ claim on an interlocutory appeal, affirmed the District Court’s “no immunity” determination. We now review the Ninth Circuit’s decision, and we reverse its determination.
II
Over a half century ago Chief Judge Learned Hand explained that a prosecutor’s absolute immunity reflects “a balance” of “evils.” Gregoire v. Biddle, 177 F. 2d 579, 581 (CA2 1949). “[I]t has been thought in the end better,” he said, “to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation.” Ibid. In Imbler, supra, this Court considered prosecutorial actions that are “intimately associated with the judicial phase of the criminal process.” Id., at 430. And, referring to Chief Judge Hand’s views, it held that prosecutors are absolutely immune from liability in §1983 lawsuits brought under such circumstances. Id., at 428.
The § 1983 action at issue was that of a prisoner freed on a writ of habeas corpus who subsequently sought damages from his former prosecutor. His action, like the action now before us, tracked the claims that a federal court had found valid when granting his habeas corpus petition. In particular, the prisoner claimed that the trial prosecutor had permitted a fingerprint expert to give false testimony, that the prosecutor was responsible for the expert’s having suppressed important evidence, and that the prosecutor had introduced a misleading artist’s sketch into evidence. Id., at 416.
In concluding that the prosecutor was absolutely immune, the Court pointed out that legislators have long “enjoyed absolute immunity for their official actions,” id., at 417; that the common law granted immunity to “judges and ... jurors acting within the scope of their duties,” id., at 423; and that the law had also granted prosecutors absolute immunity from common-law tort actions, say, those underlying a “decision to initiate a prosecution,” id., at 421. The Court then held that the “same considerations of public policy that underlie” a prosecutor’s common-law immunity “countenance absolute immunity under § 1983.” Id., at 424. Those considerations, the Court said, arise out of the general common-law “concern that harassment by unfounded litigation” could both “cause a deflection of the prosecutor’s energies from his public duties” and also lead the prosecutor to “shade his decisions instead of exercising the independence of judgment required by his public trust.” Id., at 423.
Where § 1983 actions are at issue, the Court said, both sets of concerns are present and serious. The “public trust of the prosecutor’s office would suffer” were the prosecutor to have in mind his “own potential” damages “liability” when making prosecutorial decisions — as he might well were he subject to § 1983 liability. Id., at 424. This is no small concern, given the frequency with which criminal defendants bring such suits, id., at 425 (“[A] defendant often will transform his resentment at being prosecuted into the ascription of improper and malicious actions to the State’s advocate”), and the “substantial danger of liability even to the honest prosecutor” that such suits pose when they survive pretrial dismissal, ibid.; see also ibid, (complex, close, fair-trial questions “often would require a virtual retrial of the criminal offense in a new forum, and the resolution of some technical issues by the lay jury”). A “prosecutor,” the Court noted, “inevitably makes many decisions that could engender color-able claims of constitutional deprivation. Defending these decisions, often years after they were made, could impose unique and intolerable burdens upon a prosecutor responsible annually for hundreds of indictments and trials.” Id., at 425-426. The Court thus rejected the idea of applying the less-than-absolute “qualified immunity” that the law accords to other “executive or administrative officials,” noting that the “honest prosecutor would face greater difficulty” than would those officials “in meeting the standards of qualified immunity.” Id., at 425. Accordingly, the immunity that the law grants prosecutors is “absolute.” Id., at 424.
The Court made clear that absolute immunity may not apply when a prosecutor is not acting as “an officer of the court,” but is instead engaged in other tasks, say, investigative or administrative tasks. Id., at 431, n. 33. To decide whether absolute immunity attaches to a particular kind of prosecutorial activity, one must take account of the “functional” considerations discussed above. See Burns v. Reed, 500 U. S. 478,486 (1991) (collecting cases applying “functional approach” to immunity); Kalina v. Fletcher, 522 U. S. 118, 127, 130 (1997). In Imbler, the Court concluded that the “reasons for absolute immunity applied] with full force” to the conduct at issue because it was “intimately associated with the judicial phase of the criminal process.” 424 U. S., at 430. The fact that one constitutional duty at issue was a positive duty (the duty to supply “information relevant to the defense”) rather than a negative duty (the duty not to “use . . . perjured testimony”) made no difference. Id., at 431, n. 34. After all, a plaintiff can often transform a positive into a negative duty simply by reframing the pleadings; in either case, a constitutional violation is at issue. Ibid.
Finally, the Court specifically reserved the question whether or when “similar reasons require immunity for those aspects of the prosecutor’s responsibility that cast him in the role of an administrator . . . rather than that of advocate.” Id., at 430-431. It said that “[djrawing a proper line between these functions may present difficult questions, but this case does not require us to anticipate them.” Id., at 431, n. 33.
In the years since Imbler, we have held that absolute immunity applies when a prosecutor prepares to initiate a judicial proceeding, Burns, supra, at 492, or appears in court to present evidence in support of a search warrant application, Kalina, supra, at 126. We have held that absolute immunity does not apply when a prosecutor gives advice to police during a criminal investigation, see Burns, supra, at 496, when the prosecutor makes statements to the press, Buckley v. Fitzsimmons, 509 U. S. 259, 277 (1993), or when a prosecutor acts as a complaining witness in support of a warrant application, Kalina, supra, at 132 (Scalia, J., concurring). This case, unlike these earlier cases, requires us to consider how immunity applies where a prosecutor is engaged in certain administrative activities.
Ill
Goldstein claims that the district attorney and his chief assistant violated their constitutional obligation to provide his attorney with impeachment-related information, see Giglio, 405 U. S. 150, because, as the Court of Appeals wrote, they failed “to adequately train and supervise deputy district attorneys on that subject,” 481 F. 3d, at 1176, and because, as Goldstein’s complaint adds, they “failed to create any system for the Deputy District Attorneys handling criminal cases to access information pertaining to the benefits provided to jailhouse informants and other impeachment information,” App. 45. We agree with Goldstein that, in making these claims, he attacks the office’s administrative procedures. We are also willing to assume with Goldstein, but purely for argument’s sake, that Giglio imposes certain obligations as to training, supervision, or information-system management.
Even so, we conclude that prosecutors involved in such supervision or training or information-system management enjoy absolute immunity from the kind of legal claims at issue here. Those claims focus upon a certain kind of administrative obligation — a kind that itself is directly connected with the conduct of a trial. Here, unlike with other claims related to administrative decisions, an individual prosecutor’s error in the plaintiff’s specific criminal trial constitutes an essential element of the plaintiff’s claim. The administrative obligations at issue here are thus unlike administrative duties concerning, for example, workplace hiring, payroll administration, the maintenance of physical facilities, and the like. Moreover, the types of activities on which Goldstein’s claims focus necessarily require legal knowledge and the exercise of related discretion, e.g., in determining what information should be included in the training or the supervision or the information-system management. And in that sense also Goldstein’s claims are unlike claims of, say, unlawful discrimination in hiring employees. Given these features of the case before us, we believe absolute immunity must follow.
A
We reach this conclusion by initially considering a hypothetical case that involves supervisory or other office prosecutors but does not involve administration. Suppose that Goldstein had brought such a case, seeking damages not only from the trial prosecutor but also from a supervisory prosecutor or from the trial prosecutor’s colleagues — all on the ground that they should have found and turned over the impeachment material about Fink. Imbler makes clear that all these prosecutors would enjoy absolute immunity from such a suit. The prosecutors’ behavior, taken individually or separately, would involve “[preparation ... for ... trial,” 424 U. S., at 431, n. 33, and would be “intimately associated with the judicial phase of the criminal process” because it concerned the evidence presented at trial, id., at 430. And all of the considerations that this Court found to militate in favor of absolute immunity in Imbler would militate in favor of immunity in such a case.
The only difference we can find between Imbler and our hypothetical case lies in the fact that, in our hypothetical case, a prosecutorial supervisor or colleague might himself be liable for damages instead of the trial prosecutor. But we cannot find that difference (in the pattern of liability among prosecutors within a single office) to be critical. Decisions about indictment or trial prosecution will often involve more than one prosecutor within an office. We do not see how such differences in the pattern of liability among a group of prosecutors in a single office could alleviate Imbler]s basic fear, namely, that the threat of damages liability would affect the way in which prosecutors carried out their basic court-related tasks. Moreover, this Court has pointed out that “it is the interest in protecting the proper functioning of the office, rather than the interest in protecting its occupant, that is of primary importance.” Kalina, 522 U. S., at 125. Thus, we must assume that the prosecutors in our hypothetical suit would enjoy absolute immunity.
B
Once we determine that supervisory prosecutors are immune in a suit directly attacking their actions related to an individual trial, we must find they are similarly immune in the case before us. We agree with the Court of Appeals that the office’s general methods of supervision and training are at issue here, but we do not agree that that difference is critical for present purposes. That difference does not preclude an intimate connection between prosecutorial activity and the trial process. The management tasks at issue, insofar as they are relevant, concern how and when to make impeachment information available at a trial. They are thereby directly connected with the prosecutor’s basic trial advocacy duties. And, in terms of Imbler’s, functional concerns, a suit charging that a supervisor made a mistake directly related to a particular trial, on the one hand, and a suit charging that a supervisor trained and supervised inadequately, on the other, would seem very much alike.
That is true, in part, for the practical reason that it will often prove difficult to draw a line between general office supervision or office training (say, related to Giglio) and specific supervision or training related to a particular case. To permit claims based upon the former is almost inevitably to permit the bringing of claims that include the latter. It is also true because one cannot easily distinguish, for immunity purposes, between claims based upon training or supervisory failures related to Giglio and similar claims related to other constitutional matters (obligations under Brady v. Maryland, 373 U. S. 83 (1963), for example). And that being so, every consideration that Irnbler mentions militates in favor of immunity.
As we have said, the type of “faulty training” claim at issue here rests in necessary part upon a consequent error by an individual prosecutor in the midst of trial, namely, the plaintiff’s trial. If, as Irnbler says, the threat of damages liability for such an error could lead a trial prosecutor to take account of that risk when making trial-related decisions, so, too, could the threat of more widespread liability throughout the office (ultimately traceable to that trial error) lead both that prosecutor and other office prosecutors as well to take account of such a risk. Indeed, members of a large prosecutorial office, when making prosecutorial decisions, could have in mind the “consequences in terms of” damages liability whether they are making general decisions about supervising or training or whether they are making individual trial-related decisions. Imbler, 424 U. S., at 424.
Moreover, because better training or supervision might prevent most, if not all, prosecutorial errors at trial, permission to bring such a suit here would grant permission to criminal defendants to bring claims in other similar instances, in effect claiming damages for (trial-related) training or supervisory failings. Cf. Imbler, supra. Further, given the complexity of the constitutional issues, inadequate training and supervision suits could, as in Imbler, “pose substantial danger of liability even to the honest prosecutor.” Id., at 425. Finally, as Imbler pointed out, defending prosecutorial decisions, often years after they were made, could impose “unique and intolerable burdens upon a prosecutor responsible annually for hundreds of indictments and trials.” Id., at 425-426.
At the same time, to permit this suit to go forward would create practical anomalies. A trial prosecutor would remain immune, even for intentionally failing to turn over, say Giglio material; but her supervisor might be liable for negligent training or supervision. Small prosecution offices where supervisors can personally participate in all of the cases would likewise remain immune from prosecution; but large offices, making use of more general officewide supervision and training, would not. Most important, the ease with which a plaintiff could restyle a complaint charging a trial failure so that it becomes a complaint charging a failure of training or supervision would eviscerate Imbler.
We conclude that the very reasons that led this Court in Imbler to find absolute immunity require a similar finding in this case. We recognize, as Chief Judge Hand pointed out, that sometimes such immunity deprives a plaintiff of compensation that he undoubtedly merits; but the impediments to the fair, efficient functioning of a prosecutorial office that liability could create lead us to find that Imbler must apply here.
C
We treat separately Goldstein’s claim that the Los Angeles County District Attorney’s Office should have established a system that would have permitted prosecutors “handling criminal cases to access information pertaining to the benefits provided to jailhouse informants and other impeachment information.” App. 45. We do so because Goldstein argues that the creation of an information management system is a more purely administrative task, less closely related to the “judicial phase of the criminal process,” Imbler, supra, at 430, than are supervisory or training tasks. He adds that technically qualified individuals other than prosecutors could create such a system and that they could do so prior to the initiation of criminal proceedings.
In our view, however, these differences do not require a different outcome. The critical element of any information system is the information it contains. Deciding what to include and what not to include in an information system is little different from making similar decisions in respect to training. Again, determining the criteria for inclusion or exclusion requires knowledge of the law.
Moreover, the absence of an information system is relevant here if, and only if, a proper system would have included information about the informant Fink. Thus, were this claim allowed, a court would have to review the office’s legal judgments, not simply about whether to have an information system but also about what kind of system is appropriate, and whether an appropriate system would have included Giglio-related information about one particular kind of trial informant. Such decisions — whether made prior to or during a particular trial — are “intimately associated with the judicial phase of the criminal process.” Imbler, supra, at 430; see Burns, 500 U. S., at 486. And, for the reasons set out above, all Imbler’s functional considerations (and the anomalies we mentioned earlier, supra, at 346-347) apply here as well.
We recognize that sometimes it would be easy for a court to determine that an office’s decision about an information system was inadequate. Suppose, for example, the office had no system at all. But the same could be said of a prosecutor’s trial error. Immunity does not exist to help prosecutors in the easy case; it exists because the easy cases bring difficult cases in their wake. And, as Imbler pointed out, the likely presence of too many difficult cases threatens, not prosecutors, but the public, for the reason that it threatens to undermine the necessary independence and integrity of the prosecutorial decisionmaking process. Such is true of the kinds of claims before us, to all of which Imbler’s functional considerations apply. Consequently, where a §1983 plaintiff claims that a prosecutor’s management of a trial-related information system is responsible for a constitutional error at his or her particular trial, the prosecutor responsible for the system enjoys absolute immunity just as would the prosecutor who handled the particular trial itself.
* * *
For these reasons we conclude that petitioners are entitled to absolute immunity in respect to Goldstein’s claims that their supervision, training, or information-system management was constitutionally inadequate. Accordingly, 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.
Question: What is the court whose decision the Supreme Court reviewed?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
006. U.S. Court of Veterans Appeals
007. U.S. Customs Court
008. U.S. Court of Appeals, Federal Circuit
009. U.S. Tax Court
010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
012. U.S. Consular Courts
013. U.S. Commerce Court
014. Territorial Supreme Court
015. Territorial Appellate Court
016. Territorial Trial Court
017. Emergency Court of Appeals
018. Supreme Court of the District of Columbia
019. Bankruptcy Court
020. U.S. Court of Appeals, First Circuit
021. U.S. Court of Appeals, Second Circuit
022. U.S. Court of Appeals, Third Circuit
023. U.S. Court of Appeals, Fourth Circuit
024. U.S. Court of Appeals, Fifth Circuit
025. U.S. Court of Appeals, Sixth Circuit
026. U.S. Court of Appeals, Seventh Circuit
027. U.S. Court of Appeals, Eighth Circuit
028. U.S. Court of Appeals, Ninth Circuit
029. U.S. Court of Appeals, Tenth Circuit
030. U.S. Court of Appeals, Eleventh Circuit
031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction)
032. Alabama Middle U.S. District Court
033. Alabama Northern U.S. District Court
034. Alabama Southern U.S. District Court
035. Alaska U.S. District Court
036. Arizona U.S. District Court
037. Arkansas Eastern U.S. District Court
038. Arkansas Western U.S. District Court
039. California Central U.S. District Court
040. California Eastern U.S. District Court
041. California Northern U.S. District Court
042. California Southern U.S. District Court
043. Colorado U.S. District Court
044. Connecticut U.S. District Court
045. Delaware U.S. District Court
046. District Of Columbia U.S. District Court
047. Florida Middle U.S. District Court
048. Florida Northern U.S. District Court
049. Florida Southern U.S. District Court
050. Georgia Middle U.S. District Court
051. Georgia Northern U.S. District Court
052. Georgia Southern U.S. District Court
053. Guam U.S. District Court
054. Hawaii U.S. District Court
055. Idaho U.S. District Court
056. Illinois Central U.S. District Court
057. Illinois Northern U.S. District Court
058. Illinois Southern U.S. District Court
059. Indiana Northern U.S. District Court
060. Indiana Southern U.S. District Court
061. Iowa Northern U.S. District Court
062. Iowa Southern U.S. District Court
063. Kansas U.S. District Court
064. Kentucky Eastern U.S. District Court
065. Kentucky Western U.S. District Court
066. Louisiana Eastern U.S. District Court
067. Louisiana Middle U.S. District Court
068. Louisiana Western U.S. District Court
069. Maine U.S. District Court
070. Maryland U.S. District Court
071. Massachusetts U.S. District Court
072. Michigan Eastern U.S. District Court
073. Michigan Western U.S. District Court
074. Minnesota U.S. District Court
075. Mississippi Northern U.S. District Court
076. Mississippi Southern U.S. District Court
077. Missouri Eastern U.S. District Court
078. Missouri Western U.S. District Court
079. Montana U.S. District Court
080. Nebraska U.S. District Court
081. Nevada U.S. District Court
082. New Hampshire U.S. District Court
083. New Jersey U.S. District Court
084. New Mexico U.S. District Court
085. New York Eastern U.S. District Court
086. New York Northern U.S. District Court
087. New York Southern U.S. District Court
088. New York Western U.S. District Court
089. North Carolina Eastern U.S. District Court
090. North Carolina Middle U.S. District Court
091. North Carolina Western U.S. District Court
092. North Dakota U.S. District Court
093. Northern Mariana Islands U.S. District Court
094. Ohio Northern U.S. District Court
095. Ohio Southern U.S. District Court
096. Oklahoma Eastern U.S. District Court
097. Oklahoma Northern U.S. District Court
098. Oklahoma Western U.S. District Court
099. Oregon U.S. District Court
100. Pennsylvania Eastern U.S. District Court
101. Pennsylvania Middle U.S. District Court
102. Pennsylvania Western U.S. District Court
103. Puerto Rico U.S. District Court
104. Rhode Island U.S. District Court
105. South Carolina U.S. District Court
106. South Dakota U.S. District Court
107. Tennessee Eastern U.S. District Court
108. Tennessee Middle U.S. District Court
109. Tennessee Western U.S. District Court
110. Texas Eastern U.S. District Court
111. Texas Northern U.S. District Court
112. Texas Southern U.S. District Court
113. Texas Western U.S. District Court
114. Utah U.S. District Court
115. Vermont U.S. District Court
116. Virgin Islands U.S. District Court
117. Virginia Eastern U.S. District Court
118. Virginia Western U.S. District Court
119. Washington Eastern U.S. District Court
120. Washington Western U.S. District Court
121. West Virginia Northern U.S. District Court
122. West Virginia Southern U.S. District Court
123. Wisconsin Eastern U.S. District Court
124. Wisconsin Western U.S. District Court
125. Wyoming U.S. District Court
126. Louisiana U.S. District Court
127. Washington U.S. District Court
128. West Virginia U.S. District Court
129. Illinois Eastern U.S. District Court
130. South Carolina Eastern U.S. District Court
131. South Carolina Western U.S. District Court
132. Alabama U.S. District Court
133. U.S. District Court for the Canal Zone
134. Georgia U.S. District Court
135. Illinois U.S. District Court
136. Indiana U.S. District Court
137. Iowa U.S. District Court
138. Michigan U.S. District Court
139. Mississippi U.S. District Court
140. Missouri U.S. District Court
141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court)
142. New Jersey Western U.S. District Court (West Jersey U.S. District Court)
143. New York U.S. District Court
144. North Carolina U.S. District Court
145. Ohio U.S. District Court
146. Pennsylvania U.S. District Court
147. Tennessee U.S. District Court
148. Texas U.S. District Court
149. Virginia U.S. District Court
150. Norfolk U.S. District Court
151. Wisconsin U.S. District Court
152. Kentucky U.S. Distrcrict Court
153. New Jersey U.S. District Court
154. California U.S. District Court
155. Florida U.S. District Court
156. Arkansas U.S. District Court
157. District of Orleans U.S. District Court
158. State Supreme Court
159. State Appellate Court
160. State Trial Court
161. Eastern Circuit (of the United States)
162. Middle Circuit (of the United States)
163. Southern Circuit (of the United States)
164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas
166. California U.S. Circuit for (all) District(s) of California
167. Connecticut U.S. Circuit for the District of Connecticut
168. Delaware U.S. Circuit for the District of Delaware
169. Florida U.S. Circuit for (all) District(s) of Florida
170. Georgia U.S. Circuit for (all) District(s) of Georgia
171. Illinois U.S. Circuit for (all) District(s) of Illinois
172. Indiana U.S. Circuit for (all) District(s) of Indiana
173. Iowa U.S. Circuit for (all) District(s) of Iowa
174. Kansas U.S. Circuit for the District of Kansas
175. Kentucky U.S. Circuit for (all) District(s) of Kentucky
176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
177. Maine U.S. Circuit for the District of Maine
178. Maryland U.S. Circuit for the District of Maryland
179. Massachusetts U.S. Circuit for the District of Massachusetts
180. Michigan U.S. Circuit for (all) District(s) of Michigan
181. Minnesota U.S. Circuit for the District of Minnesota
182. Mississippi U.S. Circuit for (all) District(s) of Mississippi
183. Missouri U.S. Circuit for (all) District(s) of Missouri
184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
Answer:
|
songer_usc1sect
|
933
|
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 33. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
JARKA CORPORATION et al. v. MONAHAN, Deputy Commissioner, et al.
No. 2733.
Circuit Court of Appeals, First Circuit.
Dec. 29, 1932.
La Rue Brown, of Boston, Mass. (Richard Field, and Brown, Field & McCarthy, all of Boston, Mass., on the brief), for appellants.
George L. Dillaway, of Boston, Mass., for appellee Nellie Barnes.
Before BINGHAM, WILSON, and MORTON, Circuit Judges.
WILSON, Circuit Judge.
This is an appeal from a decree of the District Court for the District of Massachusetts dismissing the appellants’ bill to enjoin the enforcement of a compensation order made under the Act of March 4, 1927, entitled the “Longshoremen’s and Harbor Workers’ Compensation Act” chapter 509, 44 Slat. 1424 (33 USCA §§ 901-950). The appellants are the employer and insurance carrier, respectively, while the appellees are the deputy commissioner appointed under the act and the surviving wife, in whoso favor, for the benefit of herself and her minor children, the compensation order was made for injuries resulting in the death of her husband. Jurisdiction to restrain the enforcement of an order of the deputy commissioner is conferred upon the District Courts by section 21 (b) of the act (33 USCA § 921(b).
Arthur Barnes, an employee of the Jarka Corporation of Boston, died on December 7, 1929, as the result of injuries received on Do eember 5,192-9, due to defective equipment of a vessel, owned by a third party, on which he was working. His widow and administratrix exercised her right under section 33 (a) of the act (33 USCA § 933 (a), and in April, 1930, brought a libel against the vessel. Her action was settled in November, 1930, with the approval of the employer of the injured workman, by the payment to the administratrix of the sum of $5,500.
Under section 33 (g), if a compromise with a third person responsible for the injury is made with the consent of the employer, and the amount received under such compromise is less than the compensation to which the workman would be entitled under the act, “the employer shall be required to pay as compensation under this chapter a sum equal to the excess of the amount which the commission determines is payable on account of such injury or death over the amount recovered against such third person.” (It is clear, we think, that there was an error in the reference to a previous section in subdivision (g) of section 33. The reference obviously should have been to subdivision (f) and not subdivision (e).
On application to the commission, the deputy commissioner made an award requiring the employer and insurance carrier to pay an additional sum of $2,250 in a lump sum as a death benefit to the surviving wife and her minor children. From this award the employer and insurance carrier appealed, and it was set aside by the District Court [48 F.(2d) 283], on the ground that there was no basis for making such an award in a lump sum, and no evidence that the deputy commissioner, in making the award, proceeded under section 14 (j), (33 USCA § 914 (j), which provides for an award of a lump sum under certain conditions to be found by the deputy commissioner. The deputy commissioner afterward made the award here involved of $2,000 payable in weekly payments of $9.45 to the widow, and $2.70 weekly for the use of each of the minor children, or a total of $14.85, payments to date from December 7, 1929; the date of the workman’s death.
This in effect awards the maximum amount to which the widow and children were entitled under the act, viz. $7,500.
No question is raised by the appellants as to the propriety of this award as to the amount or the manner of its payment. The sole issue here is, On what date shall the payments begin? The appellants contend that the amount recovered of a third person should be treated as compensation under the act, and first applied in installments until used up, and then the payments under the Commissioner’s award should begin. Under this interpretation the widow and children would receive no benefit in this case under the award of the deputy commissioner until 1936.
But we find no basis in the act for such a construction. While section 14 (b), (33 USCA § 914 (b), provides that compensation paid by the employer shall be in semimonthly installments, unless otherwise determined by the Commission, the situation presented when a third person is responsible for the injury is not the same as when an employer pays under the act. The injured workman, or, in case of his death, his representative, if the option under section 33 (a), (33 USCA § 933 (a) is exereised, brings the action against the third person in his own right, as though no Compensation Act existed, and is entitled to receive whatever he or his representative may recover unconditioned by the act.
But, when the amount recovered is less than the sum the workman, or, in case of death, his dependents, would be entitled to receive under the .act, the employer must make up the difference. The act may be defective in not expressly providing how this difference should be paid, whether in installments or in a lump sum; but section 33 (f) provides that it shall be paid as “compensation under this chapter,” and section 14 (b) provides how “compensation under this chapter” shall be paid.
Seasons may be assigned why Congress, in case of recovery of a third person, should have made the installments of any additional sum which the employer is compelled to pay under section 33 (f) begin at a different date than when the employer is required under section 14 (b) to pay the entire sum; but Congress has failed to do so, and we see no good reason for holding that the District Court erred in affirming the award of the deputy commissioner directing the due date of the installments to be computed from the date of death in accordance with section 14 (b).
That, owing to the lapse of time since the workmen’s death, the award will result in the dependents now receiving the entire amount in one payment, since all the installments are now due, is not a sufficient reason' for adopting a date for beginning the weekly payments other than the only one provided in the act. A fair construction of the act in ease of weekly payments would require the first installment to be due on the seventh day after death, or after the employee has knowledge of the injury.
Certainly any possible detriment to a widow and minors in having the award all at one time, if there be any resulting detriment, or any possible advantage to the employer in having the payments of the installments projected a long time into the future, on the ground that her death or remarriage would lessen the amount the employer would have to pay, is not a sufficient reason for adopting any other time for the beginning of the payments of compensation than the one fixed in the act. That it may result in the dependents receiving the compensation in a single payment is fo.r the future consideration of Congress, if it is a defect in the act. Compensation Acts are for the benefit of the employee and his dependents, and are to be construed liberally in their favor. We think the construction contended for by the appellants would not be favorable to these dependents.
The decree of the District Court dismissing the bill is affirmed, with costs to the appellee Nellie Barnes.
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 33? Answer with a number.
Answer:
|
songer_district
|
F
|
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".
HOLLANDSWORTH v. UNITED STATES.
Circuit Court of Appeals, Fourth Circuit.
July 15, 1929.
No. 2856.
Carl C. Sanders, of Beekley, W. Va., for appellant.
Ellis A. Yost, Asst. U. S. Atty., of Huntington, W. Ya. (James Damron, U. S. Atty., of Huntington, W. Va., on the brief), for the United States.
Before PARKER, Circuit Judge, and WATKINS and SOPER, District Judges.
SOPER, District Judge.
The appeal in this case involves a consideration^ the powers conferred upon the District Courts by the Act of March 4,1925, e. 521, § 1, 43 Stat. 1259, USCA tit. 18, §§ 724 to 727, to suspend the imposition or execution of sentences in criminal cases and place the defendants upon - probation.
On June 14, 1927, an information was filed against Ed Hollandsworth, the defendant below, by the United States attorney, wherein the defendant was eharged in three counts with violations of sections 3 and 21 of title 2 of the National Prohibition Law (27 USCA §§ 12, 33). The'first count charged unlawful possession of intoxicating liquor, and alleged that the defendant was guilty of a second offense, since he had been previously convicted of unlawful possession of -intoxicating liquor; the second count charged the unlawful sale of intoxicating liquor; and the third count charged the maintenance of a common nuisance, in that the defendant maintained a place where intoxicating liquor was manufactured, kept, bartered, and sold. The defendant pleaded guilty to the charges contained in the information on July 11, 1927, and the court took time to consider its judgment. On November 16, 1927, the defendant was brought before the court for sentence. The court imposed a fine of $25,. and, reciting that it appeared to the satisfaction of the court that the ends of justice and best interests of the public and of the defendant would be subserved by the suspension of the imposition or execution of sentence, and placing the defendant upon probation, ordered that the defendant be placed upon probation for a period of five years. It is conceded that the defendant paid the fine imposed.
On November 19, 1928, more than a year after the passage of the last-mentioned order, a capias for the defendant’s arrest was issued by the clerk of the court at the instance of the probation officer. In accordance therewith, the defendant was taken into custody on November 27, 1928. He was brought before the court on December 15, 1928, and it was made to appear to the court by satisfactory proof that the defendant had violated the terms and conditions of his probation, whereupon the court inquired of the defendant if he had anything to say why sentence should not be imposed upon him upon the plea of guilty tendered on July 11, 1927, to which inquiry the defendant answered in the negative; whereupon the court pronounced judgment and imposed upon the defendant a sentence of imprisonment in jail for the period of twelve months. From this judgment the defendant has appealed.
There are numerous assignments of error, but the objections of the defendant to the sentence of imprisonment, imposed by the District Court on December 15, 1928, may be summarized as follows: (1) That the legal import and effect of the action of the court, taken 'on November 16, 1927, was that a final sentence was imposed upon the defendant and the attempt to place him on probation was ineffectual. The contention is that the court, having imposed a fine of $25 upon the defendant on that date, had no power at a later term to render a second judgment and impose a sentence of imprisonment. It is said that the sentence or judgment of a court in a criminal ease is an entirety, and must embrace the whole measure of the punishment imposed, and cannot be imposed in parts; and although a court may suspend judgment in a criminal ease in toto until another term, it has no power to impose two sentences for a single offense by pronouncing judgment under one count in an indictment and reserving the right to impose an additional punishment under another count at a subsequent term, or to impose a fine at one term and at a later term a sentence of imprisonment. (2) That the maximum sentence of imprisonment which the District Court could have imposed upon the defendant was a term of twelve months, and that the District Court has no power under the Probation Act (18 USCA §§ 72dr-727) to fix the term of probation in any case at a longer period than the maximum sentence applicable to the offense charged, and hence that the court was without power to fix the term of probation at five year's, and was also without power, after the expiration of the period of one year, to cause the defendant to be brought in and sentenced. (3) That it is incumbent upon the District Court when it places a defendant upon probation under the Probation Act to fix the terms and conditions of probation, and that the District Court in the instant ease failed to specify terms and conditions, and hence the act of the court in placing the defendant upon probation on November 16, 1927, was void and the sentence that the defendant pay a fine of $25 constituted the complete judgment of the court, to which the court was without power to add an additional sentence of imprisonment at a subsequent date.
It was decided by the Supreme Court of the United States in Ex parte United States, 242 U. S. 27, 37 S. Ct. 72, 61 L. Ed. 129, L. R. A. 1917E, 1178, Ann. Cas. 1917B, 355, that a District Court of the United States, in the absence of. a statute, does not possess the power to suspend sentence in a criminal case except for some definite period and for some specific temporary purpose. In harmony with this rule it has been settled by the decisions of this court in Gillespie v. Walker, 296 F. 330, Fisher v. Walker, 296 F. 335, and Strickling v. Walker, 296 F. 337, that a District Court, after the rendition of its judgment under one count of an information, has no power to render a second judgment at a later term against the accused under another count of the same information, even though a continuance was had to a later date, with a view of considering the action to be taken under the second count; and the rule holds good whether the court attempts to impose the second judgment in the same or a subsequent term of court. In the Gillespie Case, Judge Waddill said (page 333 of 296 F.):
“The ends of justice require that the judgment when entered shall be as a single judgment — that is, entered at one time, covering and carrying out the jury’s verdict— and that to allow the entry of judgment under some phases of the case at one time, and some other phases at another time, as presented by the different counts, would operate necessarily to the prejudice of an accused, possibly in effect, placing him in jeopardy for the same offense more than once, and leave in indefinite suspense, the enforcement and carrying out of the law, which would be alike undesirable from a governmental standpoint, and wholly unfair to an accused.”
See, also, United States v. Mayer, 235 U. S. 55, 67, 35 S. Ct. 16, 59 L. Ed. 129.
It follows, therefore, that, unless the Probation Act furnishes some authority for the release of a defendant upon probation and a suspension of sentence of imprisonment until a later time, together with the imposition of a fine imposed contemporaneously with the release of the defendant upon probation, the first point of the defendant is well taken. Section 1 of the Probation Act (title 18, USCA § 724) is as follows:
“The courts of the United States having original jurisdiction of criminal actions, except in the District of Columbia, when it shall appear to the satisfaction of the court that the ends of justice and the best interests of the public, as well as the defendant, will be subserved thereby, shall have power, after conviction or after a plea of guilty or nolo contendere for any crime or offense not punishable by death or life imprisonment, to suspend the imposition or execution of sentence and to place the defendant upon probation for such period and upon such terms and conditions as they may deem best; or the court may impose a fine and may also placa the defendant upon probation, in the manner aforesaid. The court may revoke or modify any condition of probation, or may change the period of probation. The period of probation, together with any extension thereof, shall not exceed five years.
“While on probation the defendant may be required to pay in one or several sums a fine imposed at the time of being placed on probation and may also be required to make restitution or reparation to the aggrieved party or parties for actual damages or loss caused by the offense for which conviction was had, and may also be required to provide for the support of any person or persons for whose support, he is legally responsible.”
It would seem to be clear that the course of action of the District Court in imposing a fine, and at the same time placing the defendant upon probation for a definite period, was expressly authorized by the section quoted. The defendant, however, relying upon the decision of the District Court in Archer v. Snook, 10 F.(2d) 567, contends that, when the court imposed a fine and required it to be paid, its function was completely carried out, and it was without power to place the defendant upon probation. The argument seems to be that, álthough the court has the power to require the payment of a fine as a condition of probation, it cannot otherwise sentence the defendant to pay. a fine in connection with probation. We find nothing in the ease cited which justifies this position, arid we think that it is clear from the language set out that, although the court may in its discretion require the defendant, as one of the terms of probation, to pay a fine in one or several sums imposed at the time of being placed on probation, the court is expressly authorized by the language of the statute to impose a fine (whether it be made a condition of the probation or not), and also place the defendant upon probation. It is of course clear that the amount of the fine imposed by the trial judge in this case was well within the maximum authorized by the law for any of the offenses charged in the information.
Nor do we think that the second contention of the defendant is well founded. It assumes that the maximum sentence which might have been imposed at the beginning was one year in jail. Under the National Prohibition Act (27 USCA), the maximum sentence for possession of intoxicating liquor charged in the first count as a second offense was $1,000 fine or imprisonment for 90 days; the maximum sentence under the second count for the sale of liquor was a fine of $1,000 or imprisonment for 6 months; and the maximum sentence under the third count for maintaining a nuisance was a fine of $1,000 or imprisonment for a year. The defendant claims that, under the rule laid down in Morgan v. United States (C. C. A.) '294 F. 82, the offenses in the first and second count became merged with the offense charged in the third count so far as the imposition of sentence is concerned. We are by no means satisfied that the maintenance of a common nuisance under the third count necessarily embraced the offense of sale of intoxicating liquor under the second count. For the purposes of this case, however, this assumption will be made. But there is no express provision of the Probation Act that the term of probation must not exceed the maximum period for which a sentence of imprisonment may be imposed. Congress expressly provided, in section 1 of the act (18 USCA § 724) that the period of probation, together with any extension thereof, should not exceed five years. Herein is no suggestion that the period of probation is limited by the period of maximum sentence. The defendant, however, points to section 2 of the act (18 USCA § 725), which provides in part as follows:
“At any time within the probation period the probation officer may arrest the probationer without a warrant, or the court may issue a warrant for his arrest. Thereupon such probationer shall forthwith be taken before the court. At any time after the probation period, but within the maximum period for which the defendant might originally have been sentenced, the court may issue a warrant and cause the defendant to be arrested and brought before the court. Thereupon the court may revoke the probation or the suspension of sentence, and may impose any sentence which might originally have been imposed.”
It thus appears that, if the probation period fixed by the court is shorter than the maximum period of punishment, the defendant may nevertheless be brought in after the probation period, provided that the maximum period of sentence has not already expired, and impose any sentence which might originally have been imposed. In substance, this provision amounts to an automatic extension of the probation period so as to cover the full period of the maximum sentence. It is clear that these terms of the statute extend rather than restrict the powers of the District Court. They do not justify the conclusion that the maximum five-year period of probation allowed by section 1 of the act is to be read as if subject to the provision that the term of probation shall in no ease exceed the term of maximum sentence. There is indeed no necessary connection between the term of probation and the term of imprisonment. The general purposes of the Probation Act are made clear by the decision of the Supreme Court in United States v. Murray, 275 U. S. 347, 48 S. Ct. 146, 72 L. Ed. 309, and the decision of. this court in Riggs v. United States, 14 F.(2d) 5. The statute conferred upon the District Courts the discretion, previously beyond their authority, to suspend the sentence after conviction in a criminal ease and release the offender on probation under the supervision of the court in the hope that, if he should be spared the disgrace and humiliation of a criminal sentence, he might be led the more readily to mend his 'evil ways and become a worthy member of society. Ordinarily, probation should not be granted unless this much-desired end seems to the court likely to be attained; but it is obvious that it may not be possible in many cases to test the offender adequately unless he remains under surveillance for a longer period than the maximum term of imprisonment. Prom this viewpoint, it is in harmony with the intent of Congress and to the interest of defendants to hold that there is no restriction upon the discretion of the District Courts as to the period of probation, except the limitation of five years expressly provided by the statute.
The third point of the defendant raises an important and interesting question as to the extent of the power which resides in the District Court to cause a defendant, who has been released upon probation, to be brought in and sentenced. We think it is a necessary implication from the terms of the statute that this power may not be exercised arbitrarily and without reference to the behavior of the defendant during the period of probation. Section 1 of the act expressly directs the judge, when exercising the power to suspend sentence and place the defendant upon probation, to fix such terms and condition as he may deem best. It is thus manifestly the duty of the judge at the outset to inform the defendant as to the condition of his probation and instruct him as to the line of conduct he should pursue. Great latitude is given to the judge in this respect. He may fix such terms and conditions as to him seem best, and hence it is within the discretion of the judge to name any reasonable terms or conditions with which the offender must conform; but some terms and conditions must be laid down.
After this is done, it becomes a matter of importance to ascertain whether the conduct of the probationer conforms with the order of the court. Section 2 of the act provides that the probation officer, in whose charge the defendant may be released, shall report to the court a statement of the conduct of the probationer, and, if the court thinks it advisable, the probationer may be discharged from further supervision and the proceeding against him may be terminated. The probation officer at any time within the probation period, of his own motion, or at the direction of the court, may issue a warrant for the arrest of the probationer, whereupon the probationer shall be taken before the court, and the court may revoke the probation or the suspension of sentence, and impose any sentence which might originally have been imposed. The language of this section is very broad, but we think it must be read in connection with the provisions of section 1, which direct that the terms and conditions to be observed by the probationer must be fixed in tbe beginning by tbe judge. This conclusion is borne out by section 4 of tbe act (IS USCA § 727), which defines the duty of the probation officer. He is required to furnish to each person released on probation under his supervision a written statement of the conditions of probation, and to instruct him regarding the same. The officer must keep informed concerning the conduct and condition of the probationer under his supervision, and make a report to the court. The officer must use all suitable methods not inconsistent with the conditions imposed by the court, to aid persons on probation to bring about improvement in their conduct and condition. In view of these several provisions of the act, it seems to be clear that, if the probationer complies with the condition of his probation, he is entitled to remain on probation, subject to the supervision of the court and its officers, until the maximum period of sentence expires, and is then entitled to a final discharge. The power of the court to revoke a probation and sentence the probationer may not be exercised unless it is made to appear that he has failed to comply with the terms and conditions prescribed for him. It is not conceivable that Congress intended to confer upon the court the power to call back the defendant at any time within five years after conviction and imprison him, no matter how blameless his conduct may have been during the interim, or how strictly he may have observed the terms of his probation. It follows that, whenever it is charged that a probationer has failed to follow the instructions of the court, he may not be sentenced until he has been given notice of the specific charge and an opportunity to be heard in his defense, and until the court, upon hearing, shall have judicially determined that his conduct during the probation period has not conformed to the course outlined in the order of probation.
While the Probation Act must be construed on the lines suggested, we find nothing in the record in the ease before us to indicate that the defendant has been unjustifiably sentenced. It is true that the order ■ of probation of November 16, 1927, merely provided that the defendant be placed upon probation for a period of five years, and failed to set out the terms and conditions of the probation, as directed by the statute. But, on the other hand, the record shows that, when the defendant was subsequently arrested and brought before the court, it was shown by satisfactory proof that he had violated the terms and conditions of his probation imposed when he was released, and that he admitted that there was no reason why he should not be sentenced under his plea of guilty entered on July 11, 1927. In view of these recitals, we cannot assume that the court failed in its duty to inform the defendant at the outset of the terms and conditions of his probation. Indeed the defendant does not claim that he was not given this information, and does not deny that he failed to comply with the conditions imposed. His argument in this respect is based solely ■ on the ground that the failure of the court to include the terms and conditions of probation in its written order nullified the whole proceeding. But, since it is clear that the defendant was advised as to the course of conduct expected of him, he suffered no injury from the omission of the terms of probation from the formal order of the court.
The judgment of the District Court is affirmed.
In most jurisdictions in which similar questions have arisen under state probation laws, the state courts have held that a convicted defendant, released upon conditions under a suspended sentence, is entitled to notice and a hearing before the suspension may be revoked. This rule is usually followed even in those states where it has been held that the courts in criminal cases have the inherent power to grant a permanent suspension of sentence. See the authorities collected in the note to the case of State of Utah v. Zolantakis, 54 A. L. R. 1463, 1471. See, also, State v. O’Neal, 147 Wash. 169, 265 P. 175; Plunkett v. Miller, 161 Ga. 466, 131 S. E. 170; Williams v. State, 162 Ga. 327, 133 S. E. 843; State v. Hardin, 183 N. C. 815, 112 S. E. 593; Weber v. State, 58 Ohio St. 616, 51 N. E. 116, 41 L. R. A. 472; People v. Sanders, 64 Gal. App. 1, 220 P. 24; People v. Sapienzo, 60 Cal. App. 626, 213 P. 274. Contra, People ex rel. Forsyth v. Court of Sessions, 141 N. Y. 288, 36 N. E. 386, 23 L. R. A. 856; People ex rel. Pasco v. Trombly, 173 App. Div. 497, 160 N. Y. S. 67; People v. Goodrich (Sup.) 149 N. Y. S. 406.
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
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sc_authoritydecision
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D
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RILEY, GOVERNOR OF ALABAMA v. KENNEDY et al.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA
No. 07-77.
Argued March 24, 2008
Decided May 27, 2008
Kevin C. Newsom argued the cause for appellant. With him on the briefs were Troy King, Attorney General of Alabama, and Margaret L. Fleming, James W. Davis, and Misty S. Fairbanks, Assistant Attorneys General, Matthew H. Lembke, John C. Neiman, Jr., and Scott Burnett Smith.
Pamela S. Karlan argued the cause for appellees. With her on the brief were Edward Still, Amy Howe, Kevin Russell, Sam Heldman, Jeffrey L. Fisher, and Thomas C. Goldstein.
Kannon K. Shanmugam argued the cause for the United States as amicus curiae supporting appellees in part. On the brief were Solicitor General Clement, Acting Assistant Attorney General Becker, Deputy Solicitor General Garre, Eric D. Miller, Diana K. Flynn, Gregory B. Friel, and Sarah E. Harrington.
Briefs of amici curiae urging reversal were filed for the State of Florida et al. by Bill McCollum, Attorney General of Florida, Gene C. Schaerr, and Steffen N. Johnson, and by the Attorneys General for their respective States as follows: Talis J. Colberg of Alaska, James D. Caldwell of Louisiana, Kelly A. Ayotte of New Hampshire, Gary K King of New Mexico, Henry D. McMaster of South Carolina, Lawrence E. Long of South Dakota, and Bob McDonnell of Virginia; for the Project on Fair Representation by Bert W. Rein; for Former State Court Justice Charles Fried et al. by H. Christopher Bartolomucci; and for Abigail Thernstrom et al. by Keith A. Noreika.
Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Laughlin McDonald, Neil Bradley, and Steven R. Shapiro; for the Lawyers’ Committee for Civil Rights Under Law by Jonathan E. Nuechterlein, Daniel S. Volchok, and Jon M. Greenbaum; and for the NAACP Legal Defense and Educational Fund, Inc., by Kristen Clarke, Theodore M. Shaw, Jacqueline A. Berrien, Debo P. Adegbile, and Ryan P. Haygood.
Justice Ginsburg
delivered the opinion of the Court.
This case presents a novel question concerning § 5 of the Voting Rights Act of 1965. The setting, in a nutshell: A covered State passed a law adopting a new election practice, obtained the preclearance required by § 5, and held an election. Soon thereafter, the law under which the election took place was invalidated by the State’s highest court on the ground that it violated a controlling provision of the State’s Constitution. The question presented: Must the State obtain fresh preclearance in order to reinstate the election practice prevailing before enactment of the law struck down by the State’s Supreme Court? We hold that, for §5 purposes, the invalidated law never gained “force or effect.” Therefore, the State’s reversion to its prior practice did not rank as a “change” requiring preclearance.
I
The Voting Rights Act of 1965 (VRA), 79 Stat. 437, as amended, 42 U. S. C. § 1973 et seq., “was designed by Congress to banish the blight of racial discrimination in voting, which ha[d] infected the electoral process in parts of our country for nearly a century.” South Carolina v. Katzenbach, 383 U. S. 301, 308 (1966). In three earlier statutes, passed in 1957,1960, and 1964, Congress had empowered the Department of Justice (DOJ or Department) to combat voting discrimination through “case-by-case litigation.” Id., at 313. These lawsuits, however, made little headway. Voting-rights suits were “unusually onerous to prepare” and the progress of litigation was “exceedingly slow,” in no small part due to the obstructionist tactics of state officials. Id., at 314. Moreover, some States “resorted to the extraordinary stratagem of contriving new rules of various kinds for the sole purpose of perpetuating voting discrimination in the face of adverse federal court decrees.” Id., at 335.
The VRA reflected Congress’ determination that “sterner and more elaborate measures” were needed to counteract these formidable hindrances. Id., at 309. Sections 4 and 5 impose the most stringent of the Act’s remedies. Under §4(b), as amended, a State or political subdivision is a so-called “covered jurisdiction” if, on one of three specified coverage dates: (1) it maintained a literacy requirement or other “test or device” as a prerequisite to voting, and (2) fewer than 50% of its voting-age citizens were registered to vote or voted in that year’s Presidential election. 42 U. S. C. § 1973b(b). Section 4(a) suspends the operation of all such “test[s] or devicefs]” in covered jurisdictions. §1973b(a). Section 5 requires covered jurisdictions to obtain what has come to be known as “preclearance” from the District Court for the District of Columbia or the DOJ before “enact[ing] or seeking] to administer” any alteration of their practices or procedures affecting voting. § 1973c(a).
A change will be precleared only if it “neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color, or [because of membership in a language minority group].” Ibid. An election practice has the “effect” of “denying or abridging the right to vote” if it “lead[s] to a retrogression in the position of racial [or language] minorities with respect to their effective exercise of the electoral franchise.” Beer v. United States, 425 U. S. 130, 141 (1976). See also Young v. Fordice, 520 U. S. 273, 276 (1997); 28 CFR §51.54 (2007). As amended in 2006, the statute defines “purpose” to include “any discriminatory purpose.” 120 Stat. 581, codified at 42 U. S. C. § 1973c(c).
Congress took the extraordinary step of requiring covered jurisdictions to preclear all changes in their voting practices because it “feared that the mere suspension of existing tests [in § 4(a)] would not completely solve the problem, given the history some States had of simply enacting new and slightly different requirements with the same discriminatory effect.” Allen v. State Bd. of Elections, 393 U. S. 544,548 (1969). By putting the burden on covered jurisdictions to demonstrate that future changes would not be discriminatory, § 5 served to “shift the advantage of time and inertia from the perpetrators of the evil to its victims.” Katzenbach, 383 U. S., at 328.
Sections 4 and 5 were originally scheduled to lapse once a covered jurisdiction complied with § 4(a)’s ban on the use of tests and devices for five years. See 79 Stat. 438. Finding continuing discrimination in access to the ballot, however, Congress renewed and expanded §§ 4 and 5 on four occasions, most recently in 2006. Sections 4 and 5 are now set to expire in 2031, see 42 U. S. C. § 1973b(a)(8), but a covered jurisdiction may “bail out” at any time if it satisfies certain requirements, see § 1973b(a)(l).
II
The voting practice at issue in this litigation is the method used to fill midterm vacancies on the Mobile County Commission, the governing body of Mobile County, Alabama. Composed of three members elected by separate districts to four-year terms, the Commission has the power to levy taxes, make appropriations, and exercise other countywide executive and administrative functions. See Ala. Code § 11— 3-11 (1975).
We set out first, as pivotal to our resolution of this ease, a full account of two disputes over the means of filling midterm vacancies on the Commission. The first occurred between 1985 and 1988; the second began in 2004 and culminates in the appeal now before us.
A
Alabama is a covered jurisdiction with a coverage date of November 1, 1964. See 30 Fed. Reg. 9897 (1965). As of that date, Alabama law provided that midterm vacancies on all county commissions were to be filled by gubernatorial appointment. See Ala. Code §12-6 (1958). The relevant provision was later recodified without substantive change as Ala. Code § 11-3-6 (1975), which stated:
“In case of a vacancy, it shall be filled by appointment by the governor, and the person so appointed shall hold office for the remainder of the term of the commissioner in whose place he is appointed.”
In 1985, however, the state legislature passed a “local law” providing that any vacancy on the Mobile County Commission occurring “with twelve months or more remaining on the term of the vacant seat” would be filled by special election rather than gubernatorial appointment. 1985 Ala. Acts no. 85-237 (1985 Act). The DOJ precleared this new law in June 1985.
The first midterm opening on the Commission postpassage of the 1985 Act occurred in 1987, when the seat for District One — a majority African-American district — became vacant. In accord with the 1985 Act, the Governor called a special election. A Mobile County voter, Willie Stokes, promptly filed suit in state court seeking to enjoin the election. The 1985 Act, he alleged, violated Art. IV, § 105, of the Alabama Constitution, which provides that no “local law... shall be enacted in any case which is provided for by a general law.” On Stokes’s reading, the 1985 Act conflicted with § 105 because the Act addressed a matter already governed by Ala. Code §11-3-6.
The state trial court rejected Stokes’s argument and entered judgment for the state defendants. Stokes immediately appealed to the Alabama Supreme Court and sought an order staying the election pending that court’s decision. The requested stay was denied, and the special election went forward in June 1987. The winner, Samuel Jones, took office as District One’s Commissioner in July 1987. Approximately 14 months later, however, in September 1988, the Alabama Supreme Court reversed the trial court’s judgment. Finding that the 1985 Act “clearly offend[ed] §105 of the [Alabama] Constitution,” the court declared the Act unconstitutional. Stokes v. Noonan, 534 So. 2d 237, 238-239.
The Alabama Supreme Court’s decree cast grave doubt on the legitimacy of Jones’s election and, consequently, on his continued tenure in office. The Governor, however, defused any potential controversy by immediately invoking his authority under Ala. Code § 11-3-6 and appointing Jones to the Commission.
B
The next midterm vacancy on the Commission did not occur until October 2005, when Jones — who had been reelected every four years since 1988 — was elected mayor of the city of Mobile. Once again, the method of filling the vacancy became the subject of litigation. In 2004, the state legislature had passed (and the DOJ had precleared) an amendment to Ala. Code § 11-3-6 providing that vacancies on county commissions were to be filled by gubernatorial appointment “[u]nless a local law authorizes a special election.” 2004 Ala. Acts no. 2004-455 (2004 Act). When the 2005 vacancy arose, three Mobile County voters and Alabama state legislators — appellees Yvonne Kennedy, James Buskey, and William Clark (hereinafter Kennedy) — filed suit against Alabama’s Governor, Bob Riley, in state court. The 2004 Act’s authorization of local laws providing for special elections, they urged, had revived the 1985 Act and cured its infirmity under § 105 of the Alabama Constitution. Adopting Kennedy’s view, the state trial court ordered Governor Riley to call a special election.
While the Governor’s appeal to the Alabama Supreme Court was pending, Mobile County’s election officials obtained preclearance of procedures for a special election, scheduled to take place in January 2006. In November 2005, however, the Alabama Supreme Court reversed the trial court’s order. Holding that the 2004 Act “provide[d] for prospective application only” and thus did not resurrect the 1985 Act, Alabama’s highest court ruled that “Governor Riley [wa]s authorized to fill the vacancy on the Mobile County Commission by appointment.” Riley v. Kennedy, 928 So. 2d 1013,1017. Governor Riley promptly exercised that authority by appointing Juan Chastang.
The day after the Alabama Supreme Court denied rehearing, Kennedy commenced the instant suit in Federal District Court. Invoking §5, she sought declaratory relief and an injunction barring Governor Riley from filling the Commission vacancy by appointment unless and until Alabama gained preclearance of the decisions in Stokes and Kennedy. As required by § 5, a three-judge District Court convened to hear the suit. See 42 U. S. C. §1973c(a); Allen, 393 U. S., at 563.
In August 2006, the three-judge court, after a hearing, granted the requested declaration. The court observed first that for purposes of §5’s preclearance requirement, “[cjhanges are measured by comparing the new challenged practice with the baseline practice, that is, the most recent practice that is both precleared and in force or effect.” 445 F. Supp. 2d 1333, 1336 (MD Ala.). It then determined that the 1985 Act’s provision requiring special elections had been both precleared and put into “force or effect” with the special election of Jones in 1987. It followed, the District Court reasoned, that the gubernatorial appointment called for by Stokes and Kennedy ranked as a change from the baseline practice; consequently “the two [Alabama Supreme Court] decisions... should have been precleared before they were implemented.” 445 F. Supp. 2d, at 1336.
Deferring affirmative relief, the District Court gave the State 90 days to obtain preclearance of Stokes and Kennedy. 445 F. Supp. 2d, at 1336. Without conceding that preclearance was required, the State submitted the decisions to the DOJ. Finding that the State had failed to prove that the reinstatement of gubernatorial appointment would not be retrogressive, the Department denied preclearance. See App. to Motion to Dismiss or Affirm 2a-8a. “The African-American voters of District 1,” the DOJ explained, “enjoy the opportunity to elect minority candidates of their choice” under the 1985 Act. Id., at 6a. A change to gubernatorial appointment would be retrogressive because it “would transfer this electoral power to a state official elected by a statewide constituency whose racial make-up and electoral choices regularly differ from those of the voters of District 1.” Ibid.
After the State unsuccessfully sought DOJ'reconsideration, Kennedy returned to the District Court and filed a motion for further relief. On May 1, 2007, the District Court ruled that “Governor Bob Riley’s appointment of Juan Chastang to the Mobile County Commission... was unlawful under federal law” and vacated the appointment. App. to Juris. Statement la-2a. Governor Riley filed a notice of appeal in the District Court on May 18, 2007, and a jurisdictional statement in this Court on July 17, 2007. In November 2007, we postponed a determination of jurisdiction until our consideration of the case on the merits. 552 U. S. 1035.
In the meantime, a special election was held in Mobile County in October 2007 to fill the vacancy resulting from the District Court’s order vacating Chastang’s appointment. Chastang ran in the election but was defeated by Merceria Ludgood, who garnered nearly 80% of the vote. See Certification of Results, Special Election, Mobile County (Oct. 16, 2007), http://records.mobile-county.net/ViewImagesPDFAll. Aspx?ID=2007081288 (as visited May 22, 2008, and available in Clerk of Court’s case file). Ludgood continues to occupy the District One seat on the Commission. Her term will expire in November 2008.
Ill
Before reaching the merits of Governor Riley’s appeal, we first take up Kennedy’s threshold objection. The appeal, Kennedy urges, must be dismissed as untimely.
Section 5 provides that “any appeal” from the decision of a three-judge district court “shall lie to the Supreme Court.” 42 U. S. C. § 1973c(a). Such an appeal must be filed within 60 days of the District Court’s entry of a final judgment. See 28 U. S. C. § 2101(b). Kennedy maintains that Governor Riley’s May 18, 2007 notice of appeal came too late because the District Court’s August 2006 order qualified as a final judgment. If Kennedy’s characterization is correct, then Governor Riley’s time to file an appeal expired in October 2006, and his appeal must be dismissed. But if, as Governor Riley maintains, the District Court did not issue a final judgment until the order vacating Chastang’s appointment on May 1, 2007, then the Governor filed his appeal well within the required time.
A final judgment is “one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Catlin v. United States, 324 U. S. 229, 233 (1945). The District Court’s August 2006 order declared that the Alabama Supreme Court’s decisions in Stokes and Kennedy required preclearance, but that order left unresolved Kennedy’s demand for injunctive relief. We have long held that an order resolving liability without addressing a plaintiff’s requests for relief is not final. See Liberty Mut. Ins. Co. v. Wetzel, 424 U. S. 737, 742-743 (1976). See also 15B C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §3915.2, p. 271 (2d ed. 1992).
Resisting the conclusion these authorities indicate, Kennedy maintains that the August 2006 order ranked as a final decision for two reasons. First, she contends, that order conclusively settled the key remedial issue, for it directed Governor Riley to seek preclearance of the Alabama Supreme Court’s decisions in Stokes and Kennedy. See Brief for Appellees 26-27. This argument misapprehends the District Court’s order: Far from requiring the Governor to seek preclearance, the District Court expressly allowed for the possibility that he would elect not to do so. See 445 F. Supp. 2d, at 1337 (“Defendant Riley is to keep the court informed of what action, if any, the State decides to take....” (emphasis added)). Second, Kennedy notes that the District Court directed entry of its August 2006 order “as a final judgment pursuant to Rule 58 of the Federal Rules of Civil Procedure,” ibid. See Brief for Appellees 27. “The label used by the District Court,” however, “cannot control [an] order’s appealability.” Sullivan v. Finkelstein, 496 U. S. 617, 628, n. 7 (1990). See also Wetzel, 424 U. S., at 741-743.
Because the District Court did not render its final judgment until May 1, 2007, Governor Riley’s May 18 notice of appeal was timely. We therefore proceed to the merits.
IV
Prior to 1985, Alabama filled midterm vacancies on the Mobile County Commission by gubernatorial appointment. The 1985 Act adopted a different practice — special elections. That new practice was used in one election only, held in 1987. The next year, the Alabama Supreme Court determined, in Stokes v. Noonan, that the Act authorizing special elections was invalid under the State’s Constitution. Properly framed, the issue before us is whether § 5 required Alabama to obtain preclearance before reinstating the practice of gubernatorial appointment in the wake of the decision by its highest court invalidating the special-election law.
It is undisputed that a “change” from election to appointment is a change “with respect to voting” and thus covered by § 5. See Allen, 393 U. S., at 569-570; Presley v. Etowah County Comm’n, 502 U. S. 491, 502-503 (1992). We have also stated that the preclearance requirement encompasses “voting changes mandated by order of a state court.” Branch v. Smith, 538 U. S. 254, 262 (2003). See also Hathorn v. Lovorn, 457 U. S. 255, 265-266, and n. 16 (1982). The question is whether, given the circumstances here presented, any “change” within the meaning of § 5 occurred in this case.
In order to determine whether an election practice constitutes a “change” as that term is defined in our § 5 precedents, we compare the practice with the covered jurisdiction’s “baseline.” We have defined the baseline as the most recent practice that was both precleared and “in force or effect”— or, absent any change since the jurisdiction’s coverage date, the practice that was “in force or effect” on that date. See Young, 520 U. S., at 282-283. See also Presley, 502 U. S., at 495. The question is “whether a State has ‘enact[ed]’ or is ‘seeking] to administer’ a ‘practice or procedure’ that is ‘different’ enough” from the baseline to qualify as a change. Young, 520 U. S., at 281 (quoting 42 U. S. C. § 1973c).
For the reasons that follow, we conclude that the 1985 Act was never “in force or effect” within the meaning of § 5. At all relevant times, therefore, the baseline practice for filling midterm vacancies on the Commission was the pre-1985 practice of gubernatorial appointment. The State’s reinstatement of that practice thus did not constitute a change requiring preclearance.
A
We have directly addressed the § 5 term of art “in force or effect” on three prior occasions. As will become clear, these precedents do not control this case because they differ in a critical respect. They do, however, provide the starting point for our inquiry.
In Perkins v. Matthews, 400 U. S. 379 (1971), the question was what practice had been “in force or effect” in the city of Canton, Mississippi, on that State’s §5 coverage date, November 1, 1964. A 1962 state law required selection of city aldermen by at-large elections rather than by ward. Canton, however, “ignored the mandate [of the statute] in the conduct of the 1965 municipal elections and, as in 1961, elected aldermen by wards.” Id., at 394. In the 1969 election, the city sought to switch to at-large elections. We held that this move was a change requiring preclearance because election by ward was “the procedure in fact ‘in force or ef-. feet’ in Canton on November 1, 1964.” Id., at 395.
We endeavored to determine in Perkins the voting procedure that would have been followed on the coverage date, November 1, 1964. Two choices were apparent: the state law on the books since 1962 calling for at-large elections, or the practice Canton actually used, without challenge, in 1965 — election by wards. We picked the 1965 practice as the more likely indicator of the practice Canton would have employed had it held an election on the coverage date, just seven months earlier. See id., at 394-395.
Similarly, in City of Lockhart v. United States, 460 U. S. 125 (1983), the question was what practice had been “in force or effect” in Lockhart, Texas, on the relevant §5 coverage date, November 1, 1972. For more than 50 years, without challenge, the city had used a “numbered-post” system to elect its city council. See id., at 182, n. 6. A group of plaintiffs nonetheless contended that the numbered-post system was never “in force or effect” because it lacked state-law authorization. We noted that the validity of the numbered-post system under state law was “not entirely clear.” Id., at 132. Relying on Perkins, we considered the uncertain state of Texas law “irrelevant,” for “[t]he proper comparison [wa]s between the new system and the system actually in effect on November 1, 1972, regardless of what state law might have required.” 460 U. S., at 132 (footnote omitted).
Finally, in Young v. Fordice, decided in 1997, the question was whether a provisional voter registration plan implemented by Mississippi election officials had been “in force or effect.” Believing that the state legislature was about to amend the relevant law, the officials had prepared and obtained preclearance for a new voter registration scheme. See 520 U. S., at 279. Roughly one-third of the State’s election officials implemented the plan, registering around 4,000 voters. See id., at 278, 283. As it turned out, however, the state legislature failed to pass the amendment, and the voters who had registered under the provisional plan were required to reregister. See id., at 278. When the case reached us, we rejected the argument that “the [provisional [p]lan, because it was precleared by the Attorney General, became part of the baseline against which to judge whether a future change must be precleared.” Id., at 282. Regarding the provisional plan as a “temporary misapplication of state law,” we held that, for § 5 purposes, the plan was “never ‘in force or effect.’ ” Ibid. We emphasized that the officials who implemented the provisional plan “did not intend to administer an unlawful plan” and that they abandoned it “as soon as its unlawfulness became apparent.” Id., at 283. We also noted that the provisional plan had been used for only 41 days and that the State “held no elections” during that period. Ibid.
B
Perkins and Lockhart established that an election practice may be “in force or effect” for § 5 purposes despite its illegality under state law if, as a practical matter, it was “actually in effect.” Lockhart, 460 U. S., at 132. Our more recent decision in Young, however, qualified that general rule: A practice best characterized as nothing more than a “temporary misapplication of state law,” we held, is not “ ‘in force or effect,’” even if actually implemented by state election officials. 520 U. S., at 282.
If the only relevant factors were the length of time a practice was in use and the extent to which it was implemented, this would be a close case falling somewhere between the two poles established by our prior decisions. On one hand, as in Young, the 1985 Act was a “temporary misapplication” of state law: It was on the books for just over three years and applied as a voting practice only once. In Lockhart, by contrast, the city had used the numbered-post system “for over 50 years without challenge.” 460 U. S., at 132, n. 6. (Perkins is a less clear case: The city failed to alter its practice in response to changed state law for roughly seven years, but only a single election was held during that period. See 400 U. S., at 394.) On the other hand, in Young no election occurred during the time the provisional registration plan was in use, while in this case one election was held under the later invalidated 1985 Act.
We are convinced, however, that an extraordinary circumstance not present in any past case is operative here, impelling the conclusion that the 1985 Act was never “in force or effect”: The Act was challenged in state court at first opportunity, the lone election was held in the shadow of that legal challenge, and the Act was ultimately invalidated by the Alabama Supreme Court.
These characteristics plainly distinguish the present case from Perkins and Lockhart. The state judiciary had no involvement in either of those cases, as the practices at issue were administered without legal challenge of any kind. And in Lockhart, we justified our unwillingness to incorporate a practice’s legality under state law into the §5 “force or effect” inquiry in part on this ground: “We doubt[ed] that Congress intended” to require “the Attorney General and the District Court for the District of Columbia” to engage in “speculation as to state law.” 460 U. S., at 133, n. 8. Here, in contrast, the 1985 Act’s invalidity under the Alabama Constitution has been definitively established by the Alabama Supreme Court.
The prompt legal challenge and the Alabama Supreme Court’s decision not only distinguish this case from Perkins and Lockhart; they also provide strong cause to conclude that, in the context of § 5, the 1985 Act was never “in force or effect.” A State’s highest court is unquestionably “the ultimate exposito[r] of state law.” Mullaney v. Wilbur, 421 U. S. 684, 691 (1975). And because the prerogative of the Alabama Supreme Court to say what Alabama law is merits respect in federal forums, a law challenged at first opportunity and invalidated by Alabama’s highest court is properly regarded as null and void ab initio, incapable of effecting any change in Alabama law or establishing a voting practice for §5 purposes. Indeed, Kennedy and the United States appear to concede that the 1985 Act would not have been “in force or effect” had the Alabama Supreme Court stayed the 1987 election pending its decision in Stokes (or simply issued its decision sooner). See Brief for Appellees 51; Brief for United States as Amicus Curiae 23-24.
There is no good reason to hold otherwise simply because Alabama’s highest court, proceeding at a pace hardly uncommon in litigated controversies, did not render its decision until after an election was held. In this regard, we have recognized that practical considerations sometimes require courts to allow elections to proceed despite pending legal challenges. Cf. Purcell v. Gonzalez, 549 U. S. 1, 5-6 (2006) (per curiam) (“Given the imminence of the election and the inadequate time to resolve the factual disputes, our action today shall of necessity allow the election to proceed without an injunction suspending the [challenged] rules.”).
Ruling as Kennedy and the United States urge, moreover, would have the anomalous effect of binding Alabama to an unconstitutional practice because of a state trial court’s error. If the trial court had gotten the law of Alabama right, all agree, there would have been no special election and no tenable argument that the 1985 Act had ever gained “force or effect.” But the trial court misconstrued the State’s law and, due to that court’s error, an election took place. That sequence of events, the District Court held, made the Act part of Alabama’s § 5 baseline. No precedent of this Court calls for such a holding.
The District Court took care to note that its decision “d[id] not in any way undermine [Stokes and Kennedy] under state law.” 445 F. Supp. 2d, at 1337. In some theoretical sense, that may be true. Practically, however, the District Court’s decision gave controlling effect to the erroneous trial court decision and rendered the Alabama Supreme Court’s corrections inoperative. Alabama’s Constitution, that State’s Supreme Court determined, required that, in the years here involved, vacancies on the Mobile County Commission be filled by appointment rather than special election. Nothing inherent in the practice of -appointment violates the Fifteenth Amendment or the VRA. The DOJ, however, found that a change from special elections to appointment had occurred in District One, and further found that the change was retrogressive, hence barred by § 5. The District Court’s final decision, tied to the DOJ determination, thus effectively precluded the State from reinstating gubernatorial appointment, the only practice consistent with the Alabama Constitution pre-2006. Indeed, Kennedy’s counsel forthrightly acknowledged that the position she defends would “loc[k] into place” an unconstitutional practice. Tr. of Oral Arg. 32.
The dissent, too, appears to concede that its reading of § 5 would bind Alabama to an unconstitutional practice because of an error by the state trial court. See post, at 435. But it contends that this imposition is no more “offensive to state sovereignty” than “effectively requiring a State to administer a law it has repealed,” post, at 436 — a routine consequence of § 5. The result described by the dissent, however, follows directly from the Constitution’s instruction that a state law may not be enforced if it conflicts with federal law. See Art. VI, cl. 2. Section 5 prohibits States from making retrogressive changes to their voting practices, and thus renders any such changes unenforceable. To be sure, this result constrains States’ legislative freedom. But the rule advocated by the dissent would effectively preclude Alabama’s highest court from applying to a state law a provision of the State Constitution entirely harmonious with federal law. That sort of interference with a state supreme court’s ability to determine the content of state law, we think it plain, is a burden of a different order.
This burden is more than a hypothetical concern. The realities of election litigation are such that lower state courts often allow elections to proceed based on erroneous interpretations of state law later corrected on appeal. See, e.g., Akins v. Secretary of State, 154 N. H. 67, 67-68, 74, 904 A. 2d 702, 703,708 (2006) (preelection challenge rejected by a state trial court but eventually sustained in a postelection decision by the State Supreme Court); Cobb v. State Canvassing Bd., 2006-NMSC-034, ¶¶ 1-17,140 N. M. 77, 79-83 (same); Maryland Green Party v. Maryland Bd. of Elections, 377 Md. 127, 137-139, 832 A. 2d 214,220-221 (2003) (same); O’Callaghan v. State, 914 P. 2d 1250,1263-1264 (Alaska 1996) (same); Peloza v. Freas, 871 P.
Question: What is the basis of the Supreme Court's decision?
A. judicial review (national level)
B. judicial review (state level)
C. Supreme Court supervision of lower federal or state courts or original jurisdiction
D. statutory construction
E. interpretation of administrative regulation or rule, or executive order
F. diversity jurisdiction
G. federal common law
Answer:
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songer_respond1_7_5
|
A
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "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).
NASHVILLE, C. & ST. L. RY. CO. v. YORK.
No. 8980.
Circuit Court of Appeals, Sixth Circuit.
April 22, 1942.
W. F. Murrah, of Memphis, Tenn., and Walton Whitwell, of Nashville, Tenn. (Wm. A. Miller, Edwin F. Hunt, and Wm. H. Swiggart, all of Nashville, Tenn., on the brief), for appellant.
Roberts P. Elam, of St. Louis, Mo. (Mark D. Eagleton, of St. Louis, Mo., and Joseph H. N'orville, of Memphis, Tenn., on the brief), for appellee.
Before HICKS, SIMONS, and MARTIN, Circuit Judges.
MARTIN, Circuit Judge.
The railway company has appealed from a j adgment in the district court on the verdict of a jury awarding appellee $25,000 damages, fop personal injuries received while serving as brakeman in the employ of appellant.
The injured man and the conductor were seated in the cupola of a caboose, attached to the rear end of a freight train consisting of an engine and thirty-seven cars. The train was proceeding southwardly from Bruceton, Tennessee, to Nashville, Tennessee. The conductor was seated on the east and the appellee on the west side of the cupola, and each was keeping a lookout ahead.
A signal post and sign on the west side of the track, at a point about a half mile north of a left curve some two miles south of McEwen, directed reduction of speed to twenty miles an hour, for the reason that the roadbed and track were being repaired by a section crew in the vicinity of the curve. The reduced speed signal was observed by the application of brakes by the engineer, and the freight train entered the curve at a speed rate of around twenty miles per hour.
Suddenly, the conductor swung for a grab iron and shouted. Through the front window of the cupola, appellee observed that some of the cars ahead were off the track and that the car next to the caboose was careening. He seized two grab irons; but was hurled from the cupola with such force as to strain his back and strike his right hip against the comer of a table below. The caboose had been derailed and thrown against an embankment.
Section men helped appellee out of the caboose. After resting on the ground for a few minutes and recuperating from the shock, appellee, who did not consider himself seriously injured at the time, walked a half to three-quarters of a mile to the rear of the train to perform his flagging duties. Thence, he went into McEwen on a motor car, returned to the train and with other members of the crew rode into Nashville, some fifty-five miles away. The derailment occurred around eleven o’clock A. M., and the engine and the front 27 cars which had not been derailed arrived in the Tennessee capital city around 4:30 o’clock in the afternoon.
Appellee brought action against the carrier under the Federal Employers’ Liability Act, 45 U.S.C.A. §§ 51-59; and, resting upon the applicability of the doctrine, res ipsa loquitur, introduced at the trial only his own testimony and that of two doctors. A motion by the railway company for a directed verdict was overruled.
Whereupon, appellant introduced as witnesses the engineer and the fireman who were on the engine of the freight train at the time of the derailment; the section foreman in charge of the repair work near the point of derailment; the track supervisor of the railroad section where the derailment occurred; the foreman of an adjacent section, who, shortly after the accident, inspected the track at the point of and north of the derailment; the engineer and the fireman of a train which had passed over the derailment point without trouble shortly before the accident; the general foreman of the car department in charge of maintenance of equipment; the assistant engineer on maintenance of way; and four doctors.
It seems unnecessary to detail the evidence. Suffice it to say that the inspection of the derailed cars and caboose after the accident disclosed no defects which might have caused or contributed to the derailment. The railroad track, or roadbed, north of the derailment point was by several witnesses said to have been in good condition and alignment; and, before the accident, the repair work south of the point of derailment was being done by experienced, competent men, in accordance with customary methods.
The fireman of the partly derailed freight train, however, admitted on cross-examination the correctness of a statement made by him before the trial that, as the engine “got into the curve,” he had observed the section men working on the tracks; that “the tracks were stripped from the north end of the curve to about the center of the curve;” and that “there was no ballast holding the ties or rails down in that area,” except “the weight of the tie and rails.” On the witness stand, he stated that “the end portion of the ties was stripped,” and that the ballast in the stripped or open places was missing. He testified, further, that the stripped portion of the track was between five and six rail lengths, although the engineer of the train had estimated the unballasted portion of the track as between three or four rail lengths of thirty feet each.
When asked whether the place where he saw the ballast stripped was from the center of the curve back north toward the caboose, the fireman replied that it was north of the caboose. Moreover, he located the place where the first of the ten cars started to turn over as on the curve, although he could not say whether in the center, or not.
The section foreman who was in charge of the crew working near the point of derailment admitted that, after the accident, he was disciplined by the railroad company for violating its rules, in that he had failed to go back thirty rails from where he was working to ascertain, by inspection, whether the joints were bolted tight. While he was corroborated by two other witnesses that, after the accident, the track was in good condition at the point of derailment, he was contradicted as to this by the testimony of the railroad company’s assistant engineer of maintenance of way, who testified that, after the accident, the rails, both north and south of the point of derailment marked by the section foreman, were out of gauge.
After all the evidence in the case had been received, the motion of appellant for a directed verdict was renewed, and overruled. On this appeal, the action of the district court, in denying the motion, is assigned as error.
(1) Prior to Erie Railroad Company v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, actions under the Employers’ Liability Act were undoubtedly governed and controlled by rules of law as announced in the federal courts. Chesapeake & Ohio Railroad Co. v. Kuhn, 284 U.S. 44, 47, 52 S.Ct. 45, 76 L.Ed. 157; Western & Atlantic Railroad Co. v. Hughes, 278 U.S. 496, 498, 49 S.Ct. 231, 73 L.Ed. 473; Chicago, Milwaukee & St. Paul R. R. Co. v. Coogan, 271 U.S. 472, 474, 46 S.Ct. 564, 70 L.Ed. 1041.
No pronouncement in the Tompkins case, or in subsequent decisions of the Supreme Court, indicates that federal decisions are not still controlling in such cases. We look, therefore, to the federal courts for guidance upon questions of law presented by this appeal.
(2) Appellant asserts that the res ipsa loquitur rule has no applicability to this case; and that there is no substantial evidence to support the verdict of the jury and the judgment entered thereom
In San Juan Light & Transit Co. v. Requena, 224 U.S. 89, 98, 99, 32 S.Ct. 399, 401, 56 L.Ed. 680, the Supreme Court said: “When a thing which Causes injury, without fault of the injured person, 'is shown to be under the exclusive control of the defendant, and the injury is such as in the ordinary course of things does not occur if the one having such control uses proper care, it affords reasonable evidence, in the absence of an explanation, that the injury arose from the defendant’s want of care.”
The highest court has made it clear that while the res ipsa loquitur doctrine does not compel an inference of negligence from the facts of an occurrence, it does warrant such inference; that the facts of an occurrence furnish circumstantial evidence of negligence where direct evidence of the same may be lacking; that the evidence must be weighed, but not necessarily accepted as sufficient; that explanation or rebuttal is called for, though not necessarily required; that a case for the jury is made, though the jury verdict is not forestalled; that the defendant’s general issue is not converted into an affirmative defense; and that “when all the evidence is in, the question for the jury is, whether the preponderance is with the plaintiff.” Sweeney v. Erving, 228 U.S. 233, 240, 33 S.Ct. 416, 418, 57 L.Ed. 815.
This court has applied the doctrine in conformity with these expressions of the Supreme Court. Rayburn v. Pennsylvania R. Co., 6 Cir., 76 F.2d 505, 506.
In Lowery v. Hocking Valley Ry. Co., 6 Cir., 60 F.2d 78, a judgment in favor of a railroad carrier, in an action brought by a trainman under the Federal Employers’ Liability Act, was reversed for the failure of the district court to instruct the jury properly that an inference of negligence was permissible against the railroad from the fact of derailment. The district judge had charged the jury that, where a derailment occurs, an inference of negligence arises in the absence of any evidence or any explanation of the derailment; but, by reiterated statements, the trial judge emphasized that the burden rested upon the plaintiff to prove that the accident was occasioned by the negligence of the railroad company in the maintenance of its roadbed and equipment. The jury were instructed that, if it was found that the derailment was probably caused by a piece of plank which the train had torn from a crossing, they were to consider whether the evidence disclosed a lack of due care upon the part of the railroad company in respect to the crossing, or in respect to its roadbed or equipment.
The jurist, writing for this court, on appeal pointed out that nowhere was the jury charged as to the true effect of the res ipsa loquitur doctrine, or that they would be justified in inferring negligence from the mere fact that the plank had been picked up by the train. It was considered misleading to charge the jury that the plaintiff must prove a particular negligence causing his injury, unaided by the evidential inference in a case where the doctrine is applicable. It was repeated that res ipsa loquitur applies to cases between master and servant, as well as to those not in such relationship.
Atlantic Coast Line R. R. Co. v. Temple, 285 U.S. 143, 52 S.Ct. 334, 76 L.Ed. 670, cited by appellant, was distinguished in the Lowery case, supra, for the same reasons that it is distinguishable here.
See, also, Chesapeake & Ohio Ry. Co. v. Smith, 6 Cir., 42 F.2d 111; Baltimore & O. R. R. Co. v. Kast, 6 Cir., 299 F. 419; Byers v. Carnegie Steel Co., 6 Cir., 159 F. 347, 16 L.R.A.,N.S., 214; Cincinnati, N. O. & T. P. Ry. Co. v. South Fork Coal Co., 6 Cir., 139 F. 528, 534, 537, 1 L.R.A.,N.S., 533.
The charge of the district court in the instant case did not extend the res ipsa loquitur doctrine beyond its delimitations, as fixed by the authorities to which reference has been made.
After charging the jury correctly that the plaintiff carried the burden of proving by a preponderance of the evidence that the derailment resulted proximately from the negligence of the defendant railroad company, the district court thus emphasized, by repetition, the burden of proof which rested upon the plaintiff: “In a case of this kind, before you can predicate liability against a defendant for an act of negligence, the plaintiff must show by a preponderance of the evidence that the act of negligence was the proximate cause of the accident, or the derailment in this case, and resulting injury to the plaintiff, and by the proximate cause is meant that act or failure to act which directly and immediately and efficiently brings about the collision, or in this case the derailment, and the resulting injury.”
Then, explaining to the jury that res ipsa loquitur translates into the “thing speaks for itself,” the court charged them that where the instrumentality causing an injury is under the exclusive control of a defendant and is such an instrumentality as does not ordinarily involve injury, if those handling it exercise reasonable and ordinary care, the jury may infer from the happening of an accident, or specifically a derailment, that “the happening was due to negligence”; and that the jury could draw such inference — if fairly to be drawn — from all the facts and circumstances surrounding the derailment.
The court further instructed the jury that the allowable inference under the doctrine of res ipsa loquitur is rebuttable; and that it is permissible for evidence to be offered by the railroad company to show the degree of care which it actually used; whereupon, the question was for the jury to decide whether a preponderance of evidence, under all the proof, showed that the defendant exercised reasonable and ordinary care which had been previously explained to be due the plaintiff.
Moreover, at the request of appellant, the district judge gave the jury the following instructions: “The defendant was not obliged to explain how the derailment happened, and there is no presumption of negligence which the defendant had to overcome by proof. And you are not permitted to speculate or conjecture as to the cause of the derailment.
“The defendant was not obliged to explain or show the cause of the derailment, but only to go forward with proof that it had exercised due care to furnish safe equipment and operate the trains with due care over a properly maintained roadbed at the time and place.”
Neither in the paragraphs which have been quoted and analyzed, nor elsewhere in the charge of the district court, do we find any erroneous instruction as to the applicability or scope of the res ipsa loquitur doctrine of which appellant may justly complain.
(3) The case was properly submitted to the jury within the rule of Pennsylvania R. R. Co. v. Chamberlain, 288 U.S. 333, 343, 53 S.Ct. 391, 77 L.Ed. 819; Gunning v. Cooley, 281 U.S. 90, 94, 50 S.Ct. 231, 74 L.Ed. 720; and kindred cases. The evidence offered by appellant concededly failed to explain the cause of the derailment, other than to attribute it to “pure accident.” The entire evidence, considered in the light most favorable to the plaintiff, was not of a character to- forestall a jury verdict derived from the principle that the proven facts surrounding the derailment furnished circumstantial evidence of negligence upon the part of appellant. The testimony of the fireman on the engine which pulled the derailed caboose was alone sufficient substantial evidence to warrant submission of the case to the jury.
(4) Appellant insists that the following paragraph of the charge was prejudicially erroneous: “The court instructs the jury that if it is developed from the testimony, or from the witnesses who have within their knowledge material and pertinent facts concerning the matter under investigation who are under the control of or are available to a party to the suit, and that party fails to call them without reasonable explanation o'f his failure to do so, the jury will be warranted in inferring that their testimony, or the testimony of such witness or witnesses would be unfavorable to the party failing to call the witness or the witnesses.”
It seems unnecessary to cite authority to support the correctness of this statement as a matter of abstract law. The verity of the principle pronounced by the district court has been long recognized.
But the argument is made that, in the factual setting, the instruction was prejudicial to appellant, for the reason that, under it, the jury were compelled to reach the erroneous conclusion that employees of the railroad company, not called as witnesses, were under the exclusive control of appellant. It is contended that the jury were impressed by the instruction with the erroneous notion that it was the duty of the defendant to introduce the employees as witnesses; and that, from its failure to introduce them, the jury could infer that had they been introduced their testimony would have been unfavorable to the appellant, and that such inference could be accepted as equivalent to substantive proof.
It is urged that the instruction was one-sided, in that the jury would not apply it as referring to the plaintiff, inasmuch as he was the only witness — except doctors— in his own behalf, while the defendant introduced the witnesses best qualified to testify concerning the matters under investigation; that the members of the section crew not introduced as witnesses were equally as available to the plaintiff as to the defendant; that the Federal Employers’ Liability Act, Title 45, Section 60, U.S.C.A. (53 Stat. 1404), forbids, a railroad carrier, under severe penalty, from either preventing or attempting to prevent its employees from furnishing voluntarily information to an interested person, as to the facts incident to the injury or death of an employee; and that, therefore, the employees of a carrier are not under its control with respect to litigation. From all of this, the insistence is made that the instruction conveyed an erroneous, prejudicial implication.
A correct statement of law made by a district judge to a. jury, though deemed by a reviewing court inapplicable to the situation confronted, would seldom justify reversal. In our judgment, the expression of which complaint is made, in the case at bar, fell within the broad province of discretionary choice vested in trial judges in United States Courts, but we think the instruction would be well omitted upon re-trial of the case.
(5) Notwithstanding the fact that appellee worked regularly at his job for about nine weeks following the accident, before consulting a physician, he obtained a verdict for $25,000 damages. The only testimony introduced by the appellee as to his injuries was given by the injured man, himself; and by two doctors. In aggregate, this testimony was to the effect that, as a result of the accident, the appellee had received totally and permanently disabling injuries, unfitting him for manual labor; that he had sustained a chipped fracture of the acetabulum of the right hip; a progressive traumatic arthritis of the right sacroiliac and hip joints, with impaction of the sacroiliac joint, produced by an aggravation and activation of a pre-existing, dormant and painless condition of arthritis which caused that condition to become painful and disabling.
The opinions of appellee’s medical witnesses were sharply contradicted by those of four doctors offered as witnesses by appellant. Their testimony sum-totaled that the appellee was not suffering from traumatic arthritis and that there was no impaction of the sacroiliac joint, or fracture of the ascetabulum of the right hip. One of appellant’s medical witnesses — its chief surgeon — was a specialist in traumatic surgery, who had examined and treated appellee; and three were medical men who specialized in X-ray examination, diagnosis and treatment. The interpretation by these three expert Roentgeneologists of the X-ray pictures introduced by both appellant and appellee disclosed, in their opinion, no impaction or fracture, but revealed an abnormal congenital condition of the sacroiliac joint on appellee’s right side and a further congenital abnormality, in that he was deficient in complete lumbar vertebrae.
Dr. Henry G. Hill of Memphis, specialist in orthopedic surgery who frequently testifies as an expert, was the chief medical witness for appellee. Dr. Hill, at the instance of appellee’s attorneys, first examined the injured man, who lives in Nashville, Tennessee, about sixteen months after the accident and thirty days before the trial. From the entire setting, it is obvious that the purpose of appellee in going to Dr. Hill was to procure him as an expert witness; although the appellee was, after the examination, treated by Dr. Hill and kept in bed for two weeks.
Careful reading of the record reveals that the opinion testimony of Dr. Hill was based in part upon case history related by appellee and subjective symptoms described by him, and upon appellee’s narrative of “what other doctors found in their examinations”; and upon the physical mo'tion and actions of appellee during the physical examination.
Appellant moved to exclude the testimony of Dr. Hill, upon the ground that he arrived at his conclusion through consideration of these matters in connection with his physical examination of appellee. The motion to exclude was overruled, and exception was duly noted.
This court has previously declared that statements made to a physician to qualify him to testify as an expert witness are inadmissible in evidence. See Third Nat. Bank & Trust Co. v. United States, 6 Cir., 53 F.2d 599, 602; Hardy-Burlingham Mining Co. v. Baker, 6 Cir., 10 F.2d 277, 281. Cf. Baltimore & O. R. Co. v. Mangus, 6 Cir., 294 F. 761, 762.
The rule of evidence is directly applicable here. The scope of the testimony of Dr. Hill extended far beyond permissible limits. His testimony should have been restricted to a report of his physical examination of appellee and his opinion based on his findings from such examination, and to the answering of competent hypothetical questions propounded to him as an expert.
Upon the predicate that a motion to strike evidence must be specific and point out the exact testimony or evidence which the moving party seeks to have stricken (Ford Hydro-Electric Co. v. Neely, 7 Cir., 13 F.2d 361, 362; Puget Sound Power & Light Co. v. City of Puyallup, 9 Cir., 51 F.2d 688, 696), appellee urges that the motion of appellant to exclude the entire testimony of Dr. Hill is defective, inasmuch as portions of his testimony were competent. Elliott v. Peirsol, 1 Pet. 328, 26 U.S. 328, 338, 7 L.Ed. 164; Hill v. Wabash R. R. Co., 8 Cir., 1 F.2d 626, 631.
In our judgment, the point is not well taken. The motion was specific in stating the objections leveled against the testimony of Dr. Hill. When urging the exclusion of the testimony, the attorney for appellant stated: “ * * * His testimony conclusively shows that in arriving at his conclusions in reference to the physical examination he took into consideration, and relied upon, the statements made to him by the plaintiff at the time in reference to how he fell from the cupola of the caboose; what part of his body struck a table, and just how he received his injury. And also his statements made by the plaintiff to him in reference to how he had suffered, and the extent to which he has suffered pain and injury from day to day, and from time to time since July 14th, 1939. And also upon the ground that the evidence of Dr. Hill shows that in arriving at his conclusion he took into consideration examinations made by other doctors at other times, and what the plaintiff told him about what other doctors found, and what other doctors said in reference to his condition, upon the ground that such testimony is self serving and hearsay, and under all of the decisions I know anything about, such testimony that is based upon the patient’s own description of how he suffered pain and how he was injured, and so forth, and what other doctors said, and so forth, in connection with their examination is self serving and incompetent.”
The opinions of Dr. Hill were so obviously based on the intertwining of his physical observation of appellee by scientific methods with the subjective statements of the appellee and the case history revealed by him to the doctor as to render his conclusions incompetent. In a scientific field, it is most important that opinion testimony be carefully received within appropriate limits, lest lay judges and jurors be led to erroneous conclusions of fact.
The ruling of the district court upon the motion to exclude the testimony of Dr. Hill constituted reversible error. Like error was committed in the district court’s ruling on a similar motion with respect to the testimony of Dr. Sam P. Ross, the other medical witness introduced by ap<pellee. Inasmuch as the case must be retried, it is not necessary to discuss in detail the testimony of Dr. Ross; except to say that the doctor stated that he first saw appellee a year after the accident; that he did not actually treat the appellee as his patient but merely acted in an advisory capacity; and that his testimony was based in part on the case history related to him by appellee and on what the appellee stated concerning his visits to other doctors and what they had prescribed.
The judgment of the district court is reversed, and the case is remanded for a new trial.
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_casesource
|
158
|
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.
FAHY v. CONNECTICUT.
No. 19.
Argued October 16, 1963.
—Decided December 2, 1963.
Francis J. McNamara, Jr. argued the cause for petitioner. With him on the brief were Raymond T. Benedict and John F. Spindler.
John F. McGowan, Assistant State’s Attorney for Connecticut, argued the cause for respondent. With him on the brief was Otto J. Saur, State’s Attorney.
Mr. Chief Justice Warren
delivered the opinion of the Court.
Petitioner waived trial by jury and was convicted in a Connecticut state court of wilfully injuring a public building in violation of Connecticut General Statutes § 53-45 (a). Specifically, petitioner and his codefendant Arnold were found guilty of having painted swastikas on a Norwalk, Connecticut, synagogue. The trial took place before our decision in Mapp v. Ohio, 367 U. S. 643, but the conviction was affirmed on appeal after that decision. Connecticut v. Fahy, 149 Conn. 577, 183 A. 2d 256 (1962). At the trial of the case, a can of black paint and a paint brush were admitted into evidence over petitioner’s objection. On appeal, the Connecticut Supreme Court of Errors held that the paint and brush had been obtained by means of an illegal search and seizure. It further held that the Mapp decision applies to cases pending on appeal in Connecticut courts at the time that decision was rendered, and, therefore, the trial court erred in admitting the paint and brush into evidence. However, the court affirmed petitioner’s conviction because it found the admission of the unconstitutionally obtained evidence to have been harmless error. We granted certiorari, 372 U. S. 928 (1963).
On the facts of this case, it is not now necessary for us to decide whether the erroneous admission of evidence obtained by an illegal search and seizure can ever be subject to the normal rules of “harmless error” under the federal standard of what constitutes harmless error. Compare Ker v. California, 374 U. S. 23. We find that the erroneous admission of this unconstitutionally obtained evidence at this petitioner’s trial was prejudicial; therefore, the error was not harmless, and the conviction must be reversed. We are not concerned here with whether there was sufficient evidence on which the petitioner could have been convicted without the evidence complained of. The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction. To decide this question, it is necessary to review the facts of the case and the evidence adduced at trial.
On February 1, 1960, between the hours of 4 and 5 a. m., swastikas were painted with black paint on the steps and walls of a Norwalk synagogue. At about 4:40 a. m., Officer Lindwall of the Norwalk police saw an automobile being operated without lights about a block from the synagogue. Upon stopping the car, Lindwall found that Fahy was driving and Arnold was a passenger. Lindwall questioned Fahy and Arnold about their reason for being out at that hour, and they told him they had been to a diner for coffee and were going home. Lindwall also checked the car and found a can of black paint and a paint brush under the front seat. Having no reason to do otherwise, Lindwall released Fahy and Arnold. He followed the car to Fahy’s home. Later the same morning, Lindwall learned of the painting of the swastikas. Thereupon, he went to Fahy’s home and — without having applied for or obtained an arrest or search warrant— entered the garage under the house and removed from Fahy’s car the can of paint and the brush. About two hours later, Lindwall returned to the Fahy home, this time in the company of two other Norwalk policemen. Pursuant to a valid arrest warrant, the officers arrested Fahy and Arnold.
At trial, the court admitted the paint and brush into evidence over petitioner’s objection. We assume, as did the Connecticut Supreme Court of Errors, that doing so was error because this evidence was obtained by an illegal search and seizure and was thus inadmissible under the rule of Mapp v. Ohio. Examining the effect of this evidence upon the other evidence adduced at trial and upon the conduct of the defense, we find inescapable the conclusion that the trial court’s error was prejudicial and cannot be called harmless.
Obviously, the tangible evidence of the paint and brush was itself incriminating. In addition, it was used to corroborate the testimony of Officer Lindwall as to the presence of petitioner near the scene of the crime at about the time it was committed and as to the presence of a can of paint and a brush in petitioner’s car at that time. When Officer Lindwall testified at trial concerning that incident, the following transpired:
“Q. Will you tell the Court what you found in the car?
“A. Checking on the passengers’ side, under the front seat I found a small jar of paint and a paint brush.
“Q. Are you able to identify this object I show you?
“A. Yes.
“Q. What is it?
“A. A jar of paint I found in the motor vehicle.
“Q. I show you this object and ask you if you can identify that.
“A. Yes, sir.
“Q. What is it?
“A. A paint brush.
“Q. Where did you first see this paint brush?
“A. Under the front seat of Mr. Fahy’s car.”
The brush and paint were offered in evidence and were received over petitioner’s objection. The trial court found: “13. The police found the same can of black paint and the brush in the car which the defendants had been operating when stopped by Officer Lindwall earlier in the morning.” It can be inferred from this that the admission of the illegally seized evidence made Lindwall’s testimony far more damaging than it would otherwise have been.
In addition, the illegally obtained evidence was used as the basis of opinion testimony to the effect that the paint and brush matched the markings on the synagogue, thus forging another link between the accused and the crime charged. At trial, Norwalk Police Officer Tigano testified that he had examined the markings on the synagogue and had determined that they were put on with,black paint. He further testified that he had examined the contents of the can illegally seized from Fahy’s car and had determined that it contained black paint. Even more damaging was Tigano’s testimony that he had taken the illegally seized brush to the synagogue “to measure the width of the brush with the width of the paintings of the swastikas.” Over objection, Tigano then testified that the brush “fitted the same as the paint brush in some drawings of the lines and some it did not due to the fact the paint dripped.” Thus the trial court found: “14. The two-inch paint brush matched the markings made with black paint upon the synagogue.” In relation to this testimony, the prejudicial effect of admitting the illegally obtained evidence is obvious.
Other incriminating evidence admitted at trial concerned admissions petitioner made when he was arrested and a full confession made at the police station later. Testifying at trial, Norwalk Police Lieutenant Virgulak recounted what took place when Fahy, who was just waking up at the time, was arrested:
“I told him I [sic, he] was under arrest for painting swastikas on the synagogue. He said, 'Oh, that?’ and he appeared to lay back in bed.
“Q. Did you have any further conversation with Fahy before you reached the police station that you remember?
“A. I asked him what the reason was for painting the swastikas and he said it was only a prank and I asked him why and he said for kicks.”
At the police station, there was further questioning, and Fahy told Lieutenant Virgulak that he, Fahy, would take the responsibility for painting the swastikas. In addition, some hours after the arrest Arnold was asked to give a statement of the events, and he complied, dictating a complete confession of two typewritten pages. After this confession was admitted against Arnold at trial, Lieutenant Virgulak testified that he had read the confession to Fahy and:
“Q. After you finished reading it, will you tell us whether or not he [Fahy] made any comment?
“A. I asked him what his version was and he said the story was as I had it from Mr. Arnold. I asked him if he would like to give a written statement and he declined.”
The record does not show whether Fahy knew that the police had seized the paint and brush before he made his admissions at the time of arrest and en route to the police station. In oral argument, however, counsel for the State told the Court that Fahy “probably” had been told of the search and seizure by then. Of course, the full confession was more damaging to the defendants, and unquestionably the defendants knew the police-had obtained the paint and brush by the time they confessed. But the defendants were not allowed to pursue the illegal search and seizure inquiry at trial, because, at the time of trial, the exclusionary rule was not applied in Connecticut state courts. Thus petitioner was unable to claim at trial that the illegally seized evidence induced his admissions and confession. Petitioner has told the Court that he would so claim were he allowed to challenge the search and seizure as illegal at a new trial. And we think that such a line of inquiry is permissible. As the Court has noted in the past: “The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all.” See Silverthorne Lumber Co. v. United States, 251 U. S. 385, 392; see also Nardone v. United States, 308 U. S. 338; Wong Sun v. United States, 371 U. S. 471. Thus petitioner should have had a chance to show that his admissions were induced by being confronted with the illegally seized evidence.
Nor can we ignore the cumulative prejudicial effect of this evidence upon the conduct of the defense at trial. It was only after admission of the paint and brush and only after their subsequent use to corroborate other state’s evidence and only after introduction of the confession that the defendants took the stand, admitted their acts, and tried to establish that the nature of those acts was not within the scope of the felony statute under which the defendants had been charged. We do not mean to suggest that petitioner has presented any valid claim based on the privilege against self-incrimination. We merely note this course of events as another indication of the prejudicial effect of the erroneously admitted evidence.
From the foregoing it clearly appears that the erroneous admission of this illegally obtained evidence was prejudicial to petitioner and hence it cannot be called harmless error. Therefore, the conviction is reversed, and the cause is remanded for proceedings not inconsistent with this opinion.
It is so ordered.
Arnold was tried and convicted with petitioner Fahy, and their appeals were heard and decided together. Arnold also filed a petition for certiorari; however, that petition was dismissed on Arnold’s motion before we granted Fahy’s petition.
Connecticut’s statutory harmless error rule states that the Supreme Court of Errors need not reverse a judgment below if it finds the errors complained of “have not materially injured the appellant.” Connecticut General Statutes §52-265 (1958).
The Connecticut Supreme Court of Errors rejected petitioner’s argument that painting swastikas on a synagogue was “defacement,” not “injury,” to a public building. The statute involved was passed in 1832 and made it illegal to “injure or deface” a public building. In 1875, the words “or deface” were omitted, and the statute remained essentially unchanged thereafter. The Connecticut Supreme Court of Errors held that “injure” includes defacement and thus includes petitioner’s acts.
Question: What is the court whose decision the Supreme Court reviewed?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
006. U.S. Court of Veterans Appeals
007. U.S. Customs Court
008. U.S. Court of Appeals, Federal Circuit
009. U.S. Tax Court
010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
012. U.S. Consular Courts
013. U.S. Commerce Court
014. Territorial Supreme Court
015. Territorial Appellate Court
016. Territorial Trial Court
017. Emergency Court of Appeals
018. Supreme Court of the District of Columbia
019. Bankruptcy Court
020. U.S. Court of Appeals, First Circuit
021. U.S. Court of Appeals, Second Circuit
022. U.S. Court of Appeals, Third Circuit
023. U.S. Court of Appeals, Fourth Circuit
024. U.S. Court of Appeals, Fifth Circuit
025. U.S. Court of Appeals, Sixth Circuit
026. U.S. Court of Appeals, Seventh Circuit
027. U.S. Court of Appeals, Eighth Circuit
028. U.S. Court of Appeals, Ninth Circuit
029. U.S. Court of Appeals, Tenth Circuit
030. U.S. Court of Appeals, Eleventh Circuit
031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction)
032. Alabama Middle U.S. District Court
033. Alabama Northern U.S. District Court
034. Alabama Southern U.S. District Court
035. Alaska U.S. District Court
036. Arizona U.S. District Court
037. Arkansas Eastern U.S. District Court
038. Arkansas Western U.S. District Court
039. California Central U.S. District Court
040. California Eastern U.S. District Court
041. California Northern U.S. District Court
042. California Southern U.S. District Court
043. Colorado U.S. District Court
044. Connecticut U.S. District Court
045. Delaware U.S. District Court
046. District Of Columbia U.S. District Court
047. Florida Middle U.S. District Court
048. Florida Northern U.S. District Court
049. Florida Southern U.S. District Court
050. Georgia Middle U.S. District Court
051. Georgia Northern U.S. District Court
052. Georgia Southern U.S. District Court
053. Guam U.S. District Court
054. Hawaii U.S. District Court
055. Idaho U.S. District Court
056. Illinois Central U.S. District Court
057. Illinois Northern U.S. District Court
058. Illinois Southern U.S. District Court
059. Indiana Northern U.S. District Court
060. Indiana Southern U.S. District Court
061. Iowa Northern U.S. District Court
062. Iowa Southern U.S. District Court
063. Kansas U.S. District Court
064. Kentucky Eastern U.S. District Court
065. Kentucky Western U.S. District Court
066. Louisiana Eastern U.S. District Court
067. Louisiana Middle U.S. District Court
068. Louisiana Western U.S. District Court
069. Maine U.S. District Court
070. Maryland U.S. District Court
071. Massachusetts U.S. District Court
072. Michigan Eastern U.S. District Court
073. Michigan Western U.S. District Court
074. Minnesota U.S. District Court
075. Mississippi Northern U.S. District Court
076. Mississippi Southern U.S. District Court
077. Missouri Eastern U.S. District Court
078. Missouri Western U.S. District Court
079. Montana U.S. District Court
080. Nebraska U.S. District Court
081. Nevada U.S. District Court
082. New Hampshire U.S. District Court
083. New Jersey U.S. District Court
084. New Mexico U.S. District Court
085. New York Eastern U.S. District Court
086. New York Northern U.S. District Court
087. New York Southern U.S. District Court
088. New York Western U.S. District Court
089. North Carolina Eastern U.S. District Court
090. North Carolina Middle U.S. District Court
091. North Carolina Western U.S. District Court
092. North Dakota U.S. District Court
093. Northern Mariana Islands U.S. District Court
094. Ohio Northern U.S. District Court
095. Ohio Southern U.S. District Court
096. Oklahoma Eastern U.S. District Court
097. Oklahoma Northern U.S. District Court
098. Oklahoma Western U.S. District Court
099. Oregon U.S. District Court
100. Pennsylvania Eastern U.S. District Court
101. Pennsylvania Middle U.S. District Court
102. Pennsylvania Western U.S. District Court
103. Puerto Rico U.S. District Court
104. Rhode Island U.S. District Court
105. South Carolina U.S. District Court
106. South Dakota U.S. District Court
107. Tennessee Eastern U.S. District Court
108. Tennessee Middle U.S. District Court
109. Tennessee Western U.S. District Court
110. Texas Eastern U.S. District Court
111. Texas Northern U.S. District Court
112. Texas Southern U.S. District Court
113. Texas Western U.S. District Court
114. Utah U.S. District Court
115. Vermont U.S. District Court
116. Virgin Islands U.S. District Court
117. Virginia Eastern U.S. District Court
118. Virginia Western U.S. District Court
119. Washington Eastern U.S. District Court
120. Washington Western U.S. District Court
121. West Virginia Northern U.S. District Court
122. West Virginia Southern U.S. District Court
123. Wisconsin Eastern U.S. District Court
124. Wisconsin Western U.S. District Court
125. Wyoming U.S. District Court
126. Louisiana U.S. District Court
127. Washington U.S. District Court
128. West Virginia U.S. District Court
129. Illinois Eastern U.S. District Court
130. South Carolina Eastern U.S. District Court
131. South Carolina Western U.S. District Court
132. Alabama U.S. District Court
133. U.S. District Court for the Canal Zone
134. Georgia U.S. District Court
135. Illinois U.S. District Court
136. Indiana U.S. District Court
137. Iowa U.S. District Court
138. Michigan U.S. District Court
139. Mississippi U.S. District Court
140. Missouri U.S. District Court
141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court)
142. New Jersey Western U.S. District Court (West Jersey U.S. District Court)
143. New York U.S. District Court
144. North Carolina U.S. District Court
145. Ohio U.S. District Court
146. Pennsylvania U.S. District Court
147. Tennessee U.S. District Court
148. Texas U.S. District Court
149. Virginia U.S. District Court
150. Norfolk U.S. District Court
151. Wisconsin U.S. District Court
152. Kentucky U.S. Distrcrict Court
153. New Jersey U.S. District Court
154. California U.S. District Court
155. Florida U.S. District Court
156. Arkansas U.S. District Court
157. District of Orleans U.S. District Court
158. State Supreme Court
159. State Appellate Court
160. State Trial Court
161. Eastern Circuit (of the United States)
162. Middle Circuit (of the United States)
163. Southern Circuit (of the United States)
164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas
166. California U.S. Circuit for (all) District(s) of California
167. Connecticut U.S. Circuit for the District of Connecticut
168. Delaware U.S. Circuit for the District of Delaware
169. Florida U.S. Circuit for (all) District(s) of Florida
170. Georgia U.S. Circuit for (all) District(s) of Georgia
171. Illinois U.S. Circuit for (all) District(s) of Illinois
172. Indiana U.S. Circuit for (all) District(s) of Indiana
173. Iowa U.S. Circuit for (all) District(s) of Iowa
174. Kansas U.S. Circuit for the District of Kansas
175. Kentucky U.S. Circuit for (all) District(s) of Kentucky
176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
177. Maine U.S. Circuit for the District of Maine
178. Maryland U.S. Circuit for the District of Maryland
179. Massachusetts U.S. Circuit for the District of Massachusetts
180. Michigan U.S. Circuit for (all) District(s) of Michigan
181. Minnesota U.S. Circuit for the District of Minnesota
182. Mississippi U.S. Circuit for (all) District(s) of Mississippi
183. Missouri U.S. Circuit for (all) District(s) of Missouri
184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
Answer:
|
songer_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, Plaintiff-Appellee, v. James L. LOVE, Defendant-Appellant.
No. 78-5288.
United States Court of Appeals, Sixth Circuit.
Argued Feb. 20, 1979.
Decided April 25, 1979.
Stanley Fink, Cassell & Fink, Memphis, Tenn., for defendant-appellant.
W. J. Michael Cody, U. S. Atty., Maurice E. Franklin, Memphis, Tenn., for plaintiffappellee.
Before CELEBREZZE and LIVELY, Circuit Judges, and PHILLIPS, Senior Circuit Judge.
LIVELY, Circuit Judge.
This appeal presents a double jeopardy claim in an unusual factual setting. After granting a motion for acquittal on one count (Count 2) of an indictment, the district court submitted to the jury the remaining charge (Count 3) of receipt and possession of a firearm by one previously convicted of a felony. 18 U.S.C. § 922(h)(1). Count 1 had previously been severed and continued on motion of the defendant. After approximately three hours of deliberation the jury announced that they were unable to agree. The district court then gave a modified “Allen charge.” See Devitt & Blackmar, Federal Jury Practice and Instructions § 18.14 (3d ed. 1977). Though the defendant contends that the district court’s supplemental charge was too strong, that is not the basis of this appeal.
Somewhat later the jury returned to the courtroom and the foreman announced, “. . .we have reached a verdict of not guilty.” The court then proceeded to poll the jury on its own motion, telling the jurors, “Now, we expect your answer to be yes, but if for any reason it is no we expect you to speak up.” Each juror was then asked if the verdict announced by the foreman was his verdict. The question to the eighth juror polled produced the following colloquy:
THE COURT: Mr. Anderson, was that your verdict?
JUROR ANDERSON: No, sir.
THE COURT: Uh-oh, you didn’t vote for not guilty?
JUROR ANDERSON: I voted, but I still don’t believe it. What it is, the reason I voted not guilty, the majority took over, see, and they say so, and I went on and agreed with them. But I still don’t believe it.
THE COURT: I didn’t hear what you said.
JUROR ANDERSON: What the person was charged with, I believe they are guilty, but they — most of them said not guilty, and they said I had to go along, so I voted not guilty.
After completing the poll of the remaining jurors, the district court again addressed juror Anderson with the following result:
THE COURT: All right, now, Mr. Anderson, did you hear the instructions I gave?
JUROR ANDERSON: I did.
THE COURT: To all the jury saying you must not give up your honest conviction, but if you are persuaded that you are wrong you may change?
JUROR ANDERSON: I was persuaded to vote not guilty, but wasn’t persuaded I was wrong about my original verdict.
MR. MCTIGHE: (Prosecutor) Your Honor please, I don’t think that’s a unanimous verdict.
THE COURT: I agree, I don’t think it is a unanimous verdict, and I will declare a mistrial in this case. We will have to try it again.
MR. FINK: (Defense counsel) Your Honor please, I will address myself outside of the presence of the jury.
THE COURT: All right, I’m going to excuse the jury. Sometimes this happens, and Mr. Anderson has very frankly indicated that he didn’t agree with that verdict, and I don’t think we ought to receive that verdict in view of his statement. So I am going to declare a mistrial and the case will have to be tried over.
The defendant then moved the court to set aside the order of mistrial and reinstate the not guilty verdict. After this motion was denied, the government elected to retry the defendant on the same charge (Count 3) which had been the subject of the mistrial rather than the remaining charge (Count 1) which had been severed from the original indictment. The defendant then made a motion to dismiss Count 3 on grounds of double jeopardy. When this motion was denied the defendant perfected the present appeal.
I
It was suggested at oral argument that the appeal was premature since the defendant’s case had not been called for trial a second time, and might never be. However, the parties had been notified by the clerk of court that the case was set for retrial and the motion to dismiss was filed at that time. This was the proper way to raise the double jeopardy defense and the order denying the motion was appealable. Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977); cf. United States v. Jorn, 400 U.S. 470, 477-78, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971). Also, contrary to the government’s claim, the notice of appeal was filed within the time prescribed by Rule 4(b), Federal Rules of Appellate Procedure, and this court has jurisdiction of the appeal.
II
The first question for decision is whether it was error for the district court to poll the jury under the circumstances of this case. We have found no case in which a trial court polled a jury which had announced a not guilty verdict and then declared a mistrial upon determining that the verdict was not unanimous. Rule 31, Federal Rules of Criminal Procedure seems to permit the procedure followed in this case since it makes no distinction between guilty and not guilty verdicts. The defendant has not challenged the propriety of the district court’s action in polling the jury on its own motion after a not guilty verdict had been announced. Nevertheless, since substantial rights were affected by the district court’s action, we explore this question under the plain error provisions of Rule 52(b), Federal Rules of Criminal Procedure.
A.
This court has held that the requirement of a unanimous verdict in criminal cases is for the benefit of the defendant. In an eloquent opinion holding that a defendant in a criminal case may not waive the requirement that a verdict be unanimous, Chief Judge Charles C. Simons wrote that it is a basic tenet of due process that the presumption of innocence not be overturned except by a unanimous verdict. Hibdon v. United States, 204 F.2d 834 (6th Cir. 1953). Further, in discussing the fact that a trial judge may direct an acquittal but may never direct a verdict of guilty no matter how overwhelming the evidence may be, the Supreme Court stated in United States v. Martin Linen Supply Co., 430 U.S. 564, 572-73, 97 S.Ct. 1349, 1355, 51 L.Ed.2d 642 (1977):
The trial judge is thereby barred from attempting to override or interfere with the jurors’ independent judgment in a manner contrary to the interests of the accused.
In the same opinion Justice Brennan quoted from United States v. Ball, 163 U.S. 662, 671, 16 S.Ct. 1192, 41 L.Ed. 300 (1896), as follows:
Perhaps the most fundamental rule in the history of double jeopardy jurisprudence has been that “[a] verdict of acquittal . could not be reviewed, on error or otherwise, without putting [a defendant] twice in jeopardy and thereby violating the Constitution.” 430 U.S. at 571, 97 S.Ct. at 1354.
Thus if the announcement of the verdict by the foreman was the final verdict of the jury it would be a violation of the Constitution to require the defendant to endure another trial on Count 3.
However, the very existence of Rule 31(d) which provides for polling a jury after its verdict has been returned but before it is recorded compels the conclusion that a verdict is not final when announced. This conclusion is also implicit in opinions which have explained the purpose of permitting juries to be polled. See e. g., United States v. Edwards, 469 F.2d 1362, 1366 (5th Cir. 1972):
The object of a poll is to give each juror an opportunity, before the verdict is recorded, to declare in open court his assent to the verdict which the foreman has returned and thus to enable the court and parties “to ascertain for a certainty that each of the jurors approves of the verdict as returned.” Humphries v. District of Columbia, 174 U.S. 190, 194, 19 S.Ct. 637, 638-639, 43 L.Ed.2d 944 (1899);
and Miranda v. United States, 255 F.2d 9, 18 (1st Cir. 1958):
For the right to poll the jury is the’right to require each juror individually to state publicly his assent to or dissent from the returned verdict which has been announced in open court in his presence.
It thus appears that the purpose of the jury poll is to make certain that one of the prerequisites of a valid verdict — unanimity — has been achieved. The Fifth Circuit has held that “a jury has not reached a valid verdict until deliberations are over, the result is announced in open court, and no dissent by a juror is registered.” A footnote states, “Even at this point, where the verdict is announced to the court and no dissent is voiced, the verdict may not be accepted by the court if a poll taken before the verdict is recorded indicates lack of unanimity.” United States v. Taylor, 507 F.2d 166, 168 (5th Cir. 1975) (citations omitted). This holding reflects a generally accepted position with respect to finality of verdicts. See 5A J. Moore, Fed. Prac. § 49.07 at 2237 n. 1 (2d ed. 1977) (civil verdicts not final until announced, received by court and recorded by clerk). Since the verdict as announced was not final we conclude that the district court did not deprive the defendant of the benefit of a valid not guilty verdict in polling the jury.
B.
The defendant does question the propriety of the act of polling the jury for a different reason, contending that the poll conducted by the district court resulted in an impeachment of the verdict. However, there is a difference between impeaching a valid verdict and correcting an announced verdict which does not reflect the true action of the jury. See Young v. United States, 163 F.2d 187, 189 (6th Cir.), cert. denied, 332 U.S. 770, 68 S.Ct. 83, 92 L.Ed. 355 (1947) and 334 U.S. 859, 68 S.Ct. 1533, 92 L.Ed. 1779 (1948). Numerous cases have approved the practice of permitting a jury to correct a mistake in its announced verdict before it has been accepted and the jury discharged. See United States v. Henson, 365 F.2d 282, 284 (6th Cir.), cert. denied, 385 U.S. 974, 87 S.Ct. 513, 17 L.Ed.2d 437 (1966); Slocum v. United States, 325 F.2d 465 (8th Cir. 1963); Helms v. United States, 310 F.2d 236 (5th Cir. 1962); Shiflett v. Welch, 161 F.2d 933 (4th Cir.), cert. denied, 332 U.S. 777, 68 S.Ct. 41, 92 L.Ed. 362 (1947). In a habeas corpus action the First Circuit held that a defendant in a state criminal case was not exposed to double jeopardy or denied a jury trial when the jury was permitted to change its announced verdict of not guilty to not guilty of one charge, but guilty of a second one. Brown v. Gunter, 562 F.2d 122 (1st Cir. 1977).
Ill
Having determined that one juror had never agreed with the verdict (though he had assented to it in the jury room), the district court had the discretion under Rule 31(d), supra, either to discharge the jury or return it for further deliberations. Though the defendant objected to the discharge of the jury, he did not request that it be required to deliberate further. Instead, he requested that the verdict be reinstated. Thus the question for decision is not whether the district court chose the wrong course under Rule 31(d), but whether the circumstances which brought about the mistrial were such as to preclude a second trial on Count 3.
The Supreme Court recently addressed this issue in the following language:
The fountainhead decision construing the Double Jeopardy Clause in the context of a declaration of a mistrial over a defendant’s objection is United States v. Perez, 9 Wheat. 579, [6 L.Ed. 165] (1824). IVfr. Justice Story, writing for a unanimous Court, set forth the standards for determining whether a retrial, following a declaration of a mistrial over a defendant’s objection, constitutes double jeopardy within the meaning of the Fifth Amendment. In holding that the failure of the jury to agree on a verdict of either acquittal or conviction did not bar retrial of the defendant, Mr. Justice Story wrote:
“We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, Courts should be extremely careful how they interfere with any of the chances of life, in favour of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the Judges, under their oaths of office.” Id., at 580.
Illinois v. Somerville, 410 U.S. 458, 461, 93 S.Ct. 1066, 1069, 35 L.Ed.2d 425 (1973).
The rule that a retrial is permitted only if there was manifest necessity for declaring a mistrial or the ends of public justice would otherwise be defeated has been followed consistently by the Supreme Court. See, e. g., Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978); United States v. Jorn, 400 U.S. 470, 480-81, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971); Wade v. Hunter, 336 U.S. 684, 689-90, 69 S.Ct. 834, 93 L.Ed. 974 (1949). The same standard has recently been applied by this court in United States v. Larry, 536 F.2d 1149, cert. denied, 429 U.S. 984, 97 S.Ct. 502, 50 L.Ed.2d 595 (1976), and United States v. Johnson, 584 F.2d 148 (6th Cir. 1978). Thus it may not now be argued that the double jeopardy provision requires that every time a criminal trial ends in something less than a final judgment the defendant is entitled to an acquittal and protection from retrial. The defendant’s “valued right” to have his trial completed by the jury first chosen to hear the case must give way in some instances to “ ‘the public’s interest in fair trials designed to end in just judgments.’ ” Illinois v. Somerville, 410 U.S. at 470, 93 S.Ct. at 1073; Wade v. Hunter, 336 U.S. at 688-89. As Justice Black wrote for the Court in Wade v. Hunter, supra, 336 U.S. at 689, 69 S.Ct. at 837,
In such event [failure of the jury to agree] the purpose of law to protect society from those guilty of crimes frequently would be frustrated by denying courts power to put the defendant to trial again.
There can be no retrial when bad faith conduct by either the trial judge or the prosecutor is responsible for the mistrial. The Double Jeopardy Clause protects a defendant from harassment by successive prosecutions and from being required to forego trial before the original tribunal in order to give the prosecution a better chance to convict. United States v. Dinitz, 424 U.S. 600, 611, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976); Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963); Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961); United States v. Crouch, 566 F.2d 1311 (5th Cir. 1978); United States v. Wilson, 534 F.2d 76, 80-81 (6th Cir. 1976). There is no claim of prosecutorial or judicial overreaching in this case. However, it is the contention of the defendant that juror Anderson’s indecision was brought about by his attempt to comply with that portion of the “Allen charge” which instructs the jurors to consult with one another with a view to reaching agreement and to not hesitate to re-examine their views and change their minds. Here the jury had already reported a deadlock and if the court had not given its supplemental instruction the jury would likely have been discharged for inability to agree. If this had occurred a manifest necessity would have existed for declaring a mistrial and there would be no question of the government’s right to retry the defendant. Thus Love’s position was not worsened by an attempt to break a deadlock which ultimately failed.
We believe the district court responded to “manifest necessity” in declaring the mistrial. Under all the circumstances, where a juror had voted one way in the jury room and expressed a contrary belief with respect to guilt in open court, it is unlikely that a unanimous verdict would have been reached upon further deliberation. At least one court has found error in requiring further deliberations under somewhat similar circumstances. See United States v. Sexton, 456 F.2d 961, 967 (5th Cir. 1972).
In the present case the jury had failed to reach a verdict after lengthy deliberations. After further instructions, though it first appeared that a unanimous verdict had been reached, the poll revealed the fact that one juror did not agree with the verdict as announced. The experienced and able trial judge then exercised his discretion and declared a mistrial. This unforeseeable circumstance was not brought about by any act of the court or counsel. Though the defendant suffered the anguish of seeing his apparent acquittal vanish as a result of the jury poll, we believe “the public’s interest in fair trials designed to end in just judgments,” Wade v. Hunter, 336 U.S. at 688-89, 69 S.Ct. at 837, justified the declaration of a mistrial. Therefore, the Double Jeopardy Clause will not be violated by a retrial on Count 3.
The judgment of the district court is affirmed.
. In pertinent part, Rule 31 provides as follows:
Rule 31.
VERDICT
(a) Return. The verdict shall be unanimous. It shall be returned by the jury to the judge in open court.
(d) Poll of Jury. When a verdict is returned and before it is recorded the jury shall be polled at the request of any party or upon the court’s own motion. If upon the poll there is not unanimous concurrence, the jury may be directed to retire for further deliberations or may be discharged.
JfC * Jfc #
- Rule 52.
(b) Plain Error. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.
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_suffic
|
E
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that there was insufficient evidence for conviction?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
UNITED STATES of America, Appellee, v. UPPER POTOMAC PROPERTIES CORPORATION et al., Appellants.
No. 15106.
United States Court of Appeals, Fourth Circuit.
Argued April 6, 1971.
Decided Sept. 29, 1971.
Philip O. Foard, Baltimore, Md. (George W. White, Jr., and Buckmaster, White, Mindel & Clarke, Baltimore, Md., on brief), for appellants.
Peter R. Steenland, Atty., Dept. of Justice (Shiro Kashiwa, Asst. Atty. Gen., Edmund B. Clark, Anthony C. Liotta, Philip M. Zeidner, Attys., Dept. of Justice, and George Beall, U. S. Atty., on brief), for appellee.
Before BOREMAN, BRYAN and CRAVEN, Circuit Judges.
CRAVEN, Circuit Judge:
This is an appeal from a judgment entered on a jury verdict in the United States District Court for the District of Maryland, awarding the defendants $315,000.00 as compensation for the taking by the United States of over 2,060 acres of coal mining property. It was agreed before trial that the highest and best use of the land was for coal mining purposes, and at the trial the testimony of all witnesses was directed to the value of the property for such purposes. The questions presented us are these: (1) whether the property should be valued as of the date of the trial, as defendants contend, or as of the date of the filing of the Order for Delivery of Possession, as held by the district court; (2) whether the district judge erred in admitting into evidence testimony concerning the sale of a piece of coal mining property to the lessee of all the mineral rights to the property; and (3) whether it was error to charge the jury that if they found certain sales relied upon by the government’s expert witness to be comparable, they were the best evidence of value, but not the only evidence to be considered.
For reasons set out below we conclude that the assignments of error are without merit and affirm the judgment below.
This action was commenced on April 17, 1968, when the government filed a Complaint and a Notice of Condemnation according to 33 U.S.C. §§ 591, 594. On April 18, 1968, the district court entered ex parte an Order for Delivery of Possession. On May 14, 1968, a stipulation between the parties was filed.
The defendants argue that since the government did not file a declaration of taking under 40 U.S.C. §§ 258a-258e, nor take physical possession at any time before the trial, the value of the land is to be ascertained as of the date of the trial. However, under 33 U.S.C. § 594 the United States is entitled to the right of immediate possession provided only that subsequent compensation is assured. *When it proceeds under this title, as was done here, the United States is not required to file a Declaration of Taking under 40 U.S.C. §§ 258a-258e unless it elects to do so. United States v. Catlin, 142 F.2d 781 (7th Cir. 1944). We agree with the district court that the time of taking was on April 18, 1968, the date of the Order for Delivery of Possession. While it is true that the United States did not have actual physical possession of the land in question on that date, the stipulation of May 14, 1968, between the parties indicates that the rights of the defendants to the use of the land was limited in such a way as to be inconsistent with anything except a possessory right in the government with certain rights reserved to the defendants. Our conclusion on this issue is reinforced by paragraph 5 of the Stipulation, the proper interpretation of which we think is provided by the district court. “Only if the land had previously been taken by the United States [i. e., at the date of the Stipulation], but defendants were nevertheless permitted to use some of it, and remove coal, would it be necessary to provide specifically for reflecting, ‘the diminution in value * * * by reason [of removal] of the coal or other materials.’ ” R. 88-93, App. at 19.
We think the district judge did not abuse his discretion when he allowed the jury to consider the price paid for the coal mining operation immediately adjacent to the property in question on the theory that comparable sales- are the best evidence of value. The government appraisers testified that they took this price into consideration as a comparable sale in arriving at their figure of what the fair market value of the property in question would be. This sale, entered into in 1967 (hereinafter referred to as the Johnstown sale), was of about 5,000 acres by the Johnstown Coal Company to Douglas Coal Company for $250,000. Douglas Coal Company already had a lease on the property under which they could mine the coal on the property for 20 years, with an option to renew for ten years or until the coal was exhausted. As royalty under their lease, Douglas was to pay a per ton price which varied depending on the mining method used, but which was to be at least $625 per month.
The defendants contend that since this lease existed, evidence of the subsequent sale should have been excluded because no one other than Douglas could have bought the land and used it for coal mining. Implicit in this argument is the supposition that since Douglas had the lease, it could not have rationally paid the same price for the freehold as it would have if the lease had not existed, and therefore the purchase price in the Johnstown sale could not have reflected the fair market value of the freehold.
It is clear that the term fair market value, with reference to the land in question, is the complete freehold interest. However, it does not follow that the fair market value of the property involved in the Johnstown sale must be greater than the price paid for the land subject to the lease. This depends entirely on the terms of the lease. While it is true that only Douglas could have bought the land and used it for coal mining, whether or not it would pay more or less than the fair market value of the land would depend upon the terms of the lease.
There was conflicting testimony when evidence of this sale was first introduced whether the government appraisers knew the terms of the lease when they arrived at their conclusions as to fair market value of the property in question. However, there was also evidence that the government appraisers considered the lease to be a “fair market” lease (App. 287) and that they had concluded from conversations with the principals to the Johnstown sale that the sale was for the fair market value of the land.
If this testimony is taken as true, as it must be here, there is no reason to believe that Douglas would not have paid the value of the land as it would have been without the lease. If the royalty payments were more than the fair rental value of the land, Johnstown would have no reason to sell and the lease would actually enhance the value of the freehold. If the royalty payments had been less than the fair rental value, it is true that the freehold interest would be less valuable with the lease than without it. But if the royalty payments reflect the fair rental value in 1967, then it would seem that the lease neither added nor detracted from the value of the land.
There is testimony which would support a conclusion that the lease in question provided for royalty payments below the fair rental value in 1967, in which ease the sale price could well have been less than the fair market value of the land, since the leasehold would have value. However, there is also adequate testimony to support the conclusion that the lease in question in the Johnstown sale properly reflected the fair rental value of the land in 1967, in which case the lease could properly be disregarded when arriving at a conclusion as to fair market value of the freehold, as one of the government appraisers testified he did. App. at 261. Allowing the jury to consider whether the sale price of the Johnstown property was a comparable sale was clearly within the sound discretion of the district judge; indeed, it would have been error to exclude it for federal courts favor “a broad rule of admissibility * * * of all evidence which is relevant and material to the issues in controversy, unless there is a sound and practical reason for excluding it. * * * ” United States v. Sowards, 370 F.2d 87, 90 (10th Cir. 1966).
The defendant property owners next contend that it was error to instruct the jury, preliminarily and at the close of the case, that comparable sales are the best evidence of value. In addition, the property owners seem to argue that it was also error to allow the jury to consider the prior sales as evidence bearing on the value of the property in question because another method of valuation is generally used by members of the coal mining industry when they consider whether to buy a piece of coal bearing property. This method, termed the discounted royalty rate method, uses the product of the amount of recoverable coal in place times the price per ton of such coal, discounted over time. Defendants urge that because this method of valuation is almost universally used by people in the coal mining business any other method of valuation is inadmissible under exclusionary rules of evidence. We disagree. That it may be an acceptable method does not serve to exclude otherwise competent evidence relating to valuation. For a discussion of whether this method is an acceptable method of valuation or a deviation from the proper standard of value, see United States v. Sowards, 370 F.2d 87 (10th Cir. 1966), and cases cited.
The main thrust of defendants’ appeal is that the district judge committed error by instructing the jury that comparable sales are the best evidence of value. The property owners claim that the effect of the trial judge’s instructions was to preclude the jury from even considering the method of valuation used in the industry, and that the jury thought that the only issue to be determined was whether or not there were comparable sales. A reading of the instructions given the jury by the trial judge, however, does not support the defendants’ contention.
On numerous occasions the trial judge repeated his basic instructions that “ * * * if there are comparable sales, they are the best evidence, but they are not to be taken solely and exclusively, they are to be taken in connection with all of these other things.” App. 1147. See also App. 1148-1150. Throughout his instructions, the trial judge emphasized that comparable sales, if the jury found them in fact to be comparable, are not the only evidence of value which the jury was to consider. In addition, the trial judge specifically instructed the jury that they could also consider the price per ton of coal and the royalty rate in arriving at the amount to be paid defendants. App. 1150. We think it is clear that the trial judge’s instructions did not limit the jury in the manner that the defendants contend.
The defendants further contend that the trial judge labored under the erroneous impression that he was compelled by decisions of this court to charge the jury that comparable sales are the best evidence of value in all condemnation cases and that but for his misapprehension he would not have so charged in this case. We perceive no such error. It is clear that the trial judge did not think such an instruction was mandatory under all circumstances, but rather concluded that under the facts of this case such an instruction was appropriate and therefore mandatory. Having correctly determined that there was an issue of fact for the jury as to whether several sales relied upon by the government witness were comparable, the trial judge was then obligated to give an instruction that if found to be comparable, such sales are the best evidence of value, but not the only evidence. The law was correctly stated by Judge Boreman in United States v. Whitehurst, 337 F.2d 765, 775 (4th Cir. 1964), when he said, “[I]t is settled law that comparable sales are the best evidence of value.” See also United States v. Miller, 317 U.S. 369, 374-375, 63 S.Ct. 276, 87 L.Ed. 336 (1943), United States v. Lowrie, 246 F.2d 472, 474 (4th Cir. 1957).
The judgment of the district court will be
Affirmed.
. The lands taken were to be used for the building of the Bloomington Dam and Reservoir on the North Branch of the Potomac River in Garrett County, Maryland.
. Section 594 reads in relevant part as follows :
Whenever the Secretary of the Army, in pursuance of authority conferred on him by law, causes proceedings to be instituted in the name of the United States for the acquirement by condemnation of any lands, easements, or rights of way needed for a work of river and harbor improvements duly authorized by Congress, the United States, upon the filing of the petition in any such proceedings, shall have the right to take immediate possession of said lands, easements, or rights of way, to the extent of the interest to be acquired, and proceed with such public works thereon as have been authorized by Congress: Provided, That certain and adequate provision shall have been made for the payment of just compensation to the party or parties entitled thereto, either by previous appropriation by the United States or by the deposit of moneys or other form of security in such amount and form as shall be approved by the court in which such proceedings shall be instituted. * * *
. For example, the stipulation provides that:
Defendants further agree that no strip mining, cast off of overburden or disturbance of the earth for any reason is permitted by them except as stated below. Defendants may conduct mining operations on the property subject to following conditions:
After conditions relative to strip mining in certain areas were laid out, the stipulation continued:
In the event that the District Engineer should determine that the continued use and occupancy of the areas designated herein constitutes an interference with protect purposes the Defendants hereby agree to cease its operations immediately upon notice by the United States Army District Engineer to said effect.
. Defendants further agree that the diminution in the value of the land described in paragrapli 3 above by reason of removal of coal or other materials shall be reflected in the just compensation as determined by judicial process or by stipulated agreement between the plaintiff and defendants.
Question: Did the court rule that there was insufficient evidence for conviction?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
songer_genstand
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the agency articulate the appropriate general standard?" This question includes whether the agency interpreted the statute "correctly". The courts often refer here to the rational basis test, plain meaning, reasonable construction of the statute, congressional intent, etc. This issue also includes question of which law applies or whether amended law vs law before amendment applies. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
Michael MAROLF, Plaintiff-Appellant, v. Louis W. SULLIVAN, M.D., Secretary of Health and Human Services, Defendant-Appellee.
No. 92-1381.
United States Court of Appeals, Eighth Circuit.
Submitted Nov. 13, 1992.
Decided Dec. 11, 1992.
John A. Bowman, Davenport, I A, argued, for plaintiff-appellant.
Janet Braggs, Kansas City, MO, argued (Gene W. Shepard and Christopher D. Ha-gen, Des Moines, IA, and Frank V. Smith, III, and Mary Day Purcell, Kansas City, MO, on the brief), for defendant-appellee.
Before RICHARD S. ARNOLD, Chief Judge, LOKEN, Circuit Judge, and ROSENBAUM, District Judge.
The HONORABLE JAMES M. ROSENBAUM, United States District Judge for the District of Minnesota, sitting by designation.
LOKEN, Circuit Judge.
Michael R. Marolf appeals the district court judgment affirming the decision of the Secretary of Health and Human Services to deny Social Security disability benefits. The issue is whether Marolf proved that he has a medically determinable seizure disorder. We affirm.
Marolf, a radio and computer repairman, filed his application for disability benefits in May 1988, claiming that he became disabled on November 1, 1987 (later amended to October 1, 1987), because persistent though minor blackouts and seizures had left him unable to drive a car or work on electronic equipment. At the administrative hearing, Marolf testified that he has no physical or mental impairments other than the blackouts. Marolf s wife testified that he has numerous, short-term blackouts and seizures while awake and asleep:
He has — well, what we call his blackouts where he goes totally out and does his jerking, or he has conscious blackouts where he’s awake and talking and he won’t remember what he’s done.
Marolf testified that he has no recollection of the blackouts but knows he has them from what his wife tells him.
Extensive medical study and treatment have failed to determine the cause of Ma-rolf’s condition. An initial electroencephalogram (EEG) showed a possible abnormality, and his treating physician placed Marolf on anti-seizure medication. When he complained of continuing seizures, Marolf was then extensively evaluated at the Mayo Clinic. The prior EEG was reviewed by a Mayo Clinic neurologist who determined that the observed data “do not represent potentially epileptogenic activity.” Prolonged EEG investigation, neurological evaluation, and an MRI scan at the Clinic proved normal. No sleep disorder was found, and Marolf’s medications were eliminated without causing problems. A Mayo Clinic physician concluded: “the current EEG confirms the clinical suspicion that the seizures are likely nonepileptic psychogenic or stress related seizures.”
After thoroughly reviewing this extensive medical evidence, the administrative law judge denied disability benefits because Marolf “has failed to show the existence of any medically determinable physical or mental impairment.” The ALJ explained:
This is not a case where the objective evidence does not support subjective complaints. It is one where, time and time again, the subjective complaints of blackouts have been refuted by the objective medical evidence and have been proved conclusively wrong. Moreover, investigation of a possible psychological etiology for the claimant’s “blackouts” has not disclosed the existence of a mental impairment_ [A treating physician’s] prescription of anti-convulsant medications [was] apparently based on the statements of the claimant and his wife and not on any objective findings. The ... initial [EEG] tests were reviewed by a team of specialists at the Mayo Clinic and, although these tests were considered minimally abnormal by local physicians, this team of specialists in Rochester found them to be completely within normal limits. The claimant has undergone video, sleep, awake, ambulatory, nighttime, and every other possible combination of testing, with no abnormalities recorded.
The Secretary’s Appeals Council denied review of the AU’s adverse determination, the district court affirmed the Secretary’s denial of benefits, and this appeal followed.
On appeal, Marolf argues that the AU improperly rejected the subjective testimony of Marolf and his wife as to the seizures and blackouts, citing our cases dealing with pain credibility findings, such as Penn v. Sullivan, 896 F.2d 313 (8th Cir.1990). However, in those cases, the claimants had medically determinable impairments; the question was the extent to which subjective complaints of pain would be used in determining the severity of those impairments and their impact on the claimants’ ability to work. Here, on the other hand, the question is whether Marolf has a medically determinable impairment.
The statute defines disability as the “inability to engage in any substantial gainful activity [for at least twelve months] by reason of any medically determinable physical or mental impairment.” 42 U.S.C. § 423(d)(1)(A). A medically determinable impairment is one “that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3); see also 20 C.F.R. § 404.-1527(a)(1). In 1984, Congress expressly provided that a claimant’s testimony cannot, by itself, satisfy this medical component of the statutory standard:
An individual’s statement as to pain or other symptoms shall not alone be conclusive evidence of disability as defined in this section; there must be medical signs and findings, established by medically acceptable clinical or laboratory diagnostic techniques, which show the existence of a medical impairment ... which could reasonably be expected to produce the pain or other symptoms alleged....
42 U.S.C. § 423(d)(5)(A). Although this amendment expired of its own terms on January 1,1987, it was intended to codify a regulation that is still in effect. See 20 C.F.R. § 404.1529; Bates v. Sullivan, 894 F.2d 1059, 1071 (9th Cir.1990) (Wright & Wallace, JJ., concurring). Thus, proof of a disabling impairment must be supported by at least some objective medical evidence. See Moothart v. Bowen, 934 F.2d 114,116-17 (7th Cir.1991); Elam v. Railroad Retirement Bd., 921 F.2d 1210, 1214-16 (11th Cir.1991).
After careful review of the record, we conclude that substantial evidence supports the AU’s conclusion that Marolf failed to prove a medically determinable impairment. We have no doubt that epileptic seizures, both major and minor, can be medically determinable disabling impairments. See, e.g., Braswell v. Heckler, 733 F.2d 531, 532 (8th Cir.1984) (medically diagnosed “post operative brain surgery epilepsy”), and Bradley v. Bowen, 660 F.Supp. 276, 280 (W.D.Ark.1987) (physician witnesses linked “calcifications and lesions in the right hemisphere” of claimant’s brain to her seizures). Indeed, in carefully defined situations, such disorders are presumptively disabling “listed impairments.” See 20 C.F.R. Part 404, Subpart P, App’x 1, §§ 11.02, 11.03. Here, on the other hand, the AU found that extensive medical evidence — the “clinical and laboratory diagnostic techniques” mandated by statute — refutes the existence of the seizure impairment that Marolf and his wife described by symptom.
Because substantial evidence supports the AU’s finding that Marolf does not suffer from a medically determinable physical or mental impairment, the Secretary’s decision denying Social Security disability benefits must be affirmed.
. The HONORABLE HAROLD D. VIETOR, Chief Judge of the United States District Court for the Southern District of Iowa.
Question: Did the agency articulate the appropriate general standard? This question includes whether the agency interpreted the statute "correctly". The courts often refer here to the rational basis test, plain meaning, reasonable construction of the statute, congressional intent, etc. This issue also includes question of which law applies or whether amended law vs law before amendment applies.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_sentence
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E
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What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court conclude that some penalty, excluding the death penalty, was improperly imposed?" 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".
Luther M. O’BRIEN, Appellant, v. UNITED STATES of America, Appellee.
No. 25376.
United States Court of Appeals Fifth Circuit.
May 19, 1969.
Thomas M. Haas, Mobile, Ala., for appellant.
Don Conway, Asst. TJ. S. Atty., Mobile, Ala., for appellee.
Before GEWIN and GODBOLD, Circuit Judges, and CHOATE, District Judge.
GEWIN, Circuit Judge:
A jury found the appellant guilty of charges contained in a two-count indictment and he was given concurrent one-year sentences under each count. Count One charged that he unlawfully retained and concealed a stolen print-punch money order issuing machine and United States postal money orders with the intent to convert them to his use and gain in violation of 18 U.S.C. § 641. Count Two charged him with unlawfully, knowingly and wilfully appropriating the same property to his own use in violation of 18 U.S.C. § 1707.
Appellant contends that the following errors were committed: (1) the district judge questioned the witnesses excessively and inappropriately; (2) the court should have ordered a postal inspector to grant an interview to appellant’s counsel for the purpose of determining whether a government witness had made prior inconsistent oral statements; (3) improper evidence was admitted; (4) the Assistant United States Attorneys made improper arguments to the jury; and (5) the evidence was not sufficient to sustain the conviction.
The conduct of the trial judge must be measured by a standard of fairness and impartiality. He is not a mere moderator. It is his duty to conduct an orderly trial and to make certain as far as possible that there is no misunderstanding of the testimony of the witnesses. Considering the conduct of the trial in its entirety, we conclude that the trial judge did not commit error.
After a Government witness testified on direct examination, counsel for appellant requested an opportunity “to make a request under the statute of the Jenkes [sic] case.” Out of the presence of the jury but in the presence of the defendant, the Government’s attorneys, the appellant’s attorney and Postal Inspector Brown, the court considered counsel’s request thoroughly. The Government was then requested to “turn over to defense counsel any statement alleged to have been made by this witness.” The court went into the matter carefully and cautiously, but no “statement” within the purview of the Jencks Act, 18 U.S.C. § 3500, or any decisions interpreting it, was shown to exist. Counsel for appellant then requested the court to instruct the postal inspector to confer with him “so I can find out from him what previous statements, if any, this witness had made to someone for the purpose of cross examination.” The postal inspector did not testify before the jury during the trial. The court stated that it would not order or instruct the inspector to submit or not to submit to the requested interview. The record does not show what effort, if any, counsel for appellant made to discuss the case with the inspector or that the inspector had refused to discuss the matter with appellant’s counsel.
The Supreme Court has placed an affirmative duty on the trial judge to administer the Jeneks Act. Final decision as to production must rest within “the good sense and experience” of the district judge, guided by the standards outlined in Supreme Court decisions. We find no violation of the Jeneks Act or any other error in the rulings of the district judge on this issue.
The admissibility of evidence in the trial of criminal cases is governed by rule 26 of the Federal Rules of Criminal Procedure. The rule requires the application of the common law as interpreted by the Federal courts in the light of reason and experience, except where Congress or any of the other criminal rules provide otherwise. The chief test is relevance and materiality. In ruling on evidentiary questions the trial court has wide latitude and its rulings thereon should not be disturbed in the absence of an abuse of discretion. We are unable to conclude that the trial court committed error with respect to such rulings in this case.®
During the jury argument there were objections by both the Government and the appellant. The trial court ruled on all objections made and, in our view, correctly instructed the jury. During oral argument before this court, counsel for appellant raised an additional question about one argument made by the prosecution to which he did not object in the trial court. We have carefully reviewed all of the rulings of the trial judge and find them to be without error.
Those arguments to which no objection was made do not constitute plain or obvious error.
Finally, we come to the contention that the evidence was not sufficient to sustain the conviction. At the conclusion of the Government’s case, the appellant moved for a judgment of acquittal and rested his case without offering evidence. The district court denied the motion and appellant here attacks that ruling. In considering this contention of appellant — perhaps his most important one — we do not retry the case or substitute our judgment for that of the jury. We must review all of the evidence as a whole in the light most favorable to the Government and determine whether a reasonable-minded jury could reasonably conclude that the defendant was guilty beyond a reasonable doubt. The evidence in this case was largely circumstantial. Such evidence must be consistent with the guilt of the accused and also inconsistent with every reasonable hypothesis of his innocence.
The evidence clearly shows that in September 1965 the United States Post Office in Nesbitt, Mississippi was burglarized and a print-punch money order machine and approximately 600 United States Postal Money Order forms were stolen. The postmaster estimated that the money order machine weighed approximately forty to fifty pounds. A very reluctant Government witness, Hinds, testified that he was present when the machine and money orders were stolen. The money orders were taken to West Memphis, Arkansas and were divided four ways among the witness and three other persons identified as Washam, Sweeney and Henderson. Hinds testified that the name of appellant was mentioned in a conversation with Washam about the stolen property. He further testified that he saw appellant with Washam in Memphis, Tennessee. When asked the question, “Did you see Washam give the defendant, O’Brien, one hundred and five dollars to make a payment on his automobile to induce him to come down here to Mobile and pass the postal money orders?” Hinds responded, “I believe there was some money gave [sic] as an automobile payment. Now what was the other part of the question?” He testified that, while there had been talk about going to Mobile, nothing was said about O’Brien passing money orders. At this point the elicited testimony shifted the scene from Memphis to Mobile, Alabama.
Government witness Bolling testified that she met the appellant for the first time when he, Washam and Sweeney came to her home in Mobile in September 1965. The three of them were traveling together in a late model Cadillac automobile. When the three entered her home Washam and Sweeney were carrying two boxes. She did not see the contents of the boxes but described one as being obviously heavier than the other. O’Brien said nothing but he was in the presence and hearing of Washam and Sweeney as they told Mrs. Bolling that the boxes contained money orders. They, Washam and Sweeney, importuned her to go with them to pass the money orders. They promised to buy her clothes, hairpieces, wigs and other things to disguise her appearance. She was assured that the scheme was fool-proof and that she would not be apprehended. They told her that the money orders were those taken from the Nesbitt Post Office. She did not accompany them as requested. Finally the three, Washam, Sweeney and the appellant, left together in the car, taking the two boxes with them.
Tested by the principles we have outlined above, we conclude that there was sufficient evidence to sustain a verdict of guilty under Count One. Since the one-year sentence imposed under Count Two is concurrent with the one-year sentence under Count One, we do not reach the question of the sufficiency of the evidence to support the verdict of guilty under Count Two.
Judgment affirmed.
. Appellant’s brief does not specify errors with certainty. Under the caption “Issues Presented For Review” is the following :
1. Whether or not the trial court erred in its extensive examination of witnesses for the prosecution.
2. Did the court below commit error in refusing counsel for the defendant, his request for an out of court interview with an investigator for the prosecution ?
3. Was it error for the trial court to deny defendant’s motion for judgment of acquittal?
We have listed the contentions of the appellant as set forth in other portions of his brief and in oral argument.
. Kyle v. United States, 402 F.2d 443 (,5th Cir. 1968); Estrada v. United States, 392 F.2d 529, 530 (9th Cir. 1968); United States v. Ostendorff, 371 F.2d 729, 732 (4th Cir. 1967).
. The inspector did testify in connection with fifth amendment claims of witnesses, but he did not appear as a witness against the appellant.
. Palermo v. United States, 360 U.S. 343, 354-355, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959); Campbell v. United States, 365 U.S. 85, 89, 81 S.Ct. 421, 5 L.Ed.2d 428 (1961).
. Williamson v. United States, 365 E.2d 12 (5th Cir. 1966).
. Cotton v. United States, 361 F.2d 673, 676 (8th Cir. 1966); Phillips v. United States, 356 F.2d 297, 301 (9th Cir. 1965); Holt v. United States, 342 F.2d 163, 166 (5th Cir. 1965).
. Kyle v. United States, supra; Samuels v. United States, 398 F.2d 964 (5th Cir. 1968); Garcia v. United States, 315 F.2d 133 (5th .Cir. 1963); Dunn v. United States, 307 F.2d 883 (5th Cir. 1962).
. Montoya v. United States, 402 F.2d 847 (5th Cir. 1968); Weaver v. United States, 374 F.2d 878 (5th Cir. 1967); Williamson v. United States, 365 F.2d 12 (5th Cir. 1966); Strauss v. United States, 311 F.2d 926 (5th Cir. 1963); McFarland v. United States, 273 F.2d 417 (5th Cir. 1960).
. Hirabayashi v. United States, 320 U.S. 81, 85, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943); Mishan v. United States, 345 F.2d 790, 791 (5th Cir. 1965); Fabianich v. United States, 112 U.S.App.D.C. 319, 302 F.2d 904, 905 (1962); Clark v. United States, 267 F.2d 99, 101 (4th Cir. 1959).
Question: Did the court conclude that some penalty, excluding the death penalty, was improperly imposed?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
sc_decisiontype
|
A
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the type of decision made by the court among the following: Consider "opinion of the court (orally argued)" if the court decided the case by a signed opinion and the case was orally argued. For the 1791-1945 terms, the case need not be orally argued, but a justice must be listed as delivering the opinion of the Court. Consider "per curiam (no oral argument)" if the court decided the case with an opinion but without hearing oral arguments. For the 1791-1945 terms, the Court (or reporter) need not use the term "per curiam" but rather "The Court [said],""By the Court," or "By direction of the Court." Consider "decrees" in the infrequent type of decisions where the justices will typically appoint a special master to take testimony and render a report, the bulk of which generally becomes the Court's decision. This type of decision usually arises under the Court's original jurisdiction and involves state boundary disputes. Consider "equally divided vote" for cases decided by an equally divided vote, for example when a justice fails to participate in a case or when the Court has a vacancy. Consider "per curiam (orally argued)" if no individual justice's name appears as author of the Court's opinion and the case was orally argued. Consider "judgment of the Court (orally argued)" for formally decided cases (decided the case by a signed opinion) where less than a majority of the participating justices agree with the opinion produced by the justice assigned to write the Court's opinion.
HYNES et al. v. MAYOR AND COUNCIL OF BOROUGH OF ORADELL et al.
No. 74-1329.
Argued December 10, 1975
Decided May 19, 1976
Burger, C. J., delivered the opinion of the Court, in which Stewart, White, Blackmun, and Powell, JJ., joined and in Part 3 of which Brennan, J., joined. Brennan, J., filed an opinion concurring in part, in which Marshall, J., joined, post, p. 623. Rehn-qtjist, J., filed a dissenting opinion, post, p. 630. Stevens, J., took no part in the consideration or decision of the case.
Telford Taylor argued the cause for appellants. With him on the brief were Kenneth Simon and Robert Funicello.
James A. Major argued the cause for appellees. On the brief was Everett I. Smith.
Mr. Chief Justice Burger
delivered the opinion of the Court.
The question presented in this case is whether a municipal ordinance requiring advance notice to be given to the local police department by “[a]ny person desiring to canvass, solicit or call from house to house ... for a recognized charitable cause . . . or . . . political campaign or cause ... in writing, for identification only” violates the guarantees of freedom of speech and due process of law embodied in the Fourteenth Amendment.
(1)
The Borough of Oradell, N. J., has enacted two ordinances that together regulate most forms of door-to-door canvassing and solicitation. A broad ordinance, No. 573, requires all solicitors to obtain a permit from the borough clerk, by making a formal application, accompanied by a description and photograph of the applicant, the description and license number of any automobile to be used in soliciting, a driver’s license, and other data. The ordinance apparently requires that the chief of police approve issuance of the permit.
The ordinance at issue here, Ordinance No. 598A, is an amendment to this broader scheme, and imposes no permit requirement; it covers persons soliciting for “a recognized charitable cause, or any person desiring to canvass, solicit or call from house, to house for a Federal, State, County or Municipal political campaign or cause.” Ordinance No. 598A also applies to “representatives of Borough Civic Groups and Organizations and any veterans honorably discharged or released under honorable circumstances” from the Armed Forces. Those covered by this ordinance are required only to “notify the Police Department, in writing, for identification only.” Once given, the notice is “good for the duration of the campaign or cause.”
Appellants are Edward Hynes, a New Jersey state assemblyman whose district was redrawn in 1973 to include the Borough of Oradell, and three Oradell registered voters. They brought suit in the Superior Court of Bergen County, N. J., seeking a declaration that Ordinance No. 598A was unconstitutional and an injunction against its enforcement. Appellant Hynes alleged that he wished to campaign for re-election in Oradell. The other appellants alleged either that they wished to canvass door to door in the borough for political causes or that they wished to speak with candidates who campaigned in Oradell. Each appellant claimed that the ordinance would unconstitutionally restrict such activity.
The Superior Court held the ordinance invalid for three reasons. First, the court noted that it contained no penalty clause, and hence was unenforceable under New Jersey law; second, the court held that the ordinance was not related to its announced purpose — the prevention of crime — since it required only candidates and canvassers to register. Finally, the court concluded that the ordinance was vague and overbroad — unclear “as to what is, and what isn’t required” of those who wished to canvass for political causes. The Appellate Division of the Superior Court affirmed, reaching and accepting only the first ground for the trial court’s decision.
The Supreme Court of New Jersey reversed. 66 N. J. 376, 331 A. 2d 277 (1975). It noted that a penalty clause, enacted during the pendency of the appeal, cured the defect that had concerned the Appellate Division. Relying largely on a decision in a case dealing with a similar ordinance, Collingswood v. Ringgold, 66 N. J. 350, 331 A. 2d 262 (1975), appeal docketed, No. 74-1335, the court held that Ordinance No. 598A was a legitimate exercise of the borough’s police power, enacted to prevent crime and to reduce residents’ fears about strangers wandering door to door. The ordinance regulated conduct— door-to-door canvassing — as well as speech, and in doing so “it could hardly be more clear.” 66 N. J., at 380, 331 A. 2d, at 279. The ordinance, the court thought, imposed minimal requirements which did not offend free speech interests:
“It may be satisfied in writing, suggesting that resort may be had to the mails. It need be fulfilled only once for each campaign. There is no fee. The applicant does not have to obtain or carry a card or license. And perhaps most importantly, no discretion reposes in any municipal official to deny the privilege of calling door to door. The ordinance is plainly an identification device in its most basic form.” Ibid.
Two of the court’s seven members dissented. One justice thought the ordinance “plain silly” as a crime-prevention measure, for the reasons given by the trial court. Id., at 382, 331 A. 2d, at 280; another justice thought that the “ordinance has the potential to have a significant chilling effect on the exercise of first amendment rights and thus infringes on these rights.” Id., at 389, 331 A. 2d, at 284.
(2)
We are not without guideposts in considering appellants’ First Amendment challenge to Ordinance No. 598A. “Adjustment of the inevitable conflict between free speech and other interests is a problem as persistent as it is perplexing,” Niemotko v. Maryland, 340 U. S. 268, 275 (1951) (Frankfurter, J., concurring in result), and this Court has in several cases reviewed attempts by municipalities to regulate activities like canvassing and soliciting. Regulation in this area “must be done, and the restriction applied, in such a manner as not to intrude upon the rights of free speech and free assembly,” Thomas v. Collins, 323 U. S. 516, 540-541 (1945). But in these very cases the Court has consistently recognized a municipality’s power to protect its citizens from crime and undue annoyance by regulating soliciting and canvassing. A narrowly drawn ordinance, that does not vest in municipal officials the undefined power to determine what messages residents will hear, may serve these important interests without running afoul of the First Amendment.
In Lovell v. Griffin, 303 U. S. 444 (1938), the Court held invalid an ordinance that prohibited the distribution of “literature of any kind . . . without first obtaining written permission from the City Manager,” id., at 447. The ordinance contained “no restriction in its application with respect to time or place,” and was “not limited to ways which might be regarded as inconsistent with the maintenance of public order or as involving disorderly conduct, the molestation of the inhabitants, or the misuse or littering of the streets.” Id., at 451.
A year later, in Schneider v. State, 308 U. S. 147 (1939), the Court held unconstitutional an Irvington, N. J., ordinance that dealt specifically with house-to-house canvassers and solicitors. The ordinance required them to obtain a permit, which would not issue if the chief of police decided that “the canvasser is not of good character or is canvassing for a project not free from fraud.” Id., at 158. Because the Court concluded that the canvasser’s “liberty to communicate with the residents of the town at their homes depends upon the exercise of the officer’s discretion,” id., at 164, the Court held the ordinance invalid. In Cantwell v. Connecticut, 310 U. S. 296 (1940), the Court held that a similar permit ordinance, as applied to prevent Jehovah’s Witnesses from soliciting door to door, infringed upon the right to free exercise of religion, guaranteed by the First and Fourteenth Amendments. And in Martin v. Struthers, 319 U. S. 141 (1943), the Court struck down a municipal ordinance that made it a crime for a solicitor or canvasser to knock on the front door of a resident’s home or ring the doorbell. See also Staub v. City of Baxley, 355 U. S. 313 (1958).
In reaching these results, the Court acknowledged the valid and important interests these ordinances sought to serve. In Martin, supra, at 144, Mr. Justice Black writing for the Court stated:
“Ordinances of the sort now before us may be aimed at the protection of the householders from annoyance, including intrusion upon the hours of rest, and at the prevention of crime. Constant callers, whether selling pots or distributing leaflets, may lessen the peaceful enjoyment of a home as much as a neighborhood glue factory or railroad yard which zoning ordinances may prohibit. . . . In addition, burglars frequently pose as canvassers, either in order that they may have a pretense to discover whether a house is empty and hence ripe for burglary, or for the purpose of spying out the premises in order that they may return later. Crime prevention may thus be the purpose of regulatory ordinances.”
As Mr. Justice Black suggested, the lone housewife has no way of knowing whether the purposes of the putative solicitor are benign or malignant, and even an innocuous caller “may lessen the peaceful enjoyment of a home.” Ibid. In his view a municipality “can by identification devices” regulate canvassers in order to deter criminal conduct by persons “posing as canvassers,” id., at 148, relying on. the Court’s statement in Cantwell, supra, at 306:
“Without doubt a State may protect its citizens from fraudulent solicitation by requiring a stranger in the community, before permitting him publicly to solicit funds for any purpose, to establish his identity and his authority to act for the cause which he purports to represent.”
These opinions of the Court and the dissenting opinions found common ground as to the important municipal interests at stake. See Martin v. Struthers, supra, at 152 (Frankfurter, J., dissenting); id., at 154 (Reed, J., dissenting); Douglas v. Jeannette, 319 U. S. 157, 166 (1943) (Jackson, J., dissenting in Martin v. Struthers). Professor Zechariah Chafee articulated something of the householder's right to be let alone, saying:
“Of all the methods of spreading unpopular ideas, [house-to-house canvassing] seems the least entitled to extensive protection. The possibilities of persuasion are slight compared with the certainties of annoyance. Great as is the value of exposing citizens to novel views, home is one place where a man ought to be able to shut himself up in his own ideas if he desires.” Free Speech in the United States 406 (1954).
Professor Chafee went on to note: “[These cases] do not invalidate all ordinances that include within their scope . . . doorway dissemination of thought. Several sentences in the opinions state that ordinances suitably designed to take care of legitimate social interests are not void.” Id., at 407.
There is, of course, no absolute right under the Federal Constitution to enter on the private premises of another and knock on a door for any purpose, and the police power permits reasonable regulation for public safety. We cannot say, and indeed appellants do not argue, that door-to-door canvassing and solicitation are immune from regulation under the State’s police power, whether the purpose of the regulation is to protect from danger or to protect the peaceful enjoyment of the home. See Rowan v. Post Office Dept., 397 U. S. 728, 735-738 (1970).
(3)
There remains the question whether the challenged ordinance meets the test that in the First Amendment area “government may regulate . . . only with narrow specificity.” NAACP v. Button, 371 U. S. 415, 433 (1963). As a matter of due process, “[n]o one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids.” Lanzetta v. New Jersey, 306 U. S. 451, 453 (1939). The general test of vagueness applies with particular force in review of laws dealing with speech. “[S] tricter standards of permissible statutory vagueness may be applied to a statute having a potentially inhibiting effect on speech; a man may the less be required to act at his peril here, because the free dissemination of ideas may be the loser.” Smith v. California, 361 U. S. 147, 151 (1959). See also Buckley v. Valeo, 424 U. S. 1, 76-82 (1976); Broadrick v. Oklahoma, 413 U. S. 601, 611-612 (1973).
Notwithstanding the undoubted power of a municipality to enforce reasonable regulations to meet the needs recognized by the Court in the cases discussed, we conclude that Ordinance No. 598A must fall because in certain respects “men of common intelligence must necessarily guess at its meaning.” Connally v. General Constr. Co., 269 U. S. 385, 391 (1926). Since we conclude that the ordinance is invalid because of vagueness, we need not reach the other arguments appellants advance.
First, the coverage of the ordinance is unclear; it does not explain, for example, whether a “recognized charitable cause” means one recognized by the Internal Revenue Service as tax exempt, one recognized by some community agency, or one approved by some municipal official. While it is fairly clear what the phrase “political campaign” comprehends, it is not clear what is meant by a “Federal, State, County or Municipal... cause.” Finally, it is not clear what groups fall into the class of “Borough Civic Groups and Organizations” that the ordinance also covers.
Second, the ordinance does not sufficiently specify what those within its reach must do in order to comply. The citizen is informed that before soliciting he must “notify the Police Department, in writing, for identification only.” But he is not told what must be set forth in the notice, or what the police will consider sufficient as “identification.” This is in marked contrast to Ordinance No. 573 which sets out specifically what is required of commercial solicitors; it is not clear that the provisions of Ordinance 573 extend to Ordinance 598A. See n. 1, supra. Ordinance No. 598A does not have comparable precision. The New Jersey Supreme Court construed the ordinance to permit one to send the required identification by mail; a canvasser who used the mail might well find — too late — that the identification he provided by mail was inadequate. In this respect, as well as with respect to the coverage of the ordinance, this law “may trap the innocent by not providing fair warning.” Grayned v. City of Rockford, 408 U. S. 104, 108 (1972). Nor does the ordinance “provide explicit standards for those who apply” it. Ibid. To the extent that these ambiguities and the failure to explain what “identification” is required give police the effective power to grant or deny permission to canvass for political causes, the ordinance suffers in its practical effect from the vice condemned in Lovell, Schneider, Cantwell, and Staub. See also Papachristou v. City of Jacksonville, 405 U. S. 156, 162 (1972); Coates v. City of Cincinnati, 402 U. S. 611, 614 (1971); Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U. Pa. L. Rev. 67, 75-85 (1960).
The New Jersey Supreme Court undertook to give the ordinance a limiting construction by suggesting that since the identification requirement “may be satisfied in writing, . . . resort may be had to the mails,” 66 N. J., at 380, 331 A. 2d, at 279, but this construction of the ordinance does not explain either what the law covers or what it requires; for example, it provides no clue as to what is a “recognized charity”; nor is political “cause” defined. Cf. Colten v. Kentucky, 407 U. S. 104, 110-111 (1972); Chaplinsky v. New Hampshire, 315 U. S. 568 (1942); Cox v. New Hampshire, 312 U. S. 569 (1941). Even assuming that a more explicit limiting interpretation of the ordinance could remedy the flaws we have pointed out— a matter on which we intimate no view — we are without power to remedy the defects by giving the ordinance constitutionally precise content. Smith v. Goguen, 415 U. S. 566, 575 (1974).
Accordingly, the judgment is reversed, and the case is remanded to the Supreme Court of New Jersey for further proceedings not inconsistent with this opinion.
It is so ordered.
Mr. Justice Stevens took no part in the consideration or decision of this case.
Ordinance No. 573 provides in relevant part:
“Section 1. Permit Required
“No person shall canvass or solicit or call from house to house in the Borough to sell or attempt to sell goods by sample or to take or attempt to take orders for the future delivery of goods, merchandise, wares, or any personal property of any nature whatsoever, or take or attempt to take orders for services to be furnished or performed in the future, without first having received a written permit therefor.
“Sections. Application for Permit: Contents Thereof
“a) Any person desiring a permit to canvass or solicit in the Borough shall file, on a form to be supplied by the Borough Clerk, an application with the Borough Clerk stating:
"(1) Name of applicant;
“(2) Permanent home address;
"(3) Name and address of employer or firm represented;
"(4) Place or places of residence of the applicant for the preceding three years;
“(5) Date on which he desires to commence canvassing or soliciting;
“(6) Nature of merchandise to be sold or offered for sale or the nature of the services to be furnished;
“(7) Whether or not the applicant has ever been convicted of a crime, misdemeanor, or violation of any ordinance concerning canvassing or soliciting, and if so, when, where and the nature of the offense;
“(8) Names of other communities in New Jersey in which applicant has worked as a solicitor or canvasser in the past 2 years.
“b) Said application shall also be accompanied by a letter or other written statement from the individual, firm or corporation employing the applicant, certifying that the applicant is authorized to act as the employer’s representative.
“c) No such application shall be filed more than 3 months prior to the time such canvassing or soliciting shall commence.
“Section 4- Investigation: Issuance of Permit
“The Borough Clerk shall give a copy of the application to the Chief of Police who shall cause such investigation to be made of the applicant’s business and moral character as he deems necessary for the protection of the public good. He shall use any information available in other New Jersey cities, towns or boroughs, where the applicant has canvassed or solicited within 2 years last past.
“Section 6. Penalty
“Any person, firm or corporation violating any provision of this ordinance shall, upon conviction thereof, be fined in an amount not exceeding $500.00 or be imprisoned in the County Jail for a period not exceeding ninety (90) days, or be both fined and imprisoned. Each day said violation is permitted or is permitted to continue, shall constitute a separate offense and shall be subject to a penalty hereunder.”
In Collingswood v. Ringgold, 66 N. J. 350, 331 A. 2d 262 (1975), appeal docketed, No. 74-1335, decided the same day as the ease reviewed here, the New Jersey Supreme Court held that an ordinance quite similar to Ordinance No. 573 was invalid insofar as it vested in the chief of police too much discretion in deciding whether or not to grant a canvassing permit. The court in Collingswood accordingly struck that provision of the ordinance, but let the remainder stand.
Ordinance No. 598A provides in relevant part:
“Whereas, The Borough of Oradell is primarily a one family residential town whose citizens are employed elsewhere, resulting in the wives of the wage earner being left alone during the day; and
“Whereas, because of the geographical location of most of the homes it is impossible to police all areas at the same time, resulting in a number of break and entries and larceny in the home; and
“Whereas, it is in the public interest and the public safety that persons not be permitted to call from house to house on the pretext of soliciting votes for a designated candidate or signatures for a nominating petition, or to solicit for a recognized charitable cause or borough activity, without such persons being first identified by the Police Department; and
“Whereas, the Mayor and Borough Council of The Borough of Oradell feel that it is in the public interest and for the protection of The Borough of Oradell that such persons be required to notify the Police Department for the purpose of identification.
“Now, therefore, be it ordained by the Borough Council of The Borough of Oradell, in the County of Bergen and State of New Jersey, that an ordinance entitled ‘An ordinance to regulate and prohibit canvassing and soliciting in The Borough of Oradell and establish fees and provide penalties for the violation thereof be amended and supplemented as follows:
“(1) That Section 1 be amended and supplemented by the addition of Section 1 (a) to be entitled ‘Exceptions to Permit' as hereinafter set forth:
“Section 1 (a): Exceptions to Permit
“Any person desiring to canvass, solicit or call from house to house in the Borough for a recognized charitable cause, or any person desiring to canvass, solicit or call from house to house for a Federal, State, County or Municipal political campaign or cause, shall be required to notify the Police Department, in writing, for identification only. Said notification shall be good for the duration of the campaign or cause. The provisions of this section shall also apply to representatives of Borough Civic Groups and Organizations and any veterans honorably discharged or released under honorable circumstances from active service in any branch of the Armed Forces of the United States. All other Sections of Ordinance No. 573, with the exception of the penalty clause designated as Section 7 [sic], shall not be applicable to such persons or groups as designated herein.
“(2) All ordinances or parts of ordinances inconsistent with this ordinance are hereby repealed."
The trial court’s opinion in this regard appears to ignore the provisions of Ordinance No. 573, which covers other forms of door-to-door solicitation, and to which Ordinance No. 598A is an amendment.
Appellants also argue that the ordinance bears no rational relationship to its announced purpose of crime prevention, that it is overbroad because it covers Oradell residents casually soliciting the votes of neighbors, and that it violates the Privileges and Immunities Clause of the Fourteenth Amendment by infringing on the right to meet and discuss national candidates. We intimate no view as to these contentions.
The flaw we find in this ordinance is vagueness, not the over-breadth at issue in Broadrick v. Oklahoma, 413 U. S. 601 (1973), on which the dissent relies. Several appellants alleged that their right to receive information would be infringed because persons canvassing for political causes would be uncertain whether the ordinance covered them. In the circumstances of this case these allegations are enough to put in issue the precision or lack of precision with which the ordinance defines the categories of “causes” it covers.
The agency charged with enforcement, the police department, has not adopted any regulations that would give more precise meaning to the ordinance — if indeed it has the legal power to do so. Cf. Broadrick, 413 U. S., at 616-617; CSC v. Letter Carriers, 413 U. S. 548, 575 (1973); Law Students Research Council v. Wadmond, 401 U. S. 154, 162-163 (1971). The chief of police suggested in an affidavit that neither a photograph nor fingerprints are required, and that the canvasser must simply “let us know who he is.” To the extent that this explanation adds any specificity to the ordinance, it does not purport to be binding on the enforcement authorities. Cf. ibid. Nor has the ordinance a history of “less formalized custom and usage” that might remedy the vagueness problems. Parker v. Levy, 417 U. S. 733, 754 (1974).
Question: What type of decision did the court make?
A. opinion of the court (orally argued)
B. per curiam (no oral argument)
C. decrees
D. equally divided vote
E. per curiam (orally argued)
F. judgment of the Court (orally argued)
G. seriatim
Answer:
|
songer_initiate
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
UNITED STATES of America v. Kinley THOMAS, Appellant.
No. 92-3113.
United States Court of Appeals, District of Columbia Circuit.
Decided April 16, 1993.
Thomas W. Farquhar, Washington, DC (appointed by this Court), was on the brief for appellant.
Jay B. Stephens, U.S. Atty. at the time the brief was filed, John R. Fisher, Thomas C. Black, Peggy Kuo, Eric M. Acker and Edward F. McCormack, Asst. U.S. Attys., Washington, DC, were on the brief, for appellee.
Before WALD, RUTH BADER GINSBURG and SENTELLE, Circuit Judges.
Opinion for the Court PER CURIAM.
PER CURIAM:
On appeal from his conviction for two counts of distributing cocaine base and one count of distributing heroin, Kinley Thomas challenges the district court’s order denying his motion to suppress tangible evidence. Thomas argues that the police officer’s affidavit in support of the application for a search warrant for Thomas’ house was inadequate because it offered no facts indicating that criminal activity occurred at the house. We affirm the district court’s ruling.
On June 27, 1991, Metropolitan Police Department officers applied for a warrant to search a two-story red brick row house at 515 — 51st Street, N.E., where Thomas lived with his wife. The affidavit of Officer Burton, submitted in support of the warrant, stated that within the preceding 72 hours, Burton had received information from a reliable informant that Thomas was selling cocaine and heroin in the 900 block of N Street, N.W. The informant had previously provided the police department with information that led to twenty-five arrests and the seizure of narcotics. After receiving the informant’s tip, an undercover officer observed Thomas in the 900 block of N Street, N.W. A second undercover officer purchased from Thomas with police department funds three ziplock bags containing white powder which tested positive for cocaine. The affidavit described the clothing Thomas wore during this transaction, and recounted that Thomas and the undercover officer discussed previous narcotics sales Thomas had made in the area.
The affidavit also detailed Burton’s experience investigating narcotics trafficking. Burton stated that in his experience, drug dealers frequently keep business records, narcotics, proceeds from sales, and firearms in their houses. The affidavit also stated that Thomas was paroled in February 1991 from incarceration for convictions for assault with intent to kill while armed, armed robbery, and carrying a pistol without a license.
On June 27, 1991, District of Columbia Superior Court Judge Sylvia Bacon issued the warrant. It authorized the police to search Thomas’ house for “books, ledgers, records and other documents” and the clothing Thomas wore during the sale to Myers that day. Members of the Metropolitan Police Department executed the warrant the next day. All of the clothing described in the warrant was recovered, as well as a magnetic key holder from which Thomas had sold Officer Myers cocaine on June 27, and the ten one dollar bills of prerecorded funds used to purchase cocaine from Thomas. A gun, some ammunition, and two plastic bags containing a white rocky substance were also seized. Following the search, Thomas was arrested and subsequently indicted on two counts of distributing cocaine, one count of distributing heroin, and one count of being a felon in possession of a firearm.
Thomas moved to suppress the items seized during the search. He argued that the rationale given by police for the warrant, that Thomas had been observed engaging in narcotics trafficking in the 900 block of N Street, N.W., was insufficient to support a finding of probable cause to believe that evidence of a crime would be found in Thomas’ house at 515—51st Street, N.E. The district court denied the motion to suppress. Thomas was convicted of two counts of distribution of cocaine and one count of distribution of heroin.
The task of a judicial officer from whom a search warrant is requested is “to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983); see also United States v. Laws, 808 F.2d 92, 94 (D.C.Cir.1986) (affidavit must set forth sufficient facts to induce a “reasonably prudent person” to believe evidence of crime will be found). Hearsay in an affidavit does not render the information insufficient to establish probable cause, “so long as a substantial basis for crediting the hearsay is presented.” Illinois v. Gates, 462 U.S. at 242, 103 S.Ct. at 2334. The reviewing court will not make a de novo determination of probable cause, but will uphold the decision to issue the warrant if it is supported by substantial evidence. Massachusetts v. Upton, 466 U.S. 727, 728, 104 S.Ct. 2085, 2085, 80 L.Ed.2d 721 (1984) (per curiam).
The totality of the circumstances supported Judge Bacon’s issuance of the warrant. Although this court has not had the opportunity to address the question previpusly, other circuits have held that observations of illegal activity outside of the home can provide probable cause for the issuance of a search warrant for a suspect’s hoúse, even in the absence of an allegation that any illegal activity occurred in the home itself. See, e.g., United States v. Riedesel, 987 F.2d 1383 (8th Cir.1993) (lawful seizure of drugs from defendant’s car provided probable cause to support issuance of warrant to search his house); United States v. Angulo-Lopez, 791 F.2d 1394, 1399 (9th Cir.1986) (probable cause existed to .search defendant’s ■ residence, based on reasonable inference that suspected drug dealer would keep evidence at home); United States v. Cruz, 785 F.2d 399, 406 (2d Cir.1986) (probable cause found to search defendant’s apartment, although no witness ever saw defendant or his associates use apartment). We agree with these rulings: observations of illegal activity occurring away from the suspect’s residence, can support a finding of probable cause to issue a search warrant for the residence, if there is a reasonable basis to infer from the nature' of the illegal activity observed, that relevant evidence will be found in the residence. Because substantial evidence supported a finding of probable cause to issue the warrant, the district court’s judgment denying Thomas’ motion to suppress tangible evidence is affirmed.
So ordered.
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
|
songer_counsel2
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
Frank LOWELL, Plaintiff-Appellant, v. TWIN DISC, INCORPORATED, Defendant-Appellee.
No. 159, Docket 75-7259.
United States Court of Appeals, Second Circuit.
Argued Oct. 17, 1975.
Decided Nov. 18, 1975.
Joseph M. Weitzman, New York City, for plaintiff-appellant.
Mark F. Hughes, New York City (Willkie, Farr & Gallagher, Robert J. Kheel and Richard L. Feller, New York City, of counsel), for defendant-appellee.
Before MANSFIELD, TIMBERS and GURFEIN, Circuit Judges.
GURFEIN, Circuit Judge:
This is an appeal by plaintiff Frank Lowell from a decision of the United States District Court for the Eastern District of New York, Jacob Mishler, Chief Judge, which denied leave to amend the complaint and granted defendant’s motion to dismiss the complaint on the ground of res judicata.
On July 3, 1968, appellant and his then partner, Robert Everett, citizens of New York, executed a stock acquisition agreement with defendant Twin Disc, Incorporated (“Twin Disc”), a citizen of Wisconsin. Under this agreement, appellant and his partner (“the shareholders”), who owned all the stock of Lem Instrument Corporation (“Lem”), agreed to exchange their Lem stock for stock of Twin Disc having a market value of $150,000. The agreement further provided that during the seven years following the execution of the agreement, Twin Disc would give the shareholders additional Twin Disc stock equal in value to 25% of Lem’s pre-tax net earnings, if any, up to a total maximum amount of $500,000. It was further agreed that if Twin Disc decided, prior to June 30, 1975, to dissolve Lem, to sell any or all of its assets other than in the ordinary course of its business, or to sell the stock of Lem, then the shareholders would have the option to purchase from Twin Disc all the outstanding shares of Lem upon terms not less favorable than those of the contemplated transaction.
On the same day, the appellant signed an employment contract with Lem, in which he agreed to serve as General Manager and President of Lem for a period of seven years. During this time, he agreed to “devote his full time and his best efforts” in the furtherance of the interests of Lem. This employment contract was guaranteed by Twin Disc, which agreed to make comparable employment available to appellant if Lem was liquidated or sold. The contract provided that it was to be construed , in accordance with the laws of the State of New York.
From the time that the contracts were executed in July 1968 until October 1972, Lem operated at a loss. On October 9, 1972, the board of directors of Lem voted to cease operations and to discharge appellant for failure to perform his duties under the employment contract.
Shortly thereafter, appellant brought this action against Twin Disc in the New York Supreme Court, Suffolk County. The action was removed by the defendant to the federal court pursuant to 28 U.S.C. § 1441 on the basis of the diverse citizenship of the parties.
Before this action .could come to trial, however, appellant brought another action for damages in the New York Supreme Court, Suffolk County, against Lem rather than against Twin Disc (“state court action”). The complaint alleged that Lem had breached its obligations under the employment contract by terminating plaintiff’s employment without cause. Lem maintained that the plaintiff’s discharge was for cause. Plaintiff did not assert any claims based on the stock acquisition agreement in the state court action.
This action was tried before Judge Scileppi and a jury. On October 12, 1973, the jury returned a unanimous verdict for the defendant. The judgment was affirmed by the Appellate Division, Lowell v. Lem Instrument Corp., 44 App.Div.2d 775, 354 N.Y.S.2d 1006 (2d Dep’t 1974), and leave to appeal was denied by the Court of Appeals. 34 N.Y.2d 520, 360 N.Y.S.2d 1025, 318 N.E.2d 611 (1974).
After the completion of the state court action, the plaintiff moved to amend his complaint in this federal action. The complaint, as originally filed, contained three counts. The first count alleged that Twin Disc had guaranteed Lem’s obligations under the employment contract, that Lem had breached its obligations under that contract by discharging plaintiff without cause, and that plaintiff had thereby been damaged. The second count alleged that Lem had failed to pay plaintiff certain fringe benefits and cost-of-living increases. The third count alleged that Twin Disc had breached the stock acquisition agreement by terminating Lem’s operations and by disposing of its assets other than in the ordinary course of business, thereby depriving plaintiff of the option to acquire Lem’s stock in the event of a termination of Lem’s operations, and further depriving plaintiff of the opportunity to receive additional shares of Twin Disc stock if the operations of Lem became profitable. In his affidavit in the District Court appellant conceded that the issues under the employment contract had been determined in the state court action, and he, accordingly, withdrew the first two claims for relief, which were based upon the employment contract. In place of the third cause of action, he proposed to substitute six new claims for relief. These were all based on the stock acquisition agreement or the guarantee of the employment contract by Twin Disc. Twin Disc opposed plaintiff’s motion to amend, and moved for summary judgment, asking the court to dismiss all three counts of the original complaint on grounds of res judicata and collateral estoppel.
The court denied plaintiff’s motion for leave to amend and granted defendant’s motion for summary judgment. It found that all three counts of the complaint were barred by res judicata, and that amendment would be futile because the causes of action set forth in the amended complaint would similarly be barred.
Although the court recognized that the third count of the complaint was based on the stock acquisition agreement and not on the employment contract, it found that “[t]he stock acquisition agreement was . . implicitly conditioned upon plaintiff’s continued status as an employee in good standing.” While it recognized that no clause in the agreement expressly conditioned the payments to be made under the stock acquisition agreement upon plaintiff’s continued employment under the employment contract, the court concluded nevertheless that “since both contracts were executed simultaneously and for the same purpose . . . such terms must be presumed.”
We think that the court erred in granting summary judgment on that ground. Two separate written agreements executed at the same time may be considered in law as one agreement, but only if the parties so intended. Whether the parties intended that the two agree-merits should be interdependent is a question of fact which turns upon the circumstances of each case. See Commissioner v. Le Gierse, 110 F.2d 734, 735 (2 Cir. 1940), rev’d on other grounds, 312 U.S. 531, 61 S.Ct. 646, 85 L.Ed. 996 (1941); Sterling Colorado Agency, Inc. v. Sterling Insurance Co., 266 F.2d 472, 475-76 (10 Cir. 1959); 6 Williston on Contracts § 863, at 279-80 (3d ed. W. Jaeger 1962). As Williston put it, the test is as follows: “It can be nothing else than the answer to an inquiry whether the parties assented to all the promises as a single whole, so that there would have been no bargain whatever, if any promise or set of promises were struck out.” Id. at 275.
In the case at bar the issue is whether the employment contract and the stock acquisition agreement are an entire contract or whether they are divisible. What did the parties intend if appellant should die shortly after the agreements were executed? Would his inability to perform under the employment contract cut off his right to future profits, or were these simply a part of the purchase price, payable, in any event, to his estate? On the other hand, if appellant was discharged for failure to use his best efforts under the employment contract, as he was here, would he still retain his right to future profits under' the stock acquisition agreement? The two agreements, as drawn, cast no light on the interrelationship, if any, between the rights and duties of the parties under the agreements.
Parol evidence may be resorted to, therefore, so long as it is not inconsistent with and does not vary or contradict the written agreements. “Accordingly, the court may and should look to the prior negotiations to determine what was intended.” Rudman v. Cowles Communications, Inc., 30 N.Y.2d 1, 11, 330 N.Y.S.2d 33, 40, 280 N.E.2d 867, 872 (1972); see Sun Oil Co. v. Heller, 248 N.Y. 28, 31-32, 161 N.E. 319, 320 (1928); Restatement (Second) of Contracts § 240 (Tent. Draft 1973). We have followed a similar formulation in Union Insurance Society of Canton, Ltd. v. William Gluckin & Co., 353 F.2d 946, 951 (2 Cir. 1965). It follows that where, as here, extrinsic evidence is admissible, summary judgment does not lie. Heyman v. Commerce & Industry Insurance Co., 524 F.2d 1317 (2 Cir. 1975); Aetna Casualty & Surety Co. v. Giesow, 412 F.2d 468, 471 (2 Cir. 1969); Lemelson v. Ideal Toy Corp., 408 F.2d 860, 863-64 (2 Cir. 1969).
Since there is a triable question of fact respecting the intention of the parties, it was error “to presume” that the obligation of Twin Disc to continue its performance under the stock acquisition agreement was, as a matter of law, “implicitly conditioned” on appellant’s continued satisfactory performance under the employment contract.
This analysis does not necessarily lead to the conclusion, however, that summary judgment in favor of the defendant should not have been granted.
It is a fundamental principle of law that in every contract there exists an implied covenant of good faith and fair dealing. See Kirke La Shelle Co. v. Paul Armstrong Co., 263 N.Y. 79, 87, 188 N.E. 163, 167 (1933); Van Valkenburgh, Nooger & Neville, Inc. v. Hayden Publishing Co., 30 N.Y.2d 34, 45, 330 N.Y.S.2d 329, 333, 281 N.E.2d 142, 144, cert. denied, 409 U.S. 875, 93 S.Ct. 125, 34 L.Ed.2d 128 (1972). Furthermore, each contract contains an implicit understanding that neither party will intentionally do anything to prevent the other, party from carrying out his part of the agreement. “Persons invoking the aid of contracts are under implied obligation to exercise good faith not to frustrate the contracts into which they have entered.” Grad v. Roberts, 14 N.Y.2d 70, 75, 248 N.Y.S.2d 633, 637, 198 N.E.2d 26, 28 (1964). “It is likewise implied in every contract that there is a duty of cooperation on the part of both parties. Thus, whenever the cooperation of the promisee is necessary for the performance of the promise, there is a condition implied that the cooperation will be given.” Rochester Park, Inc. v. City of Rochester, 38 Misc.2d 714, 718, 238 N.Y. S.2d 822, 827 (Sup.Ct.), aff’d, 19 A.D.2d 776, 241 N.Y.S.2d 763 (4th Dep’t 1963), quoting 10 New York Jurisprudence § 203, at 111-12 (1960) (emphasis in original).
The issue thus becomes whether there was a finding by the jury in the state court action that appellant’s discharge was for failing faithfully and diligently to discharge his duties and for failing to use his best efforts on behalf of the corporation. If he failed to exert his best efforts for the corporation, he cannot, even if the employment and the stock acquisition contracts are deemed independent, support a claim of good faith. It would be wrong to allow a claim for profits that the plaintiff himself thwarted by his failure to use his best efforts in furtherance of the common enterprise or for the right to buy Lem shares that were undoubtedly depressed by the plaintiff’s nonperformance of his obligations under the employment contract.
Normally, the question of whether a party has breached an implied covenant of good faith would be for the jury. But here the facts may have been conclusively determined against appellant in the state court action under the doctrine of collateral estoppel. That doctrine would conclusively determine the facts, but only if collateral estoppel is applicable to a second action in which both parties are not formally the same.
In this case, appellant is himself a party in both actions. If the issue tendered to the first jury was found adversely to the plaintiff, he is bound in the second action even though the defendant in the second action is not the same as the defendant in the first action. The lack of mutuality of estoppel is not fatal. “[T]he party against whom the plea is raised was a party to the prior action and ‘had full opportunity to litigate the issue of its responsibility.’ (See Liberty Mutual Ins. Co. v. Colon, 260 N.Y. 305, 312, 183 N.E. 506, 508).” Good Health Dairy Products Corp. v. Emery, 275 N.Y. 14, 18, 9 N.E.2d 758, 759 (1937) (emphasis in original); see Israel v. Wood Dolson Co., 1 N.Y.2d 116, 151 N.Y. S.2d 1, 134 N.E.2d 97 (1956). See also Ritchie v. Landau, 475 F.2d 151 (2 Cir. 1973). Perhaps the classic exposition was that of Justice Traynor in Bernhard v. Bank of America Nat’l Trust & Sav. Ass’n, 19 Cal.2d 807, 122 P.2d 892 (1942). Justice Traynor noted that the exception to the requirement of mutuality of estoppel was justified “on the ground that it would be unjust to permit one who has had his day in court to reopen identical issues by merely switching adversaries.” 19 Cal.2d at 813, 122 P.2d at 895. And see New York News, Inc. v. New York Typographical Union No. 6, 374 F.Supp. 121, 125 (S.D.N.Y.1974).
We are remitted to the question, then, whether the issue tendered to the jury in the state court action involved the issue whether appellant was discharged for failing faithfully to perform his duties and for failing to use his best efforts on behalf of the company. We have accordingly studied the record in the state court action.
Judge Scileppi charged the jury in substance, inter alia, that if the jury finds from the evidence that plaintiff failed faithfully and diligently to perform his duties, or failed to use his best efforts as called for in the contract, then the plaintiff may not recover since those failures would constitute a breach of contract by the plaintiff. The court also told the jury that they may consider the losses sustained by the corporation, the plaintiff’s projected sales and projected profits, and the operation plans which he devised “on the broad question of whether the Plaintiff faithfully and diligently performed his duties under the contract, and whether he used his best efforts on behalf of the corporation in the operation of said business in accordance with the provisions of the contract of employment contained in paragraph 1 thereof.” With the issue thus tendered, the jury returned a verdict for the defendant.
Appellant had a full and fair opportunity to contest the issue in the state court action, see Schwartz v. Public Administrator, 24 N.Y.2d 65, 298 N.Y.S.2d 955, 246 N.E.2d 725 (1969), which he actually did. Since the jury found that appellant had failed to use his best efforts on behalf of Lem, we hold that he may no longer contend that he has duly performed the implied covenant of cooperation under the stock acquisition agreement. The parent appellee, Twin Disc, may properly assert that appellant was collaterally estopped. Appellant’s breach of the implied covenant of good faith was established beyond permissible relitigation.
The dismissal of the complaint is affirmed as is the order denying leave to amend the complaint.
. The agreement also provided that the principal business location of Lem would remain in New York.
. We have no doubt that the guarantor of an employment contract is released when a verdict is returned in favor of the employer whose performance has been guaranteed. See United States v. American Surety Co., 56 F.2d 734, 736 (2 Cir. 1932); People v. Metropolitan Surety Co., 171 App.Div. 15, 20-21, 156 N.Y.S. 1027, 1031 (3d Dep’t 1916).
. We treat the matter as a question of collateral estoppel (issue preclusion).
. In view of our conclusion on this issue, we need not consider whether, in any event, Twin Disc could avail itself of collateral estoppel because it was in privity with Lem.
. The employment contract was in evidence in the state court action as Plaintiffs Exhibit 2. In paragraph one, Lowell agreed “to devote his full time and his best efforts in the furtherance and interests of LEM.”
. The refusal to allow the amendment of a complaint that had been filed over two years earlier is also sustainable on the ground of laches.
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
|
songer_respond1_1_4
|
J
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "unclear". Your task is to determine what subcategory of business best describes this litigant.
UNITED STATES of America, Appellant, v. SURFACE COMBUSTION CORPORATION, Appellee.
No. 12162.
United States Court of Appeals Sixth Circuit.
Feb. 9, 1955.
H. Brian Holland, Andrew D. Sharpe, Ruppert Bingham, Ellis N. Slack, I. Henry Kutz) Washington, D. C., Sumner Canary, Cleveland, Ohio, and Clarence M. Condon, Toledo, Ohio, for appellant.
G. C. Scharfy, of Shumaker, Loop & Kendrick, Toledo, Ohio, for appellee.
Before SIMONS, Chief Judge, and MARTIN and STEWART, Circuit Judges.
PER CURIAM.
The sole question in this case is whether the United States is entitled, to retain interest collected upon an excess profits tax deficiency where such deficiency was later extinguished under § 722 of the Internal Revenue Code, 26 U.S.C.A. § 722, and the tax upon which such interest was collected was refunded to the taxpayer. The district court held that the taxpayer was entitled to the return of the interest it had paid, and granted its motion for summary judgment.
We have withheld decision pending determination of the question by the Supreme • Court. In United States v. Koppers Co. and Premier Oil Refining Co. of Texas v. United States, 348 U.S. 254, 75 S.Ct. 268, the Supreme Court on January 31, 1955 decided .the precise question adversely to the taxpayer.
Upon the authority of those decisions, it is accordingly ordered that the judgment of the district court, be and it here-1 by is reversed, and the ease is remanded, to the district court for entry of final judgment in'- favor of appellant, the United States of America.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "unclear". What subcategory of business best describes this litigant?
A. auto industry
B. chemical industry
C. drug industry
D. food industry
E. oil & gas industry
F. clothing & textile industry
G. electronic industry
H. alcohol and tobacco industry
I. other
J. unclear
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. Stephen Thomas HAAR, Defendant-Appellant.
No. 90-2023.
United States Court of Appeals, Tenth Circuit.
April 22, 1991.
Robert J. Gorence, Asst. U.S. Atty. (William L. Lutz, U.S. Atty., with him on the brief), Albuquerque, N.M., for plaintiff-ap-pellee.
Richard J. Knowles, Albuquerque, N.M., for defendant-appellant.
Before BRORBY and McWILLIAMS, Circuit Judges, and SPARR, District Judge.
The Honorable Daniel B. Sparr, United States District Judge for the District of Colorado, sitting by designation.
BRORBY, Circuit Judge.
Stephen Thomas Haar (“Defendant”) appeals his conviction by jury trial for the manufacture of methamphetamine in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 841(b)(1)(C), raising the following four issues: (1) “whether the trial court erred in refusing to give a requested instruction on a lesser included offense of simple possession of methamphetamine”; (2) “whether the court erred in improperly admitting evidence of activity outside the period of time charged in the indictment”; (3) “whether the court erred in refusing to grant a mistrial following acts of prosecutorial misconduct and whether such misconduct constituted cumulative error”; and (4) “whether the court erred by calculating the guideline level for this offense using projections of the quantity of methamphetamine which could have [been] made based on the chemicals found at a residence alleged to have been rented by the appellant.” We affirm.
I.
On December 25, 1988, the Drug Enforcement Agency (“DEA”) in Albuquerque, New Mexico, received an anonymous tip that a methamphetamine laboratory was in operation at 5716 Aztec Rd., N.E. The informant indicated the owner of the residence, Larry Allen (“Allen”), and Defendant had been operating the laboratory at this address for approximately three months.
On that same day, two DEA agents went to the reported address. Once on the premises, the agents detected a strong odor, known by them to be associated with the manufacture of methamphetamine, emanating from within the residence. One of the agents then noticed two bags of garbage, which had been left at the curbside in front of the house, and placed the bags inside his car for later examination. Inside the garbage bags, DEA agents discovered, inter alia, a plastic bag containing a total of 14.1 grams net weight of the substance methamphetamine.
Based on their observations, the DEA agents executed a search warrant at 5716 Aztec Rd., N.E., on December 27, 1988. Inside the house the agents discovered a room containing large amounts of chemicals, glassware and hardware commonly used in the production of methamphetamine. Additional controlled substances were seized during the search, including trace amounts of methamphetamine, phe-nyl acetone and several gallons of various wash solutions. Also found in the house were a.12 gauge shotgun and ammunition. Forensic experts with the Albuquerque Police Department identified fingerprints on several of the items found during the search as the Defendant’s.
Prior to Defendant's sentencing, a stipulation agreement was entered into between Defendant and the government, which provided in relevant part:
1. Frank Lucero, an expert witness in forensic chemistry and an employee of the Albuquerque Police Department, if called as a witness, would testify as follows:
2. Based upon the foregoing data and personal inspection, Mr. Lucero is of the opinion that the lab site located at 5716 Aztec N.E. could have manufactured one pound of pure methamphetamine on December 27, 1988.
3. The basis of this opinion is using the “P2P” method of chemical synthesis, and using only those chemical precursors on site at 5716 Aztec N.E. on December 27, 1988, the amount of methylamine (exhibit 5) was sufficient for only the manufacture of approximately one pound of pure methamphetamine.
The court based its computation of Defendant’s offense level on the parties’ stipulation that the amount of methylamine found at 5716 Aztec Rd., N.E. on December 27, 1988, was sufficient to produce one pound pure methamphetamine. The probation department also used the stipulation in its preparation of an addendum to the original presentence report. The addendum, copies of which were provided to Defendant and his counsel prior to the sentencing hearing, reduced Defendant’s base offense level from 36 to 26. This adjusted offense level, along with Defendant’s placement in criminal history category III, produced a guideline imprisonment range of 78 to 97 months, pursuant to Ch. 5, Part A (Sentencing Table) of the United States Sentencing Commission, Guidelines Manual (Nov. 1989) (“U.S.S.G.”). At the sentencing hearing, however, the court granted Defendant a reduction of two offense levels for his affirmative acceptance of responsibility for the offense pursuant to U.S.S.G. § 3El.l(a). The court then amended the addendum to the presentence report to reflect Defendant’s total base offense level of 24, and noted the applicable guideline range, again in accordance with U.S.S.G. Ch. 5, Part A, to be 63 to 78 months’ imprisonment.
After hearing counsel’s statement on behalf of Defendant, the court sentenced Defendant to 66 months’ imprisonment followed by a term of 3 years supervised release.
II.
A. Lesser-Included-Offense Instruction
Defendant first contends the trial court erred in refusing to give the requested lesser-included-offense instruction of simple possession. In support of this contention, Defendant argues, “[t]he theory of the defense was that the methamphetamine was being manufactured by Larry Allen, and that if [Defendant] had any involvement at all, it was in possessing methamphetamine manufactured by Mr. Allen.”
When reviewing a claim of error relating to jury instructions, we review the instructions as a whole. Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400-01, 38 L.Ed.2d 368 (1973). And “[although a criminal defendant is entitled to an instruction regarding his theory of the case, a trial judge is given substantial latitude and discretion in tailoring and formulating the instructions so long as they are correct statements of law and fairly and adequately cover the issues presented.” United States v. Pack, 773 F.2d 261, 267 (10th Cir.1985). Accord, United States v. Bryant, 892 F.2d 1466, 1468 (10th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 3220, 110 L.Ed.2d 667 (1990); United States v. Pinto, 838 F.2d 426, 435-36 (10th Cir.1988). Moreover, a defendant will not be entitled to an instruction which lacks “a reasonable legal and factual basis.” Bryant, 892 F.2d at 1468. See also, United States v. Scafe, 822 F.2d 928, 932 (10th Cir.1987) (“A defendant is entitled to jury instructions on any theory of defense finding support in the evidence and the law.”).
In Fitzgerald v. United States, 719 F.2d 1069, 1071 (10th Cir.1983), we set forth the following factors that must be satisfied before a defendant is entitled to a lesser-included-offense instruction:
1. A proper request.
2. The lesser included offense consists of some, but not all, of the elements of the offense charged.
3. The element differentiating the two offenses is a matter in dispute.
4. A jury could rationally convict the defendant of the lesser offense and acquit of the greater offense.
Id. at 1071. “Failure to meet any part of the test is fatal for the defendant.” United States v. Joe, 831 F.2d 218, 219 (10th Cir.1987), cert. denied, 484 U.S. 1072, 108 S.Ct. 1043, 98 L.Ed.2d 1006 (1988).
It is undisputed that a request for the lesser-included-offense instruction was properly made, and that the offense of simple possession includes some, but not all, of the elements of the charged offense — unlawful manufacture of methamphetamine. Therefore, the first and second factors of the Fitzgerald test are satisfied.
Defendant asserts the third and fourth Fitzgerald factors have also been satisfied in that “there was evidence of the lesser included offense of possession of methamphetamine... and proof on the elements differentiating the two offenses was sufficiently in dispute so that the jury could consistently find defendant innocent of manufacture and guilty of possession....” Defendant raises, inter alia, the following arguments as the basis for his assertion: that while “the components necessary for a methamphetamine lab were found at 5716 Aztec NE in Albuquerque, New Mexico... this was not a working lab”; that “fingerprints identified as having belong[ed] to Mr. Haar were found on three objects located, not in the area that had been testified to as having been the laboratory, but in a separate room described as being the kitchen of the residence”; that “[ajside from 14.1 grams of yellowish powder residue found in the garbage on the exterior of 5716 Aztec NE, no methamphetamine was found”; and that “[a]s credibility of the witnesses was in issue, the jury is free to believe or disbelieve any portion of their testimony.... [Thus,] [e]very aspect of the Government’s case was in dispute”.
We first address Defendant’s argument that the elements differentiating the two offenses were sufficiently in dispute. “ ‘Absent some evidence to counter the strong inference of [the charged offense]... the issue is not elevated to a truly disputed one.’ ” Joe, 831 F.2d at 220 (quoting United States v. Rogers, 504 F.2d 1079, 1084 (5th Cir.1974), cert. denied, 422 U.S. 1042, 95 S.Ct. 2655, 45 L.Ed.2d 693 (1975)). Here, the trial court, properly focused on the third Fitzgerald factor and made the following determination in regard to the existence of such a dispute:
THE COURT: I think the way the evidence was presented, there really was not a situation in which — or a dispute as to the evidence that would affect a possession charge and the evidence that would affect a manufacturing charge.
... The question is whether there is a, as I understand it the third step under Fitzgerald, is whether there really is a dispute or contest over evidence that establishes mere possession or manufacturing. I really don’t see that in this ease. I don’t think cross-examination of the witnesses went in that direction....
- • • Plf [defense counsel] had established through cross-examination that
Mr. Haar’s presence was for or it could be interpreted as being solely for the purpose of sharing drugs with the others, I think that might make a difference, but I don’t think that that was the tenor of the cross-examination. So I really don’t think there is a dispute about the evidence as to whether it supports merely possession or manufacture.
... [AJfter hearing all the evidence, I just didn’t think that there was any evidence elicited to establish that Mr. Haar merely possessed it and was not further involved, and I think it all is directed to manufacture and the jury is either going to have to believe that he was involved in the manufacture or not.
(Emphasis added.)
After reviewing the record as a whole, we agree with the trial court’s determination that the elements differentiating the two offenses were not in dispute. Therefore, we find no abuse of discretion in the court’s rejection of Defendant’s requested lesser-included-offense instruction for mere possession. Having so decided, we need not reach the question of whether the fourth Fitzgerald factor is satisfied, as failure to meet any one of the factors is sufficient to defeat the request. See Joe, 831 F.2d at 219.
B. Admission of Chemical Catalog Into Evidence
Defendant next contends the trial court erred in admitting into evidence a chemical catalog found in a storage locker rented by Defendant. He argues “the admission of the chemical catalogue... did not meet the relevance requirement and its submission was in violation of Rule 403 of the Federal Rules of Evidence.”
We give the trial court broad discretion in determining whether to admit or exclude evidence, and will not reverse its determination absent an abuse of discretion. Huddleston v. United States, 485 U.S. 681, 690, 108 S.Ct. 1496, 1501, 99 L.Ed.2d 771 (1988); United States v. Bonnett, 877 F.2d 1450, 1458 (10th Cir.1989).
On September 26, 1989, the government filed a Notice of Intent to Present Evidence Outside The Dates Listed in the Indictment. In response, the Defendant filed a motion in limine addressing all seven matters advanced in the government’s notice. The court subsequently heard arguments on the evidentiary matters presented in Defendant’s motion in limine and ruled separately on each. Only one of its rulings is at issue in this appeal — the admission of the chemical catalog.
During the October 2 proceedings, the following exchange occurred regarding the catalog:
MR. KNOWLES: [Defense Counsel]... [M]y understanding is the Government wishes to produce evidence of a general catalog of chemicals found in the storage locker according to — would be rented by Mr. Haar. It is not my understanding the Government has evidence of exclusivity of possession nor do I understand the Government has evidence of this chemical catalog.
MR. GORENCE: [Prosecutor]... At the time of [Defendant’s] arrest he possessed some documents indicating that there was a locker in his possession at American Self Storage.... [T]he people from American Self Storage will testify that it’s in his name, the person that actually rented the several lockers to Mr. Haar will ID him... from a photo spread. The custodian of records who is the current president of the company, will testify that the records that Mr. Haar filled out, the contract, the rental contract, all those things, will be offered....
Furthermore, inside and what will be offered and was the basis for the motion in limine is a chemical catalog. Now, after listening to Mr. Knowles, I think those are all perfectly good pitches to make to a jury as to the weight they should assess the chemical catalog, but I submit to the Court that [it is relevant] under 401 in that it has a tendency to make the existence of any fact that is [of] consequence to the termination of this action more probable or less probable in that here we have a large chemical catalog.... [I]t lists all kinds of chemicals, all the chemicals needed to make methamphetamine, specifically phe-nyl acetic acid, Methylamine, the sulfuric chloride, other things that were in the possession of Mr. Haar and which were found in the execution of the search warrant back on 5716. And I guess it’s probative... because it tends to show that although there may be explanations and although it’s something that the jury should assess the weight of, it tends to make a fact in issue in this case. It has some probative value... in that whether or not he actually manufactures methamphetamine. It [shows] access to these kind of chemicals, the chemicals required to manufacture this—
MR. KNOWLES:... I don’t think this passes the test of the recent 10th Circuit case because there’s no evidence of exclusivity of control of that locker.... So one, we don’t know whose catalog it was; there’s no fingerprint evidence taken with regard to the catalog; no evidence he ever touched it; no evidence that he had possession of it during the operative period of time....
THE COURT: Well, what about the issue of exclusivity? Is she going to testify about that? Has anybody else had access to the locker besides Mr. Haar who rented it and I guess the owner or—
MR. GORENCE:... I don’t know the answer to that. Even if other people had access to it, I don’t think it takes away from its admissibility... obviously, if a hundred people have access to it, it’s much less probative. That doesn’t mean it’s not admissible; it just means that it’s weighed against this Defendant as less. The fact that in the locker that she rents that has legal documents bearing his name is chemical catalog that would assist one in the manufacture of methamphetamine is probative.... I think under 4-01 it’s relevant and under 403 it bears on a direct issue that the Government has the burden of proving.
THE COURT:... On this point, I’m going to deny the motion in limine as to the chemical catalog and you may admit that.
(Emphasis added.) We find the above exchange clearly indicates both the parties and the court were focusing on the proper issues surrounding the admission of the catalog, that being consideration of Fed.R. Evid. 401 and Fed.R.Evid. 403 factors — probative value versus potential prejudice.
Fed.R.Evid. 401 defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” However, even relevant “evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice_” Fed.R.Evid. 403. Considering the applicable rules, the focused questions of the court, and the responses given by counsel, it is clear the court did not abuse its discretion in admitting the evidence. It properly considered the reliability, the pro-bativeness, and the potential prejudicial effect of the evidence. Moreover, we agree that the chemical catalog is relevant evidence in that it makes the existence of the fact that the Defendant had access to and/or knowledge of the chemicals necessary for methamphetamine manufacture more likely than it would be without the evidence, and that its probative value was not substantially outweighed by the risk of unfair prejudice to Defendant. We therefore uphold the trial court’s determination admitting the chemical catalog into evidence.
C. Prosecutorial Misconduct
Defendant next contends the trial court erred in refusing to grant a mistrial following acts of prosecutorial misconduct, and argues the misconduct of the prosecutor constitutes cumulative error. In support of his contentions, Defendant advances the following claims of misconduct: (1) “On two separate occasions during the course of this trial the prosecutor introduced evidence that had been ruled inadmissible by the Court and [did so] immediately after the prosecutor was specifically instructed to avoid specific areas of inquiry”; and (2) “during closing argument the prosecutor stated that he was offended when he heard argument relating to governmental error.”
A trial court has great discretion in determining whether a mistrial is warranted based on alleged prosecutorial misconduct, and its determination will not be disturbed absent an abuse of discretion. United States v. Pinto, 755 F.2d 150, 153 (10th Cir.1985).
Defendant argues the first instance of misconduct occurred after the court instructed the prosecutor to avoid eliciting testimony relating to an alleged physical attack by Defendant. In regard to this matter, the following exchange took place outside the presence of the jury:
MR. KNOWLES: I would ask the Court to specifically instruct Mr. Gorence, in light of Mr. Gorence’s statements yesterday, that he not ask why there’s been confusion yesterday towards the witness as fearful.
MR. GORENCE: Well,... I’m going to instruct [the witness] again just before we start, Your Honor, not to mention the fight. But... I intend to ask him whether or not is he a bit apprehensive on the stand today... and I already told him before I have no intention of getting into the January 1st episode of where he was beaten up.
THE COURT: Well, I think you ought to stay away from that and also ask [sic] him about whether he’s apprehensive, Don’t mention that during your examination, but if it comes up through cross-examination, you’ll have another shot at it.
The jury was then brought in and witness Randy Emerson was recalled to the stand on behalf of the Plaintiff. On direct examination the following questioning occurred:
[Prosecutor] Q: Mr. Emerson, now I’d like to take you to December 31st of last year which was after the lab was busted, did you have an occasion to meet Mr. Haar on that date?
[Witness Emerson] A: Yes, I did.
Q: Did [Defendant] tell you anything on that date with regard to the lab being busted on the 27th?
A: He just called me a “rat” and they beat me up.
(Emphasis added.) Defense counsel then requested a side bar discussion out of the hearing of the jury, at which he objected, moved to strike, and requested a mistrial. The trial court denied the motion for mistrial but instructed the jury to disregard, in its entirety, the last response given by the witness.
It does not appear from the record that the questions of the prosecutor were an attempt to undermine the instructions of the court. Furthermore, we will not presume dishonesty of the prosecutor regarding his assurances that the witness was instructed not to discuss the physical altercation of January 1. Rather, it appears the witness gave an unresponsive and inappropriate response to a valid, narrowly tailored question by the prosecutor. Finally, the court responded promptly in giving a curative instruction to the jury. For these reasons, we do not find the court abused its discretion in denying Defendant's request for a mistrial on this basis.
Defendant argues the second instance of misconduct occurred after the court directed the prosecutor how to word a question dealing with “reputation type” testimony of the Defendant, specifically limiting the prosecutor to “a question relating to finding finger prints at the scene and prior information.” The alleged misconduct occurred during the questioning of witness William Swierc, a Special Agent with the DEA. Defense counsel, during his cross-examination of the witness, had alluded to the fact that a “deal” had been struck with Larry Allen which led to a “shift [in] the focus [of the investigation] onto Mr. Haar.” A side-bar discussion was called on the matter. Near its conclusion, the following exchange took place:
THE COURT: Well, I think your cross-examination, Mr. Knowles, did paint a picture that, all of a sudden, Mr. Swierc focused on Mr. Haar [as a] result of a deal made by Mr. Allen, and I think he’s entitled to rebut that.
... I’m going to permit [the prosecutor] to bring out that [Special Agent Swierc] had information about Mr. Haar prior to his conversations with Mr. Allen and that based on his prior information about Mr. Haar and the fingerprints that he found in his investigation and the other evidence found at the Allen home that related to Mr. Haar, that’s why he got into the deal with Allen and started focusing on Haar.
THE COURT: Okay. Now this is what I want you to limit it to, Mr. Gorence: Do not say it in terms of his reputation.
Just state it in terms of him possessing information. Just present it in terms of, based on the fingerprints he found and the other evidence that he found at the scene and the fact that he had prior information, he shifted the focus to Mr. Haar and do not say anything more about that.
MR. GORENCE: I’m going to ask him a leading question and ask for a yes or no response.
THE COURT: All right. I will permit that in terms of a leading question to avoid the problem.
[Redirect examination by Mr. Gorence of Special Agent Swierc.]
Q:... [W]ithout elaborating, but at the time of Mr. Allen’s plea agreement, did you possess information that the Defendant, Mr. Haar, was involved in the manufacture of methamphetamine?
A: Yes, I did.
Defense counsel then made a timely objection and moved for mistrial. This motion was denied, and the court explained it did not find “it... so prejudicial that it should result in a mistrial, particularly in view of the fact that [the court will] instruct the jury to disregard that question.”
On review of the record, we are not convinced the prosecutor acted maliciously or engaged in so-called “blatant... misconduct” in posing the question. Nor do we believe a substantial right of Defendant was prejudiced thereby. Fed.R.Evid. 103(a); Fed.R.Crim.P. 52. And again, the trial court gave a cautionary instruction to the jury on the matter. Accordingly, we find the court was well within its discretion in denying a mistrial on this basis.
Defendant argues the final instance of misconduct occurred during the prosecutor’s rebuttal closing argument. Defendant did not object until after the jury was released to commence deliberations, at which time defense counsel moved for mistrial, but did not request, and expressly refused, a curative instruction. The court denied the motion for mistrial, stating:
I think that the comment made was not prejudicial. I think it was in fair response to arguments previously made that the Government had not done a thorough job in investigating and presenting the case, so I’ll deny the motion for mistrial and then I understand you do not want any type of instruction to the jury?
MR. KNOWLES: That’s correct, Your Honor....
In the absence of a timely objection, the question is not whether the particular conduct of a prosecutor was appropriate; rather, the question becomes whether the conduct rose to a level of “plain error” affecting substantial rights of the defendant. Fed.R.Crim.P. 52(b); United States v. Young, 470 U.S. 1, 6, 105 S.Ct. 1038, 1041, 84 L.Ed.2d 1 (1985). When addressing plain error, a reviewing court must evaluate all claims in light of the entire record so they may be viewed in proper context. Id. at 16, 105 S.Ct. at 1046.
In this case, during his rebuttal closing argument, the prosecutor made the following statements:
Now the questions about you acting as this block against governmental oppression, governmental error and that if you don’t do that, this man’s going to be unfairly convicted, I take issue at that and how the Government conducted this case, and you’ve heard about the warrants that were obtained, the efforts by the DEA to make sure that everything being done with this case was done with strict constitutional scrutiny. And as an employee of the Department of Justice, it offends me when someone comes up here and talks about governmental oppression or governmental error when what we’re trying to do is rid this country of drugs.
(R. Vol. IV, Tr. 10/4/89 at 179.)
It appears the following summation by defense counsel in his closing argument prompted the prosecutor’s remarks:
[Y]our decision is the keystone of our system of democracy. What you will be doing back there in your deliberations in this entire process is the last safeguard against governmental oppression and governmental error. And if you can convict Mr. Haar on the evidence that’s been brought before you, you might as well take this building and turn it into a parking garage because we need the space, because there just isn’t enough evidence, ladies and gentlemen.
(Emphasis added.)
Considering the context in which the prosecutor’s statements were made, we find the remarks were fairly “invited” by the comments of defense counsel. Young, 470 U.S. at 12, 105 S.Ct. at 1044. We also believe, considering the entire record before us, that the comments did not amount to “prejudicial error” affecting “the jury’s ability to judge the evidence fairly,” see id.; thus, we find no plain error to exist. Cf. United States v. Lowden, 900 F.2d 213, 216-17 (10th Cir.1990). We agree with the trial court’s findings that the prosecutor’s remarks were not prejudicial and were made in response to the remarks of defense counsel. Accordingly, we affirm the court’s decision to deny the mistrial on this basis holding no abuse of discretion occurred.
We also find Defendant’s contention that the misconduct of the prosecutor amounts to “cumulative error” to be without merit. “The harmlessness of cumulative error is determined by conducting the same inquiry as for individual error— courts look to see whether the defendant’s substantial rights were affected.” United States v. Rivera, 900 F.2d 1462, 1470 (10th Cir.1990). The effect of non-errors, however, is not to be included in the aggregation. “Individual rulings frequently will have an adverse effect on a party, but unless that party can demonstrate that the ruling was an error, reversal would not be warranted. Impact alone, not traceable to error, cannot form the basis for reversal.” Id. at 1470-71. Defendant has failed to prove any of the alleged instances of misconduct by the prosecutor amounted to error; thus, there exists no actual error to aggregate. We therefore refuse to grant a new trial to Defendant on this basis.
D. Calculation of Guideline Base Offense Level
Defendant’s final contention is that the trial court erred by using the stipulated projections of drug quantities which could have been produced in calculating the applicable guideline range. Specifically, Defendant argues, “the only amounts which should have been considered in determining the guideline amounts are the actual... quantities of methamphetamines found.”
We give due deference to the district court’s application of the guidelines to the facts, but review fully for errors of law. United States v. Smith, 900 F.2d 1442, 1445 (10th Cir.1990). The district court’s factual determinations, however, are reviewed under a clearly erroneous standard. United States v. Rutter, 897 F.2d 1558, 1562-63 (10th Cir.), cert. denied, — U.S. -, 111 S.Ct. 88, 112 L.Ed.2d 60 (1990).
As noted above, the government entered into a stipulation with Defendant providing that its expert witness, if called, would testify that on December 27, 1988, one pound of pure methamphetamine could have been produced at the lab found at 5716 Aztec Rd., N.E. This stipulation was used in calculating the adjusted base offense level set forth in the addendum to the presentence report. At the sentencing hearing, the court inquired as to whether Defendant was in agreement with the testimony of the expert witness, and whether he understood that the one pound pure methamphetamine figure would be used in computing his sentencing guideline range. Defendant answered both of the court’s inquiries in the affirmative. The court then accepted the stipulation into evidence, finding it was voluntarily and knowledgeably executed by Defendant and his counsel and would serve as “an appropriate basis for computing the offense level in this case.” Defense counsel subsequently objected to the projection method being used for the drug computation, stating, “the amounts which should be considered are actual amounts there rather than amounts which could have been made,” and basing his objection on the due process clause of the Fifth Amendment to the Constitution.
In our recent case, United States v. Havens, 910 F.2d 703, 705 (10th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 687, 112 L.Ed.2d 678 (1991), we held the sentencing judge, upon proper testimony, may estimate the ultimate quantity of producible drugs. We also held that determining facts based on estimates derived from expert testimony is not a denial of due process. Id. at 706. This decision was based in part on U.S.S.G. § 2D1.4(a), incorporated into U.S.S.G. § 2D1.1 by its commentary which provides: “[i]f the amount seized does not reflect the scale of the offense, see Application Note 2 of the Commentary to § 2D1.4.” U.S.S.G. § 2D1.1, comment., (n. 12) (Nov.1989). The commentary to U.S.S.G. § 2D1.4 provides:
Where there is not drug seizure or the amount seized does not reflect the scale of the offense, the sentencing judge shall approximate the quantity of the controlled substance. In making this determination, the 'judge may consider, for example, the price generally obtained for the controlled substance, financial or other records, similar transactions in controlled substances by the defendant, and the size or capability of any laboratory involved.
U.S.S.G. § 2D1.4, comment., (n. 2) (Nov. 1989) (emphasis added). The incorporation of this commentary into U.S.S.G. § 2D1.1, entitled “Unlawful Manufacturing, Importing, Exporting, or Trafficking...,” id. (emphasis added), leads us to conclude that Defendant’s argument distinguishing Havens, on the basis that it involved attempt and not actual manufacturing, is without merit.
In the present case, the sentencing court took great care in giving Defendant the opportunity to measure independently the quantities of the chemicals and discuss various computation methods with the probation department. The only result of this opportunity, however, was the stipulation ultimately used in determining Defendant’s sentence.
We conclude the district court correctly considered the stipulation agreement in determining Defendant’s base offense level. The agreement was based on expert testimony estimating the drug quantity in terms of the amount capable of being produced. This is an acceptable method of computation both under the Guidelines, and by the courts.
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
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sc_petitioner
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028
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the petitioner of the case. The petitioner is the party who petitioned the Supreme Court to review the case. This party is variously known as the petitioner or the appellant. Characterize the petitioner as the Court's opinion identifies them.
Identify the petitioner by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the petitioner is actually single entity or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single petitioner, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name.
RAY, GOVERNOR OF WASHINGTON, et al. v. ATLANTIC RICHFIELD CO. et al.
No. 76-930.
Argued October 31, 1977
Decided March 6, 1978
-F. Supp.-, affirmed in part, reversed in part, and remanded.
White, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart and Blackmun, JJ., joined; in all but Parts Y and VII of which Powell and Stevens, JJ., joined; and in all but Parts IV and VI of which Brennan, Marshall, and Rehnquist, JJ., joined. Marshall, J., filed an opinion concurring in part and dissenting in part, in which Brennan and Rehnquist, JJ., joined, post, p. 180. Stevens, J., filed an opinion concurring and dissenting in part, in which Powell, J., joined, post, p. 187.
Slade Gorton, pro se, Attorney General of Washington, argued the cause for appellants. With him on the briefs were Charles B. Roe, Jr., Senior Assistant Attorney General, Robert E. Mack and Richard L. Kirkby, Assistant Attorneys General, David E. Engdahl, Special Assistant Attorney General, Christopher T. Bayley, pro se, Thomas A. Goeltz, John E. Keegan, Eldon V. C. Greenberg, Richard A. Frank, Thomas H. S. Brucker, and James N. Barnes.
Richard E. Sherwood argued the cause for appellees. With him on the brief were B. Boyd Eight, Ira M. Feinberg, Raymond W. Saman, James L. Robart, and David E. Wagoner.
Anthony F. Troy, Attorney General, James E. Ryan, Jr., Deputy Attorney General, and John Hardin Young, Assistant Attorney General, filed a brief for the Commonwealth of Virginia as amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed by Eugene A. Massey for the American Institute of Merchant Shipping, by John M. Cannon for the Mid-America Legal Foundation, and by David R. Owen for the Maritime Law Association of the United States.
Briefs of amici curiae were filed by Solicitor General McCree and William F. Sheehan III for the United States; by Evelle J. Younger, Attorney General, E. Clement Shute, Jr., Assistant Attorney General, and C. Foster Knight, Deputy Attorney General, for the State of California, joined by certain officials for their respective States as follows: Avrum M. Gross, Attorney General of Alaska, and Sanford Sagalkin, Assistant Attorney General; Arthur K. Bolton, Attorney General of Georgia, and Ann Estes, Staff Assistant Attorney General; Ronald Y. Amemiya, Attorney General of Hawaii, and Laurence K. Lau, Deputy Attorney General; John Ashcroft, Attorney General of Missouri, and Robert M. Lindholm, Assistant Attorney General; Robert P. Kane, Attorney General of Pennsylvania, and William Eichbaum, Assistant Attorney General; and Bronson C. LaFollette, Attorney General of Wisconsin, and Theodore Priebe, Assistant Attorney General; and by certain officials for their respective States as follows: Francis B. Burch, Attorney General of Maryland, and Warren K. Rich and Earl G. Schaffer, Assistant Attorneys General; Richard Wier, Attorney General of Delaware; Joseph E. Brennan, Attorney General of Maine; Warren Spannaus, Attorney General of Minnesota; Louis J. Lefkowitz, Attorney General of New York; Julius C. Michaelson, Attorney General of Rhode Island; Robert L. Shevin, Attorney General of Florida; and Wayne L. Kidwell, Attorney General of Idaho.
Me. Justice White
delivered the opinion of the Court.
Pursuant to the Ports and Waterways Safety Act of 1972 (PWSA), 86 Stat. 424, 33 U. S. C. § 1221 et seq. (1970 ed., Supp. V), and 46 U. S. C. § 391a (1970 ed., Supp. V), navigation in Puget Sound, a body of inland water lying along the northwest coast of the State of Washington, is controlled in major respects by federal law. The PWSA also subjects to federal rule the design and operating characteristics of oil tankers.
This case arose when ch. 125, 1975 Wash. Laws, 1st Extr. Sess., Wash. Rev. Code § 88.16.170 et seq. (Supp. 1975) (Tanker Law), was adopted with the aim of regulating in particular respects the design, size, and movement of oil tankers in Puget Sound. In response to the constitutional challenge to the law brought by the appellees herein, the District Court held that under the Supremacy Clause, Art. VI, cl. 2, of the Constitution, which declares that the federal law “shall be the supreme Law of the Land,” the Tanker Law could not coexist with the PWSA and was totally invalid. Atlantic Richfield Co. v. Evans, No. C-75-648-M (WD Wash. Sept. 24, 1976).
I
Located adjacent to Puget Sound are six oil refineries having a total combined processing capacity of 359,500 barrels of oil per day. In 1971, appellee Atlantic Richfield Co. (ARCO) began operating an oil refinery at Cherry Point, situated in the northern part of the Sound. Since then, the crude oil processed at that refinery has been delivered principally by pipeline from Canada and by tankers from the Persian Gulf; tankers will also be used to transport oil there from the terminus of the Trans-Alaska Pipeline at Valdez, Alaska. Of the 105 tanker deliveries of crude oil to the Cherry Point refinery from 1972 through 1975, 95 were by means of tankers in excess of 40,000 deadweight tons (DWT), and, prior to the effective date of the Tanker Law, 15 of them were by means of tankers in excess of 125,000 DWT.
Appellee Seatrain Lines, Inc. (Seatrain), owns or charters 12 tanker vessels in domestic and foreign commerce, of which four exceed 125,000 DWT. Seatrain also operates through a wholly owned subsidiary corporation a shipbuilding facility in New York City, where it has recently constructed or is constructing four tankers, each with a 225,000 DWT capacity.
On the day the Tanker Law became effective, ARCO brought suit in the United States District Court for the Western District of Washington, seeking a judgment declaring the statute unconstitutional and enjoining its enforcement. Seatrain was later permitted to intervene as a plaintiff. Named as defendants were the state and local officials responsible for the enforcement of the Tanker Law. The complaint alleged that the statute was pre-empted by federal law, in particular the PWSA, and that it was thus invalid under the Supremacy Clause. It was also alleged that the law imposed an undue burden on interstate commerce in violation of the Commerce Clause, Art. I, § 8, cl. 3, and that it interfered with the federal regulation o'f foreign affairs. Pursuant to 28 U. S. C. §§ 2281, 2284, a three-judge court was convened to determine the case.
The case was briefed and argued before the District Court on the basis of a detailed stipulation of facts. Also before the court was the brief of the United States as amicus curiae, which contended that the Tanker Law was pre-empted in its entirety by the PWSA and other federal legislation. The three-judge court agreed with the plaintiffs and the United States, ruling that all of the operative provisions of the Tanker Law were pre-empted, and enjoining appellants and their successors from enforcing the chapter. We noted probable jurisdiction of the State’s appeal, 430 U. S. 905 (1977), meanwhile having stayed the injunction. 429 U. S. 1035 (1977).
II
The Court’s prior cases indicate that when a State’s exercise of its police power is challenged under the Supremacy Clause, “we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947); Jones v. Rath Packing Co., 430 U. S. 519, 525 (1977). Under the relevant cases, one of the legitimate inquiries is whether Congress has either explicitly or implicitly declared that the States are prohibited from regulating the various aspects of oil-tanker operations and design with which the Tanker Law is concerned. As the Court noted in Rice, supra, at 230:
“[The congressional] purpose may be evidenced in several ways. The scheme of federal regulation may be so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it. Pennsylvania R. Co. v. Public Service Comm’n, 250 U. S. 566, 569; Cloverleaf Butter Co. v. Patterson, 315 U. S. 148. Or the Act of Congress may touch a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject. Hines v. Davidowitz, 312 U. S. 52. Likewise, the object sought to be obtained by the federal law and the character of obligations imposed by it may reveal the same purpose. Southern R. Co. v. Railroad Commission, 236 U. S. 439; Charleston & W. C. R. Co. v. Varnville Co., 237 U. S. 597; New York Central R. Co. v. Winfield, 244 U. S. 147; Napier v. Atlantic Coast Line R. Co., supra.”
Accord, City of Burbank v. Lockheed Air Terminal, Inc., 411 U. S. 624, 633 (1973).
Even, if Congress has not completely foreclosed state legislation in a particular area, a state statute is void to the extent that it actually conflicts with a valid federal statute. A conflict will be found “where compliance with both federal and state regulations is a physical impossibility...,” Florida Lime & Avocado Growers, Inc. v. Paul, 373 U. S. 132, 142-143 (1963), or where the state “law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines v. Davidowitz, 312 U. S. 52, 67 (1941); Jones v. Rath Packing Co., supra, at 526, 540-541. Accord, De Canas v. Bica, 424 U. S. 351, 363 (1976).
Ill
With these principles in mind, we turn to an examination of each of the three operative provisions of the Tanker Law. We address first Wash. Rev. Code §88.16.180 (Supp. 1975), which requires both enrolled and registered oil tankers of at least 50,000 DWT to take on a pilot licensed by the State of Washington while navigating Puget Sound. The District Court held that insofar as the law required a tanker “enrolled in the coastwise trade” to have a local pilot on board, it was in direct conflict with 46 U. S. C. §§ 215, 364. We agree.
Section 364 provides that “every coastwise seagoing steam vessel subject to the navigation laws of the United States,... not sailing under register, shall, when under way,... be under the control and direction of pilots licensed by the Coast Guard.” Section 215 adds that “[n]o State or municipal government shall impose upon pilots of steam vessels any obligation to procure a State or other license in addition to that issued by the United States.....” It goes on to explain that the statute shall not be construed to “affect any regulation established by the laws of any State, requiring vessels entering or leaving a port in any such State, other than coast-wise steam vessels, to take a pilot duly licensed or authorized by the laws of such State... (Emphasis added.) The Court has long held that these two statutes read together give the Federal Government exclusive authority to regulate pilots on enrolled vessels and that they preclude a State from imposing its own pilotage requirements upon them. See Anderson v. Pacific Coast S. S. Co., 225 U. S. 187 (1912); Spraigue v. Thompson, 118 U. S. 90 (1886). Thus, to the extent that the Tanker Law requires enrolled tankers to take on state-licensed pilots, the District Court correctly concluded, as the State now concedes, that it was in conflict with federal law and was therefore invalid.
While the opinion of the court below indicated that the pilot provision of the Tanker Law was void only to the extent that it applied to tankers enrolled in the coastwise trade, the judgment itself declared the statute null and void in its entirety. No part of the statute was excepted from the scope of the injunctive relief. The judgment was overly broad, for just as it is clear that States may not regulate the pilots of enrolled vessels, it is equally clear that they are free to impose pilotage requirements on registered vessels entering and leaving their ports. Not only does 46 U. S. C. § 215 so provide, as was noted above, but so also does § 101 (5) of the PWSA, 33 TJ. S. C.- § 1221 (5) (1970 ed., Supp. V), which authorizes the Secretary of Transportation to “require pilots on self-propelled vessels engaged in the foreign trades in areas and under circumstances where a pilot is not otherwise required by State law to be on board until the State having jurisdiction of an area involved establishes a requirement for a pilot in that area or under the circumstances involved....” Accordingly, as appellees now agree, the State was free to require registered tankers in excess of 50,000 DWT to take on a state-licensed pilot upon entering Puget Sound.
IV
We next deal with § 88.16.190 (2) of the Tanker Law, which requires enrolled and registered oil tankers of from 40,000 to 125,000 DWT to possess all of the following “standard safety features”:
“(a) Shaft horsepower in the ratio of one horsepower to each two and one-half deadweight tons; and “(b) Twin screws; and
“(c) Double bottoms, underneath all oil and liquid cargo compartments; and
“(d) Two radars in working order and operating, one of which must be collision avoidance radar; and
“(e) Such other navigational position location systems as may be prescribed from time fi> time by the board of pilotage commissioners....”
This section contains a proviso, however, stating that if the “tanker is in ballast or is under escort of a tug or tugs with an aggregate shaft horsepower equivalent to five percent of the deadweight tons of that tanker...,” the design requirements are not applicable. The District Court held invalid this alternative design/tug requirement of the Tanker Law. We agree insofar as we hold that the foregoing design requirements, standing alone, are invalid in the light of the PWSA and its regulatory implementation.
The PWSA contains two Titles representing somewhat overlapping provisions designed to insure vessel safety and the protection of the navigable waters, their resources, and shore areas from tanker cargo spillage. The focus of Title I, 33 U. S. C. §§ 1221-1227 (1970 ed., Supp. V), is traffic control at local ports; Title IPs principal concern is tanker design and construction. For present purposes the relevant part is Title II, 46 U. S. C. § 391a (1970 ed., Supp. V), which amended the Tank Vessel Act of 1936, Rev. Stat. § 4417a, as added, 49 Stat. 1889.
Title II begins by declaring that the protection of life, property, and the marine environment from harm requires the promulgation of “comprehensive minimum standards of design, construction, alteration, repair, maintenance, and operation” for vessels carrying certain cargoes in bulk, primarily oil and fuel tankers. § 391a (1). To implement the twin goals of providing for vessel safety and protecting the marine environment, it is provided that the Secretary of the Department in which the Coast Guard is located “shall establish” such rules and regulations as may be necessary with respect to the design, construction, and operation of the covered vessels and with respect to a variety of related matters. § 391a (3). In issuing regulations, the Secretary is to consider the kinds and grades of cargo permitted to be on board such vessels, to consult with other federal agencies, and to identify separately the regulations established for vessel safety and those to protect marine environment. Ibid.
Section 391a (5) provides for inspection of vessels for compliance with the Secretary’s safety regulations. No vessel subject to Title II may have on board any of the specified cargoes until a certificate of inspection has been issued to' the vessel and a permit endorsed thereon “indicating that such vessel is in compliance with the provisions of this section and the rules and regulations for vessel safety established hereunder, and showing the kinds and grades of such cargo that such vessel may have on board or transport.” It is provided that in lieu of inspection under this section the Secretary is to accept from vessels of foreign nations valid certificates of inspection “recognized under law or treaty by the United States.”
Title II also directs the Secretary to inspect tank vessels for compliance with the regulations which he is required to issue for the protection of the marine environment. § 391a (6). Compliance with these separate regulations, which must satisfy specified standards, and the consequent privilege of having on board the relevant cargo are evidenced by certificates of compliance issued by the Secretary or by appropriate endorsements on the vessels' certificates of inspection. Certificates are valid for the period specified by the Secretary and are subject to revocation when it is found that the vessel does not comply with the conditions upon which the certificate was issued. In lieu of a certificate of compliance with his own environmental regulations relating to vessel design, construction, alteration, and repair, the Secretary may, but need not, accept valid certificates from foreign vessels evidencing compliance with rules and regulations issued under a treaty, convention, or agreement providing for reciprocity of recognition of certificates or similar documents. §391a(7)(D).
This statutory pattern shows that Congress, insofar as design characteristics are concerned, has entrusted to the Secretary the duty of determining which oil tankers are sufficiently safe to be allowed to proceed in the navigable waters of the United States. This indicates to us that Congress intended uniform national standards for design and construction of tankers that would foreclose the imposition of different or more stringent state requirements. In particular, as we see it, Congress did not anticipate that a vessel found to be in compliance with the Secretary’s design and construction regulations and holding a Secretary’s permit, or its equivalent, to carry the relevant cargo would nevertheless be barred by state law from operating in the navigable waters of the United States on the ground that its design characteristics constitute an undue hazard.
We do not question in the slightest the prior cases holding that enrolled and registered vessels must conform to “reasonable, nondiscriminatory conservation and environmental protection measures...” imposed by a State. Douglas v. Seacoast Products, Inc., 431 U. S. 265, 277 (1977), citing Smith v. Maryland, 18 How. 71 (1855); Manchester v. Massachusetts, 139 U. S. 240 (1891); and Huron Portland Cement Co. v. Detroit, 362 U. S. 440 (1960). Similarly, the mere fact that a vessel has been inspected and found to' comply with the Secretary’s vessel safety regulations does not prevent a State or city from enforcing local laws having other purposes, such as a local smoke abatement law. Ibid. But in none of the relevant cases sustaining the application of state laws to federally licensed or inspected vessels did the federal licensing or inspection procedure implement a substantive rule of federal law addressed to the object also sought to be achieved by the challenged state regulation. Huron Portland Cement Co. v. Detroit, for example, made it plain that there was “no overlap between the scope of the federal ship inspection laws and that of the municipal ordinance...” there involved. Id., at 446. The purpose of the “federal inspection statutes [was] to insure the seagoing safety of vessels... to aifor[d] protection from the perils of maritime navigation,” while “[b]y contrast, the sole aim of the Detroit ordinance [was] the elimination of air pollution to protect the health and enhance the cleanliness of the local community.” Id., at 445.
Kelly v. Washington, 302 U. S. 1 (1937), involved a similar situation. There, the Court concluded that the Federal Motor Boat Act, although applicable to the vessels in question, was of limited scope and did not include provision for "the inspection of the hull and machinery of respondents’ motor-driven tugs in order to insure safety or determine seaworthiness...,” as long as the tugs did not carry passengers, freight, or in.fla.mmable liquid cargo. Id., at 8. It followed that state inspection to insure safety was not in conflict with federal law, the Court also holding that the limited federal regulations did not imply an intent to exclude state regulation of those matters not touched by the federal statute.
Here, we have the very situation that Huron Portland Cement Co. v. Detroit and Kelly v. Washington put aside. Title II aims at insuring vessel safety and protecting the marine environment; and the Secretary must issue all design and construction regulations that he deems necessary for these ends, after considering the specified statutory standards. The federal scheme thus aims precisely at the same ends as does § 88.16.190 (2) of the Tanker Law. Furthermore, under the PWSA, after considering the statutory standards and issuing all design requirements that in his judgment are necessary, the Secretary inspects and certifies each vessel as sufficiently safe to protect the marine environment and issues a permit or its equivalent to carry tank-vessel cargoes. Refusing to accept the federal judgment, however, the State now seeks to exclude from Puget Sound vessels certified by the Secretary as having acceptable design characteristics, unless they satisfy the different and higher design requirements imposed by state law. The Supremacy Clause dictates that the federal judgment that a vessel is safe to navigate United States waters prevail over the contrary state judgment.
Enforcement of the state requirements would at least frustrate what seems to us to be the evident congressional intention to establish a uniform federal regime controlling the design of oil tankers. The original Tank Vessel Act, amended by Title II, sought to effect a “reasonable and uniform set of rules and regulations concerning ship construction...,” H. R. Rep. No. 2962, 74th. Cong., 2d Sess., 2 (1936); and far from evincing
Question: Who is the petitioner of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
|
songer_initiate
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
Carl FISSER and Martha Fisser, co-partners doing business under the firm name and style of Fisser & v. Doornum, Libelants-Appellants, v. INTERNATIONAL BANK, Respondent-Appellee.
No. 274, Docket 25914.
United States Court of Appeals Second Circuit.
Argued April 5, 1960.
Decided Aug. 1, 1960.
See also 164 F.Supp. 826.
George L. Varían, of Crowell, Rouse & Varían, New York City, for libelantsappellants.
Emanuel Becker, of Becker & Martin, New York City, for respondent-appellee.
Before LUMBARD, Chief Judge, and HINCKS and FRIENDLY, Circuit Judges.
HINCKS, Circuit Judge.
The immediate issue for decision is whether the respondent-appellee, International Bank, may be directed to submit to arbitration the determination and measure of any liability it may owe to libelants-appellants, German coal importers, by reason of the conceded breach of a written contract of affreightment signed solely by the libelants and Allied Transportation Corporation, a Liberian corporation which libelants charge was the alter ego of the respondent. The court below answered this question in the negative. It reasoned that whatever liability might ultimately attach to the respondent growing out of the contract default of Allied, its alleged instrumentality or adjunct, the respondent could not be compelled to arbitrate the issue of its liability or the measure thereof because it had not signed the formal charter-party and hence as to it there was no “written provision” for arbitration within the meaning of the Federal Arbitration Act of 1952, 9 U.S.C. §§ 1-14. Accordingly, the court dismissed the libel with its accompanying petition for the enforcement of arbitration.
It is true that under the Act, a “written provision in any maritime transaction * * * to settle by arbitration a controversy thereafter arising out of such * * * transaction” is the sine qua non of an enforceable arbitration agreement. 9 U.S.C. §§ 2, 4. Ift does not follow, however, that under the Act an obligation to arbitrate attaches only to one who has personally signed the written arbitration provision. For the Act contains no built-in Statute of Frauds provision but merely requires that the arbitration provision itself be in writing. Ordinary contract principles determine who is bound by such written provisions and of course parties can become contractually bound absent their signatures. It is not surprising then to find a long series of decisions which recognize that the variety of ways in which a party may become bound by a written arbitration provision is limited only by generally operative principles of contract law.
The charter-party here under consideration clearly contains a written provision in which it is agreed that a controversy such as that now presented shall be submitted to arbitration, and the sole issue for determination is whether the respondent, as well as the formal signatories to the charter-party, is bound by the arbitration provision. Libelants argue that if in fact Allied was the respondent’s mere alter ego, making this a proper case to pierce the corporate veil of Allied and to hold those controlling it as one with it, then consistency and the alter ego doctrine itself require that the respondent be obligated not only to respond in damages for Allied’s breach of contract but to specifically perform Allied’s other contractual obligations, including that of arbitration.
We agree. While we discover no authority on this precise point, it is clear that the consequence of applying the alter ego doctrine is that the corporation and those who have controlled it without regard to its separate entity are treated as but one entity, and at
least in the area of contracts, the acts of one are the acts of all. Weisser v. Mursam Shoe Corporation, supra; Shamrock Oil and Gas Co. v. Ethridge, D.C.Colo., 159 P.Supp. 693; Chilean Nitrate Sales Corp. v. The Nortuna, supra; Powell, Parent and Subsidiary Corporations, Chpt. I. There is no reasonable basis for distinguishing between the parent’s obligation to respond in damages for its instrumentality’s breach of contract and its obligation to arbitrate the measure of those damages. In neither instance does the parent consent to a contractual obligation; to the contrary it carefully avoids any such agreement, express or implied in fact. Farm Security Administration, Department of Agriculture v. Herren, 8 Cir., 165 F.2d 554.
We have heretofore held that the obligation to respond in damages arises from a contract to which the alter ego theory binds that parent which as “puppeteer” has “directed his marionnette” to sign. Weisser v. Mursam Shoe Corporation, supra. We hold now that if the parent is bound to the contract then like its marionette it is bound to submit to arbitration. It follows that the judge erred in ruling that the respondent was not bound by the arbitration clause merely because it had not signed the charter. The respondent’s amenability to arbitration could be solved only by determining whether Allied in entering into the charter did so as the respondent’s alter ego. The judge below thought it unnecessary to deal with that issue and so did not attempt to make comprehensive findings of the facts upon which it depends. We must, therefore, turn to the evidence and make our own findings.
We find the facts to have been as follows. On October 24, 1955 Mr. Lawn, who stated he represented a financial group, requested Phs. van Ommeren Shipping (U.S.A.), Inc., a firm of maritime brokers, to negotiate for ship charters and maritime contracts of affreightment. On that occasion and at later meetings on October 27 and 31 Lawn received general information about the incidents of such business from Mr. Solleveld and Mr. Vincent, the president and vice-president, respectively, of van Ommeren. At the latter meeting van Ommeren’s representatives insisted that they could proceed no further with such business until authorized by a principal with a satisfactory credit rating. Lawn disclosed the respondent as principal, stating that it would operate through a Liberian company. On November 3 Lawn presented as evidence of his authority a letter dated November 2 from the respondent signed by Vreeland, its president. The letter stated, in part:
“We have in principle accepted a proposal to finance and conduct a shipping business which includes time chartering two Liberty dry cargo type ships to carry cargo generally between Mexico, the United States and certain foreign countries.
“The business would be operated through a corporation to be formed by us and to which we would supply the financial resources.
“We advise you of the foregoing so that the initiation of contracts may be expedited pending prompt formalization of the necessary corporate and financial arrangements. * * *»
The letter also referred van Ommeren to respondent’s correspondent banks and listed respondent’s officers and directors and their business connections. Prior thereto the respondent had been engaged in the business of financing ventures but never in operating ventures.
Thereafter, van Ommeren canvassed the market to discover available ships and cargoes. It secured an offer on two ships and so advised respondent by letter dated November 9 in which it requested authorization to negotiate and finalize the charters. No response was forthcoming until November 16 when Vreeland accompanied by Lawn and a Mr. Simonson discussed the project thoroughly with the van Ommeren representatives who told him that $100,000 to $150,000 would be necessary to start the venture. Vreeland gave van Ommeren authority to bid for charters on the two vessels and to continue negotiations on an available coal contract which van Ommeren had discovered. Also, Vreeland concededly told van Ommeren that the respondent would neither appear on nor guarantee the coal contract; that the contract would be performed by a Liberian corporation to be created for that purpose.
At this point, a conflict of testimony developed. Solleveld and Vincent testitied that Vreeland’s explanation to them for operating through a foreign subsidiary was to avoid the payment of United States income taxes; this explanation they accepted since such was common procedure for shipping ventures. These van Ommeren officers also testified that Vreeland assured them the respondent would furnish Allied with all •necessary financial resources and that as responsible principal it would stand behind the performance of the operating company which it had nominated. There was, however, no evidence that these representations to van Ommeren were passed along to the libelants. And that such representations had been made was denied in Vreeland's testimony. He testified that the respondent’s sole interest in the maritime venture, either expressed or otherwise, was the making of a secured loan to Allied. In his testimony he characterized as “unfortunate” his language in the November 2 letter stating that respondent was “prepared to conduct a shipping business.”
Whatever representations were in fact made to van Ommeren that firm successfully negotiated by November 28 a three-year coal contract with the libelants which was to commence April 1, 1957. In the course of these negotiations van Ommeren informed libelants that it was acting on behalf of Allied, a company “nominated and controlled by International Bank who will not appear in Charter Party”; that the respondent had numerous companies available for a variety of purposes. The libelants informed van Ommeren that they had been unable to obtain a financial report on Allied and therefore requested a more detailed report on the respondent. In response van Ommeren forwarded a list of the respondent’s officers and directors and their business connections. Neither van Ommeren nor the respondent ever made additional representations to the libelants relative to the relationship between Allied and the respondent.
At a conference on November 28, in response to Vincent’s request for formal authorization to confirm the coal contract, Vreeland orally replied: “I give you that authority.” (Now on appeal it is sharply disputed whether he gave this authority on behalf of respondent, as its president, or on behalf of Allied, as its president.) On that same day van Ommeren confirmed the contract with the libelants and simultaneously sent a letter to the respondent, attention Vreeland, in part as follows:
“We have pleasure in confirming herewith the fixture, made with your authority on behalf of Allied * * * which Corporation is understood to be controlled by you, as Owners and/or Charter Owners and/or Disponent Owners, with * *
Vreeland acknowledged this letter in a letter of his own which was both written on respondent’s letterhead and signed by Vreeland, as its president. He therein informed van Ommeren that a Mr. Becker had been retained by Allied to supervise its shipping activities. The letter stated, in part:
“From time to time Mr. Becker will be in touch with you regarding the operations of Allied Transportation Corporation which will be under your management and we want you to know that he is authorized to discuss with you all and any matters pertaining to these operations. We also authorize you to turn over to Mr. Becker, upon his request, any reports, contracts or other documents which concern such operations.”
On December 21, the contract was formally approved by Allied’s directors and on December 28, Vreeland signed the formal contract in the name of Allied after it had been carefully scrutinized by the respondent’s attorneys. It was subsequently signed by the libelants. Allied completely breached the contract: it took no steps by way of performance. Indeed, it was wholly without financial ability to perform, never having had capital in excess of the $500 paid by Simonson for one half of the capital stock, as will presently appear.
The relationship between the respondent, Allied, Simonson and Lawn was in fact as follows. The latter two men first became associated with the respondent in connection with the shipping venture. It was agreed that they were to act as Allied’s managers in developing cargo contracts. Vreeland testified that the respondent agreed only to finance Allied through a secured loan but Lawn testified that at some time prior to November 16 it was agreed that respondent would •own 50% of Allied’s stock and that the remaining 50% would belong to Simon-son but would be held by respondent as collateral until the operation resulted in a profit sufficient to repay $100,000 of the $150,000 loan which respondent agreed to advance Allied.
Meanwhile, Allied had been organized by one of respondent’s subsidiaries on November 18. At that time the organization dummies executed proxies, two of which ran to Vreeland and one to Simon-son who was not connected with the respondent. The subscriptions of the three dummies to one share each were assigned to respondent but no certificates of stock were then or thereafter ever issued. At the first stockholders’ meeting on December 21, Vreeland, Simonson and Meyer, who was respondent’s treasurer, were ■elected directors together with a lawyer, Wasson, who had previously represented certain of respondent’s subsidiaries. These four men were also elected president, vice-president, treasurer and secretary, respectively. At the first directors’ meeting it was voted that cheeks signed by the president or treasurer (who held corresponding offices in the respondent) must also be signed by Simonson, vice-president, or Lawn, agent (neither of who was an officer or employee of the respondent). At the trial, none of these men could say who had paid Allied’s organization fees and the cost of such items as its minute book and stock ledgers.
On December 28, Allied, Simonson and respondent entered into a written agreement defining their relations. Under this agreement, Simonson agreed to purchase the 500 authorized shares of Allied’s common stock at $1 per share. These shares were to be issued to respondent, however, and it was to have full voting power until such time as Allied repaid respondent’s $100,000 loan. Allied agreed to repay the loan not later than February 1, 1957 and respondent on its part agreed to purchase or secure a purchaser for $50,000 of convertible preferred stock and to vote to retain Simonson as a member of the board and as vice-president as long as it remained holder of record of Simonson’s shares.
Thereafter, Vreeland made contact with Gevers, an officer of the Bankers Trust Company, and inquired into the possibility of discounting Allied’s $100,-000 note if it were endorsed by respondent. Gevers testified that Vreeland stated that respondent planned to enter the shipping field for which purpose it had created Allied. Vreeland in his testimony categorically denied making such a statement. It is agreed, however, that Bankers Trust Company consented to the proposed loan. Shortly thereafter the loan request was withdrawn and Allied never received any funds. For unexplained reasons respondent never purchased Allied’s convertible preferred stock and Meyer never deposited Simon-son’s $500 check in payment for the common stock. Nor did respondent ever loan Allied any money. Vreeland testified that it was the respondent’s intention to make the loan only if Allied could carry out the business it had undertaken and this became impossible because Allied could not procure ships.
The foregoing facts, we hold, do not justify disregard of Allied’s separate existence. An examination of all the cases which the parties cite and of many others dealing with this problem has left us with the conviction that nowhere is there a better statement of the generally applicable principles than that found in Lowendahl v. Baltimore & Ohio R. R. Co., 247 App.Div. 144, 287 N.Y.S. 62, affirmed 272 N.Y. 360, 6 N.E.2d 56. There, borrowing heavily from a leading text on this subject, the court said:
“Restating the instrumentality rule, we may say that in any case, except express agency, estoppel, or direct toft, three elements must be proved:
“(1) Control, not mere majority or complete stock control, but complete domination, not only of finances, but of policy and business practice in respect to the transaction attacked so that the corporate entity as to this transaction had at the time no separate mind, will or existence of its own; and
“(2) Such control must have been used by the defendant to commit fraud or worse, to perpetrate the violation of a statutory or other positive legal duty, or a dishonest and unjust act in contravention of plaintiff’s legal rights; and
“(3) The aforesaid control and breach of duty must proximately cause the injury or unjust loss complained of.” [247 App.Div. 144, 287 N.Y.S. 76.]
We incline to think that the libelants have failed to prove such control over Allied by the respondent as to bring its case within the first requirement of the rule as above-stated. For aught that appears, Vreeland in authorizing van Ommeren to confirm the contract may have been acting as Allied’s president — not as an executive of the respondent. Likewise, as to the arrangements for the loan from the Bankers Trust Company, and the subsequent withdrawal of the request therefor; also the arrangements whereby Becker was employed to supervise Allied’s activity.
The proofs do not show that in doing these things, or others transpiring subsequent to Allied’s organization, executives of the respondent were directly meddling with the management of Allied’s affairs: it is equally plausible to ascribe the acts to the same individuals as Allied’s executives participating in a manner normal and usual for stockholders and directors of an independent corporation. It would, of course, be a complete disregard of the basic structure of corporation law to hold that Allied, merely because it elected the respondent’s officers to be its officers, forfeited its entity and deprived its parent-stockholder of immunity from liability for its contracts.
Moreover, there were outsiders on Allied’s Board of Directors whose signature was required on checks signed by Vreeland and Meyer (officers of both Allied and the respondent) and who had demonstrated their independence by obtaining an arms-length contract with the respondent for Allied’s financial requirements. These same outsiders were to be active in the management of Allied and it might well be said that they were the real entrepreneurs in the entire venture. Lowendahl v. Baltimore & Ohio R. R. Co., supra. The proofs as to control on which the libelants rely, including the testimony of van Ommeren’s officers as to statements made to them by Vreeland, are fairly ascribable to the ordinary and temporary control over an incipient corporation by its incorporators. Such proofs, in our opinion, are not enough to demonstrate that Allied, subsequent to its organization, lacked an independent entity.
But even if on the issue of control the preponderance of the evidence favored the libelants, it is altogether plain that the second stated element of the rule has not been proved. There is no evidence that all the statements allegedly made by Vreeland to van Ommeren’s officers had been passed along to libelants: they had been told only that the negotiations were “on behalf of Allied, a company nominated and controlled by International Bank who will not appear in the charter party.” Surely there was no fraud in this representation, nor did it indicate an identity between respondent and Allied which now justifies a piercing of Allied’s corporate veil. It was foursquare with the truth: it misled the libelants not a whit. The caution that the respondent “will not appear” apparently led them to make inquiries as to Allied’s financial standing. However, when their inquiries turned up no information as to Allied — a fact which of itself might have been expected to put them on their guard — they made no demand on the respondent for a guarantee or other assurance. Nor did they inquire whether Allied even had the necessary ship-charters for performance. These omissions are perhaps of more significance in view of the earlier efforts in behalf of Allied or the respondent to obtain a guarantee from the libelants. The contract reserved to the libelants a right to cancel if at any time the German government prohibited the importation of American coal. It is plausible to ascribe to this provision, or perhaps to the favorable freight rate, the libelants’ readiness to deal with the subsidiary: they may well have felt that a thoroughly responsible principal such as the respondent could not be found which would accept such unfavorable terms. Even if the libelants on the strength of the representation believed that the respondent, because it “nominated and controlled,” would be liable, its belief was not the product of the respondent’s wrongdoing. We may not strip Allied of its separate entity merely because of the libelants’ naivete nor because it is now dissatisfied with the bargain it made. New York Trust Co. v. Carpenter, 6 Cir., 250 F. 668; Texas Co. of Mexico S. A. v. Roos, 5 Cir., 43 F.2d 1; North v. Higbee Co., 131 Ohio St. 507, 3 N.E.2d 391; Hanson v. Bradley, 298 Mass. 371, 10 N.E.2d 259; Hooper-Mankin Co. v. Matthew Addy Co., 6 Cir., 4 F.2d 187. Certainly the respondent did not use its control over Allied to perpetrate the violation of any duty, statutory or otherwise, or any act, unjust or otherwise, in contravention of the libelants’ legal rights.
The libelants make much of the fact that to carry out the contract Allied was grossly undercapitalized and claims this fact as a sufficient reason to pierce its corporate veil. There may be situations in which the launching of a subsidiary corporation upon the stream of commerce with capital grossly inadequate for its expected activities will be indicative of lack of an independent entity. However that may be, we are pointed to no authorities which justify a disregard of a corporation’s separate existence merely because of its undercapitalization when its controlling stockholder has at least regarded the formalities of such existence. In Stark Electric R. Co. v. McGinty Contracting Co., supra, under-capitalization was not the only pertinent factor; the subsidiary was also represented as being one with the parent. And in Luckenbach S. S. Co. v. W. R. Grace & Co., 4 Cir., 267 F. 676, while the subsidiary’s disproportionate lack of capital was noted, there was also present the additional element of unconscionably holding the subsidiary out as the apparent owner of valuable assets.
In any event, this record affords no factual basis for such a claim. For aught that appears, the respondent and its associates, who were concededly unfamiliar with shipping ventures, were not unreasonable in their reliance on the predictions of experts that Allied would need no more than $150,000 to successfully handle those operating expenses which would be incurred during the several months before monies would come due on the coal contract. While it is true that the respondent agreed to furnish $100,000 of this sum through a loan rather than as a capital contribution, it also agreed to furnish an additional $50,-000 through the purchase of preferred stock. We cannot say that with these funds Allied would have been under-capitalized — still less that its undercapitalization would have been so gross as to be a badge of fraud or wrong. At most, this was a case of inadequate capitalization, the risk of which under the normal rule the corporate creditors must bear.
Finally, even if we were to assume, as libelants would have us do, that respondent by failing to furnish Allied with the promised capital and loans thereby breached some duty owed to libelants, it is not proved that the libelants’ loss was proximately caused thereby. Thus the third element of the above-stated rule is absent. In fact, the sole explanation for Allied’s failure to carry out the coal contract was its inability to charter vessels. And there is nothing to show that this inability was due to a failure of respondent’s loan and capital commitments. Such evidence as there is flows in the opposite direction: it suggests that the respondent did not go through with the proposed loan to Allied because even with the loan ship charters could not be obtained. For owners having ships for hire demanded bankable charters which in turn depended upon the guaranty of a responsible United States corporation. This was an obvious risk inherent in dealing with a foreign subsidiary of a United States corporation and one which libelants cannot now claim was in any way caused by the wrongful control of an undercapitalized foreign subsidairy. The language of Judge Learned Hand is here appropriate. “The libelant has been disappointed, not in failing to get the promise which it supposed, but in its performance, a risk inherent in any contract.” Dry Dock Co. v. Lake Champlain Transportation Co., 2 Cir., 31 F.2d 265, at p. 267. Kingston
And so, not because the contract had not been signed by the respondent but because the libelants failed to prove that Allied was the respondent’s alter ego,
The judgment below is affirmed.
. Throughout this opinion we will refer to the parties by their relation to the controversy below.
. The libel was filed by Fisser & v. Doornum, a German partnership engaged in the import and wholesale coal business and as shipowners and brokers, on its own behalf as the chartering broker and on behalf of certain named German entities. Judge Palmieri in an earlier opinion ruled that the libel was properly brought by the libelants on their behalf and for the benefit of their named principals. 164 F.Supp. 826.
. Even assuming, arguendo, that a party can bind himself to a “written provision” for arbitration only by signing such a provision, still, based upon ample authority in related fields, this would be no obstacle to imputing to a controlling parent its instrumentality’s contractual obligation to arbitrate. Thus we noted in Weisser v. Mursam Shoe Corporation, 2 Cir., 127 F.2d 344, 145 A.L.R. 467, that the better reasoned authorities do not allow a defendant to abuse the privilege of stockholder-immunity by invoking the Statute of Frauds or the sealed instrument rule where its instrumentality, at least, has signed the necessary instrument. See Powell, Parent and Subsidiary Corporations, Chpt. V and VIII.
. Compare § 1449 of the New York Civil Practice Act which states that “[e]very submission to arbitrate an existing controversy is void, unless it or some note or memorandum thereof be in writing and subscribed by the party to be charged therewith or by his lawful agent.” (Emphasis added.) This provision obviously conditions the enforceability of a submission to arbitrate an existing controversy upon the signature of the party to be charged. Bellmore Dress Co. v. Tanbro Fabrics Corp., Sup., 115 N.Y. S.2d 11; In re Exeter Mfg. Co., 254 App.Div. 496, 5 N.Y.S.2d 438. These same authorities hold, however, that under another portion of § 1449, which like the Federal Arbitration Act provides that “[a] contract to arbitrate a controversy thereafter arising between the parties must be in writing,” the liability of a party is determined by the ordinary principles of the law of contracts.
. American Airlines, Inc. v. Louisville & Jefferson C. A. B„ 6 Cir., 269 F.2d 811; Kulukundis Shipping Co. v. Amtorg Trading Corp., 2 Cir., 126 F.2d 978; Goldhill Trading & Ship. Co., etc. v. Caribbean Ship. Co., D.C.S.D.N.Y., 56 F.Supp. 31; cf. Corbin on Contracts, Vol. 6, § 1444A.
. Thus assignees of contracts containing arbitration provisions may become parties to such provisions, Application of Reconstruction Finance Corp., D.C.S.D. N.Y., 106 F.Supp. 358 (and cases cited therein); Instituto Cubano v. The M. Y. Driller, D.C.S.D.N.Y., 148 F.Supp. 739; Corbin on Contracts, Vol. 4, § 892. The same result is reached under the New York Act, Matter of Lipman v. Haeuser Shell Co., 289 N.Y. 76, 43 N. E.2d 817, 142 A.L.R. 1088. Similarly, an optionee by exercising an option may create a mutually binding contract to arbitrate, Calvine Mills, Inc. v. L. A. Slesinger Inc., 2 Cir., 258 F.2d 228. When a party is added to a contract by novation he can enforce an arbitration provision therein even though he is not a signatory to the contract. And enforcement can be had against another non-signatory who is merely the instrumentality of a party bound by the arbitration clause. Chilean Nitrate Sales Corp. v. The Nortuna, D.C.S.D.N.Y., 128 F. Supp. 938. Also, a corporate beneficiary may enforce an arbitration provision which was executed when it was still inchoate. Application of Jacoby, Sup.Ct. N.Y.Co., 33 N.Y.S.2d 621. See also Parry v. Bache, 5 Cir., 125 F.2d 493; In re Exeter Mfg. Co., supra; and Bellemore Dress Co. v. Tanbro Fabrics Corp., supra, for other illustrations of parties being contractually bound to written arbitration provisions absent their signatories to such agreements.
. Section 3 of the charter-party provided . a * * * if any depute or difference should arise under this Charter, same to be referred to three parties in the City of New York, one to be appointed by each of the parties hereto, the third by the two so chosen, and their decision, or that of any two of them, shall be final and binding, and this agreement may, for enforcing the same, be made a rule of Court. Said three parties to be commercial men.”
It is no longer open to serious question that, even if damages are the sole issue for arbitration, that issue is within a clause of general arbitration and under the Federal Arbitration Act the clause will be specifically enforced against all those bound by it. Shanferoke Coal & Supply Corp. v. Westchester Service Corp., 2 Cir., 70 F.2d 297, affirmed 293 U.S. 449, 55 S.Ct. 313, 79 L.Ed. 583; Kulukundis Shipping Co. v. Amtorg Trading Corp., supra.
. The libelants relied below upon Lehman v. Ostrovsky, 264 N.Y. 130, 190 N.E. 208; In re Bond and Mortgage Guarantee Co., 288 N.Y. 270, 42 N.E.2d 38; and General Commodities Corp. v. Hyman-Michaels Co., 9 Cir., 224 E.2d 952. But these cases are plainly distinguishable from that now before us. More directly in point and in accord with our conclusion is Judge Dawson’s opinion in Chilean Nitrate Sales Corp. v. The Nortuna, supra.
. The libelants do not claim that Allied in signing the charter was the respondent’s authorized agent.
. In this, the respondent acted through the International Bank of Washington, a New York corporation wholly owned by it, to which it had transferred the operation of its foreign department
. Powell, Parent and Subsidiary Corporations (1931), pp. 4r-6.
. See Consolidated Rock Products Co. v. Du Bois, 312 U.S. 510, 523-524, 61 S. Ct. 675, 85 L.Ed. 982; United States v. Reading Co., 253 U.S. 26, 62, 40 S.Ot. 425, 64 L.Ed. 760; Kingston Dry Dock Co. v. Lake Champlain Transp. Co., 2 Cir., 31 F.2d 265 (and cases cited therein) ; Hollander v. Henry, 2 Cir., 186 F. 2d 582; Costan v. Manila Electric Co., 2 Cir., 24 F.2d 383; Centmont Corporation v. Marsch, 1 Cir., 68 F.2d 460; Hooper-Mankin Co. v. Matthew Addy Co., 6 Cir., 4 F.2d 187; Fish v. East, 10 Cir., 114 F.2d 177.
. See Taylor v. Standard Gas & Electric Co., 10 Cir., 96 F.2d 693, and the many cases cited therein, reversed on other grounds, 306 U.S. 307; Hooper-Mankin Co. v. Matthew Addy Co., supra; Garden City Co. v. Burden, 10 Cir., 186 F. 2d 651; Powell, fn. 11, supra, at p. 10; Fletcher, Cyclopedea of Private Corporations, § 43 at pp. 158-159.
. We note also the probability that respondent, as contrasted with Allied, had no power to carry on a shipping venture, i. e., that the held corporation had power to engage in activities without the scope of those authorized for the parent. This is a factor of considerable weight against a piercing of Allied’s corporate veil. Fletcher, fn. 13, supra, at § 43, fn. 76.
. Although these statements were denied by Vreeland, for purposes of this opinion we take them as true.
. This representation differed vitally from those in such cases as Weisser v. Mursam Shoe Corporation, supra; Hollander v. Henry, supra; Stark Electric R. Co. v. McGinty Contracting Co., 6 Cir., 238 F. 657.
. See, e. g., Anderson v. Abbott, 321 U.S. 349, 64 S.Ct. 531, 88 L.Ed. 793; Weisser v. Mursam Shoe Corporation, supra; United States v. Morris & Essex R. Co., 2 Cir., 135 F.2d 711; Majestic Co. v. Orpheum Circuit, 8 Cir., 21 E.2d 720 (and many eases cited therein); Texas Co. of Mexico S. A. v. Roos, supra; New York Trust Co. v. Carpenter, supra; Bartle v. Home Owners Cooperative, 309 N.Y. 103, 127 N.E.2d 832; North v. Higbee Co., supra; United States v. Is- ' lip Machine Works, Inc., D.C.E.D.N.Y., 179 F.Supp. 585, Powell, fn. 11, supra, Chpt. III.
. This fact has led one commentator to classify this case as one growing out of estoppel, and it is of some interest that this same commentator makes no separate classification of mere undercapitalization as an actionable wrong, although he does list it as one persuasive, though not controlling, circumstance indicating improper control over a mere instrumentality. Powell, fn. 11, supra, at pp. 14 and 66. Compare Note, 71 Harv.L. Rev. 1122, 1132-1133.
. See Majestic Co. v. Orpheum Circuit, fn. 17, supra; North v. Higbee Co., supra; Hanson v. Bradley, supra; cf. Powell, fn. 11, supra, Chpt. IV.
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
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songer_direct1
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A
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine the 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.
Cleo M. BRADFORD and LaJuan Gay Bradford, husband and wife, Plaintiffs-Appellees, v. UNITED STATES of America, ex rel. DEPARTMENT OF INTERIOR, BUREAU OF LAND MANAGEMENT DIVISION OF LANDS AND MINERALS, Defendant-Appellant, and Pauline Street Johnson; Farmers Union Cooperative Royalty Company, a corporation; Flag Oil Corporation of Delaware, a corporation; Flag-Redfern Oil Company, a corporation; and J. D. Lee, Defendants-Appellees, State of Oklahoma, ex rel. Commissioners of the Land Office; John S. Badger; and F. Blair Thorp Nuclear Corporation of New Mexico, a corporation, Defendants.
No. 79-1228.
United States Court of Appeals, Tenth Circuit.
Argued Sept. 17, 1980.
Decided June 8, 1981.
Rehearing Denied August 31, 1981.
Martin Green, Atty., Dept, of Justice, Washington, D. C. (Sanford Sagalkin, Acting Asst. Atty. Gen., Washington, D. C., Larry D. Patton, U. S. Atty., and John E. Green, First Asst. U. S. Atty., Oklahoma City, Okl., Carl Strass, Atty., Dept, of Justice, Washington, D. C., with him on the brief), for defendant-appellant United States of America.
Larry M. Weber of Myers, Mollison & Weber, Altus, Okl., for plaintiffs-appellees, Cleo M. Bradford and LaJuan Gay Bradford.
James C. Pinkerton, Tulsa, Okl. (Carl Pinkerton, Tulsa, Okl., with him on the brief), for defendant-appellee Flag-Redfern Oil Co.
Granville Tomerlin of Tomerlin & High, Oklahoma City, Okl., filed brief for defendant-appellee Farmers Union Cooperative Royalty Company. Barney W. Miller of Miller, Smith & Dawson, Oklahoma City, Okl., joined in briefs of Farmers Union Cooperative Royalty Co. and Flag-Redfern Oil Co. for defendant-appellee Pauline Street Johnson. Charles C. Yon of Oklahoma City, Okl., joined in brief of Farmers Union Cooperative Royalty Co. for defendant-appel-lee J. D. Lee.
Before DOYLE, McKAY and SEYMOUR, Circuit Judges.
SEYMOUR, Circuit Judge.
Plaintiffs Cleo M. and LaJuan Gay Bradford (Bradford) brought this quiet title action pursuant to 28 U.S.C. § 2409a. Named as defendants were the owners of the property to the northwest of the Bradford land, including Pauline Street Johnson, Farmers Union Cooperative Royalty Company, Flag Oil Corporation, J. D. Lee and other interest holders (the Johnson defendants), and the owner of the property to the southeast of the Bradford land, the United States. The property of all parties to the litigation is contiguous to the Red River in Harmon County, Oklahoma.
The original complaint alleged that Bradford owned the entire bed of the Red River adjoining his land, and that the respective defendants owned the entire riverbed adjoining their lands. Bradford sought to establish the lateral boundaries extending across the river between his land and that of the Johnson defendants to the northwest and the United States to the southeast. Appendix A to this opinion is a copy of a diagram, drawn on a 1921 survey, that shows the approximate relationship of the parties’ land to one another and to the Red River.
The Johnson defendants filed answers and cross-claims alleging ownership of the entire riverbed adjoining their property. In its answer, counterclaim and cross-petition, the United States admitted the riparian nature of the lands at issue, and that Bradford and the Johnson defendants were entitled to the north one-half of the Red River bed. But it asserted ownership of the south half of the riverbed on the basis of Oklahoma v. Texas, 258 U.S. 574, 42 S.Ct. 406, 66 L.Ed. 771 (1922). In addition, the United States raised 28 U.S.C. § 2409a(f) as an “affirmative defense.” That statute provides:
“Any civil action under this section shall be barred unless it is commenced within twelve years of the date upon which it accrued. Such action shall be deemed to have accrued on the date the plaintiff or his predecessor in interest knew or should have known of the claim of the United States.”
The United States cited two decisions of the Supreme Court, Oklahoma v. Texas, 258 U.S. 574, 42 S.Ct. 406, 66 L.Ed. 771 (1922), and Oklahoma v. Texas, 260 U.S. 606, 43 S.Ct. 221, 67 L.Ed. 428 (1923), and their historical notoriety as the sole grounds for establishing the knowledge requirement of the statute.
Subsequently, Bradford filed an amended complaint disclaiming any interest in the south half of the riverbed and alleging only that through the acquisition of his riparian land he had acquired title to the north half. The Johnson defendants did not abandon their claims to the entire riverbed abutting their land.
Pursuant to a pretrial conference and order, Bradford and the United States agreed that the median line of the Red River bed and the boundary between their lands would be established by a recent U. S. Government survey. Bradford and the Johnson defendants agreed that the boundaries between their lands would be determined in accordance with the Oklahoma Supreme Court opinion in Goins v. Merryman, 183 Okl. 155, 80 P.2d 268 (1938). The pretrial order stated that the principal remaining issue was the ownership of the south half of the riverbed claimed by both the United States and the Johnson defendants. Although the pretrial order declared that the district court had jurisdiction over the cause of action, the statute of limitations issue raised in the answer of the United States was not mentioned.
The United States subsequently filed three briefs and an amended answer, all claiming ownership only of the south half of the riverbed adjoining the property of Bradford and the Johnson defendants. The riparian character of the lands was expressly admitted by the United States in these pleadings. The parties thereafter entered into stipulations that declared Bradford the owner of the north half of the riverbed adjoining his land and the United States the owner of the south half, established the boundaries between the lands of Bradford and the United States, resolved all factual disputes, and left the only remaining issue of law the ownership of the south half of the riverbed abutting the property of the Johnson defendants. The case was submitted to the trial court on these stipulations.
As we have stated, the United States based its claim upon the Oklahoma v. Texas cases, particularly the opinion reported at 258 U.S. 574, 42 S.Ct. 406, 66 L.Ed. 771 (1922). The Johnson defendants relied on Choctaw & Chickasaw Nations v. Seay, 235 F.2d 30 (10th Cir.), cert. denied, 352 U.S. 917, 77 S.Ct. 216, 1 L.Ed.2d 123 (1956). Appendix B is a copy of an historical map showing the relation of Oklahoma and the Red River to the lands involved in the cited federal actions. After tracing the history of the Oklahoma v. Texas litigation, the trial court concluded that those cases are not determinative here because they conclusively established ownership of the Red River bed only between the mouth of the North Fork and the 98th degree of west longitude, an area which does not include the land at issue in this case.
According to the stipulated facts, the lands of Bradford and the Johnson defendants and all of the adjoining bed of the Red River originally belonged to the United States. The United States issued the initial patent to the Bradford land to Bradford’s predecessor in 1905, and the initial patent to the land now owned by the Johnson defendants in 1925. The common law rule concerning conveyances of riparian land was set out by this court in Seay:
“Under the common law, a grant of land bounded on a non-navigable river by a grantor who owns to the center or thread of the stream conveys to the grantee the land to the center or thread of the stream, unless the terms of the grant and the attendant circumstances clearly denote an intention to stop at the edge or margin of the river.
“When, however, the grantor owns the entire bed of the stream, but no part of the upland on the opposite side, in the absence of a clear indication of a contrary intention from the terms of the grant and the attendant circumstances, the grant will be construed to convey to the grantee the entire bed of the stream.”
235 F.2d at 35 (emphasis added). The district court examined the original patent and the circumstances surrounding its conveyance and found no clear indication that the United States intended to retain any part of the Red River bed. Accordingly, it concluded that the Johnson defendants, as successors in interest to the original patentee, own the entire riverbed abutting their property.
The United States raises two issues on appeal. First, it renews its contention that the suit is barred by 28 U.S.C. § 2409a(f). Second, it argues for the first time that the lands at issue were not riparian either when patented or at any time thereafter, and that therefore principles of riparian ownership should not be applied. We hold jurisdiction to be established in this case as a matter of law. Moreover, under the circumstances surrounding this litigation, the interests of justice would not be served by allowing the Government to present a new theory of relief for the first time on appeal. In any event, the Government’s new theory is totally without merit under long established principles of property law. Accordingly, the judgment is affirmed.
I.
The Government has consented to be sued in quiet title actions under 28 U.S.C. § 2409a(a). Such an action is barred, however, if it is commenced more than twelve years after the date upon which the plaintiff or his predecessor in interest knew or should have known of the claim of the United States. See 28 U.S.C. § 2409a(f). Timeliness is a jurisdictional prerequisite to suit under section 2409a. Knapp v. United States, 636 F.2d 279, 282 (10th Cir. 1980).
The complaint in this case expressly alleged jurisdiction. The Government challenged that jurisdiction on the sole basis that Oklahoma v. Texas, 258 U.S. 574, 42 S.Ct. 406, 66 L.Ed. 771 (1922), and Oklahoma v. Texas, 260 U.S. 606, 43 S.Ct. 221, 67 L.Ed. 428 (1923), “prove such knowledge as is required by the statute” because of their “historical notoriety.” Rec., vol. I, at 32. In its answer to the cross-petition of the United States, Defendant Farmers Union Cooperative summarized the Government’s position on this point as an assertion that the Oklahoma v. Texas cases “established that the United States claimed title to all of the so-called South Half of the Red River lands ... throughout the entire length of that portion of the Red River constituting the division line between the State of Oklahoma and the State of Texas, sufficient to invoke the operation of 28 U.S.C. § 2409a(f) .... ” Rec., vol. I, at 40. Farmers Union then denied this contention, alleging the inapplicability of the Oklahoma v. Texas decisions because they specifically indicate that the title issues therein were being decided exclusively on the language of the particular conveyances and treaties involved in those cases.
The Government does not assert that the appellees or their predecessors “knew” of the Government’s claim, only that they “should have known” because of the “notoriety” of the Oklahoma v. Texas decisions. In other words, it is the Government’s position that those cases gave constructive notice of a claim by the United States. The trial judge implicitly disposed of this contention when he held for appellees on the merits. He noted that the Oklahoma v. Texas cases were confined to the express language of the relevant treaties and patents governing the conveyances in those cases, and held that the patent in this case, in view of the common law rules of construction, simply does not support the Government’s argument. Indeed the Government admits in its brief on appeal that the Oklahoma v. Texas cases do not support the position it took below on the merits.
In sum, Bradford and the Johnson defendants asserted jurisdiction under the statutory scheme of 28 U.S.C. § 2409a, the Government questioned that jurisdiction solely on the basis of its interpretation of two cases, and the district court concluded that those cases do not support a claim by the Government. We agree with the district court. It was not necessary to “try” the issue of jurisdiction in any evidentiary sense. The issue was purely one of law as to whether those cases could give notice of the Government’s claim, thereby triggering the twelve-year period specified in 28 U.S.C. § 2409a(f). We must conclude as a matter of law that Bradford and the Johnson defendants carried their burden to establish jurisdiction.
II.
The Government argues for the first time on appeal that the appellees’ ’ands are not now and never have been riparian. This is an audacious argument in view of the Government’s concession in its answer, cross-petition and stipulation of facts to both the riparian nature of the lands at issue and appellees’ ownership to the middle of the riverbed. Indeed the Government’s entire position in the trial court was grounded upon the riparian nature of these lands. The Government now seeks to have this court hold everything accomplished below for naught, and to permit wholly new factual and legal contentions to be injected into the litigation at this late stage of the proceedings.
“It is the general rule, of course, that a federal appellate court does not consider an issue not passed upon below.” Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976); accord, Neu v. Grant, 548 F.2d 281, 287 (10th Cir. 1977); United States v. Immordino, 534 F.2d 1378, 1381 (10th Cir. 1976). The Supreme Court has explained that this rule is “essential in order that parties may have the opportunity to offer all the evidence they believe relevant to the issues ... [and] in order that litigants may not be surprised on appeal by final decision there of issues upon which they have had no opportunity to introduce evidence.” Hormel v. Helvering, 312 U.S. 552, 556, 61 S.Ct. 719, 721, 85 L.Ed. 1037 (1941).
This court has pointed out that the rule is particularly applicable where the party wishing to raise the new issue on appeal invited the alleged error below. See Neu v. Grant, 548 F.2d at 287. In this case, the Government’s claim and its stipulations were founded on the riparian character of the lands. Appellees were therefore justified in believing that this issue was settled and that no evidence showing the riparian nature of the lots was necessary. The Government offers no reason for its failure to raise the issue below other than to admit that it erroneously chose to rely exclusively upon the Oklahoma v. Texas cases to support its theory of relief. The Supreme Court has definitively stated that “[t]he Government ... may lose its right to raise factual issues of this sort ... when it has made contrary assertions in the courts below, when it has acquiesced in contrary findings by those courts, or when it has failed to raise such questions in a timely fashion during the litigation.” Steagald v. United States, - U.S. -, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981). The Government’s contention on appeal that it is entitled to the entire riverbed is particularly egregious with respect to the Bradfords, who gave up their claim to the south half of the riverbed in reliance on the Government’s admission in its answer that the Bradfords owned the north half.
Under all of these circumstances, a gross injustice would be worked upon these appel-lees if we disregarded an established principle of appellate review and required the entire suit to be relitigated simply because the Government lost the first time around. Even were we to permit relitigation, it would be futile because the Government could not prevail upon the new theory it wishes to assert. In view of the lengthy treatment by the dissent of this theory, some observations on its lack of merit are appropriate.
III.
The Government seeks to avoid the effect of the common law principles applicable to conveyances of riparian lands as set forth by this court in Choctaw & Chickasaw Nations v. Seay, 235 F.2d 30 (10 Cir. 1956). To do so, it now contends that the lots at issue here are not riparian and never have been. The dissent apparently agrees, finding persuasive the fact that the Red River bed normally contains very little water.
However, the Government itself established the riparian nature of the lots at issue here, and indeed of all the lots in Oklahoma bounded by the bed of the Red River, when it made the official plat and survey which is incorporated by reference into the descriptions contained in the original patents. The riverbed was as dry then as it is now. If the Government had believed at that time that the riverbed was too dry to form a riparian boundary with the adjoining land, it could have surveyed the entire riverbed into whole lots right across to the border of Texas. Instead, the Government survey and plat divided the land adjoining the riverbed into fractional lots having as a boundary the meander line of the Red River. Thus the Government clearly considered these lots to be riparian when it drew up the plat because it showed them to be bounded by a natural watercourse. See United States v. 1,629.6 Acres of Land, 503 F.2d 764, 767 (3d Cir. 1974).
An opinion of the Attorney General, dated July 12, 1926, contains further evidence showing the Government’s recognition of the riparian nature of lands adjoining the Red River. That opinion not only discusses ownership of several sections of the riverbed under the doctrine of riparian land, it cites with approval the very rule applied by the trial court here.
The Government incorporated the official survey and plat by reference into the property description of the original patents. The patentees were entitled to rely on that plat, which described their lots as riparian. The Government now seeks to repudiate the plat over fifty years after the fact by pointing to a condition which was in existence and well known when the lands were surveyed and patented, namely the usually dry condition of the riverbed. The dissent approves of this procedure even though it would create a conveyance entirely different from the one that was intended by the parties at the time. Such a result ignores fundamental doctrines of property law.
In every case cited by the Government in which the ownership of the Red River bed has been litigated, the lots adjoining the riverbed were accepted without question as being riparian. The Government has cited no case involving the conveyance of lots adjoining the river in which the land was found not to be riparian. The Supreme Court specifically noted the riparian nature of the lands on the north bank, see Oklahoma v. Texas, 258 U.S. 574, 591-97, 42 S.Ct. 406, 413-15, 66 L.Ed. 771 (1921), and applied common law principles to the conveyance of these “riparian tracts.” Id. at 595, 42 S.Ct. at 414. This court has also recognized lands adjoining the Red River bed to be riparian and has likewise applied the appropriate common law rules to determine what land was conveyed by the grant of fractional lots bounded by the river. Seay, 235 F.2d 30. There was no more water in the portions of the Red River involved in those cases than there is in the section of the riverbed at issue here. Those cases are controlling on the issue, and preclude a determination that the lots here are not riparian.
These conveyances are to be construed according to the law of the state of Oklahoma, which embodies the common law. Seay, 235 F.2d at 35. Under the common law of property, when “the grant- or owns the entire bed of the stream, but no part of the upland on the opposite side, in the absence of a clear indication of a contrary intention from the terms of the grant and the attendant circumstances, the grant will be construed to convey to the grantee the entire bed of the stream.” Id. (emphasis added) (footnote omitted). It is undisputed that the Government owned the entire riverbed prior to the conveyance of the original patents. The patents themselves convey the entire lots according to the official survey and plot, and contain no reservation of any interest on the part of the United States. Under the common law the grant must be construed to have conveyed the entire riverbed.
The dissent disregards the application of this common law rule and points instead to two grounds from which it believes an intent by the Government to reserve the riverbed may be inferred: namely, the inclusion in the patent descriptions of only the uplands adjoining the riverbed; and the great magnitude and value of the riverbed when compared to the adjoining land. However, these circumstances fall far short of a clear indication of an intent to reserve the riverbed.
With regard to the first ground, the court in Seay pointed out:
“It has been the policy of the Federal government, from its origin, in disposing of the public land bordering on non-navigable streams to measure the price to be paid for it by the quantity of upland granted and to make no charge for land under the bed of a stream. To carry out that policy, meander lines are run in surveying fractional portions of land bordering upon non-navigable rivers, not as boundaries of the tracts, but for the purpose of defining the sinuosities of the banks of the stream and to ascertain the quantity of land in the fractions for which a purchaser is to be charged.”
235 F.2d at 35-36 (emphasis added) (footnote omitted). Here, the Government was following its own policy of including in its patent only the measure of the uplands and not the riverbed itself. Thus this fact cannot be construed as any indication of an intent to reserve the riverbed.
The Government’s argument that its intent to reserve title to the riverbed can be inferred from the allegedly general knowledge of the potential value of the riverbed is also without merit. The Government, having itself established the riparian nature of the lots in question, knew or should have known at the time of the original conveyances that the only way it could retain title to the riverbed was to expressly reserve it in the patents. That it knew of the value of the riverbed and still failed to specifically reserve it argues more persuasively for an intent to convey than an intent to reserve.
Finally, a brief discussion of Smith v. United States, 593 F.2d 982 (10th Cir. 1979), is in order. In Smith a dispute arose over whether a government grant of riparian lands included accretions occurring before conveyance to the patentee. The general common law rule is that where a lot is shown on a plat to be bounded by the meander line of a river, the actual water line is the boundary and not the line as drawn on the plat. Under this rule, accretions to the uplands pass by the grant. Smith recognized a narrow and carefully drawn exception to this general rule, and held that where substantial accretions occur to riparian lands prior to their conveyance, the line shown on the plat may control over the actual water line. Smith did not address the issue of the ownership of the riverbed itself and its facts are not at all similar to those in the instant case. Because Smith creates an exception to longstanding principles of the common law of property, its value as precedent should be carefully limited to closely parallel fact situations. It is clearly not applicable to the instant litigation and its effect should not be extended by an alleged analogy.
The judgment is affirmed.
APPENDIX A
APPENDIX B
Area involved in the present action
Portion of the river involved in Oklahoma v. Texas, 258 U.S. 574, 42 S.Ct. 406, 66 L.Ed. 771 (1922)
Portion of the river involved in Choctaw and Chickasaw Nations v. Seay, 235 F.2d 30 (10th Cir., 1956)
[The historical map of the State of Oklahoma is taken from page 226 of Geological Survey Bulletin 1212, entitled Boundaries of the United States and the Several States, by Franklin K. van Zandt, United States Government Printing Office, Washington, D. C., 1966.]
28 U.S.C. § 2409a(a) provides in relevant part:
“The United States may be named as a party defendant in a civil action under this section to adjudicate a disputed title to real property in which the United States claims an interest, other than a security interest or water rights.”
. “The river has its source in the Staked Plains of northwestern Texas, and from there until it gets well into Oklahoma is within a region where the rainfall is light, is confined to a relatively short period in each year, and quickly finds its way into the river. Because of this the river in the western half of the state does not have a continuous or dependable volume of water. It has a fall of 3 feet or more per mile, and for long intervals the greater part of its extensive bed is dry sand, interspersed with irregular ribbons of shallow water and occasional deeper pools. Only for short intervals, when the rainfall is running off, are the volume and depth of the water such that even very small boats could be operated therein. During these rises the water is swift and turbulent, and, in rare instances, overflows the adjacent land. The rises usually last from one to seven days, and, in the aggregate, seldom cover as much as forty days in a year.”
Oklahoma v. Texas, 258 U.S. 574, 587, 42 S.Ct. 406, 411-12, 66 L.Ed. 771 (1921).
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
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songer_counsel2
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D
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
GEORGETOWN MANOR, INC., a Florida Corporation, Plaintiff-Counterclaim-Defendant-Appellee, Cross-Appellant, George Levin, Plaintiff-Third Party Plaintiff-Third Party-Defendant, Classic Motor Carriages, Inc., a Florida Corporation, Thomasville Showcase Interiors, Inc., a Florida Corporation, Furniture Industries of Florida, Inc., a Florida Corporation, Plaintiffs, Joe Krau, Counterclaim-Defendant, v. ETHAN ALLEN, INC., a Delaware Corporation, Defendant-Counterclaim-Plaintiff-Third Party-Plaintiff-Appellant, Cross-Appellee, Nathan Ancell, Defendant-Counterclaim-Plaintiff-Third Party-Plaintiff. GEORGETOWN MANOR, INC., a Florida Corporation, Plaintiff-Counterclaim-Defendant-Appellant, Cross-Appellee, George Levin, Plaintiff-Third Party-Defendant, v. ETHAN ALLEN, INC., a Delaware Corporation, Defendant-Counterclaim-Plaintiff-Third Party-Plaintiff-Appellee, Cross-Appellant, Nathan Ancell, Defendant-Counterclaim-Plaintiff-Third Party-Plaintiff, Joe Krau, Counterclaim-Defendant, Classic Motor Carriages, Inc., a Florida Corporation, Thomasville Showcase Interiors, Inc., a Florida Corporation, Furniture Industries of Florida, Inc., a Florida Corporation, Third Party-Defendants.
Nos. 91-5343, 91-5600.
United States Court of Appeals, Eleventh Circuit.
May 28, 1993.
Ronald P. Weil, Weil, Robert Zarco, Lucio, Mandler, Croland & Steele, P.A., Miami, FL, Andrew L. Frey, Michael A. Vatis, Cynthia Tripi, Mayer, Brown & Platt, Washington, DC, for Ethan Allen, Inc.
Joel S. Perwin Podhurst, Orseck, Josep-berg, Eaton, Meadow, Olin & Perwin, P.A., Miami, FL, for George Town Manor, Inc.
Before HATCHETT and BLACK, Circuit Judges, and DYER, Senior Circuit Judge.
HATCHETT, Circuit Judge:
In this appeal involving a claim for tor-tious interference with a business relationship, we affirm the district court’s rulings on several issues and certify to the Supreme Court of Florida one issue regarding damages recoverable under Florida law.
BACKGROUND
This appeal follows protracted litigation involving several claims and counterclaims between a furniture manufacturer, Ethan Allen, Inc. (“Ethan Allen”), and its former furniture dealer, Georgetown Manor, Inc. (“Georgetown”). The unraveling of the longstanding dealership relationship between Ethan Allen and Georgetown began in December, 1984, because of a dispute over Georgetown’s credit for future furniture deliveries. On January 9, 1985, Georgetown informed Ethan Allen that it had decided to convert its five Ethan Allen galleries to Thomasville Furniture Industries, Inc. (“Thomasville”) furniture outlets. Georgetown’s owner, George Levin, formed a new corporation, Thomasville Showcase Interiors to operate the new Thomasville galleries at the old Georgetown locations. On January 11, 1985, Georgetown issued a press release announcing the conversion of its stores from Ethan Allen to Thomasville, stating that “Thomasville offers the best opportunities for our company as we look into the future.” Georgetown also sent a letter to its past customers advising them of the conversion and announcing a conversion sale of the Ethan Allen furniture in stock.
On January 24,1985, Ethan Allen’s chairman of the board, Nathan Ancell, sent a memo to other Ethan Allen dealers stating that Georgetown owed $1.6 million as of May, 1984, and that Georgetown had allowed the bills to mount without proper payment even though Ethan Allen had been willing to help Georgetown recover. In addition, on February 3, 1985, Ethan Allen placed a one-day advertisement in several South Florida newspapers, stating:
Dear Valued Customer:
Ethan Allen recently announced a major change in the distribution in the Miami [or General Pompano] Area. Since this change affects you, our valued customer, I would like to explain the situation directly. For about 20 years, Ethan Allen enjoyed a wonderful relationship with the Blau family who operated the Georgetown Manor stores in the Miami area. Because of family illness, the business was sold to a new group. Financial problems developed and our bills were not paid. The debt rose to a high level and we could no longer deliver merchandise to them until the debt was reduced. Reluctantly, we then had to discontinue distribution of Ethan Allen by Georgetown completely. We, therefore, are presently opening new Ethan Allen galleries in this area to serve our many customers of long standing.
One of our fine dealer families in the area, Bob and Brenda Stacy, have established an Ethan Allen office in our present Ethan Allen Contemporary Gallery at 5070 N. Federal Highway, Lighthouse Point (Pompano). The phone number is 305-421-5300. This Gallery will soon become an Ethan Allen American Traditional Gallery. The Stacys will be opening other Ethan Allen Galleries very shortly to serve you.
Many Ethan Allen customers have unfilled orders with Georgetown Manor. We and the Stacys are very anxious to effect deliveries of these orders and can handle them very expeditiously.
Please contact Stacy’s Service Center in Pompano and they will handle your inquiries and orders. Again, the number is 305-421-5300.
The new galleries will be called Ethan Allen Carriage House and will continue to bring you our beautiful furniture and professional services.
We are sorry about this disruption as we took great pains to avoid it.
We look forward to serving you again.
Nathan S. Ancell /s
Nathan S. Ancell
Chairman of the Board
Ethan Allen Inc.
Danbury, CT 06811
PROCEDURAL HISTORY
On January 8, 1985, Georgetown filed an action against Ethan Allen seeking damages and a preliminary injunction compelling Ethan Allen to deliver furniture pursuant to the dealership relationship. During the next several months, Georgetown amended its complaint to include the following six claims against Ethan Allen: (1) intentional interference with the advantageous business relationship between Georgetown and Thomasville; (2) conversion of commissions which Georgetown would have earned on undelivered furniture; (3) breach of contract based on Ethan Allen’s failure to provide Georgetown with an adequate period of time to terminate their relationship, and based on Ethan Allen’s failure to arrange less burdensome payment terms for it as a dealer with satisfactory credit standing; (4) misrepresentation based on Ethan Allen’s failure to provide adequate notice of termination and failure to arrange less burdensome payment terms; (5) trade libel and slander based on the publication of a January 24, 1985 dealer memorandum to all Ethan Allen dealers and the publication of a February 3, 1985 advertisement; and (6) violations of the Sherman and Clayton Acts based on Ethan Allen’s alleged attempts to maintain market power and monopoly position as a furniture supplier in South Florida. Georgetown also added Levin as a plaintiff and Ancell as a party defendant in its amended complaint.
Ethan Allen answered Georgetown’s complaints and asserted the following eight counterclaims against Georgetown, George Levin, and another company which Levin owns, Classic Motor Carriages, Inc. (“Classic Motor”); (1) an account stated claim for the amount that Georgetown owed Ethan Allen for previously delivered furniture; (2) misrepresentations based on Georgetown’s representations that it had sufficient funds to make timely payments for the furniture being delivered; (3) fraudulent concealment of the fact that Georgetown did not have sufficient funds to pay for furniture being delivered; (4) fraudulent conveyance based on transfers of Georgetown’s assets to Levin, Thomasville, Classic Motor, or others without adequate consideration and without regard to Georgetown’s debts to Ethan Allen; (5) conspiracy to commit civil theft based on an alleged scheme to obtain Ethan Allen’s furniture without paying for it; (6) civil theft; (7) conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act (RICO); and (8) violations of RICO.
On July 28, 1986, the district court dismissed all of Georgetown’s claims except the tortious interference claim. On April 13,- 1987, the district court granted summary judgment against Georgetown on four new claims (breach of fiduciary duty, violation of the Connecticut Franchise Act, maintenance, and violation of Florida’s Security of Communications Act) it raised in a third amended complaint. In addition, on October 24, 1988, the district court granted summary judgment against Georgetown on its renewed claim that Ethan Allen violated the Sherman and Clayton Acts. Georgetown filed its fourth and final amended complaint on November 6, 1989, dropping Levin and Ancell as parties and alleging only a tortious interference claim and a conversion claim against Ethan Allen. Georgetown’s amended tortious interference claim alleged that “Ethan Allen wrongfully interfered with plaintiff Georgetown’s customers, past, present, and future,” as opposed to its earlier allegation of interference with its relationship with Thomasville. In an order denying Ethan Allen’s motion for summary judgment, the district court limited the scope of proof on Georgetown’s tortious interference claim to exclude prospective customers as a yardstick for lost profits. Order Denying Motions for Summary Judgment (March 30, 1990) (ruling that “Georgetown must show interference with an existing contractual or business relationship, coupled with legal rights and damages.”) (emphasis in original).
Thus, the case proceeded to trial before a jury on Georgetown’s conversion, claim, Georgetown’s tortious interference as limited in the March 30, 1990, order, and Ethan Allen’s several counterclaims. At the close of Georgetown’s case, the district court directed a verdict in favor of Ethan Allen on the conversion claim. At the close of the trial, on February 12, 1991, the district court entered an order dismissing Ethan Allen’s civil theft, RICO, and two conspiracy counts without prejudice based on a stipulation between the parties.
The jury returned the following verdicts on the remaining claims and counterclaims: (1) on the tortious interference claim, the jury returned a special verdict finding that Ethan Allen had intentionally and maliciously interfered with Georgetown’s business relationships with its customers and that this interference proximately caused damages to Georgetown in the compensatory amount of $285,000 for lost profits on existing contracts, and $7,380,000 for the “loss of the value of Georgetown’s business, including goodwill”; (2) that Ethan Allen was privileged in placing the disputed advertisement because it sought to protect a legitimate economic interest, but that Ethan Allen had not “fairly and truthfully” represented to Georgetown’s customers the reason.for the termination of the dealership relationship; (3) on the interest due on the account stated claim (the amount was not disputed), the jury found that the parties had agreed that Georgetown would pay simple interest at the prime rate for the past due debt; (4) the jury found against Ethan Allen on its misrepresentation, fraudulent concealment, and fraudulent conveyance counterclaims.
Based on the jury’s finding that it was privileged to place the disputed advertisement, Ethan Allen moved that Georgetown’s tortious interference claim be dismissed. On February 27, 1991, the district court denied Ethan Allen’s motion to dismiss the tortious interference claim based on its authority to harmonize the answers to the interrogatories and the jury’s special verdict. In light of the instructions to the jury, the evidence, and other surrounding circumstances,.the district court found that the jury’s responses was a determination that “Ethan Allen did not exercise its privilege truthfully and in accordance with contemporary business standards” and concluded that its use of improper means vitiates its privilege of protecting its economic interest.
ISSUES AND CONTENTIONS
Ethan Allen raises the following claims of error: (1) the district court erred in denying its motion for judgment notwithstanding the verdict (JNOV) or new trial because Georgetown could not, as a matter of law, establish that the advertisement caused the alleged loss of profits on existing orders, or establish a protected interest in potential future sales to past customers, or state a valid tortious interference claim for alleged interference with business relationships in which Ethan Allen was a party; (2) the district court erred in failing to dismiss Georgetown’s tortious interference claim based on its common law privileges of competition and the protection of its legitimate economic interest, and its privilege to publish truthful information under the First Amendment; (3) the district court erred in refusing to grant a new trial based on its admission of prejudicial hearsay; (4) insufficiency of the evidence to support the jury’s award of damages for alleged loss of profits on existing furniture orders, and alleged loss of value of Georgetown’s business, including goodwill; (5) insufficiency of the evidence to support the jury’s finding that Georgetown agreed to pay only simple interest on its outstanding indebtedness for the account stated claim; (6) the district court erred in refusing to instruct the jury on “badges of fraud” factors to consider in determining Georgetown’s intent for purposes of the fraudulent conveyance counterclaim; and (7) the district court erred in refusing to instruct the jury that under capitalization is relevant for purposes of Ethan Allen’s alter ego theory of fraudulent conveyance.
Georgetown responds that it did establish that Ethan Allen’s placement of the advertisement caused the alleged loss of profits on existing orders, and did establish a protected interest in potential future sales to past customers under Florida law. Georgetown contends that Ethan Allen’s other claims of error are waived based on its failure to present the issues in a timely fashion for a ruling in the district court. Alternatively, Georgetown contends that the evidence was sufficient to support the jury’s award of damages, and sufficient to support the finding that Georgetown was obligated to pay only simple interest on the account stated claim. In addition, Georgetown contends that the district court did not abuse its discretion in failing to give Ethan Allen’s proposed jury instructions where the actual instructions adequately covered the relevant law on Ethan Allen’s fraudulent conveyance claim.
DISCUSSION
(i) Jury Instructions
We find no reversible error in the district court’s denial of Ethan Allen’s motion for a new trial on its fraudulent conveyance counterclaim based on the district court’s refusal to identify “badges of fraud” on the issue of intent, and refusal to instruct the jury that under-capitalization is relevant to its theory that Levin was the alter ego of Georgetown and the other counter-defendants. We note that a district court has “broad discretion in formulating a jury charge.” United States v. Turner, 871 F.2d 1574, 1578 (11th Cir.), cert. denied, 493 U.S. 997, 110 S.Ct. 552, 107 L.Ed.2d 548 (1989). “In reviewing the adequacy of a jury instruction, the appellate court must examine the entire charge and determine whether, taken as a whole, the issues and law presented to the jury were adequate.” United States v. Bizzard, 674 F.2d 1382, 1389 (11th Cir.), cert. denied, 459 U.S. 973, 103 S.Ct. 305, 74 L.Ed.2d 286 (1982). Contrary to Georgetown’s argument, Ethan Allen did preserve this claim of error for appellate review based on its objections to the proposed charge during the charge conference. See Mark Seitman & Associates, Inc. v. R.J. Reynolds Tobacco Co., 837 F.2d 1527, 1530 (11th Cir.1988) (holding that the right to appellate review of jury instructions for error is not barred where a party apprises the trial court of its objections during the charge conference).
On the badges of fraud claim, Ethan Allen based its proposed charge on the codification of the “badges of fraud” in Fla.Stat.Ann. § 726.105(2) which lists factors that “may” be considered along with other factors in determining intent. See Fla.Stat.Ann. § 726.105(2) (1988). Ethan Allen expressly conceded at the charge conference that the badges of fraud factors are relevant only if a transfer is made without receiving a reasonably equivalent value in exchange for the transfer. Because Ethan Allen relied on section 726.-105(2) which provided that consideration “may” be given to the badges of fraud factors, we hold that the district court did not err in refusing to specifically recite the particular badges of fraud factors in the jury instructions, which we find otherwise sufficient on the issue of intent. See Bizzard, 674 F.2d at 1389 (holding that “the mere failure to recite the jury instructions in the precise language requested by defendant is not error where, as here, the instructions are otherwise sufficient”). Moreover, in light of the undisputed jury finding that Georgetown did receive reasonably equivalent value in exchange for the disputed transfers, Ethan Allen cannot be heard to complain since it conceded at the charge conference that the badges of fraud factors are relevant only if the disputed transfers were made without Georgetown receiving a reasonably equivalent value.
We also find no error in the district court’s refusal to give Ethan Allen’s proposed charge on under-capitalization as relevant to its alter ego theory of fraudulent conveyance. Ethan Allen’s proposed jury instruction on under-capitalization did not merely state that under-capitalization is relevant to an alter ego claim. Rather, it would have charged the jury that “if a company has been under-capitalized and as a result prevents creditors from being able to collect their debts, the person who caused the under-capitalization is considered to be the alter ego of the company and thus personally liable for its debts.” Because under-capitalization is only one of the factors relevant to an alter ego claim, we hold that the district court properly refused to charge the jury that the person who caused the under-capitalization of a corporation must be considered the alter ego of the company. In addition, we find no error in the district court’s actual charge to the jury on Ethan Allen’s alter ego theory because it adequately summarizes the factual controversies under the applicable law. See Bizzard, 674 F.2d at 1389. Accordingly, we hold the district court did not err in denying Ethan Allen’s motion for a new trial based on its refusal to give requested jury instructions.
(ii) Interest on Account Stated Claim
As to Ethan Allen’s challenge of the jury’s award of only simple interest on Georgetown’s outstanding indebtedness, we find that Ethan Allen waived its right to challenge the jury’s finding as not supported with sufficient evidence. A party challenging sufficiency of the evidence on appeal must file a timely motion for a directed verdict at the end of all the evidence. Fed.R.Civ.P. 50(b); Coker v. Amo co Oil Co., 709 F.2d 1433, 1437-38 (11th Cir.1983), superseded by statute in part on other grounds as stated in Wilson v. General Motors Corp., 888 F.2d 779 (11th Cir.1989). Ethan Allen failed to move for a directed verdict on the issue of simple interest at the end of all the evidence.. Thus, we would ordinarily review the district court’s submission of the issue to the jury under the plain error standard to determine whether any evidence supported submission of the issue. Coker, 709 F.2d at 1437 (applying the plain error standard of review where the objecting party failed to make a timely objection).
In this case, however, Ethan Allen agreed to submit the question of how interest was to be calculated on the undisputed principal amount of its account stated claim. At the charge conference, the parties agreed to provide the jury with three alternatives, including one calculated with simple interest. In addition, Ethan Allen suggested submitting a fourth alternative of the statutory rate in case the jury could not agree on one of the other three alternatives. Ethan Allen cannot now complain that the jury elected one of those three alternatives because “[i]t is a ‘cardinal rule’ of appellate procedure ‘that a party may not challenge as error a ruling or other trial proceeding invited by that party.’ ” Charter Co. v. United States, 971 F.2d 1576, 1582 (Johnson, J., concurring in part and dissenting in part) (quoting Crockett v. Uniroyal, Inc., 772 F.2d 1524, 1530 n. 4 (11th Cir.1985) and citing additional cases). Accordingly, we hold that the district court did not err in denying Ethan Allen’s motion for a new trial on the question of simple interest for its account stated claim.
(iii) Hearsay
We also reject Ethan Allen’s contention that the district court erred in denying its motion for a new trial based on the alleged admission of prejudicial hearsay. The claim concerns the district court’s admission of the testimony of two Georgetown witnesses about statements that customers made about the reason for their demand for a refund of their deposits on existing orders. The district court struck the testimony of one of the two disputed witnesses, Preve, and ruled that the testimony of the other witness, Cormick, was • admissible only as evidence of verbal acts under Fed.R.Evid. 801(c). The district court instructed the jury that “the statements of the customers that they saw the ad and demanded their money back is not admissible for the truth of the statements,” but only as support for the plaintiff’s position that “these customers demanded their refunds from Georgetown. Nothing else. Just the act of demanding the money.”
Because of the district court’s clear limiting instruction that the testimony be considered only as evidence of the verbal acts of demanding refunds, we hold that the district court did not abuse its discretion in admitting Cormick’s testimony as non-hearsay under rule 801(c). See United States v. Rodriguez-Cardenas, 866 F.2d 390, 394 (11th Cir.1989) (recognizing that this court will not disturb an evidentiary ruling absent a clear showing that the district court abused its discretion), cert. denied, 493 U.S. 1069, 110 S.Ct. 1110, 107 L.Ed.2d 1017 (1990); United States v. Peaden, 727 F.2d 1493, 1500 (11th Cir.) (noting that rule 403 is the appropriate standard of reviewing a district court’s admission of a statement for a non-hearsay purpose of rule 801(c), and setting forth the two limited categories of cases warranting reversal under that standard), cert. denied, 469 U.S. 857, 105 S.Ct. 185, 83 L.Ed.2d 118 (1984).
(iv) Privileges and Affirmative Defense
For the reasons stated in the district court’s excellent February 27, 1991 Memorandum of Decision and Order, we hold that the district court did not err in denying Ethan Allen’s motion to dismiss the tortious interference claim based on the asserted common law privileges to compete and to protect legitimate economic interest.
We also hold that Ethan Allen waived its right to assert that its publication of the February 3, 1985 advertisement is not actionable as tortious interference, based on its status as a party to the relationships allegedly interfered with and its privilege to publish truthful information. Contrary to Ethan Allen’s claims, we find that Ethan Allen failed to assert either argument as a ground for a directed verdict at the close of all evidence. After the district court denied Ethan Allen’s motion to dismiss the tortious interference claim, the court specifically asked Ethan Allen to clarify the basis for its contention that it was protecting its own rights when publishing the ad. In response, Ethan Allen.cited cases and made arguments for the sole proposition that its publication of the ad was privileged because it has “an economic interest in the marketplace.” Ethan Allen made absolutely no argument that it was protecting its right to publish truthful information under the common law and First Amendment. Moreover, even though Ethan Allen cited cases which also discuss the principle that a tortious interference claim does not lie against a party to the disputed relationship, Ethan Allen pointed to these cases only as support for the argument that it was privileged to protect its "economic interest in the marketplace.” We note that Ethan Allen voiced no objection to the district court’s jury charge, which did not include any instructions on a truthful information privilege or a defense based on Ethan Allen’s alleged status as a party to the disputed business relationships.
Because a motion for JNOV is technically only a renewal of a motion for a directed verdict made at the close of the evidence, Ethan Allen cannot assert grounds supporting its motion for JNOV that were not included in its motion for a directed verdict. See Litman v. Massachusetts Mutual Life Ins. Co., 739 F.2d 1549, 1557 (11th Cir.1984). Accordingly, we hold that the district court did not err in denying Ethan Allen’s motion for JNOV or new trial based on the truthful information privilege and its alleged status as a party to the disputed business relationships, because Ethan Allen waived its right to assert these grounds through its failure to assert them in its motion for directed verdict.
(v) Merits of Tortious Interference Claim
■ Having concluded that the district court did not err in denying Ethan Allen’s motion for JNOV or a new trial on the grounds of privilege and the party to the business relationship defense, we now turn to the merits of Ethan Allen’s claims of error regarding the judgment in favor of Georgetown on the tortious interference claim. Under Florida law, a plaintiff must prove the following elements to state a valid tortious interference with advantageous business relations claim:
(1) the existence of a business relationship under which the plaintiff has legal rights; (2) an intentional and unjustified interference with the relationship; and (3) damage to the plaintiff as a result of the tortious interference with that relationship.
Ad-Vantage Telephone Directory Consultants, Inc. v. GTE Directories Corp., 849 F.2d 1336, 1348-49 (11th Cir.1987) (citations omitted); see also Tamiami Trail Tours, Inc. v. Cotton, 463 So.2d 1126, 1127 (Fla.1985).
Ethan Allen contends that Georgetown did not establish a tortious interference claim as a matter of Florida law. Ethan Allen also argues that the evidence was insufficient to support the jury’s award of damages under either theory of Georgetown’s tortious interference claim. We note that Ethan Allen properly preserved its arguments on the tortious interference claim for appellate review. Ethan Allen twice moved for summary judgment on the tortious interference claim which resulted in the district court’s April 13, 1987 and March 30, 1990 orders limiting Georgetown’s proof to showing “interference with an existing contractual or business relationship, coupled with legal rights and damages.” At the close of all evidence, Ethan Allen moved for a directed verdict on Georgetown’s tortious interference claim based on the absence of evidence showing causation between the disputed advertisement and the cancellation of existing orders, based on the absence of evidence demonstrating causation between the advertisement and lost future profits, and based on an argument that the 89,000 persons in Georgetown’s prospective customer base cannot be the basis for any tortious interference claim under Florida law. After the court denied Ethan Allen’s motion at the close of evidence and the jury returned its verdict, Ethan Allen raised the same arguments in its motion for a JNOY or new trial, and remittitur of damages.
Existing Orders
We find Ethan Allen’s first argument concerning Georgetown’s failure to establish causation to be without merit. Ethan Allen contends that Georgetown did not establish causation between the advertisement and the lost profits on existing orders. Ethan Allen argues that Georgetown could no longer fill the existing orders fo.r Ethan Allen furniture, regardless of the advertisement, once Ethan Allen had exercised its right to terminate the dealership relationship. Ethan Allen’s causation argument is flawed because it takes too narrow a view of an “advantageous business relationship” under Florida law. “An action for intentional interference is appropriate even though it is predicated on an unenforceable agreement, if the jury finds that an understanding between the parties would have been completed had the defendant not interfered.” Landry v. Hornstein, 462 So.2d 844, 846 (Fla. 3d D.C.A. 1985) (citation omitted). Based on our review of the evidence, we find that a reasonable jury could have concluded that Georgetown and the customers with existing orders had an “understanding,” not evidenced in the written orders, that they would purchase furniture from Georgetown even if that meant converting their orders to Ethan Allen furniture already in stock or Thomasville furniture. Therefore, we hold that the district court did not err in denying Ethan Allen’s motion for a JNOV based on the argument that Georgetown failed to establish causation between the publication of the advertisement and the cancellation of Georgetown’s existing orders. See Ad-Vantage Telephone, 849 F.2d at 1351 (stating that a motion for JNOV is inappropriate where jury’s determination of causality is adequately supported in the record).
In addition, we affirm the jury’s award of $285,000 damages for the lost profits on existing orders. Georgetown’s expert estimated the lost profits on existing orders to be $285,000, after reducing his original estimate to account for ordinary cancellations not attributable to the alleged interference. Based on the expert testimony, we hold that the district court did not err in denying Ethan Allen’s motion for a new trial based on the sufficiency of the evidence supporting the jury’s award of damages for lost profits on existing orders.
Loss of Georgetown’s Business, Including Goodwill
The gravamen of this appeal and the issue most troubling to this court is Ethan Allen’s assertion of error regarding the legal basis for the jury’s award of $7,380,000 for the “loss of the value of Georgetown’s business, including goodwill.” Ethan Allen argues that Georgetown’s tortious interference claim is limited to alleged interference with existing advantageous business relations, as opposed to prospective customers. Thus, Ethan Allen argues that Georgetown could not establish a protected interest under Florida law for the loss of potential future sales to the 89,000 past customers in its customer database. Georgetown responds that Florida law does recognize a tortious interference claim based on the future profitability of an existing business enterprise, and based on prospective contractual or business relationships. Georgetown also argues that damages for a tortious interference claim need not be attributable to lost profits caused to identifiable contracts or relationships under Florida law.
We note that Georgetown’s fourth amended complaint alleged that Ethan Allen had interfered with its “past, present, and future customers.” In the March 30, 1990 order, the district court expressly limited Georgetown’s proof to showing “interference with an existing contractual or business relationship.” In addition, based on our review of the charge to the jury, we cannot say as a matter of law that Georgetown failed to establish intentional and unjustified interference with existing advantageous business relationships that caused some damages. Indeed, we' have already held that Georgetown stated a valid tor-tious interference claim as it relates to the cancellation of existing orders. Thus, the issue before us is not simply whether Georgetown failed to establish a prima fa-cie case for tortious interference with a business relationship under Florida law. The question before us is properly recast as whether the evidence supporting the jury’s $7.38 million damage award is within the scope of damages under Florida law. It was on the issue of damages that the district court gave the jury instructions, which countenanced both Georgetown’s theory for lost profits on existing orders, and its theory that Florida law on tortious interference allows recovery of damages for interference with an existing business enterprise, including goodwill.
Ethan Allen argues that “the tort of interference with a business relationship does not operate as a broad protection of commercial reputation or potential businéss opportunities generally. Rather, [Florida law] protects only actual, identifiable relationships.” Ethan Allen acknowledges that a protectible business relationship need not be evidenced in an enforceable contract, but argues that a plaintiff must identify particular relationships, which accord the plaintiff some legal rights against the other party, in order to recover damages for a defendant’s interference. Ethan Allen relies on decisions from several Florida appellate courts. See, e.g., Southern Alliance Corp. v. City of Winter Haven, 505 So.2d 489, 496 (Fla. 2d D.C.A.1987) (rejecting the tortious interference claim of a bar owner who did not identify a particular advantageous business relationship, after finding no case that recognized “a cause of action exists for the tortious interference with a business relationship with the community at large”); Insurance Field Services, Inc. v. White & White Inspection and Audit Service, Inc., 384 So.2d 303, 306 (Fla. 5th D.C.A.1980) (holding that “economically advantageous business relationships, capable of ascertainment, existed between [the plaintiff] and its numerous insurance company clients, pursuant to which [the plaintiff] had legal rights”); Lake Gateway Motor Inn v. Matt’s Sunshine Gift Shops, Inc., 361 So.2d 769, 771-72 (Fla. 4th D.C.A. 1978) (rejecting a tortious interference claim because “a mere offer to sell a business which the buyer says he will consider, does not by itself give rise to legal rights which bind the buyer or anyone else with whom he deals”).
In contrast, Georgetown relies on Insurance Field and other Florida decisions as recognizing that a plaintiff may recover damages in a tortious interference action for the loss of goodwill with past customers, even in the absence of present legal rights. In considering the scope of damages that an insurance auditor could recover from a former employee for his tortious interference with sixteen insurance company clients, the court in Insurance Field concluded that the plaintiff could recover damages based on loss of goodwill “occasioned solely by [the defendant’s] conduct.” See Insurance Field, 384 So.2d at 308 (noting that “Plaintiff’s business, like most companies, revolves, in large measure, upon the building of goodwill accomplished when a client becomes accustomed to dealing with someone who is regularly performing a service. [The plaintiff’s] field representatives and the individual [defendants] had been performing services for [plaintiff’s] customers in a satisfactory manner, and the record provides no indication that its customers had any inclination to terminate using appellee’s services”). Based on the Insurance Field court’s decision and its favorable citation to the Restatement (Second) of Torts, Georgetown argues that Florida law allows recovery for the loss of value in a continuing business, including goodwill, in a tortious interference action. See Restatement (Second) of Torts § 766B, comment c (1979).
Because we do not find the decisions of the Florida district courts of appeal determinative of whether a business may recover for the loss of its value, including goodwill, and we find no controlling precedent of the Florida Supreme Court on the scope of damages under the tortious interference cause of action, we consider it appropriate to certify to the Florida Supreme Court for resolution this potentially recurring question on whether loss of a business’s goodwill with past customers is recoverable under the tortious interference cause of action.
CERTIFICATION FROM THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT TO THE SUPREME COURT OF FLORIDA, PURSUANT TO ARTICLE 5, SECTION 3(b)(6) OF THE FLORIDA CONSTITUTION
TO THE SUPREME COURT OF FLORIDA AND THE HONORABLE JUSTICES THEREOF:
Based upon the facts recited herein, we certify the following question in the above-styled case to the Florida Supreme Court:
Under Florida law, in a tortious interference with business relationships tort action, may a plaintiff recover damages for the loss of goodwill based upon future sales to past customers with whom the plaintiff has no understanding that they will continue to do business with the plaintiff, or is the plaintiff’s recovery of damages limited to harm done to existing business relationships pursuant to which plaintiff has legal rights, as discussed in Landry v. Hornstein, 462 So.2d 844, 846 (Fla. 3d D.C.A.1985); Douglass Fertilizers & Chemical, Inc. v. McClung Landscaping, Inc., 459 So.2d 335, 336 (Fla. 5th D.C.A.1984); Insurance Field Services, Inc. v. White & White Inspection and Audit Service, Inc., 384 So.2d 303, 306 (Fla. 5th D.C.A.1980); and Lake Gateway Motor Inn v. Matt’s Sunshine Gift Shops, Inc., 361 So.2d 769, 771-72 (Fla. 4th D.C.A.1978)?
Our phrasing of this question is not intended to limit the Supreme Court of Florida in considering the issue presented. The entire record in this case and the briefs to the parties shall be transmitted to the Florida Supreme Court for assistance in answering this question.
CONCLUSION
We affirm the judgment of the district court in all respects on Ethan Allen’s counterclaims. On Georgetown’s tortious interference claim, we reject the various claims of error and affirm that portion of the judgment of the district court that awards Georgetown $285,000 in damages for its lost profits attributable to Ethan Allen’s tortious interference with Georgetown’s advantageous business relationships with those customers who had existing orders. We certify the loss of the value in Georgetown’s business, including goodwill, question to the Florida Supreme Court. We affirm the judgment of the district court on Georgetown’s other claims.
AFFIRMED in part and CERTIFIED.
. Georgetown also contends that the district court abused its discretion in denying its motion to amend the claim of tortious interference pursuant to rule 15(b), to include other alleged wrongful acts of Ethan Allen that interfered with its business relationships. The district court denied Georgetown’s mid-trial motion to amend its theory on the tortious interference
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
|
songer_treat
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
UNITED STATES of America, Plaintiff-Appellee, v. Geane DOBY, Defendant-Appellant.
Nos. 88-2000, 88-2030.
United States Court of Appeals, Seventh Circuit.
Argued Feb. 22, 1989.
Decided April 13, 1989.
Eileen A. Kamerick, Skadden Arps Slate Meagher & Flom, Chicago, Ill., for defendant-appellant.
Gwenn R. Rinkenberger, Asst. U.S. Atty., Hammond, Ind., for plaintiff-appel-lee.
Before WOOD, Jr., and MANION, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.
PER CURIAM.
Geane Doby, along with several others, burned down a house in Gary, Indiana. During the arson, one of Doby’s fellow arsonists was severely burned; he died a short time later.
A grand jury charged Doby with violating 18 U.S.C. § 844(i), which provides:
[wjhoever maliciously damages or destroys ... by means of fire or an explosive, any building ... used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce ... and if death results to any person ... as a direct or proximate result ... shall ... be subject to imprisonment for any term of years, or to the death penalty or life imprisonment as provided in [18 U.S.C. § 34].
Doby eventually pleaded guilty to the arson charge on the condition that he be allowed to contest whether federal jurisdiction existed over the arson.
The house that Doby and his compatriots had burned was a two-unit house. The owner, Mohamed Shaker, had lived in the first story unit with his family, and had rented the second story unit to different tenants. At the time of the arson (committed at Shaker’s behest), the entire home was vacant and in need of rehabilitation work as a result of vandalism that had occurred during a series of burglaries at the house. Although the house was vacant, Shaker had never taken it off the rental market; he intended to repair the damage to the house and rent the upstairs unit.
Doby contended that the house was not a building “used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce” and that the arson therefore did not meet § 844(i)’s federal jurisdictional requirement. The district court, in a succinct, well reasoned opinion, held that a sufficient interstate commerce nexus existed so that the arson did meet § 844(i)’s jurisdictional requirement. United States v. Doby, 684 F.Supp. 558 (N.D.Ind.1988). Doby appeals. Because we agree with the district court’s reasoning, we adopt its opinion as our own. We add only that because of the district court’s reasoning, we need not reach the government’s contention that the arson fell within § 841(i) because the home received natural gas from an out-of-state source.
Affirmed.
Question: What is the disposition by the court of appeals of the decision of the court or agency below?
A. stay, petition, or motion granted
B. affirmed; or affirmed and petition denied
C. reversed (include reversed & vacated)
D. reversed and remanded (or just remanded)
E. vacated and remanded (also set aside & remanded; modified and remanded)
F. affirmed in part and reversed in part (or modified or affirmed and modified)
G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to another court
K. not ascertained
Answer:
|
songer_respond1_7_2
|
B
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed 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 the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained").
Pedro ARROYO, Petitioner-Appellee, v. Everett JONES, Superintendent, Great Meadow Correctional Facility, and Robert Abrams, Attorney General of the State of New York, Respondents-Appellants.
No. 1267, Docket 82-2072.
United States Court of Appeals, Second Circuit.
Argued June 17, 1982.
Decided July 23, 1982.
Certiorari Denied Nov. 29,1982.
See 103 S.Ct. 468.
John D. B. Lewis, New York City (William E. Hellerstein, The Legal Aid Society, New York City, on the brief), for petitionerappellee.
Mark Dwyer, New York City (Robert M. Morgenthau, Dist. Atty. for New York County, Amyjane Rettew, New York City, on the brief), for respondents-appellants.
Before OAKES, MESKILL, and KEARSE, Circuit Judges.
KEARSE, Circuit Judge:
The State of New York appeals from an order of the United States District Court for the Southern District of New York, Robert J. Ward, Judge, 534 F.Supp. 980, granting the petition of state prisoner Pedro Arroyo for a writ of habeas corpus on the ground that the state trial judge’s supplemental jury charge, that “people are presumed to intend the natural, probable and logical consequence of their acts,” unconstitutionally deprived Arroyo of the presumption of innocence, in violation of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). We modify and affirm the order of the district court.
FACTS
Arroyo was convicted in 1973, after a jury trial in New York State Supreme Court, of one count of attempted murder, three counts of assault, and one count of possessing a weapon. Two versions of the events leading to the charges against Arroyo emerged at the trial. According to the prosecution’s witnesses, on April 13, 1972, Arroyo was apprehended by two New York City police officers shortly after leaving the scene of a robbery. He was being returned to the scene of the robbery when he broke free from the officers and ran. He was quickly pursued by a third officer, Raymond Bernard, who attempted to tackle him. Arroyo dodged the tackle, drew a revolver, and fired at Bernard. Bernard had drawn his own handgun and extended his right arm into a firing position. Arroyo’s shot, from five feet away, struck and shattered the grip of Bernard’s gun, and the spent bullet pierced Bernard’s police jacket but not his chest. Bernard returned fire; Arroyo leaped over a car hood and fired at Bernard twice more, missing both times. The police officers eventually wounded Arroyo, who thereupon surrendered.
Arroyo testified that his memory of the events was sketchy because of the injuries he had sustained. He recalled having been accosted by a gun-wielding stranger who had a second gun in his waistband. He stated that he had immediately pushed aside and held the man’s gun hand, grabbed the other gun from the man’s belt, struck him with that gun, and fled. As he ran, he was shot and wounded. Arroyo testified that he had no recollection of ever firing a gun. Two other defense witnesses also testified that Arroyo had not fired a gun and that all of the shooting had been done by the police officers.
When the trial judge instructed the jury, before discussing any of the charges specifically, she instructed the jury that the prosecution bore the burden of proving every element of every alleged crime beyond a reasonable doubt. As to the attempted murder count, the judge stated that the “intent to cause the death of Raymond Bernard” was an essential element of the crime, and defined intent without using any language that could have been interpreted as shifting the burden of proof. The same unobjectionable instruction as to intent was given twice more with respect to other counts. These initial instructions are unchallenged.
Several times during the course of its deliberations, the jury made inquiries of the trial judge. First, it asked to have the testimony of Officer Bernard reread. The second request, made approximately four hours after the deliberations had begun, was for “the law and the interpretation of the [attempted murder] charge.” The trial judge repeated, in large part, her initial instructions concerning that count, including the proper instructions on intent. After deliberating for another two hours, the jury returned to ask, “[d]oes shooting at a policeman necessarily constitute attempted] murder?” The trial judge responded as follows:
[T]he law which defines murder and attempt mentions only persons as to the elements of that crime, it applies to all persons.
Attempted murder is defined in the law, a person is guilty of attempted murder[,] and I am combining the statute on attempt as well as murder[,] when with intent to cause the death of another person he attempts to cause the death of such person.
(Tr. 808.) The jury returned to the jury room, but returned twelve minutes later, some six and one-half hours after it had begun deliberations, with another inquiry, as follows:
We have reached agreements on four charges and divided on the fifth one, to assist us with the latter, we would seek further classification [sic] of the words conscious intent.
(Tr. 810.) The parties are in accord that the charge on which the jury had not reached agreement was that of attempted murder.
The trial judge conferred with the prosecutor and defense counsel before responding. The prosecutor suggested that the jury be instructed that “people are presumed to intend the natural, probable and logical consequence of their acts.” Arroyo’s lawyer stated that he had no objection. The trial court then gave the following supplemental instruction:
Now, Members of the Jury, a person acts intentionally with respect to attempting to cause death or injury to another person, when the alleged perpetrator’s conscious objective is to cause such death or injury.
Intention is a subjective thing and depends on the operation of the individual’s mind, nonetheless, it is possible to make' a finding of intention based on the objective actions of the individual].
The Penal Law defines intentionally as follows: a person acts intentionally with respect to a result or conduct described by a statute to finding [sic] an offense when his conscious objective is to cause such result or to engage in such conduct.
By agreement, I can tell you that people are presumed to intend the natural, probable and logical consequence of their acts.
(Id.; emphasis added.) Twenty-five minutes later the jury returned a verdict of guilty on all counts.
Arroyo perfected his appeal to the Appellate Division in 1977. He argued that, although the portion of the supplemental charge italicized above represented a correct statement of New York law, the presumption language denied him due process of law by nullifying the prosecution’s duty to prove intent and shifting to him the burden of proof on that issue on the attempted murder count. The Appellate Division unanimously affirmed Arroyo’s conviction for attempted murder; it dismissed the remaining four counts because they had merged with the attempted murder count. Leave to appeal to the New York Court of Appeals was denied.
In October 1979, a few months after the United States Supreme Court’s decision in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39, Arroyo pursued his due process claim in New York State Supreme Court by moving pursuant to New York Criminal Procedure Law § 440.10 to vacate the judgment of conviction. The State opposed the motion on the ground that Arroyo’s failure to object at trial to the presumption instruction constituted a forfeiture of the claim. The court rejected this argument, but denied the motion on its merits, on the ground that
in the totality of the entire charge and the detailed instructions to the jury in this case [the presumption language] did not have the same potential for impermissible burden shifting as the instruction struck down by the Supreme Court in [Sandstrom v. Montana, supra].
(Opinion of May 19, 1980 at 14). Leave to appeal to the Appellate Division was denied, thus exhausting Arroyo’s state court remedies.
Arroyo then commenced the present proceeding in the district court, seeking a writ of habeas corpus. In an opinion dated February 11, 1982, the district court ruled that, under Sandstrom v. Montana, supra, the inclusion of the presumption language in the supplemental instruction on intent denied Arroyo due process. The court granted the writ, ordering that the State either release Arroyo from custody or retry him within sixty days. This appeal followed.
DISCUSSION
In Sandstrom v. Montana, which has been the subject of considerable recent discussion in this Court, see, e.g., Ramirez v. Jones, 683 F.2d 712 (2d Cir. 1982); Rivera v. Coombe, 683 F.2d 697 (2d Cir. 1982); Mancuso v. Harris, 677 F.2d 206 (2d Cir. 1982); Nelson v. Scully, 672 F.2d 266 (2d Cir.), cert. denied, - U.S. -, 102 S.Ct. 2301, 73 L.Ed.2d 1304 (1982); Washington v. Harris, 650 F.2d 447 (2d Cir. 1981), cert. denied, - U.S. -, 102 S.Ct. 1455, 71 L.Ed.2d 666 (1982), the United States Supreme Court ruled that a jury instruction that “[t]he law presumes that a person intends the ordinary consequences of his voluntary acts,” violates the defendant’s right to due process because it tends to shift the burden of proof on the issue of intent to the defendant and to deprive the defendant of the presumption of innocence. In the present case the State does not seriously contend that the portion of the supplemental instruction challenged by Arroyo — “people are presumed to intend the natural, probable and logical consequences of their acts” — is not the same type of instruction found invalid in Sandstrom. Rather, it contends principally that, when read in light of the charge as a whole, as is required by Cupp v. Naughten, 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973), the presumption language did not have the effect of shifting the burden on intent to Arroyo and did not deprive him of the presumption of innocence. We reject the State’s argument. In light of the special prominence of the presumption language by reason of its presence in a supplemental instruction, see Bollenbach v. United States, 326 U.S. 607, 66 S.Ct. 402, 90 L.Ed. 350 (1946), and the series of questions from the jury that preceded it, we cannot conclude that the offending language was “harmless beyond a reasonable doubt,” Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967).
In Nelson v. Scully, supra, we discussed thoroughly the need, in reviewing trial court instructions, not to view the improper language in isolation and to evaluate the charge as a whole, in order to determine whether the improper language “ ‘so infected the entire trial that the resulting conviction violates due process.’ ” 672 F.2d at 272 (quoting Cupp v. Naughten, supra, 414 U.S. at 147, 94 S.Ct. at 400). Nelson and the other cases heretofore considered by this Court in the wake of Sandstrom have dealt with offending language in the body of the court’s principal (or only) charge, rather than in a supplemental charge such as that confronting us here.
A supplemental charge must be viewed in a special light. It will enjoy special prominence in the minds of the jurors for several reasons. First, it will have been the most recent, or among the most recent, bit of instruction they will have heard, and will thus be freshest in their minds. Moreover, it will have been isolated from the other instructions they have heard, thus bringing it into the foreground of their thoughts. Because supplemental instructions are generally brief and are given during a break in the jury’s deliberations, they will be received by the jurors with heightened alertness rather than with the normal attentiveness which may well flag from time to time during a lengthy initial charge. And most importantly, the supplemental charge will normally be accorded special emphasis by the jury because it will generally have been given in response to a question from the jury. The particularly telling impact of a supplemental instruction — and especially the last such instruction — upon a jury was recognized in Bollenbach v. United States, supra, as follows:
The Government suggests that the judge’s misconceived “presumption” was “just what it appears to be — a quite cursory, last minute, instruction on the question of the necessity of knowledge as to the stolen character of the - notes — and nothing more.” But precisely because it was a “last minute instruction” the duty of special care was indicated in replying to a written request for further light on a vital issue by a jury whose foreman reported that they were “hopelessly deadlocked” after they had been out seven hours.... Particularly in a criminal trial, the judge’s last word is apt to be the decisive word. If it is a specific ruling on a vital issue and misleading, the error is not cured by a prior unexceptionable and unilluminating abstract charge.
326 U.S. at 611-12, 66 S.Ct. at 405.
On the record before us there is every reason to believe that the court’s presumption language made a special impression on the jurors. It was the last sentence they heard before returning for their final minutes of deliberation. It was a brief and pointed statement. And, most importantly, it gave them a way to decide the issue that had caused them, first, to ask for an interpretation of the original instructions on attempted murder, second, to ask if a shot at a police officer necessarily evinced an attempt to murder, and third, to ask for “further clarification of the words ‘conscious intent’.” In light of this repeated questioning over the first six and one-half hours of deliberations, and in light of the jury’s decision on the attempt count less than one-half hour after having heard the improper charge, it seems highly likely that the supplemental charge was in the forefront in the jurors’ minds.
In these circumstances, we do not believe the trial court’s initial unobjectionable charge on intent can be deemed to have cured the defective language in the supplemental charge. Since the initial instructions did not mention any presumption as to intent they did not give the jury any assistance in how to apply a presumption— whether they were free to disregard it, whether it was merely something they might infer, or whether the defendant had to overcome it. More importantly, the initial instructions cannot be deemed to have disinfected the later presumption language because the jury’s questions reveal that the initial charge simply was not understood. In short, it is all very well as a general matter for the State to urge us to evaluate the effect of presumption language in light of the charge as a whole. But when the jurors have so little comprehended the unobjectionable initial charge that they have found it necessary to ask three times for clarification, it would be decidedly dense of us to assume that the unobjectionable initial charge, as to which enlightenment was requested, itself enlightened the jury as to the real meaning of the improper enlightenment.
We find no merit in the State’s argument that the supplemental charge was not important because intent was not a hotly debated issue at trial. It is true that intent has been a more prominent issue in cases such as Sandstrom, in which the defendant admitted killing the deceased but pleaded lack of intent due to a mental disorder aggravated by alcohol consumption. Although subtler here, the issue as to intent to murder was highlighted by Arroyo’s testimony that he had merely tried to protect himself by knocking Bernard aside and fleeing, and that he did not remember firing a gun. Thus the trial testimony raised a question as to intent, and the jury’s inquiries during its deliberations reveal that it had substantial uncertainty as to whether the State had proven intent to murder beyond a reasonable doubt.
Nor do we find any of the State’s other arguments more persuasive. For example, in contending that as a practical matter the presumption language probably had little effect, the State states that
[b]y the time the jurors heard this supplemental charge, they had already reached verdicts of guilty on four counts, and on three of those counts they had been required to find that Arroyo acted with a specific intent. Arroyo’s theory that the jurors, who had three times properly found intent from the evidence without resort to a presumption, could have understood the supplemental charge as a direction to ignore the evidence about intent in reaching a verdict on the final count, is simply incredible.
(State’s Reply Brief at 5; emphasis added.) This argument is wide of the mark, for what the sequence of events leads us to infer is not that the presumption language caused the jurors to “ignore the evidence about intent,” but rather that it may have led them to ignore their doubts about that evidence. This argument by the State really amounts to a contention that the jury would not have resorted to the presumption because there was adequate evidence from which it could have found the requisite intent proven. The question, however, is not whether the jury could have convicted on the basis of the evidence without resort to the presumption, but whether we can be sure beyond a reasonable doubt that this is what it did. Sandstrom v. Montana, supra, 442 U.S. at 526, 99 S.Ct. at 2460. Obviously, in light of the jury’s repeated requests for clarification and the relative speed of its decision after receiving the presumption language, “[i]t would indeed be a long jump at guessing to be confident that the jury did not rely on the erroneous ‘presumption’ given them as a guide.” Bollenbach v. United States, supra, 326 U.S. at 614, 66 S.Ct. at 406.
In sum, we agree with the conclusion of the district court that the presumption language of the trial court’s supplemental charge was not harmless beyond a reasonable doubt and that the petition for habeas corpus should be granted.
CONCLUSION
As noted above, the New York Appellate Division, on affirming Arroyo’s conviction for attempted murder, set aside the convictions on the other four charges because they were lesser-included offenses which merged with the attempted murder conviction. The district court’s decision granting habeas corpus was silent as to its effect on these extinguished lesser counts. Although we affirm the decision requiring the State to release or retry Arroyo for attempted murder within sixty days, we modify the order to permit the State to seek in state court the revival of the convictions on any of the four extinguished counts. As thus modified, the order of the district court is affirmed.
. The trial judge’s instruction on intent was as follows:
What is intent; under our law, a person acts intentionally with respect to attempting to cause the death of another person when the alleged perpetrator’s conscious objective is to cause such death. This portion of my charge is concerned itself only with the attempt to commit the crime of murder based on the intention to cause the death of a victim, of course, we all recognize that an intention is a subjective matter and it depends on the operation of an individual’s mind none the less it is possible to make a finding of intention based on objective actions of the alleged perpetrator; in fact, this is the only method that we can use in determining intention since we cannot get into the mind of the alleged perpetrator. Therefore, in your deliberation, you may use the defendant’s objective action as a determining factor in deciding whether or not he acted intentionally.
You may also refer to all the other evidence which may indicate intent or not indicate intent. The Penal Law of the State of New York defines intentionally as follows: a person acts intentionally with respect to a result or conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct. ■
. Sandstrom v. Montana, supra, was not to be decided for two years, and although following Sandstrom the New York Court of Appeals stated that the law of New York had long held the Sandstrom -type charge to be erroneous as a matter of state law, People v. Thomas, 50 N.Y.2d 467, 472, 429 N.Y.S.2d 584, 407 N.E.2d 430 (1980), there were a number of New York cases upholding similar presumption language, see id. at 474, 429 N.Y.S.2d 584, 407 N.E.2d 430 and cases cited therein (Fuchsberg, J., concurring).
. In light of the state court’s rejection of the State’s procedural argument and its decision on the merits of Arroyo’s due process claim, Arroyo’s failure to object at trial to the presumption language does not bar federal review. Engle v. Isaac, - U.S. -, 102 S.Ct. 1558, 1575 n.44, 71 L.Ed.2d 783 (1982); Washington v. Harris, 650 F.2d 447, 452 (2d Cir. 1981).
. Following the district court’s decision, the parties agreed to a stay of the order pending a decision of this appeal, and Arroyo remains incarcerated.
. In its Brief on Appeal at 13, the State says, “Certainly, it would have been preferable had the trial judge not included the quoted sentence in her instructions. See Sandstrom v. Montana, 442 U.S. 510 [99 S.Ct. 2450, 61 L.Ed.2d 39] (1979).”
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)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity.
A. not ascertained
B. male - indication in opinion (e.g., use of masculine pronoun)
C. male - assumed because of name
D. female - indication in opinion of gender
E. female - assumed because of name
Answer:
|
sc_authoritydecision
|
D
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence.
RODRIGUE et al. v. AETNA CASUALTY & SURETY CO. et al.
No. 436.
Argued February 25, 1969.
Decided June 9, 1969.
Philip E. Henderson argued the cause for petitioners. With him on the briefs were A. Deutsche O’Neal and George Arceneaux, Jr.
James E. Diaz argued the cause for respondents. With him on the brief were W. Ford Reese, Richard C. Baldwin, and James E. Blazek.
Mr. Justice White
delivered the opinion of the Court.
This case involves two men, Dore and Rodrigue, who met their deaths on artificial island drilling rigs located on the outer Continental Shelf off the Louisiana coast. Each man’s family brought suit for wrongful death in the federal courts both under the Death on the High Seas Act, 41 Stat. 537, 46 U. S. C. § 761 et seq. (hereinafter “Seas Act”), and under Louisiana law assertedly made applicable by the Outer Continental Shelf Lands Act, 67 Stat. 462, 43 U. S. C. § 1331 et seq. (hereinafter “Lands Act”). Each family’s suit was separately heard and decided in the District Courts and in the Court of Appeals below. In both cases the Court of Appeals for the Fifth Circuit, affirming the District Courts, held that the Seas Act was the exclusive remedy for these deaths. Petitioners sought certiorari, claiming that they are entitled to an additional remedy under the state law adopted by the Lands Act.
In the Dore case, the decedent was working on a crane mounted on the artificial island and being used to unload a barge. As the crane lifted a load from the barge to place it on the artificial island, the crane collapsed and toppled over onto the barge, killing the worker. His widow and her three children brought a single action in the United States District Court for the Western District of Louisiana, alleging their own and the decedent’s residency in Louisiana and the negligence of the firms which manufactured, installed, and serviced the crane. The suit was brought under the “General Maritime Laws, the Death on the High Seas Act, . . . Article 2315 of the [Louisiana Code] and under the other laws of the United States and the State of Louisiana.” It claimed $670,000 in damages to the family plaintiffs for loss of their husband and father, including pecuniary and psychic losses. On motion for summary judgment as to all claims but that under the Seas Act, the District Judge determined that the latter was plaintiffs’ only remedy, removed the case to the admiralty side of the court, and thus limited the plaintiffs’ recovery to pecuniary loss. The state statute would have allowed recovery for additional elements of damage. The District Judge certified the question pursuant to Federal Rule of Civil Procedure 54 (b), and the Court of Appeals for the Fifth Circuit affirmed. 391 F. 2d 671.
In the Rodrigue case, the decedent was performing a test on a drill pipe. He was high on the derrick rising above the artificial island, and fell from it to his death on the floor of the structure. His widow and two children brought three actions in the District Court for the Eastern District of Louisiana. One was an admiralty action under the Seas Act; the other two were civil actions respectively against the owner and insurer of the drill rig, and the owner of the stationary platform. The civil actions were brought under the Lands Act and Article 2315 of the Louisiana Revised Civil Code. The trial court consolidated the two civil actions and dismissed the insurer, who had been made a party to one of the civil actions pursuant to the Louisiana direct-action statute, La. Rev. Stat. Ann. § 22:655. No reason was assigned for the dismissal, but the ground urged in the motion was that the accident did not occur within the State of Louisiana, so that Louisiana law did not apply. Consistently with this, the District Judge dismissed the consolidated civil action before trial, on the ground that the Seas Act provided a remedy and that under such circumstances the Lands Act would not make the inconsistent state remedy applicable. The admiralty action proceeded to trial and judgment of $75,000, 266 F. Supp. 1, which is not now before us. On appeal of the dismissal of the civil actions, the Court of Appeals for the Fifth Circuit affirmed the District Court per curiam, citing its decision in the Dore case almost two months before. 395 F. 2d 216.
Certiorari was granted in both cases, 393 U. S. 932 (1968), and they were argued together here. In light of the principles of traditional admiralty law, the Seas Act, and the Lands Act, we hold that petitioners’ remedy is under the Lands Act and Louisiana law. The Lands Act makes it clear that federal law, supplemented by state law of the adjacent State, is to be applied to these artificial islands as though they were federal enclaves in an upland State. This approach was deliberately taken in lieu of treating the structures as vessels, to which admiralty law supplemented by the law of the jurisdiction of the vessel’s owner would apply. The Hamilton, 207 U. S. 398 (1907). This was done in part because men working on these islands are closely tied to the adjacent State, to which they often commute and on which their families live, unlike transitory seamen to whom a more generalized admiralty law is appropriate. Since the Seas Act does not apply of its own force under admiralty principles, and since the Lands Act deliberately eschewed the application of admiralty principles to these novel structures, Louisiana law is not ousted by the Seas Act, and under the Lands Act it is made applicable.
I.
The purpose of the Lands Act was to define a body of law applicable to the seabed, the subsoil, and the fixed structures such as those in question here on the outer Continental Shelf. That this law was to be federal law of the United States, applying state law only as federal law and then only when not inconsistent with applicable federal law, is made clear by the language of the Act. Section 3 makes it the “policy of the United States” that the affected areas “appertain to the United States and are subject to its jurisdiction, control, and power of disposition.” Section 4 makes the “Constitution and laws and civil and political jurisdiction of the United States” apply “to the same extent as if the outer Continental Shelf were an area of exclusive Federal jurisdiction located within a State.” Since federal law, because of its limited function in a federal system, might be inadequate to cope with the full range of potential legal problems, the Act supplemented gaps in the federal law with state law through the “adoption of State law as the law of the United States.” Under § 4, the adjacent State’s laws were made “the law of the United States for [the relevant subsoil and seabed] and artificial islands and fixed structures erected thereon,” but only to “the extent that they are applicable and not inconsistent with . . . other Federal laws.”
It is evident from this that federal law is “exclusive” in its regulation of this area, and that state law is adopted only as surrogate federal law. The Senate Report on the bill referred to the “precise unequivocal language” of “the provision for the adoption of State laws as Federal law,” and referred to the applicable body of law as consisting of the Constitution and laws of the United States, the regulations of the Secretary of the Interior, and finally the laws of the adjacent States “adopted as Federal law and made applicable to supplement existing Federal law and regulations.” S. Rep. No. 411 of the Committee on Interior and Insular Affairs, 83d Cong., 1st Sess., 11 (1953).
It was the Senate Committee which first introduced the present provision adopting state law, and in its report explaining the introduction it asserted: “Paragraph (2) adopts State law as Federal law, to be used when Federal statutes or regulations of the Secretary of the Interior are inapplicable.” Id., at 23. This language makes it clear that state law could be used to fill federal voids. And in the conference report, the House managers of the bill noted that laws of adjacent States which are not inconsistent with federal law “are adopted as the laws of the United States for those particular areas.” H. R. Conf. Rep. No. 1031, 83d Cong., 1st Sess., 12 (1953).
The principles that federal law should prevail, and that state law should be applied only as federal law and then only when no inconsistent federal law applied, were adopted by a Congress in which full debate had underscored the issue. Senator Cordon, in presenting the Lands Act to the Senate, noted that the problem addressed by the committee had been raised by “the fact that the full development of the estimated values in the shelf area will require the efforts and the physical presence of thousands of workers on fixed structures in the shelf area. Industrial accidents, accidental death, peace, and order” present problems requiring a body of law for their solution. Since “as every Member of the Senate knows, the Federal Code was never designed to be a complete body of law in and of itself,” the committee decided that state law would have to be referred to in some instances. 99 Cong. Rec. 6962-6963. As Senator Anderson, a member of the conference committee, put it: “The real point is . . . that the language in section 4 provides that Federal laws and regulations shall be applicable in the area, but that where there is a void, the State law may be applicable . . . .” 99 Cong. Rec. 7164. Senator Cordon noted that this view was “entirely correct” and added that: “These laws, by the terms of the act, are enacted as Federal law.”
The opponents of the Act realized full well that state law was being used only to supplement federal law, and Senator Long introduced an amendment to the Act which would have made “the laws of such State applicable to the newly acquired area, and . . . the officials of such State [the agents empowered] to enforce the laws of the State in the newly acquired area.” In arguing for his amendment, Senator Long asserted that “ [i] t is even more important that State law should apply on the artificial islands than on natural islands . . . .” But the amendment was rejected. See 99 Cong. Rec. 7232-7236. This legislative history buttresses the Court of Appeals’ finding that in view of the inconsistencies between the state law and the Seas Act, the Seas Act remedy would be exclusive if it applied.
II.
However, for federal law to oust adopted state law federal law must first apply. The court below assumed that the Seas Act did apply, since the island was located more than a marine league off the Louisiana coast. But that is not enough to make the Seas Act applicable. The Act redresses only those deaths stemming from wrongful actions or omissions “occurring on the high seas,” and these cases involve a series of events on artificial islands. Moreover, the islands were not erected primarily as navigational aids, and the accidents here bore no relation to any such function. Admiralty jurisdiction has not been construed to extend to accidents on piers, jetties, bridges, or even ramps or railways running into the sea. To the extent that it has been applied to fixed structures completely surrounded by water, this has usually involved collision with a ship and has been explained by the use of the structure solely or principally as a navigational aid. But when the damage is caused by a vessel admittedly in admiralty jurisdiction, the Admiralty Extension Act would now make available the admiralty remedy in any event.
The accidents in question here involved no collision with a vessel, and the structures were not navigational aids. They were islands, albeit artificial ones, and the accidents had no more connection with the ordinary stuff of admiralty than do accidents on piers. Indeed, the Court has specifically held that drilling platforms are not within admiralty jurisdiction. Phoenix Construction Co. v. The Steamer Poughkeepsie, 212 U. S. 558, affirming 162 F. 494 (1908). There a ship damaged a structure “composed of various lengths of wrought iron pipe surrounded by a platform on the surface.” Citing the same cases on which the lower court had relied, this Court affirmed its conclusion that jurisdiction was lacking since the “project which the libellant was engaged in is not even suggestive of maritime affairs. It was supplying water to a city and the mere fact of the means being carried under the bed of a river, with extensions through the river to the surface, did not create any maritime right, nor was it in any sense an aid to navigation, which was the distinguishing feature of The Blackheath.” 162 F., at 496. In these circumstances, the Seas Act — which provides an action in admiralty— clearly would not apply under conventional admiralty principles and, since the Lands Act provides an alternative federal remedy through adopted state law, there is no reason to assume that Congress intended to extend those principles to create an admiralty remedy here. And if the Congress had made the 1920 Seas Act applicable, ousting inconsistent state law, the artificial island worker would be entitled to far less comprehensive remedies in many cases than he is now.
Even if the admiralty law would have applied to the deaths occurring in these cases under traditional principles, the legislative history shows that Congress did not intend that result. First, Congress assumed that the admiralty law would not apply unless Congress made it apply, and then Congress decided not to make it apply. The legislative history of the Lands Act makes it clear that these structures were to be treated as islands or as federal enclaves within a landlocked State, not as vessels.
In introducing the bill to the Senate, Senator Cordon explained its inception as follows:
“The committee first attempted to provide housekeeping law for the outer shelf by applying to the structures necessary for the removal of the minerals in the area under the maritime law of the United States. This was first attempted by incorporating by reference the admiralty statutes. This solution at first seemed to be a reasonably complete answer . . . inasmuch as the drilling platforms would have been treated as vessels. Maritime law, which applies to American vessels, would have applied under that theory to the structures themselves.
“However, further consideration clearly showed that this approach was not an adequate and complete answer to the problem. The so-called social laws necessary for protection of the workers and their families would not apply. I refer to such things as unemployment laws, industrial-accident laws, fair-labor-standard laws, and so forth. . . .
“[Ultimately, instead,] the whole body of Federal law [was made applicable] to the area [as well as state law where necessary]. Thus, the legal situation is comparable to that in the areas owned by the Federal Government under the exclusive jurisdiction of the Federal Government and lying within the boundaries of a State in the uplands.” 99 Cong. Rec. 6963.
Similarly, Senator Ellender asserted that in the first draft it “was sought to treat the platforms or artificial islands created in the water as ships” but now the “islands are made subject to our domestic law” instead so as to be “treated just as though they were islands created by nature, insofar as the application of our domestic laws is concerned.” 99 Cong. Rec. 7235.
The House bill, H. R. 5134, had made federal law applicable, but also provided that the not “inconsistent . . . laws of each coastal State which so provides shall be applicable,” at least if adopted by the Secretary of the Interior. H. R. Rep. No. 413, 83d Cong., 1st Sess., 4, 8-9 (1953). The Senate bill, as it read before committee amendments, provided instead that acts “on any structure (other than a vessel)” located on the Continental Shelf for exploring or exploiting its resources “shall be deemed to have occurred or been committed aboard a vessel of the United States on the high seas and shall be adjudicated . . . according to the laws relating to such acts ... on vessels of the United States on the high seas.” When the Senate bill was reported from committee, this section had been replaced by the present language, omitting entirely any reference to treating the islands as though they were vessels.
Careful scrutiny of the hearings which were the basis for eliminating from the Lands Act the treatment of artificial islands as vessels convinces us that the motivation for this change, together with the adoption of state law as surrogate federal law, was the view that maritime law was inapposite to these fixed structures. See generally Hearings before the Senate Committee on Interior and Insular Affairs, 83d Cong., 1st Sess., on S. 1901 (1953) (hereafter Hearings). One theme running throughout the hearings was the close relationship between the workers on the islands and the adjoining States. Objections were repeatedly voiced to application of maritime law and with it the admiralty principle that the law of the State of the owner of the artificial island “vessel” is used for supplementation. On the other hand, federal enforcement of the law in this area was insisted upon by the Department of Justice, and there was substantial doubt whether state law and jurisdiction could or should be extended to the structures. A federal solution was thought necessary.
The committee was aware that it had the power to treat activity on these artificial islands as though it occurred aboard ship. Jones v. United States, 137 U. S. 202 (1890); Hearings 511-512; Extension of Admiralty Act of 1948, 62 Stat. 496, 46 U. S. C. § 740; see United States v. Matson Nav. Co., 201 F. 2d 610 (C. A. 9th Cir. 1953); cf. Gutierrez v. Waterman S. S. Corp., 373 U. S. 206, 209 (1963). And the very decision to do so in the initial bill recognized that if it were not adopted explicitly, maritime law simply would not apply to these stationary structures not erected as navigational aids. Moreover, the committee was acutely aware of the inaptness of admiralty law. The bill applied the same law to the seabed and subsoil as well as to the artificial islands, and admiralty law was obviously unsuited to that task.
Although the Assistant Attorney General, Office of Legal Counsel, persisted to the end in his claim that admiralty law should apply, and that with it should be incorporated the law of the State of the island’s owner, this view obviously did not prevail. Instead, a compromise emerged. The administration’s opposition to committing these areas solely to the jurisdiction of state courts, state substantive law, and state law enforcement was recognized in that the applicable law was made federal law enforceable by federal officials in federal courts. But the special relationship between the men working on these artificial islands and the adjacent shore to which they commute to visit their families was also recognized by dropping the treatment of these structures as “vessels” and instead, over the objections of the administration that these islands were not really located within a State, the bill was amended to treat them “as if [they] were [in] an area of exclusive Federal jurisdiction located within a State.” State law became federal law federally enforced.
In view of all this, and the disclosure by Senator Cordon to the Senate upon introduction of the bill that the admiralty or maritime approach of the original bill had been abandoned, it is apparent that the Congress decided that these artificial islands, though surrounded by the high seas, were not themselves to be considered within maritime jurisdiction. Thus the admiralty action under the Seas Act no more applies to these accidents actually occurring on the islands than it would to accidents occurring in an upland federal enclave or on a natural island to which admiralty jurisdiction had not been specifically extended. At a minimum, the legislative history shows that accidents on these structures, which under maritime principles would be no more under maritime jurisdiction than accidents on a wharf located above navigable waters, were not changed in character by the Lands Act.
Since the inapplicability of the Seas Act removes any obstacle to the application of state law by incorporation as federal law through the Lands Act, the decisions below are reversed and the causes remanded for proceedings consistent with this opinion.
It is so ordered.
The District Court dismissed one of the civil causes of action on the ground that unlike the other it did not specifically name the Lands Act, but rested instead directly on Louisiana law. This formal omission was inconsequential because of the District Judge’s view that there would be no cause of action even under the Lands Act and Louisiana law together. On remand, it may be that both claims can be construed to assert actions under the Lands Act and Louisiana Law, or that any deficiency in this regard can be cured by amendment of the pleadings. Fed. Rule Civ. Proc. 15.
67 Stat. 462, as set forth in 43 U. S. C. § 1332:
“(a) It is declared to be the policy of the United States that the subsoil and seabed of the outer Continental Shelf appertain to the United States and are subject to its jurisdiction, control, and power of disposition as provided in this subchapter.”
67 Stat. 462, as set forth in 43 U. S. C. § 1333:
Ҥ 1333. Laws and regulations governing lands.
“(a) Constitution and United States laws; laws of adjacent States; publication of projected State lines; restriction on State taxation and jurisdiction.
“(1) The Constitution and laws and civil and political jurisdiction of the United States are extended to the subsoil and seabed of the outer Continental Shelf and to all artificial islands and fixed structures which may be erected thereon for the purpose of exploring for, developing, removing, and transporting resources therefrom, to the same extent as if the outer Continental Shelf were an area of exclusive Federal jurisdiction located within a State: Provided, however, That mineral leases on the outer Continental Shelf shall be maintained or issued only under the provisions of this subchapter.
“(2) To the extent that they are applicable and not inconsistent with this subchapter or with other Federal laws and regulations of the Secretary now in effect or hereafter adopted, the civil and criminal laws of each adjacent State as of the effective date of this subchapter are declared to be the law of the United States for that portion of the subsoil and seabed of the outer Continental Shelf, and artificial islands and fixed structures erected thereon, which would be within the area of the State if its boundaries were extended seaward to the outer margin of the outer Continental Shelf, and the President shall determine and publish in the Federal Register such projected lines extending seaward and defining each such area. All of such applicable laws shall be administered and enforced by the appropriate officers and courts of the United States. State taxation laws shall not apply to the outer Continental Shelf.
“(3) The provisions of this section for adoption of State law as the law of the United States shall never be interpreted as a basis for claiming any interest in or jurisdiction on behalf of any State for any purpose over the seabed and subsoil of the outer Continental Shelf, or the property and natural resources thereof or the revenues therefrom.”
41 Stat. 537, 46 U. S. C. §§761-768. 46 U. S. C. §761 reads:
“Whenever the death of a person shall be caused by wrongful act, neglect, or default occurring on the high seas beyond a marine league from the shore of any State, or the District of Columbia, or the Territories or dependencies of the United States, the personal representative of the decedent may maintain a suit for damages in the district courts of the United States, in admiralty, for the exclusive benefit of the decedent’s wife, husband, parent, child, or dependent relative against the vessel, person, or corporation which would have been liable if death had not ensued.”
Since this topic received scant attention in argument in this Court, additional briefs were requested.
The Plymouth, 3 Wall. 20 (1866); The Troy, 208 U. S. 321 (1908); T. Smith & Son, Inc. v. Taylor, 276 U. S. 179 (1928); Hastings v. Mann, 340 F. 2d 910 (C. A. 4th Cir.), cert. denied, 380 U. S. 963 (1965).
The Blackheath, 195 U. S. 361 (1904); The Raithmoor, 241 U. S. 166 (1916); Doullut & Williams Co. v. United States, 268 U. S. 33 (1925).
“The admiralty and maritime jurisdiction of the United States shall extend to and include all cases of damage or injury, to person or property, caused by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land.” 62 Stat. 496, 46 U. S. C. § 740.
For example, Senator Daniel asserted that “the fixed platforms out there do not even touch the waters except for the supporting pipes or ‘legs’ which go through the water down into the ground. I think you can treat those platforms as connected with the soil and development of the soil rather than treating them as vessels.” Hearings 22. Similarly, Acting Secretary of the Treasury Rose opined in a letter to the Committee that these islands might not even be considered to be “upon navigable waters” for the purpose of applying laws requiring safety lights. Hearings 53. A specific provision was added to the statute to permit safety regulation. §4(e), 43 U. S. C. § 1333 (e). Obviously these islands were not constructed principally as aids to navigation as respondents contend, cf. Pure Oil Co. v. Snipes, 293 F. 2d 60 (C. A. 5th Cir. 1961), but were instead hazards to navigation requiring warning facilities. Governor Kennon of Louisiana voiced strong opposition, Hearings 449-485, as did Senator Long of that State, e. g., Hearings 275-278. See also Hearings 513-518, 545, 612. And at Hearings 644^645, the inappropriateness of applying the law of the owner of the artificial island or subsoil lease, rather than the law of the adjacent State, was given special emphasis.
See letter to Senator Cordon from Assistant Attorney General Rankin, Hearings 700; testimony of Mr. Rankin, Hearings 644-645, 664-665, 652-653.
In the opening discussion of the original draft of the bill, treating these islands as vessels, Senator Cordon remarked: “It is the view of the chairman that when these individuals leave their vessels and board this structure, they are subject to the law that operates on the structure, which in this instance is the same law that operates on board a ship, but becomes that only because of this act.” Hearings 9. (Emphasis added.) And at the end of the hearings, when the Senators were questioning an admiralty lawyer on the treatment these structures would receive absent any statutory provision, he informed them that even a lighthouse would be treated as land, except insofar as it was subject to admiralty jurisdiction as an aid to navigation. Hearings 669-670.
An admiralty expert questioned by the committee took the position that application of maritime law would be unwise. “Maritime law in the strict sense has never had to deal with the resources in the ground beneath the sea, and its whole tenor is ill adapted for that purpose.” Hearings 668. Since the Act treats seabed, subsoil, and artificial islands the same, dropping any reference to special treatment for presumptive vessels, the most sensible interpretation of Congress’ reaction to this testimony is that admiralty treatment was eschewed altogether, except to the extent that the Extension of Admiralty Act might make it applicable.
Question: What is the basis of the Supreme Court's decision?
A. judicial review (national level)
B. judicial review (state level)
C. Supreme Court supervision of lower federal or state courts or original jurisdiction
D. statutory construction
E. interpretation of administrative regulation or rule, or executive order
F. diversity jurisdiction
G. federal common law
Answer:
|
songer_genresp1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
JACKSONVILLE BLOW PIPE COMPANY, Appellant, v. RECONSTRUCTION FINANCE CORPORATION, Appellee.
No. 16400.
United States Court of Appeals Fifth Circuit.
April 26, 1957.
Simpson, District Judge, dissented.
W. J. Oven, Jr., Tallahassee, Fla., for appellant.
Gray C. Ramsaur, Guy W. Botts, Jacksonville, Fla., Botts, Mahoney & Whitehead, Jacksonville, Fla., of counsel, for appellee.
Before TUTTLE and BROWN, Circuit Judges, and SIMPSON, District Judge.
TUTTLE, Circuit Judge.
This is an appeal from a summary judgment enjoining appellant from prosecuting a suit in the state courts of Florida against appellee’s transferees of certain property purchased by the appellee at a bankruptcy sale in and approved by the district court, and forbidding appellant from initiating any other suits for the recovery of the property or for damages for its taking. The principal issue is whether such an injunction is prohibited under the circumstances of this case by section 2283 of the Judicial Code, 28 U.S.C.A. § 2283.
On October 31, 1951, appellant entered into a “retain title contract” with the Parker Manufacturing Company, whereby appellant furnished and installed a blow pipe system for that company for a purchase price of $3,724.32, retaining title, however, until the system was “fully paid for in cash.” On January 17, 1953, the Parker Manufacturing Company was adjudged a bankrupt and all of its assets were placed in the hands of a trustee; at that time $550.00 was still owing on the above contract and appellant filed a secured claim. The Referee on May 20th directed the trustee to conduct a public sale of the Parker plant and the trustee thereupon advertised the entire plant for sale as a unit, listing the blow pipe system as part of its equipment. On June 5th appellant petitioned the Referee that it be declared the owner of the system and that the trustee be directed either to give them possession of it or to pay them the amount of their claim; thereupon on June 16th the Referee ordered as follows:
“Ordered, Adjudged and Decreed, that the Trustee surrender to the petitioner the described property subject to the retention of title agreement, or that the trustee pay to the petitioner the principal sum of $550.00 plus interest accruing to the date of the filing of the involuntary bankruptcy petition.”
On the same day the Referee modified his order of sale of May 20th to provide that the property sold should be free of liens and unencumbered. On the following day the trustee sold the entire plant, as advertised, to the appellee for $49,-100, on the condition that appellee be permitted to offset against the price so much as necessary of the approximately $70,000 mortgage indebtedness owed to it by the bankrupt; the district court approved the sale on these terms on September 30th. On November 5th the trustee conveyed the plant to the appellee by a Deed and Bill of Sale which expressly covered the blow pipe system.
On December 2nd the trustee, evidently not having realized any cash with which he could pay the $550 plus interest to the appellant, wrote a letter to its attorney :
«***];*** am> by this letter, advising you that we forthwith surrender the property in question subject to the retention title-agreement in favor of your client, Jacksonville Blow Pipe Company, the same being located on the premises of Parker Manufacturing Company, Inc.
“You may proceed on the basis that I as Trustee, in accordance with the Referee’s order entered on the 16th day of June, 1953, have relinquished all rights and claims that I may have in my capacity as Trustee to the pipes in question. This should! be sufficient for you to proceed ini any manner you deem fit.” (Emphasis added.)
On January 5, 1954, appellant sent a truck to the plant to remove the system, but after some negotiations with representatives of the appellee, appellant was persuaded to leave the system there, marked prominently with a sign:
“Property of and for sale by Jacksonville Blow Pipe Company, P.O.Box 3687, Phone 5-0586, Jacksonville, Florida.”
On March 15th appellee sold the entire plant, with warranty of title, to H. Pickett, who thereafter conveyed parts to the Cash Lumber Company and to others. On September 25th appellee offered to pay appellant the amount of its claim and on April 7, 1955, appellee’s check for $564.92 was tendered to appellant by the trustee. On June 26th the Referee entered an order approving the accounts and discharging the trustee; no appeal was taken from this order.
Appellant then filed a suit against H. Pickett and the Cash Lumber Company in the Circuit Court of the Second Judicial Circuit of Florida, demanding a return of the blow pipe system or its value plus $4,500 damages for its retention. Appellee thereupon filed this suit in the district court, in which the bankruptcy proceedings had transpired, praying for a declaratory judgment determining ap-pellee’s and appellant’s rights to the system and for a permanent injunction prohibiting appellant from prosecuting any suits for the repossession, or damages for the retention of the system. After both parties had submitted affidavits, admissions, and answers to interrogatories and had moved for summary judgment the district court granted the injunction prayed for on the condition that appellee would deposit $550 plus the requisite interest with the court.
. The principal issue is created by appellant’s contention that because of the provisions of 28 U.S.C.A. § 2283 the district court was without jurisdiction to enter such an injunction. Reliance is placed principally on Sargent v. Helton, 115 U.S. 348, 6 S.Ct. 78, 29 L.Ed. 412, followed in Piedmont Coal Co. v. Hustead, 3 Cir., 294 F. 247, 32 A.L.R. 556, certiorari denied, 264 U.S. 582, 44 S.Ct. 331, 68 L.Ed. 860, and on Toucey v. New York Life Insurance Co., 314 U.S. 118, 62 S.Ct. 139, 86 L.Ed. 100, and Amalgamated Clothing Workers v. Richman Brothers Co., 348 U.S. 511, 75 S.Ct. 452, 99 L.Ed. 600. It is thus necessary for us to examine this somewhat troubled jurisdictional area in which the effect of several crucial and divided Supreme Court decisions and of the 1948 revision of the Judicial Code have as of yet been insufficiently explored.
Though the federal courts have ever since 1793 been forbidden by the various Judiciary Acts and Codes to enjoin the proceedings of any state court, over the years a number of judicial exceptions to the rigid application of the prohibition had developed. In Julian v. Central Trust Company, 193 U.S. 93, 24 S.Ct. 399, 48 L.Ed. 629, the Supreme Court held that in spite of R.S. § 720 a federal court that had approved a foreclosure sale of mortgaged property free of all except specified liens could, at the instance of the purchaser, protect its own continuing jurisdiction over the property by enjoining the prosecution of an aetion in the state courts which sought to enforce a lien against the property created by a judgment in the state court against the former owner based on an accident that had occurred after the foreclosure sale. In Riverdale Cotton Mills v. Alabama & Georgia Manufacturing Co., 198 U.S. 188, 25 S.Ct. 629, 49 L.Ed. 1008, the Court held that a federal court that had after much litigation settled the title to certain property in a foreclosure action could enjoin a state suit in which the defeated parties sought to attack the title approved by the federal court on the ground that that court never had had proper diversity jurisdiction; Julian and many other cases were cited for the proposition that an equity court had power to protect its jurisdiction and to effectuate its decrees by issuing such an injunction. Cf. also Lang v. Choctaw, Oklahoma & Gulf R. R., 8 Cir., 160 F. 855, and Bethke v. Grayburg Oil Co., 5 Cir., 89 F.2d 536, certiorari denied, 302 U.S. 730, 58 S.Ct. 54, 82 L.Ed. 564, in which this Court held that even after the termination of a receivership a federal court had jurisdiction to issue an injunction in an ancillary action against an in personam suit in a state court which sought to enforce a debt that had been settled and the lien for which had been discharged in the earlier proceeding.
Soon after followed Toucey v. New York Life Insurance Co., supra. In an elaborate and lengthy opinion Mr. Justice Frankfurter analyzed the history of the statutory prohibition, with special reference to its purpose of reducing the occasions for friction between the federal and the state courts, and pointed out that it appeared that two types of exceptions had grown up to reduce the scope of the statute: (1) certain exceptions based on particular statutes that explicitly or implicitly overrode the general prohibition; (2) certain court created exceptions, including especially the following: (a) in in rem proceedings in which both a federal and a state court seek to adjudicate rights to the same property and in which the federal court first obtains custody of the property its injunction against other proceedings will reduce rather than create friction; while several cases were cited directly in support of this proposition, which the opinion did not criticize, the Julian and Riverdale cases were mentioned in a separate footnote, 314 U.S. at page 135, fn. 6, 62 S.Ct. at page 145 to show “the extent to which a federal court’s exclusive control over the res may require the use of the injunction to effectuate its decrees in rem * * (b) injunctions against the enforcement of fraudulently obtained state court judgments— of these the opinion is somewhat more critical; (c) injunctions against the re-litigation in a state court of an in per-sonam cause previously determined in the federal court; for this exception the Court found insufficient support in the cases and no authority in the statute, and its holding was that no such injunction may issue. A vigorous dissent by Mr. Justice Reed challenged the majority’s conclusion that injunctions against relitigation would be more productive of federal-state court friction than would be the undisturbed conduct of such proceedings, and also reanalyzed with different results the cases commonly cited in support of such injunctions and either distinguished or disregarded in the opinion ; in particular the dissent, while not at all disputing the majority’s stated approval of the in rem exception, pointed out that some of the cases cited in the opinion in support of that exception or as defining its bounds, in particular the Julian and Riverdale cases, were actually “relitigation” cases because by the time the ancillary injunction proceeding was brought the res had long since passed from the hands of the federal court.
The Second Circuit soon thereafter found nothing in the Toucey case to prevent it from approving an injunction to protect a purchaser in a receivership proceeding from a state suit based on a lien which the federal action had extinguished. American Brake Shoe & Foundry Co. v. Interborough Rapid Transit Co., 136 F.2d 681. It cited the opinion’s approval of the in rem exception, and then cited the Julian, Riverdale, and Bethke cases for the proposition that:
“To render effectual its prior decrees and to protect the title of one who purchased under them, it [a federal court] may notwithstanding § 265 restrain state court litigation which would have the effect of defeating or impairing its jurisdiction.” 136 F.2d at page 682.
The Supreme Court denied certiorari, sub nom Salomon v. City of New York, 320 U.S. 756, 64 S.Ct. 64, 88 L.Ed. 450, and 320 U.S. 794, 64 S.Ct. 263, 88 L.Ed. 479.
In 1948 the present form of the restrictive provision was adopted. 28 U.S.C.A. § 2283 reads as follows:
“A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.”
The pertinent portion of the Reviser’s Note states:
“The exceptions specifically include the words ‘to protect or effectuate its judgments,’ for lack of which the Supreme Court held that the Federal courts are without power to enjoin relitigation of cases and controversies fully adjudicated by such courts. (See Toucey v. New York Life Insurance Co., 314 U.S. 118, 62 S.Ct. 139, 86 L.Ed. 100. A vigorous dissenting opinion (62 S.Ct. 148) notes that at the time of the 1911 revision of the Judicial Code, the power of the courts of the United States to protect their judgments was unquestioned and that the revisers of that code noted no change and Congress intended no change).
“Therefore the revised section restores the basic law as generally understood and interpreted prior to the Toucey decision.”
Relying on the revised wording as explained in the “Note,” the Tenth Circuit in Jackson v. Carter Oil Co., 179 F.2d 524, certiorari denied 340 U.S. 812, 71 S.Ct. 39, 95 L.Ed. 597, held that a federal court could enjoin the prosecution of a state suit that would challenge an adjudication of title that had been made among the parties or their privies in an earlier action. See also Berman v. Denver Tramway Corp., 10 Cir., 197 F.2d 946.
Since 1948 the Supreme Court has decided no case here directly relevant and has only once taken the opportunity to comment broadly on the present provision. In Amalgamated Clothing Workers v. Richman Brothers Co., supra, where a union, arguing that the field of interstate labor relations had been preempted by Congress, sued in federal court to enjoin an employer from seeking an injunction in a state court against peaceful picketing on the ground that such picketing still violated the state laws against conspiracy and restraint of trade, the Court held that neither the first nor the second explicit exception incorporated in § 2283 would allow such a restraint of a state proceeding, for no federal labor statute expressly authorized injunction against a state court in such a situation and the federal court could not “aid its jurisdiction” since it had as yet acquired none over the dispute and would not acquire any unless the N. L. R. B. brought an appropriate action; the here critical final phrase of § 2283 was not there at issue since there had been no previous federal judgment to protect. However, the majority, in an opinion also written by Mr. Justice Frankfurter — and concurred in by Mr. Justice Reed, did say:
“We need not re-examine the series of decisions, prior to the enactment of Title 28 of the United States Code in 1948, which appeared to recognize implied exceptions to the historic prohibition against federal interference with state judicial proceedings. See Toucey v. New York Life Ins. Co., 314 U.S. 118, 62 S.Ct. 139, 86 L.Ed. 100. By that enactment, Congress made clear beyond cavil that the prohibition is not to be whittled away by judicial improvisation. * * * The 1948 enactment revised as well as codified. The old section was thus embodied in the new § 2283: * * 348 U.S. at page 514, 75 S.Ct. at page 454.
“This is not a statute conveying a broad general policy for appropriate ad hoc application. Legislative policy is here expressed in a clear-cut prohibition qualified only by specifically defined exceptions.” 348 U.S. at pages 515-516, 75 S.Ct. at page 455.
and in a footnote, commenting on the final paragraph of the Reviser’s Note quoted above:
“Even if taken to mean that, despite the revised wording, the section is to derive its content from decisions prior to 1948, these contain no precedent for the present proceeding. * * * Moreover, in context it is clear that the quoted phrase refers only to the particular problem which was before the Court in the Toucey case.” 348 U.S. at page 515 fn. 1, 75 S.Ct. at page 455.
On the basis of these comments in the Richman Bros, opinion appellant argues that the only exceptions in § 2283 are the three categories specifically set forth therein and that it is thus no longer permissible to import any of the three court made exceptions that had been identified in the Toucey case, except insofar as the “relitigation” exception is now covered in the final phrase of the .statute; therefore the “in rem” exception approved by both the opinion and the dissent in the Toucey case would be eliminated. Cf. National Labor Relations Board v. Swift & Company, 8 Cir., 233 F.2d 226; Collins v. Laclede Gas Company, 8 Cir., 237 F.2d 633.
We are unable to agree with the appellant’s understanding of § 2283 based on the above decision. In view of the general approval of the in rem exception in the Toucey case, supported there by persuasive arguments and by many decisions, and in the absence of any indication that Congress wished to modify it, and in view of the Reviser’s Note that: “ * * * the revised section restores the basic law as generally understood and interpreted prior to the Toucey decision” we cannot see how it can be argued that the exception is now no longer viable; applied to the “in rem” exception the broad statements in the Richman Bros, case would at most be dicta.
Given the approval in the Toucey case, albeit with misgivings, of the Julian and Riverdale cases as within the in rem exception, and concluding that that exception is still applicable under the new statute, we feel that the present case is sufficiently within its bounds. On the other hand if the Toucey dissent’s view of the earlier cases is taken, i. e. that they are in effect illustrative of the “re-litigation” exception since the res in each case had already passed from the custody of the court, then the statutory reversal of the Toucey holding as to this exception in the in personam situation, which is here necessarily a fortiori of the relitigation of an in rem proceeding, preserves both the authority of the Julian and Riverdale cases and their controlling effect here. If in addition it is taken into account that the appellant as well as the appellee was a party to the original proceeding, and that the defendants in the state action are privies in title of the appellee and thus entitled to claim the benefits of any judgment that secures his title (30 Am.Jur., Judgments, §§ 222-27), we see that this is even more plainly a “relitigation” situation now excepted from the prohibition by the legislative reversal of the Toucey case, than even Julian, in which the enjoined parties had not been participants in the previous litigation. Finally, viewing only the statute in the abstract, the district court’s action here appears to be clearly covered by the authority “to protect or effectuate its judgments” since all that is sought in the state litigation is to change the manifest effect of the actions and orders of the court appointed trustee, of the Referee, and of the court itself in approving the Bill of Sale including the blow pipe system; nothing would be as productive of friction between the state and the federal courts as to permit a state court to interpret and perhaps to upset such a judgment of a federal court.
Appellant also relies on the old case of Sargent v. Helton, supra, in which it was held that in view of R.S. § 720 a purchaser at a bankruptcy sale could not be protected by enjoining a state court proceeding against the purchased property, which proceeding had been commenced by attaching the property before the bankruptcy was initiated but which was only completed after the federal court had sold the property, where no motion was made to stay the state action during the bankruptcy proceeding. Appellant cites only one relevant case which followed Sargent, Piedmont Coal Co. v. Hustead, supra, in which any purported reliance on the earlier case was dicta since it was held that there the purchaser did not take free of liens created by an earlier state court proceeding. In view of the later Julian, Riverdale, Bethke, and American Brake Shoe cases, none of which refer to Sargent V. Helton, and in view of the distinction also applicable here pointed out in Stewart v. Wisconsin Central Ry., C.C.N.D.Ill., 117 F. 782, that in the Sargent case the state proceeding had been commenced and the attachment made before the federal ac-* tion had even been initiated, we feel that we are not bound by that decision.
On the substantive merits appellant’s claim is easily disposed of. Principally it is based on the following points: (1) that the trustee was bound by the Referee’s order either to return the property or to pay the claim, and by making arrangements for a sale that would yield no money he had indicated his election to return the property; (2) that the trustee had explicitly abandoned the property to the appellant by his letter of December 2, 1953; (3) that appellee had waived its claim to the system by the statements in a certain brief they had filed in the proceeding, by permitting the posting of a sign on the property indicating appellant’s ownership, and by offering to pay the claim even though ostensibly they had purchased the property free of all liens. None of these contentions has any merit. By his advertisement, his acceptance of appellee’s offer to purchase the entire plant, and by the court approved Bill of Sale the trustee had indicated clearly that he had elected not to return the system to' appellant; if he failed to make any provision to pay appellant as required by the Referee’s order an action could have been initiated against the trustee or his bond—but appellant did not even appeal from the order settling the trustee’s accounts and discharging him. The letter of December 2nd was ineffective to pass title to the system for the appellee had already received its Bill of Sale, and thus trustee’s act in relinquishing “all rights and claims that I may have in my capacity as Trustee” was entirely nugatory. None of appellee’s acts, all of which were considered by the district court, amounted to a conveyance of its undoubted property right in the system. Finally it should be noted that there is no equity in appellant’s position, for not being satisfied with receiving the entire amount of its claim with interest from a no-asset bankruptcy proceeding it now wishes to assert the forfeiture to it of property worth many times the amount of its claim and damages in excess of the original value of their contract.
The judgment of the district court is affirmed.
. On June 20th the trustee entered an appeal from this order, which, however, was never perfected.
. Some days earlier, on November 9th, ap-pellee in filing another petition in the bankruptcy proceeding, had, in a brief, characterized the blow pipe system as having been abandoned by the Trustee; the petition, however, was not concerned with the ownership of the property.
. 143 F.Supp. 601.
. The original provision read:
“ * * • nor shall a writ of injunction be granted to stay proceedings in any court of a state * * 1 Stat. 335.
This was later revised to read:
“The writ of injunction shall not be granted by any court of the United States to stay proceedings in any court of a State, except in cases where such injunction may be authorized by any law relating to proceedings in bankruptcy.” R.S. § 720, recordified as § 265 of the Judicial Code of 1911, 28 U.S.C. § 379 (1940 ed.), 36 Stat. 1162.
. In the Julian case, however, the court had relinquished possession but not jurisdiction; seo 7 Moore, Federal Practice H66.08 [3] at 1954 fn. 5.
. In one of two dissents, concurred in by three Justices, Mr. Chief Justice Warren argues that § 2283 is meant to be not broader but narrower than the provision it replaced, and that besides reversing the specific holding of the Toucey case it was also intended to reject “its philosophy of judicial inflexibility” and to approve the dissent in that case,
. It should be noted that the first explicit exception: “as expressly authorized by Act of Congress” is not available here for the only relevant statutes here are those under the Bankruptcy Title, and of those none allow an injunction to protect a purchaser in a bankruptcy sale; see 11 U.S.C.A. §§ 11, sub. a (15), 29 sub. a.
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
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songer_appel1_1_3
|
F
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the 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.
HARBOR VIEW MARINE CORP. v. BRAUDY. In re PEARL FISHERIES, Inc.
No. 4551.
United States Court of Appeals First Circuit.
April 30, 1951.
Rehearing Denied May 14,1951.
Jack M. Rosenberg, New Bedford, Mass. (Solomon Rosenberg, New Bedford, Mass., with him on the brief), for appellant.
Louis Stone, New Bedford, Mass., for appellee.
Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.
MAGRUDER, Chief Judge.
In this bankruptcy appeal only a narrow point is presented, as to the extent of a warehouseman’s lien under the applicable Massachusetts statute.
Harbor View Marine Corporation, appellant herein, is a Massachusetts corporation which conducts a public warehouse and fish-freezing plant in Fairhaven, Massachusetts. Pearl Fisheries, Inc., the bankrupt, had from time to time during the two and one-half years prior to bankruptcy delivered to appellant various lots of fish owned by the bankrupt, for freezing and storage. For each, lot as delivered, appellant issued a non-negotiable warehouse receipt to the bankrupt. At the time of the adjudication there remained on deposit in appellant’s warehouse eleven of such lots of fish. The bankrupt owed the warehouseman (1) the sum of $258.11, on account of unpaid charges for processing and storage of those eleven -lots of fish remaining in the warehouse, and (2) the additional sum of $1,126.84, as unpaid charges for processing and storage of other lots of the bankrupt’s fish previously stored in appellant’s warehouse but withdrawn therefrom by the bankrupt prior to bankruptcy. Appellant claimed a general lien on the eleven lots of fish as security for the total amount due on the general account, amounting to $1,384.95. The trustee in bankruptcy maintained that the lien was a specific one, limited in amount to $258.11, the unpaid charges on the lots of fish remaining in the warehouse.
On separate petitions by the warehouseman and by the trustee for determination of the amount of the lien, the referee in bankruptcy determined that the lien was a specific one only, and entered an order finding “the true amount of the lien to be $258.11.” This was affirmed by order of the district court entered upon consideration of the warehouseman’s petition for review, and the present appeal followed.
The question at issue must be determined by reference to Mass.G.L., C. 105, §§ 32-35, which embody, with no substantial change, the provisions of §§ 27-30 of the Uniform Warehouse Receipts Act. Though this enactment has been on the books in Massachusetts since 1907, Acts and Resolves of Mass. 1907, C. 582, it is rather surprising that, so far as we have been able to discover, the Supreme Judicial Court of Massachusetts has never had occasion to determine whether the warehouseman’s statutory lien is general or specific. Following are the sections of the law bearing on the present case:
C. 105, § 32 [§ 27 of the Uniform Act] Warehouseman’s Lien, Scope of. — “Subject to section thirty-four, a warehouseman shall have a lien on goods deposited or on the proceeds thereof in his hands, for all lawful charges for their storage and preservation; also for all lawful claims for money advanced, interest, insurance, transportation, labor, weighing, coopering and other charges and expenses in relation thereto; also for all reasonable charges and expenses for notice, and advertisements of sale, and for sale thereof where default has been made in satisfying his lien.”
§ 33 [§ 28 of the Uniform Act] Application of Lien. — “Subject to the provi-
sions of the following section, such a lien may be enforced—
“(a) Against all goods, whenever deposited, belonging to the person who is liable as debtor for the claims to secure which the lien is asserted; and
“(b) Against all goods belonging to others which have been deposited at any time by the person who is liable as debtor for the claims to secure which the lien is asserted, if such person had been so intrusted with the possession of the goods that a pledge of the same by him at the time of the deposit to one who took the goods in good faith for value would have been valid. . . . ”
§ 34 [§ 29 of the Uniform Act] Loss of Lien. — “A warehouseman loses his lien—
“(a) By surrendering possession; or
“(b) By refusing to deliver the goods when a demand is made with which he is bound to comply under this chapter.”
§ 35 [§ 30 of the Uniform Act] Additional Charges for Which Lien Is Claimed. —“If a negotiable receipt is issued for goods, the warehouseman shall have no lien thereon, except for charges for storage and preservation of those goods subsequent to the date of the receipt, unless the receipt expressly enumerates other charges for which a lien is claimed. In such case there shall be a lien for the charges enumerated, so far as they are within the terms of section thirty-two although the amount of the charges so enumerated is not stated in the receipt.”
At the common law, a warehouseman had a specific lien for storage charges, enforceable only against the goods to which the charges related. See Lummus on Liens § 72 (1904). This was oddly in contrast with the common law treatment of wharfingers, who had a general lien, enforceable against any of the owner’s goods remaining on deposit, as security for unpaid storage charges accumulated on general account. Lummus on Liens § 80 (1904); see discussion in Stallman v. Kimberly, 1889, 53 Hun 531, 6 N.Y.S. 706, affirmed 1890, 121 N.Y. 393, 24 N.E. 939. In a few states, prior to the drafting of the Uniform Warehouse Receipts Act, the warehouseman’s lien had by statute been extended to cover “all legal demands for storage and said above described expenses paid which he may have against the owner of said goods”. N.Y. Laws 1885, C. 526, § 1; Mich. Comp. Laws 1897, § 5031. These statutes were construed as giving to warehousemen a general lien like that of the wharfinger. Stallman v. Kimberly, supra; Kaufman v. Leonard, 1905, 139 Mich. 104, 102 N.W. 632. This result was made even clearer in N.Y. Laws 1897, C. 418, § 73. Hence, at the time the Uniform Warehouse Receipts Act was drafted, it was well settled that a warehouseman had at least a specific lien, and in some states there were statutes enlarging the lien into a general one. The various statutes and decisions are collected in Mohun, Compilation of Warehouse Laws (1904).
With this background of history, it seems fairly clear to. us that the Uniform Warehouse Receipts Act was intended to follow the then existing New York statutory precedent, and to vest in the warehouseman a general lien rather than a specific one. The body of § 27 of the Uniform Act (Mass. § 32, quoted supra), if read in isolation, might seem to grant the warehouseman only a specific lien on goods on deposit for the warehouseman’s charges and expenditures in relation thereto, going beyond the common law merely by enlarging the types of charges with respect to which the specific lien was applicable. See Commissioners’ Note to § 27 of the Uniform Act; Mohun, The Effect of the Uniform Warehouse Receipts Act, 13 Col.L. Rev. 202, 208 (1913). But when § 27 of the Uniform Act is read in conjunction with § 28 thereof, Mass. § 32 and § 33, the scheme in the draftsman’s mind is more readily apparent.
Section 27 of the Uniform Act, Mass. § 32, is primarily designed to define the types of charges to be embraced within the warehouseman’s lien. This is indicated by the caption of § 27 of the Uniform Act: “What claims are included in the warehouseman’s lien”. Under the caption “Against What Property the Lien May be Enforced”, § 28 of the Uniform Act, Mass. .§ 33, provided that the warehouseman’s lien might be enforced “(a) Against all goods, whenever deposited, belonging to the person who is liable as debtor for the claims in regard to which the lien is asserted”. Thus, reading the two sections together, if the claims in regard to which the lien is asserted are the types of charges defined in § 27, Mass. § 32, the lien therefor is, by force of § 28(a), Mass. '§ 33(a), a general one good against “all goods, whenever deposited, belonging to the person who is liable as debtor” for such charges. If this is not the effect of the latter section, it is difficult to see what it adds to the statute. Further, as provided in § 28(b) of the Uniform Act, Mass. § 33(b), the lien also is enforceable against “all goods belonging to others which have been deposited at any time by the person who is liable as debtor for the claims in regard to which the lien is asserted if such person had .been so entrusted with the possession of the goods that a pledge of the same by him at the time of the deposit to- one who took the goods in good faith for value would have been valid.”
The Uniform Warehouse Receipts Act was drafted by Professor Williston. See 4 Williston on Contracts, § 1045, n. 8 (Rev. ed. 1936). In his treatise, Professor Wil-liston states (op. cit. § 1058, n. 2) that § 28 of the Uniform Act, Mass. § 33, extends the common law “by giving a general rather than a specific lien”; and for statutory precedent he refers to the earlier New York statute, citing Stallman v. Kimberly, 1890, 121 N.Y. 393, 24 N.E. 939.
The foregoing interpretation of the Uniform Act was specifically adopted by decision of the court in San Angelo Wine & Spirits Corp. v. South End Warehouse Co., 1936, 19 Cal.App.2d Supp. 749, 61 P.2d 1235. Ill several other jurisdictions there are dicta to the same effect. In re Taub, 2 Cir., 1925, 7 F.2d 447, 451; Klock Produce Co. v. Diamond Ice & Storage Co., 1916, 90 Wash. 67, 155 P. 414; Metropolitan Commercial Corp. v. Larkin Co., Inc., 1936, 168 Misc. 31, 4 N.Y.S.2d 326, affirmed Per Curiam, 4th Dept. 1939, 257 App.Div. 612, 15 N.Y.S.2d 18. See also Wilson Distilling Co., Inc. v. Foust Distilling Co., D.C.M.D.Pa.1943, 51 F.Supp. 744; State Bank of Wilbur v. Almira Farmers’ Warehouse Co., 1923, 123 Wash. 354, 212 P. 543; Id., 1924, 131 Wash. 623, 230 P. 817. There is a dearth of authority to the contrary. In view of § 66 of the Massachusetts Act, providing that it “shall be so interpreted and construed as to accomplish its general purpose to make uniform the law of those states enacting like laws”, we have no doubt that the Supreme Judicial Court of Massachusetts would interpret its Warehouse Receipts Act as giving warehousemen a general lien, in conformity with the interpretation of the Uniform Act in other jurisdictions, and in conformity with the interpretation of it by its distinguished draftsman.
It is to be noted that we are concerned in this case with non-negotiahle warehouse receipts.
In the case of negotiable receipts, the general lien given to warehousemen by § 33 of the Massachusetts Act is necessarily qualified by § 35 thereof dealing specifically with, the subject matter of negotiable receipts, and providing that where a negotiable receipt is issued for goods, “the warehouseman shall have no lien thereon, except for charges for storage and preservation of those goods subsequent to the date of the receipt, unless the receipt expressly enumerates other charges for which a lien is claimed.” The reason for this fundamental distinction between negotiable and non-negotiable receipts is obvious. See the Commissioners’ Note to § 5 of the Uniform Act, explaining that a negotiable warehouse receipt is the negotiable representative of the goods, whereas a nonnegotiable receipt is merely evidence of an ordinary contract of bailment. When the warehouseman issues a negotiable receipt, he must anticipate that the receipt may pass into the hands of a bona fide purchaser for value; the use of the negotiable receipt as an instrument of commercial credit would be greatly impaired if the subsequent assignee of the receipt had to take subject to a secret lien of the warehouseman for storage charges, advances, etc., on goods other than those covered by the receipt. Therefore the broader claim of lien must be indicated on the negotiable receipt itself. When a non-negotiahle receipt is issued, these considerations are inapplicable. Such a receipt is not normally designed to- be used as an instrument of commercial credit, and should the bailor assign the non-negotiable receipt to another, the transferee cannot expect to stand any better than did his transferor. Where only non-negotiable receipts are involved, it is entirely reasonable that the warehouseman should be able without prejudice to allow a customer to withdraw part of his goods from the warehouse without paying the charges thereon, so long as the warehouseman retains other goods of the customer which are amply sufficient in value to serve as security for the debt on the general account.
In supporting the order of the referee, the district judge relied upon § 34 of the Massachusetts Act, providing that the warehouseman loses his lien by surrendering possession. We do not think that § 34 has any bearing on the present problem. The corresponding provision in § 29 of the Uniform Act was evidently not regarded by the draftsman of the Uniform Act as militating against the view that .§ 28 thereof, Mass. § 33, gave the warehouseman a general lien. The natural meaning of § 29 of the Uniform Act, Mass. § 34, is that the warehouseman’s lien does not follow the goods once the warehouseman surrenders possession of them; which would be true whether the warehouseman is held to have a general or only a specific lien. Though the lien may be enforced only against goods of the owner which the warehouseman retains in his possession, it is entirely consistent with this that, as to such goods, the lien of the warehouseman is a general one giving security for unpaid charges on the general account between the warehouseman and the owner.
Notwithstanding that the warehouseman’s statutory lien is a general one, it would not be against public policy for the warehouseman, in the storage agreement, to restrict himself to a specific lien. This case was heard by the referee on an agreed statement of facts, which recited that the warehouseman had issued to the bankrupt non-negotiable warehouse receipts for the lots of fish in question, but did not set forth the provisions of such receipts. It seems that at the hearing the referee, quite properly, asked to see a typical receipt, and one was supplied to him by counsel. In his memorandum the referee stated: “The storage agreement, one is enclosed herewith and made part of the record, does not state that the lien attaching to one lot can be extended to take care of the charge for storage of another lot. Each lot was a separate and distinct contract, and the warehouseman is bound by the terms of his own receipt. The warehouseman’s lien is good only on the lot to which it applies.” Though the referee forwarded the presumably typical non-negotiable receipt as part of his certificate to the district court, to be considered on the petition for review, for some reason or other the terms of such non-negotiable receipt do not appear in the record now before us. However, appellee included as an appendix to his brief what purports to be a copy of the non-negotiable receipt issued for one of the eleven lots of fish remaining in the warehouseman’s hands at the time of the adjudication in bankruptcy. We shall assume that this document is what it purports to be.
Such receipt, under the heading “Conditions”, after stating that “the property described in the within receipt is hereinafter referred to as ‘deposited property’ ”, provides, in clause 3: “All charges of the Company for storage, labor, insurance and other services and expenses in connection with the deposited property shall be a lien upon said property until fully paid, and until that time the Company shall be entitled to exclusive possession and custody of said property.” Clause 7 provides that “acceptance of this receipt shall constitute an acceptance of all the terms and conditions set forth therein.”
Clause 3 of the receipt has reference only to the warehouseman’s specific lien on the deposited property for the various charges in connection therewith. It does not relate to the wider general lien which is given the warehouseman by statute even though not expressly contracted for. 'It is quite true, as the referee says, that the storage agreement “does not state that the lien attaching to one lot can be extended to-take care of a charge for storage on another lot.” If the statute had not given a general lien, it is clear that no such lien could be found in the contractual terms of the storage agreement. But the statute did give a general lien, and the terms of the non-negotiable warehouse receipt do not, in our opinion, sufficiently indicate any intention of the parties by contract to curtail what would otherwise be the statutory lien. In San Angelo Wine & Spirits Corp. v. South End Warehouse Co., 1936, 19 Cal.App.2d Supp. 749, 61 P.2d 1235, the non-negotiable warehouse receipt which'was there issued contained a provision quite similar to the one in clause 3 of the receipt in the case at bar; yet the warehouseman was held to have a general lien in accordance with the provisions of the Uniform Warehouse Receipts Act.
Our conclusion on the present appeal is that the lien should have been held to* be good for the larger amount of $1,384.95, instead of being restricted to the sum of $258.11 representing the unpaid charges applicable to the eleven lots of fish remaining in the warehouseman’s hands.
The order of the District Court is reversed, and the case is remanded to the District Court for further proceedings in conformity with this opinion; the appellant recovers costs on appeal.
. Such caption was included in the corresponding section of the Massachusetts law as originally enacted, Acts and Resolves of Mass.1907, C. 582, § 28. Though in the subsequent reenactment of the law in Massachusetts, the phraseology of this caption has been altered to the form now appearing in § 32 thereof, above quoted, there is no reason to suppose that the Massachusetts legislature intended thereby to accomplish any substantive change.
. This was emphasized in the Uniform Act by the fact that § 28 giving the warehouseman a general lien was expressly made subject “to the provisions of section thirty [which corresponds with § 35 of the present Massachusetts Act dealing with negotiable receipts]”. When the Uniform Act was adopted in Massachusetts in 1907, an additional section was inserted by the legislature at the beginning, with the other sections following in order as in the Uniform Act but with section numbers larger by one in each instance. Section 28 of the Uniform Act thus became § 29 of the Massachusetts Act, but the legislative draftsman evidently failed to change the cross-reference in § 29 to correspond to the new numbering. This inadvertent, and we think inconsequential, error was perpetuated in the subsequent reenactment of the Uniform Act in Massachusetts, so that the present § 33 of the Massachusetts Act is expressly to be subject “to the provisions of the following section,” namely, § 34, providing that a warehouseman loses his lien by surrendering possession.
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_weightev
|
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 factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
LOCAL NO. 6, BRICKLAYERS, MASONS AND PLASTERERS INTERNATIONAL UNION OF AMERICA et al., Plaintiffs-Appellants, v. BOYD G. HEMINGER, INC., and Frank Fulton, Inc., Defendants-Appellees.
No. 72-2199.
United States Court of Appeals, Sixth Circuit.
Argued April 9, 1973.
Decided Aug. 9, 1973.
James O. Cross, Akron, Ohio, for plaintiffs-appellants.
Charles A. Morgan, Jr., of Amerman, Burt & Jones Co., Canton, Ohio, for defendants-appellees.
Before PHILLIPS, Chief Judge, LIVELY, Circuit Judge, and O’SULLIVAN, Senior Circuit Judge.
PHILLIPS, Chief Judge.
This is a suit to compel arbitration. The District Court refused to order arbitration, rendering judgment in favor of the appellee employer, Boyd G. Hem-inger, Inc. The three labor unions appeal. Although Frank Fulton, Inc. also was a party to this litigation in the District Court, the unions, in this appeal, seek only a remand for direction of arbitration with Heminger. Jurisdiction is founded on § 301 of the Labor Management Relations Act, as amended. 29 U. S.C. § 185. We reverse and remand.
Each of the three unions is party to individual collective bargaining agreements with the Heminger corporation, which is in the construction industry. The bricklayers’ agreement requires that seventy per cent of all the employer’s bricklayers must be union members, if they are available and competent. The carpenters’ agreement requires that all unemployed carpenters in a four-county area in and around Canton, Ohio, be hired before any outside help is employed. The Ironworkers’ agreement provides that other than a minimum of key employees, all of Heminger’s iron-workers shall be furnished by the union.
The unions allege that Heminger violated each of these union security provisions by creating a sham corporation (appellee Frank Fulton, Inc.) to operate with non-union employees in the geographical areas covered by the agreements. A demand for arbitration for breach of the above provisions was made by each union on June 14, 1972. This suit was instituted after Heminger refused to arbitrate.
The bricklayers’ arbitration agreement provides that the arbitration procedure will be used to settle “any disputes occurring during life of this Agreement in a peaceful manner .” The carpenters’ arbitration agreement provides for arbitration “(i)n the event any . . . difference of opinion or dispute occurs, whether they concern the interpretation of the . . . Agreement or otherwise The Ironworkers’ arbitration agreement provides “(t)he Board of Arbitration shall have jurisdiction over all questions involving the interpretation and application of any section of this Agreement.”
The District Court, in its opinion, detailed the unions’ allegations concerning the creation of the sham corporation and examined the evidence on the merits of the claim. The court concluded “this court can go no further than to determine whether or not plaintiffs have made out a prima facie case based on the alter ego or single employer theory.” It refused to send the matter to arbitration because “the evidence and testimony indicate a lack of sufficient common factors to illustrate a single employer or alter ego theory.”
Any inquiry into the applicable law in this area must begin with the Steelworkers’ Trilogy. United Steelworkers v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). The teaching of the Trilogy is that arbitration is preferred in the field of labor disputes. “An order to arbitrate . . . should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.” Warrior & Gulf, supra, 363 U.S. at 582-583, 80 S.Ct. at 1353. Cf. International Union of Operating Engineers, Local 150, AFL-CIO v. Flair Builders, Inc., 406 U.S. 487, 92 S.Ct. 1710, 32 L.Ed.2d 248 (1972). The role of the court in these cases “is confined to ascertaining whether the party seeking arbitration is making a claim which on its face is governed by the contract.” American Mfg., supra, 363 U.S. at 568, 80 S.Ct. at 1346 (emphasis added). See Amalgamated Clothing Workers of America, AFL-CIO v. Ironall Factories Co., Inc., 386 F.2d 586, 591 (6th Cir. 1967). The Fifth Circuit has termed the standard to be applied the “arguably arbitrable” test. International Union of Operating Engineers Local 279 v. Sid Richardson Carbon Co., 471 F.2d 1175 (5th Cir. 1973); Jacksonville Newspaper Printing Pressmen & Assistants’ Union No. 57 v. Florida Publishing Co., 468 F.2d 824 (5th Cir. 1972), cert. denied, 411 U.S. 906, 93 S.Ct. 1531, 36 L.Ed.2d 196 (1973).
We hold that the District Court misconstrued its mandate. The duty of the courts is not to determine whether a prima facie case on the merits has been put forth by the party seeking arbitration. It is not the province of the court to look into the facts of the case. Chambers v. Beaunit Corp., 404 F.2d 128, 130 (6th Cir. 1968); American Radiator & Standard Sanitary Corp. v. Local 7, International Brotherhood of Operative Potters, 358 F.2d 455, 458 (6th Cir. 1966). The arbitrator is not to be viewed as a special master who will be called in after a prima facie case on the merits has been made out.
In the context of this ease, the burden of the unions was not to present a prima facie case on the creation of a sham or alter ego corporation by the employer. The burden was to show that, assuming there was a sham or alter ego corporation created by the Heminger Corp., there would then be a violation of the collective bargaining agreements. We have no doubt that such an asserted violation would be within the scope of the three arbitration agreements in question. In signing these arbitration agreements, the parties agreed to “submit all grievances to arbitration, not merely those that a court may deem to be meritorious.” American Mfg., supra, 363 U.S. at 567, 80 S.Ct. at 1346.
Heminger has promised to arbitrate grievances concerning the application and interpretation of the collective bargaining agreement. This employer must be held to its promise.
We find inapposite two N.L.R.B. decisions relied on heavily by Heminger: Carpenters District Council of Houston & Vicinity et al. and Baxter Construction Co., Inc., 201 N.L.R.B. No. 16 (1973); and Gerace Construction, Inc. et al. v. United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local No. 1654 et al., 193 N.L.R.B. No. 91 (1971). Both of these unfair labor practice proceedings were concerned with the presence or absence of a single employer. There was no issue of arbi-trability in either of those cases. We emphasize that this court is not faced with the question of whether there was a single employer. We simply decide the arbitrability of that claim.
Reversed and remanded with directions to the District Court to order arbitration between the unions and Boyd G. Heminger, Inc.
Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
sc_casesource
|
031
|
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.
FEDERAL COMMUNICATIONS COMMISSION v. NEXTWAVE PERSONAL COMMUNICATIONS INC. et al.
No. 01-653.
Argued October 8, 2002
Decided January 27, 2003
Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O’Connor, Kennedy, Souter, Thomas, and Ginsburg, JJ., joined, and in which Stevens, J., joined as to Parts I and II. Stevens, J., filed an opinion concurring in part and concurring in the judgment, post, p. 308. Breyer, J., filed a dissenting opinion, post, p. 310.
Acting Solicitor General Clement argued the cause for petitioner Federal Communications Commission in No. 01-653. With him on the briefs were Deputy Solicitor General Wallace, Jeffrey A. Lamken, William Kanter, Jacob M. Lewis, John A. Rogovin, Daniel M. Armstrong, and Joel Marcus. Jonathan S. Franklin argued the cause for petitioners Arctic Slope Regional Corp. et al. in No. 01-657. With him on the briefs was Lorane F. Hebert.
Donald B. Verrilli, Jr., argued the cause for respondents in both cases. With him on the briefs were Ian Heath Gershengorn, William M. Hohengarten, Thomas G. Hungar, Douglas R. Cox, Miguel A. Estrada, G. Eric Brunstad, Jr., and Deborah L. Schrier-Rape.
Laurence H. Tribe argued the cause and filed a brief for Creditors NextWave Communications, Inc., as amici curiae urging affirmance. With him on the brief were Charles Fried and Elizabeth Warren.
Together with No. 01-657, Arctic Slope Regional Corp. et al. v. Next-Wave Personal Communications Inc. et al., also on certiorari to the same court.
Briefs of amici curiae urging affirmance were filed for Airadigm Communications, Inc., by Richard P. Bress and James F. Rogers; for Urban Comm-North Carolina, Inc., et al. by Charles J. Cooper, David H. Thompson, Prehen Jensen, and Charles E. Simpson; for Professor Kathryn R. Heidt, pro se; and for Senator Patrick Leahy et al. by Walter Dellinger and Jonathan D. Hacker.
Justice Scalia
delivered the opinion of the Court.
In these cases, we decide whether § 525 of the Bankruptcy Code, 11 U. S. C. § 525, prohibits the Federal Communications Commission (FCC or Commission) from revoking licenses held by a debtor in bankruptcy upon the debtor’s failure to make timely payments owed to the Commission for purchase of the licenses.
I
In 1993, Congress amended the Communications Act of 1934 to authorize the FCC to award spectrum licenses “through a system of competitive bidding.” 48 Stat. 1085, as amended, 107 Stat. 387,47 U. S. C. §309(j)(1). It directed the Commission to “promot[e] economic opportunity and competition” and “avoi[d] excessive concentration of licenses” by “disseminating licenses among a wide variety of applications, including small businesses [and] rural telephone companies.” § 309(j)(3)(B). In order to achieve this goal, Congress directed the FCC to “consider alternative payment schedules and methods of calculation, including lump sums or guaranteed installment payments... or other schedules or methods....” § 309(j)(4)(A).
The FCC decided to award licenses for broadband personal communications services through simultaneous, multiple-round auctions. In re Implementation of Section 309(j) of the Communications Act — Competitive Bidding, 9 FCC Red. 2348, ¶¶54, 68 (1994). In accordance with §§309(j) (3)(B) and (4)(A), it restricted participation in two of the six auction blocks (Blocks “C” and “F”) to small businesses and other designated entities with total assets and revenues below certain levels, and it allowed the successful bidders in these two blocks to pay in installments over the term of the license. 47 CFR § 24.709(a)(1) (1997).
Respondents NextWave Personal Communications, Inc., and NextWave Power Partners, Inc. (both wholly owned subsidiaries of NextWave Telecom, Inc., and hereinafter jointly referred to as respondent NextWave), participated, respectively, in the FCC’s “C-Block” and “F-Block” auctions. NextWave was awarded 63 C-Block licenses on winning bids totaling approximately $4.74 billion, and 27 F-Block licenses on winning bids of approximately $123 million. In accordance with FCC regulations, NextWave made a downpayment on the purchase price, signed promissory notes for the balance, and executed security agreements that the FCC perfected by filing under the Uniform Commercial Code. The security agreements gave the Commission a first “lien on and continuing security interest in all of the Debtor’s rights and interest in [each] License.” Security Agreement between NextWave and FCC ¶ 1 (Jan. 3, 1997), 2 App. to Pet. for Cert. 402a. In addition, the licenses recited that they were “conditioned upon the full and timely payment of all monies due pursuant to... the terms of the Commission’s installment plan as set forth in the Note and Security Agreement executed by the licensee,” and that “[f]ailure to comply with this condition will result in the automatic cancellation of this authorization.” Radio Station Authorization for Broadband PCS (issued to NextWave Jan. 3,1997), 2 App. to Pet. for Cert. 388a.
After the C-Block and F-Block licenses were awarded, several successful bidders, including NextWave, experienced difficulty obtaining financing for their operations and petitioned the Commission to restructure their installment-payment obligations. See 12 FCC Red. 16436, ¶ 11 (1997). The Commission suspended the installment payments, 12 FCC Red. 17325 (1997); 13 FCC Red. 1286 (1997), and adopted several options that allowed C-Block licensees to surrender some or all of their licenses for full or partial forgiveness of their outstanding debt. See 12 FCC Red. 16436, ¶ 6; 13 FCC Red. 8345 (1998). It set a deadline of June 8, 1998, for licensees to elect a restructuring option, and of October 29, 1998, as the last date to resume installment payments. 13 FCC Red. 7413 (1998).
On June 8, 1998, after failing to obtain stays of the election deadline from the Commission or the Court of Appeals for the District of Columbia Circuit, NextWave filed for Chapter 11 bankruptcy protection in New York. See In re NextWave Personal Communications, Inc., 235 B. R. 263, 267 (Bkrtcy. Ct. SDNY 1998). It suspended payments to all creditors, including the FCC, pending confirmation of a reorganization plan. NextWave initiated an adversary proceeding in the Bankruptcy Court, alleging that its $4.74 billion indebtedness on the C-Block licenses was avoidable as a “fraudulent conveyance” under §544 of the Bankruptcy Code, 11 U. S. C. §544, because, by the time the Commission actually conveyed the licenses, their value had declined from approximately $4.74 billion to less than $1 billion. The Bankruptcy Court agreed — ruling in effect that the company could keep its C-Block licenses for the reduced price of $1.02 billion — and the District Court affirmed. NextWave Personal Communications, Inc. v. FCC, 241 B. R. 311, 318-319 (SDNY 1999). The Court of Appeals for the Second Circuit reversed, holding that, although the Bankruptcy Court might have jurisdiction over NextWave’s underlying debts to the FCC, it could not change the conditions attached to NextWave’s licenses. In re NextWave Personal Communications, Inc., 200 F. 3d 43, 55-56 (1999) (per curiam). The Second Circuit also held that since, under FCC regulations, “NextWave’s obligation attached upon the close of the auction,” there had been no fraudulent conveyance by the FCC acting in its capacity as creditor. Id., at 58.
Following the Second Circuit’s decision, NextWave prepared a plan of reorganization that envisioned payment of a single lump sum to satisfy the entire remaining $4.3 billion obligation for purchase of the C-Block licenses, including interest and late fees. The FCC objected to the plan, asserting that NextWave’s licenses had been canceled automatically when the company missed its first payment deadline in October 1998. The Commission simultaneously announced that NextWave’s licenses were “available for auction under the automatic cancellation provisions” of the FCC’s regulations. Public Notice, Auction of C and F Block Broadband PCS Licenses, 15 FCC Rcd. 693 (2000). NextWave sought emergency relief in the Bankruptcy Court, which declared the FCC’s cancellation of respondent’s licenses “null and void” as a violation of various provisions of the Bankruptcy Code. In re NextWave Personal Communications, Inc., 244 B. R. 253, 257-258 (Bkrtcy. Ct. SDNY 2000). Once again, the Court of Appeals for the Second Circuit reversed. In re Federal Communications Commission, 217 F. 3d 125 (2000). Granting the FCC’s petition for a writ of mandamus, the Second Circuit held that “[exclusive jurisdiction to review the FCC’s regulatory action lies in the courts of appeals” under 47 U. S. C. § 402, and that since the reauction decision was regulatory, proclaiming it to be arbitrary was “outside the jurisdiction of the bankruptcy court.” 217 F. 3d, at 139, 136. The Second Circuit noted, however, that “NextWave remains free to pursue its challenge to the FCC’s regulatory acts.” Id., at 140.
NextWave filed a petition with the FCC seeking reconsideration of the license cancellation, denial of which is the gravamen of the cases at bar. In the Matter of Public Notice DA 00-49 Auction of C and F Block Broadband PCS Licenses, Order on Reconsideration, 15 FCC Rcd. 17500 (2000). NextWave appealed that denial to the Court of Appeals for the D. C. Circuit pursuant to 47 U. S. C. § 402(b), asserting that the cancellation was arbitrary and capricious, and contrary to law, in violation of the Administrative Procedure Act, 5 U. S. C. § 706, and the Bankruptcy Code. The Court of Appeals agreed, holding that the FCC’s cancellation of NextWave’s licenses violated 11 U. S. C. §525: “Applying the fundamental principle that federal agencies must obey all federal laws, not just those they administer, we conclude that the Commission violated the provision of the Bankruptcy Code that prohibits governmental entities from revoking debtors’ licenses solely for failure to pay debts dis-chargeable in bankruptcy.” 254 F. 3d 130, 133 (2001). We granted certiorari. 535 U. S. 904 (2002).
II
The Administrative Procedure Act requires federal courts to set aside federal agency action that is “not in accordance with law,” 5 U. S. C. § 706(2)(A) — which means, of course, any law, and not merely those laws that the agency itself is charged with administering. See, e. g., Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402, 413-414 (1971) (“In all cases agency action must be set aside if the action was ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law’ or if the action failed to meet statutory, procedural, or constitutional requirements”). Respondent contends, and the Court of Appeals for the D. C. Circuit held, that the FCC’s revocation of its licenses was not in accordance with § 525 of the Bankruptcy Code.
Section 525(a) provides, in relevant part:
“[A] governmental unit may not... revoke... a license... to... a person that is... a debtor under this title... solely because such... debtor... has not paid a debt that is dischargeable in the case under this title....”
No one disputes that the Commission is a “governmental unit” that has “revoke[d]” a “license,” nor that NextWave is a “debtor” under the Bankruptcy Act. Petitioners argue, however, that the FCC did not revoke respondent’s licenses “solely because” of nonpayment, and that, in any event, Next Wave’s obligations are not “dischargeable” “debt[s]” within the meaning of the Bankruptcy Code. They also argue that a contrary interpretation would unnecessarily bring § 525 into conflict with the Communications Act. We find none of these contentions persuasive, and discuss them in turn.
A
The FCC has not denied that the proximate cause for its cancellation of the licenses was Next Wave’s failure to make the payments that were due. It contends, however, that § 525 does not apply because the FCC had a “valid regulatory motive” for the cancellation. Brief for Petitioners Arctic Slope Regional Corp. et al. 19; see Brief for Petitioner FCC 17. In our view, that factor is irrelevant. When the statute refers to failure to pay a debt as the sole cause of cancellation (“solely because”), it cannot reasonably be understood to include, among the other causes whose presence can preclude application of the prohibition, the governmental unit’s motive in effecting the cancellation. Such a reading would deprive § 525 of all force. It is hard to imagine a situation in which a governmental unit would not have some further motive behind the cancellation — assuring the financial solvency of the licensed entity, e. g., Perez v. Campbell, 402 U. S. 637 (1971); In re The Bible Speaks, 69 B. R. 368, 374 (Bkrtcy. Ct. Mass. 1987), or punishing lawlessness, e. g., In re Adams, 106 B. R. 811, 827 (Bkrtcy. Ct. NJ 1989); In re Colon, 102 B. R. 421, 428 (Bkrtcy. Ct. ED Pa. 1989), or even (quite simply) making itself financially whole. Section 525 means nothing more or less than that the failure to pay a dischargeable debt must alone be the proximate cause of the cancellation — the act or event that triggers the agency’s decision to cancel, whatever the agency’s ultimate motive in pulling the trigger may be.
Some may think (and the opponents of § 525 undoubtedly thought) that there ought to be an exception for cancellations that have a valid regulatory purpose. Besides the fact that such an exception would consume the rule, it flies in the face of the fact that, where Congress has intended to provide regulatory exceptions to provisions of the Bankruptcy Code, it has done so clearly and expressly, rather than by a device so subtle as denominating a motive a cause. There are, for example, regulatory exemptions from the Bankruptcy Code’s automatic stay provisions. 11 U. S. C. § 362(b)(4). And even § 525(a) itself contains explicit exemptions for certain Agriculture Department programs, see n. 2, supra. These latter exceptions would be entirely superfluous if we were to read § 525 as the Commission proposes — which means, of course, that such a reading must be rejected. See United States v. Nordic Village, Inc., 503 U. S. 30, 35-36 (1992).
B
Petitioners contend that NextWave’s license obligations to the Commission are not “debt[s] that [are] dischargeable” in bankruptcy. 11 U. S. C. § 525(a). First, the FCC argues that “regulatory conditions like the full and timely payment condition are not properly classified as ‘debts’” under the Bankruptcy Code. Brief for Petitioner FCC 33. In its view, the “financial nature of a condition” on a license “does not convert that condition into a debt.” Ibid. This is nothing more than a retooling of petitioners’ recurrent theme that “regulatory conditions” should be exempt from §525. No matter how the Commission casts it, the argument loses. Under the Bankruptcy Code, “debt” means “liability on a claim,” 11 U. S. C. § 101(12), and “claim,” in turn, includes any “right to payment,” § 101(5)(A). We have said that “[c]laim” has “the broadest available definition,” Johnson v. Home State Bank, 501 U. S. 78, 83 (1991), and have held that the “plain meaning of a ‘right to payment’ is nothing more nor less than an enforceable obligation, regardless of the objectives the State seeks to serve in imposing the obligation,” Pennsylvania Dept. of Public Welfare v. Davenport, 495 U. S. 552, 559 (1990). See also Ohio v. Kovacs, 469 U. S. 274 (1985). In short, a debt is a debt, even when the obligation to pay it is also a regulatory condition.
Petitioners argue that respondent’s obligations are not “dischargeable” in bankruptcy because it is beyond the jurisdictional authority of bankruptcy courts to alter or modify regulatory obligations. Brief for Petitioners Arctic Slope Regional Corp. et al. 28-29; Brief for Petitioner FCC 30-31. Dischargeability, however, is not tied to the existence of such authority. A preconfirmation debt is dischargeable unless it falls within an express exception to discharge. Subsection 1141(d) of the Bankruptcy Code states that, except as otherwise provided therein, the “confirmation of a plan [of reorganization]... discharges the debtor from any debt that arose before the date of such confirmation,” 11 U. S. C. § 1141(d)(1)(A) (emphasis added), and the only debts it excepts from that prescription are those described in § 523, see § 1141(d)(2). Thus, “[e]xcept for the nine kinds of debts saved from discharge by 11 U. S. C. § 523(a), a discharge in bankruptcy discharges the debtor from all debts that arose before bankruptcy. § 727(b).” Kovacs, supra, at 278 (emphasis added).
Artistically symmetrical with petitioners’ contention that the Bankruptcy Court has no power to alter regulatory obligations is their contention that the D. C. Circuit has no power to modify or discharge a debt. See Brief for Petitioner FCC 31-32; Brief for Petitioner Arctic Slope Regional Corp. et al. 32, n. 9. Just as the former is irrelevant to whether the Bankruptcy Court can discharge a debt, so also the latter is irrelevant to whether the D. C. Circuit can set aside agency action that violates § 525. That court did not seek to modify or discharge the debt, but merely prevented the FCC from violating § 525 by canceling licenses because of failure to pay debts dischargeable by bankruptcy courts.
C
Finally, our interpretation of § 525 does not create any conflict with the Communications Act. It does not, as petitioners contend, obstruct the functioning of the auction provisions of 47 U. S. C. §309(j), since nothing in those provisions demands that cancellation be the sanction for failure to make agreed-upon periodic payments. Indeed, nothing in those provisions even requires the Commission to permit payment to be made over time, rather than leaving it to impecunious bidders to finance the full purchase price with private lenders. What petitioners describe as a conflict boils down to nothing more than a policy preference on the FCC’s part for (1) selling licenses on credit and (2) canceling licenses rather than asserting security interests in licenses when there is a default. Such administrative preferences cannot be the basis for denying respondent rights provided by the plain terms of a law. “‘[W]hen two statutes are capable of coexistence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.’” J. E. M. Ag Supply, Inc. v. Pioneer Hi-Bred International, Inc., 534 U. S. 124, 143-144 (2001) (quoting Morton v. Mancari, 417 U. S. 535, 551 (1974)). There being no inherent conflict between § 525 and the Communications Act, “we can plainly regard each statute as effective.” J. E. M., supra, at 144. And since §525 circumscribes the Commission’s permissible action, the revocation of Next-Wave’s licenses is not in accordance with law. See 5 U.S. C. §706.
III
The dissent finds it “dangerous... to rely exclusively upon the literal meaning of a statute’s words,” post, at 311 (opinion of Breyer, J.). Instead, it determines, in splendid isolation from that language, the purpose of the statute, which it takes to be “to forbid discrimination against those who are, or were, in bankruptcy and, more generally, to prohibit governmental action that would undercut the ‘fresh start’ that is bankruptcy’s promise,” post, at 313. It deduces these language-trumping “purposes” from the most inconclusive of indications. First, the ambiguous title of § 525(a), “Protection against discriminatory treatment,” ibid. This, of course, could as well refer to discrimination against impending bankruptcy, aka insolvency. Second, its perception that the other prohibitions of § 525(a) apply only to acts “done solely for bankruptcy-related reasons.” Ibid. We do not share that perception. For example, the prohibition immediately preceding the one at issue here forbids adverse government action taken because the debtor “has been insolvent before the commencement of the case under this title, or during the case but before the debtor is granted or denied a discharge.” That seems to us clearly tied to insolvency alone (plus the mere fact of subsequent or contemporaneous bankruptcy), and does not require some additional motivation based on bankruptcy. The dissent’s third indication of “purpose” consists of the ever-available snippets of legislative history, post, at 314-315.
The dissent does eventually get to the statutory text at issue here: Step two of its analysis is to ask what interpretation of that text could possibly fulfill its posited “purposes.” “One obvious way,” the dissent concludes, “is to interpret the relevant phrase, ‘solely because’ of nonpayment of ‘a debt that is dischargeable,’ as requiring something more than a purely factual connection.... The statute’s words are open to the interpretation that they require a certain relationship between (1) the dischargeability of the debt and (2) the decision to revoke the license.” Post, at 316. To demonstrate that “openness,” the dissent gives the example of a “rule telling apartment owners that they cannot refuse to rent ‘solely because a family has children who are adopted.’” Post, at 319. Such a rule, it says quite correctly, is most reasonably read as making the adoptive nature of the children part of the prohibited motivation. But the example differs radically from the cases before us in two respects: (1) because an adopted child is the exception rather than the rule, and (2) because the class of children other than adopted children is surely not a disfavored one. In the cases before us, by contrast, the descriptive clause describes the rule rather than the exception. (As the dissent acknowledges, “virtually all debts” are dischargeable, post, at 310.) And the debts that do not fall within the rule (nondischargeable debts) are clearly disfavored by the Bankruptcy Code. To posit a text similar to the one before us, the dissent should have envisioned a rule that prohibited refusal to rent “solely because a family has children who are no more than normally destructive.” Would the “no-more-than-normal-destructiveness” of the children be a necessary part of the apartment owner’s motivation before he is in violation of the rule? That is to say, must he refuse to rent specifically because the children are no more than normally destructive? Of course not. The provision is most reasonably read as establishing an exception to the prohibition, rather than adding a motivation requirement: The owner may refuse to rent to families with destructive children. And the same is obviously true here: The government may take action that is otherwise forbidden when the debt in question is one of the disfavored class that is nondischargeable.
In addition to distorting the text of the provision, the dissent’s interpretation renders the provision superfluous. The purpose of “forbid[ding] discrimination against those who are, or were, in bankruptcy,” post, at 313, is already explicitly achieved by another portion of § 525(a), which prohibits termination of a license “solely because [the] bankrupt or debtor is or has been... a bankrupt or debtor under the Bankruptcy Act.” 11 U. S. C. §525(a) (emphasis added). The dissent would have us believe that the language “solely because [the] bankrupt or debtor... has not paid a debt that is dischargeable” merely achieves the very same objective through inappropriate language. We think Congress meant what it said: The government is not to revoke a bankruptcy debtor’s license solely because of a failure to pay his debts.
The dissent makes much of the “serious anomaly” that would arise from permitting “every car salesman, every residential home developer, every appliance company [to] threaten repossession of its product if a buyer does not pay,” but denying that power to the government alone, post, at 312. It is by no means clear than any anomaly exists. The ear salesman, residential home developer, etc., can obtain repossession of his product only (as the dissent acknowledges) “if [he] has taken a security interest in the product,” ibid. It is neither clear that a private party can take and enforce a security interest in an FCC license, see, e. g., In re Cheskey, 9
Question: What is the court whose decision the Supreme Court reviewed?
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209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
Answer:
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sc_lcdisposition
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F
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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.
WALSH, dba TOM WALSH & CO. v. SCHLECHT et al., TRUSTEES
No. 75-906.
Argued November 1, 1976
Decided January 18, 1977
Carl R. Neil argued the cause and filed briefs for petitioner.
Paul T. Bailey argued the cause for respondents. With him on the brief was George Kaujmann.
Briefs of amici curiae were filed by Steven R. Semler for Huico, Inc.; and by Richard M. Stanislaw for the Mechanical Contractor Associations of Washington.
Mr. Justice Brennan
delivered the opinion of the Court.
The question presented by this case is whether the provision of a collective-bargaining agreement between petitioner, a general contractor, and the Oregon State Council of Carpenters, requiring that petitioner pay contributions to certain trust funds with respect to hours of carpentry work performed by employees of a nonsignatory subcontractor, violated §302 (a)(1) of the Labor Management Relations (Taft-Hartley) Act, 29 U. S. C. § 186 (a)(1). That section generally prohibits agreements of employers to pay money to any representative of their employees. Sections 302 (c) (5) and (6), however, exempt from this general proscription written agreements to pay money to trust funds jointly created and administered by trustees representing employer associations and the union for the purpose of providing medical or hospital care, pensions, pooled vacations for employees of signatory employers, or to defray the costs of apprenticeship or other training programs.
Petitioner constructed a federally subsidized low-income apartment project in Salem, Ore. A collective-bargaining agreement between petitioner and the Oregon State Council of Carpenters required petitioner to pay contributions to five employer-union trust funds jointly created by the carpenters’ union and multiemployer general contractors associations, and jointly administered by respondents, trustees designated in equal numbers by the employers and union. The trusts are, respectively, the Health and Welfare Trust Fund, the Pension Trust Fund, the Vacation Savings Trust Fund, the Apprenticeship and Training Trust Fund, and the Construction Industry Advancement Fund (CIAF). Only signatory employers may contribute to the funds; and no carpenter employee of a nonsignatory employer is entitled to benefits in the Health and Welfare, Pension, and Vacation Savings Funds, the three funds that provide benefits for carpenter employees. Contributions were payable at the aggregate rate of 96 cents per hour of carpentry work done at the project.
Petitioner subcontracted the framing work on the project to Lloyd Jackson, a framing specialist, who was a nonsignatory employer and whose employees were therefore not eligible for trust fund benefits. In such cases petitioner had the option under a “subcontractor’s clause,” Art. IV of the collective-bargaining agreement, of requiring “such subcontractor to be bound to all the provisions of this Agreement,” or of maintaining “daily records of the subcontractors employees jobsite hours and be liable for payment of these employees [sic] . . . [trust fund] contributions in accordance with this Agreement.” Petitioner did neither. He did not require that the subcontractor “be bound” to the agreement and the subcontractor made no contributions to the funds. Instead the subcontractor paid directly to his carpenter employees, as fringe benefits, 96 cents per hour in addition to their wages at union scale, thus paying out the same aggregate of wages and fringe benefits paid by signatory employers in the form of wages to their employees and contributions to the trust funds.
Nor did petitioner maintain daily records of and pay contributions to the trust funds with respect to the hours of carpentry work performed on the project by the subcontractor’s carpenter employees. Therefore, after completion of the project, respondent trustees brought this action in the Circuit Court of Multnomah County, Ore., to enforce the provision of Art. IV. Grounded upon petitioner’s agreement to “be liable for payment of these [the subcontractor’s] employees [sic] . . . [trust fund] contributions . . . ,” the complaint sought, inter alia, an accounting of the hours of carpentry work performed by the subcontractor’s employees on the project, and a judgment for the amount of such work at 96 cents per hour. Petitioner’s principal defense was that the subcontractor’s clause violated § 302 (a)(1). The Circuit Court sustained respondents’ demurrer to that defense. The Circuit Court held, however, that it would be “inequitable” to require contributions to the Health and Welfare, Pension, and Vacation Savings Funds because they would in effect amount “to double fringe benefits” with respect to the subcontractor’s employees. It therefore ordered an accounting limited to contributions to the Apprenticeship and CIAF trusts that did “not accrue benefits directly to the workmen.” The Supreme Court of Oregon affirmed the judgment insofar as it sustained the demurrer to petitioner’s defense based on § 302 (a)(1) but, construing the subcontractor’s clause as giving all the “funds . . . equal standing under the terms of the contract . . . ,” reversed the judgment insofar as it limited the accounting to the Apprenticeship and CIAF trusts. 273 Ore. 221, 225-226, 540 P. 2d 1011, 1013-1014 (1975). We granted certiorari, 424 U. S. 942 (1976). We affirm.
I
The parties agree that the determinative question for decision is that of the proper construction of the subcontractor’s clause: whether that clause binds petitioner to make contributions to the trust funds “on behalf of’’ or “for the benefit of” the subcontractor’s employees, so that they may participate in the benefits provided carpenters by the funds. Thus interpreted, the clause would violate § 302 (a)(1) because the subcontractor is not a signatory to the • collective-bargaining agreement and his employees are therefore ineligible for trust fund benefits based on carpentry work performed for him. On the other hand, if the clause merely obligates petitioner to pay contributions to the funds measured by the hours of carpentry work performed at the project by the subcontractor’s employees, the benefits being payable only to carpenters employed by petitioner and other signatory employers, then the clause is authorized by the exceptions to the general prohibition of § 302 (a) enacted in §§ 302 (c)(5) and (6).
Before turning to the question of the meaning of the clause we must address a threshold question — whether federal or state law principles of contract construction, if they differ, are to be applied. Plainly federal law principles apply. Although the Oregon courts were not foreclosed from entertaining- this suit merely because petitioner’s defense invoked §302 (a)(1) of the Taft-Hartley Act, Charles Dowd Box Co. v. Courtney, 368 U. S. 502 (1962), we have proceeded “upon the hypothesis that state courts would apply federal law in exercising [such] jurisdiction” and that “incompatible doctrines of local law must give way to-principles of federal labor law.” Teamsters v. Lucas Flour Co., 369 U. S. 95, 102 (1962) (citations omitted). Application of federal law is necessary to avoid the “possibility that individual contract terms might have different meanings under state and federal law . . . id., at 103.
The Oregon courts did not specify in this case whether federal or state principles of contract construction guided their concurring conclusions that the subcontractor’s clause was not to be read as violating § 302 (a)(1). We shall therefore assume that federal principles were applied. In any event, if in fact state rules of contract interpretation were employed, federal rules would require agreement with the Oregon courts’ construction. Since a general rule of construction presumes the legality and enforceability of contracts, 6A A. Corbin, Contracts §§ 1499, 1533 (1962), ambiguously worded contracts should not be interpreted to render them illegal and unenforceable where the wording lends itself to a logically acceptable construction that renders them legal and enforceable. The subcontractor’s clause although inartfully worded, lends itself to a construction that ties signatory employer contributions to the trust funds as measured both by hours worked by his own employees and hours worked by his nonsignatory subcontractor’s employees, and, so construed, Art. IV does not violate § 302 (a)(1).
Petitioner argues that the Oregon Supreme Court’s opinion reads the clause as requiring petitioner to make payments “on behalf of” Jackson’s employees in order that they may participate in the benefits of the trusts. This reading, he contends, is implicit in the following passage from the State Supreme Court’s opinion:
“In this case the requirement of such a written contract was satisfied in that defendant had a written contract with the union which required that he make contributions to the trust funds for his own employees and also specifically provided that in the event he engaged a subcontractor to do any work covered by the agreement he would be liable for payments into the various trust funds for the employees of such a subcontractor.” 273 Ore., at 229, 540 P. 2d, at 1015 (emphasis added).
Read in isolation, this somewhat ambiguous passage might appear to support petitioner’s argument. In the context of the entire opinion, however, particularly its reliance upon lower federal court decisions upholding the legality of payments measured in whole or in part by wages paid to employees ineligible to receive benefits, it becomes clear that the Oregon Supreme Court read the subcontractor’s clause as an agreement by petitioner to make contributions to the funds measured by the hours of carpentry work performed by the subcontractor’s employees, not “on behalf of” or “for the benefit of” the nonsignatory contractor’s ineligible employees, but solely for the benefit of the employees of petitioner and other signatory employers. This conclusion follows, we think, from the Oregon Supreme Court’s treatment of Moglia v. Geoghegan, 403 F. 2d 110 (CA2 1968), and Kreindler v. Clarise Sportswear Co., 184 F. Supp. 182 (SDNY 1960). In rejecting petitioner’s argument that § 302 (a) (1) prohibits an employer from making any contributions except for the benefit of his own and other signatory employers’ employees, the court characterized language in Moglia, cited by petitioner in support of this construction, as “not necessary to . . . decision in that case, in which there was no written agreement, and it is not binding upon this court in this case.” 273 Ore., at 229 n. 4, 540 P. 2d, at 1015 n. 4. Rather, the Oregon Supreme Court relied on Kreindler, also involving payments to a trust fund for employees of a nonunion contractor, where the contention was rejected that an employer’s contributions measured by the hours worked of another employer’s employees violated §302 (a)(1). The court quoted extensively from the Kreindler opinion’s reasoning in concluding that payments might be legal even though measured by hours worked by employees of another employer. The court stated flatly: “We agree with [the] statement” from Kreindler that “‘[t]he fact that the employees of Clarise’s contractors cannot share in the payments based on their payrolls which Clarise has agreed to make does not give Clarise the right to avoid its agreement as illegal.’ ” 273 Ore., at 230, 640 P. 2d, at 1015. Accord, Budget Dress Corp. v. Joint Board of Waistmakers’ Union, 198 F. Supp. 4 (SDNY 1961), aff’d, 299 F. 2d 936 (CA2 1962); Minkoff v. Scranton Frocks, Inc., 181 F. Supp. 542 (SDNY), aff’d, 279 F. 2d 115 (CA2 1960); Greenstein v. National Skirt & Sportswear Assn., 178 F. Supp. 681 (SDNY 1959).
We agree that enforcement of the subcontractor’s clause, as so construed by the Oregon Supreme Court to require petitioner to make contributions measured by the hours worked by his subcontractor’s employees, not only is consistent with the wording of §§302 (c)(5) and (6) but also does no disservice to the congressional purpose in enacting § 302 to combat “corruption of collective bargaining through bribery of employee representatives by employers, . . . extortion by employee representatives, and . . . the possible abuse by union officers of the power which they might achieve if welfare funds were left to their sole control.” Arroyo v. United States, 359 U. S. 419, 425-426 (1959).
II
Petitioner also advances an argument, apparently not made in the Oregon courts, that the subcontractor’s clause “frustrates” the objectives of the Davis-Bacon Act, 40 U. S. C. § 276a, by increasing his labor costs over the minimum required by that Act. However, the Davis-Bacon Act “was not enacted to benefit contractors, but rather to protect their employees from substandard earnings by fixing a floor under wages on Government projects.” United States v. Binghamton Constr. Co., 347 U. S. 171, 176-177 (1954). That objective is clearly not “frustrated” when contractual arrangements between employers and their employees result in higher compensation and benefits than the floor established by the Act.
Affirmed.
Section 302 of the Labor Management Relations Act, 1947, 61 Stat. 157, as amended, 29 U. S. C. § 186, provides in pertinent part:
“(a) It shall be unlawful for any employer or association of employers .. . to pay, lend, or deliver, or agree to pay, lend, or deliver, any money or other thing of value—
“(1) to any representative of any of his employees who are employed in an industry affecting commerce;
“(c) The provisions of this section shall not be applicable ... (5) with respect to money or other thing of value paid to a trust fund established by such representative, for the sole and exclusive benefit of the employees of such employer, and their families, and dependents (or of such employees, families, and dependents jointly with the employees of other employers making similar payments, and their families and dependents) : Provided, That (A) such payments are held in trust for the purpose of paying, either from principal or income or both, for the benefit of employees, their families and dependents, for medical or hospital care, pensions on retirement or death of employees, compensation for injuries or illness resulting from occupational activity or insurance tO' provide any of the foregoing, or unemployment benefits or life insurance, disability and sickness insurance, or accident insurance; (B) the detailed basis on which such payments are to be made is specified in a written agreement with the employer . . . ; (6) with respect to money or other thing of value paid by any employer to a trust fund 'established by such representative for the purpose of pooled vacation, holiday, severance or similar benefits, or defraying costs of apprenticeship or other training programs: Provided, That the requirements of clause (B) of the proviso to clause (5) of this subsection shall apply to such trust funds . . . .”
Petitioner conceded that the trustees will not accept contributions from nonsignatory employers. App. 53. The five trust funds involved in this case expressly limit participation in benefits to employees of signatory employers and petitioner makes no claim that the subcontractors’ employees received benefits from the funds.
Article IV of the Carpenters Master Labor Agreement between general contractors associations and the Oregon State and Southwest Washington District Councils of the United Brotherhood of Carpenters and Joiners of America, with which petitioner by memorandum agreement agreed to comply, provides as follows:
“If an employer, bound by this Agreement, contracts or subcontracts, any work covered by this Agreement to be done at the job site of the construction, alteration or repair of a building, structure or other work to any person or proprietor who is not signatory to this Agreement, the employer shall require such subcontractor to be bound to all the provisions of this Agreement, or such employer shall maintain daily records of the subcontractors employees job site hours and be liable for payment of these employees wages, travel, Health-Welfare and Dental, Pension, Vacation, Apprenticeship and CIAF contributions in accordance with this Agreement.” (Emphasis added.)
Agreements with the Department of Housing and Urban Development required employers participating in the Salem project to pay their employees according to the prevailing wage scale, as defined in the Davis-Bacon Act, 40 U. S. C. § 276a. Under the Act, fringe benefits may be paid either to the workmen directly or to union-employer trusts for the benefit of the workmen. The Act applies to all construction contracts to which the United States is a party.
Moglia had been employed for 28 years by a single employer whose payments into the trust fund had been illegal because he was not a party to a written agreement as required by §302 (c)(5)(B). 403 F. 2d, at 114. The Court of Appeals for the Second Circuit concluded that Moglia was not eligible to receive benefits because he had never been an employee of an employer lawfully contributing to the fund.
A provision of the controlling collective-bargaining agreement required Clarise, as a member of a multiple-employer bargaining association, to make payments to the union’s health and welfare and retirement funds based both upon Clarise’s own payrolls and upon the payrolls of the contractors who manufactured Clarise’s product. The employees of Clarise’s contractors were not eligible to receive benefits from the funds.
The agreement establishing the CIAF trust provides for exclusive employer administration and that fund is therefore outside the coverage of § 302.
Our decision that the subcontractor’s clause does not violate § 302 makes it unnecessary to address petitioner’s argument that § 302 (c) (6) should be read to incorporate the “exclusive benefit” requirement of §302 (c) (5).
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_genresp2
|
E
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
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.
Ruben CAMPANERIA, Petitioner-Appellant, v. Theodore REID, Superintendent, Fishkill Correctional Facility, Robert Abrams, Attorney General of the State of New York, Respondents-Appellees.
No. 143, Docket 89-2031.
United States Court of Appeals, Second Circuit.
Argued Sept. 21, 1989.
Decided Dec. 12, 1989.
Miguel A. Estrada (Paul K. Rowe, Wach-tell, Lipton, Rosen & Katz, Henriette D. Hoffman, The Legal Aid Soc., Federal Defender Services Unit, New York City, of counsel), for petitioner-appellant.
Marc Frazier Scholl, Asst. Dist. Atty. (Robert M. Morgenthau, Dist. Atty. for New York County, Mark Dwyer, Asst. Dist. Atty., New York County, New York City, of counsel), for respondents-appellees.
Before VAN GRAAFEILAND, MESKILL and KEARSE, Circuit Judges.
MESKILL, Circuit Judge:
Petitioner Ruben Campaneria appeals from a judgment of the United States District Court for the Southern District of New York, Duffy, J., dismissing his petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254 (1982). After a jury trial in the Supreme Court of New York, Campaneria was convicted of manslaughter in the first degree, N.Y. Penal Law § 125.20 (McKinney 1987), criminal possession of a controlled substance in the third degree, N.Y. Penal Law § 220.16 (McKinney 1980 & Supp.1989), criminal possession of a weapon in the second degree, N.Y. Penal Law § 265.03 (McKinney 1980), and criminal possession of a weapon in the third and fourth degrees, N.Y. Penal Law §§ 265.02, 265.01 (McKinney 1980 & Supp. 1989). His conviction arose out of the events surrounding the killing of Juan Sanchez on January 10, 1984.
Campaneria claims that he is being held in respondent’s custody unlawfully because the state trial court erred in denying his motion to suppress certain statements he made to law enforcement officials and in failing to instruct the jury on a lesser included offense. We find these claims to be without merit and affirm the judgment of the district court.
BACKGROUND
The facts leading to the petitioner’s state court conviction are for the most part undisputed. At approximately 9:40 a.m. on January 10, 1984, New York City Police Officers Wieboldt, Caponigro and Pierno received a radio call about a shooting at the Holland Hotel in Manhattan. Upon arriving at the hotel, the officers found Cam-paneria in the hotel lobby, bleeding from a stab wound in the back. Campaneria told the officers that he had been stabbed and that he had shot his assailant, who was now lying in the hallway on the tenth floor. Wieboldt ordered Campaneria to get on the elevator and accompanied him to the tenth floor. Wieboldt admitted on cross-examination that if Campaneria had asked or tried to leave, he would not have been permitted to do so. Wieboldt did not indicate this to Campaneria, however. In the elevator, Wieboldt asked Campaneria where the gun was, and Campaneria told him that he had thrown it into a trash can in the lobby. A .22 caliber revolver was recovered later from the trash can.
When Wieboldt and Campaneria arrived at the tenth floor, they found Sanchez lying in the hallway twenty feet from the doorway to Campaneria’s room. Sanchez was still bleeding from the head, but he was dead. Wieboldt asked Campaneria what had happened. Campaneria answered that he and Sanchez, whom he knew only as “Morro,” had had an argument in his room over Campaneria’s girlfriend and that when Sanchez tried to stab him, he shot Sanchez. Wieboldt then asked if he could go into Campaneria’s room. Campaneria said he had locked his key in the room, but did not object to the officers obtaining a key from the hotel clerk. After obtaining the key, the officers found the room in disarray and a bloody knife on the floor. A search of the room also uncovered one-half ounce of cocaine, drug paraphernalia, and brass knuckles.
At about this time, the ambulance arrived, and the emergency medical services personnel began to treat Campaneria’s wound. Detective Cianfrone also arrived and observed that Campaneria appeared dazed and in pain. Campaneria was placed in the ambulance, and officer Caponigro accompanied him to the hospital. On the way, Caponigro read Campaneria his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), in English. Campaneria indicated that he understood the rights and that he was willing to answer questions. He said that the fight was over a girlfriend and that drugs were involved. He also said that he was in pain and occasionally lapsed into Spanish. The medical report relating to the ambulance transfer indicated that his status was “critical” but that he was “alert/observant.”
At approximately 11:45 a.m. that same day, Detective Cianfrone arrived at the hospital to speak with Campaneria, who was in the intensive care unit (ICU). In response to Cianfrone’s inquiry, Campaneria said that he was not ready to be interviewed, and Cianfrone agreed to return later. At about 12:15 p.m., Cianfrone returned, and Campaneria consented to an interview. Ci-anfrone then read Campaneria his Miranda rights again in English. Caponigro also was present through most of the questioning. Campaneria answered the questions in broken yet understandable English, sometimes lapsing into Spanish. He said that he had shot Sanchez after Sanchez had suddenly stabbed him in the back while they were discussing Campaneria’s girlfriend. The two then struggled, and Sanchez’s knife fell to the floor. Sanchez tried to run away, and Campaneria shot him. Campaneria also indicated that he was in pain during this interview.
At about 7:00 p.m. that evening, Cian-frone returned to the hospital to ask Cam-paneria if he felt well enough to be interviewed by Assistant District Attorney DiNatale, but found that Campaneria had just undergone surgery. Some time after 9:00 p.m. that same evening, Cianfrone and DiNatale, accompanied by a video technician with video recording equipment, visited Campaneria and asked him if he felt well enough to be interviewed. Campane-ria said that he was not, and the detective and the assistant district attorney left.
They returned the next morning at 10:00 a.m. with an audio technician and audio recording equipment. Although Campane-ria was still in the ICU with various tubes running into his body and had received pain medication earlier in the morning, the nurse at the ICU said Campaneria should be alert enough to be questioned. Cian-frone asked Campaneria if he wanted to talk with them, to which Campaneria responded, “No, I don’t want to talk to you now, maybe come back later.” DiNatale then told Campaneria that “If you want to talk to us, now is the time to do it.” Cam-paneria then agreed to the interview. The audio tape recorder was set up, and DiNa-tale read Campaneria his Miranda rights, which Campaneria stated he understood, and began questioning him.
At this interrogation, Campaneria said that when Sanchez entered his room, Cam-paneria turned, and Sanchez stabbed him in the back. Campaneria then fought to protect himself, cutting his hands in the process. The knife fell to the floor. Because Sanchez tried to get Campaneria’s gun, which was sitting on his bed, Campaneria grabbed the gun and fired a shot at Sanchez. Sanchez then fled the room, and Campaneria fired again as Sanchez ran into the hallway, hitting Sanchez in the head. Campaneria then told a hotel employee to call the police and threw the gun into the trash can in the lobby. Campaneria stated during the interrogation that he thought the fight was over a girlfriend. He admitted that the cocaine and drug paraphernalia in the room were his but denied that he was dealing in drugs or that the fight with Sanchez was about drugs. Towards the end of the interview, he was asked how he felt, and he responded that he felt dizzy, yet indicated a willingness to continue. He also asked for water. DiNatale said that they could not give him water because of orders from his doctor, although the record appears to indicate that DiNatale had not spoken to any doctors. Campaneria occasionally wrinkled his face during the interview, showing discomfort. His medical records show that, despite having a serious wound, Campaneria was at all times alert and oriented and that his condition was stable.
Campaneria was charged by indictment with murder in the second degree, N.Y. Penal Law § 125.25, criminal possession of a controlled substance in the third degree, N.Y. Penal Law § 220.16, and criminal possession of a weapon in the second, third and fourth degrees, N.Y. Penal Law §§ 265.03, 265.02, 265.01. Prior to trial, the state trial court held a hearing on Cam-paneria’s motion' to suppress the statements he had made to the various law enforcement officials. At that hearing, Police Officers Wieboldt, Caponigro and Pier-no, Detective Cianfrone, and Assistant District Attorney DiNatale all testified. At the completion of the hearing, the trial court denied from the bench Campaneria’s motion to suppress. However, the court did not make any specific factual findings on the record and did not file a written opinion.
At trial, Campaneria’s statements, including the audio recording which was played for the jury, were offered into evidence against him. Campaneria testified on his own behalf through an interpreter, stating that he was twenty-three years old and had emigrated from Cuba three years earlier. He testified that Sanchez had knocked on the door and that he had let Sanchez in, leaving the door open. He turned away, and Sanchez suddenly stabbed him in the back. The two struggled, and the knife fell to the floor. Cam-paneria reached for his gun, which was lying on his bed at the time, because he was afraid that Sanchez would try to grab it. They continued to struggle and moved towards the open door. The two were almost out of the room when Campaneria was able to fire off a shot. The gun happened to be pointed at Sanchez’s head when he fired the shot. Sanchez stumbled out the door and down the hallway and fell dead. Campaneria denied having shot Sanchez as he tried to flee and could not recall how many shots he had actually fired at Sanchez.
Campaneria explained the contradiction between his testimony and his prior statements as the result of his inability to articulate his account of the events with any precision during his interrogations and because he was not fully aware of what he was being asked. He also testified that he had asked DiNatale during the recorded interview to stop the interview because he did not understand English.
The trial court denied Campaneria’s request to submit to the jury the lesser included offense of second-degree, or “reckless” manslaughter. During their deliberations, the jury had the recorded interrogation played back. The jury subsequently found Campaneria had acted under extreme emotional disturbance and convicted him of manslaughter in the first degree. It also convicted him of the cocaine and weapons charges.
Campaneria appealed his convictions, challenging the voluntariness of his statements, their admissibility under Miranda, and the failure to instruct on the lesser included offense. The Appellate Division affirmed the convictions, but reduced the minimum term of his indefinite prison sentence from nine years to six years. People v. Campaneria, 123 A.D.2d 271, 506 N.Y.S.2d 344 (1st Dep’t 1986). Leave to appeal this decision to the New York Court of Appeals was denied. People v. Campaneria, 69 N.Y.2d 709, 504 N.E.2d 403, 512 N.Y.S.2d 1035 (1986).
Campaneria, acting pro se, filed a petition for a writ of habeas corpus in the federal district court. After obtaining the State’s response, the district court denied the petition without a hearing. In his petition, Campaneria claimed that his confession was coerced, that his assertion of his right to remain silent was not honored, that the trial court improperly failed to charge on the lesser included offense of second-degree manslaughter, and that he was denied a fair trial because of the prosecutors’ improper cross-examination and summation. The district court concluded that Campane-ria’s statements were voluntary and not coerced, that he had not expressed a desire to cut off the interrogation process but merely certain interrogations, that the evidence did not require an instruction on the lesser included offense of second-degree manslaughter, and that the remaining claims of error were not of federal constitutional magnitude.
DISCUSSION
A. Entitlement to Evidentiary Hearing
As an initial matter, Campaneria raises the question whether, at the very least, he should be entitled to an evidentiary hearing in the district court. The state trial court, after holding a suppression hearing, the adequacy of which Campaneria does not challenge, denied Campaneria’s motion in a ruling from the bench. No express factual findings were made in the bench ruling or thereafter. Campaneria suggests that, because of the lack of express findings, a federal evidentiary hearing is necessary.
A federal court hearing a habeas petition must ordinarily afford a presumption of correctness to the factual findings of the state court. 28 U.S.C. § 2254(d). However, the presumption of correctness does not adhere in a case in which the state court has not actually resolved the merits of a factual dispute. Ford v. Wainwright, 477 U.S. 399, 410-11, 106 S.Ct. 2595, 2602-03, 91 L.Ed.2d 335 (1986) (plurality opinion); United States ex rel. Lewis v. Henderson, 520 F.2d 896, 902-03 (2d Cir.), cert. denied, 423 U.S. 998, 96 S.Ct. 429, 46 L.Ed.2d 373 (1975). If the state court did not provide a full and fair hearing and did not make reliable findings relating to the material facts supportable by the record, a federal evidentiary hearing is required. Townsend v. Sain, 372 U.S. 293, 312-13, 83 S.Ct. 745, 756-57, 9 L.Ed.2d 770 (1963). Nevertheless, even if no express findings are made by the state court, a federal court must initially assess whether the state court impliedly made findings relating to the material facts. Id. at 314, 83 S.Ct. at 757-58. Moreover, unless it appears otherwise from the record, the federal court may presume that the state court applied the appropriate law. Id. at 315, 83 S.Ct. at 758.
At Campaneria’s suppression hearing, the factual disputes were minimal. The only testimony offered at the hearing was that of Assistant District Attorney DiNatale and the various police officers. The record would therefore appear to indicate that the state trial court found the testimony of these witnesses credible and made the requisite factual findings to support the conclusions necessary to deny the motion to suppress. The district court thus did not err in failing to provide Campaneria with an evidentiary hearing.
B. Coercion
Campaneria claims that his incul-patory statements were made under coercive conditions in violation of his rights under the Due Process Clause. A determination as to the voluntariness of a confession requires an inquiry into all the circumstances surrounding the law enforcement officials' conduct to ascertain whether it overcame the accused’s will to resist and brought about a confession that was not freely self-determined. Terry v. LeFevre, 862 F.2d 409, 413 (2d Cir.1988); Green v. Scully, 850 F.2d 894, 901-02 (2d Cir.), cert. denied, - U.S. -, 109 S.Ct. 374, 102 L.Ed.2d 363 (1988). Relevant factors that should be considered include the accused’s age, his lack of education or low intelligence, the failure to give Miranda warnings, the length of detention, the nature of the interrogation, and any use of physical punishment. United States v. Guarno, 819 F.2d 28, 30 (2d Cir.1987).
Campaneria points to several facts that he claims indicate that his statements were coerced and involuntary. He emphasizes that he was, at the time, relatively young and foreign-born, with a poor command of the English language. During the interrogations, moreover, he was suffering from a serious knife wound and was in significant pain. At the hospital, he was questioned while in the ICU with tubes running in and out of his body, occasionally complaining of dizziness. He describes the questioning as “relentless.”
On the basis of these circumstances, he attempts to analogize his situation to that of the accused in Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). The analogy is inapt. In Mincey, the accused, like Campaneria, was in the ICU after surgery with various tubes inserted into his body. Unlike Campaneria, he was unable to speak because of a tube in his mouth and had to communicate by writing on pieces of paper, he had asked repeatedly that the interview be stopped until he could get a lawyer, and he was on the edge of consciousness and in fact lost consciousness several times. Id. at 396-401, 98 S.Ct. at 2415-18. By contrast, Campaneria, according to his medical records, was alert and awake despite his pain. On several occasions when Campane-ria declined to be interviewed, the interrogators left to return later. The interrogations were relatively short.
The conduct of Campaneria’s questioners was not coercive or overbearing. Although he suffered pain and discomfort, it was not so severe as to render him unable to make a voluntary statement or unduly susceptible to manipulation by his interrogators. His inculpatory statements, therefore, were not the product of unconstitutional coercion.
C. Waiver
Once in the custody of law enforcement officials, an accused must be informed of his constitutional rights to remain silent and to counsel, and a waiver of those rights, to be effective, must be voluntarily, knowingly and intelligently made. Colorado v. Spring, 479 U.S. 564, 572-73, 107 S.Ct. 851, 856-57, 93 L.Ed.2d 954 (1987); Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). Campaneria argues that, because of his poor grasp of English and the confusing circumstances surrounding the questioning, he did not understand the Miranda warnings when they were given to him and therefore did not effectively waive his privilege against self-incrimination. We find this claim unpersuasive.
Even though his proficiency in the English language may have been limited, it did not prevent him from making a knowing and intelligent waiver of his constitutional rights. Campaneria’s native tongue is Spanish. Nonetheless, the record, and in particular the transcript of the recorded interview, reveals that, although he spoke in broken English with an accent and occasionally lapsed into Spanish, his command of English was sufficient for him to have understood the Miranda warnings given to him. According to his medical records, he was alert and observant during the times that the warnings were given. On each occasion that he was advised of his rights, he indicated that he understood those rights.
D. Invocation of Right to Remain Silent
When a suspect invokes his privilege against self-incrimination while in the custody of law enforcement officials, whether in the form of refusing to answer questions or asking that an ongoing interrogation be terminated, his request must be “scrupulously honored.” Michigan v. Mosley, 423 U.S. 96, 103-04, 96 S.Ct. 321, 326-27, 46 L.Ed.2d 313 (1975); Miranda, 384 U.S. at 479, 86 S.Ct. at 1630. Campaneria claims that his request not to be questioned at the outset of the recorded interrogation was ignored in violation of his Fifth Amendment rights. Prior to that questioning, Detective Cianfrone asked Campaneria if he wanted to talk to them. Campaneria responded that he did not want to answer questions then and preferred that they return later. Assistant District Attorney DiNatale promptly told Campaneria that if he wanted to talk with them “now was the time to do it.”
Once an accused in custody unequivocally invokes the right to remain silent, interrogation must ordinarily cease. Miranda, 384 U.S. at 473-74, 86 S.Ct. at 1627-28; Anderson v. Smith, 751 F.2d 96, 101-02 (2d Cir.1984). The purpose of this prophylactic rule is to counter the inherently coercive effects of custodial interrogations. Miranda, 384 U.S. at 467, 86 S.Ct. at 1624. The suspect, not the interrogator, is given control over “the time at which questioning occurs, the subjects discussed, and the duration of the interrogation.” Mosley, 423 U.S. at 103-04, 96 S.Ct. at 326.
The rule, nevertheless, is not a per se prohibition against all further interrogation. Questioning can be resumed after fresh Miranda warnings are given and the right to remain silent is otherwise scrupulously honored, for example, by renewing the questioning only after the passage of a significant period of time and by limiting the renewed questioning to a different subject matter than the original interrogation. See id. at 104-07, 96 S.Ct. at 326-28. In addition, an exception to the prophylactic rule is permitted when the invocation of the right to remain silent is ambiguous or equivocal. In such instances, narrow questions are permitted for the strictly limited purpose of clarifying an ambiguous request. Anderson, 751 F.2d at 103; Wilson v. Henderson, 584 F.2d 1185, 1188 (2d Cir.1978), cert. denied, 442 U.S. 945, 99 S.Ct. 2892, 61 L.Ed.2d 316 (1979); see also Smith v. Illinois, 469 U.S. 91, 95, 105 S.Ct. 490, 492-93, 83 L.Ed.2d 488 (1984) (ambiguous invocation of right to counsel).
Nothing was ambiguous or equivocal about Campaneria’s statement that he did not wish to be questioned. He straightforwardly refused to talk at that time. Moreover, DiNatale’s remark that “If you want to talk to us, now is the time to do it” was not aimed at resolving any ambiguity in Campaneria’s statement, but rather at changing his mind. This is precisely the sort of conduct the prophylactic rule seeks to prevent.
The State attempts to minimize the force of DiNatale’s remark by arguing that Campaneria would have known that, if he had so desired, his request to terminate the interrogation would have been honored because previous requests not to be questioned had been heeded by the officials. However, an earlier respect of a suspect’s right to remain silent does not alleviate the effect of a subsequent violation of that right. Anderson, 751 F.2d at 102-03. The State additionally points to Campaneria’s reversal of his decision not to be questioned as reflecting his desire to answer DiNatale’s questions. But statements made in response to questions after a suspect has invoked his right to remain silent cannot be used to raise doubts about his initial invocation. See Smith, 469 U.S. at 96-97, 105 S.Ct. at 493-94 (invocation of right to counsel). Under the circumstances, we cannot say that Campaneria’s invocation of his right to remain silent was scrupulously honored.
Although it was error to have admitted the recorded interrogation into evidence, we find that this error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). The recorded statement was entirely cumulative. It did not contain anything that Campaneria had not already stated in his earlier unrecorded statements to Wieboldt, Caponigro, and, in particular, Cianfrone. Although a recorded confession can be impressive evidence in a criminal trial, the fact that it was a recorded statement alone does not overcome the overwhelming untainted and substantively identical evidence against Campaneria. Furthermore, our conclusion is not changed simply because the jury asked to have the recorded interrogation played back during deliberations. The evidence in the recorded statement was no different from the evidence that came in through the testimony of the police officers. We do not lightly assume that an error of constitutional magnitude such as this is harmless, see Anderson, 751 F.2d at 105, but to conclude otherwise on this record would effectively preclude any error relating to a recorded, as opposed to an unrecorded, confession from being considered harmless. Such a result would be inappropriate. Cf. Harrington v. California, 395 U.S. 250, 254, 89 S.Ct. 1726, 1728-29, 23 L.Ed.2d 284 (1969) (in light of overwhelming evidence of guilt, reversal of conviction would have meant no violation of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), could be harmless error).
E. Lesser Included Offense
Campaneria maintains that the state trial court erred in not instructing the jury on the lesser included offense of second-degree manslaughter. The Supreme Court has held that, at least in capital cases, due process requires that the jury be instructed on any lesser included offenses when the evidence warrants such an instruction. Beck v. Alabama, 447 U.S. 625, 637-38,100 S.Ct. 2382, 2389-91, 65 L.Ed.2d 392 (1980). We have yet to decide whether due process requires the same result in the non-capital context, and other circuits have split on the issue. See Rice v. Hoke, 846 F.2d 160, 164-65 (2d Cir.1988) (reviewing cases). We need not resolve that issue in this case, however, because Campaneria was not entitled to an instruction on second-degree manslaughter.
A jury should be instructed on lesser included offenses when “(1) it is theoretically impossible to commit the greater crime without committing the lesser and (2) a reasonable view of the evidence would permit the jury to find that the defendant had committed the lesser, but not the greater, offense.” Id. at 165. Under New York law, second-degree manslaughter— recklessly causing the death of another, N.Y.Penal Law § 125.15(1) (McKinney 1987) — is a lesser included offense of murder in the second degree. People v. Sullivan, 68 N.Y.2d 495, 501-02, 503 N.E.2d 74, 78, 510 N.Y.S.2d 518, 522 (1986). Cam-paneria argues that, although he admittedly intended to shoot Sanchez, he did not intend to kill him. Instead, Campaneria posits, a reasonable view of the evidence could support the finding that the killing was an act of recklessness.
According to his own testimony, Campaneria shot at Sanchez intentionally. An intentional shooting, even absent the specific intent to kill required for murder in the second degree, is not mere recklessness. An intent to shoot another is, by its nature, an intent to cause another serious physical injury. Under New York law, causing the death of a person while intending to cause serious physical injury constitutes manslaughter in the first degree, N.Y.Penal Law § 125.20(1); People v. Ramirez, 76 A.D.2d 115, 117-18, 430 N.Y.S.2d 83, 85 (1st Dep’t 1980), the crime for which Campaneria was convicted. Because Cam-paneria admitted that he shot at Sanchez intentionally, no reasonable view of the evidence can support Campaneria’s claim that he was entitled to an instruction on the lesser included offense of second-degree manslaughter.
CONCLUSION
The judgment of the district court dismissing the petition for a writ of habeas corpus is affirmed.
. In a footnote in his brief, Campaneria raises the claim that the statements he made after he left the hotel lobby with Wieboldt were made while in police custody but before he was advised of his constitutional rights. Campaneria focuses on the fact that Wieboldt "ordered” him into the elevator to go to the tenth floor of the hotel. Such an “order” is to be expected from an officer who needs assistance in locating a shooting victim. An accused is in “custody” when, in the absence of an actual arrest, law enforcement officials act or speak in a manner that conveys the message that they would not permit the accused to leave. United States v. Guarno, 819 F.2d 28, 31-32 (2d Cir.1987). Even though Wieboldt testified that he would not have permitted Campaneria to leave at this point if he had attempted to, the officer’s unexpressed intent is not controlling. United States v. Mendenhall, 446 U.S. 544, 554 n. 6, 100 S.Ct. 1870, 1877 n. 6, 64 L.Ed.2d 497 (1980). Other than directing Campaneria to accompany them in the elevator, the officers had not physically or verbally indicated to Campaneria that he was not free to leave. Therefore, none of the statements Campaneria made in the hotel were made while in custody.
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_numresp
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
In the Matter of PENN CENTRAL TRANSPORTATION COMPANY, Debtor. Appeal of Richard Joyce SMITH, Trustee of the Property of the New York, New Haven and Hartford Railroad Company, No. 74-1362. Appeal of BANK OF NEW YORK et al., No. 74-1447.
Nos. 74-1362 and 74-1447.
United States Court of Appeals, Third Circuit.
Argued Nov. 18, 1974.
Decided Jan. 22, 1975.
Joseph Auerbach, Morris Raker, Charles W. Morse, Jr., Laura Steinberg, Boston, Mass., for appellant, Richard Joyce Smith, Trustee; James Wm. Moore, New Haven, Conn., Gratz, Tate, Spiegel, Ervin & Ruthrauff, Philadelphia, Pa., Sullivan & Worcester, Boston, Mass., of counsel.
Edward Roberts, III, James R. Hilton, Indenture Trustees, New York City, Liaison Counsel for appellant; Proskauer, Rose, Goetz & Mendelsohn, White & Case, New York City, Morgan, Lewis & Bockius, Philadelphia, Pa., Kelley, Drye, Warren, Clark, Carr & Ellis, New York City, of counsel.
Carla A. Hills, Asst. Atty. Gen., Robert E. J. Curran, U. S. Atty., Morton Hollander, David J. Anderson, James F. Dausch, Sp. Lit. Unit, Civ. Div., Attys., Dept, of Justice, Washington, D. C., for the United States of America, appellee.
James E. Howard, Philadelphia, Pa., for appellees, The Trustees of the Property of Penn Central Trans. Co., Debtor.
Before ADAMS, GIBBONS and WEIS, Circuit Judges.
OPINION OF THE COURT
GIBBONS, Circuit Judge.
These appeals, taken pursuant to the Bankruptcy Act, 11 U.S.C. § 47, seek review of Orders No. 1480 and No. 1509 entered in the Penn Central reorganization proceedings. Order No. 1480 authorizes the trustees in reorganization to enter into an agreement with the Secretary of Transportation with respect to certain equipment obligations, and Order No. 1509 declines to modify Order No. 1480 in certain requested particulars. The appellant in No. 74-1362 is Richard. Joyce Smith, trustee of the property of the New York, New Haven and Hartford Railroad Company, and he asserts standing in his three-fold status as secured creditor, unsecured creditor, and stockholder of Penn Central. The appellants in No. 74-1447 are the Indenture Trustees of certain mortgage bond issues on which Penn Central is the obligor. The district court opinion approving Order No. 1480 is reported together with its denial for reconsideration in Order No. 1509. In re Penn Central Transportation Co., 373 F.Supp. 185 (E.D.Pa.1974).
Order No. 1480 arose out of what has become the familiar annual first quarter cash crisis of the Penn Central reorganization. In February, 1974 general revenues were believed by the trustees to be insufficient to meet equipment obligation installments totaling $10.8 million due to mature on February 15 and March 1, 1974 on conditional sale contracts. Nonpayment might have brought default clauses into operation, and under § 77(j) of the Bankruptcy Act, 11 U.S.C. § 205(;j), equipment vendors could have repossessed. The equipment obligations covered some 100 locomotives and 10,000 freight cars with an original cost of $186 million of which Penn Central had already paid $70 million. Repossession obviously would have been catastrophic not only to Penn Central’s continued operation, but also to reorganization of a northeastern rail system under the Regional Rail Reorganization Act of 1973, 45 U.S.C. § 701 et seq.
On February 12, 1974 the Penn Central trustees applied to the Secretary of Transportation for assistance pursuant to § 213 of the Rail Reorganization Act. This section authorizes the Secretary to expend up to $85 million for the purpose of enabling railroads in reorganization to continue to provide essential rail services pending completion of reorganization contemplated by the Act. However in February, 1974 it was not clear that Penn Central or any other railroad in bankruptcy would be reorganized under the Regional Rail Reorganization Act of 1973. The Secretary took the position that it would be imprudent in these circumstances to make outright grants for the payment of equipment obligations since in the event of liquidation of Penn Central the grants would have inured to the benefit of Penn Central mortgage bond holders by virtue of after-acquired property clauses in the mortgages, rather than to the benefit of the public. The Department of Transportation proposed, instead, that it would pay the installments directly to the equipment obligees and become subrogated to their contract and statutory rights in the equipment. It also proposed that its subrogee position be subordinated to the interests of the equipment obligees with respect to future installments, interest or maturities. Finally, it proposed that so long as the trustees remained in possession of the equipment, and did not default on future equipment obligations, they would not be obliged to repay the debt owed to the United States. The trustees could however, repay this debt to the government at any time without interest.
The appellants objected to the Secretary’s proposal, (1) because advances to the equipment obligees were essentially loans rather than grants, and hence not authorized by § 213 of the Act, and (2) because by relieving the trustees of the need to make immediate payment, the government was freeing the trustees to use cash in the deficit operation of the railroad and thereby to continue the erosion of the estate. See In re Penn Central Transportation Co., 494 F.2d 270, 283 n. 13 (3d Cir. 1974) (Columbus Option), cert. denied, 419 U.S. 883, 95 S.Ct. 147, 42 L.Ed.2d 122, 43 U.S.L.W. 3190 (U.S. Oct. 15, 1974).
Appellants’ standing to object to the proposed arrangement is entirely dependent upon their status as creditors and stockholders allegedly being subjected to an uncompensated taking by virtue of such erosion. The district court, recognizing such standing, did not decide the merits of the erosion contention, but concluded that it would approve the proposed arrangement without prejudice to the assertion of the erosion contention at a later time. The court concluded:
“This transaction will be approved. There is no alternative.” 373 F.Supp. at 187.
Order No. 1480 authorizing the trustees to accept the Secretary’s proposal was entered on March 1, 1974, and reconsideration was denied in Order No. 1509 on March 19, 1974. These appeals followed. Because of subsequent events of which we must take notice we conclude that they must be dismissed.
The first step in the scheme of the Regional Rail Reorganization Act of 1973 is the so-called 120-day decision under § 207(b) that a “railroad is reorganizable on an income basis within a reasonable time under section 77 and that the public interest would be better served by such reorganization than by a reorganization under this [Rail] Act.” On May 2, 1974 the district court concluded that Penn Central could not be reorganized on an income basis within a reasonable time under § 77. The next step is the so-called 180-day decision under § 207(b) which requires that reorganization proceed pursuant to the Rail Act unless the district court “finds that [the Rail] Act does not provide a process which would be fair and equitable to the estate of the railroad in reorganization .” The district court concluded, on July 1, 1974 that reorganization of Penn Central would not be permitted under the Regional Rail Reorganization Act because that Act made no provision for protection of the estate from interim erosion caused by its required deficit operation pending implementation of a final system plan under the Act. In re Penn Central Transportation Co., 382 F.Supp. 856 (E.D.Pa.1974). That decision was appealed to the Special Court created by § 209(b) of the Rail Reorganization Act. On September 30, 1974 the Special Court reversed, holding that the Tucker Act, 28 U.S.C. § 1491 provided a remedy for any unconstitutional taking which resulted from interim erosion during the operation of Penn Central required by § 304(f) of the Act. In re Penn Central Transportation Co., 384 F.Supp. 895 (Spec.Ct. 1974).
Meanwhile, on June 25, 1974 in Connecticut General Insurance Corp. v. United States Railway Ass’n, 383 F.Supp. 510 (E.D.Pa.1974) a three-judge district court held that the Rail Reorganization Act of 1973 was unconstitutional for several reasons, including the absence of a provision for compensation for the taking resulting from interim erosion. The Connecticut General case was appealed to the Supreme Court pursuant to 28 U.S.C. § 1252. On December 16, 1974 the Supreme Court in the Regional Rail Reorganization Act Cases, 419 U.S. 102, 95 S.Ct. 335, 42 L.Ed.2d 320, 43 U.S.L.W. 4031 (1974) held that the statute was constitutional because, as the Special Court had held, the Tucker Act remedy was not barred by the Rail Act and is available to provide just compensation for any “erosion taking” mandated by the Act’s provisions. At 122-136, 95 S.Ct. 335, 43 U.S.L.W. at 4037-41.
Thus it is now clear (1) that Penn Central is a railroad in reorganization under the Regional Rail Reorganization Act of 1973 rather than under § 77 of the Bankruptcy Act, and (2) that to facilitate reorganization, interim operations of the railroad at a loss may constitutionally be continued because the United States will be required to indemnify the creditors and stockholders for interim erosion of the debtor’s estate in an action in the Court of Claims. Since the only standing of the appellants to challenge Order No. 1480 arose out of their claim that it resulted in uncompensated erosion of the estate, we conclude that they no longer have such interest in the subject matter of Order No. 1480 as permits them to appeal pursuant to 11 U.S.C. § 47. If, as appellants contend, the Secretary exceeded his authority under § 213, they have no standing to object since they were not injured by such excess except to the extent that it might have resulted in interim erosion. The district court did not decide whether Order No. 1480 resulted in such erosion, and it is now clear that the Court of Claims will be the appropriate forum for such adjudication.
The appeal will be dismissed.
. Section 213 of the Act, 45 U.S.C. § 723 provides for emergency assistance pending implementation of a final system plan.
“(a) Emergency Assistance. — The Secretary is authorized, pending the implementation of the final system plan, to pay to the trustees of railroads in reorganization such sums as are necessary for the continued provision of essential transportation services by such railroads. Such payments shall be made by the Secretary upon such reasonable terms and conditions as the Secretary establishes, except that recipients must agree to maintain and provide service at a level no less than that in effect on the date of enactment of this Act.
(b) Authorization for Appropriations. ■ — There are authorized to be appropriated to the Secretary for carrying out this section such sums as are necessary not to exceed $85,000,000, to remain available until expended.”
. Other details of the Secretary’s proposal, not relevant here, are described in the district court’s opinion. 373 F.Supp. at 188-190.
. We have no occasion on this appeal to consider what residuum of appellate jurisdiction is left in this court rather than in the Special Court with respect to other types of orders which may be entered in the Penn Central proceedings in the District Court for the Eastern District of Pennsylvania. See §§ 209(b) 601(b), 45 U.S.C. §§ 719(b), 791(b).
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
|
songer_respond1_3_2
|
E
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
BRIGHTON MILLS, Inc., v. COMMISSIONER OF INTERNAL REVENUE.
No. 11860.
Circuit Court of Appeals, Fifth Circuit.
May 19, 1947.
John C. Reid, of Washington, D. C., for petitioner.
Irving I. Axelrod, Fred E. Youngman, and A. E. Prescott, Sp. Assts. to Atty.
Gen., Sewall Key, Acting Asst. Atty. Gen., J. P. Wenchel, Counsel, Bureau of Internal Revenue, and Charles E. Lower y, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C., for respondent.
Before SIBLEY, HUTCHESON, and LEE, Circuit Judges.
SIBLEY, Circuit Judge.
During the tax year 1935, the Brighton Mills, Inc., was manufacturing and selling cotton goods, and as a processor of ks raw cotton was liable for a processing tax if the Agricultural Adjustment Act of 1933, 7 U.S.C.A. § 601 et seq., was constitutional. Books were kept on the accrual basis. During January the tax was paid. Thereafter, the constitutionality of the Act being in contest, the tax was not paid but was accrued monthly on the books. During 1935 also the Mills stamped on its customers’ purchase orders and on its invoices of goods shipped this agreement: “If and when for any reason sellers’ liability for processing taxes levied under the Agricultural Adjustment Act as heretofore and hereafter amended, is increased, decreased, or terminated, or such taxes shall be invalidated by final decision of the Supreme Court of the United States, prices on any uninvoiced portion of this contract are subject to adjustment at a rate computed on the basis of the conversion factors set up by the Treasury Decision 4433, approved May 10, 1934. In addition the seller will credit in the buyer’s account the amount, computed on the basis of such conversion factor, of any such tax which, by reason of such invalidity, shall have been refunded to the seller, or seller shall have been relieved from paying, with respect to any portion of this contract as to which title has passed within 120 days prior to such determination of invalidity. The title shall be deemed to have passed when goods are invoiced. * * * In any settlement hereunder seller shall be entitled to deduct on a pro rata basis reasonable expenses of procuring any such refund or relief.” No accrual of any liabilities under these agreements to any customer was entered on the books during 1935.
On January 6, 1936, the Supreme Court . held the Act unconstitutional, and the corporation was relieved of paying the taxes accrued in 1935. During January and February, 1936, it paid various customers under the above stated agreements $84,865.65 on goods delivered in 1935. In closing the books for 1935, sometime in 1936, entries were made as of December 31, 1935, which showed this $84,865.65 as a liability for credits due to customers. $193,866.21 was the total of taxes accrued on the books for 1935. In the tax return for 1935 the year’s income as shown included the full invoice-prices, and the $84,865.65 was claimed as. a deduction. The deduction was disallowed, by the Commissioner. The Tax Court: held the deduction could not be allowed because the liability under the agreements, was contingent during the whole • of 1935-,, and therefore did not accrue during that: year. We are asked to review that decision, and to hold either that the liability did accrue, or that its settlement in 1936> was really a reduction of income by price-adjustment on the sales made in 1935¡.
The payments were not price- adjustments. The first sentence of the quoted' agreement provides for price adjustments on uninvoiced portions of sales contracts if the tax be increased, decreased, terrminated, or invalidated. That sentence is-not applicable here, for all the goods here-involved were duly invoiced at the contract prices, with no mention of the tax,, and these invoices were accrued on- the-books and returned in the tax return as the-income. The second sentence is the applk cable one, beginning: “In addition, the-seller will credit on the buyer’s account,. etc.” This sentence applies only in case the tax is declared invalid, and only to invoices, shipped within 120 days of the determination of invalidity, and the credit promised: is subject to a deduction of a pro rata part-of the expense of procuring the relief' against the tax. It is a somewhat complicated assumption of a liability to give credit on account; it is not a repricing of goods. It was not so regarded by taxpayer-in making its book entries and in making; its tax return. The liability for the-$84,865.65 did not reduce the income for the year, but was a business liability or-expense to be accrued only in the year in: which it became certainly such.
As to each invoice this liability was contingent both as to its existence and its amount. Something would be due in respect of any invoice only if the tax should be declared invalid by the Supreme Court, and it could not be known that would happen till it did happen. Also any invoice would cause liability only if it should then be less than 120 days old. Every day that elapsed before a decision cut off liability on the invoices of the 120th day preceding. And a contingency as to amount lay in the uncertainty touching the expense of obtaining relief which could not be measured till the litigation was over and the relief secured; nor could it be pro-rated till it was known what invoices should share in the pro-ration. There could be no accrual ■of these liabilities theoretically or practically until the fact and date of invalidation became established, and this occurred in 1936 and not in 1935.
It is argued that the Mills owed a tax to the United States, or else owed equivalent sums to the customers, and these obligations were so interdependent as to constitute a certain accruable liability, the taxpayer being in effect a stakeholder for whichever should receive the money. This is not the fact. The taxes were due by law (if valid) for processing cotton, and this liability for 1935 was accrued on the books as $193,866.21. The liability to the customers turned out to be only $84,865.65. It was not commensurate with the tax, but dependent on the terms of the agreements. The two liabilities were not the same in nature or amount, though the contract liability could not arise till the tax liability was destroyed. There were, as pointea out above, other conditions to be met before the liability on any invoice would arise and become fixed in amount so as to become accruable.
The ultimate liabilities in 1936 under these contracts had indeed a close relation to the income realized on the sales in 1935, and would at one time have been considered proper deductions in 1935 in order to truly represent the income of that year under the authority of Revenue Act of 1934, § 43, 26 U.S.C.A. Int.Rev.Acts, page 679; but as the Tax Court held, the decision in Security Mills Co. v. Commissioner, 321 U.S. 281, 64 S.Ct. 596, 88 L.Ed. 725, though differing in its facts, settles that this section does not authorize a taxpayer on the accrual basis to accrue as deductions liabilities like these which were contingent throughout the tax year.
The judgment of the Tax Court is therefore affirmed.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant?
A. cabinet level department
B. courts or legislative
C. agency whose first word is "federal"
D. other agency, beginning with "A" thru "E"
E. other agency, beginning with "F" thru "N"
F. other agency, beginning with "O" thru "R"
G. other agency, beginning with "S" thru "Z"
H. Distric of Columbia
I. other, not listed, not able to classify
Answer:
|
songer_numappel
|
2
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of appellants in the case. If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Kathleen Russo, wife of/and Herbert L. GAY, Plaintiffs-Appellants, v. BARGE 266 and Brown & Root U.S.A., Inc., Defendants-Appellees.
No. 89-3666.
United States Court of Appeals, Fifth Circuit.
Oct. 30, 1990.
David Greenberg, Nathan Greenberg, Greenberg & Dallam, Gretna, La., for plain tiffs-appellants.
James F. Holmes, Christovich & Kear-ney, New Orleans, La., for defendants-ap-pellees.
Before GEE, RUBIN and DAVIS, Circuit Judges.
ALVIN B. RUBIN, Circuit Judge:
A longshoreman and his wife appeal the judgment on a directed verdict against them in their action for damages arising from the alleged negligence of a vessel under the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 905(b) (1988). The district court found as a matter of law that the longshoreman was engaged in ship repair at the time of his injury, the owner pro hac vice of the barge on which he was working was his employer, and, in the alternative, that his injury was caused by the negligence of the work crew and its supervisor, all fellow longshoremen. Because we find that the longshoreman adduced sufficient evidence to warrant submission to the jury of both his status as a ship repairer and the negligence of his employer, we reverse.
I
Herbert Gay worked for Brown & Root in Belle Chasse, Louisiana for over ten years. He was classified as a truck driver and light equipment operator, though his duties included loading and unloading barges from time to time. He was also occasionally assigned to pump water out of barges. Gay worked in a crew of twelve men under the direction of William “Bud” Kemp, general yard foreman. Kemp, in turn, answered to James Reese, the assistant maintenance manager, and L.D. Lowery, Brown & Root’s operations manager.
Brown & Root contracted with Torch, Inc. to use Barge 266 to pick up a piece of pipeline construction equipment from the Livingston Shipyard at Orange, Texas and transport it to Brown & Root’s yard at Belle Chasse. The barge was located in the Intracoastal Canal, approximately one mile away from Brown & Root’s yard. The barge had settled on the bottom of the canal, apparently as the result of rainwater entering through openings in the deck, and could not be moved until the water had been pumped out.
On the morning of November 11, Reese and Kemp drove from the Brown & Root yard to the mooring of Barge 266. They noticed a two-by-twelve board on the ground near the barge. Reese and Lowery had used that or a similar board to gain access to the barge on an earlier visit. Reese and Kemp discussed whether a work crew could use the board to get the pumps onto the barge; they agreed that it could be done.
Later that day, Kemp instructed Gay and two other Brown & Root employees to load two pumps, each weighing more than one hundred pounds, onto a pickup truck and to transport them to the barge. When the crew arrived, it was raining lightly. Kemp told the crew to use the two-by-twelve board as a gangway to get the pumps onto the barge, even though cherry pickers and proper gangways were available at the Brown & Root yard a mile away. None of the crew dissented. The board was wet from the rain, and, when laid from the shore to the deck of the barge, a distance of some five or six feet, sat at a thirty degree incline. As Gay and another employee carried one of the pumps across the board to the barge, Gay slipped and fell into the water. The pump fell on top of him, punching a hole in his skull and seriously injuring his back.
Gay filed suit under § 905(b) of the LHWCA, alleging that his injury was caused by Brown & Root’s negligence, in its capacity as owner pro hac vice of Barge 266, in failing to provide safe access to the vessel. At the close of plaintiffs’ case, the district court granted the defendants’ motion for directed verdict. The court held that as a matter of law Gay was engaged in ship repair services at the time of his injury, and therefore his suit was barred by the language of § 905(b). The court also held that, even if Gay was not engaged in ship repair services, the only reasonable conclusion from the evidence was that Gay’s injuries were caused solely by the negligence of Kemp and the work crew, whom the court found to be fellow longshoremen.
II
Section 905(b) of the LHWCA allows a longshoreman injured due to the negligence of a vessel to bring a third-party tort action against the vessel owner. As amended in 1984, however, that section prohibits suit by a person “employed to provide shipbuilding, repairing, or breaking services” against his employer, directly or indirectly, for the negligence of the vessel, even if his employer was “the owner, owner pro hac vice, agent, operator, or charterer of the vessel.”
Brown & Root argues that, because Gay was repairing the barge at the time he was injured, he was “employed to provide” ship repairing services within the meaning of § 905(b). That conclusion is a non sequitur. Even if we assume for the moment that pumping out a barge is a “repair,” it does not follow that Gay was “employed” to provide repair services. When classifying an employee for purposes of determining whether a suit under § 905(b) is barred, we look not only at what the employee was doing at the moment he was injured. We also look at whether the employee “regularly performs some portion of what is indisputably [ship-repair] work,” or has been assigned for an appreciable period of time to do “substantial [ship-repair] work ... even though his assignment to it is not 'permanent/ ” just as we do in determining whether he is a longshoreman or, in Jones Act cases, a member of the crew of a vessel. If the employee’s permanent duties, or his interim duties over an appreciable period, are such that he would be a covered ship repairer within the meaning of § 902(3) of the LHWCA, then he is barred from bringing suit against his employer under § 905(b).
Two primary considerations recommend looking to the employee’s overall duties or to his assignments for a significant time interval. First, it is consistent with Congress’s purpose in amending the LHWCA in 1984 to foreclose suits in negligence against employers who have fulfilled their duty to provide injured employees with compensation benefits. To achieve that purpose, the specific statutory bar against § 905(b) actions by shipbuilders, ship repairers, and ship breakers must be as broad as coverage under the LHWCA itself. Otherwise, employees who regularly perform ship repair duties, for example, but who are injured while temporarily performing traditional longshoring duties, could still sue employer-shipowners in direct contravention of Congress’s expressed intent.
Second, the § 905(b) bar is specific to the occupations listed: shipbuilders, ship repairers and ship breakers. Had Congress intended to foreclose suits by all covered employees against employer-shipowners, it could easily have done so. It did not. The Supreme Court's longstanding recognition that the LHWCA “focuses primarily on occupations” supports our conclusion that Congress intended to bar suits only by workers in the occupations specified. Focusing solely on the employee’s activity at the time of injury might bar suits by a whole host of workers in other maritime occupations who are injured while temporarily performing repair work. Paraphrasing Caputo, to deny Gay a cause of action in the morning but to grant him one in the afternoon is to make his rights under the Act as random and indiscriminate as the sea herself. This sort of incertitude is precisely what Congress attempted to eliminate from the LHWCA in both its 1972 and 1984 amendments.
The only testimony in this case that Gay performed ship repair work was that he did, from time to time, pump out barges. Whether pumping out a barge is “repair work” within the meaning of the statute, however, is a question of applying the law to the facts, and whether Gay regularly performed such duties is a pure question of fact. Thus, both elements of the inquiry into whether Gay was a ship repairer are questions for the jury. A directed verdict on this issue was therefore appropriate only if, after considering all of the evidence and drawing all inferences therefrom in favor of the nonmoving party, the court was convinced that no reasonable jury could find in favor of the nonmovant.
A reasonable jury, however, might easily have concluded that Gay’s principal duty was not repair work, and, indeed, that pumping out barges, the activity in which he was engaged at the time of his injury, was no more so. No evidence was adduced that Barge 266 had any structural or mechanical defects or that she was in any way unseaworthy, with the sole exception that she had taken on water. There was no evidence that the other barges Gay had pumped out from time to time were in need of repair. There was testimony, however, from which the inference could be drawn that barges like the M266 often take on water, and that pumping the water out was simply one of the incidental chores involved in operating barges. Thus, the jury might reasonably have concluded that pumping water from a barge is routine and expected maintenance, and not “repair” work under § 905(b).
The fact that the volume of water that Barge 266 had taken on made her unsea-worthy does not waterlog that conclusion. First, the nature of the work did not change with the volume of water. Putting gasoline in one’s car, for example, is not transformed from maintenance to repair simply because one has run the gas tank dry. While there are many situations to which this analogy is ill-suited, we find it appropriate here. Second, in order to find that barge-pumping made Gay a ship repairman, the evidence would have to show that he did repair work “regularly,” even if infrequently. Thus, he would have to have “regularly” pumped water from barges that had taken on so much as to be made unseaworthy. No such evidence was adduced.
Ill
The district court also granted the directed verdict on the alternative ground that Gay’s injury was caused by the negligence of fellow longshoremen. Section 905(b) provides that a longshoreman may not maintain an action under that section “if the injury was caused by the negligence of persons engaged in providing stevedoring services to the vessel.” The district court concluded that Gay’s injury was caused by the negligence of Kemp, the foreman, and the work crew itself, who decided to use the board as a gangway. The court found both Kemp and the crew to be “engaged in providing stevedoring services” to Barge 266 at the time of the injury.
We agree with the district court that the record demonstrates beyond question that Kemp, Gay, and the rest of the work crew were negligent in using the board as a gangway. We also agree that their negligence was a proximate cause of Gay’s injury. If a reasonable jury could find naught but that the crew’s negligence was the sole cause of the injury, then a directed verdict would have been appropriate. That, however, is not the case.
The Supreme Court’s seminal decision in Scindia Steam Navigation Co. v. De Los Santos constructed the framework defining the shipowner’s duty of care under § 905(b). The Supreme Court held that, before turning the vessel over to the stevedore, a shipowner must exercise due care to ensure that the ship and its equipment are in such a condition that the experienced stevedore “will be able by the exercise of reasonable care to carry on its ... operations with reasonable safety to persons and property.” Only after a stevedoring operation is underway may the shipowner as a general matter “rely on the stevedore to avoid exposing the longshoremen to unreasonable hazards.”
In addition, this circuit has recognized a pertinent exception to Scindia’s broad statement of immunity for injuries occurring after stevedoring operations have begun: The vessel owner has a duty to intervene in the stevedore’s operations when he has actual knowledge both of a hazardous condition and that the stevedore, in the exercise of “obviously improvident” judgment, intends to continue work in spite of that condition. This court has previously held this duty applicable even when the vessel owner conducts its own stevedoring operations.
The record contains evidence to withstand a motion for directed verdict on the issues of (1) whether Brown & Root, in its capacity as shipowner, (a) breached its duty to turn the vessel over in such a condition that the work crew could safely load the pumps onto the barge, or (b) breached its duty to intervene in the operation in the face of its actual knowledge of the crew’s “obviously improvident” decision to use the board as a gangway, and (2) whether such breach was a proximate cause of Gay’s accident.
As to Brown & Root’s duty with respect to the vessel’s condition, Gay presented testimony that Lowery, Brown & Root’s operations manager, had actual knowledge that the barge had no gangway. Lowery had visited the barge with Reese approximately two weeks before Gay’s accident. Reese testified that he and Lowery had crossed over to the barge using the same board or a board identical to the one used by Kemp and the work crew. There can be little doubt that Lowery’s knowledge could be imputed to Brown & Root in its capacity as shipowner pro hac vice, as it was Lowery who contracted with Torch, Inc. for use of the barge. Thus, Brown & Root was chargeable with knowledge that there was no safe means of access to the barge, and accordingly had a duty to remedy that situation before turning the vessel over to the stevedore. A reasonable jury might conclude that Brown & Root’s failure to do so was a proximate cause of Gay’s injury.
The fact that Lowery might have depended on Reese, his assistant maintenance manager, to rectify the problem does not discharge Brown & Root of responsibility for its failure to take reasonable care. First, a reasonable jury might find that Reese himself acted as an agent of Brown & Root in its capacity as shipowner, so that both his actions and his knowledge of the situation were imputable to Brown & Root. If so, Reese’s failure only compounded Brown & Root’s negligence. Second, a reasonable jury might find that Reese acted for Brown & Root in its capacity of stevedore-employer. If so, then Brown & Root as shipowner could not rely on Reese to fulfill its duty of care with respect to providing a proper gangway.
Retrial of this case might easily have been avoided without compromising the district court’s view of the law and the evidence. The ease had, in effect, been almost fully tried. It would have taken only a few hours for the district court to hear defendants’ case; the jury could then have decided the matter. If the jury rendered a verdict that, in the district court’s opinion, was unsupported by the law and the evidence, it could have granted judgment notwithstanding the verdict. If its decision were reversed on appeal, we simply could have reinstated the verdict.
For the reasons stated above, we REVERSE the judgment of the district court and REMAND the cause for a new trial.
. Section 905(b) provides:
In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of section 933 of this title, and the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void. If such person was employed by the vessel to provide stevedoring services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing stevedoring services to the vessel. If such person was employed to provide shipbuilding, repairing, or breaking services, and such person's employer was the owner, owner pro hac vice, agent, operator, or charterer of the vessel, no such action shall be permitted, in whole or in part or directly or indirectly, against the injured person’s employer (in any capacity, including as the vessel’s owner, owner pro hac vice, agent, operator, or charterer) or against the employees of the employer. The liability of the vessel under this subsection shall not be based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred. The remedy provided in this subsection shall be exclusive of all other remedies against the vessel except remedies available under this chapter.
. Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 530, 103 S.Ct. 2541, 2547, 76 L.Ed.2d 768 (1983); Tran v. Manitowoc Engineering Co., 767 F.2d 223, 226 (5th Cir.1985).
. Boudloche v. Howard Trucking Co., 632 F.2d 1346, 1347-48 (5th Cir.1980) (Unit A), cert. denied, 452 U.S. 915, 101 S.Ct. 3049, 69 L.Ed.2d 418 (1981).
. Barrett v. Chevron, U.S.A., Inc., 781 F.2d 1067, 1073 (5th Cir.1986) (en banc).
. See P.C. Pfeiffer Co., Inc. v. Ford, 444 U.S. 69, 82-83, 100 S.Ct. 328, 337, 62 L.Ed.2d 225 (1979); Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 273, 97 S.Ct. 2348, 2361, 53 L.Ed.2d 320 (1977); Odom Constr. Co. v. United States Dep’t of Labor, 622 F.2d 110, 113 (5th Cir.1980), cert. denied, 450 U.S. 966, 101 S.Ct. 1482, 67 L.Ed.2d 614 (1981); Boudloche, 632 F.2d at 1347-48; Schwabenland v. Sanger Boats, 683 F.2d 309, 312 (9th Cir.1982), cert. denied, 459 U.S. 1170, 103 S.Ct. 814, 74 L.Ed.2d 1013 (1983); Graziano v. General Dynamics Corp., 663 F.2d 340, 343-44 (1st Cir.1981).
.Caputo, 432 U.S. at 273, 97 S.Ct. at 2361; accord, Ford, 444 U.S. at 80, 100 S.Ct. at 335-336.
. 432 U.S. at 274, 97 S.Ct. at 2362.
. See id. 432 U.S. at 262-66, 97 S.Ct. at 2356-57; Ducrepont v. Baton Rouge Marine Enters., Inc., 666 F.Supp. 882, 884-86 (E.D.La.1987), aff’d, 877 F.2d 393 (5th Cir.1989).
. See New v. Associated Painting Servs., Inc., 863 F.2d 1205, 1210 (5th Cir.1989).
. E.g., Treadaway v. Societe Anonyme Louis-Dreyfus, 894 F.2d 161, 164 (5th Cir.1990).
. See New, 863 F.2d at 1210.
. 451 U.S. 156, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981).
. Id. at 166-67, 101 S.Ct. at 1621-22.
. Id. at 170, 101 S.Ct. at 1623.
. Randolph v. Laeisz, 896 F.2d 964, 970 (5th Cir.1990); Masinter v. Tenneco Oil Co., 867 F.2d 892, 897 (5th Cir.1989); Helaire v. Mobil Oil Co., 709 F.2d 1031, 1038-39 (5th Cir.1983); Turner v. Costa Line Cargo Services, Inc., 744 F.2d 505, 512 (5th Cir.1984) (Gee, J., dissenting).
. Castorina v. Lykes Bros. S.S. Co., 758 F.2d 1025, 1032-33 (5th Cir.1985).
. Cf. Pichoff v. Bisso Towboat Co., 748 F.2d 300, 302-03 (5th Cir.1984).
. Sarauw v. Oceanic Navigation Corp., 655 F.2d 526, 528 (3d Cir.1981), cert. denied sub nom. American Commercial Lines, Inc. v. Griffith, 456 U.S. 914, 102 S.Ct. 1767, 72 L.Ed.2d 173 (1982); see Scindia, 451 U.S. at 167, 101 S.Ct. at 1622.
Question: What is the total number of appellants in the case? Answer with a number.
Answer:
|
songer_direct1
|
D
|
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 in suits against management, for union, individual worker, or government in suit against management; in government enforcement of labor laws, for the federal government or the validity of federal regulations; in Executive branch vs union or workers, for executive branch; in worker vs union (non-civil rights), for union; in conflicts between rival union, for union which opposed by management and "not ascertained" if neither union supported by management or if unclear; in injured workers or consumers vs management, against management; in other labor issues, for economic underdog if no civil rights issue is present; for support of person claiming denial of civil 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.
UNITED STATES of America, Plaintiff-Appellant, v. BOARD OF EDUCATION OF the GARFIELD HEIGHTS CITY SCHOOL DISTRICT and James A. Harper, Superintendent, Defendants-Appellees.
No. 77-3012.
United States Court of Appeals, Sixth Circuit.
Aug. 7, 1978.
Frederick M. Coleman, U. S. Atty., Cleveland, Ohio, Edward H. Levi, Atty. Gen. of U. S., Judith E. Wolf, Appellate Sect., Civil Rights Div., Dept. of Justice, Washington, D. C., for plaintiff-appellant.
John F. Lewis, John T. Meredith, Squire, Sanders & Dempsey, Cleveland, Ohio, for defendants-appellees.
ORDER
Before EDWARDS, ENGEL and MERRITT, Circuit Judges.
ORDER
The issue presented by this appeal is whether the Attorney General has the authority to bring pattern or practice equal employment suits under Title VII of the 1964 Civil Rights Act against public employers in the absence of a referral of the case by the Equal Employment Opportunity Commission to the Attorney General for the institution of suit.
Prior to the 1972 Civil Rights Act amendment, the Attorney General had independent authority to bring equal employment cases against private employers under Title VII of the 1964 Civil Rights Act without a referral from the EEOC. Prior to the 1972 amendments, neither the Attorney General nor the EEOC had authority over public employers. The 1972 Civil Rights Amendment transferred much of the Attorney General's authority under Title VII to the EEOC and conditioned the institution of pattern or practice cases against private employers on a referral from the EEOC. At the same time the 1972 amendments gave the EEOC investigatory and conciliation authority in connection with Title VII equal employment cases involving public or governmental employers.
The 1972 amendments are unclear and ambiguous with respect to the question whether the Attorney General obtained independent pattern or practice authority under Title VII against public employers while losing such authority in the case of private employers.
We conclude that this question of statutory interpretation should be resolved against the position of the Attorney General that he has independent pattern or practice authority against public employers in the absence of a referral from the EEOC for the reasons set out by District Judge Thomas in his Memorandum Opinion filed October 4, 1976, 435 F.Supp. 949 (1976) and for the reasons set out in the Opinion of the three judge District Court in the case of United States v. State of South Carolina, 445 F.Supp. 1094, 1110-11 (D.So.Car.1977). This conclusion is buttressed by the action of the Supreme Court in summarily affirming on appeal the decision of the three judge District Court in South Carolina, 434 U.S. 1026, 98 S.Ct. 756, 54 L.Ed.2d 775 (1978). While the question is not entirely free from doubt, we believe that the Supreme Court necessarily affirmed the conclusion of the three judge District Court in South Carolina that the Attorney General’s former independent pattern or practice authority under Title VII of the 1964 Civil Rights Act, including his new authority to bring such suits against public employers granted by the 1972 amendments thereto, did not survive the 1972 amendments and that referral by the EEOC to the Attorney General is necessary prior to the institution of such suits.
Accordingly, the judgment of the District Court is hereby affirmed.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_state
|
22
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined".
L. GILLARDE CO. v. JOSEPH MARTINELLI & CO., Inc.
No. 4322.
Circuit Court of Appeals, First Circuit
July 8, 1948.
For former opinion, see 168 F.2d 276.
Henry J. Stein, of Boston, Mass.,' and Harold S. Lansing and Blanksten & Lansing, all of Chicago, 111., for petitioner.
Silvio Martinelli and Emerson S. Searle, both of Springfield, Mass., for appellee.
William T. McCarthy, U. S. Atty., of Boston, Mass., J. Stephen Doyle, Jr., Sp. Asst, to Atty. Gen., and Neil Brooks, Acting Associate Sol., U. S. Department of Agriculture, and James E. Horton, Atty., U. S. Department of Agriculture, both of Washington, D. C., for the United States, amicus curiae.
Before MAHONEY, and WOODBURY, Circuit Judges and PETERS, District Judge.
MAHONEY, Circuit Judge.
The complainant has petitioned- for rehearing in regard to that part of our decision of May 17, 1948,1 Cir., 168 F.2d 276, in which we held that upon remand to t'he district court the respondent’s defense that the cantaloupes were not U. S. No. 1 when shipped might -be considered by way of recoupment of damages, and filed a brief -in support thereof. The United States, which has not previously participated in this case, has submitted a brief as ami-ciis curiae ■in support of the petition. The respondent in response to our -invitation filed a brief in opposition thereto. The only question is» as stated by the United States in its brief, does the buyer who rejects — even though he has no right to reject — an “acceptance” or “acceptance final” shipment have a right to-recover damages for a breach of the contract by the -shipper, assuming that there has been a breach for which damages could1 have been recovered if the shipment had been accepted? Both the United States and the -complainant urge that to allow recoupment of damages even though there has-been a wrongful rejection would defeat the policy of the Perishable Agricultural Commodities Act of 1930, 7 U.S.C.A. § 499a et seq. They contend that buyers would not be discouraged from rejecting if they knew that they would still be able to recoup damages in a suit against them for -the purchase-price. The United States points out that for a period of over ten years the Department of Agriculture has interpreted the regulations promulgated by the Department as not allowing recovery of damages where there has been a wrongful rejection. It states that our opinion in this case changes the principle under which the Department and the trade have operated for many years.
The Act was intended to prevent produce from becoming distress merchandise and to protect sellers who often were at a great distance from the buyer. In our original opinion we stated that even though the buyer should be allowed to recoup for the breach by the seller, the buyer would have to bear any loss resulting from its wrongful rejection. It appeared to us that the seller would be protected from any loss caused by rejection in this way. But it is now called to our attention that the Department of Agriculture, which administers the Act and which is familiar with the cxrils the Act was intended to prevent, believes that to allow a buyer who rejects wrongfully to recoup would drastically reduce, the effectiveness of the Act by removing much of the sanction against wrongful rejection. Upon consideration of the petition for rehearing and the briefs submitted, we think that since the Department has interpreted its regulation in a manner which it thinks necessary to carry out the purposes of the Act, and since the interpretation has been adhered to for over ten years, it should not be disregarded. Under these circumstances we hold that we should not substitute our interpretation merely because our original thought was that such a drastic interpretation is not needed to carry out the intent of the Act. The Department’s interpretation is not plainly erroneous; it is a possible and reasonable interpretation of the regulation, even if not the only possible one. We therefore think it should be followed, cf. Bowles v. Seminole Rock & Sand Co., 1945, 325 U.S. 410, 65 S.Ct. 1215, 89 L.Ed. 1700, and the opinion amended by striking out the two paragraphs preceding the final paragraph.
The judgment of this court entered May 17, 1948, is vacated; and the judgment of the district court of August 27, 1947, is vacated and the case is remanded to that court for the entry of judgment in accordance with the opinion of May 17, 1948, 168 F.2d 276, as hereby amended.
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_circuit
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
Ruth Halle ROWEN, Ethel F. Halle, and Edward Halle, Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
Nos. 22955-22957.
United States Court of Appeals, Second Circuit.
Argued May 12, 1954
Decided Sept. 9, 1954
Edward Halle, New York City, for - petitioners.
H. Brian Holland, Asst. Átty. Gen. (Ellis N. Slack, S. Dee Hanson, Special Assts. to' the Atty. Gen., of counsel), for respondent.
Before CHASE, Chief Judge, and HINCKS and HARLAN; Circuit Judges.
HINCKS, Circuit Judge.
This petition for review of a Tax Court decision, 18 T.C. 874, raises the question whether the receipt by named beneficiaries (the petitioners herein) of the proceeds of certain life insurance policies subjected them to liability enforceable against them as transferees under I.R.C. § 311, 26 U.S.C.A. § 311.
The facts of the case are as follows. Louis Halle of New York City, hereinafter referred to as the decedent, on and before January 20, 1930, took out four policies of life insurance upon his own life all of which were in force at the time of his death on January 4, 1949. The face amount of the policies was, in the aggregate, $42,000; at the time of the decedent’s death on January 4, 1949, the policies had, in the aggregate, a cash surrender value of $3,109.80. In effecting the policies the decedent named his wife as the beneficiary thereof, but reserved the right at all times to change the respective beneficiaries thereof. The reserved right to change the beneficiary was subsequently exercised only by substituting his son and daughter as beneficiaries as to part of the insurance effected. At his death, the wife and these children were under designation as the beneficiaries of all the policies, none of which had ever been made payable to the decedent or to his estate. At death, the decedent was grossly insolvent: his assets were of negligible value and he was subject to a tax liability of $401,-507.56 for federal income taxes for the years 1929 to 1938, inclusive, plus subsequently accrued interest and penalties. There was no evidence and no finding of insolvency as of any date prior to the decedent’s death: indeed, as to the years prior to 1939 the Tax Court expressly found that the Commissioner had failed to prove insolvency. And there was no evidence or finding that the decedent took out or maintained the policies with intent to hinder, delay or defraud his creditors, or that the premiums thereon were paid by the decedent rather than by his beneficiaries. Upon the decedent’s death the face amounts of the policies were paid to the beneficiaries designated therein, the petitioners before us, who then and at all times relevant were citizens of New York.
The Tax Court sustained the Commissioner in assessing against the petitioners, to the extent of the entire proceeds of the policies which they had received on the decedent’s death, the decedent’s income taxes for the years 1929 to 1938 and subsequently accrued interest and penalties thereon. The mere facts that the petitioners received the proceeds of the policies “upon the death” of the decedent, who died insolvent as above stated and who prior thereto “had a right to change the beneficiaries under the policies,” were held by the Tax Court to “contain the elements essential to transferee liability as provided for under section 311 of the Code.” 18 T.C. 874, 881.
In Phillips v. Commissioner, 283 U.S. 589, 51 S.Ct. 608, 610, 75 L.Ed 1289, it was held that the statutory provision, which is now Section 311 of the Internal Revenue Code, “provides the United States with a new remedy for enforcing the existing ‘liability, at law or in equity.’ The quoted words were employed in the statute to describe the kind of liability •to which the new remedy is to be applied and to define the extent of such liability.” It is thus authoritatively established that the statute created no substantive rights or liabilities: the only liabilities to be enforced thereunder are those existing at law or in equity when the enforcement proceeding is begun. The statute is merely an extension, as ^gainst a transferee, of the summary collection procedures theretofore available against the transferor-taxpayer.
In determining the validity of a collection sought under Section 311, it is necessary to remember that two questions are involved, viz., (1) is the respondent against whom the collection is attempted a “transferee” within the meaning of Section 311(a) (1) and Section 311(f); and (2) is the respondent, if a transferee, under a “liability, at' law or in equity,” for the debts — including unpaid income taxes — due and owing from his trans-feror? We suggest that this feature of the Section, which is so obvious from its language, is important to bear in mind. For we have noted more than one judicial opinion which discusses the question of a transferee’s liability as though only one question was involved, instead of two, with the result that necessary distinctions as to the applicable law became blurred.
We address ourselves to the first question. Section 311 is captioned “Transferred Assets” and provides a summary procedure for the enforcement of “the liability, at law or in equity, of a transferee of property of a taxpayer, * * Thus by its reference to the “assets” and to the “property of a taxpayer” the section is directed against those to whom assets or property which belonged to the decedent and which, but for transfer, could have been distrained in his hands, have been transferred to another. Perhaps without the additional definition contained in Section 311(f) “transferees” might have been limited to those who received property of a taxpayer directly from him. But by Paragraph (f) the definition of a transferee was broadened so that it “includes heir, legatee, devisee, and distributee”, thus clearly importing an intent that the new remedy provided by the Section extends to assets which once belonged to a taxpayer and passed on his death either directly* or indirectly through his estate to one included in the broadened definition. But in every case the remedy is limited to “property of a taxpayer”; that is to say, to property belonging to him in his lifetime.
In determining whether there has been such a transfer as will bring assets once belonging to a taxpayer within the reach of the remedy we must look to the federal tax law which created and defined the remedy. If under that law an asset is deemed to belong, or to have belonged, to a taxpayer in his lifetime, its transfer leaves it still within the possible reach of the Government for the summary collection of federal income taxes— as we held in Commissioner of Internal Revenue v. Western Union Tel. Co., 2 Cir., 141 F.2d 774. Otherwise, as to property which never belonged to the taxpayer, and hence did not become subject-matter of a transfer within the purview of Section 311.
Were the beneficiaries of the policies here involved “transferees” with respect to the proceeds of the policies? We think not. In no sense were the proceeds ever property of the decedent-taxpayer. Under the policy contracts the decedent never had a right to receive the proceeds. And since at his death the policies were not payable to his estate, the proceeds of the policies never passed to his estate and as to the proceeds the beneficiaries did not take as legatees or distributees of his estate. The opinion below contains no discussion which explains or supports its holding that the proceeds of the policies had ever constituted property of the decedent. Its holding that the petitioners are liable as transferees is tersely stated to rest on its own earlier decision in Christine D. Muller, 10 T.C. 678, and the cases of Pearlman v. Commissioner, 3 Cir., 153 F. 2d 560, and Kieferdorf v. Commissioner, 9 Cir., 142 F.2d 723, certiorari denied 323 U.S. 733, 65 S.Ct. 69, 89 L.Ed. 588, cited therein.
In the Muller case it appeared that a taxpayer had died leaving unpaid income taxes. At his death he was the insured under several life insurance policies in which his wife was named as beneficiary: as such, she had received the proceeds of the policies. The court said: “The petitioner gave no consideration for the assets of the decedent which she received.” That was of course so. But because “the distribution of these assets to her rendered the estate insolvent” the widow was held to be liable as a transferee of the assets distributed to her. With this, we cannot agree. What the widow received had never been property of the decedent-taxpayer. The proceeds which she received was property of the insurance companies which came to her as a third party beneficiary, — not as a “dis-tributee” or “transferee” within the purview of Section 311.
Nor did the Pearlman decision m 153 F.2d 560, necessarily support the Muller decision, as the Tax Court seems to have thought. For the Pearlman opinion, if read against the facts of the case as found in the underlying decision of the Tax Court, 4 T.C. 34, went no further than to hold that the beneficiaries of the policies there under discussion were transferees as to the cash surrender value of the policies.”
The Kieferdorf case, supra, which the Tax Court also cited in its Muller opinion, was one in which the insurance policies on the life of an insolvent decedent taxpayer were upon his death payable not, as here, to his widow and children, but to his estate. Of course the proceeds of such policies upon the death of the decedent vested in his estate and we fully agree that in that situation that the order of the Probate Judge transferring the proceeds to the widow as exempt property under California law operated as a transfer of assets of the estate with the result that the widow became a “dis-tributee” and hence a transferee under Section 311. But that holding does not control the situation existing either in the Muller case or the instant case in which the insurance proceeds never became an asset of decedent’s estate.
The appellee cites further Neely v. Commissioner (1949 P-H T.C. Memorandum Decisions, par. 49,188), and Sullivan v. Commissioner (1950 P-H T.C. Memorandum Decisions, par. 50,000). The Neely case follows Muller without discussion. The Sullivan case calls particular attention to Regulations 111, Sec. 29-311-1. The Regulation invoked follows verbatim the corresponding paragraph from Treasury Regulations 94 for the Act of 1936 which was sustained in the Kieferdorf case, supra. We agree with Kieferdorf [142 F.2d 725] that this regulation provided a “very broad interpretation” of the word “distributee” as used in Section 311. But it does not follow that even as interpreted the word is broad enough to include one as a transferee who received an asset which never belonged to the taxpayer. Without citation of authority or exposition of principle, the Tax Court assumed that the proceeds had been an asset of the decedent. Only the Tax Court, not Kie-ferdorf, pushed the interpretation to such lengths. Kieferdorf called attention to I.R.C. § 3797(b) which provides: “The terms ‘includes’ and ‘including’ when used in a definition contained in this title shall not be deemed to exclude other things otherwise within the meaning of the term defined.” And so, even if the Sullivan beneficiary could be deemed a “distributee,” she was not a “transferee” of the proceeds of the policies which never were “property of the taxpayer”. Since in Sullivan the proceeds were not payable to the decedent’s estate as in Kieferdorf, the Sullivan decision was not supported by Kieferdorf and, we think, was wrong.
The respondent refers to I.R.C. § 811(g) (2) whereby, solely for purposes of the Estate Tax imposed under Chapter 3 of Title 26, U.S. Code, it is provided that the amounts receivable by beneficiaries under life insurance policies “with respect to which the decedent possessed at his death any of the incidents of ownership” are to be included in the gross estate. Under this provision, as we held in Singer v. Shaughnessy, 2 Cir., 198 F.2d 178, the proceeds received by the petitioners here were to be included in the decedent’s gross estate with the result that the estate .tax was enforceable under I.R.C. § 900 against the beneficiaries, to the extent of the proceeds received, by virtue of the liability expressly created by I.R.C. § 827(b). But here the respondent seeks to enforce not an estate tax under Chapter 3 of the Code but an income tax debt under Chapter 1. He is invoking Section 311 which by its express terms is limited to the collection of income tax obligations imposed by Chapter 1. And Chapter 1 contains no provision in respect to income tax collection comparable to Section 827(b) of the Code which expressly imposes liability for the estate tax on a “beneficiary, who receives * * * property included in the gross estate under section [811(f)]”. The failure of section 311(f) to extend the definition of a transferee to include a “beneficiary” as was done by I.R.C. § 900 for purposes of estate tax collection, we think supports our holding that for purposes of income tax collection a beneficiary was not intended to be classed as a transferee as to the proceeds of a policy. It follows, as a necessary corollary, that all the cases involving liabilities for the estate tax, such as Chase National Bank v. United States, 278 U.S. 327, 49 S.Ct. 126, 73 L.Ed. 405, on which the respondent particularly relies, are not apposite to the problem here.
We conclude that none of the cases on which the respondent relies support the decision below except the line of Tax Court cases stemming from the Muller c-ase which, as we have shown, was apparently based upon a misconception of the Pearlman and Kieferdorf holdings and which, we think, was erroneous.
After the decision below the Court of Appeals for the Sixth Circuit reached a contrary result, Tyson v. C. I. R., 1954, 212 F.2d 16, and reversed the decision of the Tax Court there under review. With that decision we are in accord and hold that as to the proceeds of the policies the petitioners here were not “transferees” within the meaning of Section 311.
This brings us to the question whether the appellants were “transferees” as to the cash surrender value of the policies. This question, we think, requires an affirmative answer. It is true that since these policies were not payable to the decedent’s estate, no legal rights in the policies passed on the decedent’s death to his estate and the petitioners did not take as distributees of the estate, as in the Kieferdorf case, under Section 311(f). But, as we have already noted, that definitory provision was not stated as a complete definition: it merely enlarged the requirements of Section 311(a) (1). It is indisputable that the policies as to their cash surrender values were assets of the decedent in his lifetime. Since under the terms of the policies nothing passed on his death, it is not realistic to view his death as wiping out these values. Under the policies, his death was merely a condition upon which the surrender values no longer were payable to the decedent but became merged in the greater values which the insurers were obligated to pay the beneficiaries. Thus even though, as we held earlier in this opinion, the entire proceeds were never an asset belonging to the decedent, the proceeds to the extent of the cash surrender values which were included therein were property once belonging to the decedent in his lifetime and as to those values the beneficiaries were transferees.
It is true that our conclusion as to this point is not within the holding of Tyson v. C. I. R., supra, in which the policies involved were without cash surrender value. Nor is it within the Kieferdorf case, supra, in which the policies involved were payable to the decedent’s estate. But neither the language nor the reasoning of these cases is in conflict with our holding. And the result we reach is in accord with the holding in the Pearl-man case.
The conclusion just reached confronts us with the second question posed above. Granted that the appellants are transferees as to the cash surrender values of the policies, are they under “liability, at law or in equity” for their decedent’s unpaid income taxes? In determining this question we hold that the local state law governs. For neither by Section 311 nor by any other federal statute is the liability of such a transferee defined. Granted that Congress by specific legislation might have pre-empted the field, it has not chosen to do so. As a result, when Congress extended its general tax-collection procedure to the “liability” of a transferee it necessarily must have intended that the existence of liability should be determined by State law. Other than the State law, there is no source to which we may look for pertinent authority.
That was our express holding in Hatch v. Morosco Holding Co., 2 Cir., 50 F.2d 138, and Harwood v. Eaton, 2 Cir., 68 F. 2d 12. And our holding as to that point was neither modified nor overruled in our later decision in Commissioner of Internal Revenue v. Western Union Tel. Co., 2 Cir., 141 F.2d 774, as the court in the Third Circuit in the Pearlman case, supra, seemed to think. It is true that in the later case under the constraint of United States v. Joliet & Chicago R. Co., 315 U.S. 44, 62 S.Ct. 442, 86 L.Ed. 658, we overruled the holding in the Har-wood case that the stockholders of a lessor corporation who were entitled to receive, and did receive, periodic payments of rent directly from the lessee of all the corporate assets were not transferees of the lessor. But in overruling that holding we did not recede from the holding of our earlier decisions that the existence and extent of a transferee’s liability is to be determined by local law. We held that the stockholders were transferees under the federal tax laws and that, as transferees, they were liable because under the local law and under the facts of that case the tax debtor when insolvent had made a fraudulent conveyance to its stockholders of income constructively received by it under federal tax law.
Our holding that the liability is governed by State law in accord with Liquidators of Exchange National Bank of Shreveport v. United States, 5 Cir., 65 F. 2d 316; Botz v. Helvering, 8 Cir., 134 F.2d 538; Tyson v. C. I. R., 6 Cir., 1954, supra. We doubt that C. I. R. v. Keller, 7 Cir., 59 F.2d 499, is to the contrary. For there the real ruling seems to have been that under the State law the respondents were not transferees, and for that reason were not under liability. The preference of the Pearlman case, supra, [153 F.2d 563] for determination of the question of liability by “general law as declared by federal courts,” is one we do not share or even understand. For we know of no “general law as declared by federal courts” which defines the liability of a transferee, other than the line of Tax Court cases, above referred to, which we think were erroneously decided.
We turn therefore to consider the relevant law of New York which was the State of domicile both of the decedent and his petitioner-beneficiaries. Amongst those relevant provisions of the Insurance Law, Article 7, § 166, which we set forth in the margin, the first paragraph provides that both an original beneficiary and a substituted beneficiary or assignee of a life insurance policy shall be entitled to its proceeds and avails against the creditors and representatives of the insured and of the person effecting the same, whether or not the right to change the beneficiary is reserved or permitted.
But Paragraph 4 of Section 166 (see foot-note 8) excepts from Paragraph 1 cases of “actual intent to hinder, * and by its express provision applies only to substituted beneficiaries, or assignees, i. e., those who take by “assignment or change of beneficiary”. Here the wife was an original, not a substituted, beneficiary. Under the Insurance Law she was entitled to the proceeds which she received as against general creditors because she was not at all within the scope of paragraph 4. We will assume, argu-endo, that the children, who had been substituted as beneficiaries as to part of the wife’s original expectancy, were within the general scope of paragraph 4. Even so, under the Insurance Law as against general creditors they were entitled to the proceeds because, for lack of a finding that their substitution as beneficiaries had been made “with actual intent to hinder, * * they were not within the exception.
From this it follows that if Section 166, paragraphs 1 and 4, of the Insurance Law is applicable to the United States, as well as to private creditors, its provisions are such that the United States has no claim even as to the cash surrender values of the policies. We turn therefore to consider whether paragraph 1 of the Insurance Law is applicable to the rights of the United States.
The resolution of this question depends upon the nature of the provisions of the New York Insurance Law set forth above. We think that Paragraph 1 of Article 7, Section 166, in which this case falls, is dispositive in that it states a rule of substantive law. It declares a substantive right of the beneficiary to the proceeds and his non-liability to creditors. This paragraph was enacted into law as Section 55-a of the Insurance Law and was entitled as follows; “An Act to amend the insurance law, in relation to the rights of creditors and beneficiaries under policies of life insurance”. Chapter 468, Laws of 1927, New York State. We think that a reading of the second paragraph of Section 166 will further fortify our conclusion that the first paragraph is not an exemption provision. The second paragraph is an express exemption provision while the first paragraph, which is applicable here, states that the beneficiary shall be free from liability as to the creditors of the deceased-insured. In this the instant case is distinguished from the Kieferdorf case which held that a state statute exempting property from execution is not effective to circumscribe the tax collecting powers of the federal government. Hence, under our view of. Section 55-a the respondent herein can only recover on a showing of actual fraud.
If, contrary to the view just expressed, the Insurance Law of New York is ineffective to protect the beneficiaries from this tax-collection effort by the Federal Government, we reach no different result. In that case, the liability of the transferees must be determined from the Debtor and Creditor Law of New York. Under this law, the rights of creditors to reach property transferred by a debtor without fair consideration depend upon the debtor’s insolvency at the time the conveyance was made, which is defined as the time when some payment or transfer by the debtor was made. In Central Nat. Bank of Washington v. Hume, 128 U.S. 195, 9 S.Ct. 41, 32 L.Ed 370, the Supreme Court, although there not particularly concerned with New York law, recognized the payment of premiums as fixing the date of the transfer. We think it implicit in the New York cases declarative of that law that a “transfer” under an insurance policy payable to one other than the insured or his estate occurs when the first premium is paid or when after an assignment or change of beneficiary the first premium is thereafter paid thereon. There is no evidence that the decedent was insolvent when the policies were “effected” by the payment of the first premiums, or indeed at the time of payment of the subsequent premiums. It follows, we think, that independent of the Insurance Law of New York, the beneficiaries were under no liability to creditors, including the Government, for the cash surrender values. It also follows from the same reasoning and authority that even if, contrary to our holding in the first section of this opinion, the proceeds could be held to have once been “property” of the decedent with the result that the petitioners became transferees thereof within Section 311, the petitioners were under liability for the proceeds no more than for the cash surrender values, because of lack of proof that the decedent was insolvent when the transfer as above defined were made.
The petitioners also contended that the assessment of transferee liability in this case is barred by applicable statutes of limitation; and that, assuming that transferee liability exists, the petitioner Ethel F. Halle should be credited with her advancement of the expenses of funeral and last illness. The conclusions expressed above make it unnecessary to decide these points.
Judgment reversed.
. Section 311, I.R.C., 26 U.S.C.A. § 311, in so far as here pertinent, reads as follows:
“§ 311. Transferred assets ■
“(a) Method of collection. The amounts of the following liabilities shall, except as hereinafter in this section provided, be assessed, collected, and paid in the same manner and subject to the same provisions and limitations as in the case of a deficiency in a tax imposed by this chapter (including the provisions in case of delinquency in payment after notice and demand, the provisions authorizing distraint and proceedings in court for collection, and the provisions prohibiting claims and suit for refunds):
“(1) Transferees. — The liability, at law or in equity, of a transferee of property of a taxpayer, in respect of the tax (including interest, additional amounts, and additions to the tax provided by law) imposed upon the taxpayer by this chapter.
******
“(f) Definition of ‘transferee.’ — As used in this section the term ‘transferee’ includes heir, legatee, devisee, and dis-tributee.”
. Here, as elsewhere, in this opinion, emphasis unless otherwise indicated is supplied.
. This inherent limitation of Section 311 is not affected by Treasury Regulations 111 which, in so far as pertinent, reads as follows:
“Sec. 29.311-1. Claims in Cases of Transferred Assets. — * * * The term “transferee” as used in this section includes an heir, legatee, devisee, distribu-tee of an estate of a deceased person, the shareholder of a dissolved corporation, the assignee or donee of an insolvent person, the successor of a corporation, a party to a reorganization * * * and all other classes of distributees. * * *»
. The Tax Court, in its Pearlman opinion 4 T.C. 34, discussed ten insurance policies listed serially. See 4 T.C. at page 40 of its opinion. Of these, Nos. 1, 2, 3, 4 and 9 were policies all taken out prior to the insolvency of the insured in which his wife was named as beneficiary subject to a right reserved to the insured to change the beneficiary. On Nos. 4 and 9 the wife at all times remained the beneficiary and on Nos. 1, 2 and 3, issued in 1907 and 1916, the wife was the designated beneficiary until the death of the insured in 1941 except for a two-day period in 1932 and two brief periods in 1933, as the Tax Court noted in 4 T.C. on page 47 of its opinion. As to these five policies, the Tax Court overruled the Commissioner’s contention that “the assignments of the policies, — i.e., the changes of beneficiaries to the petitioner (the wife) or to the insurance companies for her benefit — were in fraud of creditors, including the Government.” In so ruling it necessarily held that as to these five policies the widow was not a transferee, and the same ruling should, we think, have been made in the instant ease. Only as to the other five policies in which the insured’s executor, administrator and assigns have been designated as the beneficiaries and under which trustees for the insured’s wife had been substituted as beneficiaries at a time when the insured was insolvent, did the Tax Court rule that the beneficiaries were transferees. From this decision, only the widow petitioned for review. Consequently the opinion of the Court of Appeals, 153 F.2d 560, did not touch the holding below that the beneficiary was not a transferee as to policies 1, 2, 3, 4 and 9. And in the appellate opinion it was not said that the beneficiaries under policies 5, 6, 7, 8 and 10 were transferees as to the full proceeds of the policies: nothing was said to explain how the beneficiaries could be transferees as to property never belonging to the decedent. Under the facts of that case, those policies had, in the aggregate, a cash surrender value of $51,-541, 4 T.C. at page 40, which was more than enough to satisfy the decedent’s unpaid tax liability of $25,713.57. 4 T.C. at page 38. Thus on the facts the result reached by the appellate decision may be attributed to a holding that the beneficiaries were transferees only as to the cash surrender value of the policies. Thus limited, the holding does not support the T.C. decision in Muller or in the instant case. With the holding thus understood, we are in agreement as wifi appear later in the text of this opinion.
. See footnote 3, supra.
. I.R.C. § 827(b), 26 U.S.C.A. § 827(b), in so far as here pertinent, reads as follows:
“(b) Liability of transferee, etc. If the tax herein imposed is not paid when due, then the spouse, transferee, trustee, surviving tenant, person in possession of the property by reason of the exercise, nonexercise, or release of a power of appointment, or beneficiary, who receives, or has on the date of the decedent’s death, property included in the gross estate under section 811(b), (c), (d), (e), (f), or (g), to the extent of the value, at the time of the decedent’s death, of such property, shall be personally liable for such tax.”
. See footnote 4, supra.
. Article 7, § 166 of the New York Insurance Law provides the following:
“1. If any policy of insurance has been or shall be effected by any person on his own life in favor of a third person beneficiary, or made payable, by assignment, change of beneficiary or otherwise, to a third person, such third person beneficiary, assignee or payee shall be entitled to the proceeds and avails of such policy as against the creditors, personal representatives, trustees in bankruptcy and receivers in state and federal courts of the person effecting the insurance. If any policy of insurance has been or shall be effected by any person upon the life of another person in favor of the person effecting the same or made payable, by assignment, change of beneficiary or otherwise, to such person, the latter shall be entitled to the proceeds and avails of such policy as against the creditors, personal representatives, trustees in bankruptcy and receivers in state and federal courts of the person insured; if the person effecting such insurance shall be the wife of the insured, she shall be entitled to the proceeds and avails of such policy as against her own creditors, trustees in bankruptcy and receivers in state and federal courts. If any policy of insurance has been or shall be effected by any person on the life of another person in favor of a third person beneficiary, or made payable, by assignment, change of beneficiary or otherwise, to a third person, such third person beneficiary, assignee or payee shall be entitled to the proceeds and avails of such policy as against the creditors, personal representatives, trustees in bankruptcy and receivers in state and federal courts of the person insured and of the person effecting the insurance. * * * The provisions of this section shall be applicable whether or not the right is reserved in any such policy to change the beneficiary therein designated, and whether or not the policy is made payable to the person whose life is insured if the beneficiary, assignee or payee shall predecease such person; and no person shall be compelled to exercise any rights, powers, options or privileges under such policy.
“2. No money or other benefits payable or allowable under any policy of insurance against disability arising from accidental injury or bodily infirmity or ailment of the person insured, shall be liable to execution for the purpose of satisfying any debt or liability of the insured, whether incurred before or after the commencement of the disability, except as provided in subsection four * * *.”
“4. Every assignment or change of beneficiary, or other transfer, shall be valid, except in cases of transfer with actual intent to hinder, delay or defraud creditors, as such actual intent is defined by article ten of the debtor and creditor law; in case of transfer with such actual intent, creditors shall have all the remedies provided by said article ten. Where a policy of insurance, theretofore payable to the estate of the insured, is, by assignment, change of beneficiary or otherwise, made payable to a third person beneficiary, such assignment, change of beneficiary or other transfer shall be valid, unless made with such actual intent. Subject to the statute of limitations, the amount of premiums or other consideration paid with actual intent to defraud creditors as provided in said article ten, together with interest on such amount, shall enure to the benefit of creditors from the proceeds of the policy or contract * * McKinney’s Consolidated Laws of New York, Book 27, c. 28, Part 1, Insurance Law.
. The second paragraph of Section 166 was enacted into law as Section 55-b of the New York Insurance Law and was entitled as follows: “Exemption of disability insurance from execution.” Chapter 626, Laws of 1934, New York State. It i» probably due to this paragraph that the editors of McKinney label the entire Section 166 as an “Exemption” statute. See paragraph 2, footnote 8, supra.
. See Levine v. Grey, 271 App.Div. 891, 67 N.Y.S.2d 87; In re Yaeger, D.C.W.D.N.Y., 21 F.Supp. 324.
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_r_natpr
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
ESCHER v. COMMISSIONER OF INTERNAL REVENUE.
No. 5682.
Circuit Court of Appeals, Third Circuit.
June 25, 1935.
Arthur Mattson, of New York City, for petitioner.
Thomas A. Carpenter, Sp. Asst, to Atty. Gen., Frank J. Wideman, Asst. Atty. Gen., and Sewall Key, Sp. Asst, to Atty. Gen., for respondent.
Before BUFFINGTON, WOOLLEY, and THOMPSON, Circuit Judges.
BUFFINGTON, Circuit Judge.
The facts in this case, which are undisputed, are as follows: For some three years prior to May 12, 1921, the taxpayer was the attorney for the International Food Products Company, a Swiss corporation. Before the outbreak of hostilities between this country and Germany, that company owned some 6,250 shares of the stock of Heinrich Franck Sons, Inc., a New York corporation. The stock was seized by the Alien Property Custodian on the alleged ground that it was the property of Carl, Robert, Richard, and Walter Franck, and it was sold by the Alien Property Custodian for approximately $500,000. About May 27, 1921, the International Company filed a claim for these funds, which was denied. It thereupon brought suit therefor and it was eventually adjudged that the International Company, and not the alleged German owners, owned the stock. At that time the taxpayer decided that the services he had rendered in connection with the recovery of the funds had a value of $25,000, of which amount he had actually received $1,000 from the International Company. On that date he entered into a written contract with the company by which he agreed to accept, in lieu of his said claim to payment for past services rendered and as compensation for services to' be rendered, 10 per cent, of the amount received from the sale of the stock. The claim against the Alien Property Custodian resulted in a judgment in 1929, and from the proceeds thereof the taxpayer was paid the sum of $74,355.39. The books of the taxpayer were kept on a cash receipts and disbursements basis. The Commissioner determined he was taxable on the entire amount received by him in 1929 as ordinary net income and found a deficiency for that year in the amount of $7,168.30, which finding was upheld by the Board of Tax Appeals, and thereupon the taxpayer took this present appeal.
After argument and due consideration had, we are of opinion the present case is in line with our holding in Freeman v. United States, 71 F.(2d) 969, and that the Board committed no error in approving the holding of the Commissioner. In view of the full discussion by the Board of the authorities and principles involved, we limit ourselves to approving the Board’s holding and affirming its decision.
Question: What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_othcrim
|
E
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule for the defendant on grounds other than procedural grounds? For example, right to speedy trial, double jeopardy, confrontation, retroactivity, self defense." This includes the question of whether the defendant waived the right to raise some claim. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
A. W. LAFFERTY and Richard L. Merrick, Appellants, v. George M. HUMPHREY, Secretary of the Treasury, et al., and Benton County, Corvallis, Oregon, et al., Appellees.
No. 13353.
United States Court of Appeals District of Columbia Circuit.
Argued Feb. 18, 1957.
Decided June 13, 1957.
Writ of Certiorari Denied Nov. 12, 1957.
See 78 S.Ct. 118.
Messrs. A. W. Lafferty, Portland, Or., Byron N. Scott, Washington, D. C., and Donald C. Walker, Portland, Or., of the bar of the Supreme Court of Oregon, pro hac vice, by special leave of Court, for appellants.
Mr. Paul R. Connolly, for appellee Benton County, Corvallis, Oregon, and certain other appellees. Mr. Harold S. Harrison, Attorney, Department of Justice, with whom Mr. Roger P. Marquis, Attorney, Department of Justice, was on the brief, for appellee George M. Humphrey, Secretary of the Treasury, and certain other appellees.
Before Edgerton, Chief Judge, and Prettyman and Wilbur K. Miller, Circuit Judges.
PRETTYMAN, Circuit Judge.
This is a suit for a class-action attorney fee. It is another step in a long controversy which began in acts of Congress in 1860-1870. The facts are recited in some detail in our opinion in Clackamas County, Or., v. McKay. They need not be repeated here.
In our opinion and decision in that case we held that acts of Congress in 1916 and 1937 imposed upon the various executive officials involved a mandatory duty to distribute to the Oregon counties the money accumulated in the special fund designated “The Oregon and California land-grant fund”. We ordered a remand for proceedings in accordance with that view. That was on April 30, 1954.
A petition for rehearing was filed, and on June 24, 1954, while the petition was pending, Congress passed an act which, inter alia, directed that the funds theretofore derived from the lands and placed in the special fund “shall be disposed of in accordance with the provisions of title II of the Act approved August 28, 1937 (50 Stat. 874) as hereby amended”.
In the presentation to the Congress of the bill which became the act, it was made abundantly clear that the decision of this court had settled the question of the status of the disputed lands but that the court did not attempt to decide the question of jurisdiction for management purposes as between the Department of the Interior and the Department of Agriculture. The distribution of the funds depended upon the former question; if the lands were “O & C” lands the funds belonged in part to the counties, no matter what Department had management of them. The act did not purport to change the court’s decision. It effected exactly what the court ordered, distribution of the funds pursuant to the 1937 act, and it decided the dispute as to management, a matter concerning which the court had said nothing.
The legislative history of the 1954 act clearly shows the intention behind it. Senator Cordon, who sponsored the bill, told the Senate:
“Mr. President, the purpose of the bill is to determine legislatively a jurisdictional question which has existed between the Department of Agriculture and the Department of the Interior for many, many years. * * *
-X- * -X- * * *
“The question of the character and class of the lands reached the courts in 1925, in a suit brought by the Government against the railroad company for an accounting in connection with the revestment and the reciprocal obligation of the Government and the company. In that case the determination of the Court was that the 472,000 acres were revested O. & C. grant lands.
“However, the Court did not attempt to make any determination with respect to the administration of the 472,000 acres in question. That issue was not properly before the Court. There is a series of decisions with respect to the legal status of the lands. The latest decision was rendered only a couple of weeks ago— on April 30, 1954 — in the United States Circuit Court of Appeals for the District of Columbia. All decisions have been uniform with respect to the law and its applicability to these lands.
“However, there has remained the question of jurisdiction for management purposes. * * *
* * * * * *
“Because of the fact that there is a distribution of funds from the O. & C. Railroad lands to local governmental units much greater than the distribution to local units in the case of Forest Service lands, the question of the legal character of the 472,000 acres is of great importance to the people of Oregon. The courts have determined that question. * *
“This bill meets the overall situation by providing that the 472,000 controverted acres are declared to be revested O. & C. lands. This is precisely what the Court declared them to be.
******
“Thus, the bill, S. 2225, takes care of both the administrative question and the jurisdictional one as far as the 472,000 acres are concerned.” (Emphasis supplied.)
When the bill reached the floor of the House the following colloquy occurred:
“Mr. Wickersham. Mr. Speaker, reserving the right to object, and I make this reservation at the request of two of our former colleagues, I would like to ask the gentleman from Oregon [Mr. Ellsworth] a question. This measure is a followup and confirms a decision of the District of Columbia Circuit of the United States Court of Appeals on April 30, 1954, in which action A. W. Lafferty, a former Member of Congress, represented Clackamos [sic\ County, Oreg., and others and won the decision. Is this correct?
“Mr. Ellsworth. That is correct.
«•**«•**
“Mr. Wickersham. Is it a fact that this bill confirms the decision of the court of appeals which directed the payment of $7 million or $8 million to 18 Oregon counties, including Clackamos [sic] County, all of which 18 counties thereby benefiting by the action instituted by A. W. Lafferty, as attorney, and benefited from the said court decision? This is correct, is it not?
“Mr. Ellsworth. That is correct.”
On October 21, 1954, the petition for rehearing was denied in this court, and our mandate issued. We noted that as of that time no statement had been made that the Secretaries had distributed the funds.
On February 17,1955, the Government applied to the Supreme Court for a writ of certiorari, saying that the Secretary of Agriculture had by that time, pursuant to the new act, transferred the funds to the Secretary of the Interior and he in turn had distributed to the counties the parts of the accumulated funds due them, retaining a substantial sum on account of the present proceeding. The Government officials now stand neutral in the matter.
On April 18, 1955, the Supreme Court granted certiorari, vacated our judgment, and remanded the case with directions to dismiss as moot.
Our present appellants, Lafferty and Merrick, are the lawyers who conducted the lawsuit above discussed. They filed an action for attorney fees, naming the Secretaries defendants, as stakeholders of the fund, and the Oregon counties as the debtor defendants. The defendant counties, with the exception of Clackamas County, moved for summary judgment on two grounds: (1) that these lawyers’ efforts to bring about a distribution of the funds had been unsuccessful and (2) that the lawyers had not been retained by movants. The District Court granted the motion.
Two questions are before us. The first is whether the lawsuit conducted by these appellant lawyers resulted in benefit to the counties. To say that it did not result in such a benefit seems to us little more than a play on words. Many efforts had been made prior to 1954 to persuade Congress to settle the controversy specifically and to direct the payment of the funds to the counties. None had succeeded. As the Congressional Record shows, when the bill came before Congress in 1954 the members were told specifically and emphatically that this court had settled the legal character of the lands, and in the House they were told that the bill “confirms” the decision of this court. The act finally adopted directed payment pursuant to the 1937 statute, which is what this court had ordered.
If we thought Congress intended to divest a court decree of effectiveness after it had been validly rendered by a court of competent jurisdiction, we would have a serious question as to the validity of the congressional act. But clearly Congress had no such intention. Quite the contrary, it accepted the court decision as settling the controversy as to the nature of the lands and went on from there to prescribe the future management.
To say that the action was unsuccessful because pending certiorari the Government paid over the money which was the sole subject of the litigation, seems to us to be another play on words. A party does not nullify a court order by complying with it.
Thus we are of clear opinion that the lawyers who conducted the litigation performed services which were of value and achieved substantial benefits for the counties.
Upon the second point, that only Clackamas County engaged these lawyers, Sprague v. Ticonic Nat. Bank is dispositive. In the case at bar there was a definite, earmarked fund. The litigation resulted in a substantial benefit to all the counties. They all participated in the distribution. The complaint was brought by Clackamas County on behalf of itself and the other counties.
It was said by the Government in its petition for certiorari in the Supreme Court in 1955 that the amendment of the 1937 act contained in the 1954 act resulted in “different payments to the counties under the 1954 Act than under the provisions of the 1937 Act.” The amendment may have resulted in different payments to the respective counties, but it in no way affected, even by a penny, the total amount payable to ■all the counties. The lawsuit was to determine whether the whole sum was payable to all the counties. What portion each county would get was not involved. The service rendered by these attorneys was in respect to the whole fund as payable to all of the counties. The formula for distribution among the several counties had nothing to do with their services.
The judgment of the District Court will be reversed and the case remanded for the determination of the proper amounts of fees to be paid these appellant lawyers from the fund retained in the hands of the Government.
Reversed and remanded.
. 94 U.S.App.D.C. 108, 219 F.2d 479 (1954).
. 39 Stat. 218.
. 50 Stat. 874, 43 U.S.C.A. § 1181a et seq.
. 68 Stat. 270, 43 U.S.C.A. § 1181&
. 100 Cong.Rec. 6886 (1954).
. 100 Cong.Rec. 7969 (1954).
. 349 U.S. 909, 75 S.Ct 599, 99 L.Ed. 1244.
. 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184 (1939).
Question: Did the court rule for the defendant on grounds other than procedural grounds? For example, right to speedy trial, double jeopardy, confrontation, retroactivity, self defense. This includes the question of whether the defendant waived the right to raise some claim.
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
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songer_casetyp1_2-3-2
|
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 "civil rights - voting rights, race discrimination, sex discrimination".
Dorothy WILLNER, Plaintiff-Appellant, v. UNIVERSITY OF KANSAS, Defendant-Appellee.
No. 86-2678.
United States Court of Appeals, Tenth Circuit.
June 1, 1988.
Dorothy Willner, pro se.
Rose Marino, Associate Gen. Counsel, University of Kansas, Lawrence, Kan., J. Steven Pigg, Fisher, Patterson, Sayler & Smith, Topeka, Kan., Clifford T. Mueller and Douglas M. Greenwald, McAnany, Van Cleave & Phillips, Lenexa, Kan., for defendant-appellee.
Before WRIGHT, ALARCON and HALL, Circuit Judges.
Honorable Eugene A. Wright, Honorable Arthur L. Alarcon, and Honorable Cynthia Holcomb Hall, Circuit Judges, United States Court of Appeals for the Ninth Circuit, sitting by designation.
PER CURIAM.
Dorothy Willner appeals from the judgment for the defendants after a bench trial in this sex discrimination action. She makes the following contentions on appeal.
(1) The district judge erred in refusing to recuse himself from presiding over the case.
(2) The district court erred when it dismissed her claims against the individual defendants prior to trial because of her failure to comply with an order compelling her to answer interrogatories.
(3) The district court’s factual findings were clearly erroneous.
I
PERTINENT FACTS
Dorothy Willner, a professor of anthropology at the University of Kansas, filed this action naming as defendants the University of Kansas and twelve individuals who either were or had been University Chancellor, Dean of the College of Liberal Arts and Sciences, anthropology department chairpersons, or professors in the anthropology department (collectively individual defendants). She alleged the defendants had denied her equal pay, verbally abused her, harassed her, caused her to lose a Fulbright research grant, falsely evaluated her with regard to salary increases, deliberately failed to display a book that she had written, and slandered her to students, faculty, and others. She claimed the defendants discriminated against her because she is female and Jewish. She sought relief pursuant to 42 U.S.C. §§ 1981, 1983, 1985, 1986, 1988; Title VII, 42 U.S.C. § 2000e et seq.; the Equal Pay Act (EPA), 29 U.S.C. § 206(d); Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq.; and the first, fifth, and fourteenth amendments.
Willner’s attorney was granted leave to withdraw shortly after the complaint was filed. Willner appeared pro se throughout the course of the lawsuit. During pretrial proceedings, all of Dorothy Willner’s claims were dismissed, except for the Title VII and the EPA claims against the University of Kansas. In May 1986, a bench trial was held on the remaining claims. The district court entered judgment for the University of Kansas. Willner appeals from the judgment.
II
PROPRIETY OF RECUSAL ISSUES
Dorothy Willner moved for the recusal of Judge Richard D. Rogers on several grounds at various stages of the proceedings. She claims that recusal was warranted on the following grounds:
1. Judge Rogers’ demeanor in a separate sex discrimination action filed against the University of Kansas by her sister suggested bias against all similarly situated females.
2. Judge Rogers had made statements evincing a bias against women employees who filed actions against the University of Kansas.
3. Judge Rogers failed to disclose that he was related to a former defense attorney in these proceedings.
4. Judge Rogers denied her motion for an extension of time and dismissed the claims against the individual defendants because she was Jewish.
5. Judge Rogers refused to grant her a protective order to delay her deposition.
6. Judge Rogers was a director of the alumni association of the University of Kansas when she filed her complaint with the Equal Employment Opportunity Commission (EEOC).
7. Judge Rogers was aware that there was an appearance of bias because he inquired of Myra Hinman, in a separate proceeding against the University of Kansas, whether she felt he would be biased because of his close association with the University of Kansas Alumni Association.
8. Judge Rogers was the president of the Board of Governors of the law school of the University of Kansas during the pendency of this action.
9. Judge Rogers permitted her attorney to withdraw on improper grounds.
10. Judge Rogers refused to strike alleged “defamatory remarks” from her attorney’s notice of withdrawal.
The denial of a motion to recuse is reviewed for abuse of discretion. Weatherhead, v. Globe International, Inc., 832 F.2d 1226, 1227 (10th Cir.1987). The district court did not abuse its discretion because the recusal motions (1) failed to allege sufficient facts, (2) involved adverse rulings, or (3) were untimely.
A. Adequacy of Factual Allegations
On October 11, 1983, Dorothy Willner filed a motion to recuse Judge Rogers pursuant to 28 U.S.C. §§ 455(a) and 455(b)(1) (1982). She alleged, inter alia, that:
Plaintiff pro se Dorothy Willner observed Judge Rogers’ demeanor towards plaintiff pro se Ann Ruth Willner on June 8, 1983 when plaintiff pro se Ann Ruth Willner appeared before the Court. Having formed the distinct impression of personal prejudice of the Court toward plaintiff pro se Ann Ruth Willner, plaintiff pro se Dorothy Willner asks the Court to consider most carefully whether it has exhibited the full consideration due their own behalf.
This allegation was unsupported by an affidavit or declaration.
Section 455(a) requires that “[a]ny justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Section 455(b)(1) provides that a judge must disqualify himself when “he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.”
An unsubstantiated suggestion of personal bias or prejudice is insufficient to mandate recusal under section 455(a). United States v. Hines, 696 F.2d 722, 729 (10th Cir.1982). The motion fails to state any facts concerning Judge Rogers’ demeanor that would “cause a reasonable man to doubt the judge’s impartiality.” Id. Under such circumstances recusal is not mandated under section 455(a). Id.
The October 11, 1983 motion is also insufficient to meet the requirements of section 455(b)(1). No facts were alleged that demonstrate actual bias against Dorothy Willner.
In the same motion, Dorothy Willner also alleges:
Plaintiff has been informed that Judge Rogers was heard to make the following statement in reference to cases of sex discrimination being filed by female employees of defendant University of Kansas: “Those women over there! If they don’t get the high-paying jobs they want, they holler discrimination.”
This allegation is also unaccompanied by a supporting affidavit or declaration stating the source of the hearsay statement or when and where it was made. In Hines, this court concluded that a recusal motion that “fail[ed] to state with reasonable particularity when, where, and to whom the statement was made” did not meet the requirements of a section 455 motion. Id. at 729. Dorothy Willner has failed to allege facts showing actual bias. A reasonable person would not doubt a judge’s impartiality on the basis of a hearsay statement from an undisclosed informer of unknown reliability. Id.
In a motion filed on February 7, 1986, Dorothy Willner alleged that an attorney who had appeared for the individual defendants in this action, prior to his withdrawal, was related to Judge Rogers. No evidence was offered by Dorothy Willner to support this allegation. Judge Rogers denied that he was related to any attorney who had appeared in the case. In Hinman v. Rogers, 831 F.2d 937, 939-40 (10th Cir.1987) this court stated that a judge had a duty not to recuse himself on unsupported speculation.
B. Attempted Recusal Based on Adverse Rulings
Some of Dorothy Willner’s challenges to Judge Rogers’ rulings denying her motions for recusal are based on adverse rulings of the court. On January 7, 1985, she filed a motion for recusal under 28 U.S.C. § 144 (1982). This motion was supported by an affidavit. The affidavit alleges that Judge Rogers denied her motion for reconsideration of his order granting her ten additional days to comply with a discovery order because he is personally biased against her because she is Jewish. The affidavit further states that on September 19, 1984, Judge Rogers ordered her to submit answers to five interrogatories within ten days, notwithstanding the fact that she had notified the court on September 12, 1984 that the Jewish High Holy Days of Rosh Hashanah and Yom Kippur and the Sabbath in between “were approaching.” On September 21, 1984, after the court had previously granted her up to ten days to comply with the discovery order, Dorothy Willner informed the court that this religious celebration would commence on September 26, 1984.
The affidavit contained no facts that would support an inference that Judge Rogers was personally biased against Dorothy Willner because she is Jewish or for any other reason in ordering compliance with the discovery order.
Dorothy Willner was served with interrogatories on February 17, 1983. She was required to respond or object within 30 days. Fed.R.Civ.P. 33(a). She did not respond until June 30, 1983.
On August 18, 1983, the defendants moved to compel more complete and direct answers. Dorothy Willner opposed the motion on the ground that she had supplied sufficiently detailed answers. On March 5, 1984, a magistrate ordered her to supplement her answers before March 30, 1984. She failed to comply with this order.
On August 10, 1984, the individual defendants who had requested the answers to the interrogatories moved for dismissal of Willner’s claims against them pursuant to Fed.R.Civ.P. 37(b)(2)(C). Rule 37(b)(2)(C) permits the court to dismiss an action when a plaintiff fails to comply with a discovery order.
On September 12, 1984, Willner claimed that certain circumstances, not of her own doing, led to her failure to supply the supplemental answers. In addition, Willner argued that she had already given complete answers to her questions in her deposition. She also informed the court, as set forth above, that the religious holidays would occur later that month. The district court held a hearing on the motion to dismiss on September 18, 1984.
Instead of granting the motion to dismiss, Judge Rogers sua sponte ordered her to provide supplemental answers within ten days. The court also advised her that failure to comply would result in dismissal. These facts demonstrate that the district court exercised considerable and commendable patience in the face of Dorothy Willner’s failure to comply with the March 5, 1984 order to supplement her answers. In challenging the propriety of the order compelling further answers, Dorothy Willner argues that the information sought by the defendants is contained within her deposition. Assuming that this representation is accurate, Dorothy Willner had ample time to comply with the court’s order prior to the commencement of her religious observances. Indeed, she expended her energies during the ten-day period filing a further motion to delay compliance with the court’s order.
The allegation that Judge Rogers is personally biased against Dorothy Willner is unsupported by any facts. The court order granting her additional time to comply with discovery was well within the court’s discretion. Moreover, a motion to recuse cannot be based solely on adverse rulings. See Hamm v. Members of the Board of Regents, 708 F.2d 647, 651 (11th Cir.1983) (motion to recuse pursuant to sections 455 and 144); United States v. Bray, 546 F.2d 851, 857 (10th Cir.1976) (motion to recuse pursuant to section 144). Under the circumstances shown by this record, the district court did not abuse its discretion in denying the motion for recusal pursuant to section 144.
C. Untimeliness
On several occasions, Dorothy Willner requested that Judge Rogers recuse himself on the ground that his participation in the University of Kansas alumni activities demonstrated actual bias or would cause a reasonable person to question his impartiality.
Dorothy Willner has failed to present any facts that would support an inference that Judge Rogers was actually biased against her as the result of his leadership position in the University of Kansas’ alumni affairs. The law of this circuit does not require recusal on the basis of mere speculation that such activities would cause him to harbor prejudice against her. Hinman, 831 F.2d at 939-40.
A motion to recuse under section 455(a) must be timely filed. See Singer v. Wadman, 745 F.2d 606, 608 (10th Cir.1984) (motion to recuse under both 28 U.S.C. §§ 144 and 455(a) was untimely) cert. denied, 470 U.S. 1028, 105 S.Ct. 1396, 84 L.Ed.2d 785 (1985); see also Oglala Sioux Tribe v. Homestake Mining Co., 722 F.2d 1407, 1414 (8th Cir.1983) (section 455(a) has a timeliness requirement); United States v. Slay, 714 F.2d 1093, 1094 (11th Cir.1983) (same), cert. denied, 464 U.S. 1050, 104 S.Ct. 729, 79 L.Ed.2d 189 (1984); Chitimacha Tribe v. Harry L. Laws Co., 690 F.2d 1157, 1164 n. 3 (5th Cir.1982) (same), cert. denied, 464 U.S. 814, 104 S.Ct. 69, 78 L.Ed. 2d 83 (1983); In re International Business Machines Corp., 618 F.2d 923, 932 (2d Cir.1980) (same).
In the instant matter, the complaint was filed on December 1, 1982. The first motion to recuse based on Judge Rogers’ alumni activities was not filed until October 11, 1983. Discovery would have been completed by this time except for Dorothy Winner’s recalcitrance in ignoring the defendants’ requests for more complete answers to their interrogatories. Granting a motion to recuse many months after an action has been filed wastes judicial resources and encourages manipulation of the judicial process. See International Business Machines Corp., 618 F.2d at 933 (imposition of a timeliness requirement in considering re-cusal motions is necessary to prevent waste of judicial resources). The motion to recuse based on Judge Rogers’ alumni activities was untimely.
Dorothy Willner’s contention that Judge Rogers asked Myra Hinman whether she felt he would be biased because of his participation in alumni activities must also fail because of untimeliness. We note that in Hinman, another panel of this court concluded that the allegations in Myra Hinman’s recusal requests did not support a motion for recusal under section 144 or section 455. 831 F.2d at 939-40.
Equally untimely is Dorothy Willner’s February 7, 1986 motion to recuse Judge Rogers because he was President of the Board of Governors of the University of Kansas Law School. This information was known to Dorothy Willner for at least one year prior to the filing of this motion. She relied upon the same facts in her petition for a writ of mandamus filed in this court on February 11, 1985.
In the February 7, 1986 recusal motion, Dorothy Willner also alleged that the district judge should recuse himself for permitting an attorney to withdraw on “spurious grounds” and for refusing to strike his alleged defamatory remarks from his withdrawal petitions. These adverse orders were rendered approximately three years prior to the recusal motion. These grounds for recusal are clearly untimely.
Ill
VALIDITY OF THE ORDER COMPELLING FURTHER DISCOVERY
Dorothy Willner argues that the district court committed reversible error in ordering her to provide more complete answers to the defendants’ interrogatories. We disagree.
A district court’s ruling on a motion to compel discovery is reviewed for abuse of discretion. Naugle v. O’Connell, 833 F.2d 1391, 1397 (10th Cir.1987).
Willner argues that the district court abused its discretion because it violated the spirit of the 1983 amendment to Fed.R.Civ.P. 26 which encourages judicial control over excessive use of discovery. She contends that the answers to defendants’ interrogatories are contained within her deposition and, thus, compelling her to answer the interrogatories is an excessive use of discovery. Dorothy Willner’s deposition contained over 1500 pages. Counsel for the defendants persuaded the district court that it would be unfair to compel their law clerks to search through this voluminous transcript to find the answer to five questions. Furthermore, she was served with the interrogatories and the motion to compel further answers before her deposition was taken in July 1984. Under these circumstances, the district court did not abuse its discretion in ordering her to supplement her answers to five interrogatories.
Dorothy Willner also complains that the district court abused its discretion in denying her September 24, 1986 motion for ten-day extension to supplement her answers. The district court acted well within its discretion. The defendants moved to compel more complete answers on August 18, 1983. Dorothy Willner was first ordered to supplement her answers on March 5, 1984. She failed to comply with this order. She did not offer any explanation for her defiance of the court’s order until the defendants moved to dismiss the action on August 10, 1984. Thus, Dorothy Willner had notice for more than one year prior to September 19, 1984 that the defendants were seeking a further response to their interrogatories. She also defied a court order to supplement her answers without explanation for over six additional months. Under these circumstances, the district court did not abuse its discretion in refusing to permit her to delay further the prosecution of this action.
IV
VALIDITY OF THE SANCTION OF DISMISSAL
The district court dismissed the action against the individual defendants because of Dorothy Willner’s failure to comply with the discovery order of the court. As discussed above, on September 19,1984, when the district court allowed Dorothy Willner up to ten days to comply with the March 5, 1984 order compelling further answers to the interrogatories, she was warned that “[f]ailure to comply with this order will result in the dismissal of the actions against the individual defendants.” She failed to comply. On October 15,1984, the district court dismissed the claims against the individual defendants. The court found that she had over six months to submit supplemental answers as ordered on March 5, 1984 but willfully failed to do so in the face of the court’s warning that dismissal would occur if she did not comply within ten days of September 19, 1984.
If a party fails to provide discovery, the court may dismiss the action. Fed.R.Civ.P. 37(b)(2)(C). This court reviews an order of dismissal for failure to provide discovery for abuse of discretion. Mertsching v. United States, 704 F.2d 505, 506 (10th Cir.), cert. denied, 464 U.S. 829, 104 S.Ct. 105, 78 L.Ed.2d 108 (1983).
We have reviewed the record. It demonstrates willful disregard of the court’s orders. The district court’s finding that Dorothy Willner’s actions constitute “a willful failure to cooperate in the discovery process” was not clearly erroneous.
Dorothy Willner asserts that the refusal to grant her additional time to answer the interrogatories because of the Jewish High Holy Days violated her rights under the First Amendment. The district court’s September 19, 1984 order did not violate her constitutional rights. She was given up to ten days to comply with the court’s order. She was free to budget her time to complete her responsibility to the court in less than the maximum allotted time and before September 26, 1984, the first day of her religious observance.
V
SUFFICIENCY OF THE EVIDENCE
Willner contends that the district court’s findings of fact are not supported by the evidence presented at trial.
A district court’s findings of facts may be overturned on appeal only if they are clearly erroneous. Fed.R.Civ.P. 52(a); Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985); Carino v. Univ. of Oklahoma Bd. of Regents, 750 F.2d 815, 820 (10th Cir.1984). A finding is clearly erroneous only if “ ‘the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ ” Anderson, 470 U.S. at 573, 105 S.Ct. at 1511 (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 541, 92 L.Ed. 746 (1948)). This court cannot reverse a district court simply because we might have decided the case differently. Id. “If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Id. 470 U.S. at 573-74, 105 S.Ct. at 1511. The Supreme Court has urged deference to the district court’s findings whether those findings are based on credibility determinations, documentary evidence, or both. Id. at 574-75, 105 S.Ct. at 1512.
Willner contends that the district court relied heavily on a letter, dated March 5, 1972, to the Dean of the College at the University of Kansas from Robert Squier, Chairman of the Anthropology Department, addressing Willner’s early claims of discrimination and retaliation. Willner argues, however, that it was clearly erroneous for the court to rely on the explanations and information in the letter because it provided false and misleading information in the form of a table with salary information for the anthropology department. Willner claims that the table inaccurately represents the percentage increase in salaries among the anthropology professors. In support of her argument, Willner compared the salary information in the table with that provided by the defendants at trial that contained the official budget data of the University of Kansas, including professors’ salaries.
Willner’s comparison is flawed. The table attached to Squier’s letter listed the percentage increases in salary that the anthropology department recommended for each of its professors. The information contained in the official budget data was the actual percentage salary increases. The anthropology department’s function was to recommend a salary increase to the University of Kansas. The University of Kansas administration made the final decisions. Thus, Willner’s claim that Squier’s letter contained false and misleading information is incorrect.
Willner also argues that there was no merit system at the University of Kansas. The district court’s finding that there was a valid merit system is supported by the testimony produced at trial. Documentary evidence was presented, including evaluation forms used by the faculty committee, faculty handouts explaining the merit system, and minutes from faculty meetings where the system was discussed.
Third, Willner contends that the evidence shows that she was discriminated against because she did not receive equal pay, although she performed comparable work. The district court’s findings that she did not receive equal pay because she was not contributing to the department and was not cooperating with the evaluation process were amply supported by testimony and documentary evidence. This proof included letters written by Willner in which she refused to submit necessary information to the anthropology department’s salary committee.
The district court found that salary increases in the anthropology department were determined by evaluation on the basis of merit. This finding is amply supported by the testimony of former and present chairpersons. Originally, the department chairperson was responsible for evaluating the faculty and recommending their salary increases to the Dean of the College of Liberal Arts and Sciences, but beginning in 1977, that job was delegated to a committee made up of three members of the department. The faculty selected the members and voted on the procedures by which the committee would arrive at its recommendations. The record shows that, before the change in evaluation procedure, faculty members were judged on the basis of quality of their instruction, their research, and service, not on the basis of rank or seniority-
The district court also made extensive findings as to the scores and the salary increases that Professor Willner received from the chairperson or the committee in various years. These findings were supported by the testimony at trial, and court exhibits. The court found that Professors White, Johnson and Schott testified that Professor Willner failed to submit the materials needed for proper evaluation, or submitted them late and to the wrong person, and that during several years she received no increase because of her failure to cooperate. This evidence supports the court’s determination that Professor Willner’s salary increases were dictated by the fair application of the merit evaluation system and were not the result of sex discrimination.
The district court also found that the University of Kansas and its employees did not retaliate against Professor Willner because she filed charges with the EEOC and the district court. The court found that Professor Willner’s interpersonal problems in the department were a result of her abusive and arrogant manner. The district court also heard testimony regarding Willner’s unwillingness to sit on committees, or to submit her course schedules on time. Other witnesses testified concerning her abusive behavior and threats she made to her colleagues. This testimony revealed and the district court concluded that, if anything, Willner received favorable treatment from the University of Kansas over the years in an effort to placate her.
The thoroughness of the district court’s findings and extensive discussion of the evidence demonstrates that the court carefully considered the entire record. Each of the court’s findings is supported by evidence in the record. After reviewing the evidence, we are not left with a “definite and firm conviction that a mistake has been committed.” Id. at 573, 105 S.Ct. at 1511. Accordingly, the judgment is AFFIRMED.
Question: What is the specific issue in the case within the general category of "civil rights - voting rights, race discrimination, sex discrimination"?
A. voting rights - reapportionment & districting
B. participation rights - rights of candidates or groups to fully participate in the political process; access to ballot
C. voting rights - other (includes race discrimination in voting)
D. desegregation of schools
E. other desegregation
F. employment race discrimination - alleged by minority
G. other race discrimination - alleged by minority
H. employment: race discrimination - alleged by caucasin (or opposition to affirmative action plan which benefits minority)
I. other reverse race discrimination claims
J. employment: sex discrimination - alleged by woman
K. pregnancy discrimination
L. other sex discrimination - alleged by woman
M. employment: sex discrimination - alleged by man (or opposition to affirmative action plan which benefits women)
N. other sex discrimination - alleged by man
O. suits raising 42 USC 1983 claims based on race or sex discrimination
Answer:
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sc_caseorigin
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070
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York.
DEVLIN v. SCARDELLETTI et al.
No. 01-417.
Argued March 26, 2002
Decided June 10, 2002
O’Connor, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, Souter, Ginsburg, and Breyer, JJ., joined. Scalia, J., filed a dissenting opinion, in which Kennedy and Thomas, JJ., joined, post, p. 15.
Thomas C. Goldstein argued the cause for petitioner. With him on the briefs were Erik S. Jaffe and Brian Wolfman.
Laurence Gold argued the cause for respondents. With him on the brief were Andrew D. Roth, David L. Shapiro, William F. Hanrahan, and Kenneth M. Johnson.
Patricia A. Millett argued the cause for the United States et al. as amici curiae urging affirmance. On the brief were Solicitor General Olson, Assistant Attorney General Mc-Callum, Deputy Solicitor General Kneedler, Gregory G. Garre, Marleigh D. Dover, Irene M. Solet, David M. Becker, Jacob H. Stillman, and Eric Summergrad
Briefs of amici curiae urging reversal were filed for the Council of Institutional Investors by Mark C. Hansen and Neil M. Gorsuch; and for Charles C. Yeomans by Katherine K. Yunker.
Seth P. Waxman, Edward C. DuMont, and Christopher R. Lipsett filed a brief for Citibank (South Dakota), N. A., as amicus curiae urging affirmance.
Thaddeus Holt filed a brief for Charles L. Grimes et al. as amici curiae.
Justice O’Connor
delivered the opinion of the Court.
Petitioner, a nonnamed member of a class certified under Federal Rule of Civil Procedure 23(b)(1), sought to appeal the approval of a settlement over objections he stated at the fairness hearing. The Court of Appeals for the Fourth Circuit held that he lacked the power to bring such an appeal because he was not a named class representative and because he had not successfully moved to intervene in the litigation. We now reverse.
I
Petitioner Robert Devlin, a retired worker represented by the Transportation Communications International Union (Union), participates in a defined benefits pension plan (Plan) administered by the Union. In 1991, on the recommendation of the Plan’s trustees, the Plan was amended to add a cost of living adjustment (COLA) for retired and active employees. As it turned out, however, the Plan was not able to support such a large benefits increase. To address this problem, the Plan’s new trustees sought to freeze the COLA. Because they were concerned about incurring Employee Retirement Income Security Act of 1974 (ERISA) liability by eliminating the COLA for retired workers, see 29 U. S. C. § 1054(g)(1) (1994 ed.) (providing that accrued benefits “may not be decreased by an amendment of the plan”), the trustees froze the COLA only as to active employees. Because the Plan still lacked sufficient funds, the new trustees obtained an equitable decree from the United States District Court for the District of Maryland in 1995 declaring that the former trustees had breached their fiduciary duties and that ending the COLA for retired workers would not violate ERISA. Scardelletti v. Bobo, 897 F. Supp. 913 (Md. 1995); Scardelletti v. Bobo, No. JFM-95-52 (D. Md., Sept. 8, 1997). Accordingly, in a 1997 amendment, the new trustees eliminated the COLA for all Plan members.
In October 1997, those trustees filed the present class action in the United States District Court for the District of Maryland, seeking a declaratory judgment that the 1997 amendment was binding on all Plan members or, alternatively, that the 1991 COLA amendment was void. Originally, petitioner was proposed as a class representative for a subclass of retired workers because of his previous involvement in the issue. He refused to become a named representative, however, preferring to bring a separate action in the United States District Court for the Southern District of New York, arguing, among other things, that the 1997 Plan amendment violated the Age Discrimination in Employment Act of 1967,81 Stat. 602, as amended, 29 U. S. C. § 621 et seq. (1994 ed. and Supp. V). The New York District Court dismissed petitioner’s claim involving the 1997 amendment, which was later affirmed by the Second Circuit because:
“The exact COLA issue that the appellants are pursuing ... is being addressed by the district court in Maryland. ... It seems eminently sensible that the Maryland district court should resolve fully the COLA amendment issue.” Devlin v. Transportation Communications Int’l Union, 175 F. 3d 121, 132 (CA2 1999).
At the time petitioner’s claim was dismissed, the District Court in Maryland had already conditionally certified a class under Federal Rule of Civil Procedure 23(b)(1), dividing it into two subclasses: a subclass of active employees and a subclass of retirees. On April 20, 1999, petitioner’s attorney sent a letter to the District Court informally seeking to intervene in the class action. On May 12,1999, petitioner sent another letter repeating this request. He did not, however, formally move to intervene at that time.
Also in May, the Plan’s trustees and the class representatives agreed on a settlement whereby the COLA benefits would be eliminated in exchange for the addition of other benefits. On August 27,1999, the trustees filed a motion for preliminary approval of the settlement. On September 10, 1999, petitioner formally moved to intervene pursuant to Federal Rule of Civil Procedure 24. On November 12,1999, the District Court denied petitioner’s intervention motion as “absolutely untimely.” Scardelletti v. Debarr, 265 F. 3d 195, 201 (CA4 2001). It then heard objections to the settlement, including those advanced by petitioner, and, concluding that the settlement was fair, approved it. App. C to Pet. for Cert. 1-3.
Shortly thereafter, petitioner noted his appeal, challenging the District Court’s dismissal of his intervention motion as well as its decision to approve the settlement. The Court of Appeals for the Fourth Circuit affirmed the District Court’s denial of intervention under an abuse of discretion standard. 265 F. 3d, at 203-204. It further held that, because petitioner was not a named representative of the class and because he had been properly denied the right to intervene, he lacked standing to challenge the fairness of the settlement on appeal. Id., at 208-210.
Petitioner sought review of the Fourth Circuit’s holding that he lacked the ability to appeal the District Court’s approval of the settlement. We granted certiorari, 534 U. S. 1064 (2001), to resolve a disagreement among the Circuits as to whether nonnamed class members who fail to properly intervene may bring an appeal of the approval of a settlement. Compare Cook v. Powell Buick, Inc., 155 F. 3d 758, 761 (CA5 1998) (holding that nonnamed class members who have not successfully intervened may not appeal, settlement approval); Gottlieb v. Wiles, 11 F. 3d 1004, 1008-1009 (CA10 1993) (same); Guthrie v. Evans, 815 F. 2d 626, 628-629 (CA11 1987) (same); Shults v. Champion Int’l Corp., 35 F. 3d 1056, 1061 (CA6 1994) (same), with In re PaineWebber Inc. Ltd. Partnerships Litigation, 94 F. 3d 49, 53 (CA2 1996) (any non-named class member who objected at the fairness hearing may appeal); Carlough v. Amchem Prods., Inc., 5 F. 3d 707, 710 (CA3 1993) (same); Marshall v. Holiday Magic, Inc., 550 F. 2d 1173, 1176 (CA9 1977) (same).
II
Although the Fourth Circuit framed the issue as one of standing, 265 F. 3d, at 204, we begin by clarifying that this issue does not implicate the jurisdiction of the courts under Article III of the Constitution. As a member of the retiree class, petitioner has an interest in the settlement that creates a “case or controversy” sufficient to satisfy the constitutional requirements of injury, causation, and redressability. Lujan v. Defenders of Wildlife, 504 U. S. 555 (1992); see also In re Navigant Consulting, Inc., Securities Litigation, 275 F. 3d 616, 620 (CA7 2001).
Nor do appeals by nonnamed class members raise the sorts of concerns that are ordinarily addressed as a matter of prudential standing. Prudential standing requirements include:
“[T]he general prohibition on a litigant’s raising another person’s legal rights, the rule barring adjudication of generalized grievances more appropriately addressed in the representative branches, and the requirement that a plaintiff’s complaint fall within the zone of interests protected by the law invoked.” Allen v. Wright, 468 U. S. 737, 751 (1984).
Because petitioner is a member of the class bound by the judgment, there is no question that he satisfies these three requirements. The legal rights he seeks to raise are his own, he belongs to a discrete class of interested parties, and his complaint clearly falls within the zone of interests of the requirement that a settlement be fair to all class members. Fed. Rule Civ. Proc. 23(e).
What is at issue, instead, is whether petitioner should be considered a “party” for the purposes of appealing the approval of the settlement. We have held that “only parties to a lawsuit, or those, that properly become parties, may appeal an adverse judgment.” Marino v. Ortiz, 484 U. S. 301, 304 (1988) (per curiam). Respondents argue that, because petitioner is not a named class representative and did not successfully move to intervene, he is not a party for the purposes of taking an appeal.
We have never, however, restricted the right to appeal to named parties to the litigation. In Blossom v. Milwaukee & Chicago R. Co., 1 Wall. 655 (1864), for instance, we allowed a bidder for property at a foreclosure sale, who was not a named party in the foreclosure action, to appeal the refusal of a request he made during that action to compel the sale. In Hinckley v. Gilman, C., & S. R. Co., 94 U. S. 467 (1877), we allowed a receiver, who was an officer of the court rather than a named party to the case, to appeal from an order “relating] to the settlement of his accounts,” reasoning that “[f]or this purpose he occupies the position of a party to the suit.” Id., at 469. More recently, we have affirmed that “[t]he right of a nonparty to appeal an adjudication of contempt cannot be questioned,” United States Catholic Conference v. Abortion Rights Mobilization, Inc., 487 U. S. 72, 76 (1988), given the binding nature of that adjudication upon the interested nonparty.
Justice Scalia attempts to distinguish these cases by characterizing them as appeals from collateral orders to which the appellants “were parties.” Post, at 16 (dissenting opinion). But it is difficult to see how they were parties in the sense in which Justice Scalia uses the term — those “ ‘named as a party to an action,’ ” usually “ ‘in the caption of the summons or complaint.’” Post, at 15 (quoting Restatement (Second) of Judgments §34(1), p. 345 (1980); id., Comment a, Reporter’s Note, at 347). Because they were not named in the action, the appellants in these cases were parties only in the sense that they were bound by the order from which they were seeking to appeal.
Petitioner’s interest in the District Court’s approval of the settlement is similar. Petitioner objected to the settlement at the District Court’s fairness hearing, as nonnamed parties have been consistently allowed to do under the Federal Rules of Civil Procedure. See Fed. Rule Civ. Proc. 23(e) (“A class action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs”); see also 2 H. Newberg & A. Conte, Class Actions § 11.55, p. 11-132 (3d ed. 1992) (explaining that Rule 23(e) entitles all class members to an opportunity to object). The District Court’s approval of the settlement — which binds petitioner as a member of the class — amounted to a “final decision of [petitioner’s] right or claim” sufficient to trigger his right to appeal. See Williams v. Morgan, 111 U. S. 684, 699 (1884) (describing the cases discussed above). And like the appellants in the prior cases, petitioner will only be allowed to appeal that aspect of the District Court’s order that affects him — the District Court’s decision to disregard his objections. Cf. supra, at 6. Petitioner’s right to appeal this aspect of the District Court’s decision cannot be effectively accomplished through the named class representative — once the named parties reach a settlement that is approved over petitioner’s objections, petitioner’s interests by definition diverge from those of the class representative.
Marino v. Ortiz, supra, is not to the contrary. In that case, we refused to allow an appeal of a settlement by a group of white police officers who were not members of the class of minority officers that had brought a racial discrimination claim against the New York Police Department. Although the settlement affected them, the District Court’s decision did not finally dispose of any right or claim they might have had because they were not members of the class.
Nor does considering nonnamed class members parties for the purposes of bringing an appeal conflict with any other aspect of class action procedure. In a related case, the Seventh Circuit has argued that nonnamed class members cannot be considered parties for the purposes of bringing an appeal because they are not considered parties for the purposes of the complete diversity requirement in suits under 28 U. S. C. § 1332. See Navigant Consulting, 275 F. 3d, at 619; see also Snyder v. Harris, 394 U. S. 332, 340 (1969). According to the Seventh Circuit, “[e]lass members cannot have it both ways, being non-parties (so that more cases can come to federal court) but still having a party’s ability to litigate independently.” 275 F. 3d, at 619. Nonnamed class members, however, may be parties for some purposes and not for others. The label “party” does not indicate an absolute characteristic, but rather a conclusion about the applicability of various procedural rules that may differ based on context.
Nonnamed class members are, for instance, parties in the sense that the filing of an action on behalf of the class tolls a statute of limitations against them. See American Pipe & Constr. Co. v. Utah, 414 U. S. 538 (1974). Otherwise, all class members would be forced to intervene to preserve their claims, and one of the major goals of class action litigation— to simplify litigation involving a large number of class members with similar claims — would be defeated. The rule that nonnamed class members cannot defeat complete diversity is likewise justified by the goals of class action litigation. Ease of administration of class actions would .be compromised by having to consider the citizenship of all class members, many of whom may even be unknown, in determining jurisdiction. See 7A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 1755, pp. 68-64 (2d ed. 1986). Perhaps more importantly, considering all class members for these purposes would destroy diversity in almost all class actions. Nonnamed class members are, therefore, not parties in that respect.
What is most important to this case is that nonnamed class members are parties to the proceedings in the sense of being bound by the settlement. It is this feature of class action litigation that requires that class members be allowed to appeal the approval of a settlement when they have objected at the fairness hearing. To hold otherwise would deprive nonnamed class members of the power to preserve their own interests in a settlement that will ultimately bind them, despite their expressed objections before the trial court. Particularly in light of the fact that petitioner had no ability to opt out of the settlement, see Fed. Rule Civ. Proc. 23(b)(1), appealing the approval of the settlement is petitioner’s only means of protecting himself from being bound by a disposition of his rights he finds unacceptable and that a reviewing court might find legally inadequate.
Justice . Scalia rightly notes that other nonnamed parties may be bound by a court’s decision, in particular, those in privity with the named party. See post, at 18. True enough. It is not at all clear, however, that such parties may not themselves appeal. Although this Court has never addressed the issue, nonnamed parties in privity with a named party are often allowed by other courts to appeal from the order that affects them. 5 Am. Jur. 2d, Appellate Review §265 (1995).
Respondents argue that, nonetheless, appeals from non-named parties should not be allowed because they would undermine one of the goals of class action litigation, namely, preventing multiple suits. See Guthrie v. Evans, 815 F. 2d, at 629 (arguing that allowing nonnamed class members’ appeals would undermine a “fundamental purpose of the class action”: “to render manageable litigation that involves numerous members of a homogenous class, who would all otherwise have access to the court through individual lawsuits”). Allowing such appeals, however, will not be as problematic as respondents claim. For one thing, the power to appeal is limited to those nonnamed class members who have objected during the fairness hearing. This limits the class of potential appellants considerably. As the longstanding practice of allowing nonnamed class members to object at the fairness hearing demonstrates, the burden of considering the claims of this subset of class members is not onerous.
III
The Government, as amicus curiae, admits that nonnamed class members are parties who may appeal the approval of a settlement, but urges us nonetheless to require class members to intervene for-purposes of . appeal. See Brief for United States et al. as Amici Curiae 12-27. To address the fairness concerns to objecting nonnamed class members bound by the settlement they wish to appeal, however, the Government also asserts that such a limited purpose intervention generally should be available to all those, like petitioner, whose objections at the fairness hearing have been disregarded. Federal Rule of Civil Procedure 24(a)(2) provides for intervention as of right:
“Upon timely application . .. when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.”
According to the Government, nonnamed class members who state objections at the fairness hearing should easily meet these three criteria. For one thing, it claims, a settlement binding on them will establish the requisite interest in the action. Moreover, it argues, any intervention motion filed “within the time period in which the named plaintiffs could have taken an appeal” should be considered “timely filed” for the purposes of such limited intervention. United Airlines, Inc. v. McDonald, 432 U. S. 385, 396 (1977). Finally, it asserts, the approval of a settlement over a nonnamed class member’s objection, and the failure of a class representative to appeal such an approval, should “invariably” show that the class representative does not adequately represent the nonnamed class member’s interests on appeal. Brief for United States et al. as Amici Curiae 20.
Given the ease with which nonnamed class members who have objected at the fairness hearing could intervene for purposes of appeal, however, it is difficult to see the value of the Government’s suggested requirement. It identifies only a limited number of instances where the initial intervention motion would be of any use: where the objector is not actually a member of the settlement class or is otherwise not entitled to relief from the settlement, where an objector seeks to appeal even though his objection was successful, where the objection at the fairness hearing was untimely, or where there is a need to consolidate duplicative appeals from class members. Id., at 23-25. In such situations, the Government argues, a district court can disallow such problematic and unnecessary appeals.
This seems to us, however, of limited benefit. In the first two of these situations, the objector stands to gain nothing by appeal, so it is unlikely such situations will arise with any frequency. JUSTICE Scalia argues that if such objectors were undeterred by this fact at the time they filed their original objections, they will be undeterred at the appellate level. See post, at 21-22. This misunderstands the point. As to the first group — those who are not actually entitled to relief-one would not expect them to have filed objections in the district court in the first place. The few irrational persons who wish to pursue one round of meaningless relief will, we agree, probably be irrational enough to pursue a second. But there should not be many of such persons in any case. As for the second — those whose objections were successful at the district court level — they were far from irrational in the filing of their initial objections, and they should not generally be expected to lose this level of sensibility when faced with the prospect of a meaningless appeal. Moreover, even if such cases did arise with any frequency, such concerns could be addressed by a standing inquiry at the appellate level.
The third situation — dealing with untimely objections— implicates basic concerns about waiver and should be easily addressable by a court of appeals. A court of appeals also has the ability to avoid the fourth by consolidating cases raising duplicative appeals. Fed. Rule App. Proc. 3(b)(2). If the resolution of any of these issues should turn out to be complex in a given case, there is little to be gained by requiring a district court to consider these issues, which are the type of issues (standing to appeal, waiver of objections below, and consolidation of appeals) typically addressed only by an appellate court. As such determinations still would most likely lead to an appeal, such a requirement would only add an additional layer of complexity before the appeal of the settlement approval may finally be heard.
Nor do we agree with the Government that, regardless of the desirability of an intervention requirement for effective class management, the structure of the rules of class action procedure requires intervention for the purposes of appeal. According to the Government, intervention is the method contemplated under the rules for nonnamed class members to gain the right to participate in class action proceedings. We disagree. Just as class action procedure allows non-named class members to object to a settlement at the fairness hearing without first intervening, see supra, at 8-9, it should similarly allow them to appeal the District Court’s decision to disregard their objections. Moreover, no federal statute or procedural rule directly addresses the question of who may appeal from approval of class action settlements, while the right to appeal from an action that finally disposes of one’s rights has a statutory basis. 28 U. S. C. § 1291.
>
We hold that nonnamed class members like petitioner who have objected in a timely manner to approval of the settlement at the fairness hearing have the power to bring an appeal without first intervening. We therefore reverse the judgment of the Court of Appeals for the Fourth Circuit and remand the case for further proceedings consistent with this opinion.
It is so ordered.
Question: What is the court in which the case originated?
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204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
212. United States Supreme Court
Answer:
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songer_usc1sect
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1865
|
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 28. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
Abraham M. KATZ, Defendant, Appellant, v. UNITED STATES of America, Appellee. Harry A. KATZ, Defendant, Appellant, v. UNITED STATES of America, Appellee. Samuel KATZ, Defendant, Appellant, v. UNITED STATES of America, Appellee. Max KATZ, Defendant, Appellant, v. UNITED STATES of America, Appellee.
Nos. 6082-6085.
United States Court of Appeals First Circuit.
July 12, 1963.
Certiorari Denied Nov. 12, 1963.
See 84 S.Ct. 193.
Manuel Katz, Boston, Mass., with whom Paul T. Smith, Boston, Mass., was on brief, for appellants.
Paul J. Redmond, Asst. U. S. Atty., with whom W. Arthur Garrity, Jr., U. S. Atty., and Daniel B. Bickford, William F. Looney, Jr., and John J. Curtin, Jr., Asst. U. S. Attys., were on brief, for appellee.
Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.
ALDRICH, Circuit Judge.
These are appeals by four defendants, convicted at a joint trial on a total of twelve counts for attempting to evade income taxes by filing false and fraudulent personal returns for one or more of the years 1955 to 1958. The defendants, three brothers and a brother-in-law, were the officers, directors and stockholders of State Line Potato Chip Company, Inc. Defendant Max Katz, the principal and managing officer of the company, will hereinafter be referred to as Max, and the rest, collectively, as the other defendants. The other defendants sought trial separately from Max, alleging that their cases were essentially different, and, further, that they would be prejudiced by certain extrajudicial admissions allegedly made by Max and con-cededly not binding upon them. On the government’s representation that “basically the evidence would be the same” against all four (it did not deny individual differences, or that Max had made personal admissions) the court refused to sever. It added, “[I]f at the end I find there has been prejudice, I won’t hesitate to act.” Thereafter the court did, in fact, act. Initially there had been included four counts against Max for causing falsification of the corporate returns. After the trial began, apparently feeling that in that matter the basic evidence was different, with Max’s permission the court granted a mistrial on those counts and postponed them to a later date. It took no subsequent action with respect to separating the other counts, nor was it asked to. The mere fact that all the evidence is not admissible against all defendants does not necessitate separate trials. Opper v. United States, 1954, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101; Ma-latkofski v. United States, 1 Cir., 1950, 179 F.2d 905. Having read the full record we are well satisfied that it was appropriate to try the remaining cases together.
The defendants moved to quash the indictment, and to strike the petit jury panel, because of the manner of drawing the grand and petit juries. One of their grounds we have since disposed of in Gorin v. United States, 1 Cir., 1963, 313 F.2d 641, cert. den. 374 U.S. 829, 83 S.Ct. 1870, 10 L.Ed.2d 1052. The other is an alleged discrimination in that no jurors were drawn from that part of the district which lies west of Worcester County. 28 U.S.C.A. § 1865(a) provides,
“(a) Grand and petit jurors shall from time to time be selected from such parts of the district as the court directs so as to be most favorable to an impartial trial, and not to incur unnecessary expense or unduly burden the citizens of any part of the district with jury service. To this end the court may direct the maintenance of separate jury boxes for some or all of the places for holding court in the district and may appoint a jury commissioner for each such place.”
The clerk stated in open court that when the court was sitting in Boston it was standard procedure not to call jurors from west of Worcester County. We take judicial notice that this has been so for many years. In the light of this statute there can certainly be no abuse in not calling jurors who live over 60 miles from the courthouse. The defendants’ point is groundless. United States v. Gottfried, 2 Cir., 1948, 165 F.2d 360, cert. den., 333 U.S. 860, 68 S.Ct. 738, 92 L.Ed. 1139.
Prior to trial the defendants moved for the suppression of a certain “black book” and the “fruits thereof.” The court properly found, on adequate testimony, that this book was a corporate record, and had been taken by the government after it had been tendered to the agent by Max (albeit that Max misrepresented its content, causing the tender to be initially refused) and that no constitutional rights had been infringed. The point pressed on this appeal, except for arguments based upon testimony properly discredited by the district court, is that subsequently, at the trial, the revenue agent testified that he had not stated his exact purpose when asking for the book. We will assume, without deciding, that this testimony may be related back to the motion. Even so, the present contention is both late and specious. It is too late because even when the motion was reargued to the district court the point was not made. It is specious because even if it be assumed that to request a document by stating that it is wanted for one reason when another reason is the one primarily in mind may be a misrepresentation, there is no evidence that Max was misled. Analysis, not necessary to articulate, indicates that he could not have been.
Coming to the merits, there are only two substantial questions; the court’s permitting the jury to find that certain corporate distributions constituted income wilfully concealed by individual defendants, and the marking of the corporate books as exhibits. These questions require a brief summary of the evidence.
On the testimony of Max and the two other defendants who took the stand, which we may largely accept in this particular, the general management and all of the fiscal affairs, including making all the entries in the books of the company were, with the acquiescence of the other defendants, handled by Max alone. The other defendants took no action in their several capacities of officers and directors, attended no meetings, and signed “minutes” and other papers without reading. Max’s authority extended even to a single-handed “big-brother” decision as to all corporate distributions to all defendants, whether by way of salary, bonus, or otherwise.
The evidence warranted a finding that payments pursuant to Max’s determination were made continually, not onfy by the common device of having the company satisfy personal bills, in some instances under the guise of having them appear to be corporate expenses, but also by deposits into over two hundred savings bank accounts, and into a war savings bond account from which bonds were bought which were subsequently redeemed by individual defendants. Many of these savings accounts were in joint names, to include a child of the defendant, but in most instances the children testified that they had no knowledge that the accounts existed. This warranted an inference that the individual defendants retained full ownership, and that not merely the deposits, but accrued interest, constituted personal income. Testimony was introduced, also, as to the payment of bills and the purchase of property, tangible and intangible, for defendants’ children. On the government’s evidence the resulting direct and attributable income greatly exceeded that stated on the returns.
A primary defense of the other defendants to this showing was that they were unaware that Max had made many of these distributions. In support thereof Max testified that he did not disclose the bank accounts to the others and that he made the deposits, and various other payments, surreptitiously for his own private purposes, planning their subsequent recapture; in short, that this was a concealed embezzlement. The jury could find it inherently improbable that if Max intended these to be secret, improper transfers of corporate assets against the interest of his brothers he would have made them in this elaborate manner in which his brothers and their children were so frequently given at least record title or control. In addition, there was testimony of a handwriting expert warranting the jury in finding that the other defendants had substantial notice, and in many instances specific knowledge from Max that this distribution procedure was in process. The defense presented, at best, an issue of fact which the court fully put to the jury.
The government’s first witness testified that all defendants executed their returns in blank, and that the witness, as the accountant, thereafter prepared the returns of all four on the basis of information given him by Max, and filed them without further verification. Two of the other defendants acknowledged this, but testified that they supplied Max with personal data. However, they admitted that with respect to the substantial matter of corporate distributions and withholding they never knew the correct amounts and relied upon Max to ascertain them as well as to inform the accountant. A return is not short of wilful falsity because the taxpayer chooses to keep himself uninformed as to the full extent that it is insufficient, or as to what exact figures should have been inserted. Innocence can not outdistance ignorance. The jury was warranted in finding that all defendants knew Max was not revealing their full income. This was enough.
The other principal issue relates-to the admission of the corporate records. Although it was open to the jury to find that the records were authentic, United States v. Tellier, 2 Cir., 1958, 255 F.2d 441, cert. den., 358 U.S. 821, 79 S.Ct. 33, 3 L.Ed.2d 62, the government made no attempt to prove that they were made in the regular course of business, and hence admissible under 28 U.S.C.A. § 1732. We may agree with the defendants, other than Max who prepared and was personally responsible for them and cannot make the point, that corporate records not so kept are normally inadmissible against officers and directors who are not shown to have been responsible for them, or to have had actual knowledge of their content, in cases involving personal (as distinguished from corporate, cf. Cooper v. United States, 8 Cir., 1925, 9 F.2d 216) matters. Worden v. United States, 6 Cir., 1913, 204 F. 1; Osborne v. United States, 9 Cir., 1927, 17 F.2d 246, cert. den. 274 U.S. 751, 47 S.Ct. 765, 71 L.Ed. 1332. But. cf. United States v. Tellier, supra. The court admitted the records generally, but charged the jury that they should be considered against a particular defendant only if it found that they had been kept in the regular course of business and that the defendant had had opportunity of access thereto. This was a peculiar ruling, not only because if the records had been made in the regular course of business they would appear admissible under Section 1732 even if the defendant did not have access, but, more important, because it was never shown, and seemingly never even claimed, that they were so kept. The jury was not instructed as to the meaning of “kept in the regular course of business,” and must have assumed that the evidence warranted such a finding. Since it did not, this condition could not be effective, and whatever the jury did because of it can be of no legal consequence.
We must accordingly interpret the court’s instruction as merely requiring the jury to find that the records were accessible. Under the unusual circumstances of this case, however, we think this was a sufficient limitation. Where the defendants were all the officers, directors and stockholders of the company, the singular, absolute authority delegated to Max by the others to manage all their affairs could not fail to make him their agent with respect to keeping the corporate books, at least to the extent that the books were open to their inspection, Cf. United States v. Feinberg, 2 Cir., 1944, 140 F.2d 592, 154 A.L.R. 272, cert. den., 322 U.S. 726, 64 S.Ct. 943, 88 L.Ed. 1562. Any other result would put a premium on the defendants’ voluntary anopsia.
One final matter. The other defendants contend that a substantial number of payments attributed to them by the government were shown (conclusively, they say, and for present purposes we will so assume) to have been beneficially received by Max, instead, or to have represented repayments of amounts loaned to the corporation on open account. These defendants claim the totals are so large that, with the possible exception of one or two counts as to one of them, they did not in fact underpay their taxes, and that, accordingly, their motions for acquittal should have been granted. Examination of the evidence as a whole, however, discloses that in order for each defendant to have overpaid his tax certain additional items of income must be eliminated as to which, once the corporate records are admitted, there was a clear issue of fact. This, of course, was enough; the extent of the underpayment was not vital. United States v. Johnson, 1943, 319 U.S. 503, 517, 63 S.Ct. 1233, 87 L.Ed. 1546. There was no error in denying the motions.
Judgment will be entered affirming the judgments of the District Court.
. One matter perhaps necessary to mention is the trial court’s observation, when the clerk stated that for Boston sittings jurors were never drawn from west of Worcester County, that it was “ * * * a lucky thing I am not a witness in this case. I know better.” Defendants seek to make something of this. We have currently inspected a number of jury requisitions in the files of the district court signed by this judge, including the requisition preceding the drawing of this particular petit jury, and they all, in accordance with the regular practice, provide for calling “persons residing in cities and towns in Worcester County and Counties to the east thereof * * * ” and none other. The court’s contrary “knowledge” can only be regarded as a hasty remark, quite out of keeping, it may be added, with its meticulous conduct of the trial.
. This book did not go to the jury, and the only suggested “fruit” was an extrajudicial admission by Max, when confronted by the book, that he had falsified certain other records. Since this admission was not permitted to be considered against the other defendants, strictly Max alone is presently interested in this question.
. Several small matters are raised which do not warrant discussion. The defendants press two evidentiary exceptions with respect to which, if there were error, the issues were so minuscule that there could be no possible prejudice. Do-fendants also complain of the court’s alleged refusal to grant four requests for instructions. To the extent these instructions were not clearly given in substance, in some instances repetitiously by explicit qualifying instructions when the evidence referred to was introduced, the requests were erroneous.
. Indeed, in a brief distinguished by its brevity, the government has, except as to Max, failed to offer any authority or reason why the records should have been admitted at all.
. As to one defendant the issue was over what inferences should be drawn as to certain checks.
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 28? Answer with a number.
Answer:
|
songer_district
|
H
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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".
Donnell DOUGLAS, Appellant, v. Maurice H. SIGLER, Warden, Nebraska Penal Complex, Appellee.
No. 18794.
United States Court of Appeals Eighth Circuit.
Nov. 28, 1967.
Donnell Douglas, pro se.
Clarence A. H. Meyer, Atty. Gen., and H. G. Hamilton, Asst. Atty. Gen., Lincoln, Neb., for appellee.
Before VAN OOSTERHOUT, GIBSON and HEANEY, Circuit Judges.
FLOYD R. GIBSON, Circuit Judge.
Petitioner Donnell Douglas appeals in forma pauperis from the judgment of the United States District Court for the District of Nebraska, the Honorable Robert Van Pelt dismissing his civil action against the respondent Maurice H. Sig-ler, Warden Nebraska Penal Complex, seeking a permanent injunction and damages in the amount of $15,000. The complaint was dismissed without an evi-dentiary hearing as presenting only a question of law and in the opinion of the District Judge was controlled by his pri- or decision in Van Ness v. Sigler, Civil 1101L (unreported) (1965). We affirm.
Douglas is confined in the Nebraska Penal Complex under commitment from a State Court of Nebraska, which commitment is not challenged in this action. His complaint is that the action of the Warden in taking away or diminuting his credit for Good Time behavior under § 29-2633, R.R.S.Neb.1964, called Statutory Time, is illegal and void because the Nebraska Statute cited is “vague, overly broad and ambiguous,” and thus violative of the Fourteenth Amendment guarantees of Due Process and Equal Protection of the Law. His claim for damages rests on the Civil Rights Statutes for alleged violation of constitutional rights in applying the Nebraska statute to his confinement.
By § 29-2632 R.R.S.Neb.1964, every convict confined in the Nebraska Penal and Correctional Complex shall be entitled to the diminution of time from his sentence of two months on the first and second year, three months on the third year and four months on each succeeding year, this diminution of time to be credited on the sentence at the time of admission, “but subject to forfeiture as provided in sections 29-2628 and 29-2633.” Section 29-2628 deals with a parole violation and is not in issue in this case. The petitioner's complaint is directed to § 29-2633 which reads as follows:
“29-2633. Convicts; misconduct; loss of diminution of sentence; effect of good behavior thereafter.
“Whenever a charge of misconduct shall be sustained by the warden against a prisoner, he shall not lose the deduction of time specified in section 29-2632, but only that portion of good time earned to the date of the commission of the infraction, or as much as the warden deems proper. The prisoner may regain, by eontinuous good conduct thereafter, the restoration of time lost, or as much less thereof as the warden may deem proper, as a suitable reward for subsequent good conduct.”
This statute is not “vague, overly broad or ambiguous” as claimed by the petitioner, and is therefore not subject to the constitutional infirmity of vague laws condemned in Ashton v. Kentucky, 384 U.S. 195, 86 S.Ct. 1407, 16 L.Ed.2d 469 (1966). To the contrary, the statute is explicit and in clear terms affords any prisoner in, the Nebraska Complex the privilege of earning a diminution of his sentence by good behavior and the observance of the rules, regulations and requirements of that institution.
The next question presented is whether the good time authorized under this statutory diminution of sentence had become vested in petitioner so as to preclude a forfeiture of the time remitted.
The allowance of good time to a prisoner and its denial or forfeiture are strictly matters of statute and are, of course, dependent upon the provisions of the particular statute under consideration. As a general rule the right to a good-time allowance is contingent until the time arises that its allowance will end imprisonment; the grant or denial of such an allowance is discretionary with the executive officer charged with the administration of its provisions; and its allowance is a matter of grace rather than a right. See Anno. 95 A.L.R.2d 1267 (1964).
This Circuit has consistently held that the right to good-time allowance under the federal statute “is merely contingent and does not become absolute or vested until the prisoner shall have earned the right by compliance with the statutory provisions.” Douglas v. King, Warden, 110 F.2d 911, 127 A.L.R. 1200 (8 Cir. 1940). In Pagliaro v. Cox, 143 F.2d 900 (8 Cir. 1944), this Court concisely stated the controlling principle at p. 901;
“The allowance of good time, until earned for the entire term (Estabrook v. King, Warden 8 Cir., 119 F.2d 607, 609; Douglas v. King, 8 Cir., 110 F.2d 911, 913, 127 A.L.R. 1200; United States v. Nicholson, 4 Cir., 78 F.2d 468, 470, certiorari denied 296 U.S. 573, 56 S.Ct. 118, 80 L.Ed. 405), is a privilege which is conditioned expressly by the statute, sec. 710, Title 18 U.S.C.A., allowing it upon a record of conduct showing ‘that he has faithfully observed all the rules and has not been subjected to punishment.’ See Wipf v. King, 8 Cir., 131 F.2d 33, 34. The existence or the forfeiture of good time is in no sense dependent upon whether the misconduct also may be a criminal act.”
These same principles are applicable to State statutes. The Seventh Circuit in dealing with a similar Illinois statute in Uryga v. Ragen, et al., 181 F.2d 660, 663 (7 Cir. 1950) held that the statute governing allowance for good time enters into all sentences but that the
“ * * * allowance is not a vested right but a conditional one, which, by the statute, becomes effective only when the prisoner, having conducted himself properly, has earned an allowance. * * * In other words, a prisoner’s good time is allowed at the end of his term of imprisonment, when and if its allowance, together with the time served, will entitle him to his discharge, the sentence thus having been served in full. The right to good time, then, is contingent until the time arrives when its authorized allowance will end his term of imprisonment. When however, he has so conducted himself that the right of credit is gone, it is as though it never accrued to him. Lupo v. Zerbst, 92 F.2d 362 (5 Cir.).”
The Nebraska diminution of sentence statute is also a conditional grant only, and when the good time has not vested, the reduction or forfeiture of a diminution of sentence raises no constitutional issue. The crediting of good time at the time of admission is conditional only and is subject to forfeiture for disciplinary reasons. State ex rel. Menard v. Nichols, 167 Neb. 144, 91 N.W.2d 308 (1958). This pre-crediting of good time amounts to no more than a bookkeeping entry and the good time must be fully earned before it becomes vested. It does not become vested under § 29-2633 until the prisoner has fully complied with the disciplinary and good behavior requirements up to the time of his dismissal from the Nebraska Complex.
The diminution of sentence statutes rests on legislative grace and not constitutional right. Brown v. Warden, U. S. Penitentiary, 351 F.2d 564 (7 Cir. 1965). See Hiatt v. Compagna, et al., 178 F.2d 42 (5 Cir. 1949), aff’d per curiam 340 U.S. 880, 71 S.Ct. 192, 95 L.Ed. 639; Douglas v. King, 110 F.2d 911, 127 A.L.R. 1200 (8 Cir. 1940). Though different considerations might apply to these statutes than to the parole statutes, the basis of the right or privilege extended is analogous to that set forth in the parole and' probation statutes. Probation is a matter of legislative grace and may be revoked at any time during the period of probation for noncompliance with the conditions imposed. Burns v. United States, 287 U.S. 216, 53 S.Ct. 154, 77 L.Ed. 266 (1932).
This privilege of probation has no constitutional basis, but rests upon legislative grace that operates as a conditional grant only subject to revocation and imposition of any sentence commensurate with the original sentence, or if no sentence were initially imposed with any sentence that might originally have been imposed. As stated by Mr. Justice Cardozo in Escoe v. Zerbst, 295 U.S. 490, 55 S.Ct. 818, 819, 79 L.Ed. 1566 (1935) at 492-493:
“Probation or suspension of sentence comes as an act of grace to one convicted of a crime, and may be coupled with such conditions in respect of its duration as Congress may impose. Burns v. United States, 287 U.S. 216, 53 S.Ct. 154, 77 L.Ed. 266.”
Generally, good-time and parole statutes are accorded similar treatment and are considered as resting upon the same legislative basis. Evans v. Hunter, 162 F.2d 800 (10 Cir. 1947), cert. denied 332 U.S. 818, 68 S.Ct. 144, 92 L.Ed. 395, recognized the constitutionality of the federal good-time release statute that provides a conditional release for accumulated good time and that the prisoner is to be treated as though released on parole and subject to all the provisions of the law relating to parole until the expiration of his maximum sentence. Title 18 U.S.C. § 4164 sets forth the statutory provision equating good-time deductions as a conditional parole release. It provides in pertinent part:
“A prisoner having served his term or terms less good-time deductions shall, upon release, be deemed as if released on parole until the expiration of the maximum term or terms for which he was sentenced less one hundred and eighty days.”
This rationale is equally applicable to a state conditional good-time statute.
The sentence the petitioner is required to serve is the original sentence imposed as punishment for the crime of which he had previously been found guilty. Brown v. Warden, U. S. Penitentiary, 351 F.2d 564 (7 Cir. 1965), and as noted in Brown, probation is conferred as a privilege and cannot be demanded as a matter of right. The source of his rights under the Federal Probation Act lies in the legislative mandate and not in the Constitution.
Due process requirements are not applicable to forfeiture or revocation proceedings except that administrative due process requires that the person charged be treated fairly and not arbitrarily. No question of administrative due process is presented.
The petitioner and other inmates of penal institutions should realize that the penal and correctional institutions are under the control and responsibility of the executive branch of the government and that courts will not interfere with the conduct, management and disciplinary control of this type of institution except in extreme cases. As this Court has said in Lee v. Tahash, Warden, 352 F.2d 970, 971 (8 Cir. 1965) “ * * * it is settled doctrine that except in extreme cases the courts may not interfere with the conduct of a prison, with its regulations and their enforcement, or with its discipline.” See also Harris v. Settle, 322 F.2d 908 (8 Cir. 1963); Walker v. Blackwell, 360 F.2d 66 (5 Cir. 1966). The Tenth Circuit in Kostal v. Tinsley, 337 F.2d 845 (10 Cir. 1964) held at 846: “The discretion of the prison officials on matters purely of discipline, within their powers, is not open to review.” The Seventh Circuit in United States ex rel. Morris v. Radio Station WENR, 209 F.2d 105 (7 Cir. 1953) made the following appropriate comment at 107:
“Federal courts will rarely intervene to interfere with the conduct of State officials carrying out their duties under State laws. Kelly v. Dowd, 7 Cir., 140 F.2d 81.
“Inmates of State penitentiaries should realize that prison officials are vested with wide discretion in safeguarding prisoners committed to their custody. Discipline reasonably maintained in State prisons is not under the supervisory direction of federal courts. Kelly v. Dowd, supra. ‘We think that it is well settled that it is not the function of the courts to superintend the treatment and discipline of prisoners in penitentiaries, but only to deliver from imprisonment those who are illegally confined.’ Stroud v. Swope, Warden, 9 Cir., 187 F.2d 850, 851.”
The matter of the internal management of prisons or correctional institutions is vested in and rests with the heads of those institutions operating under statutory authority, and their acts and administration of prison discipline and overall operation of the institution are not subject to court supervision or control, absent most unusual circumstances or absent a violation of a constitutional right.
In this case the petitioner has failed to meet the requirements of the Nebraska statute for earning his diminution of sentence. He has raised no Federal constitutional issue, and is, therefore, not entitled to an injunction nor has he stated any cause of action under the Civil Rights Act for damages as that Act is not applicable to the facts as alleged in petitioner’s complaint.
As pointed out in Judge Van Pelt’s well considered unrecorded opinion in Van Ness v. Sigler, supra, the court is not concerned with interpretations of state laws that do not involve federal constitutional questions.
The judgment is affirmed.
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
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songer_respond1_3_2
|
E
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
FEDERAL COMPRESS & WAREHOUSE COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 18061.
United States Court of Appeals Sixth Circuit.
Aug. 8, 1968.
Edward R. Young, Memphis, Tenn. (Newell N. Fowler, Fowler, Brackhahn & Young, Memphis, Tenn., on the brief), for petitioner; Leslie A. Nicholson, Nicholson & Moore, Memphis, Tenn., of counsel.
Joseph A. Yablonski, National Labor Relations Board, Washington, D. C. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Gary Green, Atty., National Labor Relations Board, Washington, D. C., on the brief), for respondent.
Before PHILLIPS, PECK and COMBS, Circuit Judges.
PHILLIPS, Circuit Judge.
Federal Compress and Warehouse Company petitions to review and set aside a decision and order of the National Labor Relations Board, reported at 166 N.L.R.B. No. 17, in which the Board found that the employer had violated Sections 8(a) (1) and 8(a) (5) of the National Labor Relations Act. The Board cross-petitions for enforcement of its decision and order.
Federal Compress contends that there are two reasons why it should not be required to bargain with respect to the classifications of shed clerk and maintenance repairmen: (1) both of these classifications are supervisory within the meaning of the National Labor Relations Act, 29 U.S.C. § 152(11); and (2) assuming that these classifications are not supervisory, the union contractually waived its right to bargain until the expiration of the existing collective bargaining agreement.
Since April 26, 1943, Retail, Wholesale and Department Store Union, AFL-CIO, Local 19, has been the bargaining representative of all Federal Compress production and maintenance employees. Supervisory and clerical personnel were not included in the bargaining unit. During the period under consideration the Union and the company had entered into a collective bargaining agreement.
On August 25, 1965, the Union filed a clarification petition with the Regional Director, requesting that the unit be clarified to include shed clerks and maintenance repairmen. In the clarification proceeding the employer contended that the shed clerks and maintenance repairmen were supervisors. The Regional Director held to the contrary and included these classifications in the bargaining unit. The Board denied the request by Federal Compress for review and later refused the request to reconsider.
Following the clarification proceeding, the Union requested that the company provide certain information to facilitate collective bargaining with respect to the shed clerks and maintenance repairmen. The company responded that the persons formerly holding these classifications had been promoted to foreman positions. Thereupon, the Union filed a charge with the Regional Director alleging that the company refused to bargain about the wages, hours and working conditions of shed clerks and maintenance repairmen. Later Federal Compress and the Union entered a settlement agreement in which the company agreed not to change any of the terms or conditions of employment of the two classifications without prior notice and opportunity to negotiate with the Union. Nevertheless, in later bargaining the company insisted that because the individuals holding these positions had been made supervisors, it was only obligated to bargain with respect to future employees in the classification of shed clerk and maintenance repairmen. Federal Compress was willing to bargain on the issue of whether the “promoted” employees were included in the bargaining unit but refused to bargain with respect to their terms and conditions of employment.
Based on this refusal to bargain the Regional Director set aside the settlement agreement and filed unfair labor practice charges against the company. The Board adopted the findings and conclusions of the trial examiner which were summarized as follows:
“In sum, as there are absent any overriding considerations, I conclude, and find, that Respondent has, since April 7, 1966, violated Section 8(a) (5) and (1) of the Act (1) by unilaterally granting wage increases to employees in the contract unit on April 7, 1966, and on September 1, 1966, in derogating of the Union, the exclusive bargaining agent of these employees; (2) by refusing to negotiate with the Union concerning the classifications of shed clerk and maintenance-repairman in the unit, except during the open period of the contract; and (8) during such negotiations as were held with the Union in August and September 1966, by conditioning wage increases for other classifications of employees (who were in the unit at the time the classifications of shed clerk and maintenance-repairman were added thereto by Board decision) upon the exclusion of incumbent shed clerks and maintenance-repairmen from the unit, and by offering to bargain only as to future employees in these two classifications.”
Federal Compress is engaged primarily in the business of storing and compressing cotton. Shed clerks check bales of cotton as they are loaded or unloaded at the warehouse. The cotton is moved by employees known as clipper drivers who use vehicles similar to fork lifts. Federal Compress contends that the shed clerks supervise the clipper drivers and that the maintenance repairmen supervise their individual helpers.
Two issues are before this Court:
(1) Whether substantial evidence supports the decision of the Board that nine alleged supervisors are not supervisors within the meaning of the Act; and (2) whether by entering into a collective bargaining agreement which did not expressly include the alleged supervisors, the Union waived the right to bargain with the employer as representative of these individuals.
We hold (1) that substantial evidence on the record as a whole supports the finding of the Board with respect to seven of the nine alleged supervisors; and (2) that under the terms of the collective bargaining agreement here involved the Union did not waive the right to bargain as representative of these individuals.
1) The Issue as to the Supervisors
In the unit clarification proceeding it was established that when cotton is being unloaded, a shed clerk checks the bales for the accuracy of the tag number. In a loading situation, the shed clerks get their shipping orders from the shipping foreman. Shed clerks check the numbers on the bales of cotton against the shipping orders and tell the clipper drivers to move the bales. Instructions to the drivers include' telling them how the car is to be loaded. Clipper drivers are assigned by the general foreman to a gang for the purpose of loading or unloading cotton. The shed clerks do not have clipper drivers permanently assigned to them. The unit clarification decision described the work duties of the two maintenance repairmen as maintaining and repairing the approximately sixty buildings which make up the Federal Compress warehouse operation. It was stated that each has at least one man, classified as a repairman, who is regularly assigned to work with him. The record in the present case, however, shows that substantially heavier duties of supervisory character have been delegated to the two maintenance repairmen than described in the unit clarification decision.
Although Federal Compress does not concede the correctness of the unit clarification which found that shed clerks and maintenance repairmen were non-supervisory employees, the company relies heavily on additional duties and powers which were subsequently given to these individuals. It is contended that the employer decided to enlarge the supervisory authority of certain individuals in these classifications so as to make certain that they would be supervisors under the Act. They were told that they had authority to hire and fire, to suspend employees, to grant overtime, to grant leave, and to perform other functions of management. They were instructed to keep records of the exercise of this authority and to report their actions to the office. The Board and the trial examiner agreed that the obligation of Federal Compress “to bargain as to these individuals, who were found not to be supervisory in the unit clarification decision might, under some circumstances, be altered by developments subsequent thereto” but held that none of the nine alleged supervisors are in fact supervisors within the meaning of the Act.
Thus we reach the question of whether the individuals formerly known as shed clerks and maintenance repairmen are supervisors within the meaning of the National Labor Relations Act:
“The term ‘supervisor’ means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.” 29 U.S.C. § 152(11).
Because the criteria of supervisory status are set forth in the disjunctive, an employee who performs any one of these functions meets the statutory definition of supervisor. N. L. R. B. v. Roselon Southern Inc., 382 F.2d 245 (6th Cir.); Eastern Greyhound Lines v. N. L. R. B., 337 F.2d 84 (6th Cir.); Ohio Power Co. v. N. L. R. B., 176 F.2d 385 (6th Cir.). It is not necessary that the employee be required regularly and routinely to exercise the powers set forth in the statute. It is the existence of the power which determines whether an employee is a supervisor. Ohio Power Co. v. N. L. R. B., 176 F.2d 385 (6th Cir.), cert. denied, 338 U.S. 899, 70 S.Ct. 249, 94 L.Ed. 553. The power must actually exist. Authorization on paper for the purpose of excluding an eligible employee from a bargaining unit, with no intent that the power ever actually be exercised, is not sufficient.
Whether an employee is a supervisor is a question of fact, and the Board’s decision is conclusive if supported by substantial evidence. Peoples Service Drug Stores, Inc. v. N. L. R. B., 375 F.2d 551 (6th Cir.).
Federal Compress attempted to establish that the shed clerks had authority to fire clipper drivers. The record is replete with evidence that shed clerks were told of their power to fire and that they were to make a record of any discharges. Specifically, Federal Compress sought to prove that shed clerk Frank Searcey fired clipper driver Lacey Al-dridge. The Board found that although the shed clerks may have been the conduit through which the discharges were effected, shed clerks did not exercise the independent judgment which the statute requires of a supervisor.
The testimony of Leroy Boyd is to the effect that general foreman Oldham signed and gave shed clerk Searcey the card by which Searcey notified Aldridge of his discharge. Although this version of Aldridge’s discharge is controverted, the testimony of Boyd, who observed the entire episode, constitutes substantial evidence from which the Board could conclude that Searcey exercised no independent judgment in firing Aldridge. Federal Compress also introduced certain cards which purported to be records of other firings by shed clerks. One card showed that shed clerk Turk had fired a clipper driver, but on the witness stand Turk denied having fired anyone. Viewing the record as a whole, the Board well could conclude that the shed clerks’ power to fire was more apparent than real.
A former shed clerk who was “promoted” to loading foreman testified that shortly after the unit clarification proceeding he had hired an employee. The accuracy of this alleged hiring by a shed clerk was contradicted at the clarification hearing by the testimony of a Federal Compress officer. Evidence of the circumstances of the alleged hirings is, to say the least, scant and inconclusive. The record also warrants the finding that the shed clerks’ direction of the clipper drivers was limited to telling them which bales to get according to an IBM list which was furnished by general foremen. This type of direction was routine and lacking in the exercise of independent judgment.
The employer contends that the shed clerks who now perform the additional duty of licensed weigher have attained supervisory status. The function of a weigher is to determine the number of pounds a bale of cotton weighs and to issue a government bonded receipt which makes Federal Compress responsible for the stated number of pounds. The Board properly determined that weighing is more in the nature of an additional work duty which does not involve the exercise of any of the statutory functions of a supervisor.
Solely on the basis of testimony that the duties of maintenance repairmen were the same as they were at the time of the unit clarification proceeding, the Board found that the two maintenance repairmen, Aderholt and Harder, were not supervisors. This conclusion ignores uncontroverted testimony that maintenance repairman Aderholt has hired crew members at the company’s gate; that Aderholt has fired one or two employees ; that Harder has the same powers but has never used them; that Ader-holt purchases most of the construction maintenance supplies; that on occasions a maintenance repairman supervises a crew of up to twenty members; and that neither Aderholt nor Harder engages in manual labor. The Board’s finding that the position of these two maintenance repairmen is non-supervisory cannot be reconciled with this undisputed evidence which demonstrates both the existence and the exercise of supervisory functions.
When maintenance work is slack, Ad-erholt and Harder also work as shed clerks and manage the movement of freight. While working as shed clerks and in managing freight they may lack the powers of a supervisor. When performing their customary duties as maintenance repairmen, however, the evidence requires the conclusion that Ader-holt and Harder are supervisors within the meaning of the statute.
We therefore hold that substantial evidence supports the findings of the Board that the shed clerks are not supervisors but fails to support the Board’s findings as to Aderholt and Harder.
2) The Issue of Waiver
In the alternative, the employer contends that although the Union may have been entitled under the statute to bargain with respect to the classifications of shed clerk and maintenance repairman, the Union waived this right by the execution of the collective bargaining agreement.
Despite the assertion that the Union had attempted to negotiate the inclusion of these classifications in the collective bargaining unit, the classifications of shed clerk and maintenance repairman were not specifically covered under the terms of the executed contract. According to the employer, its insistence upon the omission of these two classifications as the basis of contractual waiver is strengthened by the so-called zip-up clause, found in article XVII of the contract.
The Board urges that the question of waiver is controlled by Dura Corp. v. N. L. R. B., 380 F.2d 970 (6th Cir.). In Dura the employer’s profit sharing plan was restricted to salaried employees who were not members of a collective bargaining unit. The Union sought to include its members in the profit sharing plan. The employer refused to alter its plan. The Union thereupon filed an unfair labor practice charge against Dura because of its refusal to amend the profit sharing plan to provide for the eligibility of members of collective bargaining units. After the unfair labor practice charge was filed, the Union and the employer entered a collective bargaining agreement which did not provide for profit sharing. The collective bargaining agreement in Dura included the following recitation:
“* * * [T]he Company and the Union, for the life of this Agreement, each voluntarily and unqualifiedly waives the right and each agrees that the other shall not be obligated to bargain collectively with respect to any subject or matter not specifically referred to or covered in this Agreement * *
The above recitation of waiver of bargaining with respect to “any subject or matter not specifically referred to” is far more positive than the recitation in the Federal Compress agreement to the effect that it shall be “the sole and entire agreement between the parties” and shall remain in force unless “modified in writing by the mutual agreement of the parties.”
Nevertheless, the language used in the Dura agreement was not found to be controlling of the issue of the waiver of collective bargaining rights. In Dura the fact that prior to the execution of the contract the Union had filed unfair labor practice charges concerning the profit sharing plan raised substantial doubt as to the appropriate interpretation of the waiver language. Thus the lack of clarity in the Dura agreement was due in large part to the pending unfair labor practice charges, a circumstance outside of the language of the contract.
In order to effectuate the relinquishment of a collective bargaining right under the provisions of a collective bargaining agreement, the language must be clear and unmistakable. “Silence in the bargaining agreement on such an issue does not meet this test.” Timken Roller Bearing Co. v. N. L. R. B., 325 F.2d 746, 751 (6th Cir.).
While the zip-up clause, Article XVII, appears to bar midterm negotiations on matters covered by the agreement, a fair reading on the contract language compels the conclusion that the contract does not purport to embody any agreement with respect to the shed clerks and maintenance repairmen. The failure expressly to include shed clerks and repairmen is subject to conflicting inferences. It is no more logical to infer that the Union waived its right to bargain with respect to these classifications than to conclude that bargaining on this controversial issue was deferred. The employer has failed to establish a contractual waiver by clear and unmistakable language.
The petition to set aside the order of the Board is overruled. Enforcement of the decision of the Board as to Aderholt and Harder is denied because they are supervisors within the meaning of the Act. In all other respects enforcement is granted.
. “This Agreement covers all maintenance and production employees, except those temporarily so employed (which shall be construed to mean an employee who has had less than thirty (30) days continuous service) in the Employer’s South Memphis Plant, excluding all other employees at said plant such as supervisory, office, clerical employees, and engineers, watchmen and employees doing police duty.”
. “XVII.
“Duration:
“(a) This Agreement constitutes the sole and entire Agreement between the
parties hereto as of the date hereof, and shall become effective and remain in force for the term hereof, as provided in paragraph (b) of this section, unless earlier changed or modified, in writing, by the mutual agreement of the parties hereto. During the term of this Agreement, no change or modification shall be binding upon either of the parties hereto, unless the same shall have been reduced to writing and signed by both parties hereto.”
. See notes 1 and 2.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant?
A. cabinet level department
B. courts or legislative
C. agency whose first word is "federal"
D. other agency, beginning with "A" thru "E"
E. other agency, beginning with "F" thru "N"
F. other agency, beginning with "O" thru "R"
G. other agency, beginning with "S" thru "Z"
H. Distric of Columbia
I. other, not listed, not able to classify
Answer:
|
songer_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 v. James D. HOCKENBERRY, Appellant.
No. 72-1425.
United States Court of Appeals, Third Circuit.
Argued Oct. 3, 1972.
Decided Feb. 21, 1973.
Louis Lipschitz, Philadelphia, Pa., and Stanton D. Levenson, Watzman, Leven-son & Snyder, Pittsburgh, Pa., for appellant.
Richard L. Thornburgh, U. S. Atty., James A. Villanova and Kathleen K. Cur-tin, Asst. U. S. Attys., Pittsburgh, Pa., for appellee.
Before SEITZ, Chief Judge, and HASTIE and HUNTER, Circuit Judges.
OPINION OF THE COURT
HASTIE, Circuit Judge.
James Hockenberry, a former county detective, has taken this appeal from his conviction of making a false material declaration under oath before a grand jury in violation of the recently enacted section 1623 of Title 18, United States Code. 84 Stat. 932. Hockenberry had testified before the grand jury only under judicial compulsion after he had been granted immunity under section 2514 of Title 18, United States Code. We must decide whether the trial judge committed reversible error in admitting into evidence against the accused at his perjury trial a truthful statement he had made to the grand jury on the same occasion as the alleged false statement but unrelated to it.
The indictment charged Hockenberry with falsely swearing to the grand jury that he had no knowledge of or connection with bribes or payoffs to county detectives by persons engaged in unlawful gambling and prostitution. At his trial he took the stand in his own defense and denied any such knowledge or connection. In an effort to discredit him as a wit-
ness, the prosecution cross-examined him, over objection, about other unrelated parts of his testimony before the grand jury. Part of the cross-examination was as follows:
“Q. Well, do you recall appearing before the Grand Jury on the 16th of March, 1971, and my questioning you about certain returns on search warrants that you have executed under oath?
“A. I recall that, yes.
“Q. You do recall?
“A. Yes.
“Q. Do you recall testifying that there were at least two instances that you had executed a sworn return on those search warrants, and the information in it was false?”
Then, after an objection had been overruled, the prosecution read two excerpts from Hockenberry’s grand jury testimony in which he admitted that on occasion, in the course of his work as a detective, he had signed affidavits wherein he falsely asserted personal knowledge of facts upon which search warrants were being sought.
It was the contention of the prosecution that appellant’s admission before the grand jury — stating that on occasion he signed false affidavits to obtain search warrants — could be introduced to impeach him as a witness. The prosecution reasoned that this evidence was relevant and competent to show a “pattern of deceit” and thus discredit Hock-enberry’s denial at trial that he had lied to the grand jury about the unrelated matter of accepting bribes from criminals.
Assuming that the law of evidence would permit such impeachment, there is a separate question whether this use of admissions made before the grand jury violated the immunity under which the admissions had been compelled. Hock-enberry originally had refused to testify before the grand jury, claiming Fifth Amendment privilege. He then was granted immunity under 18 U.S.C. § 2514 and ordered to testify. The admissions here in question were part of that testimony.
After prescribing a procedure for compelling testimony, section 2514 continues as follows:
“ . ' . . No such witness shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he is compelled, after having claimed his privilege against self-incrimination, to testify or produce evidence, nor shall testimony so compelled be used as evidence in any criminal proceeding (except in a proceeding described in the next sentence) against him in any court. No witness shall be exempt under this section from prosecution for perjury or contempt committed while giving testimony or producing evidence under compulsion as provided in this section.”
In this case appellant’s statements before the grand jury, truthful admissions of prior wrongdoing compelled under grant of immunity, certainly were used against him, since they were used to impeach his credibility as an accused person testifying in his own defense. Attempting to justify this disallowance of immunity, the government has found it necessary to argue that the use made of Hockenberry’s otherwise immunized testimony comes within the exception stated in the above quoted concluding provision of section 2514. The government reads that exception as meaning that, in a prosecution for perjury allegedly committed in the course of testimony required pursuant to section 2514, the statutory immunity does not cover either the allegedly false statement itself or anything else the accused may have said on the protected occasion. However, we think the exception is not that broad.
Under the narrowest arguable reading of the Fifth Amendment, Hockenberry was compelled to incriminate himself when he was required to admit before the grand jury that he had executed false affidavits to obtain search warrants. However, Congress had authorized and the courts have sanctioned judicial compulsion of otherwise self-incriminating testimony so long as full protection is given the witness against injury through future incriminating use of the compelled statement. Kastigar v. United States, 1972, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212. “Answers may be compelled regardless of the privilege if there is immunity from federal and state use of the compelled testimony or its fruits in connection with a criminal prosecution against the person testifying.”. Gardner v. Broderick, 1968, 392 U.S. 273, 276, 88 S.Ct. 1913, 1915, 20 L.Ed.2d 1082.
But quite apart from any question of self incrimination, a witness who testifies before a grand jury is required and sworn to tell the truth. The grant of immunity is superimposed upon that requirement. Protection is granted against future injurious use of the incriminating truth that the witness is required to speak, not against prosecution for or the use of any exculpatory falsehood that he may utter to avoid the required admission of wrongdoing. Hence, the immunity statute properly permits prosecution for perjury committed in an otherwise immunized statement and also the introduction in evidence of so much of the statement as is essential to establishing the corpus delicti.
To go beyond that and to argue, as the government does, that the immunity statute allows the use of any truthful admission of wrongdoing made in an immunized statement to discredit the individual as a witness in a subsequent prosecution, so narrows the statutory grant of immunity as to jeopardize its adequacy as a constitutional means of requiring self incrimination. But for the grant of immunity Hockenberry would have been privileged to refuse to admit to the grand jury his wrongdoing in the execution of affidavits to obtain search warrants. And if immunity that deprived him of that privilege is to be, as constitutionally it must, co-extensive with the privilege itself, his compelled admission of wrongdoing cannot later be used to discredit his effort to defend himself against a charge of some other wrongdoing. “Immunity from the use of compelled testimony . . . prohibits the prosecutorial authorities from using the compelled testimony in any respect . . . ” Powell, J., in Kasti-gar v. United States, supra, 406 U.S. at 453, 92 S.Ct. at 1661.
Finally, we have not overlooked the government’s reliance upon Harris v. New York, 1971, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1, as supportive of what was done in this case. The Harris case holds that an arrested person’s voluntary incriminating statements, though inadmissible later as part of the prosecution’s ease in chief because the prisoner had not been advised of his right to counsel, may be used to impeach his credibility when he testifies as a witness in his own defense. In that case the Court was deciding how broad a sanction is necessary to vindicate the Miranda procedural requirement that an arrested suspect must be advised of his right to counsel before he shall be interrogated.
In contrast, the question here is the scope of the use immunity thát government must afford and the Congress has undertaken to grant a witness in order to justify compelling him to make an incriminating statement. In this situation, as we already have pointed out, the mandated quid pro quo is immunity coextensive with the privilege; to-wit, immunity from any damaging use of the compelled truthful statement in a future prosecution. The Harris rule does not compel a person to incriminate himself. The abridgement of immunity in this case does, and that is its invalidating vice.
Hockenberry’s conviction must be set aside and the cause remanded for a new trial.
. In its brief the government argues that “[t]he better rule . . . is to permit the use of testimony obtained under an immunity grant, where otherwise relevant and admissible, for the purpose of impeaching the immunized witness or an immunized defendant when (as here) he chooses to testify on his own behalf”.
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_const1
|
104
|
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.
UNITED STATES of America, Plaintiff-Appellee, v. Monty Edward CLAYBORNE, Jr. and George Ingram, Defendants-Appellants.
Nos. 77-1568, 77-1570.
United States Court of Appeals, Tenth Circuit.
Submitted July 12, 1978.
Decided Aug. 22, 1978.
Joseph F. Dolan, U. S. Atty., and William C. Danks, Asst. U. S. Atty., Denver, Colo., for plaintiff-appellee.
Lawrence Rotenberg, Denver, Colo., for defendant-appellant Clayborne.
Michael F. DiManna, Denver, Colo., for defendant-appellant Ingram.
Before McWILLIAMS, BARRETT and DOYLE, Circuit Judges.
WILLIAM E. DOYLE, Circuit Judge.
Clayborne and Ingram were indicted for the manufacture of a controlled substance, amphetamines, and for conspiracy to so manufacture. The substantive offense was pursuant to 21 U.S.C. § 841(a)(1), whereas the conspiracy was pursuant to 21 U.S.C. § 846 and § 841(a)(1). A third participant, one Kuck, was also indicted and convicted. That judgment has been affirmed by this court in United States v. Kuck, 573 F.2d 25 (10th Cir. 1978). Ingram was granted a mistrial, but on retrial was found guilty of conspiracy. The manufacturing count was then dismissed. We here review the convictions of Clayborne and Ingram.
The principal issue common to both defendants is whether the court erred in denying a motion to suppress certain evidence found during a warrant search of a clandestine amphetamine laboratory. It is claimed that this evidence was tainted by the illegal use of an electronic tracking device attached to a container of ether. The signal from this was located in the laboratory where the controlled substance was produced. The Federal Drug Enforcement Administration agents installed this device in a drum of chemicals purchased by Ingram.
Other points raised by Ingram herein are, first, that his Fifth Amendment right not to be placed twice in jeopardy for the same offense was violated. This, he argues, was a consequence of the granting by the court of the mistrial (on his motion). A second point on behalf of Ingram attacks the receipt by the trial court of an index card which had certain chemical formulae on it for production of amphetamines. This was for use of chemicals which are used in making methamphetamines. The defense objection to this was that it was seized after indictment and thus should have been excluded as being in violation of Rule 403 of the Federal Rules of Evidence.
* * * * * *
I.
In November 1976, Ingram ordered a quantity of ethyl ether from the Service Supply Company of Denver. At the same time he inquired about the obtaining of some phenyl-2-propanone. Both of these chemicals are used in the manufacture of methamphetamines. So following the placing of the order, the company, as a result of prearrangement, notified the Drug Enforcement Administration. On November 29, Ingram and another person picked up a 55-gallon drum of ethyl ether at Service Supply. He was observed doing this by agents of the DEA, who followed him to the home of Ruck’s parents.
A subsequent transaction is the one which is here in issue. That occurred on December 20, 1976. On that date, Ingram again put in an order for ethyl ether. The DEA agents installed an electronic tracking device or “beeper” in a 55-gallon drum and then took the drum to Service Supply, where it was filled with ether and delivered to Ingram. The electronic beeper sends out periodic radio signals, which allow its location to be established and monitored.
On the day (December 29) that Ingram picked up this drum complete with the beeper, the agents followed him to his home and observed the drum being unloaded and taken into the house. The agents then proceeded periodically to monitor its presence to be sure that the drum did not move out of Ingram’s home. However, on January 1, the beeper signal was no longer there and eventually the signal was found to emanate from 1229 South Bannock Street in Denver. These were commercial premises which had been leased by Clayborne. The agents detected the smell of ether and noted that the windows were covered so as to prevent viewing the inside. After a day’s surveillance, a search warrant was obtained and executed on January 2. The search produced methamphetamines together with materials and paraphernalia for their manufacture. This was the evidence which the defendants sought to have suppressed as being in violation of their Fourth Amendment rights. The contention was that the violation related back to the initial failure to obtain a warrant for use of the beeper.
The trial court denied the motion to suppress and did so on the basis that Ingram lacked standing to challenge the presence of the beeper inside the oil drum, it being the property of the DEA, and also because it was not a Fourth Amendment question.
II.
The starting point in solving this present problem is a consideration of the Supreme Court’s decision in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). This is a new variation which questions whether, as a consequence of failure to obtain a warrant at the outset authorizing use of the beeper, the evidence obtained through subsequent use of the beeper, including that resulting from the search of the laboratory, was illegal because it was not in accordance with the requirements of the Fourth Amendment. In Katz, the Court held that the use of an electronic bug or microphone placed on the roof of a public telephone booth violated the Fourth Amendment. The reason was that the question was not whether places or property enjoy an immunity because of the Fourth Amendment, but, rather, whether the people are entitled to protection (and not places). The Court went on to hold that when the defendant closed the door of the telephone booth he believed that he had shut out all other persons and that he had privacy which would insure that his conversation would not be heard by others. The Court also stated that that which a person exposes to the public may not be the subject of Fourth Amendment protection, but that, on the other hand, that which he seeks to preserve as private, even in an area accessible to the public, may enjoy constitutional protection.
Several circuits have considered the beeper problem in the light of Katz. See United States v. Hufford, 539 F.2d 32 (9th Cir.), cert. denied, 429 U.S. 1002, 97 S.Ct. 533, 50 L.Ed.2d 614 (1976), in which agents installed a beeper in a drum of caffeine which had been ordered by the defendants. Visual surveillance together with the beeper permitted the agents to isolate a drum of caffeine in the garage of the defendants. It was held that no reasonable expectation of privacy had been invaded, notwithstanding that the beeper was employed in a “probing, exploratory question for evidence.” The Ninth Circuit relied on the Supreme Court’s decision in Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974). There the Court held that the warrantless scraping of paint from the exterior of a car parked in a public lot together with the measurement of its tire tread was not a violation for the reason that the expectation by the defendant of privacy was minimal. The Ninth Circuit related Hufford to the Cardwell holding in support of its conclusion that there was little expectation of privacy in driving along a public road. The beeper was viewed as merely an aid to or substitute for visual surveillance. It was regarded as being similar to the use of binoculars or trained dogs. Cf. United States v. Venema, 563 F.2d 1003 (10th Cir. 1977), wherein we approved the use of a trained dog to detect the scent of marijuana in a locker. That opinion could see no reasonable expectation of privacy in the air space around the locker.
The First Circuit in United States v. Moore, 562 F.2d 106 (1st Cir. 1977), has also considered the question. As in the present case, federal agents installed a beeper in a container of chemicals which had been ordered by the defendants.' When delivery was taken a second beeper was attached to their van. The agents, aided in part by the beepers, followed the defendants to a house. The beeper in the container was subsequently used to monitor the presence of the chemicals inside the house. Subsequently, a search warrant was obtained and the search revealed the clandestine manufacture of methamphetamines. The court distinguished between the use of a monitoring device to track a vehicle and the use of it to monitor the continued presence of the chemicals in the house. The latter was considered to be an invasion of the privacy of the home. It was acknowledged that the beeper in the car constituted an intrusion, but that its use could be justified on the basis of the mobility of the car and the lack of reasonable expectation of privacy with respect to it. Probable cause was held to exist with respect to the monitoring of the location of the vehicle. Once the defendants left the vehicle and entered the house, the right of privacy existed free from war-rantless intrusion by the government. The court also observed that the fact that the defendant initially had no rights in the chemical boxes was not of any significance since they later obtained lawful possession, and the agents sought to use the electronic devices after this.
The court held that evidence derived from the use of the beeper while the material was in the house had to be suppressed. The court did, however, leave the door open to separation of the evidence illegally obtained while in the house and the use of evidence which derived from the beeper pri- or to its being taken into the house, e. g., while the material was being transported in a car. There was a remand to the district court to determine the part of the evidence which had to be suppressed and that which did not.
In the instant case the beeper surveillance evidence within the house and that within the laboratory do not come together as one connected transaction. The agents lost contact with the device following the movement from the house. An independent effort was necessary to reestablish contact. So the laboratory contact is not tainted by the surveillance within the house.
Our court has' recently filed an opinion which, although not factually on all fours with this case, is similar to it. We refer to United States v. Shove a, 580 F.2d 1382 (10th Cir. 1978). The beeper was there used only for the purpose of tracking the car. Federal agents arranged a delivery to the defendant and followed him to a house occupied by a codefendant, which home was in Denver. A beeper was placed on the codefendant’s car at that place and shortly thereafter agents by use of the beeper were able to trace the car to the proverbial clandestine laboratory. The court recognized that electronic tracking devices were appropriate even without prior court approval where there was probable cause or exigent circumstances. Probable cause was found to be present. Circumstances relating to probable cause were substantially the same background circumstances which are here.
Judge Barrett, writing for the panel, expounded the established truth that there was minimal expectation of privacy in an automobile along a public road, citing United States v. Frazier, 538 F.2d 1322 (8th Cir. 1976), cert. denied, 429 U.S. 1046, 97 S.Ct. 751, 50 L.Ed.2d 759 (1977), wherein the use of a beeper on a car was approved in connection with an ongoing kidnap plot.
In the case before us it was the beeper on the inside of the drum of ether which enabled the agents to locate the laboratory. The agents in our case had to use an airplane to pick up the beeper signal and locate the building in which the clandestine laboratory was located. This was true because in the first instance they were not aware that the drum had been moved from Ingram’s house. Given the proposition that the home cannot be invaded without a warrant, does it follow that a clandestine laboratory in which amphetamines are likely to be manufactured enjoys the same protection?
Although this case is factually similar to our decision in Shove a, in the Ninth Circuit’s decision in Hufford and the First Circuit’s decision in Moore there are differences. Both Shove a and Moore held that beeper surveillance without warrants for the purpose of monitoring vehicles was valid. In all of the cited cases, and also in the present case, there is information of the agents amounting to probable cause to believe that a controlled substance was about to be made. While approving the use of the beeper for monitoring the automobile, the First Circuit in Moore distinguished the use of the beeper in the home. It held that there could not be a warrantless search inside the house. It also held that the lessened expectancy of privacy when using vehicles had no relevance; that although surveillance of the automobile could be conducted without a warrant, the same was not true of a home.
Hufford comes closest to this case since there the beeper was inside a garage. Here the beeper revealed the presence of the drum of ether inside the clandestine laboratory at 1229 South Bannock. Does the use in these circumstances constitute a per se violation of the Fourth Amendment? We conclude that it does not. The clandestine laboratory here was a commercial establishment which was susceptible not only to outside viewing, but also to ingress and egress of the public. Strict privacy as in a home was not to be properly expected here. There is a vast difference between it and Katz. The difference is found in a comparison of the size and extent of the intrusion in each case. That in Katz is great because of the wholly unexpected eavesdropping on a conversation. We say that it was proper to use the device to locate the drum of chemical in the clandestine laboratory at 1229 South Bannock Street, a new location which proved to be a commercial building with the windows covered to protect against viewing the activities and materials inside. It was also within the law for them to make every effort to ascertain what was going on within the laboratory including the testing of the odors and the observations that the windows were covered. We consider the electronic beeper as a substitute for persistent extensive visual effort. We do not say that the laboratory stands on the identical footing as the automobile, and clearly it is not the same as Ingram’s home, which the Fourth Amendment protects from invasion. We are persuaded by the fact that the intrusion of the clandestine laboratory was slight. Also, it is not to be argued that defendant-appellant had a justifiable or reasonable expectation that there would not be any disturbance of privacy. Also, the use of the beeper within the laboratory was vastly different from the use of the recording device in the telephone booth in Katz. The invasion in Katz was of great magnitude in comparison with the intrusion here.
Under these special facts, then, we must hold that the slight intrusion was not per se in violation of the Fourth Amendment and that the use of the beeper without a warrant was not invalid. The trial court did not err in denying the motion to suppress.
III.
The defendant Ingram maintains that his rights under the Double Jeopardy Clause were violated when the court granted a mistrial. He concedes that where the defendant moves for the mistrial the general rule is that retrial is not barred except in the instance in which the judicial or prosecutorial error that prompted the motion was intended to provoke the motion or was otherwise motivated by bad faith or undertaken to harass or prejudice petitioner. See Lee v. United States, 432 U.S. 23, 97 S.Ct. 2141, 53 L.Ed.2d 80 (1977) (quoting United States v. Dinitz, 424 U.S. 600, 606, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976)).
Several of the circuits have characterized the test as to whether retrial is to be barred even though the mistrial was at the request of the defendant as whether there was gross negligence or intentional misconduct which led to the granting of the mistrial. See United States v. Martin, 561 F.2d 135 (8th Cir. 1977); United States v. Kennedy, 548 F.2d 608 (5th Cir. 1977).
Ingram maintains that the trial judge was grossly negligent in violating his right to be present at trial by not adjourning the trial to determine whether his absence was voluntary. We disagree. The judge was talking about the fact that Ingram was late for the trial once and, finally, was absent altogether for a day due to his having been arrested and placed in jail in Aurora, a nearby community. The court had gone ahead with the trial in his absence, but once the judge found out that his absence had been involuntary, he granted the mistrial on the motion of the defendant. Under these circumstances, we fail to see that there was either invalid coercion exercised by the court or that there was negligence or other misconduct.
IV.
Ingram’s final contention is that the trial court erred in receiving Exhibit 14, an index card with some chemical formulae having to do with chemicals which could be used for making amphetamines. This was taken from Ingram’s person when he was arrested two months after the indictment. At the first trial the Exhibit was excluded because Ingram was being tried with Clay-borne. At the second trial Ingram was tried alone and the Exhibit was received. The defendant objected on the ground that it resulted from investigation subsequent to the indictment and was inadmissible under Rule 403, which declares that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice or confusion.
Defendant’s argument in reality is that the Exhibit evidenced acts subsequent to the conspiracy and thus it is contrary to the rules in Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963,1 L.Ed.2d 931 (1957), and United States v. Floyd, 555 F.2d 45 (2d Cir. 1977), which concerned evidence of post-conspiracy acts or cover-up tactics which are quite different from the card in the present case. It is for the trial court to determine relevance, and we cannot agree with defendant that it is incompetent. It does not appear that the evidence was inconsistent with the indictment. Indeed it was entirely consistent with it and receipt of it was not erroneous.
The judgment of the district court is affirmed.
. We agree with this ruling and would take the same position in the case at bar if the proposition were to be seriously argued.
. The testimony of one of the agents included a description of the building.
Q Would you describe the warehouse, whatever type of building is appropriate at 1229 South Bannock?
A The building is a long one-story building with four sets of office or industrial space in it. Each space had a large overhead door and a single small door adjacent to the overhead door, both front and rear. 1229 was the space the further south on the building.
Q So there are actually several entrances in that one warehouse building?
A Yes, sir, four.
. There is no evidence which resulted from the clearly illegal monitoring of the inside of the home.
Question: 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_district
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H
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What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
UNITED STATES of America, Appellee, v. Norman Bernard THIRION a/k/a Norman Tyrone a/k/a Dr. Thirion, Appellant. UNITED STATES of America, Appellee, v. Ronald A. SABLOSKY, Appellant. UNITED STATES of America, Appellee, v. Jack CASPERSON, Appellant.
Nos. 86-5026 to 86-5028.
United States Court of Appeals, Eighth Circuit.
Submitted Nov. 10, 1986.
Decided March 5, 1987.
Roger Wayne Hunt, Sioux Falls, S.D., for Thirion.
Patrick J. Kane, Sioux Falls, S.D., for Sablosky.
Richard Braithwaite, Sioux Falls, S.D., for Casperson.
David L. Zuercher, Asst. U.S. Atty., Pierre, S.D., for appellee.
Before McMILLIAN, Circuit Judge, HENLEY, Senior Circuit Judge, and HUNTER, Senior District Judge.
The Honorable Elmo B. Hunter, United States Senior District Judge, Eastern District of Missouri, sitting by designation.
HENLEY, Senior Circuit Judge.
Defendants Norman Bernard Thirion, Ronald A. Sablosky and Jack Casperson appeal from their convictions for their parts in an advance-fee loan scheme. A jury found Thirion guilty on four counts of mail fraud, 18 U.S.C. § 1341, nine counts of inducing interstate travel to defraud, 18 U.S.C. § 2314, and three counts of wire fraud, 18 U.S.C. § 1343. The district court sentenced Thirion to seven concurrent five-year terms of imprisonment followed by a five-year period of probation on the remaining counts. Thirion was also ordered to make restitution of $330,000.00. Casperson was convicted on the same counts as Thirion, with an additional conspiracy conviction under 18 U.S.C. § 371. Casperson was sentenced to eight concurrent thirteen-month terms of imprisonment followed by a five-year period of probation on the remaining counts. He was also ordered to make restitution of $10,000.00. Sablosky was convicted of one count of conspiracy and one count of mail fraud. He was acquitted by the jury of the remaining six counts against him (three for mail fraud and three for wire fraud). Sablosky was sentenced to one year of imprisonment on the conspiracy conviction followed by a five-year term of probation on his mail fraud conviction.
The defendants raise numerous, sometimes overlapping, issues on appeal. This court previously overturned the convictions of defendants Casperson and Sablosky and this is the second time they have been tried for these offenses. United States v. Casperson, 773 F.2d 216 (8th Cir.1985). Thirion was not a defendant in the first trial as he had secreted himself outside the United States. Only defendant Sablosky challenges the sufficiency of the evidence to sustain his conviction. Accordingly, we will limit our factual discussion to providing a background for the issues preserved in the appeals now before us.
I.
In January, 1982 Casperson first met Thirion in Newport Beach, California. At that time Casperson was seeking financial backing for a business venture he was interested in pursuing. Thirion indicated that he could obtain a low interest block loan of $250 million from overseas sources. In order to secure the loan, however, Thirion required an advance fee of $160,000.00 to cover costs and expenses.
Casperson, however, did not then possess financial resources from which he could readily pay the advance fee. He therefore set out to attract other investors interested in low interest loans in order to raise the advance fee. Investors were to pay an advance fee of $20,000.00 for a $1 million loan. The loan was to be obtained in six to eight weeks at which time the investor would receive a refund of his advance fee together with the loan. Casperson further guaranteed the return of the investor’s advance fee by a commission he was to receive from another venture involving the sale of Mexican tuna fish.
By April, Casperson had collected over $400,000.00 in advance fees from investors. This money was forwarded to Thirion's company, International Banking Services (IBS). Although the loans were originally to be forthcoming by the end of April, that date passed with no results. The investors were placated by numerous plausible excuses given for the delay.
Meanwhile, defendant Sablosky (corporate counsel for IBS) was in Hawaii on behalf of another Thirion corporation, United States Resource Conversion Systems (USRCS). During the month of May Sablosky became aware of the advance-fee loan transactions. Sablosky determined that the tuna fish commissions were of speculative value; in any event, the advance fees paid by the investors exceeded the maximum possible value of the commission.
On May 25,1982 Sablosky had Casperson execute promissory notes in favor of each investor for the amount of the advance fee paid by each investor. The promissory notes were payable on September 15, 1982. Thirion, on behalf of IBS, signed a guaranty for each of Casperson’s notes. In turn, Casperson assigned his tuna fish commissions to IBS. Armed with these documents, Sablosky sent letters dated June 10, 1982 (the letters were actually mailed sometime later) to each investor. Sablosky enclosed the documents with each letter and further wrote:
I have received from I.B.S., to be held in trust in my attorney account, securities which I believe to be good and of significant value to cover all indebtedness for which I.B.S. has seen fit to guarantee. Additionally, I have received from I.B.S. an assignment of Mr. Casperson’s commissions in the Mexican Tuna sales. This assignment was in and of itself good enough consideration to induce I.B.S. to serve as guarantor.
The securities referred to were certificates of stock in USRCS, stock with no market value in a corporation with only speculative worth. The attorney account in which the securities were held in trust was a locked portion of Sablosky’s desk.
On September 14, the day before Casperson’s note came due, Sablosky again wrote the investors to explain why the loans continued to be delayed. Investors were further advised that they could cancel their loans and receive a refund. Investors who responded in October did receive the refund; however, those responding later did not. IBS refunded less than $100,000.00.
Eventually, a federal grand jury began investigating the advance-fee loan arrangement. In December, 1983 the grand jury indicted nine persons including the three appellants. While Thirion did appear before the grand jury, he had left the country before the indictment was handed down. Following the first jury trial in 1984, Sablosky and Casperson were convicted on various counts of the indictment. They appealed their convictions and during the pendency of that appeal Thirion was extradited from Monaco. Sablosky and Casperson were granted a new trial as a result of their appeals and their second trial was joined with Thirion’s. Upon retrial, Casperson was again convicted on all counts against him and Sablosky was convicted on only two of the remaining counts against him (Sablosky had been acquitted on several counts in the first trial). Thirion was also convicted on every count against him presented to the jury. These appeals followed.
II.
During the pendency of Casperson and Sablosky’s first appeal, Thirion was apprehended by authorities in Monaco. The United States had entered into an extradition treaty with Monaco, Treaty Respecting Extradition, Feb. 15, 1989, United States-Monaco, 54 Stat. 1780, T.S. No. 959 (hereinafter Treaty), and requested that Thirion be returned to the United States to stand trial. Monaco agreed to extradite Thirion on all the charges against him in the indictment except for the conspiracy count.
Prior to trial Thirion moved that the conspiracy count be dismissed as he could not be tried for conspiracy under the terms of his extradition. Thirion’s motion was denied, but the district court instructed the jury not to return a verdict on that count of the indictment against Thirion. At the close of trial Thirion objected to the district court’s instructing the jury on coconspirator liability under Pinkerton v. United States, 328 U.S. 640, 646-47, 66 S.Ct. 1180, 1183-84, 90 L.Ed. 1489 (1946). The district court overruled the objection and so instructed the jury. Although these two conspiracy issues appear distinct, they are somewhat interwoven.
Under the doctrine of speciality a defendant may be tried only for the offense for which he was delivered up by the asylum country. United States v. Rauscher, 119 U.S. 407, 422-23, 7 S.Ct. 234, 242, 30 L.Ed. 425 (1886); United States v. Jetter, 722 F.2d 371, 373 (8th Cir.1983). The doctrine is based on the principle of international comity. Jetter, 722 F.2d at 373. While the asylum country may consent to extradite the defendant for offenses other than those expressly enumerated in the treaty, United States v. Najohn, 785 F.2d 1420, 1422 (9th Cir.1986), it did not do so here. See n. 4, supra. Thirion, therefore, may raise whatever objections to his prosecution that Monaco might have. Rauscher, 119 U.S. at 419, 7 S.Ct. at 240.
The treaty between the United States and Monaco contains the following provision:
No person surrendered... shall be prosecuted, judged or punished for any crime or offense committed prior to his extradition, other than the offense for which his surrender was accorded, and no person shall be arrested or detained by civil process for a cause prior to the extradition, unless, in either case, he has been at liberty for one month to leave the country, after having been tried, or, in case of conviction, after having either served his sentence or obtained pardon.
Treaty, supra, 54 Stat. at 1786.
The district court correctly determined that Thirion could not be convicted on the conspiracy count. The district court, however, refused to dismiss that count of the indictment. This decision was not necessarily in conflict with the doctrine of speciality since, although Thirion could not then be convicted on the conspiracy count, the Treaty permits subsequent conviction should Thirion remain in the country after having been at liberty for one month to leave. Id. The more difficult question remains. While technically Thirion could not be convicted of conspiracy, the jury was instructed that he could be found guilty of the substantive counts for which he was indicted under a theory of coconspirator vicarious liability. We must consider whether this instruction was properly given when the substantive counts of the indictment charge aiding and abetting and not coconspirator vicarious liability.
It has long been the rule in this circuit that a jury may be instructed on the theory of aiding and abetting even though not charged in the indictment. United States v. McKnight, 799 F.2d 443, 445 (8th Cir.1986). “The reason for this rule is that [the aiding and abetting statute, 18 U.S.C. § 2] does not create a separate offense, it simply makes those who aid and abet in a crime punishable as principals.” Id. This reasoning is equally applicable to coconspirator liability. While Congress has recognized the conspiracy itself to be a separate crime, § 371, coconspirator liability does not have its genesis in this statute, but rather in the common law. See Pinkerton, 328 U.S. at 647, 66 S.Ct. at 1184 (“The rule which holds responsible one who counsels, procures, or commands another to commit a crime is founded on the same principle.”). Therefore, the individual substantive counts need not make reference to coconspirator liability in order for the jury to be so instructed. See United States v. Carroll, 510 F.2d 507, 509 (2d Cir.1975), cert. denied, 426 U.S. 923, 96 S.Ct. 2633, 49 L.Ed.2d 378 (1976). Having concluded that the indictment is sufficient, we now turn to the question whether Thirion’s conviction on the substantive offenses as a Pinkerton coconspirator violates the doctrine of speciality.
Our determination of whether Thirion’s coconspirator convictions offend the doctrine of speciality requires further inquiry into the nature of coconspirator liability. The evidentiary effect of joining in a criminal conspiracy received early recognition. “Although conspiracy be not charged, if it be shown by the evidence to exist, the act of one or more defendants in furtherance of the common plan is in law the act of all.” Davis v. United States, 12 F.2d 253, 257 (5th Cir.), cert. denied, 271 U.S. 688, 46 S.Ct. 639, 70 L.Ed. 1153 (1926). This maxim later made its way into the Supreme Court’s Pinkerton decision. The Fifth Circuit, in affirming Pinkerton’s conviction, said that in determining the defendant’s guilt in the substantive offenses the jury may consider the existence of a conspiracy, “and this would be true if there had been no conspiracy count in the indictment.” Pinkerton v. United States, 151 F.2d 499, 500 (5th Cir.1945) (citing Davis), aff'd, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946); see also Nye & Nissen v. United States, 168 F.2d 846, 853 (9th Cir. 1948) (“[T]he liability of a co-conspirator for crimes in furtherance of the conspiracy in no way depends upon the scope or existence of a conspiracy count.”), aff'd, 336 U.S. 613, 69 S.Ct. 766, 93 L.Ed. 919 (1949). Ultimately, the Supreme Court concluded that coconspirator liability rested on much the same principle as aider and abettor liability.
The criminal intent to do the act is established by the formation of the conspiracy. Each conspirator instigated the commission of the crime. The unlawful agreement contemplated precisely what was done. It was formed for the purpose. The act done was in execution of the enterprise. The rule which holds responsible one who counsels, procures, or commands another to commit a crime is founded on the same principle. That principle is recognized in the law of conspiracy when the overt act of one partner in crime is attributable to all.
Pinkerton, 328 U.S. at 647, 66 S.Ct. at 1184. The fundamental definition of a criminal offense requires the combination of both mens rea (criminal intent) and an actus reus (wrongful act). United States v. Apfelbaum, 445 U.S. 115, 131, 100 S.Ct. 948, 957, 63 L.Ed.2d 250 (1980). In the Pinkerton analysis the actus reus of the substantive offense may be supplied by a fellow conspirator and the defendant's knowledge or participation in that act is not required. The mens rea necessary to transform the act into a criminal offense is evidenced by the defendant’s participation in the conspiracy. Therefore, proof of a conspiracy may serve two ends: first, in itself it is a criminal offense; second, it is evidence of the criminal intent to commit other substantive offenses.
Even though Congress has created a separate crime of conspiracy, it is settled that joint participators in the commission of the substantive offenses may be denominated as conspirators. The conspiracy may be shown as an evidentiary fact to prove participation in the substantive crime.
United States v. Hoffa, 349 F.2d 20, 41 (6th Cir.1965) (citation omitted), aff'd, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966); see also United States v. Papia, 409 F.Supp. 1307, 1316 (E.D.Wisc.1976), aff'd, 560 F.2d 827 (7th Cir.1977). Consequently, the issue is whether the doctrine of speciality prohibits the government from establishing Thirion’s membership in the conspiracy as an evidentiary fact to prove guilt in the other substantive crimes.
The courts which have addressed this issue concluded that the doctrine of speciality does not alter existing rules of evidence or procedure.
It is clear... that even as the speciality doctrine has been defined and broadened in this century, it has never been construed to permit foreign intrusion into the evidentiary or procedural rules of the requisitioning state, as distinguished from limiting the jurisdiction of domestic courts to “try or punish the fugitive for any crimes committed before the extradition, except the crimes for which he was extradited.”
United States v. Flores, 538 F.2d 939, 944 (2d Cir.1976) (quoting Friedmann, Lissitzyn & Pugh, International Law 493 (1969)); see also United States v. Kember, 685 F.2d 451, 458 (D.C.Cir.), cert. denied, 459 U.S. 832, 103 S.Ct. 73, 74 L.Ed.2d 72 (1982). We agree. The doctrine of speciality “reflects a fundamental concern of governments that persons who are surrendered should not be subject to indiscriminate prosecution by the receiving government....” Fiocconi v. Attorney General, 462 F.2d 475, 481 (2d Cir.), cert. denied, 409 U.S. 1059, 93 S.Ct. 552, 34 L.Ed.2d 511 (1972). Neither Thirion nor Monaco should be heard to complain because Thirion was tried only for those crimes for which he was extradited.
III.
Thirion claims that both his constitutional and statutory rights to a speedy trial were violated. Thirion was apprehended in Monaco on March 29,1985. He was arrested and confined at the request of the United States. Thirion contends that he communicated a desire to waive extradition: once to the Procurator of Monaco and twice to United States diplomatic staff. Nonetheless, Thirion was formally extradited, and on June 26, 1985 Monaco released him into the custody of a United States Marshal for transportation to South Dakota. Thirion first appeared before a United States judicial officer on June 28, 1985 when he appeared before a United States Magistrate for arraignment. The first day of trial commenced on October 23, 1985.
Thirion’s statutory right to a speedy trial did not accrue until he appeared before a judicial officer of the District of South Dakota. 18 U.S.C. § 3161(c)(1). Accordingly, the seventy days, id., within which Thirion was to be tried did not begin to run until June 28 when he was arraigned. Thirion’s trial commenced on October 23, 1985, one hundred sixteen days after his arraignment. All but thirty-four of those days are not included, however, due to pretrial motions made by Thirion. §§ 3161(h)(1)(F) and (J). Therefore, Thirion was brought to trial well within the statutory speedy trial period.
Thirion also asserts that his right to a speedy trial as guaranteed by the sixth amendment was violated. Sixth amendment challenges receive separate review distinct from the Speedy Trial Act, United States v. Gonzalez, 671 F.2d 441, 442-43 (11th Cir.), cert. denied, 456 U.S. 994, 102 S.Ct. 994, 73 L.Ed.2d 1271 (1982), although it is an unusual case in which the sixth amendment right has been violated when the act’s time limit has been met. United States v. Nance, 666 F.2d 353, 360 (9th Cir.), cert. denied, 456 U.S. 918, 102 S.Ct. 1776, 72 L.Ed.2d 179 (1982). In determining whether a defendant’s sixth amendment speedy trial right has been violated, we consider four factors: “Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972) (footnote omitted). Two hundred eight days elapsed from the time of Thirion’s arrest in Monaco until the first day of trial. Thirion attempts to attribute the ninety-two-day delay between his arrest in Monaco and his arraignment in the United States to the government. Thirion contends that he attempted to waive extradition and return to the United States. His contention is supported only by his own testimony and is inconsistent with his flight to Europe, decision to remain abroad when he learned of the indictment against him and his strong reliance on the terms of the extradition. Absent evidence of any formal waiver of extradition, we are unwilling to attribute to the government any delay caused by formal extradition proceedings initiated in compliance with the treaty. Upon Thirion’s return to the United States, the case proceeded to trial in an expeditious and timely manner as noted in the previous discussion concerning the Speedy Trial Act.
Thirion states in his brief that he “consistently and continually requested a speedy trial.” The only assertion of that right which we have encountered in the record is his September 24, 1985 motion to dismiss for lack of speedy trial. Coincidentally, this motion came contemporaneously with this court’s vacating and remanding for new trial the cases of defendants Sablosky and Casperson. Thirion’s assertion of his speedy trial right when the prospect of joinder with Sablosky and Casperson became imminent is uncompelling, particularly when contrasted with his previous willingness to delay in order to obtain the deposition testimony of foreign witnesses.
Thirion complains that the lack of speedy trial prejudiced his defense because of his continuous incarceration. Thirion fails, however, to explain how a speedy trial would have ameliorated the prejudice. Thirion’s incarceration was a result of the district court’s finding that he was a flight risk. The extent to which Thirion’s confinement impinged on his ability to prepare his defense was lessened by the district court’s allowing him furloughs from jail to meet with his attorney.
Weighing the four Barker factors, we conclude that Thirion’s sixth amendment right to a speedy trial was not violated.
IV.
At the sentencing of defendants Casperson and Sablosky in the first trial, the district judge made the following comments:
I certainly don’t want to prejudice Mr. Thirion’s case, if he is apprehended and returned here and he may have some defense that we are not aware of and which neither the government nor the defendants saw fit to present. But, on the basis of the testimony that I have heard and on the basis of the evidence presented by the various victims here, I would agree with both the victims and the defendants that the conduct of Mr. Thirion was considerably greater than the criminal conduct of any of the defendants here on trial. He certainly got most of the money and got a disproportionate amount of the money that was obtained from the victims. Now, having said that Mr. Thirion on the basis of the evidence up to this point is the most culpable is not to say that the defendants present here have no culpability.
On the basis of this statement Thirion moved the judge to recuse himself from presiding at the second trial. 28 U.S.C. §§ 144 and 455. The district court denied Thirion’s motion.
In reviewing the district court’s decision, we will not reverse absent an abuse of discretion. In Re Federal Skywalk Cases, 680 F.2d 1175, 1183 (8th Cir.), cert. denied, 459 U.S. 988, 103 S.Ct. 342, 74 L.Ed.2d 383 (1982); see also United States v. Faul, 748 F.2d 1204, 1210 (8th Cir.1984) (challenges under §§ 144 and 455 may be considered together), cert. denied, 472 U.S. 1027, 105 S.Ct. 3500, 3501, 87 L.Ed.2d 632 (1985). In order for the allegations of bias or prejudice “to be disqualifying [they] must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.” United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 1710, 16 L.Ed.2d 778 (1966) (Harlan, J., dissenting); Faul, 748 F.2d at 1211.
The rule of law, without belaboring the point, is that what a judge learns in his judicial capacity — whether by way of guilty pleas of codefendants or alleged coconspirators, or by way of pretrial proceedings, or both — is a proper basis for judicial observations, and the use of such information is not the kind of matter that results in disqualification. Rules against “bias” and “partiality” can never mean to require the total absence of preconception, predispositions and other mental habits____
United States v. Bernstein, 533 F.2d 775, 785 (2d Cir.), cert. denied, 429 U.S. 998, 97 S.Ct. 523, 50 L.Ed.2d 608 (1976), cited with approval in Hale v. Firestone Tire & Rubber Co., 756 F.2d 1322, 1329 (8th Cir.1985). Judge Jones’ observation came entirely from his participation at the previous trial. To accept Thirion’s argument would mean that no judge could preside at a second trial upon remand from an appellate court. The district court did not abuse its discretion in denying Thirion’s motion for recusal.
V.
Upon remand from their first appeal the trials of Casperson and Sablosky were joined with Thirion’s. Defendants objected to joinder and moved for severance. Casperson and Sablosky argue on appeal that the district court erred in permitting joinder. “Generally persons charged with conspiracy are to be tried together.” United States v. Moeckly, 769 F.2d 453, 465 (8th Cir.1985), cert. denied, — U.S. -, 106 S.Ct. 1196, 89 L.Ed.2d 811, — U.S. —, 106 S.Ct. 1947, 90 L.Ed.2d 357 (1986). The district court liberally granted requests from defendants for limiting instructions to prevent prejudice. The effectiveness of these instructions was demonstrated by Sablosky’s conviction on only two of the ten counts against him. Defendants have failed to show clear prejudice and an abuse of discretion necessary for reversal. See United States v. Miller, 725 F.2d 462, 467 (8th Cir.1984).
VI.
The final issue raised by Casperson in his appeal is that the district court erred in refusing to give a limiting instruction regarding the testimony of Andy Nicholaw. The rules of evidence provide for such an instruction.
When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.
Fed.R.Evid. 105. A request for a limiting instruction should be specific and timely. 21 C. Wright and K. Graham, Jr., Federal Practice and Procedure § 5065 p. 327 (1977); see also Fed.R.Evid. 103. Casperson requested an instruction limiting the jury’s “consideration of all of [Nicholaw’s] testimony except his testimony concerning contacts with Jack Casperson and that they may not be considered against Mr. Casperson, with the exception of those that directly deal with him.” This request came after the government’s direct examination, the cross-examinations by Thirion and Sablosky, and immediately before Casperson’s own cross-examination. On appeal Casperson has first identified those portions of Nicholaw’s testimony to be limited. Casperson’s request may have been specific enough had it immediately followed the offending testimony. Likewise, the request would have been timely had it been made with greater specificity identifying the subject of the testimony to be limited. Because of its deficiency, however, the request was neither timely nor specific and the district court did not abuse its discretion by not giving the requested limiting instruction.
VII.
Sablosky raises three separate incidents of prosecutorial misconduct. The first need not detain us long. Sablosky contends that the government suppressed exculpatory evidence by not revealing that one of its witnesses held the opinion that Sablosky was innocent. The government denies any knowledge of the opinion held by the witness. Standing alone, such evidence is not truly exculpatory evidence because it is inadmissible as it invades the province of the jury. United States v. Ariza-Ibarra, 605 F.2d 1216, 1226 & n. 13 (1st Cir.1979), cert. denied, 454 U.S. 895, 102 S.Ct. 392, 70 L.Ed.2d 209 (1981); Wesson v. United States, 164 F.2d 50, 55 (8th Cir.1947); see also Fed.R.Evid. 701.
The second incident involved the government’s cross-examination of Sablosky in which it elicited Sablosky’s legal representation of a reputed organized crime member. The relevant portion of the record is set forth in the margin.
“The district court has broad discretion in determining whether an improper question has so tainted the trial as to require mistrial.” United States v. Clinton, 711 F.2d 115, 117 (8th Cir.1983). The questions came early in a lengthy trial and the subject did not subsequently resurface. Sablosky’s answer linked a client who had defrauded him to organized crime, not Sablosky himself. Accordingly, while we reject the belated reasoning given by the government to establish the relevancy of the inquiry (particularly when it was not argued to the district court), we conclude that the district court did not abuse its discretion in denying Sablosky’s motion for a mistrial.
We find the final incident of alleged prosecutorial misconduct more troubling. On the morning that Sablosky took the stand to testify in his defense, the government delivered to him a “target” letter advising him that he was under investigation by the grand jury for allegedly committing perjury when testifying at his first trial. The letter was purportedly delivered to allow Sablosky an opportunity to testify before the grand jury if he so desired. A second letter was delivered the next day which apparently corrected a typographical mistake. The following day Sablosky moved for a mistrial.
The government argues that the letter was delivered in order to prevent the appearance of prosecutorial vindictiveness should Sablosky be acquitted at his second trial. We agree with the district court that the timing of the letters is highly suspect. However, in situations involving prosecutorial misconduct the touchstone “is the fairness of the trial, not the culpability of the prosecutor.” Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 947, 71 L.Ed.2d 78 (1982). Despite the letters, Sablosky testified fully in his defense and did not allege that his testimony would have differed. The district court expressed its intent to grant an immediate mistrial should Sablosky’s scrutiny by the grand jury become public. Therefore, we find that the district court did not err in refusing to grant a mistrial. Nonetheless, we do not condone the actions of the prosecutor and we caution him to be more circumspect in the future.
VIII.
Sablosky finally challenges the sufficiency of the evidence to sustain his conviction. On such challenges our standard of review is oft-stated.
An appellate court reviewing the sufficiency of the evidence to support a conviction must view the evidence in the light most favorable to the verdict, accepting all reasonable inferences that logically arise from this evidence. The evidence need not “exclude every other hypothesis except that of guilt [so long as it is] sufficient to convince the jury beyond a reasonable doubt that the defendant is guilty.”
United States v. Wilson, 787 F.2d 375, 381 (8th Cir.1986) (citations omitted) (quoting United States v. Shahane, 517 F.2d 1173, 1177 (8th Cir.), cert. denied, 423 U.S. 893, 96 S.Ct. 191, 46 L.Ed.2d 124 (1975)). Sablosky’s mail fraud conviction arises out of the letter he sent to investors advising them that he held valuable stocks in his attorney trust account to secure their fee payments. The jury could reasonably find this letter fraudulent for several reasons.
First, Sablosky wrote that the securities were held in his attorney’s trust account. In fact, they were segregated in a locked portion of his desk. Such an arrangement is inconsistent with the language of the letter. A reasonable juror could conclude that the intent of the letter was to convey a greater sense of security than the unembellished facts would warrant.
Second, Sablosky stated that the assignment of the tuna commissions from Casperson would have been of itself adequate consideration for IBS to guarantee the notes. Sablosky, however, calculated the tuna commissions to be worth $180,000.00 while the advance fees paid by investors totalled approximately $498,000.00. It is anomalous to suggest that the tuna commissions offered adequate security.
Third, Sablosky contends that the unrebutted testimony of John Flandreau established that he could reasonably believe that the securities were of adequate value to secure the investors’ payments. Flandreau’s valuation could have been discounted by the jury for several reasons. Flandreau did not possess a degree in accounting. Flandreau’s valuation of the corporation was based on several elements: Victor Brown patents, acquisition of another company (Fourth Sink) and goodwill. Flandreau’s valuation of the patents was based on the opinion of an engineer who had not even examined the patents (another engineer to whom Flandreau showed the patents placed no value on them). Further, another witness (Nicholaw) testified that the Brown technology had limited application to the use to which Thirion intended to put it. The value of the Fourth Sink acquisition was limited as only a small portion of its purchase price had actually been paid. As to the goodwill, the jury could reasonably discount any value attached to it as the corporation had not advanced beyond the development stage.
Finally, the jury could reasonably infer from the tenor of the letter that the investors were led to believe that the securities had an immediate market value. Sablosky admitted that the securities had no immediate market value. Accordingly, we hold that sufficient evidence existed in the record for the jury to conclude that Sablosky committed mail fraud when he sent the letter. Likewise, the evidence is sufficient to sustain his conspiracy conviction.
IX.
Thirion’s final claim of error is that the district court imposed a disproportionate and indefinite sentence. “ ‘A sentence is generally not subject to review unless it exceeds statutory limits, violates constitutional or procedural requirements, or reflects that the district court failed to exercise its discretion or manifestly or grossly abused its discretion.’ ” United States v. Goeller, 807 F.2d 749, 751 (8th Cir.1986) (quoting United States v. Rosandich, 729 F.2d 1512, 1512 (8th Cir.1984) (per curiam)). Thirion’s five-year prison sentence is well within the statutory limit. Further, the greater length of his sentence as compared to those of the other defendants is not an abuse of discretion.
Thirion’s argument that the district court erred in ordering restitution is without merit. Thirion contends he did not receive the required statutory notice that the district court was considering imposing restitution. 18 U.S.C. § 3553(d). The effective date of the statute, however, is November 1, 1986. See 18 U.S.C.A. § 3551 note (West Supp.1986). Accordingly, the notice provision does not apply to Thirion’s prior sentencing. Thirion’s argument regarding the constitutionality of the Victims Protection and Restitution Act of 1982 rests on the infirm ground of the subsequently reversed district court opinion in United States v. Welden, 568 F.Supp. 516 (N.D.Ala.1983), reversed in relevant part and remanded sub nom., United States v. Satterfield, 743 F.2d 827 (11th Cir.1984), cert denied, 471 U.S
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_usc2
|
11
|
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 11. 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.
BEALL et al. v. PINCKNEY.
No. 11296.
Circuit Court of Appeals, Fifth Circuit.
July 6, 1945.
James N. Daniel, of Chipley, Fla., for appellants.
Leo. L. Foster, of Tallahassee, Fla., for appellee.
Before SIBLEY, HUTCHESON, and LEE, Circuit Judges.
SIBLEY, Circuit Judge.
The Bank of Malone failed and Federal Deposit Insurance Corporation was appointed its receiver on April 7, 1942. On April 24th the receiver instituted bankruptcy proceedings against L. H. Beall and he was adjudicated a bankrupt on July 21st, and T. F. Pinckney was elected and qualified as trustee in bankruptcy on August 22nd. On'September 24, 1944, the trustee brought a plenary suit in the district court against the bankrupt Beall and his wife Marietta “Tot” Beall praying that the trustee “be adjudged the equitable owner” of a house and lot in Marianna, Florida, the legal title to which was in Mrs. Beall, and that all title be divested out of the Bealls and given to him. On a motion for summary judgment it was held there was no genuine issue as to any material fact, and a decree was entered as prayed. The defendants have appealed.
On the motion for summary judgment only the pleadings were considered. The allegations of the petition were admitted by the answer, to the effect that prior to December 1, 1941, L. H. Beall had misappropriated about $119,000 of the funds of the Bank and owed it that amount; and on that date he paid to H. C. Smith, Sr., his check, bearing on its face a notation that it was the purchase price of the house and lot in controversy; and that in consideration of the check Smith, and other members of his family, made a clear title to Mrs. Beall, the wife of L. H. Beall, she paying nothing herself. Later, about March 15, 1942, Beall, who dealt in gas fixtures and equipment, transferred to Mrs. Beall $500 worth of such fixtures, she paying nothing therefor. The general allegation that this was all done “to avoid creditors,” and “for the purposes of defrauding his (Beall’s) creditors and hindering and delaying the collection of the indebtedness due the Bank” was denied by the answer, which, as amended, averred that the money against which the check to Smith was drawn was a special account raised by borrowing $5,000 from another bank which was later repaid by funds distributed to Beall from his father’s estate; that Beall was on December 1, 1941, and for many years before had been, the head of a family residing in Florida which consisted of his wife and son then twelve years old, and was entitled under the Constitution of Florida to a homestead; that the property purchased was of the sort named in the Constitution and laws of Florida relating to homesteads and was purchased for a home for the family, which moved into the house as soon as it was readied for occupancy about February 1, 1942, and he and his wife and son have ever since lived there, except that Beall has since October 6, 1943, been in a federal prison; the gas fixtures were added as an improvement of the home about February 15, 1942; if the deed had been made to Beall his creditors could have had no right or claim against the property as his homestead, and the talcing of the title -in the name of Mrs. Beall was not a fraud on any creditor and does not in law hinder or delay any of his creditors in the collection ■of their debts; and if said property be Beall’s it is his homestead. The decree recites the substance of these alleged facts and holds that there is no genuine issue of material fact, and that only a decree for plaintiff is possible. The decree does not mean that apparent issues are not genuine because not sustained by any evidence, but rather that the facts denied by the answer and the additional facts therein alleged are not material.
The suit is brought by the trustee in bankruptcy in the district court by reason of the jurisdiction, concurrent with that of the State court, established by the Bankruptcy Act, 11 U.S.C.A. § 110, sub. e(3). But the right to be tried is one which is to be tested by State law, as provided by Sect. 110, sub. e(l) : “A transfer made or suffered or obligation incurred by a debtor adjudged a bankrupt under this title which under any Federal or State law applicable thereto, is fraudulent as against or voidable for any other reason by any creditor of the debtor, having a claim provable under this title, shall be null and void as against the trustee of such debtor.” No federal law is applicable to the transactions, but only the State law applying to transactions fraudulent and void as to creditors, and the receiver of the Bank of Malone is the only creditor mentioned. The sole invalidity alleged is that Beall had the transfers “made for the purposes of defrauding his creditors and hindering and delaying the collection of indebtedness due the Federal Deposit Insurance Corporation.” The precise question therefore is: Could this creditor under Florida law avoid these transfers on this ground?
We preliminarily emphasize two other matters. First, it is to be remembered that the trustee is not asserting an equitable title in himself because any of the misappropriated money of the Bank is traceable into this property. The money used to buy the home was free of any charge or equity, the undoubted money of Beall. Second, the argument by appellee that under the bankruptcy law Beall’s homestead can in no event be enjoyed because he did not claim the exemption in his schedule, and because having transferred it to hits wife in fraud of creditors it cannot be exempted under 11 U.S.C.A. § 24, is premature. Whether Beall has transferred his property in fraud of creditors is the thing to be tried in this case. Whether Jhe is too late to claim an exemption in bankruptcy can only arise in the bankruptcy proceedings. In this plenary suit the only question is whether the transfers to Mrs. Beall were or were not made for the purpose of delaying or defrauding creditors and specifically the debt due the Bank.
The statute of Florida touching transfers in fraud of creditors is an adoption on Jan. 28, 1823, of the old English Statute of Elizabeth and is now found in Florida Statutes, Ann. § 726.01. From its verbosity these applicable words are taken: “Every * * * transfer and assignment * * * by writing or otherwise * * * made or executed, contrived or devised of fraud, covin, collusion or guile, to the end, purpose or intent to delay, hinder or defraud creditors or others of their just and lawful actions, suits, debts * * * shall be from henceforth as against the person or persons * * * so intended to be delayed, hindered or defrauded, deemed, held, adjudged and taken to be utterly void, frustrate and of none effect * * The Florida Supreme Court declares that there must be a credit- or to be defrauded, a debtor intending fraud, and a conveyance of property applicable by law to the payment of the debt. Bay View Estates Corporation v. Southerland, 114 Fla. 635, 154 So. 894, 900. But there are circumstances and situations which have been called “badges of fraud,” and for a debtor to transfer his property without consideration to his wife, to the detriment of his creditors, is generally such. What happened here is that Beall, having borrowed $5,000 for this special purpose, did not transfer the money to his wife, but bought this house, becoming immediately on paying the price, the equitable owner of it; but instead of taking title to himself he had it made to his wife. What he thus transferred was his equitable right in the property. Were these the only facts, a case of transfer in fraud of existing creditors would be prima facie made out, and a creditor could in equity trace his debtor’s money into the purchase and subject the property to his debt. Alston v. Rowles, 13 Fla. 117, 118; Roper v. Hackney, 15 Fla. 323; Florida Loan and Trust Co. v. Crabb, 45 Fla. 306, 33 So. 523; First State Bank v. Fitch, 105 Fla. 435, 141 So. 299, 301.
But none of these cases, cited by appellee, has to do with the homestead right, or with a transaction entered into with the purpose and with the actual result of establishing 'a family home. The statute of Elizabeth, the progenitor of the law as to hindering and defrauding creditors, belongs to the age that gave the creditor the Shakespearean “pound of flesh”. The policy of the law then was to strip the debtor naked, and afterwards imprison him for the remaining debt. Such imprisonment has been universally abolished. Bankruptcy statutes are no longer used primarily to punish an insolvent, but more often to release and rehabilitate him. In the United States public policy has looked beyond the debtor to his family, when he has one, and has regarded the reasonable protection of the family as of greater concern than the full payment of debts. The resulting homestead laws are peculiarly American. 26 Am.Jur., Homestead, Sect. 3. In Florida the exemption of the homestead began with the Constitution of 1868. It was continued and improved in the Constitution of 1885. The present self-executing provision is quoted in the margin. Under it, the homestead, whether rural or urban, as there defined, owned by the head of a family residing in the State is exempt from all process for debts, unless of the named classes which do not include the debt here involved. And this exemption survives the debtor and inures to his widow and heirs. Hill v. First Nat. Bank, 73 Fla. 1092, 1093, 75 So. 614; Raulerson v. Peeples, 77 Fla. 207, 81 So. 271. The exemption is absolute and permanent unless abandoned. Created by the Constitution itself, in any conflict with older legislation favoring creditors it must be held superior to the statutory rights of creditors as to debts made since the Constitution. We find nothing to the contrary in the decisions of the Florida court. The high purpose of the homestead was stated very recently in Collins v. Collins, 150 Fla. 374, 7 So.2d 443. While the Constitution speaks of the homestead as “owned by the head of a family,” the expression is not to be taken too strictly, and in Murphy v. Farquhar, 39 Fla. 350, 22 So. 681, it was held that the husband’s deed of it to his wife did not defeat it. In Hill v. First National Bank, 73 Fla. 1093, 75 So. 614, the head of a family was allowed to found her claim on a possession retained by consent of her grantee. It is generally held that an equitable interest is enough to support the homestead claim. 26 Am.Jur., Homestead, Sect. 58. In a case where creditors’ rights were asserted under the fraudulent transfer statute the Florida court said that as to the exempt property there were no creditors, for they had no rights in reference to it; Rigby v. Middlebrooks, 102 Fla. 148, 135 So. 563, where a bill like this was dismissed.
We do not, however, find in Florida a case where, as here, the debtor took his own money and bought a home for his family, and had title taken in his wife’s name for that purpose, and afterwards occupied it as a homestead. In other jurisdictions there seems to be a divergence as to whether he can claim it as his homestead. 26 Am.Jur., Homesteads, § 65, Notes 8 & 9; Bremseth v. Olson, 16 N.D. 242, 112 N.W. 1056, 13 L.R.A.,N.S., 170, 14 Ann.Cas. 1158. A like diversity is set forth in 40 C.J.S., Homesteads, § 81. The view has been strongly stated that if the debtor be entitled to a homestead he wrongs his creditors in no way by originally taking title to the property in his wife’s name instead of his own and they cannot assert that the transaction is in fraud of them, Cipperly v. Rhodes, 53 Ill. 346; Peake v. Cameron, 102 Mo. 568, 15 S.W. 70; Kennedy v. First National Bank, 107 Ala. 170, and on rehearing page 179, 18 So. 396, 36 L.R.A. 308, where many cases are collected; Reeves v. Peterman, 109 Ala. 366, 19 So. 512; Kelley v. Connell, 110 Ala. 543, 18 So. 9. That the homestead thus arising prevails over the creditor’s right to avoid the transaction was held in Backer v. Meyer, 8 Cir., 43 F. 702. See also Green v. Root, D.C., 62 F. 191, at page 201; Orr v. Shraft, 22 Mich. 260; Monroe v. May, Weil & Co., 9 Kan. 466, 476; Belden v. Younger, 76 Iowa 567, 41 N.W. 317.
In view of the liberal construction generally given to the homestead laws we incline to hold that a home corresponding to that described in the Florida Constitution, purchased by the head of the family with his free funds for a homestead and actually occupied by him and the family before any actual or constructive seizure to pay his debts, is his homestead, though he may have had title conveyed to his wife. If so making the conveyance be under the law a defeat of this intention on the part of himself and his wife, a court of equity might even reform the conveyance which by mistake of law does not accomplish but defeats the intention of the parties. But even though a perfect homestead did not result, the intention to do what the Constitution not only permits but provides, is not an intention to hinder and defraud creditors within the meaning of the Florida statute on that subject. Nothing has been taken from them to which they were entitled. The family of an imprisoned father has been secured a home by the use of funds inherited from his father, and this is neither morally nor legally wrong, according to the Florida Constitution. In Kettleschlager v. Ferrick, 12 S.D. 455, 81 N.W. 889, 76 Am.St.Rep. 623, a deed from a husband to his wife conveying his homestead was adjudged void as to creditors, but only because it was made pursuant to a plan to abandon that homestead and acquire another, which was done, and for the purpose of sheltering under her name what could no longer be protected as a homestead. No such case appears from these pleadings.
We think therefore that the issues of fact offered by the answer are material and the truth of the allegations ought to be tried, to the intent that it may be found whether there was a fraudulent purpose to hinder this creditor, or a good faith intention to provide a homestead for the family. We express no opinion about the transfer of the gas fixtures because we have had no special argument or briefs on the question of improvements added to a homestead in Florida, if this be one.
The decree as a summary judgment is reversed, and the cause remanded for further proceedings in accordance with this opinion.
Reversed.
Sections 1 and 2 of Article X of the Constitution of Florida.
“Section 1: — A homestead to the extent of one hundred and sixty acres of land, or the half of one acre within the limits of any incorporated city or town, owned by the head of a family residing in this State, together with one thousand dollars worth of personal property, and the improvements on the real estate, shall be exempt from forced sale under process of any court, and the real estate shall not be alienable without the joint consent of husband and wife, when that relation exists. But no property shall be exempt from sale for taxes or assessments, or for the payment of obligations contracted for the purchase of said property, or for the erection or repair of improvements on the real estate exempted, or for house, field or other labor performed on the same. The exemption herein provided for in a city or town shall not extend to more improvements or buildings than the residence and business house of the owner; and no judgment or decree or execution shall be a lien upon exempted property except as provided in this article.
“Section 2: — The exemptions provided for in section one shall inure to the widow and heirs of the party entitled to such exemption, and shall apply to all debts, except as specified in said section.”
Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 11. 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_procedur
|
C
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
OLAN MILLS, Inc., OF TENN. v. ENTERPRISE PUB. CO. et al.
No. 14616.
United States Court of Appeals Fifth Circuit.
Feb. 23, 1954.
Rehearing Denied March 29, 1954.
Bascom D. Talley, Jr., James D. Johnson, Jr., Talley & Anthony, Bogalusa, La., Joe Van Derveer, Chattanooga, Tenn., for Olan Mills, Inc. of Tenn.
Ashton Phelps, New Orleans, La., Henry N. Richardson, Bogalusa, La., Woodrow W. Erwin, Franklinton, La., A. J. Jones, Bogalusa, La., John G. Wein-mann, New Orleans, La., for appellees.
Before HUTCHESON, Chief Judge, and HOLMES and RIVES, Circuit. Judges.
HOLMES, Circuit Judge.
This is an action by the appellant, a Tennessee corporation, against the appellees, all of whom are citizens of Louisiana. The suit is of a civil nature, wholly between citizens of different states, and the matter in controversy exceeds in value the sum of three thousand dollars exclusive of interest and costs. Federal jurisdiction of the case depends solely upon diversity of citizenship and the requisite jurisdictional amount. A motion to dismiss for want of federal jurisdiction was filed by the defendants, but this motion was impliedly overruled by the action of the court below in dismissing the complaint for failure to state a claim upon which relief could be granted.
Olan Mills, Inc., of Tennessee, a foreign corporation engaged in the photography business, was doing business in Louisiana, and was planning to canvass the Bogalusa trade area. The local photographers, of which there were three in number, objected to the entry of Olan Mills into this area. In the interest of harmony, a meeting was held in the office of the Mayor of Bogalusa on Thursday, June 5, 1952. At this meeting, the alleged defamatory remarks were orally made by the two individual defendants. The next morning, the defendant Enterprise Publishing Company printed and published said defamatory utterances. In its complaint, the appellant set forth the facts constituting said libel and slander, its business reputation, and the deliberate intention of the appellees to injure plaintiff. It failed to allege malice.
Defendants White and Mornhinveg filed motions to dismiss the complaint for lack of jurisdiction, misjoinder of parties, and failure to state a claim upon which relief could be granted. The Enterprise Publishing Company raised the same objections, and, in addition, urged that its communications were privileged. After consideration of the matter upon briefs and oral argument, the court dismissed the complaint for failure to state a claim upon which relief could be granted.
We think that the court committed no error in not sustaining the motion to dismiss for lack of federal jurisdiction. With respect to the requisite jurisdictional amount, the allegation of the complaint is that the matter in controversy exceeds the sum of three thousand dollars exclusive of interest and costs, and this is sufficient unless it appears elsewhere in the complaint or by proof aliunde that less than that amount is involved. We find nothing in the complaint, or elsewhere in the record, to indicate a lack of good faith on the part of the plaintiff in seeking to recover damages in excess of three thousand dollars; and, so far as the amount in controversy is concerned, the determination of the right to invoke federal jurisdiction lies in the good faith of the plaintiff. Bell v. Preferred Life Society, 320 U.S. 238, 64 S.Ct. 5, 88 L.Ed. 15; Turmine v. West Jersey & Seashore R. R., D.C., 44 F.2d 614; Associated Press v. Emmett, D.C., 45 F.Supp. 907; 1 Barron and Holtzoff, Federal Practice and Procedure, pp. 47, 426; Dobie on Federal Procedure, Sec. 56, p. 133. In St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 289, 58 S.Ct. 586, 590, 82 L.Ed. 845, the court said: “It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal.”
Neither do we think that the court erred in not dismissing the action on the ground of a misjoinder of parties. Under Rule 21 of the Federal Rules of Civil Procedure, 28 U.S.C.A., misjoinder of parties is not a ground for dismissal of an action, but parties may be dropped or added by order of the court on motion of any party or on its own initiative at any stage of the action, and on such terms as may be just. Under Rule 20 of said rules of civil procedure, all persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction or series of transactions or occurrences, and if any question of law or fact common to all of them will arise in the action.
Turning to the merits, as to the appellee White, the complaint shows, among other things, that his defamatory-statements were directed at the appellant, and that any person hearing them would in reason so construe them. The motion to dismiss admits all the well-pleaded allegations of the complaint. It therefore admits that White (one of the defendants) asserted that you cannot deal in a business manner with a concern of this kind; it admits he said that to attempt to deal with such an organization is like the United Nations trying to deal with the Communists in the truce talks. “You attempt to deal,” he added, “it’s whole hog or nothing with them. This concern is a parasite. They are not a part of anything.” Such allegations tendered an issue for the jury, but the appellee White did not join issue on them; by his motion to dismiss, he admitted them. Sweeney v. Schenectady Union Pub. Co., 2 Cir., 122 F.2d 288, affirmed, 316 U.S. 642, 62 S.Ct. 1031, 86 L.Ed. 1727, rehearing denied, 316 U.S. 710, 72 S.Ct. 1266, 86 L.Ed. 1776; Naihaus v. Louisiana Weekly Pub. Co., 176 La. 240, 145 So. 527; 5 Barron & Holtzoff, Federal Practice and Procedure 191; 53 C.J.S., Libel and Slander, § 11, p. 52; 33 Am.Jur., p. 181, Sec. 192.
As to the defendant Mornhinveg, however, the case is different; the allegations attributed to her simply referred to travelling photographers as a class, and the second part of it was not slanderous per se so far as the appellant was concerned. No innuendo was averred with reference to her remarks, and, as has been stated, no malice was alleged. The complaint did not show that, as against Mrs. Mornhinveg, the plaintiff was entitled to relief. Rule 8(a) (2) Federal Rules of Civil Procedure. Therefore, the judgment of dismissal should be affirmed as to her.
As to the Enterprise Publishing Company, its claim of privilege cannot be availed of by a motion to dismiss; it must be pleaded by answer, since pleas are abolished under the federal rules of civil procedure. There may be an issue for the jury on this subject together with other issues. If the company had a qualified privilege, it may have gone beyond the scope of such defense. Such matters belong to a trial on the merits before the court and a jury, not to a motion to dismiss which admits so much. Kraft v. New York Herald, D.C., 6 F.2d 644; Spanel v. Pegler, 7 Cir., 160 F.2d 619, 171 A.L.R. 699; Riley v. Dun & Bradstreet, 6 Cir., 172 F.2d 303; De Husson v. Hearst Corp., 7 Cir., 204 F.2d 234; Garcia v. Hilton Hotels International, D.C., 97 F.Supp. 5, 8; Rosenberg v. J. C. Penney Co., 30 Cal.App.2d 609, 86 P.2d 696.
The judgment appealed from is reversed, except as above stated, and the cause is remanded to the district court for further proceedings not inconsistent with this opinion. The costs on this appeal should be assessed equally but not jointly (one-half to each) against appel-lees White and Enterprise Publishing Company.
Affirmed in part and reversed in part.
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_appstate
|
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 "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.
PUBLIC SERVICE COMMISSION FOR the STATE OF NEW YORK, Petitioner, v. FEDERAL POWER COMMISSION, Respondent. MOBIL OIL CORPORATION, Petitioner, v. FEDERAL POWER COMMISSION, Respondent. GULF OIL CORPORATION, Petitioner, v. FEDERAL POWER COMMISSION, Respondent. SOHIO PETROLEUM COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, The California Company, Intervenor. CONTINENTAL OIL COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, The California Company, Intervenor. BLANCO OIL COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent. HUMBLE OIL & REFINING COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, Continental Oil Company et al., Intervenors. SHELL OIL COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, The California Company, Intervenor. The SUPERIOR OIL COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, The California Company, Cities Service Oil Company, Intervenors. The CALIFORNIA COMPANY, a Division of Chevron Oil Company, Petitioner, v. FEDERAL POWER COMMISSION, Respondent. TEXACO, INC., Petitioner, v. FEDERAL POWER COMMISSION, Respondent. AMOCO PRODUCTION COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent. AMERADA HESS CORPORATION, Petitioner, v. FEDERAL POWER COMMISSION, Respondent. PHILLIPS PETROLEUM COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent. HUNT OIL COMPANY et al., Petitioners, v. FEDERAL POWER COMMISSION, Respondent.
Nos. 71-1828, 71-1836, 71-1911, 71-1913, 71-1930, 71-1970, 71-1988 to 71-1991, 71- 2015, 71-2020, 71-2025, 71-2055 and 72-1071.
United States Court of Appeals, District of Columbia Circuit.
May 26, 1972.
Messrs. John R. Rebman, Bartlesville, Okl., Martin N. Erck and Kirby Ellis were on the motion to transfer for Humble Oil & Refining Co. and others.
Messrs. Tom P. Hamill and Robert D. Haworth, Houston, Tex., Carroll L. Gilliam and Philip R. Ehrenkranz, Washington, D. C., were on the opposition to the motion to transfer for Mobil Oil Corp., in No. 71-1836.
Mr. Michael H. Rosenbloom, Washington, D. C., was on the opposition to the motion to transfer for Public Service Comm, for the State of New York, in No. 71-1828.
Before BAZELON, Chief Judge, and WRIGHT and LEVENTHAL, Circuit Judges.
Chief Judge Bazelon did not participate in the consideration or disposition of these cases.
PER CURIAM:
These cases involve review of the Federal Power Commission’s opinion and Order Nos. 595 and 595-A, in its Docket Nos. AR 64-2 et al., E, Texas Gulf Coast Area Rate Proceeding. It is unquestioned that the first petition to review was filed in this court by the Public Service Commission of New York, No. 71-1828, and that this court has jurisdiction.
A motion to transfer the review proceedings to the Fifth Circuit has been filed by Humble Oil & Refining Co., and other producers, who filed petitions to review in that circuit which have been transferred to this court. They have apparently been joined by producers who have not filed a separate petition to review but have filed petitions for leave to intervene.
The theory underlying the motion is that the Commission’s opinions and orders under review in the instant proceedings “are in many material decisional respects related to its findings and conclusions” in other proceedings which either have been reviewed in the Fifth Circuit or are slated for review there, and raise “common questions of law, closely related questions of fact, and attempts to comply with the specific criteria set forth” by the Fifth Circuit in Austral, see note 1.
Movants say, inter alia, that the cases should be transferred to the Fifth Circuit “where the Judges are familiar with the myriad complex issues involved” and add that the members of the panel which decided Austral remain on the court and are presumably available for assignment to this case.
We think denial of the motion is in furtherance of the statutory scheme that appeal responsibility be determined by the filing of the first petition to review. 28 U.S.C. § 2112(a).
That statutory command is subject to certain limited exceptions, none of which is applicable here,—
(1) For a case where the first petition to review is filed by a party who is not substantially aggrieved, in effect undercutting the assumption of a good faith petition to review.
(2) For a case of virtually instantaneous filings in two or more circuits.
(8) For a case where the same or inter-related proceeding was previously under review in a court of appeals, and is now brought for review of an order entered after remand, or in a follow-on phase, where continuance of the same appellate tribunal is necessary “to maintain continuity in the total proceeding.” The need for this doctrine is underscored by the consideration that an appellate court may retain exclusive jurisdiction, by remanding the record rather than the case, and it is inappropriate that jurisdiction for unified review depend on such particularities.
This motion goes beyond these limited exceptions and implicitly invokes a theory of specialization of tribunals. That is not what Congress has provided. The contention based on specialization of particular judges is even more debatable. The Judicial Council for this cir-euit, at least, has adopted a system of selection of judges by lot that eschews any concept of specialized appellate judges, and contemplates broadening of judicial exposure in meeting common problems. It provides for retention of the same panel that handled an earlier appeal in the same case, i. e., a situation like that identified in (3), but not for reference to a panel that handled a different ease on the basis of similarity of underlying questions.
In Municipal Distributors Group, cited supra note 2, ordering transfer to the Fifth Circuit of the petition to review the FPC order in Southern Louisiana II, we noted that the Fifth Circuit had already considered Southern Louisiana I (see note 1). We need not consider whether that was, strictly, a different phase of the same or inter-related proceeding. The pleadings represented to this court that the petition to review had been time-stamped two seconds earlier in the Fifth Circuit. We declined to consider whether the principle of the exception identified in (1) might be applicable, since even if the matter were doubtful, or indeterminable, the Fifth Circuit’s earlier exposure in Southern Louisiana I reenforced review in that circuit of the later proceeding which involved, inter alia, the FPC’s authority to reconsider retrospectively certain determinations made in Southern Louisiana I.
Assignment to the Fifth Circuit may not be predicated on a conception that the case is solely one of local concern. The entire Nation is interested in natural gas rates, though for other purposes it may be convenient to refer to certain states as primarily producing areas, and others as consuming areas. Such issues, of national concern, have arisen — and may arise again — in a number of circuits, including the Third, Fifth, Ninth and Tenth, as well as our own. While uniformity of approach is important, in the last analysis it is provided under our system by the Supreme Court. An additional focus at the intermediate level on an issue of national consequence “is not necessarily an evil but may, on the contrary, serve like a stereopticon to enhance depth perception.
Motion denied,
. See Southern Louisiana Area Rate Proceeding, FPC Docket AR 61-2, reviewed in Southern Louisiana Area Rate Cases, Austral Oil Co. et al. v. FPC, 428 F.2d 407 (5th Cir. 1970), cert. denied sub nom. Municipal Distributor Group v. FPC, 400 U.S. 950, 91 S.Ct. 241, 27 L.Ed. 2d 241 (1970). Southern Louisiana II, FPC, Docket AR 69-1, under review in Placid Oil Co. et al. v. FPC, No. 71-2761, 5th Cir., filed Sept. 9, 1971. Other Southwest Area, FPC opinion and order No. 607 and 607-A, review pending, Shell Oil Co. v. FPC, No. 72-1114, 5th Cir., filed Jan. 17, 1972.
. See Municipal Distributors Group v. FPC, 148 U.S.App.D.C. 343, 459 F.2d 1367 (1972) : “This court has recognized that sound doctrine resists ‘forum shopping’ in a ease of mere technical aggrievement, see [Insurance Workers] International Union et al. v. NLRB, 126 U.S. App.D.C. 11, 373 F.2d 671 (1967).” 459 F.2d at 1369.
In International Union, United Auto etc. Workers v. NLRB [Preston Products Co. Inc.] 126 U.S.App.D.C. 12, 373 F.2d 671 (1967), the court reconsidered an order transferring cases to the Sixth Circuit, noted that the Union had not received all the relief requested at the Board stage, and stated: “We think 28 U.S.C. § 2112(a) requires respect for the forum where the Union fiied its petition for review, since that was the first petition for review filed, and we cannot say either that the Union’s claim is frivolous or that it is not genuinely aggrieved.” It limited transfer for lack of genuine aggrievement to the case where the party filing the first petition “has received substantially all the relief contemplated, * * * the special case where the ‘inconsequential’ character of the deficiency in findings or relief is established by the petitioner’s own stipulation, as in Insurance Workers, supra, or other pleading or representation.” 126 U.S.App.D.C. at 13-14, 373 F.2d at 673.
. Int’l Union of Electrical, R. & M. Workers v. NLRB, 120 U.S.App.D.C. 45, 343 F.2d 327 (1965) (Board unable to determine whether employer filed first petition to review, in the Seventh Circuit where it does business, or Union filed first petition in the District of Columbia Circuit. Board proposed to file petition for enforcement in the Second Circuit, as place where unfair labor practice occurred. Mandamus denied.)
. See Pacific Gas & Elec. Co. v. FPC, 106 U.S.App.D.C. 281, 282, 272 F.2d 510, 511 (1958) ; Eastern Air Lines v. CAB, 122 U.S.App.D.C. 375, 378, 354 F.2d 507, 510 (1965). As to Eastern’s use of “same or interrelated” proceeding, the “interrelated” term refers to an organic relation, in what may fairly be called a single “total proceeding” and not merely similarity of legal issues.
. NLRB v. Wilder Manufacturing Co., 147 U.S.App.D.C. 152, 454 F.2d 995 (1971) ; Greater Boston TV Corp. v. FCC, 118 U.S.App.D.C. 162, 334 F.2d 552 (1964).
. Brotherhood of Railroad Trainmen v. Akron B. & B.R. Co., 128 U.S.App.D.C. 59, 83, n. 53, 385 F.2d 581, 605, n. 53 (1967) cert. denied, 390 U.S. 923, 88 S.Ct. 851, 19 L.Ed.2d 983 (1968).
. Dellinger v. Mitchell, 143 U.S.App.D.C. 60, 66, 442 F.2d 782, 788 (1971).
Question: What is the total number of appellants in the case that fall into the category "state governments, their agencies, and officials"? Answer with a number.
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.
The BELL TELEPHONE COMPANY OF PENNSYLVANIA, et al., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, MCI Telecommunications Corporation, American Telephone and Telegraph Company, Telesphere Network, Inc., U.S. Telephone, Inc., Intervenors.
No. 84-1259.
United States Court of Appeals, District of Columbia Circuit.
Argued April 17, 1985.
Decided May 14, 1985.
Linda L. Oliver, Counsel, F.C.C., Washington, D.C., with whom Jack D. Smith, Gen. Counsel, Daniel M. Armstrong, Associate Gen. Counsel, John E. Ingle and Carl D. Lawson, Counsel, F.C.C., Washington, D.C., were on brief, for respondents.
William J. Byrnes, Washington, D.C., with whom Michael H. Bader, Kenneth A. Cox, Thomas R. Gibbon and Theodore D. Kramer, Washington, D.C., were on brief, for intervenor MCI Telecommunications Corp.
Judith A. Maynes, New York City, Robert B. Stecher and Daniel Stark, Washington, D.C., were on brief, for intervenor American Tel. and Tel. Co.
Leo I. George, Washington, D.C., entered an appearance, for intervenors Telesphere Network, Inc. and U.S. Telephone, Inc.
William R. Weissman, Washington, D.C., with whom Charles A. Zielinski, A. Richard Metzger, Karen S. Byrne and Robert A. Levetown, .Washington, D.C., were on brief, for petitioner.
Before MIKYA, GINSBURG and BORK, Circuit Judges.
Opinion PER CURIAM.
PER CURIAM.
This petition for review concerns the fifth and final year of the interim agreement governing rates charged to “other common carriers” (OCCs) for exchange network facilities for interstate access (EN-FIA agreement). For background on EN-FIA and prior proceedings in this court regarding the agreement, see MCI Telecommunications Corp. v. FCC, 712 F.2d 517 (D.C.Cir.1983).
The ENFIA agreement provided that American Telephone and Telegraph Company (AT & T), on behalf of the Bell System Operating Companies (BSOCs), would file annually with the Federal Communications Commission (Commission or FCC) a tariff containing the rates for the following billing year, subject to 15 days’ advance notice before the tariff became effective. For the fourth year of the ENFIA agreement scheduled to begin on May 2,1982, the FCC suspended the tariff filed by AT & T, imposed an interim billing and collection rate, and stated that the interim rate would be subject to adjustment in either direction after Commission determination of the rate properly set under the ENFIA contract.
On September 29, 1982, the Commission prescribed the methodology for calculating rates under ENFIA, and ordered the OCCs to remit to the BSOCs the difference between the lower interim rate and the prescribed rate. Exchange Network Facilities for Interstate Access (ENFIA), 91 F.C.C.2d 1079, 1093-94 (1982). Using the prescribed methodology AT & T filed a new tariff which was in effect for the balance of the fourth year. Several parties petitioned the Commission for reconsideration of the September 29 order; AT & T requested expedition of the Commission’s reconsideration.
The fifth year ENFIA rates were scheduled to begin April 16,1983. On March 28, 1983, while the petitions for reconsideration of the FCC’s September 29, 1982, order remained pending, AT & T filed fifth year rates based on the methodology prescribed by the September 29, 1982, order. AT & T stated in the March 28 tariff filing that the submission was made subject to later recalculation based on the Commission’s eventual — then still awaited — decision in the reconsideration proceeding. The Common Carrier Bureau permitted the fifth year rates to go into effect as scheduled. Exchange Network Facilities for Interstate Access (ENFIA), CC Docket No. 78-371 (Apr. 15, 1983).
On April 5, 1983, the Commission at last issued its Reconsideration Order, and in it altered the prescribed methodology for calculation of the ENFIA rates. The revised methodology increased the fourth year rates, and the Commission approved as lawful retroactive application of the readjusted fourth year charges. Exchange Network Facilities for Interstate Access, 93 F.C.C.2d 739, 763 (1983), aff'd mem. sub nom. GTE Sprint Communications Corp. v. FCC, 733 F.2d 966 (1984). AT & T filed tariff revisions to its fourth year rates, applicable retroactively to the beginning of the fourth year, and the tariff became effective the day after it was filed.
On April 28, 1983, AT & T filed amended fifth year rates based on the methodology the Commission established as correct on April 5 in the Reconsideration Order. The tariff provided that the charges would be retroactive to the beginning of the fifth year, April 16, 1983. The Common Carrier Bureau observed that the proposed rate increase appeared to conform to the EN-FIA methodology approved in the Reconsideration Order. Nevertheless, the Bureau rejected the tariff as unlawful. According to the Bureau, the retroactive (then by less than one month) increase was prohibited by section 203(c) of the Communications Act, 47 U.S.C. § 203(c) (1982) (“[N]o carrier shall ... charge ... different compensation ... than the charges specified in the schedule then in effect.”). Exchange Network Facilities for Interstate Access (ENFIA), CC Docket No. 78-371 (May 16, 1983). The Commission affirmed the Bureau’s ruling. Exchange Network Facilities for Interstate Access (ENFIA), CC Docket No. 78-371 (Apr. 18, 1984).
The BSOCs petition this court to review the Commission’s rejection of a retroactive increase in fifth year rates. We reverse.
It is not controverted that the calculations AT & T made following the April 5, 1983, Reconsideration Order are accurate and in full conformity with the methodology ultimately prescribed by the Commission. The Bureau’s rejection of the April 28, 1983, AT & T tariff filing thus rested solely on the perception that the tariff’s retroactive component (dating the increase back to April 16 rather than forward from May 13) would violate section 203(c). However, the Commission itself had explained crisply, in its April 5 Reconsideration Order discussion of retroactive adjustment of fourth year rates, why such an adjustment is compatible with section 203(c):
Because our investigation was aimed at finding the proper rate under the agreement, we see little difference between this case and City of Piqua v. FERC, 610 F.2d 950 (D.C.Cir.1979), where the enforcement of an agreed upon prior effective date for rate increases was not considered retroactive ratemaking. Furthermore, under circumstances where it is the terms of an agreement that are at issue and both sides have participated in the proceeding and have been given notice as to the actual effective date of the rate, and where any of the parties may be responsible for error, fairness dictates that a retroactive adjustment be applicable to either side.
Exchange Network Facilities for Interstate Access, 93 F.C.C.2d at 763 (1983); see also Hall v. FERC, 691 F.2d 1184, 1191-92 (5th Cir.1982), cert. denied, — U.S. -, 104 S.Ct. 88, 78 L.Ed.2d 96 (1983).
We find this reasoning correct and fully applicable to the fifth year retroactive rate adjustment at issue here. The Commission attempts to distinguish the fourth year retroactive rate change from the fifth year tariff by noting that the fourth year adjustment was made initially to a Commission-imposed interim rate while the April 28, 1983, filing proposed a retroactive alteration in a previously filed tariff. This distinction is not altogether accurate and, in any event, has scant relevance to the policy or purposes of section 203(c) or the ENFIA agreement. Indeed, as petitioners point out, the FCC’s distinction would operate in a senseless manner. It would allow re-troactivity only to those who file conspicuously inappropriate rates: if the filed rates are sufficiently questionable to warrant suspension, the carrier can eventually obtain the full, fair rate retroactively; if the filing is sufficiently close to stand pending investigation, no retroactive adjustments will be made in the carrier’s favor.
In sum, had the Commission corrected its September 29,1982, order in February 1983 rather than in April, AT & T would have been positioned to file a conforming tariff on March 28, 1983, the fifth year ENFIA rates would have fallen smoothly into place on April 16, and the interim agreement would have run its course without generating this parting federal court case. The Commission appropriately adjusted for the flaws in its September 29,1982, order when it ruled on retroactively effective fourth year rates. It should have followed suit in ruling on fifth year rates. Its failure to do so was capricious.
Because (1) the tariff filed by AT & T on April 28, 1983, does not violate section 203(c), sensibly read; and (2) the Commission does not question the filing in any other respect, we discern no nonarbitrary reason to reject the tariff.
For the reasons stated, we set aside as unlawful the order to which the petition is addressed and remand this matter to the Commission with directions to accord full retroactivity to the fifth year tariff revisions as presented in AT & T’s April 28, 1983, tariff filing.
It is so ordered.
. AT & T subsequently filed the same rates under protest with a prospective effective date. Those rates became effective on June 10, 1983. Thus, the sole matter at issue is whether the higher fifth year rates should have been applicable between April 16 and June 10, 1983.
. We note, particularly, that the April 5, 1983, Reconsideration Order’s fourth year retroactive increase did in fact alter a tariff — the tariff that was prescribed by the September 29, 1982, order and applied to the balance of the fourth year.
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_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.
LANCE, Inc. v. UNITED STATES.
No. 6263.
United States Court of Appeals, Fourth Circuit.
Argued June 15, 1951.
Decided June 18, 1951.
Frank H. Kennedy, Charlotte, N. C., for appellant and cross-appellee.
Melvin Richter, Attorney, Department of Justice, Washington, D. C. (Holmes Baldridge, Asst. Atty. Gen., Thomas A. Uzzell, Jr., U. S. Atty., Ashville, N. C., Francis H. Fairley, Asst. U. S. Atty., Charlotte, N. C, Samuel D. Slade, Arthur W. Murphy and George F. Foley, Attorneys, Department of Justice, all of Washington, D. C., on the brief), for appellee and cross-appellant.
Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.
PER CURIAM.
These are cross appeals from a judgment in favor of the United States for the recovery of damages under the Walsh-Healey Act of June 30, 1936, 49 Stat. 2036, 41 U.S.C.A. §§ 35-45. The appeal of the United States complains because interest was awarded only from the institution of the action, the appeal of the defendant because the action was not held barred by the two-year statute of limitations imposed by section 6 of the Portal-to-Portal Act of May 14, 1947, 61 Stat. 87, 29 U.S.C.A. § 255. It is not necessary to pass upon the interest point, since we are satisfied that the maintenance of the action is barred by the statute of limitations relied on. The employments lipón which the action is ■based were in the year 1945. The action was not instituted until 1949, more than four years later. The government contends that the cause of action did not accrue until the Public Contracts Administrator made his report with respect to the matter, which was in 1949, only a few months before the action was instituted. The judge below so held, which was in accordance with the holdings in several District Court decisions: Since then the Court of Appeals of the Fifth Circuit, after a careful review of the matter, has held to the contrary in an able opinion by Judge Sibley in United States v. Lovknit Mfg. Co., Inc., 5 Cir., 189 F.2d 454. We are in accord with this holding and think that nothing need be added to what was said by Judge Sibley. The judgment appealed from is accordingly 'reversed.
Reversed.
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_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".
JEFFERSON v. HELVERING, Commissioner of Internal Revenue, et al.
No. 7556.
United States Court of Appeals for the District of Columbia.
Decided Feb. 17, 1941.
D. H. Blair and George D. Brabson, both of Washington, D. C., for petitioner.
Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key and Newton K. Fox, Sp. Assts. to the Atty.' Gen., Department of Justice, and J. P. Wenchel, Chief Counsel, and Irving M. Tullar, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. G, for respondent.
Before GRONER, Chief Justice, and VINSON and RUTLEDGE, Associate Justices.
VINSON, Associate Justice.
The Board of Tax Appeals has agreed with the Commissioner’s determination that the petitioner has a deficiency in his income tax return for the year 1935, since he is not entitled to deduct, as he did, premium payments on five insurance policies. The Board found the facts as stipulated by the parties. Our statement of the case is based upon the stipulation.
The taxpayer was a member of the Iselin-Jefferson Company partnership. The other partner, William Iselin and Company, also a partnership, furnished most of the capital. The taxpayer furnished his services. The taxpayer had valuable connections with two textile mills, the Fitzgerald and the Cochran Cotton Mills. The IselinJefferson Company acted as a selling agent for these Mills among others. Both Mills were indebted to William Iselin and Company, and to the Chemical Bank and Trust Company of New York. The Mills needed further financing and the creditors desired some additional guaranty of their accounts. The taxpayer’s position became seriously involved, and the dissolution of the IselinJefferson Company partnership, his chief source of livelihood, was being considered. Accordingly, the taxpayer in 1931 named the William Iselin and Company partnership the beneficiary in four insurance policies to secure his guaranty of the obligations of both Mills, and in 1932 assigned one of his policies to the Bank to secure his guaranty of the Fitzgerald debt. The taxpayer paid the premiums on the five policies in 1935. It is this item that is in dispute.
The Commissioner argues that the insurance premiums are not deductible from gross income because they fall under the general provision of Section 24 (a) (l) which disallows any deductions for personal expenses. It is argued further that Section 24 (a) (4), which allows no deductions for premiums paid on insurance covering the life of anyone financially interested in the taxpayer’s business where the taxpayer is a direct or indirect beneficiary, is specifically applicable.
It is clear that when a policy is used to secure a debt the premiums cannot be deducted. The taxpayer concedes this and so the question is whether he has brought his case out of the general rule. In his attempt to show that this is a special case, the taxpayer contends that he has ceased to be a beneficiary, that the insurance was not pledged to secure a loan as in the usual case but was in substance a contract of indemnity, and therefore the premium payments are deductible as business expenses under Section .23 (a).
The facts tend to reveal, however, that the assignment and the changes in beneficiaries were meant to affect additional security for an earlier endorsement of a debt rather than to create a contract of indemnity. The policy assigned to the Bank on May 3, 1932, shows that the Bank was made the beneficiary when it was issued on December 22, 1925. Since under the terms of this policy the taxpayer could change the beneficiary unless assigned, it is probable that the Bank, in 1932, was protecting its security. The language of the petition to the Board, the stipulation of facts, the opinion of the Board, and the petition for review, indicates that the transactions involving the five insurance policies resulted from the taxpayer’s necessity of furnishing additional security for debts already endorsed. Apparently, then, the taxpayer was secondarily liable on the Mill accounts before 1931. In addition it should be remembered that the Iselin-Jefferson Company had obtained most of its capital from William Iselin and Company; the former probably remained a debtor of the latter and may well have been in the position to be called upon to make good any loss on the Mill accounts. If this were so, Jefferson by his status as a partner, was contingently liable on the Mill debts. At any rate it appears that the assignment and changes in beneficiaries were made in order to give the creditors further security.
Even if this were the first time that the taxpayer endorsed the Mill accounts, it would seem that the insurance transactions were more that of securing the debts assumed than the making of an indemnity contract. At the outset the taxpayer’s analogy to a contract of indemnity lacks perspicuity. From the facts, as stipulated, it would seem that the taxpayer was trying to protect his source of livelihood. In his petition for review here, and as far as we can tell for the first time, the taxpayer emphasized the importance to the partnership of his services. As his petition comes to a conclusion, however, he reasons that under his indemnity contracts he had to pay the insurance premiums in order to keep the Mills operating and his partnership together to save his interest in the latter. Nonetheless his brief stresses that the partnership demanded some indemnity to insure his continued services. The brief impliedly admits that if the transaction were for his personal benefit, he should pay the tax. The events leading up to the transaction make it appear as though the taxpayer was preserving his source of livelihood, and in the next to the last paragraph of his brief he again points out this conclusion. If the partnership were worried about losing his services it would be reasonable to suppose that the Company would take out insurance on the taxpayer’s life, name itself beneficiary, and pay the premiums. We cannot tell whether the “contract” was to indemnify himself against loss of livelihood, or to indemnify the partnership against loss of his services. Probably he means both, but the transaction still appears to us to be more in the nature of securing a debt than of indemnifying anybody. He may have been protecting himself and the partnership, but he was indemnifying neither except in the sense that collateral on a debt would so do.
Even if the taxpayer used his insurance as an indemnity bond, inter alia, that would not mean necessarily that he should be outside of the general rule of non-deductibility of premium payments. An insurance policy is a functional instrument, likewise an indemnity bond, but they serve different functions. Payment of a premium on an indemnity bond takes care of a risk cost. Payment of an insurance premium does this and also builds an equity. Granting, contrary to our determination, that this taxpayer used his insurance to serve the added function of an indemnity bond, he still retains an estate which will in all probability benefit him.
The taxpayer counters by stating that he lost his equity in the policies inasmuch as they were irrevocably assigned. The instrument assigning the policy to the Bank provided that the object and the extent of the assignment is to secure the assignee against the indebtedness. Hence, if the debt is paid, the assignment ceases. In the four policies in which the beneficiary was changed to William Iselin and Company, the taxpayer retained his general power under the policies to further change the beneficiaries. If the debts were paid, therefore, the taxpayer would be free to name other beneficiaries including himself. The record even fails to show how William Iselin and Company could prevent a change in the beneficiary before the debt was paid; it may be that there was a contractual agreement as to the taxpayer’s liability and behavior or that he delivered the policies to the creditor.
The taxpayer suggests that perhaps the best test of the irrevocability of these assignments is to ask the question who would have received the proceeds of the policies if he had died in 1935. Then he shows that the monies would have gone to these particular creditors, and says his estate would not have received anything. This is true whenever a policy is put up as security on a debt equal to or larger than the face value of the policy and the obligation must be paid through the use of the collateral at the insured’s death. And so this test of irrevocability suggested by the taxpayer goes not so much to the legal nature of the assignments as to whether he will receive any actual economic benefit from the policies. In this light, if the policies are used to pay the debt, it would seem that there is still a benefit to the taxpayer for his liabilities will be reduced.
This brings us to the taxpayer’s contention that since he was hopelessly insolvent, and since the Mills faced disaster when the guaranty was made, his beneficial interest was gone factually. His statement of financial condition, as of 1935, shows assets of over $161,000. He owed his partnership $159,000, and others about $20,000. This does not show hopeless insolvency. Furthermore, the value of his partnership interest is not listed among his assets. His return for 1935 shows an income of $29,-900 from the partnership. Its value to him would seem to be more than the $18,-000 needed to balance the deficit.
Of course he has guaranteed the accounts of the Mills amounting to around $545,000. He pledged $178,000 worth of insurance on this guaranty. This liability is contingent. The Mills are the primary debtors. It cannot be assumed that they will default. The record merely shows that in 1931 they had large debts, were seriously pressed for funds, and could not receive further credit on their own. It does not show that they were insolvent then, much less in 1935. Assuming that they were insolvent in 1935 these debts might be paid. The taxpayer states that this is not the ordinary case of the payment of insurance premiums on policies pledged to secure a loan of the taxpayer. With this we agree, but add, it is the stronger case of a pledge to secure the debt of another with no clear showing that the primary obligor will not be able to meet the obligation.
The taxpayer, trying to clinch his argument that his equity in the insurance is completely gone, says that the argument that he might become a beneficiary is based upon three contingencies — if the two insolvent cotton Mills pay their debts in full, if the taxpayer is able to keep up the premiums, and if the taxpayer happens to be living when the debts are paid. But such verbal niceties can be marshaled the other way. The taxpayer will be a beneficiary before or at his death unless none of the following has happened: payment of the debts in full, or in sufficient part to make the value of the policies exceed the unpaid portion by the Mills or the taxpayer; the substitution of other security for the policies; a showing that the taxpayer’s estate has not in fact received a benefit by the use of the collateral in paying the debts even though it appears that the liabilities would be reduced by the amount of the insurance proceeds.
Laying aside such hypothetical reasoning, the taxpayer, although he has made an earnest argument, has simply failed to show why his action of assigning and changing beneficiaries was not the usual case of pledging personal insurance for a debt one has chosen to assume. The taxpayer says that substance — not form should control. To this all will agree. In making his argument, however, the taxpayer under-emphasizes the substance of insurance. A holder of an insurance policy is continually buildi'ng an estate. That estate usually inures to his benefit <?r satisfaction. The taxpayer has not shown that his case is so different that he does not now have or will never have the direct or indirect benefit of his insurance and that he should escape the generally applied law in this field.
The decision of the Board of Tax Appeals is affirmed.
Affirmed.
This case arises under the Revenue Act of 1934; all sections mentioned are of that Act. U.S.C.A.Int.Rev.Code, Tit. 26.
Klein v. Com’r of Internal Revenue, 7 Cir., 84 F.2d 310; Rieck v. Heiner, D.C.W.D.Pa., 20 F.2d 208; Id., 3 Cir., 25 F.2d 453; Barron v. Com’r of Internal Revenue, 14 B.T.A. 1022.
On this point tile taxpayer calls attention to Art. 24-3 of Income Tax Regulations 86: “If, however, the taxpayer is not a beneficiary under such a policy, the premiums so paid will not be disallowed as deductions merely because the taxpayer may derive a benefit from the increased efficiency of the officer or employee insured.” “Such a policy” is one by which the taxpayer for the purpose of protecting himself insures the life of a business associate. This is not that kind of policy.
“Before the Iselin-Jeffierson Co. became the * * * selling agent for these two mills and would extend credit to them * * *, it was necessary to obtain some endorsement of their credit accounts. * * * Accordingly the petitioner agreed to endorse the credit accounts of the two mills, * * * As the depression continued, * * * the petitioner was called upon for some additional guaranty of his endorsement. $ ;¡; % >f
“Petitioner was accordingly confronted with the necessity of furnishing some additional guaranty which would enable him to retain the two accounts. * * * ”
In language similar to fn. 5.
In language similar to fn. 5.
“Undoubtedly the prime purpose of the taxpayer was to secure to Iselin-Jefferson Company the continuation of his services and his contacts with various textile manufacturers and to save that partnership from dissolution, because that partnership was the taxpayer’s only source of livelihood.” (Italics supplied)
In the Klein ease the taxpayer named the creditor, as trustee, the beneficiary. He did not reserve the right to change beneficiaries. In Parker v. Com’r of Internal Revenue, 13 B.T.A. 115, the taxpayer named his creditors as beneficiaries, but the Board said it may be supposed that if the policy survived the indebtedness the taxpayer would become a direct or indirect beneficiary.
Rieck v. Heiner, D.C.W.D.Pa., 20 F.2d 208, 211; Id., 3 Cir., 25 F.2d 453, 454.
We do not inferentially hold that if the taxpayer had been hopelessly insolvent the premium payments would have been deductible. Compare Parker v. Com’r of Internal Revenue, 13 B.T.A. 115. The reasoning of Quinn v. Com’r of Internal Revenue, 31 B.T.A. 142, relied upon by the taxpayer would not necessarily be applicable.
This reveals the substantial value of the partnership to the taxpayer, and, as has been shown, is one of the reasons he put up the policies as collateral on the Mill debts. With such an income, the taxpayer can pay the premiums. Hence the very use to which the policies were put enables the taxpayer to keep them alive and to preserve his equity.
In this connection it should he noted that when this proceeding started the taxpayer included the premium payment on a $10,000 policy which originally named as beneficiary the Georgia Holding Company, a creditor of the taxpayer. This indebtedness was paid in 1937. The beneficiary has since been changed to the taxpayer’s estate and then to Oliver Iselin. The payment of the Georgia Holding Company debt may well exemplify what will happen to the present contingent debts.
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_origin
|
D
|
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.
In re SEPCO, INC., Debtor. UNITED STATES of America, Farmers Home Administration, and Valley State Bank, Appellants, v. ARLON INDUSTRIES, INC., Appellee.
No. 84-1634.
United States Court of Appeals, Eighth Circuit.
Submitted Oct. 11, 1984.
Decided Dec. 12, 1984.
William J. Klimisch, Yankton, S.D., for appellants.
Craig A. Kennedy, Yankton, S.D., for appellee.
Before ARNOLD, FAGG and BOWMAN, Circuit Judges.
FAGG, Circuit Judge.
Valley State Bank and the Farmers Home Administration (FmHA) appeal the district court’s affirmance of a bankruptcy court ruling in a lien priority dispute arising out of the failure of Sepco, Inc.’s alcohol fuel production facility in South Dakota. The Bank and FmHA seek priority for security interests first acquired by the Bank and now shared by FmHA in return for financing construction of Sepco’s facility. The bankruptcy court found that Arlon Industries, Inc., has a valid mechanic’s lien on Sepco’s plant and equipment with priority over the Bank’s security interests in the same property, 36 B.R. 279, and the district court affirmed. We affirm the judgment of the district court.
Because the value of Sepco’s estate is insufficient to satisfy the liens of both the Bank and Arlon, the Bank urges reversal on two grounds. First, the Bank claims that Arlon’s mechanic’s lien is invalid because it was not timely filed, it contains willful misstatements, and it claims an unreasonable amount for the value of Arlon’s lien. Second, assuming Arlon’s lien is valid, the Bank claims that Arlon agreed to subordinate its lien to any security interests acquired by the Bank.
As the bankruptcy court found the facts, Sepco first contacted Arlon in October 1979 to buy a piece of alcohol production equipment for Sepco’s plant. In early 1980, Sepco ordered more pieces from Arlon, and by February 1980 Arlon and Sepco had established a relationship which remained permanent and continuous for the rest of Sepco’s life. Though the details of Arlon’s obligations changed as Sepco’s experimental design evolved, Arlon remained Sepco’s prime supplier of alcohol production equipment until the plant closed on May 16, 1981. On May 18, 1981, Arlon filed a mechanic’s lien for the unpaid balance on equipment and labor.
Valley State Bank financed Sepco’s operation with a series of secured loans beginning in June 1980. In July 1980, the Bank sought to strengthen its position by asking Arlon to subordinate its lien priority position to that of the Bank. Without contacting anyone at Sepco, a Bank officer presented Arlon with a document that memorialized Arlon’s and Sepco’s completed and contemplated obligations and subordinated Arlon’s lien rights to the security interests of the Bank. Arlon’s officers signed the document in reliance on the Bank officer’s promise to ensure that funds would be set aside from future advances to Sepco to satisfy Sepco’s debts to Arlon. The Bank did not perform its promise to earmark funds for Arlon.
The bankruptcy court held that Arlon’s mechanic’s lien, filed two days after it finished work at the Sepco site, assumed the transaction’s commencement date of February 1980 as its priority date, well before the Bank filed its security interests. In addition, the bankruptcy court determined that Arlon’s mechanic’s lien did not contain willful misstatements and that its claim was reasonable. Finally, the bankruptcy court refused to enforce the subordination agreement on grounds of lack of consideration, fraud, equitable estoppel, unjust enrichment, and equitable subordination under 11 U.S.C. § 510(c). The district court affirmed the bankruptcy court’s decision on the ground that lack of consideration alone is sufficient to justify invalidating the subordination agreement.
When the bankruptcy court’s findings have been approved on review by the district court, the findings are presumptively correct and will not be set aside “ ‘unless some obvious error has occurred in the application of the law, or some serious or important mistake has been made in the consideration of the evidence.’ ” Solari Furs v. United States, 436 F.2d 683, 684 (8th Cir.1971) (quoting Tarutis v. United States, 354 F.2d 546, 549 (8th Cir.1965)). After a careful review of the record, we find no error in the lower courts’ findings or conclusions concerning the validity of Arlon’s lien.
The record supports the lower courts’ finding that Arlon received nothing in return for signing a subordination agreement. Both the bankruptcy and district courts interpreted South Dakota law, e.g., American State Bank v. Cwach, 85 S.D. 562, 187 N.W.2d 107, 109-10 (1971), to prevent the Bank and FmHA from taking advantage of the agreement. We see no reason to deviate from the deference normally accorded to a district court’s interpretation of the law of the state in which it sits, see, e.g., Mitchell v. City of Minneapolis, 707 F.2d 490, 491 (8th Cir.1983).
The judgment of the district court is 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:
|
sc_respondent
|
237
|
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.
CONSOLO v. FEDERAL MARITIME COMMISSION et al.
No. 63.
Argued December 6-7, 1965.
Decided March 22, 1966.
Robert N. Kharasch argued the cause for petitioner. With him on the briefs were William J. Lippman and Amy Scupi.
Richard A. Posner argued the cause for the Federal Maritime Commission and the United States, pro hac vice, by special leave of Court. With him on the briefs were Solicitor General Marshall, Assistant Attorney General Turner, Irwin A. Seibel, Milan C. Miskovsky and Walter H. Mayo III.
J. Alton Boyer argued the cause for respondent Flota Mercante Grancolombiana, S. A. With him on the brief was Odell Kominers.
Mr. Justice White
delivered the opinion of the Court.
We have been asked, in this case, to determine whether the Court of Appeals had jurisdiction to set aside a reparation order of the Federal Maritime Commission which was before it upon the consolidated appeals of the shipper and the carrier, the shipper asking that the award be increased and the carrier asking that it be set aside. In addition, we have been asked to determine whether the Court of Appeals applied the proper standard of review when it set aside the reparation award. We answer the first question in the affirmative and the second in the negative. Accordingly, we reverse.
Flota Mercante Grancolombiana, S. A. (Flota) is a common carrier engaged in carrying bananas from South America to the United States. In July 1955, it entered into an exclusive two-year carrying contract with Panama Ecuador, a banana shipper, and gave Panama Ecuador an option to renew the contract for an additional three years, subject to its meeting the rate offered by any other shipper. This exclusive contract was executed after the Federal Maritime Board, in June 1953, had ruled that Flota’s competitor, Grace Line, was a common carrier of bananas and had violated the Shipping Act, 1916, §§14 Fourth and 16 First, by refusing to allocate its banana shipping space equitably among all qualified shippers. In April 1957, the Board reiterated its view that Grace Line had violated the Shipping Act by signing exclusive carrying contracts and it ordered Grace Line to offer to all qualified shippers, upon a fair basis, shipping space on forward-booking contracts not to exceed two years in length. One month after this ruling Flota rejected a bid by Consolo, a banana shipper competing with Panama Ecuador, for the entire shipping space and honored the option given Panama Ecuador by executing to it a three-year exclusive carrying contract. Shortly thereafter Consolo demanded a “fair and reasonable” amount of the carrying space pursuant to the previous Grace Line decisions of the Board and threatened to file a complaint if its demand were rejected. Flota rejected the demand and itself filed a petition before the Board for declaratory relief exonerating it from liability to Consolo. Consolo followed with a complaint before the Board asking for damages. These proceedings were consolidated and, in June 1959, the Board ruled that Flota’s three-year exclusive contract with Panama Ecuador violated the Shipping Act, §§14 Fourth and 16 First, and it ordered Flota to allocate its space fairly among all qualified banana shippers. Pursuant to § 2 (c) of the Administrative Orders Review Act (64 Stat. 1129, as amended, 5 U. S. C. § 1032 (c) (1964 ed.)), Flota petitioned the Court of Appeals for the District of Columbia Circuit to set aside this order. This appeal was stayed, pending determination of the reparations proceeding. In March 1961, the Board ordered Flota to pay Consolo certain reparations for the violation of the Shipping Act. Both Flota and Consolo appealed from this reparation order and each intervened in the appeal of the other, Consolo asking that the reparation award be increased and Flota asking that it be set aside. These appeals were consolidated together with Flota’s appeal to set aside the Board’s finding of a violation of the Shipping Act.
The Court of Appeals held that it had jurisdiction to consider these appeals. It affirmed the Board’s finding that Flota had violated the Shipping Act but remanded to the Board the issue of reparations so that it could “consider whether, under all the circumstances, it is inequitable to force Flota to pay reparations....” On remand the Federal Maritime Commission concluded that it was not inequitable to require Flota to pay Consolo reparations, although it did reduce the amount of the award. Again, both Flota and Consolo appealed to the Court of Appeals for the District of Columbia Circuit, each intervened in the appeal of the other, and the two appeals were consolidated. Again Consolo maintained that the award was too small and Flota argued that it should be set aside in part or in whole. The Court of Appeals reversed and vacated the reparation award, concluding that “[i]n view of the-substantial evidence showing that it would be inequitable to assess damages against Flota in favor of Consolo,... the Commission abused the discretion granted it under Section 22 of the Shipping Act [to issue reparation awards]... 119 U. S. App. D. C. 345, 352, 342 F. 2d 924, 931. Consolo petitioned this Court for a writ of certiorari to review that decision, which we granted. 381 U. S. 933.
I.
The first question we have is whether the Court of Appeals had jurisdiction of the appeals filed by Consolo and Flota.
As we read the controlling statutory provisions, it seems clear that the Court of Appeals had jurisdiction to consider Consolo’s direct appeal from the Commission’s reparation order granting only part of the relief requested. Section 2 of the Administrative Orders Review Act (5 U. S. C. § 1032 (1964 ed.)) gives the courts of appeals “exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of... (c) such final orders of the... Federal Maritime Board... as are now subject to judicial review pursuant to the provisions of section 830 of Title 46....” Section 830 of Title 46 (§ 31 of the Shipping Act, 1916, 39 Stat. 738, as amended), in turn, says that, “except as otherwise provided,” orders of the Federal Maritime Board are reviewable pursuant to the same procedures as are available “in similar suits in regard to orders of the Interstate Commerce Commission Accordingly, if pursuant to provisions in the Interstate Commerce Act a shipper can bring a direct review proceeding to challenge the adequacy of a reparation award issued by the Interstate Commerce Commission, he should be permitted to bring a similar proceeding to challenge the adequacy of a reparation award from the Federal Maritime Commission, subject of course to any special provisions applicable to maritime cases such as the provision in § 2 of the Administrative Orders Review Act that direct review proceedings shall be conducted in the courts of appeals rather than the district courts.
The Court has previously held that an order of the Interstate Commerce Commission denying a shipper’s reparation claim is subject to direct review at the instance of the shipper, United States v. Interstate Comm erce Comm’n, 337 U. S. 426, primarily because the adverse order would be wholly unreviewable unless the shipper is permitted to bring an appeal. See Rochester Tel. Corp. v. United States, 307 U. S. 125. Likewise, in D. L. Piazza Co. v. West Coast Line, Inc., 210 F. 2d 947, cert. denied, 348 U. S. 839, the Court of Appeals for the Second Circuit was of the opinion that the principles of United States v. Interstate Commerce Comm’n were authority for allowing the shipper to seek direct review of an order of the Federal Maritime Board denying a major part, but not all, of the shipper’s reparation claim. We think Piazza was correct in this respect and we accordingly agree with the court below that it would have jurisdiction to consider Consolo’s appeal.
As for Flota’s appeal, much of what we have said in Interstate Commerce Comm’n v. Atlantic Coast Line R. Co., decided today, is pertinent to our consideration here. In that case, where direct review had not been sought by the shipper, we held that the carrier may have review of a reparation order of the Interstate Commerce Commission only in connection with the shipper’s enforcement action under § 16 (2) of the Interstate Commerce Act. Section 30 of the Shipping Act, 39 Stat. 737, as amended, provides for a similar action by the shipper to enforce a reparation award by the Maritime Commission and extends certain procedural advantages to the shipper generally comparable to those provided by § 16 (2) of the Interstate Commerce Act. He has a wide scope of venue; he is not liable for costs unless they accrue on his own appeal; he is allowed reasonable attorney fees if he ultimately prevails; he is the beneficiary of broad service of process and joinder provisions; and the findings and order of the Commission are given prima facie effect in the enforcement action. These advantages were given to the shipper because he was considered generally to be the weaker party in the controversy and he serves an important role in the enforcement of the Shipping Act. It was to protect advantages similar to these by preventing the carrier from emasculating the enforcement action that we concluded in Interstate Commerce Comm’n v. Atlantic Coast Line R. Co., that the carrier could not seek review of the reparation award except in connection with a shipper’s enforcement action. It is readily apparent, we think, that this holding is applicable to Shipping Act cases when the shipper himself has not sought direct review in the Court of Appeals.
Here, however, the jurisdiction of the Court of Appeals has been invoked by the shipper, who seeks to increase the amount of his damages. In these circumstances, we find nothing in the Shipping Act or the Administrative Orders Review Act that would prevent the Court of Appeals from also considering Flota’s request, either as a consolidated appeal pursuant to § 2 of the Administrative Orders Review Act or as an intervenor’s cross-claim, to have the reparation order set aside or reduced, a result which will not, in our view, substantially impair the procedural advantages intended for a shipper under § 30.
Concerning venue, the shipper will still be able to select the forum. Although the venue provisions governing an appeal are somewhat different from those governing an enforcement suit, the shipper still has relatively wide opportunities to find a convenient forum. Section 3 of the Administrative Orders Review Act (64 Stat. 1130, 5 U. S. C. § 1033 (1964 ed.)) enables the petitioner to bring suit in the judicial circuit where he resides, where his principal office is located or in the District of Columbia. By requiring that the carrier’s review proceeding be brought in the court selected by the shipper for his appeal, all the issues in the controversy will be tried in a relatively convenient forum for the shipper.
The shipper will not have the benefit in a direct review of those provisions in § 30 that exempt him from his costs and enable him to collect his attorney’s fees if he ultimately prevails. However, the only additional costs and attorney’s fees that the shipper will incur if the carrier is permitted to., challenge the reparation award upon a consolidated appeal or cross-claim are those costs and fees attributable to additional issues not otherwise raised by the shipper’s appeal. To the extent the arguments a carrier may advance to decrease or set aside an award would be asserted in any event as defenses to the shipper’s claim for increased reparations, no additional costs or fees will be incurred beyond those which the shipper would normally assume for his appeal. And, if the shipper prevails against the carrier’s appeal, any additional costs, although not attorney’s fees, as. are incurred may be assessed against the carrier as the losing party under 28 U. S. C. § 1912 (1964 ed.). See also District of Columbia Cir. R. 20 (b).
The minimal disadvantages resulting to the shipper from permitting, the carrier to attack the reparation order are more than offset by the desirability of a prompt and efficient determination of the validity of the Commission’s order. Many of the arguments a carrier might make in defense against a shipper’s suit to increase the award could also be advanced to show that the award should be reduced or set aside entirely. And, once the carrier intervenes in the shipper’s appeal, all the parties interested in the complete resolution of the validity of the Commission’s order are before the court. In this situation it would make little sense to require the carrier to break off his argument short of its logical conclusion and relitigate it anew before a district court in an enforcement action.
With the jurisdiction of the Court of Appeals properly-invoked by the shipper, there is, therefore, every reason to permit the carrier not only to litigate the amount of the reparation order but also to insist upon a determination of the validity of the Commission’s order, both with respect to the carrier’s violation of the Act and with respect to the reparation award itself. If the carrier finally prevails on either of these claims, there would then be no occasion for a separate enforcement suit in the District Court. If the carrier’s claims going to the validity of the order are rejected by the Court of Appeals, the determination of a violation by the carrier would be binding in the subsequent enforcement action by the shipper; nor would there be any basis in the course of a subsequent enforcement action conducted in accordance with § 30 to redetermine whether or not the award itself is supported by substantial evidence in the administrative record. Hence, the shipper will need to litigate the issue of validity only once, and this in the Court of Appeals at the instance of the carrier. Although two proceedings may be required to collect his damages, this is only a necessary incident of the shipper’s decision to bring his appeal in the first place.
In short, although a shipper may lose some of the procedural advantages given him by § 30 if he is forced to defend the validity of the Commission’s order in conjunction with his appeal, these losses generally will not be substantial. To the extent that he is disadvantaged, this is the result of a conscious choice he has made. And from the point of view of the enforcement of the Shipping Act, it is certainly less important that the shipper be assisted in his efforts to obtain a greater award than it is to assist him in his efforts to enforce an existing award. The Court of Appeals was correct in sustaining its own jurisdiction to hear Flota’s appeal.
II.
We turn, then, to the standard of review used by the Court of Appeals when it reversed the Commission’s reparation order.
The Court of Appeals rejected the Commission’s finding that it would not be inequitable to award Consolo reparations because it felt this finding “ignores... the substantial weight of the evidence....” 119 U. S. App. D. C. 345, 347, 342 F. 2d 924, 926. It then concluded that the Commission abused its discretion in ordering reparations because “of the substantial evidence showing that [the reparations] would be inequitable.” Id., at 352, 342 F. 2d, at 931. In effect, the standard of review applied and articulated by the Court of Appeals in this case was that if “substantial evidence” or “the substantial evidence” supports a conclusion contrary to that reached by the Commission, then the Commission must be reversed. This standard is not consistent with that provided by the Administrative Procedure Act.
Section 10 (e) of the Administrative Procedure Act (60 Stat. 243, 5 U. S. C. § 1009 (e) (1964 ed.)) gives a reviewing court authority to “set aside agency action, findings, and conclusions found to be (1) arbitrary, capricious, [or] an abuse of discretion... [or] (5) unsupported by substantial evidence....” Cf. United States v. Interstate Commerce Comm’n, 91 U. S. App. D. C. 178, 183-184, 198 F. 2d 958, 963-964, cert. denied, 344 U. S. 893. We have defined “substantial evidence” as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison Co. v. Labor Board, 305 U. S. 197, 229. “[I]t must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury.” Labor Board v. Columbian Enameling & Stamping Co., 306 U. S. 292, 300. This is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence. Labor Board v. Nevada Consolidated Copper Corp., 316 U. S. 105, 106; Keele Hair & Scalp Specialists, Inc. v. FTC, 275 F. 2d 18, 21.
Congress was very deliberate in adopting this standard of review. It. frees the reviewing courts of the time-consuming and difficult task of weighing the evidence, it gives proper respect to the expertise of the administrative tribunal and it helps promote the uniform application of the statute. These policies are particularly important when a court is asked to review an agency’s fashioning of discretionary relief. In this area agency determinations frequently rest upon a complex and hard-to-review mix of considerations. By giving the agency discretionary power to fashion remedies, Congress places a premium upon agency expertise, and, for the sake of uniformity, it is usually better to minimize the opportunity for reviewing courts to substitute their discretion for that of the agency. These policies would be damaged by the standard of review articulated by the court below.
Ordinarily we would be inclined to remand to the'Court of Appeals for further consideration in light of the standard of review established by the Administrative Procedure Act. Universal Camera Corp. v. Labor Board, 340 U. S. 474; Labor Board v. Walton Mfg. Co., 369 U. S. 404. However, in view of the fact that this controversy already dates back more than eight years, that it has been before the Court of Appeals twice and that the relevant standard is not hard to apply in this instance, we think this controversy had better terminate now. See O’Leary v. Brown-Pacific-Maxon, Inc., 340 U. S. 504.
Section 22 of the Shipping Act, 1916, provides that “The Board... may direct the payment... of full reparation to the complainant for the injury caused by such violation.” 46 U. S. C. § 821 (1964 ed.). (Emphasis added.) This contemplates that the Commission shall have a certain amount of discretion, but it does not specify what factors are to be considered by the Commission in exercising this discretion. However, we assume that the Commission could validly consider such factors as whether a reparation award would enhance the enforcement of the Act, whether the shipper had suffered compensable injury and whether the award of reparations would be consistent with the previous application of the Act, as well as the factor of culpability of the carrier. Hence, even if the carrier’s conduct were such that it would be inequitable to require it to pay a reparation award, this by itself might not be sufficient to establish that the Commission abused its discretion under the Act. However, we need not rest upon this distinction because we feel that it is clear that there is substantial evidence in the record, considered as a whole, to support the Commission’s findings that it would not be inequitable in this case to require Flota to pay Consolo reparations.
The Maritime Board determined, and the Court of Appeals agreed, that Flota had been guilty of “unfairly” or “unjustly” discriminating against Consolo and of giving an “undue unreasonable preference” to Panama Ecuador in violation of § 14 Fourth and § 16 First of the Shipping Act. These findings, which were essential to the determination that Flota had violated the Shipping Act, substantially undercut any equities that Flota might claim. Nevertheless, the Court of Appeals considered it inequitable to make Flota pay reparations because Flota might have believed, in view of the unsettled law, that it was not illegal to exclude Consolo.
Prior to Flota’s rejection of Consolo’s request for a fair portion of the shipping space, the Federal Maritime Board had decided only two cases relevant to this issue: Consolo v. Grace Line, supra, and Banana Distributors, Inc. v. Grace Line, supra. Both cases held invalid exclusive dealing contracts similar to the one in question here. The Court of Appeals would minimize these two cases as precedents because no order was issued in the first Grace Line decision and the second Grace Line decision was ultimately reversed and remanded by the Court of Appeals for the Second Circuit. Nevertheless, at the time Flota entered into the 1957 exclusive contract with Panama Ecuador and at the time it rejected Consolo’s request for a fair share of the shipping space, these decisions were authoritative pronouncements by the agency primarily responsible for administering and interpreting the Shipping Act. And, although the second Grace Line decision was ultimately reversed and remanded, upon reconsideration the Board still found the exclusive contract there in question to be illegal and that decision was ultimately affirmed upon appeal to the Second Circuit.
As further evidence of good faith, the Court of Appeals was of the opinion that Flota could reasonably have believed its situation was different from that presented to the Board in the Grace Line cases because of physical differences between its vessels and those owned by Grace Line. However, in its first decision affirming the Board’s finding of a violation the Court of Appeals had affirmed that the record “adequately supported” the Board’s finding that “the differences between Flota’s vessels and Grace’s vessels are not impressive.” 112 U. S. App. D. C. 302, 307, 302 F. 2d 887, 892. We think the Court’s first judgment was the correct one. The record is adequate to establish that Flota took a deliberate, and we think substantial, risk when it gambled that the previous contrary precedent could be distinguished. We agree with the Commission that there is nothing inhering in this situation that would make it inequitable to require Flota to pay reparations.
Nor do we feel the record reveals that the reparation award is inequitable because Flota had asked for declaratory relief or because that request was pending before the Board for almost two years. In the first place, Flota did not request declaratory relief until after it had entered into the offending exclusive-dealing contract with Panama Ecuador and until it became clear that Consolo was going to sue anyway. Under these circumstances, the Commission was justifiably skeptical about Flota’s motives in bringing suit. Further, although Flota’s suit was pending for about two years, the record indicates that much of the delay involved in this case was at the request or approval of Flota. At any rate, it has never been the law that a litigant is absolved from liability for 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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songer_district
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G
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What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
Gladys King BURNS, Plaintiff-Appellant, v. GADSDEN STATE COMMUNITY COLLEGE, and Robert W. Howard, individually and in his capacity as President of Gadsden State Community College, Defendants-Appellees. Gladys King BURNS, Plaintiff-Appellant, v. GADSDEN STATE COMMUNITY COLLEGE, Defendant-Appellee.
No. 89-7426.
United States Court of Appeals, Eleventh Circuit.
Aug. 15, 1990.
Joe R. Whatley, Jr., Patricia Fraley, Cooper, Mitch, Crawford, Kuykendall & What-ley, Birmingham, Ala., for plaintiff-appellant.
R. Kent Henslee, John T. Robertson, IV, Henslee, Bradley & Robertson, Gadsden, Ala., for defendants-appellees.
Before TJOFLAT, Chief Judge, JOHNSON and ANDERSON, Circuit Judges.
PER CURIAM:
This is an appeal from a grant of summary judgment in favor of defendants-appel-lees, Gadsden State Community College and its former President, Dr. Robert Howard, in an age and sex discrimination action brought by Gladys King Burns, plaintiff-appellant. Plaintiff alleged that the defendants discriminated against her on the basis of her age and sex in their refusal to hire her. The court below granted summary judgment, concluding that the plaintiff had failed to establish a prima facie case of either sex or age discrimination. We reverse and remand.
I. BACKGROUND
The plaintiff-appellant in this case, Gladys King Burns, applied for the position of Director of Economic Development at Gadsden State Community College in Gadsden, Alabama, in May 1986. A publicly posted announcement of the opening declared that the Director would assume the following responsibilities: developing, directing, and coordinating business and industrial training programs at the College and in the community; establishing credibility between the community and training programs offered by businesses, industries, and governmental and other training agencies; and assisting local and state economic development agencies in the establishment and expansion of business and industry. The position did not involve any classroom teaching responsibilities. The minimum qualifications for the position were listed as (1) a Master’s degree in Administration or a related area, advanced degree preferred; (2) five years administrative experience; (3) five years industrial work experience; and (4) three years teaching experience. The Position Announcement stated that those applicants already employed at the College would be given preference.
Burns’ resume and job application indicated that she was a fifty-nine year old woman who held a Ph.D. in Educational Administration and Planning from the University of Alabama. She had eighteen years of teaching experience, four years of college administrative experience, and six years of experience in business administration. She had worked as owner/manager of a retail store in Gadsden and as director of staff at a real estate business. Burns’ resume also indicated that she was born and reared in Gadsden and that she maintained close ties to the community.
The defendant Robert Howard was president of Gadsden State Community College at the time the Director position came open and was responsible for hiring someone to fill the position. (Howard deposition). After receiving a number of applications for the position, and after interviewing some of the applicants, Howard hired Bryan Stone. (Howard deposition). Stone was a male applicant who was younger than Burns. He had held a similar position at Alabama Technical College (of which Howard had been President, and which in 1985 became part of Gadsden State Community College) and was a “known quality” [sic] to Howard. (Howard affidavit; Stone affidavit).
Burns subsequently filed a complaint against the College and Dr. Howard, alleging age discrimination under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, et seq., and sex discrimination in violation of 42 U.S.C. § 1983. She later brought a second complaint against both defendants, alleging sex discrimination in violation of Title VII. The Title VII complaint arose from the same facts as were involved in the first complaint, and the district court subsequently consolidated the two cases.
Defendants filed a motion seeking summary judgment on all of the plaintiff’s claims. The motion itself asserted only that the plaintiff’s evidence was insufficient as a matter of law to make out a cause of action on any of her claims. Later materials submitted by the defendants clarified their position. Dr. Howard asserted that he did not hire the plaintiff for the Director position because she did not meet the minimum qualifications, i.e. she did not have five years industrial work experience. (Howard affidavit). The district court found that the defendants’ assertion that Burns did not meet the minimum requirements for the position was uncontroverted in the record. The court therefore granted the defendants’ motion for summary judgment.
On appeal, the plaintiff argues that she submitted sufficient evidence to withstand the defendants’ motion for summary judgment. She contends that she submitted evidence to show that she was minimally qualified for the position and that the defendants’ stated reason for not hiring her was pretextual. In particular, Burns argues that the district court erred in failing to consider two key affidavits (the “May 1 affidavits”), which were submitted the day after the court’s filing deadline. Those two affidavits, she argues, constitute direct evidence of sex discrimination and create a genuine issue of material fact as to whether the defendants’ asserted reasons for refusing to hire her were pretextual. We agree that the district court erred in refusing to consider the May 1 affidavits. Taking those two affidavits into consideration, we find that the plaintiff has presented sufficient evidence to create a genuine issue of material fact as to whether the defendants discriminated against her on the basis of her gender. We therefore reverse the district court’s grant of summary judgment on plaintiff’s Title VII and section 1983 claims. We remand for the district court to reconsider, in light of the May 1 affidavits, the defendants’ motion for summary judgment on the ADEA claim.
II. DISCUSSION
A. The May 1 Affidavits
To place our discussion of the May 1 affidavits in context, it is necessary to review briefly the events that transpired in the court below. The defendants filed a “bare-bones” motion for summary judgment on March 30,1989. This motion, filed without any accompanying documentary evidence or legal argument, asserted that there were no disputes of material fact and that the defendants were entitled to summary judgment as a matter of law. The district court framed a simultaneous submission schedule that gave both parties twenty days, until April 20, to submit briefs and materials in support of or in opposition to the motion for summary judgment. The defendants did not file any support for their motion until the last possible day, April 20.
Plaintiff filed a response to the motion for summary judgment on April 14, in which she complained that she was having difficulty in responding to the defendants’ motion since she did not know the facts and legal theories upon which the motion was based. On April 20, the plaintiff sought a revision of the submission schedule, advising the court that she had had no opportunity to respond to the materials submitted by the defendants. The district court, apparently recognizing the plaintiff’s difficulty, allowed her five extra days, until April 28, to respond to the defendants’ brief and evidence. On April 27, the plaintiff informed the district court by letter that the defendants had not yet responded to plaintiff’s second and third interrogatories, served on January 6, 1989, and March 2, 1989. The court had previously issued an order to compel the answers to the second interrogatories. The plaintiff asked the court to delay hearing the defendants’ motion for summary judgment until the defendants answered the interrogatories and the plaintiff was afforded an opportunity to respond adequately.
On April 28, the last day plaintiff had to respond, she submitted a brief in opposition to the motion for summary judgment. Plaintiff presented her legal arguments opposing summary judgment on the merits and again argued that summary judgment was premature. On May 1, the plaintiff filed the affidavits of Gerald and Callie Waldrop, two employees of Gadsden State Community College. Gerald Waldrop asserted that Dr. Howard had declared, in the context of a discussion regarding filling more Dean’s positions with women and blacks, that “no woman would be named to a B scheduled job.” The position for which the plaintiff applied was a B schedule job. Callie Waldrop asserted in her affidavit that there had been a series of instances at the College in which older and more experienced female employees of the College had been denied administrative positions in favor of younger males.
The district court subsequently entered summary judgment in favor of the defendants, finding that the plaintiff had failed to sufficiently controvert the defendants’ assertion that plaintiff was unqualified for the Director position. The court expressly declined to consider the Waldrop affidavits. Plaintiff filed a motion for reconsideration of the judgment, requesting again that the court consider the Waldrop affidavits. Plaintiff pointed out to the district court that Rule 56(c) allows a nonmovant at least 10 days to respond to a motion for summary judgment and that she did not receive 10 days to respond to the supporting materials submitted by the defendant. The district court refused to reconsider its judgment.
Rule 56(c) provides in relevant part: “The motion [for summary judgment] shall be served at least 10 days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits.” The courts have uniformly held that the purpose of Rule 56(c) is to permit the nonmoving party a reasonable and meaningful opportunity to challenge a motion for summary judgment. See, e.g., Cia. Petrolera Caribe, Inc v. Arco Caribbean, Inc., 754 F.2d 404, 410 (1st Cir.1985) (holding that the rules of procedure are structured to provide the nonmovant with substantially more time for filing affidavits than the moving party because the nonmoving party should have an opportunity to examine and reply to the moving party's papers before the court considers them); Lewis v. Faulkner, 689 F.2d 100 (7th Cir.1982) (district court cannot act on a motion for summary judgment without giving the opposing party a reasonable opportunity to submit affidavits that contradict the affidavits submitted in support of the motion and that demonstrate a genuine issue of material fact); Winbourne v. Eastern Air Lines, Inc., 632 F.2d 219 (2d Cir.1980) (purpose of Rule 56(c) is to permit nonmoving party a meaningful opportunity to challenge motion for summary judgment).
Recognizing the importance of giving the nonmovant a meaningful opportunity to respond to a motion for summary judgment, this circuit has strictly enforced the requirement of a 10 day advance notice that the court will take a motion for summary judgment under advisement as of a certain date. E.g., Griffith v. Wainwright, 772 F.2d 822, 825 (11th Cir.1985) (holding that when a court sua sponte converts a motion to dismiss into a motion for summary judgment, the court must give at least 10 days notice to the nonmovant). The reasons for such a requirement “are premised on the fact that disposition of a case on summary judgment grounds represents a final adjudication on the merits. It forecloses subsequent litigation on the matter; it is accordingly important that proper notice be given so as to insure ‘opportunity to present every factual and legal argument available.’ ” Griffith, 772 F.2d at 825 n. 4 (citing Finn v. Gunter, 722 F.2d 711, 713 (11th Cir.1984)).
This court recently reaffirmed, in the context of an employment discrimination suit, the importance of giving the nonmov-ant a meaningful opportunity to respond to a motion for summary judgment. Grigsby v. Reynolds Metals Co., 821 F.2d 590, 593-94 (11th Cir.1987), arose in a context very similar to the instant case. The plaintiff in Grigsby brought claims of discrimination in hiring under Title VII and the ADEA. The defendant moved for summary judgment, asserting that the plaintiff was not hired for the position she sought because she was unqualified. The district court ordered simultaneous submission of evidence in support of and in opposition to the motion for summary judgment. On appeal from the court’s grant of summary judgment for the defendant, the plaintiff complained that the simultaneous submission schedule left her with insufficient opportunity to respond to the defendant’s evidence. This court noted the difficulties caused by the shifting burdens of proof involved in a case brought under Title VII and the ADEA, and we agreed with the plaintiff that, as a general rule, “when the defendant has offered evidence of a legitimate, nondiscriminatory reason for its employment decision, the plaintiff should not be denied the opportunity to submit additional evidence of pretext after seeing the defendant’s evidence of justification.” Id. at 594. See also Alghanim v. Boeing Co., 477 F.2d 143 (9th Cir.1973) (where the mov-ant submitted affidavits in support of motion for summary judgment within 10 days of the hearing on the motion, the district court should have allowed the nonmovant extra time in which to respond); Hooks v. Hooks, 771 F.2d 935 (6th Cir.1985) (viewing with leniency the fact that the nonmovant’s affidavits were filed late and noting that until the movant’s supporting affidavits were filed, the nonmovant could not know what facts she needed to controvert).
Rule 6(d) of the Federal Rules of Civil Procedure, read in conjunction with Rule 56(c), further supports the principle that the rules of procedure are intended to provide the nonmovant with a reasonable and meaningful opportunity to respond to the legal theories and facts as asserted by the party moving for summary judgment. Rule 6(d) provides: “When a motion is supported by affidavit, the affidavit shall be served with the motion; and ... opposing affidavits may be served not later than 1 day before the hearing, unless the court permits them to be served at some other time.” The rule clearly contemplates that, in the usual case, the party moving for summary judgment will present its legal theories and assertions of fact at the time it makes the motion. Rule 56(c), read in conjunction with Rule 6(d), contemplates that the nonmovant will have at least 10 days in which to respond to those theories and facts before the court takes the summary judgment issue under advisement.
Applying the foregoing principles to the facts of this case, we conclude that plaintiff’s May 1 affidavits were timely and that the district court erred in refusing to consider them. The defendants’ March 30 motion for summary judgment was “bare-boned.” It failed to apprise plaintiff of the facts and legal theories on the basis of which defendants claimed to be entitled to summary judgment. It was not until defendants’ supporting affidavits and brief were filed on April 20 that plaintiff was thus informed. We conclude that plaintiff should have been allowed at least 10 days after April 20 to file opposing affidavits as contemplated by Rule 56(c). Since April 30 was a Sunday, the affidavits filed by plaintiff on May 1 were timely.
B. Summary Judgment on the Gender Discrimination Claim
Federal Rule of Civil Procedure.56(c) provides that summary judgment shall be rendered if “there is no genuine issue as to any material fact and [if] the moving party is entitled to a judgment as a matter of law.” Summary judgment is appropriate against a party if that party fails to present sufficient evidence to establish the existence of an element essential to the party’s case, and on which the party has the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986).
At trial, in order to prove discriminatory failure to hire in violation of Title VII, the ADEA, and section 1983, the plaintiff must prove by a preponderance of the evidence a prima facie case of employment discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981); Jones v. Gerwens, 874 F.2d 1534, 1538 (11th Cir.1989). The familiar analytical framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), is properly used when the plaintiff attempts to prove her claim through circumstantial evidence. Bell v. Birmingham Linen Service, 715 F.2d 1552, 1556 (11th Cir.1983), cert. denied, 467 U.S. 1204, 104 S.Ct. 2385, 81 L.Ed.2d 344 (1984). A prima facie case of discrimination may also be proven by direct evidence of age or sex discrimination. See EEOC v. Alton Packaging Corp., 901 F.2d 920, 923-24 (11th Cir.1990); EEOC v. Beverage Canners, Inc., 897 F.2d 1067, 1070-72 (11th Cir.1990). Such evidence, if believed, proves the existence of a fact in issue without inference or presumption. Castle v. Sangamo Weston, Inc., 837 F.2d 1550, 1558 n. 13 (11th Cir.1988). Where the plaintiff presents direct evidence of discriminatory motive, the analytical framework established in McDonnell Douglas Corp. is inapplicable. EEOC v. Beverage Canners, Inc., at 1070-71. If the plaintiff presents direct evidence that the employer acted with discriminatory motive and the trier of fact believes it, then the employer can avoid liability only if he or she satisfies the trier of fact by a preponderance of the evidence that the same employment decision would have been reached in the absence of the discriminatory motive. See Price Waterhouse v. Hopkins, — U.S. -, 109 S.Ct. 1775, 1795, 104 L.Ed.2d 268 (1989) (plurality opinion); EEOC v. Alton Packaging Corp., at 923-24; EEOC v. Beverage Canners, Inc., at 1071-72; Jones v. Gerwens, 874 F.2d at 1539 n. 8. “Production of nondiscriminatory reasons is not enough in a direct evidence case,” Alton Packaging Corp., at 925; the defendant must prove that there was a gender-neutral reason for its employment decision, id.
In the instant case, the plaintiff has presented direct evidence that her gender played a motivating part in the defendants’ decision to refuse to hire her for the Director position. In one of the May 1 affidavits, Gerald Waldrop, an employee of Gadsden State Community College, states that he participated in a private discussion with Howard and with George Beaube, the College’s Technical Dean, concerning the hiring of more blacks and women to fill Dean’s positions (Schedule B positions) at the College. Howard and Beaube stated that a lower position was sufficient for a woman and that “no woman would be named to a B scheduled job.” The position for which plaintiff applied was a B schedule job, and the author of the statement made the employment decision at issue. Such evidence is direct evidence of discriminatory motive. See EEOC v. Alton Packaging Corp., at 924 (general manager’s remark that “if it was his company, he wouldn’t hire any black people,” constituted direct evidence of discriminatory motive in failing to promote black employee when general manager was responsible for promotion decisions at issue); EEOC v. Beverage Canners, Inc., at 1068-69, 1070-71 & n. 9 (racially derogatory remarks made by plant manager and plant supervisor constituted direct evidence of racial motivation in failure to rehire employee who had been laid off).
We conclude that the summary judgment record, viewing all reasonable inferences in favor of the plaintiff, contains sufficient evidence to establish that defendants declined to hire plaintiff because of her sex.
Defendants also argue that even assuming a discriminatory motive, Burns would not have been hired in any event because she was unqualified for the position. Thus, defendants argue under Price Waterhouse v. Hopkins, — U.S. at-, 109 S.Ct. at 1795, that they can avoid liability notwithstanding the presence of a discriminatory motive. At the summary judgment stage, the employer can prevail on this issue only if the record evidence that its employment decision was not based on discrimination is so strong that a reasonable trier of fact must so conclude; in other words, there must be no genuine issue of fact but that the employer would have made the same employment decision even absent the discriminatory motive. Because there are genuine issues of fact regarding this issue, we conclude that defendants are not entitled to summary judgment.
The minimum qualifications for the Director position require five years industrial work experience, defined by Dr. Howard as experience in heavy industry. Plaintiffs work experience is confined to businesses other than heavy industry. Plaintiff, however, points out that the job responsibilities listed in the Position Announcement place as much emphasis on establishing training programs for work in businesses as they do on training students for work in heavy industry. A reasonable inference from the Position Announcement would be that work experience in businesses other than heavy industry would satisfy the requirements of the position. Thus, the factfinder could reasonably conclude that plaintiff did meet the minimum qualifications.
Moreover, plaintiff contends that by narrowly defining the acceptable work experience as experience in heavy industry, the defendants were attempting to carry out their intent that “no woman would be named to a B scheduled job.” Plaintiffs direct evidence of discrimination, together with the reasonable inferences from the discrepancy between the posted job responsibilities and Dr. Howard’s narrow interpretation of the minimum qualifications, create a genuine issue of fact as to whether the defendants invented their narrow interpretation of the job qualifications with the intention of discriminating against female applicants.
We conclude that, viewing the evidence in the light most favorable to the plaintiff, see Jones v. Gerwens, 874 F.2d at 1538, the plaintiff has created genuine issues of material fact as to whether the defendants discriminated against her on the basis of her gender in violation of Title YII and section 1983. We therefore reverse the summary judgment in favor of the defendants on those two claims.
C. Summary Judgment on the Age Discrimination Claim
With regard to plaintiffs age discrimination claim, we conclude that the district court’s resolution of defendants’ motion for summary judgment was premature. At the time the court addressed this issue, the defendants had not yet responded to plaintiff's interrogatories. Because the district court was aware of this problem and because the defendants’ responses could have a direct bearing on the plaintiff’s ability to counter the defendants’ motion for summary judgment on this claim, we conclude that the district court should have delayed its decision on the merits of the defendants’ motion until the responses to the interrogatories had been filed. See Snook v. Trust Co. of Georgia Bank of Savannah, N.A., 859 F.2d 865, 870 (11th Cir.1988) (generally, summary judgment inappropriate when party opposing the motion has been unable to obtain responses to his or her discovery requests). Moreover, the district court failed to consider the May 1 affidavits in ruling on plaintiff’s age discrimination claim. Callie Waldrop’s affidavit, in particular, asserts facts relevant to plaintiff’s ADEA claim. We therefore remand this issue for the district court’s reconsideration.
III. CONCLUSION
For the foregoing reasons, the judgment of the district court is reversed, and the case is remanded to the district court for further proceedings not inconsistent with this opinion.
REVERSED and REMANDED.
. The defendants also asserted in their motion for summary judgment that the section 1983 claim was not actionable because it was based on the same facts and circumstances for which the plaintiff sought relief under Title VII. The district court did not rule on this argument, and the defendants do not raise it on appeal. We therefore decline to address this issue.
. The district court noted that even if it had considered the Waldrop affidavits, the affidavits would not have changed the court’s conclusions. In its opinion, however, the court did not discuss the affidavits, and we conclude, infra, that the affidavits should have changed the court’s conclusions.
. The district court treated the plaintiff’s motion for reconsideration as involving only one of the plaintiff’s complaints (Civil Action 88-AR-0961-M, the complaint alleging violations of the ADEA and section 1983), and it deemed the plaintiff to have abandoned her Title VII claim (Civil Action 88-AR-1502-M). The court noted that the Waldrop affidavits did not support a claim of age discrimination, and therefore summarily dismissed their importance. The court appears to have overlooked that Civil Action 88-AR-0961-M also involved a claim of sex discrimination, and therefore the direct evidence of sex discrimination asserted in the Waldrop affidavits is clearly relevant to that action. Moreover, it was clear from the content of the plaintiff’s motion to reconsider that she was referring to all three claims of discrimination contained in the consolidated action. The district court, therefore, should not have deemed the plaintiff to have abandoned her Title VII claim.
. In Grigsby, we declined to reverse because Grigsby failed to object to the simultaneous submission schedule and failed to request permission to submit additional evidence of pretext to rebut defendant’s evidence, and because Grigsby never even alleged that she had any relevant additional evidence. 821 F.2d at 594.
. Title VII provides, in relevant part:
(a) It shall be an unlawful employment practice for an employer—
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin. ...
42 U.S.C. § 2000e-2 (1981).
. The ADEA provides:
(a) It shall be unlawful for an employer—
(1) to fail or refuse to hire or to discharge an individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age....
29 U.S.C. § 621, et seq.
.Section 1983 states:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured....
42 U.S.C. § 1983 (1981).
. The analysis set forth by the Supreme Court for use in Title VII cases involving claims of intentional discrimination has been adopted by this court for discrimination cases arising under the ADEA, Grigsby v. Reynolds Metals Co., 821 F.2d 590, 594 (11th Cir.1987) (McDonnell Douglas approach adopted for ADEA cases), and under section 1983, Lee v. Russell County Bd. of Educ., 684 F.2d 769, 773 (11th Cir.1982) (McDonnell Douglas approach adopted for section 1983 cases involving discrimination).
. Defendants argue that Howard’s alleged statement was not made in the context of hiring someone to fill this particular position, and therefore it is not direct evidence of discrimination against this plaintiff. Defendants' argument overlooks the fact that Howard's statement evidences an intent to refuse to hire females for an entire class of positions, and that the job of Director of Economic Development was one of those positions. It is contrary to the evidence and to common sense to suggest that Howard intended his statement to mean that “no woman would be named to a B schedule job,” except for the Director of Economic Development position. Although stray comments in the workplace may not constitute direct evidence of discriminatory motive, see Price Water-house, — U.S. at-, 109 S.Ct. at 1804 (O’Connor, J., concurring), the statement at issue in-this case was directly related to the employer’s hiring decisions involving the kind of position for which the plaintiff applied. Moreover, this court has held that direct evidence of the deci-sionmaker’s discriminatory motive regarding one employment decision may be used as evidence of that decisionmaker’s discriminatory motive in making a similar employment decision. See EEOC v. Alton Packaging Corp., at 924 n. 6 (racially discriminatory statements made in the context of hiring employees constituted direct evidence of discriminatory decisions in promoting employees because there was no reason to think that the negative racial attitudes evidenced by the statements affected only hiring, and not promotion, decisions). We conclude, therefore, that defendants’ argument has no merit.
. Dr. Howard’s affidavit contains only conclu-sory assertions: "He [the successful applicant] had extensive industrial work experience, which I felt was extremely important for the position. ... She [plaintiff] did have some business background and experience, but that did not and does not equate to industrial work experience.” The defendants do not explain why, considering the emphasis placed on business as well as heavy industry in the articulated job responsibilities, work experience in heavy industry is more important than experience in other businesses.
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
|
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