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songer_procedur
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A
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What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
ANCHOR STOVE & RANGE CO. v. RYMER et al.
No. 7924.
Circuit Court of Appeals, Sixth Circuit.
June 29, 1938.
Walter F. Murray, of Cincinnati, Ohio (Walter F, Murray and Murray, Sackhoff & Paddack, all of Cincinnati, Ohio, on the brief), for appellant.
J. B. Sizer, of Chattanooga, Tenn. (Chas. S. Mayfield, of Cleveland, Tenn., and J. B. Sizer and Sizer, Chambliss & Kefauver, all of Chattanooga, Tenn., on the brief), for appellees.
Before SIMONS, ALLEN, and HAMILTON, Circuit Judges.
SIMONS, Circuit Judge.
The cause is here for the second time. In our former decision Rymer v. Anchor Stove & Range Co., 6 Cir., 70 F.2d 386, we adjudged the present appellees guilty of unfair competition in simulating the design of appellant’s heaters, which were sold to the mail order house of Montgomery Ward & Company of Chicago, without sufficient indicia thereon to show their origin, and affirmed a decree granting the plaintiffs injunctive relief and reference to a master to assess damages.
Upon the first appeal no complaint was made with respect to the remedy decreed below, nor was it contended that the plaintiff was entitled to profits made by the defendant upon the heaters there held to infringe the plaintiff’s rights. Neither was there objection to the accounting and assessment of damages adjudged. In sustaining the decree we said (page 389) : “We recognize equally with the court below the difficulty of submitting to the master the proofs upon which damages may be assessed. The difficulty is not, however, insurmountable. Certainly with respect to the orders actually cancelled and not reinstated upon explanation by the plaintiff to its dealers, there is a sufficiently adequate factual basis for measuring damages, though we do not mean by this to imply that the proofs should be limited to such cancellations.”
When the cause' was returned to the District Court and by it referred to a master for an ' accounting, the plaintiff offered no proof of damages sustained by reason of cancelled orders, but sought an order requiring the defendants to open their books for inspection, first as to the number of infringing heate'rs sold by them to Montgomery Ward & Company, and second as to the profits which they had made on such heaters. The master granted the plaintiff an order of the scope requested, but upon exception it was amended by the District Judge in so far as it concerned the defendants’ profits, on the ground that such profits were not within the scope of the interlocutory decree' sus--tained in this court and that neither court nor master could enlarge or alter a decree sustained upon review. The plaintiff then contented itself with proof tending to show its damage to be $5.65 lost profit on each of 3,335 heaters which it claimed it would have sold had the defendants not resorted to unlawful simulation and infringement of its proprietary right, and had they not sold an equal number of infringing heaters to' Montgomery Ward & Company. No proof of any kind was adduced to show that either Montgomery Ward & Company or a single .one of its customers would have bought heaters from the plaintiff had the condemned simulation not taken place, or that the plaintiff had lost a single customer thereby.
The master found the sales of the defendant to Montgomery Ward & Company to be in the number indicated, and the average net profit per heater of those sold by the plaintiff in 1928 to be $5.65. • He thereupon awarded the plaintiff damages in the sum of $18,842.75, on the ground that the presumption in cases of infringément and unfair competition is against the wrongdoer. This award the District Court set aside because of the failure of the proofs to indicate that the sales to Montgomery Ward by the defendants resulted in any loss of sales to the plaintiff, and a decree was entered awarding the plaintiff but nominal damages.
Upon the present appeal the plaintiff complains that the court should have permitted the master to ascertain the profits made by the. defendants on their sale of heaters to Montgomery Ward & Company and to award it such profits, and that the court should have sustained the master’s - award of damages arrived at by multiplying the plaintiff’s' profit per heater unit by the number of units the defendants sold to Montgomery Ward & Company.
Since the decision in Hamilton-Brown Shoe Co. v. Wolf Bros. & Co., 240 U.S. 251, 36 S.Ct. 269, 60 L.Ed. 629, and by analogy to the relief granted in patent and trade-mark infringement cases, it is clear that the infringer may be required in > equity to account for and yield up his gains to the true owner upon a principle analogous to that which charges a trustee with the profits acquired by a wrongful use of the property of the cestui que trust. As there pointed out, when equity jurisdiction is rested upon some equitable ground, such as the right to injunction, the court will retain it for the purpose of administering complete relief rather than send the injured party to a court of law for damages, and the infringer’s profits are then allowed as an equitable measure of compensation on the theory of a trust ex maleficio, and it is not fatal that the plaintiff is unable to show what proportion of the profit is due to the trade-mark or the patent and what to the intrinsic value of the commodity, for (page 273) “it is more consonant with reason and justice that the owner of the trademark should have the whole profit than that he should be deprived ofs any part of it by the fraudulent act of the defendant.”
The difficulty which the appellant encounters here is that in the case as originally made below it sought no recovery of the defendants’ profits upon any trust theory. It asked for injunction and an accounting for damages. When it appealed to this court it complained of the scope of the decree only in so f.ar as it failed to include heaters other than those sold to Montgomery Ward & Company. No complaint was made as to the failure of the court by its decree to hold it entitled to the defendants’ profits. This decree we sustained, and while refusing to enlarge its application, the plaintiff within its limits secured the precise relief sought. The order of reference upon remand followed the terms of the decree. Our décision and mandate have become the law of the case and the court, below was not in error in overruling the order of the master looking toward the ascertainment and award to the plaintiff of the defendants’ profits. Sharpless Co. v. Lawrence, 3 Cir., 213 F. 423.
As to recovery of lost profits by way of damages, the usual principles apply. As was said by this court in Dickinson v. O. & W. Thum Co., 6 Cir., 8 F.2d 570, 575, “When a plaintiff in a trade-mark or unfair competition case seeks to recover damages, the burden is on him to prove by competent and sufficient evidence his lost sales, or that he was compelled to reduce prices as the result of his competitor’s wrongful conduct. There is no presumption of law or of fact that a plaintiff would have made the sales that the defendant made.” The authorities sustaining this principle are sufficiently cited in the text. Especially is this true when the alleged infringer sells his product at a substantially lower price, for “It does not follow, because a party makes a purchase at a lower price, that he would have bought the same article at a higher price.” Cincinnati Siemans Gas Co. v. Western Siemans Co., 152 U.S. 200, 206, 14 S.Ct. 523, 526, 38 L.Ed. 411.
The presumption relied upon by the master is undoubtedly derived from those cases in which an award of profits made by the wrongdoer is made to the person injured on the theory that the wrongdoer is not to be permitted to profit by his unlawful act. Liability for damages arises solely from the injury done to the property rights of the adverse party, and is not supported by the fiction which places the infringer in the position of a trustee and requires him to account for profits made as such. Dickinson v. Thum Co., supra; United States v. Bitter Root Development Co., 200 U.S. 451, 26 S.Ct. 318, 50 L.Ed. 550; Tilghman v. Proctor, 125 U.S. 136, 148, 8 S.Ct. 894, 31 L.Ed. 664.
The decree below is affirmed.
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_treat
|
D
|
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.
Kenneth Lee BENOIT, Petitioner-Appellant, v. John Will WINGO, Warden Kentucky State Penitentiary, Respondent-Appellee.
No. 19886.
United States Court of Appeals, Sixth Circuit.
April 3, 1970.
Kenneth Lee Benoit, in pro. per.
John B. Breckinridge, Atty. Gen., James H. Barr, Asst. Atty. Gen., Commonwealth of Kentucky, Frankfort, Ky., for appellee on brief.
Before McCREE and COMBS, Circuit Judges, and CECIL, Senior Circuit Judge.
CECIL, Senior Circuit Judge.
This is an appeal by Kenneth Lee Benoit, petitioner-appellant, from an order of the United States District Court for the Western District of Kentucky dismissing his petition for a writ of habeas corpus. Benoit was tried before a jury on a charge of armed robbery in the Jefferson County, Kentucky, Circuit Court. The jury returned a verdict of guilty and fixed the punishment at life imprisonment. He was sentenced accordingly by the trial judge on October 23, 1964, which sentence he is now serving in a Kentucky state prison.
The substance of appellant’s claim on this appeal is that he was denied effective assistance of counsel on an appeal from the trial court to the Court of Appeals of Kentucky. Following the conviction and sentence the appellant’s court-appointed counsel filed a timely notice of appeal and secured an extension of time for the perfection of the appeal. Finally, he wrote the appellant a letter, as follows:
“Dear Mr. Benoit: March 2, 1965
After doing a great deal of research on your case I have come to the conclusion that on appeal we would be wasting our time.
So, therefore, I think it best that I do not proceed with appeal.
I have filed a notice of appeal with the court. Further I have gotten a extension for you. If you want to appeal your own ease it will be best for you now to get a extension from the court of appeals.
Further you will have to draw up a record indicating your a pauper and ask for a transcript of the record. However, to keep your appeal going you will in the next week or so have to file a motion with the court of appeals asking for a extension.
If I were of the opinion we had any chance whatsoever on appeal I would continue, but it will be a waste of time. I would rather spend this time on something more meretorious.
I’m sorry I have to do this however, -1 believe I have no other choice.
Sincerely yours:
Stuart Lyon”
This letter reached the appellant while he was confined in the penitentiary at a time when the time for perfecting the appeal had either expired or was so near to expiration that the appellant couldn’t have been expected, on his own, to have processed the appeal. Counsel did not seek leave either of the trial judge or of his client to withdraw from the case. A notice of appeal had been filed in the trial court as a matter of record on October 30, 1964, and signed by the trial judge. An extension of time was granted by the trial judge on December 21, 1964.
Subsequently, the appellant filed pro se a petition in the Circuit Court under Kentucky Criminal Rule No. 11.42, to vacate the judgment and conviction. This was denied by the trial judge and the appellant appealed to the Kentucky Court of Appeals. The Court of Appeals affirmed the judgment of the Circuit Court on the ground that the appellant’s motion did not show that he had requested his court-appointed counsel to proceed with an appeal. Benoit v. Commonwealth, Ky., 402 S.W.2d 706, cert. den. 385 U.S. 870, 87 S.Ct. 138, 17 L.Ed.2d 97.
In his petition to the District Court, the appellant alleged that he had requested his counsel to appeal his conviction. The district judge dismissed the petition for the reason that with an allegation that he had requested an appeal he would be entitled to relief under RCr 11.42 and that he therefore had not exhausted his state remedies. (Sec. 2254, Title 28, U.S. C.) The Kentucky Court of Appeals had decided that an indigent defendant, upon request, was entitled to an appeal of his conviction with the aid of counsel and if it had been denied him such a review must be provided or the conviction vacated. Hammershoy v. Commonwealth, Ky., 398 S.W.2d 883.
It is no longer open to question that an indigent defendant has a constitutional right under the Fourteenth Amendment to a review of his case on appeal as a matter of right if the same right is extended to non indigents. Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891; Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892; Burns v. Ohio, 360 U.S. 252, 79 S.Ct. 1164, 3 L.Ed.2d 1209; Smith v. Bennett, 365 U.S. 708, 81 S.Ct. 895, 6 L.Ed.2d 39; Eskridge v. Washington Prison Board, 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269; United States ex rel. Diblin v. Follette, 418 F.2d 408 (C.A.2). The indigent is entitled to have counsel to assist him in his appeal, Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811; Swenson v. Bosler, 386 U.S. 258, 87 S.Ct. 996, 18 L.Ed.2d 33; Schwander v. United States, 386 F.2d 20, 24-25 (C.A.5); United States ex rel. Smith v. McMann, 417 F.2d 648 (C.A.2); Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493.
Whatever obligation there was on the appellant to request an appeal, the request would have been appropriately made after the conviction and within time to perfect an appeal. We think it is of no consequence under the facts of this case whether a request for an appeal was made. The process of an appeal was timely begun. If it was started as a result of the appellant’s request he fulfilled his obligation to make a request. If it were started voluntarily by counsel there would have been no need to make a request. It was a matter of record that a notice of appeal had been filed and that an extension of time had been granted. The appellant had a right to rest with the assurance that his appeal was being processed.
The question here is, an appeal having been begun, whether the appél-i lant had the effective assistance of counsel to prosecute it. We conclude that he did not.
Counsel in his letter to the appellant, abandoning the appeal, wrote with such finality that it gave the appellant no opportunity to request him to continue with the appeal. Further, counsel did not leave the appeal in such status that the appellant being confined in prison and being unlearned in law could be expected to pick it up pro se and prosecute it to the conclusion. Neither did he have an opportunity to have the trial judge appoint new counsel to assist him in the prosecution of his appeal. The appellant was entitled not only to an appeal as a matter of right but he was entitled to have the assistance of counsel in processing that appeal.
Court-appointed counsel should have sought leave of the trial judge to withdraw from the case and under such circumstances that there would be no prejudice to the appellant in continuing the appeal with newly appointed counsel. . For the reasons herein expressed we conclude that the appellant did not have adequate and effective assistance of counsel in prosecuting his appeal. We do not question counsel’s sincerity in informing his client that he concluded there was no merit to his appeal nor do we find that he intentionally and carelessly neglected his professional duty.
We conclude that on the record in the District Court the appellant was entitled to have a review of his trial and conviction as on original appeal or to be released. We remand the case to the District Court with instructions to give the State an opportunity to provide the appellant with a review of his conviction with the aid of counsel on direct appeal as adequate as if counsel had pursued the appeal in the first instance. If the appellant has not been afforded an opportunity to appeal within ninety days after this opinion becomes final the appellant shall be released.
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_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.
SHEPARD v. UNITED STATES.
No. 564.
Circuit Court of Appeals, Tenth Circuit.
Jan. 9, 1933.
C. L. Kagey, of Wichita, Kan., and Harry W. Colmery, of Topeka, Kan. (Hal M. Black, of Wichita, Kan., Harry S. Class, of Denver, Colo., L. M. Kagey, of Wichita, Kan., L. W. LundbJade, of Beloit, Kan., A. E. Crane and Balfour S. Jeffrey, both of Topeka, Kan.,. Kagey & Black, of Wichita, Kan., Kagey,, Lundblado & Kagey, of Beloit, Kan., and Doran, Kline, Colmery & Cosgrove, of Topeka, Kan., on the brief), for appellant.
S. M. Brewster, U. S. Atty., and L. E. Wyman, Asst. U. S. Atty., both of Topeka, Kan. (Donald Little and Dan B. Cowie, Asst. U. S. Attys., both of Topeka, Kan., on the brief), for the United States.
Before LEWIS, COTTERAL, and PHILLIPS, Circuit Judges.
COTTERAL, Circuit Judge.
Charles A. Shepard was convicted of murdering his wife, Zenana Shepard, by poisoning, June 15,1929, on the United States Military Reservation, at Fort Riley, Kan. The verdict of the jury was returned without capital punishment and the defendant was sentenced to life imprisonment. He appeals, relying on eight assignments of error, which embrace complaints of: (1) The exclusion of jurors; (2) refusal to direct a verdict for the defendant; (3) the admission of incompetent evidence; and (4) prejudicial comments on the evidence.
1. The defendant exhausted his peremptory challenges. Ten additional jurors wore excused by the court, and others were called and retained. Those excused had read an article printed in the Kansas City Star, purporting to emanate from the defendant, shortly before the trial. One of them, interrogated by the court and counsel for both ■sides, believed the article was a statement by the defendant, and answered he thought it would be considered. The others of those jurors were’examined solely by the court, all had read the article, and they were excused -without allowing inquiry from counsel for the defendant. The objections were to the excuse of these jurors, and to the denial of a motion, to quash the panel on that ground.
The view of the court was reflected in a remark that the defendant may not put his statement in a newspaper, get it to the jurors, and ask them to sit in the case. We quite agree it was not permissible for the defendant to create an atmosphere favorable to his defense and be tried by jurors subject to such influence. The newspaper article was introduced for the use of the court, but is not in the récord. The trial court has the duty to pass on the qualifications of the jurors. Its action is- not reviewable, unless it discloses an abuse of discretion. While there was no showing that the defendant wrote or inspired the article, the court had the discretion to- determine its effect; and no error arose because the court examined the jurors. Remus v. United States (C. C. A.) 291 F. 501; Assaid v. United States (C. C. A.) 10 F.(2d) 752; Hopt v. Utah, 120 U. S. 430, 435, 7 S. Ct. 614, 30 L. Ed. 708; Northern Pacific R. R. Co. v. Herbert, 116 U. S. 642, 646, 6 S. Ct. 590, 29 L. Ed. 755. In any event, the defendant'has no ground of complaint, as he was tried before an impartial jury. Hayes v. Missouri, 120 U. S. 68, 7 S. Ct. 350, 30 L. Ed. 578; Howard v. Kentucky, 200 U. S. 164, 26 S. Ct. 189, 50 L. Ed. 421.
2. The motion to direct a verdict is based on the insufficiency of evidence to warrant the conviction. The prosecution claims the defendant poisoned his wife, with the motive of marrying Grace Brandon, with whom he had become enamored. We condense the evidence of guilt to the point that will illustrate its sufficiency.
The defendant and his wife were married .•at Los Angeles, in 1916. He is a medical officer in the United States Army, and was commissioned as a major during the World War. 'Since that time he has been stationed at various posts, and in 1928 was transferred to Fort Riley, Kan. His wife accompanied him. In that year, leaving his wife at Fort Riley, She took a flight surgeon’s course at Brooks Field, near San Antonio, Tex. While there, he met Grace Brandon and took her to dinners, dances, theaters, and other places of entertainment. He told her he and bis wife were not cong-enial, but kept up appearances for the sake of his rank and reputation. In November, 1928, at Neuvo Laredo, Mexico, he asked Miss Brandon to marry him if he should get a divorce; and she assented. The promise was repeatedly made. He protested his love for her, and frequently made her gifts of candy, flowers, jewelry, and other articles. He asked her to write to him at Junction City, Kan., where he rented a post office box. He wrote to her often, occasionally several times a day, until after his arrest.
In his letters he spoke of their marriage, and shortly before his wife became ill he wrote Miss Brandon his wife had changed her mind about a divorce, and he was depressed because of her request for an excessive financial settlement; also, that he had made over to Miss Brandon his life insurance of about $30,000. The correspondence with her was addressed in affectionate terms. In May, 1929, a few days before Mrs. Shepard became ill, he ordered a canary bird sent to Miss Brandon, but it did not reach her until two days before Mrs. Shepard’s illness began.
Soon after his return from San Antonio in December, 1928, the defendant obtained some bichloride of mercury tablets from the pharmacist at the post dispensary. He obtained other such tablets there in March, 1929, and in the following month he obtained a prescription for a like tablet dissolved in eight ounces of alcohol. In his. statement made to the agents of the Department of Justice he denied the fact, but in his testimony said all doctors carried the tablets for disinfectant purposes. He also obtained from the dispensary about two hundred empty capsules. He had access to the dispensary and had the keys to it every five or six days, as officer of the day.
Mrs.' Shepard enjoyed good health. In the afternoon of May 20, 1929, she went to Junction City to mail a letter. After her return defendant gave her a ginger ale highball. Later that evening, Mrs. Gertrude Skow, in answer to a call from Mrs. Shepard during her absence, telephoned the Shepard home and talked with the defendant, who told her that Mrs. Shepard was desperately ill and the doctor was there. She and Mrs. Constance Gates, another friend of Mrs. Shepard (both wives of army officers), called at the Shepard home but did not see her, and were told by the defendant she had gotten some bad liquor. Major Edward J. Striekler, a psychiatrist summoned by defendant, called at 8 o’clock. At about 9 o’clock, defendant called Mrs. Skew, asking her to stay with Mrs. Shepard until he could go for a nurse. He met Clara Brown, a nurse from Topeka, at Junction City, and she arrived that night. He told the nurse Mrs. Shepard had a nervous breakdown, and she need not keep a record of the ease. Mrs. Shepard was found delirious and vomiting, and her eyes were dilated. The defendant prepared capsules for Mrs. Shepard and the nurse gave them to her, one at a time. He said the capsules contained sodium bicarbonate and luminol. There were others he said contained bismuth.
The next day, the defendant told Alice McDonald he did not think the patient would get well. Mrs. Shepard suffered and had hemorrhages. Defendant told Major Martin Du Frenne he thought she was a chronie alcoholic, and had a chronie appendix. He also told Major Paul R. Hawley she had heart trouble. But no evidence was found of either condition. Her mouth became sore and foul and a dentist prescribed a wash containing mercuric chloride, but she used only a little of it. She lingered until she died on June 15, 1929.
The defendant opposed an autopsy asked by the officers, but yielded when it was ordered by General Symonds. The viscera were examined by several specialists and revealed the presence of mercury, taken in small doses. They agreed it was the cause of the dqath. This is practically conceded by counsel for the defendant.
Shepard went with the remains to Los Angeles for cremation. Before he left, he, advised Miss Brandon of the time of his departure, and stated that he would be at the Roslyn Hotel. He wired her the night of his arrival. On Juno 29, he wired General Ireland a request for a transfer to the hospital at Fort Sam Houston, near San Antonio. He wrote to Miss Brandon while en route from Los Angeles to Port Riley. Immediately after his return, he obtained leave to go to Denver to sell some lots, but went directly to San Antonio, arriving there on June 30. The day previous, he wired Miss Brandon from Waco he would telephone her on arrival at hotel, signing, “Love, Charlie.” He met her and while driving with her, proposed a secret marriage. On her refusal, they fixed their wedding date for August, 1930. He continued to send her gifts and bought her a car. He made repeated efforts to obtain a transfer to San Antonio.
There was such an array of circumstances pointing to defendant’s guilt as to leave no doubt of its sufficiency to withstand the motion for a directed verdict.
3. The main testimony objected to was that of Sergeant J. C. Glesser and the nurse, Clara Brown, admitted in rebuttal. The sergeant testified that on the fourth or fifth day of her illness, Mrs. Shepard said she believed she was being poisoned. Nurse Brown testified Mrs. Shepard said on the second day of her illness “she was being poisoned,” and “Doctor Shepard has poisoned me.”
The testimony of these witnesses was not admissible as dying declarations. There was testimony that Mrs. Shepard said she would not get well, had made threats of suicide, and did not want to recover; and it is a fair inference she believed, she would not recover. But there is no' evidence that she believed death was impending or about to ensue. Death need not actually follow as anticipated, but it is necessary that the patient believe it to be imminent. It is then an exception to the rule excluding hearsay arises, the temptation to falsehood being removed. Mattox v. United States, 146 U. S. 140, 13 S. Ct. 50, 36 L. Ed. 917; Wigmore on Evidence (2d Ed.) vol. 3, §§ 1440,1441. The testimony of Sergeant Grosser was that the statement of Mrs. Shepard was not one of fact but opinion, and for that reason it was not admissible as a dying declaration. Wigmore on Evidence (2d Ed.) vol. 3, § 1447 ; 30 C. J. p. 274; Ehrhardt v. People, 51 Colo. 205, 117 P. 164.
But we are convinced the declarations were admissible to rebut the theory of suicide, advanced by the defense. The statements imputed to Mrs. Shepard that she contemplated suicide and did not expect or want to get well, reflected the state of her mind and tended- to show the poison was self-administered.' To rebut that testimony, the declarations that her .husband had poisoned her and she believed she had been poisoned were clearly competent as tending to show a different state of mind. State v. Kuhn, 117 Iowa, 216, 90 N. W. 733; 30 C. J. p. 165; Mutual Life Ins. Co. v. Hillmon, 145 U. S. 285, 12 S. Ct. 909, 36 L. Ed. 706; State v. Hayward, 62 Minn. 474, 65 N. W. 63; Commonwealth v. Trefethen, 157 Mass. 180, 31 N. E. 961, 24 L. R. A. 235.
It is argued that as the testimony was not of dying declarations, it was error to admit it, unless the jury was instructed as to the purpose for which it might be considered. There is authority for the contention. It was held error to omit the instruction whore the evidence was long or involved, in a conspiracy case. Minner v. United States (C. C. A.) 57 F.(2d) 506. But the general rule, which should be applied here, requires the adverse party to request such an instruction when he desires the benefit of it, and it was not done in this case. Butler v. United States (C. C. A.) 53 F.(2d) 800; Moffatt v. United States (C. C. A.) 232 F. 522; Hallowell v. United States (C. C. A.) 253 F. 865; Id. (C. C. A.) 258 F. 237, certiorari denied 249 U. S. 615, 39 S. Ct. 390, 63 L. Ed. 803; Id., 251 U. S. 559, 40 S. Ct. 180, 64 L. Ed. 413; Stassi v. United States (C. C. A.) 50 F.(2d) 526. Instead, when the instructions were finished, counsel for the defendant stated he was satisfied with them. This foreclosed objections to them. Mann v. United States (C. C. A.) 49 F.(2d) 131; Najera v. Bombardieri (C. C. A.) 46 F.(2d) 281; Wong Tai v. United States, 273 U. S. 77, 47 S. Ct. 300, 71 L. Ed. 545.
Objection is urged to the introduction in evidence of various letters which were written by defendant to Miss Brandon, those he wrote to the concerns from which the gifts were obtained by him for her, and to the articles sent to her. The argument is the court abused its discretion in admitting' those exhibits. The obvious answer is they tended to establish a motive on defendant’s part to penetrate the crime charged. There is no force whatever in the objection.,
The account given by the defendant to tfie agents of the Department of Justice is assailed. He stated he was advised as to his constitutional rights and made his statement freely and voluntarily. An admission given under such circumstances is properly received in evidence. Perovich v. United States, 205 U. S. 86, 91, 27 S. Ct. 456, 51 L. Ed. 722; O’Neill v. United States (C. C. A.) 19 F.(2d) 322.
The introduction of Mrs. Shepard’s letters to her kin and mother were also questioned. They were offered to show the frame of her mind as being opposed to suicide. They were admissible on the same grounds as were her conversations.
4. Finally, it is urged that the court, indulged in prejudicial comments upon the evidence, in ruling upon the objections. Those pointed out by counsel do not sustain their complaint. There were unwarranted remarks to counsel in different instances, but they were insufficient to constitute reversible error.
The charge to the jury is assailed, in that it reviewed the evidence in favor of the prosecution in more detail than that favoring the defense. This was a natural course, in view of the burden to establish the offense by circumstantial evidence. But it suffices to say that the charge was accepted as satisfactory by the defendant’s counsel.
We are of the opinion that the record discloses no material error, and for that reason the judgment in this ease is affirmed.
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_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.
Freddie Lee BROWNER and Freddie Levi, Appellants, v. UNITED STATES of America, Appellee.
No. 12234.
United States Court of Appeals Sixth Circuit.
Oct. 15, 1954.
Samuel Posner, Detroit, Mich., for appellants.
George E. Woods, Asst. U. S. Atty., Detroit, Mich. (Fred W. Kaess, Detroit, Mich., on the brief), for appellee.
Before SIMONS, Chief Judge, and ALLEN and STEWART, Circuit Judges.
PER CURIAM.
In a trial for violation of the narcotic laws, agents of the Government were advised at seven o’clock, P. M., by an informer, that the appellants were to be at the informer’s house at approximately eight o’clock that night to deliver to him an ounce and a half of heroin. The agents proceeded to the informer’s house, where they concealed themselves. About half an hour later, two persons entered the house answering the description of them given to the agents by the informer. They were arrested and searched and, upon the person of one of them, there was found 405 grains of heroin, in violation of section 2553(a), Title 26, U.S.C.
At the trial, a motion to suppress the evidence was made on behalf of appellants on the ground that the search was made without a warrant and without probable cause to believe that the defendants were violating the law. The motion was denied, the evidence admitted, and a verdict of guilty returned by the court after waiver of a jury. The only issue relates to the reasonableness of the search.
Its validity must be determined by the reasonableness in the light of the particular facts and circumstances of the case. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879; United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653; Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543. The information received by the agents from the informer did not of itself warrant the arrest; but, when the defendants appeared at the home of the informer at approximately the time agreed upon and answered the description given to the agents, it imparted verity to the information received. The agents then were justified in believing that there was probable cause that a crime was being committed. It must be observed that the arrest was made and the search conducted at the home of the informer, and not at the home of the appellants. This distinguishes the case from that of Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145, where it was said that there is no sanction in the decisions of the courts, federal or state, for the search of a private dwelling house without a warrant, and that absence of any judicial approval is persuasive authority that it is unlawful. This is on the ground that it is always feasible to obtain a search warrant for a search of the dwelling place of those accused. Worthington v. United States, 6 Cir., 166 F.2d 557, was similar: likewise, it involved the search of the home of the accused.
In this case, it was of course not feasible to obtain a search warrant before the time of delivery of the narcotics had arrived. The suggestion of counsel for the appellants that the agents should have waited until delivery was made to give reasonableness to the arrest is not persuasive, since no opportunity was given the agents upon such short notice to provide the informer with three hundred dollars of Government money with which to make the purchase.
Affirmed.
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
|
songer_respond1_1_2
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained".
LIPSCOMB v. TENNESSEE COAL, IRON & R. CO. TENNESSEE COAL, IRON & R. CO. v. LIPSCOMB.
No. 13441.
United States Court of Appeals Fifth Circuit.
June 25, 1951.
William L. Hogue, Asst. U. S, Atty., John D. Hill, U. S. Atty., Birmingham, Ala., for appellant.
Andrew J. Thomas, Birmingham, Ala., for appellee.
Before HUTCHESON, Chief Judge, and BORAH and STRUM, Circuit Judges.
JOSEPH C. HUTCHESON, Chief Judge.
Brought to recover $3301.20, the difference between the pay of the position he was assigned to on his return from the service and the one he claims he was entitled to have been placed on, this is another in the long catalogue of suits which have been brought in vindication of the rights accorded returned veterans by the Selective Training and Service Act of 1940, as amended.
The claim in substance was: that on his re-employment by the defendant in February, 1946, after a leave of absence on military service since October, 1943, he should have been assigned to the position of lathe machine operator rough, or of roughing lathe helper; that instead, defendant reemployed him as crane operator, the same position he had had when he left; and that in doing so, it had, in violation of his rights under the act, deprived him of his seniority rights in favor of one Elrod who had succeeded him as craneman and had then been successively promoted to roughing lathe helper and machine operator.
While there were other defenses, the one relied on mainly below and entirely here is: that the re-employment of plaintiff in February, 1946, in his former position was not in derogation of, but in compliance with, the act; that however, by virtue of a written agreement of date June 10, 1946, between defendant and the United Steel Workers Union, the recognized bargaining agent, plaintiff became entitled, within fifteen days thereafter, to be placed in the position of roughing lathe helper with seniority in such position from November 21, 1943, and, because he was not assigned to that position until February 20> 1948, which position he now holds, he was entitled to recover wages lost 'by the delay in assigning him to it in a sum of which was agreed to as $119.87, less payroll deductions.
The case was tried to the court without a jury, and, the evidence all in, the district judge, on full findings of fact and of law, held: that plaintiff, upon his return was not, and would not have been except after six months’ experience as roughing lathe helper, qualified to perform the duties, and he was, therefore, not entitled to be then employed as roughing lathe operator; but that he was qualified however, to- perform, and should have been assigned to the job of, roughing lathe helper with seniority on that job from November, 1943, and was entitled to recover the agreed wages lost by not being earlier assigned to that job. He found, too: that, under the practice and custom recognized by the defendant and its employees and prevailing in that part of the defendant’s plant where plaintiff was employed, seniority as to both promotion and increase or decrease in forces operated on the individual and separate job positions or levels in the line of promotion; that 'because by the time plaintiff could have qualified as a roughing lathe operator, Byron Elrod, during the period after plaintiff’s return, acquired age on the job as roughing lathe operator, which gave El-rod job seniority as roughing lathe operator, before plaintiff could have qualified as roughing lathe operator; and that plaintiff was, therefore, not entitled to seniority over Elrod as to that position.
He, therefore, entered a judgment for plaintiff: (1) that plaintiff recover the sum of $115.25, less $15.59; (2) that the defendant be, and it is hereby required to maintain plaintiff’s seniority as a roughing lathe helper ahead of and superior to that of Byron V. Elrod insofar as said seniority concerns increase or decrease in forces, but the defendant is not required to maintain plaintiff’s seniority with respect to promotion to the position of roughing lathe operator ahead of, or superior to, that of Byron V. Elrod.
Plaintiff is here appealing from the part of the judgment denying him seniority over Elrod as to the position of lathe operator and a recovery of lost wages accordingly.
Defendant, while not complaining of the effect of the judgment either as to the seniority adjudged or as to the amount of back pay awarded, has cross appealed in complaint of some of the findings of the couit and of the court’s failure to amend and add to its findings as requested by defendant.
Matching plaintiff’s complaint of the judgment with defendant’s, the matter before us comes down to this: Was the district judge wrong in denying plaintiff seniority over Elrod as to the position of lathe operator? Appellant insists that he was because he was either entitled upon his return to be assigned to the position of lathe operator or, if he was not so entitled but only to be assigned to the position of roughing lathe helper with seniority as to that position, he was nevertheless entitled to maintain that seniority not only as to that position 'but as to the next position in line of promotion, lathe operator.
Urging upon us that it is illogical to hold, as the trial court did, that plaintiff was entitled to seniority over Elrod as roughing lathe helper but was not entitled to it as to lathe operator, a position which Elrod got by first serving as roughing lathe helper, appellant insists that the judgment must be reversed.
Appellee, on its part, urges: that when plaintiff went into the service, it was under the protection of an act which entitled him not to a promotion during his absence but a return to the same position; that since when he went into the service he had no contract entitling him to such promotion on seniority alone, and no contract, as in Armstrong’s case, 73 F.Supp. 329, relied on by appellant, was made while he was in the service which enlarged his rights, he was not entitled on his return to promotion on seniority alone; that by virtue of the contract of June 10, 1946, he became entitled to be employed as of his return in a position which he was qualified to fill on his return that would result in a promotion with seniority as to that position; and that it was because of that contract alone and not because of any requirement of the act that he was so entitled to the position of roughing lathe helper which he was able to fill on his return.
It further points out that, under the contracts and practices existing between defendant and the bargaining agent for the employees, and as found by the district judge, it was established that a seniority acquired as to a particular job or position may not be made to give way to a general seniority; and that, under the un-pear on either the appeal or the cross ap-disputed facts and as found by the court, plaintiff was not entitled Oil híá r'étüfíl to the position of lathe operator, and, while he was getting the necessary experience, Elrod had already acquired seniority in that position.
So pointing, it urges upon us that, notwithstanding the erroneous finding of the court that plaintiff was entitled to reemployment as a roughing lathe helper from the time of his return, the judgment must, nevertheless be affirmed. This is because plaintiff was entitled from and after the making of, and under, the contract in June, 1946, to receive the position of roughing lathe helper with seniority and defendant therefore owes plaintiff the amount awarded him the difference in pay between the position of craneman and roughing lathe helper from the time of his return.
We agree with appellee, and, agreeing, affirm the judgment. A careful reading as a whole of the findings of fact and of law of the district judge, in the light of the evidence and the judgment, leaves us in no doubt: that the amounts agreed to be due plaintiff were stipulated as due from June, 1946, to February, 1948, and not as inadvertently stated by the court from February, 1946, to February, 1948; and that the finding and the conclusion of law that plaintiff was entitled to recover for that period were erroneous. It convinces us, too, that, though erroneous, they were inadvertent and also without bearing or effect upon the substance of the findings and judgment. The findings and conclusions as a whole particularly fact findings 13 and 14, and the judgment, make it quite clear that the district judge understood and gave full effect to the contract of June 10, 1946, and that in finding and deciding as he did, no conflict or inconsistency was intended or occurred between the decision in this case and those in the other cases from the Northern District of Alabama cited and relied on.
No reversible error being made to appeal, the judgment as to both appeals is
Affirmed.
. 50 U.S.C.A. Appendix, §§ 308 and 357.
. Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 66 S.Ct. 1105, 90 L.Ed. 1230; Aeronautical Industrial Dist. Lodge 727 v. Campbell, 337 U.S. 521, 69 S.Ct. 1287, 93 L.Ed. 1513; Meehan v. Nat’l Supply Co., 10 Cir., 160 F.2d 346; Hewitt v. System Federation No. 152, 7 Cir., 161 F.2d 545; Harvey v. Braniff International Airways, 5 Cir., 164 F.2d 521; Raulins v. Memphis Un. Station Co., 6 Cir., 168 F.2d 486; Oil Workers Int. v. Sinclair, 5 Cir., 171 F.2d 192; Special Service Co. v. Delaney, 5 Cir., 172 F.2d 16; Bond v. Tennessee Coal, Iron & R. Co., D.C., 73 F.Supp. 333.
. See authorities cited in note 2, supra.
. Armstrong v. Tennessee Coal, Iron & R. Co., D.C., 73 F.Supp. 329; Bond v. Tennessee Coal, Iron & R. Co., D.C., 73 F.Supp. 333.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer:
|
songer_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.
SHURBERG BROADCASTING OF HARTFORD, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Astroline Communications Co., Intervenor.
No. 84-1600.
United States Court of Appeals, District of Columbia Circuit.
Argued Jan. 8, 1986.
Decided March 31, 1989.
As Amended March 31, 1989.
Order Denying Rehearing June 16, 1989.
Order Denying Rehearing En Banc June 16, 1989.
Harry F. Cole, Washington, D.C., was on the brief for appellant.
C. Grey Pash, Jr., Counsel, F.C.C., with whom Jack D. Smith, Gen. Counsel, and Daniel M. Armstrong, Associate Gen. Counsel, F.C.C., Washington, D.C., were on the brief, for appellee.
Lee H. Simowitz, with whom Thomas A. Hart, Jr., Washington, D.C., and Merilyn M. Srailman were on the brief, for inter-venor Astroline Communications Co.
Andrew Jay Schwartzman, Washington, D.C., was on the brief for amici curiae Dept, of Communications of the Capital Region Conference of Churches, et al., urging affirmance.
David Honig, was on the brief for amici curiae Nat. Black Media Coalition, et al., urging affirmance.
Before WALD, Chief Judge, and SIL-BERMAN, Circuit Judge, and Mac-KINNON, Senior Circuit Judge.
Opinion PER CURIAM.
Separate Opinions filed by Circuit Judge SILBERMAN and Senior Circuit Judge MacKINNON.
Dissenting Opinion filed by Chief Judge WALD.
PER CURIAM:
The opinions by Judges Silberman and MacKinnon in some respects differ in analysis. However, both conclude that the FCC’s minority distress sale program unconstitutionally deprives Alan Shurberg and Shurberg Broadcasting of their equal protection rights under the Fifth Amendment because the program is not narrowly tailored to remedy past discrimination or to promote programming diversity. Specifically, the program unduly burdens Shur-berg, an innocent nonminority, and is not reasonably related to the interests it seeks to vindicate.
The cause is remanded to the Federal Communications Commission for further proceedings not inconsistent with this opinion.
Judgment accordingly.
SILBERMAN, Circuit Judge:
Alan Shurberg, a long-time resident of the Hartford, Connecticut area, and Shur-berg Broadcasting Company of Hartford, Inc., have been trying since 1982 to replace Faith Center, Inc., as the licensee of Channel 18 in Hartford. Shurberg appeals from an FCC Memorandum Opinion and Order granting Faith Center permission to sell its broadcast properties to a minority-controlled enterprise pursuant to the Commission’s distress sale policy. After Faith Center’s second unsuccessful attempt at a distress sale, Shurberg sought to file with the FCC a construction application that was mutually exclusive of Faith Center’s renewal application and to have his application set for comparative hearing with Faith Center’s renewal application. As the FCC could grant either Shurberg’s request for comparative consideration or Faith Center’s petition for permission to assign its broadcast license to a third distress sale buyer — intervenor Astroline Communications Company Limited Partnership (“As-troline”) — but not both, the FCC considered the two requests together. Deciding in favor of Faith Center, the FCC gave slightly greater weight to its distress sale policy than to the statutory policy favoring competition in licensing. Faith Center, Inc., 99 F.C.C.2d 1164, 1170 (1984). The Commission also held that the racial preference embodied in the distress sale policy did not violate the Constitution because the policy was meant to remedy past discrimination and to promote diversity of ownership and programming. Id. at 1170-72. And the Commission sustained the bona fides of Astroline’s minority status, dismissing Shurberg’s contention that Astroline’s purported minority ownership was a sham. Id. at 1172-73.
Our resolution of Shurberg’s appeal in this matter has been delayed for some time. After oral argument in this case, developments in a related case, Steele v. FCC, 770 F.2d 1192 (D.C.Cir.1985), led us to ask the FCC if it still fully supported the constitutionality of its distress sale policy. The Commission acknowledged that it had doubts and requested that we remand in order for it to reconsider the matter fully. In the midst of that reexamination, however, Congress passed and the President signed a continuing resolution forbidding, inter alia, the expenditure of funds for reconsideration of the distress sale policy. The Commission promptly terminated its proceedings and reinstated the policy, and therefore we must now consider Shur-berg’s challenges.
Shurberg argues that: the FCC’s decision is inconsistent with the governing statute, regulations, and judicial precedents, which he asserts required the Commission to consider his competitive application; the FCC’s proceedings were marred by ex parte contacts and other irregularities; the distress sale policy unconstitutionally discriminated against him on the basis of race. I discern no substantive or procedural flaw in the FCC’s action in this case that would require reversal if the agency’s distress sale policy were constitutional. I nevertheless vote to overturn the Commission’s decision because I have concluded, for the reasons set forth below, that the distress sale policy, as applied to bar Shurberg’s opportunity to compete for the license, is unconstitutional.
I.
A.
As a general rule, a licensee whose qualifications to hold a broadcast license come into question may not assign or transfer that license until the FCC has resolved its doubts in a noncomparative hearing. This policy is premised on the notion that “a licensee... has nothing to assign or transfer unless and until he has established his own qualifications_” Northland Television, Inc., 42 Rad.Reg.2d (P & F) 1107, 1110 (1978); see also Jefferson Radio Co. v. FCC, 340 F.2d 781, 783 (D.C.Cir.1964). The distress sale policy is an exception to that general rule, developed initially as a way of avoiding time-consuming hearings when expeditious action to oust the licensee was desirable — for example, when the licensee was bankrupt or disabled. See Statement of Policy on Minority Ownership of Broadcasting Facilities, 68 F.C.C.2d 979, 983 (1978) (“1978 Policy Statement”); see generally Stereo Broadcasters, Inc. v. FCC, 652 F.2d 1026, 1028-29 (D.C.Cir.1981). The policy allows one whose license has been designated for revocation hearing, or whose renewal application has been designated for hearing, to assign his license to an FCC-approved as-signee. See id.
In 1978, the FCC expanded the applicability of the distress sale policy. It would continue to be available “in circumstances similar to those now obtaining,” but, in addition,
in order to further encourage broadcasters to seek out minority purchasers, [the FCC would] permit licensees whose licenses have been designated for revocation hearing, or whose renewal applications have been designated for hearing on basic qualification issues... to transfer or assign their licenses at a “distress sale” price to applicants with a significant minority ownership interest, assuming the proposed assignee or transferee meets our other qualifications.
1978 Policy Statement, 68 F.C.C.2d at 983 (footnote omitted). A holder whose license the FCC indicated it might terminate or refuse to renew due to basic qualification issues would be eligible, with FCC approval, to sell its assets and transfer its license to a qualified minority enterprise. Licensees have a substantial incentive to exercise this option, because once a license has been designated for a revocation hearing, a licensee may not transfer the license other than through a distress sale. See Northland Television, Inc., 42 Rad.Reg.2d at 1110. The licensee may either gamble that he will prevail in the noncomparative hearing or make an early exit via a distress sale, which will allow him to salvage some portion of the license’s value. The distress sale price, to be approved, must be no higher than seventy-five percent of the station’s and license’s combined fair market value. This cap ensures the distress sale will involve a substantial loss for the licensee — and a substantial discount for the purchasers. See Grayson Enterprises, Inc., 47 Rad.Reg.2d (P & F) 287, 293 (1980).
B.
This case has a long and complicated procedural history that reaches back to a period before the proceedings on Faith Center’s Hartford license and forward beyond the time of oral argument here. In addition to the Hartford license, Faith Center also held broadcast licenses for three California stations. In 1978, the FCC designated Faith Center’s renewal application for its San Bernardino station for hearing because of allegations of fraud in Faith Center’s over-the-air solicitation for funds and failure to cooperate with an FCC investigation. In 1980, the Administrative Law Judge in the San Bernardino proceeding dismissed Faith Center’s renewal application because of Faith Center’s refusal to cooperate in the proceeding. The Commission affirmed that decision, as did this court. Faith Center, Inc., 82 F.C.C.2d 1 (1980), reconsid. denied, FCC 81-235 (1981), aff'd mem., Faith Center, Inc. v. FCC, 679 F.2d 261 (1982), cert. denied, 459 U.S. 1203, 103 S.Ct. 1188, 75 L.Ed.2d 435 (1983).
In December 1980, the FCC designated Faith Center’s renewal application for its WHCT-TV Channel 18 license in Hartford for noncomparative hearing. Faith Center had filed a renewal application in 1977, but it had been held in deferred status pending the outcome of the San Bernardino proceedings. After the San Bernardino proceedings were dismissed, the FCC reactivated the Hartford proceedings to consider issues left unresolved in the San Bernardi-no proceedings. The FCC’s order reactivating the Hartford proceedings acknowledged Faith Center’s interest in making a distress sale, which it could do while its application was in designated-for-hearing status, but not while in deferred status.
Faith Center filed with the FCC, in February 1981, a petition for special relief requesting permission to make a distress sale to Television Corp. of Hartford. The FCC granted the petition and the renewal application on condition that the proposed as-signee be “found fully qualified... and that the contemplated assignment is in fact consummated within 90 days following such determination.” Faith Center, Inc., 88 F.C.C.2d 788, 795 (1981). The FCC’s order further stated, “[s]hould either condition not occur, this proceeding will return to its status prior to the filing of the above described Petition for Special Relief.” Id. The proposed sale to Television Corp., however, was not consummated, and the application was withdrawn. On September 29, 1982, Faith Center again petitioned for special relief, seeking approval for a distress sale to Interstate Media Corp. The FCC again granted Faith Center’s petition and application — this time over the opposition of Shurberg and others — and again conditioned its approval upon the proposed as-signee’s being found fully qualified and upon the sale’s being consummated within ninety days of the qualification determination. If either of these conditions failed, the application was to revert to its prior designated-for-hearing status.
Shurberg, on December 1, 1983, filed an application for a construction permit to build a television station in Hartford, an application that would be mutually exclusive with the Channel 18 renewal application. The FCC rejected this filing on the ground that its regulations precluded it from accepting applications in competition with designated-for-hearing renewal applications until the resolution of the noncom-parative proceedings. See 47 C.F.R. § 73.3516(e) (1987); City of Angels Broadcasting v. FCC, 745 F.2d 656, 662-64 (D.C.Cir.1984).
In February and April of 1984, Faith Center and Interstate Media informed the FCC they could not consummate the proposed distress sale. Faith Center said, however, that it had “an excellent opportunity to consummate an assignment to other minority parties,” and it requested another chance to pursue a distress sale. Letter from Kenneth E. Robertson (Counsel for Faith Center) to Allan Glasser (FCC Mass Media Bureau), March 29,1984. Faith Center’s renewal application reverted to designated-for-hearing status, and the ALT scheduled a prehearing conference. On April 19, 1984, Shurberg in turn filed a petition for extraordinary relief requesting that the construction permit application he had attempted to file in December 1983 be designated for comparative hearing with Faith Center’s renewal application. Then on June 25,1984, before the FCC had acted on Shurberg’s petition, Faith Center petitioned the Commission for approval of a distress sale to Astroline. The FCC’s General Counsel solicited comments from all parties on the conflicting requests for relief. Astroline, the Department of Communications of the Capital Region Conference of Churches, and the FCC’s Mass Media Bureau submitted comments in favor of the distress sale; Shurberg recorded his opposition to the sale and urged his application be set for comparative hearing.
The Commission announced its decision on the petitions for relief in a Memorandum Opinion and Order released December 7, 1984. Faith Center, Inc., 99 F.C.C.2d 1164. It first addressed Shurberg’s argument that he was entitled to a comparative hearing against Faith Center’s renewal application because the FCC’s September 1983 order regarding the second proposed distress sale had granted Faith Center’s renewal application and thereby opened a “window” for the filing of competitive applications. See 47 C.F.R. §§ 73.3516(c), (e), 73.3539 (1987). The Commission also rejected Shurberg’s argument that New South Media Corp. v. FCC, 685 F.2d 708 (D.C.Cir.1982), required the Commission to grant its request for a comparative hearing. 99 F.C.C.2d at 1168-70. It did note, however, that if Faith Center failed to accomplish the distress sale on its third try, the FCC would require Faith Center to file a supplemental renewal application. This would operate to open a window for all competitive applications, including Shuberg’s. 99 F.C.C.2d at 1170.
Shurberg’s argument that the distress sale policy violated his constitutional right to equal protection was rejected by the Commission as “without merit.” In reaching that conclusion, the FCC relied both on its findings of “underrepresentation” of minorities in the broadcast industry and its view that increased minority ownership would increase programming diversity. Id. at 1170-71. The Commission also drew support from the 1982 amendments to the Communications Act in which Congress had approved the use of a lottery system that incorporated significant preferences for minority applicants as an alternative to the comparative hearing process. Id. at 1171-72. The conference report accompanying those amendments contained a statement that “the effects of past inequities stemming from racial and ethnic discrimination have resulted in a severe underrep-resentation of minorities in the media of mass communications, as it has adversely affected their participation in other sectors of the economy as well.” H.R.Rep. No. 765, 97th Cong., 2d Sess. 43 (1982) U.S. Code Cong. & Admin.News 1982 pp. 2237, 2281. Noting that the conference report also referred to the FCC’s 1978 policy statement, which expanded the distress sale policy, in establishing the need for preferential treatment of minorities, the Commission reasoned that “Congress... has recognized the need for and approved the implementation of the minority ownership policies set forth in the 1978 policy statement.” 99 F.C.C.2d at 1172.
Shurberg also failed in his attack based on Astroline’s qualifications as a bona fide minority to participate in a distress sale. The Astroline partnership had two general partners and one limited partner. Richard P. Ramirez, the general partner whose Hispanic surname was the predicate for Astro-line’s participation in the distress sale as a minority enterprise, held a twenty-one percent ownership interest and a seventy percent voting interest in the partnership. WHCT Management, Inc., the second general partner, held a nine percent ownership interest and a thirty percent voting interest. Astroline Co. — not to be confused with the Astroline partnership — owned the remaining seventy percent of the company. The Astroline partnership represented to the FCC that the general partners would control the partnership’s affairs and would vote in accordance with their respective partnership interests. Shurberg attacked the bona fides of this arrangement, pointing to records indicating Ramirez had contributed less than one percent of the station’s operating capital; Shurberg asserted it was patently incredible that such a small contributor would be given control of the enterprise. Shurberg alleged that Ramirez was included in the partnership only as a device to permit the real party in interest, Astroline Co., to participate in the distress sale. The Commission determined, however, the Astroline partnership satisfied the basic requirements of minority control. Id. at 1173.
Shurberg filed this petition for review. Thereafter, this court issued its decision in Steele v. FCC, 770 F.2d 1192 (D.C.Cir.1985), which involved the FCC’s policy of extending preferential treatment to female applicants in comparative hearings for FM radio station licenses. A majority of the panel held the preferences invalid as exceeding the FCC’s statutory authority. The court en banc subsequently vacated the panel opinion and set the case for rehearing. The FCC requested, however, that we remand the case without considering the merits to allow the FCC to reconsider the basis for those preferences, since in the meantime it had “concluded that race, sex or national origin per se should not be a basis for licensing determinations.” Accompanying its motion for remand, the Commission filed a lengthy brief on the merits — in the event we might deny its motion and reach the merits — apparently conceding that its race and gender preferences violated the Constitution. We remanded the case, in October 1986, to allow the FCC to reexamine the bases of its racial and gender preference policies.
In light of these developments, we asked the FCC to file a supplemental brief in this case clarifying its position on the constitutionality of the minority distress sale provision. Instead of filing a brief, the Commission responded that the “distress sale policy raises many of the same questions that are present in the Steele case,” and requested a remand to allow inquiry into the distress sale policy along with consideration of the comparative preference policies raised in Steele. We granted the motion and remanded the record in June 1987.
On December 22, 1987, the President signed into law a continuing resolution appropriating funds for the federal government for fiscal year 1988. Pub.L. No. 100-202, 101 Stat. 1329 (1987). Among its provisions was the following:
That none of the funds appropriated by this Act shall be used to repeal, to retroactively apply changes in, or to continue a reexamination of, the policies of the Federal Communications Commission with respect to comparative licensing, distress sales and tax certificates granted under 26 U.S.C. 1071, to expand minority and women ownership of broadcasting licenses, including those established in Statement of Policy on Minority Ownership of Broadcast Facilities, 68 F.C.C.2d 979 and 69 F.C.C.2d 1591, as amended 52 R.R.2d 1313 (1982) [sic] and Mid-Florida Television Corp., 60 F.C.C.2d 607 Rev.Bd. (1978) [sic ], which were effective prior to September 12, 1986, other than to close MM Docket No. 86-484 with a reinstatement of prior policy and a lifting of suspension of any sales, licenses, applications, or proceedings, which were suspended pending the conclusion of the inquiry....
In compliance with this provision, the FCC ended reconsideration of its comparative preference and distress sale policies, without issuing any conclusions, and announced it would reinstate such policies as they existed prior to September 12, 1986. See, e.g., Faith Center, Inc., 3 F.C.C.Rcd. 868 (1988).
Shurberg promptly moved the court for expedited resolution on the merits. Shur-berg noted that the case was fully briefed and argued more than two years ago, and that the termination of the Steele inquiry precluded any further evolution of the case. We granted the motion in part, agreeing to render our decision on the merits in the normal course of business. The FCC’s request for a remand to allow it to reexamine the distress sale policy, as well as its brief in Steele, suggested that it may now essentially agree with Shurberg’s constitutional arguments.
On the other hand, I also recognize that the FCC’s brief in Winter Park Communications v. FCC, Nos. 85-1755 and 85-1756, (D.C.Cir. argued Nov. 21, 1988) is supportive of the Commission’s minority preference policy as used in its comparative licensing procedures. The FCC asserted that approach is constitutional because it is based on the compelling government interest in the enhancement of diversity of programming — a contention which appears inconsistent with its brief in Steele. Still, in Winter Park, the FCC argued that its policy was narrowly tailored because “race is one of several factors to be considered rather than a decisive factor in and of itself.” Therefore, since race is only one consideration among many in the comparative license practice challenged in Winter Park, it is distinguishable from the distress sale policy in Shurberg. See infra at 913, 924-25.
The continuing resolution apparently has prevented the formal expression of any further views by the FCC in this case, and the distress sale policy, reinstated by the FCC, is still operative and has an effect on Shur-berg’s interests. We therefore must consider his challenge, looking to the various briefs, which paradoxically include both the FCC’s defense and repudiation of its policy.
II.
Turning first to Shurberg’s nonconstitu-tional challenge to the Commission’s action, the major issue presented is the propriety of the Commission’s decision that Shurberg was not entitled to a comparative hearing. Giving appropriate deference to the FCC’s construction and application of its rules, see San Luis Obispo Mothers for Peace v. NRC, 789 F.2d 26, 30 (D.C.Cir.) (en banc), cert. denied, 479 U.S. 923, 107 S.Ct. 330, 93 L.Ed.2d 302 (1986), I discern no basis for overturning the FCC’s determination on this ground.
The Communications Act of 1934, as amended, provides that licenses in hearing status shall remain in effect pending final disposition of the hearing. See 47 U.S.C. § 307(c). The FCC’s regulations, moreover, provide that the Commission will not accept competitive applications after a certain time, in order to allow the Commission to designate renewal applications for hearing and to conduct such hearings in an orderly fashion. See 47 C.F.R. § 73.3516(e) (1987); City of Angels Broadcasting v. FCC, 745 F.2d 656, 662-64 (D.C.Cir.1984). In my view, the Commission properly applied the statute and its regulations when it refused to accept Shurberg’s competitive application while a hearing on Faith Center’s qualifications was pending. Shurberg argues that the posture of Faith Center’s renewal application was really more akin to deferred status than to designated-for-hearing status and under the rule of New South Media, 685 F.2d 708, the substance and not the form of a license’s status is controlling. As I have mentioned, designated-for-hearing applications are protected from competitive filings, but deferred applications are not. Deferred applicants are required to submit supplemental renewal applications at every interval during the time of their deferred status when a regular renewal application would be due. And those supplemental filings operate to open a window for competitive applications.
In New South Media, the FCC had granted several renewal applications conditioned upon the outcome of a comparative renewal proceeding involving another of the licensee’s licenses. Later the FCC denied renewal of that other license and decided to hold noncomparative hearings to determine how to treat the conditionally renewed licenses. Instead of waiting for the remaining licenses to expire and evaluating each at that time against competing applications, the Commission decided to reopen the earlier conditional renewals by designating those applications for hearing. Id. at 710. As the hearings were to begin after completion of all court appeals involving the unrenewed license, the FCC could fix no specific date for the hearings. This court overturned the FCC’s decision to hold the applications in designated-for-hearing status, shielded from competition for an interval longer than the license period itself. We found the situation analogous to that in Carlisle Broadcasting Associates, 59 F.C.C.2d 885 (1976), in which the FCC ruled that when a renewal application had remained in deferred status for three years (which was the license term), the Commission would entertain competing applications. See New South Media, 685 F.2d at 716. Between the time the FCC had designated the licenses for hearing and the completion of the judicial appeals involving the nonrenewed license, “all but one of the thirteen license renewals [had] run well beyond three years, with no renewal hearing ongoing at the Commission, no evidence-taking underway, no proceeding in midstream or even launched.” Id. We said: “In fact then, if not in form, the extended ‘conditional renewals’ in this case are like the renewal deferred for three years in Carlisle.” Id.
Shurberg argues that under New South Media the mere designation of a hearing is not sufficient to preclude competing applications, that there must actually be an ongoing renewal proceeding which would otherwise be hampered. Faith Center’s attempts to consummate a distress sale, it is asserted, cannot themselves be regarded as “administrative activity” sufficient to justify the Commission’s treatment of the Faith Center renewal proceeding as ongoing.
I disagree with Shurberg’s view of New South Media’s bearing on this case. New South Media treated the absence of ongoing administrative proceedings as a factor militating against keeping the renewal applications in protected status, but did not rule out the possibility that other interests might warrant continued protection against competitive applications. That competitive applications might disrupt ongoing proceedings is only one facet of a larger concern for administration of the FCC’s mandate. For the distress sale policy to work, the FCC must have the discretion to hold a renewal application in designated-for-hearing status long enough to permit the licensee to explore the possibility of such a sale. In this case, the FCC exercised its discretion to hold the application in designated-for-hearing status not once, but three times. All in all, the application was in deferred status for over three years and then in designated-for-hearing status for four years. Admittedly, that is a long time for competitors to be precluded from filing their applications, but I do not see here the total absence of administrative activity that was apparent in New South Media. The Commission’s efforts to allow Faith Center to avail itself of an FCC policy were not so unreasonable as to require reversal.
As Shurberg acknowledges, New South Media recognized that not all limitations on the Ashbacker policy of favoring competition are impermissible, especially insofar as they advance the FCC’s orderly administration of its work. See 685 F.2d at 716. If the distress sale policy were constitutional, it would present sufficiently weighty grounds for a limited exception to the Ash-backer policy. Because an agency’s balancing of competing policy considerations is entitled to considerable deference from a court, Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 843-44, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984), I would be obliged to respect the Commission’s decision to implement the distress sale policy despite attendant delays. Accordingly, I do not quarrel with the Commission on this basis.
III.
Shurberg challenges the distress sale policy as ultra vires on both statutory and constitutional grounds. We are, of course, normally obliged to consider the statutory question first — whether the policy exceeds congressional authorization — and I am mindful of the maxim that we construe statutes narrowly to avoid constitutional infirmities. Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 297, 76 L.Ed. 598 (1932). Still, the Commission operates under a broad statutory mandate to consider the “public interest, convenience and necessity.” 47 U.S.C. § 309(a) (1982). Congress has not disapproved the use of racial preferences as a means of carrying out the Commission’s view of the “public interest,” and has, in fact, authorized their use in certain licensing decisions. See 1982 Amendments to the Communication Act of 1934, 47 U.S.C. § 309(i)(3)(A). I think, therefore, that the FCC did not exceed its statutory authority when it adopted the distress sale policy.
A.
The constitutional issue is whether or not the distress sale policy, by creating a preference for minority purchasers, violates the equal protection component of the Fifth Amendment. See Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954). The Supreme Court has struggled with the constitutionality of government-sponsored minority preferences four times in the last ten years, in Regents of the University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978); Fullilove v. Klutznick, 448 U.S. 448, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980); Wygant v. Jackson Board of Education, 476 U.S. 267, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986); and City of Richmond v. J.A. Croson Co., — U.S. —, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989). Those cases have produced twenty-three opinions (some of which do not reach the constitutional issue). In their aftermath, I would be less than candid not to concede that discerning and applying constitutional principles in this area is difficult; in none of the first three cases does a majority of the Court join any one opinion. Under these circumstances, a lower federal court must do its level best to extract the holding that commanded a majority in each case to arrive at the governing principles and limitations. See Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 993, 51 L.Ed.2d 260 (1977). In Croson, a majority of the Court did agree on the requirements for the constitutionality of a state or local affirmative action program. That opinion provides more guidance than the earlier cases, but the contours of its reasoning must still be fleshed out in future cases. I begin by briefly reviewing the four cases.
Bakke struck down a university admissions policy that set aside a fixed percentage of each class,for minority candidates. In the majority, only Justice Powell’s opinion reached the constitutional issue, and in discussing the possible justifications for the admissions program, he firmly rejected the notion that a racial classification could be based on a mere desire to assure that the student body contained specified percentages of particular racial and ethnic groups. 438 U.S. at 307, 98 S.Ct. at 2757. He also rejected the use of a preference as a remedy for past discrimination, because the university had not made any findings of discrimination, and indeed was not competent to make such findings. Id. at 307-09, 98 S.Ct. at 2757-58. Justice Powell’s opinion, however, did recognize that an academic institution has a compelling interest in promoting a diverse educational environment. Id. at 311-14, 98 S.Ct. at 2759-60. Bringing together students from diverse ethnic and cultural backgrounds allows them “to learn from their differences and to stimulate one another to reexamine even their most deeply held assumptions about themselves and their world.” Id. at 313 n. 48, 98 S.Ct. at 2760 n. 48 (citation omitted). Racial diversity is a legitimate aspect of a diverse student body, but it is only one part of the “genuine diversity” that is a compelling state interest. Id. at 315, 98 S.Ct. at 2761. Thus, the university could have used race as one factor in a multi-factor admissions decision. But simply employing a racial set-aside was inconsistent with the attainment of “genuine diversity,” an interest that would necessarily require consideration of factors other than race. See id. at 315-18, 98 S.Ct. at 2761-62.
Fullilove is the only case in which the Court has sustained the constitutionality of a governmentally-imposed minority preference not occasioned by a court’s remedial action. The Court considered a facial challenge to the constitutionality of a set-aside provision in an Act of Congress authorizing funding for public works construction. In his plurality opinion, Chief Justice Burger stressed Congress’ special constitutional authority under the Fourteenth Amendment to enact measures to remedy past discrimination. See 448 U.S. at 472-78, 100 S.Ct. at 2771-74. Justice Powell’s concurrence also stressed that Congress had made the finding of past discrimination and that Congress had selected the particular remedy. See id. at 503-06, 100 S.Ct. at 2787-89 (Powell, J., concurring). The evidence before Congress demonstrated specific practices in the public procurement process that resulted in discrimination or an exacerbation of the effects of past discrimination. See id. at 477-78, 100 S.Ct. at 2774 (plurality); id. at 506, 100 S.Ct. at 2789 (Powell, J., concurring). Of key importance, it seems to me, was the Court’s determination that the set-aside was narrowly tailored to its remedial purpose. The Court prominently discussed features of the legislative history, id. at 463-67, 100 S.Ct. at 2767-69, and of the implemented program, id. at 486-88, 100 S.Ct. at 2779-80. The program was designed by Congress to assure that preference would be awarded only to disadvantaged minority
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_7_5
|
B
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers).
Harvey D. CHRISTIAN, Petitioner-Appellant, v. Dan V. McKASKLE, Acting Director, Texas Department of Corrections, Respondent-Appellee.
No. 83-1086.
United States Court of Appeals, Fifth Circuit.
May 14, 1984.
Sylvia Mandel, Staff Counsel for Inmates, TDC, Laurel D. Owens, Huntsville, Tex., for petitioner-appellant.
Charles A. Palmer, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.
Before POLITZ, RANDALL and JOLLY, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Harvey Don Christian asks that we set aside his life sentence imposed by a Texas court upon his conviction in 1976 for possession of a controlled substance. Christian argues that he is entitled to a writ of habeas corpus on the following grounds: first, the search warrant pursuant to which the controlled substance was discovered was not based upon probable cause; second, he was denied effective assistance of counsel during his state court trial. Finding each claimed error to be without merit, we affirm the district court’s dismissal of Christian’s habeas corpus petition.
I.
On April 23, 1976, Christian was stopped for speeding by two Waco, Texas, police officers. After one of the police officers spotted what appeared to be a rifle or shotgun butt on the car’s floorboard, they decided to subject Christian to a pat-down search. During the pat-down, a matchbox was discovered. When the matchbox, which contained a white powder, was opened, Christian fled. He was captured by the officers and arrested. His car was impounded.
The next day, a Waco police officer applied for a warrant to search Christian’s car for methamphetamine. The officer based the application on a tip received from a confidential informant. The police officer stated in the affidavit filed in support of the warrant that probable cause for his belief that methamphetamine was concealed in the car was based upon the following facts:
On this day an informant, whose name is withheld for security reasons, told affi-ant that said suspected party is now keeping and possessing what the affiant believed to be methamphetamine in said suspected vehicle and stated to affiant as an underlying circumstance supporting that conclusion that with [sic] the past 24 hours, such informant saw controlled substance. Affiant believes that this information given them is reliable and that such informant is credible for the following reason: such informant, on two separate occasions during the past year, gave affiant accurate reports about law violations.
Based upon the affidavit, a Justice of the Peace of McLennan County, Texas, issued the search warrant. The search of the automobile produced one package of marijuana and two bags of methamphetamine. Christian was indicted for possession of a controlled substance, i.e., methamphetamine, and two previous felony convictions were alleged in the indictment for enhancement purposes.
At his trial, Christian’s counsel challenged the pat-down search that disclosed the matchbox and contended that the subsequent discovery of the methamphetamine was the fruit of the pat-down. The trial court refused to suppress either the matchbox or the methamphetamine.
Christian was convicted by a jury. At the punishment phase of his trial, the court found that Christian had been convicted of felonies on two previous occasions and assessed his punishment at imprisonment for life.
On direct appeal, the Texas Court of Criminal Appeals affirmed Christian’s conviction in an unpublished opinion. On rehearing en banc, the court reaffirmed that conviction. Christian v. State, 592 S.W.2d 625 (Tex.Cr.App.1980) (en banc). In its opinion, the court ruled that there was no probable cause for the pat-down search that revealed the matchbox. It held, however, that the methamphetamine taken from Christian’s car was not discovered by exploitation of the pat-down search. Id. at 631.
Christian subsequently filed a state habe-as corpus petition challenging the sufficiency of the affidavit which was used to obtain the search warrant and the effectiveness of his trial counsel. Christian based his claim of ineffectiveness of trial counsel on his counsel’s failure to challenge the sufficiency of the affidavit. The state courts rejected these claims.
Christian then filed his application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He raised the same claims. The district court, finding that Christian had been afforded an opportunity for full and fair litigation of his fourth amendment claim as contemplated by Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), rejected his challenge concerning the sufficiency of the affidavit. Reasoning that the sole basis for the alleged ineffectiveness was a frivolous, fourth-amendment claim, the district court also rejected the claim of ineffective assistance of counsel. Christian appeals.
II.
In Stone v. Powell, the Supreme Court held that “where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search and seizure was introduced at his trial.” 428 U.S. at 494, 96 S.Ct. at 3052. In the present case, Christian contends that the bar of Stone v. Powell should not apply because he was not allowed a full and fair opportunity to litigate his fourth amendment claim concerning the sufficiency of the affidavit. He argues that he was denied such an opportunity because the state habeas corpus erroneously held that his fourth amendment challenge to the affidavit had previously been adjudicated on direct appeal.
In Williams v. Brown, 609 F.2d 216, 220 (5th Cir.1980), we held that the bar of Stone v. Powell still applies despite the fact that the consideration of the fourth amendment claim by a state habeas court had been prevented by the court’s error in holding that the claim had already been presented. This court stated:
[I]n the absence of allegations that the processes provided by a state to fully and fairly litigate fourth amendment claims are routinely or systematically applied in such a way as to prevent the actual litigation of fourth amendment claims on their merits, the rationale of Caver dictates that Swicegood’s application of Stone despite a mistake in adjudicating the merits must apply with equal force to procedural mistakes that thwart the presentation of fourth amendment claims. Accordingly, we find that the district court correctly dismissed petitioner’s fourth amendment claims as being barred by Stone v. Powell.
Id. at 220. Christian’s claim concerning the affidavit’s sufficiency is foreclosed by Williams.
III.
Christian contends that his counsel was ineffective because he failed to file a motion to suppress the methamphetamine seized pursuant to the search warrant.
Though unresolved in our circuit, recent decisions indicate doubt as to whether Christian’s sixth amendment claim may be considered. In Li Puma v. Commissioner, Department of Corrections, State of New York, 560 F.2d 84 (2d Cir.1977), the Second Circuit applied Stone v. Powell to bar consideration of a habeas petitioner’s contention that his counsel was ineffective because of his failure to file a motion to suppress. The court stated that “the fact that petitioner’s claim is ostensibly grounded on the sixth, rather than the fourth, amendment does not negate Stone’s applicability, because at the heart of this case lies an alleged fourth amendment violation.” Id. at 93 n. 6. On the other hand, in Sallie v. North Carolina, 587 F.2d 636, 640-41 (4th Cir.1978), the Fourth Circuit did not read Stone v. Powell to prevent habeas corpus relief in the same circumstances. Because of the manner of disposition of the case before us today, it is unnecessary for us to decide with which circuit we agree.
Here, the district court failed to consider the applicability of Stone v. Powell to Christian’s sixth amendment claim. It held that there was no sixth amendment violation because a motion to suppress the methamphetamine would have been unsuccessful. Because we agree, we find it unnecessary to consider whether Stone v. Powell, in proper circumstances, would bar habeas corpus relief on a sixth amendment claim which was based on a fourth amendment violation. To prevail on his claim that he was denied his sixth amendment right to effective counsel, Christian has the burden of showing that his coúnsel’s efforts were inadequate and that the counsel’s ineffectiveness resulted in an actual and substantial disadvantage to the course of his defense. Baldwin v. Maggio, 704 F.2d 1325 (5th Cir.1983). Here, Christian would not have been prejudiced by his counsel’s failure to file a motion to suppress if such a motion were to be denied.
In an attempt to meet his burden of showing prejudice, Christian contends that the affidavit used in procuring the search warrant was insufficient to establish probable cause. Relying on the two-prong Aguilar-Spinelli test for determining the sufficiency of an affidavit based upon information supplied by a confidential informant, Christian argues that the affidavit failed to establish probable cause because it contained (1) insufficient assertions of the informant’s reliability and (2) insufficient assertions regarding the basis of the informant’s knowledge that methamphetamine could be found in the impounded car.
The affidavit, as noted supra, stated that “informant, on two separate occasions during the past year, gave affiant accurate reports about law violations.” In United States v. Hall, 545 F.2d 1008 (5th Cir.1977), this court stated that its decisions made it clear that a factual basis for the credibility of an informant can be supplied by an “explicit claim of past reliability.” The language of the affidavit in question revealed that the informant had proven to be a reliable source of accurate information about illegal activity. Such a statement concerning the reliability of the informant was sufficient to meet the credibility prong of the Aguilar-Spinelli test. United States v. Garner, 581 F.2d 481 (5th Cir. 1978); United States v. Hall, supra; United States v. Mendoza, 433 F.2d 891 (5th Cir.1970), cert. denied, 401 U.S. 943, 91 S.Ct. 953, 28 L.Ed.2d 225 (1971).
The assertions of the affidavit also sufficiently describe the underlying factual basis for the informant’s conclusion that methamphetamine was in Christian’s car. The affidavit must be read in a realistic and common-sense manner and with a preference toward the warrant process. United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965); United States v. Maestas, 546 F.2d 1177, 1180 (5th Cir.1977). When this is done and hypertechnical consideration of the affidavit is avoided, the affidavit indicates that the informant had personally observed a specific drug in Christian’s car within the past twenty-four hours. A failure of the affidavit to reveal how it was known that the substance was methamphetamine, does not prevent a conclusion that the affidavit contained sufficient assertions regarding the informer’s basis of knowledge. See United States v. Cates, 663 F.2d 947, 948 (9th Cir.1981); United States v. House, 604 F.2d 1135, 1142 (8th Cir.1979), cert. denied, 445 U.S. 931, 100 S.Ct. 1320, 63 L.Ed.2d 764 (1980); United States v. Shipstead, 433 F.2d 368, 372 (9th Cir.1970).
Because the affidavit satisfied the Aguillar-Spinelli test for determining the sufficiency of an affidavit based on an informer’s tip, a motion to suppress by Christian’s counsel would have failed. As a result, Christian has not been prejudiced by his counsel’s failure to file such a motion. Therefore, Christian’s sixth amendment claim of ineffective assistance of counsel is without merit.
For the foregoing reasons, the district court’s dismissal of Christian’s habeas corpus petition is affirmed.
AFFIRMED.
. In Caver v. Alabama, 577 F.2d 1188 (5th Cir. 1978), this court observed that it is the existence of state processes allowing an opportunity for full and fair litigation of fourth amendment claims, rather than a defendant’s use of those processes, that serves the policies underlying the exclusionary rule and bars federal habeas corpus consideration of claims under Stone v. Powell. Id. at 1192-93. In Swicegood v. Alabama, 577 F.2d 1322, 1324-25 (5th Cir.1978), this court held that the bar of Stone v. Powell still applies despite a state court error in deciding the merits of a defendant’s fourth amendment claims.
. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).
. In Illinois v. Gates, — U.S. -, 103 S.Ct. 2317, 76 L.Ed.2d 527, the Supreme Court articulated a new, more flexible standard for evaluating the sufficiency of an affidavit based on an informer’s tip. This court has recently held that Gates should be retroactively applied. United States v. Mendoza, 727 F.2d 448 (5th Cir.1984) (on petition for rehearing). To petitioners tried when the Aguilar-Spinelli test was applicable, retroactive application of Gates would mean that if the writ were granted because, using the Aguilar-Spinelli test, his counsel’s failure to file a motion to suppress was ineffective assistance, the Gates analysis would apply at the retrial to determine if the evidence in question was admissible. Therefore, the application of Aguilar-Spinelli to determine whether counsel's failure to file a motion to suppress prejudiced a petitioner may be an exercise in futility. We are, fortunately, able to leave this question for resolution by others.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant?
A. not ascertained
B. poor + wards of state
C. presumed poor
D. presumed wealthy
E. clear indication of wealth in opinion
F. other - above poverty line but not clearly wealthy
Answer:
|
sc_respondent
|
182
|
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.
John HOWELL, Petitioner
v.
Sandra HOWELL.
No. 15-1031.
Supreme Court of the United States
Argued March 20, 2017.
Decided May 15, 2017.
Adam G. Unikowsky, Washington, DC, for Petitioner.
Charles W. Wirken, Phoenix, AZ, for Respondent.
Ilana H. Eisenstein, for the United States as amicus curiae, by special leave of the Court, supporting the respondent.
Keith Berkshire, Berkshire Law Office, Phoenix, AZ, Adam G. Unikowsky, Emma P. Simson, Jenner & Block LLP, Washington, DC, for Petitioner.
Charles W. Wirken, Gust Rosenfeld, PLC, Phoenix, AZ, for Respondent.
Justice BREYER delivered the opinion of the Court.
A federal statute provides that a State may treat as community property, and divide at divorce, a military veteran's retirement pay. See 10 U.S.C. § 1408(c)(1). The statute, however, exempts from this grant of permission any amount that the Government deducts "as a result of a waiver" that the veteran must make "in order to receive" disability benefits. § 1408(a)(4)(B). We have held that a State cannot treat as community property, and divide at divorce, this portion (the waived portion) of the veteran's retirement pay. See Mansell v. Mansell, 490 U.S. 581, 594-595, 109 S.Ct. 2023, 104 L.Ed.2d 675 (1989).
In this case a State treated as community property and awarded to a veteran's spouse upon divorce a portion of the veteran's total retirement pay. Long after the divorce, the veteran waived a share of the retirement pay in order to receive nontaxable disability benefits from the Federal Government instead. Can the State subsequently increase, pro rata, the amount the divorced spouse receives each month from the veteran's retirement pay in order to indemnify the divorced spouse for the loss caused by the veteran's waiver? The question is complicated, but the answer is not. Our cases and the statute make clear that the answer to the indemnification question is "no."
I
A
The Federal Government has long provided retirement pay to those veterans who have retired from the Armed Forces after serving, e.g., 20 years or more. It also provides disabled members of the Armed Forces with disability benefits. In order to prevent double counting, however, federal law typically insists that, to receive disability benefits, a retired veteran must give up an equivalent amount of retirement pay. And, since retirement pay is taxable while disability benefits are not, the veteran often elects to waive retirement pay in order to receive disability benefits. See 10 U.S.C. § 3911 et seq. (Army retirement benefits); § 6321 et seq. (Navy and Marines retirement benefits); § 8911 et seq. (Air Force retirement benefits); 38 U.S.C. § 5305 (requiring a waiver to receive disability benefits); § 5301(a)(1) (exempting disability benefits from taxation). See generally McCarty v. McCarty, 453 U.S. 210, 211-215, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981) (describing the military's nondisability retirement system).
In 1981 we considered federal military retirement pay alone, i.e., not in the context of pay waived to receive disability benefits. The question was whether a State could consider any of a veteran's retirement pay to be a form of community property, divisible at divorce. The Court concluded that the States could not. See McCarty, supra . We noted that the relevant legislative history referred to military retirement pay as a " 'personal entitlement.' " Id., at 224, 101 S.Ct. 2728. We added that other language in the statute as well as its history made "clear that Congress intended that military retired pay 'actually reach the beneficiary.' " Id., at 228, 101 S.Ct. 2728. We found a "conflict between the terms of the federal retirement statutes and the [state-conferred] community property right." Id., at 232, 101 S.Ct. 2728. And we concluded that the division of military retirement pay by the States threatened to harm clear and substantial federal interests. Hence federal law pre-empted the state law. Id., at 235, 101 S.Ct. 2728.
In 1982 Congress responded by passing the Uniformed Services Former Spouses' Protection Act, 10 U.S.C. § 1408. Congress wrote that a State may treat veterans' "disposable retired pay" as divisible property, i.e., community property divisible upon divorce. § 1408(c)(1). But the new Act expressly excluded from its definition of "disposable retired pay" amounts deducted from that pay "as a result of a waiver ... required by law in order to receive" disability benefits. § 1408(a)(4)(B). (A recent amendment to the statute renumbered the waiver provision. It now appears at § 1408(a)(4)(A)(ii). See Pub.L. 114-328, § 641(a), 130 Stat. 2164. )
In 1989 we interpreted the new federal language in Mansell, 490 U.S. 581, 109 S.Ct. 2023, 104 L.Ed.2d 675. Major Gerald E. Mansell and his wife had divorced in California. At the time of the divorce, they entered into a "property settlement which provided, in part, that Major Mansell would pay Mrs. Mansell 50 percent of his total military retirement pay, including that portion of retirement pay waived so that Major Mansell could receive disability benefits." Id., at 586, 109 S.Ct. 2023. The divorce decree incorporated this settlement and permitted the division. Major Mansell later moved to modify the decree so that it would omit the portion of the retirement pay that he had waived. The California courts refused to do so. But this Court reversed. It held that federal law forbade California from treating the waived portion as community property divisible at divorce.
Justice Thurgood Marshall, writing for the Court, pointed out that federal law, as construed in McCarty, "completely pre-empted the application of state community property law to military retirement pay."
490 U.S., at 588, 109 S.Ct. 2023. He noted that Congress could "overcome" this pre-emption "by enacting an affirmative grant of authority giving the States the power to treat military retirement pay as community property." Ibid. He recognized that Congress, with its new Act, had done that, but only to a limited extent. The Act provided a "precise and limited" grant of the power to divide federal military retirement pay. Ibid. It did not "gran[t]" the States "the authority to treat total retired pay as community property." Id., at 589, 109 S.Ct. 2023. Rather, Congress excluded from its grant of authority the disability-related waived portion of military retirement pay. Hence, in respect to the waived portion of retirement pay, McCarty, with its rule of federal pre-emption, still applies. Ibid.
B
John Howell, the petitioner, and Sandra Howell, the respondent, were divorced in 1991, while John was serving in the Air Force. Anticipating John's eventual retirement, the divorce decree treated John's future retirement pay as community property. It awarded Sandra "as her sole and separate property FIFTY PERCENT (50%) of [John's] military retirement when it begins." App. to Pet. for Cert. 41a. It also ordered John to pay child support of $585 per month and spousal maintenance of $150 per month until the time of John's retirement.
In 1992 John retired from the Air Force and began to receive military retirement pay, half of which went to Sandra. About 13 years later the Department of Veterans Affairs found that John was 20% disabled due to a service-related shoulder injury. John elected to receive disability benefits and consequently had to waive about $250 per month of the roughly $1,500 of military retirement pay he shared with Sandra. Doing so reduced the amount of retirement pay that he and Sandra received by about $125 per month each. In re Marriage of Howell, 238 Ariz. 407, 408, 361 P.3d 936, 937 (2015)
Sandra then asked the Arizona family court to enforce the original decree, in effect restoring the value of her share of John's total retirement pay. The court held that the original divorce decree had given Sandra a "vested" interest in the prewaiver amount of that pay, and ordered John to ensure that Sandra "receive her full 50% of the military retirement without regard for the disability." App. to Pet. for Cert. 28a.
The Arizona Supreme Court affirmed the family court's decision. See 238 Ariz. 407, 361 P.3d 936. It asked whether the family court could "order John to indemnify Sandra for the reduction" of her share of John's military retirement pay. Id., at 409, 361 P.3d, at 938. It wrote that the family court order did not "divide" John's waived military retirement pay, the order did not require John "to rescind" his waiver, nor did the order "direct him to pay any amount to Sandra from his disability pay." Id., at 410, 361 P.3d, at 939. Rather the family court simply ordered John to "reimburse" Sandra for "reducing ... her share" of military retirement pay. Ibid . The high court concluded that because John had made his waiver after, rather than before, the family court divided his military retirement pay, our decision in Mansell did not control the case, and thus federal law did not preempt the family court's reimbursement order. 238 Ariz., at 410, 361 P.3d, at 939.
Because different state courts have come to different conclusions on the matter, we granted John Howell's petition for certiorari. Compare Glover v. Ranney, 314 P.3d 535, 539-540 (Alaska 2013) ;
Krapf v. Krapf, 439 Mass. 97, 106-107, 786 N.E.2d 318, 325-326 (2003) ; and Johnson v. Johnson, 37 S.W.3d 892, 897-898 (Tenn.2001), with Mallard v. Burkart, 95 So.3d 1264, 1269-1272 (Miss.2012) ; and Youngbluth v. Youngbluth, 2010 VT 40, 188 Vt. 53, 62-65, 6 A.3d 677, 682-685.
II
This Court's decision in Mansell determines the outcome here. In Mansell, the Court held that federal law completely pre-empts the States from treating waived military retirement pay as divisible community property. 490 U.S., at 594-595, 109 S.Ct. 2023. Yet that which federal law pre-empts is just what the Arizona family court did here. App. to Pet. for Cert. 28a, 35a (finding that the divorce decree gave Sandra a "vested" interest in John's retirement pay and ordering that Sandra receive her share "without regard for the disability").
The Arizona Supreme Court, the respondent, and the Solicitor General try to distinguish Mansell . But we do not find their efforts convincing. The Arizona Supreme Court, like several other state courts, emphasized the fact that the veteran's waiver in Mansell took place before the divorce proceeding; the waiver here took place several years after the divorce proceedings. See 238 Ariz., at 410, 361 P.3d, at 939 ; see also Abernethy v. Fishkin, 699 So.2d 235, 240 (Fla.1997) (noting that a veteran had not yet waived retirement pay at the time of the divorce and permitting indemnification in light of the parties' "intent to maintain level monthly payments pursuant to their property settlement agreement"). Hence here, as the Solicitor General emphasizes, the nonmilitary spouse and the family court were likely to have assumed that a full share of the veteran's retirement pay would remain available after the assets were distributed.
Nonetheless, the temporal difference highlights only that John's military retirement pay at the time it came to Sandra was subject to later reduction (should John exercise a waiver to receive disability benefits to which he is entitled). The state court did not extinguish (and most likely would not have had the legal power to extinguish) that future contingency. The existence of that contingency meant that the value of Sandra's share of military retirement pay was possibly worth less-perhaps less than Sandra and others thought-at the time of the divorce. So too is an ownership interest in property (say, A's property interest in Blackacre) worth less if it is subject to defeasance or termination upon the occurrence of a later event (say, B's death). See generally Restatement (Third) of Property § 24.3 (2010) (describing property interests that are defeasible); id., § 25.3, and Comment a (describing contingent future interests subject to divestment).
We see nothing in this circumstance that makes the reimbursement award to Sandra any the less an award of the portion of military retirement pay that John waived in order to obtain disability benefits. And that is the portion that Congress omitted from the Act's definition of "disposable retired pay," namely, the portion that federal law prohibits state courts from awarding to a divorced veteran's former spouse. Mansell, supra, at 589, 109 S.Ct. 2023. That the Arizona courts referred to Sandra's interest in the waivable portion as having "vested" does not help. State courts cannot "vest" that which (under governing federal law) they lack the authority to give. Cf. 38 U.S.C. § 5301(a)(1) (providing that disability benefits are generally nonassignable). Accordingly, while the divorce decree might be said to "vest" Sandra with an immediate right to half of John's military retirement pay, that interest is, at most, contingent, depending for its amount on a subsequent condition: John's possible waiver of that pay.
Neither can the State avoid Mansell by describing the family court order as an order requiring John to "reimburse" or to "indemnify" Sandra, rather than an order that divides property. The difference is semantic and nothing more. The principal reason the state courts have given for ordering reimbursement or indemnification is that they wish to restore the amount previously awarded as community property, i.e., to restore that portion of retirement pay lost due to the postdivorce waiver. And we note that here, the amount of indemnification mirrors the waived retirement pay, dollar for dollar. Regardless of their form, such reimbursement and indemnification orders displace the federal rule and stand as an obstacle to the accomplishment and execution of the purposes and objectives of Congress. All such orders are thus pre-empted.
The basic reasons McCarty gave for believing that Congress intended to exempt military retirement pay from state community property laws apply a fortiori to disability pay. See 453 U.S., at 232-235, 101 S.Ct. 2728 (describing the federal interests in attracting and retaining military personnel). And those reasons apply with equal force to a veteran's postdivorce waiver to receive disability benefits to which he or she has become entitled.
We recognize, as we recognized in Mansell, the hardship that congressional pre-emption can sometimes work on divorcing spouses. See 490 U.S., at 594, 109 S.Ct. 2023. But we note that a family court, when it first determines the value of a family's assets, remains free to take account of the contingency that some military retirement pay might be waived, or, as the petitioner himself recognizes, take account of reductions in value when it calculates or recalculates the need for spousal support. See Rose v. Rose, 481 U.S. 619, 630-634, and n. 6, 107 S.Ct. 2029, 95 L.Ed.2d 599 (1987) ; 10 U.S.C. § 1408(e)(6).
We need not and do not decide these matters, for here the state courts made clear that the original divorce decree divided the whole of John's military retirement pay, and their decisions rested entirely upon the need to restore Sandra's lost portion. Consequently, the determination of the Supreme Court of Arizona must be reversed. See Mansell, supra, at 594, 109 S.Ct. 2023.
III
The judgment of the Supreme Court of Arizona is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
Justice GORSUCH took no part in the consideration or decision of this case.
Justice THOMAS, concurring in part and concurring in the judgment.
I join all of the opinion of the Court except its brief discussion of "purposes and objectives" pre-emption. Ante, at 1406. As I have previously explained, "[t]hat framework is an illegitimate basis for finding the pre-emption of state law." Hillman v. Maretta, 569 U.S. ----, ----, 133 S.Ct. 1943, 1955, 186 L.Ed.2d 43 (2013) (THOMAS, J., concurring in judgment); see also Wyeth v. Levine, 555 U.S. 555, 583, 129 S.Ct. 1187, 173 L.Ed.2d 51 (2009) (same). In any event, that framework is not necessary to support the Court's judgment in this case.
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_genapel1
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G
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
Samuel J. FALCONE v. COLUMBIA PICTURES INDUSTRIES, INC. Appeal of Samuel J. FALCONE.
No. 86-5209.
United States Court of Appeals, Third Circuit.
Argued Sept. 19, 1986.
Decided Nov. 13, 1986.
David R. Simon (argued), Andrew Musca-to, Simon & Allen, Newark, N.J., for appellant.
Ronald M. Green, Robert Jauvtis (argued), Patrick Westerkamp, Epstein Becker Borsody & Green, P.C., New York City, for appellee.
Before SEITZ, SLOVITER, and RO-SENN, Circuit Judges.
OPINION OF THE COURT
ROSENN, Circuit Judge.
This appeal once again calls upon us to decide whether and under what circumstances an employer’s right to dismiss an “at will” employee is limited by a requirement that the employer follow certain procedures before terminating employment. The district court granted the employer’s motion for summary judgment, orally holding that because the employer made no oral or written representations at the time of hiring limiting its right to dismiss, plaintiff’s claim failed to set forth a cause of action. We affirm.
I.
Samuel J. Falcone was first hired by Columbia Pictures Industries, Inc. (Columbia) in March 1976 to work at its Music Publications Division in Hialeah, Florida. At that division Falcone was the business manager and controller, and as such was responsible for not only the financial affairs of the division, but for handling personnel matters as well. In this latter capacity Falcone reported to both the Corporate Personnel Director of Columbia and the President of the division.
In opposition to Columbia’s motion for summary judgment, Falcone asserted that at the “inception” of his employment in March 1976, he was advised orally that it was Columbia’s policy and practice before terminating an employee to first give an oral warning to the employee with respect to the problem requiring improvement, and to then give a second warning in writing with a copy to the personnel file of the individual, and finally to terminate the employee if necessary after allowing thirty days for improvement. Falcone conceded before the district court, however, and again before this court, that he was not so advised on the day he was hired but “within the first week of his employment.” Fal-cone further averred that he and other managers, department heads, and supervisors at Columbia administered this “warnings” policy in connection with employees whom they supervised. Falcone did not know, however, of any written policy at the time he was hired.
In September 1981 Columbia promoted Falcone to the position of Controller of its International Pictures division headquartered in New York City. Here he reported to Peter C. Kells, the Senior Vice President of Finance and Administration at Columbia. In connection with this appointment Fal-cone received an increase in his base salary, and moved himself and his family from Florida to New Jersey.
In January 1982 Columbia issued a Personnel Policy Manual. This manual of restricted circulation was “designed to assist Executives, Department Heads, and managers in communicating and implementing Company personnel policy,” and was apparently available only for inspection by, and not distribution to, other Columbia employees. The manual does not appear to discuss termination other than to provide for termination pay in the event of retirement, voluntary termination, or involuntary termination for other than just cause.
In April 1982 Columbia distributed and Falcone received a copy of a booklet entitled “The Company You Have Joined.” The booklet contained a section on termination which provided that before dismissal the- supervisor would meet with the employee to attempt to resolve the problem, give the employee a chance to improve, and, if necessary, “after sufficient warnings,” discuss with the employee the reasons for the termination. It also provided that if any conflicts existed between the booklet and “applicable legal documents,” the latter would govern.
On or about August 17, 1982, Columbia notified Falcone that they were terminating his employment and giving him five months severance pay. Falcone asserts that the procedures in Columbia’s booklet were not followed, and that the only reason Kells gave for Falcone’s termination was that his assignment to the International Pictures division “just hasn’t worked out.”
After Columbia filed its answer to the complaint a United States Magistate scheduled a conference at which, over Falcone’s objection, the magistrate stayed the depositions which had been noticed by Falcone, as well as requests for documents and interrogatories which had already been served. Falcone alleges that the Magistrate entered this order based upon Columbia’s promise that it would stipulate that it did not follow the dismissal procedure alleged by Falcone; however, Columbia denies having agreed to so stipulate. Falcone made further discovery requests and when these were not complied with, the Magistrate determined that Columbia could withhold compliance pending the outcome of defendant’s summary judgment motion.
On February 24, 1986, the district court ruled against Falcone on Columbia’s motion for summary judgment. The court found that because Falcone failed to present any evidence that he relied upon the company’s alleged oral and written representations when he accepted employment, he did not come within New York’s narrow limitation on an employer’s ability to terminate an at will employee as set forth in Weiner v. McGraw-Hill, Inc., 57 N.Y.2d 458, 443 N.E.2d 441, 457 N.Y.S.2d 193 (1982).
II.
On appeal, Falcone argues that the district court erred in its award of summary judgment against him because it improperly read Weiner as requiring the satisfaction of a four part test. Rather, argues Falcone, Weiner requires the enforcement of an employer’s oral or written promise to limit its right to dismiss an at will employee whenever the employee in any way relies upon the employer’s promise. According to Falcone, he relied upon Columbia’s alleged promises by continuing his employment and by moving himself and his family from Florida to New Jersey.
The Supreme Court has recently set forth the appropriate standard of review in a case in which the district court has awarded summary judgment:
Under Rule 56(c), summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.... The moving party is “entitled to judgment as a matter of law” because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.
Celotex Corp. v. Catrett, — U.S. -, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). See Anderson v. Liberty Lobby, Inc., — U.S. -, 106 S.Ct. 2505, 2509-12, 91 L.Ed.2d 202 (1986). Thus, we review the record to determine whether the district court properly concluded that Falcone failed to establish an essential element of his case. See Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir.1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977) (“On review the appellate court is required to apply the same test the district court should have utilized initially.”).
It is undisputed that New York law governs. As a federal court sitting in diversity, we are “not free to follow our own inclination as to the manner in which the common law should develop_” Bruffett v. Warner Communications, Inc., 692 F.2d 910, 918 (3d Cir.1982). Rather we must apply the law as it has been developed by the New York courts. Novosel v. Nationwide Ins. Co., 721 F.2d 894, 897 (3d Cir.1983). New York has long held that employment for an indefinite term is terminable at the will of either party at any time, for any reason, or for no reason at all. See, e.g., Parker v. Borock, 5 N.Y.2d 156, 159, 156 N.E.2d 297, 298, 182 N.Y.S.2d 577, 579 (1959). This rule was recently reaffirmed by the New York Court of Appeals in Murphy v. American Home Products Corp., 58 N.Y.2d 293, 305, 448 N.E.2d 86, 91, 461 N.Y.S.2d 232, 237 (1983), subject to “a constitutionally impermissible purpose, a statutory proscription, or an express limitation in the individual contract of employment....” At issue in the instant matter is the existence of an express limitation in the individual contract of employment.
In Weiner v. McGraw-Hill, Inc., supra, the court of appeals gave effect to an express limitation which stated that the employer could not fire an employee absent just cause or rehabilitative efforts where (1) the employee was induced to leave his prior job with the assurance that he would not be dismissed without just cause; (2) the assurance was incorporated into the employment application; (3) the employee had rejected other offers of employment in reliance on the assurance; and (4) the personnel manual involved expressly stated that dismissal would be only for just cause and only after rehabilitation efforts had failed. Id., 57 N.Y.2d at 465-66, 443 N.E.2d at 445, 457 N.Y.S.2d at 197. However, as Falcone correctly points out, the four factors relied upon in Weiner do not constitute a strict test which must be met in every instance. Lapidus v. New York State Association for Retarded Children, Inc., 118 A.D.2d 122, 504 N.Y.S.2d 629, 632 (1st Dep’t 1986). Rather, the Second Circuit has interpreted Weiner to stand “for the proposition that the merits of a claim alleging breach of an employment contract are not to be determined by application of a formula or checklist; instead, the totality of the facts giving rise to the claim must be considered.” Gorrill v. Icelandair/Flugleidir, 761 F.2d 847, 853 (2d Cir.1985). Nevertheless, even under a totality of the facts test Weiner does require some recognized form of reliance in consideration for the employer’s alleged oral and written promises, and as the district court in the instant case correctly found, “whether the four tests of Weiner [are] talismatic” or not, Falcone has failed to demonstrate any evidence that he relied in any legally recognized way upon his employer’s alleged promises.
Falcone argues that reliance can be found in his move from Florida to New York; however, under New York law this would not appear to be the case unless the employee can demonstrate that he would not have moved absent the employer’s promise not to terminate without warning, cause, or a fixed term of employment. In Hager v. Union Carbide Corp., 106 A.D.2d 348, 483 N.Y.S.2d 261 (1st Dep’t 1984), the court specifically rejected an argument by the dissent that plaintiff’s move from New York City to Danbury, Connecticut, constituted sufficient reliance to support a limitation on the employer’s right to terminate an at will employee. Rather, the court stated that where there is no allegation of a promise, either express or implied, that employment should continue for a period of time that is either definite or capable of being determined, there is “no more than an ‘employment at will’ which in our state is terminable at any time, by either party.” Hager, 483 N.Y.S.2d at 261. The court recently reiterated this rule in Sabetay v. Sterling Drug Inc., 114 A.D.2d 6, 497 N.Y.S.2d 655 (1st Dep’t 1986), wherein it stated that “not even an employee’s commitment to relocate and his subsequent move with his family from New York City to Connecticut constitutes a sufficient predicate upon which to base an agreement not to terminate an at-will employment.” Id. at 8, 497 N.Y.S.2d at 657. Therefore we reject plaintiff’s argument that his move from Florida to New York constituted sufficient consideration to bind his employer to the alleged promise not to terminate his employment without first giving him certain warnings and time to rehabilitate himself, because there is no evidence that plaintiff would not have accepted the promotion absent that promise. See Abel v. Bonfanti, 625 F.Supp. 263, 271-72 (S.D.N.Y.1985) (employee withdrew resignation in reliance on employer’s express promise not to terminate him except for cause). See also Patrowich v. Chemical Bank, 98 A.D.2d 318, 470 N.Y.S.2d 599, 603 (1st Dep’t 1984) (plaintiff’s “conclusory statements as to reliance cannot defeat a motion for summary judgment.”).
We similarly reject plaintiff’s argument that his continued employment constituted sufficient consideration. In Weiner, the court held that the plaintiff “pleaded a good cause of action for breach of contract against his employer because, allegedly, he was discharged without the ‘just and sufficient cause’ or the rehabilitative efforts specified in the employer’s personnel handbook and allegedly promised at the time he accepted the employment.” Id. 57 N.Y.2d at 460, 443 N.E.2d at 442, 457 N.Y.S.2d at 194 (emphasis added). Similarly, in Leahy v. Federal Express Corp., 609 F.Supp. 668 (E.D.N.Y.1985), the court held that “it [is] possible for an employer to bind itself ... assuming that the employee relied on the promises when he accepted employment,” id. at 670 (emphasis added), and in Rizzo v. International Bhd. of Teamsters, 109 A.D.2d 639, 486 N.Y.S.2d 220 (1st Dep’t 1985), the court held that even if personnel policies in codified form or employment manuals which would give rise to the protections claimed by the discharged employee could be uncovered through discovery, “they were not known to plaintiff at the time she began her employment,” id., 486 N.Y.S.2d at 221 (emphasis added). This is not a case where plaintiff threatened to resign if the alleged promises were not made, see Abel v. Bonfanti, supra, and the alleged promises were not made until after employment had been accepted. Therefore, even viewing plaintiff’s claim under the “totality of the circumstances,” we find that that test is not met because there is no evidence whatsoever of reliance sufficient to support Fal-cone’s claim that he could not be terminated at the will of his employer. See Lapidus, 504 N.Y.S.2d at 632.
III.
We conclude that under New York law an express limitation on the employer’s right to terminate an at will employee will not be binding unless the employee relies on the limitation in some legally recognized way. Such reliance is ordinarily found in the terms and acceptance of employment. It may also be found where an employee moves or continues employment in reliance upon a limitation of the right to terminate at will if the employee can demonstrate that he would not have moved or continued his employment absent such a promise. No such demonstration has been made in this case.
Accordingly, the judgment of the district court will be affirmed.
. The district court exercised jurisdiction pursuant to 28 U.S.C. § 1332 (1982) (diversity of citizenship) and applied New York law. The plaintiff initially filed suit in the New Jersey State Court seeking damages for wrongful discharge. The defendant removed the action to the United States District Court for the District of New Jersey pursuant to 28 U.S.C. §§ 1441 and 1446. This court has jurisdiction pursuant to § 1291 (final judgment of the district court).
. Falcone also argues that the district court erred in entertaining Columbia’s motion for summary judgment without affording him the opportunity for discovery; however, this claim cannot succeed as Falcone has failed to comply with the requirements of Fed.R.Civ.P. 56(f), which provides that discovery may be had ”[s]hould it appear from the affidavits of a party opposing the motion [for summary judgment] that he cannot for reasons stated present by affidavit facts essential to justify the opposition." Most courts that have considered Fed.R. Civ.P. 56(f) "agree that filing an affidavit [thereunder] is necessary for the preservation of a ... contention that summary judgment should be delayed pending further discovery." Mid-South Grizzlies v. National Football League, 720 F.2d 772, 780 n. 4 (3d Cir.1983), cert. denied, 467 U.S. 1215, 104 S.Ct. 2657, 81 L.Ed.2d 364 (1984). See, e.g., Gray v. Udevitz, 656 F.2d 588, 592 (10th Cir.1981); Thi-Hawaii v. First Commerce Financial Corp., 627 F.2d 991, 994 (9th Cir.1980). Therefore, as Falcone has not filed a Rule 56(f) affidavit, he has not preserved his objection to his alleged inability to obtain necessary discovery.
. At most, plaintiff was entitled to some undetermined amount of time to correct a deficiency which plaintiff has not alleged constituted the basis for the termination. Since plaintiff has failed to show or allege how much additional time he would have remained as an employee, or that he could have rehabilitated himself, he has failed to make a claim even under his own theory of the promise.
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
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songer_respond1_3_2
|
C
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed 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.
RATON GAS TRANSMISSION COMPANY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent.
No. 87-1021.
United States Court of Appeals, District of Columbia Circuit.
Argued Oct. 14, 1987.
Decided July 29, 1988.
Eugene Threadgill, Washington, D.C., for petitioner.
Joshua Z. Rokach, F.E.R.C., with whom Catherine C. Cook, General Counsel, and Jerome M. Feit, Sol., F.E.R.C., Washington, D.C., were on the brief, for respondent. Hanford O’Hara, F.E.R.C., Washington, D.C., also entered an appearance for respondent.
Before ROBINSON, GINSBURG and SILBERMAN, Circuit Judges.
Opinion for the Court filed by Circuit Judge SPOTTSWOOD W. ROBINSON, III.
SPOTTSWOOD W. ROBINSON, III, Circuit Judge:
This petition for review arises from an unsuccessful attempt by Raton Gas Transmission Company (Raton) to obtain relief from a $4,000 fee charged by the Federal Energy Regulatory Commission. The fee was exacted as recompense to the Commission for processing a filing in which Raton sought a reduction in the rates at which it sells natural gas. The principal question before us is whether Raton’s effort is an untimely attack upon a regulation adopted by the Commission more than two years before the present controversy emerged. We find that part of Raton’s challenge is jurisdictionally timely and on the merits is viable. We therefore remand this ease to the Commission for further consideration.
I
In 1986, Raton sought the Commission’s leave to pass on to its customers a decrease in the cost of its gas. Its filing, termed a “Purchased Gas Adjustment” (PGA), was submitted conformably with Commission regulations promulgated under the Natural Gas Act. These regulations require gas companies to make PGA filings every six months to reflect changes in their gas costs. Raton owns only one pipeline, and its filing was only six pages long.
The Independent Office Appropriations Act authorizes the Commission to charge a fee for every service and benefit it provides to those it regulates. Accordingly, in Order No. 361 in 1984, the Commission set fees therefor, including processing of PGA filings. In compliance with the fee schedule, Raton enclosed with its filing a check for $2,300, which had been the standard charge for processing PGA filings. To its dismay, however, Raton was later advised by the Commission that shortly before the filing, the fee for this service had increased to $4,000. Raton paid the remaining amount under protest.
Raton later moved for relief. Raton claimed that the Commission had no authority to charge a fee for a PGA filing seeking a reduction, as opposed to an increase, in rates. In the alternative, Raton asked the Commission to establish a fee reasonably related to the actual cost of the staff review of Raton’s filing. The Commission rebuffed Raton on both counts, and subsequently denied Raton’s request for rehearing. This petition for review followed.
II
Raton argues that the higher fees currently charged do not accurately reflect the cost to the Commission of processing Ra-ton’s PGA filing. Raton also contends that PGA filings envisioning reductions in rates do not confer any “special benefit” on Raton as required by the Independent Office Appropriations Act. The Commission replies that the issues raised by Raton were resolved more than three years ago by Order No. 361 and thus are beyond the pale of judicial review. The Commission also contends that most of these issues have been squarely addressed and decided in its favor by the Tenth Circuit.
As the Commission points out, Order No. 361 was promulgated on February 9, 1984, but Raton’s motion for relief was not filed until March 20, 1986, long past the 60-day period allowed for judicial review of Commission orders promulgated under the Natural Gas Act. Raton counters with the argument that circuit precedent preserves this court’s jurisdiction to entertain a late attack on an agency rule under circumstances of the sort presented here. • We resolve this quarrel by examining the scenarios in which a late challenge to an agency order may be deemed excusable.
To begin with, an attack upon the validity of an agency regulation after expiration of the statutory review period is rarely to be permitted. Strict enforcement of the time limit is necessary to preserve finality in agency decisionmaking and to protect justifiable reliance on agency rules. Nevertheless, we have long recognized a limited number of exceptional situations in which an objection to an agency regulation is considered timely even after the statutory review period has ended.
The law of this circuit was recently summarized in our opinion in NLRB Union v. FLRA. There we noted a distinction between challenges that originate in a petition for rulemaking and those that do not. We stated that agency denials of petitions for rulemaking are generally subject to judicial review to a degree commensurate with the nature of the substantive claim.
Even absent a petition for rulemaking, a litigant may still, under certain circumstances, question an agency regulation after the expiration of the statutory period for direct review. This we have allowed when the agency’s action did not “reasonably put[] aggrieved parties on notice of the rule’s content,” or clearly remained unripe for judicial review throughout the statutory review period. On several occasions we have suggested that there may be review of agency action outside the statutory review period in extreme cases involving gross violations of statutory or constitutional mandates, or denial of an adequate opportunity to test the regulation in court. Our observations in Investment Company Institute v. Board of Governors, aptly sum up our approach in these cases:
Where an aggrieved party has a valid excuse for failing to challenge the initial order promulgating a regulation, the regulation may be opened to attack upon review of a Board adjudication which applies the regulation_ However, absent a convincing justification, the litigant should be bound by the regulation. A contrary rule would thwart the principle of finality underlying the [statutory review period].
Questions of a similar nature arise in cases presenting what at first blush appears to be a timely request for review of recent agency action, but the agency argues that the requester is actually attempting to litigate the validity of an older regulation that is otherwise unreviewable. An agency may, for instance, contend that targeted action merely implements policy choices embodied in an older regulation, for which the statutory period for review has passed. The court’s task then is to determine whether there can be meaningful review of the later action without upsetting the basis of the earlier action or instead, whether the later action is inextricably intertwined with the earlier. In the latter event, the caselaw of this circuit makes clear that review may be had only if the earlier action is itself reviewable by reason of the criteria we previously have considered.
This principle is exemplified by our decision in MCI Telecommunications Corp. v. FCC. In that case, MCI challenged a provision in the Federal Communications Commission’s Sixth Report and Order, requiring certain common carriers of interstate telephone messages to refrain from filing tariffs. MCI’s petition was filed one day after the release of the Sixth Report, but FCC argued that nonetheless it was untimely because it was actually directed at FCC’s earlier Fourth Report, which had merely permitted the carriers to forego the filing of tariffs. Because the policy favoring forbearance predated issuance of the Sixth Report by a year, FCC asserted, MCI’s challenge to the latter was untimely. We found, however, that FCC in the Sixth Report had reconstructed its forbearance policy fundamentally by changing it from a permissive to a mandatory course of action. Since the Fourth Report did not anticipate the Sixth Report’s step in this crucial respect, any necessary connection between the two, we said, was “ ‘entirely unspoken (or impenetrably obscure).’ ”
In summary, the law of our circuit distinguishes between challenges presented in a petition for rulemaking and those that are not. Attacks launched outside a petition for rulemaking must meet time requirements unless they fall within one of a few well-defined categories. And when an otherwise timely protest is resisted by an agency as an effort to reopen a decision for which the time for judicial review has expired, we must ascertain whether the venture necessarily will implicate the older rule, or whether it is confined to the newer agency action.
Ill
In the case before us, we note at the outset that Raton’s request for relief from the $4,000 fee did not take the form of a petition for rulemaking. It made its appearance in the course of a PGA filing, and followed Raton’s earlier letter of protest accompanying its payment of the higher fee. Raton’s motion therefore was an attack upon a rule — the one raising the fee for processing PGA filings — stemming from a particular application.
The motion for relief contained three distinct elements. There was an argument that PGA filings seeking rate decreases instead of increases confer no special benefit, and no fee at all should be charged for them. There was the further argument that the $4,000 fee is not justified by the cost to the Commission of processing Ra-ton’s six-page filing, and that, indeed, a uniform fee imposes a hardship on small pipelines. Lastly, there was a request that the Commission allow Raton to pass the amount of any fee through to its customers.
We examine first Raton’s claim that PGA filings for rate reductions deserve no processing fee and conclude that it is untimely. On its face, Order No. 361 does not limit fees for PGA filings to rate increases; rather, the pertinent language is broad enough to encompass all PGA filings. Moreover, the regulations call for PGA filings reporting changes in the price of gas, which naturally would include any decrease as well as any increase in that price. No claim has been made, nor seemingly could be made, that Order No. 361 was unripe for review at the time of its promulgation. Raton may not assert the invalidity of the Commission’s rule on grounds fully known to it at the time of issuance.
Even were it proper to consider this challenge on the merits, we would still reject Raton’s position. The regulation demanding payment of fees for special benefits, as we have said, is written broadly enough to intercept PGA filings seeking rate reductions as well as rate elevations, and we have not been referred to any administrative practice inconsistent with the text of the rule. Once it chose the PGA procedure over a Section 4 proceeding, Ra-ton became responsible for PGA filings for both decreases and increases. We have held that the term “special benefits” justifies the levying of a fee when an agency assists a regulated entity in complying with its statutory obligations. The Commission’s processing of Raton’s filing conferred enough of a special benefit to support a fee requirement under the governing statute.
Raton further contends that the new fee of $4,000 is invalid on the ground that it does not reflect the real expense of processing Raton’s PGA filing, and that it visits a severe hardship on a small pipeline. At the administrative level, Raton asked that in the event that some fee was to be charged, the Commission revise its fee structure to reflect the true cost of processing filings. This complaint, unlike the more general challenge to the Commission’s power to impose any fee, does not implicate Order No. 361 directly, but focuses instead on the increase announced only a month prior to Raton’s motion for relief.
The Commission maintains that this claim nonetheless is foreclosed by the order, and is as well shattered by the Tenth Circuit’s decision in Phillips Petroleum Co. which upheld various parts of the order. The Commission contends that since the original rule plainly set forth the methodology for calculating the fee for filings, and also made clear that the fee was to be uniform for all entities, large and small, except in special circumstances covered by individual waivers, consideration of Raton’s protest would necessarily involve a forbidden substantive review of Order No. 361.
We find the Commission’s argument unacceptable for two reasons. First, it is uncertain whether the original justifications for the fee remain valid in light of the size of the increase involved. Put another way, the new fees may no longer be adequately cost-justified, as required by the Act. The Commission did not set forth a new calculation of costs in its order announcing the higher fees; it merely stated that the fees had been recalculated by use of the Commission's new time distribution reporting system. Ordinarily that explanation might suffice, but we.think the immensity of the increase, which almost doubled the fees, concomitantly with the resulting financial burden on small pipelines, require somewhat more. We do not know whether the sudden jump in fees was prompted by a rise in the Commission’s labor costs, or in the average size or complexity of PGA filings, or because more or different types of agency operations entered into the calculation of time spent in processing such filings, or, on the other hand, for some other reason, or for no reason at all.
The second reason for our disagreement with the Commission is that the larger fees shown a set of fairness concerns not previously present. The Commission charges a uniform fee regardless of whether the filing is six or two thousand pages long, and whether the task of processing is simple or complicated. Raton states, without dispute by the Commission, that the higher fees will consume a significant portion of its net revenues each year. If the fees were commensurate with the time and labor required for the Commission to process filings of different length or complexity, Ra-ton submits, it could achieve substantial savings. The need for such selectivity may not have been as great when the fees, and thus their financial impact, were much lower. After the increase, however, a uniform fee may no longer comport with the statutory call for fairness.
Similarly, the Commission’s provision in Order No. 361 of a case-by-case fee waiver procedure for applicants suffering from economic hardship cannot fully allay the fairness concerns raised by the new fee. The Commission itself indicated that the fee waiver procedure was intended only for isolated instances of utilities in “a state of financial distress or emergency.” The waiver procedure is therefore quite ill-suited to handle the problem presented by the new fee — small companies whose net revenues may be significantly affected by the size of the fees but are not facing imminent financial ruin.
When the Commission first erected its fee structure it realized that future reduction of fees for some groups of filings might become appropriate. A specific example adverted to was “where there is a reduction in the amount of time required to process a filing.” When Order No. 361 was promulgated, the Commission may properly have determined that the difficulty inherent in setting different fees for PGA filings at varying levels of complexity outweighed any easing of the burden on utilities that would benefit from graduated fees. With the large hikes in fees recently occurring, however, the balance of fairness and efficiency may well have tipped in the other direction, to such an extent that variations in fees assessed against utilities making PGA filings of vastly different lengths could be significant. If, for instance, the recent spiral of fees upward is attributable to rapid growth in the average length and complexity of filings, it may be inequitable to force utilities continuing to submit simple filings, such as Raton, to share disproportionately the financial onus of processing heavy filings. We therefore hold that Raton’s challenge to the size of the new fees is timely.
IV
Our examination of the merits of the Commission’s refusal to reduce Raton’s fee may be brief. On rehearing, the Commission affirmed exaction of the uniform $4,000 fee on the ground that the Tenth Circuit had approved the formula by which the Commission had calculated it. As we have explained, however, approval of the old fee does not automatically translate into validity of the new fee. The Act requires fees assessed for agency service to be cost-justified and fair. The new fee may no longer be cost-justified, and its uniform application to all pipelines may be substantively unfair to smaller pipelines. Since the Commission has not furnished any explanation sufficient to put these concerns to rest, we cannot presently say that the new fees are consistent with the statutory mandates.
We conclude that part of Raton’s challenge is timely and that the Commission has not sufficiently justified its position on the new fees. We therefore vacate the Commission’s order and remand the case for further proceedings. On remand, the Commission must reconsider its decision to charge Raton the full $4,000 fee and must supply a fuller explanation of the result it reaches. It may also reevaluate the situation to determine whether it is now time to devise a new fee schedule better assuring fairness of the fees charged to small pipelines.
So ordered.
. Letter from Raton Gas Transmission Company to Federal Energy Regulatory Commission, Joint Appendix (J. App.) 1.
. See 15 U.S.C. §§ 717-717w (1982). Natural gas pipeline companies wishing to alter their rates are required to initiate what frequently becomes a lengthy proceeding before the Commission under § 4 of the Act. Id. § 717c. Commission regulations, however, allow pipelines to bypass this proceeding with respect to their costs for purchased gas by filing a PGA clause with the Commission and securing its approval. 18 C.F.R. § 154.38 (1987). Thus PGA filings, while less onerous than § 4 proceedings, do necessitate Commission processing and approbation.
. 18 C.F.R. § 154.38 (1987). While the regulations themselves do not seem to insist upon filings every six months, both parties assert that Raton is obliged to file on a semi-annual basis. Brief for Petitioner at 4 n. 3; Brief for Respondent at 3.
. J.App. 1-6.
. 31 U.S.C. § 9701 (1982).
. 49 Fed.Reg. 5083 (Feb. 10, 1984) (codified at 18 C.F.R. pts. 154, 381 (1987)) [hereinafter Order No. 361 ].
. Id. at 5091.
. Notice of the fee increase had earlier been published in the Federal Register. 51 Fed.Reg. 4310 (Feb. 4, 1986).
. Letter from Eugene E. Threadgill to Kenneth F. Plumb (Mar. 14, 1986), J.App. 11.
. Motion of Raton Gas Transmission Company for Relief from PGA Fee and for Permission to Offset Fee Against Change in Raton’s Rates, Raton Gas Transmission Co., FERC Docket No. TA-86-1-40 (dated Mar. 20, 1986), J.App. 13 [hereinafter Motion for Relief].
. Id. at 2, J.App. 14.
. Id. at 4, J.App. 16.
. Raton Gas Transmission Co., FERC Docket Nos. TA 86-1-40-000 & TA 86-1-40-001 (filed Aug. 5, 1986) (order denying refund, denying permission to offset fee against rate reduction and denying late intervention), J.App. 29.
. Raton Gas Transmission Co., FERC Docket No. TA 86-1-40-002 (filed Nov. 26, 1986) (order denying rehearing), J.App. 49.
. Brief for Petitioner at 19-21.
. Id. at 21-23.
. Brief for Respondent at 7-8; see also Motion to Dismiss, Raton Gas Transmission Co. v. FERC, No. 87-1021 (D.C.Cir.) (filed June 15, 1987) at 5-10, Respondent's Appendix (R.App.) B-5 to B-10.
. Brief for Respondent at 7; see Phillips Petroleum Co. v. FERC, 786 F.2d 370 (10th Cir.1986); see also Motion to Dismiss, supra note 17, at 7, 9, R.App. B-7, B-9.
. See 15 U.S.C. § 717r(b) (1982).
. Brief for Petitioner at 10-12.
. E.g., Eagle-Picher Indus, v. EPA, 245 U.S.App.D.C. 179, 185, 759 F.2d 905, 911 (1985).
. Id.
. 266 U.S.App.D.C. 165, 169-171, 834 F.2d 191, 195-197 (1987).
. Id. at 169-170, 834 F.2d at 195-196.
. See id. at 170-171, 834 F.2d at 196-197; Farmers Export Co. v. United States, 244 U.S.App.D.C. 413, 417, 758 F.2d 733, 737 (1985); Professional Drivers Council v. Bureau of Motor Carrier Safety, 227 U.S.App.D.C. 312, 314 n. 2, 706 F.2d 1216, 1218 n. 2 (1983); NRDC v. NRC, 215 U.S.App.D.C. 32, 39-40, 666 F.2d 595, 602-603 (1981); Geller v. FCC, 198 U.S.App.D.C. 31, 34-35, 610 F.2d 973, 977-978 (1979); Functional Music, Inc. v. FCC, 107 U.S.App.D.C. 34, 37, 274 F.2d 543, 546 (1958).
. RCA Global Communications, Inc. v. FCC, 244 U.S.App.D.C. 402, 410, 758 F.2d 722, 730 (1985).
. Eagle-Picher Indus, v. EPA, supra note 21, 245 U.S.App.D.C. at 185-189, 759 F.2d at 911-915; Baltimore Gas & Elec. Co. v. ICC, 217 U.S.App.D.C. 293, 296-297, 672 F.2d 146, 149-150 (1982).
. NLRB Union v. FLRA, supra note 23, 266 U.S.App.D.C. at 169-170, 834 F.2d at 195-196; Geller v. FCC, supra note 25, 198 U.S.App.D.C. at 35, 610 F.2d at 978; Functional Music, Inc. v. FCC, supra note 25, 107 U.S.App.D.C. at 37, 274 F.2d at 546.
. 179 U.S.App.D.C. 311, 551 F.2d 1270 (1977).
. Id. at 323 n. 13, 551 F.2d at 1282 n. 13 (citations omitted).
. See American Trading Transp. Co. v. United States, 253 U.S.App.D.C. 40, 48 n. 11, 791 F.2d 942, 950 n. 11 (1986); MCI Telecommunications Corp. v. FCC, 247 U.S.App.D.C. 32, 35-37, 765 F.2d 1186, 1189-1191 (1985); Montana v. Clark, 242 U.S.App.D.C. 62, 65-66, 749 F.2d 740, 743-744 (1984); National Bank v. Comptroller, 233 U.S.App.D.C. 284, 285-286, 725 F.2d 1390, 1391-1392 (1984).
. See MCI Telecommunications Corp. v. FCC, supra note 31, 247 U.S.App.D.C. at 35-36, 765 F.2d at 1189-1190.
. Supra note 31.
. 247 U.S.App.D.C. at 33-35, 765 F.2d at 1187-1189.
. Id. at 35-36, 765 F.2d at 1189-1190.
. Id.
. Id. at 36, 765 F.2d at 1190.
. Id. at 37, 765 F.2d at 1191 (quoting RCA Global Communications, Inc. v. FCC, supra note 26, 244 U.S.App.D.C. at 411, 758 F.2d at 731) (emphasis in original).
. Motion for Relief, supra note 10, at 2-4, J.App. 14-16.
. Id. at 4, J.App. 16.
. Id. at 5, J.App. 17. This point, however, has not been reasserted here.
. Order No. 361, supra note 6, 49 Fed.Reg. at 5091.
. 18 C.F.R. § 154.38 (1987); see note 3 supra.
. NRDC v. NRC, supra note 25, 215 U.S.App.D.C. at 39-40, 666 F.2d at 602-603.
. Electronic Indus. Ass’n v. FCC, 180 U.S.App.D.C. 250, 256, 554 F.2d 1109, 1115 (1976).
. The Tenth Circuit has also endorsed this rationale. Phillips Petroleum Co. v. FERC, supra note 18, 786 F.2d at 376.
. Motion for Relief, supra note 10, at 4, J.App. 16.
. 51 Fed.Reg. 4310 (Feb. 4, 1986).
. Supra note 18.
. Motion to Dismiss, supra note 17, at 9-10, R.App. B-9 to B-10.
. See 31 U.S.C. § 9701(b)(2)(A) (1982).
. 51 Fed.Reg. 4310 (Feb. 4, 1986).
. In consequence of a still-later order enlarging the increase further, the fees currently in effect are more than double those specified in Order No. 361. Appellant's Appendix (A.App.) A-36.
. Motion for Relief, supra note 10, at 5, J.App. 17.
. In Order No. 361, the Commission discussed the possibility that uniform fees might expose small pipelines to severe economic hardship. It stated, however, its expectation that such hardship would be rare “since the Commission has reduced the fee significantly as a result of excluding any recovery of hearing costs." Order No. 361, supra note 6, 49 Fed.Reg. at 5089. The new fees, in our view, serve at least to reopen the question of the accuracy and adequacy of that statement.
. See 31 U.S.C. § 9701(b)(1) (1982).
. Order No. 361, supra note 6, 49 Fed.Reg. at 5089.
. Id.
. Raton notes that PGA filings by other utilities may exceed 2,600 pages in length. Application for Rehearing of Raton Gas Transmission Company, Raton Gas Transmission Co., FERC Docket No. TA 86-1-40 (filed Aug. 29, 1986) at 5, J.App. 40.
. Phillips Petroleum Co. v. FERC, supra note 18.
. Raton Gas Transmission Co., supra note 14, at 3, J.App. 51.
. 31 U.S.C. § 9701(b)(2)(A) (1982).
. Id. § 9701(b)(1).
. See Part III supra.
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:
|
sc_issuearea
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states.
JAY v. BOYD, DISTRICT DIRECTOR, IMMIGRATION & NATURALIZATION SERVICE.
No. 503.
Argued May 3, 1956.
Decided June 11, 1956.
Will Maslow and John Caughlan argued the cause for petitioner. On the brief were Mr. Caughlan and Norman Leonard.
John V. Lindsay argued the cause for respondent. With him on the brief were Solicitor General Sobeloff, Assistant Attorney General Olney, Gray Thoron, Beatrice Rosenberg, J. F. Bishop and L. Paul Winings.
Mr. Maslow and Shad Polier filed a brief for the American Jewish Congress, as amicus curiae, urging reversal.
Mr. Justice Reed
delivered the opinion of the Court.
[Petitioner brought this habeas corpus proceeding to test the validity of the denial of his application under §§244 (a)(5) and 244 (c) of the Immigration and Nationality Act of 1952, 66 Stat. 215, 216, 8 U. S. C. §§ 1254 (a)(5) and 1254 (c), for discretionary suspension of deportation. He contends that the denial of his application was unlawful because based on confidential, undisclosed information. The District Court denied the writ, holding, so far as pertinent here, that, “after complying with all the. essentials of due process of law in the deportation hearing and in the hearing to determine eligibility for suspension of deportation, [the Attorney General may] consider confidential information outside the record in formulating his discretionary decision.” The Court of Appeals affirmed, concluding, inter alia, that petitioner was not “denied due process of law in the consideration of his application for suspension of deportation because of the use of this confidential information.” 222 F. 2d 820, 820-821; rehearing denied, 224 F. 2d 957. We granted certiorari, 350 U. S. 931, to consider the validity of 8 CFR, Rev. 1952, § 244.3, the Attorney General's regulation which provides:
“§ 244.3 Use of confidential information. In the case of an alien qualified for . . . suspension of deportation under section . . . 244 of the Immigration and Nationality Act the determination as to whether the application for . . . suspension of deportation shall be granted or denied (whether such determination is made initially or on appeal) may be predicated upon confidential information without the disclosure thereof to the applicant, if in the opinion of the officer or the Board making the determination the disclosure of such information would be prejudicial to the public interest, safety, or security.”
Following a hearing, the fairness of which is unchallenged, petitioner was ordered deported in 1952 pursuant to 8 U. S. C. (1946 ed., Supp. V) § 137-3. That section provided for the deportation of any alien “who was at the time of entering the United States, or has been at any time thereafter,” a member of the Communist Party of the United States. Petitioner, a citizen of Great Britain, last entered the United States in 1921. .-At the deportation hearing he admitted having been a voluntary member of the Communist Party from 1935 through 1940. He attacked the validity of the deportation order in the courts below on the ground that there is “no lawful power . . . under the Constitution or laws of the United States” to deport one who has “at no time violated any condition imposed at the time of his entry.” But that point has been abandoned, and in this Court petitioner in effect concedes that he is deportable. See Galvan v. Press, 347 U. S. 522; Harisiades v. Shaughnessy, 342 U. S. 580.
In 1953, upon motion of petitioner, the deportation order was withdrawn for the purpose of allowing petitioner to seek discretionary relief from the Attorney General under § 244 (a) (5) of the Act. The application for suspension of deportation was filed and a hearing thereon was held before a special inquiry officer of the Immigration and Naturalization Service. The special inquiry officer found petitioner to be qualified for suspension of deportation — that is, found that petitioner met the statutory prerequisites to the favorable exercise of the discretionary relief. But the special inquiry officer decided the case for suspension did not “warrant favorable action” in view of certain “confidential information.” The Board of Immigration Appeals dismissed an appeal, basing its decision “Upon a full consideration of the evidence of record and in light of the confidential information available.” Thus, the Board in considering the appeal reviewed the undisclosed information as well as the evidence on the open record. Petitioner then commenced the present habeas corpus action.
As previously noted, § 244 (a)(5) of the Act provides that the Attorney General “may, in his discretion” suspend deportation of any deportable alien who meets certain statutory requirements relating to moral character, hardship and period of residence within the United States. If the Attorney General does suspend deportation under that provision, he must file, pursuant to § 244 (c), “a complete and detailed statement of the facts and pertinent provisions of law in the case” with Congress, giving “the reasons for such suspension.” So far as pertinent here, deportation finally cancels only if Congress affirmatively approves the suspension by a favorable concurrent resolution within a specified period of time. There is no express statutory grant of any right to a hearing on an application to the Attorney General for discretionary suspension of deportation. For purposes of effectuating these statutory provisions, the Attorney General adopted regulations delegating his authority under § 244 of the Act to special inquiry officers; giving the alien the right to apply for suspension during a deportation hearing; putting the burden on the applicant to establish the statutory requirements for eligibility for suspension; allowing the alien-applicant to submit any evidence in support of his application; requiring the special inquiry officer to present evidence bearing on the applicant’s eligibility for relief; and requiring a “written decision” with “a discussion of the evidence relating to the alien’s eligibility for such relief and the reasons for granting or denying such application.” The Attorney General also promulgated the regulation under attack here, 8 CFR, Rev. 1952, § 244.3, see pp. 347-348, supra, providing for the use by special inquiry officers and the Board of Immigration Appeals of confidential information in ruling upon suspension applications if disclosure of the information would be prejudicial to the public interest, safety or security.
We note that petitioner does not suggest that he did not receive a full and fair hearing on evidence of record with respect to his statutory eligibility for suspension of deportation. In fact, petitioner recognizes that the special inquiry officer found in his favor on all issues relating to eligibility for the discretionary relief and that those findings were adopted by the Board of Immigration Appeals. This favorably disposed of petitioner’s eligibility for consideration for suspension of deportation — the first step in the suspension procedure. Thus, we have here the case of an admittedly deportable alien who has been ordered deported following an unchallenged hearing, and who has been accorded another full and fair hearing on the issues respecting his statutory qualifications for discretionary suspension of deportation./!
It is urged upon the Court that the confidential information regulation is invalid because inconsistent with § 244 of the Act. In support of this claim, petitioner argues that § 244 implicitly requires the Attorney General to give a hearing on applications for suspension of deportation. It is then said that this statutory right is nullified and rendered illusory by the challenged regulation, and that therefore the regulation is invalid. But there is nothing in the language of § 244 of the Act upon which to base a belief that the Attorney General is required to give a hearing with all the evidence spread upon an open record with respect to the considerations which may bear upon his grant or denial of an application for suspension to an alien eligible for that relief. Assuming that the statute implicitly requires a hearing on an open record as to the specified statutory prerequisites to favorable action, there is no claim here of a denial of such a hearing on those issues. Moreover, though we assume a statutory right to a full hearing on those issues, it does not follow that such a right exists on the ultimate decision — the exercise of discretion to suspend deportation.
Eligibility for the relief here involved is governed by specific statutory standards which provide a right to a ruling on an applicant’s eligibility. However, Congress did not provide statutory standards for determining who, among qualified applicants for suspension, should receive the ultimate relief. That determination is left to the sound discretion of the Attorney General. The statute says that, as to qualified deportable aliens, the Attorney General “may, in his discretion” suspend deportation. It does not restrict the considerations which may be relied upon or the procedure by which the discretion should be exercised. Although such aliens have been given a right to a discretionary determination on an application for suspension, cf. Accardi v. Shaughnessy, 347 U. S. 260, a grant thereof is manifestly not a matter of right under any circumstances, but rather is in all cases a matter of grace. Like probation or suspension of criminal sentence, it “comes as an act of grace,” Escoe v. Zerbst, 295 U. S. 490, 492, and “cannot be demanded as a right,” Berman v. United States, 302 U. S. 211, 213. And this unfettered discretion of the Attorney General with respect to suspension of deportation is analogous to the Board of Parole’s powers to release federal prisoners on parole. Even if we assume that Congress has given to qualified applicants for suspension of deportation a right to offer evidence to the Attorney General in support of their applications, the similarity between the discretionary powers vested in the Attorney General by § 244 (a) of the Act on the one hand, and judicial probation power and executive parole power on the other hand, leads to a conclusion that § 244 gives no right to the kind of a hearing on a suspension application which contemplates full disclosure of the considerations entering into a decision. Clearly there is no statutory right to that kind of a hearing on a request for a grant of probation after criminal conviction in the federal courts. Nor is there such a right with respect to an application for parole. Since, as we hold, the Attorney General’s discretion is not limited by the suggested hearing requirement, the challenged regulation cannot be said to be inconsistent with § 244 (a) of the Act.
Petitioner says that a hearing requirement, with a consequent disclosure of all considerations going into a decision, is made implicit by § 244 (c) if not by § 244 (a). Section 244 (c), it will be recalled, requires the Attorney General to file with Congress “a complete and detailed statement of the facts” as to cases in which suspension is granted, “with reasons for such suspension.” This statutory mandate does not, however, order such a report on cases in which suspension is denied. Section 244 (c) actually emphasizes the fact that suspension is not a matter of right. Congress was interested in limiting grants of this relief to the minimum. It evidenced an interest only in the reasons relied upon by the Attorney General for granting an application so that it could have an opportunity to accept or reject favorable administrative decisions. This in no way suggests that the applicant is to be apprised of the reasons for a denial of his request for suspension.
Petitioner also points to § 235 (c) of the Act, 8 U. S. C. § 1225 (c), which specifically authorizes the Attorney General to determine under some circumstances that an alien is excludable “on the basis of information of a confidential nature.” It is argued from this that had Congress intended to permit the use of confidential information in rulings upon applications for suspension of deportation, it would have expressly so provided in language as specific as that used in § 235 (c). The difficulty with this argument is that § 235 (c) is an exception to an express statutory mandate under § 236 (a) of the Act, 8 U. S. C. § 1226 (a), that determinations of admissibility be “based only on the evidence produced at the inquiry.” No such express mandate exists with respect to suspension of deportation, and, therefore, no specific provision for the use of confidential information was needed if normally contemplated by the broad grant of discretionary power to the Attorney General.
It is next argued that, even if the confidential information regulation is not inconsistent with § 244 (a), it nevertheless should be held invalid. Emphasizing that Congress did not in terms authorize such a procedure, petitioner contends that the Act should be construed to provide a right to a hearing because only such a construction would be consistent with the “tradition and principles of free government.” On its face this is an attractive argument. Petitioner urges that, in view of the severity of the result flowing from a denial of suspension of deportation, we should interpret the statute by resolving all doubts in the applicant’s favor. Cf. United States v. Minker, 350 U. S. 179, 187-188. But we must adopt the plain meaning of a statute, however severe the consequences. Cf. Galvan v. Press, 347 U. S. 522, 528. As we have already stated, suspension of deportation is not given to deportable aliens as a right, but, by congressional direction, it is dispensed according to the unfettered discretion of the Attorney General. In the face of such a combination of factors we are constrained to construe the statute as permitting decisions based upon matters outside the administrative record, at least when such action would be reasonable.
It may be that § 244 (a) cannot be interpreted as allowing a decision based on undisclosed information in every case involving a deportable alien qualified for suspension. Thus, it could be argued that, where there is no compelling reason to refuse to disclose the basis of a denial of an application, the statute does not contemplate arbitrary secrecy. However, the regulation under attack here limits the use of confidential information to instances where, in the opinion of the special inquiry officer or the Board of Immigration Appeals, “the disclosure . . . would be prejudicial to the public interest, safety, or security.” If the statute permits any withholding of information from the alien, manifestly this is a reasonable class of cases in which to exercise that power.
Our conclusion in this case is strongly supported by prior decisions of this Court. In both Knauff v. Shaugh-nessy, 338 U. S. 537, and Shaughnessy v. Mezei, 345 U. S. 206, we upheld a regulation of the Attorney General calling for the denial of a hearing in exclusion cases where the Attorney General determined that an alien was ex-dudable on the basis of confidential information, and where, as here, the disclosure of that information would be prejudicial to the public interest. And again, as here, the statutes involved in those cases did not expressly authorize the use of such information in making the administrative ruling. It is true that a resident alien in a deportation proceeding has constitutional protections unavailable to a nonresident alien seeking entry into the United States, and that those protections may militate against construing an ambiguous statute as authorizing the use of confidential information in a deportation proceeding. Cf. Kwong Hai Chew v. Colding, 344 U. S. 590. But the issue involved here under § 244 (a) is not whether an alien is deportable, but whether, as a deportable alien who is qualified for suspension of deportation, he should be granted such suspension. In view of the gratuitous nature of the relief, the use of confidential information in a suspension proceeding is more clearly within statutory authority than were the regulations involved in the Knauff and Mezei cases.
Concluding that the challenged regulation is not inconsistent with the Act, we must look to petitioner’s claim that the use of undiscloséd confidential information is unlawful because inconsistent with related regulations governing suspension of deportation procedures. As previously noted, an application for suspension is considered as part of the “hearing” to determine deporta-bility. 8 CFR, Rev. 1952, §§ 242.53 (c) and 242.54 (d) ; and see 8 CFR, Rev. 1952, § 242.5. The alien is entitled to “submit any evidence in support of his application which he believes should be considered by the special inquiry officer.” 8 CFR, Rev. 1952, § 242.54 (d). The hearing to determine deportability, during which the suspension application is considered, is to be a “fair and impartial hearing.” 8 CFR, Rev. 1952, § 242.53 (b). And a decision of the special inquiry officer on the request for suspension must contain “the reasons for granting or denying such application.” 8 CFR, Rev. 1952, § 242.61 (a).
We conclude that, although undisclosed information was used as a basis for denying suspension of deportation, none of the above-mentioned regulations was transgressed. While an applicant for suspension is, by regulation, entitled to “submit any evidence in support of his application,” that is merely a provision permitting an evidentiary plea to the discretion of those who are to make the decision. In this respect it is not unlike the “statement” and the opportunity to present “information in mitigation of punishment” to which a convicted defendant is entitled under Rule 32 (a) of the Federal Rules of Criminal Procedure before criminal sentence is imposed. And the situation is not different because the matter of suspension of deportation is taken up in the “fair and impartial” deportation “hearing.” Assuming that such a “hearing” normally precludes the use of undisclosed information, the “hearing” here involved necessarily contemplates the use of confidential matter in some circumstances. We must read the body of regulations governing suspension procedures so as to give effect, if possible, to all of its provisions. Cf. Lawson v. Suwannee Fruit & S. S. Co., 336 U. S. 198.
This same rationale leads us to conclude that the requirement of a decision containing “reasons” is fully complied with by a statement to the effect that the application has been denied on the basis of confidential information, the disclosure of which would be prejudicial to the public interest, safety or security. Section 244.3 says that such information may be used “without the disclosure thereof to the applicant.” Reading the provision for a statement of the “reasons” for a decision in the light of § 244.3, it follows that express reliance on confidential information constitutes a statement of the “reasons” for a denial of suspension within the meaning of § 242.61 (a). If “reasons” must be disclosed but confidential information need not be, the former mandate, which certainly comprehends the latter provision, must be satisfied by an express invocation of the latter provision.
Congress has provided a general plan dealing with the deportation of those aliens who have not obtained citizenship although admitted to residence. Since it could not readily make exception for cases of unusual hardship or extenuating circumstances, those matters were left to the consideration and discretion of the Attorney General. We hold that in this case the Attorney General has properly exercised his powers under the suspension statute and we affirm the judgment below.
It is so ordered.
The District Judge wrote no opinion. The quote is taken from the Findings of Fact and Conclusions of Law, Record 15, 17-18.
A similar provision is now contained in 8 U. S. C. § 1251 (a)(6)(C).
“In determining cases submitted for hearing, special inquiry-officers shall exercise . . . the authority contained in section 244 of the Immigration and Nationality Act to suspend deportation.” 8 CFR, Rev. 1952, § 242.6.
The finding was:
“As the respondent has not been found to have been a Communist Party member later than 1940, it follows that more than ten years has elapsed since the assumption of the status which constitutes the ground for his deportation. Evidence of record, consisting of affidavits of persons well acquainted with the respondent, together with employment records, as well as a report of an investigation by this Service, satisfactorily establishes that he has been physically present in the United States for a continuous period of not less than ten years last past. A check of the local and Federal records reveals no criminal record. An independent character investigation, as well as the above related affidavits tend to establish that for the ten years immediately preceding his application for relief, he has been a person of good moral character.
"... He has stated that if he were deported he would suffer extreme and unusual hardship in that he would be separated from relatives and friends, and in effect that he would find it almost impossible to maintain himself because of lack of funds. On the record, respondent appears to be qualified for suspension of deportation.”
Section 244 (a) (5) of the Act provides in pertinent part that “the Attorney General may, in his discretion, suspend deportation” in the case of a deportable alien who (1) has been present in the United States for at least ten years since the ground for his deportation arose; (2) “proves that during all of such period he was and is a person of good moral character”; and (3) is one “whose deportation would, in the opinion of the Attorney General, result in exceptional and extremely unusual hardship.”
In his petition for a writ of habeas corpus petitioner alleged, “Upon information and belief," that the "confidential information” considered by the special inquiry officer, and later by the Board of Immigration Appeals, was nothing more than the fact that petitioner’s name had appeared on a list circulated by the American Committee for the Protection of the Foreign Born, an organization which had been designated subversive by the Attorney General, ex parte. Petitioner claimed that “Solely by reason of [his] name appearing on said list, his case for discretionary relief was prejudged and no fair or impartial consideration of his case was given . . . .” In its Return to the Order to Show Cause, the Government denied that the confidential information relied upon was as alleged by petitioner, and denied that the case had been prejudged. The District Court made no specific finding with respect to the character or substance of the confidential information, but it did determine that the special inquiry officer and the Board of Immigration Appeals “exercised their independent judgment in denying discretionary relief.” See Accardi v. Shaughnessy, 347 U. S. 260, 349 U. S. 280; Marcello v. Bonds, 349 U. S. 302.
Petitioner apparently abandoned this allegation and argument in the Court of Appeals. In his petition for a writ of certiorari in this Court, he indirectly raises the point again by claiming to be “entitled to a judicial hearing upon ... his allegation of fact in habeas corpus proceedings that the undisclosed and so-called confidential matter . . . was of such a character that its consideration was not authorized by applicable regulations established by the Attorney .General.” However, petitioner made no direct assertion in this Court with respect to prejudgment. In this state of the record we conclude that there is no claim of prejudgment before this Court. See n. 22, infra.
No further administrative appeal was then available to petitioner. See 8 CFR, Rev. 1952, §§ 242.61 (e), 6.1 (b) (2), 6.1 (h) (1).
8 CFR, Rev. 1952, § 242.6 quoted in part at note 3, supra. Petitioner does not suggest, nor can we conclude, that Congress expected the Attorney General to exercise his discretion in suspension cases personally. There is no doubt but that the discretion was conferred upon him as an administrator in his capacity as such, and that under his rulemaking authority, as a matter of administrative convenience, he could delegate his authority to special inquiry officers with review by the Board of Immigration Appeals. 66 Stat. 173, 8 U. S. C. § 1103.
8 CFR, Rev. 1952, § 242.54 (d).
Ibid.
Ibid.
CFR, Rev. 1952, §242.53 (c).
8 CFR, Rev. 1952, § 242.61 (a).
See notes 4 and 5, supra, and accompanying text.
Congress first provided for suspension of deportation in 1940 by adding a new provision to the Immigration Act of 1917. 54 Stat. 672, as amended, 62 Stat. 1206, 8 U. S. C. (1946 ed., Supp. V) § 155 (c). That new provision provided that “the Attorney General may . . . suspend deportation” under certain circumstances. In enacting the Immigration and Nationality Act of 1952, Congress added the phrase “in his discretion” after the words “the Attorney General may.” In an analysis of draft legislation leading up to the 1952 Act, prepared by the Immigration and Naturalization Service for the assistance of the congressional committees, it was stated that the new words were suggested “in order to indicate clearly that the grant of suspension is entirely discretionary . . . .” That analysis was considered by the congressional committees. See S. Rep. No. 1137, 82d Cong., 2d Sess., p. 3; H. R. Rep. No. 1365, 82d Cong., 2d Sess., p. 28.
As stated by Judge Learned Hand, “The power of the Attorney General to suspend deportation is a dispensing power, like a judge’s power to suspend the execution of a sentence, or the President’s to pardon a convict.” United States ex rel. Kaloudis v. Shaughnessy, 180 F. 2d 489, 491. See also S. Rep. No. 1137, 82d Cong., 2d Sess., p. 25, for an indication that suspension of deportation is a matter of grace to cover cases of unusual hardship. And see 81 Cong. Rec. 5546, 5553, 5554, 5561, 5569-5570, and 5572, where early proposed legislation for administrative suspension of deportation was variously described as a procedure for “clemency” and “amnesty,” and was compared with presidential discretion. And see S. Rep. No. 1515, 81st Cong., 2d Sess., p. 600, emphasizing that suspension of deportation is an entirely discretionary action which does not follow automatically from compliance with the formal eligibility requirements.
“. . . if in the opinion of the Board [of Parole] such release is not incompatible with the welfare of society, the Board may in its discretion authorize the release of such prisoner on parole.” (Emphasis supplied.) 18 IT. S. C. §4203. See United States v. Anderson, 76 F. 2d 375, 376; Losieau v. Hunter, 90 U. S. App. D. C. 85, 193 F. 2d 41.
A sentencing court “may suspend . . . sentence and place the defendant on probation” if it is “satisfied that the ends of justice and the best interest of the public as well as the defendant will be served thereby.” 18 U. S. C. § 3651.
“The probation service of the court shall make a presentenee investigation and report to the court before the imposition of sentence or the granting of probation . . . .” Rule 32(c)(1), Fed. Rules Crim. Proc. “The report of the presentenee investigation shall contain any prior criminal record of the defendant and such information about his characteristics, his financial condition and the circumstances affecting his behavior as may be helpful in imposing sentence or in granting probation or in the correctional treatment of the defendant, and such other information as may be required by the Court.” Rule 32 (c)(2), Fed. Rules Crim. Proc. “Before imposing sentence the court shall afford the defendant an opportunity to make a statement in his own behalf and to present any information in mitigation of punishment.” Rule 32 (a), Fed. Rules Crim. Proc.
Cf. Williams v. New York, 337 U. S. 241, where this Court held that there is no constitutional bar to setting a state criminal sentence on the basis of “out-of-court information.”
“If it appears to the Board of Parole from a report by the proper institutional officers or upon application by a prisoner eligible for release on parole, that there is a reasonable probability that such prisoner will live and remain at liberty without violating the laws, and if in the opinion of the Board such release is not incompatible with the welfare of society, the Board may in its discretion authorize the release of such prisoner on parole.” 18 U. S. C. § 4203 (a).
Note also that only certain prisoners are eligible for this discretionary relief. 18 U. S. C. § 4202.
See Knauff v. Shaughnessy, 338 U. S. 537, and Shaughnessy v. Mezei, 345 U. S. 206, upholding a regulation of the Attorney General to a similar effect which had been promulgated prior to the existence of § 235 (c) or any other such specific statutory authority.
It is not claimed that a contrary construction would render the statute and regulation unconstitutional, or even that a substantial constitutional question would thereby arise. The thrust of the argument is rather that the statute should be construed liberally in favor of the alien as a matter of statutory interpretation. In any event, in this case we have not violated our normal rule of statutory interpretation that, where possible, constructions giving rise to doubtful constitutional validity should be avoided. That rule does not authorize a departure from clear meaning. E. g., United States v. Sullivan, 332 U. S. 689, 693; Hopkins Federal Savings & Loan Assn. v. Cleary, 296 U. S. 315, 334-335. Moreover, the constitutionality of § 244 as herein interpreted gives us no difficulty. Cf. Williams v. New York, 337 U. S. 241.
Petitioner presents the claim that the decision of the special inquiry officer was void in that the “so-called confidential matter . . . was of such a character that its consideration was not authorized by applicable regulations established by the Attorney General.” See note 6, supra. To the extent that this is an allegation that the undisclosed information, if revealed, would not have been prejudicial to the public interest, petitioner is arguing that the decision violated 8 CFR, Rev. 1952, § 244.3. The Board of Immigration Appeals, the District Court, and the Court of Appeals concluded, in effect, that the special inquiry officer found that the disclosure of the information would have been contrary to public interest, safety or security. We accept that finding. Nothing more is required by the regulation.
The substance of this regulation is now incorporated in § 235 (c) of the Act, 8 U. S. C. § 1225 (c). See pp. 356-357, supra.
See note 18, supra.
Question: What is the issue area of the decision?
A. Criminal Procedure
B. Civil Rights
C. First Amendment
D. Due Process
E. Privacy
F. Attorneys
G. Unions
H. Economic Activity
I. Judicial Power
J. Federalism
K. Interstate Relations
L. Federal Taxation
M. Miscellaneous
N. Private Action
Answer:
|
songer_respond1_4_3
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "sub-state government (e.g., county, local, special district)", specifically "bureaucracy providing services". Your task is to determine which specific substate government agency best describes this litigant.
Ralph A. RENFRO; Josephine Renfro, Plaintiffs-Appellants, v. CUYAHOGA COUNTY DEPARTMENT OF HUMAN SERVICES, Defendant-Appellee.
No. 89-3007.
United States Court of Appeals, Sixth Circuit.
Argued Aug. 10, 1989.
Decided Sept. 18, 1989.
Richard J. Marco (argued), Marco & Marco, Medina, Ohio, for Ralph A. Renfro and Josephine Diane Renfro, plaintiffs-appellants.
Colleen C. Cooney (argued), Office of the Pros. Atty., Cleveland, Ohio, for Cuyahoga County Dept, of Human Services, defendant-appellee.
Before KEITH and GUY, Circuit Judges, and HULL, Chief U.S. District Judge.
The Honorable Thomas G. Hull, Chief U.S. District Judge for the Eastern District of Tennessee, sitting by designation.
KEITH, Circuit Judge:
Appellants, Ralph A. and Josephine Diane Renfro (“the Renfros”) appeal the district court’s order dismissing their § 1983 action and pendent state claims against the Cuyahoga County Department of Human Services (“DHS”). The district court dismissed the Renfros lawsuit pursuant to DHS’s motion. The district court held that the Renfros failed to state a claim on which relief could be granted. For the reasons set forth below, we AFFIRM.
I.
The Renfros are foster parents licensed by DHS. In August, 1981 a fourteen-month old girl, Sonya Ellison, was placed with the Renfros. Sonya remained with the Renfros without mishap until September, 1987. In June of 1987, DHS arranged a visit between Sonya and her natural father. According to the Renfros, this visit and the anticipation of future visits caused Sonya to experience severe emotional problems. Sonya became anxious, had nightmares and wet herself daily. As a result of this change in Sonya’s behavior, the August visit was cancelled. DHS scheduled another visit with Sonya’s father for September 11, 1987. When Sonya was picked up for the September visit, a DHS social worker discovered a three inch bruise on Sonya’s bottom. DHS immediately investigated this suspected child abuse and refused to return Sonya to the Renfro home. The Renfros claim that Sonya received the bruise when she fell off her scooter.
DHS did not conduct a hearing on Sonya’s removal until March 25, 1988, despite repeated requests from the Renfros and the guidelines of the Foster Family Manual. Dissatisfied with the hearing and the failure of DHS to return Sonya to their home, the Renfros filed this action.
II.
The Renfros contend that DHS’s investigation was incomplete and not conducted in the best interest of the child. Moreover, the Renfros argue that the six month delay in holding the required hearing and DHS’s failure to provide them with a post-hearing report summarizing the reasons for Sonya’s removal, deprived them of their constitutionally protected liberty interest without due process of law. The Renfros allege that their six year relationship with Sonya is a liberty interest entitling them to the due process protections of the United States Constitution.
While this court recognizes the strong emotional bond that might evolve in a foster care situation, we hesitate to characterize this relationship as a constitutionally protected liberty interest. The nature of the foster care relationship is distinctly different from that of the natural family; namely, it is a temporary arrangement created by state and contractual agreements. See Sherrad v. Owens, 484 F.Supp. 728 (W.D.Mich.1980), aff'd., 644 F.2d 542 (6th Cir.1981).
Under Ohio law, the rights and limitations of the foster care relationship are clearly defined. Foster parents have no mechanism to challenge the removal of a foster child from their care; they have no statutory right to a hearing either before or after the child has been removed; nor are they entitled to a written explanation for the agency’s action or an appeal. Ohio Admin.Code § 5101:2-47 (Title IV-E Program, 1988) and § 5139,23-04 (Standards for For Foster Homes; Approval, Non-Approval, Revocation Process, 1988). The temporary nature of the foster care relationship provides sufficient notice to all participants that their rights are limited. Therefore, the Renfros argument that these rigid legal guidelines ignore the special relationship which developed during the six years Sonya was in their care is insufficient to support a § 1983 action. Accordingly, the district court properly dismissed the Renfros complaint for failing to state a claim upon which relief could be granted.
The judgment of the district court is AFFIRMED.
. Since the district court properly dismissed the federal claim it was also appropriate to dismiss the pendent state claims. See United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966).
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "sub-state government (e.g., county, local, special district)", specifically "bureaucracy providing services". Which specific substate government agency best describes this litigant?
A. Police, Sheriff
B. Fire
C. Taxation
D. Human Services/Welfare/Health Care
E. Streets and Highways
F. Transportation
G. Election Processes
H. Education - Not School Board
I. Other Service Activity
J. not ascertained
Answer:
|
songer_realapp
|
B
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine whether or not the formally listed appellants in the case are the "real parties." That is, are they the parties whose real interests are most directly at stake? (e.g., in some appeals of adverse habeas corpus petition decisions, the respondent is listed as the judge who denied the petition, but the real parties are the prisoner and the warden of the prison) (another example would be "Jones v A 1990 Rolls Royce" where Jones is a drug agent trying to seize a car which was transporting drugs - the real party would be the owner of the car). For cases in which an independent regulatory agency is the listed appellant, the following rule was adopted: If the agency initiated the action to enforce a federal rule or the agency was sued by a litigant contesting an agency action, then the agency was coded as a real party. However, if the agency initially only acted as a forum to settle a dispute between two other litigants, and the agency is only listed as a party because its ruling in that dispute is at issue, then the agency is considered not to be a real party. For example, if a union files an unfair labor practices charge against a corporation, the NLRB hears the dispute and rules for the union, and then the NLRB petitions the court of appeals for enforcement of its ruling in an appeal entitled "NLRB v Widget Manufacturing, INC." the NLRB would be coded as not a real party. Note that under these definitions, trustees are usually "real parties" and parents suing on behalf of their children and a spouse suing on behalf of their injured or dead spouse are also "real parties."
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SERV-AIR, INC., Respondent.
No. 70-70.
United States Court of Appeals, Tenth Circuit.
Sept. 9, 1970.
Glen Bendixsen, Washington, D. C. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Elliott Moore and Robertamarie Kiley, Attys., N. L. R. B., on the brief), for petitioner.
Frank Carter, Enid, Okl. (Stephen Jones, Enid, Okl., on the brief), for respondent.
Before BREITENSTEIN, HILL and HOLLOWAY, Circuit Judges.
HILL, Circuit Judge.
The National Labor Relations Board is before this court petitioning for enforcement of its supplemental order issued against Serv-Air, Inc., requiring the latter to reinstate R. A. Chodrick to his former position. The order was made on a finding of an unfair labor practice by Serv-Air, in violation of section 8(a) (3) and (1) of the Act. The familiar issue posed is whether substantial evidence supports the decision that Serv-Air suspended and demoted Chodrick in violation of the Act.
R. A. Chodrick was first employed by the Company in 1960 as a hand lineman at Vance Air Force Base. About six months later he was advanced to crew chief of fire fighters. In 1964 the firemen were unionized; Chodrick joined and became a shop steward.
Chodrick has undeniably been a union activist. Since June, 1964, he has served on the union’s negotiation committee; in September, 1964, he led a union walkout; and in February, 1966, he was a leader of a group attempting to present the company with a written grievance over the training schedule. The latter incident resulted in the firing of Chodrick and six others when they refused to drill. Chodrick’s discharge was reduced to a suspension but there has been continued friction between the crew chief and his superiors.
Out of this background arose the incident relevant to this petition for enforcement. In July, 1966, the Company altered its pay procedures by depositing employee salaries in a bank rather than paying the sum directly to each employee. Because of the obvious inconvenience resulting from the change, many of the employees became upset; most considered it to be a thinly veiled attempt to coerce them into opening accounts in the bank because Serv-Air’s president was a stockholder and board member of that bank.
On August 6, 1966, two fire fighters (union members) at Vance Air Force Base left their jobs without permission, apparently to protest the change in pay procedures. For leaving their duty post each was immediately suspended. The next day Chodrick’s crew went on duty. Because men on the earlier shift had reported being bitten by bugs Chodrick’s crew, with his permission, decided to scrub down their sleeping quarters and air out their mattresses. The mattresses were taken outside — two were passed through a window resulting in about $8.00 damage — and laid out to air. The crew then went to chow.
Meanwhile, Terrell, the Assistant Fire Chief, was notified and went to the crash station. After observing the situation and apparently assuming it was a protest related to the suspension of the two union men on the previous day, he called Moxley, the Fire Chief, saying he thought he had “an incident” on his hands. Moxley told Terrell to get the Air Force Security Police, have photographs taken, and a report made. Next Terrell sought out Chodrick and requested an explanation. The reply was that the men were simply attempting to air out the mattresses to rid them of bugs.
Subsequently, Cumpston, director of base operations, asked Moxley what had caused the incident and Moxley answered: “You know as well as I know.” Then, referring to Crew Chief Chodrick, he said: “It looks like this man is continually giving us trouble. It looks like he’s come to the final point. We are going to have to take some action on the individual.” Thereafter Chodrick was suspended for a day and demoted to crash-fireman.
The Company argues that Chodrick’s union activities had nothing to do with the discipline. In their words, “he was laid off because of failure to perform as Crew Chief, his arrogant attitude, his unwillingness to follow prescribed rules and regulations established by Serv-Air, Inc., and the United States Air Force and his callous disregard for the safety of his men.”
Chief Moxley, by his testimony, presented a good case for the Company. But that testimony notwithstanding, the Examiner’s findings are supported by substantial evidence. The Examiner’s observations are clear, pertinent, and concise, and the following excerpts summarize our own conclusions.
“[Ajlthough the purport of Moxley's testimony is that in his opinion Chod-rick had been an unsatisfactory crew chief over a long period of time, Mox-ley was unable to advert to any specific misconduct or act of misfeasance on the part of Chodrick occurring later then [sic] April, 1965 (except for incidents which the Board in prior proceedings found were within the protection of the Act) other than matters which had been continuing for long periods of time.”
“The strenuous effort on the part of respondent to create the appearance of a serious dereliction by Chodrick and members of his crew from something so trivial suggests that Respondent was looking for an opportunity (and judging from the incident onto which it lached — no matter how slight or trivial) for demoting Chodrick. To the argument that the August 7 incident was merely the last straw that broke the camel’s back, it is noted that Respondent was able only to point to outdated misdeeds on the part of Chodrick to demonstrate his unfitness for his job, and several of those matters were incidents with respect to which the Board has found that the Respondent had acted unlawfully. Accordingly, I find no merit to Respondent’s defense that Chodrick was disciplined on August 7, 1966, for ‘good and just cause.’ ”
Serv-Air also charges that the Board violated its rules and regulations in denying the Company’s motions for reopening, reconsideration and rehearing of the case to permit introduction of new and material evidence. A bit of background information is necessary to fully comprehend the argument. The Board’s initial decision in this case issued June 27, 1967. On January 17, 1968, this court issued its decision in a related case, Serv-Air, Inc. v. N. L. R. B., 395 F.2d 557 (10th Cir. 1968), reversing a part of the Board’s decision and remanding that case to the Board for reconsideration. Inasmuch as some of the Board’s findings in the instant case were based on the earlier decision, enforcement proceedings were held in abeyance while the earlier decision was reconsidered. On September 4, 1969, following modification by the Board of its earlier decision, the Board sought the position of the parties as to the effect of such modification on the instant decision. On October 21, 1969, the Board issued a supplemental decision in the present case, reversing it with respect to the discharge of another employee, but reaffirming with respect to the suspension and demotion of Chodrick.
On November 21, 1969, the motions for reconsideration, rehearing and reopening of the record were filed by Serv-Air. The substance of those motions concerns findings by a federal district court in an independent civil proceeding which Serv-Air claims to be related to the same incident over which Chodrick was suspended and demoted.
Under section 10(e) of the Act we are empowered to order a remand where it is shown that the “evidence is material and there were reasonable grounds for the failure to adduce such evidence in the hearing before the Board.” That is the same test contained in the Board’s regulations.
Without considering the reasonableness of the failure to adduce the alleged new evidence, we do not consider the district court findings to be of sufficient materiality to the instant suit to call for a reopening, reconsideration or rehearing. The incident over which the civil suit was litigated occurred more than one year prior to Chodrick’s suspension and demotion. Moreover, the primary reason given for the demotion and suspension concerned only the mattress incident and not the June, 1965, occurrence. And it is of more than casual interest to us that although the Company now attaches great significance to the June, 1965, incident, the record reveals that no disciplinary action whatsoever was taken against Chief Chodrick at the time of the June, 1965, fire, or subsequently. On this state of the record we cannot justify Serv-Air’s motions and conclude that the Board was within its discretion in denying same.
Enforcement of the order of the National Labor Relations Board is hereby granted.
Question: Are the formally listed appellants in the case the "real parties", that is, are they the parties whose real interests are most directly at stake?
A. both 1st and 2nd listed appellants are real parties (or only one appellant, and that appellant is a real party)
B. the 1st appellant is not a real party
C. the 2nd appellant is not a real party
D. neither the 1st nor the 2nd appellants are real parties
E. not ascertained
Answer:
|
songer_genapel2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant.
CENTRAL FORWARDING, INC. and Household Goods Carriers’ Bureau, Inc., Petitioners, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents. EASTERN LABOR ADVISORY ASSOCIATION and Southern Tank Line Carriers, Petitioners, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents. DRUG AND TOILET PREPARATION TRAFFIC CONFERENCE, INC. and the National Small Shipments Traffic Conference, Inc., Petitioners, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents.
Nos. 81-4437, 81-4493 and 82-4019.
United States Court of Appeals, Fifth Circuit.
Feb. 28, 1983.
Opinion on Denial of Rehearing May 13, 1983.
John R. Sims, Jr., Dennis Dean Kirk, Washington, D.C., for intervenor Specialized Carriers.
Thomas M. Auchincloss, Jr., Leo C. Franey, Washington, D.C., for petitioners in No. 81 — 4437 and intervenor Steel Carriers’ Tariff Ass’n.
Leonard A. Jaskiewicz, Edward J. Kiley, Washington, D.C., for intervenor Carrier Conference-Irregular Route.
Robert E. Born, Atlanta, Ga., for intervenor National Ass’n of Specialized Carriers, Inc.
Kenneth P. Kolson, John J. Powers, III, Dept, of Justice, Kathleen V. Gunning, I.C.C., Washington, D.C., for respondents.
Keith G. O’Brien, Washington, D.C., for intervenor Intern. Broth, of Teamsters, Chauffeurs, Warehousemen and Helpers of America.
Donelan, Cleary, Wood & Maser, P.C., Frederic L. Wood, Washington, D.C., for intervenor American Frozen Food Institute.
Robert J. Bray, Jr., James J. Wankmiller, John J. McAleese, Jr., Bala Cynwyd, Pa., for amici curiae Southern Tank Line Carriers and Eastern Labor Advisory Ass’n.
John F. Wickes, Jr., Indianapolis, Ind., for amicus curiae Ferree Furniture Exp., Inc.
David E. Driggers, Denver, Colo., for amicus curiae Transystems, Inc., et al.
James D. Porterfield, Pittsburgh, Pa., for amicus curiae Pittsburgh & New England Trucking Co.
Paul D. Angenend, Austin, Tex., for amicus curiae Acme Truck Line, Inc.
Jerry Prestridge, Austin, Tex., for amicus curiae Oil Field Haulers Ass’n, Inc.
Daniel J. Sweeney, Washington, D.C., for petitioners in No. 82-4019.
Before GARZA, REAVLEY and GAR-WOOD, Circuit Judges.
REAVLEY, Circuit Judge:
These consolidated appeals challenge an Interstate Commerce Commission regulation requiring carriers to reimburse owner-operators for a portion of their fuel costs. Having concluded that the Commission exceeded its statutory authority, we set aside the regulation, suspending the effectiveness of our decision for 60 days following the date of issuance of the mandate, and remand to the Commission in order that the parties may accordingly seek leasing agreements and adjustment of rates. Although our ultimate holding is a narrow one, constrained by particular circumstances, we reach it through a broad inquiry into the rulemaking authority of the Interstate Commerce Commission, and agency rule-making in general. We write with an awareness of the importance of the case to the parties in this and future disputes.
I. BACKGROUND
The regulation in question is Ex Parte No. 311 (Sub-No. 4), Modification of The Motor Carrier Fuel Surcharge Program, 46 Fed.Reg. 50070, 365 I.C.C. 311 (served October 8, 1981) (“the regulation”). Understanding its purpose and effects requires some knowledge of industry practices and the recent history of regulation in the motor carrier field.
A. The Parties
The private parties to this suit represent the three principal segments of the regulated motor carrier industry: carriers, owner-operators, and shippers.
Under existing federal law, most forms of interstate for-hire motor transportation require operating authority from the Interstate Commerce Commission (“ICC” or “Commission”). The Commission extends operating authority through licenses known as contract carrier permits or common carrier certificates of public convenience and necessity. Carriers, as that term is used here, are parties possessing such a license. Owner-operators are the “independent truckers” of song and legend. They are persons owning one or a few trucks who lack ICC operating authority. Since they cannot transport regulated commodities in interstate commerce in their own right, they rely on two sources of business: (1) they lease their services and equipment to a carrier in order to utilize the carrier’s operating authority, or (2) they make hauls exempt from ICC regulation by transporting agricultural products (49 U.S.C. § 10526), working for a private fleet (49 U.S.C. § 10524), transporting goods intrastate (49 U.S.C. § 10525), etc. Shippers, finally, are the customers of the industry — retailers, manufacturers and others — who have goods to be transported.
In order to haul regulated commodities an owner-operator leases his truck to a carrier, who then hires the owner-operator to drive the truck. These lease arrangements are common, as independent owner-operators account for approximately 40 percent of all intercity truck traffic in this country. H. R.Rep. No. 1812, 95th Cong., 2d Sess. 5 (1978). Typically, in exchange for extending his operating authority and providing a few other services such as advertising, the carrier takes 25 percent of the gross revenue from the haul, leaving 75 percent to the owner-operator, who bears all of the costs of carrying the freight, including fuel, repairs, tolls and the like. Id. at 5-6. The lease terms vary, but the 75-25 split is very common in industry practice. The ordinary duration of the lease is from three months to one year. D. Wyckoff & D. Maister, The Owner-Operator: Independent Trucker 85 (1975). While most owner-operators are independent contractors, some are classified as employees under the national labor laws and are represented by unions.
B. Genesis of the Regulation
The current regulation is the latest in a series of actions taken by the ICC related to fuel costs. The dizzying increase in fuel prices associated with the OPEC oil embargo of 1973 had a severe impact on the trucking industry, and was in part responsible for owner-operator shutdowns in 1973-74.
The Commission took a number of actions in response to the new pace of fuel-price inflation. In Ex Parte No. 311, Expedited Procedures for Recovery of Fuel Costs, 350 I.C.C. 563 (1975), it established an expedited procedure for regulated carriers to reflect rapidly rising fuel costs in their rates in the event of a future fuel crisis. The Commission entered Special Permission No. 76-350, allowing carriers to increase rates on 10 days’ notice instead of the usual 30 days’ notice.
In the meantime, congressional hearings were initiated at various locations around the country to learn more about owner-operators and their problems. Some of the hearings are published in Regulatory Problems of the Independent Owner-Operator in the Nation's Trucking Industry: Hearings Before the Subcomm. on Activities of Regulatory Agencies of the House Comm, on Small Business: Parts I, II, III, 95th Cong., 2d Sess. (1976-78). The Commission in this case relies on a passage from the House report summarizing the findings of these hearings:
From the monies actually received (75 percent or less of the shipping rate) the owner-operator must pay for his own licensing, operation and gas tax permits which vary widely from state to state. They must also pay for the full cost of regular maintenance plus the monthly payment on his tractor and trailer which runs, on the average, of 12 to 18y2 percent interest on a 4-year plan which often is the only credit term available to him. When one recalls that the owner-operator is unable to pass on these expenses to his customer, the gravity of this problem is apparent.
The owner-operator cannot increase his income since it is fixed first by the rate charged for shipping by the carrier and secondly by his 75/25 leasing agreement with the carrier. There is little incentive for the carrier to raise rates because of the competition between licensed carriers. This is especially true, it is remembered, since the carrier gets 25 percent off the top for granting the privilege to work to the independent owner-operator. This added income provides additional income to the carrier. A carrier can lessen the cost squeeze on his rates by giving to a leased operator the same load for 75 percent of the rate and forcing the leasor [sic] to assume all costs.
The owner-operator is caught in a continuing cost crunch. His costs — fuel, lubricants, tires, overnight accommodations, etc. — continue to rise while his income remains inflexible. He is trapped by the regulatory system. If he were able to carry the same load for the full rate, he would be able to compete successfully within the system.
H.R.Rep. No. 1812, 95th Cong., 2d Sess. 6-7 (1978).
The spring of 1979 saw another dramatic rise in fuel prices that cut heavily into owner-operator incomes, resulting in more shutdowns that summer. Since most owner-operators paid their own fuel costs, their expenses were rising rapidly, while their revenue was fixed by previous lease agreements and by rates that could only be changed if carriers sought rate increases. The Commission adopted temporary measures to cope with the problems facing carriers and owner-operators.
On June 1, 1979, Special Permission No. 2620 was issued, allowing carriers to file for fuel-related rate increases in surcharge form on ten days’ notice, but requiring the full amount of the surcharge to be passed through to owner-operators that actually paid for the fuel. This measure proved inadequate because many carriers chose not to file for the surcharge or did not file quickly enough to satisfy owner-operators.
On June 15, 1979, the Commission adopted Special Permission No. 79-2800, establishing an average fuel rate increase for the nation, and allowing carriers to file for this average increase in surcharge form on one day’s notice. The surcharge was based in part on a national average of the ratio of the owner-operator’s fuel expenses to total operating revenue, and became known as the “revenue-based” surcharge. It was in effect until the latest regulation replaced it. One key element of this procedure was that regardless of whether the carrier took the full surcharge, it was required to pass through the maximum allowed surcharge to owner-operators. By its own language Special Permission No. 79-2800 was a response to a situation of “extreme urgency” in which “fuel prices are increasing at an alarming rate.” It went on to note that “[bjecause of the extreme nature of the emergency, the Commission finds that it must order that all regulated carriers, whether or not they have taken an X-311 increase, must from this date forward compensate owner-operators fully for all additional fuel expenses incurred by these operators.”
Thereafter, on a weekly basis, the Commission continued to prescribe successively higher fuel surcharges, relating them to a weekly fuel price index using the January 1, 1979 diesel fuel price of 63.5 cents per gallon as a base.
The surcharge program, an emergency scheme enacted in a time of rapidly escalating fuel prices and labor strikes, ultimately created distortions in the rate structure and did not accurately reflect fuel costs. Recognizing that “[t]he surcharge program is intended to be temporary,” the Commission initiated Ex Parte No. 311 (Sub-No. 4), Review of the Motor Carrier Fuel Surcharge Program, in a notice of proposed rulemaking served on April 11, 1980. The Commission proposed four modifications in the program and requested comments. After reviewing comments and holding hearings, it proposed a fifth modification in a notice served on July 31, 1981.
After receiving several hundred comments and hearing oral argument on the five options, the Commission adopted the current regulation, which replaces the revenue-based surcharge with a plan requiring carriers to compensate owner-operators based on a cents-per-mile formula. The regulation froze the percentage of revenue surcharge and allowed carriers to fold the amount of the surcharge into their rate structure.
Unlike its predecessors, the current regulation cannot be described as an emergency measure. It was adopted some eighteen months after the initial notice of proposed rulemaking, and was not adopted in a time of national labor unrest. Fuel prices were relatively stable as well, for the July 31 notice indicated that “[sjurcharges have been employed only in exigent circumstances such as the fuel crisis which began in the spring of 1979. The circumstances which led to the adoption of the surcharge program no longer exist. Petroleum supplies are ample at present and the price of fuel is now relatively stable.”
Furthermore, the regulatory pressures contributing to the plight of the owner-operator had eased since the time they were recognized by Congress in the hearings that ended in 1978. The Motor Carrier Act of 1980 made it much easier for an owner-operator to become a carrier himself and avoid having to pay carriers for license privileges. Section 5 of the Act substantially lessens the burden on would-be applicants for certificates of public convenience and necessity under 49 U.S.C. § 10922. See H.Rep. No. 1069, 96th Cong., 2d Sess. 12-17, reprinted in 1980 U.S.Code Cong. & Ad. News 2283, 2294-99. The new standard has been applied very liberally in favor of applicants. “During the first year of implementing the Motor Carrier Act of 1980, some 27,000 opposed motor carrier operating rights cases were decided by the ICC. In not a single case did the Commission conclude that the protestant had satisfied its statutory burden of proving that the proposed operations were inconsistent with the public convenience and necessity.” Dempsey, Congressional Intent and Agency Discretion — Never the Twain Shall Meet: The Motor Carrier Act of 1980, 58 Chi.Kent L.Rev. 1, 40 (1981).
C. The Regulation
The regulation, served on October 8,1981, phased out the existing surcharge program and replaced it with a reimbursement plan requiring carriers to reimburse owner-operators on a mileage basis. The rate of reimbursement, initially set at 14 cents per mile, is designed to assure that owner-operators are compensated for all fuel costs above 63.5 cents a gallon incurred while on carrier business. As an option, carriers can avoid the mileage compensation system by providing owner-operators with fuel or credit cards, so that the carrier absorbs all actual costs for fuel above 63.5 cents per gallon. Carriers are provided a means of obtaining a rate increase to offset increased fuel expenses.
Language from the regulation itself best explains its effect. “In establishing current standards for the recovery of fuel increases, the Commission has, in essence, affected one distinct element of the owner-operator’s compensation.” The Commission has overridden privately negotiated payment arrangements between carriers and owner-operators. “The fuel reimbursement plan delineated in this decision in effect separates owner-operator compensation for fuel costs in excess of 63.5 cents a gallon from the lease agreement.” The mileage reimbursement must be paid regardless of the terms of the lease. Furthermore, although the regulation allows changes in the base rate on which the revenue split is made under the lease to prevent double compensation, it forbids change's in leases designed to counteract the effects of the reimbursement plan. “We admonish carriers not to adjust the revenue split in the lease agreement to deprive owner-operators of payments required pursuant to the Commission’s compensation method.” Because of a perceived lack of bargaining power, the Commission concluded “that owner-operators require a measure of protection in this area and that separate agreements will not accomplish this goal.”
The regulation contemplates an ongoing reimbursement plan. For the indefinite future the mandated mileage compensation will be adjusted up or down as fuel prices dictate. The Commission has placed no limits on its power to rethink or recalculate its fuel reimbursement formula in the future, and has thus empowered itself to control compensation in the industry as it wishes.
D. Summary of Factual Circumstances
We decide this case based on the particular circumstances before us. Two key conclusions emerge from the background discussion given above.
First, the stated purpose and actual effect of Ex Parte No. 311 (Sub-No. 4) is to regulate directly compensation paid by carriers to owner-operators. The Commission is not satisfied with leaving compensation in the trucking industry to the private or collective bargaining that reigns throughout most of the American economy, because it believes that owner-operators are victims of inadequate bargaining power and inflexible leases. The fact that the compensation formula is keyed to fuel costs is of little moment, for if this regulation is valid, we fail to see how any other compensation requirement would not also be valid.
Second, this regulation cannot be described as an emergency or stop-gap measure designed to respond to a national or industry-wide crisis. It was adopted after lengthy rulemaking proceedings. There were no fuel or regulatory emergencies facing owner-operators in October of 1981, nor can the agency’s action be attributed to the immediate threat of a strike or other labor unrest. The regulation is not a temporary measure, but instead purports to regulate compensation on a permanent basis.
The authority of the Commission and the validity of this regulation must be determined with these factual circumstances in mind.
E. Issues on Appeal
The appeals come to us under 28 U.S.C. §§ 2342(5) (circuit court review of ICC regulation) and 2112(a) (transfer from other circuits). The regulation is the product of informal rulemaking under section 4 of the Administrative Procedure Act, 5 U.S.C. § 553, and is subject to review under section 10 of the Act, 5 U.S.C. § 706(2)(A)-(D):
The reviewing court shall... hold unlawful and set aside agency action... found to be—
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
(D) without observance of procedure required by law....
Not surprisingly, the twenty-seven original parties, intervenors and amici curiae have managed to find fault with and defend the regulation under each of these subsections. Those opposing the action taken by the ICC claim, for reasons too numerous to mention here, that the regulation is arbitrary and capricious, that it unconstitutionally impairs existing contracts, that it impermissibly intrudes on the jurisdiction of the National Labor Relations Board in conflict with Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962), and that inadequate notice of the agency’s action was given. Without reaching these arguments, we find that under subsection (C) the regulation is beyond the statutory authority granted to the Commission by Congress.
II. COMMISSION AUTHORITY
No one can doubt that Congress could regulate compensation levels in the trucking industry under its sweeping power to regulate interstate commerce. Nor is there doubt that Congress could delegate that power to the Commission. The question before us is not whether Congress can delegate such authority, but whether it has chosen to do so — a matter of statutory construction by and large. In answering this ultimate question we find it helpful to ask a number of subsidiary questions, all of which shed light on the bounds of an agency’s authority: (1) how broadly has Congress granted rulemaking authority to the agency; (2) how closely related to specific delegations of power is the regulation in question; (3) how dramatically does the regulation affect the private parties at which it is aimed?
These three subsidiary questions are not etched in stone, and are not intended to serve as an exhaustive list of factors that courts are obliged to examine in all disputes concerning rulemaking authority. They do, however, offer some clues of congressional intent if fairly answered.
The first two questions are self-evident in their aim. Obviously, if an agency has been granted sweeping powers, and if the regulation at issue clearly falls within the rule-making prerogatives expressly granted by statute, the court should not hesitate to conclude that Congress has authorized the regulation. On the other hand, if Congress has granted only limited powers to the agency, and the regulation bears little kinship to the rulemaking authority expressed by statute, the validity of the regulation is suspect. These two questions are easier to ask than to answer, and we address them concurrently in the remaining parts of this opinion.
The third question is not so obvious in its aim and we address it here. An inquiry into how dramatically a regulation affects the parties at which it is directed can rarely be answered precisely, and the parties themselves will usually disagree on the regulation’s impact. The reviewing court can do little more than give a gestalt reaction to the question. Nevertheless, we are convinced that the more profoundly an agency’s actions affect private parties, the more likely it is that Congress would disapprove of the action absent a clear and specific authorization by statute.
By any standard Ex Parte No. 311 (Sub-No. 4), despite its unpretentious name, asserts an awesome power over the motor carrier industry. It cannot be described as a mere procedural or housekeeping rule, nor is it a measure aimed at simply promoting or policing fair dealings among private parties. Instead it removes from the control of these parties their private determination of.one aspect of their leasing arrangements, and in effect rewrites each private agreement, to the benefit of one party and the chagrin of the other. The regulation affects tens of thousands of private parties by requiring out-of-pocket reimbursements of hundreds of millions of dollars. By directly regulating private sector compensation, the Commission has taken upon itself a task that Congress does not frequently delegate.
The Government suggests that the Commission’s regulations governing fuel cost reimbursements have been promulgated in response to congressional concern about the “cost crunch” that owner-operators have experienced in recent years. As explained above, the current regulation was promulgated several years after this concern was stated, and the regulatory constraints and fuel-price inflation that prompted the concern had subsided. Regardless, we cannot accept any suggestion that the regulation is valid because it is aimed at an evil perceived by Congress, for here the argument cuts both ways. Nothing in the legislative history suggests that Congress thought the Commission had the power to act directly on owner-operator compensation. If it be asked why, then, Congress did not itself attack the problem by specific legislation, the response is that the fact that Congress recognized a problem but chose not to act directly suggests that it would as likely disapprove as approve of the Commission’s frontal attack on the problem.
In this instance Congress has expressed considerable concern about the plight of owner-operators, and has not hesitated to enact legislation in their favor. However, Congress has never specifically authorized the Commission to require fuel reimbursements to owner-operators or to otherwise directly regulate compensation paid to owner-operators. If the Commission has this authority, it does not exist by virtue of congressional hearings and reports alone. If such power exists it is to be found by examining enacted statutes, a task to which we now turn.
The petitioners would have us strike down any regulation of leasing practices between carriers and owner-operators that is not specifically authorized by statute. The respondents would have us uphold any agency action that has a rational basis, that does not contravene any express statutory mandate, and that does not impermissibly interfere with the jurisdiction of another agency. The truth, we think, lies somewhere in between.
A. General Rulemaking Authority
The Commission contends that it had authority to promulgate the regulation under the general rulemaking authority found in 49 U.S.C. § 10321(a), which provides:
The Interstate Commerce Commission shall carry out this subtitle. Enumeration of a power of the Commission in this subtitle does not exclude another power the Commission may have in carrying out this subtitle. The Commission may prescribe regulations in carrying out this subtitle.
Removed from its statutory and historical context, this provision is practically devoid of meaning, and offers little help in determining whether the Commission is authorized to regulate compensation paid in motor transportation leasing agreements.
As a preliminary approach to construing the scope of this provision, we note that it is the product of the Revised Interstate Commerce Act of 1978. The purpose of this Act was to rewrite the Interstate Commerce Act in modern prose without effecting any substantive changes in the law. The Act succeeds admirably at simplifying the stodgy language of the previous Interstate Commerce Act, but the previous statutes, perhaps because of their baroque prose, give a better feel for the scope of ICC authority than their terse replacement. We have examined these earlier statutes, reproduced in the margin for the avid reader, and find that they give no mention of ICC authority to regulate owner-operator compensation.
Our inquiry does not end simply by noting that the general rulemaking provision does not single out owner-operator leasing and compensation arrangements as subjects for ICC regulation. In the leading case of American Trucking Associations v. United States, 344 U.S. 298, 73 S.Ct. 307, 97 L.Ed. 337 (1953) (“ATA”), the Supreme Court held that the ICC could regulate certain leasing practices between carriers and owner-operators despite the lack of any express delegation of power under the Interstate Commerce Act (“Act”). The respondents rely on language from the case where the Court found that “[o]ur function, however, does not stop with a section-by-section search for the phrase ‘regulation of leasing practices’ among the literal words of the statutory provisions.” 344 U.S. at 309, 73 S.Ct. at 314, 97 L.Ed. at 355. Despite this language, we do not read the case as granting carte blanche to the Commission over leasing practices.
The Commission rules reviewed in ATA required that contracts between owner-operators and carriers be reduced to writing, vest control of the equipment in the carrier, exceed thirty days in length, and fix the compensation of the owner-operator by a manner other than a percentage of the gross revenue. The rules also required inspection of the non-owned equipment by the carrier, testing of the driver’s familiarity with Motor Carrier Safety Regulations, and records on the use of equipment. The effect of the rules was to abolish a practice known as “trip leasing.”
The rules were justified as necessary to preserve the express statutory mandates of the Act. Trip leasing was found to encourage violation of statutory safety requirements and limitations on certified authority, and the statutory mandate to provide nondiscriminatory service. The Court also found that the use of leased equipment tended to obstruct normal rate regulation. It found that numerous statutory provisions of the Act were in jeopardy, including sections 216(b) and 218(a) (rate regulation), 204(a)(2) (safety requirements), 204(a)(1) (continuous service), 208(a) and 209(b) (observance of authorized routes and termini), and 216(d), 217(b), 218(a) and 222(c) (prohibition of rebates), and concluded that “practically the entire regulatory scheme is affected by trip leasing.” 344 U.S. at 310-12, 73 S.Ct. at 315, 97 L.Ed. at 355-57.
Under such circumstances, the Commission was held to have the authority to enforce the provisions of the Act under its general rulemaking authority found in section 204(a)(6). However, we read ATA as interpreting the general rulemaking provision to be a limited grant of authority to the Commission to carry out and enforce the express mandates of the Act. The Court did not find the provision to be a grant of power to regulate all aspects of the motor carrier industry, but instead found that “as exercised, the power under § 204(a)(6) is geared to and bounded by the limits of the regulatory system of the Act which it supplements.” 344 U.S. at 313, 73 S.Ct. at 316, 97 L.Ed. at 357.
Other Supreme Court precedents are consistent with this view. In Mourning v. Family Publications Service, Inc., 411 U.S. 356, 93 S.Ct. 1652, 36 L.Ed.2d 318 (1973), the Court upheld the authority of the Federal Reserve Board to promulgate the “Four Installment Rule” found in Regulation Z. Such authority was found to exist under the general rulemaking provision of the Truth in Lending Act, 15 U.S.C. § 1604(a) which provides:
The Board shall prescribe regulations to carry out the purposes of this subchapter. These regulations may contain... provisions... as in the judgment of the Board are necessary or proper to effectuate the purposes of this subchapter, to prevent circumvention or evasion thereof, or to facilitate compliance therewith.
In broad language the Court states:
Where the empowering provision of a statute states simply that the agency may “make... such rules and regulations as may be necessary to carry out the provisions of this Act,” we have held that the validity of a regulation promulgated thereunder will be sustained so long as it is “reasonably related to the purposes of the enabling legislation.”
411 U.S. at 369, 93 S.Ct. at 1660-61, 36 L.Ed.2d at 329-30. The opinion is clear, however, in recognizing that the regulation was aimed at carrying out specific statutory mandates requiring merchants to indicate the amount and rate of finance charges, 15 U.S.C. § 1638, and aimed at avoiding the uninformed use of credit by consumers, 15 U.S.C. § 1601. As in ATA, the Court found the regulation to be designed to enforce these express mandates:
Congress was clearly aware that merchants could evade the reporting requirements of the Act by concealing credit charges. In delegating rulemaking authority to the Board, Congress emphasized the Board’s authority to prevent such evasion. To hold that Congress did not intend the Board to take action against this type of manipulation would require us to believe that, despite this emphasis, Congress intended the obligations established by the Act to be open to evasion by subterfuges of which it was fully aware.
411 U.S. at 371, 93 S.Ct. at 1661, 36 L.Ed.2d at 330.
Similarly, the Court in Gemsco, Inc. v. Walling, 324 U.S. 244, 65 S.Ct. 605, 89 L.Ed. 921 (1945) found that the Administrator of the Wage and Hour Division of the Department of Labor was empowered under the Fair Labor Standards Act of 1938 to prohibit companies from allowing or requiring their employees to do industrial homework. Speaking of the Gemsco case, the Mourning Court said:
The Act required the Administrator to approve orders which were designed to raise the minimum wage to 40 cents an hour. While the Act did not specifically mention industrial homework, § 8(f) stated that the Administrator’s orders
“shall contain such terms and conditions as the Administrator finds necessary to carry out the purposes of such orders, to prevent the circumvention or evasion thereof, and to safeguard the minimum wage rates established therein.”
[52 Stat. 1065 (1938)]. After hearings, the Administrator determined that homework furnished “a ready means” of evading his orders, and prohibited certain companies subject thereto from employing this means of production. The Court concluded that the Administrator had not exceeded his authority under the Act, noting that a more restrictive interpretation of the enabling provision would have rendered the Act inoperable.
411 U.S. at 370, 93 S.Ct. at 1661, 36 L.Ed.2d at 330.
None of these cases suggests that general rulemaking authority empowers an agency — established to enforce and carry out a congressional act — to promulgate regulations which run far afield from the specific substantive provisions of the act. Our reading of ATA and related cases is that a general rulemaking provision should be read as a kind of necessary and proper clause. It grants considerable powers to enforce the substantive mandates of federal law governing interstate motor transportation, but is tied to and limited by those specific substantive provisions. It does not open whole new horizons on the regulatory landscape. Congress has not delegated wholesale control of all affairs of motor carriers to the Commission, and it would require more than the language of 49 U.S.C. § 10321(a) to warrant a construction of the Act to that effect.
Statutory pronouncements subsequent to ATA strongly enforce a state of the law in accord with our reading of ATA. The Motor Carrier Act of 1980 enacts numerous and important changes in the law regulating interstate motor transportation, and represents a shift in attitude on the role of government, and particularly the ICC, in regulating that industry. Section 2 of the Act, 49 U.S.C. § 10101 note, 94 Stat. 793 (1980) gives its purpose: “This Act is part of the continuing effort by Congress to reduce unnecessary regulation by the Federal Government.” Section 3(a) of the Act, id., gives the congressional findings prompting the legislation:
The Congress hereby finds that a safe, sound, competitive, and fuel efficient motor carrier system is vital to the maintenance of a strong national economy and a strong national defense; that the statutes governing Federal regulation of the motor carrier industry are outdated and must be revised to reflect the transportation needs and realities of the 1980’s; that historically the existing regulatory structure has tended in certain circumstances to inhibit market entry, carrier growth, maximum utilization of equipment and energy resources, and opportunities for minorities and others to enter the trucking industry; that protective regulation has resulted in some operating inefficiencies and some anticompetitive pricing; that in order to reduce the uncertainty felt by the Nation’s transportation industry, the Interstate Commerce Commission should be given explicit direction for regulation of the motor carrier industry and well-defined parameters within which it may act pursuant to congressional policy; that the Interstate Commerce Commission should not attempt to go beyond the powers vested in it by the Interstate Commerce Act and other legislation enacted by Congress; and that legislative and resulting changes should be implemented with the least amount of disruption to the transportation system consistent with the scope of the reforms enacted.
(Emphasis added).
The legislative history of the 1980 Act explains the section thus:
Section 3 stresses the importance to the national economy and national defense of a safe, sound, competitive, and fuel-efficient motor carrier system. It also states that, in order to achieve such a system, Congress finds it necessary to revise the statutes governing Federal regulation of the motor carrier industry. The existing regulatory structure has tended in certain circumstances to inhibit innovation and growth and has failed, in some cases, to sufficiently encourage operating efficiencies and competition.
In revising the statute, Congress also intends to give the Interstate Commerce Commission explicit direction for the regulation of the motor carrier industry and to ease that industry’s uncertainty about the future of regulation by the Commission. The Commission is admonished to stay within the powers specifically vested in it by the revised law.
In addition, this section states that Congress intends that the changes in the statutes and any resulting changes be implemented with the least amount of disruption to the transportation system as possible. •
H.R.Rep. No. 1069, 96th Cong., 2d Sess. 10-11, reprinted in 1980 U.S.Code Cong. & Ad.News 2283, 2292-93 (emphasis added).
ATA is undeniably still good law. ICC v. Brannon Systems, Inc., 686 F.2d 295, 296 (5th Cir.1982). It must, of course, be read in light of subsequent statutory developments.
We conclude that the general rule-making provision imparts power to the ICC only to enforce and carry out the specific substantive mandates enacted by Congress. Our task therefore turns to deciding whether the regulation falls within the ambit of any statutory mandate governing leasing arrangements or compensation that the Commission is authorized to enforce.
B. Regulation of Compensation
The current statutory scheme regulating interstate transportation is hard to sum up in a few sentences, for it represents nearly a century of legislation that has at different times favored railroads, motor carriers, owner-operators and the public.
Unquestionably Congress has granted enormous powers to the Commission to regulate the interstate transportation industry. Most notably, the Commission has been granted authority to regulate prices and market entry, matters normally left to market forces and subject at most to policing under the antitrust laws. Power over pricing exists by virtue of the Commission’s authority to regulate rates charged by carriers. See generally 49 U.S.C. §§ 10701-10786. Power over entry exists under the Commission’s authority to grant certificates of public convenience and necessity and other licenses. See generally 49 U.S.C. §§ 10901-10934. There are, however
Question: What is the nature of the second listed appellant whose detailed code is not identical to the code for the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_counsel
|
E
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that the defendant had inadequate counsel?" 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. Peter Thomas MESSINA, Defendant-Appellant.
No. 929, Docket 73-1423.
United States Court of Appeals, Second Circuit.
Argued May 31, 1973.
Decided June 27, 1973.
Certiorari Denied Oct. 23, 1973.
See 94 S.Ct. 286.
Robert L. Clarey, Asst. U. S. Atty. (Robert A. Morse, U. S. Atty., E. D. N. Y., L. Kevin Sheridan, Asst. U. S. Atty., of counsel), for appellee.
Julius A. Itzkowitz, New York City (Henry M. Holzer, New York City, of counsel), for defendant-appellant.
Before MOORE, FRIENDLY and FEINBERG, Circuit Judges.
PER CURIAM:
Peter Thomas Messina appeals from a judgment of conviction entered after a trial by jury in the United States District Court for the Eastern District of New York. Appellant was found guilty on Count I of a three-count indictment, which charged him with having conspired with his brother, John Messina, to sell unlawfully counterfeit plates, in violation of 18 U.S.C. §§ 474 and 371. Appellant contends on appeal that (1) Count I of the indictment was fatally defective in that it failed to charge an offense, and failed to furnish a description of the offense sufficient to enable him to prepare a defense and to protect him against future jeopardy; (2) the evidence was insufficient to warrant submission of the case to the jury; and (3) the conviction cannot stand since it was based entirely on the uncorroborated testimony of a co-conspirator. We reject all three contentions and affirm the judgment of conviction.
The facts, briefly stated, are as follows. On September 29, 1971, John Messina was arrested after attempting to sell to undercover Secret Service Agent Albert Angelone, for $35,000, aluminum photo-engraved plates for counterfeiting Ten Dollar Federal Reserve Notes. Later that same day appellant was arrested, on the basis of information provided by John Messina that his brother had provided him with the plates and a number of sample “uncut” and one “cut” counterfeit bills for sale to Agent Angelone. The two brothers were indicted on three counts. Count I, which we discuss infra, charged defendants with conspiring to sell counterfeit plates; the two substantive counts charged them with unlawful possession of plates from which counterfeit bills had been printed, in violation of 18 U.S.C. § 474; and with unlawful possession of a counterfeit Ten Dollar Reserve Note, in violation of 18 U.S.C. § 472. Prior to trial John Messina pleaded guilty to Count I and, after appellant’s trial, was given a suspended sentence and three years’ probation. John Messina testified as a government witness at appellant’s trial.
At trial the government called three witnesses: John Messina and Secret Service Agents Angelone and George J. Opfer. Appellant was the only witness for the defense. John Messina testified that appellant had invited him to join the counterfeiting venture in a telephone call made by appellant in early September, 1971. He further testified that he and his brother thereafter had engaged in a series of meetings and telephone conversations regarding the sale of the counterfeit plates; and that he, John, had met several times with Agent Angelone, who had been introduced to him by a government informant as a potential buyer of the plates. After receiving the plates from appellant, John met with Angelone to complete the sale, whereupon he was promptly arrested. Agent Angelone never met or dealt with appellant.
Agent Angelone’s testimony corroborated that of John Messina, regarding their several meetings and their agreement to sell and puchase the counterfeit plates; Angelone also testified that John Messina made several references to an unnamed accomplice during their negotiations. Agent Opfer testified that, following the arrest of the two brothers, he had overheard a conversation in which John allegedly said to his brother, “Pete, we have to cooperate, * * * [t]hey caught me red-handed with the plates”; to which Peter allegedly replied, “You are the one that got caught. Why did you get me involved. You should take your own medicine. You know what happens to stool pigeons.” (Trial Transcript at 221).
Testifying in his own defense, appellant denied having made the foregoing remarks, denied any involvement whatsoever in the enterprise, and argued that his brother was falsely implicating him in the crime as a result of fraternal animosity of long standing. He further testified that he had “records” at home to prove that he was at work during the time the events of this case occurred; and that, furthermore, he had not even been on speaking terms with his brother during the time period involved. He indicated, however, that it had not occurred to him to produce these records at trial as part of his defense. The jury chose to believe John Messina’s version of the facts, and returned a guilty verdict against appellant on Count I, the conspiracy count, while acquitting on the two substantive counts. Appellant was sentenced to three years’ imprisonment.
Count I of the indictment which appellant challenges on several grounds, provided as follows:
[Between certain dates and within the Eastern District of New York] the defendant PETER MESSINA and the defendant JOHN MESSINA did knowingly and wilfully, conspire to commit an offense against the United States in violation of Title 18, United States Code, § 474, by conspiring to sell with unlawful intent, and not under the direction of the Secretary of The Treasury or other proper office, an impression in the likeness of an obligation of the United States, to wit: a Ten Dollar Federal Reserve Note, in violation of Title 18, United States Code, § 371.
In furtherance of said conspiracy and for the purpose of accomplishing the objective thereof, the defendants committed the following acts. * * *
1. On or about the 28th day of September 1971, within the Eastern District of New York, the defendant PETER MESSINA gave the defendant JOHN MESSINA, a counterfeit plate. •* * *
Count I was based on language appearing in the sixth paragraph of 18 U.S.C. § 474.
Appellant argues first that Count I was defective in not stating the necessary elements of a crime, since it failed to negative the exception, provided in § 474, for sales made to the United States. The cases rejecting this argument are numerous. We deal here with a conspiracy count. The Supreme Court has held that such a count need only “identify the offense which the defendants conspired to commit * * * ”, and that it need not “with technical precision, state all the elements essential to the commission of the [substantive] crimes * * Williamson v. United States, 207 U.S. 425, 447, 28 S.Ct. 163, 171, 52 L.Ed. 278 (1908). In McKelvey v. United States, 260 U.S. 353, 357, 43 S.Ct. 132, 134, 67 L.Ed. 301 (1922) the Court held that “an indictment or other pleading founded on a general provision defining the elements of an offense, * * need not negative the matter of an exception made by a proviso or other distinct clause, whether in the same section or elsewhere, and * * * it is incumbent on one who relies on such an exception to set it up and establish it.” To similar effect is Edwards v. United States, 312 U.S. 473, 482-483, 61 S.Ct. 669, 85 L.Ed. 957 (1941); see also, United States v. Ramzy, 446 F.2d 1184, 1186 (5th Cir.), cert. denied, 404 U.S. 992, 92 S.Ct. 537, 30 L.Ed.2d 544 (1971); Hockenberry v. United States, 422 F.2d 171, 173 (9th Cir. 1970); Tritt v. United States, 421 F.2d 928, 929-930 (10th Cir. 1970); Smith v. United States, 106 U.S.App.D.C. 26, 269 F.2d 217, 220, cert. denied, 361 U.S. 865, 80 S.Ct. 130, 4 L.Ed.2d 108 (1959). It stretches credulity for appellant to argue that he was not fully apprised of the nature of the charge against him because the indictment failed to negative the exception provided. Quite obviously, sale to the United States of materials it needs in printing Federal Reserve Notes is not a crime; and whether or not the exception was negatived in the indictment, appellant was amply informed of the crime with which he was charged.
Appellant’s second and third challenges to the indictment — that the indictment did not furnish a sufficient description of the crime charged to enable him (1) to prepare a defense and (2) to be protected against future jeopardy— are equally without merit. We find no ambiguity in the indictment such as would support the two contentions proffered by appellant. We fail to see how it could not have been obvious to Messina that he was being charged with conspiring to sell unlawfully counterfeit plates (“impressions”) in violation of 18 U.S.C. § 474, since one of the overt acts listed in the conspiracy count was that “the defendant Peter Messina gave the defendant John Messina a counterfeit plate”; since the second count of the indictment charged appellant with possession of “plates from which a counterfeit obligation [was] printed”; and since in requesting in a bill of particulars as to Count I appellant wanted information from the government specifying “[t]he exact locations, including street addresses where the alleged illegal conspiracy took place to sell counterfeit plates.” Appellant was thus provided with specific notice regarding the crime with which he was charged, for purposes of preparing his defense. The specter of future jeopardy which appellant raises is unsupported, since there is little doubt as to the crime for which appellant was indicted and convicted.
Appellant’s remaining arguments on appeal deal with the sufficiency of the evidence upon which he was convicted. It is first alleged that the evidence was not sufficient to prove beyond a reasonable doubt that appellant was involved in the conspiracy, and that, under United States v. Taylor, 464 F.2d 240 (2d Cir. 1972) the case should not have gone to the jury. We disagree. The evidence was ample to enable a reasonable juror “fairly [to] conclude guilt beyond a reasonable doubt”, Taylor, supra, 464 F.2d at 245. In addition to the testimony of the co-conspirator, John Messina, the jury could consider the highly incriminating testimony of Agent Opfer, as well as any inferences arising from appellant’s failure to produce the “records” which he claimed substantiated his alibi.
Appellant’s final argument, that a guilty verdict may not rest upon the uncorroborated testimony of an accomplice, fails in view of this Court’s numerous decisions to the contrary. See, e. g., United States v. Ferrara, 458 F.2d 868, 871 (2d Cir.), cert. denied, 408 U.S. 931, 92 S.Ct. 2498, 33 L.Ed.2d 343 (1972); United States v. Phillips, 426 F.2d 1069, 1071 (2d Cir.), cert. denied, 400 U.S. 843, 91 S.Ct. 86, 27 L.Ed.2d 78 (1970); United States v. Corallo, 413 F.2d 1306, 1323 (2d Cir.), cert. denied, 396 U.S. 958, 90 S.Ct. 431, 24 L.Ed.2d 422 (1969). Moreover, as indicated above, there was corroborating testimony in this case.
Accordingly, we affirm the judgment of conviction.
. This section provides :
Whoever prints, photographs, or in any other manner makes or executes any engraving, photograph, print, or impression in the likeness of any such obligation or other security, or any part thereof, or sells any such engraving, photograph, print, or impression, except to the United States, or brings into the United States, any such engraving, photograph, print, or impression, except by direction of some proper officer of the United -States; * * *
* *
Shall be fined not more than $5,000 or imprisoned more than fifteen years, or both.
. Notice of Motion for Bill of Particulars and Discovery and Inspection, dated April 14, 1972, at page 1.
Question: Did the court rule that the defendant had inadequate counsel?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
songer_respond1_3_2
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed 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.
BALTIMORE & O. R. CO. et al. v. UNITED STATES et al.
No. 10741.
United States Court of Appeals Third Circuit.
Argued Jan. 19, 1953.
Decided Feb. 12, 1953.
Theodore Voorhees, Philadelphia, Pa. (Windsor F. Cousins, Philadelphia, Pa., Barnes, Dechert, Price, Myers & Rhoads, Philadelphia, Pa., on the brief), for Pennsylvania R. Co.
A. W. Hesse, Jr., Philadelphia, Pa., on the brief, for Reading Co.
L. J. Huegel, Baltimore, Md., on the brief, for Baltimore & O. R. Co.
Daniel M. Friedman, Sp. Asst, to Atty. Gen. (Newell A. Clapp, Acting Asst. Atty. Gen., Max E. Halpern, Assistant General Counsel, Joseph A. Klausner, Chief, Regulation Branch, Edward Aptaker, Attorney, Federal Maritime Board, Washington 25, D. C., on the brief), for respondents.
Paul F. Barnes, Robert H. Shertz, Shertz, Barnes & Shertz, Philadelphia, Pa., on the brief, for Pennsylvania Motor Truck Ass’n.
Before ' GOODRICH, STALEY and HASTIE, Circuit Judges.
GOODRICH, Circuit Judge.
This case involves a question of the jurisdiction of the Federal Maritime Board and also the correctness of an order issued by it. The order directed the petitioning railroads to increase from two to five days the “free time” allowed for the loading and unloading of local freight which moves bv truck over the railroad piers in Philadelphia. Free time refers to the allowance of a certain period during which no charge is made for the storage of freight on the pier. Following the expiration of free time demurrage is charged. The petitioning railroads contend that the Board is without jurisdiction to malee the order which it has made in this case. Secondly, they contend that the order is unreasonable, not supported by substantial evidence, and should be vacated by this court.
I.
We turn first to the jurisdiction question. The railroads say that in interstate and foreign commerce they are subject to the jurisdiction of the Interstate Commerce Commission. No one, we take it, doubts this. They say, further, that since they are under the jurisdiction of the Interstate Commerce Commission they are not subject to orders by the Federal Maritime Board. They are on less solid ground in urging this because the Interstate Commerce Act expressly provides that nothing, contained in it shall interfere with the jurisdiction otherwise exercisable by the Federal Maritime Board.
But why are railroads having piers in Philadelphia subject to the jurisdiction of a Board which deals with matters concerning the carriage of goods on the water?' The answer to this question is found in Section 1 of the Shipping Act, 46 U.S.C.A. 801. The words are worth quoting:
“The term ‘other person subject to this Act’ means any person not included in the term ‘common carrier by water/ carrying on the business of forwarding or furnishing wharfage, dock, warehouse, or other terminal facilities ini connection with a common carrier by water.”
The words to be emphasized are found' in the last part of the quotation and bring under the act those who furnish “wharfage, dock, * * * or other terminal facilities in connection with a common carrier by water.”
What happens is this. The railroads own piers in Philadelphia. As a matter of fact they own 13 out of a total of 18 piers which are presently in use in the city. Ships come to these piers at the invitation of the railroads. The ships do not pay for the privilege of using the piers but the railroads expect and do get freight business by having the ships unload at piers owned by them. Some of the freight which is taken off these ships is picked up by trucks which are not owned by the railroad. The railroads charge five cents per hundredweight as a “top wharfage” charge and they open their piers, under regulations imposed and policing by them, for the truckers to take away some of the freight unloaded from the ships.
In connection with ocean-going freight transportation, it is a common law obligation of the carrier to provide reasonable facilities for the loading and unloading of cargo. Water carriers coming to the Port of Philadelphia, with one exception, do not own piers. Instead, they use, among others, piers owned by the'railroads. If the railroads, for their own business reasons, provide the facilities which it is the obligation of water carriers to furnish, it becomes very clear to us that they are furnishing “wharfage, * * * in connection with a common carrier by water.” It seems to us inescapable that they come within the very terms of the Shipping Act.
That this may subject the petitioners in some respects to regulation by the Federal Maritime Board and in other respects by the Interstate Commerce Commission does not make such regulation unlawful, however much multiplicity of regulation may trouble a business enterprise. We are advised that the two regulatory bodies have joint hearings on occasions where problems presented make that desirable. Be that as it may, this case does not present so far as we are now advised any questions of a clash of jurisdiction, or contradictory rules laid down by the two regulatory bodies. If, as and when that happens, the problems raised by such a set of facts will be answered as best we can at the time. All we are deciding about that point in this decision is that these railroads who open their piers, for a charge, to truckers to take away or bring cargb to or from sea-going ships are subject to regulations under the terms of the Shipping Act. As said by the Supreme Court in California v. United States, 1944, 320 U.S. 577, 586, 64 S.Ct. 352, 356, 88 L.Ed. 322: “whatever may be the limitations implied by the phrase ‘in connection with a common carrier by water’ which modifies the grant of jurisdiction over those furnishing ‘wharfage, dock, warehouse, or other terminal facilities’, there can be no doubt that wharf storage facilities provided at ship-side for cargo which has been unloaded from water carriers are subject to regulation by the Commission.” See also United States v. American Union Transport, Inc., 1946, 327 U.S. 437, 66 S.Ct. 644, 90 L.Ed. 772.
II.
Is the Board’s order reasonable and supported by substantial evidence? When we pass from the question of jurisdiction to consider the merits of the order to which the railroads object so vigorously, we find ourselves confronted with difficulties raised by the form of the Board’s report. This report contains a summary of the complaint filed and other procedural matters in the case. It contains some statements of fact which will be discussed more fully presently. It summarizes testimony of witnesses in rather considerable detail. It states some propositions of law and then gives an overall conclusion as to what it deems the merits of the case, followed by its order.
The terms of the Administrative Procedure Act, which regulates every “adjudication required by statute to be determined on the record after opportunity for an agency hearing,” provides that: “All decisions * * * shall * * * include a statement of (1) findings and conclusions, as well as the reasons or basis therefor, upon all the material issues of fact, law, or discretion . presented on the- record * *
A similar requirement is found in the Federal Rules of Civil Procedure No. 52(a), 28 U.S.C., which requires of the trial judge in a case tried to the court to “find the facts specially and state separately its con-' elusions of law thereon * *
This court and others have held that if the trial judge makes his findings and they are sufficiently clear to see what he has found, it is not reversible error if he does not list them in a 1-, 2-, 3-, 4- order, although it is exceedingly convenient when they are so spelled out and numbered. The same latitude should be allowed a commission or board, although it may be remarked in passing that it is always helpful to a court called upon to review agency action to have the fact-findings of such agency clearly and categorically stated.
We have gone through .the report of the Board in this case and endeavored to separate its conclusions of fact from the other parts of the report mentioned above. We find fact conclusions on the business of the truckers, on the number of piers in Philadelphia, on the two-day allowance of free time by the railroad and other piers in Philadelphia, also the point at which free time begins. The findings of fact tell us the type and condition of the Philadelphia piers owned by the railroads and the charge made by them for top wharfage. We learn that there is normally no business relation between truckers and railroad representatives on the pier. We read that respondents bill shippers or consignees for pier storage charges; we learn how trucks are loaded and the hours during which they can be loaded and the way in which shippers are notified of the expected arrival of ships for export cargo.
We are- likewise given a finding that a substantial part of truck cargo is regularly unable to be removed within the two-day period, and that the piers handle a very substantial amount of truck cargo. It is found that respondents have solicited vessels to load and discharge at their piers in anticipation of freight business from this operation. The fact is found that there has been no unjust discrimination in allowance for rail cargo and truck cargo. And there is no discrimination with respect to top wharfage charges as between railroad and truck cargo-
The statements just set out we find categorically stated in narrative form in the course of the report of the Board.
But out of these findings we do not see a basis for a conclusion that the railroads have imposed unreasonable regulations in violation of Section 17 of the Shipping Act. We have read in the testimony the account of the troubles of the truckers and the rebuttal to that testimony given by the respondents. But it is not our function to find whether the picture is as black as the truckers have painted or free from blots and blemishes as the respondents’ witnesses would have the trier of the facts believe. And on this and similar pieces of testimony the only help we get from the report is the overall conclusion at the end which, as will be seen as we set it out, is almost as general as a verdict of a jury from whom special findings have not been asked. This is what the Board concludes:
“1. That the respondent railroad companies should modify their tariff regulations so as to allow not less than five days free time for inbound and outbound cargo handled over their Philadelphia piers by truck;
“2. That any storage charges on truck cargo brought to respondents’ piers at Philadelphia for shipment by water carrier, when delivered to the piers in accordance with instructions from the water carrier, should be charged against the water carrier and not against the shipper of such cargo; unless unforseen causes beyond the control of the water carrier delay the loading of such cargo, and the water carrier notifies the shipper to remove such cargo or be responsible for further storage charges.
“3. That on this record respondents’ tariff provisions relating to free time and storage on cargo shipped over respondents’ Philadelphia piers have not been shown to be otherwise unlawful.”
There is a statement toward the end of the report in which the Board says: “We agree that quite apart from delays caused by customs and other governmental inspectors, the two-day period now allowed for the ingress pick-up, and egress of such number of trucks as are necessary to pick up or deliver the very substantial amounts of truck cargo passing over respondents’ pier is, in view of the pier construction, the congestion, and the other conditions referred to, too short a time to be reasonable and proper under the circumstances. We believe the record indicates that a reasonable free time allowance on respondents’ piers for all inbound and outbound truck cargo should be not less than five days as allowed for line haul rail cargo — and this is on the assumption that the calculation of time be continued in the manner now in force.” This is perhaps less broad than the final conclusions set out in the 1-, 2-, 3- order quoted above. But even then it is a generalization which is a great deal wider than that which could be based on the facts specifically found. The parties concerned are entitled to have the reviewing tribunal have something more explicit than this type of generalization.
A more precise statement of the Board’s explicit findings of fact and the reasons for its conclusion is the more required because of what we find done in Free Time and Demurrage Charges at New York, decided by the United States Maritime Commission, October 19, 1948.
In this New York case the issue was whether a five-day free period was long enough. The Commission approached the problem from the point of view that no cause of delay for which the water carrier was not responsible could be considered in deciding the reasonableness of free time. This would include customs, government inspection, and so on. There was a good deal of testimony in the instant case that a large part of Philadelphia’s difficulties were caused by the delay in government inspection of huge shipments of wool which lay on the piers until the government inspectors found it convenient to do their work. On the issue of pier congestion the Commission in the New York case took the view that more free time would result in greater congestion. We find no explanation for the apparent difference in the point of view in that case from the views in this.
We have no desire to go over the report of the Board in the fashion of an instructor in English composition advising a high school student. On the other hand, if we are to do what we are required to do in the way of reviewing the action of an administrative agency, we must have some help in learning from that agency what is interesting discussion of the testimony of witnesses in a given case and what the agency concludes from that testimony. This report fails to give it and, therefore, will have to be sent back to the Board for appropriate findings of fact.
The order of the Board is vacated and the case returned to it for proceedings not inconsistent with this opinion.
. 49 U.S.C.A. § 920(b) (3).
. The government calls our attention to testimony of the Pennsylvania Railroad’s Assistant General Freight Agent that approximately 50% of local freight passing ; over that railroad’s piers is transported by trucks. Total freight during a nine month period in 1950 was 40,000 tons of truck freight and 134,000 tons of rail freight.
. In the case of water-borne freight, delivery is not made until the goods are landed on a wharf, segregated from other goods so as to be conveniently accessible to the consignee, and notice given to the latter. The Eddy, 1866, 5 Wall 481, 72 U.S. 481, 18 L.Ed. 486; The Titania, 2 Cir., 1904, 131 F. 229.
. The Merchants & Miners S. S. Company. Almost all piers not owned by the railroads are owned by the City of Philadelphia or the United States. One of these, however, is presently operated by the Ericsson Line.
. In Baltimore & Ohio Railroad Co. v. United States, 1939, 305 U.S. 507, 59 S.Ct. 284, 83 L.Ed. 318, an order of the Interstate Commerce Commission, direeting railroads serving the Port of New Torh to cease furnishing warehouse space to shippers at less than cost, was sustained. No question of conflicting jurisdiction between the Interstate Commerce Commission and the Maritime Commission was raised.
. Interchange of Freight at Boston Terminals, 2 U.S.M.C. 671 (1942), was a Maritime Commission hearing held jointly with the Interstate Commerce Commission, Interchange of Freight at Boston Piers, 253 I.C.C. 703. The former examined the railroads’ wharf practices, and the I.C.C. considered the absorption of wharfage charges by the railroads in their rates.
. 5 U.S.C.A. § 1004.
. 5 U.S.C.A. § 1007(b).
. This court said in Hazeltine Corp. v. General Motors Corp., 3 Cir., 1942, 131 F.2d 34, 37: “The failure of the trial judge to comply literally with the provisions of Rule 52(a), although it has been characterized as a ‘dereliction of duty’, is not always a ground for reversal and remand with instructions to make specific findings as required by the Rule. The latter course of action has been adopted ■where there was an inadequate statement of facts upon vital issues and where such factual issues were not resolved. If, however, the opinion of the trial judge afforded a ‘clear understanding of the basis of the decision below’ and resolved the major factual disputes, the mere formal requirement of separation of findings of fact and conclusions of law has been held not sufficient to necessitate a reversal.” See also Alger v. United States, 7 Cir., 1948, 171 F.2d 667; Ginsberg v. Royal Ins. Co., 5 Cir., 1950, 179 F.2d 152. Where no facts are in dispute, no findings of fact are required. Aetna Life Ins. Co. v. Meyn, 8 Cir., 1943, 134 F.2d 246; Simpson Bros. v. District of Columbia, 85 U.S.App.D.C. 275, 179 F.2d 430, certiorari denied 1950, 338 U.S. 911, 70 S. Ct. 350, 94 L.Ed. 561. And where the court adopts the enumerated findings of a Master it need not itself separately list the findings. Green Valley Creamery v. United States, 1 Cir., 1939, 108 F.2d 342.
. Capital Transit Co. v. United States, D.C.1951, 97 F.Supp. 614. See also N. L.R.B. v. State Center Warehouse & Cold Storage Co., 9 Cir., 1951, 193 F. 2d 156. But of. Atlanta & St. Andrews Bay Ry. Co. v. United States, D.C.M.D. Ala. 1952,. 104 F.Supp. 193.
. 46 U.S.C.A. § 816.
. In Girard Trust Co. v. United States, 1945, 149 F.2d 872, 873, this court remanded a judgment to the district court to make proper findings of fact and conclusions of law. The district judge had not made proper distinctions among the facts in issue but had lumped them together. Since distinctions “may be pertinent in deciding the case * * * * under the applicable law”, the findings were inadequate. If the appellate court disagrees with the trial judge on some of the legal conclusions it is thus apparent that too general findings of fact make it impossible to discover whether there are sufficient facts to support the judgment on other principles of law.
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_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".
Snyder HOWELL, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
No. 85-1078.
United States Court of Appeals, Seventh Circuit.
Argued Oct. 21, 1985.
Decided Oct. 31, 1985.
Rehearing Denied Nov. 26, 1985.
Thomas J. Wolf, Jr., P.C., Harrisburg, 111., for plaintiff-appellant.
John A. Dudeck, Jr., Asst. Atty. Gen., Tax Div., Dept, of Justice, Washington, D.C., for defendant-appellee.
Before POSNER, FLAUM and EASTER-BROOK, Circuit Judges.
EASTERBROOK, Circuit Judge.
An employer that establishes a pension plan for its employees sometimes contributes funds to the plan on top of the employees’ stated salaries. These are “employers’ contributions” and are not taxable income for the employee until the plan pays benefits to the employee. 26 U.S.C. §§ 401(a), 4Q3, 501(a). The employer alternatively may give the employees higher stated salaries but dedicate some of the salaries to the pension plan. These deductions are “employees’ contributions” and are taxable income to the employee, but corresponding amounts of pension disbursements will not be taxed. 26 U.S.C. §§ 72, 402.
The distinction between “employers’ contributions” and “employees’ contributions” to qualified pension plans is almost wholly nominal. It is a matter of indifference to an employer whether it pays $30,000 salary to the employee plus $3,000 to a pension plan on the employee’s behalf, or instead $33,000 to the employee, of which it sends $3,000 to a pension plan. In either event the employee receives $30,000 at once and $3,000 in deferred compensation, and the employer may deduct the whole $33,000 as an ordinary and necessary business expense. 26 U.S.C. § 404. But the tax consequences of the distinction are substantial. The tax on employers’ contributions is deferred until retirement, and the discounted present value of the deferred tax is less than the value of tax paid today.
The distinction between employers’ and employees’ contributions is one example of the dominance of form over substance in the tax code. Perhaps aware that there was no substance—but substantial consequences for the revenue — in this distinction, Congress allowed governmental bodies (but not private employers) to select still a third label. A section added in 1974, 26 U.S.C. § 414(h)(2), provides that if a state or local government’s contributions “are designated as employee contributions but [the] employing unit picks up the contributions, the contributions so picked up shall be treated as employer contributions.”
This statute might be read to require a state to “pick up” the contributions by assuming them, topping up the total compensation so that the employee then receives his full stated salary without a deduction for pensions. There is some support for such a view in the conference report, which describes a “pick up” plan as one “where the contribution is paid by the government, with no withholding from the employee’s salary ...” H.R.Conf.Rep. 93-1280, 93d Cong., 2d Sess. 279 (1974), U.S. Code Cong. & Admin.News 1974, pp. 4639, 5038, 5060. But a requirement that there be “no withholding” from the salary would be the same thing as. traditional “employers’ contributions.” The Internal Revenue Service therefore has treated § 414(h)(2) as an extension of the nominalism from which it grew. See Rev.Rul. 81-35, 1981-1 Cum. Bull. 255; Rev.Rul. 81-36, 1981-1 Cum. Bull. 256; Rev.Rul. 77-462, 1977-2 Cum. Bull. 358.
Under the Commissioner’s interpretation § 414(h)(2) permits a government to treat contributions as “employees’ contributions” for its own purposes but “employers’ contributions” for purposes of federal income taxation. The government establishes two “salaries.” One, for state purposes, is the base from which contributions are withheld; the other, for federal purposes, is a lower salary from which nothing is withheld; the difference between the salary for state purposes and the salary for federal purposes is the “picked up” contribution. In order to use this option, a government announces that the employees’ contributions have been “picked up” and reduces their salaries — or more accurately the amounts shown as wages on their W-2 forms. So long as the employer forecloses the employees’ “option of choosing to receive the contributed amounts directly instead of having them paid by the employer to the pension plan” (Rev.Rul. 81-35, 1981 Cum.Bull. 255), it meets the requirements of § 414(h)(2).
In 1980 Illinois enacted a statute providing that after January 1, 1981, each governmental unit “may pick up the employee contributions required” by the state’s pension laws. Ill.Rev.Stat. ch. 108½ § 18-133.1. The Commissioner then issued a private letter ruling that contributions “picked up” by the state after December 31, 1981, and paid to the retirement system would not be includable in the employees’ gross income. See CCH Private Letter Rulings, Ltr. 8209038 (Dec. 4, 1981).
Snyder Howell, a circuit judge in Williamson County, Illinois, is covered by the Judges’ Retirement System of Illinois. Some of each circuit judge’s salary is withheld and turned over to the system; the exact amount withheld depends on whether the judge is contributing to a fund for spouses’ benefits. Judge Howell’s contribution was 11% of his salary. For purposes of state law, the contributions are employees’ contributions. (The parties have not told us why, but the salaries of Illinois judges are protected against diminution during their terms in office, and the adoption of employees’ contributions may have been a method of establishing a pension plan without a nominal reduction in the judges’ salary or an increase in the net payments made by the state.) Beginning in 1982, the Comptroller of Illinois issued Howell and other judges W-2 forms showing a lower taxable salary; the Comptroller reduced Howell’s stated salary by the 11% contribution made to the Retirement System. The state did not make any other change in Howell’s compensation. Only the taxable wage reported to the IRS changed. As a result, the state withheld less tax from Howell’s check.
Judge Howell then filed amended tax returns for 1978-80. He claimed a refund for taxes paid on the sums that had been withheld from his pay and turned over to the Retirement System. These sums, he maintained, had been “picked up” by the state fully as much as the sums turned over to the Retirement System starting in 1982. There was no substantive difference and therefore, he maintained, there should be no tax difference. The IRS denied the request, and Howell filed this suit. The suit is financed by the Illinois Judges Association, whose members have an interest in common with Judge Howell.
The district court concluded that the pension contributions before 1982 were “employees’ contributions” within the meaning of federal law. State law designated them this way, and under federal law the employer’s designation controls. The proviso allowing employers to “pick up” employees’ contributions gives them a way to reverse the effect of their own designation, but they must avail themselves of the privilege. Illinois did not do so until 1982, so Howell lost. We agree with both the result and the reasoning.
The starting point for income taxation is that all sums paid to, or on behalf of, an employee are taxable income. 26 U.S.C. § 61. If Illinois were to send money directly to Judge Howell’s cousin on his behalf, the money would be Howell’s income even though he never saw it; if the state put gold coins in a safe deposit box for safekeeping until his retirement, this also would be Howell’s income. That the employee never gets the use of the money, or that the use is deferred, does not override the general principle that the full compensation for services rendered — no matter to whom paid, or when — is income immediately taxable to the person who earned the money. See United States v. Basye, 410 U.S. 441, 93 S.Ct. 1080, 35 L.Ed.2d 412 (1973) (payments to a pension plan are taxable when they vest even though not for the account of a particular person); Lucas v. Earl, 281 U.S. 111, 50 S.Ct. 214, 74 L.Ed. 731 (1930) (anticipatory assignments of income do hot reduce taxable income). Money paid to a retirement plan is money earned; that the employee has no control of the amount or the purpose to which it is devoted is an irrelevant detail. E.g., Hogan v. United States, 513 F.2d 170 (6th Cir.), cert. denied, 423 U.S. 836, 96 S.Ct. 62, 46 L.Ed.2d 55 (1975) (amounts involuntarily paid to the federal civil service retirement plan are taxable income); Zwiener v. CIR, 743 F.2d 273 (5th Cir.1984) (same for a state plan).
It would not have mattered in Lucas v. Earl, which held that the employee must pay tax on 100% of his salary even though he had irrevocably assigned 50% of it to someone else, if the employer had “reduced” the salary by 50% and “contributed” an identical amount to the other party. The matching contribution would still be compensation for services rendered, and therefore income. So, too, is any contribution to a pension plan. It therefore does not matter whether a contribution on an employee’s behalf is designated as an “employer’s contribution” — not unless Congress causes it to matter. Congress did. By allowing an employer to designate a contribution as an “employer’s contribution” and defer taxation of that income until retirement, Congress both created an opportunity and left its exercise to the employer. As an economic matter, employers’ contributions and employees’ contributions are identical; they differ in name only. Under the tax law the name matters, and the employer picks the name.
Section 414(h)(2) gives governmental employers a second name to use, in order to achieve the same result. Its function is evidently to avoid hurdles of state law that might prevent governments from designating pension contributions as “employers’ contributions” and so deferring employees’ tax. By “picking up” contributions, governments may both preserve their internal characterization of the contributions and achieve the tax benefits that private employers regularly do when they make “employers’ contributions.”
The employee is stuck with the employer’s designation, no matter what it is. Until 1981 Illinois by statute called the contributions to the Judges’ Retirement System employees’ contributions. This remitted Judge Howell to the presumptive rule that the whole salary is taxable. We could not accept his argument that the state “picked up” his contributions even before 1982 — because he never saw the money either before or after the new law and never has had any choice about its destination — without either reversing one of the most venerable principle of taxation (that he who earns the money pays the full tax) or disregarding the rule that permits the employer to designate a contribution as made by it or by the employee. Illinois made one choice for years before 1982, and now (using the right to “pick up” contributions) it has made another. Judge Howell is bound by both.
This exalts form over substance, no doubt. In tax, however, form and substance often coincide. The election between employers’ and employees’ contributions is nothing but form, and the new designation option in § 414(h)(2) simply continues the practice. A court must apply an empty distinction with the same fidelity as it applies any other. Congress may choose, if it wishes, to allow employers to control the tax consequences of pension contributions, and the selection of one device is neither better nor worse than another. “When we are dealing with statutory terms of art, the form-substance dichotomy is a false one. ‘Substance’ can only be derived from forms created by the statute itself. Here substance is form and little else; there is no natural law of reverse triangular mergers.” Joseph Isenbergh, Musings on Form and Substance in Taxation, 49 U.Chi.L.Rev. 859, 879 (1982).
The designation has consequences. Taxes deferred are taxes reduced. Similarly the change in wages reported on the W-2 form affects the amount of income from which exclusions may be made, and it reduces the adjusted gross income from which deductions may be made. One tax effect breeds another. None of this matters. The outcome of this case follows from the employer’s power to elect designations with tax effects for the employee. Before 1982 the designation in Illinois was that the contributions were made by the employee, and that is that.
Affirmed.
Whether the state must pass a statute, as opposed to using some other process of reducing wages and “picking up" contributions that is adequate for the purpose under state law, we need not decide. We also do not decide whether the Commissioner’s definition of a "pick up" is the only one he could have chosen. The IRS has discretion to interpret ambiguous terms, and the interpretation the Commissioner has placed on § 414(h)(2) is highly favorable to taxpayers. Perhaps he could have been more stingy; we need not say.
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_petitionerstate
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50
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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.
WEBB v. COUNTY BOARD OF EDUCATION OF DYER COUNTY, TENNESSEE, et al.
No. 83-1360.
Argued October 29, 1984
Decided April 17, 1985
Stevens, J., delivered the opinion of the Court, in which Burgee, C. J., and White, Powell, Rehnquist, and O’Connor, JJ., joined. Brennan, J., filed an opinion concurring in part and dissenting in part, in which Blackmun, J., joined, post, p. 244. Marshall, J., took no part in the consideration or decision of the ease.
Charles Stephen Ralston argued the cause for petitioner. With him on the briefs were Jack Greenberg, Julius LeVonne Chambers, Deborah Fins, Gail J. Wright, and Richard H. Dinkins.
S. Russell Headrick argued the cause for respondents. With him on the briefs was Thomas R. Prewitt, Sr.
Robert E. Williams and Douglas S. McDowell filed a brief for the Equal Employment Advisory Council as amicus curiae urging affirmance.
Justice Stevens
delivered the opinion of the Court.
The Civil Rights Attorney’s Fees Awards Act of 1976, 90 Stat. 2641, 42 U. S. C. § 1988, authorizes a court to award a reasonable attorney’s fee to the prevailing party in “any action or proceeding” to enforce certain statutes, including 42 U. S. C. § 1983. Petitioner was represented by counsel in local administrative proceedings and in a subsequent § 1983 action challenging the termination of his employment as a public school teacher. He ultimately prevailed and was awarded attorney’s fees for the time his lawyer spent on the judicial proceedings, but denied fees for the time spent in proceedings before the local School Board. The question presented is whether the District Court correctly excluded the time spent pursuing optional administrative proceedings from the calculation of a “reasonable fee” for the prevailing party.
In the spring of 1974 respondent Dyer County Board of Education, terminated the employment of petitioner, who was a black elementary school teacher with tenure. Petitioner retained counsel to assist him in demonstrating that his discharge was unjustified and to obtain appropriate relief.
A Tennessee statute provides that public school teachers may only be dismissed for specific causes, and guarantees a hearing on charges warranting dismissal. Petitioner sought and eventually obtained a series of hearings before the Board at which his counsel presented testimony supporting his claim that the dismissal was unjustified. Because the Board had not provided him with written charges or a preter-mination hearing, and because there was reason to believe that the Board’s action was racially motivated, petitioner also claimed that his constitutional rights had been violated. Negotiations with the Board continued until the summer of 1978 when the Board finally decided to adhere to its decision to dismiss the petitioner.
On August 13, 1979, the petitioner commenced this action in the United States District for the Western District of Tennessee. He alleged that the Board action was unconstitutional and that various civil rights statutes, 42 U. S. C. §§ 1981, 1982, 1983, 1985, afforded him a basis for monetary and equitable relief against the respondent Board and various individual defendants associated with his dismissal. The respondents filed an answer to the complaint, a motion to dismiss or for summary judgment, and certain discovery requests to which the petitioner responded. App. 21-29, 48. In March 1981, the petitioner filed with the District Court a partial record of the administrative proceedings. Id., at 30-31.
On October 14, 1981, the case was settled by the entry of a consent order awarding the petitioner $15,400 in damages and dismissing the action with prejudice. Under the consent decree, the Board also agreed to reinstate the petitioner and treat him as having resigned on the day of dismissal. Adverse comments were to be removed from his employment file. The matter of an award of attorney’s fees was reserved for future resolution by the parties or by the court.
During subsequent negotiations, the Board conceded that the petitioner was a “prevailing party” entitled to an award of attorney’s fees, but the parties could not agree on the amount of the award. After the negotiations proved unsuccessful, petitioner filed a motion for an award of fees under 42 U. S. C. § 1988. The motion was supported by an affidavit containing an itemized description of the time spent by the petitioner’s counsel on the matter from April 5, 1974, through September 11, 1981. The affidavit also set forth the attorney’s professional qualifications and his regular charges during the period involved. The petitioner requested a total fee of $21,165, based on an hourly rate of $120 and including an upward adjustment of 25% “in light of the peculiar difficulties involved in this particular kind of case and the unusual nature of the hours involved in the Board proceedings.” App. 56.
Respondents, on the other hand, took the position that a reasonable fee would not exceed $5,000. They objected to the hourly rate, to certain miscellaneous, unrecorded hours, and to the request for an upward adjustment of 25%. In addition, the respondents contended that the petitioner was not entitled to receive a fee for services performed by counsel in the administrative proceedings.
The District Court awarded a fee of $9,734.38 plus expenses. In making that award, the District Court accepted respondents’ position that the time spent in the School Board proceedings should be excluded, but otherwise resolved all issues in petitioner’s favor. The Court of Appeals affirmed. 715 F. 2d 254 (CA6 1983). Because of an apparent conflict in federal authority on the availability of attorney’s fees under § 1988 for time spent in state administrative proceedings prior to the filing of a federal civil rights action, we granted certiorari. 466 U. S. 935 (1984).
The petitioner argues that he is entitled to a fee award for the services of his counsel during the School Board hearings on either of two theories: (1) that those hearings were “proceeding[s] to enforce a provision of [§ 1983]” within the meaning of § 1988; or (2) that the time was “reasonably expended” in preparation for the court action and therefore compensable under the rationale of Hensley v. Eckerhart, 461 U. S. 424, 433 (1983). We consider each of these theories.
I
The relevant language m § 1988 is similar to language in § 706(k) of Title VII of the Civil Rights Act of 1964, which authorizes an award of attorney’s fees in “any action or proceeding” under that Title. In New York Gaslight Club, Inc. v. Carey, 447 U. S. 54 (1980), we held that §706(k) authorizes fees for work performed pursuing a state administrative remedy “to which the complainant was referred pursuant to the provisions of Title VII.” Id., at 71. The petitioner argues that the reasoning in Carey supports a comparable award for the services performed in the School Board proceedings in this case.
Carey, however, arose under a statute that expressly requires the claimant to pursue available state remedies before commencing proceedings in a federal forum. There is no comparable requirement in §1983, and therefore the reasoning in Carey is not applicable to this case. As we noted in Smith v. Robinson, 468 U. S. 992 (1984):
“The difference between Carey and this case is that in Carey the statute that authorized fees, Title VII, also required a plaintiff to pursue available state administrative remedies. In contrast, nothing in § 1983 requires that a plaintiff exhaust his administrative remedies before bringing a § 1983 suit. See Patsy v. Florida Board of Regents, 457 U. S. 496 (1982).” Id., at 1011, n. 14.
Because § 1983 stands “as an independent avenue of relief” and petitioner “could go straight to court to assert it,” ibid., the School Board proceedings in this case simply do not have the same integral function under § 1983 that state administrative proceedings have under Title VII.
Congress only authorized the district courts to allow the prevailing party a reasonable attorney’s fee in an “action or proceeding to enforce [§ 1983].” Administrative proceedings established to enforce tenure rights created by state law simply are not any part of the proceedings to enforce § 1983, and even though the petitioner obtained relief from his dismissal in the later civil rights action, he is not automatically entitled to claim attorney’s fees for time spent in the administrative process on this theory.
II
In Hensley v. Eckerhart, supra, at 424, we discussed the method to be employed by the district court in determining the amount of an attorney’s fee award to the prevailing party in a civil rights action covered by § 1988. At the outset, we emphasized that the amount to be awarded necessarily depends “on the facts of each case,” 461 U. S., at 429, and that the exercise of discretion by the district court must be respected, id., at 432. We explained that the “most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Id., at 433. We also observed that the party seeking an award of fees has the burden of submitting “evidence supporting the hours worked and rates claimed.” Ibid.
In this case, the petitioner contends that all of the hours spent by his attorney in the School Board proceedings were “reasonably expended” to enforce the rights protected by § 1983. More specifically, since witnesses were examined and opposing arguments considered and refuted in those proceedings, the work was analogous to discovery, investigation, and research that are part of any litigated proceeding, and therefore should be compensable as though the work was performed after the lawsuit was actually filed. “In sum,” petitioner concludes, “Hensley requires that fees for work done from the onset of an attorney-client relationship be awarded if that work was reasonably related to the enforcement of federal civil rights unless the hours spent would not, in the exercise of normal billing judgment, be ‘properly billed to one’s client.’ ” Brief for Petitioner 19 (quoting Hensley v. Eckerhart, 461 U. S., at 434).
The Court’s opinion in Hensley does not sweep so broadly. The time that is compensable under § 1988 is that “reasonably expended on the litigation.” Id., at 433 (emphasis added). When the attorney’s fee is allowed “as part of the costs” — to use the language of the statute — it is difficult to treat time spent years before the complaint was filed as having been “expended on the litigation” or to be fairly comprehended as “part of the costs” of the civil rights action.
Of course, some of the services performed before a lawsuit is formally commenced by the filing of a complaint are performed “on the litigation.” Most obvious examples are the drafting of the initial pleadings and the work associated with the development of the theory of the case. In this case, however, neither the trial judge nor the parties had any difficulty identifying the dividing line between the administrative proceeding and the judicial proceeding. The five years of work before August 1979 were easily separated from the two years of work thereafter. The petitioner made no suggestion below that any discrete portion of the work product from the administrative proceedings was work that was both useful and of a type ordinarily necessary to advance the civil rights litigation to the stage it reached before settlement. The question argued below was whether the time spent on the administrative work during the years before August 1979 should be included in its entirety or excluded in its entirety. On this record, the District Court correctly held that all of the administrative work was not compensable.
“We reemphasize that the district court has discretion in determining the amount of a fee award.” Id., at 437. When such an award is appealed, the reviewing court must evaluate its reasonableness with appropriate deference. Considering the governing legal principles, the petitioner’s burden of establishing his entitlement to the requested fee, and the evidence and arguments presented below, we conclude that the District Court’s decision to deny any fees for time spent pursuing optional administrative remedies was well within the range of reasonable discretion.
Accordingly, the judgment of the Court of Appeals is affirmed.
It is so ordered.
Justice Marshall took no part in the consideration or decision of this case.
In relevant part, § 1988 provides:
“In any action or proceeding to enforce a provision of §§ 1981, 1982, 1983, 1985 and 1986 of this title, title IX of Public Law 92-318, or title VI of the Civil Rights Act of 1964, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.”
Tenn. Code Ann. §49-5-511(a) (1983) (“No teacher shall be dismissed . . . except as provided in this part. . . . The causes for which a teacher may be dismissed are as follows: incompetence, inefficiency, neglect of duty, unprofessional conduct, and insubordination”); §49-5-512 (“A teacher, having received notice of charges against him, may . . . demand a hearing before the board”).
The petitioner contended that he had been discharged, in part, because of the complaints of white parents about his administration of corporal punishment to their children. He claimed that no other teacher in Dyer County engaging in such activities had ever been reprimanded, and that he had been singled out for punishment because of his race. App. 8-9.
Specifically, the petitioner sought reinstatement, backpay, and $1 million in damages. On behalf of a class consisting of all black teachers and black applicants for teaching positions, the petitioner also sought monetary and equitable relief against the Board’s allegedly discriminatory employment practices. Id., at 14-17.
Id., at 32-34.
Id., at 39-55. The time schedule submitted by the petitioner was a reconstruction of the hours his counsel spent on the matter. Tr. of Fee Hearing 10. Contemporaneously recorded time sheets are the preferred practice. See Hensley v. Eckerhart, 461 U. S. 424, 441 (1983) (BURGER, C. J., concurring). The schedule detailed a “total” of 141.1 hours of which 82.8 hours are specifically attributable to the administrative proceedings which finally terminated in August 1978. The balance of 58.3 hours has been treated by the parties and the courts below as having been spent in connection with the action in federal court.
Counsel’s affidavit stated his regular hourly charges for routine commercial work were $60 in 1974-1976, $90 in 1977-1979, $105 in 1980, and $120 in 1981. App. 55. Two expert witnesses testified for the petitioner that the request of $120 per hour for 141.1 hours was reasonable. Tr. of Fee Hearing 3-23, 30-46.
The respondent’s three experts offered varying opinions on the reasonable hourly fee which was said to be between $50 and $100 for the administrative hearings and between $60 and $100 for the court proceedings. See App. 63-72; Tr. of Fee Hearing 108-114.
In calculating the fee, the District Court applied an hourly rate of $125 to the 58.3 hours that were not recorded as having been spent on the administrative proceedings. The court allowed the 25% upward adjustment sought by the petitioner even though he did not prevail on the class action allegations in his complaint and received only a small portion of the damages'sought. The court also awarded $625 (5 hours) for the time spent litigating the fee application.
The respondents unsuccessfully challenged the District Court’s calculations on appeal. 715 F. 2d, at 259-260. Although the District Court rendered the award without the guidance of this Court’s decisions in Hensley v. Eckerhart, 461 U. S. 424 (1983), and Blum v. Stenson, 465 U. S. 886 (1984), the respondents did not file a petition for certiorari from the adverse decision of the Court of Appeals, and our review of the District Court’s calculations consequently is limited to its denial of fees for the time spent on the hearings before the School Board.
Compare Ciechon v. City of Chicago, 686 F. 2d 511, 524-525 (CA7 1982), with 715 F. 2d 254 (CA6 1983) (case below), Horacek v. Thone, 710 F. 2d 496, 499-500 (CA81983), Latino Project, Inc. v. City of Camden, 701 F. 2d 262, 264-265 (CA3 1983), Estes v. Tuscaloosa County, 696 F. 2d 898, 900 (CA111983) (per curiam), Redd v. Lambert, 674 F. 2d 1032, 1036-1037 (CA5 1982), and Blow v. Lascaris, 668 F. 2d 670, 671 (CA2) (per curiam), cert. denied, 459 U. S. 914 (1982). See also Bartholomew v. Watson, 665 F. 2d 910, 912-914 (CA9 1982); Brown v. Bathke, 588 F. 2d 634, 638 (CA8 1978).
See n. 1, supra.
78 Stat. 261, 42 U. S. C. § 2000e-5(k) (“In any action or proceeding under [Title VII] the court, in its discretion, may allow the prevailing party, other than the [Equal Employment Opportunity] Commission or the United States, a reasonable attorney’s fee as part of the costs . .
As we explained in Carey:
“It is clear from this scheme of interrelated and complementary state and federal enforcement that Congress viewed proceedings before the EEOC and in federal court as supplements to available state remedies for employment discrimination. Initial resort to state and local remedies is mandated, and recourse to the federal forums is appropriate only when the State does not provide prompt or complete relief.” 447 U. S., at 65.
Of course, competent counsel will be motivated by the interests of the client to pursue state administrative remedies when they are available and counsel believes that they may prove successful. We cannot assume that an attorney would advise the client to forgo an available avenue of relief solely because § 1988 does not provide for attorney’s fees for work performed in the state administrative forum.
This interpretation of § 1988 is consistent with the numerous references in its legislative history to promoting the enforcement of the civil rights statutes “in suits,” “through the courts” and by “judicial process.” See, e. g., S. Rep. No. 94-1011, pp. 2, 6 (1976); H. R. Rep. No. 94-1558, p. 1 (1976). Cf. Burnett v. Grattan, 468 U. S. 42, 50 (1984) (“[T]he dominant characteristic of civil rights actions” is that “they belong in court”).
See also Fed. Rule Civ. Proc. 27 (providing a procedure for preserving testimony before the bringing of a federal cause of action).
Indeed, in the 11 months between the late summer of 1978, when the adverse decision in the administrative proceeding became final, and' the summer of 1979, when the petitioner brought this civil rights action, less than one-quarter hour was spent by counsel on the case — to write a letter renewing a previous settlement offer. App. 47.
Justice BRENNAN suggests that the petitioner’s filing of the transcript of the administrative hearings in the record of the civil rights action might justify an award of attorney’s fees, in part, because that transcript substituted for the affidavits the petitioner would have had to file in response to the motion for summary judgment. Post, at 255. That motion, however, was filed only by three of the individual defendants, and addressed a statute of limitations defense. App. 27. On this record, we find no indication that the 82.8 hours spent in the administrative proceeding were in any way equivalent to the time that would have been spent preparing the affidavits necessary to respond to this summary judgment motion, or that any part of the administrative record was necessary for that purpose. Moreover, the District Court judge’s decision on all other fee questions was extremely favorable to the petitioner, and it is quite probable that this decision was influenced by counsel’s extensive experience representing petitioner before the School Board. A remand would only serve to prolong “what must be one of the least socially productive types of litigation imaginable: appeals from awards of attorney’s fees, after the merits of a case have been concluded, when the appeals are not likely to affect the amount of the final fee.” Hensley v. Eckerhart, 461 U. S., at 442 (Brennan, J., concurring in part and dissenting in part).
We also reemphasize that the district court’s consideration of a fee petition “should not result in a second major litigation.” Hensley v. Eckerhart, supra, at 437. The District Court Judge in this case quite properly admonished the parties to limit adversary hostilities and to avoid excessive cross-examination of fee witnesses. E. g., Tr. of Fee Hearing 141.
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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songer_appel2_8_2
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A
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed appellant. The nature of this litigant falls into the category "miscellaneous". Your task is to determine which of the following categories best describes the litigant.
Joe Rodger NEWELL, Jr., individually and as natural parent and guardian of minor Joe Rodger Newell, III., Plaintiff-Appellant, v. PRUDENTIAL INSURANCE COMPANY OF AMERICA, Defendant-Appellee.
No. 89-8634.
United States Court of Appeals, Eleventh Circuit.
June 28, 1990.
James Lee Ford, Ford & Haley, Atlanta, Ga., for plaintiff-appellant.
Ben Kingree, III., Carter & Ansley, Atlanta, Ga., for defendant-appellee.
Before FAY and COX, Circuit Judges, and TUTTLE, Senior Circuit Judge.
FAY, Circuit Judge:
This appeal addresses the issue of the fiduciary obligations of an ERISA trustee that is also an insurance company. Plaintiff-appellant Newell and his family had health insurance coverage under his employer’s group contract with defendant-appellant The Prudential Insurance Company of America (Prudential). When Newell’s son suffered a medical problem requiring extended hospitalization, however, Prudential denied the greater part of the claim, declaring that its review of the medical records revealed that Newell’s claim contained charges excludable under the policy. After unsuccessfully appealing Prudential’s decision, Newell sued Prudential in Georgia state court. Prudential removed the case to federal court on the dual bases of diversity and federal question jurisdiction, the latter basis derived from the fact that Newell’s claims were governed entirely by the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001, et seq., which preempted Newell’s state causes of action. The district court ruled in favor of Prudential, holding that Prudential did not violate ERISA as a matter of law in authorizing a Prudential employee to make the determination of whether or not charges were excludable, that Prudential did not arbitrarily or capriciously deny the majority of Newell’s claim for benefits, and that Prudential provided sufficient notice to Newell of its denial of his claims. We AFFIRM the district court on the first two issues; we REVERSE and REMAND for further findings on the matter of notice.
I.
At all times relevant to this case, Joe Rodger Newell was an employee of Massey Fair Ingredient Sales, Inc. He and his family participated in Massey Fair’s group insurance policy No. GSP-86888M with Prudential, under which they received term life, accidental death or dismemberment, and major medical insurance. The health insurance policy contains several limitations on eligible charges; most pertinent to this case is the following paragraph in the section entitled “Generally Excluded Charges”:
■The term “Generally Excluded Charges” is used only in a health care expense Coverage. When it is used, it includes all of the following....
(3) Charge for Unnecessary Services or Supplies: A charge for services or supplies, including tests and check-up exams, that are not needed for medical care of a diagnosed Sickness or Injury. To be considered “needed”, a service or supply must meet all of these tests:
(a) It is ordered by a Doctor.
(b) It is commonly and customarily recognized throughout the Doctor’s profession as appropriate in the treatment of the Sickness or Injury.
(c) It is neither educational nor experimental in nature.
(d) It is not furnished mainly for the purpose of medical or other research. Also, in the case of a Hospital stay, the length of the stay and Hospital services and supplies will be considered “needed” only to the extent Prudential determines them to be:
(a) related to the treatment of the Sickness or Injury; and
(b) not allocable to the scholastic education or vocational training of the patient.
Plaintiffs Exh. 1 at 6 [GCS 1011-(CR 011C>-1].
The policy also carries a Pre-Admission and Concurrent Review Service (PACRS) rider. As described by the district court in its factual findings,
[t]he rider provides that the general policy includes the tests for determination of need. However, pursuant to the rider, claimants must request that Prudential make a “determination of need.” A determination of need is “a determination by Prudential, under the terms of the Coverage, that approves or disapproves a day or days of Inpatient Hospital Stay ... as needed for medical care of a diagnosed Sickness or Injury.” [Plaintiff’s Exh. 1 at] 45. The determination of need is to be made prior to admission. If Prudential finds “medical necessity” for admission, it will inform the doctor and the hospital, by phone, of the number of days of inpatient hospital stay that Prudential approves. The Policy provides that written notice will be sent to the claimant, the doctor and the hospital, indicating the number o[f] pre-authorized days.
The Policy also provides that it may be possible to extend the number of days of inpatient hospital stay that Prudential approves as needed for the medical care of the patient’s condition; upon request being made, Prudential will make a new determination of need upon information received [from] the doctor.
Newell v. Prudential Ins. Co. of America, 725 F.Supp. 1233, 1235-36 (N.D.Ga.1989).
During the fall of 1986, it became apparent that Newell’s son, Joe III, nicknamed “Bear,” had a substance abuse problem and suffered from related depression. At first Bear underwent outpatient therapy, but after two months, his attending physician, Dr. Schmits, determined that Bear would be best served by intensive inpatient treatment. Bear was admitted on December 2, 1986, to Greenleaf Center Inc. (Greenleaf), a hospital that provides health care for people with psychiatric or substance abuse problems and has a specialized inpatient program for adolescents with such disorders.
On the day of Bear’s admission, Cindy Sedman, the admissions and discharge coordinator for Greenleaf, contacted Prudential to find out about Bear’s coverage. She learned that Bear was in fact covered under the policy, but that PACRS would have to make a determination of need for the inpatient hospital stay. Sedman then called PACRS and orally informed them of the estimated length of hospitalization, the diagnosis, and the treatment plan. On December 4, 1986, PACRS sent a form letter to Dr. Schmits confirming Bear’s admission and requesting the admission notes and the estimated length of stay. Sedman mailed the requested information to PACRS on the same day.
PACRS approved seven days of hospital stay on December 5, 1986, and relayed that information to Sedman on December 9, 1986. On that same date PACRS apprised Greenleaf and Dr. Schmits of the procedure to obtain extensions of approved days. A PACRS internal memorandum dated December 17, 1986, reflects that 21 additional days were certified and that Sedman was so notified by telephone. When Dr. Schmits contacted PACRS two days later to request a further extension, PACRS advised him that the policy allotted a maximum of 30 days for psychiatric treatment and that the limit had been reached. Dr. Schmits clarified to PACRS that the diagnosis comprised not merely depression, a purely psychiatric malady, but substance abuse as well. PACRS responded with a request for additional records to substantiate this “change” in diagnosis.
Upon receiving the entire chart, on December 24, 1986, PACRS pre-certified coverage through January 13, 1987, a total of 42 days. PACRS notified Sedman of this extension on December 29, 1986. PACRS internal records indicate that after January 13, 1987, the case was to be put on “retro review”; that is, no further days would be pre-authorized, but rather the entire chart would be reviewed upon Bear’s discharge and the days, services and supplies deemed necessary at that time would be approved for payment. The record is very unclear, however, about whom, if anyone, PACRS informed of the impending retro review status until long after the decision was made.
Meanwhile, Newell, having heard nothing from either Prudential or PACRS, contacted Gloria Buxton, a regional claims officer for Prudential, on December 29, 1986, to ascertain the situation regarding coverage for Bear’s hospitalization. Buxton agreed to look into the case for Newell. The record shows several Prudential internal notes indicating that Buxton’s office and Newell communicated by telephone throughout the following months, but the district court only found that Newell again heard from Buxton in a letter dated May 13, 1987.
On January 13, 1987, a Prudential employee called Sedman to notify her that the benefits for substance abuse were unlimited, subject to certification of need by Prudential. Greenleaf on the same day again was advised that Bear’s stay had been approved through January 13, 1987. After January 13, 1987, the only communication between PACRS and Greenleaf or Sedman or Dr. Schmits for the next one and a half months consisted of requests for and the submission of hospital records. No information ever went to Newell. Finally, on March 5, 1987, PACRS conducted a full review of all the records received. Dr. Jed Goldart, the staff psychiatrist at PACRS, determined that no medical necessity existed for Bear’s hospitalization after January 25,1987. PACRS sent letters to Greenleaf, Dr. Schmits and Newell on March 9, 1987, informing them of PACRS’ decision to deny benefits subsequent to January 25, 1987. The letter further advised that they could forward additional information to PACRS for supplemental review.
After the March 9, 1987, letter, there was a flurry of communication between Greenleaf and PACRS, Drs. Schmits and Goldart, Buxton and Newell, and the Prudential claims office and PACRS. Bear was discharged on April 3, 1987, at which time PACRS requested the entire record. After some difficulties with PACRS receiving the documents, PACRS finally secured the full record on April 29, 1987. On May 13, 1987, based on information obtained from Dr. Goldart, Buxton wrote Newell, essentially restating Prudential’s position that benefits would not be forthcoming for Bear’s hospitalization after January 25, 1987, because of lack of medical necessity.
On June 1, 1987, Newell’s counsel wrote a letter to Prudential demanding immediate payment for the entirety of Bear’s treatment at Greenleaf. In response, on July 7, 1987, Dr. Goldart submitted Bear’s hospital records to the American Psychiatric Association (APA) for independent review. Two psychiatrists with the APA’s Peer Review System evaluated Bear’s hospital charts and determined that inpatient treatment was not medically necessary after January 25, 1987. Prudential communicated this finding to Newell on August 30, 1987.
Newell brought suit against Prudential in state court seeking payment for the full medical treatment under Georgia law, as well as a punitive award penalizing Prudential for its alleged bad faith refusal to pay, reasonable expenses, costs and attorney’s fees, and any other appropriate relief. Prudential removed the case to federal court, asserting federal diversity jurisdiction and recognizing that Newell’s state cause of action had been preempted by ERISA and should have been instituted in federal court under ERISA. After a two-day bench trial and the submission of post-trial briefs, the district court held that Prudential had not violated its fiduciary duty nor acted arbitrarily or capriciously in denying Bear benefits after January 25, 1987. Nor did the court find insufficient Prudential’s notice to Newell of its decisions to deny benefits. The trial court also denied Newell’s motions for consideration for class certification and for leave to amend, stating that Prudential would be significantly prejudiced if the court granted these motions initiated after the case had been tried.
Subsequently, Newell made another motion to amend and also moved for judgment to be entered in his favor. In response, Prudential brought to the court’s attention Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), a Supreme Court case that modified the standard of review applicable to ERISA cases involving the denial of benefits. The court directed the parties to “file briefs addressing the impact that the change in the applicable standard of review has on this action.” Rl-29-2. After reviewing the parties’ submissions, the district court issued a second order essentially affirming its first judgment, finding that Firestone did not affect its earlier decision and that it had examined the facts under the proper standard of review. The district court additionally found that Prudential did not operate under a conflict of interest by having its employee, Dr. Goldart, decide — and later review his own decision — what services and supplies were medically necessary; therefore no heightened scrutiny was required under Firestone. Newell appeals the district court’s orders.
II.
We review the district court’s factual findings for clear error. Fed.R.Civ.P. 52(a); Pullman-Standard, v. Swint, 456 U.S. 273, 287, 102 S.Ct. 1781, 1789, 72 L.Ed.2d 66 (1982); Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318, 1321 (11th Cir.1989) (per curiam). We subject the district court’s legal conclusions to de novo review. Kirkland v. National Mortgage Network, Inc., 884 F.2d 1367, 1370 (11th Cir.1989); McDonald v. Hillsborough County School Bd., 821 F.2d 1563, 1564 (11th Cir.1987).
III.
A.
We cannot disagree with the district court’s conclusion that “Prudential did not violate ERISA as a matter of law by allowing a Prudential employee to make decisions concerning medical necessity of inpatient care.” Newell, 725 F.Supp. at 1240. Newell argues that Prudential’s procedure of having its own employee, Dr. Goldart, determine what services and supplies will be deemed medically necessary and thus eligible for payment of benefits creates an impermissible conflict of interest in violation of ERISA. ERISA particularly provides, however, that “[njothing in section 1106 of this title [which delineates prohibited transactions involving impermissible conflicts of interest] shall be construed to prohibit any fiduciary from ... serving as a fiduciary in addition to being an officer, employee, agent, or other representative of a party in interest.” 29 U.S.C.A. § 1108(c)(3) (West Supp.1990).
ERISA defines a fiduciary as one who “exercises any discretionary authority or discretionary control respecting management of [the] plan or exercises any authority or control respecting management or disposition of its assets ... or [who] has any discretionary authority or discretionary responsibility in the administration of [the] plan.” Id. at § 1002(21)(A)(i), (iii). Thus both Dr. Goldart and Prudential are fiduciaries of the group plan under which Newell was insured. “The term ‘party in interest’ means, as to an employee benefit plan[,] any fiduciary ... of such employee benefit plan_” Id. at § 1002(14)(A). Prudential falls within the definition of a party in interest. ERISA clearly excludes from the realm of the impermissible a person occupying the dual role of fiduciary and employee of a party in interest, such as Dr. Goldart. This court has ruled accordingly in cases presenting similar facts that no violation of ERISA occurred. See, e.g., Local Union 2134, U.M.W. of America v. Powhatan Fuel, Inc., 828 F.2d 710, 713 (11th Cir.1987) (no inherent conflict of interest where officer of corporation also fiduciary of corporation’s health plan); Deak v. Masters, Mates & Pilots Pension Plan, 821 F.2d 572, 580 (11th Cir.1987) (trustees breached no ERISA duties solely by having fiduciary duties to both the Union or the employer and the plan beneficiaries), cert. denied, 484 U.S. 1005, 108 S.Ct. 698, 98 L.Ed.2d 650 (1988); Evans v. Bexley, 750 F.2d 1498, 1499 (11th Cir.1985) (as fiduciary may also serve as an officer, employee or other representative of a union or employer, logic demands that the fiduciary may “fulfill the concomitant responsibilities”); see also Ashenbaugh v. Crucible Inc., 1975 Salaried Retirement Plan, 854 F.2d 1516, 1531-32 (3d Cir.1988) (plan fiduciaries’ reliance on in-house counsel to aid them in interpreting and administering the plan, rather than hiring independent counsel, not a violation of ERISA), cert. denied, — U.S. —, 109 S.Ct. 3155, 104 L.Ed.2d 1019 (1989). We therefore affirm the district court’s holding that the Prudential procedure of having its own employee make determinations of medical need does not violate ERISA as a matter of law. In rejecting this theory of liability against Prudential, we also dispose of Newell’s request for remand for consideration of class certification based on this misperceived violation of ERISA.
B.
While we are in accord with the district court in its judgment that “Prudential did not arbitrarily and capriciously deny plaintiff’s claims for benefits after January [25], 1987,” Newell, 725 F.Supp. at 1240, we must reevaluate that conclusion applying the heightened scrutiny for arbitrariness and caprice appropriate in cases involving a conflict of interest rather than the simple arbitrary and capricious standard used by the district court. The Supreme Court in Firestone clarified the standard for reviewing denials of benefits in ERISA plans, holding that
a denial of benefits challenged under § 1132(a)(1)(B)[] is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.... Of course, if a benefit plan gives discretion to an administrator or fiduciary who is operating under a conflict of interest, that conflict must be weighed as a “factor[ ] in determining whether there is an abuse of discretion.” Restatement (Second) of Trusts § 187, Comment d (1959).
Firestone, 489 U.S. at -, 109 S.Ct. at 956-57. The district court correctly concluded that because the Prudential plan in question gives Prudential some degree of discretion in determining whether charges would be deemed necessary and eligible, Firestone would sanction the continued application of the arbitrary and capricious standard to the instant case. See also Brown v. Blue Cross & Blue Shield, 898 F.2d 1556, 1558 & n. 1 (11th Cir.1990); Jett v. Blue Cross & Blue Shield, 890 F.2d 1137, 1138 (11th Cir.1989); Guy v. Southeastern Iron Workers’ Welfare Fund, 877 F.2d 37, 38 (11th Cir.1989). The district court further found that Prudential did not operate under a conflict of interest by having its employee, Dr. Goldart, render claims decisions; thus the district court saw no need to temper the arbitrary and capricious test to consider a conflict that the court believed did not exist. In this conclusion we differ.
This court declared in a most recent decision that
[o]ur task is to develop a coherent method for integrating factors such as self-interest into the legal standard for reviewing benefits determinations. This task reaches the height of difficulty in a case such as the one before us, where an insurance company serves as the deci-sionmaking fiduciary for benefits that are paid out of the insurance company’s assets....
... Because an insurance company pays out to beneficiaries from its own assets rather than the assets of a trust, its fiduciary role lies in perpetual conflict with its profit-making role as a business _ We conclude ... that a “strong conflict of interest [exists] when the fiduciary making a discretionary decision is also the insurance company responsible for paying the claims.... ” Jader v. Principal Mutual Life Ins. Co., 723 F.Supp. 1338, 1343 (D.Minn.1989).
The inherent conflict between the fiduciary role and the profit-making objective of an insurance company makes a highly deferential standard of review inappropriate.
Brown, at 1561-62. Prudential stands in a position identical to that of Blue Cross in Brown. The district court erred in holding that this case did not warrant increased examination for abuse of discretion.
This court crafted a new, more stringent standard of review when a conflict of interest has been shown to exist on the part of the fiduciary rendering benefits decisions, placing the burden on the fiduciary to “prove that its interpretation of plan provisions committed to its discretion was not tainted by self-interest” and to show that it operated “exclusively in the interests of the plan participants and beneficiaries.” Id. at 1566, 1568. This court held that “a wrong but apparently reasonable interpretation is arbitrary and capricious if it advances the conflicting interest of the fiduciary at the expense of the affected beneficiary or beneficiaries unless the fiduciary justifies the interpretation on the ground of its benefit to the class of all participants and beneficiaries.” Id. at 1566-67 (footnote omitted). In practice, this standard requires us first to determine the legally correct plan interpretation, and then, if Prudential’s interpretation differs, whether Prudential was arbitrary and capricious in employing a different interpretation. Id. at 1570.
The provisions of the PACRS rider require Prudential to make a determination of need for hospitalization upon request. According to the body of the policy, the charges associated with the hospitalization will be considered “needed” by Prudential only insofar as they are services or supplies ordered by a doctor, related to the treatment of the diagnosed ailment, commonly and customarily recognized throughout the doctor’s profession as appropriate in treating the diagnosed ailment, neither educational or experimental in nature, not furnished primarily to further any type of research, and not allocable to the scholastic education or vocational training of the patient. Upon reaching a determination of how many days should be approved as needed for the medical care of the patient’s condition, Prudential must tell the doctor and the hospital of the number of days, if any, approved and confirm this information by written notice to the employee, the doctor and the hospital. No benefits are payable for days of inpatient hospital stay not approved as needed by Prudential; such unpaid days may comprise the entire hospital stay if no days are approved.
Newell alleges that Prudential arbitrarily and capriciously failed to abide by its own policy guidelines, first in subjecting Bear’s claim to retro review, and then by denying benefits based on factors Newell maintains are extraneous to the terms of the policy. For his first assertion, Newell relies on language in the insurance booklet provided to Massey employees which states that “[t]he purpose of PACRS is to make sure that, before incurring expenses you understand the length of inpatient hospital stay that will be considered reasonably necessary under the coverages.” Plaintiff’s Exh. 2 at 10 [ (BR 010) ]. Newell interprets this language to mean that Prudential has an obligation to make any decision concerning eligibility for benefits before the hospital care is provided. We disagree.
The employee insurance booklet refers the reader to the full PACRS rider for details of the program. The PACRS rider obligates Prudential only to notify the interested parties of how many days it has approved as necessary and warns the reader that any days not so approved are not payable. In the case of Bear’s hospitalization, Prudential approved inpatient care through January 13, 1987, on December 24, 1986, and telephoned Greenleaf and Dr. Schmits with that information on December 30, 1986, well before the pre-authorized days had expired. If in fact Prudential advised the interested parties of the upcoming retro review status and that no further approved days were forthcoming until Bear’s discharge (an issue we address below), it appears to us that Newell had to be aware that any additional days of hospital stay might be considered unnecessary and unpayable. It would seem that the 42 days approved served as some indication of the period that Prudential considered “reasonably necessary under the coverages.” Id. That Prudential eventually approved only 12 of the additional 80 days Bear spent in hospital was a gamble that Newell took, not an abuse of discretion or an arbitrary interpretation of the plan by Prudential.
Newell also asserts that Dr. Goldart utilized subjective criteria outside of the tests contained in the policy to determine that much of Bear’s hospital stay was medically unnecessary. We find this charge unsupported by the record, as did the district court. Dr. Goldart in reviewing Bear’s charts from the outset personally questioned the necessity for Bear to undergo inpatient rather than outpatient treatment, as, in his experience, the information in the admissions sheets reflected no problems sufficient to warrant acute inpatient care. Nonetheless, giving the benefit of the doubt to Dr. Schmits, Dr. Goldart approved an initial seven days of hospitalization. The charts accompanying the requests for extension of approved days revealed to Dr. Goldart no need for structured inpatient supervision: Bear was under no restrictions nor was he taking any medications for his depression; his medical evaluations showed no inability to cope, no problems with cooperating with therapy or participating in the activities at Greenleaf, no inability to function normally. Instead the hospital records indicated that Bear was “responding well to treatment, was eating and sleeping well, was participating in group activities and had accepted his alcohol dependency.” Newell, 725 F.Supp. at 1239. His personal professional opinion notwithstanding, Dr. Goldart granted extensions of approved days in the end total-ling 54 days, 12 days longer than the protocol or average length of stay for people diagnosed with Bear’s condition. Dr. Gol-dart determined that any additional days of hospital stay could not be approved as needed since more than 50 days of inpatient treatment for adolescent substance abuse was not “commonly and customarily recognized throughout the Doctor’s profession as appropriate in the treatment of [substance abuse].” Plaintiff’s Exh. 1 at 6. Similarly, Dr. Goldart could not substantiate that Bear’s continued hospitalization was sufficiently related to the treatment of his substance abuse as to be considered needed under the policy. The subsequent APA review of Bear’s case confirmed the correctness of Dr. Goldart’s determination. We conclude that Dr. Goldart did apply the appropriate policy tests of need in making his determination of need and that he did not abuse his discretion in denying benefits after January 25, 1987.
C.
Finally, we cannot let stand the district court’s finding that Prudential’s failure to follow its own notification procedures did not constitute arbitrary and capricious conduct. First, the court used the more lenient abuse of discretion standard rather than the heightened inquiry befitting the conflict of interest present in this case. Second, we question the facts as found by the district court in reaching its conclusion on this issue.
As we previously noted, the PACRS rider to the Prudential policy is described in the group insurance booklet as a means of ensuring that the insured would know before incurring medical expenses how much of a contemplated hospital stay would be covered by insurance benefits. Upon receiving a properly submitted request for a determination of need, Prudential is obliged to make its determination within a reasonably prompt period of time and inform the doctor and the hospital of how many days it has approved as needed. Additionally, Prudential is to confirm this information by written notice to the hospital, the doctor and the insured. The PACRS policy mentions nothing about retro review.
The district court found that “[Prudential] did notify the Newells and Greenleaf of the pre-authorization for Joe Newell, Ill’s initial 7 days of hospitalization. However, subsequent written or oral notifications of additional days of certification were not forthcoming. Only on March 9, 1987 did [Prudential] finally meet its standard of affording proper written notification.” Newell, 725 F.Supp. at 1239. Our review of the records discloses that Newell never received any written notice of any of the approved days until he received the March 9, 1987, letter. It also appears that much telephonic dialogue took place before March 9, 1987, between Greenleaf, Schmits or Newell and various Prudential personnel regarding extensions and benefits, although the testimony varies widely about what and when information was given or received. What is certain is that the March 9, 1987, letter was the first proper notice from Prudential to Newell that Newell would be responsible for all the hospital expenses incurred after January 25, 1987.
We believe that the undue delay in notifying Newell of what length of hospital stay had been approved or disapproved and the delay in or failure to notify Newell of placing the case in retro review status constitutes arbitrary and capricious conduct on the part of Prudential. The purpose of the PACRS procedure is to allow an insured to forecast what his or her expenditures may be and to calculate what treatment he or she can afford. Had Prudential given Newell timely notice that it could not authorize any days of hospitalization past January 25, 1987, as medically necessary, he could have consulted with Dr. Schmits and Greenleaf to arrive at an alternate form of treatment that would have served Bear’s needs and at the same time would have been eligible for benefits. At the very least Newell could have decided whether or not he could afford to keep Bear in the hospital. Instead, Prudential left Newell hanging, not knowing how many days had been approved or that the type of review had changed from concurrent to retro review. The only means by which Newell could have avoided unwittingly incurring great personal debt would have been to dispute Dr. Schmits’ judgment that it was in Bear’s best interest to be hospitalized and take Bear out of Greenleaf until Prudential got around to informing him of what length of hospital stay it would approve. This court in Brown described an analogous situation of not following a doctor’s instructions to the possible detriment of one’s health in order to wait for an insurance company to authorize benefits as “dangerous if not wholly absurd,” and we agree. Brown, 898 F.2d at 1572. We hold that Prudential abused its discretion in ignoring the policy standards for providing notice to Newell and that Prudential is liable to Newell for the hospital expenses incurred between January 25, 1987, and when Prudential first informed Newell either that it had placed Bear’s case on retro review or that no benefits would be available for hospitalization after January 25, 1987. We are unable to ascertain from the conflicting testimony and documentary evidence in the record what the last day of Prudential’s liability would be; we remand to the district court for factual findings on this point.
In accordance with the foregoing, we AFFIRM the district court’s holdings that Prudential did not violate ERISA either in allowing Dr. Goldart to determine the medical necessity of inpatient care or in denying Newell’s claims for benefits after January 25, 1987. We REVERSE the district court’s holding that Prudential provided sufficient notice to Newell, rather holding Prudential liable to Newell for its arbitrary and capricious failure to provide Newell with notice within a reasonable period of time. We REMAND to the district court for factual findings regarding the period of Prudential’s liability and for other proceedings not inconsistent with this opinion.
. Elsewhere in the policy, hospital room, board, and all the daily services and supplies furnished by the hospital are encompassed in the definition of services and supplies. Plaintiffs Exh. 1 at 39 [MM R2 1007-(CR '505, BR 505)-!].
. “A civil action may be brought by a participant or beneficiary ... to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan." 29 U.S.C.A. § 1132(a)(1)(B) (West 1985).
. In actual practice PACRS makes the determinations of need and communicates the number of approved days to the doctor, hospital and insured. PACRS also transmits this information to the appropriate Prudential claims office that will actually pay out the benefits. For simplicity, we will not differentiate between PACRS and Prudential but will refer to Prudential throughout.
. The PACRS rider requires for non-emergency admissions that written requests be sent to Prudential at least a week before the hospital stay starts; telephoned requests can be made one weekday before the beginning of the hospital stay. Emergency admission requests must be made by the second weekday after the patient is admitted to hospital. Extensions of approved days can be requested by phoning Prudential sometime before the already pre-approved days end. From these provisions we conclude that Prudential generally must expect to make a determination of need within 24 to 48 hours of receiving the request in order to inform the hospital and doctor of whether the hospital stay has been approved before the hospital care has been provided.
Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "miscellaneous". Which of the following categories best describes the litigant?
A. fiduciary, executor, or trustee
B. other
C. nature of the litigant not ascertained
Answer:
|
sc_petitioner
|
029
|
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.
JENKINS v. ANDERSON, WARDEN
No. 78-6809.
Argued January 8, 1980
Decided June 10, 1980
Powell, J., delivered the opinion of the Court, in which BüRger, C. J., and White, Blacklmun, and RehNQuist, JJ., joined; and in all but Part II of which Stewart, J., joined. Stewart, J., filed a statement concurring in part and concurring in the judgment, post, p. 241. Stevens, J., filed an opinion concurring in the judgment, in Part I of which Stewart, J., joined, post, p. 241. Marshall, J., filed a dissenting opinion, in which Brennan, J., joined, post, p. 245.
Carl Ziemba, by appointment of the Court, 444 U. S. 914, argued the cause and filed a brief for petitioner.
Robert A. Derengoski, Solicitor General of Michigan, argued the cause for respondent. With him on the brief were Frank J. Kelley, Attorney General, and Thomas L. Casey, Assistant Attorney General.
Mr. Justice Powell
delivered the opinion of the Court.
The question in this case is whether the use of prearrest silence to impeach a defendant’s credibility violates either the Fifth or the Fourteenth Amendment to the Constitution.
I
On August 13, 1974, the petitioner stabbed and killed Doyle Redding. The petitioner was not apprehended until he turned himself in to governmental authorities about two weeks later. At his state trial for first-degree murder, the petitioner contended that the killing was in self-defense.
The petitioner testified that his sister and her boyfriend were robbed by Redding and another man during the evening of August 12, 1974. The petitioner, who was nearby when the robbery occurred, followed the thieves a short distance and reported their whereabouts to the police. According to the petitioner’s testimony, the next day he encountered Red-ding, who accused him of informing the police of the robbery. The petitioner stated that Redding attacked him with a knife, that the two men struggled briefly, and that the petitioner broke away. On cross-examination, the petitioner admitted that during the struggle he had tried “[t]o push that knife in [Redding] as far as [I] could,” App. 36, but maintained that he had acted solely in self-defense.
During the cross-examination, the prosecutor questioned the petitioner about his actions after the stabbing:
“Q. And I suppose you waited for the Police to tell them what happened?
“A. No, I didn’t.
“Q. You didn’t?
“A. No.
“Q. I see.
“And how long was it after this day that you were arrested, or that you were taken into custody?” Id., at 33.
After some discussion of the date on which petitioner surrendered, the prosecutor continued:
“Q. When was the first time that you reported the things that you have told us in Court today to anybody? “A. Two days after it happened.
“Q. And who did you report it to?
“A. To my probation officer.
“Q. Well, apart from him?
“A. No one.
“Q. Who?
“A. No one but my—
“Q. (Interposing) Did you ever go to a Police Officer or to anyone else?
“A. No, I didn’t.
“Q. As a matter of fact, it was two weeks later, wasn’t it?
“A. Yes.” Id., at 34.
In closing argument to the jury, the prosecutor again referred to the petitioner’s prearrest silence. The prosecutor noted that petitioner had “waited two weeks, according to the testimony — at least two weeks before he did anything about surrendering himself or reporting [the stabbing] to anybody.” Id., at 43. The prosecutor contended that the petitioner had committed murder in retaliation for the robbery the night before.
The petitioner was convicted of manslaughter and sentenced to 10 to 15 years’ imprisonment in state prison. The Michigan Court of Appeals affirmed the conviction, and the Michigan Supreme Court denied leave to appeal. The petitioner then sought a writ of habeas corpus from the Federal District Court for the Eastern District of Michigan, contending that his constitutional rights were violated when the prosecutor questioned him concerning prearrest silence. A Federal Magistrate concluded that the petition for habeas corpus relief should be denied. The District Court adopted the Magistrate’s recommendation. The United States Court of Appeals for the Sixth Circuit affirmed. 599 F. 2d 1055. This Court granted a writ of certiorari. 444 U. S. 824 (1979). We now affirm.
II
At trial the prosecutor attempted to impeach the petitioner’s credibility by suggesting that the petitioner would have spoken out if he had killed in self-defense. The petitioner contends that the prosecutor’s actions violated thb Fifth Amendment as applied to the States through the Fourteenth Amendment. The Fifth Amendment guarantees an accused the right to remain silent during his criminal trial, and prevents the prosecution from commenting on the silence of a defendant who asserts the right. Griffin v. California, 380 U. S. 609, 614 (1965). In this case, of course, the petitioner did not remain silent throughout the criminal proceedings. Instead, he voluntarily took the witness stand in his own defense.
This Court’s decision in Raffel v. United States, 271 U. S. 494 (1926), recognized that the Fifth Amendment is not violated when a defendant who testifies in his own defense is impeached with his prior silence. The defendant in Raffel was tried twice. At the first trial, a Government agent testified that Raffel earlier had made an inculpatory statement. The defendant did not testify. After the first trial ended in deadlock the agent repeated his testimony at the second trial, and Raffel took the stand to deny making such a statement. Cross-examination revealed that Raffel had not testified at the first trial. Id., at 495, n. The Court held that inquiry into prior silence was proper because “[t]he immunity from giving testimony is one which the defendant may waive by offering himself as a witness. . . . When he takes the stand in his own behalf, he does so as any other witness, and within the limits of the appropriate rules he may be cross-examined. . . .” Id., at 496-497. Thus, the Raffel Court concluded that the defendant was “subject to cross-examination impeaching his credibility just like any other witness.” Grunewald v. United States, 353 U. S. 391, 420 (1957).
It can be argued that a person facing arrest will not remain silent if his failure to speak later can be used to impeach him. But the Constitution does not forbid “every government-imposed choice in the criminal process that has the effect of discouraging the exercise of constitutional rights.” Chaffin v. Stynchcombe, 412 U. S. 17, 30 (1973). See Corbitt v. New Jersey, 439 U. S. 212, 218, and n. 8 (1978). The “ 'threshold question is whether compelling the election impairs to an appreciable extent any of the policies behind the rights involved.’ ” Chaffin v. Stynchcombe, supra, at 32, quoting Crampton v. Ohio, decided with McGautha v. California, 402 U. S. 183, 213 (1971). The Raff el Court explicitly rejected the contention that the possibility of impeachment by prior silence is an impermissible burden upon the exercise of Fifth Amendment rights. “We are unable to see that the rule that [an accused who] testifies . . . must testify fully, adds in any substantial manner to the inescapable embarrassment which the accused must experience in determining whether he shall testify or not.” 271 U. S., at 499.
This Court similarly defined the scope of the Fifth Amendment protection in Harris v. New York, 401 U. S. 222 (1971). There the Court held that a statement taken in violation of Miranda v. Arizona, 384 U. S. 436 (1966), may be used to impeach a defendant’s credibility. Rejecting the contention that such impeachment violates the Fifth Amendment, the Court said:
“Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury. . . . Haying voluntarily taken the stand, petitioner was under an obligation to speak truthfully and accurately, and the prosecution here did no more than utilize the traditional truth-testing devices of the adversary process.” 401 U. S., at 225.
See also Oregon v. Hass, 420 U. S. 714, 721-723 (1975); Walder v. United States, 347 U. S. 62, 65 (1954).
In determining whether a constitutional right has been burdened impermissibly, it also is appropriate to consider the legitimacy of the challenged governmental practice. See Chaffin v. Stynchcombe, supra, at 32, and n. 20. Attempted impeachment on cross-examination of a defendant, the practice at issue here, may enhance the reliability of the criminal process. Use of such impeachment on cross-examination allows prosecutors to test the credibility of witnesses by asking them to explain prior inconsistent statements and acts. A defendant may decide not to take the witness stand because of the risk of cross-examination. But this is a choice of litigation tactics. Once a defendant decides to testify, “[t]he interests of the other party and regard for the function of courts of justice to ascertain the truth become relevant, and prevail in the balance of considerations determining the scope and limits of the privilege against self-incrimination.” Brown v. United States, 356 U. S. 148, 156 (1958).
Thus, impeachment follows the defendant’s own decision to cast aside his cloak of silence and advances the truth-finding function of the criminal trial. We conclude that the Fifth Amendment is not violated by the use of prearrest silence to impeach a criminal defendant’s credibility.
Ill
The petitioner also contends that use of prearrest silence to impeach his credibility denied him the fundamental fairness guaranteed by the Fourteenth Amendment. We do not agree. Common law traditionally has allowed witnesses to be impeached by their previous failure to state a fact in circumstances in which that fact naturally would have been asserted. 3A J. Wigmore, Evidence § 1042, p. 1056 (Chadboum rev. 1970). Each jurisdiction may formulate its own rules of evidence to determine when prior silence is so inconsistent with present statements that impeachment by reference to such silence is probative. For example, this Court has exercised its supervisory powers over federal courts to hold that prior silence cannot be used for impeachment where silence is not probative of a defendant’s credibility and where prejudice to the defendant might result. See United States v. Hale, 422 U. S. 171, 180-181 (1975); Stewart v. United States, 366 U. S. 1, 5 (1961); Grunewald v. United States, 353 U. S., at 424.
Only in Doyle v. Ohio, 426 U. S. 610 (1976), did we find that impeachment by silence violated the Constitution. In that case, a defendant received the warnings required by Miranda v. Arizona, supra, at 467-473, when he was arrested for selling marihuana. At that time, he made no statements to the police. During his subsequent trial, the defendant testified that he had been framed. The prosecutor impeached the defendant’s credibility on cross-examination by revealing that the defendant remained silent after his arrest. The State argued that the prosecutor’s actions were permissible, but we concluded that “the Miranda decision compels rejection of the State’s position.” 426 U. S., at 617. Miranda warnings inform a person that he has the right to remain silent and assure him, at least implicitly, that his subsequent decision to remain silent cannot be used against him. Accordingly, “ ‘it does not comport with due process to permit the prosecution during the trial to call attention to his silence at the time of arrest and to insist that because he did not speak about the facts of the case at that time, as he was told he need not do, an unfavorable inference might be drawn as to the truth of his trial testimony.’ ” Id., at 619, quoting United States v. Hale, supra, at 182-183 (White, J., concurring in judgment).
In this case, no governmental action induced petitioner to remain silent before arrest. The failure to speak occurred before the petitioner was taken into custody and given Miranda warnings. Consequently, the fundamental unfairness present in Doyle is not present in this case. We hold that impeachment by use of prearrest silence does not violate the Fourteenth Amendment.
IV
Our decision today does not force any state court to allow impeachment through the use of prearrest silence. Each jurisdiction remains free to formulate evidentiary rules defining the situations in which silence is viewed as more probative than prejudicial. We merely conclude that the use of prearrest silence to impeach a defendant’s credibility does not violate the Constitution. The judgment of the Court of Appeals is
Affirmed.
Mr. Justice Stewart concurs in the judgment, agreeing with all but Part II of the opinion of the Court, and with Part I of the opinion of Mr. Justice Stevens concurring in the judgment.
The petitioner did not raise his constitutional claims during his state-court trial. Thus, the respondent argues that the rule of Wainwright v. Sykes, 433 U. S. 72 (1977), bars consideration of the petitioner’s habeas petition. But the respondent failed to raise the Sykes question in either the District Court or the Court of Appeals. Ordinarily, we will not consider a claim that was not presented to the courts below. See Dorszynski v. United States, 418 U. S. 424, 431, n. 7 (1974). Considerations of judicial efficiency demand that a Sykes claim be presented before a case reaches this Court. The applicability of the Sykes “cause”-and-“prejudice” test may turn on an interpretation of state law. See Rummel v. Estelle, 445 U. S. 263, 267, n. 7 (1980). This Court’s resolution of such a state-law question would be aided significantly by the views of other federal courts that may possess greater familiarity with Michigan law. Furthermore, application of the “cause”-and-“prejudiee” standard may tum on factual findings that should be made by a district court. Accordingly, we do not consider the Sykes issue in this case.
In Raff el, the defendant’s decision not to testify at his first trial was an invocation of his right to remain silent protected by the Fifth Amendment. In this case, the petitioner remained silent before arrest, but chose to testify at his trial. Our decision today does not consider whether or under what circumstances prearrest silence may be protected by the Fifth Amendment. We simply do not reach that issue because the rule of Raff el clearly permits impeachment even if the prearrest silence were held to be an invocation of the Fifth Amendment right to remain silent.
In Crampton v. Ohio, the Court considered a claim that a murder defendant’s right to remain silent was burdened unconstitutionally because he could not argue for mitigation of punishment without risking incrimination on the question of guilt. The Court recognized that a defendant who speaks in his own defense cannot avoid testifying fully.
“It has long been held that a defendant who takes the stand in his own behalf cannot then claim the privilege against cross-examination on matters reasonably related to the subject matter of his direct examination. See, e. g., Brown v. Walker, 161 U. S. 591, 597-598 (1896); Fitzpatrick v. United States, 178 U. S. 304, 314-316 (1900); Brown v. United States, 356 U. S. 148 (1958). It is not thought overly harsh in such situations to require that the determination whether to waive the privilege take into account the matters which may be brought out on cross-examination. It is also generally recognized that a defendant who takes the stand in his own behalf may be impeached by proof of prior convictions or the like. See Spencer v. Texas, 385 U. S. [554, 561 (1967)]; cf. Michelson v. United States, 335 U. S. 469 (1948); but cf. Luck v. United States, 121 U. S. App. D. C. 151, 348 F. 2d 763 (1965); United States v. Palumbo, 401 F. 2d 270 (CA2 1968).” 402 U. S., at 215.
The Court concluded that “the policies of the privilege against compelled self-incrimination are not offended when a defendant in a capital case yields to the pressure to testify on the issue of punishment at the risk of damaging his case on guilt.” Id., at 217. Subsequently, a petition for rehearing in Crampton was granted and the underlying state-court decision was vacated on Eighth Amendment grounds. 408 U. S. 941 (1972).
Both MR. Justice Stevens, post, at 241-242, n. 2, and Mr. Justice Marshall, post, at 252, suggest that the constitutional rule of Raffel was limited by later decisions of the Court. In fact, no Court opinion decided since Raffel has challenged its holding that the Fifth Amendment is not violated when a defendant is impeached on the basis of his prior silence. In United States v. Hale, 422 U. S. 171, 175, n. 4 (1975), the Court expressly declined to consider the constitutional question. The decision in Stewart v. United States, 366 U. S. 1 (1961), was based on federal evidentiary grounds, not on the Fifth Amendment. The Court in Grunewald v. United States, 353 U. S. 391, 421 (1957), stated that it was not required to re-examine Raffel. In all three cases, the Court merely considered the question whether, as a matter of federal evidentiary law, prior silence was sufficiently inconsistent with present statements as to be admissible. See also n. 5, infra.
Mr. Justice Marshall contends that the petitioner’s prearrest silence is not probative of his credibility. Post, at 248-250. In this case, that is a question of state evidentiary law. In a federal criminal proceeding the relevance of such silence, of course, would be a matter of federal law. See United States v. Hale, supra, at 181. Mr. Justice Marshall’s further conclusion that introduction of the evidence in this trial violated due process relies upon the Court’s reasoning in Doyle v. Ohio, 426 U. S. 610 (1976), and United States v. Hale. Post, at 246-250. But the Court’s decision in Hale rested upon noneonstitutional grounds, see n. 4, supra, and Doyle is otherwise distinguishable, see infra, at 240.
The Court reached a similar result in Johnson v. United States, 318 U. S. 189 (1943). A trial judge mistakenly told a defendant that he could claim the privilege against self-incrimination. After the defendant invoked the privilege, the prosecutor commented on the defendant’s refusal to speak. Under its supervisory power, this Court held that the prosecutor’s comments constituted error because the trial court had assured the defendant that he might claim the protections of the Fifth Amendment. The Court stated that “[e]lementary fairness requires that an accused should not be misled on that score.” Id., at 197; see Doyle v. Ohio, supra, at 618, n. 9. See also Raley v. Ohio, 360 U. S. 423, 437-438 (1959).
Question: Who is the petitioner of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
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songer_genresp1
|
G
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
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.
William WEISS, Plaintiff-Appellant, v. Mark WITTCOFF, Edward Wittcoff, and Wittcoff Paper Co., Inc., Defendants-Appellees.
No. 1506; Docket 92-7185.
United States Court of Appeals, Second Circuit.
Argued May 11, 1992.
Decided June 11, 1992.
Joseph F. Donley, New York City (Sher-eff, Friedman, Hoffman & Goodman, of counsel), for plaintiff-appellant William Weiss.
Evan L. Gordon, New York City (Bang-ser, Klein, Rocca & Blum, of counsel), for defendants-appellees Mark Wittcoff, Edward Wittcoff and Wittcoff Paper Co., Inc.
Before: FEINBERG, and CARDAMONE, Circuit Judges and LARIMER, District Judge.
. Honorable David G. Larimer, United States District Judge for the Western District of New York, sitting by designation.
PER CURIAM:
This case arises out of an alleged violation of § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 783(b) (“the Act”). Plaintiff appeals from an Order of the United States District Court for the Southern District of New York, Conboy, J., which dismissed the complaint pursuant to Fed.R.Civ.P. 12(b)(6) “for failure to properly and sufficiently allege loss causation.” We reverse.
FACTS
The facts alleged in the complaint, which the court must accept as true for purposes of this appeal, are as follows. In 1988, plaintiff William Weiss (“Weiss”) negotiated with defendants Mark Wittcoff and Edward Wittcoff (“the Wittcoffs”) for the merger of Weiss’s family-owned packaging business with the Wittcoffs business; Witt-coff Paper Co.
Weiss was seeking an arrangement that would assure a long, stable future for his company, and the Wittcoffs assured him that they could provide such a future. In particular, they allegedly promised Weiss that if he relocated his business to their building on Coffey Street in New York City and gave Mark Wittcoff a fifty percent share of Weiss’s company, the Wittcoffs, through another company they owned named Mutual Paper, would provide Weiss’s business with the goods and services it needed for as long as Mark Wittcoff remained a shareholder in Weiss’s business.
Plaintiff alleges that in fact, however, the Wittcoffs had no intention of maintaining this arrangement for any length of time. The complaint alleges that the Witt-coffs were planning to sell Mutual in the near future, which would make it impossible for them to keep their end of the bargain.
In reliance on the Wittcoffs’ promises, Weiss incorporated his business as W. Weiss Packaging Co. (“WPC”) in September 1988. Weiss and Mark Wittcoff were each issued fifty percent of WPC’s common stock.
In August 1989, the Wittcoffs sold Mutual, which shut down its operations at Coffey Street. The complaint alleges that, in violation of their contract with Weiss, the Wittcoffs also began manipulating WPC’s financial affairs for their own benefit, which caused WPC to suffer losses. In addition, they started pressuring Weiss to resign, which he ultimately did on November 9, 1990. According to the complaint, the Wittcoffs have continued to run WPC, exploiting it for their own gain.
Weiss brought this suit in February 1991, alleging securities fraud in the issuance of WPC stock to Mark Witteoff. Specifically, Weiss alleges that in violation of § 10(b) of the Act, the Wittcoffs made certain misrepresentations to him, in reliance upon which Weiss issued fifty percent of WPC’s common stock to Mark Witt-eoff. As a further result of defendants’ fraudulent acts, Weiss claims, WPC has suffered severe losses, and the value of Weiss’s own holdings in WPC has been greatly reduced. Weiss also asserts pendent claims for fraud, breach of fiduciary duty and conversion.
The district court stayed discovery pending decision on defendants’ motion to dismiss. On December 30, 1991, the court issued a one-page order dismissing the complaint “for failure to properly and sufficiently allege loss causation.”
DISCUSSION
A claim under § 10(b) of the Act requires a showing of both “transaction causation” and “loss causation.” In other words, the plaintiff must show that the defendant’s misrepresentations not only caused the plaintiff to engage in the transaction in question, but also that they caused the harm suffered. Wilson v. Ruffa & Hanover, P.C., 844 F.2d 81, 85 (2d Cir.1988), vacated on other grounds and affd on reconsideration, Wilson v. Saintine Exploration and Drilling Corp., 872 F.2d 1124 (2d Cir.1989); Schlick v. Penn-Dixie Cement Corp., 507 F.2d 374 (2d Cir. 1974), cert. denied, 421 U.S. 976, 95 S.Ct. 1976, 44 L.Ed.2d 467 (1975).
While transaction causation requires only a “but for” allegation, see Bennett v. United States Trust Co. of New York, 770 F.2d 308, 314 (2d Cir.1985), cert. denied, 474 U.S. 1058, 106 S.Ct. 800, 88 L.Ed.2d 776 (1986), whether loss causation has been alleged turns upon a question of proximate cause: was the damage complained of a foreseeable result of the plaintiff's reliance on the fraudulent misrepresentation? Marburg Mgmt., Inc. v. Kohn, 629 F.2d 705, 708 (2d Cir.), cert. denied, Wood Walker & Co. v. Marburg Mgmt, Inc., 449 U.S. 1011, 101 S.Ct. 566, 66 L.Ed.2d 469 (1980).
The facts alleged in the complaint in the case at bar adequately allege loss causation. Weiss contends that he transferred stock in WPC to Richard Witteoff in reliance on the Wittcoffs’ misrepresentations concerning their future actions. The complaint alleges that “as a result of the ... misrepresentations and omissions of the Wittcoffs, after approximately August 1989 WPC was saddled with increased costs that eliminated profits.” Complaint 1132. Thus, Weiss’s loss — the devaluation of his own WPC stock — was clearly a proximate result of his reliance on defendants’ promises, since defendants’ failure to fulfill those promises foreseeably caused WPC’s financial condition to deteriorate.
Defendants’ argument that loss causation has not been alleged because the alleged misrepresentations related to future actions rather than to present conditions is not persuasive. Channel Master Corp. v. Aluminum Ltd. Sales, 2 A.D.2d 933, 156 N.Y.S.2d 585 (3d Dep’t 1956), on which defendants heavily rely, is clearly distinguishable. For one thing, Channel Master was not a securities fraud case, but dealt with a contract to supply goods. Furthermore, although the court in Channel Master held that certain statements by the defendant concerning anticipated shipments to the plaintiff were not fraudulent, the court characterized those statements as mere “predictions or expressions of future expectations.” Id. Channel Master therefore stands in sharp contrast to the instant case, which involves explicit promises to take specific future actions. In fact, the court in Channel Master observed that “statements of present intent [are] factual and, in proper cases, actionable.” Id. (emphasis added).
In support of its holding that loss causation had not been alleged, the court below relied upon Pross v. Katz, 784 F.2d 455 (2d Cir.1986). This reliance was misplaced. Pross dealt not with loss causation, but with whether the alleged fraud occurred “in connection with the purchase or sale of a security” as required by § 10(b). Pross is therefore inapposite to the issue of loss causation.
Moreover, even if the District Court based its decision on the actual holding of Pross, dismissal of the complaint would be error. Pross specifically recognized that a “promise to perform a particular act in the future while secretly intending not to perform may violate Section 10(b) ... if the promise is part of the consideration for a sale of securities.” Id. at 457. Cf. A.T. Brod & Co. v. Perlow, 375 F.2d 393, 395-97 (2d Cir.1967) (promise to purchase securities violated § 10(b) where customer’s secret intention was to pay only if price of securities appreciated).
Here, according to the complaint, the alleged misrepresentations were an important inducement in persuading Weiss to part with his WPC stock, and defendants’ scheme could not have been accomplished without the stock transfer. In addition, it was quite foreseeable that the consummation of defendants’ secret intention not to perform their promises would cause Weiss to suffer a loss.
Although it remains to be seen whether Weiss can prove his allegations, the court’s task on a Rule 12(b)(6) motion is not to rule on the merits of plaintiffs’ claims, but to decide whether, presuming all factual allegations of the complaint to be true, and drawing all reasonable inferences in the plaintiff’s favor, Frazier v. Coughlin, 850 F.2d 129 (2d Cir.1988), the plaintiff could prove any set of facts which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); Branum v. Clark, 927 F.2d 698, 705 (2d Cir.1991). Under this standard, the complaint sufficiently states a cause of action and therefore its dismissal was error.
CONCLUSION
The district court’s order dismissing the complaint is reversed, and the case is remanded with directions to reinstate the complaint and to conduct further proceedings consistent with this opinion.
. The court gave Weiss fifteen days to file an amended complaint. Weiss did not do so, and appealed the dismissal order instead.
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_state
|
54
|
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".
SLAUGHTER v. MADISON et al.
No. 8293.
United States Court of Appeals for the District of Columbia.
Decided Feb. 8, 1943.
Writ of Certiorari Denied June 7,1943.
See 63 S.Ct. 1331, 87 L.Ed. —.
Mr. Elwood G. Hubert, of Washington D. C., for appellant.
Mr. George E. C. Hayes, of Washington, D. C, with whom Mr. Chauncey D. Artis, of Washington, D. C., was on the brief, for appellees.
Before GRONER, Chief Justice, and VINSON and EDGERTON, Associate Justices.
PER CURIAM.
The appellant filed a complaint in the District Court against Bertha Madison, et al., appellees, heirs-at-law of James W. Johnson, deceased, seeking specific performance to convey real estate under an alleged parol agreement between James W. Johnson and the appellant.
About May 4, 1940, James W. Johnson, eighty years of age, purchased a residence in the District for $7,500, and took title in his own name. The appellant alleges that Johnson agreed to buy it for him, and further agreed to “leave him the house and premises” in consideration of his caring for Johnson during his lifetime.
At the time of the alleged agreement the appellant was living in a rented room with his wife and childen. Johnson lived in a rooming house, and took his meals at a boarding house. Appellant and his family moved into the house about May 4, 1940. The house was then painted and repaired. Johnson furnished the material and paid for most of the labor. The appellant and his wife did some of the work. Some time later, the appellant furnished a second-hand furnace, value not shown. About the second week in July, 1940, Johnson moved into the house with the appellant and his family, and lodgers, remaining there, except for ten days or two weeks when he was visiting a niece, until his death, August 29, 1940. At first he occupied a front room from which he could see the home in which his wife had died. This made him unhappy, and he stated an intention to sell the property. The appellant made no objection to the threatened sale, but persuaded him to change his room. Johnson continued to take his meals at his usual boarding house, except for a few times when the appellant carried meals to him from the boarding house. He occasionally ate with the appellant and his family. After the alleged contract was entered into, Johnson gave several checks to the appellant, the amounts of which are not shown. No rent was paid during Johnson’s life.
The appellant claims that these circumstances remove the operation of the Statute of Frauds [D.C.Code 1940, §§ 12 — 301, 12 — 303] that, while designed to prevent fraud, it will not be permitted to work a fraud upon one seeking equitable relief; that equity will not permit the Statute to compel denial of relief when an unconscionable fraud would be perpetrated by its operation.
The appellees contend that the alleged! contract was not proved; but that, assuming its proof, equity cannot, under the circumstances here, prevent the operation of the Statute, because of the absence of several equitable ingredients, one of which is that in carrying out the contract, there was an unalterable change in the status of the appellant resulting in loss, detriment, or disadvantage to him — rather, the appellees urge, it was of distinct benefit to him and his family.
The District Court dismissed the complaint. Judge McGuire’s conclusions of law, in part, were:
“That there was no oral contract of the deceased, enforcible in character, which would keep from being operative the Statute of Frauds requiring said contract either to be in writing or to be so substantially performed as that the failure to enforce same would work an inequity upon the party seeking specific performance.
“That the occupancy of the premises by the plaintiff from the beginning of such occupancy until the death of the deceased was in no sense a loss, damage, or inconvenience to the plaintiff, but on the contrary, inured to his benefit.
“The'alleged promise of the deceased to give the property to the plaintiff never affected the real estate in question or the title to it in such a manner as would have enabled the plaintiff in a Court of Equity during the lifetime of the deceased James W. Johnson to have prevented him, the deceased Johnson, from disposing of the property in any way he may have deemed proper.
“That the plaintiff had never entered into any such full or exclusive possession of the premises in question, nor performed on his part any such portion of an alleged parol contract as to take the case out of the operation of the Statute of Frauds.”
We have carefully considered the record and find no error in it. In our view, to enforce the alleged contract would be inequitable. The judgment of the District Court is amply supported and justified.
Affirmed.
Whitney v. Hay, 15 App.D.C. 164, affirmed 181 U.S. 77, 21 S.Ct. 537, 45 L.Ed. 758; Cherry v. Whalen, 25 App.D.C. 537; Brown v. Button, 129 U.S. 238, 9 S.Ct. 273, 32 L.Ed. 664; and the opinions in Faunce v. Woods, 55 App.D.C. 330, 5 F.2d 753, 40 A.L.R. 208.
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.
Arminda H. HEDGER, Plaintiff-Appellee, v. Ethel H. REYNOLDS, Defendant-Appellant, and The Northwestern Mutual Life Insurance Company, Defendant.
No. 35, Docket 23007.
United States Court of Appeals, Second Circuit.
Argued Oct. 13, 1954.
Decided Nov. 5, 1954.
Gray & Wythe, New York City, Horace M. Gray, New York City, of counsel, for plaintiff-appellee.
Henry J. Smith, New York City, for defendant-appellant.
Before CHASE, MEDINA and HARLAN, Circuit Judges.
PER CURIAM.
Invoking the diversity jurisdiction of the court, the appellee brought this suit to set aside an instrument she had signed at the request of her deceased husband which had enabled him to have a policy of insurance on his life, in which she had previously been the sole beneficiary without right reserved to the insured to change the beneficiary, amended to give him that right. Before his death, he revoked the designation of his wife as beneficiary and had the appellant designated as such. When the insured died, the policy was payable to a third party to whom it had been assigned as security for money loaned to the insured. The insurance company paid the proceeds of the policy to the assignee who, after deducting the amount due him, paid the remainder to the appellant. Additional relief sought was to have appellant declared a constructive trustee, for the benefit of the appellee, of that part of the proceeds of the policy which the appellant had received. After trial by court, judgment was entered for the plaintiff-appellee setting aside the instrument the appellee had signed and impressing a trust for her benefit upon the proceeds of the policy which had been paid to her. This appeal is from that judgment. The insurance company was named as a defendant but did not appear and has no interest in the suit.
The appellant does not, nor well could she, contend that, on the facts as found, the judgment is erroneous since, at the least, they show that there was a breach of fiduciary relationship on the part of the appellee’s husband and that he was guilty of constructive fraud in persuading her to sign the instrument. Matter of Smith’s Estate, 243 App.Div. 348, 353, 276 N.Y.S. 646; Haack v. Weicken, 118 N.Y. 67, 73, 74, 23 N.E. 133.
The critical findings are that, “On or about the 23rd of March, 1948, the insured presented to the plaintiff, an instrument for her signature stating that the instrument when executed would obviate the need for signing others in the event of successive borrowings on the policy. Plaintiff, without time or opportunity to examine the instrument which insured forthwith took with him, but relying on the faith of her husband and on the practice of such earlier transactions, without any consideration, and in the absence of any witness, signed the instrument presented consenting to it only as an instrument designated to permit the obtaining of further loans on the policy. It was never acknowledged by her.”
Such evidence as there was to contradict these findings was by no means such that the judge was bound to accept it at face value. Certainly the certificate of the notary was only rebuttable evidence that the appellee’s acknowledgment had been taken as certified and that the instrument had been duly executed by her. Section 384(3) of the New York Civil Practice Act; Breuchaud v. Bank of New York & Trust Co., 157 Misc. 375, 283 N.Y.S. 812. The burden on an appellant, who seeks to reverse a judgment for error in fact, to show that essential findings are clearly erroneous, is, indeed, a heavy one when, as in this instance, decision must turn largely upon the credibility of witnesses the trial judge saw and heard testify. Rule 52(a) F.R.C.P., 28 U.S.C.A. United States v. Aluminum of America, 2 Cir., 148 F.2d 416, 433; Moore v. Ford Motor Co., 2 Cir., 43 F.2d 685. The evidence of the appellee was not inherently improbable in the light of all the circumstances shown and we find nothing in this record which persuades us that the trial judge, who obviously did find it credible, committed any error in so doing. As it gave the findings substantial support they should be given effect by us. Straight Side Basket Corp. v. Webster Basket Co., Inc., 2 Cir., 82 F.2d 245, 247.
Judgment affirmed.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
|
songer_district
|
E
|
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, Libelant-Appellee, v. ONE OLIVETTI-UNDERWOOD ELECTRIC ADDING MACHINE, etc., et al., Claimants, and $227.00 seized from the person of John C. Prevatt, Claimant-Appellant.
No. 26987
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
May 4, 1971.
Arnold D. Levine, Michael J. Freedman, Levine & Freedman, Tampa, Fla., for claimant-appellant.
Edward F. Boardman, U. S. Atty., Robert B. McGowan, Asst. U. S. Atty., Tampa, Fla., for libelant-appellee.
Before GEWIN, GOLDBERG and DYER, Circuit Judges.
[1] Rule 18, 5 Cir. See Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir. 1970, 431 F.2d 409. Part I.
PER CURIAM:
This is an appeal from a decree forfeiting to the United States certain property and money belonging to John C. Prevatt and seized during a search predicated upon an affidavit that the property and money were being used in violation of 26 U.S.C.A. §§ 4411, 4412, 4901(a) and 7203. We reverse.
In the criminal proceedings, Prevatt asserted the fifth amendment privilege. On the authority of Marchetti v. United States, 1968, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 and Grosso v. United States, 1968, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906, the District Court dismissed the criminal action.
In the civil forfeiture proceedings, Prevatt was granted leave to intervene; and, claiming to be the owner of the property and money that was the subject matter of the libel of information, he filed a petition and claim. After a non-jury trial the District Court found that the property and money seized had been used in violation of 26 U.S.C.A. §§ 4411, 4412, and 7203 and were therefore subject to forfeiture.
The question involved here has been squarely met and decided adversely to the Government in United States v. United States Coin & Currency, 1971, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434. Accordingly, this cause is reversed and remanded to the District Court with directions that the property and money, which comprised the subject matter of the forfeiture proceedings, be returned to intervenor-claimant Prevatt.
Reversed and remanded with directions.
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_record
|
A
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the agency fail to develop an adequate record? For example, if the court was unable to determine what doctrine was used for the decision or unable to determine the basis of the decision. 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".
Bernice R. SMITH, Appellant, v. Robert H. FINCH, Secretary of Health, Education and Welfare, and Lena M. Smith, Appellees.
No. 14167.
United States Court of Appeals, Fourth Circuit.
May 19, 1970.
John B. Culbertson, Greenville, S. C„ on the brief for appellant.
William D. Ruckelshaus, Asst. Atty. Gen., Joseph 0. Rogers, Jr., U. S. Atty., Kathryn H. Baldwin and Robert M. Feinson, Washington, D. C., on the brief for appellees.
Before WINTER, CRAVEN and BUTZNER, Circuit Judges.
PER CURIAM:
In this appeal we find oral argument unnecessary and summarily affirm the judgment of the district court. The Secretary’s finding that the claimant was not the widow of the deceased, and, therefore, not entitled to Social Security Widows benefits, is amply supported by the record. Cain v. Secretary, 377 F.2d 55 (4 Cir. 1967).
Affirmed.
. Although it would appear that the finding that the adverse party Lena Smith is the widow of Melvin Smith is equally well supported, that issue is not before us. Since the claimant must establish her own eligibility for benefits, it is irrelevant whether she can show, on grounds independent of those on which she claims eligibility, the ineligibility of another party.
Question: Did the agency fail to develop an adequate record? For example, if the court was unable to determine what doctrine was used for the decision or unable to determine the basis of the decision.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_state
|
33
|
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".
FANELLI v. UNITED STATES GYPSUM CO.
No. 245.
Circuit Court of Appeals, Second Circuit.
Feb. 17, 1944.
Cravath, De Gersdorff, Swaine & Wood, of New York City (Scott, MacLeish & Falk and Charles M. Price, all of Chicago, 111., and George S. Collins, of New York City, of counsel), for appellant.
Meyer Lindenbaum, of New York City (Samuel Mezansky, of New York City, of counsel), for appellee.
Douglas B. Maggs, Sol., Bessie Margolin, Asst. Sol., John K. Carroll, Regional Atty., Peter Seitz and Flora G. Chudson, for United States Department of Labor, all of Washington, D. C., amicus curiae.
Before L. HAND, AUGUSTUS N. HAND, and FRANK, Circuit Judges.
FRANK, Circuit Judge.
1. A month after his discharge, plaintiff made a one-sheet memorandum which, he testified, set forth the details of his overtime work from the beginning of his employment to the date of that discharge, a period of about five months. Over defendant’s objection, the trial judge permitted plaintiff, when testifying, to use this memorandum to refresh his recollection. Defendant, asserting error, relies on Putnam v. United States, 162 U.S. 687, 16 S. Ct. 923, 40 L.Ed. 1118, where the court held it reversible error to allow a witness for the government in a criminal trial to use similarly, in testifying as to certain conversations, a transcript of his testimony before a grand jury, concerning those conversations, given four months after they had occurred. The court based that ruling on the theory that it is dangerous to trust to the accuracy of memory stimulated by a record made when the facts were not “fresh in the mind.”
That theory has little to commend it. Common experience, the work of Proust and other keenly observant literary men, and recondite psychological research, all teach us that memory of things long past can be accurately restored in all sorts of ways. The creaking of a hinge, the whistling of a tune, the smell of seaweed, the sight of an old photograph, the taste of nutmeg, the touch of a piece of canvas, may bring vividly to the foreground a consciousness the recollection of events that happened years ago and which would otherwise have been forgotten. If a recollection thus reawakened be then set down on paper, why should not that paper properly serve in the courtroom, as it does in everyday life, to prod the memory at still a later date ? The memory-prodder may itself lack meaning to other persons as a symbol of the past event, as everyone knows who has ever used a knot in his handkerchief as a reminder. Since the workings of the human memory still remain a major mystery after centuries of study, courts should hesitate before they glibly contrive dogmatic rules concerning the reliability of the ways of provoking it.
Fortunately, the Putnam case, severely criticized by Wigmore, has recently had most of its teeth extracted by United States v. Socony-Vacuum Oil Company, 310 U.S. 150, 235, 236, 60 S.Ct. 811, 84 L.Ed. 1129. There the Supreme Court, referring to Putnam and citing Wigmore’s adverse comments, said that no inflexible four-months’ rule exists as to such recollection-refreshing memoranda, and went at lekst as far as to hold that in each case the trial judge has a reasonable discretion to allow the use of such a document if satisfied that the interval between its making and the occurrence of the facts are not excessive. The trial judge here did not abuse his discretion—particularly as plaintiff was able to, and did, testify, independently of the memorandum, as to the minimum number of hours of his overtime work; the trial judge instructed the jury that the memorandum was not to be considered as “an original document * * * indicative of the fact that he worked overtime,” did not “verify” plaintiff’s testimony “in any way” and did not “make his testimony any stronger”; and the trial judge admonished the jury in his final charge that “there is no document to prove the statement” of the plaintiff.
2. Section 13(a) explicitly authorizes the Administrator to “define and delimit,” by regulations, the terms used in that section. As his regulations are reasonable, they are as binding on the courts as if they had been directly enacted by Congress. In conferring such authority upon the Administrator, Congress acted in accordance with a long established tradition (frequently sanctioned by the Supreme Court), and did not unconstitutionally delegate powers vested in the legislative branch. The statutory standards here are far more precise than many which the Supreme Court has held sufficient; the delegation is unmistakably within the scope of rulings made by the Supreme Court over the course of many years. The trial judge therefore properly refused to instruct the jury that it could disregard the regulations.
3. The trial judge also correctly refused to instruct the jury that, “as a matter of law,” the plaintiff was employed in a bona fide executive or administrative capacity.
Plaintiff did not come within the exception provided in § 13(a) unless all six clauses of the regulation applied to him, since those clauses are conjunctive not disjunctive. As to two of them, Clauses (C) and (D), the evidence was not so unequivocal that the trial judge could properly have held that there were not questions of “fact” for the jury.
Affirmed.
Evidence, 3d ed. § 761.
In the Socony-Vacuum case, much of the matter used to refresh recollection consisted of transcripts of grand jury testimony given more than a year after the facts to which that testimony related.
Helliwell v. Haberman, 2 Cir., 140 F.2d 833; Walling v. Yeakley, 10 Cir., 140 F.2d 830; cf. Knight v. Mantel, 8 Cir., 135 F.2d 514, 517.
Because of his express authority to make them, the Administrator’s definitions have a greater dignity than ordinary administrative interpretations. Even such interpretations are entitled to great weight; see, e. g., Gray v. Powell, 314 U.S. 402, 411-413, 62 S.Ct. 326, 86 L.Ed. 301.
Wayman v. Southard, 10 Wheat. 1, 43, 6 L.Ed. 253; Field v. Clark, 143 U.S. 649, 12 S.Ct. 495, 36 L.Ed. 294; Buttfield v. Stranahan, 192 U.S. 470, 24 S.Ct. 349, 48 L.Ed. 525; Union Bridge Co. v. United States, 204 U.S. 364, 27 S.Ct. 367, 51 L.Ed. 523; United States v. Grimaud, 220 U.S. 506, 31 S.Ct. 480, 55 L.Ed. 563; I. C. C. v. Goodrich Transit Co., 224 U.S. 194, 32 S.Ct. 436, 56 L.Ed. 729; Avent v. United States, 266 U.S. 127, 130, 131, 45 S.Ct. 34, 69 L.Ed. 202; Hampton v. United States, 276 U.S. 394, 48 S.Ct. 348, 72 L.Ed. 624; Arizona Grocery Co. v. Acheson, Topeka & Santa Fe Ry., 284 U.S. 370, 386, 52 S.Ct. 183, 76 L.Ed. 348; United States v. Shreveport Grain & Elevator Co., 287 U.S. 77, 85, 53 S.Ct. 42, 77 L.Ed. 175; Panama Refining Co. v. Ryan, 293 U.S. 388, 426-430, 55 S.Ct. 241, 79 L.Ed. 246; Currin v. Wallace, 306 U.S. 1, 15, 59 S.Ct. 379, 83 L.Ed. 441; United States v. Rock Royal Co-op., Inc., 307 U.S. 533, 574, 59 S.Ct. 993, 83 L.Ed. 1446; Sunshine Coal Co. v. Adkins, 310 U.S. 381, 398, 60 S.Ct. 907, 84 L.Ed. 1263; National Broadcasting Co. v. United States, 319 U.S. 190, 225, 226, 63 S.Ct 997, 87 L.Ed. 1344; United States v. Goldsmith, 2 Cir., 91 F.2d 983, 985, certiorari denied 302 U.S. 718, 58 S.Ct. 38, 82 L.Ed. 555.
Helliwell v. Haberman, supra.
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_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
John W. WILLIAMS, Plaintiff-Appellant, v. WESTINGHOUSE ELECTRIC CORPORATION, Defendant-Appellee.
No. 73-2898
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
Nov. 28, 1973.
Rein J. Vander Zee, Kerrville, Tex., for plaintiff-appellant.
Robert B. Summers, Claude B. Masters, San Antonio, Tex., for defendant-appellee.
Before WISDOM, AINSWORTH and CLARK, Circuit Judges.
Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409; Part I.
PER CURIAM:
This suit in diversity arose from an automobile collision between plaintiff-appellant Williams and Lewis Charles Elliott, who was driving a car owned by his employer, Westinghouse. At the time of the accident, not only was Elliott engaged in a personal errand, he was on an extended medical leave from Westinghouse. The lower court correctly concluded that Elliott was not acting within the course and scope of his employment, and it found no evidence of negligence on Westinghouse’s part in connection with Elliott’s use of the company car. Accordingly, the court granted summary judgment for Westinghouse. We affirm.
Affirmed.
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
|
songer_appnatpr
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Samuel ALEXANDER, Petitioner-Appellant, v. Harold J. SMITH, Superintendent, Attica Correctional Facility, Respondent-Appellee.
No. 732, Docket 78-2007.
United States Court of Appeals, Second Circuit.
Argued May 9, 1978.
Decided Aug. 7, 1978.
Benjamin I. Cohen, New York City (Poletti, Freidin, Prashker, Feldman & Gartner, Stanley Futterman, New York City, of counsel), for petitioner-appellant.
Tyrone Mark Powell, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen. of the State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., New York City, of counsel), for respondent-appellee.
Before WATERMAN, INGRAHAM and MANSFIELD, Circuit Judges.
Of the United States Court of Appeals for the Fifth Circuit, sitting by designation.
WATERMAN, Circuit Judge:
This is an appeal from a judgment order of the United States District Court for the Western District of New York, Curtin, J., denying without an evidentiary hearing a petition seeking the issuance of a writ of habeas corpus. Assigned counsel has done an admirable job briefing and arguing this appeal but, inasmuch as we find no error in Judge Curtin’s decision or reasoning, we affirm.
On August 24, 1971 a Brooklyn, New York supermarket was robbed and the assistant manager, Thomas Higgins, was shot to death during the course of the robbery. At about 6:30 a. m. on September 8, 1971, the police arrested one Robert Smith for the murder of Higgins and upon his arrest Smith immediately confessed and implicated Alexander, the petitioner-appellant here, in the robbery and murder. Acting upon the information so received and other information as well, the police, with Smith present to identify the apartment where Alexander resided, went directly to Alexander’s apartment and arrested him there at approximately 7:30 a. m. As he was being taken into custody, Alexander, who in view of a number of previous arrests was probably well-acquainted with what should be done in such a situation, instructed his wife to call his attorney. The police officer told Alexander’s wife that Alexander would be taken to the 73rd Precinct. Upon arrival at the 73rd Precinct stationhouse, contrary to standard practice, Alexander was not immediately booked but was instead taken to a detention cell. At about 10:30 a. m. one of the arresting officers, a Detective Schneider, took Alexander to a bathroom. Upon returning to the detention pen, while walking through the police locker room, Alexander indicated that he wished to discuss his situation with the officer. Detective Schneider then read Alexander his Miranda rights, among which were included his rights to be represented by an attorney, to have counsel present during any interrogation, and to have an attorney appointed for him if he could not afford one. As Alexander was being advised of each distinct right, Detective Schneider asked Alexander whether Alexander understood each of these rights. Each time he was so asked, Alexander nodded his head in the affirmative. After being advised of his rights, Alexander was asked whether he still wished to make a statement without counsel being present. After again indicating that his response was in the affirmative, Alexander asked “What am I here for?” In response the detective stated that Alexander was being held “for the Bohack killing.” Alexander thereupon exclaimed: “My gun wasn’t popping. Gene’s was.” He thereby implicated himself in the robbery and murder at the supermarket in Brooklyn. When Detective Schneider notified a second officer, Detective Cambridge, as to what had occurred, the latter entered the locker room and again informed Alexander of his Miranda rights. Again choosing to waive those rights, Alexander once more implicated himself in the crime by telling Detective Cambridge: “All right, you have got me and you have got the little guy. I know the little guy gave me up.” After further probing the officer’s knowledge concerning the circumstances surrounding the commission of the crime, Alexander further stated, in substance, according to Detective Cambridge, that “[t]wo of Gene’s regular partners had to go south for a funeral, and Gene said to me and the little guy we didn’t have to do anything, one of us would stand by the door and the other would take the registers.”
Following ten hours during which he might have received only a minimal amount of food or drink while being held in the detention cell but during which time he had not been subjected to any further interrogation, Alexander was again questioned on September 8, this time at 9 p. m. that evening by Assistant District Attorney DiBenedetto. The state prosecutor again read Alexander all of his Miranda rights. Alexander was then asked if he understood each right and in each instance he replied “Yes.” Alexander then asked, “You said that if I wanted an attorney present, that’s my right to have an attorney present[?]” DiBenedetto responded, rather obliquely, that Alexander himself could decide whether he wished to provide any answers to any of the prosecutor’s questions. An off-the-record discussion followed and immediately thereafter, Alexander said: “Pop your questions.” This the assistant district attorney forthwith proceeded to do. In response to DiBenedetto’s questions, Alexander gave an extremely comprehensive statement which fully implicated him in the robbery and murder at the Bohack’s supermarket in Brooklyn.
Alexander was finally booked at 11 p. m. that same evening and he was arraigned on a felony murder charge the following day. Indictment followed on September 11, 1971. On September 15, 1971, counsel was appointed to represent him.
In accordance with the requirements of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964) and People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965), a pretrial hearing (hereinafter the “Huntley hearing”) on Alexander’s motion to suppress the two incriminating statements he had made to the detectives and the detailed confession he had made to the assistant district attorney was held from February 15, 1972 through February 22, 1972 before Justice Joseph Mollen of the New York State Supreme Court, Kings County. At the close of this protracted hearing, Alexander sought to reopen the record so that he could introduce the testimony of two additional witnesses, that of his wife and that of his father-in-law, German, both of whom had been previously unavailable because they had been attending the out-of-state funeral- of a member of the family. In refusing to permit Mrs. Alexander to corroborate her husband’s testimony that he had been beaten at the time of his arrest, Justice Mollen stated that the wife’s testimony would have been merely cumulative to that given by Alexander and would not have been relevant to the issue of voluntariness inasmuch as there was no indication that petitioner had confessed as a result of the alleged blows inflicted by the police at the time of Alexander’s apprehension at his apartment at about 7:30 a. m. on the morning of September 8, 1971. See note 1 supra. As to the proffered testimony of Alexander’s father-in-law that, upon appearing at the 73rd Precinct house during the day of September 8, 1971, he had been informed that Alexander was not at the stationhouse, when, in fact, Alexander was being held in a detention cell upstairs, Justice Mollen ruled that such testimony would be hearsay and “would not [, in any event,] have any real bearing on the issues before the Court” in the Huntley hearing.
The state trial court judge then read into the record his detailed findings of fact and conclusions of law. Justice Mollen found that Alexander had been adequately advised of his Miranda rights and had knowingly and intelligently waived them. The judge also found that all of Alexander’s statements were fully voluntary and that “no force, no duress, no coercion, no violence” had been used by the police or the prosecutor to compel Alexander to make any statements to the detectives or to the assistant district attorney.
Alexander’s trial in the New York State Supreme Court, Kings County, on a charge of felony murder commenced on February 28,1972. On the second day of trial Justice Mollen reversed his earlier determination, made at the Huntley hearing, and ruled that the first statement Alexander had made to the police in the locker room on the morning of the 8th of September would be excluded inasmuch as Alexander’s “nodding” after each question posed to him by Detective Schneider might not have been an adequate enough indication of an intention to waive his Miranda rights. The second statement, that which was made to Detective Cambridge immediately following the initial statement to Detective Schneider, was not introduced by the prosecution during its case-in-chief, and the state trial judge refused to allow the statement to be introduced at the end of the government’s case inasmuch as Justice Mollen found that Alexander could not, at that point anyway, have conducted an effective cross-examination. However, the third statement, the statement made to Assistant District Attorney DiBenedetto, was received. On March 3, 1972, Alexander was convicted, as charged, of the felony murder and, as a result of his conviction, was eventually sentenced to a prison term of 20 years to life. The Appellate Division of the New York State Supreme Court, Second Department, affirmed the judgment of conviction in a short per curiam decision, see People v. Alexander, 45 App.Div.2d 1023, 358 N.Y. S.2d 68 (2d Dep’t 1974), confining its discussion to Alexander’s contention that he had not waived his right to counsel at the time he spoke to the assistant district attorney. Rejecting the claim, the Appellate Division expressly ruled that DiBenedetto’s nonresponsive answer had not been coercive or deceptive and the court therefore concluded that the answer did not impact upon what was otherwise a clear waiver of Alexander’s right to counsel. On October 25, 1974, the New York Court of Appeals denied leave to appeal.
On February 11, 1975 Alexander filed with the United States District Court for the Western District of New York a pro se petition seeking the issuance of a writ of habeas corpus. In February 1976 counsel was appointed to represent Alexander and an amended habeas corpus petition was filed with the district court on March 24, 1976. After an independent review of the transcript of the Huntley hearing, the trial transcript, the briefs and other records of trial and appeal, United States District Judge John T. Curtin, in a decision dated November 4, 1977, concurred in the state trial court’s findings. Judge Curtin recognized that the findings of the state court are presumptively correct and, inasmuch as his own review of the record of the Huntley hearing had not disclosed any reason for ignoring the state trial court judge’s determinations, the federal district judge accorded them the standard deference to which they are statutorily entitled; indeed, Judge Curtin indicated that Justice Mollen’s findings were amply supported by the record made during the Huntley hearing. Judge Curtin thus concurred in the state trial judge’s conclusion that under the “totality of the circumstances” test, Alexander’s statements were neither coerced nor obtained by means of physical violence. Accordingly, Judge Curtin determined that no purpose would be served by holding a further evidentiary hearing in the federal court to determine whether Alexander’s statements had been extracted from him through the use of physical coercion. The federal district judge also determined that the state trial court was correct in its ruling regarding the exclusion of the testimony that would have been given by Alexander’s wife. Judge Curtin also seems to have accepted as true the facts to which Alexander claims German would have testified. Finally, the district judge rejected all of Alexander’s claims based upon alleged abridgements of his fifth and sixth amendment rights.
Following Judge Curtin’s issuance of a certificate of probable cause, Alexander filed a notice of appeal from the district court’s decision denying the petition for the issuance of a writ of habeas corpus.
Alexander advances two grounds upon which he claims the state trial court judge should have suppressed his third confession. He argues first that that confession was inadmissible on fifth amendment grounds because it was involuntary, and he contends, in the alternative, that it should have been excluded on sixth amendment grounds since it was procured in derogation of Alexander’s right to counsel. We discuss these claims seriatim.
Alexander’s claim that his third confession was involuntarily extracted from him in violation of his fifth amendment rights need not detain us long. In his detailed findings of fact and conclusions of law the state trial judge explicitly found that under the totality of the circumstances Alexander’s confession to Assistant District Attorney DiBenedetto was voluntary. This finding of fact is, of course, entitled to a presumption of correctness, 28 U.S.C. § 2254(d); accord, Tanner v. Vincent, 541 F.2d 932, 937 (2d Cir. 1976), cert. denied, 429 U.S. 1065, 97 S.Ct. 794, 50 L.Ed.2d 782 (1977), unless one of the eight exceptions specified in 28 U.S.C. §§ 2254(d)(l)-(8) can be shown to exist or unless Alexander can bear “the burden of establishing by convincing evidence that the findings of fact by the state court are erroneous.” Tanner v. Vincent, supra, 541 F.2d at 937 (emphasis supplied). Alexander does not predicate his appeal on a direct attack to any substantial extent on Justice Mollen’s finding of voluntariness. Instead, relying upon three of these eight exceptions Alexander argues that the state trial court’s finding that his third confession, the one given to the state prosecutor, was a voluntary confession should not be presumed to be a correct finding. First, Alexander contends that, inasmuch as the state trial court judge made no specific and explicit finding that the third confession was not fatally “tainted” by the first confession, “the merits of the factual dispute were not resolved in the State court hearing.” 28 U.S.C. § 2254(d)(1). Second, he asserts that he was not afforded a full and fair hearing in the Huntley hearing conducted by the state court, see 28 U.S.C. §§ 2254(d)(2), (6), because the state trial court judge refused to reopen that hearing to allow Alexander’s wife and father-in-law to give the testimony to which we have already referred.
We find that these exceptions to the presumption of correctness do not apply here. Alexander places himself between the proverbial rock and a hard place in attempting to capitalize on the state trial court’s failure to make a specific finding (as a prelude to its finding that Alexander’s third confession was voluntary) that the third confession was not tainted by the initial statement given to Detective Schneider. On the one hand, if the claim that there was a fatal taint constitutes a separate and distinct claim (apart from the more general claim that his confession was involuntary) upon which an explicit finding should have been made in order for the state trial court’s determination to be entitled to the statutorily prescribed presumption of correctness, then Alexander may not present this issue to us because it was not presented as a distinct claim in either the state courts or in the federal district court below. As to the failure to preserve the claim in the state courts, the claim would not have been exhausted, United States ex rel. Springle v. Follette, 435 F.2d 1380, 1384 (2d Cir. 1970), cert. denied, 401 U.S. 980, 91 S.Ct. 1214, 28 L.Ed.2d 331 (1971); as to the latter failure, we sit as an appellate court to review the actions of the federal trial courts and we do not consider claims not raised below. Jennings v. Casscles, 568 F.2d 229, 233-34 (2d Cir. 1977); United States ex rel. Springle v. Follette, supra, 435 F.2d at 1384. On the other hand, if as is more likely, the “taint” claim is not a separate claim at all but is, instead, a claim encompassed within the broader claim that the third confession was involuntarily given, then the issue of possible taint must have been subsumed within the broader issue of whether Alexander’s confession to DiBenedetto was voluntary, and we have no reason to doubt that the state trial court judge, in adhering at trial to his pretrial ruling that the third confession was voluntary, did so rule while being fully cognizant of the well-recognized principles proscribing prosecutorial use of the fruit of the poisonous tree. In this connection we note that even if Alexander’s first statement to the police officers on the morning of the 8th of September was taken in violation of his Miranda rights, which the state trial court judge somewhat cryptically intimated was not so, the third confession could nonetheless still be voluntary in view of the totality of the circumstances, see, e. g., Tanner v. Vincent, supra, 541 F.2d at 936; Jennings v. Casscles, supra, 568 F.2d at 232-33, and, under these circumstances we would hold, if need be, that the confession given to the state prosecutor was indeed a voluntary one despite what we may assume arguendo was Alexander’s earlier ineffectual waiver of his Miranda rights.
We also reject Alexander’s claim that we should ignore the presumption of the correctness of the state court’s findings inasmuch as the state court supposedly did not afford Alexander a full and fair hearing on the issue of the voluntariness of his confession to DiBenedetto. The state trial court judge found, Judge Curtin agreed with him, and we agree with both of them, that Mrs. Alexander’s proposed testimony, which would have been confined to a statement that she had observed her husband being beaten at the time of his arrest at their apartment, would not have affected the judge’s conclusion that the third confession was voluntarily given. In view of her obvious bias and because Alexander and Smith had already testified to that very thing, it is clear that her testimony had no substantial probative value on the question of whether the police had physically abused Alexander at the time of his arrest. With reference to German’s proposed testimony that the desk sergeant at the 73rd Precinct denied that Alexander was being held there, it is true that such testimony conceivably might have been of somewhat more utility in establishing Alexander’s case than Mrs. Alexander’s testimony would have been, since it could have been taken as some possible indication that the police were intentionally and malevolently attempting to conceal Alexander’s whereabouts so that they could “drill him” until he had confessed. Yet, Justice Mollen, the state trial court judge presiding at Alexander’s suppression hearing and trial, clearly stated that in the context of the other substantial evidence before him, German’s proposed testimony would not have affected his ultimate conclusion that the third confession was voluntary. Although we do not agree with the state court judge that German’s testimony that the desk sergeant denied that Alexander was at the 73rd Precinct stationhouse would have been hearsay, the state judge, despite his belief that the evidence would be inadmissible, did alternatively determine that German’s testimony would not, in any event, have affected the judge’s conclusion that Alexander’s statement to DiBenedetto was voluntary. In view of Justice Mollen’s careful marshaling of the evidence on the issue of whether Alexander’s third confession was voluntary, and in view of the deference which we are statutorily required to pay to the state court’s findings of fact, we must conclude that there is no ground here for our disputing the state court judge’s conclusion that German’s testimony would not have affected the ultimate result the judge reached as to whether Alexander’s third confession was voluntary.
Finally, we note that there is ample evidence in the record of the Huntley hearing to support Justice Mollen’s ultimate finding of fact that Alexander’s statement to the assistant district attorney was voluntary. To be sure, Alexander testified that he had been physically abused by the police officers while being held at the station-house, but Justice Mollen specifically found that Alexander, whom the judge diagnosed as being afflicted with “selective amnesia,” was not a credible witness. And, of course, the state court judge, sitting as the assessor of the credibility of witnesses and as the finder of fact, was indeed entitled to discredit Alexander’s testimony and that of any other witness and hence to find, as he did find, that Alexander had not been subjected to any physical abuse, either upon his arrest or at any time during his detention at the 73rd Precinct stationhouse. Absent any physical violence there are still some potentially troubling aspects to a just resolution here. Nevertheless, what the record as a whole seems to disclose is that while Alexander was not enjoying the aecommodations or amenities that a visiting foreign dignitary might expect as a public guest, his ordeal at the stationhouse was apparently not so severe that he could not give voluntarily a comprehensive and coherent confession to Assistant District Attorney DiBenedetto after 12 or 13 hours in custody. We must also keep in mind that our role here, as an appellate court, is more limited than that of the federal district court which, in turn, must play a more limited role in this collateral proceeding than it would if it were hearing the evidence and finding the facts on a truly de novo basis. We therefore hold, as did Judge Curtin, that under the circumstances here the state court’s determination that Alexander’s third confession was voluntary is entitled to the usual presumption of correctness and, in view of the lack of any convincing countervailing evidence, Tanner v. Vincent, supra, 541 F.2d at 937, we agree that that determination was correct.
We turn now to Alexander’s contention that his third confession should have been suppressed because it was extracted from him in violation of his sixth amendment right to counsel. Relying upon Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), Alexander claims that his “being held incommunicado violated his sixth amendment right to counsel.” He further contends, placing substantial reliance on the recent case of Brewer v. Williams, 430 U.S. 387, 397-98, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977), that under the circumstances surrounding his detention on September 8 the state cannot demonstrate that Alexander voluntarily waived his right to counsel. In his decision below, however, Judge Curtin found, as did the Appellate Division of the Supreme Court of the State of New York, see People v. Alexander, 45 App.Div.2d 1023, 358 N.Y.S.2d 68 (2d Dep’t 1974), on Alexander’s direct appeal from his conviction in state court, that Alexander had not been deprived of his sixth amendment right to counsel. On the basis of the findings made by the state trial court judge and also on the basis of the record of the suppression hearing in the state trial court, it would be difficult to reach any other conclusion.
Justice Mollen made several specific findings of fact which we find are pertinent to our consideration of Alexander’s claimed sixth amendment violation and which are entitled -to the usual presumption of correctness. In particular, the state trial judge found that before each of his confessions on the 8th of September, Alexander had been carefully and fully apprised that he had a right to talk to a lawyer, to have a lawyer present during the police interrogation and to have a lawyer appointed to represent him if he could not afford a lawyer. Moreover, while at the stationhouse, Alexander was advised that he had a right to make a phone call. It is, moreover, evident from the record that Alexander understood that he had a right to consult with an attorney and that he voluntarily relinquished that right. For instance, when arrested and taken to the stationhouse, Alexander was not in an atmosphere completely foreign to him, for by his own admission he had been arrested on a number of previous occasions. At the suppression hearing in state court Alexander admitted, furthermore, that on the day he was apprehended he understood his rights. Yet, despite his knowledge of the constitutional rights he possessed, Alexander, whom the state trial judge found had not been subjected to any coercion at any time while he was at the stationhouse, never requested consultation with an attorney. Instead, on three occasions he voluntarily made incriminating remarks and, in view of his extremely detailed and precise responses during the third confession, it seems clear that, as Justice Mollen specifically found, Alexander “had no problem whatsoever in knowing what he was saying; he spoke with clarity which would indicate that there was no merit to defense contentions made during the course of the hearing that the defendant, either because of his drug habit or for any other reason, was unable to understand the proceedings.”
Alexander’s reliance on Escobedo to support his theory that his sixth amendment rights were violated inasmuch as he was held “incommunicado” and prevented from seeing his attorney is clearly misplaced, for the facts in Escobedo are a far cry from the facts present here which we have already outlined. Specifically, Escobedo had already retained an attorney prior to his interrogation at the stationhouse. The police, however, refused to permit Escobedo to speak to his previously retained attorney despite the fact that the lawyer was at the stationhouse and was requesting to speak to his client and notwithstanding the defendant’s request, repeated at numerous times during the course of his interrogation, to speak to his attorney. Moreover, while Escobedo was repeatedly requesting to see his attorney, Escobedo’s interrogators audaciously told him that his attorney “didn’t want to see him.” 378 U.S. at 481, 84 S.Ct. 1758. Finally, the police did not advise Escobedo of his constitutional right to consult with counsel prior to making any statements and to have counsel present while he was being interrogated. Here, although, concededly, there was an unfortunate mix-up at the 73rd Precinct stationhouse when Alexander’s father-in-law was told by the desk sergeant that Alexander was not there, Alexander’s wife had been told where he was being taken. And in contrast to the facts in Escobedo at no time from Alexander’s arrival at the stationhouse until his confession to DiBenedetto later that evening did any attorney appear at the stationhouse or call the stationhouse requesting to speak to Alexander; Alexander, while in detention, was repeatedly and carefully warned of his constitutional right to counsel and, most significantly, at no time before or during his various discussions with the police officers or the prosecutor at the stationhouse did he, despite his undeniable familiarity with his right to counsel, protest that he wished to consult with an attorney. To be sure, as have the courts who have previously dealt with this case, we surely do not commend or condone all the actions of the state prosecutor or of the local police, such as the arresting officers’ failure to inform the desk sergeant at the 73rd Precinct that Alexander was being held there. Yet, our dissatisfaction with some of these specific, yet isolated, objectionable acts of the police or the prosecutor does not inevitably lead us to conclude, and we do not conclude, that Alexander was being held “incommunicado.”
The facts here belie any claim by Alexander that he did not waive his right to counsel. We do not agree that the circumstances surrounding Alexander’s detention and interrogations are similar enough to those in Brewer v. Williams for that recent Supreme Court decision to be of any assistance to Alexander here. There, the Supreme Court refused to find that, in the context of an egregious police interference with an existing attorney-client relationship, a waiver of the right to counsel had occurred. Again, a comparison of the circumstances there with those here is instructive and shows that in no way are the two situations comparable. There, where judicial proceedings against the defendant had already commenced, the defendant, who was a recent escapee from a mental institution, had even prior to his arrest been consulting regularly with counsel; in fact, it was the attorney who had advised the defendant to surrender in the first place. Moreover, the police not only knew that the defendant was represented by counsel (indeed, two attorneys were advising him) but the police had actually agreed with the defendant’s principal attorney that they would not question the defendant unless counsel were present. Despite this express agreement, and notwithstanding the defendant’s express and implied assertions of his right to counsel during the time he was alone with the police, one of the police officers admitted that the police deliberately began to manipulate the defendant so that he would make as many incriminating remarks as possible before speaking to his attorney. The facts surrounding Alexander’s detention at the 73rd Precinct station-house do not, to put it simply, even begin to approach the affirmative and inexcusable police disregard of an existing attorney-client relationship that was so evident in Brewer. With full knowledge of his right to consult with an attorney, Alexander of his own free will chose, for whatever reason, to abstain from any exercise of that right and he must now accept the consequences of that entirely volitional decision.
We thus conclude that the record here, and the detailed and specific findings of fact which the state trial court judge made on the basis of that record, establish to our satisfaction as they also established to the satisfaction of the federal district judge below that Alexander’s motion to suppress his confession to Assistant District Attorney DiBenedetto was properly denied. The confession was uncoerced and so was Alexander’s decision to make that confession without benefit of prior or contemporaneous consultation with counsel.
Affirmed.
APPENDIX
By Mr. DiBenedetto:
[Alexander] A. (answer continued) Pop your questions.
Q. Sam, on August 24, 1971, a few weeks ago were you at a Bohack Supermarket somewhere in Brooklyn? A. August 24th, — I don’t know if that’s the correct date or not. I do know I was in Bohack Supermarket. I don’t know if it was the 24th, 25th, or 23rd.
Q. Where was this Bohack Supermarket located? A. Brooklyn, Flatbush section.
Q. Tell me who you were with and how you got there? A. There was three other fellows besides myself.
Q. Who were you with? A. Pete.
Q. Do you know Pete’s name? A. I know him as Pete.
Q. Is that Edward Williams? A. The guy out there?
Q. Yes. A. That’s his name.
Mr. DiBenedetto: Let the record indicate that Pete is otherwise known as Edward Williams.
By Mr. DiBenedetto:
Q. Who else? A. Bob.
Q. Bob Smith, Robert Smith? A. Yes, Robert Smith and Gene.
Q. Do you know Gene’s last name? A. I was told here his last name was Twitty. The Detective told me his last name when I was here.
Q. Do you know where Gene hangs out or lives? A. I know they hang out on Atlantic and Saratoga.
Q. How did you meet these guys that day? A. He approached me.
Q. Who approached you? A. Gene approached me. He asked, “If I was game to make some money?” I asked him, “What type of money, and what type of game?” I asked what you have to do to “Make this quick money?” He said, “He had a place in mind,” and he told me, “What I had to do, if I go along with him.” 1
Q. What did you have to do? A. \He wanted me to stand up to the door, and don’t let nobody out of the store. Anybody who comes in to let them in, but not to let\ nobody out.
Q. What did you do? A. We went in the supermarket, and he told me — he said “You stand by the door.”
Q. You went to Bohack Supermarket. How did you get there? A. We drove there.
Q. Whose car? A. Pete’s car.
Q. What kind of car was it? A. It was a dark burgundy, or maroon — black top.
Q. Do you know what make it was? A. A Dodge. I don’t know the model.
Q. And whose car was that? A. Pete’s.
Q. That’s Edward Williams? A. Yes.
Q. And what happened when you guys got there? A. Gene, myself, and Bobby— the three of us went in the Supermarket.
Q. Where did you park? A. I don’t know the name of the street, but we parked around the corner from the Supermarket.
Q. And what happened when you got out of the car? A. Gene told Bobby — he said, “When I tell you to — open the register,” and he said, “Sam, you go to the door,” and he said, “I’ll lock the manager up — assistant manager.” He said that he would lock him up. He said, “When we finish, everybody is going to leave — to go out of the place and leave.”
Q. Did you have a gun at the time? A. Yes, I had a pistol.
Q. Where did you get the gun from? A. Gene gave it to me.
Q. Where did Gene get the gun from? A. I don’t know.
Q. Did any of you go to the trunk of the car? A. Oh, yes. He got them out of the car. I thought you meant where he got them before that. He got them out of the car.
Q. Out of the trunk, or where? A. I think it was in the trunk.
Q. Do you know who opened up the trunk? A. No, I don’t remember.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_r_bus
|
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 "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.
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as Executor for the Last Will and Testament of Thomas McDonough, Deceased, Appellant, v. UNITED STATES of America, Appellee.
No. 14879.
United States Court of Appeals Ninth Circuit.
Oct. 26, 1956.
Knight, Boland & Riordan, J. W. Radii, F. J. Kilmartin, George-H. Koster, San Francisco, Cal., for appellant.
Charles K. Rice, Asst. Atty. Gen., Lee A. Jackson, Harry Baum, Louise Foster, Carolyn R. Just, Sp. Assts. to Atty. Gen., Lloyd H. Burke, U. S. Atty., San Francisco, Cal., for appellee.
Before BONE, ORR and POPE, Circuit Judges.
POPE, Circuit Judge.
This was an action for the recovery of estate taxes levied and collected from the plaintiff “appellant with respect to the estate of Thomas McDonough. Thomas McDonough died September 13, 1948, just 14 months and 8 days after the death of his brother Peter. He succeeded, by right of survivorship, to property held by himself and Peter as joint tenants. This circumstance required the application of subdivision (c) of § 812 of the Revenue Code of 1939, 26 U.S.C.A. § 812 (c), headed “Property previously taxed”, and authorizes a deduction from the gross estate for property previously taxed as a part of the estate of a previous decedent, when such property was acquired by bequest, devise or inheritance, (including survivorship of a joint tenant) from a decedent who died within five years prior to the later decedent’s death. The dispute we must settle relates to the manner in which the value of this “property previously taxed” should be ascertained.
The facts of the ease are set forth in the decision of the district court, reported at 130 F.Supp. 923. They present an unusual and comparatively rare situation. This is unlike the ordinary case in which the prior estate completely discharges its obligations, including debts and estate taxes, out of the original corpus of the estate. In such case this net balance is what the successors receive by “bequest, devise, or inheritance” from such prior decedent. What makes this case difficult is that here the joint tenancy property passed to Thomas before the estate tax owed by Peter’s estate was paid, and the tax was paid after the death of Thomas by Thomas’ executors. One-half of the value of the joint property, or $577,971.92, was included in Peter’s gross estate for purposes of determining its estate tax liability, and, because this tax was not paid out of Peter’s estate, all its gross value was included and identified in Thomas’ estate as having been received from Peter. Therefore, appellant asserts, the amount of property previously taxed within five years which was entitled to be deducted from the gross estate for estate tax purposes in the estate of Thomas was this $577,971.92. They say that this is precisely what § 812 provides. That section, as pertinent here, is as follows:
“§ 812. Net estate. For the purpose of the tax the value of the net estate shall be determined, * * * by deducting from the value of the gross estate—
* * * * * i
“(c) Property Previously Taxed. An amount equal to the value of any property (1) forming a part of the gross estate situated in the United States of any person who died within five years prior to the death of the decedent, * * * where such property can be identified as having been received by the decedent * * * from such prior decedent, by gift, bequest, devise, or inheritance, or which can be identified as having been acquired in exchange for property so received. * * * This deduction shall be allowed only where * * * an estate tax imposed under this chapter or any pri- or Act of Congress, was finally determined and paid by or on behalf of * * * the estate of such pri- or decedent, * * * and only in the amount finally determined as the value of such property in determining the value of * * * the gross estate of such prior decedent, and only to the extent that the value of such property is included in the decedent’s gross estate, and only if in determining the value of the net estate of the prior decedent no deduction was allowable under this subsection, section 861(a) (2), or the corresponding provisions of any prior Act of Congress, in respect of the property or property given in exchange therefor.
*****
“Where a deduction was allowed of any mortgage or other lien in determining the * * * estate tax of the prior decedent, which was paid in whole or in part prior to the decedent’s death, then the deduction allowable under this subsection shall be reduced by the amount so paid. * * *
*****
«* * * Where the property referred to in this subsection consists of two or more items the aggregate value of such items shall be used for the purpose of computing the deduction. * * * ” (italics ours.)
In determining the identified “property previously taxed”, the Government made certain deductions from the gross estate valuation previously mentioned. These included $141,592.71, that part of Peter’s estate tax attributable to the joint tenancy property, and $49,263.81, representing inheritance taxes on the same property. The Government thus claimed that the amount of the deduction for “property previously taxed” should be a net amount after subtracting these items from the total “value of such property * * * included in the decedent’s gross estate”.
Appellant challenges this procedure for calculating a “net amount” by pointing to the text of § 812, and noting that it has no language which, in so many words, authorizes the Government’s mode of calculation. Thus attention is called to the language we have italicized in the above quotation of the section. The reference is to values included in the gross estate. And it is said there is no room for implying an authorization for reduction to a net amount, by subtracting the estate and inheritance taxes mentioned, as the one express provision for a reduction of the “deduction allowable under this subsection” is that part which reads: “Where a deduction was allowed of any mortgage or other lien in determining * * * the estate tax of the prior decedent, which was paid in whole or in part prior to the decedent’s death, then the deduction allowable under this subsection shall be reduced by the amount so paid.” Clearly enough this last quoted language does not apply here, both because these taxes were not deducted “in determining the * * * estate tax of the prior decedent,” and they were not paid “prior to the decedent’s death”.
Both positions find support in the authorities. Appellant finds support in Commissioner of Internal Revenue v. Garland, 1 Cir., 136 F.2d 82, 83. That also was what might be called an exceptional case in that certain obligations of the prior estate, including estate and inheritance taxes, and debts, were paid not out of the corpus of the prior estate, but out of income of that estate prior to the death of the second decedent. In arriving at the value of the property previously taxed for the purpose of computing the deduction allowed by the then revenue code section (which was in substance the same as the section here considered), the Commissioner undertook to deduct these debts and obligations of the prior decedent’s estate from its gross value. The taxpayer there petitioned the Board of Tax Appeals for a redetermination making the same argument which appellant presents here, and was sustained by the Board. In reviewing the Board’s decision, the court there said :
“In such a situation, § 303(a) (2) provides, with qualifications not now relevant, that the present decedent’s estate is entitled to a deduction in an amount equal to the value of the identified property as it stood in the gross estate of the prior decedent.
“In effect what the Commissioner asks us to do is to go beyond the permissible limits of statutory interpretation and to write into § 303 (a) (2) a further proviso that in no event may the allowable deduction exceed the interest of the present decedent in the estate of the prior decedent as of the date of the latter’s death. Neither in the wording of the statute nor in its legislative history do we find any support for the Commissioner’s assertion that the statute was never intended to place the second decedent in a better position from an estate tax viewpoint than would have been the case had the obligations of the first estate been satisfied in full by liquidation of property included in the gross estate instead of being satisfied in whole or in part out of income earned by the estate during administration. Obviously, Edith’s estate is better off by reason of the fact that Harry’s estate after his death earned income which could be applied to satisfy the obligations of the estate. If there had been no such income, part of the real estate or securities would have had to be sold to satisfy the tax and other obligations of Harry’s estate and thus would not have been found in Edith’s estate as identifiable property derived by devise or bequest from the prior estate. Insofar as Edith’s estate gains any advantage under the circumstances it is an advantage resulting from the unambiguous language of § 303(a) (2).”
The same general view was expressed by Judge Hutcheson in dissenting from the majority opinion in Bahr v. Commissioner, 5 Cir., 119 F.2d 371. In that case, as here, the estate taxes on the pri- or estate had not been paid when the second decedent died. They were paid by the latter’s executors. The majority of the court took the view, which the Government has presented here, that the “property previously taxed” deduction should be valued by the net undistributed estate of the first decedent, that is to say, the same amount that would have been arrived, at had administration. of the first estate been completed and .the estate taxes and other charges paid out of the corpus before the assets were turned over to the successor under the will. Protesting this, Judge. Hutcheson said, at page 377: “Where the words of a taxing act have a sensible meaning they are controlling. They must be followed rather than a supposed intent not expressed in them. * * *" It is' to be noted that in its later case, Thomas v. Earnest, 5 Cir., 161 F.2d 845, the court which had decided the Bahr case, supra, modified the rule of its former decision by holding that in a case of this character, the value- of property previously taxed should not be reduced by the amount of the federal tax due on the prior estate. The court reached that conclusion through its interpretation of that part of § 812(c) which is last quoted above and which authorized a reduction to the extent of deductions allowed “in determining * * * the estate tax of the prior decedent,” and because estate taxes are not allowed as a deduction in determining the estate tax. The Thomas case, at least in part, supports the position of the appellant here.
The Government’s position finds full support in Central Hanover Bank & Trust Co. v. Commissioner, 2 Cir., 159 F.2d 167, 169. In that case a husband died leaving his wife as executrix and sole legatee. She died approximately four years later. Within six months after the husband’s death, the personal property of his estate was distributed to the wife as sole legatee. The debts of the husband’s estate were then paid by the wife who used her own funds for that purpose. In calculating the value of the property previously taxed, the Commissioner allowed only that percent of the assets distributed to the wife which represented the value over and above the debts of the husband. The taxpayer urged the court to follow Commissioner of Internal Revenue v. Garland, supra. The court recognized that the language of the statute left something to be desired in the way of a definite provision to govern this precise case. The court suggests that the precise point is not covered by express language by saying: “Had Congress been aware of such a possibility, it can scarcely be doubted that it would have provided against it.” The court appeared to be of the impression that the framers of the section must have had in mind the accomplishment of the same result whether the first estate be liquidated and its debts and estate taxes paid from the corpus of that estate, or whether the devisee or legatee under the first estate paid the debts and estate taxes from income received from the first estate pending administration, or whether those debts and taxes were paid out of other resources either by such devisee or legatee herself, or by the executrix of her estate. The court refused to make the same literal application of the language of the section that had been adopted by the first circuit in Commissioner of Internal Revenue v. Garland, saying, 159 F.2d at page 169: “There is no more likely way to misapprehend the meaning of language — be it in a constitution, a statute, a will or a contract — ¡than to read the words literally, forgetting the object which the document as a whole is meant to secure. Nor is a court ever less likely to do its duty than when, with an obsequious show of submission, it disregards the overriding purpose because the particular occasion which has arisen, was not foreseen.”
We have come to the same conclusion of the Second Circuit in Central Hanover Bank, supra. In doing so, we need not say that this is a case in which the assumed purposes of Congress can be read into the statute where appropriate literal language is missing. The court in the Central Hanover Bank case noted that the section recites that the deduction for property previously taxed is permissible “where such property can be identified as having been received by the decedent * * * from such prior decedent”. Referring to this, the court said: “The question is whether by ‘identity’ the statute means the physical identity of the asset, or the identity of the legatee’s financial interest in it. * * * [W]hen she ‘received’ the shares * * * the only interest ‘bequeathed’ to her was that proportion of their value which was free of the debts then still unpaid”. In thus holding that the property which can be identified as having been received by the decedent from such prior decedent was the net amount received from that estate, we think that the court arrived at a correct solution of the problem and one which we choose to adopt and follow.
We note here one difference between this and the other cases cited. Here Thomas took by succession as a joint tenant. What he thus received, while subject to, and chargeable with the estate tax, § 827, I.R.C.1939, 26 U.S.C.A. § 827, and the inheritance tax, Cal.Rev. and Tax.Code, § 13671, is not chargeable with other claims against Peter’s estate. Zeigler v. Bonnell, 52 Cal.App.2d 217, 126 P.2d 118. The language used by Judge Hand, quoted above from the Central Hanover Bank case, refers to the value free from the “debts” then still unpaid. He said: “It is of no consequence whether the debts were liens in a formal sense upon the husband’s assets; it is enough that, if the wife did not pay them, the creditors could follow them and sell them on execution.” Here, in applying the rationale of the Central Hanover Bank case, we must substitute for the general word “debts”, the words “estate and inheritance taxes”, as they are the only items of charge against Peter’s estate collectible from the joint property which passed to Thomas.
Although we approve the decision of the district court in adopting the rule of the Central Hanover Bank case, yet we are unable to ascertain from the record before us whether the court took into account this distinction. Its opinion states [130 F.Supp. 924]: “The Commissioner redetermined the tax and allowed a deduction of only $373,894.78, which is the value of all of Peter’s gross estate less all the estate taxes, state inheritance taxes, deductions, legacies and claims made in the Estate of Peter McDonough.” The record does not make clear to us whether, in arriving- at the figure mentioned, the Commissioner did so by subtracting from the gross estate valuation claims which are not chargeable against the joint property. For this reason we remand the case to the court below with directions to permit the parties to stipulate, if they can, as to the proper amount of the allowable deduction for “property previously taxed”, computed in the manner here held proper, and if such stipulation be not made, to proceed to a determination of such amount.
Subject to the directions for further proceedings here ordered, the judgment is affirmed.
. The phraseology of § 812(c) is “ * * * ■where such property can be identified as having been received by the decedent * * * from such prior decedent by gift, bequest, devise, or inheritance”,
. Bloedorn v. United States, 116 F.Supp. 133, 126 Ct.Cl. 591, reaches the same conclusion.
. This refers- to the possibility of the legatee under the -will of the first decedent deliberately increasing the deduction allowable by not liquidating the first estate or paying its debts from its corpus but rather taking all the assets and paying the debts from other sources.
. The 1954 Code, § 2013, 26 U.S.C.A. § 2013, deals with this problem in a different and more explicit manner. See also U. S. Code Congressional and Administrative News, 1954, Vol. 3, p. 5106.
. These varying views are discussed in an illuminating article on “The lístate Tax Deduction for Property Previously Taxed”, 53 Col.L.K. 761 (1953), by liarry J. Kudick, who calls this section “the most complex and confounded provision of the entire federal estate tax law.”
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_respond1_3_2
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
Wilbur HORNE, Appellant, v. UNITED STATES of America, Appellee.
No. 16442.
United States Court of Appeals Fifth Circuit.
June 10, 1957.
John B. Harris, Jr., Macon, Ga., for appellant.
William C. Calhoun, U. S. Atty., William T. Morton, Asst. U. S. Atty., Augusta, Ga., for appellee.
Before BORAH, RIVES and BROWN, Circuit Judges.
RIVES, Circuit Judge.
Appellant was convicted on two counts of an indictment, charging him with violating Section 2113(a) and Section 2113(c) of Title 18 of the United States Code. He was sentenced to imprisonment for fifteen years for the violation of Section 2113(a) and ten years for the violation of Section 2113(c), to be served consecutively. Upon this appeal he insists that the district court erred in three particulars: 1, in admitting in evidence against him two written confessions; 2, in sustaining objection to certain testimony sought to be elicited from a Lieutenant of the Georgia State Patrol; 3, in not according him the kind of fair and impartial trial to which he was entitled.
The Bank of Dudley, Laurens County, Georgia, was robbed at about 3:35 P.M. •on February 23, 1955. According to R. L. Hogan, the President of the Bank, the lone robber took from him at the point of a pistol a total of $2,572.00, of which $1,962.00 was recovered within a couple of days. The other $610.00 has not been found.
In the bank at the time of the robbery, in addition to Mr. Hogan, there were two women employees, Miss Leontile Baggett and Mrs. Frances J. Rinehardt. Each of them testified that the robber came into the bank twice, inquiring on his first visit whether the bank cashed personal checks; that each had a good look at him, and Mrs. Rinehardt had observed that before entering the bank he got out of a 1949 or 1950 Buiek automobile of a light gray or “greenish” color.
Either from the description of the robber or of the car, the Sheriff of the County, Carious Gay, testified that he immediately suspected the appellant, who had become addicted to the use of narcotics in the treatment of an injured eye. By shortly after 7:00 o’clock on the evening of the robbery, the appellant had been arrested and brought to the bank for identification. Mr. Hogan, Miss Baggett and Mrs. Rinehardt were all positive in their identification of him as the man who had robbed the bank.
Mr. Gay, the Sheriff, testified that later on that same night the appellant confessed to him that he had robbed the bank; that he used no force or threats and offered him no hope of reward; that he did not reduce the confession to writing until late the next morning, some time before noon; that meanwhile the appellant had not been carried before a magistrate to have a commitment hearing. To the introduction of the written and signed confession, the appellant objected on the sole ground that “A confession cannot be used against a man unless it is obtained after he has been carried before a committing magistrate,” which objection was overruled by the court. Mr. Gay further testified that, the second night after the robbery, appellant carried him to where his shirt, glasses and cap had been thrown out of the car, and showed him where the gun and $1,962.00 of the money “was buried side of a stump in Dodge County on Stewart Rogers’ farm.”
James II. Applegate, Special Agent for the Federal Bureau of Investigation, testified that on the day after the robbery he went to the jail, got the Sheriff’s permission and talked to the appellant; that he made no threats or promises; that the appellant appeared normal, talked freely and willingly, and gave him a signed confession almost verbatim the same as that given the Sheriff. Appellant’s counsel stated, “I offer the same objection to that,” which objection was overruled by the court.
A third instrument in the nature of a confession over the appellant’s signature addressed “To the People of Laurens County” had been published in the Dublin, Georgia, newspaper. It was written at the suggestion of a lawyer who had represented the appellant upon his prosecution in the Georgia State Court. The appellant had admitted that the signature was his but denied having read the paper.
C. E. Tripp, operator of the “Trading Post” of Dublin, Georgia, testified that on the day of the robbery he had sold the appellant a 38 caliber revolver for thirty some odd dollars, of which ten dollars was in cash. The appellant had signed a typed request to the Sheriff dated June 13, 1955, reading, “Mr. Carlos Gay, please let C. E. Tripp have the 38 Postal (sic) which you have of mine. Thanks.”
O. D. Cullens, a merchant, and Harvey Hobbs, a clerk in his store, testified to the sale to the appellant on the day of the robbery of five or six “38 special” cartridges.
Rufus G. Hester testified that, about a week before the bank was robbed, he had a drink or two with appellant, and appellant said more or less as a joke that “there was a bank that he knew that we could rob right close by, but he didn’t say which bank.” Two witnesses for appellant testified by way of impeachment that Hester had a bad character and that they would not believe him on oath.
B. P. McKinnon, a Lieutenant of the Georgia State Patrol, testified on behalf of appellant that about 30 minutes after he heard the broadcast about the robbery, or at about 4:15 P.M. or possibly 5:00 P.M., he stopped appellant in his car at a point 30 or 40 miles from the bank because the car resembled the description broadcast; that appellant cooperated with him in searching the car; that nothing was found; that after searching the car thoroughly he called the radio station at the State Patrol Headquarters and talked to the License Examiner, P. M. Walker; that he recognized Walker’s voice; he was asked to relate his conversation with Mr. Walker. The court sustained the Government’s objection to this conversation as hearsay. Mr. McKinnon further testified that following the conversation he released the appellant.
The appellant testified as a witness in his own behalf denying his guilt, stating that the Sheriff had kept him out all night without medication for his injured eye; that he was in pain and in serious •condition; and I didn’t sign any confession that I remember.” He testified that the Sheriff later furnished him whiskey and drugs. He denied buying the pistol or any cartridges and denied having any conversation with Hester. He denied that he had shown the Sheriff where the money and pistol were hid and testified, instead, that the Sheriff had carried him to where they were, and had handed him a pistol and tempted him to shoot it. “I figured that he wanted to shoot me because he was so dirty.” The foregoing was substantially all of the evidence.
There was no error in admitting either of the confessions against appellant. The objection upon the ground that each confession was obtained before appellant was carried before a committing magistrate was not well taken for several reasons. According to the Sheriff, appellant had orally confessed within a few hours after his arrest. There was credible testimony that appellant was not mistreated and that the confessions were reduced to writing before noon of the next day. Further, we have held that the McNabb Rule does not apply when an accused is detained by state officers. Brown v. United States, 5 Cir., 228 F.2d 286. If we consider the objection as properly insisting that the confessions were not voluntary, there was ample evidence to authorize their admission, and the court thereafter properly charged the jury that it should consider the evidence tending to show that the confessions were not voluntary in passing on their credibility. Schaffer v. United States, 5 Cir., 221 F.2d 17, 21; Brown v. United States, supra, 228 F.2d at p. 289.
The testimony sought to be elicited from Lieutenant McKinnon of the Georgia State Patrol as to his conversation with License Examiner Walker was obviously hearsay. Further, there is no showing by a bill of exceptions or otherwise as to what that testimony would have been or that its exclusion was prejudicial.
We have carefully read and examined the entire record and we are satisfied that the appellant was accorded a fair and impartial trial.
The appellant has not raised the question of whether he could properly be convicted and sentenced both for violating Section 2113(a) of Title 18, United States Code, robbing the bank, and for violating Section 2113(c) of the same title, disposing of or concealing the stolen money. Nevertheless, to avoid the possibility of a plain error, we have examined that question. In our opinion, it is clearly not ruled by the late case of Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370, and the appellant could properly be convicted and sentenced for both offenses. Heflin v. United States, 5 Cir., 223 F.2d 371, 376; Cartwright v. United States, 5 Cir., 146 F.2d 133, 135; Aaronson v. United States, 4 Cir., 175 F.2d 41, 42; 76 C.J.S. Receiving Stolen Goods § 14 b; 22 C.J.S. Criminal Law § 9; Cf. Pringle v. United States, 5 Cir., 128 F.2d 736.
Finding no reversible error in the record, the judgment is
Affirmed.
. Ҥ 2113. Banlo robbery and incidental crimes
“(a) Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, or any savings and loan association; or
“Whoever enters or attempts to enter any bank, or any savings and loan association, or any building used in whole or in part as a bank, or as a savings and loan association, with intent to commit in such bank, or in such savings and loan association, or building, or part thereof, so used, any felony affecting such bank or such savings and loan association and in violation of any statute of the United States, or any larceny—
“Shall be fined not more than $5,000 or imprisoned not more than twenty years, or both.” 18 U.S.O.A.
. “(c) Whoever receives, possesses, conceals, stores, barters, sells, or disposes of, any property or money or other thing of value knowing the same to have been taken from a bank, or a savings and loan association, in violation of subsection (b) of this section shall be subject to the punishment provided by said subsection (b) for tbe taker.” 18 U.S.C.A. § 2113(c).
. Rule 52(b), Federal Rules of Criminal Procedure, 18 U.S.C.A.
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_crmproc1
|
32
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited federal rule of criminal procedure in the headnotes to this case. Answer "0" if no federal rules of criminal procedure are cited. For ties, code the first rule cited.
David M. McGUIRE, Appellant, v. UNITED STATES of America, Appellee.
No. 17146.
United States Court of Appeals Ninth Circuit.
April 21, 1961.
David M. McGuire, in pro. per.
Laughlin E. Waters, U. S. Atty., Thomas R. Sheridan, David Y. Smith, Asst. U. S. Attys., Los Angeles, Cal., for appellee.
Before BARNES, JERTBERG and MERRILL, Circuit Judges.
JERTBERG, Circuit Judge.
Appellant, a federal prisoner held in custody at the United States Penitentiary at McNeil Island, Steilacoom, Washington, appeals from an order of the United States District Court, Southern District of California, entered on May 17, 1960, denying without hearing appellant’s motion, based on Title 28 U.S. C.A. § 2255, filed on May 9, 1960, to vacate and set aside the sentence imposed upon him by the same district court on the 15th day of May 1959, following his plea of guilty to counts 4 and 9 of an indictment charging the appellant in each count with the offense of uttering and publishing as true with intent to defraud the United States a United States Treasury check payable to another whose endorsement was forged by appellant, as set forth in Title 18 U.S.C.A. § 495, and denying without hearing appellant’s motion, filed May 11, 1960, to vacate judgment on counts 4 and 9 of the indictment, based on the provisions of Rule 35 of the Federal Rules of Criminal Procedure, 18 U.S.C.A.
Incorporated in appellant’s verified petition filed on May 9, 1960, under Title 28 U.S.C.A. § 2255, appellant states: that he was arrested on February 13, 1959 by a California Highway Patrol officer and placed in jail at Bar-stow, California, and on that day was delivered to one James Hurst, a federal agent, who delivered appellant to the Los Angeles County jail, where he remained until February 16, 1959, on which date complaint was filed against him before the United States Commissioner at Los Angeles, which complaint was sworn to by James Hurst, Special Agent, United States Secret Service; that on February 16, 1959, appellant appeared before the United States Commissioner and waived preliminary examination; that between his arrest at Barstow, California and his appearance before the United States Commissioner appellant was subjected to interrogation by Agent Hurst, who allegedly stated to appellant that he would get probation for appellant if he would cooperate with the government; that appellant protested his innocence of the charge against him; that Agent Hurst stated that he had talked with the United States Attorney who would be willing to help appellant if appellant cooperated, and that if the appellant would not cause the government any trouble that the appellant would be granted probation; that Agent Hurst typed out a statement and asked appellant to sign it; that appellant refused; that appellant was then informed that his wife was waiting to see him; that Agent Hurst stated that when appellant signed the statement that he would be permitted to see his wife; that appellant, after two hours of further interrogation, signed the statement without reading it; that appellant had been questioned for a period of 14 hours and held for a period of 76 hours before being taken before the Commissioner; that appellant appeared before a United States district judge to plead to the indictment on March 23, 1959, at which time an attorney was appointed to represent appellant; that appellant informed counsel of his incarceration, interrogation and the signing of the statement, but nevertheless protested his innocence of any charge; that counsel advised appellant, because of appellant’s prior record and his signing of the statement, appellant should plead guilty and get probation; that on April 17, 1959 appellant pleaded guilty to counts 4 and 9; that on April 13, 1959 Agent Hurst advised appellant to plead guilty to two counts of the indictment and that he had talked to the probation officer who would render to the court a favorable report and that appellant would get probation; that appellant’s court appointed counsel made no effort to investigate the merits of the case and that he advised appellant if he pleaded not guilty he would be convicted in light of his prior record and because of the statement which appellant had signed; that on May 5, 1959 a named probation officer advised appellant that appellant would be granted probation; that after appellant had been sentenced on May 15, 1959 to serve consecutive sentences of five years on each count to which he pleaded guilty the named probation officer stated if he had known the court was going to impose such a sentence he would not have submitted an unfavorable probation report, and that he would endeavor to get the judge to modify the sentence; that on May 23, 1959 appellant was returned to court, at which time he was told by Agent Hurst that appellant’s sentence would be modified if appellant identified the party from whom he received the checks; that appellant protested his innocence and that he was not trying to protect anyone.
For the reasons hereinbefore stated, appellant claims to have been denied the effective assistance of counsel, that he was coerced into entering the guilty pleas, that such pleas were not voluntary on his part, and that his constitutional rights had been violated. At the time of filing the petition, appellant filed affidavit of poverty, motion to proceed in forma pauperis, motion for appointment of counsel, and an application for a writ of habeas corpus ad testificandum.
Appellant’s motion, filed on May 11, 1960 to vacate the judgment under Rule 35 of the Federal Rules of Criminal Procedure, was based on appellant’s claim that venue was improperly laid in that the indictment should have been filed in the Northern Division instead of the Central Division of the United States District Court for the Southern District of California.
No counter-affidavits were filed on behalf of the government.
In its order of May 17, 1960, denying appellant’s motions, the district court stated:
“On December 22, 1959 defendant filed a ‘Motion To Vacate Judgment and Sentence And To Withdraw Plea Of Guilty Under Criminal Rule 32(D).’ This Court denied the motion.
“On January 11, 1960 defendant filed notice of appeal. On April 13, 1960 the appeal was dismissed by the United States Court of Appeals for the Ninth Circuit.
“On May 9, 1960 defendant filed a ‘Motion To Vacate And Set Aside The Illegal Sentence Imposed,’ and on May 11, 1960 defendant filed a ‘Motion to Vacate Judgment on Counts 4 and 9 pf the Indictment in the Above-Entitled Cause.’
“It appears from the files and records in this case that the sentence imposed upon defendant, petitioner herein, is not illegal and that the issue that the plea of guilty to Counts 4 and 9 of the Indictment was not freely and voluntarily entered by the defendant has no merit.
“The Motion filed on May 9, 1960 and the Motion filed May 11, 1960, described in detail above, are denied.”
It appears that on December 22, 1959 appellant filed in the district court verified motion and petition “To Vacate Judgment and Sentence And To Withdraw Plea' Of Guilty Under Criminal Rule 32(D)”, which recites that jurisdiction of the district court to grant the redress sought rests upon Title 28 U.S. C.A. § 2255. In such petition it is stated that his pleas of guilty were entered as a result of duress and while appellant was in a T‘state of mental incoherence and inadvertence”. The statements alleged in this petition are in the main substantially the same as those herein-before outlined in the petition filed on May 9, 1960, except appellant makes no detailed statements concerning the lack of effective assistance on the part of his court appointed counsel. This petition was denied by the district court on the day it was filed. The order of the district court denying the petition states:
“Petitioner contends that his plea of guilty was entered by reason and result of duress, and that his plea of guilty was entered ‘in a state of mental incoherence and inadvertence.’
“The record has been reexamined and does not indicate any duress was applied to petitioner before or at the time his plea of guilty was entered nor during the period between the entering of his plea and the date of sentence; nor is there any mention of duress by petitioner in any of the numerous letters written by him to this Court before sentence and after incarceration. And at no time during defendant’s several appearances before this Court was there any indication or suggestion that defendant was incompetent.
“As a consequence, the motion filed by petitioner to vacate judgment and sentence is denied.”
No counter-affidavits were filed by the government in response to this petition.
Appellant filed notice of appeal to this Court from such order, and thereafter the appeal was dismissed at the request of appellant, his request stating:
“The motion appealed from is inadequately prepared concerning appellant’s contentions and points of law. Appellant has not presented the motion to the District Court properly, do to the fact appellant had no records of the case when the motion was filed, therefore the District Court have not had a chance to be presented with important facts of the. case and points of law stressed as should be in a proper motion. Appellant feels the motion is not appropriate for presentation to the court for relievef, and it is appellant’s desire to refile a proper motion with the district court in seeking relief.” (Sic.)
Appellant’s motion filed on May 11, 1960, based on Rule 35 of the Federal Rules of Criminal Procedure, that venue was improperly laid is without merit. Appellant made no objection at any time on the ground of improper venue, and his objection to the jurisdiction of the Central Division of the United States District Court for the Southern District of California was waived. See Hanson v. United States, 9 Cir., 1960, 285 F.2d 27.
As to appellant’s petition filed on May 9, 1960, made under Title 28 U.S.C.A. § 2255, the government contends that the order of the district court denying the petition must be affirmed on the ground that in the present petition appellant seeks similar relief to that sought in the petition filed on December 22, 1959, and that since appellant voluntarily dismissed his appeal from the order denying the relief sought the district court is not required to entertain a second or successive motion for similar relief. In this respect, Section 2255 provides in pertinent part as follows: “The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.”
From our examination of the two petitions, the contention of appellant that he was denied the effective assistance of counsel does not appear in the first petition. The right of one accused of crime to the effective representation of counsel is a fundamental right. Glasser v. United States, 315 U.S. 60, 62 S. Ct. 457, 86 L.Ed. 680; United States v. Hayman, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232; Commonwealth of Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 76 S.Ct. 223, 100 L.Ed. 126; Kyle v. United States, 9 Cir., 1959, 263 F.2d 657. Furthermore, the district court did not refuse to entertain the second petition, but in fact did entertain the same and after consideration denied it without hearing. Section 2255 in pertinent part provides, “Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.” In our view, the motion and the files and records in the case do not conclusively show that the prisoner is entitled to no relief.
In our view the district court should have caused notice of the petition to be served upon the United States attorney, and granted a hearing thereon.
The order appealed from is reversed and the case is remanded to the district court with instructions to hold a hearing in conformity with the provisions of Title 28 U.S.C.A. § 2255.
Question: What is the most frequently cited federal rule of criminal procedure in the headnotes to this case? Answer with a number.
Answer:
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songer_crmproc1
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14
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited federal rule of criminal procedure in the headnotes to this case. Answer "0" if no federal rules of criminal procedure are cited. For ties, code the first rule cited.
UNITED STATES of America, Plaintiff-Appellee, v. Jo Ann HARRELSON, Charles Voyed Harrelson and Elizabeth Nichols Chagra, Defendants-Appellants.
No. 83-1199.
United States Court of Appeals, Fifth Circuit.
Feb. 15, 1985.
Charles Campion, San Antonio, Tex., for J. Harrelson.
Thomas G. Sharpe, Jr., Brownsville, Tex., for C. Harrelson.
Charles V. Harrelson, pro se.
Warren Burnett, Larry Zinn, Galveston, Tex., for E. Chagra.
Edward C. Prado, U.S. Atty., LeRoy Morgan Jahn, Asst. U.S. Atty., San Antonio, Tex., for the U.S.
Before GEE, REAVLEY and DAVIS, Circuit Judges.
GEE, Circuit Judge:
This appeal draws before us, on a massive record, the claims for reversal by three appellants of their convictions of felony arising from the murder of United States District Judge John Wood. Several points are common to all appeals and are jointly briefed; others are peculiar to each of the several appeals. We commence our discussion with the former. Before doing so, however, a brief and general statement of background facts is appropriate; others will be noted where material to particular contentions made.
Factual Background
In late May of 1979, Judge Wood was instantly killed by a dumdum bullet fired into his back from a six millimeter rifle capable of extremely high velocity. He was shot while entering his automobile at his townhouse residence in north San Antonio, preparatory to driving to work at the courthouse downtown. Witnesses placed appellant Charles Harrelson at the townhouse complex that morning; further investigation indicated that Judge Wood’s murder by Harrelson was arranged by appellant Jamiel Chagra, a gambler and narcotics dealer under indictment for drug offenses, who was to be tried before Judge Wood and who feared his reputation for imposing severe sentences in drug cases.
Other evidence, construed favorably to the guilty verdicts, implicated Chagra’s brother Joseph, then a licensed attorney, in the plot. Joseph Chagra turned state’s evidence and testified against the present appellants, though not against his brother. Also implicated by Joseph’s testimony and other evidence were Jamiel Chagra’s wife, Elizabeth, as well as Harrelson’s wife, Jo Ann, who procured the murder weapon and assisted in its disposition. Implicated as well was Teresa Starr, the daughter of Jo Ann Harrelson, who traveled to Las Vegas — then the residence of the Chagra appellants — and took delivery of the blood money from Elizabeth Chagra. After initial recalcitrance, Starr also turned state’s evidence.
Charles Harrelson, the Chagras, and brother Joseph were charged with conspiring to murder Judge Wood on account of the performance of his duties. 18 United States Code § 1117. Harrelson and Jamiel Chagra were charged with the murder itself, in violation of 18 United States Code §§ 1111 and 1114. All were charged with conspiracy to obstruct justice in violation of 18 United States Code §§ 371 and 1503. The Chagra males were also charged with conspiring to possess a large quantity of marijuana, in violation of 21 United States Code § 841(a)(1). Elizabeth Chagra and the Harrelsons were tried together and convicted on all charges. This is their appeal from those convictions.
Jamiel Chagra was separately tried and convicted of conspiracy to obstruct justice and the drug charge, but acquitted of the murder and conspiracy to murder. Jo Ann Harrelson was separately tried on related perjury charges. United States v. Harrelson, 754 F.2d 1182 (5th Cir.1985). Jamiel and Elizabeth Chagra were separately convicted of criminal tax charges. United States v. Chagra, 754 F.2d 1181 (5th Cir.1985). We affirm these convictions in separate opinions today. We likewise affirm all convictions on the instant appeal save that of Elizabeth Chagra for conspiracy to murder in violation of 18 United States Code § 1117, which we reverse for reasons to be assigned.
Joint Contentions
1. Denial of Venue Change
Among the contentions common to all three appeals and jointly briefed is a complaint that the trial court abused its discretion in denying a change of venue sought on the basis of prejudicial pretrial publicity. Such a change is required “if the court is satisfied that there exists in the district where the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial____” Fed.R.Crim.P. Rule 21. As the words of the rule imply, that decision is one committed to the sound discretion of the trial court. United States v. Nix, 465 F.2d 90 (5th Cir.), cert. denied, 409 U.S. 1013, 93 S.Ct. 455, 34 L.Ed.2d 307 (1972). Much has already been written on this subject, both by the Supreme Court and by us, the principles governing such decisions are well settled, and there is scant need for us to address the subject generally or to approach it along the avenue of first principies. We therefore turn directly to the appellants’ specific claims of error.
A. Community Saturation
Appellants first contend that prejudicial pretrial publicity so saturated the venire from which came their jurors as to preclude the empanelling of an impartial jury, seeking to draw their situation within the ambit of such decisions as Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963) (half of Louisiana parish from which venire was drawn had viewed defendant’s televised confession to brutal crime).
We have recently had occasion to address such a contention in a case connected to this one;
[A]n appellant can demonstrate that prejudicial, inflammatory publicity about his case so saturated the community from which his jury was drawn as to render it virtually impossible to obtain an impartial jury. Murphy v. Florida, supra, 421 U.S. at 798-99, 95 S.Ct. at 2035-36; Mayola v. Alabama, supra, 623 F.2d [992] at 996-97 [5th Cir.1980], Proof of such poisonous publicity raises a presumption that appellant’s jury was prejudiced, relieving him of the obligation to establish actual prejudice by a juror in his case. Mayola v. Alabama, supra, 623 F.2d at 997. This presumption is rebuttable, however, and the government may demonstrate from the voir dire that an impartial jury was actually impanelled in appellant’s case. Id. at 1000-01. If the government succeeds in doing so, the conviction will stand despite appellant’s showing of adverse pretrial publicity. Id. at 1001.
United States v. Chagra, 669 F.2d 241, 250 (5th Cir.), cert. denied, 459 U.S. 846, 103 S.Ct. 102, 74 L.Ed.2d 92 (1982).
Assuming, as we do for purposes of analysis, that such community saturation existed here, we have carefully examined the voir dire conducted by the court of the twelve jurors and two alternates. The examination of the venire was searching and sensitive, covering seven court days and more than two thousand pages of transcript. In its course, the court thoroughly and correctly instructed the prospective jurors on their responsibilities should they be selected as jurors and inquired of each, on an individual basis, whether any pretrial publicity had come to his attention and its specific source. Additional and separate, individual inquiries concerned whether the venireman had formed any opinions regarding the guilt or innocence of any appellant, whether any verdict that he might return would be based solely on what he heard in court, whether he had any prior connection with federal court or the criminal law, and the like. Counsel frequently posed additional inquiries through the court.
Some of those who were seated on the jury had little or no prior knowledge of the case. Others indicated a casual acquaintance with publicity in the case. None had extensive knowledge or recollection of media reportage of the matter. We have carefully studied the voir dire examination of each juror and alternate. That examination convinces us that the trial judge was warranted in concluding that the jury he actually empanelled was impartial.
B. Failure to Discover Prejudice
Appellants next contend that the court’s questioning of the venire was too cursory to ferret out prejudice, relying on the last method for obtaining reversal on the basis of pretrial publicity noted in Chagra:
Finally, an appellant can establish both that pretrial publicity about his ease raised “a significant possibility of prejudice,” United States v. Davis, 583 F.2d 190, 196 (5th Cir.1978), and that the voir dire procedure followed by the district court in his case failed to provide a “ ‘reasonable assurance that prejudice would be discovered if present.’ ” United States v. Hawkins, supra, 658 F.2d [279] at 283 [5th Cir.1981] (citations omitted). But, “[b]ecause the obligation to impanel an impartial jury lies in the first instance with the trial judge, and because he must rely largely on his immediate perceptions, federal judges have been accorded ample discretion in determining how best to conduct the voir dire.” Rosales-Lopez v. United States, 451 U.S. 182, 188, 101 S.Ct. 1629, 1634, 68 L.Ed.2d 22 (1981) (plurality opinion). See also United States v. Gerald, 624 F.2d 1291, 1296 (5th Cir.1980), cert. denied, 450 U.S. 920, 101 S.Ct. 1369, 67 L.Ed.2d 348 (1981). Therefore, the district court’s decision to employ a particular procedure will not be lightly overturned. United States v. Hawkins, supra, 658 F.2d at 283 (citation omitted).
United States v. Chagra, 669 F.2d 241, 250 (5th Cir.), cert. denied, 459 U.S. 846, 103 S.Ct. 102, 74 L.Ed.2d 92 (1982).
We reject this contention. Assuming “a significant possibility of prejudice,” we are satisfied, for the reasons stated above, that the procedures followed by the careful trial court provided reasonable assurance that prejudice, if present, would have been discovered.
2. Other Contentions
Appellants make two additional points under this head. The first is that of a supposed failure by the trial court to allow counsel to participate actively in the voir dire process. Appellants correctly cite United States v. Ledee, 549 F.2d 990 (5th Cir.), cert. denied, 434 U.S. 902, 98 S.Ct. 297, 54 L.Ed.2d 188 (1977), and United States v. Ible, 630 F.2d 389, 395 (5th Cir. 1980), for the proposition “that voir dire examination... has little meaning if it is not conducted by counsel for the parties.” Ledee, 549 F.2d at 993. It does not follow, however, that the trial court must permit counsel himself personally to question the venire members directly in order to avoid reversible error; Rule 24(a), Federal Rules of Criminal Procedure, clearly places this decision within the discretion of the trial court. The trial court in this case satisfied the requirements of Ledee and Ible by itself posing the inquiries suggested by counsel. The issue is whether the voir dire examination was such as to uncover prejudice, not who conducted it. This was sufficient.
A final complaint is that the trial was conducted in the “John H. Wood, Jr. Courthouse,” as a prominent memorial plaque on that building proclaims. It is said that the jury must have been “tainted by their exposure to this sentiment of the community as evidenced by the deceased’s name on the courthouse walls.” We are not persuaded. The sentiment in question is one of respect for the deceased judge, one doubtless shared by most participants in the proceedings. We do not perceive, however, how this can be translated into a prejudice against particular defendants.
It is conceded that respect for a victim may conduce to anger against his killer. It is not conceded that such respect is in any way improper, or that such anger, evoked by all brutal crimes, can be vitiated by a change in physical surroundings. Murder is not so trivial an event. Given the careful examination and prophylactic instructions of the trial court, we do not see how this mute reminder of community respect for the dead could have prejudiced the panel. Impartiality does not demand that a jury forget the name of the victim.
3. Prejudicial Publicity During Trial; Sequestration
Trial of the case was actively followed and sometimes sensationally reported by the media, a circumstance made the basis of various renewed motions by the appellants for change of venue, for polling the jury regarding various media disclosures, and for other relief. Especial complaint is made of the play accorded a news conference called by the newly-elected state district attorney at which he disclosed plans to seek the death penalty for anyone guilty of the Wood murder. Reports of the conference and article were carried on the local television news that night and again the next morning. Appellants complain to us of the trial court’s denial of these motions and of its refusal to sequester the jury before it began its deliberations. These contentions were, as we have noted, addressed to the sound discretion of the trial court. See also United States v. Phillips, 664 F.2d 971 (5th Cir.1981), cert. denied, 457 U.S. 1136, 102 S.Ct. 2965, 73 L.Ed.2d 1354 (1982). We review the exercise of that discretion for abuse.
We have recognized a stricter standard for “during trial” publicity breaches than for pretrial ones. United States v. Williams, 568 F.2d 464 (5th Cir.1978). The proper procedure for dealing with such breaches was laid down for our Circuit in United States v. Herring, 568 F.2d 1099 (5th Cir.1978). There we prescribed a two-step threshold inquiry, followed by a voir dire examination of the jurors, if indicated. The first step in the threshold inquiry requires a determination by the trial court whether the material complained of “ ‘goes beyond the record... and raises serious questions of possible prejudice’ to the litigants.” Id. at 1104. There can be little doubt that this requirement is met by matter brought to the trial court’s attention here. Since it does, we turn to the second threshold step:
If, upon completing the first step of its inquiry, the trial judge concludes that material has been disseminated that does in fact “raise serious questions of possible prejudice,” a second inquiry should follow to determine the likelihood that the damaging material has in fact reached the jury. Initially, of course, the court should consider whatever precautions it has already taken to insulate the jury. For example, if the jury has been sequestered, one would normally expect that no extra-record material has reached the jury room. By the same token, if the material was published in a relatively obscure manner — say, in an out-of-town newspaper — one would expect that the material had not reached even an unsequestered jury. Another relevant point lies in the nature of the trial judge’s previous instructions on the matter. Has the court told the jury not merely to disregard but not to examine at all any external information on the case, especially that which appears in the news media? Has the court so instructed the jury on a regular basis, and how much time has elapsed since the court’s last directive and the dissemination of the material in question.
Id. at 1105. Determining that no prejudicial matter had reached the jury, the trial court halted at the second step. Obedient to Herring, we review the trial court’s precautions to insulate the jury, the nature of the trial court’s instructions to the jury regarding such matter, and the frequency and regularity of those instructions.
We have already determined that the court empanelled an impartial jury. Intending to keep it so, even before its selection and at the outset of the voir dire, the trial judge had included in his comprehensive instructions to the venire the following:
Now, I anticipate that in this particular case, there will continue to be extensive television, radio and possible newspaper coverage. You’re instructed that you are not, from this point on, to listen to any television or radio news commentary or news broadcasts, and you will not from this point on, except under the direction of the Court, review any newspaper nor read any newspaper at all. The Marshals will have papers prepared for you that will have any reference to this particular case or other cases that are involved stricken, so that you can read it without having to worry about getting any information from any other source. This is important to you and important to the Court, (emphasis supplied.)
This and similar instructions were repeatedly delivered to the venire members during the lengthy process of jury selection. In addition, the veniremen were instructed:
If you know of or learn anything about this case or any other case where you may be going to trial, except from the evidence that is admitted during the course of the trial, you should tell the Court about it at once.
After the jury was empanelled and the trial commenced, the trial judge repeatedly cautioned the jury to recall his instructions regarding extraneous matter, to do nothing that might impair their impartiality, and to report to him immediately the occurrence of any such event. Not a day of trial passed without the delivery by the trial judge of such an instruction to the jury, and almost invariably he delivered both a cautionary instruction at the close of proceedings and a general inquiry at the outset of the next day’s proceedings whether anything had occurred since the last recess that might have affected their impartiality.
Our painstaking examination of the entire record and the trial court’s repeated instructions convinces us that the jury was effectively shielded from contamination by publicity during the trial. Only one point troubles us: the form taken by the court’s continuing instructions to the jury regarding incidents occurring during trial. This was, in general, whether anything had happened during the recess that might have impaired any juror’s impartiality. Such an instruction, taken literally, leaves it to the individual juror to determine whether, even though some incident occurred, it was of such a character as to affect his impartiality; and although no special point is made of this circumstance by any appellant, we are constrained to observe that a better inquiry would have been whether any incident whatever involving extraneous publicity (or other impropriety) had occurred during the recess, leaving to the court to determine after investigation whether in the court’s judgment it was of such a nature as to have affected the juror’s impartiality.
For several distinct reasons, however, the instruction is not reversible error. In the first place, no such complaint of it is made to us. In the second, the instruction was repeatedly delivered to the jury by the trial court without objection on such a ground. And finally, taken together with the judge’s instruction to the venire members, quoted above, to advise him of anything learned other than “from the evidence that is admitted during the course of the trial,” we conclude that the jury was adequately advised and constantly reminded that the court regarded any receipt by them of extraneous matter as likely to impair their impartiality and hence required to be divulged.
The above likewise disposes of appellants’ joint complaint that the court declined to sequester the jury. Since we have concluded that the jury was not contaminated, whether it should have been sequestered is of no consequence. Thus there is no occasion for us to review the trial court’s exercise of that discretion on the issue of sequestration which is reposed in it by Rule 24, Federal Rules of Criminal Procedure.
4. Recusal of the Trial Judge
Appellants were tried before Judge William S. Sessions, a federal judge of the Western District of Texas, on charges arising from the murder of John H. Wood, Jr., also a federal judge of that district. Judge Sessions had known and worked with Judge Wood for eight or nine years at the time of the latter’s death and admired him. The relationship was collegial and there is no evidence of any special social relationship between the two judges or between the Wood and Sessions families. Judge Sessions was an honorary pallbearer at Judge Wood’s funeral and eulogized him at several memorial ceremonies. Because of the murder, Judge Sessions was guarded 24 hours a day until December 2, 1980. The appellants contend that these facts are sufficient to render the trial court’s denial of their motion for recusal reversible error.
Appellants moved for recusal of the trial court pursuant to 28 U.S.C. § 455(a), which provides, “Any justice, judge, magistrate or referee in bankruptcy of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” A motion for recusal is committed to the sound discretion of the district judge; denial of such a motion will not be reversed on appeal unless the judge has abused his discretion. Phillips v. Joint Legislative Committee, 637 F.2d 1014, 1021 (5th Cir.1981), cert. denied, 456 U.S. 960, 102 S.Ct. 2035, 72 L.Ed.2d 483 (1982); accord Davis v. Board of School Commissioners, 517 F.2d 1044, 1052 (5th Cir.1975), cert. denied, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188 (1976). Whether an abuse of discretion has occurred is determined “on the basis of conduct which shows bias or lack of impartiality.” United States v. Phillips, 664 F.2d 971, 1002 (5th Cir.1981), cert. denied, 457 U.S. 1136, 102 S.Ct. 2965, 73 L.Ed.2d 1354 (1982), quoting Davis, 517 F.2d at 1052. The alleged biased or prejudiced conduct must, as a general rule, be personal to mandate disqualification, United States v. Holland, 655 F.2d 44, 47 (5th Cir.1981), accord In re Corrugated Container Antitrust Litigation, 614 F.2d 958, 965 and n. 16 (5th Cir.), cert. denied, 449 U.S. 888,101 S.Ct. 244, 66 L.Ed.2d 114 (1980); it “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), quoted in Parrish v. Board of Commissioners, 524 F.2d 98, 107 (5th Cir.1975) (en banc) (concurring opinion), cert. denied, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188 (1976). The conduct complained of must, in addition, be such. as would cause a reasonable person, knowing all the circumstances, to harbor doubts about the court’s impartiality. Hall v. Small Business Administration, 695 F.2d 175, 179 (5th Cir.1983).
Although it is difficult to discern the legal grounds of appellants’ argument, their position appears to be that the facts stated above meet these tests or, alternatively, that we should ignore the tests and sustain their contention on the basis of common sense. Both positions lack merit.
Appellants’ own authorities clearly demonstrate that recusal is not warranted absent specific instances of conduct indicating prejudice against a defendant. An example of such conduct may be found in Webbe v. McGhie Land Title Co., 549 F.2d 1358 (10th Cir.1977), cited by appellants, where “the trial judge, without reading the depositions, and based on the oral argument of counsel for Webbe and Kitt, announced that the insurance company was ‘stuck’ before even permitting counsel for the insurance company to address the court.” Id. at 1361. It is not surprising that this conduct was found to indicate bias. Nor is it surprising that bias was found in In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955); the Murchison trial judge called the defendant’s personal attitude “not only... insolent,... but defiant,” and insisted on putting this statement on the record. Id. at 138, 75 S.Ct. at 626. We have carefully examined this record; nowhere in it is to be found any remark by Judge Sessions smacking of impropriety in the faintest degree, let alone any such as those instanced above.
For reasons that are unclear to us, appellants cite Fredonia Broadcasting Corp. v. RCA Corp., 569 F.2d 251 (5th Cir.), cert. denied, 439 U.S. 859, 99 S.Ct. 177, 58 L.Ed.2d 167 (1978), and Hall v. Small Business Administration, supra, both of which concern the appearance of former law clerks before the judges by whom they were employed; their citations to Rice v. McKenzie, 581 F.2d 1114 (4th Cir.1978) (federal appellate judge may not review his own decisions as state trial judge), and Potashnick v. Port City Construction Co., 609 F.2d 1101 (5th Cir.), cert. denied, 449 U.S. 820, 101 S.Ct. 78, 66 L.Ed.2d 22 (1980) (recusal warranted by personal and professional connection to counsel for one party) are equally inapposite. Appellants’ use of United States v. Holland, 655 F.2d 44 (5th Cir.1981), is novel. The Holland defendant had been tried and convicted on a previous occasion. He had successfully appealed this conviction on grounds provided by the trial judge’s unrecorded conversation with the jury, to which he had not objected at the time. At a second trial before the same court, the judge repeatedly asserted that the defendant had “broken faith” with the court by appealing the first conviction, and stated for the record that “he intended to increase Holland’s sentence because of the incident which he had described.” Id. at 45. Holland was convicted again and appealed again, this time on the basis of § 455. We agreed that the trial judge ought to have disqualified himself:
The trial judge’s remarks... reflect a personal prejudice against Holland for successfully appealing his conviction on the basis of the judge’s actions during the prior trial. The fact that these comments were made in a judicial context... does not prevent a finding of bias.
Id. at 47 (footnote omitted). Appellants argue that by “logical extension” Holland requires recusal whenever a trial court’s remarks reflect “personal respect or admiration for one side of the lawsuit or the other.” Holland requires no such thing. Holland, the other authorities cited by appellants, and those cited by the government, see e.g., United States v. Archbold-Newball, 554 F.2d 665 (5th Cir.), cert. denied, 434 U.S. 1000, 98 S.Ct. 644, 54 L.Ed.2d 496 (1977), uniformly support the proposition that recusal is not warranted in a criminal case absent conduct by the trial court specifically indicating personal prejudice against the defendant. See Ungar v. Sarafite, 376 U.S. 575, 585-88, 84 S.Ct. 841, 847-49, 11 L.Ed.2d 921 (1964). More apposite to the circumstances presented here are such a fortiori authorities as United States v. Phillips, 664 F.2d 971 (5th Cir.1981), cert. denied, 457 U.S. 1136, 102 S.Ct. 2695, 73 L.Ed.2d 1354 (1982), in which the trial judge was affirmed in declining to stand recused even in the face of evidence that certain defendants were plotting to assassinate him.
Finally, appellants’ contention incorporates a fundamental logical flaw: whatever the relationship between the two judges was, it can at most have served to create a degree of hostility toward the actual killers. As such, it is entirely consistent both with a desire that those not guilty be acquitted and with one that the guilty be convicted. At all stages of the trial and to this day, appellants have vigorously maintained that they are not the guilty parties; we are unwilling to presume, in the absence of a far stronger showing than has been made here, that a reasonable person would entertain doubts that the careful and seasoned trial judge who sat in this case would prejudge their guilt.
In short, Judge Sessions’ conduct advanced by appellants as a basis for his recusal demonstrates only such behavior as one might expect of a civilized and honorable man upon the death of a colleague— and that whether or not he harbored any particular affection for him. As such, it falls far short of casting his impartiality in doubt to reasonable people.
5. Attorney-Client Privilege
Joseph Chagra testified at trial to his conversations with Charles Harrelson. Harrelson moved before trial to have this testimony excluded on the ground that Joseph Chagra was his attorney at the time in question, rendering their conversations protected by the attorney-client privilege. The trial court denied his motion because it found that the relationship between Chagra and Harrelson was not that of attorney and client. Harrelson, joined by his codefendants, now contends that the trial court’s denial of his motion and subsequent admission of Joseph Chagra’s testimony constituted reversible error. Finding no error, we affirm.
One who wishes to assert the attorney-client privilege bears the burden of proving the existence of an attorney-client relationship. United States v. Kelly, 569 F.2d 928, 938 (5th Cir.), cert. denied, 439 U.S. 829, 99 S.Ct. 105, 58 L.Ed.2d 123 (1978). Among the elements required to be proved are that the asserted holder of the privilege made the communications as to which the privilege is asserted to one acting as a lawyer, and that the communications were made “for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding.” In re Grand Jury Proceedings, 517 F.2d 666, 670 (5th Cir.1975). “[I]t is well established that the privilege does not apply where legal representation was secured in furtherance of intended, or present, continuing illegality.” United States v. Hodge & Zweig, 548 F.2d 1347, 1354 (9th Cir.1977), quoted in In re Grand Jury Proceedings, 680 F.2d 1026, 1028 (5th Cir.1982) (en banc); once the government has made a prima facie showing that the attorney was retained to promote intended or continuing criminal activity, the privilege may not be asserted. Id.; accord, United States v. Dyer, 722 F.2d 174, 178 (5th Cir.1983).
As a preliminary matter, Harrelson produced no evidence showing Joseph Chagra to have been retained by him as a lawyer in connection with this case. Harrelson further failed to produce any evidence showing that Joseph Chagra was acting as a lawyer during the conversations at issue, or that these conversations had even the most tenuous connection with legal services. There was, however, substantial and convincing evidence showing the relationship between Chagra and Harrelson to have been that of coconspirators rather than attorney and client; Harrelson’s own testimony at trial fully supports this view.
There being no evidence whatsoever to support Harrelson’s motion asserting the attorney-client privilege, the trial court correctly denied it. As the writer has noted in another case, “drawing the cloak of the attorney-client privilege over such arrangements seems to me a result so egregiously undesirable that it should not be arrived at unless inexorably compelled by law or logic. I do not see that it is.” In re Grand Jury Proceedings, 663 F.2d 1057, 1064 (5th Cir.1981) (Gee, J., dissenting).
6. Marital Privilege
Between October 1980 and January 1981, Elizabeth Chagra made a number of visits to her husband Jamiel Chagra at the United States Penitentiary at Leavenworth, Kansas. Three of their conversations were intercepted by government wiretap and introduced against Mrs. Chagra at trial. The first concerned Mrs. Chagra’s delivery of money to Charles Harrelson in payment of his services as murderer of Judge Wood. The second and third concerned the delivery and Mrs. Chagra’s prior knowledge of her husband’s intention to employ Mr. Harrelson to murder Judge Wood. All three were repetitions of conversations held earlier, before the murder. Mrs. Chagra contends that these conversations were within the marital privilege and that it was reversible error to admit them against her at trial.
The marital privilege protects “information privately disclosed between husband and wife in the confidence of the marital relationship.” Trammel v. United States, 445 U.S. 40, 51, 100 S.Ct. 906, 913, 63 L.Ed.2d 186 (1980). “[Conversations between husband and wife about crimes in which they are jointly participating when the conversations occur are not marital communications for the purpose of the marital privilege, and thus do not fall within the privilege’s protection of confidential marital communications.” United States v. Mendoza, 574 F.2d 1373, 1381 (5th Cir.), cert. denied, 439 U.S. 988, 99 S.Ct. 584, 58 L.Ed.2d 661 (1978); accord, United States v. Entrekin, 624 F.2d 597, 598 (5th Cir.1980), cert. denied, 451 U.S. 971, 101 S.Ct. 2049, 68 L.Ed.2d 350 (1981).
Mrs. Chagra argues that the communications at issue do not fall within the Mendoza exception because they refer to past crimes, citing Ivey v. United States, 344 F.2d 770 (5th Cir.1965), and United States v. Williams, 447 F.2d 894 (5th Cir.1971), in support. Even assuming these cases to stand for the proposition that conversations about past crimes are within the marital privilege, a highly questionable assumption, their continued vitality after United States v. Archer, 733 F.2d 354 (5th Cir.1984), is dubious in the extreme given the Archer court’s explicit statement that “Ivey and Williams are no longer to be followed.” Id. at 358.
Mrs. Chagra’s argument fails even if one accepts her interpretation of Ivey and Williams and they remain good law: the conversations objected to are not about past crimes. The original conversations clearly referred not to crimes past but to crimes contemplated. They were repeated in furtherance of a continuing crime, conspiracy to obstruct justice. It is obviously necessary to know what one has to hide in order to hide it. See United States v. Haldeman, 559 F.2d 31, 111 (D.C.Cir.1976), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977).
The trial court was therefore justified in admitting the conversations of Chagra and his wife and did not err in so doing.
7. Electronic Surveillance
The government conducted court-authorized electronic surveillance of Jamiel Chagra at the United States Penitentiary in Leavenworth, Kansas. Conversations between Chagra and his wife, Elizabeth, and between Chagra and his brother, Joseph Chagra, an attorney, were recorded and introduced as evidence at the trial of Mrs. Chagra and the Harrelsons. Before trial, appellants moved unsuccessfully to suppress this evidence. On appeal, Mrs. Chagra and the Harrelsons renew their contention that admission of the evidence was reversible error.
Appellants’ claim is grounded on 18 U.S.C. § 2518(5), which states in pertinent part that electronic surveillance “shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter.” Thus, under this section, interception of privileged communications must be minimized. Appellants contend that conversations between the Chagras were covered by the marital privilege and that conversations between Chagra and his brother were covered by the attorney-client privilege. From this premise, they argue that the government failed to minimize interception of privileged conversations and that admission of such impermissibly intercepted conversations constituted reversible error.
Appellants’ argument fails because the conversations in question were unprivileged. As is discussed above, Mr. and Mrs. Chagra’s conversations were not protected by the marital privilege because they were conducted in furtherance of a continuing criminal conspiracy. Jamiel Chagra’s conversations with his brother are unprivileged for the same reason. Further, even assuming these conversations to be covered
Question: What is the most frequently cited federal rule of criminal procedure in the headnotes to this case? Answer with a number.
Answer:
|
songer_const1
|
105
|
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, Appellee, v. Donald Lee WILLIAMS, Appellant.
No. 12493.
United States Court of Appeals Fourth Circuit.
Argued Oct. 11, 1968.
Decided Nov. 20, 1968.
Bruce G. Campbell (Court-appointed counsel) for appellant.
C. P. Montgomery, Jr., Asst. U. S. Atty. (C. V. Spratley, Jr., U. S. Atty., on brief) for appellee.
Before SOBELOFF, WINTER and CRAVEN, Circuit Judges.
SOBELOFF, Circuit Judge:
After waiving a jury trial, the appellant, Donald Lee Williams, was convicted in the District Court of larceny from the person, committed on United States property in violation of 18 U.S.C. § 661. He appeals on two grounds. First, he complains of the trial court’s reliance on the inference, traditionally regarded as permissible, that one found in unexplained possession of recently stolen property may be considered to have stolen it. Second, he challenges the sufficiency of the evidence to support his conviction.
A policeman noticed Williams loitering about Washington National Airport and, after observing him from time to time for about an hour, followed him into a rest room. There the officer saw Williams throw a wallet into a trash can. When he confronted Williams with the wallet, the latter replied that “he had never seen it before; he knew nothing about it.” On investigation, the wallet was found to belong to a Mrs. Goodman who was waiting in the airport for a connecting flight. She had had the wallet with her at the Newport News airport and had her handbag on her arm during her entire wait at the Washington airport.
Mrs. Goodman was not aware of the theft until informed by the police that they had her wallet. At trial, she testified that a Negro man had approached her and spoken to her while she was waiting for her plane, but she could not identify Williams, a Negro, as the man. She also testified that her wallet had contained something over forty dollars. She stated the denominations — a twenty dollar bill, two tens, and three ones. Williams, when arrested, was found to have a twenty, two tens and ten ones.
The defendant did not testify at the trial. In convicting him on the above evidence, the court declared that it was relying, in part at least, on the immemorially established rule permitting an inference that one in unexplained possession of recently stolen property is the thief.
I
Appellant claims that, in taking this rule into consideration, the District Court violated his Fifth Amendment privilege against self-incrimination. The argument advanced is that the rule has been made unconstitutional by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The reasoning is rather intricate. At trial no objection was interposed to the police officer’s testimony that in response to an inquiry the defendant disclaimed all knowledge of the wallet. Nor did the appellant in his brief or argument question the admissibility of this statement. However, he indirectly attacks the admission of the testimony by claiming that Miranda bars the trier of fact from relying on an inference arising from a defendant’s failure to explain possession of stolen property. Although the appellant contends that it is “consideration of that presumption [inference]” which violates Miranda, it is clear that his objection is not directed at the Judge’s purely mental process in drawing an inference from undisputed testimony. Instead, his specific Miranda argument, that “a person is no longer under a legal duty to speak after being placed under police custodial interrogation,” is aimed at the content of the officer’s testimony. Therefore, if the officer’s testimony concerning Williams’ failure to explain possession of the wallet is not made inadmissible by Miranda, the appellant’s attack on the inference drawn from that testimony must fail.
The appellant bases his attack on the teaching of Miranda that no adverse inference may be drawn from a defendant’s silence — indeed, no mention of his answer or refusal to answer is admissible—“after [he] has been taken into custody or otherwise deprived of his freedom of action in any significant way.” 384 U.S. at 444, 468, 86 S.Ct. at 1612, 1624 n. 37. On analysis, therefore, his argument rests on the assumption that he was in custody when first questioned in the washroom. However, the police officer’s simple question in the circumstances cannot be equated with the kind of “custodial interrogation” to which Miranda applies.
The Fifth Amendment guarantees every person the right not to be “compelled” to incriminate himself. The Miranda decision dealt with the protection of that right in a police-dominated atmosphere. The Court established special rules to protect suspects “in custody,” because of the secrecy and intimidation which the very word “custody” connotes.
The potentiality for intimidation of suspects in custody was the Court’s primary concern. Throughout the opinion, the Court spoke of “menacing police interrogation procedures” and an “interrogation environment * * * created for no purpose other than to subjugate the individual to the will of his examiner.” 384 U.S. at 457, 86 S.Ct. at 1619. The opinion presented a detailed account of the techniques set forth in police manuals for obtaining confessions from uncooperative suspects. The suspect, “cut off from the outside world,” may face one or several determined policemen who “persuade, trick, or cajole him out of exercising his constitutional rights.” Id. at 455, 86 S.Ct. at 1617. Police control of the physical surroundings is crucial in the interrogation procedure the Court had in mind. “In other settings, these individuals might have exercised their constitutional rights. In the incommunicado police-dominated atmosphere, they succumbed.” Id. at 456, 86 S.Ct. at 1618.
It was to offset this intimidating feature of custody that the Court fashioned the procedural requirements of Miranda, at the same time denying any intent to “hamper the traditional function of police officers in investigating crime.” The Court was careful to state that “[g]eneral on-the-scene questioning as to facts surrounding a crime * * * is not affected by our holding.” 384 U.S. at 477, 86 S.Ct. at 1629.
With the Court’s concept of custody before us, we find in our record no suggestion of the kind of secrecy and intimidation described in the Miranda opinion. Clearly the police officer’s actions here were minimal and must be characterized as merely investigatory. The officer was eye witness to an extraordinary event — a man casting away a wallet. Quite properly he inquired about it. Few would disagree that if he had done less in the circumstances he would have been remiss in his duty. As Williams’ answer, which denied all knowledge, was belied by the officer’s own senses, he naturally inferred that the appellant’s possession of the wallet may not have been innocent. The prosecutor breached no rule of evidence in offering the officer’s testimony, nor did the trier of the facts violate the appellant’s rights when he, in turn, inferred guilt, as any rational mind well might, from this and the further testimony of Mrs. Goodman, which completed the story of the crime. The protections established by Miranda must be liberally extended to all who come within the scope of the decision, but the Supreme Court made plain its intent to leave uncoercive police field investigations of this type unhampered.
II
The appellant presents yet another closely related version of his Fifth Amendment claim. It runs as follows- — -he claims that since a defendant in a criminal trial has an absolute right not to testify, his failure at trial to explain possession of the property cannot be relied on to support an inference of guilt. Williams thus apparently considers the inference arising from unexplained possession of stolen property to be an unconstitutional burden on the exercise of his right not to testify.
If the challenged inference could fairly be regarded as a comment by the prosecution on Williams’ failure to testify it would indeed be invalid. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). The Supreme Court and lower federal courts, however, have construed the inference as one arising from “the absence of explanatory evidence” of any kind. Dunlop v. United States, 165 U.S. 486, 502-503, 17 S.Ct. 375, 41 L.Ed. 799 (1897); United States v. Luciano, 343 F.2d 172, 174 (4th Cir. 1965). The inference is derived from the weight of the evidence and not from the defendant’s failure to take the stand. Evidence which leaves unexplained the possession of recently stolen property may give rise to an inference of guilt. The trier of fact may accept or reject the inference, which does not affect the presumption of innocence or alter in any way the prosecution’s burden of proof. It represents nothing more than a rational conclusion based on circumstantial evidence, and this is not forbidden by common sense or the Constitution.
III
The appellant’s final contention is that there was not sufficient evidence to support his conviction of the particular offense of larceny “from the person of another.” 18 U.S.C. § 661. He contends that even if his unexplained possession of the wallet permits an inference that he stole it, possession alone cannot justify the further inference that he stole it from the person of Mrs. Goodman.
On appeal, evidence is sufficient to sustain a guilty verdict if, construed most favorably to the prosecution, the evidence furnished the trial court a sufficient basis to find the defendant guilty beyond a reasonable doubt. United States v. Mancuso, 378 F.2d 612 (1967).
Here, Mrs. Goodman testified that she placed the wallet in her handbag after purchasing insurance at the Newport News airport. She further testified that she did not use the wallet again and kept the handbag on her arm during her entire wait at the Washington airport. The handbag was hanging on her left arm when the Negro man approached her on the left and spoke to her. Williams’ possession of the wallet and the manner of his attempt to dispose of it warranted not only an inference that he knew it was stolen but also that he participated in the theft. A rational mind could conclude beyond a reasonable doubt that the theft was perpetrated by removing the wallet from the handbag on Mrs. Goodman’s arm.
The conviction is affirmed.
The appellant’s motion for bail was heard simultaneously with the argument of the appeal from his conviction. Since we affirm the conviction, the motion for bail is denied.
. In a case involving facts not too dissimilar, Allen v. United States, 390 F.2d 476, 479 (D.C.Cir. 1968), Judge Leventhal said:
The courts must look to the essence of the situation and it seems to us clear that the essence here was not an officer staging an interrogation * * * but an officer reacting to a street scene and trying to run down the facts.
In Allen, the police officer stopped a car which was being driven at night without headlights. As he asked the driver for his license, the officer saw a badly beaten and bleeding man slumped on the back seat. The officer asked the injured man if he had been beaten and, if so, by whom. The man pointed to the driver. The officer then asked the driver if he had beaten the man, and the driver admitted that he had. Testimony at trial concerning the driver’s admission was challenged under Miranda; the Court of Appeals held its admission proper since the driver was not in custody when questioned.
. Lower federal courts and state courts alike have refused to extend Miranda to situations in which the police are either investigating suspicious circumstances or carrying out general on-the-scene questioning after the commission of a specific crime. E. g., Allen v. United States, 390 F.2d 476 (D.C.Cir. 1968); Arnold v. United States, 382 F.2d 4 (9th Cir. 1967); Wakaksan v. United States, 367 F.2d 639 (8th Cir. 1966) ; United States v. Kuntz, 265 F.Supp. 543 (N.D.N.Y.1967); People v. P. (anon.), 21 N.Y.2d 1, 286 N.Y.S.2d 225, 233 N.E.2d 255 (1967).
. Courts have consistently upheld as permissible similar inferences arising from unexplained behavior. United States v. Gainey, 380 U.S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965); Yee Hem v. United States, 268 U.S. 178 (1925); Thomas v. United States, 372 F.2d 252 (5th Cir. 1967); United States v. Armone, 363 F. 2d 385 (2 Cir. 1966); Orozco Vasquez v. United States, 344 F.2d 827 (9th Cir. 1965).
Question: What is the most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Answer:
|
songer_majvotes
|
3
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the number of judges who voted in favor of the disposition favored by the majority. Judges who concurred in the outcome but wrote a separate concurring opinion are counted as part of the majority. For most cases this variable takes the value "2" or "3." However, for cases decided en banc the value may be as high as 15. Note: in the typical case, a list of the judges who heard the case is printed immediately before the opinion. If there is no indication that any of the judges dissented and no indication that one or more of the judges did not participate in the final decision, then all of the judges listed as participating in the decision are assumed to have cast votes with the majority. The number of majority votes recorded includes district judges or other judges sitting by designation who participated on the appeals court panel. If there is an indication that a judge heard argument in the case but did not participate in the final opinion (e.g., the judge died before the decision was reached), that judge is not counted in the number of majority votes.
CATERPILLAR OVERSEAS, S.A., Libellant-Appellant, v. S.S. EXPEDITOR and American Export Lines, Inc., Respondent-Appellee.
No. 245, Docket 27956.
United States Court of Appeals Second Circuit.
Argued March 6, 1963.
Decided June 20, 1963.
Bigham, Englar, Jones & Houston, New York City (F. Herbert Prem, New York City, of counsel), for libellant-appellant.
Haight, Gardner, Poor & Havens, New York City (M. E. DeOrchis, Clifford J. Brenner, New York City, of counsel), for respondent-appellee.
Before CLARK and WATERMAN, Circuit Judges, and ANDERSON, District Judge.
WATERMAN, Circuit Judge.
Caterpillar Overseas, S.A. appeals from a final decree in admiralty denying recovery in its action against American Export Lines, Inc., for damage to cargo. The decree was entered in the United States District Court for the Southern District of New York, Metzner, J., where jurisdiction was based upon 28 U.S.C. § 1338.
On December 30, 1959, Caterpillar shipped two tractors from New York to Tripoli, Libya, on appellee’s vessel, the 5.5. Expeditor. Because the vessel’s draft was too deep for a berth at the port of Tripoli, the ship anchored, upon arrival, in the Tripoli harbor. There the tractors were transferred from the 5.5. Expeditor, by use of her tackle operated by stevedores, to the deck of a steel lighter which was secured by lines to the ship. The lighter had been hired and the stevedores employed by W. E. Rippon & Sons, appellee’s agent in Tripoli for many years. The lighterage was billed to the consignee of the cargo, but, as permitted by the bill of lading, the consignee was neither consulted by the ship’s agent concerning the use of the lighter nor notified of the arrival of the ship.
After the tractors had been placed on the deck of the lighter and chocked, and while the stevedores were lifting a sling load of additional cargo from the ship’s hold, the lighter listed toward the ship and the two tractors were cast overboard. They were subsequently raised and deposited on the quay in a damaged condition.
At the trial below, American Export Lines sought to escape liability by setting up three exculpatory clauses in the bill of lading, the net effect of which was to excuse the carrier from any liability for loss or damage to the goods when they were not in its actual custody, or when they had been “discharged” onto a wharf or lighter. Moreover, American Export denied that it was negligent in the handling- of appellant’s cargo. Caterpillar sought to establish defendant’s negligence by offering proof that the lighter was unseaworthy and that it was given only a perfunctory examination by American Export's agents before use. Caterpillar also maintained that the exculpatory clauses in the bill of lading, relied upon by appellee, were void under Section 1 of the Harter Act, 46 U.S.C. § 190 et seq., or Section 3(a) of the Carriage of Goods by Sea Act (COGSA), 46 U.S.C. § 1300 et seq. The district court ruled that the Harter Act and COGSA were inapplicable to the facts of this case, gave effect to the exculpatory clauses of the bill of lading, and held that American Export was not liable for the damage to appellant’s cargo. We reverse and remand with instructions that a decree be entered in favor of libelant, Caterpillar Overseas, Inc.
Under the general law of maritime carriage, public carriers of goods by sea were absolutely responsible for their safe arrival, subject to certain common law exceptions not here relevant. The Propellor Niagara v. Cordes, 21 How. 7, 16 L.Ed. 41 (1858); Carver, Carriage of Goods by Sea 3-20 (9th ed. 1952). During the Nineteenth Century shipowners sought to limit their stringent liabilities for loss or damage to cargo by inserting exculpatory clauses in their bills of lading. Some of these clauses exempted the carrier from liability for loss due to particularly-described perils and causes. Others went so far as to relieve the carrier from liability for the results' of his own negligence. Because of the superior bargaining position of the carriers, shippers of goods were largely powerless to avoid the proliferation of these exceptions to liability, and bills of lading became contracts of adhesion forced upon shippers by carriers. See generally Gilmore & Black, The Law of Admiralty 119 et seq. (1957); Note, 27 Texas L.Rev. 525 (1949).
In 1893 Congress sought to eliminate these abuses by enacting the Harter Act, 46 U.S.C. § 190 et seq. Section 1 of the Act provides that:
“It shall not be lawful for the * * * owner of any vessel transporting * * * property from or between ports of the United States and foreign ports to insert in any bill of lading * * * any clause, * * * whereby it * * * shall be relieved from liability for loss or damage arising from negligence, fault, or failure in proper loading, stowage, custody, care, or proper delivery of * * * property committed to its * * * charge. Any and all words or clauses of such import inserted in bills of lading * * shall be null and void and of no effect.”
Section 2 declares of no effect any attempt to lessen, weaken of avoid the obligations of the owner to exercise due diligence properly to make the vessel seaworthy. In 1936, the Harter Act was supplanted, in large part, by the Carriage of Goods by Sea Act, 46 U.S.C. § 1300 et seq., which reaffirmed the carrier’s liability for loss or damage to cargo caused by its own negligence. COGSA’s coverage, however, extends only to the period, in foreign commerce, “from the time when the goods are loaded on to the time when they are discharged from the ship.” 46 U.S.C. § 1301(e). Harter remained applicable, therefore, to the period between the discharge of cargo from the vessel and its proper delivery. Gilmore & Black, supra at 126.
Under general maritime law, a port to port contract of carriage ordinarily requires the carrier to deliver goods into the possession of the consignee, or at least to place the goods upon a fit wharf at the port of destination. See Tan Hi v. United States, 94 F.Supp. 432 (N.D.Cal.1950); The Titania, 131 F. 229, 230 (2 Cir. 1904); The Mary Washington, 16 Fed.Cas. 1006, No. 9,229. This duty of proper delivery is not, of course, conterminous with the duty to transport, Isthmian Steamship Co. v. California Spray-Chemical Corp., 300 F.2d 41, 46 (9 Cir. 1960); nor is it affected by the allocation of costs between carrier and shipper. Ibid. Thus the carrier remains liable for negligence even if, as here, the goods are required to be off-loaded in the harbor and carried to shore by means of a lighter, and even if it is agreed that the shipper shall bear the costs of lighterage. Under Section 1 of the Harter Act, therefore, Clauses 1 and 12 of the present bill of lading, taken by themselves, would appear to be void insofar as they attempt to shift the risk of lighterage to the goods.
Appellee relies primarily, however, upon Clause 4 of its bill of lading which purports to make delivery of the goods, and thus the termination of the carrier’s statutory and contractual liability, concurrent with discharge of the cargo from the vessel, wherever that discharge may take place:
“4. In any situation whatsoever and wheresoever occurring * * * which in the judgment of the Carrier or the Master is likely to give rise to * * * delay or difficulty in arriving, discharging at or leaving the port of discharge or the usual or agreed place of discharge in such port, * * * the Carrier or the Master * * * may discharge-the goods into depot, lazaretto, craft, or other place; or * * * may discharge and forward the goods by any means * * *. The Carrier or the Master is not required to give-notice of discharge of the goods or the forwarding thereof as herein-provided. When the goods are discharged from the ship, as herein-provided, they shall be at their own risk and expense; such discharge shall constitute complete delivery and performance under this contract and the Carrier shall be freed from any further responsibility. * * ” (Emphasis supplied.)
The purpose of the clause is apparent.. By equating “discharge” with “delivery”' the carrier seeks to eliminate the operation of the Harter Act upon foreign trade. By fiat it seeks to secure immunity from liability which no combination of mere exculpatory clauses could achieve. All of this it purports to accomplish in the name of a freedom of contract which Congress, in enacting Harter and COGSA, found to be largely fictional in view of the disparate positions of the parties.
The Harter Act does not define “proper delivery,” however. It remains to be determined, therefore, whether such a delivery may be accomplished by the mere-discharge of goods from the vessel, wherever that discharge may take place.
In Isthmian Steamship Co. v. California Spray-Chemical Corp., 290 F.2d 486 (9 Cir. 1961), on reargument, 300 F.2d 41 (9 Cir. 1962), cargo was discharged from the carrier’s vessel, in the harbor at Alexandria, Egypt, to a lighter for oncarriage to the dock. In an action for damage to the cargo while it was on the lighter the carrier’s defense was based upon two bill of lading clauses which authorized the carrier to effect “delivery” of the cargo by discharging it onto lighters “at the risk and expense of the goods * * * without any responsibility whatsoever.” Holding the clauses void under Section 1 of the Harter Act, the Ninth Circuit ruled that “proper delivery” under the Act, in the absence of port customs and regulations to the contrary, constitutes delivery at a fit and customary wharf. See Morris v. Lamport & Holt, Ltd., 54 F.2d 925, 926 (S.D.N.Y.1931); aff’d per curiam, 57 F.2d 1081 (2 Cir. 1932); North American Smelting Co. v. Moller S.S. Co., 204 F.2d 384, 386, 388 (3 Cir. 1953); Remington Rand, Inc. v. American Export Lines, Inc., 132 F.Supp. 129 (S.D.N.Y.1955).
On the facts of this case we are not required to determine whether proper delivery under a port to port contract of maritime carriage may only be made by discharge onto a fit wharf. On the contrary, we should suppose, for example, that in a case where the consignee owns his own lighter and has his own stevedores, the Harter Act would not prohibit a properly drafted agreement providing for delivery of goods by discharge onto the consignee’s lighters. Here, however, the lighter was not selected by the shipper nor by the consignee of the goods, but by the carrier. Under these circumstances, proper delivery requires, at the very least, the selection of, and the discharge of the goods onto, a fit and safe lighter. See The Tangier, 23 How. 28, 16 L.Ed. 412 (U.S.1859). This obligation, for the negligent performance of which the carrier bears full responsibility, might be found as an implied term of the bill of lading before us; but insofar as the lighterage clauses have been construed by both the parties and the Court below so as to relieve the carrier of this duty, we are constrained to hold the clauses null and void under Section 1 of the Harter Act.
At the trial below appellant established a prima facie case for recovery by showing that its goods were received in damaged condition at the port of destination. Schnell v. The Vallescura, 293 U.S. 296, 304, 55 S.Ct. 194, 79 L.Ed. 373 (1934); Schroeder Bros., Inc. v. The Saturnia, 226 F.2d 147, 149 (2 Cir. 1955); Gilmore & Black, The Law of Admiralty, 162-63 (1957). Appellant further established that the damage was not due to the operation of the lighter during oncarriage from the vessel to the dock, for the Court below found that appellant’s tractors were cast overboard while goods were still being off-loaded onto the lighter and while the lighter was secured by lines to the ship.
Upon this showing, American Export Lines had the burden of proving that the loss was due to an excepted cause under its bill of lading. Because of the invalidity of Clauses 1, 4 and 12, however, American Export could only rely upon Section 4(2) (q) of COGSA (incorporated into the present bill of lading by agreement of the parties) which provides :
“4(2) Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from—
*****•»
“Any other cause arising without the actual fault and privity of the carrier and without the fault or neglect of the agents or servants of the carrier, but the burden of proof shall be on the person claiming the benefit of this exception to show that neither the actual fault or privity of the carrier nor the fault or neglect of the agents or servants of the carrier contributed to the loss or damage.”
We hold that appellee failed below to sustain this burden of proof. The trial court found that the lighter careened in fair weather and a calm sea, and, as appellee failed to advance any explanation of this occurrence, a presumption of unseaworthiness arose which appellee failed to rebut. Commercial Molasses Corp. v. New York Tank Barge Corp., 314 U.S. 104, 111-112, 62 S.Ct. 156, 86 L.Ed. 89 (1941); The Jungshoved, 290 F. 733 (2 Cir. 1923), cert. denied, 263 U.S. 707, 44 S.Ct. 35, 68 L.Ed. 517. This presumption gained support from Caterpillar’s affirmative proofs tending to show that the lighter had a holed side plate and warped tank top lids and no gaskets, which permitted water to enter the lighter’s tanks and thereby to render it unstable.
Although a presumption of actual unseaworthiness did not preclude American Export Lines from proving that it exercised due care in attempting to select a seaworthy lighter, little such evidence was forthcoming. Appellee’s agent, a stevedore foreman, allegedly took a 5 or 10 minute walk over the deck of the lighter, prior to the tractors’ off-loading, but no attempt was made to ascertain whether water was in the lighter’s tanks and no inspection was made of the lighter’s sides. Upon such a factual showing we hold that a finding of due care in the selection of the lighter could not be sustained.
Reversed and remanded.
. Clause Is “The Carrier shall not be liable in any capacity whatsoever for * * * loss of or damages to the goods occurring while the goods are not in the actual custody of the Carrier.”
Clause 4: “When the goods are discharged from the ship, as herein provided, they shall be at their .own risk and expense; suck discharge shall constitute complete delivery and performance under this contract and the Carrier shall be freed from any further responsibility.”
Clause 12: “All lighterage and use of craft in discharging shall be at the risk and expense of the goods.”
. Caterpillar argues, as an alternative ground for reversing the judgment below, that its tractors were not “discharged” at the time they were cast overboard, because the loading of the lighter was not fully completed before the accident occurred. See Remington Rand, Inc. v. American Export Lines, Inc., 132 F.Supp. 120, 137 (S.D.N.Y.1955); Hoegh Lines v. Green Truck Sales, Inc., 298 F.2d 240 (9 Cir.1962), cert. denied, 371 U.S. 817, 83 S.Ct. 31, 9 L.Ed.2d 58. We find it unnecessary, however, to rule on this issue. If injury to the goods occurred before their discharge from the vessel, Section 3(2) of COGSA would invalidate any agreement purporting to shield the carrier from liability for negligence in the handling of the goods. If the goods were discharged but not delivered at the time of the injury, Section 1 of the Harter Act would control.
. Although, the court below found that the loss was not caused by respondent’s negligence, this finding was apparently premised upon the belief that Clauses 1, 4 and 12, even if ineffective to shield the carrier from liability for negligence, shifted the burden of establishing American Export’s negligence to appellant. Properly-drafted lighterage clauses might well have achieved this result; the exculpatory provisions of the present bill of lading, however, were rendered void under the Harter Act even for purposes of forcing the shipper to prove negligence. Isthmian Steamship Co. v. California Spray-Chemical Corp., 290 F.2d at 490-491.
Question: What is the number of judges who voted in favor of the disposition favored by the majority?
Answer:
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songer_district
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A
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What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
U.S. SOIL CONDITIONING, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
Nos. 78-1322, 78-1902.
United States Court of Appeals, Tenth Circuit.
Argued Sept. 13, 1979.
Decided Oct. 12, 1979.
James E. Hartley, Denver, Colo. (Warren L. Tomlinson and Holland & Hart, Denver, Colo., of counsel, on brief), for petitioner.
Janet C. McCaa, N. L. R. B., Washington, D. C. (John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, and Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., Washington, D. C., on brief), for respondent.
Before HOLLOWAY and DOYLE, Circuit Judges, and MATSCH, District Judge.
Richard P. Matsch of the United States District Court for the District of Colorado, sitting by designation.
WILLIAM E. DOYLE, Circuit Judge.
The cause was argued and submitted to this court on September 13, 1979, on the petition of U.S. Soil Conditioning seeking a reversal of the decision of the NLRB entered on April 7, 1978. There is a cross-appeal on behalf of the NLRB seeking enforcement of its order. The original complaint alleged violations of § 8(a)(3) and (1) of the Act.
The complaint alleged that on June 2, 1976, the U.S. Soil Conditioning Company discharged one Joseph Dugan because of his membership and activities on behalf of the International Union of Operating Engineers, Local No. 9, AFL-CIO. An election was conducted on July 16, 1976, following a stipulation which was approved by the Regional Director, on June 28,1976. The tally of ballots showed that of the 18 votes which were cast, there was an even division; nine were for and nine were against the certification. The tie breaking vote was that of Joseph Dugan, the man who was discharged.
The respondent company, which is owned by Joseph H. Lionelle, is a sole proprietorship engaged in the production and sale of trace material and other fertilizer products in Salida, Colorado. It denied the charge, but did admit that the company sold goods and shipped them in interstate commerce.
The voluminous record reflects the length, extent and extreme adversarial character of the hearing. The administrative law judge found the facts in favor of the respondent company. The Board, on the other hand, disagreed with this determination. Its view was that Dugan was discharged because of his union activity. Relief appropriate to this determination was granted in the Board’s decree.
PRELIMINARY STATEMENT
The NLRB general counsel called five witnesses: Joseph H. Lionelle; Joseph N. Dugan; Irene F. Dugan, Joe Dugan’s wife; Clayton Ogden, a U.S. Soil quarry employee; and Clifton Ogden, another quarry employee and Clayton’s brother. The witnesses for U.S. Soil were Marion Burr, a U.S. Soil secretary and accounting clerk; Harold L. Lewis, U.S. Soil controller; Joe Tancik, general overseer of plant and quarry operations and plant superintendent; Raymond Smith, quarry superintendent; Donald Lee Ackels, a U.S. Soil electrician; and Cecil Gehring, a quarry employee.
The crucial finding of the administrative law judge was that neither Lionelle, the owner of the plant, nor any of his agents apart from the employees participating, knew of the Union’s efforts to organize the plant until June 10, 1976, when the notice of unfair labor practice charges and the formal representation petition were received at U.S. Soil, eight days after Dugan was discharged. As a consequence, the administrative law judge found that the discharge of Dugan was the result of his having overstayed his authorized vacation by one week and that it was not on account of his union activities. On this account, the judge sustained the challenge to Dugan’s ballot and exonerated U.S. Soil, holding that they had not engaged in any unfair practice.
The Board’s evaluation was the opposite. It held that there existed ample circumstantial evidence that Lionelle and his agents were aware of his employees’ organizational activities prior to the firing and that it was this factor and not the late return of Dugan from his vacation which caused the firing. The Board found, in addition, that Lionelle had an anti-union viewpoint and that the discharge of Dugan, occurring — as the Board determined — immediately after the presentation of the petition seeking representation, was explainable only as having been prompted by Dugan’s union organizational activities.
The Board’s legal view was that the company had violated § 8(a)(3) and (1) of the Act. It ordered the reinstatement of Dugan with back pay and ordered as well that the election which had been thrown out by the administrative law judge should be reinstated and that Dugan’s ballot be counted. This court is called upon to decide whether there is substantial evidence from a consideration of the record as a whole to support the findings and conclusions of the Board.
The respondent, U.S. Soil, here maintains that there is not substantial evidence in the record as a whole. It claims that the Board erred by ignoring the credibility findings of the administrative law judge. It should be pointed out that the fact that the Board reached different factual conclusions that the administrative law judge is not as diabolic as respondent suggests. It does not bespeak per se invalidity. The issue, as noted above, is whether the Board’s decision is based on substantial evidence.
SUMMARY OF THE TESTIMONY FOR THE COMPANY
Much of the testimony on behalf of the respondent, U.S. Soil, centers on the shortcomings of Dugan. Indeed, it is much like a prosecution or at least a discrediting process. Joe H. Lionelle, the owner of the plant, was the principal witness. He testified that his first knowledge that the Union was attempting to organize the U.S. Soil Conditioning Company was when he received the notice from the Union. He denied that he had had any prior conversations with employees regarding the Union. He said that Joe Tancik, who was the superintendent of the plant, was responsible for hiring and firing. Lionelle did fire Dugan. The ultimate question is whether he fired him as a result of Dugan’s taking an extra week of vacation allegedly without obtaining permission to do so. Lionelle called during the latter part of May, talked to Tancik, and asked him if Dugan had returned. He was told that he had not. Finally, on June 2, Tancik was told, according to this testimony, to fire Dugan. Whether Dugan had at least partial permission to take extra vacation was a disputed question.
There was a good deal of testimony from not only Tancik but also Ray Smith, who was the superintendent at the quarry, as to the competency of Dugan as an employee. Both Tancik and Smith said that Dugan was not a competent truck driver in that he mishandled the trucks. Also, Dugan was terminated once for having liquor on his breath during working hours. This was in February 1975, one and one-half years before this incident. Lionelle did testify that Dugan had somewhat of a liquor problem. However, this was not shown to have been a persistent problem which entered into the firing. But the testimony sought to establish that there were other problems such as the truck driving, which was just mentioned. From a review of the administrative law judge’s findings, together with the evidence, Dugan did not appear to have a single redeeming quality.
Union activity had been going on for some period of time prior to the time of the firing, and the employees, those who desired the Union at least, had met on many occasions. There is considerable conflict as to whether these meetings were secretly carried on so as to escape the attention of management. There was evidence that at the quarry where Dugan worked, there was regular discussion during the noon hour of the union question. Some of this conversation was said to have taken place in the presence of Mr. Ray Smith, who was the superintendent of the quarry. He, however, claimed that he had not heard such discussions. Also, Ray Smith’s son, Jerry, was an employee of the company who attended all of the organization meetings, and there were several, and it is, of course, argued that since he was close to his father there was some communication of the union activity to Ray Smith. However, the administrative law judge rejected all of this evidence and this conclusion.
Lionelle and Tancik, who was the general superintendent of the company, asserted that their first knowledge of the union activity came when the formal petition was presented June 10, eight days after Dugan was fired. There is no dispute, however, that the just-mentioned petition was presented to the employees for their signatures, including Dugan, on the very day that he was fired.
It will not help in this present effort to detail many scraps and bits of testimony that were considered by both the administrative law judge and the Board in reaching their respective conclusions. It will, however, be of some value to briefly consider the findings and conclusions of both.
THE APPLICABLE LAW
We have referred to the substantial evidence test governing agency review in a court. We note that it admonishes the reviewing court to regard the findings of the Board as to questions of fact supported by substantial evidence on the record considered as a whole to be conclusive. 29 U.S.C. § 160(e) (1976). See also 29 U.S.C. § 160(f). This standard was enacted by Congress in the Taft-Hartley Act in 1947, and is in accordance with the Administrative Procedure Act.
In the year 1951, the Supreme Court decided Universal Camera Corp. v. NLRB, 340 U.S. 474, 477-486, 71 S.Ct. 456, 95 L.Ed. 456 (1951). In a very lucid opinion authored by Mr. Justice Frankfurter, the Court interpreted the above-cited statute. Its pronouncements continue to be regarded as authoritative and no effort has been made to improve upon them. The Supreme Court in this important decision said that:
“ [substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126. Accordingly, it “must do more than create a suspicion of the existence of the fact to be established. * * * it 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.” National Labor Relations Board v. Columbian Enameling & Stamping Co., 306 U.S. 292, 300, 59 S.Ct. 501, 505, 83 L.Ed. 660.
340 U.S. at 477, 71 S.Ct. at 459.
The Supreme Court was dealing with a case in which there was a conflict such as the present one. The trial examiner had reached one conclusion and the Board had reached the opposite result. The court of appeals had, however, gone further than it needed to go. It had ruled that it was barred from taking into account the examiner’s findings insofar as they had been rejected by the Board. The Supreme Court said that such findings were not unassailable and could be reversed by the Board even when they were not clearly erroneous. But the Court also said that “[w]e do not require that the examiner’s findings be given more weight than in reason and in the light of judicial experience they deserve. The ‘substantial evidence’ standard is not modified in any way when the Board and its examiner disagree. * * * The findings of the examiner are to be considered along with the consistency and inherent probability of testimony.” 340 U.S. at 496, 71 S.Ct. at 469.
Although the Board reversed the case, it also held evidence which was not dissimilar to the evidence in this case to be legally sufficient. It said in part:
* * * it is clear from the court’s opinion in this case that it in fact did consider the “record as a whole,” and did not deem itself merely the judicial echo of the Board’s conclusion. The testimony of the company’s witnesses was inconsistent, and there was clear evidence that the complaining employee had been discharged by an officer who was at one time influenced against him because of his appearance at the Board hearing. On such a record we could not say that it would be error to grant enforcement.
340 U.S. at 491-492, 71 S.Ct. at 466.
The Supreme Court remanded the case to the court of appeals for further consideration in the light of its opinion. It gave the court freedom to grant or deny enforcement “as it thinks the principles expressed in this opinion dictate.” 340 U.S. at 497, 71 S.Ct. at 469. The opinion also required the appellate court to weigh the findings of the administrative law judge (who, at the time of the decision, was called an examiner), considering whether the conclusion of the examiner detracts from the substantiality of the evidence in support of the Board’s opposite conclusion.
The decision had another effect. It dispelled the notion that the NLRB occupied a preferential role among administrative tribunals. No longer could its decision overcome the findings of the examiner by simply adopting a contrary viewpoint.
Still a further result of Universal Camera was its withdrawal of the court of appeal’s position as a third fact finder. See NLRB v. Enterprise Ass’n of Pipefitters Local 638, 429 U.S. 507, 531-32, 97 S.Ct. 891, 51 L.Ed.2d 1 (1977). Courts of appeals do not have unlimited authority or discretion to set aside NLRB orders by making contrary alternative inferences from the record evidence. This doctrine has been adhered to in the Tenth Circuit. See, e. g., Head Div., AMF, Inc. v. NLRB, 593 F.2d 972, 982 (10th Cir. 1979); Kustom Electronics, Inc. v. NLRB, 590 F.2d 817, 821 (10th Cir. 1978); Burns International Security Services, Inc. v. NLRB, 567 F.2d 1015, 1019 (10th Cir. 1977); NLRB v. Montgomery Ward & Co., 554 F.2d 996, 999 (10th Cir. 1977). “Our review is limited to searching the record to see if there is substantial evidence to support the fact findings . . . We do not sit as a super trial examiner, and do not weigh the credibility of one witness against another nor do we search for contradictory inferences. . . . N. L. R. B. v. Central Machine & Tool Co., 429 F.2d 1127, 1129 (10th Cir. 1970), cert. denied, 401 U.S. 909,91 S.Ct. 870,27 L.Ed.2d 807 (1971).
We are not in a position to sit as trier of fact . . . reweighing the evidence and making credibility determinations of our own, nor is it our function to search for possible inferences contrary to those drawn by the NLRB from a particular fact. . . . That an inference other than the one drawn by an agency might also be drawn from a particular fact or set of facts does not mean the agency’s conclusion is not supported by substantial evidence. .
Head Div., AMF, Inc. v. NLRB, supra, 593 F.2d at 982 n.20. In effect, in reviewing questions of fact, a court of appeals has less discretion to overturn an NLRB determination than the NLRB has to reject conclusions of its administrative law judge. “[T]he Board is not bound by findings and conclusions of an administrative law judge and is free to draw its own inferences as well as conclusions when its broader experience and expertise is applicable.” Burns International Security Services, Inc. v. NLRB, supra, 567 F.2d at 948, citing Ann Lee Sportswear, Inc. v. NLRB, 543 F.2d 739 (10th Cir. 1976). On the other hand, a reviewing court is bound to uphold the Board’s factual findings so long as they are supported by substantial evidence on the record in its entirety. See 29 U.S.C. § 160(e) (1976).
Finally, the standard of judicial review in NLRB cases is not altered merely because the administrative law judge and the Board have reached contrary conclusions. The substantial evidence test is not modified. Universal Camera Corp. v. NLRB, supra, 340 U.S. at 496, 71 S.Ct. 456. Universal Camera contemplates that the court will scrutinize the record as a whole and fully consider the strength of the findings of the administrative law judge and those of the NLRB as well with a view toward ascertaining whether the administrative law judge’s findings detract from the substantiality of the evidence relied on by the NLRB. Id. at 496, 71 S.Ct. 456. See Cartwright Hardware Co. v. NLRB, 600 F.2d 268, 270 (10th Cir. 1979). Cf. Penasquitos Village, Inc. v. NLRB, 565 F.2d 1074, 1078 (9th Cir. 1977).
Universal Camera and its progeny then can be summed up as calling for a detached and careful examination of the findings of the administrative law judge as well as the NLRB in the light of the evidence offered by the adversaries. There must, of course, be a painstaking consideration of the record as a whole.
THE FINDINGS AND CONCLUSIONS OF THE ADMINISTRATIVE LAW JUDGE
The fact that the administrative law judge was very positive and was confident in his findings certainly gives us pause. These findings were extensive and somewhat detailed. The judge gave full acceptance to the testimony favorable to the respondent company and completely rejected the witnesses called by the general counsel.
Some excerpts from the administrative law judge’s findings illustrate the tendency of the judge to “credit” certain witnesses, for example, Lionelle, and to “discredit” the witnesses who testified contrary to this personal standard: “According to Tancik, whom I credit, in about February 1975, Tancik smelled liquor on Dugan’s breath and terminated him.” Following this, Linoelle, the owner, told Dugan to talk to Tancik again and see if he would put him back to work.
In passing, the judge said that “Further, Tancik made a favorable impression as a witness, and his version of the foregoing events is consistent in material respects with the witness of Lionelle and Ray Smith, whereas Dugan was contradictory and confusing. Accordingly, I credit Tancik and find that Dugan was first terminated by him in about February, 1975, for drinking on the job.”
The judge’s evaluations had a tendency to be based on personalities of the witnesses. He referred, for example, to Clifton and Clayton Ogden, brothers, who testified against the company as follows: “Throughout their testimony, the Ogden brothers impressed me that they were trying to make a case for Dugan, regardless of the truth. Hence, where their testimony conflicts, as above, with any of the other witnesses, I credit the testimony of the other witnesses.”
The judge went on to consider the testimony of Gehring and Ackels, who testified on behalf of the company, and said: “The testimony of Ackels and Gehring corroborates in substance Lionelle’s version of the meeting. In these circumstances, their testimony regarding what transpired at the February, 1976 meeting is credited over that of the Ogdens.”
The judge referred once to the testimony of Dugan as being “vague and in generalities,” and was limited to one particular occasion “when the wind was blowing and everyone was disgusted.”
One of the foremen, Ray Smith, had a son, Jerry, who took part in the effort to organize the Union. There was some testimony that Ray Smith heard conversations which took place in the quarry. However, the judge refused to accept testimony regarding circumstances which might point to the communication of knowledge to Ray Smith, who was in close touch with Lionelle. The judge accepted the testimony of Ackels, saying “Further, Ackels credibly testified to specific instances when employees had either ‘hushed up’ or changed the subject when Ray Smith came into view.” Further, the judge found “Gehring, who also works at the quarry and who ate lunch with the other employees, impressed me as an honest witness when he testified, in confirming Ray Smith and refuting Dugan and the Ogden brothers that the subject of the Union was never brought up during lunch conversations at the quarry. Accordingly, I conclude and find that Ray Smith was not knowledgeable of the Union organizing efforts of the employees until a copy of the Petition filed with the Board was received by Respondent on June 10.”
On the question whether Dugan had taken an extra week’s vacation without leave, so to speak, the administrative law judge said: “In making my determination of credibility over this issue, I note there is no corroboration for Dugan’s testimony that all of the employees in the quarry talked to Smith in April about arranging vacation dates and that Smith authorized him to take two weeks.” (Dugan maintained that he had obtained permission from Lionelle to have three or four extra days.) In connection with this, the judge said: “Lionelle, Tancik and Ray Smith all impressed me as open and forthright witnesses who were telling the truth, whereas Dugan seemed disposed to shade his testimony as did both of the Ogden brothers, to vent a bias against Smith and Lionelle. * * *. I credit the testimony of Smith, Tancik and Lionelle over that of Dugan, and find that he was authorized to take a one-week vacation * *
In dealing with the question as to when Dugan signed the petition, the judge stated that: Dugan said he signed it at 1:00 p. m. on June 2. Dugan signed as the eighth name. Ackels was the seventh signer. According to Dugan, he was terminated after he had signed it. The judge said, in support of the contention of the company that Dugan did not sign the petition until after his termination, that “Ackels testified that the first knowledge he had of the Union was when Parkhill asked him to sign the petition about 4:00 p. m. on June 2 because ‘they wanted to get as many names on it as possible before they had the Union representative come down and talk with us.’” Ackels, according to further statement of the judge, said that when he signed it Dugan’s signature was not on it. “I credit Ackels, whom I previously found to be a creditable witness, over Dugan, and find that Dugan didn’t sign the petition until after he had been advised of his termination by Tancik.”
Mrs. Dugan testified that Mr. Lionelle’s personal secretary, Marion Burr, telephoned her on June 1 asking her where her husband was. Mrs. Dugan testified to a lengthy, somewhat involved conversation in the course of which Marion Burr asked her whether Joe Dugan was mixed up in anything at the plant and said “there is something going on down there.” According to Mrs. Dugan, Marion Burr also said: “Joe [Lionelle] is in an uproar, something about the Union . . .” Marion Burr added
“Are you sure Joe is not mixed up in this?” She said further, according to the testimony of Mrs. Dugan, “Well, you know, Irene, if he is, there is going to be hell to pay . . ” The judge said, regarding the conversation, “I have carefully reviewed the testimony and considered the demeanor of the witnesses and credit the testimony of Mrs. Burr over that of Mrs. Dugan.” He further said “Accordingly, I find that Mrs. Burr, who is a totally disinterested witness, was not aware of the Union until mid-June and that the statements attributed to her by Mrs. Dugan on June 1, were never made.”
The judge finally found that neither Lionelle nor any of the respondent’s agents were aware of the Union’s organizing efforts until June 10, eight days after Dugan was terminated, and that the general counsel had failed to prove that the respondent’s reasons for terminating Dugan were pretextual.
We are not saying that the administrative law judge did not make a conscientious effort in the premises. He lived with the case for a considerable period of time, and the conclusive approach which he used was in all likelihood influenced by his firsthand knowledge of the evidence together with
what would appear to have been subjective conclusions. In other words, we do not see him as applying objective tests of credibility. All in all, we do not regard his conclusions to be so well-reasoned and objective as to require this court to deduct from the substantiality of the findings and conclusions of the Board.
THE OPINION OF THE LABOR BOARD
The Board’s opinion did not directly challenge the findings of the administrative law judge. The Board did, however, issue some independent findings. The focus of its opinion was on the question whether Dugan’s late return from vacation was the real reason for his termination as the administrative law judge had found. The opinion calls attention to the testimony of Lionelle that he had actually made the decision to discharge Dugan before Dugan’s return from vacation:
“I made up my mind quite a while before that. But then things come up that I asked by foreman down there to discharge him.”
On being further cross-examined by attorneys for the general counsel, Lionelle said:
“I will try to simplify it as much as I can. I found him dishonorable, and Joe [Dugan] had a little drinking problem, and he has a habit of causing disturbances. In other words, he is not a man that I want to work around my crew.”
In further response to the examination by his own counsel, Lionelle stated:
“I mean, this week here [the second week of Dugan’s vacation] he missed doesn’t have anything to do with me firing him because I was going to do it anyway and it has nothing to do with me firing him.”
The administrative law judge overlooked this testimony altogether in the process leading to his conclusion that the late return from vacation was the cause of Dugan’s termination.
The general counsel argues also that if Dugan had been authorized only a week’s vacation and had taken extra leave without permission and this caused the decision to terminate him, why was he not terminated at once, that is, when he returned from work June 1, instead of waiting until the following day, which coincided with the initial circulation of the Union petition. The opinion of the Board also quotes the statement of Lionelle regarding the hiring and firing power in which he said that Tancik did all of the hiring. “After this damn Union thing started now, excuse me Judge, after this here, I want to hire all of them.”
The Board’s opinion, as noted, avoided line-by-line challenge of the very broad and general credibility determinations of the administrative law judge. However, it concluded that:
1. U.S. Soil was aware of the employees’ union activity.
2. That U.S. Soil was motivated against the Union, as straightforwardly set out in Lionelle’s testimony to the effect that “after this damn Union thing” arose, all hiring matters were to be addressed to him.
3. That Dugan’s discharge, in view of its timing, nature and the departure from past practice it evinced, could only be explained as motivated by his organizational activity on behalf of the union and not the numerous and shifting considerations raised by U.S. Soil.
Footnote 10 of the Board’s opinion reads as follows:
Respondent contends that to find a violation of Sec. 8(a)(3) in this proceeding requires reversal of the Administrative Law Judge’s credibility resolutions. What we hold, however, is that, even accepting those credibility resolutions, a violation of Sec. 8(a)(3) and (1) has been established. The ultimate question presented is not one of credibility: it is of fact and we do reverse the Administrative Law Judge’s ultimate finding of fact that Dugan was not discriminatorily terminated. As the court stated in Shattuck Denn Mining Corporation (Iron King Branch) v. N. L. R. B., 362 F.2d 466, 470 (C.A. 9, 1966):
Actual motive, a state of mind, being the question, it is seldom that direct evidence will be available that is not also self-serving. In such cases, the self-serving declaration is not conclusive; the trier of fact may infer motive from the total circumstances proved. Otherwise no person accused of unlawful motive who took the stand and testified to a lawful motive could be brought to book.
COMMENTS ON THE RECORD AS A WHOLE
As we indicated earlier, the respondent would have us pursue a detailed study of the record, which we have done, and make a choice between the determinations of the administrative law judge and the Board on the ground that the manifest weight of the evidence favors the determination by the administrative law judge. Obviously, we cannot proceed in this way, either directly or indirectly, and in view of the state of the record, we find it impossible to set aside the decision of the Board in favor of the findings and determinations of the administrative law judge, because we determine that there is substantial evidence in the record as a whole which supports the position adopted by the Board, which is that the firing was the result of the union activity of Dugan.
Possibly, there were incidents in Dugan’s two-year employment with U.S. Soil Conditioning Company which would have justified his being fired, and it would have constituted a nondiscriminatory termination. The Board, however, concluded that the immediate or proximate cause of the firing was Dugan’s participation in the effort to organize a union.
We have to recognize, of course, that the Board has expertise in this area and that it is accustomed to evaluating the traumatic effect on a company of a campaign such as this to establish a union. This is one of the weaknesses of the administrative law judge’s determination. He had no difficulty whatsoever discounting entirely the possibility that the union activity came to the attention of the company and that it was a factor in the firing. The inferences to be drawn from the nature of the organizational activity certainly permitted the drawing of the conclusion that it came to the attention of the company. A background factor is that this was a very small enterprise having a limited number of employees and supervisors, and they worked in close quarters. Salida is also a relatively small city. The activity would not be unimportant news. The exclamations of Mr. Lionelle show that he had strong feelings on this subject, and it is understandable why, because it would bring about a highly significant change in the organization.
It is also to be remembered that Dugan’s deficiencies had not previously caused major concern. The incident when Tancik had detected liquor on Dugan’s breath during working hours caused the major concern because he was terminated, but Dugan was reinstated, after he pledged to renounce this. The only other time that he was perceived to be under the influence was at the Lionelle ranch on a nonworking day — a Sunday. No consequence flowed from this.
No doubt his driving might have been hard on the equipment, but this did not cause his firing. So, it comes down to whether he failed to return on time or, on the other hand, whether he was known to have participated in the union activity. The union question was a grave one, and so it surely does not come as a surprise that the Board would adopt the decision that it reached.
In summary, the Board’s reasoning was based on the substantial evidence from the record considered as a whole, including the decision of the administrative law judge.
It follows that the order should be and the same is hereby directed to be enforced.
. The essence of these findings is summarized as follows: (The Board’s opinion does not list them in this order or in this form.)
1. That Lionelle’s testimony was to the effect that Dugan’s vacation was not the actual cause for his discharge (this was at variance with the finding of the administrative law judge. However, he did not mention this evidence.)
2. Lionelle did not give Tancik or Smith reasons for Dugan’s termination nor was Dugan ever given these reasons. The Board said that this constituted a departure from past U.S. Soil practices.
3. That Lionelle departed from past practices by personally firing Dugan rather than having Tancik do it.
4. Dugan’s termination was on June 2, the day after he returned from vacation. This was the same day that an informal petition for union representation was being circulated among the men.
5. That a remark made by Lionelle during his testimony constituted an admission of anti-union motivation.
6. That the reasons Lionelle offered to justify Dugan’s termination (Dugan’s incompetence, his drinking problem, and his dishonorable character) were of a “shifting nature” and were based on incidents remote in time from the date of his termination.
7. That the son of one of Lionelle’s supervisors was deeply involved in the union organizational drive, and his father must have known of the union efforts.
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:
|
sc_issue_8
|
02
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue of the Court's decision. Determine the issue of the case on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis.
UNITED STATES v. PENN-OLIN CHEMICAL CO. et al.
No. 26.
Argued December 7, 1967.
Decided December 11, 1967.
Edwin M. Zimmerman argued the cause for the United States. With him on the briefs were Solicitor General Griswold, Assistant Attorney General Turner, Ralph S. Spritzer, Daniel M. Friedman and Richard A. Posner.
Albert R. Connelly and H. Francis DeLone argued the cause for appellees. With them on the brief were William S. Potter, John W. Barnum and Eugene P. Souther.
Per Curiam.
The judgment of the United States District Court for the District of Delaware is affirmed by an equally divided Court.
Mr. Justice Marshall took no part in the consideration or decision of this case.
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_immunity
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court refuse to reach the merits of the appeal because it concluded that the defendant had immunity (e.g., the governmental immunity doctrine)?" 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".
NORTHWEST AIRLINES, INC.; Simmons Airlines, Inc.; Piedmont Aviation, Inc.; Comair, Inc.; Midway Airlines, Inc.; USAir, Inc.; American Airlines, Inc.; and United Airlines, Inc., Plaintiffs-Appellants, v. COUNTY OF KENT, MICHIGAN; the Kent County Board of Aeronautics; and the Kent County Department of Aeronautics, Defendants-Appellees.
Nos. 90-1811, 90-2117.
United States Court of Appeals, Sixth Circuit.
Argued Sept. 23, 1991.
Decided Feb. 3, 1992.
Rehearing En Banc Denied April 16, 1992.
Dissent from Denial of Rehearing En Banc Filed May 7, 1992.
Douglas E. Wagner, Christopher C. Williams, Mark S. Bransdorfer (briefed), Warner, Norcross & Judd, Grand Rapids, Mich., Walter A. Smith, Jr. (argued), Hogan & Hartson, Washington, D.C., Malcolm C. Mallette (briefed), James G. Mclntire, Krieg, DeVault, Alexander & Capehart, Indianapolis, Ind., for plaintiffs-appellants.
Richard A. Kay, Mark S. Allard (briefed), Varnum, Riddering, Schmidt & Howlett, W. FredJHunting, Jr. (argued), briefed, Robert A. Buchanan, Law, Weathers & Richardson, Grand Rapids, Mich., for defendants-appellees.
Before KENNEDY and NELSON, Circuit Judges, and CONTIE, Senior Circuit Judge.
KENNEDY, Circuit Judge.
Northwest, Simmons, Piedmont Aviation, Comair, Midway, USAir, American and United Airlines dispute the landing fees, terminal building rental rates, carrying charges, and crash/fire/rescue charges assessed them at the Kent County International Airport serving Grand Rapids, Michigan. The Airlines also argue that surplus revenue generated by the fees charged non-airline concessions should be cross-credited to reduce the fees charged to the Airlines. For the reasons stated below, we REVERSE and REMAND to the District Court to determine the proper allocation of fees between the Airlines and general aviation in regard to crash, fire and rescue costs. We AFFIRM the District Court’s dismissal of the Airlines’ claims under the Airport and Airway Improvement Act of 1982 and the Commerce Clause, its finding that the Airlines have no right to be cross-credited for concession revenues, the finding that the allocation of terminal rental fees between the Airlines and concessions were reasonable, and the finding that the method the airport used to assess airside operation fees for general aviation and the Airlines was reasonable.
I.
The Kent County International Airport (“Airport”) is operated by the Kent County Aeronautics Board and the Kent County Department of Aeronautics (“defendants”), both departments of Kent County. The County is the owner and landlord of the Airport and its facilities. The Airport was originally financed by the issuance of general obligation bonds which were later retired through a tax levy. The Airport is a relatively small hub airport whose primary passengers consist of people with Western Michigan origins or destinations. The Airport is serviced by Northwest, Simmons, Piedmont Aviation, Comair, Midway, USAir, American and United Airlines (“Airlines”).
The accounting methodology used by the Airport views the Airport as the landlord, and all users as tenants. This accounting system, developed by James C. Buckley, is known as the Buckley or compensatory “methodology” and is widely used by airports. The system is designed so that the Airlines are only charged for the land costs, physical facilities and other expenses which can be directly allocated to them. When using this system, the Airport first determines the cost basis of the land and facilities. Next, the usage of all areas is calculated and the various users are assigned rents that reflect their usage level. The costs are primarily divided among three groups: the Airlines, non-airline concessions, and general aviation. These users enter into leases with the Airport which establishes the fees and rates to be charged.
The Airlines and the Airport negotiated and agreed on the fees to be charged through December 31, 1986. In 1986, a new rate study resulted in increased fees and the Airlines and Airport could not reach an agreement. Finally, on March 10, 1988, the airport passed an ordinance which unilaterally increased the fees. On April 1, 1988, this case was filed challenging the ordinance rates and the rates charged subsequent to December 31, 1986. The Airlines specifically dispute the landing fees of 70.21 cents per 1,000 lbs., the terminal building rental rates, the carrying charge, the fact that general aviation was not also charged based on their costs, and the Airport’s allegedly excessive fund balance.
II.
Prior to the trial in this case, the District Court ruled on cross motions for summary judgment. The District Court held that the Airlines did have a private right of action under the Anti-Head Tax Act (“AHTA”) and denied the Airport’s motion for summary judgment. It also held, however, that the Airlines had no right of action under the Airport and Airway Improvement Act or the Interstate Commerce Clause of the United States Constitution. We agree with the District Court.
The defendants first claim that the Airlines are precluded from challenging the current rates in federal court under either the AHTA or Airport and Airway Improvement Act of 1982 (“AAIA”) because they failed to exhaust their administrative remedies. The defendants argue that the Airlines must first raise any claims with the Secretary of Transportation under the AAIA before any claims may be made in the District Court. In Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), the Supreme Court established four factors to be used in determining whether Congress intended to create an implied right of action. These factors are:
First, is the plaintiff “one of the class for whose especial benefit the statute was enacted” ... ? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law?
Id. at 78, 95 S.Ct. at 2088 (quoting Texas & Pacific Ry. Co. v. Rigsby, 241 U.S. 33, 39, 36 S.Ct. 482, 484, 60 L.Ed. 874 (1916)) (emphasis in original; citations omitted). The Supreme Court has placed increasing emphasis on the second factor — the intent of Congress. Touche Ross & Co. v. Redington, 442 U.S. 560, 575-76, 99 S.Ct. 2479, 2489, 61 L.Ed.2d 82 (1979); Niagara Frontier Transp. Auth. v. Eastern Airlines Inc., 658 F.Supp. 247 (W.D.N.Y.1987).
Several courts have found that the AHTA satisfies all the Cort factors and that a private right of action exists. Interface Group, Inc. v. Massachusetts Port Auth., 816 F.2d 9 (1st Cir.1987); Niagara, 658 F.Supp. at 247. Most importantly, the intent of Congress to grant a private right of action seems inherent in the language of the statute satisfying the second Cort factor. The AHTA expressly prohibits states from levying “a tax, fee, head charge, or other charge, directly or indi-rectly....” 49 U.S.C.A. App. § 1513(a) (West Supp.1991). As noted by the First Circuit, this statute does not mention the Secretary of Transportation nor an administrative or judicial enforcement scheme like those created in similar statutes. Interface Group, 816 F.2d at 16. In addition, the other Cort factors are also met. Private enforcement furthers the purposes of the statute by ensuring that airlines will file claims that individuals may lack the time and expenses to pursue. The AHTA also clearly identifies the class to be protected. We find that the Airlines had no duty to exhaust administrative remedies as to the statutory claims made under section 1513.
The Airlines face different administrative requirements under 49 U.S.C.A.App. § 2210, the AAIA. A review of the Cort factors indicate that Congress intended that there would be no private right of action under section 2210. The statute provides that assurances must be' given to the Secretary of Transportation regarding the reasonable terms and rates of an airport development project. 49 U.S.C.A. App. § 2210 (West 1991); Interface Group, 816 F.2d at 15. This provision indicates that Congress intended to establish an administrative enforcement scheme. The AHTA and the AAIA do not cover similar issues or provide similar remedies. The AHTA addresses state taxation of air commerce for which recovery of unreasonable taxation or fees would be the remedy. The AAIA, on the other hand, requires certain assurances to be made prior to approval of an airport development project. Failure to make these assurances would result in denial of the grant. For this reason, all claims against the defendants under the AAIA were properly dismissed for failure to exhaust administrative remedies.
Second, the defendants assert that the Airlines are estopped or have waived their rights to object to the methodology and fees adopted by the defendants. They base this argument on the Airlines’ failure to protest the fees during the twenty previous years. As support, they point to a December 22, 1983 letter from John Sorensen of United Airlines, then serving as the negotiator for all the Airlines, which they claim acknowledges the reasonableness of the rates. The defendants’ argument is without merit.
The complaint filed by the Airlines clearly states that the protested fees were reportedly adopted on March 10, 1988 and became effective on April 1, 1988. The past fees referred to in the complaint are only those fees assessed subsequent to the contract which expired on December 31, 1986. The assessed fees do not represent rates which were agreed upon after negotiation. Rather, they are fees which were charged during the negotiation period. None of the protested fees or the requested remedies involves fees assessed under past contracts. The Airlines are not precluded from bringing a judicial challenge to rates because in the past they agreed to different assessed rates. The rates agreed to in the past are the result of negotiations between the Airlines, the County, and the Airport. Northwest Airlines, Inc. v. County of Kent, Mich., 738 F.Supp. 1112, 1114 (W.D.Mich.1990). Only in 1988, when negotiations were unproductive, were these claims brought.
Finally, defendants argue that the Airlines do not have standing to raise issues based on rates, fees or charges to passengers and other non-aeronautical users of the airport. Defendants assert that the Airlines must show a causal connection between the damages they claim and the defendants’ acts. See In Re Air Passenger Computer Reservation Sys., 727 F.Supp. 564, 568 (C.D.Cal.1989). While it is clear that section 1513 gives the airlines a private right of action, the private right of action given in the statute to passengers may not be asserted by the airlines. The legislative history of the AHTA recognizes that by banning unreasonable taxes on the carriage of air passengers, the statute also prevents those unreasonable taxes from being passed on to the consumer. See S.Rep. No. 12, 93d Cong. 1st Sess., reprinted in 1973 U.S.Code Cong. & Admin.News 1434, 1451; Interface Group, 816 F.2d at 16. Thus, the airlines ensure fair rates in a situation where the charges may be passed through the airlines to the consumer. Individual consumers in these situations may not contest the charges because of financial or time constraints. However, this reasoning does not apply in cases where the charges are being assessed directly to the passengers or other airport users. In these cases, users feel the direct impact of the charges and many, such as the concessionaire, are capable of asserting the claims. For the above reasons, we find that the Airlines have no standing to assert the claims of the non-airline airport users or passengers.
III.
The AHTA prohibits the imposition of any fee on “persons traveling in air commerce or on the carriage of persons traveling in air commerce” which are unreasonable. 49 U.S.C.A.App. § 1513(a) (West Supp.1991). Reasonable fees on “aircraft operators for the use of airport facilities” are allowed. The statute does not provide guidance for determining what constitutes a reasonable fee. The Seventh Circuit, in Indianapolis Airport Auth. v. American Airlines, Inc., 733 F.2d 1262 (7th Cir.1984), held that fees “wholly disproportionate” to the costs of serving the airline and airline passengers were unreasonable. The plaintiffs have the burden of proving that the rates are unreasonable in light of the benefits conferred on them. Evansville Airport v. Delta Airlines, 405 U.S. 707, 92 S.Ct. 1349, 31 L.Ed.2d 620 (1972); American Airlines, Inc. v. Massachusetts Port Auth., 560 F.2d 1036 (1st Cir.1977). Deference is given to the rates established by the state and administrative agencies as long as they act within a broad range of reasonableness. Evansville, 405 U.S. at 712-14, 92 S.Ct. at 1353-54.
A. Reasonableness of the Rates Charged to Concessions
The Airlines’ argument suggests that overall the rates and fees established under the ordinance are inherently unreasonable because they result in a substantial profit for the Airport. The District Court found that the Airport had over $9 million in reserves at the end of 1989. Concessions are all the non-aeronautical users: parking lot, car rentals, restaurants, motels, gift shops, advertising, and food services. The fees charged by the Airport to these concessions generate a surplus of $2 million per year and result in a large reserve. The Airport views this surplus as a “contingency” fee to be used at a later time. The Airlines assert that this profit is prohibited by the AHTA and should properly be used to reduce the charges to the Airlines.
Non-airline concessions are not within the scope of the AHTA. As noted by the District Court, the statute does not mention concessions. Rather, section 1513(b) permits airports to charge reasonable fees and charges from aircraft operators. The Seventh Circuit opinion on which the Airlines rely for their assertions is distinguishable. In Indianapolis Airport, the court held that an ordinance was unreasonable which disregarded airport concession revenues when establishing the airline rates and fees. Such a result, wrote Judge Posner, is “wholly disproportionate to the costs to the airport of serving the airlines and their passengers, and is therefore unreasonable....” 733 F.2d at 1268. Judge Posner relied on two factors in Indianapolis Airport which distinguish that case from the one now before us. First, the Indianapolis airport serves in a monopoly environment. As judicially noticed by the District Court, Kent County Airport is located less than an hour and a half from two airports serviced by major airlines. This means that the passenger has some role in determining from which airport to travel. Second, the Seventh Circuit required the plaintiffs to prove that the rates imposed directly affected the airline or airline passengers and not other parties not parties to the case. As did the District Court, we find the reasoning articulated by the Colorado District Court in City and County of Denver v. Continental Airlines, Inc., 712 F.Supp. 834 (D.Col.1989) persuasive:
Persons affected by the rates, rentals and charges for the restaurants, gift shops, parking lots and rental cars, include persons who are not air passengers. These accessory uses of the airport may be considered amenities for air passengers and convenient for them, but no person traveling to, from or through Stapleton on United or Continental flights is required to park in the parking lot, rent a car, eat at a restaurant or buy a magazine. Those are all individual decisions driven by individual perceptions of need and economic values. That is not the case with respect to the use of the airport’s runways, taxiways, and airline portions of the terminal area. There, the air passenger is captive and her purse is necessarily and directly affected by Denver’s charges to the airlines for those uses. Stated differently, Denver’s decision to operate concessions at a profit is not an exploitation of airline passengers who have the freedom of choice to use the amenities Denver has provided.
712 F.Supp. at 838-39. We find that the AHTA does not apply to charges assessed to non-airline concessions and agree with the District Court that the Airlines may not require the cross-credit of concession revenue surplus against their rates and fees.
B. Allocation of fair share costs to concessions
The Airlines were assessed nearly $2 million in fees for 1988. This figure includes 76% of the costs of the passenger terminal building. The remaining 24% of the costs are allocated to concessions including restaurants, hotel, baggage carts and lockers. The cost allocation is based on floor space occupancy. The Airport asserts that the cost allocation of common space is made in the same proportion as the percentage of terminal space the user occupies exclusively. The Airlines respond that the Airport’s cost allocation is unreasonable in violation of AHTA. The Airlines contend that the 76% allocation results in the Airlines paying for 100% of the public spaces. Appellant’s Brief at 29 n. 46.
A fee assessed is reasonable as long as it is based on some fair approximation of the cost of providing the facilities and services, is relevant to the operation of the airport, and is not arbitrary and capricious, but is based on a uniform, fair and practical standard. See Evansville-Vanderburgh Airport Auth. Dist. v. Delta Airlines, 405 U.S. 707, 712-14, 92 S.Ct. 1349, 1353-54, 31 L.Ed.2d 620 (1972), quoting Hendrick v. Maryland, 235 U.S. 610, 624, 35 S.Ct. 140, 143, 59 L.Ed. 385 (1915); Massachusetts Port Auth., 560 F.2d at 1038. An assessment of costs for the common space need not depend on a district court’s estimate of the benefits each renter derives from its customers’ use of the common area. Although such a method would be a possible method for assessing costs, there is nothing in the Act that dictates that such a method must be used.
There is no support for the Airlines’ assertion that they pay for 100% of the “public spaces” cost. The Airlines’ expert, Richard Dompke, testified that while 100% of the baggage claim area costs are allocated to the Airlines, the costs of common areas surrounding the restaurant, cocktail lounge, gift shop, and game room, are assigned to all users of the terminal building “on an equitable basis.” Dompke also testified that part of concourse A has been designated as a public area, and that for this area, 76% had been charged to the Airlines. R.E. No. 162, pp. 163, 164. The Airport’s witness, John F. Brown, stated that the Airlines are not charged at all for the space that is roped off where passengers line up to get their ticket and check in their luggage. The lease signed by the parties indicates that an airline must pay a rental rate based on a square footage basis for the ticket wings, concourse level, holding rooms, lounges, and office space which it occupies. Rental of the baggage claim and tag circulation area is apportioned between the users of these areas. Because there is no support in the record that 100% of the costs associated with all common areas of the terminal building are charged to the Airlines, the Airlines have failed to show that the terminal facility fees assessed to them are unreasonable. We therefore affirm the District Court on this issue.
C. Allocation of fair share costs to General Aviation
The $2 million in fees for which the Airlines are assessed also reflects airside costs for runways, taxiways, and passenger terminal aprons. The Airport allocates these airside costs to general aviation and the Airlines. General aviation, however, is only assessed 20% of its allocated costs. General aviation should be assessed its full allocation of airside costs. The deliberate decision not to assess general aviation its full cost allocation of airside service costs discriminates against the Airlines in favor of locally owned aircraft. The Seventh Circuit, in Indianapolis Airport, held in a similar situation,
The difference in the Authority’s treatment of airlines and private planes— making the former pay for the full costs (and more!) that they impose on the airport, but through inaction, allowing the latter to get away with paying little more than half of the costs they impose — has not been justified. And since flights by private planes are more likely to be intrastate than airline flights are, the effect of leaving the flowage fee unchanged has been to shift some of the costs imposed by local users of the airport to its interstate users, who are, along with many of their customers, non-residents of [the state where the airport is located]. This is just the sort of discrimination Congress wanted to prevent in the Anti-Head-Tax Act.
733 F.2d at 1271. The fact that concession revenues compensate for the underassessment does not justify the discrimination. The concession revenues could be used to purchase improvements or additional equipment that would potentially benefit both the concessions and the Airlines. All income from the airport must ultimately be used for airport maintenance or improvement or for a new facility. Thus, failing to assess general aviation for their total costs reduces the benefits which could accrue to the Airlines from the increased revenue.
D. Grash/Fire/Rescue Charges to General Aviation.
The landing fees charged to the Airlines increased from 50 cents to 70.21 cents per 1,000 lbs. of aircraft weight in 1988. Approximately 50% of this increase was due to an increase in the costs of crash/fire/rescue (“CFR”) services. Provision of these services was extended over the entire 24-hour period as opposed to the 18 hours of service previously provided. The Airlines pay 100% of the CFR costs. General aviation, while receiving these services, is allocated none of the cost. The Airlines contend that these services clearly benefit general aviation, as well as terminal and parking lot tenants, and that the allocation of the CFR costs should reflect this benefit.
Any airport, in order to receive certification, must maintain CFR facilities if the airport serves air carrier aircraft with more than 30 passenger seats. 49 U.S.C.A.App. § 1432(a) (West Supp.1991). The defendants assert that since the Airport would not be required to maintain CFR facilities if only general aviation aircraft used the facilities, general aviation should not share the burden of paying for the services. This position fails to account for the fact that CFR facilities are provided and maintained and service general aviation. The CFR facilities answer and service non-airline calls and rescues. These services increase the cost of maintaining and providing CFR services. If the CFR only responded to commercial airline rescue calls, then the 100% allocation would be appropriate. Charging the Airlines for 100% of the cost of CFR services where general aviation and concessionaires, such as car rental companies, receive a substantial benefit is “unreasonable” under the terms of the AHTA. The fact that the CFR services are initially provided because of regulations requiring the services for commercial airlines does not validate allocating the costs of such services only to those airlines when the service provided is adequate to cover all aircraft which use the Airport.
E. Amortization of Carrying Charges.
The Airport allocated to the Airlines “carrying charges” or amortization fees for assets acquired. The defendants assumed when calculating the carrying charges that the capital assets were acquired with a nonexistent 25 or 30 year mortgage. Such a mortgage results in interest charges in addition to the historical cost. The Airlines argue that such a charge results in the Airport recovering 2V2 times the initial cost. The defendants claim that such a charge provides the Airport a reasonable return on its investment and is similar in scope to the interest charged by a financing institution'. The interest rate adopted for the carrying charge is 8% and it is applied to useful life of the assets. This rate is reasonable and should not result in a net present value which exceeds the initial cost of the project.
IV.
The Airlines urge that we find any claims which are not unreasonable under the AHTA unreasonable under the laws of the State of Michigan. Since we have found that the defendants failed to allocate the proper costs to general aviation, we address only the issue of surplus revenue from concessions under Michigan law. Michigan law provides, in regard to the fees charged by the operator of a public airport,
[The] terms, charges, rentals, and fees shall be equal and uniform for the same type of facilities provided, services rendered, or privileges granted with no discrimination between users of the same class for like facilities provided, services rendered, or privileges granted; however, the public shall not be deprived of its rightful, equal and uniform use thereof. Terms, charges, rentals and fees may vary where necessary to provide security and funds for payment of bonds to be issued as authorized for payment of bonds to be improvements to any airport, or to allow for other differing costs of financing, construction of facilities, or maintenance and operation of the facility.
Mich.Stat.Ann. § 10.233(e) [M.C.L.A. § 259.133(e)] (Callaghan 1981). The Airlines argue that because the fees generated by the concessions generate more than is “necessary” to cover airport costs, they are contrary to state law. The Airlines cite no foundation, either in the language of the statute or in case law, which supports their position. Nothing in the statute suggests that generating revenue through charges to concessions is against Michigan law. Rather, the statute addresses nondiscrimination among similar users and considerations which may be made when setting rates. We find that the Airlines’ claims that the Airport’s surplus revenue is generated in violation of Michigan law to be without merit.
V.
The Airlines also submit that the Airport’s fees violate the Commerce Clause because of the burden they place on interstate travel. The Supreme Court in Evansville established three tests to determine whether the Commerce Clause had been violated: whether fees discriminate between interstate and intrastate users, whether they approximate each user’s receipt of beneficial services, and whether they are excessive in relation to the Airport’s actual costs. 405 U.S. at 707, 92 S.Ct. at 1349. The Airport claims that the status of the factual record does not support this claim and that in any event the Commerce Clause is not legally applicable. We find that the District Court, relying on Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 102 S.Ct. 894, 71 L.Ed.2d 21 (1982), properly dismissed the Commerce Clause contention in its January 19, 1990 decision.
The Supreme Court, in Merrion, held that courts should only undertake a Commerce Clause review of a tax or regulation if Congress had taken no other action to regulate the area. Here, Congress has established clear guidelines for the fees and rates that may be charged commercial airlines and other public airport users. As the District Court found, where the issue before the court is the reasonableness of the fees under AHTA, the court should only look at the consistency between the fees and Congressional policy. Thus, the District Court’s dismissal of the Airlines’ Commerce Clause claim was correct. The Airlines contend that the District Court’s decision to dismiss the Commerce Clause claim ignores a recent Eleventh Circuit opinion, Alamo Rent-A-Car, Inc. v. Sarasota-Manatee Airport Auth., 906 F.2d 516 (11th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 1073, 112 L.Ed.2d 1179 (1991). This case however involves a different type of dispute. In Alamo, an off-airport rental car company protested the imposition of a user fee of 10% of all gross receipts from the rental of cars to passengers picked up at the airport. The AHTA clearly does not cover off-airport rental car companies. Thus, Alamo was not disputing a tax or regulation in an area where Congress had acted and was therefore not barred by Merrion from suing under the Commerce Clause.
VI.
Accordingly, the decision of the District Court is REVERSED and REMANDED in order that the costs associated with CFR services may be properly allocated between the Airlines and general aviation. With regard to the Airlines’ claim that the concessions are under-assessed for their associated costs and that the Airlines are entitled to be cross-credited for surplus revenue generated by concession fees, the decision of the District Court is AFFIRMED. The majority of the court also confirms the decision of the District Court with regard to the method used to assess airside operation fees.
. See Report from James C. Buckley, Fees for the Use of Public Aircraft Facilities and Rental for Passenger Terminal Premises, for Freight Terminal Premises, for Rentable Buildings, and for Ground Space: Kent County Airport, (February 1969).
. The term "general aviation" encompasses corporate aircraft and privately owned aircraft that are not used for transportation of military, public passengers, or cargo. The District Court found that over 160 general aviation craft are based at the Kent County Airport. Northwest Airlines, Inc. v. County of Kent, Mich., 738 F.Supp. 1112, 1114 (W.D.Mich.1990).
. The Airlines amended their complaint on May 9, 1988 and again on November 9, 1988.
. The Airlines argue that they are entitled to claim the protection of section 2210 despite the language giving responsibility to the Secretary of Labor. They place reliance on Evansville-Vanderburgh Airport Auth. Dist. v. Delta Airlines, 405 U.S. 707, 721, 92 S.Ct. 1349, 1357, 31 L.Ed.2d 620 (1972), which applies the predecessor to section 2210 in determining Congressional intent regarding airport fees. Evansville involved a suit by the airlines against an airport. The airlines in Evansville, protesting the fees being applied by the airport, filed suit claiming that the fees were an unconstitutional burden on interstate commerce. The predecessor to section 2210, 49 U.S.C.A. § 1718(a)(8), was referred to as evidence that Congress did not intend to deny or preempt state or local power to levy charges to defray the cost of an airport. No reference was made as to whether the airlines would have had a private right of action under section 1718.
. The text of section 1513 reads, in pertinent part,
(a) No State ... shall levy or collect a tax, fee, head charge, or other charge, directly or indirectly, on persons traveling in air commerce or on the carriage of persons traveling in air commerce or on the sale of air transportation or on the gross receipts derived therefrom; ....
(b) ... [NJothing in this section shall prohibit a State ... from the levy or collection of taxes other than those enumerated in subsection (a) of this section, including property taxes, net income taxes, franchise taxes, and sales or use taxes on the sale of goods or services; and nothing in this section shall prohibit a State ... owning or operating an airport from levying or collecting reasonable rental charges, landing fees, and other service charges from aircraft operators for the use of airport facilities.
49 U.S.C.A.App. § 1513 (West Supp.1991).
. Some of the concessions, such as telephones and advertising space, are allocated no costs at all.
. In fact, one witness testified that most of the CFR runs did not involve air carrier aircraft. Deposition of Robert M. Ross.
. Air carriers aircraft includes only those aircraft which are engaged in
the carriage by aircraft of persons or property as a common carrier for compensation or hire or the carriage of mail by aircraft, in commerce....
49 U.S.C.A. App. § 1301(24) (West Supp.1991). See also 14 C.F.R. § 139.3 (defining "air carrier aircraft”); 49 U.S.C.A.App. § 1301(3) (West 1976) (defining "air carrier"); 49 U.S.C.A.App. § 1301(10) (West 1976) (defining “air transportation").
Question: Did the court refuse to reach the merits of the appeal because it concluded that the defendant had immunity?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_respond2_3_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 second listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "F" thru "N"". Your task is to determine which specific federal government agency best describes this litigant.
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: This question concerns the second listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "F" thru "N"". Which specific federal government agency best describes this litigant?
A. Food & Drug Administration
B. General Services Administration
C. Government Accounting Office (GAO)
D. Health Care Financing Administration
E. Immigration & Naturalization Service (includes border patrol)
F. Internal Revenue Service (IRS)
G. Interstate Commerce Commission
H. Merit Systems Protection Board
I. National Credit Union Association
J. National Labor Relations Board
K. Nuclear Regulatory Commission
Answer:
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songer_procedur
|
A
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What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
Peter Ray LAYCOCK, Petitioner-Appellant, v. STATE OF NEW MEXICO, et al. Respondents-Appellees.
No. 88-1855.
United States Court of Appeals, Tenth Circuit.
July 26, 1989.
Stephen P. McCue, Asst. Federal Public Defender, Albuquerque, N.M., for petitioner-appellant.
Gail MacQuesten, Asst. Atty. Gen., Santa Fe, N.M., for respondents-appellees.
Before LOGAN, WRIGHT, and MOORE, Circuit Judges.
Honorable Eugene A. Wright, Senior Judge of the United States Court of Appeals for the Ninth Circuit, sitting by designation.
EUGENE A. WRIGHT, Senior Circuit Judge.
Peter Ray Laycock appeals the district court’s denial of his petition for habeas corpus relief. He claims that he entered an involuntary guilty plea, his counsel rendered ineffective assistance, his sentence exceeded the statutory maximum, and he received an inadequate sentencing hearing. We affirm the judgment.
BACKGROUND
In March 1983, the police arrested Lay-cock for armed robbery of a New Mexico convenience store. He admitted robbing it and shooting at a customer. The appointed public defender negotiated a plea agreement with the prosecutor. Laycock agreed to plead guilty to Count I of the information, armed robbery with a firearm enhancement, and the state agreed to dismiss Count II, assault with intent to commit a violent felony with a firearm enhancement. Laycock and his counsel discussed the possibility of his acceptance into the Delancey Street Drug Rehabilitation Center. The written plea agreement did not include this or any other sentencing provision.
The court sentenced Laycock to nine years for armed robbery, one year for firearm enhancement and two years of parole. He filed a petition for post-conviction relief which the court denied. After the Supreme Court of New Mexico denied his petition for a writ of habeas corpus, he filed a second petition in the Federal District Court of New Mexico. The magistrate there found that he had exhausted his state court remedies as required by 28 U.S.C. § 2254(b). See Osborn v. Shillinger, 861 F.2d 612, 613 (10th Cir.1988).
ANALYSIS
I. Voluntary Plea
Laycock alleges that his plea was involuntary. He claims that his attorney materially misrepresented the plea bargain by promising him a suspended sentence if Delancey Street accepted him into its drug treatment program. He does not contend that the prosecutor misrepresented the plea.
Whether a plea is voluntary is a question of federal law subject to de novo review. Marshall v. Lonberger, 459 U.S. 422, 431, 103 S.Ct. 843, 849, 74 L.Ed.2d 646 (1983); Oppel v. Meachum, 851 F.2d 34, 37 (2d Cir.), cert. denied, — U.S. -, 109 S.Ct. 266, 102 L.Ed.2d 254 (1988). We accept the magistrate’s findings of fact unless they are clearly erroneous. Marshall, 459 U.S. at 432, 103 S.Ct. at 849-50.
A plea may not be voluntary when an attorney materially misinforms the defendant of the consequences of the plea or the court’s probable disposition. Blackledge v. Allison, 431 U.S. 63, 75 n. 8, 97 S.Ct. 1621, 1630 n. 8, 52 L.Ed.2d 136 (1977); Worthen v. Meachum, 842 F.2d 1179, 1182 (10th Cir.1988); Bonvillain v. Blackburn, 780 F.2d 1248, 1250 (5th Cir.), cert. denied, 476 U.S. 1143, 106 S.Ct. 2253, 90 L.Ed.2d 699 (1986). An erroneous sentence estimate does not render a plea involuntary, but an attorney’s unfair representation of probable leniency may be found coercive. United States v. Estrada, 849 F.2d 1304, 1306 (10th Cir.1988) (citing Wellnitz v. Page, 420 F.2d 935, 936 (10th Cir.1970)). A petitioner’s understanding that he will serve less that his full sentence is neither a promise nor a plea bargain. Bonvillain, 780 F.2d at 1252.
Laycock must prove that his attorney materially misrepresented the consequences of the plea. The facts and circumstances support the district court’s conclusion that counsel did not materially misrepresent the plea. Delancey Street was not mentioned in the written plea agreement, which Laycock signed following an explanation by the state judge. The judge asked Laycock specifically if other promises had been made and he replied “no.” Solemn declarations in open court carry a strong presumption of verity.” Estrada, 849 F.2d at 1306 (citing Blackledge, 431 U.S. at 74, 97 S.Ct. at 1629). None of the participants mentioned Delancey Street at the plea or sentencing hearing. Laycock did not include it in his petition for post conviction relief. Finally, in his state court habeas petition, Laycock alleged his plea was involuntary because the judge failed to inform him of the mandatory parole term. He now alleges misrepresentation for the first time. Laycock has not established that his attorney misrepresented the plea agreement.
II. Ineffective Assistance of Counsel
Laycock argues that five of his counsel’s tactical decisions resulted in ineffective assistance. We review de novo the determination of whether an attorney’s performance was so deficient that it violated a defendant’s right to effective assistance. Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 2070, 80 L.Ed.2d 674 (1984); Hopkinson v. Shillinger, 866 F.2d 1185, 1204 (10th Cir.1989).
To prove ineffective assistance of counsel, the defendant must show that counsel’s performance was deficient and that this deficient performance prejudiced his defense. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Hopkinson, 866 F.2d at 1204. Although proposed in the capital sentence context, the Supreme Court has extended this test to guilty plea challenges based on ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985).
In this context, the first prong of this test would be satisfied if Laycock proves that counsel’s “advice was not within the wide range of competence demanded of attorneys in criminal cases.” See Hill, 474 U.S. at 56, 106 S.Ct. at 369 (citing McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970)). The proper standard for measuring attorney performance is reasonably effective assistance. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. The second prong is met if Laycock shows that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial. See Hill, 474 U.S. at 59, 106 S.Ct. at 370-71. The defendant must overcome the “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.
First, Laycock contends that his attorney’s advice to accept the plea bargain constituted ineffective assistance. The advice was well within the range of competence demanded of counsel in criminal cases. The client admitted both the robbery and the shooting, was identified by witnesses, and had a prior history of criminal activity. The claim fails the first element of the Strickland test.
Second, Laycock claims that although he told counsel that he was intoxicated at the time of the offense, his attorney did not consider the possibility of the intoxication defense. He has not shown that he supplied counsel with facts necessary to raise such a defense or that counsel was unreasonable in deciding to recommend a plea agreement instead. This claim also fails the first prong of the Strickland test.
Third, Laycock complains that counsel failed to inform him of the possibility that his offenses might merge for sentencing purposes. He says that this could shorten his sentence and reduce the benefit of the plea bargain to one year. He has not shown that counsel had a duty to inform him of this possibility, nor that knowledge of it would have caused him to reject the plea agreement. This claim fails both prongs of the Strickland test.
Fourth, Laycock claims that counsel’s assistance was ineffective because he filed no motions. But he suggests nothing to demonstrate that motions were necessary or appropriate. This claim fails.
Finally, Laycock contends that failure to advise him of his right to appeal after his guilty plea resulted in ineffective assistance. An attorney has no absolute duty in every case to advise a defendant of his limited right to appeal after a guilty plea. Marrow v. United States, 772 F.2d 525, 527 (9th Cir.1985); Carey v. Leverette, 605 F.2d 745, 746 (4th Cir.) (per curiam), cert. denied, 444 U.S. 983, 100 S.Ct. 488, 62 L.Ed.2d 411 (1979); cf. Barber v. United States, 427 F.2d 70, 71 (10th Cir.1970); Crow v. United States, 397 F.2d 284, 285 (10th Cir.1968) (sentencing court has no duty to advise of right to appeal on guilty plea). Failure to notify the defendant of this limited right is not in itself ineffective assistance. Marrow, 772 F.2d at 527; Carey, 605 F.2d at 746.
Normally, when a defendant pleads guilty, he has foreclosed his right to appeal. Marrow, 772 F.2d at 529. If a claim of error is made on constitutional grounds, which could result in setting aside the plea, or if the defendant inquires about an appeal right, counsel has a duty to inform him. Id. at 528. Laycock signed this plea agreement indicating that he understood that it constituted a waiver of his right to appeal. There is no indication that counsel should have known of other grounds for appeal. The claim fails.
III. Sentence Exceeds Statutory Maximum
Laycock contends erroneously that his sentence exceeded the statutory maximum. Williams v. Illinois, 399 U.S. 235, 240, 90 S.Ct. 2018, 2021-22, 26 L.Ed.2d 586 (1970). This claim is reviewed de novo. United States v. Marco, 868 F.2d 1121, 1123 (9th Cir.1989). Sections 30-16-2 N.M.S.A. (1978) and 31-18-15(A)(2) authorize a nine year sentence for armed robbery classified as a second degree felony. Laycock received nine years. Section 31-18-16 requires a one year enhancement for use of a firearm. He received one year. Sections 31-18-15(C) and 31-21-10(C) mandate a two year parole term. He received two years.
Laycock has not specified how his sentence violated the statutory maximum. He appears to argue that, because the parole term was imposed after the rest of the sentence, the sentence is unconstitutional. Amending a sentence to conform to the statutory requirement is proper under New Mexico law. State v. Acuna, 103 N.M. 279, 280, 705 P.2d 685, 686 (App.1985). The sentence does not violate the statutory maximum.
IV. Inadequate Sentencing Hearing
Laycock contends erroneously that his sentencing hearing was unconstitutional because the judge gave him only cursory consideration. The judge obtained and reviewed the predisposition summary before the hearing, and indicated at the hearing that he had discussed the report with counsel. The judge discussed its factual accuracy with Laycock, and made a correction in the time to be served. The judge asked Laycock if he had any additional information to present and listened to his comments. This claim has no merit.
AFFIRMED.
. He acknowledged that he would first serve a one year mandatory sentence for firearm enhancement, but expected to receive a six month credit for time already served.
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_majvotes
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2
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine the number of judges who voted in favor of the disposition favored by the majority. Judges who concurred in the outcome but wrote a separate concurring opinion are counted as part of the majority. For most cases this variable takes the value "2" or "3." However, for cases decided en banc the value may be as high as 15. Note: in the typical case, a list of the judges who heard the case is printed immediately before the opinion. If there is no indication that any of the judges dissented and no indication that one or more of the judges did not participate in the final decision, then all of the judges listed as participating in the decision are assumed to have cast votes with the majority. The number of majority votes recorded includes district judges or other judges sitting by designation who participated on the appeals court panel. If there is an indication that a judge heard argument in the case but did not participate in the final opinion (e.g., the judge died before the decision was reached), that judge is not counted in the number of majority votes.
TUNIS BROTHERS COMPANY, INC. de la Rigaudiere, Richard N. and Smith, David C., Appellants, v. FORD MOTOR COMPANY, Ford Motor Credit Company, Wenner Ford Tractor, Inc., Wenner, John S. Watson, John Crawford, Douglas N. Fraher, Eugene W. Hasel, E.S. Nickel, Hugh Harris, Kenneth E. and Wenzel, C.W., Appellees.
No. 84-1318.
United States Court of Appeals, Third Circuit.
Argued Jan. 15, 1985.
Decided May 30, 1985.
Rehearing and Rehearing In Banc Denied June 24, 1985.
Arnold R. Ginsburg (Argued), Haverford, Pa., for appellants.
Steven T. Stern (Argued), Braemer and Kessler, Philadelphia, Pa., for appellees Wenner Ford Tractor, Inc. & John S. Wenner.
Robert C. Heim (Argued), Jeffrey G. Weil, Robert A. Limbacher, Dechert, Price & Rhoads, Philadelphia, Pa., for appellees Ford Motor Co., Ford Motor Credit Co., John Watson, Douglas N. Crawford, Eugene W. Fraher, E.S. Hasel, Hugh Nickel & Kenneth E. Harris.
Before HUNTER and HIGGIN-BOTHAM, Circuit Judges, and DEBE-VOISE, District Judge.
Honorable Dickinson R. Debevoise, United States District Court for the District of New Jersey, sitting by designation.
OPINION OF THE COURT
A. LEON HIGGINBOTHAM, Jr., Circuit Judge:
The plaintiffs in this “distributor termination” case, a franchised tractor dealership and its new owners, appeal a final order of the district court granting summary judgment in favor of the defendant franchisor and other corporate and individual defendants on plaintiffs’ federal antitrust claims. The appealed from order also dismissed plaintiffs’ state common law breach of contract and tort claims without prejudice.
We reverse and remand for further proceedings.
I. THE SUMMARY JUDGMENT RECORD
A. The Complaint and Other Pleadings
The six-count complaint filed by plaintiffs Tunis Brothers Company, Inc. (“Tunis Brothers”), Richard N. de la Rigaudiere (“de la Rigaudiere”) and David C. Smith (“Smith”) on December 15, 1982 and amended July 14, 1983, includes four counts alleging violations of section 1 of the Sherman Act, 15 U.S.C. § 1 (1982) by three corporate defendants and eight individual defendants. The remaining two counts allege state common law tort and contract claims against the defendants and invoke pendent jurisdiction. The plaintiffs claim injuries to their business and property in the amount of $7,724,357 and seek treble damages from the defendants in the amount of $23,173,071. Appendix (“App.”) at 11-94.
Count I alleges, inter alia, that corporate defendants Ford Motor Company (“Ford”), Ford Credit Company (“Ford Credit”), Wenner Ford Tractor, Inc. (“Wenner Ford”), and individual defendant John S. Wenner (“Wenner”) conspired to terminate the authorized Ford tractor dealership of plaintiff Tunis Brothers, a Pennsylvania corporation located in Kennett Square, Pennsylvania. Complaint $ 66, App. at 35.
The business of Tunis Brothers had been established in 1934 by Richard M. Tunis and his brother Robert. In 1959, Tunis Brothers entered into an agreement with Ford and became a franchised tractor dealership owned and operated by Richard Tunis and his wife Isabelle. From 1959 until April 1981 when its Ford dealership franchise was terminated, Tunis Brothers was an authorized dealer of Ford tractors and related equipment and it sold Ford tractors, Ford accessories and non-Ford products. On March 13, 1981, plaintiffs de la Rigaudiere and Smith purchased the business and became the sole directors and stockholders of Tunis Brothers Company, Inc.
Count I further alleges that the defendants conspired to prevent plaintiffs de la Rigaudiere and Smith, the new owners of Tunis Brothers, from operating in Kennett Square to eliminate or substantially decrease competition with defendant Wenner Ford Tractor, Inc. Complaint 66, App. at 35-6.
Wenner Ford is a Delaware Corporation whose principal place of business prior to 1982 was Concordville, Pennsylvania, about 11 miles east of Kennett Square. Wenner Ford was the authorized Ford dealer of farm and industrial tractors, machinery, equipment and parts nearest Tunis Brothers. It is a Ford Dealer Development Company, established by Ford in November 1979, in which defendant Ford owns all of the voting stock and 79% of the equity stock. App. at 3522-37. Defendant John 5. Wenner owned 21% of Wenner Ford’s equity stock, app. at 3712-3883, and operated Wenner Ford as its president and chief executive officer pursuant to a Dealer Development Agreement and a Management Agreement. App. at 3434, 3449.
It is alleged in Count 1 that, in addition to John S. Wenner, the other named individual defendants, employed by Ford in varying managerial capacities, participated in and aided and abetted the conspiracy. These individuals are: John Watson (“Watson”); Douglas N. Crawford (“Crawford”); Eugene W. Fraher (“Fraher”); E.S. Hasel (“Hasel”); Hugh Nickel (“Nickel”); Kenneth E. Harris (“Harris”) and C.W. Wenzel (“Wenzel”).
It is further averred in Count 1 that the conspiracy and actions of the defendants were not only in unreasonable restraint of trade but were illegal per se because they were in furtherance of an illegal horizontal territorial restriction by Ford where Ford was in both a horizontal and a vertical relationship with Tunis Brothers, as both franchisor and competitor. Complaint U 74, App. at 38.
Count II alleges that the 1974 franchise agreement between Ford and Richard and Isabelle Tunis constituted a contract in unreasonable restraint of trade due to the existence of certain unlawful provisions. The individual defendants are alleged to have aided and abetted Ford in exercising its rights under the agreement in furtherance of illegal objectives. Complaint j[ 95, App. at 48.
Count III alleges, inter alia, that the franchise agreement and the conspiracy included “dirty business tricks and unfair business dealing... in furtherance of defendants’ illegal antitrust objectives and their unreasonable restraint of trade...” Complaint j[ 97, App. at 49.
Count IV avers that the franchise agreement and the conspiracy, by eliminating Tunis Brothers as a competitor, eliminated intrabrand competition in the sale and service of Ford products. Because no inter-brand competition of any significance or consequence was promoted by such elimination of intrabrand competition, it is alleged that the anti-competitive effect constituted an unreasonable restraint of trade. Complaint j[ 100, 102; App. at 50, 51.
As to the state causes of action, Count V alleges tort liability under common law based on fraud and other tortious conduct. App. at 52-9. Count VI alleges contract liability on the part of the defendants at common law. App. at 60-5.
The defendants’ answers and amended answers to the amended complaint deny all material allegations.
B. Defendants’ Rule 56 Motions
On November 30, 1983, the defendants filed motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, with supporting memoranda, affidavits, depositions and exhibits. App. at 200-900. The major argument presented by defendants was that there were no genuine issues of material fact in dispute and, on the basis of the undisputed facts, the plaintiffs not only failed to show direct evidence of a conspiracy but also failed to present facts which would permit a reasonable inference of conspiracy. Moreover, defendants argued that plaintiffs presented no facts showing an adverse impact on competition. They also asserted that there were no facts supporting plaintiffs’ breach of contract claim.
In reply, the plaintiffs filed memoranda, affidavits, depositions and exhibits in opposition to defendants’ summary judgment motions. App. at 900-1375. They argued in a 141-page brief that the factual record fully supported the allegations in the complaint and that there were genuine issues of material fact in dispute. The district court heard oral argument on February 8, 1984. App. at 1375.
In its May 7, 1984 memorandum opinion, the district court found that the plaintiffs failed to establish a “... contract or conspiracy, in restraint of trade” under section 1 of the Sherman Act in two respects.
First, the district court held that plaintiffs did not satisfy their burden of producing sufficient evidence of a conspiracy to terminate Tunis Brothers and to prevent de la Rigaudiere and Smith from operating the dealership as a franchise in competition with Wenner Ford. According to the district court, “there is no evidence of a conspiracy under section 1 of the Sherman Act” and therefore, “there is no genuine issue of material fact and all defendants are entitled to judgment as a matter of law on Counts I, III, and IV”. Tunis Brothers Co. v. Ford Motor Co., 587 F.Supp. 267, 274 (E.D.Pa.1984).
Second, the district court determined that the 1974 franchise agreement, which contained provisions preventing Tunis Brothers from transferring the franchise without the approval of Ford and which gave Ford the right to terminate the agreement, was not a contract in unreasonable restraint of trade violative of section 1 of the Sherman Act. The district court also determined that “there are no facts which show that Ford improperly used the franchise agreement to deny transfer of the Ford franchise to plaintiffs de la Rigaudiere and Smith.” Tunis Brothers Co., 587 F.Supp. at 275. Summary judgment as to Count II was also granted.
Having dismissed all of the federal claims before trial, the district court then exercised its discretion and dismissed the pendent claims in Counts V and VI. 587 F.Supp. at 275.
The plaintiffs noticed this appeal on June 4, 1984.
II. STANDARD OF REVIEW
Although Tunis Brothers, de la Rigaudiere and Smith challenge the district court’s ruling as to the validity of the franchise agreement and the dismissal of the state claims, they have launched their major offensive against the district court’s holding with respect to the entry of summary judgment on the conspiracy charge. They strongly take issue with the district court’s evaluation of the material facts and staunchly maintain that it failed to examine all of the admissible evidence, direct and circumstantial, which they presented in opposition to the defendants’ Rule 56 motions. The plaintiffs contend that the district court did not properly determine what legitimate inferences could be drawn as to the ultimate facts in issue. They assail the trial court’s conclusions by asking: Where are the facts?
Of course, in the true nature of our adversarial process, each side has provided us with a portrayal of the evidence which, if selectively read, could be viewed as providing a solid foundation of evidentiary support. Our function on appeal, however, in regard to summary judgment, is the same as that of a trial court: it is not within our province to adjudicate genuine factual issues. We are to view the evidence in the light most favorable to the plaintiffs, the nonmoving parties, giving Tunis Brothers, de la Rigaudiere and Smith the benefit of all reasonable inferences without assessing credibility.
To determine whether the defendants have satisfied their burden under Rule 56, we must on the one hand closely scrutinize the affidavits, depositions, and exhibits submitted by the defendants, while on the other, indulgently treat those proffered by plaintiffs. 6 J. Moore, W. Taggert & J. Wicker, Moore’s Federal Practice j| 56.15[3] (2d ed. 1985). Only if we conclude that the evidence is so one-sided that it leaves no room for any reasonable difference of opinion as to any material fact should we hold that the case should have been decided by the district court as a matter of law rather than submitted to a jury.
Although we recognize that summary judgments are somewhat disfavored in antitrust cases, especially when motive or intent is at issue, see Poller v. Columbia Broadcasting System, 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458 (1962); Cernuto, Inc. v. United Cabinet Corp., 595 F.2d 164, 165 (3d Cir.1979), they are not automatically precluded in antitrust litigation, if otherwise justified. First National Bank v. Cities Service Co., 391 U.S. 253, 290, 88 S.Ct. 1575, 1593, 20 L.Ed.2d 569 (1968); Sound Ship Building v. Bethlehem Steel Co., 533 F.2d 96, 99-100 (3d Cir.), cert. denied, 429 U.S. 860, 97 S.Ct. 161, 50 L.Ed.2d 137 (1976); Innovation Data Processing, Inc. v. International Business Machines Corp., 585 F.Supp. 1470, 1472 (D.N.J.1984). Therefore, we have, with painstaking care, reviewed this massive 3,712 page record to ascertain whether it does or does not have the quantum of evidence required to sustain the district court’s grant of summary judgment on behalf of the defendants as to Counts I through IV. The critical inquiry is: did the district court err in concluding that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law? Cernuto, 595 F.2d at 165.
We believe that, in evaluating the evidence contained in this veritable mountain of briefs and appendices, the trial judge, unintentionally of course, tilted the scale against plaintiffs by failing to factor into the overall conspiracy equation certain significant evidence that clearly favored the plaintiffs. Therefore, we reverse the entry of summary judgment as to Counts I, III and IV. As to Count II, we also reverse the judgment of the district court, again for the reason that evidence favoring the plaintiffs was not taken into account as to the improper use of the franchise agreement.
Our review of the dismissal of plaintiffs’ pendent state claims is for an abuse of discretion. In light of our disposition of the federal claims, we reinstate Counts V and VI and remand this matter for trial.
III. ANALYSIS
A. The Antitrust Claims
For activities to constitute a section 1 violation, the following four elements must be present: (1) that the defendants contracted, combined or conspired among each other; (2) that the combination or conspiracy produced adverse, anti-competitive effects within the relevant product and geographic markets; (3) that the objects of and the conduct pursuant to that contract or conspiracy were illegal; and (4) that the plaintiffs were injured as a proximate result of that conspiracy. Martin B. Glauser Dodge Co. v. Chrysler Corp., 570 F.2d 72, 81-2 (3d Cir.1977), cert. denied, 436 U.S. 913, 98 S.Ct. 2253, 56 L.Ed.2d 413 (1978).
Although the literal language of section 1 declares “every” contract, combination or conspiracy in restraint of trade to be illegal, it has been construed to proscribe only those combinations that “unduly” restrain trade. Cernuto, 595 F.2d at 166. Thus, unless the particular restraint falls within a category that has been judicially determined to be illegal per se, the legality of a restraint challenged under section 1 of the Sherman Act must be assessed under the “rule of reason” standard.
To demonstrate an antitrust violation under the “rule of reason,” plaintiffs would have to show an actual anti-competitive impact on the sale of tractors in the relevant market area. Plaintiffs allege, and may be able to prove such harmful effects, but the district court did not reach the question of adverse impact, having determined that the first element of a section 1 claim was not satisfied. Plaintiffs’ claims, however, are not entirely grounded on the “rule of reason;” in Count 1, plaintiffs allege the per se illegality of the defendants’ combination in the form of a horizontal territorial restriction.
1. Counts I, III, IV — Concerted Action
We will first consider whether the defendants met their burden of establishing that, as to the undisputed material facts, there could not have been a conspiracy as a matter of law either because (a) there was not sufficient evidence of concerted action or (b) even if there was such evidence, the acts complained of are not violative of the antitrust laws.
(a) Burden of Proof
We begin with the proposition that “liability under the antitrust laws [cannot] be measured by any rigid or mechanical formula____” Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 699, 82 S.Ct. 1404, 1410, 8 L.Ed.2d 777 (1962).
To establish the existence of concerted action as a matter of fact, the plaintiff must submit evidence from which a jury could reasonably infer that the defendants “had a conscious commitment to a common scheme designed to achieve an unlawful objective”, Monsanto Co. v. Spray-Rite Service Corp., — U.S. -, 104 S.Ct. 1464, 1471, 79 L.Ed.2d 775 (1984), quoting Edward J. Sweeney & Sons, Inc. v. Texaco, 637 F.2d 105, 111 (3d Cir.1980), cert. denied, 451 U.S. 911, 101 S.Ct. 1981, 68 L.Ed.2d 300 (1981), or, in other words, “a unity of purpose or a common design and understanding, or a meeting of minds in an unlawful arrangement____” American Tobacco Co. v. United States, 328 U.S. 781, 810, 66 S.Ct. 1125, 1139, 90 L.Ed. 1575 (1946); American Motor Inns, Inc. v. Holiday Inns, Inc., 521 F.2d 1230, 1243 (3d Cir.1975). Direct proof of an express agreement is not required. Edward J. Sweeny & Sons, Inc. v. Texaco, Inc., 637 F.2d 105, 111 (3d Cir.1980), cert. denied, 451 U.S. 911, 101 S.Ct. 1981, 68 L.Ed.2d 300 (1981).
As we noted in In re Japanese Electronic Products Antitrust Litigation, 723 F.2d 238, 304 (3d Cir.1983), cert. granted, — U.S. -, 105 S.Ct. 1863, 85 L.Ed.2d 157 (1985), “[b]ecause the concert of action which violates the antitrust laws will so rarely be the subject of direct evidence, the Supreme Court has permitted broad latitude with respect to what inferences are permissible from the totality of the circumstances.” (Emphasis added). The Supreme Court stated in American Tobacco Co.,.328 U.S. at 809-10, 66 S.Ct. at 1139:
It is not the form of the combination or the particular means used but the result to be achieved that the statute condemns. It is not of importance whether the means used to accomplish the unlawful objective are in themselves lawful or unlawful. Acts done to give effect to the conspiracy may be in themselves wholly innocent acts. Yet, if they are part of the sum of the acts which are relied upon to effectuate the conspiracy which the statute forbids, they come within its prohibition. No formal agreement is necessary to constitute an unlawful conspiracy. Often crimes are a matter of inference deduced from the acts of the person accused and done in pursuance of a criminal purpose____ The essential combination or conspiracy in violation of the Sherman Act may be found in a course of dealings or other circumstances as well as in an exchange of words, (citations omitted).
Conspiracies under the Sherman Act are not dependent on any overt act other than the act of conspiring. See Associated Press v. United States, 326 U.S. 1, 12-13, 65 S.Ct. 1416, 1420-1421, 89 L.Ed. 2013 (1945). Those who, with knowledge of the conspiracy, aid or assist in carrying out the purposes of the conspiracy make themselves parties thereto and are equally liable to or guilty with the original conspirators.
The primary facts upon which plaintiffs rely to support their allegation of conspiracy are these:
(1) Plaintiffs de la Rigaudiere’s and Smith’s conversations and communications with defendants Ford, John Watson and Eugene W. Fraher regarding the purchase of Tunis Brothers by de la Rigaudiere and Smith and their application for Ford franchise from April 1980 to January 1981
Complaint U 35-45, App. at 23-27.
(2) Plaintiffs de la Rigaudiere’s and Smith’s conversations and communications with defendants
Eugene W. Fraher and Hugh Nickel regarding their franchise application Complaint H 46-56, App. at 27-32.
(3) The events surrounding the rejection of plaintiffs de la Riguadiere’s and Smith’s franchise application
Complaint K 57-65, App. at 32-35.
The character and effect of an alleged conspiracy are determined only by analyzing the activities in question as a whole, Continental Ore Co. v. Union Carbide, 370 U.S. at 699, 82 S.Ct. at 1410. This court “need not affirmatively find that a conspiracy exists, but merely that there are factual questions concerning such a conspiracy in order to deny the motions for summary judgment.” American Dermatologists’ Medical Group, Inc. v. Collagen Corp., 595 F.Supp. 79, 81 n. 1 (N.D.Ill. 1984). Therefore, we will look to the affidavits, depositions, and exhibits to determine whether the facts alleged by plaintiffs are susceptible of an interpretation that might give rise to an inference of a conspiracy.
(1) Plaintiffs’ Conversations and Communications With Defendants Ford, John Watson and Eugene W. Fraher Regarding the Purchase of Tunis Brothers and Ford Franchise April 1980 to January 1981.
The district court found, as a matter of undisputed fact, that in March 1980 plaintiffs de la Rigaudiere and Smith began negotiations with Mr. and Mrs. Tunis as to the sale of the dealership. They initiated a series of meetings and negotiations with Richard and Isabelle Tunis, extending over a period of months, culminating in an Agreement of Sale dated December 16, 1980. App. at 2787.
Richard de la Rigaudiere deposed that he contacted defendant John Watson, a Zone Manager for Ford’s Tractor Operations for an area including Kennett Square and Concordville, in April of 1980 regarding the proposed sale. App. at 1554. He further testified that Watson suggested that they meet at Wenner Ford and then have lunch at the Concordville Inn, near Wenner Ford. App. at 1908-11. It is undisputed that on May 23, 1980, prior to the sale of the business, de la Rigaudiere and Smith met with defendant John Watson for the purpose of discussing the transfer of the Ford franchise to them once Richard and Isabelle Tunis sold the business. The parties met at Wenner Ford.
Meeting at Wenner Ford and Concord-ville Inn — May 23, 1980
De la Rigaudiere testified that Watson introduced him and Smith to John S. Wenner and took them on a tour of the Wenner Ford facility. App. at 1564-5; 1910-91. It is undisputed that the May 23, 1980 meeting also included lunch at the Concordville Inn, during which de la Rigaudiere and Smith told Watson of their plans to purchase Tunis Brothers, expand the business and become franchised tractor dealers in Kennett Square. Defendant Watson indicated that Ford did not intend to have a franchised dealership selling tractors in Kennett Square after Tunis Brothers was sold but rather was interested in having a franchised dealership in the area, 15 miles west of Kennett Square.
De la Rigaudiere and Smith both testified that Watson also said that the Kennett Square area was to belong to Wenner Ford after Mr. Tunis retired or sold the business. App. at 1567-15; 1919; 2142, 2377. Watson denies making the statement.
De la Rigaudiere further testified that Wenner was seated nearby during lunch at the Concordville Inn and was “in an excellent position to overhear... our conversation.” App. at 1916. Defendant Wenner testified that he remembered the meeting with Watson, de la Rigaudiere and Smith at Wenner Ford but that he had no recollection of having lunch at the Concordville Inn on that same day and no recollection of ever eating at the Concordville Inn. App. at 108-10. Plaintiffs’ Exhibit P-8, an invoice to Wenner Ford which shows that John Wenner had been at the Concordville Inn on May 23, app. at 2778, contradicts the testimony of Wenner. Watson denied in his deposition knowing that Wenner was at the Concordville Inn.
Following the May 23rd meeting, defendant Watson, in his Ford New Dealer Prospecting Report wrote that the two men were very well qualified to represent Ford in the trade area — Oxford and Cochran-ville, Pennsylvania — not Kennett Square. App. at 2779-80.
Whether or not Wenner saw Watson, de la Rigaudiere and Smith at the Concordville Inn; whether it was just a coincidence that Wenner was seated at an adjacent table or whether this was planned and prearranged, are disputed issues of material fact properly left for a jury.
Meeting on June 13, 1980 with Defendant Eugene E. Fraher
Smith testified that he and de la Rigaudiere felt that Watson and Wenner had been collaborating and decided to “go over their heads.” App. at 2143. It is undisputed that later, in June 1980, plaintiffs de la Rigaudiere and Smith met with Watson’s superiors, defendant Eugene E. Fraher, who was then Northeastern District Manager of Ford Tractor Operations, and his associate, Edward Poole, in Cohoes, New York.
Smith and de la Rigaudiere did not know that Fraher was also then a Director and Senior Vice President of Wenner Ford Tractor and that he had served in those official capacities since November 1979. App. at 3723, 3735, 3757, 3781, 3790, 3813, 3820, 3828, 3833-34, 3482. De la Rigaudiere testified that Fraher did not mention that Ford had a stock interest in Wenner Ford, or that he was an officer of Wenner Ford. App. at 1936-37.
It is undisputed that Fraher confirmed Watson’s report that Ford intended to realign its distributorship and eliminate the Kennett Square outlet. According to Smith, Fraher agreed with Watson that Kennett Square was going to be Wenner’s territory. App. at 2146. De la Rigaudiere testified to the same effect. App. at 1936.
De la Rigaudiere testified that Fraher also told them Ford preferred not to have its dealers competing with each other but went on to say that he thought de la Rigaudiere and Smith could have a dealership in Kennett Square for two to three years before they would have to move to the Cochranville area. App. at 1579-80, 1935-36, 1939-40. Smith testified, “Finally, we reached an agreement that we would start out in Kennett Square and after a period of time set up a place in Cochranville.” App. at 2149. Fraher gave de la Rigaudiere and Smith dealer applications and told them to apprise him of the progress of the sale negotiations. App. at 1940. After mortgage financing had been arranged through the Chester County Industrial Development Authority (“CCIDA”), App. at 2790, 3051, Richard and Isabelle Tunis and de la Rigaudiere and Smith signed an Agreement of Sale for Tunis Brothers. It is undisputed that performance of the agreement was not conditioned on de la Rigaudiere and Smith obtaining Ford’s approval to continue the Tunis Brothers dealership as a Ford franchised dealership.
In January of 1981 de la Rigaudiere sent to Fraher de la Rigaudiere’s and Smith’s personal financial statements, a copy of the sales agreement, their business plan, a description of the CCIDA and a copy of CCIDA approval. App. at 2857-58. The same package was mailed to defendant Douglas N. Crawford, who had succeeded Watson as Ford’s zone manager. App. at 1666-67.
(2) Plaintiffs’ Conversations and Communications With Defendant Hugh Nickel Regarding the Franchise Application
March 3, 1981 Meeting At Tunis Brothers
The district court found it to be an undisputed fact that on March 3, 1981, defendants Douglas N. Crawford and Hugh Nickel, a Dealer Replacement Representative in the Northern Region of Ford Tractor Operations, met de la Rigaudiere and Smith in Kennett Square to obtain more application information for: 1) a franchised dealership; and 2) credit from defendant Ford Credit As to this particular meeting, the district court made no further findings, nor did it consider record evidence and inferences in support of several important allegations made by plaintiffs. It is especially at this stage that the plaintiffs allege that the district court improperly tilted the scales against them by failing to note several critical facts and inferences favorable to plaintiffs that create a genuine dispute as to material facts within the admonitions of Rule 56.
De la Rigaudiere testified that he received a telephone call from defendant Crawford, who said that “Mr. Fraher was sending him.” App. at 1668. Crawford testified that it was Mr. Fraher who telephoned him and told him to go to Tunis Brothers to take the dealer application. App. at 1292-94. Fraher testified that he did not call Crawford. App. at 1338-41.
During the meeting with de la Rigaudiere, Smith and Mr. and Mrs. Tunis, Nickel explained that Ford would not process an application for a replacement dealer unless the present dealer submitted a letter of resignation. Nickel presented Mr. Tunis with a form letter of unconditional resignation and termination notice for Mr. Tunis to copy and submit to Ford. Nickel told them Tunis’ resignation letter would not be finally processed until the application of the new owners for Ford franchise was approved. Nickel assured them it would be approved and that the resignation and termination letter would be kept in a drawer and not acted upon.
Nickel also recorded considerable detailed financial information which de la Rigaudiere and Smith supplied orally. He had de la Rigaudiere and Smith sign blank applications on which the credit information was to be typed later. He stated that he would have the forms typed up in his office and then return them to de la Rigaudiere and Smith for their review before submitting them. De la Rigaudiere and Smith never saw those papers again. App. at 1954-59. See generally deposition testimony of de la Rigaudiere, App. at 1950-54; Smith, App. at 2158-60; Isabelle Tunis, App. at 2661-63; Richard Tunis, App. at 2556-69.
During this meeting, neither Nickel nor Crawford mentioned any move to Cochran-ville or Oxford or any time limit on the franchise in Kennett Square. App. at 1959-62; 2162.
Despite his assurance to de la Rigaudiere and Smith that the dealer applications would be approved, Nickel subsequently wrote a Ford New Dealer Prospecting Report which stated that he did not feel that de la Rigaudiere and Smith were qualified businessmen or that their net worth or financial strength was adequate to qualify for a line of credit.
(3) Rejection of Plaintiffs' Application
According to de la Rigaudiere and Smith, after the March 3, 1981 meeting with Nickel and Crawford, the purchase and sale of Tunis Brothers was consummated based on Nickel’s repeated assurances that the dealership application of de la Rigaudiere and Smith would be approved. The closing of the sale of Tunis Brothers took place on March 13, 1981, and by letter dated March 17, 1981, Richard Tunis sent Ford his letter of resignation. App. at 2929. Upon receipt of Tunis’ resignation, Nickel completed, by hand, a request that the Market Representation Manager accept Tunis’ resignation immediately. App. at 2972, 1018. The request was then typed and signed by Fraher. It is undisputed that defendant Kenneth E. Harris, the Market Representative Manager of the Northern Region of Ford Motor Company’s Tractor Division, did not process the resignation letter, but rather, held the resignation pending a decision on plaintiffs’ applications.
On April 1, 1981, H.W. Stoneback, Manager of the Philadelphia Branch of Ford Credit, telephoned Harris and indicated that Ford Credit would not approve credit. Consequently, Harris called Ford to complete the resignation letter. In May 1981, de la Rigaudiere and Smith were informed that their credit application had not been approved by Ford Credit.
After de la Rigaudiere’s and Smith’s credit applications had been rejected, they discovered that Nickel had, in completing the dealer applications signed by them in blank, supplied information that de la Rigaudiere and Smith were investing in Tunis Brothers business only $2,500 each. Yet, they had informed Nickel at the March 3, 1981 meeting that they were putting $25,-000 each into the business settlement. See deposition testimony of de la Rigaudiere, App. at 1959. Although Ford concedes that Nickel inserted the wrong figures, the district court opinion does not address the blank applications or the erroneous information supplied. However, because the decision had been based on erroneous financial information, de la Rigaudiere and Smith were permitted to submit a new credit application to Ford Credit. App. at 3052-80.
Fraher opposed granting de la Rigaudiere and Smith a Ford dealership in Kennett Square and so advised defendant E.S. Hasel, Regional Manager of the Northern Region of Ford’s Tractor Division and Senior Vice President and Director of Wenner Ford. Hasel notified de la Rigaudiere and Smith by letter dated August 7, 1981, that Ford would not approve their application for a franchised dealership in Kennett Square. App. at 3084. The district court does not discuss, although it acknowledges, this second rejection of de la Rigaudiere’s and Smith’s application. Subsequently, they became, and still are, an Allis-Chalmers dealership selling Allis-Chalmers tractors.
On the basis of the foregoing examination of the summary judgment record, we believe that there are numerous factual questions unresolved in this case. Issues of material fact need not be' resolved conclusively in favor of the party opposing summary judgment; it is enough for the opposing party to show that sufficient evidence supporting some factual dispute requires a judge or jury at trial to resolve the parties’ differing versions of the truth. See Cedillo v. International Association of Bridge & Structural Iron Workers, Local Union No. 1, 603 F.2d 7, 10-11 (7th Cir.1979). The plaintiffs present a plausible, albeit somewhat complex and dramatic, view of the facts, but the inferences which the plaintiffs draw from the facts are not so far-fetched that a trier of fact should not be allowed to consider them. When viewed in the light most favorable to the plaintiffs, the facts are susceptible of an inference of concerted action.
However, we must still examine the relationships of the defendants in order to determine whether the alleged concerted conduct is violative of the antitrust laws.
(b) Liability of Co-conspirators
The character of an individual’s relationship with a corporation in an intracorporate or intra-enterprise conspiracy situation is extremely significant if not determinative. Ford, Ford Credit, Wenner Ford, and John Wenner are the key corporate characters in this alleged conspiracy. The individuals who are or were employees of Ford, are denominated as “participants.” The plaintiffs take the position that Ford and Wenner Ford conspired with each other and with all of the individual defendants, both employees and non-employees; that all of the individual defendants conspired with each other; and that Ford Credit conspired with Wenner Ford and with all of the individual defendants. The only change in position on appeal is that plaintiffs no longer contend that Ford conspired with Ford Credit, its wholly-owned subsidiary.
(1) Ford and Ford Employees, Including John Wenner; Wenner Ford and Wenner Ford Employees, Including John Wenner
Relying on our
Question: What is the number of judges who voted in favor of the disposition favored by the majority?
Answer:
|
songer_usc2sect
|
1371
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 26. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
UNITED STATES of America, Appellant, v. 525 COMPANY, Appellee.
No. 21857.
United States Court of Appeals Fifth Circuit.
March 22, 1965.
Robert L. Waters, Atty., Dept, of Justice, Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, Atty., De.pt. of Justice, Washington, D. C., Barefoot Sanders, U. S. Atty., Dallas, Tex., Melva M. Graney, Atty., Dept, of Justice, Washington, D. C„ Stanley McMurry, Asst. U, S. Atty., of counsel, for appellant.
Harry C. Weeks, Frank B. Appleman, Fort Worth, Tex., Weeks, Bird, Cannon & Appleman, Fort Worth, Tex., of counsel, for appellee.
Before BROWN and BELL, Circuit Judges, and HUNTER, District Judge.
HUNTER, District Judge.
This is an appeal by the United States from a judgment of the district court awarding taxpayer a refund of corporate and personal holding company taxes. The material facts, all of which are stipulated, appear in the district court’s opinion, reported in 230 F.Supp. 803.
The Technical Amendments Act of 1958 (26 U.S.C.A. §§ 1371-1377) amended the Internal Revenue Code of 1954 by adding Subchapter S dealing with small business corporations. The provisions of that subchapter permit certain business corporations, upon filing a proper election, to be taxed after the fashion of a partnership; that is, the corporate entity is by-passed for tax purposes and the shareholders are taxed on their ratable shares of the corporate income. Plaintiff (taxpayer), 525 Company, qualified as such a corporation, and filed an appropriate election to which its two shareholders and their spouses consented. If this election continued in effect through the close of the 1962 taxable year, taxpayer’s income tax liability should have been determined pursuant to Subchapter S. But, the election to be taxed as a small business corporation terminates by operation of law if such corporation has gross receipts more than 20% of which is derived from personal holding company income, including inter alia, royalties (Sec. 1372(e) (5)), of the Internal Revenue Code of 1954.
Taxpayer’s net income for the taxable year in suit amounted to $1,087.68 and all of it was derived from an undivided interest in two oil payments. Consequently, if oil payments are royalties within the meaning of the personal holding company provisions of the Internal Revenue Code, then the taxpayer’s election was terminated by operation of law and it owed both corporate and personal holding company taxes. The issue quickly narrows: Did the revenue from the oil payments constitute receipts from royalties within the purview of Section 1372(e) (5) and Section 543(a) (8) of the Internal Revenue Code of 1954 ?
Taking the statute in light of its legislative and administrative history, we find nothing to indicate that Congress intended to include “oil payments” within the terms “royalties” or “mineral, oil or gas royalties.” Contrawise, such history as has been presented to us appears to support taxpayer’s contention. It must be presumed that in using terms undefined in the statute, Congress intended the words to have their natural, ordinary and familiar meaning. First National Bank of Cincinnati v. Flershem, 290 U.S. 504, 54 S.Ct. 298, 78 L.Ed. 465; United States v. Leslie Salt, 350 U.S. 383, 76 S.Ct. 416, 100 L.Ed. 441; United States v. Isham, 17 Wall 496, 21 L.Ed. 728. Both the dictionary definitions and the cases demonstrate that the term “royalty”, as used with respect to oil and gas matters, refers to the landowner’s royalty and not to oil payments. Sneed v. Commissioner, 33 B.T.A. 478; Twentieth Century Fox Film Corporation v. Tea, 286 F.2d 373 (5 C.C.A., 1961); Words and Phrases, Yol. 37A, 600-608 and pocket parts. Congress was conscious of the distinctions between the terms “royalties”, “overriding royalties” and “oil payments” at the time the Revenue Act of 1934 was enacted. This is authoritatively established by the legislative history of the 1934 Act which reveals that the question arose as to whether certain types of overriding royalties would be included in the term “royalty”. The report of the Conference Committee on the 1934 Act, 73rd Congress, Second Session, H.R. 1385, expressly stated:
“As used in this section, the term ‘royalty’ is not intended to include overriding royalties received by the operating company.” Seidman’s Legislative History of Federal Income Tax Law, 1938-1861, page 399.
The proposition that there was a distinction for personal holding company tax purposes between royalties and oil payments was for many years recognized by the Internal Revenue Service. At the time T.D. 6308 was promulgated in September of 1958, Mertens, Law of Federal Income Taxation, in Vol. 7, Para. 40.07 (K) contained the following statement:
“Since the Revenue Service holds that payments collected on in-oil payment rights, which are carved out of larger depletable interests in oil and gas in place, do not ordinarily qualify as royalty income for the purpose of determining personal holding company income, oil production payments collected on in-oil payment rights which were originally granted or reserved in a leasing transaction do not qualify as mineral, oil, or gas royalties.”
This interpretation had been consistently followed by the courts as well as the Commissioner, and Congress made no change until 1964, although the Code was re-enacted time and time again. This bespeaks congressional approval. In September of 1958 the Internal Revenue Service, in contrast to the position it had taken throughout the many years, declared that the term “mineral, oil or gas royalties” means all royalties, including production payments and overriding royalties. Explicit recognition that this attempt to characterize oil payments as royalties was a departure from prior Treasury practice is found in T.D. 6308 itself, which contained this language:
“(iii) The first sentence of subdivision (ii) of this subparagraph shall apply to overriding royalties received from the sublessee by the operating company which originally leased and developed the natural resource property in respect of which such overriding royalties are paid, and to mineral, oil, or gas production payments, only with respect to amounts received after September 30, 1958.”
Against the Treasury’s prior long-standing and consistent administrative interpretation, its promulgation of September 30, 1958, as to how the statute should be construed cannot stand. Surely a contemporaneous construction by persons charged with the responsibility of setting the statute’s machinery into motion should not be overturned except for very cogent reasons. Norwegian Nitrogen Prod. Co. v. United States, 288 U.S. 294, 53 S.Ct. 350, 77 L.Ed. 796.
This Court appreciates the fact that the Treasury has been upheld in many cases where it altered regulations. An examination of the controlling cases upholding the Treasury in such cases will show that they relate either to spheres in which the Congress has delegated special regulatory power to the Treasury or the Service, such as matters relating to depletion allowances, or which deal with items of deductions, but that in other cases where a substantial change is made in the incidence of the tax, the Supreme Court and this Court, as well as others, have held the attempted change invalid.
Appellant attempts to uphold the validity of T.D. 6308 by the assertion that prior to the promulgation of that regulation the Internal Revenue Service had not been fully cognizant of the nature of oil payments and their similarity to royalties. Be that as it may, it is nevertheless for Congress, not the Treasury, to make the change. T.D. 6308 constituted a plain administrative endeavor to amend the law as enacted by the Congress and to make it reach subjects and objects which the Congress had deliberately omitted. The effect of such an effort comes within the condemnation of the decisions of the Supreme Court. This is exemplified by Commissioner of Internal Revenue v. Acker, 361 U.S. 87, 80 S.Ct. 144, 4 L.Ed.2d 127 (1959), where the Court stated:
“But the section contains nothing to that effect, and, therefore, to uphold this addition to the tax would be to hold that it may be imposed by regulation, which, of course, the law does not permit. United States v. Calamaro, 354 U.S. 351, 359, 77 S.Ct. 1138, 1143, 1 L.Ed.2d 1394; Kosh-land v. Helvering, 298 U.S. 441, 446-447, 56 S.Ct. 767, 769-770, 80 L.Ed. 1268; Manhattan General Equipment Co. v. Commissioner, 297 U.S. 129, 134, 56 S.Ct. 397, 399, 80 L.Ed. 528.”
Equally applicable is the Supreme Court’s opinion in United States v. Leslie Salt Co., 350 U.S. 383, 76 S.Ct. 416, 100 L.Ed. 441 (1955) and this Court’s opinions in United States v. Marett, 5 Cir., 325 F.2d 28 (1963); and United States v. Mississippi Chemical Company, 5 Cir., 326 F.2d 569 (1964).
The trial court correctly determined that as applied to the facts of this case, the reserved oil payments were not receipts from royalties within the purview of Section 1372(a) (5) or Section 543(a) (8) of the Internal Revenue Code of 1954. The judgment is affirmed.
. 525 Company filed an appropriate income tax return as a Subchapter S corporation, and its stockholders in their individual income tax returns for the calendar year 1962 duly reported as parts of their taxable incomes their ratable shares of the net income so reported.
. Section 1372(e) (5), as noted by its caption, deals with “personal holding company income”, including “royalties.” Section 543 of the Internal Revenue Code of 1954 defines personal holding company income to include “mineral, oil or gas royalties.” Both taxpayer and the United States agree that for the purposes of this case, the term “royalties” in Sec. 1372(e) (5) is equivalent to the term “mineral, oil or gas royalties” in Section 543.
. The oil payments were created in 1955 when one Eugene Gill excepted the same from his assignment of certain oil and gas leases and related equipment. No other interests were retained by Gill when he assigned the leases and equipment. The taxpayer acquired its undivided interests from M. Morse and Company, Ltd. on June 29, 1962. Those oil payment reservations were assignable and of the conventional type.
. Revenue Ruling 55-194, published in C.B. 1955-1, page 434; Kiesau Petroleum Co. v. Commissioner, 42 B.T.A. 69; Nemours Corporation v. Commissioner, 38 T.C. 585.
. Before the present ease was decided by the district court, Congress, in 1964, added Section 543(b) (4) of the Code which defines “adjusted income from mineral, oil and gas royalties”, as meaning “the gross income from mineral, oil and gas royalties including production payments and overriding royalties.” But, this change was prospective. Senate Report No. 830, Part 2, 88th Congress, 2nd Session, page 250, stated:
“However, it has been brought to the attention of your committee that this interpretation of existing section 543 (a) (8) is disputed by some taxpayers. Your committee’s amendment would make it clear that production payments and overriding royalties are to be treated as mineral, oil, and gas royalties under proposed section 543(b) (4). This amendment is not intended to affect any case involving interpre-tions of section 543(a) (8) of existing law.” (Italics supplied).
Question: What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 26? Answer with a number.
Answer:
|
songer_appel1_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 appellant. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
UNITED STATES v. C. I. T. CORPORATION.
No. 94.
Circuit Court of Appeals, Second Circuit.
Dec. 13, 1937.
Jos. G. Myerson, of New York City (Joseph G. Myerson and Jeremiah C. Lazar, both of New York City, of counsel), for appellant.
Leo J. Hickey, U. S. Atty., of Brooklyn, N. Y. (Vine H. Smith and JvWolfe Chassen, Asst. U. S. Attys., both of Brooklyn, N. Y., of counsel), for the United States.
Before MANTON, L. HAND, and SWAN, Circuit Judges.
L. HAND, Circuit Judge.
This is an appeal from a decree denying the claim of the intervener, C. I. T. Corporation, to remit the forfeiture of its interest in a motor car, as assignee of the conditional seller. The facts are as follows. A libel of information was filed against the car on December 10, 1936, alleging that it was found upon premises where liquor was being manufactured with intent to defraud the United States of taxes (section 1184, Title 26 U.S.Code, 26 U.S.C.A. § 1184), and where there was a distilling apparatus, not registered as required by law (section 1162, title 26 U.S.Code, 26 U.S.C.A. § 1162). The car was seized, and on January 11, 1937 the “C I. T. Corporation” filed a claim to it and an answer. The libellant moved for a decree of forfeiture, and the claimant, by cross motion, for a remission as to its interest; the appeal is taken from the decree granting the libellant’s motion and denying that of the claimant. The claimant’s answer consented to the forfeiture except as to its own interest, but as to that alleged that on July 21, 1926, the same day when the car was sold to the purchasers, Louis Goldberg and A. Margolis, the conditional seller, a reputable dealer in Brooklyn, assigned its interest to the claimant, which received it in the regular course of its business. Before the contract was executed the claimant investigated the purchasers through “reputable credit investigation agents,” learned nothing giving it reason to'believe that the car was to be used in violation of law, and bought the contract in good faith. The libellant moved for decree on the the.ory that the answer had conceded that the car should be forfeited; but that motion was plainly bad. The claimant’s cross-motion was supported by an affidavit which the libellant answered, and the court apparently treated the cause as though it was then ripe for decree. That was of course erroneous unless both parties consented to try it on affidavits; but since they •have both done so, and the affidavits do not materially conflict in point of fact, we will disregard the irregularity and decide the case as though it had come up upon final hearing as it should have.
The claimant’s affidavit declared that its investigating agents learned that Goldberg was employed as a plumber, had a bank account, was married, had two children, and had been a satisfactory tenant; that Margolis had owned a house for ten years, had a good reputation, was thought to be a man of considerable means, had a bank account and was the president of a mineral water company which had a good rating. To. this the libellant’s affidavit replied that an investigator of the federal “Alcohol Tax Unit” had interviewed Margolis, who told him that he signed the contract only because his daughter was married to Gold-, berg’s younger brother; that Goldberg was not regularly employed; that almost a year before the purchase he was being investigated by the “Unit” as to the operation of a still on the premises where the car was later seized; that the claimant had made no inquiry at the “Unit”; and that if it had, it would have learned the facts alleged. There is no other evidence that either Goldberg or Margolis had the “reputation” of having violated the liquor laws, nor was the proof of any “record” to that effect. The judge thought that the claimant had not made out its case for remission under section 40a(b) of title 27 U.S.Code (27 U.S.C.A. § 40a (b), denied its motion, and granted the libellant’s.
Section 40a (a) gives the district court jurisdiction to “remit or mitigate the forfeiture” ; section 40a (b) conditions this power upon the claimant’s proving (1) that he has acquired an interest in the car in good faith, (2) that he had no knowledge or reason to believe that it would be used to violate the liquor laws, and (3) in case the claimant’s interest arises out of a contract made with a person “having a record or reputation for violating laws of the United States or of any State relating to liquor” that the claimant must inquire of certain specified local or federal authorities as to such a possible “record” or “reputation,” and be informed that he has neither.
It is clear that the claimant has the burden of proof as to the first two conditions; he must show that he acquired his interest in good faith and that he had' no reason to believe that the car would be used in violating the law. The claimant undoubtedly fulfilled these unless we are to question the truth of its affidavit; we do not understand that the libellant means to raise that question. The third condition is itself subject to a condition, for the duty of inquiry is not imposed upon the seller unless the buyer has in fact “a record or reputation” as a violator of the liquor laws. We do not decide whether the claimant has the burden of disproving this condition, for the libellant concedes that it has not; that has, indeed, been twice held in district courts. United States v. One 1936 Model Lafayette Coupé Automobile, 14 F.Supp. 1003, 1005; United States v. One 1935 Chevrolet Coupé, 13 F.Supp. 986. So much granted, the case falls, for the libellant made no effort to show that either Goldberg or Margolis had in fact any “record” or a “reputation” as a violator of the liquor laws. The notion seems to be that because the officials had been investigating Goldberg for a year, that gave him a reputation as a violator of the liquor laws. That is an error. The statute is drawn so as to impose upon the seller the duty of inquiry only when there exists something which is likely to reach his ears, a public record or a general reputation. No doubt he always takes the chance in any sale that there may be one or both of these; but his duty does not arise if there is not. Even then he will escape if the officials do not confirm it upon inquiry. Here there was no record; the libellant does not allege that the pending investigation was such. Nor was there any reputation. Some of the officials — how many we do not know — had for long suspected Goldberg of breaking the liquor law, but that did not give him the reputation of doing so. Such inquiries are kept secret lest they come to the knowledge of the suspect and he become wary. The statute means not that, but reputation in the usual sense, a prevalent or common belief, a general name, the opinion of a number of persons, a more or less extended and public attribution of the crime, likely to be spread about so as to reach the seller. The knowledge of those charged with the duty of prosecuting Goldberg was not likely to do so.
The libellant answers that even so, remission lay in the court’s discretion under section 40a (a) and that the discretion exercised in the case at bar was final. United States v. One 1935 Dodge Rack-Body Truck, 88 F.2d 613, 615 (C.C.A.2). But though the power be discretionary, the discretion must be governed by the evidence ; it may not be baseless. In the case at bar there were no suspicious circumstances to lead the claimant to refuse to accept the contract; we are not to say that no car can ever be sold without inquiry at the local “Alcohol Tax Unit.”
Decree reversed, forfeiture remitted.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant?
A. cabinet level department
B. courts or legislative
C. agency whose first word is "federal"
D. other agency, beginning with "A" thru "E"
E. other agency, beginning with "F" thru "N"
F. other agency, beginning with "O" thru "R"
G. other agency, beginning with "S" thru "Z"
H. Distric of Columbia
I. other, not listed, not able to classify
Answer:
|
songer_majvotes
|
2
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the number of judges who voted in favor of the disposition favored by the majority. Judges who concurred in the outcome but wrote a separate concurring opinion are counted as part of the majority. For most cases this variable takes the value "2" or "3." However, for cases decided en banc the value may be as high as 15. Note: in the typical case, a list of the judges who heard the case is printed immediately before the opinion. If there is no indication that any of the judges dissented and no indication that one or more of the judges did not participate in the final decision, then all of the judges listed as participating in the decision are assumed to have cast votes with the majority. The number of majority votes recorded includes district judges or other judges sitting by designation who participated on the appeals court panel. If there is an indication that a judge heard argument in the case but did not participate in the final opinion (e.g., the judge died before the decision was reached), that judge is not counted in the number of majority votes.
COMPAGNIE GENERALE TRANSATLANTIQUE v. ELTING, Collector of Customs.
No. 22.
Circuit Court of Appeals, Second Circuit.
Nov. 5, 1934.
L. HAND, Circuit Judge, dissenting.
Edward J. Garity, of New York City, and Roger O’Donnell, of Washington, D. C., for appellant.
Martin Conboy, U. S. Atty., of New York City (George B. Sehoonmaker, Asst. U. S. Atty., of New York City, of counsel), for appellee.
Before MANTON, L. HAND, and SWAN, Circuit Judges.
SWAN, Circuit Judge.
This action was brought for the recovery of a fine of $1,000, plus passage money in the sum of $115, which the Secretary of Labor had imposed upon the plaintiff for bringing to the United States an alien afflicted with a dangerous contagious disease, the existence of which might have been detected by a competent medical examination at tbe time of foreign embarkation. 8 USCA § 145. The alien embarked upon the plaintiff’s vessel at Havre, France, on August 28, 1980; he arrived at the port of New York on September 4th and was placed in the hospital at Ellis Island. On September 12th two physicians of the United States Public Health Service examined the alien and certified that he was “afflicted with trachoma, which is a dangerous contagious disease,” and that in their opinion this condition might have been detected by a competent medical examination at the foreign port of embarkation. After a hearing before a board of special inquiry, the alien was excluded, and the plaintiff was notified of the proposed imposition of a fine. In its protest, the plaintiff stated that the alien had been granted a quota immigration visa after a thorough examination by a doctor in Bagdad who had certified on May 5, 3930, that the alien was free from any infectious or contagious disease. The plaintiff also submitted an affidavit executed on August 3, 1931, by Dr. Henri Males, the ship’s surgeon, that he gave the alien “a strict medical examination” at the time of embarkation, and that “such examination disclosed no sign or symptom of trachoma or other eye disease.” Dr. Males’ affidavit stated also that he was a graduate of the Medical School of Toulouse and had had more than four years of experience in the actual practice of medicine. The Seeretaiy of Labor then referred the ease back to the authorities at Ellis Island, and an additional medical certificate was issued on March 18, 1932, by Dr. Sweet, medical director of the United States Marine Hospital. This certificate reaffirmed the opinion of the medical officers that the alien’s trachomatous condition was detectable at the port of foreign embarkation, “the clinical notes indicating that sear tissue was present on the right upper lid and there were areas of granulations indicating active trachoma.” After consideration of the foregoing facts, the Secretary of Labor determined that a fine should be imposed.
The appellant contends that it had incurred no liability to a fine because the ship’s surgeon had made a competent medical examination of the alien at the time of embarkation and had detected no sign of trachoma. This argument rests upon the premise that paragraph 3 of chapter 1 of the Regulations of August 20, 1930 governing the medical examination of aliens, promulgated by the' Surgeon General of the United States Health Service pursuant to section 16 of the Immigration Act of 1917 (8 ÚSCA §■ 152), defines the term “competent medical examination.” In our opinion these regulations refer only to examinations of aliens upon arrival in the United States. But even if it be assumed that the definition applies also to examinations at ports of embarkation, there is no evidence that the examination conducted by Dr. Males falls within the definition, for it does not appear that his examination was “performed in accordance with these regulations.” He says nothing of how he performed it, but ■merely characterizes it as a “strict medical examination.” The appellant’s argument fails to recognize that there is a distinction between a competent examination and an examination by a competently qualified physician — a distinction pointed out by this court in Lloyd Sabaudo Societa v. Elting, 55 P. (2d) 1048, 1050. It is not enough that the steamship company employ a competent physician; he must make a competent examination; if he negligently fails to detect the existence of a dangerous contagious disease, • the company is chargeable with knowledge of facts that a competent examination would have disclosed.
The appellant also urges that the action of the Secretary of Labor was arbitrary and unfair because he did not submit to the examining medical officers at the port of arrival the shipowner’s evidence bearing on the detectability of the disease at the time of embarkation, namely, that the alien had been examined by the doctor in Bagdad in May, 1930, and by Dr. Males when he embarked, and neither had found signs of trachoma. This contention is based on the case of the alien, Fusco, in Lloyd Sabaudo Societa v. Elting, 287 U. S. 329, 339, 53 S. Ct. 167, 77 L. Ed. 341.
In the case of Fusco, who was barred because of chronic pulmonary tuberculosis, affidavits were submitted with the protest tending to show “with some certainty” that the alien had been subjected to three medical examinations shortly before embarkation, and was found by all to be in good health. In reversing the fine imposed with respect to this immigrant, Mr. Justice Stone noted that the medical opinions of the examining physicians at Ellis Island did not reveal the facts upon which they were based, and were formulated by physicians who were not, so far as ap-' pears, apprised of the three previous examinations. The opinion then continues:
“The detailed information as to those examinations which petitioner submitted to the Secretary in this case might reasonably have affected the expert judgment of the physicians at Ellis Island. In relying upon their opinion alone, without putting these additional facts before them, we think the Secretary acted arbitrarily and unfairly.”
In the case at bar the Secretary did not rely solely upon the formal opinion of detectability of the disease at embarkation first submitted by the physicians at Ellis Island; he procured an additional certificate from Dr. Sweet which disclosed the clinical data upon which the medical opinions were based. ■Whether Dr. Sweet was apprised of the examinations by the Bagdad doctor on May 5th and by the ship’s surgeon on August 28th docs not affirmatively appear from the record; but in any event the former examination was so remote in time and both so general in character that it seems unreasonable to suppose that Dr. Sweet’s expert judgment would have been affected by knowledge of such prior examinations without any details as to their character and scope.. No “detailed information as to those examinations,” in the words of Mr. Justice Stone, was submitted by the appellant. Dr. Males’ affidavit recited merely that he “gave a strict medical examination” and found “no sign or symptom of trachoma or other eye disease.” He gives no details of the character of his examination; lie does not assert there was no sear tissue or granulation of the lids, nor does he even say that he everted the eyelids lo look for it. In the Fusco Case (Lloyd Sabaudo Societa v. Biting), the certificate was at least sufficiently detailed lo show an examination of the immigrant’s lungs, and it suggested that the sea voyage might have caused a previously nondetcctable tubercular condition to become apparent. Wo do not understand the Supremo Court’s opinion to lay down a hard and fast rule to the effect that whenever the shipowner presents a certificate by a doctor of adequate experience that he made a medical examination upon embarkation and found no trace of the disease discovered upon arrival, the Secretary must transmit this information to the physicians at Ellis Island if he would escape the charge of arbitrary action and an unfair hearing. Rather the tost is whether the certificate is such as might reasonably affect the judgment of the examining physicians at the port of arrival; if it is, and the Secretary, without submitting it to them, relied solely on their formal opinion unsupported by the medical or clinical facts on which it is based, the hearing is unfair. That was not the situation at bar. See, also, San Souci v. Campagnie Francaise, etc., 71 F.(2d) 651 (C. C. A. 1). In our opinion the present case is distinguishable from the case of Fusco for the reasons above stated.
Accordingly, the judgment is affirmed.
Question: What is the number of judges who voted in favor of the disposition favored by the majority?
Answer:
|
songer_prejud
|
A
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Was there prejudicial conduct by prosecution? (including prosecutor refusing to produce evidence which would aid defendant)" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
Lawrence Paula SNOWDEN, Appellant, v. UNITED STATES of America, Appellee.
No. 23565.
United States Court of Appeals Fifth Circuit.
Oct. 16, 1967.
Godbold, Circuit Judge, dissented.
James F. Mulla, Jr., New Orleans, La., for appellant.
John C. Ciolino, Asst. U. S. Átty., New Orleans, La., for appellee.
Before WISDOM and GODBOLD, Circuit Judges, and McRAE, District Judge.
PER CURIAM:
The appellant, Lawrence P. Snow-den, was convicted on both counts of a two-count indictment charging unlawful sale of narcotics in violation of 26 U.S.C. §§ 4704(a) and 4705(a). Snowden now, for the first time, attacks the indictment on the ground that the identity of the purchaser was not shown and contends that this renders the indictment insufficient under Rule 7(c) of the Federal Rules of Criminal Procedure. We rejected this contention in Borroto v. United States, 5 Cir. 1964, 338 F.2d 60, and, in keeping with this decision and those of the four other Circuits that have considered this issue, continue to do so.
Snowden asserts that the decisions in the other Circuits apply only to collateral attacks on indictments and not to direct attacks, in which category the present case falls. Borroto did involve a direct attack, however. In any event, we perceive no distinction between direct and collateral attacks relevant to the present issue.
We find no substance in Snow-den’s assertion that the remarks of the prosecuting attorney in his closing argument were contrary to the facts and evidence and were prejudicial to him. As to his contention that the trial court committed error in failing to instruct the jury on entrapment, we find no evidence developed in the trial raising this issue. See Brainin v. United States, 5 Cir. 1963, 314 F.2d 460, reh. denied 5 Cir., 317 F.2d 69.
The judgment of the trial court is affirmed.
. Collins v. Markley, 7 Cir. 1965, 346 F.2d 230; Taylor v. United States, 8 Cir. 1964, 332 F.2d 918; Clay v. United States, 10 Cir. 1963, 326 F.2d 196; Llamas v. United States, D.C.E.D.N.Y.1963, 226 F.Supp. 351, aff. 2 Cir. 1964, 327 F.2d 657.
Question: Was there prejudicial conduct by prosecution?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
sc_caseorigin
|
109
|
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.
STANDARD INDUSTRIES, INC. v. TIGRETT INDUSTRIES, INC., et al.
No. 445.
Argued March 2, 1970
Decided April 20, 1970
I. Walton Bader argued the cause for petitioner. With him on the briefs was Maximilian Bader.
Ralph W. Kalish argued the cause and filed a brief for respondents.
Lawrence G. Wallace argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Griswold, Assistant Attorney General McLaren, and Richard H. Stern.
Sidney Neuman argued the cause for the American Patent Law Association as amicus curiae. On the brief were Frank L. Neuhauser, John F. Witherspoon, Robert E. LeBlanc, William L. Mathis, and Henry Shur.
Per Curiam.
The judgments are affirmed by an equally divided Court.
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_appfiduc
|
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 "fiduciaries". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
James M. DOLLAR and Etta Marie Dollar, Plaintiffs-Appellees, v. HARALSON COUNTY, GEORGIA, Defendant-Appellant.
No. 82-8291.
United States Court of Appeals, Eleventh Circuit.
May 19, 1983.
Murphy, Witcher & Murphy, Jack F. Witcher, John W. Kilgo, Bremen, Ga., for defendant-appellant.
Marson G. Dunaway, Jr., Rockmart, Ga., for plaintiffs-appellees.
Before FAY and VANCE, Circuit Judges, and ALLGOOD , District Judge.
Honorable Clarence W. Allgood, U.S. District Judge for the Northern District of Alabama, sitting by designation.
VANCE, Circuit Judge:
This civil rights action, brought pursuant to 42 U.S.C. § 1983 by James and Etta Marie Dollar against Haralson County, Georgia, arose from a tragic incident which occurred on May 22, 1980. The complaint alleged that the county deprived the Dollars of their constitutional rights by negligently failing to construct a bridge over a ford in Haralson County and that such negligence proximately caused the wrongful deaths of the Dollars’ two daughters. The daughters were drowned when they and their mother were attempting to cross the rain swollen ford. The jury returned a verdict of $100,-000 for Mrs. Dollar and $3,258.26 for Mr. Dollar on his derivative claim. It is from this judgment and the denial of posttrial motions for jnov/new trial that the county appeals. We reverse the district court’s denial of the jnov motion and remand for entry of judgment for the county.
Viewed in the light most favorable to the Dollars, the evidence at trial revealed the following facts. Macedonia Church Road is a county dirt road that crosses Kiser Creek at a ford just east of Georgia Highway 120. Under normal conditions, the stream at the ford has a depth of eight to twelve inches. There has never been a bridge or culvert or other structure or improvement at the crossing.
Jim Smith, the sole Haralson County Commissioner of Roads and Revenues, was the person responsible for the overall supervision of county roads, bridges and fords. Smith testified at trial that as of September 1978 he had established the Kiser Creek ford as the “top priority,” the “most needed place in the county” for a bridge. Smith had listed the ford as the county’s number one priority with the Local Assistance Bridges program administered by the state of Georgia. Commissioner Smith further testified that a 1978 county tax levy netted $250,000, that a 1979 levy acquired $350,000 and that a 1980 levy brought in $450,000. Smith stated, however, that the county policy was not to expend local tax revenues to construct new bridges: “The only time we buil[d] them is when we get a State contract to build those kind of culverts.” Smith estimated that a concrete box culvert over Kiser Creek would have cost between $30,000 and $37,000. The jury found that Commissioner Smith’s failure to spend local revenues to construct the bridge was negligent and that the county’s negligence was the legal cause of the injury asserted in the complaint.
At the time of the accident, the Dollar family lived about one and one-half miles east of the ford, and Mrs. Dollar traversed the ford twice daily. The Dollars knew that the Kiser Creek ford, like any ford, became impassable to vehicular traffic during and immediately following periods of heavy rain. On May 22, 1980, Haralson County encountered heavy rains. In the early evening, Etta Dollar picked up her two youngest children, Cindy (age two) and Jamie (age one) from her sister’s house. Mrs. Dollar took her usual route home, which brought her across the Kiser Creek ford. Mrs. Dollar testified that as she ap^ proached the ford from the west, she could not determine the water level until she reached the edge of the stream. By the time she realized the water in the stream was higher than normal, Mrs. Dollar was unable to back the car away from the water’s edge because her tires spun in the mud.
Mrs. Dollar testified that as she struggled with the incapacitated vehicle, she saw a five-foot high “wall of water” rapidly coming downstream towards her from less than a hundred yards away. The water dragged the car into the stream, and Mrs. Dollar placed the'two children on the roof of the vehicle. The car began to sink, however, and she and the girls were submerged as well. Mrs. Dollar, who was unable to swim, involuntarily lost her grasp on the two children. Both daughters drowned.
Haralson County raises eight issues on appeal: whether the district court properly instructed the jury that simple negligence is the standard of care for liability under section 1983; whether the trial court properly instructed the jury on the elements of section 1983; whether sufficient evidence was presented on causation; whether any negligence on the part of the county rose to the stature of a “constitutional tort”; whether Mrs. Dollar assumed the risk of injury as a matter of law; whether, as a matter of law, the deaths resulted from an act of God; whether Georgia tort law provided an adequate remedy for the alleged negligence so as to preclude recovery under section 1983; whether mistrial was mandated by allegedly improper arguments made by plaintiffs’ counsel. Because we hold that the actions of the county did not result in deprivation of the Dollars’ constitutional rights, we need not reach the remaining issues.
In order to sustain a cause of action based on 42 U.S.C. § 1983, a plaintiff must make a prima facie showing of two elements: (1) that the act or omission deprived plaintiff of a right, privilege or immunity secured by the Constitution or laws of the United States, and (2) that the act or omission was done by a person acting under color of law. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981); Morrison v. Washington County, 700 F.2d 678, 682 (11th Cir.1983). Counsel for Haralson County conceded at oral argument that there was “no real question” in this case about the second element. County Commissioner Smith clearly was acting under authority of state law when he decided against building the bridge. Smith was the sole commissioner of the county and, as counsel put it, Smith “is, basically, the county governing body.” The issue for us is whether the conduct complained of deprived persons of constitutional or statutory rights.
Section 1983 is not self-executing, in that the statute itself creates no substantive rights. McKinnis v. Mosely, 693 F.2d 1054, 1057-58 (11th Cir.1982). Section 1983 provides only that deprivations of “rights, privileges or immunities secured by the Constitution and the laws” give rise to private causes of action. The Dollars contend that the county violated the fourteenth amendment’s protection against deprivation of life without due process of law. Although the right to life is obviously an interest of constitutional dimension, its deprivation alone cannot give rise to a claim under section 1983. In determining whether a constitutional deprivation has occurred, courts must examine whether the defendant was under any obligation to the particular plaintiff. The question of the existence of such a duty is an issue of law. The court, not the jury, must determine “whether, upon the facts in evidence, [a duty] exists between the parties that the community will impose a legal obligation upon one for the benefit of the other.” W. Prosser, Handbook of the Law of Torts 206 (1971).
The duty inquiry focuses upon the relationship between plaintiff and defendant. Because the existence of a duty resulting from relationship is usually clear in section 1983 cases, the duty issue seldom has been addressed in our opinions. Prisons, for example, clearly owe a plethora of duties to their inmates. Such duties arise from that peculiar relationship between prisoners and the state. The Supreme Court has noted that for inmates “eating, sleeping, dressing, washing, working and playing are all done under the watchful eye of the State .... What for a private citizen would be a dispute with his landlord, with his employer, with his tailor, with his neighbor, or with his banker becomes, for the prisoner, a dispute with the State.” Preiser v. Rodriguez, 411 U.S. 475, 492, 93 S.Ct. 1827, 1837, 36 L.Ed.2d 439 (1973). Similarly, in Morrison v. Washington County, 700 F.2d at 782-83, this court held that the relationship between a county hospital and its patients gave rise to a duty of reasonable care by the former, negligent breach of which could give rise to a cause of action based on section 1983. See also Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321 (11th Cir.1982).
This case stands in stark contrast to our prisoner cases and to eases such as Morrison and Daniels. The only relationship between the Dollars and Haralson County is that the Dollars were taxpayers and citizens of the county and that they traveled upon county roads. While the county may have been under a legal duty to maintain existing roads and to ensure the safety of those roads even where the roads cross fords, we decline to hold that the county had a general duty to undertake construction of a bridge over the Kiser Creek ford. See Hull v. City of Duncanville, 678 F.2d 582 (5th Cir.1982) (city’s negligent failure to properly maintain railway crossing not actionable under section 1983); York v. City of Cedartown, 648 F.2d 231 (5th Cir.1981) (city’s negligent design and construction of street and drainage system not cognizable under section 1983). Our conclusion in this case is informed, although not controlled, by Georgia law. See Morrison, 700 F.2d at 683 (section 1983 negligence action against hospital sustained because, under Alabama law, a hospital owes a duty of care to its patients). The Georgia Code states that “[w]here municipal corporations are not required by statute to perform an act, they may not be held liable for exercising their discretion in failing to perform the same.” Ga.Code Ann. § 36-33-2 (1982). See also id. at § 36-1-4. The Georgia Supreme Court has held that this statutory provision “makes the county liable for defective bridges and does not apply to a situation where no bridge exists.” Williams v. Georgia Power Co., 233 Ga. 517, 212 S.E.2d 348, 351 (1975). The Dollars have cited no authority from Georgia or elsewhere that imposes upon a municipality a duty to undertake to build a bridge across a creek which under normal circumstances is safe to ford. Further, in determining “the existence of a duty, there runs through much of the law a distinction between action and inaction.” Prosser, supra at 338. The inquiry is “whether the defendant has gone, so far in what he has actually done, and has got himself into such a relation with the plaintiff, that he has begun to affect the interests of the plaintiff adversely, as distinguished from merely failing to confer a benefit upon him.” Id. at 340. Georgia cases draw a clear line between a discretionary nonfeasance and the negligent maintenance of something erected by the local government in its discretion. See Tamas v. Columbus, 244 Ga. 200, 259 S.E.2d 457 (1979). We are impressed that this is a case of omission by the county, of discretionary inaction in failing to undertake a municipal improvement.
Since the county was under no duty to build the bridge, Commissioner Smith’s administrative decision not to construct it is not compensable under section 1983. Mere exercise of administrative discretion cannot, under the facts of this case, rise to the level of a constitutional violation.
In Parratt, the Supreme Court warned against unbridled expansion of section 1983:
To accept respondent’s argument that the conduct of the state officials in this ease constituted a violation of the Fourteenth Amendment would almost necessarily result in turning every alleged injury which may have been inflicted by a state official acting under “color of law” into a violation of the Fourteenth Amendment cognizable under § 1983. It is hard to perceive any logical stopping place to such a line of reasoning. Presumably, under this rationale any party who is involved in nothing more than an automobile accident with a state official could allege a constitutional violation under § 1983. Such reasoning “would make the Fourteenth Amendment a font of tort law to be superimposed upon whatever systems may already be administered by the states.” We do not think that the drafters of the Fourteenth Amendment intended the Amendment to play such a role in our society.
451 U.S. at 544, 101 S.Ct. at 1917 (citations omitted). The present case is even further removed from section 1983 than the noneognizable automobile accident case that the Court in Parratt hypothesized. The judgment for plaintiffs must be reversed and the case remanded for entry of judgment for defendant.
REVERSED and REMANDED.
. In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc) this circuit adopted as precedent all former fifth circuit cases submitted or decided prior to October 1, 1981. In Stein v. Reynolds Sec., Inc., 667 F.2d 33, 34 (11th Cir.1982) the court held that Unit B panel or en banc court decisions of the former fifth circuit also are binding precedent in the eleventh circuit. Hull thus is not precedent binding on this circuit while York is.
. Our holding is not inconsistent with Suthoff v. Yazoo County Indus. Dev. Corp., 637 F.2d 337 (5th Cir.1981), where the former fifth circuit held that a conspiracy to misuse a municipality’s expropriation powers, by the institution of condemnation proceedings in order to coerce landowners into selling their property at below value prices to entities which did not possess the power of eminent domain, was actionable under section 1983.
Question: What is the total number of appellants in the case that fall into the category "fiduciaries"? Answer with a number.
Answer:
|
songer_r_fiduc
|
99
|
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.
SPEAKER v. KEATING et al.
No. 337.
Circuit Court of Appeals, Second Circuit.
Aug. 7, 1941.
Rehearing Denied Sept. 4, 1941.
CLARK, Circuit Judge, dissenting.
Louis Klatzko, of New York City, for plaintiff-appellee.
Bergner & Bergner, of New York City^ (I. Maurice Wormser, Louis Bergner, and Benjamin Poller, all of New York City, of counsel), for defendants-appellants.
Before L. HAND, CHASE, and CLARK, Circuit Judges.
CHASE, Circuit Judge.
The plaintiff, a resident of New Jersey, is a daughter of Katherine Schaefer, a resident of New York, who died intestate August 2, 1939. The defendants are another daughter, a son, the husband of the deceased, and Mrs. Schaefer’s attorney, Adam Christmann, who was made a defendant because he had the custody of certain bonds and mortgages whose ownership is in issue but who had no interest in the controversy and neither filed an answer nor took an appeal. The defendants are all residents of New York and diversity is the basis of federal jurisdiction.
In December 1936, Mrs. Schaefer, who was estranged from her husband and had not been living with, or supported by, him for about thirty years wanted to make some disposition of her property which would make certain that he would get none of it. She then consulted defendant Christmann who advised her that under New York law her husband might not surely be entirely cut off by her will. She was also estranged from her daughter Lillian; had already provided for her son, Charles, as adequately as she intended to; and wanted to give the remainder of her property to her daughter Elsie but in such a way that she might have the use of the income so long as she lived. The property she wanted to give to Elsie consisted of seven mortgages securing bonds and Mr. Christmann advised her to assign them to Elsie and to herself as joint tenants. Mrs. Schaefer did execute such assignments on January 26, 1937 and they were all duly recorded on January 26, 1937.
The appellee knew, at least as early as December 21, 1936, that her mother intended to make the assignments of the mortgages for on that day she wrote her mother as follows: “I hereby authorize you to collect any and all interest on mortgages which may be held by myself and yourself, as joint tenants and sign for same. I further agree that I shall not make any claim against your estate for any interest that may have been collected by you.”
Mrs. Schaefer did collect the interest and did receive the principal of one of the mortgages which was paid. She and Elsie both executed the discharge of that mortgage and Mrs. Schaefer took the money under an arrangement she and Elsie had made in June 1937 that the proceeds of mortgages paid would be re-invested for them jointly though no such use was actually made of these funds. Another of the mortgages was cancelled when the mortgagor deeded the property to Mrs. Schaefer and Elsie as tenants in common though they would then have taken title to the property as joint tenants but for a mistake of the lawyer who drew the deed.
Mrs. Schaefer had possession of the mortgages before the assignments above mentioned and her son Charles, who had charge of her affairs generally as her agent, took them to Mr. Christmann who had them while drawing the assignments, and who also had the assignments after they were recorded until he delivered them together with the bonds and mortgages to Charles for Mrs. Schaefer. The trial judge stated in his opinion that “ * * * the witness Christmann held the papers after recording the assignments of mortgages for the benefit of both joint tenants” but there is no express finding to that effect and we find no evidence which would have supported one. The evidence was that the lawyer was employed by and acting for Mrs. Schaefer. After the death of Mrs. Schaefer, all the bonds and mortgages except the two either satisfied by payment or by a deed of the property were delivered by Charles to Christmann who holds them subject to disposition in accordance with the outcome of this litigation.
After the death of Mrs. Schaefer, the plaintiff became involved in a dispute with the other heirs as to the ownership of these bonds and mortgages. She claimed them as a surviving joint tenant. They, on the contrary, contended that the deceased had never made a gift of any part of them to the plaintiff which was valid under New York law. It is plain and undisputed that the law of New York controls. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487.
In general, it is clear that in New York delivery is a condition upon the validity of a gift inter vivos and it has long been held that the requirement applies to a chose in action so as to make delivery of the documents necessary. Young v. Young, 80 N.Y. 422, 36 Am.Rep. 634. See also Beaver v. Beaver, 117 N.Y. 421, 22 N.E. 940, 6 L.R.A. 403, 15 Am. St. Rep. 531. In the Young case the intent of a father to make a gift of certain bonds was so well proved that the court was obviously reluctant to come to the conclusion it did that the gift was invalid for lack of delivery. The same principle has recently been reaffirmed in the Appellate Division, Viggiani v. Favata, 257 App.Div. 346, 13 N.Y.S.2d 353, and we feel compelled to accept it as the law of New York. In the last mentioned case the subject matter of the intended gift was a bond and mortgage which an uncle had had assigned, by one who held for him as his nominee, to his nephew and the assignment was duly recorded. The documents were, however, retained by the uncle until he died and it was held that lack of delivery to the donee made the intended gift invalid.
Notwithstanding this, the plaintiff insists that the gift here, being only of an interest in the property as joint tenant, was not subject to the strict rule of delivery applied in the above cases. This argument is twofold. First it is said that there was sufficient delivery in that after the execution and recordation of the assignment the return of the documents to Mrs. Schaefer was delivery to a joint tenant who, under applicable common law theories, held for the plaintiff as well as herself. This but begs the question, however, for we are here dealing not with what would have been the effect of delivery to Mrs. Schaefer after she and the plaintiff actually became joint tenants or with delivery to her by a third party from whom both were acquiring property as joint tenants but with a situation requiring delivery to effectuate a gift necessary to divest Mrs. Schaefer of her absolute ownership which would otherwise remain as before. Until, and unless, Mrs. Schaefer’s absolute ownership was changed in a lawful way she continued to be the owner and the mere return of the documents to her without any delivery to the plaintiff, or to anyone for the plaintiff, was as ineffective to alter the title as to a part as it would have been as to the whole since a diminution of Mrs. Schaefer’s former interest was required as a condition precedent to the creation of a joint tenancy setting up the necessary new interest in the plaintiff.
Second, it is argued that cases dealing with joint bank deposits are in point. But there is no analogy since such deposits are held by a third party subject to withdrawal in accordance with the deposit agreement. McElroy v. Albany Savings Bank, 8 App.Div. 46, 40 N.Y.S. 422. So, too, in the case of an insurance policy where the beneficiary does not take delivery of the policy since delivery to the insured is enough to make the insurer’s contract enforceable. Fowler v. Butterly, 78 N.Y. 68, 34 Am.Rep. 507.
Despite a natural desire to give effect to the clear intention of the deceased, we find it impossible to hold this assignment valid under New York law.
Judgment reversed.
Question: What is the total number of respondents in the case that fall into the category "fiduciaries"? Answer with a number.
Answer:
|
songer_geniss
|
G
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
CITY OF MEMPHIS, TENNESSEE, for and on Behalf of the MEMPHIS LIGHT, GAS & WATER DIVISION, Plaintiff-Appellee, v. FORD MOTOR COMPANY, Defendant-Appellant.
No. 14699.
United States Court of Appeals Sixth Circuit.
June 20, 1962.
Richard I. Fricke, Dearborn, Mich., McDonald, Kuhn, McDonald, Crenshaw & Smith, Memphis, Tenn., on brief; Richard B. Darragh, Dearborn, Mich., of counsel, for defendant-appellant.
Charles C. Crabtree, Memphis, Tenn., Frank B. Gianotti, Jr., Memphis, Tenn., on brief, for plaintiff-appellee.
Before MeALLISTER and O’SULLIVAN, Circuit Judges, and STARR, Senior District Judge.
McALLISTER, Circuit Judge.
This is an appeal by Ford Motor Company from a judgment of the district court in favor of appellee, City of Memphis, in the amount of $252,576.78, claimed to have been the amount due, with interest, under a contract between Ford and the City of Memphis.
The background of the case is as follows: Ford maintained an assembly plant in Memphis for more than twenty years until January, 1959, when it sold the property. During the period it owned and operated the plant, Ford purchased all of its requirements for electricity from the Memphis Light, Gas & Water Division, herein called the Division—or the City of Memphis— pursuant to several electric service agreements, the last of which is dated November 19, 1966, and is the contract here in issue. When Ford sold its plant and moved from Memphis, in January, 1959, it paid all of its bills for electricity supplied by the City of Memphis up to that time.
The district court held that after the sale of its plant, Ford was obliged to pay the stipulated minimum bills for the remainder of the five-year period for which it had contracted, which remaining period aggregated 34*4 months.
Ford contends that, after it sold its plant, it no longer required electricity at that location; that such electricity was never generated or used thereafter by Ford up to the time of the trial; and that the interpretation of the contract by the district court that Ford was obliged to pay for the electricity that the City of Memphis did not generate and that Ford would not and could not use, was unusual and oppressive in its results, and that such interpretation was erroneous.
The contract, and schedules attached thereto, insofar as here pertinent, provide:
1. “The Division will sell and deliver to the customer and the Customer will purchase from the Division electric energy to be used for the operation of plant — at the rate applicable for this class of service, as the same may be lawfully fixed from time to time.” (Emphasis supplied.)
2. “The term of this contract shall be five years from date of initial service hereunder.”
3. “Electric energy supplied under this schedule is for the exclusive wse of the customer and shall not be re-sold.” (Emphasis supplied.)
4. "The minimum monthly bill for demand and energy for customer’s contracting for and having demands greater than 5000 kw-shall in no case be less than $1.20 per kilowatt, times the highest demand established during the preceding 12 months or contract demand, whichever is greater.”
5. “Electric energy sold under this contract shall be in the form of alternating current at approximately 12000 volts — and shall be metered at approximately 1200 volts.”
6. “The maximum 30 minute rate of use (demand) under this contract shall be 5300 kilowatts.”
7. “The point of delivery for electric energy sold under this contract shall be at the Division’s substation bus, and maintenance by the Division of approximately the above stated voltage and frequency at the point of delivery shall constitute delivery of service for the purpose of this agreement.” (Emphasis supplied.)
8. Interruptions of service due to “force (majeure)” were permitted in Paragraphs 12 and 13 of the terms and conditions, but in each of said paragraphs is the language “provided further nothing contained in this paragraph shall relieve customer from any minimum bill requirements.”
The crux of the case is whether Ford was obligated under the contract with the City of Memphis, or Division, to pay, during the period of the contract, minimum monthly bills for electricity at the rate specified in the contract, regardless of whether the electricity was used by Ford, or generated or produced by the City of Memphis. The district court held that Ford was so obligated; Ford insists it was not.
We are of the view that all of the circumstances of the case, including the fact that the contract specifically provided that it should continue for a term of five years, and that it also provided for payment of minimum monthly bills during that period, sustain the holding of the district court that Ford was liable to the City of Memphis for payment of the minimum monthly bills during that remainder of the five-year period, after which it had sold its plant and discontinued business.
It is claimed by appellant Ford that the phrase in the contract stating that the “Division will sell and deliver to the Customer, and the Customer will purchase from the Division, electric energy to be used by the Customer,” should have been interpreted by the court to mean that the Division agreed to sell only the amount of energy actually used by Ford; that Ford could cease to use the electric energy at any time; and that it would thereafter be under no obligation to pay anything except for what it had actually used. This contention is advanced on the theory that the contract was a so-called “requirements contract,” in which the City agreed to sell only what Ford required from time to time. Ford, however, explicitly agreed in the contract to pay for more than it might use, from time to time, through the agreement to pay minimum monthly bills.
The district court found, in effect, that the contract was not a “requirements contract” but was a contract for a five-year term, under which Ford was obligated to pay the minimum monthly bills, specified in the contract during that period; and we are in accord with this finding.
Ford further submits that the contract with the City of Memphis contemplated that the rate schedule included therein was subject to change from time to time, as conditions might change over the five-year period of agreement; and that, according to the agreement, “If quantity or rate of use (demand), or character of use of electric energy by Customer should change to such an extent that Customer does not comply with the availability clause * * *, then the applicable rate schedule shall be changed, effective when Customer brings these facts to the attention of the Division’s [City’s] Electric Rate Engineer in writing, except when character of load requires a special investment by Division to serve Customer; and Division's Electric Rate Engineer may likewise apply proper rate schedule when facts are brought to his attention justifying same.”
The “availability clause,” above referred to, states: “This schedule is available for electric service to commercial, industrial, governmental and other customers having demands of 20 kilowatts or greater. * * * ” From the foregoing, Ford contends that when it ceased business, its rate of demand fell below 20 kilowatts, since it no longer had any requirements whatever for electricity, and that, therefore, the proper rate schedule was zero, since the rate schedule contained no minimum bill provision.
The interpretation of the contract sought by Ford would result in abrogating the five-year term of the contract and the provision therein for payment of minimum monthly bills whenever Ford decided to purchase no more electric power. The parties are in direct conflict as to the interpretation of the contract and the schedule which is included therein. The five-year term of the contract is plain; and the provision for payment of minimum monthly bills is plain. Taken alone, these clearly sustain the contention of appellee City of Memphis. The provision in the schedule of the contract with regard to “change of rate or use,” as above mentioned, would, according to Ford, immediately terminate the five-year period of the contract and end all liability for payment of minimum monthly bills whenever Ford desired, merely by its declining to use any electric power whatever. The “change of rate or use” provision, in our opinion, is not clear. It does not provide explicitly that Ford will be released from all liability for payment of the stipulated minimum monthly bills during its five-year contract if it sells its plant or refuses to use any electricity. The obligation to pay such minimum monthly bills during the five-year period, expressed with such definiteness and certainty in the contract, is incongruous with a provision that is sought to be interpreted as giving Ford a complete release from such contractual liability whenever it desired. While a construction, such as contended for by Ford, can be deduced from the schedule, it seems a rather surprising interpretation from phraseology not clearly expressed, and would result in a contract that is contrary to, and destructive of the other provisions which are clearly expressed. On the whole, the meaning of the contract is not so clear as to make it improper to admit evidence as to the circumstances surrounding its execution. Ryan v. Ohmer, 244 F. 31, 37 (C.C.A.2). In such circumstances, the court is called upon, in construing the agreement, to ascertain the intention of the parties from the circumstances surrounding the execution of the contract. A contract must be construed as a whole and effect given to its every part. Dickinson v. Stokes, 62 F.2d 84 (C.C.A.6). The cardinal rule with respect to construction of contracts is to give effect to the intention of the parties in the light of the surrounding circumstances. Prudential Ins. Co. v. Nelson, 101 F.2d 441 (C.C.A.6).
In ascertaining the intention of the parties, under these circumstances, the court might well inquire whether Ford would have executed the contract if it had considered and understood that it would be liable during the flve-year period for payment of minimum monthly bills, and whether the City of Memphis would have executed the contract if it had considered and understood that Ford would be discharged of all liability for the minimum monthly bills during the five-year period, whenever it wished to cease operations. Moreover, the court might consider whether the evidence indicated that Ford knew or had reason to know the sense in which the City understood the contract. For, if one party to a contract knows the meaning that the other party intended to convey by his words, then the first party is bound by that meaning, and the same is true if the first party had reason to know what the other party intended. Cresswell v. United States, 173 F.Supp. 805 (Ct. of Cl.); Star Chronicle Pub. Co. v. New York Evening Post, 256 F. 435, 441 (C.C.A. 2); Ryan v. Ohmer, 244 F. 31, 34 (C. C.A.2). See Bowel’s Hydraulic Dredging Co. v. United States, 211 U.S. 176, 188, 29 S.Ct. 77, 53 L.Ed. 136.
As hereafter appears, the trial court sought to ascertain the intention of the parties from the surrounding circumstances; and, among other circumstances, it appeared from the uncontradicted evidence that it was the understanding of the City of Memphis that Ford was bound to pay the minimum monthly bills during the five-year period of the contract, and it further appeared that the City explained to Ford at the time of the execution of the contract that it would be liable for the payment of minimum monthly bills during the entire period of the contract, regardless of its requirements.
In its findings of fact, the district court set forth the circumstances under which the agreement between Ford and the City of Memphis was entered into. At the time the contract was executed on November 19, 1956, the City of Memphis received its power supply from the Tennessee Valley Authority, an agency of the United States, under a wholesale power contract which expired June 1, 1958. This contract between the Tennessee Valley Authority and the City of Memphis required the Authority’s approval of the City’s resale power rates and, accordingly, the City was required to secure from ail industrial customers, having a load of 5,000 kilowatts or more, contracts to run for a minimum period of five years and to provide for minimum monthly bills as defined in the applicable rate schedule.
Furthermore, the district court found that the custom and practice of electric facilities in the Tennessee Valley area, and throughout the country, is to require large industrial customers, such as Ford, to execute contracts providing for minimum bill requirements, and for terms of five years or more. It appears that for several years prior to June 1, 1958, the expiration date of the wholesale power contract between the City of Memphis and the Tennessee Valley Authority, the City had been engaged in the construction of a steam generating plant, which was the largest construction project in the history of the City of Memphis, requiring the issuance of more than $163,000,000 in bonds. At the time of the negotiation of the contract between the City of Memphis and Ford, the construction of such generating and transmission facilities was under way, and arrangements were being completed for financing the construction. The fixed charges alone on an investment to supply Ford’s needs, as set forth in the contract, would be much more than the amount of the minimum bills specified in the contract between the City of Memphis and Ford.
It appears that, in the electric power industry, plans must be made for the determination of power needs from three to five years in advance in order to take care of future loads because of the extended period required for the planning and construction of large generating units, and this extended period is referred to in the industry as “lead time.” It is normally impossible to adjust construction programs to take account of the loss of major loads occurring within such lead time; and this is the economic basis for the industry’s requirement of contracts for fixed periods with minimum payment obligations during the entire term of the contract.
Ford emphasizes that, prior to the execution of the contract with the City of Memphis on November 19, 1956, the City had made its commitments to construct and equip a new generating plant. However, at that time, prior to the construction and completion of its own plant, the City was purchasing its power supply from the Tennessee Valley Authority, and the fact that the City had made commitments to construct the plant before it had secured the binding contract from Ford agreeing to minimum monthly payments over a five-year period, does not vitiate the contract for lack of consideration or require the conclusion that the City, in completing the plant, did not plan for Ford’s future requirements, and did not rely upon Ford’s agreement to pay minimum monthly bills for the entire five-year period.
In the instant case, the City of Memphis had idle capacity through the whole period from and after the abandonment of Ford’s assembly plant through the date of expiration of the contract; and the effect of the loss of Ford’s load has been to increase the amount of idle capacity by the amount of the load which was thus lost. Ford knew, at the time of the execution of the contract, that the City of Memphis was then engaged in the vast construction program entailing the large bond issue above mentioned, and that the principal purpose of the contract between the City of Memphis and Ford was to provide assurance of the payment of minimum bills throughout the term of the contract regardless of the requirements of Ford. The City of Memphis, at about the same time, entered into similar contracts with all other industrial customers having a contract demand of 5,000 kilowatts or more. Discussions were held with each such customer to explain the reason why a five-year term with a minimum bill payable throughout the whole term, was necessary. Such a discussion was held by representatives of the City with representatives of Ford immediately prior to the execution of the contract of November 19, 1956; and, as has been said, during such discussion, the representatives of the City explained to the representatives of Ford that the minimum bills would be payable throughout the period regardless of Ford’s requirements.
In addition to the generating and transmission facilities required for service to enable the City to supply Ford’s power requirements, the City installed transmission and distribution equipment on and near Ford’s premises, devoted exclusively to Ford’s use. After Ford ceased operations, its representative called upon the representative of the City to ascertain if it would be agreeable to have Ford pay the net book value of the equipment that had been installed to serve Ford Motor Company, in lieu of the minimum hill payments
Of course, Ford would not be obligated to make the payments claimed by the City because of the fact that the representative of the City had explained that the minimum bills would be payable throughout the period, regardless of Ford’s requirements; and Ford would not be liable, merely because its representative asked the City if it would consider having Ford pay the net book value of the equipment that was installed to serve Ford, in Keu of the minimum bill payments. But these, together with all of the other circumstances, including the construction of the huge generating plant at the expense of millions of dollars, the conversations carried on with the representatives of Ford, as to why a long-term contract with minimum monthly bills stipulated, was necessary, and the explanation by the representative of the City immediately before the signing of the contract that the minimum bills would be payable throughout the whole term of five years, regardless of the actual requirements of Ford, taken together with the fact that the contract provided explicitly for a term of five years and for payment of minimum monthly bills during that entire period, were matters properly considered by the trial court in ascertaining what the intention of the parties was in executing the contract; and the determination of the district court that the parties thereupon agreed that Ford would be bound to pay minimum monthly bills during the five-year period of the agreement, regardless of its requirements, was sustained by the evidence.
Under the contract, as interpreted by the district court, Ford was indebted to the City in the amount of the minimum monthly bills for the balance of the five-year period, after which Ford had sold its plant and discontinued the use of electric power. There is nothing in the contract to indicate that the parties contemplated that no amount should become due from consumer in the event that the manufacturing establishment ceased to exist; the contract plainly imposed an obligation on the consumer to pay the amounts specified whether or not electrical energy was used.
The accumulation of minimum monthly bills through February, 1961, the date of trial, amounted to $186,750.78. The total of the minimum monthly bills for the balance of the five-year term of the contract after Ford sold its plant, including a period subsequent to the date of trial, amounted to $252,756.78.
“It is no longer open to question in this court that, as a rule, where a party bound by an executory contract repudiates his obligations or disables himself from performing them before the time for performance, the promisee has the option to treat the contract as ended, so far as further performance is concerned, and maintain an action at once for the damages occasioned by such anticipatory breach. * * * There is no doubt that the same rule must be applied where a similar repudiation or disablement occurs during performance.” Central Trust Co. of Illinois v. Chicago Auditorium, 240 U.S. 581, 589, 36 S.Ct. 412, 60 L.Ed. 811.
It is contended by appellant that the charges so recovered, in this case, are in the nature of a penalty, rather than liquidated damages. We do not agree. The court found that the parties intended that Ford make the minimum monthly payments during the term of the contract, regardless of its requirements. Upon breach of the contract, such intention to pay such stipulated sums is given effect where the damages are uncertain in nature or amount, or are difficult of ascertainment.
In Wise v. United States, 249 U.S. 361, 365, 39 S.Ct. 303, 63 L.Ed. 647, the court said:
“The subject of the interpretation of provisions for liquidated damages in contracts, as contradistinguished from such as provide for penalties, was elaborately and comprehensively considered by this court in Sun Printing & Publishing Association v. Moore, 183 U.S. 642 [22 S.Ct. 240, 46 L.Ed. 366], applied in United States v. Bethlehem Steel Co., 205 U.S. 106, [27 S.Ct. 450, 51 L.Ed. 731] and the result of the modern decisions was determined to be that in such cases courts will endeavor, by a construction of the agreement which the parties have made, to ascertain what their intention was when they inserted such a stipulation for payment, of a designated sum or upon a designated basis, for a breach of a covenant of their contract, precisely as they seek for the intention of the parties in other respects. When that intention is clearly ascertainable from the writing, effect will be given to the provision, as freely as to any other, where the damages are uncertain in nature or amount or are difficult of ascertainment or where the amount stipulated for is not so extravagant, or disproportionate to the amount of property loss, as to show that compensation was not the object aimed at or as to imply fraud, mistake, circumvention or oppression. There is no sound reason why persons competent and free to contract may not agree upon this subject as fully as upon any other, or why their agreement, when fairly and understandingly entered into with a view to just compensation for the anticipated loss, should not be enforced.
“There are, no doubt, decided cases which tend to support the contention advanced by appellant, but these decisions were, for the most part, rendered at a time when courts were disposed to look upon such provisions in contracts with disfavor and to construe them strictly, if not astutely, in order that damages, even though termed liquidated, might be treated as penalities, so that only such loss as could be definitely proved could be recovered. The later rule, however, is to look with candor, if not with favor, upon such provisions in contracts when deliberately entered into between parties who have equality of opportunity for understanding and insisting upon their rights, as promoting prompt performance of contracts and because adjusting in advance, and amicably, matters the settlement of which through courts would often involve difficulty, uncertainty, delay and expense.
#*#*#*
“The parties to the contract, with full understanding of the results of delay and before differences or interested views had arisen between them, were much more competent to justly determine what the amount of damage would be, an amount necessarily largely conjectural and resting in estimate, than a court or jury would be, directed to a conclusion, as either must be, after the event, by views and testimony derived from witnesses who would be unusual to a degree if their conclusions were not, m a measure, colored and partisan.”
The large expenditures aggregating more than $163,000,000 incurred by the City in order to supply the contractual requirements of Ford, and other users of electric power, make the damages in this case uncertain in amount and difficult of ascertainment. Ford is not being penalized by being held liable for the payments it agreed to make, even though it does not take the electricity, which it agreed to purchase. The large sums of money, representing the accumulated minimum monthly bills for which Ford was indebted, according to the holding of the court, are attributable to the great amount of money invested by the City of Memphis in planning and building for Ford’s needs, and in reliance upon Ford’s agreement to purchase electricity at the specified rate over a five-year period. Because the amount of the indebtedness, as found by the court in the amount of $252,756.78 is, admittedly, a large sum of money, it cannot be held disproportionate to the large investment made by the City on Ford’s behalf, or excessive, considering the idle capacity of the City’s generating plant, resulting from Ford’s voluntary cessation of business.
Under the doctrine of anticipatory breach, upon the default of Ford, this total amount became due prior to the filing of suit; and the district court was not in error in holding that the City of Memphis was entitled to recover all amounts due for minimum bills for the remainder of the contract term.
The fact that Ford sold its plant to a small firm which uses less than one-tenth of the electric power previously used by Ford does not go to diminution of damages. The new firm is served through other facilities installed especially for it, and the Ford contract was neither assigned to, nor assumed by, the new firm.
In accordance with the foregoing, the judgment of the district court is affirm_ ed
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_lcdisposition
|
C
|
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.
WASHINGTON v. CHRISMAN
No. 80-1349.
Argued November 3, 1981
Decided January 13, 1982
Burger, C. J., delivered the opinion of the Court, in which Blackmun, Powell, Rehnquist, Stevens, and O’Connor, JJ., joined. White, J., filed a dissenting opinion, in which Brennan and Marshall, JJ., joined., post, p. 10.
Ronald R. Cai'penter argued the cause and filed briefs for petitioner.
Robeii F. Patrick argued the cause and filed a brief for respondent.
Briefs of amici curiae urging reversal were filed by Fred E. Inbau, Wayne W. Schmidt, and James P. Manak for Americans for Effective Law Enforcement, Inc.; and by David Crump and Michael C. Kuhn for the Legal Foundation of America et al.
Timothy K. Ford filed a brief for the American Civil Liberties Union of Washington as amicus curiae urging affirmance.
Chief Justice Burger
delivered the opinion of the Court.
We granted certiorari to consider whether a police officer may, consistent with the Fourth Amendment, accompany an arrested person into his residence and seize contraband discovered there in plain view.
I
On the evening of January 21, 1978, Officer Daugherty of the Washington State University police department observed Carl Overdahl, a student at the University, leave a student dormitory carrying a half-gallon bottle of gin. Because Washington law forbids possession of alcoholic beverages by persons under 21, Wash. Rev. Code §66.44.270 (1981), and Overdahl appeared to be under age, the officer stopped him and asked for identification. Overdahl said that his identification was in his dormitory room and asked if the officer would wait while he went to retrieve it. The officer answered that under the circumstances he would have to accompany Overdahl, to which Overdahl replied “OK.”
Overdahl’s room was approximately 11 by 17 feet and located on the 11th floor of the dormitory. Respondent Chris-man, Overdahl’s roommate, was in the room when the officer and Overdahl entered. The officer remained in the open doorway, leaning against the doorjamb while watching Chris-man and Overdahl. He observed that Chrisman, who was in the process of placing a small box in the room’s medicine cabinet, became nervous at the sight of an officer.
Within 30 to 45 seconds after Overdahl entered the room, the officer noticed seeds and a small pipe lying on a desk 8 to 10 feet from where he was standing. From his training and experience, the officer believed the seeds were marihuana and the pipe was of a type used to smoke marihuana. He entered the room and examined the pipe and seeds, confirming that the seeds were marihuana and observing that the pipe smelled of marihuana.
The officer informed Overdahl and Chrisman of their rights under Miranda v. Arizona, 384 U. S. 436 (1966); each acknowledged that he understood his rights and indicated that he was willing to waive them. Officer Daugherty then asked whether the students had any other drugs in the room. The respondent handed Daugherty the box he had been carrying earlier, which contained three small plastic bags filled with marihuana and $112 in cash. At that point, Officer Daugherty called by radio for a second officer; on his arrival, the two students were told that a search of the room would be necessary. The officers explained to Overdahl and Chris-man that they had an absolute right to insist that the officers first obtain a search warrant, but that they could voluntarily consent to the search. Following this explanation, which was given in considerable detail, the two students conferred in whispers for several minutes before announcing their consent; they also signed written forms consenting to the search of the room. The search yielded more marihuana and a quantity of lysergic acid diethylamide (LSD), both controlled substances.
Respondent was charged with one count of possessing more than 40 grams of marihuana and one count of possessing LSD, both felonies under Wash. Rev. Code § 69.50.401(c) (1976) (current version at Wash. Rev. Code § 69.50.401(d) (1981)). A pretrial motion to suppress the evidence seized in the room was denied; respondent was convicted of both counts. On appeal, the Washington Court of Appeals affirmed the convictions, upholding the validity of the search. 24 Wash. App. 385, 600 P. 2d 1316 (1979).
The Supreme Court of Washington reversed. 94 Wash. 2d 711, 619 P. 2d 971 (1980). It held that, although Overdahl had been placed under lawful arrest and “there was nothing to prevent Officer Daugherty from accompanying Overdahl to his room,” the officer had no right to enter the room and either examine or seize contraband without a warrant. The court reasoned there was no indication that Overdahl might obtain a weapon or destroy evidence, and, with the officer blocking the only exit from the room, his presence inside the room was not necessary to prevent escape. Because the officer’s entry into the room and his observations of its interior were not justified by “exigent circumstances,” the seizure of the seeds and pipe were held not to fall within the plain-view exception to the Fourth Amendment’s warrant requirement. The court went on to hold that because the students’ consent to the subsequent search of the room was the fruit of the officer’s initial entry, the contraband found during that search should also have been suppressed.
Three justices dissented. They concluded it was reasonable for a police officer to keep an arrested person in sight at all times; accordingly, the officer had a legitimate reason for being in the place where he discovered the contraband, and was entitled, under the plain-view doctrine, to seize it.
We granted certiorari, 452 U. S. 959 (1981), and reverse.
l — i HH
A
The “plain view” exception to the Fourth Amendment warrant requirement permits a law enforcement officer to seize what clearly is incriminating evidence or contraband when it is discovered in a place where the officer has a right to be. Coolidge v. New Hampshire, 403 U. S. 443 (1971); Harris v. United States, 390 U. S. 234 (1968). Here, the officer had placed Overdahl under lawful arrest, and therefore was authorized to accompany him to his room for the purpose of obtaining identification. The officer had a right to remain literally at Overdahl’s elbow at all times; nothing in the Fourth Amendment is to the contrary.
The central premise of the opinion of the Supreme Court of Washington is that Officer Daugherty was not entitled to accompany Overdahl from the public corridor of the dormitory into his room, absent a showing that such “intervention” was required by “exigent circumstances.” We disagree with this novel reading of the Fourth Amendment. The absence of an affirmative indication that an arrested person might have a weapon available or might attempt to escape does not diminish the arresting officer’s authority to maintain custody over the arrested person. See Pennsylvania v. Mimms, 434 U. S. 106, 109-110 (1977); United States v. Robinson, 414 U. S. 218, 234-236 (1973). Nor is that authority altered by the nature of the offense for which the arrest was made.
Every arrest must be presumed to present a risk of danger to the arresting officer. Cf. United States v. Robinson, supra, at 234, n. 5. There is no way for an officer to predict reliably how a particular subject will react to arrest or the degree of the potential danger. Moreover, the possibility that an arrested person will attempt to escape if not properly supervised is obvious. Although the Supreme Court of Washington found little likelihood that Overdahl could escape from his dormitory room, an arresting officer’s custodial authority over an arrested person does not depend upon a reviewing court’s after-the-fact assessment of the particular arrest situation. Cf. New York v. Belton, 453 U. S. 454, 458-460 (1981); United States v. Robinson, supra, at 235.
We hold, therefore, that it is not “unreasonable” under the Fourth Amendment for a police officer, as a matter of routine, to monitor the movements of an arrested person, as his judgment dictates, following the arrest. The officer’s need to ensure his own safety — as well as the integrity of the arrest — is compelling. Such surveillance is not an impermissible invasion of the privacy or personal liberty of an individual who has been arrested.
It follows that Officer Daugherty properly accompanied Overdahl into his room, and that his presence in the room was lawful. With restraint, the officer remained in the doorway momentarily, entering no farther than was necessary to keep the arrested person in his view. It was only by chance that, while in the doorway, the officer observed in plain view what he recognized to be contraband. Had he exercised his undoubted right to remain at Overdahl’s side, he might well have observed the contraband sooner.
B
Respondent nevertheless contends that the officer lacked authority to seize the contraband, even though in plain view, because he was “outside” the room at the time he made his observations. The Supreme Court of Washington noted that “[t]he record is in conflict as to whether Officer Daugherty stood in the doorway and then entered the room or whether, while in the doorway, he was in fact in the room.” 94 Wash. 2d, at 716, 619 P. 2d, at 974. It concluded, however, that it “need not... let the result be determined by such niceties,” and assumed for purposes of its decision that the officer “was in the room at the time he observed the seeds and pipe.” Ibid. We agree that on this record “such niceties” are not relevant. It is of no legal significance whether the officer was in the room, on the threshold, or in the hallway, since he had a right to be in any of these places as an incident of a valid arrest.
Respondent’s argument appears to be that, even if the officer could have stationed himself “inside” the room had he done so immediately upon Overdahl’s entry, his 30- to 45-sec-ond hesitation was fatal; and that having chosen to remain in the doorway, the officer was precluded from proceeding further to seize the contraband. We reject this contention. Respondent’s argument,, if accepted, would have the perverse effect of penalizing the officer for exercising more restraint than was required under the circumstances. Moreover, it ignores the fundamental premise that the Fourth Amendment protects only against unreasonable intrusions into an individual’s privacy. See Katz v. United States, 389 U. S. 347 (1967).
The “intrusion” in this case occurred when the officer, quite properly, followed Overdahl into a private area to a point from which he had unimpeded view of and access to the area’s contents and its occupants. His right to custodial control did not evaporate with his choice to hesitate briefly in the doorway rather than at some other vantage point inside the room. It cannot be gainsaid that the officer would have had unrestricted access to the room at the first indication that he was in danger, or that evidence might be destroyed — or even upon reassessment of the wisdom of permitting a distance between himself and Overdahl.
We therefore conclude that, regardless of where the officer was positioned with respect to the threshold, he did not abandon his right to be in the room whenever he considered it essential. Accordingly, he had the right to act as soon as he observed the seeds and pipe. This is a classic instance of incriminating evidence found in plain view when a police officer, for unrelated but entirely legitimate reasons, obtains lawful access to an individual’s area of privacy. The Fourth Amendment does not prohibit seizure of evidence of criminal conduct found in these circumstances.
f — I
Since the seizure of the marihuana and pipe was lawful, we have no difficulty concluding that this evidence and the contraband subsequently taken from respondent’s room were properly admitted at his trial. Respondent voluntarily produced three bags of marihuana after being informed of his rights under Miranda v. Arizona, 384 U. S. 436 (1966). He then consented, in writing, to a search of the room, after being advised that his consent must be voluntary and that he had an absolute right to refuse consent and demand procurement of a search warrant. The seizure of the drugs pursuant to respondent’s valid consent did not violate the Fourth Amendment.
The judgment of the Supreme Court of Washington is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
So ordered.
In addition, University regulations prohibit possession of alcoholic beverages on University property. Tr. 4, 34. At the suppression hearing, Officer Daugherty testified that, because of these regulations, he would have stopped Overdahl without regard to his age. Id., at 6-7.
The opinion of the Supreme Court of Washington repeatedly refers to the Fourth Amendment and our cases construing it. The court did not, however, cite Art. I, § 7, of the Washington Constitution, which provides that “[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law. ” While respondent, relying on this latter provision, urges that we “treat the case as having been decided under the Washington State Constitution,” it is clear that the court did not rest its decision on an independent state ground.
The trial court found that it was Overdahl who proposed to retrieve the identification, and, after being informed that Officer Daugherty would have to accompany him, agreed to the officer’s presence. Respondent nevertheless claims that Overdahl was “coerced” to return to the room in violation of the Fifth Amendment, because he was in custody and had not yet been advised of his rights under Miranda v. Arizona, 384 U. S. 436 (1966). He argues that since identification would serve as proof of Over-dahl’s age — an element of the offense for which he had been arrested — the officer could not ask him for this “incriminating” evidence without first advising him of his rights to counsel and to remain silent.
Assuming, arguendo, that Overdahl’s Fifth Amendment rights were violated in some fashion, this does not vitiate the legality of his arrest, nor does it undercut the officer’s right to maintain custody over an arrested person. The failure to give “Miranda warnings” might preclude introduction of incriminating statements made by Overdahl while in custody; but no such statements are even peripherally involved in this case. The act of going to the room was neither “incriminating” nor a “testimonial communication.” Cf. Fisher v. United States, 425 U. S. 391, 408-414 (1976).
Indeed, were the rule otherwise, it is doubtful that an arrested person would ever be permitted to return to his residence, no matter how legitimate the reason for doing so. Such a rule would impose far greater restrictions on the personal liberty of arrested individuals than those occasioned here.
The circumstances of this case distinguish it significantly from one in which an officer, who happens to pass by chance an open doorway to a residence, observes what he believes to be contraband inside. See, e. g., Payton v. New York, 445 U. S. 573, 585-589 (1980); Johnson v. United States, 333 U. S. 10, 14-15 (1948).
In light of our disposition, we need not decide whether, as the Washington Court of Appeals held, the likelihood that the contraband would be destroyed constituted an “exigent circumstance” independently justifying the officer’s entry into the room.
We reject as frivolous the respondent’s contention that, on the facts presented here, Officer Daugherty was required to knock and announce his presence at the doorway prior to entering the room.
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_const1
|
106
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if no constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the greatest number of headnotes. In case of a tie, code the first mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
UNITED STATES of America v. ISMAILI, Lakbir Moulay. Appeal of Lakbir Moulay ISMAILI, Appellant.
No. 86-5552.
United States Court of Appeals, Third Circuit.
Argued April 9, 1987.
Decided Sept. 2, 1987.
Rehearing and Rehearing In Banc Denied Sept. 25, 1987.
Thomas W. Greelish, U.S. Atty., Marion Percell (argued), Asst. U.S. Atty., Samuel P. Moulthrop, Chief, Appeals Div., U.S. Atty.’s Office, Newark, N.J., for appellee.
Alan Silber (argued), Peter Avenia, Mark B. Gombiner, Merrill N. Rubin, Silber & Rubin, P.C., New York City, for appellant.
Before SLOVITER, BECKER and GARTH, Circuit Judges.
OPINION OF THE COURT
GARTH, Circuit Judge:
Lakbir Ismaili appeals from the denial of several pretrial motions that were preserved for appeal at the time he entered a plea of nolo contendere pursuant to a plea agreement. See U.S. v. Zudick, 523 F.2d 848 (3d Cir.1975). We affirm.
I.
A.
Between November 20, 1979 and December 31, 1980, the government claims that Lakbir Ismaili and the company that he operated, Incoser, allegedly engaged in a “bait and switch” fraud scheme which involved, inter alia, the promotion and sale of customized vans throughout the Middle East. According to the government, Ismaili would approach American manufacturers of customized vans and other vehicles, and claim that he could sell their products overseas through the use of a sales force which he maintained in several countries. He proposed to purchase their vans for resale abroad. The only commitment needed from the sellers, Ismaili indicated, was the money needed to produce “color separations.” Color separations are sets of color negatives used to produce magazine quality photographs allowing them to be advertised abroad. Using this approach, Ismaili received payments totaling $43,210.80 from nearly twenty individual van manufacturers.
The government investigated the complaints which it received about Ismaili. The investigation disclosed that Ismaili had placed the color-separation money he had been paid into a Philadelphia bank account, and converted the money to his own personal use; that no color separations were made or brochures published; and that Ismaili never had purchased any vans from the manufacturers for resale. The investigations also revealed that Ismaili arranged visits for his customers at a New Jersey printing plant where he claimed color separations were to be made. In fact, that plant never processed any such color separations for Ismaili.
The government investigation concluded, further, that Ismaili had no sales force to sell Ismaili’s vans in the Middle East; and that no advertising campaign for the vans had.ever been planned. The government presented its case to a grand jury in January of 1981.
B.
In Ismaili’s appearances before the first grand jury in 1981, he denied all allegations of fraud. Ismaili asserted that his company, Incoser, was a legitimate enterprise which failed as a consequence of difficulties created by the Iran-Iraq war. He claimed that he had been compelled to use for his personal purposes the funds received from the van manufacturers and Incoser’s corporate account. He explained that he did so because the currency laws in Morocco prevented him from obtaining his personal funds that were located in Morocco, and that he therefore used the funds in Incoser’s Philadelphia banking account for personal purposes. He claimed that he used his personal funds in Morocco for the purposes of advertising the vans.
It was for this reason, Ismaili claimed, that he decided to have the color separations made in Morocco instead of in New Jersey. He claimed further that his brother Rachid had helped to organize on his behalf, a Middle Eastern sales force; and that he, Ismaili, had arranged with a Moroccan named Ezzarai or Zarai to produce the color separations for Ismaili’s sales brochures. In turn, Ismaili contends that Ezzarai engaged the Agadir Color studio to process the color separations.
The grand jury’s 1981 investigation ended without the return of an indictment. In 1983, however, the grand jury investigation resumed. In September 1984, the grand jury returned a seventeen-count indictment, charging Ismaili with mail fraud under 18 U.S.C. §§ 1341 and 1342.
C.
Following his indictment, Ismaili made three pretrial motions which the district court denied and which are the subject of this appeal.
Ismaili moved to depose a number of witnesses in Morocco, Syria and Saudi Arabia.
Ismaili moved to dismiss the indictment on the grounds of abuse of the grand jury process, alleging that the prosecutor failed in his obligation to present to the grand jury an exculpatory telex that Ismaili discovered during the course of requesting Brady material. Pursuant to that motion, he also has claimed that the prosecutor abused the grand jury process in the course of presenting hearsay to it.
Ismaili moved to dismiss the indictment because the government allegedly abused the grand jury process by its prejudicial pre-indictment delay in obtaining the indictment.
After denying Ismaili’s motions, the district court on May 29, 1986 accepted Ismaili’s nolo contendere plea pursuant to a plea agreement. In the agreement, Ismaili pleaded nolo contendere to one count of mail fraud, but he reserved the right to appeal from the denial of his pretrial motions. On August 12, 1986, the court sentenced Ismaili. In so doing, the court suspended sentence and placed him on probation for five years. Imposing a fine of $1,000 as a special condition, the court ordered Ismaili to repay as restitution the $43,210.80 paid by the victims of Ismaili’s scheme, and recommended that Ismaili not be deported. Order of Aug. 4, 1986. Ismaili appealed.
II.
We turn first to the district court's denial of Ismaili’s motions to depose witnesses in Morocco, Syria and Saudi Arabia.
A.
The first motion filed by Ismaili, which pertained to the Saudi Arabian witnesses, was supported by a telex exhibit designed to establish that the three witnesses constituted a part of Ismaili’s sales force in the Middle East and would therefore refute the government’s argument that no marketing or sales structure existed. The telex indicated that the witnesses were unwilling to spend “time or money to come to the U.S. A.” App. at 34.
The government argued that these witnesses would not exonerate the defendant, that their testimony was not material, and that there was “no showing of a good faith effort to produce the witnesses in the United States,” specifically because the witnesses seemed to be under the impression, “its up to them to pay their own way to the United States.” App. at 122.
Ismaili contended that their testimony was material, that these were the marketing managers for the sale of the vans, and that the witnesses were not under the impression that they had to pay expenses.
In denying Ismaili’s motion on June 5, 1985, the district court stated:
Having viewed the telex [which pointed to the reluctance of three Saudi Arabian witnesses to come to the United States], and considering the arguments which have been made by counsel, I find an inadequate basis for ordering the depositions under our court rules.
The witnesses should be brought to the United States and a showing should be made which is more convincing as to not only how they would assist in the defense, but that providing for them to come to the United States still is inadequate to get them here.
In both areas, I have concluded that the showing is inadequate. There is a distinct preference for having witnesses in criminal trials present for the jury to view, to assess, themselves confront. The concept of having depositions is an inferior technique for presenting these witnesses to a jury.
If there were a situation in which these witnesses could be shown to be essential to the defense and only available through depositions, the Court might order depositions. Indeed, I have ordered depositions in criminal cases in the past. However, viewing the papers and the arguments which have been made in this particular case, I do not find a basis for ordering depositions in a foreign country, and I would require that witnesses whose testimony is to be considered should be brought to the United States for trial.
App. at 124.
Thereafter, Ismaili changed counsel and on November 15, 1985, again sought depositions of foreign witnesses. Ismaili sought to depose Moroccan and Syrian witnesses and renewed his motion to depose Saudi Arabian witnesses. App. at 48-52. This time, however, Ismaili’s motions sought to have the government bear all expenses in connection with the depositions. Trial at that juncture had been set for November 20, 1985.
In support of his second motion to depose witnesses abroad, Ismaili submitted two affidavits of Josiah Thompson, a private investigator retained by his new and present counsel. One affidavit included transcripts of interviews that Thompson conducted with four Syrian witnesses who were allegedly part of Ismaili’s Middle Eastern sales team. In the interviews, the witnesses stated that they were familiar with Incoser, but their familiarity stemmed from second-hand or third-hand hearsay. This affidavit, which reported the testimony of all four witnesses, indicated that one Ahmed was about to organize or was organizing the alleged sales team, but that the van-selling venture collapsed because of warring elements in the region. App. at 88-110.
A second affidavit included an account by Thompson of conversations he had with Rachid and Ezzarai in Morocco. These conversations concerned the involvement of Rachid and Ezzarai with Ismaili and their willingness to come to the United States to testify on his behalf. Thompson’s affidavit recited that Ezzarai had met Rachid about 1975. Rachid gave Ezzarai film to develop beginning in 1980. Some fifty films were given to Ezzarai by Rachid over a period of two to four months. Because the film required special processing, it was forwarded to Agadir Color in Morocco, a firm which is no longer in business. Thompson also reported two interviews between Ezzarai and the police. During the interviews with the police, Ezzarai disclaimed any knowledge of Incoser, and denied even knowing the name. He also denied knowing Ismaili. According to Thompson, Ezzarai was asked by the police if he would go to the U.S. to testify, and replied, “Yes. If you get me a passport and pay my taxes and feed my children. Then I’ll say I’ve never heard of Incoser.” App. at 75.
Thompson’s affidavit also reported an interview with Rachid Ismaili, Ismaili’s brother. Rachid stated, as reported by Thompson, that he had discussed with his brother [Ismaili] a project of making color separations in either Morocco or Egypt and he [Rachid] was to find someone who could make them, and if necessary to develop negatives sent from the U.S. He was also to begin organizing a sales force. The interview continued with Rachid stating that he had given Ezzarai 60,000 dirham from money Rachid was holding for his brother; in addition, Ezzarai was to get two cars as collateral. The cars, however, were seized by Customs authorities and were never retrieved. The project, Rachid claimed, terminated because of the outbreak of the Iran-Iraq war. App. at 73-79.
Thompson also interviewed a U.S. vice-counsel, Julia R. Stanley. Thompson’s affidavit reports that although he was not permitted to see a cable which had been sent from the U.S. Embassy in Rabat, he was told by Stanley that it reportedly contained information about Ezzarai and his business, including an interview with someone who claimed that he was Ezzarai and who stated that he had been approached in 1979 by Incoser to do some work; that several cars had been left as collateral for the work, but that they had been seized by customs; that he had sent a bill to Incoser but had received no reply. Stanley apparently also stated that Ezzarai experienced difficulty in getting a passport and that passports are routinely denied to Moroccan subjects, but that she had sent a diplomatic note to the foreign ministry in order to get him a passport. She also reported that Ezzarai owed some back taxes. App. at 73-110.
For reasons which do not appear of record, the November 20, 1985 trial date was evidently continued, and on February 25, 1986, at the request of Ismaili’s counsel, another hearing was held at which the district court received testimony from investigator Thompson. App. at 131, 140, 199.
With respect to the Syrian witnesses, Thompson testified that they were “absolutely unavailable” because they were unwilling to come to the United States, due to anti-American prejudice in Syria. App. at 215. Thompson said that “Anyone who has anything to do with the American embassy or with Americans generally in the Arabic world are viewed with suspicion and it’s something people are enormously reluctant to do [come to the States] at this point in time.” App. at 213. “Many of them are subject to the Syrian draft, and for that reason would require special governmental permission to go out of the country. I suspect whatever the reasons they actually gave me on the tape, underneath that is this very heavy prejudice against having anything to do with the United States.” App. at 215-216.
With respect to the Moroccan witnesses, Thompson stated that Rachid (Ismaili’s brother) was “certainly willing to come” to the United States, but “held a passport which had lapsed,” and learned that it was often difficult for Moroccan citizens to get passports. App. at 204-205. Thompson testified that Ezzarai, who is related to Ismaili, did not yet have a passport and was a reluctant witness. Thompson said that Ezzarai had taken the position that “I will come if you get me a passport; if you pay my back taxes; and if you pay for my wife and children to live.” According to Thompson, “He’s very reluctant and became ever more reluctant to have anything to do with this.” App. at 211.
In an Order issued without opinion on February 28, 1986, the district court denied the deposition motions by stating, “the defendant’s motion to depose witnesses outside the United States and to require the Government to bear the expenses of the depositions be and it is hereby denied.” App. at 6 (docket entry). Shortly thereafter, Ismaili pleaded nolo contendere pursuant to a plea agreement, as set forth earlier in this opinion.
B.
Prior to 1975, Rule 15(a) of the Federal Rules of Criminal Procedure explicitly required that depositions could be taken in a criminal case upon a showing “that a prospective witness may be unable to attend or prevented from attending a trial or hearing, that his testimony is material and that it is necessary to take his deposition in order to prevent a failure of justice.” The cases which interpreted the former Rule 15(a) required that the depositional testimony at a minimum, be material, and that the witness who was to be deposed, had to be unavailable for live testimony at trial. See e.g., United States v. Whiting, 308 F.2d 537 (2d Cir.1962), cert. den., 372 U.S. 909, 83 S.Ct. 722, 9 L.Ed.2d 718 (1963); United States v. Singleton, 460 F.2d 1148 (2d Cir.1972). The burden of proof rested with the party seeking to conduct the deposition to demonstrate both unavailability and materiality. See U.S. v. Rosenstein, 474 F.2d 705 (2d Cir.1973).
Effective December 1975, Rule 15(a) was amended. As amended, a motion to take a deposition in a criminal case may be granted “[w]henever due to exceptional circumstances of the case it is in the interest of justice that the testimony of a prospective witness of a party be taken and preserved for use at trial.”
The 1975 amendment to Rule 15(a) not only carries forward the interpretations given by the cases to the earlier rule, but it also reflects other features, all but one of which, are relevant to the issues in this case. First, as a matter of historical significance only, the amendment authorized the government to take depositions. Under the earlier rule, the taking of depositions was limited to defendants. This change is not relevant to the present proceeding, however, because here it is only the defendant Ismaili who has applied to take depositions of his prospective witnesses.
Second, the amendment continues to distinguish between the favored use of depositions in a civil context, and their disfavored use in the criminal context. For instance, although the term “deposition” in a civil context ordinarily connotes the taking of testimony for discovery purposes, that connotation is misleading with respect to the practice under Rule 15(a). See U.S. v. Cutler, 806 F.2d 933, 935 (9th Cir.1986). Rule 15(a) depositions are restricted to prospective witnesses of a party. The rule does not authorize taking the depositions of a witness of an adverse party, as is the case in civil practice.
Third, criminal depositions must be authorized by order of court and are only to be taken to preserve the testimony for use at trial. See the Note of the Advisory Committee to Rule 15. The 1975 amendment emphasizes the use of discretion by the district court in determining whether “exceptional circumstances” exist to authorize the taking and preservation of testimony by deposition. Thus our review of the district court’s action centers on whether the district court properly exercised its discretion. See U.S. v. Johnpoll, 739 F.2d 702, 708 (2d Cir.), cert. den. 469 U.S. 1075, 105 S.Ct. 571, 83 L.Ed.2d 511 (1984) (“the decision to grant or deny a motion to take a deposition rests within the sound discretion of the trial court... and will not be disturbed absent a clear abuse of that discretion”). The burden of proof in a Rule 15(a) motion continues to rest with the movant to demonstrate the necessity for preserving prospective witness’ testimony by a deposition, see U.S. v. Adcock, 558 F.2d 397, 406 (8th Cir.), cert. den., 434 U.S. 921, 98 S.Ct. 395, 54 L.Ed.2d 277 (1977).
Notwithstanding the 1975 amendment of Rule 15(a), it nevertheless has been established that when the district court exercises its discretion in ruling on a Rule 15(a) motion, considerations of materiality (of the testimony) and unavailability (of the witnesses) remain critical. See United States v. Johnson, 752 F.2d 206, 209 (6th Cir.1985) (unavailability still an important factor in determining whether exceptional circumstances exist); United States v. Bello, 532 F.2d 422, 423 (5th Cir.1976) (testimony of foreign business associates not considered material so that “exceptional circumstances” or “interests of justice” did not compel a finding that the district court abused its discretion in denying depositions under Rule 15(a)); see also United States v. Sun Myung Moon, 93 F.R.D. 558 (S.D.N.Y.1982), cert. den., 466 U.S. 971, 104 S.Ct. 2344, 80 L.Ed.2d 818 (1984) (motion granted by district court upon determination of unavailability and materiality).
Thus, although witness availability and the immateriality of proposed testimony to be obtained through depositions are not rigid or automatic grounds for the denial of a 15(a) motion as they once were, it is nonetheless evident that the post-amendment case law defining “exceptional circumstances” and “interests of justice” still focuses on those considerations. Hence, it is difficult to conceive of a district court abusing its discretion by denying a Rule 15(a) motion where the movant has not established both the materiality of the testimony and the unavailability of the witness.
C.
Ismaili suggests that pursuant to Rule 15 he has demonstrated “exceptional circumstances” which, as we have noted, must encompass both factors of materiality and unavailability.
1. The Moroccan Witness
We need not reach the question of the materiality of the testimony by the Moroccan witnesses (Rachid and Ezzarai), because on the record before the district court, it was well within that court’s discretion to determine that Ismaili failed to carry his burden of showing that the Moroccan witnesses were unavailable. Even if we assume, without deciding, that the testimony of both the Moroccan witnesses was material to Ismaili’s defense, the record does not reveal that Rachid Ismaili or Ezzarai, both of whom are related to Ismaili, could not have been available to testify at trial. The record discloses that the proof of unavailability with respect to these witnesses is:
Rachid: was “certainly willing to come” to the United States, but “held a passport which had lapsed, and learned that it was often difficult for Moroccan citizens to get passports.” App. at 204-205. Ezzarai: did not yet have a passport and was a reluctant witness. Vice Counsel of U.S. Embassy indicated that Ezzarai might have considerable difficulty getting a passport. App. at 234, 211. Thompson said Ezzarai experienced difficulties in the past and took the position that “I will come if you get me a passport; if you pay my back taxes; and if you pay for my wife and children to live.” Thompson claimed that Ezzarai was “very reluctant and became ever more reluctant to have anything to do with this.” App. at 211.
There was no evidence offered that either Rachid or Ezzarai had tried and was in fact unable to procure a passport or would refuse or was unable to attend trial in the United States.
At the time that the district court considered Ismaili’s motions, the record was also silent as to Ismaili’s ability to finance Ezzarai’s trip or to meet Ezzarai’s demands. Moreover, the record does not establish that any of the witnesses who were sought to be deposed by Ismaili including Rachid and Ezzarai, had been informed that they were entitled to have Ismaili bear their travel expenses, witness fees, and a subsistence allowance.
For all that appears, all of Ismaili’s prospective witnesses may well have believed that they would be required to pay their own expenses if they travelled to the United States to trial. We are satisfied that the court could have understood the record as manifesting such a misapprehension on the part of the witnesses. If so, that misapprehension necessarily undermined the alleged good faith efforts of the defendant to have these witnesses appear at trial for live testimony. Furthermore, the unwillingness of a witness to travel to this country unless his expenses are paid does not necessarily mean that he is unavailable. C.f., United States v. Bronston, 321 F.Supp. 1269 (S.D.N.Y.1971).
Given the equivocality of the evidence of unavailability and the strong preference for live testimony that the district court emphasized and that is central to the concerns expressed in the Federal Rules of Criminal Procedure and the Federal Rules of Evidence, it is evident that the district court did not abuse its discretion in holding that Ismaili failed to carry his burden of demonstrating the unavailability of Rachid and Ezzarai.
2. The Syrian Witnesses
With respect to the four proposed Syrian witnesses, Ismaili’s investigator testified that they were “absolutely unavailable” because they were unwilling to come to the United States, due to anti-American prejudice in Syria. App. at 214, 232. We need not address the question of availability here, since we find that based upon the record in this case, there was an insufficient showing of materiality.
Taking the representations of Thompson, Ismaili’s investigator, in the light most favorable to his case, the Syrian witnesses who Ismaili claimed were part of his sales force could, at best, as we have noted earlier, testify only to second or third-hand hearsay. Without specifying the time frame involved, their statements to Thompson indicate only that they had been approached to sell vans and other vehicles not by Ismaili, but by a third party, A1 Ahmed, who is no longer living. Ahmed, according to the Syrian witnesses themselves, claimed an inability to follow through upon any of his plans to establish a sales force because of political instability in the region.
One Syrian witness was Bassam. His statements consisted only of knowledge which he received from A1 Ahmed. App. at 88-95. Witness Laham’s statements were drawn from information acquired from Bassam. App. at 96-100. Witness Holibi apparently acquired his information, which is reported in Thompson’s affidavit, from Bassam and Ahmed. App. at 101-105. Witness Manzalgy also became aware of Incoser from Bassam. App. at 106-110.
The affidavit submitted by Thompson thus does not substantiate with any definitiveness that the Syrian witnesses could testify at first hand to the preparation of the color separations; or to the preparation of promotional literature, which was at the heart of Ismaili’s sales pitch to the American van manufacturers. Nor was there any indication that the Syrian witnesses could substantiate with anything other than hearsay Ismaili’s claim that a sales network existed throughout the Middle East.
Even if the Syrian witnesses were able to testify that Ismaili had come directly to them and tried to form a sales group to sell vans — testimony which they could not provide — Ismaili’s various representations would still have provided a basis for an action against him based on fraud. Proposals by Ismaili to employ the Syrian witnesses in the future could not stand as proof that Ismaili had a marketing and distribution network already in place, and was actively engaged in the promotion and sale of vehicles — facts which Ismaili had represented to the van manufacturers. The indictment, after all, charged that Ismaili “did falsely represent to various prospects in various states... that he was a well-financed importer and exporter... with offices and agents in the Middle East... [and that he falsely represented] that he had a marketing and distribution network in place and actively engaged in the promotion and sales of various motor vehicles.” App. at 10 (emphasis added).
Even if a lowered materiality threshold may be appropriate where a deposition of a foreign national is involved, see U.S. v. Steele, 685 F.2d 793, 808 (3d Cir.1982), nonetheless if the testimony of witnesses in a criminal case could not negate the crux of the government’s indictment that Ismaili made false statements which induced the U.S. prospects to give him money, the district court cannot be held to have abused its discretion in denying authority to permit depositions of such witnesses under Rule 15(a).
3. The Saudi Arabian Witnesses
Ismaili’s presentation in support of his initial motion to depose the Saudi Arabian witnesses was not added to or improved upon at the time Ismaili moved for reconsideration of the district court’s June 5, 1985 order. Thus, the motion to depose the Saudi Arabian witnesses depends upon the single telex exhibit, app. at 34, which the district court explicitly found insufficient to provide “exceptional circumstances” under Rule 15(a). App. at 123.
The thrust of the telex sent by three Saudi witnesses, Wasfi, Ahmed Said and Fawzi, was to the effect that A1 Ahmed had engaged Wasfi sometime between 1970 and 1980 as a sales agent to sell vans for a company called Incoser. Wasfi was to organize a sales force, and was to find buyers in Saudi Arabia, until Ahmed told him that he, Ahmed, had advised Ismaili not to proceed with the sales program until the situation stabilized. Then, Wasfi, Fawzi and Ahmed Said, the three witnesses, allegedly, suspended their efforts.
Thus the very telex on which Ismaili grounded his application for Rule 15(a) depositions by its own terms discloses that no Saudi Arabian sales force was in place, and that these witnesses were not actively engaged in the promotion and sales of Incoser’s motor vehicles. Moreover, the hearsay nature of the Saudi Arabian witnesses affects the materiality of their testimony just as the hearsay quality of the Syrian witnesses’ testimony affected the quality of the testimony they could provide.
The telex in question, furthermore, provided clear evidence that the witnesses were under the impression that they would be obliged to spend their own money for expenses. We have discussed the factor of a witness’ unwillingness to pay his way at an earlier part of this opinion. As we stated there, a foreign witness who is unwilling to travel unless his expenses are paid is not necessarily unavailable within the terms of Rule 15(a) and Fed.R.Ev. 804.
Under these circumstances, we are satisfied that the district court did not abuse its discretion when it did not authorize Ismaili to take Rule 15 depositions of the Saudi witnesses.
D.
Thus, we will affirm the district court’s denial of Ismaili’s motions to take Rule 15(a) depositions of the witnesses in Morocco, Syria, and Saudi Arabia.
III.
Ismaili also argues that the district court erred in refusing to dismiss the indictment. He claims that the government failed to inform the grand jury that evidence which it introduced consisted of multiple hearsay. He also claims that the government should have introduced before the grand jury evidence characterized by Ismaili as “exculpatory.”
Our review is circumscribed by a presumption of validity afforded to the grand jury process. “An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for a trial of the charge on the merits. The Fifth Amendment requires nothing more.” Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956). We review the district court’s denial of a motion to dismiss an indictment alleging prosecutorial misconduct for an abuse of discretion by the court. See U.S. v. Wander, 601 F.2d 1251, 1260 (3d Cir.1979); United States v. Bruzgo, 373 F.2d 383 (3d Cir.1967).
A.
Ismaili submits that the grand jury’s indictment should have been dismissed because the evidence presented to the grand jury consisted of multiple hearsay. He suggests that the crux of the case against him that was presented to the Grand Jury was a confidential report by the F.B.I., which related an interview with Ezzarai conducted by the local Moroccan police. He asserts on appeal that the fact of the report’s hearsay character was concealed from the grand jury. Appellant’s Brief at 41. We reject this argument on two grounds.
First, the record reveals that although Ismaili has raised the hearsay objection on appeal, his motion before the district court was concerned with the general subject of abuse of grand jury process without identifying in particular the hearsay character of the reports in question. The gravamen of Ismaili’s motion to dismiss the indictment focused on the alleged abuse by the government in failing to introduce exculpatory evidence, a subject which we address in a later portion of this opinion.
Our reading of the record discloses that before the district court, the only reference to the issue of mischaracterized and multiple hearsay occurred at the February 25, 1986 motions hearing, where Ismaili’s counsel urged the district court to release documents and to dismiss the indictment by reason of the government’s failure to produce exculpatory evidence before the grand jury. Counsel conjectured that the grand jury may have relied upon “the least reliable fact-finding method in the world” by relying on reports of interviews by third parties. App. at 151. In asking that the indictment be dismissed because the government failed to produce exculpatory evidence at the grand jury hearings, Ismaili’s counsel speculated that the grand jury which indicted Ismaili may have been told only that Ezzarai denied knowing Ismaili, (in effect rebutting Ismaili’s defense) without letting the jury know about other evidence which acknowledged an existing relationship with Ismaili. App. at 150-151; telex at 72.
Therefore, although the district court did deny the motion to dismiss the indictment on the ground of grand jury abuse, it did not have any occasion to decide, nor did it decide, the question being urged here on appeal. From all that appears of record, the issue of “multiple hearsay constituting grand jury abuse” is raised here on appeal for the first time. As a court of review, we do not review issues on which the district court has yet to rule. Having neither the benefit of a lower court opinion on this subject, nor a specific motion to review, we do not consider the issue to have been properly preserved for appeal.
The second basis for rejecting Ismaili’s argument is that, even if the issue of mischaracterized and multiple hearsay evidence were before us, there would have been no abuse of discretion by the district court in denying the motion to dismiss.
There is no prohibition on the use of hearsay by a grand jury, see Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956), unless (1) non-hearsay is readily available; and unless (2) the grand jury was also misled into believing it was hearing direct testimony rather than hearsay; and unless (3) there is also a high probability that had the jury heard the eye-witness it would not have indicted the defendant. United States v. Wander, supra, at 1260.
We have no need to discuss these requirements, for this case does not present á Wander situation. Ismaili’s argument that the grand jury was misled is, simply, without factual foundation. We have read the Supplemental Appendix submitted by the government under seal, and it is clear that the grand jury was informed of the hearsay character of the evidence, and that it was not misled as to its contents.
B.
Ismaili argues that the indictment should be dismissed because the government failed to present to the grand jury evidence which he claims is exculpatory. In particular, he claims that a cable sent to government investigators, app. at 72, should have been produced before the grand jury by the government.
The cable, as we have noted earlier in this opinion, was sent from the Moroccan Department of Commerce, and summarized an interview with Ezzarai. Robert B. Kurzweil, the Assistant U.S. Attorney who led the prosecution against Ismaili, stated in his December 30, 1985 affidavit that he had requested the Department of Commerce to interview Ezzarai, and that although he had no knowledge of who had conducted the interview, he attached the cable to his affidavit. The text of the cable is set forth in the margin with identifying symbols and legends deleted.
According to the cable, Ezzarai had been approached by Ismaili in Miami, Florida in the fall of 1979 to perform lithography work for Incoser, and had performed some services for Incoser valued at approximately $7,600 (40,000 dirham). The cable indicated that Ismaili had left two ears as collateral for the services, but that the cars had been seized by Customs authorities. When the cars were taken by the Moroccan government for import violations, the cable states that Ezzarai tried to collect on the bill he rendered from Incoser, but received no reply. The cable concludes that Ezzarai’s studio is too small, too inexperienced and too poorly managed to deal with U.S. firms. Id.
Ismaili argues that this cable was exculpatory in nature, in that it confirmed “that (1) Ezzarai existed; (2) that he was a lithographer in Morocco; and (3) that he had performed work for Incoser.” Appellant’s Brief at 42. Accordingly, Ismaili suggests that the result of not producing the cable before the grand jury misled the grand jury “into believing that Ezzarai had rebutted Ismaili’s grand jury testimony, when in fact he had corroborated it.” Appellant’s Reply Brief at 13.
However, the record before the district court at the time the district court denied Ismaili’s motion to dismiss the indictment
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_usc2sect
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2000
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 42. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
UNITED STATES of America, Appellee, v. Anthony CASTALDI, Appellant.
No. 137, Docket 29043.
United States Court of Appeals Second Circuit.
Argued Sept. 25, 1964.
Decided Nov. 17, 1964.
Robert M. Morgenthau, U. S. Atty. (Andrew M. Lawler, Jr., John A. Sprizzo, Asst. U. S. Attys., of counsel), for appellee.
Daniel H. Greenberg, New York City (Samuel W. Altman, Marvin Margolis, New York City, of counsel), for appellant.
Before LUMBARD, Chief Judge, and MOORE and SMITH, Circuit Judges.
MOORE, Circuit Judge.
Anthony Castaldi appeals from a judgment convicting him of criminal contempt of court. The conviction was based on his refusal to answer questions put to him before a Grand Jury in the Southern District of New York and before a District Judge on the ground that he might incriminate himself.
Castaldi had been indicted along with a score of co-defendants and co-eonspirators for conspiring to violate the federal narcotics laws. After a trial in 1963 he was one of five acquitted, eleven others being convicted. In February 1964 Castaldi was subpoenaed to testify before a federal grand jury investigating illicit narcotics traffic. At hearings in February, April and May 1964 he refused to answer all questions, some of which related to aspects of the conspiracy. On May 15th, at the Government’s request, Castaldi was granted immunity from future prosecution and ordered to answer, under 18 U.S.C.A. § 1406. On July 1st, his next appearance before the Grand Jury, and on July 2nd, before Judge Wyatt, he again refused to answer all questions. On notice and hearing as provided in Rule 42(b), Fed.R.Crim.P., Judge Wyatt found Castaldi guilty of disobedience of the Court’s orders requiring him to answer the questions put to him before the Grand Jury. Judge Wyatt sentenced him to two years’ imprisonment or until further order of the Court, should he answer the questions before the end of the sentence or the discharge of the Grand Jury. Castaldi’s request for a jury trial was denied.
Castaldi now contends that: (1) the prior acquittal operates to bar a contempt conviction based on a refusal to answer questions concerning in part the subject matter of the earlier proceeding; (2) he was constitutionally entitled to an indictment and trial by jury; and (3) the two-year sentence is constitutionally impermissible. We reject all three contentions.
The conspiracy acquittal, Castaldi argues, should bar his contempt conviction under principles of double jeopardy, res judicata and collateral estoppel. However, the acquittal in no way gave Castaldi permanent freedom to refuse to answer all questions relating to possible narcotics violations merely because they might have some connection with an earlier trial. Indeed, the Supreme Court held in both Reina v. United States, 364 U.S. 507, 81 S.Ct. 260, 5 L.Ed. 2d 249 (1960) and Piemonte v. United States, 367 U.S. 556, 81 S.Ct. 1720, 6 L.Ed.2d 1028 (1961), that a prior conviction did not create a right to refuse to answer questions relating to the underlying crime. “‘[T]he public has a right to every man’s evidence.’ ” Piemonte, supra, 367 U.S. at 559 n. 2, 81 S.Ct. at 1722. If three persons witness an offense — an innocent bystander, a suspect who is convicted, and a suspect who is acquitted — - the acquitted suspect has no more right to keep silent than do the other two. See Piemonte, ibid. Because the contempt conviction is not the same offense as in the earlier conspiracy proceeding, double jeopardy plays no role here, just as it plays no role in the case of a prior conviction. Similarly, the doctrines of res judicata and collateral estoppel both contemplate subsequent litigation involving claims and facts already once adjudicated. The only question in the contempt proceeding was whether Castaldi wrongly refused to obey court orders; not whether he conspired to sell narcotics.
Castaldi is not being retried. .Nor does his acquittal establish as a matter of law his lack of knowledge concerning narcotics traffic as he claims. All that the Government was required to show was that it had complied with the statute. This it has done. See Ullman v. United States, 350 U.S. 422, 434, 76 S.Ct. 497, 100 L.Ed. 511, 53 A.L.R.2d 1008 (1956) dealing with a similar statute, 18 U.S.C.A. § 3486, 68 Stat. 745.
Castaldi next claims that he was entitled to an indictment and jury trial under the Fifth and Sixth Amendments to the Constitution. His arguments on these points involve constructions of the statutes which classify federal offenses and define criminal contempt (18 U.S. C.A. §§ 1 and 401). Briefly, he argues that the punishment for criminal con-.tempt is in the court’s discretion and might possibly exceed one year, that sentencing for more than one year makes an offense a felony, that a felony is an “in- . famous” crime, and that, therefore, there should have been an indictment and jury trial. This argument was made and rejected in United States v. Green, 356 U.S. 165, 78 S.Ct. 632, 2 L.Ed.2d 672 (1958), which upheld a three-year sentence. That principle was recently reaffirmed in United States v. Barnett, 376 U.S. 681, 692, 84 S.Ct. 984, 12 L.Ed.2d 23 (1964), which again ruled against a • constitutional right to a jury trial in . a criminal contempt case.
Castaldi does not have a statutory right to a jury trial. Congress has -provided for a jury trial in only certain , criminal contempt proceedings. See, e. g., 18 U.S.C.A. §§ 402, 3691, 3692; Civil Rights Act of 1964, § 1101, 78 Stat. 268. But under all of these statutes no right to a jury trial exists with respect to con-tempts committed in the presence of the court. And that is what Castaldi is convicted of.
Lastly, we come to the claim that the penalty which may be imposed is limited to that for petty offenses, because of the absence of a jury trial. Castaldi cites footnote 12 in United States V. Barnett, 376 U.S. at 694-695, 84 S.Ct. at 903, in which the Court added a “dictum” that “Some members of the Court are of the view that, without regard to the seriousness of the offense, punishment by summary trial without a jury would be constitutionally limited to that provided for petty offenses.” But as we noted in United States v. Harris, 334 F.2d 460, 463 (2d Cir.), cert. granted, 85 S.Ct. 438, the contempt in Barnett was not committed in the presence of the court and the contempt proceeding took place after compliance with the court order. Here, as in Harris, the contempt was committed in the court’s presence and the proceeding preceded compliance. But cf. Rollerson v. United States, No. 17675, D.C.Cir., Oct. 1, 1964.
Moreover, the sentence has a purge clause by which Castaldi “carries the keys to freedom in his willingness to comply with the court’s directive * *." United States v. Barnett, 376 U.S. at 727 n. 6, 84 S.Ct. at 1031 (dissenting opinion of Black, J.), id. at 754, 84 S.Ct. at 1020 (dissenting opinion of Goldberg, J.). Sentences similar to this were upheld in United States v. Reina, supra; United States v. Testa, 334 F.2d 746 (3d Cir.), cert. denied, 85 S.Ct. 83 (1964); see United States v. Rinieri, 308 F.2d 24 (2d Cir.), cert. denied, 371 U.S. 935, 83 S.Ct. 310, 9 L.Ed.2d 272 (1962).
Castaldi’s attempt to distinguish Harris as arising under Rule 42(a), Fed.R. Crim.P., for summary contempts, whereas this case arose under Rule 42(b) for disposition on notice and hearing, is without merit. His refusal to answer was m,ade in the presence of the court and would have justified a proceeding under Rule 42(a). If the sentence would be permissible then under Harris, it can hardly be made impermissible by the fact that the court chose to proceed under Rule 42(b), by which other additional protections were afforded.
The judgment appealed from is affirmed.
. The convictions were later reversed and a new trial ordered. United States v. Borelli, 336 F.2d 376 (2d Cir. 1964).
Question: What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 42? Answer with a number.
Answer:
|
songer_injunct
|
D
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What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on the validity of an injunction or the denial of an injunction or a stay of injunction favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
Lee WILLIAMS, Appellee, v. Arthur L. McKENZIE, Warden, West Virginia State Penitentiary, Appellant (two cases).
Nos. 77-1679, 77-1711.
United States Court of Appeals, Fourth Circuit.
Argued March 8, 1978.
Decided May 3, 1978.
John R. Hoblitzell, Charleston, W. Va. (Kay, Casto & Chaney, Charleston, W. Va., on brief), for Lee Williams.
Frederick J. George, Deputy Atty. Gen., Charleston, W. Va. (Chauncey H. Browning, Jr., Atty. Gen., and John L. MacCorkle, Asst. Atty. Gen., Charleston, W. Va., on brief), for Arthur L. McKenzie.
Before WINTER and HALL, Circuit Judges, and FIELD, Senior Circuit Judge.
PER CURIAM:
This case presents an appeal by the State from a decision of the district court below granting a writ of habeas corpus to Lee Williams, a prisoner incarcerated in the West Virginia State Penitentiary, on grounds that an unduly suggestive pre-trial photographic display occurred and a cross-appeal by the petitioner from an order entered by the district court denying the issuance of the writ of habeas corpus due to alleged suppression of exculpatory evidence by the office of the Kanawha County, West Virginia prosecutor.
On the appeal, we reverse the district court’s order which granted the writ of habeas corpus to Williams concerning the alleged impermissibly suggestive identification of him prior to the state court trial. Accordingly the judgment in Appeal No. 77-1679 is reversed and the case is remanded with directions that the district court enter an order denying the petition for writ of habeas corpus on this ground.
On the cross-appeal, while we hold that we can entertain petitioner’s cross-appeal from the order entered by the district court holding that there was no suppression of exculpatory evidence in the state trial court below, we are nevertheless compelled to reverse the judgment in Appeal No. 77-1711, and remand to the district court for reconsideration concerning exhaustion of available state court remedies on the exculpatory evidence issue.
I.
On December 23,1971, in the early afternoon, Sam Shaar, the proprietor of a small grocery store in the City of Charleston, West Virginia, was sitting by his stove when two negro men came into the store. Mr. Shaar was 78 years old, wore glasses, and was in failing health suffering from bone cancer. A cash register was located at the end of the counter in the store approximately 20 feet away from him.
One of the individuals who came in was tall and the other was short. The short one walked toward the cash register and the tall one walked to a position behind Shaar. One of the two apparently asked for some “t-bones” and Shaar informed them that he did not carry fresh meat. The short individual nearest the cash register then opened it and began taking money out. When Shaar asked him what he was doing the tall individual behind him shot Shaar in the shoulder with a .25 caliber pistol. Shaar fainted.
The individuals fled the scene and almost immediately thereafter the Charleston City Police Department was notified of the shooting and commenced an investigation. Detectives McGinnis and Mahan immediately went to the hospital and questioned Mr. Shaar while he was in the emergency room. According to an “Activity Report” of the Charleston Police Department, dated December 23, 1971, and made a part of the record on this appeal, Detectives Mahan and McGinnis were informed by Shaar that his assailant was a colored male, young, about 6'1" with an orange CPO jacket on, and this was the individual who shot him, but that he did not get any money.
Also mentioned in the Activity Report of December 23,1971, was an eye witness who said she saw a black male run from the scene and cut between her house and another house running eastward. This woman did not testify at the State trial however.
Thereafter, on December 28, 1971, two additional detectives of the Charleston City Police Department, namely Detectives Frye and Leonard filed an additional “Activity Report”. These detectives had gone to the hospital to see Mr. Shaar on December 28, 1971, to see if he could identify some possible suspects in the robbery. The detectives took four pictures with them. Two were of the suspected robbers. All the pictures were of individuals of approximately similar height, build, complexion and race.
At this time, Mr. Shaar identified the petitioner, Lee Williams, as the person who shot him at the time of the armed robbery. Williams was identified as the taller of the two individuals. Shaar also separately identified one Robert Lee Brooks, II, as the individual who went through his cash register. Brooks was identified as the shorter of the two.
II.
Arrest warrants were thereafter prepared for Williams and Brooks. Williams was arrested, indicted, tried and convicted of armed robbery by the then Intermediate Court of Kanawha County, West Virginia. The conviction occurred on May 1, 1972. Williams appealed to the Circuit Court of Kanawha County, but discretionary review was denied. No appeal was taken to the Supreme Court of Appeals of the State of West Virginia.
Thereafter, Williams filed original petitions for a writ of habeas corpus in the Supreme Court of Appeals of the State of West Virginia. Collateral review was denied in March and June of 1976.
Next, Williams filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Southern District of West Virginia on October 12, 1976. Following a Report and Recommendation of the United States Magistrate, to whom the matter had been referred, petitioner was given leave to amend and clarify the allegations contained in his pro se petition. Petitioner filed a clarification. As clarified, petitioner essentially alleged:
1. That he was denied due process of law by virtue of the photographic and in-court identification of him by Sam Shaar, the victim of the crime; and
2. That neither he nor his counsel were present at one particular stage of the state court trial which was conducted in the armed robbery case.
The district court issued an order to show cause, and counsel was appointed. An evidentiary hearing was held on December 22, 1976, and the case was fully briefed in the court below.
Following the completion of testimony, the district court awarded the writ of habeas corpus, and ruled in three particulars, as follows:
First. The photographic identification conducted by the detectives in the hospital on December 28, 1971, was impermissibly suggestive leading to a grave likelihood of irreparable misidentification;
Second. The initial Activity Report of December 23, 1971, reflecting the summary of the detectives’ first interview with Mr. Shaar in the hospital constituted exculpatory evidence and it had not been furnished to counsel for the defendant prior to trial. The district court further held that exhaustion of state court remedies was not required concerning the exculpatory evidence issue since its alleged suppression was not discovered until the proceedings leading to the petition for a writ of habeas corpus in federal district court;
Third. The district court held that although the defendant was not present momentarily for a few seconds during his trial, he was actually standing in a doorway adjacent to the courtroom, and his absence for a momentary time period was not prejudicial to him. The state trial judge, when he noted that the defendant was standing in the doorway with his counsel, immediately cut off remarks being made by the prosecutor and the parties were given an adequate opportunity to object to this essentially technical violation of West Virginia law. The district court expressly found that the absence was for not more than a few seconds.
Following the issuance of the writ by the district court, the Warden of the West Virginia State Penitentiary filed a timely notice of appeal.
After the Warden’s notice of appeal was filed the district court reopened the record on the Warden’s oral motion, and the court took additional evidence concerning its second holding that exculpatory evidence had been withheld from the defendant during his state trial. Testimony of the prosecuting attorney for Kanawha County, who was chief trial counsel in the prosecution of the petitioner was taken. The district court then rescinded, in part, its previous order granting the writ of habeas corpus on the exculpatory evidence point.
Thus, the district court concluded that the Kanawha County prosecuting attorney did in fact make his entire file available to trial counsel for the petitioner prior to his state trial which file included the activity report summarizing the December 23, 1971 interview of Mr. Shaar and his initial description of the assailant. Consequently, although the writ was awarded, it was awarded only on grounds relating to the suggestiveness of the photographic identification.
The petitioner cross-appealed from the revised holding of the district court concerning exculpatory evidence. Essentially, petitioner contends that the district court erred in finding that the exculpatory evidence was not in fact withheld. Alternatively, if the district court was correct in concluding that the entire file of the Kanawha County prosecuting attorney was made available to trial counsel for the defendant in state court, then, that attorney is guilty of incompetence because he did not cross-examine Mr. Shaar about the apparent inconsistent descriptions given initially and then at trial or attempt to impeach him through the testimony of the two detectives who elicited the first description of the assailant.
III.
APPEALABILITY — APPEAL NO. 77-1711
A threshold question of appealability is presented in this case. The state filed a timely notice of appeal from the district court order issuing the writ of habeas corpus. Notwithstanding that notice of appeal, and the general rule that the filing of such a notice deprives the district court of jurisdiction to act further in most instances in a case formerly before it, the district court nevertheless.reopened the habeas case for the taking of the additional testimony of the Prosecuting Attorney of Kanawha County concerning the exculpatory evidence issue. Presumably, the motion leading to a reopening of the case was made pursuant to Rule 60(b), Federal Rules of Civil Procedure.
Thereafter, as noted, the district court reversed its previous ruling, denied habeas relief on the exculpatory issue, and the petitioner then noted a cross-appeal.
The first question presented is whether we can even entertain petitioner’s cross-appeal concerning exculpatory evidence in light of the State’s earlier notice of appeal. 7 J. Moore & J. Lucas, Moore’s Federal Practice, § 60.30[2], at 419-24 (2d ed. 1975); 11 C. Wright & A. Miller, Federal Practice and Procedure § 2873 (1973); cf. Rakes v. United States, 163 F.2d 771 (4th Cir. 1947) (interpreting the “newly discovered evidence” rule under F.R.Cr.P. 33).
We hold that on the facts of this particular case, and especially since the appeal was not docketed in this court at the time the district judge reopened the habeas hearing for the taking of additional testimony, that the entertainment of the F.R.C.P. 60(b)(2) motion was appropriate.
Support for our holding is drawn from the recent ruling of the Supreme Court in Standard Oil of California v. United States, 429 U.S. 17, 97 S.Ct. 31-2, 50 L.Ed.2d 21 (1976). To us, the pre-mandate leave to proceed under Rule 60(b)(2) in the district court below upon the facts presented to it is sufficiently analogous to the post mandate appellate leave requirement struck down in Standard Oil to afford proper jurisdiction in the court below to proceed with reopening of the habeas case. We caution, however, that a Rule 60(b)(2) motion is not a procedural vehicle , for an automatic retrial de novo once a party has lost in the district court below and a notice of appeal has been filed. This is especially true when the record does not reflect why the evidence sought to be introduced pursuant to Rule 60(b)(2) was otherwise unavailable at the first hearing.
We hold only, on this record, that the reopening of the suit was not error, and, that the substance of petitioner’s cross-appeal is properly before us.
IV.
EXCULPATORY EVIDENCE — APPEAL NO. 77-1171
Through the diligent efforts of counsel appointed in the district court, petitioner discovered, and asserted in the habeas case below that the first description of his assailant by Mr. Shaar, as contained in the initial Activity Report of December 23, 1971, constituted exculpatory evidence. Counsel for petitioner presented testimony from Williams’ state trial counsel to the effect that he was not furnished with copies of the police report and the police investigation into the shooting of Mr. Shaar nor did he have any idea whether there was any conflict between the information contained in that report and Mr. Shaar’s testimony at trial.
Based upon this testimony, the district court initially concluded that the evidence was exculpatory and had been suppressed.
Thereafter, the motion to reopen, discussed above in Part III of this opinion was filed, and testimony of the Prosecuting Attorney for Kanawha County, who was chief prosecution counsel in the trial of Williams was thereafter taken, and the district judge accordingly reversed his prior holding. He concluded that the evidence, although exculpatory, was not in fact suppressed.
Petitioner countered by arguing alternatively, that if the initial Activity Report was not suppressed, then Williams’ state trial counsel was guilty of ineffective assistance of counsel, and the writ should nevertheless have issued because of counsel’s failure to utilize Shaar’s first description of his assailant for cross-examination and as impeachment material. Presumably Shaar could have been questioned about his comments to the detectives who first investigated the case, and then they could have been called to the stand to testify that Shaar’s trial testimony was inconsistent with this first description of his assailant. See: Marzullo v. Maryland, 561 F.2d 540 (4th Cir. 1977).
On this cross-appeal, petitioner again argues in the alternative as he did in the district court below. We decline to address those issues since the district court also found that exhaustion of state court remedies had not occurred regarding the exculpatory evidence issues. We disagree with the district court that the mere discovery of the issue during the prosecution of a writ of habeas corpus, under 28 U.S.C. § 2254 is alone enough to dispense with the exhaustion requirement.
Petitioner had not alleged, nor was there any showing made in the record in the district court that there was no longer a state court remedy available to Williams or that exhaustion would have been futile for some pther reason. See: e. g., 28 U.S.C. § 2254(b). Upon remand, the district court may allow petitioner to file a second amended petition for a writ of habeas corpus, if he chooses to do so, and in lieu of proceeding to seek collateral review in the state courts, petitioner should be notified of his apparent failure to exhaust his state court remedies. He should be advised that his failure to properly plead justification for such non-exhaustion of state court remedies will result in the dismissal of his petition for a writ of habeas corpus on the exculpatory issues.
V.
THE IDENTIFICATION — APPEAL NO. 77-1679
With the benefit of the trial transcript from the state court trial before it, and with the benefit of live testimony taken during the plenary hearing, the district court principally concluded that based upon the facts presented in the instant appeal: (1) the photographic display of the four possible suspects (including the two who were ultimately identified as the robbers) shown to Mr. Shaar in the hospital on December 28, 1971, was unduly suggestive; and (2) that from the totality of the circumstances presented in the case, there was a very substantial likelihood of irreparable misidentification. See Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 2249, 53 L.Ed.2d 140 (1977), decided after the district court entered its order granting habeas relief on the identification issue.
While we are solicitous of the careful analysis made by the district judge concerning the facts presented to him, we disagree that the photographic identification was unduly suggestive. Consequently, we need not look to whether or not the totality of the circumstances gave rise to a substantial likelihood of irreparable misidentification. On that point, while the testimony of Sam Shaar is indeed weak, it was sufficient to be admissible, and thereafter its weight was for the jury. We perceive no due process violation.
The district court predicated its finding of suggestiveness upon certain key facts: (1) that only four photographs were shown to Shaar by the detectives; (2) that Shaar was asked if the pictures were of “the two fellows that robbed and shot him.” (State Court trial testimony of Detective Leonard, Tr. 106, A-194); and (3) that when he gave the first description of his assailants to the detectives on December 23, 1971 when he had just been shot, he mentioned only one assailant with an orange CPO jacket. Thus, in light of Shaar’s physical condition and mental state, which were concededly rather poor, the use of only four photographs together with the mention of two suspects made the photographic display unduly suggestive.
However, when the testimony of Detective Leonard which was taken during the state trial out of the presence of the jury is closely analyzed, the suggestiveness disappears. Shaar obviously knew there were two robbers without prompting from Leonard. When he viewed the four photographs, he did not simply identify Williams as one robber and Brooks as the other.
Instead, as Leonard recapped, Shaar identified Williams as the one who shot him and Brooks as the one who cleaned out the cash register. Leonard testified:
He looked at Floyd Hairston’s picture, put it aside. He looked at June Bug Brown’s picture and placed it aside. He got to the picture of Lee Williams. He stated that “this is the big fellow, this is the fellow that shot me.” He put that aside. He went to the last picture, which was Robert Lee Brooks. He said, “This is the fellow that cleaned out the cash register, this is the shorter fellow.” (State Trial testimony, Tr. 30, A-118).
This is persuasive evidence that Shaar remembered the duo even before any suggestive comments by Detective Leonard.
Finally, there is no per se requirement that at least six photographs should have been shown to Shaar. See Manson v. Brathwaite, supra, decided after the district court ruled on the suggestiveness aspect of this case.
77-1679 — REVERSED AND REMANDED WITH DIRECTIONS TO DENY THE WRIT.
77-1171 — REVERSED AND REMANDED FOR RECONSIDERATION OF EXHAUSTION OF AVAILABLE STATE COURT REMEDIES.
. This third holding is not the subject of either the appeal or cross-appeal before us.
. The motion was orally made on the basis of “newly discovered evidence.” F.R.C.P. 60(b)(2). To us, there is a substantial question presented concerning the sufficiency of the allegations contained in that oral motion made by the State under F.R.C.P. 60(b)(2). That Rule requires that the “newly discovered evidence [was such that] by due diligence [it] could not have been discovered in time to move for a new trial under Rule 59(b), [i. e. within 10 days of the entry of judgment].”
In the first hearing before the district court on the federal habeas corpus, although the assistant prosecuting attorney who tried the case was present, he was not called to negate the testimony of state trial counsel on the suppression of exculpatory evidence. No evidence was presented until the State reopened the case with the testimony of the prosecuting attorney himself. No showing of unavailability was made on the record before us. See F.R.C.P. 60(b)(2); 7(b).
Because of our disposition of the cross-appeal, post, in part IV of this opinion, we need not further discuss any inadequacy of the oral motion made under F.R.C.P. 60(b)(2).
. Disregarding exhaustion for the moment, had the district court not ruled upon the state’s motion to reopen due to newly discovered evidence under F.R.C.P. 60(b)(2), an appeal could have been rendered largely academic. We hold only that permission of this court was not a necessary precondition for the district court to entertain the Rule 60(b)(2) motion.
Question: Did the court's ruling on the validity of an injunction or the denial of an injunction or a stay of injunction favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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sc_decisiondirection
|
B
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases.
SCHAD et al. v. BOROUGH OF MOUNT EPHRAIM
No. 79-1640.
Argued February 25, 1981
Decided June 1, 1981
White, J., delivered the opinion of the Court, in which Brennan, Stewart, Marshall, Blackmun, and Powell, JJ., joined. Blackmun, J., filed a concurring opinion, post, p. 77. Powell, J., filed a concurring opinion, in which Stewart, J., joined, post, p. 79. Stevens, J., filed an opinion concurring in the judgment, post, p. 79. Burger, C. J., filed a dissenting opinion, in which Rehnquist, J., joined, post, p. 85.
Robert E. Levy argued the cause for appellants. With him on the brief was Lewis H. Robertson.
Arnold N. Fishman argued the cause and filed a brief for appellee.
Bruce J. Ennis filed a brief for the American Civil Liberties Union et al. as amici curiae urging reversal.
Anthony H. Atlas filed a brief for Morality in Media, Inc., as amicus curiae urging affirmance.
Justice White
delivered the opinion of the Court.
In 1973, appellants began operating an adult bookstore in the commercial zone in the Borough of Mount Ephraim in Camden County, N. J. The store sold adult books, magazines, and films. Amusement licenses shortly issued permitting the store to install coin-operated devices by virtue of which a customer could sit in a booth, insert a coin, and watch an adult film. In 1976, the store introduced an additional coin-operated mechanism permitting the customer to watch a live dancer, usually nude, performing behind a glass panel. Complaints were soon filed against appellants charging that the bookstore’s exhibition of live dancing violated § 99-15B of Mount Ephraim’s zoning ordinance, which described the permitted uses in a commercial zone, in which the store was located, as follows:
“B. Principal permitted uses on the land and in buildings.
“(1) Offices and banks; taverns; restaurants and luncheonettes for sit-down dinners only and with no drive-in facilities; automobile sales; retail stores, such as but not limited to food, wearing apparel, millinery, fabrics, hardware, lumber, jewelry, paint, wallpaper, appliances, flowers, gifts, books, stationery, pharmacy, liquors, cleaners, novelties, hobbies and toys; repair shops for shoes, jewels, clothes and appliances; barbershops and beauty salons; cleaners and laundries; pet stores; and nurseries. Offices may, in addition, be permitted to a group of four (4) stores or more without additional parking, provided the offices do not exceed the equivalent of twenty percent (20%) of the gross floor area of the stores.
“(2) Motels.” Mount Ephraim Code § 99-15B (1), (2) (1979).
Section 99-4 of the Borough’s code provided that “[a] 11 uses not expressly permitted in this chapter are prohibited.”
Appellants were found guilty in the Municipal Court and fines were imposed. Appeal was taken to the Camden County Court, where a trial de novo was held on the record made in the Municipal Court and appellants were again found guilty. The County Court first rejected appellants’ claim that the ordinance was being selectively and improperly enforced against them because other establishments offering live entertainment were permitted in the commercial zones. Those establishments, the court held, were permitted, nonconforming uses that had existed prior to the passage of the ordinance. In response to appellants’ defense based on the First and Fourteenth Amendments, the court recognized that “live nude dancing is protected by the First Amendment” but was of the view that “First Amendment guarantees are not involved” since the case “involves solely a zoning ordinance” under which “[l]ive entertainment is simply not a permitted use in any establishment” whether the entertainment is a nude dance or some other form of live presentation. App. to Juris. Statement 8a, 12a. Reliance was placed on the statement in Young v. American Mini Theatres, Inc., 427 U. S. 50, 62 (1976), that “[t]he mere fact that the commercial exploitation of material protected by the First Amendment is subject to zoning and other licensing requirements is not a sufficient reason for invalidating these ordinances.” The Appellate Division of the Superior Court of New Jersey affirmed appellants’ convictions in a per curiam opinion “essentially for the reasons” given by the County Court. App. to Juris. Statement 14a. The Supreme Court of New Jersey denied further review. Id., at 17a, 18a.
Appellants appealed to this Court. Their principal claim is that the imposition of criminal penalties under an ordinance prohibiting all live entertainment, including nonob-scene, nude dancing, violated their rights of free expression guaranteed by the First and Fourteenth Amendments of the United States Constitution. We noted probable jurisdiction, 449 U. S. 897 (1980), and now set aside appellants’ convictions.
I
As the Mount Ephraim Code has been construed by the New Jersey courts — a construction that is binding upon us — ■ “live entertainment,” including nude dancing, is “not a permitted use in any establishment” in the Borough of Mount Ephraim. App. to Juris. Statement 12a. By excluding live entertainment throughout the Borough, the Mount Ephraim ordinance prohibits a wide range of expression that has long been held to be within the protections of the First and Fourteenth Amendments. Entertainment, as well as political and ideological speech, is protected; motion pictures, programs broadcast by radio and television, and live entertainment, such as musical and dramatic works, fall within the First Amendment guarantee. Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495 (1952); Schacht v. United States, 398 U. S. 58 (1970); Jenkins v. Georgia, 418 U. S. 153 (1974); Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546 (1975); Erznoznik v. City of Jacksonville, 422 U. S. 205 (1975); Doran v. Salem Inn, Inc. 422 U. S. 922 (1975). See also California v. LaRue, 409 U. S. 109, 118 (1972); Young v. American Mini Theatres, Inc., supra, at 61, 62. Nor may an entertainment program be prohibited solely because it displays the nude human figure. “[N]udity alone” does not place otherwise protected material outside the mantle of the First Amendment. Jenkins v. Georgia, supra, at 161; Southeastern Promotions, Ltd. v. Conrad, supra; Erznoznik v. City of Jacksonville, supra, at 211-212, 213. Furthermore, as the state courts in this case recognized, nude dancing is not without its First Amendment protections from official regulation. Doran v. Salem Inn, Inc., supra; Southeastern Promotions, Ltd. v. Conrad, supra; California v. LaRue, supra.
Whatever First Amendment protection should be extended to nude dancing, live or on film, however, the Mount Ephraim ordinance prohibits all live entertainment in the Borough: no property in the Borough may be principally used for the commercial production of plays, concerts, musicals, dance, or any other form of live entertainment. Because appellants’ claims are rooted in the First Amendment, they are entitled to rely on the impact of the ordinance on the expressive activities of others as well as their own. “Because overbroad laws, like vague ones, deter privileged activities], our cases firmly establish appellant’s standing to raise an overbreadth challenge.” Grayned v. City of Rockford, 408 U. S. 104, 114 (1972).
II
The First Amendment requires that there be sufficient justification for the exclusion of a broad category of protected expression as one of the permitted commercial uses in the Borough. The justification does not appear on the face of the ordinance since the ordinance itself is ambiguous with respect to whether live entertainment is permitted: § 99-15B purports to specify only the “principal” permitted uses in commercial establishments, and its listing of permitted retail establishments is expressly nonexclusive; yet, § 99-4 declares that all uses not expressly permitted are forbidden. The state courts at least partially resolved the ambiguity by declaring live entertainment to be an impermissible commercial use. In doing so, the County Court, whose opinion was adopted by the Appellate Division of the Superior Court, sought to avoid or to meet the First Amendment issue only by declaring that the restriction on the use of appellants’ property was contained in a zoning ordinance that excluded all live entertainment from the Borough, including live nude dancing.
The power of local governments to zone and control land use is undoubtedly broad and its proper exercise is an essential aspect of achieving a satisfactory quality of life in both urban and rural communities. But the zoning power is not infinite and unchallengeable; it “must be exercised within constitutional limits.” Moore v. East Cleveland, 431 U. S. 494, 514 (1977) (Stevens, J., concurring in judgment). Accordingly, it is subject to judicial review; and as is most often the case, the standard of review is determined by the nature of the right assertedly threatened or violated rather than by the power being exercised or the specific limitation imposed. Thomas v. Collins, 323 U. S. 516, 529-530 (1945).
Where property interests are adversely affected by zoning, the courts generally have emphasized the breadth of municipal power to control land use and have sustained the regulation if it is rationally related to legitimate state concerns and does not deprive the owner of economically viable use of his property. Agins v. City of Tiburon, 447 U. S. 255, 260 (1980); Village of Belle Terre v. Boraas, 416 U. S. 1 (1974); Euclid v. Ambler Realty Co., 272 U. S. 365, 395 (1926). But an ordinance may fail even under that limited standard of review. Moore v. East Cleveland, supra, at 520 (Stevens, J., concurring in judgment); Nectow v. Cambridge, 277 U. S. 183 (1928).
Beyond that, as is true of other ordinances, when a zoning law infringes upon a protected liberty, it must be narrowly drawn and must further a sufficiently substantial government interest. In Schneider v. State, 308 U. S. 147 (1939), for example, the Court recognized its obligation to assess the sub-stantiality of the justification offered for a regulation that significantly impinged on freedom of speech:
“Mere legislative preferences or beliefs respecting matters of public convenience may well support regulation directed at other personal activities, but be insufficient to justify such as diminishes the exercise of rights so vital to the maintenance of democratic institutions. And so, as cases arise, the delicate and difficult task falls upon the courts to weigh the circumstances and to appraise the substantiality of the reasons advanced in support of the regulation of the free enjoyment of [First Amendment] rights.” Id., at 161.
Similarly, in Village of Schaumburg v. Citizens for a Better Environment, 444 U. S. 620, 637 (1980), it was emphasized that the Court must not only assess the substantiality of the governmental interests asserted but also determine whether those interests could be served by means that would be less intrusive on activity protected by the First Amendment: Justice Powell said much the same thing in addressing the validity of a zoning ordinance in Moore v. East Cleveland, 431 U. S., at 499: when the government intrudes on one of the liberties protected by the Due Process Clause of the Fourteenth Amendment, “this Court must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation.” Because the ordinance challenged in this case significantly limits communicative activity within the Borough, we must scrutinize both the interests advanced by the Borough to justify this limitation on protected expression and the means chosen to further those interests.
“The Village may serve its legitimate interests, but it must do so by narrowly drawn regulations designed to serve those interests without unnecessarily interfering with First Amendment freedoms. Hynes v. Mayor of Oradell, 425 U. S., at 620; First National Bank of Boston v. Bellotti, 435 U. S. 765, 786 (1978). ‘Broad prophylactic rules in the area of free expression are suspect. Precision of regulation must be the touchstone. . . .’ NAACP v. Button, 371 U. S. 415, 438 (1963).”
As an initial matter, this case is not controlled by Young v. American Mini Theatres, Inc., the decision relied upon by the Camden County Court. Although the Court there stated that a zoning ordinance is not invalid merely because it regulates activity protected under the First Amendment, it emphasized that the challenged restriction on the location of adult movie theaters imposed a minimal burden on protected speech. 427 U. S., at 62. The restriction did not affect the number of adult movie theaters that could operate in the city; it merely dispersed them. The Court did not imply that a municipality could ban all adult theaters — much less all live entertainment or all nude dancing — from its commercial districts citywide. Moreover, it was emphasized in that case that the evidence presented to the Detroit Common Council indicated that the concentration of adult movie theaters in limited areas led to deterioration of surrounding neighborhoods, and it was concluded that the city had justified the incidental burden on First Amendment interests resulting from merely dispersing, but not excluding, adult theaters.
In this case, however, Mount Ephraim has not adequately justified its substantial restriction of protected activity. None of the justifications asserted in this Court was articulated by the state courts and none of them withstands scrutiny. First, the Borough contends that permitting live entertainment would conflict with its plan to create a commercial area that caters only to the “immediate needs” of its residents and that would enable them to purchase at local stores the few items they occasionally forgot to buy outside the Borough. No evidence was introduced below to support this assertion, and it is difficult to reconcile this characterization of the Borough’s commercial zones with the provisions of the ordinance. Section 99-15A expressly states that the purpose of creating commercial zones was to provide areas for “local and regional commercial operations.” (Emphasis added.) The range of permitted uses goes far beyond providing for the “immediate needs” of the residents. Motels, hardware stores, lumber stores, banks, offices, and car showrooms are permitted in commercial zones. The list of permitted “retail stores” is nonexclusive, and it includes such services as beauty salons, barbershops, cleaners, and restaurants. Virtually the only item or service that may not be sold in a commercial zone is entertainment, or at least live entertainment. The Borough’s first justification is patently insufficient.
Second, Mount Ephraim contends that it may selectively exclude commercial live entertainment from the broad range of commercial uses permitted in the Borough for reasons normally associated with zoning in commercial districts, that is, to avoid the problems that may be associated with live entertainment, such as parking, trash, police protection, and medical facilities. The Borough has presented no evidence, and it is not immediately apparent as a matter of experience, that live entertainment poses problems of this nature more significant than those associated with various permitted uses; nor does it appear that the Borough’s zoning authority has arrived at a defensible conclusion that unusual problems are presented by live entertainment. Cf. Young v. American Mini Theatres, Inc., 427 U. S., at 54-55, and n. 6. We do not find it self-evident that a theater, for example, would create greater parking problems than would a restaurant. Even less apparent is what unique problems would be posed by exhibiting live nude dancing in connection with the sale of adult books and films, particularly since the bookstore is licensed to exhibit nude dancing on films. It may be that some forms of live entertainment would create problems that are not associated with the commercial uses presently permitted in Mount Ephraim. Yet this ordinance is not narrowly drawn to respond to what might be the distinctive problems arising from certain types of live entertainment, and it is not clear that a more selective approach would fail to address those unique problems if any there are. The Borough has not established that its interests could not be met by restrictions that are less intrusive on protected forms of expression.
The Borough also suggests that § 99-15B is a reasonable “time, place, and manner” restriction; yet it does not identify the municipal interests making it reasonable to exclude all commercial live entertainment but to allow a variety of other commercial uses in the Borough. In Grayned v. City of Rockford, 408 U. S. 104 (1972), we stated:
“The nature of a place, 'the pattern of its normal activities, dictate the kinds of regulations of time, place, and manner that are reasonable.’ . . . The crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time. Our cases make clear that in assessing the reasonableness of a regulation, we must weigh heavily the fact that communication is involved; the regulation must be narrowly tailored to further the State’s legitimate interest.” Id., at 116-117 (footnotes omitted).
Thus, the initial question in determining the validity of the exclusion as a time, place, and manner restriction is whether live entertainment is “basically incompatible with the normal activity [in the commercial zones].” As discussed above, no evidence has been presented to establish that live entertainment is incompatible with the uses presently permitted by the Borough. Mount Ephraim asserts that it could have chosen to eliminate all commercial uses within its boundaries. Yet we must assess the exclusion of live entertainment in light of the commercial uses Mount Ephraim allows, not in light of what the Borough might have done.
To be reasonable, time, place, and manner restrictions not only must serve significant state interests but also must leave open adequate alternative channels of communication. Grayned v. City of Rockford, supra, at 116, 118; Kovacs v. Cooper, 336 U. S. 77, 85-87 (1949); see also Consolidated Edison Co. v. Public Service Comm’n of New York, 447 U. S. 530, 535 (1980); Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U. S. 748, 771 (1976). Here, the Borough totally excludes all live entertainment, including non-obscene nude dancing that is otherwise protected by the First Amendment. As we have observed, Young v. American Mini Theatres, Inc., supra, did not purport to approve the total exclusion from the city of theaters showing adult, but not obscene, materials. It was carefully noted in that case that the number of regulated establishments was not limited and that “[t]he situation would be quite different if the ordinance had the effect of suppressing, or greatly restricting access to, lawful speech.” 427 U. S., at 71, n. 35.
The Borough nevertheless contends that live entertainment in general and nude dancing in particular are amply available in close-by areas outside the limits of the Borough. Its position suggests the argument that if there were countywide zoning, it would be quite legal to allow live entertainment in only selected areas of the county and to exclude it from primarily residential communities, such as the Borough of Mount Ephraim. This may very well be true, but the Borough cannot avail itself of that argument in this case. There is no countywide zoning in Camden County, and Mount Ephraim is free under state law to impose its own zoning restrictions, within constitutional limits. Furthermore, there is no evidence in this record to support the proposition that the kind of entertainment appellants wish to provide is available in reasonably nearby areas. The courts below made no such findings; and at least in their absence, the ordinance excluding live entertainment from the commercial zone cannot constitutionally be applied to appellants so as to criminalize the activities for which they have been fined. “[0]ne 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.
Accordingly, the convictions of these appellants are infirm, and the judgment of the Appellate Division of the Superior Court of New Jersey is reversed and the case is remanded for further proceedings not inconsistent with this opinion.
So ordered.
The zoning ordinance establishes three types of zones. The “R-l” residential district is zoned for single-family dwellings. The “R-2” residential district is zoned for single-family dwellings, townhouses, and garden apartments. The “C” district is zoned for commercial use, as specified in § 99-15 of the Mount Ephraim Code. See Mount Ephraim Code §99-7 (1979).
Section 99-15A states the purpose of the commercial zone:
“A. Purpose. The purpose of this district is to provide areas for local and regional commercial operations. The zone district pattern recognizes the strip commercial pattern which exists along Kings Highway and the Black Horse Pike. It is intended, however, to encourage such existing uses and any new uses or redevelopment to improve upon the zoning districts of greater depth by encouraging shopping-center-type development with buildings related to each other in design, landscaping and site planning and by requiring off-street parking, controlled ingress and egress, greater building setbacks, buffer areas along property lines adjacent to residential uses, and a concentration of commercial uses into fewer locations to eliminate the strip pattern.”
The building inspector, who is responsible for enforcing the zoning ordinance, testified that three establishments located in commercial zones of the Borough offered live music. However, he stated that they were permitted to do so only because this use of the premises preceded the enactment of the zoning ordinance and thus qualified as a “nonconforming” use under the ordinance. Munic. Ct. Tr. 21-25, 35-36, 55-59.
The Police Chief also testified. He stated that he knew of no live entertainment in the commercial zones other than that offered by appellants and by the three establishments mentioned by the building inspector. Id., at 67.
Appellants also contend that the zoning ordinance, as applied to them, violates due process and equal protection, since the Borough has acted arbitrarily and irrationally in prohibiting booths in which customers can view live nude dancing while permitting coin-operated movie booths. Since we sustain appellants’ First Amendment challenge to the ordinance, we do not address these additional claims.
The Borough’s counsel asserted at oral argument that the ordinance would not prohibit noncommercial live entertainment, such as singing Christmas carols at an office party. Tr. of Oral Arg. 33. Apparently a high school could perform a play if it did not charge admission. However, the ordinance prohibits the production of plays in commercial theaters. Id., at 34.
Service stations are not listed as principal permitted uses in § 99-15B. However, both § 99-15E (“Area and yard requirements”) and § 99-15F (“Minimum off-street parking”) specifically refer to service stations, and § 99-15J limits the construction or expansion of service stations in a designated area of the commercial district. Service stations would thus appear to be permitted uses even though not expressly listed in § 99-15B.
Various official views have been expressed as to what extent entertainment is excluded from the commercial zone. At the initial evidentiary hearing, the prosecutor suggested that the ordinance only banned “live entertainment” in commercial establishments. Munic. Ct. Tr. 49 (emphasis added). By contrast, the building inspector for the Borough stated that there was no basis for distinguishing between five entertainment and other entertainment under the ordinance. Id., at 20, 50. Before this Court, the Borough asserted in its brief that the ordinance “does not prohibit all entertainment, but only live entertainment,” Brief for Appellee 21, yet counsel for the Borough stated during oral argument that the ordinance prohibits commercial establishments from offering any entertainment. Tr. of Oral Arg. 40. The County Court ruled that “live entertainment” is not a permitted use under § 99-15B, but it did not consider whether nonlive entertainment might be a permitted use. At oral argument, counsel for appellants referred to a movie theater in the Borough, Tr. of Oral Arg. 9, but counsel for the Borough explained that it is permitted only because it is a nonconforming use. Id., at 28, 38-40.
In Village of Belle Terre v. Boraas, 416 U. S. 1 (1974), the Court upheld a zoning ordinance that restricted the use of land to “one-family” dwellings. The Court -concluded that the municipality’s definition of a “family” (no more than two unrelated persons) did not burden any fundamental right guaranteed by the Constitution. Id., at 7. Thus, it merely had to bear a rational relationship to a permissible state objective. Id., at 8. Justice Marshall dissented, asserting that the ordinance impinged on fundamental personal rights:
“[Thus,] it can withstand constitutional scrutiny only upon a clear showing that the burden imposed is necessary to protect a compelling and substantial governmental interest .... [T]he onus of demonstrating that no less intrusive means will adequately protect the compelling state interest and that the challenged statute is sufficiently narrowly drawn, is upon the party seeking to justify the burden.” Id., at 18 (citation omitted).
Moore v. East Cleveland, 431 U. S. 494 (1977), like Belle Terre, involved an ordinance that limited the occupancy of each dwelling to a single family. Unlike the ordinance challenged in Belle Terre, however, this ordinance defined “family” in a manner that prevented certain relatives from living together. Justice Powell, joined by three other Justices, concluded that the ordinance impermissibly impinged upon protected liberty interests. 431 U. S., at 499. Justice Stevens concluded that the ordinance did not even survive the Euclid test. 431 U. S., at 520-521. The dissenting opinions did not contend that zoning ordinances must always be deferentially reviewed. Rather, the dissenting Justices who addressed the issue rejected the view that the ordinance impinged upon interests that required heightened protection under the Due Process Clause. Id., at 537 (Stewart, J., joined by Rehnquist, J., dissenting), id., at 549 (White, J., dissenting).
Even where a challenged regulation restricts freedom of expression only incidentally or only in a small number of cases, we have scrutinized the governmental interest furthered by the regulation and have stated that the regulation must be narrowly drawn to avoid unnecessary intrusion on freedom of expression. See United States v. O’Brien, 391 U. S. 367, 376-377(1968).
Several municipalities argued in Schneider that their antileafletting ordinances were designed to prevent littering of the streets. The Court did not deny that the ordinances would further that purpose, but it concluded that the cities’ interest in preventing littering was not sufficiently strong to justify the limitation on First Amendment rights. The Court pointed out that the cities were free to pursue other methods of preventing littering, such as punishing those who actually threw papers on the streets. 308 U. S., at 162.
Village of Schaumburg invalidated on First Amendment grounds a municipal ordinance prohibiting the solicitation of contributions by charitable organizations that did not use at least 75% of their receipts for “charitable purposes.” Although recognizing that the Village had substantial interests “ ‘in protecting the public from fraud, crime, and undue annoyance,’ ” 444 IT. S., at 636, we found these interests were “only peripherally promoted by the 75-percent requirement and could be sufficiently served by measures less destructive of First Amendment interests.” Ibid.
Justice Stevens relied on the District Court’s finding that compliance with the challenged ordinances would only impose a slight burden on First Amendment rights, since there were “myriad locations” within ■ the city where new adult movie theaters could be located in compliance with the ordinances. 427 U. S., at 71, n. 35.
Similarly, Justice Powell’s concurring opinion stressed that the effect of the challenged ordinance on First Amendment interests was “incidental and minimal.” Id., at 78. He did not suggest that a municipality could validly exclude theaters from its commercial zones if it had included other businesses presenting similar problems. Although he regarded the burden imposed by the ordinance as minimal, Justice Powell examined the city’s justification for the restriction before he concluded that the ordinance was valid. Id., at 82, and n. 5. Emphasizing that the restriction was tailored to the particular problem identified by the city council, he acknowledged that “[t]he case would have present [ed] a different situation had Detroit brought within the ordinance types of theaters that had not been shown to contribute to the deterioration of surrounding areas.” Id., at 82.
Id., at 71, and n. 34 (opinion of Stevens, J.); id., at 82, n. 5 (Powell, J., concurring).
If the New Jersey courts had expressly interpreted this ordinance as banning all entertainment, we would reach the same result.
Mount Ephraim’s counsel stated in this Court that these stores were available “[i]f you come home at night and you forgot to buy your bread, your milk, your gift.” Tr. of Oral Arg. 40.
At present, this effect is somewhat lessened by the presence of at least three establishments that are permitted to offer live entertainment as a nonconforming use. See n. 3, supra. These uses apparently may continue indefinitely, since the Mount Ephraim Code does not require nonconforming uses to be terminated within a specified period of time. See Mount Ephraim Code § 99-24 (1979). The Borough’s decision to permit live entertainment as a nonconforming use only undermines the Borough’s contention that live entertainment poses inherent problems that justify its exclusion.
The Borough also speculates that it may have concluded that live nude dancing is undesirable. Brief for Appellee 20. It is noted that in California v. LaRue, 409 U. S. 109 (1972), this Court identified a number of problems that California sought to eliminate by prohibiting certain explicitly sexual entertainment in bars and in nightclubs licensed to serve liquor. This speculation lends no support to the challenged ordinance. First, § 99-15B excludes all live entertainment, not just live nude dancing. Even if Mount Ephraim might validly place restrictions on certain forms of live nude dancing under a narrowly drawn ordinance, this would not justify the exclusion of all live entertainment or, insofar as this record reveals, even the nude dancing involved in this case. Second, the regulation challenged in California v. LaRue was adopted only after the Department of Alcoholic Beverage Control had determined that significant problems were linked to the activity that was later regulated. Third, in California v. LaRue the Court relied heavily on the State’s power under the Twenty-first Amendment. Cf. Doran v. Salem Inn, Inc., 422 U. S. 922 (1975).
Mount Ephraim has responded to the parking problems presented by the uses that are permitted in commercial zones by requiring that each type of commercial establishment provide a specified amount of parking. See Mount Ephraim Code §§ 99-15F (1979).
Mount Ephraim argued in its brief that nonlive entertainment is an adequate substitute for live entertainment. Brief for Appellee 20-21. This contention was apparently abandoned at oral argument, since the Borough’s counsel stated that the ordinance bans all commercial entertainment. At any rate, the argument is an inadequate response to the fact that live entertainment, which the ordinance bans, is protected by the First Amendment.
Thus, our decision today does not establish that every unit of local government entrusted with zoning responsibilities must provide a commercial zone in which live entertainment is permitted.
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
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songer_r_natpr
|
2
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "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.
In the Matter of Willis R. GIFFORD and Jacqueline M. Gifford, Bankrupts-Appellees, Appeal of THORP FINANCE CORPORATION, Creditor-Appellant. United States of America, Intervenor-Appellee.
No. 81-1174.
United States Court of Appeals, Seventh Circuit.
Reargued May 26, 1982.
Decided Aug. 18, 1982.
Henry F. Field, Friedman & Koven, Chicago, 111., for creditor-appellant.
Michael J. Lund, Frisch, Dudek & Slattery, Ltd., Milwaukee, Wis., for bankruptsappellees.
John Morland, Washington, D. C., for intervenor-appellee.
Before CUMMINGS, Chief Judge, and PELL, BAUER, WOOD, CUDAHY, ESCH-BACH, POSNER and COFFEY, Circuit Judges en banc.
CUMMINGS, Chief Judge.
This is an appeal from an order of a three-judge bankruptcy court that relied on 11 U.S.C. § 522(f)(2)(A) to discharge Thorp Finance Corporation’s nonpossessory, non-purchase-money security interest in various household goods owned by Mr. and Mrs. Gifford. Thorp’s security interest attached to the household goods one month before Section 522(f) of the Bankruptcy Reform Act of 1978 was enacted, raising the issues of whether Section 522(f) applies to Thorp’s security interest and if so whether that application is constitutional.
We first heard arguments on September 21, 1981, and on January 21, 1982, a majority of the hearing panel decided that Section 522(f) did not apply to Thorp’s pre-enactment security interest because such application “would give rise to * * * serious constitutional questions under the Fifth Amendment.” 669 F.2d 468, 470 (7th Cir.). Following a rehearing of the appeal en banc, we now hold that Section 522(f) applies to Thorp’s security interest and that it is not unconstitutional under the Fifth Amendment.
I
On October 4, 1978, Thorp lent the Giffords approximately $3,000 and in return took a security interest in two television sets, a rug, a tape recorder, a washer and dryer, and several pieces of their furniture. The loan was not used to purchase any of the items of collateral, and Thorp did not take possession of the collateral. On June 9, 1980, the Giffords filed a petition in bankruptcy and then sought to avoid the security interest in their household goods and furniture under 11 U.S.C. § 522(f)(2)(A). Section 522(f) provides:
Notwithstanding any waiver of exemptions, the debtor may avoid the fixing of a lien on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled under [11 U.S.C. § 522(b)], if such lien is—
(1) a judicial lien; or
(2) a nonpossessory, nonpurchase-money security interest in any—
(A) household furnishings, household goods, wearing apparel, appliances, books, animals, crops, musical instruments, or jewelry that are held primarily for the personal, family, or household use of the debtor or a dependent of the debtor;
(B) implements, professional books, or tools, of the trade of the debtor or the trade of a dependent of the debtor; or
(C) professionally prescribed health aids for the debtor or a dependent of the debtor.
Sections 522(b) and 522(d)(3) allow the Giffords exemptions for the collateral that is subject to Thorp’s security interest, not to exceed $200 for any particular item. Thus Thorp’s lien “impairs an exemption to which the debtor[s] would have been entitled under [Section 522(b) ].” Because each item of collateral qualifies as a household furnishing, household good, or appliance, all the requirements for application of Section 522(f)(2)(A) are satisfied. Since no item of collateral is worth more than $200, if Section 522(f) is held to apply to Thorp’s pre-enactment security interest, the Giffords may avoid the security interest in its entirety.
Thorp contested avoidance of its lien before the bankruptcy court on the ground that application of Section 522(f) to pre-en7 actment liens would be unconstitutional. The bankruptcy court disagreed and held that Congress intended Section 522(f) to apply to pre-enactment liens and that there is no constitutional problem in doing so. 7 B.R. 814, 817-819 (Bkrtcy.). Thorp has appealed from that decision and we allowed the United States to intervene in the appeal as a respondent.
II
The first question is whether Section 522(f) was meant to apply to security interests that attached prior to its enactment. Section 522(f) was enacted as part of the Bankruptcy Reform Act of 1978 on November 6, 1978. Pub.L.No. 95-598, 92 Stat. 2578 (codified at 11 U.S.C. §§ 101 et seq.). Like the other substantive provisions of the 1978 Bankruptcy Act, however, Section 522(f) does not state when it — as opposed to the rest of the 1978 Act — is to apply. Rather, Congress placed all of its directions for the transition between the old and new bankruptcy laws in Title IV of the 1978 Act. Section 401 of Title IV provides that all former laws relating to bankruptcy are repealed. Section 402(a) states that “[ejxcept as otherwise provided in [Title IV], this Act shall take effect on October 1, 1979.” The combined effect of Sections 401 and 402(a) is to provide as substantive law only the 1978 Act for cases commenced on or after October 1, 1979. See generally 1 Collier on Bankruptcy KH 7-01, 7.02 (15th ed. 1982). Because Title IV provides no exceptions for Section 522(f), that Section must apply to cases filed on or after the effective date of October 1, 1979. Since the Giffords filed for bankruptcy on June 9, 1980, Section 522(f) is applicable to the security interest in their case.
The other Courts of Appeals that have considered whether Section 522(f) applies to pre-enactment security interests agree that it does. Rodrock v. Security Industrial Bank, 642 F.2d 1193, 1196-1197 (10th Cir. 1981) (Section 522(f)(2) applies to pre-enactment security interests), probable jurisdiction noted sub nom. United States v. Security Industrial Bank, 454 U.S. 1122, 102 S.Ct. 969, 71 L.Ed.2d 108 (1981); In re Ashe, 669 F.2d 105 (3d Cir. 1982) (applying Section 522(f)(1), which permits avoidance of certain judicial liens, to pre-enactment cognovit note); see also In re Webber, 674 F.2d 796, 801-802 (9th Cir. 1982) (Section 522(f)(2) applies to pre-effective date liens). At oral argument, counsel for the United States told us without contradiction that some sixty-five bankruptcy court opinions have also interpreted Section 522(f) to apply to pre-enactment liens. See, e.g., In re Morris, 12 B.R. 321 (Bkrtcy.N.D.Ill.1981); In re Giles, 9 B.R. 135 (Bkrtcy.E.D.Tenn. 1981); In re Pillow, 8 B.R. 404 (Bkrtcy.D. Utah 1981). It is unnecessary to repeat here the reasoning laid out in those opinions. See also 669 F.2d at 475-478 (Cummings, C.J., dissenting). Again according to counsel, only five bankruptcy court opinions disagree.
Thorp has presented one argument that the prior cases do not address, however. A preliminary draft of the transition provisions stated that the new Bankruptcy Act “shall apply in all cases or proceedings instituted after its effective date, regardless of the date of occurrence of any of-the operative facts determining legal rights, duties, or liabilities hereunder.” H.R. 31 [also H.R. 32], 94th Cong., 1st Sess. § 10-103(a) [§ ll-103(a)] (1975), reprinted in Bankruptcy Act Revision: Hearings on H.R. 31 and H.R. 32 Before the House Subcommittee on Civil and Constitutional Rights, 94th Cong., 1st Sess. App. 1 at 321 (1976). Thorp argues that because the above language was criticized by William Plumb in testimony before the House Subcommittee as an improper impairment of vested property rights and then deleted from the final version of the Act, Congress meant to preserve security interests that attached prior to enactment. See Bankruptcy Act Revision: Hearings on H.R. 31 and H.R. 32 Before the House Subcommittee on Civil and Constitutional Rights, 94th Cong., 1st Sess. 2034, 2066-2067 (1976). But Mr. Plumb was only one of many witnesses to testify before Congress and there is no indication that the language was omitted because of fear of unconstitutionality. We therefore attach little weight to his concerns and construe the statute as it was finally enacted, requiring whole application of the new Act to bankruptcies filed on or after October 1, 1979, with immaterial exceptions.
Ill
The question presented by this appeal, then, is whether application of Section 522(f) to avoid Thorp’s pre-enactment lien in the Giffords’ household goods violates the Fifth Amendment. Thorp argues primarily that Section 522(f) works an uncompensated taking of its property rights in the collateral, and alternatively, that Section 522(f) is a violation of substantive due process.
The two Courts of Appeals that have considered whether avoidance of a pre-enactment lien violates the Fifth Amendment have split on the issue. In Rodrock v. Security Industrial Bank, 642 F.2d 1193 (10th Cir. 1981), probable jurisdiction noted sub nom. United States v. Security Industrial Bank, 454 U.S. 1122, 102 S.Ct. 969, 71 L.Ed.2d 108, the Tenth Circuit held that “Congress may not under the bankruptcy power completely take for the benefit of a debtor rights in specific property previously acquired by a creditor.” 642 F.2d at 1198. The Rodrock Court did not state whether Section 522(f) effected a taking, deprived the creditor of property without due process, or was simply beyond Congress’ bankruptcy powers to enact. Instead, the Court relied completely upon the Supreme Court’s decision of Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555, 55 S.Ct. 854, 79 L.Ed. 1593, which invalidated relief provisions of the Frazier-Lemke Act of 1934.
To the contrary, the Third Circuit in In re Ashe, 669 F.2d 105 (3d Cir. 1982) held that application of Section 522(f) to pre-enactment judicial liens did not violate the Fifth Amendment. The Ashe Court stated, “Only if a taking for public use is found does the just compensation standard apply. Plainly Section 522(f)(1) is an economic regulation rather than a taking for public use.” 669 F.2d at 110. Since this instance of economic regulation had a rational basis, the Third Circuit held that Section 522(f) comports with the requirements of due process. Id. at 110-111.
The Ninth Circuit recently held that the Fifth Amendment did not prohibit application of Section 522(f) to security interests in household goods that attached during the eleven-month period between enactment and the effective date of the new Act. In re Webber, 674 F.2d 796 (9th Cir. 1982). Quoting a dictum in our former majority opinion, the two-judge majority noted, also in dictum, “We agree that a ‘property right is of value regardless of the worth of the object in which it is held, and is protected from governmental appropriation by the taking clause of the Fifth Amendment.’ ” Id. at 803 n. 16 (quoting 669 F.2d at 473). But the quoted language is only a truism-all property is protected by the taking clause to the extent that it applies — and the Ninth Circuit majority did not decide the constitutional question before us. Judge Sehroeder’s concurrence did not reveal her views on pre-enactment liens, and she wrote separately only to state that application of Section 522(f) to post-enactment, pre-effective date liens “does not present a substantial question, much less a close one.” Id. at 804.
As explained infra, we agree with the Third Circuit’s opinion in In re Ashe that Section 522(f) as applied to pre-enactment security interests does not violate either the due process or taking clauses of the Fifth Amendment.
IV
Section 522(f) quite clearly is valid under the due process clause. In the early years of this century, Congressional legislation was closely scrutinized by the courts under the rubric of “substantive due process.” See, e.g., Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937. But that approach has “long since been discarded” by the courts (Ferguson v. Skrupa, 372 U.S. 726, 730, 83 S.Ct. 1028, 1031, 10 L.Ed.2d 93), and it is now well established that economic regulation will be sustained against substantive due process challenges provided the regulation has a rational basis. See, e.g., Williamson v. Lee Optical Co., 348 U.S. 483, 487-488, 75 S.Ct. 461, 464, 99 L.Ed. 563; United States v. Carolene Products Co., 304 U.S. 144, 152, 58 S.Ct. 778, 783, 82 L.Ed. 1234; In re Ashe, supra, 669 F.2d at 110. Even when a question of retroactivity is involved, “legislative Acts adjusting the burdens and benefits of economic life come to the Court with a presumption of constitutionality, and * * * the burden is on the one complaining of a due process violation to establish that the legislature has acted in an arbitrary and irrational way.” Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15, 96 S.Ct. 2882, 2892, 49 L.Ed.2d 752; see also Brach v. Amoco Oil Co., 677 F.2d 1213 at 1224-25 (7th Cir. 1982). Indeed, under the bankruptcy clause of the Constitution, “Congress may prescribe any regulations concerning discharge in bankruptcy that are not so grossly unreasonable as to be incompatible with fundamental law * * Hanover National Bank v. Moyses, 186 U.S. 181, 192, 22 S.Ct. 857, 862, 46 L.Ed. 1113.
The basis for Section 522(f) is both rational and compatible with fundamental law. Section 522(f) was enacted as part of a larger program “to make [traditional bankruptcy protections] more effective for non-business debtors.” 123 Cong.Rec. 35444 (1974) (statement of Rep. Rodino). Since the previous major revision of the bankruptcy laws in 1938, consumer financing had burgeoned into a major industry, and consumer bankruptcies had come to account for nearly 90% of all bankruptcy cases filed. Id.; H.R.Rep.No. 595, 95th Cong., 1st Sess. 4, 116 (1977). The existing bankruptcy law, however, had been addressed primarily to the problems involved in business bankruptcies and had relied on state exemption laws to protect consumer debtors. The state exemptions were quickly outmoded as creditors “developed techniques that enablefd] them to avoid the effects of a debtor’s bankruptcy.” H.R.Rep.No. 595 at 116-117, U.S.Code Cong. & Admin.News 1978, p. 6077.
In particular, security interests in consumer property, which formerly had been difficult to establish, became widespread following adoption of Article Nine of the Uniform Commercial Code in the middle 1960’s. See Schwartz, Security Interests and Bankruptcy Priorities: A Review of Current Theories, 10 J. Legal Stud. 1, 4-6 (1981). The result was that consumer debtors often came out of the bankruptcy proceedings “little better off than they were before.” Id. at 117, U.S.Code Cong. & Admin.News 1978, p. 6077.
Finding that “there is a Federal interest in seeing that a debtor that goes through bankruptcy comes out with adequate possessions to begin his fresh start” (H.R. Rep.No. 595 at 126, U.S.Code Cong. & Admin.News 1978, p. 6087), Congress estab-' lished a framework to ensure that debtors would not be left completely destitute after bankruptcy. Congress began by providing a system of federal exemptions upon which a debtor might rely as an alternative to less favorable state exemptions. See 11 U.S.C. §§ 522(b), 522(d); H.R.Rep.No. 595 at 126-127. Congress was aware, however, that the existence of a right to exempt certain property from the bankrupt estate was not alone sufficient to provide a fresh start for the debtor. The Report of the Commission on Bankruptcy Laws of the United States advised Congress that valid exemptions often had been lost or denied under prior law, and recommended that neither waivers of exemptions nor nonpurchase-money security interests in household goods, wearing apparel, and health aids be enforceable. H.R.Doc.No. 137, 93d Cong., 1st Sess., Part I at 169, 170, 173 (1973). Congress enacted the Commission’s recommendations; Section 522(e) makes unenforceable a waiver of exemptions and, as noted above, Section 522(f)(2) allows the bankrupt to avoid a nonpossessory, nonpurchase-money lien in certain household and personal goods.
The House Report explained why it was necessary for the debtor to be able to avoid such liens:
Frequently, creditors lending money to a consumer debtor take a security interest in all of the debtor’s belongings, and obtain a waiver by the debtor of his exemptions. In most of these cases, the debtor is unaware of the consequences of the forms he signs. The creditor’s experience provides him with a substantial advantage. If the debtor encounters financial difficulty, creditors often use threats of repossession of all of the debtor’s household goods as a means of obtaining payment.
In fact, were the creditor to carry through on his threat and foreclose on the property, he would receive little, for household goods have little resale value. They are far more valuable to the creditor in the debtor’s hands, for they provide a credible basis for the threat, because the replacement costs of the goods are generally high. Thus, creditors rarely repossess, and debtors, ignorant of the creditors’ true intentions, are coerced into payments they simply cannot afford to make.
The exemption provision allows the debtor, after bankruptcy has been filed, and creditor collection techniques have been stayed, to undo the consequences of a contract of adhesion, signed in ignorance, by permitting the invalidation of nonpurchase money security interests in household goods. Such security interests have too often been used by overreaching creditors. The bill eliminates any unfair advantage creditors have.
H.R.Rep.No. 595 at 127 (footnote omitted), U.S.Code Cong. & Admin.News 1978, p. 6088. See also In re Pillow, 8 B.R. 404, 406 (Bkrtcy.D.Utah 1981). Under the rule in Long v. Bullard, 117 U.S. 617, 6 S.Ct. 917, 29 L.Ed. 1004, a lien even in exempt property survives the bankruptcy discharge. Since Congress specifically stated that it was adhering to this rule (H.R.Rep.No. 595 at 361), without the lien-avoidance provisions of Section 522(f), liens such as Thorp’s would remain enforceable after the close of the bankruptcy proceedings.
Section 522(f) is narrowly drawn to permit avoidance only of nonpossessory, nonpurchase-money security interests in the listed items and only to the extent that these items are exempted property under Section 522(b). Section 522(f) is thus neither an irrational nor arbitrary means of effectuating a legitimate Congressional purpose under the bankruptcy laws — giving debtors “ ‘a new opportunity in life and a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt.’ ” Perez v. Campbell, 402 U.S. 637, 648, 91 S.Ct. 1704, 1710, 29 L.Ed.2d 233 (quoting Local Loan Co. v. Hunt, 292 U.S. 234, 244, 54 S.Ct. 695, 699, 78 L.Ed. 1230). Thorp nevertheless argues that Section 522(f) will have the supposedly irrational effect of reducing nonpurchase-money credit extended to consumers such as the Giffords, as finance companies such as Thorp withdraw from the market. Indeed, all bankruptcy legislation makes borrowing by potential future bankrupts more difficult or expensive. See R. Posner, Economic Analysis of Law 293 (2d ed. 1977). “If Congress goes too far in undermining the security for extensions of credit when exercising plenary legislative power under the bankruptcy clause, the result may be that credit will be unavailable. But that is a matter of policy judgment for the legislative branch.” In re Ashe, supra, 669 F.2d at 111. We see no reason based on substantive due process to substitute our views “on the subject of Bankruptcies” (n. 6 supra) for those of Congress.
V
The remaining issue is whether avoidance of Thorp’s pre-enactment security interest is an uncompensated taking proscribed by the Fifth Amendment.
There is no “ ‘set formula’ for determining when ‘justice and fairness’ require that economic injuries caused by public action be compensated by the government, rather than remain disproportionately concentrated on a few persons.” Penn Central Transp. Co. v. New York City, 438 U.S. 104, 124, 98 S.Ct. 2646, 2659, 57 L.Ed.2d 631. Rather than employing some single test of fairness {e.g., Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of “Just Compensation” Law, 80 Harv.L.Rev. 1165 (1968)) or economic efficiency (e.g., Berger, A Policy Analysis of the Taking Problem, 49 N.Y.U.L.Rev. 165, 185-191 (1974)), a taking analysis is bound up with the particular facts of each case. Nevertheless,
[i]n engaging in these essentially ad hoc, factual inquiries, the [Supreme] Court’s decisions have identified several factors that have particular significance. The economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations are, of course, relevant considerations. See Goldblatt v. Hempstead, [369 U.S. 590,] 594 [82 S.Ct. 987, 990, 8 L.Ed.2d 130]. So, too, is the character of the governmental action. A “taking” may-more readily be found when the interference with property can be characterized as a physical invasion by government, see, e.g., United States v. Gausby, 328 U.S. 256 [66 S.Ct. 1062, 90 L.Ed. 1206] (1946), than when interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good.
Penn Central, supra, 438 U.S. at 124, 98 S.Ct. at 2659. Again, in Kaiser Aetna v. United States, 444 U.S. 164, 175, 100 S.Ct. 383, 390, 62 L.Ed.2d 332, the Supreme Court prescribed the two factual foci for a taking determination: “[1] the economic impact of the regulation, its interference with reasonable investment backed expectations and [2] the character of the governmental action * * Application of those factors to Thorp’s security interest in the Giffords’ household goods shows that the lien avoidance permitted by Section 522(f) does not contravene the taking clause.
The “Property” Interest Affected
First, the “investment backed expectations” interfered with are less than substantial. The cases that Thorp cites in which the Supreme Court found unconstitutional takings of liens are distinguishable because they involved much more substantial interests. Thorp’s nonpossessory, nonpurchasemoney security interest is far from “property” of the same importance as the farm mortgages taken in Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555, 55 S.Ct. 854, 79 L.Ed. 1593, or the material-men’s liens on ships taken in Armstrong v. United States, 364 U.S. 40, 80 S.Ct. 1563, 4 L.Ed.2d 1554. The types of liens in Rad-ford and Armstrong attach to property of the debtor that has directly benefited from the loan or work done. A farm, for example, is mortgaged to buy land, seed, fertilizer or tools. A materialman’s lien attaches to a ship because the materialman has supplied the ship with material or labor. In either case, if the underlying debt is unpaid the creditor has a direct property interest in the objects that were purchased or created with the loaned capital or effort.
In contrast to such purchase-money interests, Thorp’s expectations reside in the threat of foreclosure rather than in the collateral. Unlike the advances in Rad-ford and Armstrong, the borrowed money here was not lent to purchase or improve the household goods listed in the security agreement. The Thirteenth Amendment prohibition against slavery and involuntary servitude prevents a creditor from taking a property interest in the direct beneficiary of his loan, the consumer. Therefore, as here, the creditor must settle for a security interest unrelated to the debt, such as in home furnishings needed by the consumer for ordinary living, and the creditor’s “reasonable investment backed expectations” are reduced accordingly. As several bankruptcy courts have recognized:
(1) there is no direct relationship between the value of the household goods taken as collateral for the consumer loan and the amount of the loan as exists [, for example,] in a mortgage of real estate;
(2) the value of the household goods is often nominal whereas realty has a measurable value comparable to the amount of the loan secured; and (3) the lender making small consumer loans, unlike a mortgagee, does not view a security interest in household goods as a potential substitute for the debt. * * * [T]hese courts have concluded that, since the household goods given as security have little or no actual monetary value to the creditor, whatever property interest the creditor has in the collateral does not rise to the level of a mortgagee’s property rights in realty.
Matter of Ward, 14 B.R. 549, 561 (S.D.Ga. 1981), summarizing In re Pillow, 8 B.R. 404, 418-420 (Bkrtcy.D.Utah 1981); In re Goodrich, 7 B.R. 590 (Bkrtcy.S.D.Ohio 1980); In re Webber, 7 B.R. 580, 584-586 (Bkrtcy.D.Or.1980); In re Curry, 5 B.R. 282 (Bkrtcy.N. D.Ohio 1980); and In re Rutherford, 4 B.R. 510 (Bkrtcy.S.D.Ohio 1980).
Thorp contends that the market value of the collateral is irrelevant to whether its security interest should be characterized as “property” and whether the government must pay for an injury to the security interest. The intervenor United States, on the other hand, argues that Thorp’s lien is merely an incident to a contractual right to repayment of a debt. Of course, the academic difference between contract and property rights is that the federal government may freely impair only the former, and even among private persons, contract rights are freely avoidable at “market value” whereas the owner of a property right may demand any payment to release the right or refuse to part with the property at
any price. See Calabresi & Melamed, Property Rules, Liability Rules and Inalienability: One View of the Cathedral, 85 Harv.L. Rev. 1089 (1972). The “property” interest that Thorp asserts here is that it should be allowed to continue threatening to take possession of the household goods as a means of inducing the Giffords to repay the $3,000. The value of such a “property” interest is independent of the “contract” value of the lien, i.e., the actual market value of the household goods. By failing to request the United States to compensate for the alleged taking, Thorp in effect concedes that it has no interest in the latter amount. Moreover, Congress found during its legislative fact-gathering that creditors such as Thorp have no intention of repossessing the collateral.
The taking clause confuses Thorp’s dichotomy between contract and property, however, insofar as it would permit the government to take liens for a public purpose upon payment of only “just compensation.” Under the taking clause, the value of Thorp’s security interest can in no event be greater than its fair market or “just” value, which would be the market value of the collateral. See Cudahy Bros. Co. v. United States, 155 F.2d 905, 906-907 (7th Cir. 1946) (“just compensation includes all elements of value that inhere in the property, but it does not exceed market value fairly determined”); In re Pillow, 8 B.R. 404, 411 (Bkptcy.D.Utah 1981) (“Historically, lien rights have entitled their holders to the value of collateral and no more in bankruptcy”). There would be no justice in compensating Thorp based on some extortion value of the security interest. See Gordon, Unconscionability in Bankruptcy: The Federal Contribution to Commercial Decency, 66 Nw.U.L.Rev. 741, 765 (1972). Thorp knew or should have known at the time it entered into this security agreement that Congress was in the process of amending the bankruptcy laws to permit avoidance of such security interests. At best, assuming the courts would hold that Section 522(f) effects a taking, Thorp might have anticipated recovering as “just compensation” the value of the collateral. But since by all estimates the value of the collateral involved here is insignificant, Thorp’s “reasonable investment backed expectations” were insignificant also.
Even if the label “property interest” is not illusory, the impact of Section 522(f) upon Thorp’s lien is insubstantial. First, Section 522(f) allows avoidance of a lien only to the extent that the debtor has an exemption under Section 522(b), here for up to $200 per item. The lien is not avoidable beyond that amount, and accordingly Section 522(f) only minimally affects a creditor whose investment-backed expectations reside in truly valuable collateral. Second, Section 522(f) does not apply until there is a bankruptcy, by which time the creditor’s expectations of repayment are surely at a minimum. In this case, Thorp had some 20 months following enactment of Section 522(f) prior to the Giffords’ bankruptcy during which to watch the Giffords more closely, and in the case of their default to enforce the security interest or threaten to do so. Although we do not know the facts in the instant case, ordinarily we might suppose that a debtor misses payments and is dunned by his creditors prior to filing for bankruptcy. If that were the case here, this particular lending agreement would have allowed Thorp to demand immediate repayment of the outstanding indebtedness. Thorp might also have attempted to negotiate a different lien on non-exempt property of the Giffords. Cf. Texaco, Inc. v. Short, 454 U.S. 516, 530-31, 102 S.Ct. 781, 792-93, 70 L.Ed.2d 738 (1982) (Indiana Mineral Lapse Act does not effect a taking because plaintiff failed to take advantage of an opportunity to take action that would have prevented loss). Finally, Congress has not entirely destroyed Thorp’s expectation of repayment but instead has substituted for it the rights of an unsecured creditor, which need not be equal in value to the expectations allegedly taken. “While these rights may well not have constituted ‘just compensation’ if a ‘taking’ had occurred, the rights nevertheless undoubtedly mitigate whatever financial burdens the law has imposed on [Thorp] and, for that reason, are to be
Question: What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number.
Answer:
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songer_othcrim
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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 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".
Dudley WIDEMAN, Administrator of the Estate of Claude Wideman, Deceased, Plaintiff-Appellant, v. MISSISSIPPI VALLEY GAS COMPANY, Defendant-Appellee.
No. 73-3574.
United States Court of Appeals, Fifth Circuit.
Jan. 30, 1975.
William S. Lawson, John L. Long, Tu-pelo, Miss., for plaintiff-appellant.
John M. Kuykendall, Jr., Minor C. Summers, Jr., Jackson, Miss., Ralph L. Holland, Tupelo, Miss., for defendant-ap-pellee.
Before COLEMAN, CLARK and RO-NEY, Circuit Judges.
RONEY, Circuit Judge:
Claude Wideman was killed in an explosion and fire resulting when a small road grader he was operating on a private residential lot hit an underground gas line. The outcome of this appeal turns on a determination of the standard of care owed to Wideman by the defendant gas company under Mississippi law. The jury, instructed that the gas company owed a duty of ordinary care, apparently decided that the gas line easement was not adequately marked and the line itself was not a sufficient depth below the ground. Wideman’s estate was awarded the sum of $100,000. Notwithstanding this jury verdict, the trial court entered a judgment for defendant on the ground that the jury had been incorrectly instructed as to the standard of care. The court held that the gas company owed no higher duty under the circumstances than to refrain from wanton or willful injury to decedent, and that the evidence was not sufficient for jury consideration under such correct standard. We affirm.
Essentially, we decide two points: first, a gas company with gas lines buried within the boundaries of a legal easement owes to a person making an unforeseeable extraordinary use of the surface no duty higher than to refrain from willful and wanton injury, unless and until it has notice of that proposed use; and second, on the record before us, the trial court was correct in the determination that the evidence was such that reasonable men could not differ on the facts that the gas company had received no notice of the extraordinary use, and that it had not breached its duty to refrain from willful or wanton conduct.
In 1930 Mississippi Valley Gas Company’s predecessor-in-interest acquired a valid gas line right-of-way across some property in northern Mississippi which is presently owned by Tommy D. Beasley. The recorded easement conveyed a “right of way to lay, construct, maintain and operate a pipeline” across lands containing seventeen acres described in quarter section terms. The exact path of the easement was not described. The owner reserved the “use and enjoyment of said premises except for the purposes herein conveyed to purchaser.” The document further provided that the pipeline was to be laid below plow depth (agreed by the parties to this litigation to be below six inches), with the following paragraph:
It is understood and agreed that purchaser (the gas company) shall bury said pipe line below plow depth wherever it crosses any land that may be cleared and in cultivation, and shall also bury said pipe line below plow depth across any land that may be in future cleared and put in cultivation.
In compliance with the depth requirement, the gas line was originally laid about 36 inches below the surface. It has continued in use from its installation until the time of the occurrence of the accident involved in this case. During that period the character of the land changed from wilderness to residential, and a house was constructed thereon in 1946. The evidence was such that the jury could have inferred that the surface of the land had changed to the point that the pipe line may have been only five or six inches deep at the time of the accident. The area was grown over and had been undisturbed for some time. Mississippi Valley made periodic foot patrols along the gas line to determine potential problems from erosion, construction, and the like, but there were no signs marking the path of the line except where it crossed a public highway some distance from the point of the accident.
On April 17, 1971, Claude Wideman was operating a road grader on the Beasley property in response to Beasley’s request for county assistance in alleviating a drainage problem created by water running off the city-maintained road immediately in front of his property. While Beasley was aware of the general location of the pipe line on his property, neither he nor decedent contacted Mississippi Valley to ascertain the exact location of the line. Mississippi Valley was not otherwise made aware of the fact that decedent intended to operate the road grader over the gas line. After making a few passes with the grader, decedent struck the gas line with the grader blade and the line ruptured, causing an explosion and fire which resulted in decedent’s unfortunate death a short time later.
We agree with District Judge William C. Keady that under the circumstances of the above accident, the defendant was entitled to judgment as a matter of law. Absent willful or wanton misconduct, the defendant could not be charged with fault of inaction until it had notice of the “hazard about to be experienced.” Although there is little Mississippi law on the subject, the Supreme Court of Mississippi appears to recognize that in the operation of a gas line, some accidents and injuries are too remote and unforeseeable for a defendant to be held legally liable therefor. As said in a recent case involving a pipe line accident:
“The rule is firmly established in this state, as in nearly all the common law states, that in order that a person who does a particular act which results in injury to another shall be liable therefor, the act must be of such character, and done in such a situation, that the person doing it should reasonably have anticipated that some injury to another will probably result therefrom, D’Antoni v. Albritton, 156 Miss. 758, 766, 126 So. 836; Williams v. Lumpkin, 169 Miss. 146, 152, 152 So. 842; but that the actor is not bound to a prevision or anticipation which would include an unusual, improbable, or extraordinary occurrence, although such happening is within the range of possibilities. Illinois Cent. R. Co. v. Bloodworth, 166 Miss. 602, 617, 145 So. 333; ...”
Larco Drilling & Exploration Corp. v. Brown, 267 So.2d 308, 310 (Miss.1972), quoting Mauney v. Gulf Refining Co., 193 Miss. 421, 9 So.2d 780 (1942) (emphasis added).
In Larco Drilling, the Supreme Court held that a county employee operating a bulldozer which struck the defendant’s gas line thus causing the operator’s injuries was a mere licensee and reversed a verdict in his favor and rendered judgment for the owner of the gas line. The county employee was attempting to fight a forest fire at the time but his presence was unknown to the gas line owner.
Unless the likelihood of some accident or injury of the type which occurred in this case was reasonably foreseeable by Mississippi Valley, it was under no duty to take action to avoid such an accident. Mississippi Valley had duly recorded its easement on the county land records, thus giving full legal notice of the presence of the pipe line on the Beasley property. It could reasonably be expected that anyone planning use of the property would be aware of the pipe line’s existence, if not its location. It could not be foreseeable by defendant that one • knowing of the pipe line would excavate the property without inquiring of Mississippi Valley of the exact pipe line location.
There can be little doubt that had Beasley or decedent inquired about the location of the gas line or in any other way conveyed to Mississippi Valley any information from which it could have concluded that the easement was to be graded, Mississippi Valley would have been under a duty to take some action— for example, warning of the danger involved, marking the location of the line, or relocating it at a greater depth — to prevent an accident such as the one which did occur. See Young v. Herrington, 312 S.W.2d 685, 687 (Tex.Civ.App. 1958). But the record is clear that no one did anything to place Mississippi Valley on actual or constructive notice of the possibility of this particular road grader activity. Without such notice, a duty for defendant to take action could arise only if this type of accident and injury could have been reasonably anticipated. No duty would arise as to any “unusual, improbable, extraordinary and freakish accident” that, even though possible, a reasonable man would not have considered probable. Larco Drilling, supra, 267 So.2d at 310.
Other than Larco Drilling, there is little authority from the Mississippi courts from which to evaluate what they would consider as meeting this threshold test of foreseeability in a case of this type. The courts of Texas, which have handled a large number of oil and gas transmission line cases, have had greater opportunity to develop the scope of foreseeability in this unique area.
Texas views the issue of reasonable .foreseeability in pipe line cases as centering on whether the use being made of the surface of the right-of-way is one that is ordinary, or one that is extraordinary, considering the character and location of the land. The operator has a duty to maintain the pipe line so that it will be safe for those making an ordinary use of the land, but anyone making an extraordinary use of the surface has the initial burden of either avoiding the pipe line or notifying the operator, who must then take steps to prevent contact. Phillips Pipe Line Co. v. Razo, 420 S.W.2d 691 (Tex.1967); Pioneer Natural Gas Co. v. K & M Paving Co., 374 S.W.2d 214 (Tex.1963). The language used by the Texas Supreme Court is very similar to that used by the Supreme Court of Mississippi in Larco Drilling, suggesting the two courts substantively view the issue in identical terms. The initial question becomes, then, whether the explosion in the instant case was caused by an ordinary use of the surface.
We are not here confronted with a road grader performing routine maintenance along a public thoroughfare, compare Concho Construction Co. Inc. v. Oklahoma Natural Gas Co., 201 F.2d 673 (10th Cir. 1953), but with a scraper operating some distance from and not parallel to the road. Bee generally, Annot., 30 A.L.R.3d 685 (1970). Plaintiff asserts that the use of county graders to alleviate drainage problems on private property is not uncommon in northeast Mississippi, but this does not make the use of construction equipment “ordinary” in the sense that it should be anticipated by the defendant without special notice. Cf. Phillips Pipe Line, supra.
“Ordinary” connotes a use that is “usual,” “regular,” and “normal,” something of a continuing nature so that a person should be familiar with it. A basement may be dug when a house is built, but a house is not built on any particular lot with sufficient frequency to say that the digging of the basement is an “ordinary use” of that lot. Since Mississippi Valley’s liability must be defined by its conduct with respect to the Beasley property, the issue is what might be an ordinary use of the property-
What could ordinarily be expected in a semi-rural area might be the operation of automobiles on a dirt driveway over the pipe line, or someone planting a garden. We do not consider the excavation made of the surface here, however, as such that the defendant should be charged with protecting against it in the operation and maintenance of its pipe line. To- hold it accountable in this circumstance would impose too heavy a responsibility for an occurrence that was only remotely and slightly probable under Larco Drilling.
Additional support for this view is found in that line of cases involving the operation and maintenance of uninsulated electric transmission lines. In these cases the courts appear to focus on the location of the accident and the foreseeability, in that location, of the conduct of the injured party from which the injury arises. See generally Mississippi Power & Light Co. v. Shepard, 285 So.2d 725 (Miss.1973).
Affirmed.
Question: Did the court rule for the defendant on grounds other than procedural grounds? For example, right to speedy trial, double jeopardy, confrontation, retroactivity, self defense. This includes the question of whether the defendant waived the right to raise some claim.
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
songer_r_fed
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Anthony D’ALESSIO, Petitioner-Appellant, v. John M. LEHMANN, District Director of Immigration and Naturalization Service, Defendant-Appellee.
No. 14350.
United States Court of Appeals Sixth Circuit.
April 26, 1961.
Frank E. Steel, Akron, Ohio, for appellant.
George W. Morrison, Asst. U. S. Atty., Cleveland, Ohio (Russell E. Ake, U. S. Atty., Cleveland, Ohio, on the brief), for appellee.
Before MARTIN, McALLISTER and WEICK, Circuit Judges.
PER CURIAM.
This appeal is from an order of the District Court denying a petition to stay an order of deportation. The sole issue was whether appellant is a citizen of the United States. If an alien, he was subject to deportation under the provisions of Section 1251(a) (4), Title 8 U.S.C.A.
Appellant’s grandfather was naturalized as a citizen of the United States on July 1,1899. His father became a citizen of the United States under the provisions of R.S. 1993 at the time of his birth in Italy. Appellant’s mother became a citizen at the time of her marriage on May 15, 1921, R.S. 1994. Appellant was born in Italy on June 10, 1922. At the time of appellant’s birth, his father resided in Italy and did not come to the United States until September 6, 1922. Appellant entered this country with his mother on November 17, 1929. He was admitted for permanent residence as a non-quota immigrant. The mother was issued a United States passport in Italy. Appellant has resided in the United States continuously after his admittance. He registered for the draft in 1942 and was inducted into the Army in 1943. He received a dishonorable discharge from the Army in August 1946. The basis for his deportation as an alien was two felony convictions in Ohio.
District Judge McNamee gave careful consideration to the claims of the appellant. In a well reasoned opinion, supported by authority, he concluded that since appellant’s father resided in Italy at the time of appellant’s birth, the father’s rights of citizenship did not descend to him and that appellant is an alien. Weedin v. Chin Bow, 1927, 274 U.S. 657, 47 S.Ct. 772, 71 L.Ed. 1284; United States v. Wong Kim Ark, 169 U.S. 649, 18 S.Ct. 456, 42 L.Ed. 890.
We are in agreement with the conclusions reached by Judge McNamee and his judgment is affirmed.
Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
|
sc_caseorigin
|
057
|
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.
February 28, 1955.
No. 230.
Mitchell, Secretary of Labor, v. Joyce Agency, Inc.
Argued February 4, 7, 1955.
Decided February 28, 1955.
Bessie Margolin argued the cause for petitioner.
Certiorari, 348 U. S. 813, to the United States Court of Appeals for the Seventh Circuit.
Per Curiam:
The judgment of the Court of Appeals is reversed. Kirschbaum Co. v. Walling, 316 U. S. 517; Walling v. Jacksonville Paper Co., 317 U. S. 564; Phillips Co. v. Walling, 324 U. S. 490. The judgment of the District Court is affirmed, and the case is remanded to the District Court. The motion of the petitioner to make Goldblatt Bros., Inc., a party in this Court is denied without prejudice to the right of the petitioner to renew said motion in the District Court, or to take such other proceedings for enforcement of the judgment as the petitioner may deem advisable and proper in the circumstances. See Walling v. Reuter, Inc., 321 U. S. 671.
With her on the brief were Solicitor General Sobeloff, Sylvia S. Ellison and Harold S. Saxe. Stanford Clinton argued the cause for respondent.
With him on the brief was Robert A. Sprecher.
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:
|
sc_respondent
|
144
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the respondent of the case. The respondent is the party being sued or tried and is also known as the appellee. Characterize the respondent as the Court's opinion identifies them.
Identify the respondent by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the respondent is actually single entitiy or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single respondent, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name.
HELLING et al. v. McKINNEY
No. 91-1958.
Argued January 13, 1993
Decided June 18, 1993
White, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Blackmun, Stevens, O’Connor, Kennedy, and Souter, JJ., joined. Thomas, J., filed a dissenting opinion, in which Scalia, J., joined, post, p. 37.
Frankie Sue Del Papa, Attorney General of Nevada, argued the cause for petitioners. With her on the briefs were Brooke A. Nielsen, Assistant Attorney General, David F. Sarnowski, Chief Deputy Attorney General, and Anne B. Cathcart, Deputy Attorney General.
Deputy Solicitor General Roberts argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Starr, Assistant Attorney General Gerson, Edwin S. Kneedler, William Ranter, and Peter R. Maier.
Cornish F. Hitchcock argued the cause for respondent. With him on the brief was Alan B. Morrison.
A brief of amici curiae urging reversal was filed for the State of Hawaii et al. by Warren Price III, Attorney General of Hawaii, and Steven S. Michaels, Deputy Attorney General, James Evans, Attorney General of Alabama, Charles E. Cole, Attorney General of Alaska, Grant Woods, Attorney General of Arizona, Winston Bryant, Attorney General of Arkansas, Gale A Norton, Attorney General of Colorado, Robert A Butter-worth, Attorney General of Florida, Michael J. Bowers, Attorney General of Georgia, Larry EchoHawk, Attorney General of Idaho, Roland W. Burris, Attorney General of Illinois, Linley E. Pearson, Attorney General of Indiana, Robert T. Stephan, Attorney General of Kansas, Chris Gorman, Attorney General of Kentucky, Michael E. Carpenter, Attorney General of Maine, J. Joseph Curran, Jr., Attorney General of Maryland, Scott Harshbarger, Attorney General of Massachusetts, Mike Moore, Attorney General of Mississippi, William Webster, Attorney General of Missouri, Marc Racicot, Attorney General of Montana, John P. Arnold, Attorney General of New Hampshire, Robert J. Del Tufo, Attorney General of New Jersey, Tom Udall, Attorney General of New Mexico, Lacy H. Thornburg, Attorney General of North Carolina, Nicholas J. Spaeth, Attorney General of North Dakota, Charles S. Crookham, Attorney General of Oregon, Ernest D. Preate, Jr., Attorney General of Pennsylvania, Travis Medlock, Attorney General of South Carolina, Mark Barnett, Attorney General of South Dakota, Charles W. Burson, Attorney General of Tennessee, Paul Van Dam, Attorney General of Utah, Mary Sue Terry, Attorney General of Virginia, Mario J. Palumbo, Attorney General of West Virginia, James E. Doyle, Attorney General of Wisconsin, Joseph B. Meyer, Attorney General of Wyoming, John Payton, Corporation Counsel of District of Columbia, and Charles Reischel, Deputy Corporation Counsel, Jorge Perez-Diaz, Attorney General of Puerto Rico, Tautai A F. Fa’alevao, Attorney General of American Samoa, Elizabeth Barrett-Anderson, Attorney General of Guam, and Rosalie Simmonds Ballentine, Attorney General of the Virgin Islands.
John A. Powell, Steven A. Shapiro, and David C. Fathi filed a brief for the American Civil Liberties Union et al. as amici curiae urging affirmance.
Justice White
delivered the opinion of the Court.
This case requires us to decide whether the health risk posed by involuntary exposure of a prison inmate to environmental tobacco smoke (ETS) can form the basis of a claim for relief under the Eighth Amendment.
I
Respondent is serving a sentence of imprisonment in the Nevada prison system. At the time that this case arose, respondent was an inmate in the Nevada State Prison in Carson City, Nevada. Respondent filed a pro se civil rights complaint in United States District Court under Rev. Stat. § 1979, 42 U. S. C. § 1983, naming as defendants the director of the prison, the warden, the associate warden, a unit counselor, and the manager of the prison store. The complaint, dated December 18, 1986, alleged that respondent was assigned to a cell with another inmate who smoked five packs of cigarettes a day. App. 6. The complaint also stated that cigarettes were sold to inmates without properly informing of the health hazards a nonsmoking inmate would encounter by sharing a room with an inmate who smoked, id., at 7-8, and that certain cigarettes burned continuously, releasing some type of chemical, id., at 9. Respondent complained of certain health problems allegedly caused by exposure to cigarette smoke. Respondent sought injunctive relief and damages for, inter alia, subjecting him to cruel and unusual punishment by jeopardizing his health. Id., at 14.
The parties consented to a jury trial before a Magistrate. The Magistrate viewed respondent’s suit as presenting two issues of law: (1) whether respondent had a constitutional right to be housed in a smoke-free environment, and (2) whether defendants were deliberately indifferent to respondent’s serious medical needs. App. to Pet. for Cert. D2-D3. The Magistrate, after citing applicable authority, concluded that respondent had no constitutional right to be free from cigarette smoke: While “society may be moving toward an opinion as to the propriety of non-smoking and a smoke-free environment,” society cannot yet completely agree on the resolution of these issues. Id., at D3, D6. The Magistrate found that respondent nonetheless could state a claim for deliberate indifference to serious medical needs if he could prove the underlying facts, but held that respondent had failed to present evidence showing either medical problems that were traceable to cigarette smoke or deliberate indifference to them. Id., at D6-D10. The Magistrate therefore granted petitioners’ motion for a directed verdict and granted judgment for the defendants. Id., at DIO.
The Court of Appeals affirmed the Magistrate’s grant of a directed verdict on the issue of deliberate indifference to respondent’s immediate medical symptoms. McKinney v. Anderson, 924 F. 2d 1500, 1512 (CA9 1991). The Court of Appeals also held that the defendants were immune from liability for damages since there was at the time no clearly established law imposing liability for exposing prisoners to ETS. Although it agreed that respondent did not have a constitutional right to a smoke-free prison environment, the court held that respondent had stated a valid cause of action under the Eighth Amendment by alleging that he had been involuntarily exposed to levels of ETS that posed an unreasonable risk of harm to his future health. Id., at 1509. In support of this judgment, the court noticed scientific opinion supporting respondent’s claim that sufficient exposure to ETS could endanger one’s health. Id., at 1505-1507. The court also concluded that society’s attitude had evolved to the point that involuntary exposure to unreasonably dangerous levels of ETS violated current standards of decency. Id., at 1508. The court therefore held that the Magistrate erred by directing a verdict without permitting respondent to prove that his exposure to ETS was sufficient to constitute an unreasonable danger to his future health.
Petitioners sought review in this Court. In the meantime, this Court had decided Wilson v. Seiter, 501 U. S. 294 (1991), which held that, while the Eighth Amendment applies to conditions of confinement that are not formally imposed as a sentence for a crime, such claims require proof of a subjective component, and that where the claim alleges inhumane conditions of confinement or failure to attend to a prisoner’s medical needs, the standard for that state of mind is the “deliberate indifference” standard of Estelle v. Gamble, 429 U. S. 97 (1976). We granted certiorari in this case, vacated the judgment below, and remanded the case to the Court of Appeals for further consideration in light of Seiter. 502 U. S. 903 (1991).
On remand, the Court of Appeals noted that Seiter added an additional subjective element that respondent had to prove to make out an Eighth Amendment claim, but did not vitiate its determination that it would be cruel and unusual punishment to house a prisoner in an environment exposing him to levels of ETS that pose an unreasonable risk of harming his health — the objective component of respondent’s Eighth Amendment claim. McKinney v. Anderson, 959 F. 2d 853, 854 (CA9 1992). The Court of Appeals therefore reinstated its previous judgment and remanded for proceedings consistent with its prior opinion and with Seiter. 959 F. 2d, at 854.
Petitioners again sought review in this Court, contending that the decision below was in conflict with the en banc decision of the Court of Appeals for the Tenth Circuit in Clemmons v. Bohannon, 956 F. 2d 1523 (1992). We granted certiorari. 505 U. S. 1218 (1992). We affirm.
II
The petition for certiorari which we granted not only challenged the Court of Appeals’ holding that respondent had stated a valid Eighth Amendment claim, but also asserted, as did its previous petition, that it was improper for the Court of Appeals to decide the question at all. Pet. for Cert. 25-29. Petitioners claim that respondent’s complaint rested only on the alleged current effects of exposure to cigarette smoke, not on the possible future effects; that the issues framed for trial were likewise devoid of such an issue; and that such a claim was not presented, briefed, or argued on appeal and that the Court of Appeals erred in sua sponte deciding it. Ibid. Brief for Petitioners 46-49. The Court of Appeals was apparently of the view that the claimed entitlement to a smoke-free environment subsumed the claim that exposure to ETS could endanger one’s future health. From its examination of the record, the court stated that “[b]oth before and during trial, McKinney sought to litigate the degree of his exposure to ETS and the actual and potential effects of such exposure on his health,” 924 F. 2d, at 1503; stated that the Magistrate had excluded evidence relating to the potential health effects of exposure to ETS; and noted that two of the issues on appeal addressed whether the Magistrate erred in holding as a matter of law that compelled exposure to ETS does not violate a prisoner’s rights and whether it was error to refuse to appoint an expert witness to testify about the health effects of such exposure. While the record is ambiguous and the Court of Appeals might well have affirmed the Magistrate, we hesitate to dispose of this case on the basis that the court misread the record before it. We passed over the same claim when we vacated the judgment below and remanded when the case was first before us, Pet. for Cert., O. T. 1991, No. 91-269, pp. 23-26, and the primary question on which certiorari was granted, and the question to which petitioners have devoted the bulk of their briefing and argument, is whether the court below erred in holding that McKinney had stated an Eighth Amendment claim on which relief could be granted by alleging that his compelled exposure to ETS poses an unreasonable risk to his health.
Ill
It is undisputed that the treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment. As we said in DeShaney v. Winnebago County Dept. of Social Services, 489 U. S. 189, 199-200 (1989):
“[W]hen the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well being. . . . The rationale for this principle is simple enough: when the State by the affirmative exercise of its power so restrains an individual’s liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs — e. g., food, clothing, shelter, medical care, and reasonable safety — it transgresses the substantive limits on state action set by the Eighth Amendment. .. .”
Contemporary standards of decency require no less. Estelle v. Gamble, 429 U. S., at 103-104. In Estelle, we concluded that although accidental or inadvertent failure to provide adequate medical care to a prisoner would not violate the Eighth Amendment, “deliberate indifference to serious medical needs of prisoners” violates the Amendment because it constitutes the unnecessary and wanton infliction of pain contrary to contemporary standards of decency. Id., at 104, Wilson v. Seiter, 501 U. S. 294 (1991), later held that a claim that the conditions of a prisoner’s confinement violate the Eighth Amendment requires an inquiry into the prison officials’ state of mind. “ ‘Whether one characterizes the treatment received by [the prisoner] as inhuman conditions of confinement, failure to attend to his medical needs, or a combination of both, it is appropriate to apply the “deliberate indifference” standard articulated in Estelle.’” Id., at 303.
Petitioners are well aware of these decisions, but they earnestly submit that unless McKinney can prove that he is currently suffering serious medical problems caused by exposure to ETS, there can be no violation of the Eighth Amendment. That Amendment, it is urged, does not protect against prison conditions that merely threaten to cause health problems in the future, no matter how grave and imminent the threat.
We have great difficulty agreeing that prison authorities may not be deliberately indifferent to an inmate’s current health problems but may ignore a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year. In Hutto v. Finney, 437 U. S. 678, 682 (1978), we noted that inmates in punitive isolation were crowded into cells and that some of them had infectious maladies such as hepatitis and venereal disease. This was one of the prison conditions for which the Eighth Amendment required a remedy, even though it was not alleged that the likely harm would occur immediately and even though the possible infection might not affect all of those exposed. We would think that a prison inmate also could successfully complain about demonstrably unsafe drinking water without waiting for an attack of dysentery. Nor can we hold that prison officials may be deliberately indifferent to the exposure of inmates to a serious, communicable disease on the ground that the complaining inmate shows no serious current symptoms.
That the Eighth Amendment protects against future harm to inmates is not a novel proposition. The Amendment, as we have said, requires that inmates be furnished with the basic human needs, one of which is “reasonable safety.” DeShaney, supra, at 200. It is “cruel and unusual punishment to hold convicted criminals in unsafe conditions.” Youngberg v. Romeo, 457 U. S. 307, 315-316 (1982). It would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them. The Courts of Appeals have plainly recognized that a remedy for unsafe conditions need not await a tragic event. Two of them were cited with approval in Rhodes v. Chapman, 452 U. S. 337, 352, n. 17 (1981). Gates v. Collier, 501 F. 2d 1291 (CA5 1974), held that inmates were entitled to relief under the Eighth Amendment when they proved threats to personal safety from exposed electrical wiring, deficient firefighting measures, and the mingling of inmates with serious contagious diseases with other prison inmates. Ramos v. Lamm, 639 F. 2d 559, 572 (CA10 1980), stated that a prisoner need not wait until he is actually assaulted before obtaining relief. As respondent points out, the Court of Appeals cases to the effect that the Eighth Amendment protects against sufficiently imminent dangers as well as current unnecessary and wanton infliction of pain and suffering are legion. See Brief for Respondent 24-27. We thus reject petitioners’ central thesis that only deliberate indifference to current serious health problems of inmates is actionable under the Eighth Amendment.
The United States as amicus curiae supporting petitioners does not contend that the Amendment permits “even those conditions of confinement that truly pose a significant risk of proximate and substantial harm to an inmate, so long as the injury has not yet occurred and the inmate does not yet suffer from its effects.” Brief for United States as Amicus Curiae 19. Hutto v. Finney, the United States observes, teaches as much. The Government recognizes that there may be situations in which exposure to toxic or similar substances would “present a risk of sufficient likelihood or magnitude — and in which there is a sufficiently broad consensus that exposure of anyone to the substance should therefore be prevented — that” the Amendment’s protection would be available even though the effects of exposure might not be manifested for some time. Brief for United States as Amicus Curiae 19. But the United States submits that the harm to any particular individual from exposure to ETS is speculative, that the risk is not sufficiently grave to implicate a “ ‘serious medical nee[d],’ ” and that exposure to ETS is not contrary to current standards of decency. Id., at 20-22. It would be premature for us, however, as a matter of law to reverse the Court of Appeals on the basis suggested by the United States. The Court of Appeals has ruled that McKinney’s claim is that the level of ETS to which he has been involuntarily exposed is such that his future health is unreasonably endangered and has remanded to permit McKinney to attempt to prove his case. In the course of such proof, he must also establish that it is contrary to current standards of decency for anyone to be so exposed against his will and that prison officials are deliberately indifferent to his plight. We cannot rule at this juncture that it will be impossible for McKinney, on remand, to prove an Eighth Amendment violation based on exposure to ETS.
IV
We affirm the holding of the Court of Appeals that McKinney states a cause of action under the Eighth Amendment by alleging that petitioners have, with deliberate indifference, exposed him to levels of ETS that pose an unreasonable risk of serious damage to his future health. We also affirm the remand to the District Court to provide an opportunity for McKinney to prove his allegations, which will require him to prove both the subjective and objective elements necessary to prove an Eighth Amendment violation. The District Court will have the usual authority to control the order of proof, and if there is a failure of proof on the first element that it chooses to consider, it would not be an abuse of discretion to give judgment for petitioners without taking further evidence. McKinney must also prove that he is entitled to the remedy of an injunction.
With respect to the objective factor, McKinney must show that he himself is being exposed to unreasonably high levels of ETS. Plainly relevant to this determination is the fact that McKinney has been moved from Carson City to Ely State Prison and is no longer the cellmate of a five-pack-a-day smoker. While he is subject to being moved back to Carson City and to being placed again in a cell with a heavy smoker, the fact is that at present he is not so exposed. Moreover, the director of the Nevada State Prisons adopted a formal smoking policy on January 10, 1992. This policy restricts smoking in “program, food preparation/serving, recreational and medical areas” to specifically designated areas.
It further provides that wardens may, contingent on space availability, designate nonsmoking areas in dormitory settings, and that institutional classification committees may make reasonable efforts to respect the wishes of nonsmokers where double bunking obtains. See App. to Brief for United States as Amicus Curiae A1-A2. It is possible that the new policy will be administered in a way that will minimize the risk to McKinney and make it impossible for him to prove that he will be exposed to unreasonable risk with respect to his future health or that he is now entitled to an injunction.
Also with respect to the objective factor, determining whether McKinney’s conditions of confinement violate the Eighth Amendment requires more than a scientific and statistical inquiry into the seriousness of the potential harm and the likelihood that such injury to health will actually be caused by exposure to ETS. It also requires a court to assess whether society considers the risk that the prisoner complains of to be so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk. In other words, the prisoner must show that the risk of which he complains is not one that today’s society chooses to tolerate.
On remand, the subjective factor, deliberate indifference, should be determined in light of the prison authorities’ current attitudes and conduct, which may have changed considerably since the judgment of the Court of Appeals. Indeed, the adoption of the smoking policy mentioned above will bear heavily on the inquiry into deliberate indifference. In this respect we note that at oral argument McKinney’s counsel was of the view that depending on how the new policy was administered, it could be very difficult to demonstrate that prison authorities are ignoring the possible dangers posed by exposure to ETS. Tr. of Oral Arg. 33. The inquiry into this factor also would be an appropriate vehicle to consider arguments regarding the realities of prison administration.
V
The judgment of the Court of Appeals is affirmed, and the case is remanded for further proceedings consistent with this opinion.
So ordered.
This was true of the defendants’ alleged liability for housing respondent with a cellmate who smoked five packs of cigarettes each day.
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_direct1
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C
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for the defendant. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
Anthony David MARTINEZ, Appellee, v. John W. TURNER, Warden, Utah State Prison, Appellant.
No. 582-70.
United States Court of Appeals, Tenth Circuit.
June 8, 1972.
A. Daniel Rooney, Aurora, Colo., for appellee.
Lauren N. Beasley, Chief Asst. Atty. Gen. of Utah (Vernon B. Romney, Atty. Gen. of Utah, on brief), for appellant.
Before PHILLIPS, HILL and HOLLOWAY, Circuit Judges.
HOLLOWAY, Circuit Judge.
This appeal is taken from a judgment granting appellee Martinez a writ of ha-beas corpus. The trial court held a Utah robbery conviction null and void and ordered Martinez released. The judgment rested on conclusions that introduction in evidence of identification of Martinez at an improper line-up and introduction of a coat unlawfully seized violated appellee’s Federal constitutional rights under the Fourth and Fourteenth Amendments, among other things. Appellant challenges both of these holdings and the provision of the order for immediate release.
Martinez was convicted in November, 1967, of robbery. The conviction was appealed to the Supreme Court of Utah on the issues before us and others, and the conviction was affirmed. State v. Martinez, 23 Utah 2d 62, 457 P.2d 613. The Court held that the photograph of the line-up did not reveal the prejudice alleged. With respect to the coat, the Court held that the Utah trial court could reasonably have concluded that Martinez consented to its being taken; that it was in plain view; and that even if its admission was error, it was harmless. On the basis of these conclusions the Utah Supreme Court affirmed the State trial court’s ruling, admitting the evidence.
Following the unsuccessful direct appeal Martinez also sought habeas relief in the State courts, which was denied by the trial court and the Utah Supreme Court. These proceedings are not in our record, but we are advised of them by the briefs of both parties and there is no contention that Martinez has not exhausted his State remedies.
Martinez then commenced the instant habeas proceedings in the United States District Court for the District of Utah in April, 1970. The case was submitted to the Court by introduction of the lineup photograph, the record of the State Court motion to suppress hearing, and the trial transcript of the robbery case. On consideration of this record the trial court made the findings and conclusions on which the judgment appealed from was based.
The trial court found that Martinez was in custody under the robbery conviction from Salt Lake County, described above; that a motion to suppress was heard prior to the robbery trial and denied without findings or reasons; and that Martinez had presented an alibi defense to the robbery charge. It was found that subsequent to the robbery, Salt Lake City police officers went to the home of Martinez and were met at the door by his wife. The Court found that permission was requested to come into the home and that the officers were allowed to enter by Mrs. Martinez.
The Court further found that after the officers entered the home Martinez was questioned as to whether he had a coat fitting a particular description, which he acknowledged. No warnings of his constitutional rights were given. It was found that Martinez was asked if he would voluntarily attend a line-up; that Martinez initially indicated he would do so; that the officers also asked him to bring the coat they were interested in, which he repeatedly refused to do; that the officers directed him to do so several times; and that Martinez finally said: “If you want the coat take it.” The Court found that the officers then seized the coat and Martinez and left the premises, and that then Martinez indicated an unwillingness to attend the line-up was was immediately arrested.
The Court found- further that Martinez was taken to a line-up so that the robbery victim, Mr. Green, could identify the assailant; that Green had previously identified a picture looking like the robber, but had indicated he could not be sure of the identification and would have to see the individual. It was found that the line-up consisted of five persons; that, according to Green, the robber was approximately 5' 7", 140-150 pounds, and Mexican-American or Indian with a mustache; and that Green testified at the trial that no one else in the line-up appeared to be of Mexican or Indian descent or to have a mustache.
The Court found that the other persons in the line-up were substantially taller than Martinez, and that although one other person may have had some resemblance to being Mexican-American, Martinez stood out suggestively and prominently in the line-up as the only person fitting the description that Green had previously given. The Court concluded that the suggestiveness of the line-up constituted a denial of due process.
The Court further found that the coat had been introduced in evidence against Martinez, and was identified by Green as similar to that worn by the robber. It was further held that entrance into the home had not been permitted as a result of voluntary consent; that the coat had been surrendered only by Martinez indicating that the officers could take it after their repeated requests and orders that he bring it; and that there was no knowing and voluntary consent to seizure of the coat by Martinez, who was seventeen years of age. And it was held that admission of the coat in evidence could not be held harmless error beyond a reasonable doubt, and that the use of such evidence violated the Fourth and Fourteenth Amendments.
For reversal appellant argues first that the line-up procedure, considering the totality of the circumstances, was not so unnecessarily suggestive and conducive to irreparable mistaken identification as to be a denial of due process, relying on Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199.
There are some factors indicating that the procedures may not have been im-permissibly suggestive. Green had a good opportunity to observe the robber and had given a description closely resembling Martinez shortly after the robbery. That night the officer had shown Green some 30 to 50 photographs, but no identification was made. Later large numbers of photographs were shown to him during several visits, without identification being made then or at two lineups prior to the line-up where Martinez was identified. Finally two or three photographs were brought to him and one was identified. A further line-up was conducted that night where Martinez was identified. Thus, as the State argues, there are several facts supporting the view that the line-up procedures were not unfair, considering the totality of the circumstances.
However, the photograph of the line-up also reveals these facts. Among the five men in the line-up only one other had a fairly dark complexion and might be said to have a Mexican-American appearance, but he was several inches taller and noticeably slighter in build than Martinez. In addition, at the State Court hearing on the motion to suppress, Martinez testified that he and the other men in the line-up were asked to and did try on the trench coat in the presence of Green. Since Martinez was noticeably shorter than all the other men, the fit of the coat also tended to focus attention improperly on Martinez. See United States v. Wade, 388 U.S. 218, 233, 87 S.Ct. 1926, 18 L.Ed.2d 1149. There is also an indication in the record that an officer told Green that the suspects, perhaps two of them, would be in this line-up. Such an indication is also a suggestive factor to consider. See United States v. Gambrill, 146 U.S.App.D.C. 72, 449 F.2d 1148, 1151, n. 3. This line-up was about a month after the robbery.
Since the record consists solely of the transcripts and the photograph, we are in as good a position as the trial court to evaluate the evidence. Nevertheless, even where the record is wholly documentary our scope of review is enlarged only to the extent that no regard need be given the opportunity of the trial court to observe witnesses, and in such cases we nevertheless do not disturb the findings unless we have a definite and firm conviction that a mistake has been made. Mid-Continent Casualty Co. v. Everett, 340 F.2d 65, 70 (10th Cir.); Sta-Rite Industries, Inc. v. Johnson, 453 F.2d 1192 (10th Cir.). On this record we feel the findings as to the line-up are supported and not clearly erroneous. In view of the finding, which we accept, that Martinez stood out suggestively and prominently in the line-up as the only person fitting the description that Mr. Green had previously given, we agree that the procedure was unlawful. See Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402; Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247; Stovall v. Denno, supra; and Belton v. United States, 429 F.2d 933, 936 (10th Cir.).
Secondly, appellant says that the trial court erred in the findings and conclusions that the coat was improperly seized and that its use as evidence was not constitutionally permissible. Appellant argues that there was consent to taking of the coat and that, in any event, its taking was permissible under the plain view doctrine.
We have detailed the findings that the officers requested that Martinez take the coat to the station, which he refused to do; that the officers directed him to do so, and that he finally said, “If you want the coat, take it.” On examination of the record, we are satisfied that the findings are supported and not clearly erroneous and may not be disturbed. Rule 52(a) F.R.Civ.P.; Mid-Continenet Casualty Co. v. Everett, supra. In view of these findings, we agree that there was no lawful consent to seizure of the coat, since such consent must be unequivocal and freely given, without coercion. See Villano v. United States, 310 F.2d 680, 684 (10th Cir.); and Harless v. Turner, 456 F.2d 1337 (10th Cir.).
Appellant also says that the coat was admissible under the plain view doctrine, having been in view of the officers when they were admitted into the home. However, it is clear that the officers knew of the coat when they arrived, and that they questioned Martinez about it and sought to have it located and taken by Martinez to the line-up. In such circumstances, it cannot be said that its discovery was inadvertent and the plain view doctrine cannot apply. Coolidge v. New Hampshire, 403 U.S. 443, 469-471, 91 S.Ct. 2022, 29 L.Ed.2d 564.
With respect to both the lineup evidence and the coat appellant argues alternatively that even if the proof should have been excluded, its admission was harmless error. We cannot agree. Before a Federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705. The coat was introduced as was proof of the identification at the line-up. We conclude that the harmless error test cannot be satisfied here and that this conviction must be held invalid.
Third, appellant contends that in any event the trial court erred in ordering immediate release of appellant before an opportunity for retrial was permitted. The order of the trial court provided for immediate release, but included the statement that the State of Utah may take such action as it deems appropriate for retrial. In the circumstances of this case, we agree that the trial court should not have ordered immediate release, and that it should have allowed a reasonable time for retrial before discharging appellant from custody. See e. g., Lesley v. Oklahoma, 407 F.2d 543, 544 (10th Cir.); and see Ridge v. Turner, 444 F.2d 3 (10th Cir.); and Gill v. Turner, 443 F.2d 1064 (10th Cir.). Accordingly, in these circumstances and in order to make clear the right of the State of Utah to retake custody of appellee for retrial without use of the coat or line-up identification evidence, or the statements of Martinez at the home, the judgment should be modified to provide that the State of Utah may retake custody of appellee for such retrial on the robbery charge, and that if such retrial does not occur within a reasonable time, the trial court will consider an application for a further order for release of appellee from such custody.
As modified the judgment is affirmed.
. In addition the trial court found that admissions made by Martinez about the coat during discussions with the officers at his home were improperly received in evidence. This finding is not challenged on appeal, and in the circumstances of the questioning of Martinez, we are satisfied it was correct. See Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311.
. Orally the Utah trial court stated that there was no denial of rights and no prejudice to the defendant in the proceedings and that the motion to suppress was untimely. Then the Court made a further oral statement for the record with respect to the line-up. Noting the ages, appearance, dress, complexion and hair color of the participants, the Court said that it saw nothing in the line-up prejudicial to the defendant.
At the hearing before the Federal trial court, reference was made by respondent’s counsel to the determinations by the State trial court and Supreme Court that the line-up was not prejudicial and that there was consent to the taking of the coat. However, there is no assertion made to us that there was a State Court written finding entitled to deference under 28 U.S.C.A. § 2254. We have noted above the oral statements of the Utah trial court when it denied the motion to suppress, as shown by our record.
. The officer testifying said he was not certain who came to the door, but it might have been the wife, and that they were invited in. At one point he testified that he asked if “Tony” was home and that the wife, or whoever answered the door, said to come in and that he was home.
Martinez said that from a note on his door and a call to the station, he learned that Officer Westley wanted to see him. He testified that two officers later came to his door; that lie, Martinez, asked if one of them was Westley, and referred to the call and said he had heard "VVestley wanted to see him; that the officers then walked into the house; and that lie was not asked to let them in, and did not say they could not enter,
. As discussed below, we agree with the trial court’s finding that seizure of the trench coat was unlawful. Thus, by having Martinez wear the coat unlawfully seized, the fairness of the line-up procedure was further impeached. Cf. United States v. Edmons, 432 F.2d 577 (2d Cir.), cert. denied, E. V. Williams Co. v. N.L.R.B., 401 U.S. 937, 91 S.Ct. 928, 28 L.Ed.2d 217.
. Martinez testified that he told the officer he could not take the coat and that he would wear a sweater, but that the officer said he was taking the coat also. Martinez admitted that he might have said: “If you want to take the coat, you take it.”
. While the trial court’s findings and conclusions did not expressly deal with the plain view doctrine, it is clear that under the detailed findings and conclusions expressed the doctrine could not apply.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_genresp1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
Daniel F. BRAMAN, Plaintiff-Appellant, v. MARY HITCHCOCK MEMORIAL HOSPITAL and Hitchcock Clinic, Inc., Defendants-Appellees.
No. 1205, Docket 80-7165.
United States Court of Appeals, Second Circuit.
Argued May 23, 1980.
Decided Sept. 2, 1980.
Jerome I. Meyers, Ascutney, Vermont, for plaintiff-appellant.
Black & Plante, White River Junction, Vermont (Garfield H. Miller, Hughes, Miller & Candon, Norwich, Vermont, on brief), for defendants-appellees.
Before OAKES and MESKILL, Circuit Judges, and SAND, District Judge.
Of the United States District Court for the Southern District of New York, sitting by designation.
OAKES, Circuit Judge:
This appeal in a diversity action is from a dismissal for lack of jurisdiction over the defendants. Plaintiff, Daniel Braman, injured his hand at his place of employment in Hartland, Vermont, and was taken by his employer to the emergency medical treatment facilities of the defendants, Mary Hitchcock Memorial Hospital (the Hospital) and Hitchcock Clinic, Inc. (the Clinic), two New Hampshire corporations located in Hanover, New Hampshire. After treatment there, Braman brought an action for malpractice, which was dismissed by the United States District Court for the District of Vermont, James S. Holden, Chief Judge, under Fed.R.Civ.P. 12(b)(2), for lack of personal jurisdiction over the Hospital and Clinic. The district court dismissed the suit because there was no showing that the cause of action arose from the contacts or activities asserted as grounds for jurisdiction. The court did not reach the question whether the Hospital and Clinic had contacts with Vermont that warranted taking jurisdiction over them despite a lack of any relation between those contacts and the present action. We reverse and remand for a hearing on the issue of whether their activities in the state are sufficient to make them subject to its jurisdiction.
The question whether a defendant’s activities would support Vermont’s exercise of jurisdiction is one of state law. Arrows-mith v. United Press International, 320 F.2d 219, 229 (2d Cir. 1963) (en banc). Under V.R.C.P. 4(e) plaintiff served a summons and complaint on appellees Hospital and Clinic in the State of New Hampshire. Rule 4(e) incorporates the language of one of Vermont’s two “long-arm” statutes, Vt. Stat.Ann. tit. 12, § 913(b), which was enacted in 1968 in response to the State Supreme Court’s invitation in Avery v. Bender, 124 Vt. 309, 313, 204 A.2d 314, 316-17 (1964). The law provides for suit against a party served out of state who has, or to whom may be imputed contacts or activities within the state “sufficient to support a personal judgment against him.” As the Reporter’s notes to V.R.C.P. 4(e) indicate, “[t]he statute reaches to the outer limits permitted by the due process clause.”
The district court evidently assumed that service had been made by virtue of a different provision, Vt.Stat.Ann. tit. 12, § 855, an “alternative” long-arm statute. This section permits service upon the Secretary of State in lieu of service out of state upon a foreign corporation, again to the “outer limits” permitted by the due process clause, but with the single limitation that process may be served only “in any action or proceedings against it arising or growing out of that contact or activity” which supports Vermont’s assertion of jurisdiction. In the instant case, in which service was made directly upon the corporation, plaintiff’s claim for relief did not arise out of any contacts that defendants have with Vermont.
The district court correctly considered itself to be bound by the state court construction of the long-arm statute. Deveny v. Rheem Manufacturing Co., 319 F.2d 124, 127 (2d Cir. 1963); 4 C. Wright & A. Miller, Federal Practice and Procedure, Civil § 1068, at 246 (1969). Correctly interpreting the Vermont cases the district court found that they required the “arising or growing out of” element to sustain jurisdiction under the alternate long-arm statute, Vt.Stat.Ann. tit. 12, § 855. The Vermont opinions, however, evidently proceeded on the basis of a misapprehension that due process demands such a nexus between the contacts and the cause of action. Huey v. Bates, 135 Vt. 160, 163-64, 375 A.2d 987, 990 (1977); Davis v. Saab Scania of America, Inc., 133 Vt. 317, 321, 339 A.2d 456, 458-59 (1975). Although this impression of due process requirements was also conveyed by a panel of this court, Deveny v. Rheem Manufacturing Co., 319 F.2d at 127, a Supreme Court decision subsequent to International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), namely Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437, 72 S.Ct. 413, 96 L.Ed. 485 (1952), took the position that jurisdiction can be asserted even though the cause of action is unrelated to the defendant’s activities in the forum state provided that the activities are sufficiently continuing and substantial to make the assertion of jurisdiction reasonable, id. at 446-48, 72 S.Ct. at 418-19. See 4 C. Wright & A. Miller, supra, Civil § 1069, at 261-62; Restatement (Second) of Conflict of Laws § 47 (1971); von Mehren & Trautman, Jurisdiction to Adjudicate: A Suggested Analysis, 79 Harv.L.Rev. 1121, 1142-44 (1966); Developments in the Law, State-Court Jurisdiction, 73 Harv.L.Rev. 909, 932 (1960); Comment, Long-Arm and Quasi in Rem Jurisdiction and the Fundamental Test of Fairness, 69 Mich.L.Rev. 300, 307 (1970). See also Arrowsmith v. United Press International, 320 F.2d 219, 233 n.20 (interpreting Perkins v. Benguet Consolidated Mining Co. as a case in which the “quantum of corporate activity was exceptionally large”).
Thus the critical question for our purposes is whether the long-arm statute under which jurisdiction is claimed, Vt.Stat. Ann. tit. 12, § 913(b), incorporated in V.R. C.P. 4(e)(1), embodies the same limitation as the law interpreted by the district court, Vt.Stat.Ann. tit. 12, § 855, that is, whether it also requires the “arising or growing out of” element to sustain jurisdiction. Unlike § 855, § 913(b) does not on its face impose any such condition. In addition to the reporter’s notes indicating that 4(e) and § 913(b) reach “to the outer limits permitted by the due process clause,” we also have as guidance the case of Pasquale v. Genovese, 136 Vt. 417, 392 A.2d 395 (1978), which seems to indicate that the “arising or growing out of” factor would not be necessary to sustain jurisdiction under Rule 4(e) and § 913(b). There the court said:
[W]e think it a fair inference that VWAG is engaged in manufacturing and selling cars for the American market, of which Vermont is a part, through the system described. This activity we hold to be the “active participation in the Vermont market” upheld as a basis for jurisdiction in O’Brien, supra, and to meet the “minimum contacts” test first outlined in International Shoe . . .. Our V.R.C.P. 4(e) embodies the “minimum contacts” test . . ..We think it fair to view defendant’s general course of conduct as purposefully directed toward Vermont and as inevitably affecting persons in this state; from this activity, it would seem equitable to imply submission to jurisdiction.
Id. at 419, 392 A.2d 397 (emphasis added). See also Arts-Way Manufacturing Co. v. O’Brien, No. 77-197 (D.Vt., filed Aug. 15, 1977) (unpublished opinion and order on motion to dismiss, Oct. 18, 1979, at n.2) (treating requirement of causal nexus in Vt.Stat. Ann. tit. 12, § 855 as “one of statutory derivation”).
The question remains whether in this case there were continuous, intentional, and active Vermont contacts sufficient to support jurisdiction. Cf. Bard Building Supply Co. v. United Foam Corp., 137 Vt. 125, 129, 400 A.2d 1023 (1979) (discussing requirement under § 855 when tort occurred in the state, but suggesting underlying standards); see also World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 565-67, 62 L.Ed.2d 490 (1980). Although appellant’s jurisdictional allegation in his complaint would be inadequate under Vermont law, cf. O’Brien v. Comstock Foods, Inc., 123 Vt. 461, 464-65, 194 A.2d 568, 571 (1963) (before new Vermont Rules of Civil Procedure enacted), under the liberal rules of federal pleading there is a sufficient question raised by the answers to Braman’s interrogatories to require consideration of the jurisdiction issue by the district court, Exchange National Bank v. Touche Ross & Co., 544 F.2d 1126, 1130-31 (2d Cir. 1976) (affidavits and other extra-pleading materials may be considered on a motion challenging jurisdiction); 5 C. Wright & A. Miller, supra, Civil § 1364, at 669, § 1366, at 676.
The interrogatories and the answers to them omit possibly significant information beáring on this remaining issue, which would permit decision here, but they do. disclose some contacts with Vermont. Both the Clinic and Hospital are parties to agreements with Vermont hospitals and health centers whereby the Hospital and Clinic supply specialty backup services as determined from time to time; the Clinic is a party to an agreement with the Veterans Administration Hospital in White River Junction, Vermont whereby members of the defendant’s medical staff serve as consultants; and the Hospital is a party to an agreement with the Springfield Hospital of Springfield, Vermont, involving emergency transfers and with the University of Vermont in Burlington, involving student affiliation for clinical education, as well as with the Cooperative Health Information Center in South Burlington, Vermont for a shared data service. But these various agreements are not in the record before us; we do not know specifically what they provide in terms of the appellees’ activities, if any, in Vermont. It is a question for decision below whether there are substantial relations, continuing in nature and involving considerable activity and exchange with Vermont medical providers.
We recognize that the Hospital and Clinic maintain listings in the White River Junction, Vermont, Upper Valley Area telephone directory and the Barre-Montpelier, Vermont, telephone directory, which cover substantial regions. We note that in the past five years, more than 33% of the defendant Clinic’s and of the defendant Hospital’s patients have been residents of Vermont. In addition, both corporations are parties to an agreement with Blue Cross/Blue Shield for New Hampshire and Vermont, a bi-state organization that is the largest single provider of medical insurance coverage in the State of Vermont. Employees or other persons associated with the Clinic and the Hospital serve on the board of directors of this Blue Cross/Blue Shield organization and thus may affect the cost and quality of medical service supplied in Vermont. Whether there are other contacts with Vermont does not appear in the record but, of course, it will be open to the district court on further hearing to pursue the question as it sees fit.
However, the factors listed above may serve to distinguish appellees from the defendant in Benson v. Brattleboro Retreat, 103 N.H. 28, 164 A.2d 560 (1960), Annot., 84 A.L.R.2d 409, a controversy in which a Vermont hospital was sued in New Hampshire. In that case it appeared from the record that the hospital did not have “any agents in the State of New Hampshire channeling patients to” it. Id. at 29, 164 A.2d at 561. The only. contacts with the forum state were that the defendant hospital had sold a tract of undeveloped land to the State of New Hampshire for one dollar some fourteen years before the commencement of the action and that the defendant’s board of trustees had held two meetings in New Hampshire at the “summer home” of a trustee who could not go to Vermont because of a broken leg.
If the district court finds jurisdiction in this case, it will have to consider the affirmative defense concerning appellant’s failure to comply with N.H.Rev.Stat.Ann. § 507-C:5, which requires plaintiffs in actions for medical injury to notify defendants of their intent to sue at least sixty days before bringing suit, and will have to determine whether this requirement is substantive in nature under Hanna v. Plumer, 380 U.S. 460, 85 S.*Ct. 1136, 14 L.Ed:2d 8 (1965), and its progeny.
Judgment reversed and cause remanded for further proceedings.
. V.R.C.P. 4(e) provides in part:
(e) Personal Service Outside the State. The following persons may be served with the summons and the complaint outside the state, in the same manner as if such service were made within' the state, by any person authorized to serve civil process by the laws of the place of service or by a person specially appointed to serve it:
(1) A person whose contact or activity in the state or such contact or activity imputable to him is sufficient to support a personal judgment against him[.]
. Vt.Stat.Ann. tit. 12 § 913 provides:
(a)When process is served upon a party outside the state in such manner as the supreme court may by rule provide, the same proceedings may be had, so far as to affect the title or right to the possession of goods, chattels, rights, credits, land, tenements or hereditaments in the state as if the process had been served on a party in the state.
(b) Upon the service, and if it appears that the contact with the state by the party or the activity in the state by the party or the contact or activity imputable to him is sufficient to support a personal judgment against him, the same proceedings may be had for a personal judgment against him as if the process or pleading had been served on him in the state.
(c) The provisions of subsection (b) are in addition to all existing manner of service, rights and remedies, and the availability of a personal judgment by reason of subsection (b) shall make the provisions of sections 855, 856, 891 and 892 of this title and section 1630 of Title 11 alternative and not inoperative.
Thus service under Rule 4(e) and Vt.Stat.Ann. tit. 12, § 913 is “alternative” to service under Vt.Stat.Ann. tit. 12, § 855, the other long-arm statute.
. Vt.Stat.Ann. tit. 12, § 855 provides:
If the contact with the state or the activity in the state of a foreign corporation, or the contact or activity imputable to it, is sufficient to support a Vermont personal judgment against it the contact or activity shall be deemed to be doing business in Vermont by that foreign corporation and shall be equivalent to the appointment by it of the secretary of the state of Vermont and his successors to be its true and lawful attorney upon whom may be served all lawful process in any action or proceedings against it arising or growing out of that contact or activity, and also shall be deemed to be its agreement that any process against it which is so served upon the secretary of state shall be of the same legal force and effect as if served on the foreign corporation at its principal place of business in the state or country where it is incorporated according to the law of that state or country.
. See note 2 supra.
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
sc_issue_2
|
18
|
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.
SANTOSKY et al. v. KRAMER, COMMISSIONER, ULSTER COUNTY DEPARTMENT OF SOCIAL SERVICES, et al.
No. 80-5889.
Argued November 10, 1981
Decided March 24, 1982
Blackmun, J., delivered the opinion of the Court, in which Brennan, Marshall, Powell, and Stevens, JJ., joined. Rehnquist, J., filed a dissenting opinion, in which Burger, C. J., and White and O’Connor, JJ., joined, post, p. 770.
Martin Guggenheim argued the cause for petitioners. With him on the briefs was Alan N. Sussman.
Steven Domenic Scavuzzo argued the cause pro hac vice for respondents. With him on the brief was H. Randall Bixler. Wilfrid E. Marrin and Frederick J. Magovem filed a brief for respondents Balogh et al.
Briefs of amici curiae urging reversal were filed by Marcia Robinson Lowry, Steven R. Shapiro, and Margaret Hayman for the American Civil Liberties Union Children’s Rights Project et al.; and by Louise Gruner Gans, Catherine P. Mitchell, Norman Siegel, Gary Connor, and Daniel Greenberg for Community Action for Legal Services, Inc., et al.
Briefs of amici curiae urging affirmance were filed by Robert Abrams, Attorney General, Shirley Adelson Siegel, Solicitor General, and Lawrence J. Logan and Robert J. Schack, Assistant Attorneys General, for the State of New York; and by Dave Frohnmayer, Attorney General, William F. Gary, Solicitor General, and Jan Peter Londahl, Assistant Attorney General, for the State of Oregon.
Justice Blackmun
delivered the opinion of the Court.
Under New York law, the State may terminate, over parental objection, the rights of parents in their natural child upon a finding that the child is “permanently neglected.” N.Y. Soc. Serv. Law §§384 — b.4.(d), 384-b.7.(a) (McKinney Supp. 1981-1982) (Soc. Serv. Law). The New York Family Court Act § 622 (McKinney 1975 and Supp. 1981-1982) (Fam. Ct. Act) requires that only a “fair preponderance of the evidence” support that finding. Thus, in New York, the factual certainty required to extinguish the parent-child relationship is no greater than that necessary to award money damages in an ordinary civil action.
Today we hold that the Due Process Clause of the Fourteenth Amendment demands more than this. Before a State may sever completely and irrevocably the rights of parents in their natural child, due process requires that the State support its allegations by at least clear and convincing evidence.
I
A
New York authorizes its officials to remove a child temporarily from his or her home if the child appears “neglected,” within the meaning of Art. 10 of the Family Court Act. See §§ 1012(f), 1021-1029. Once removed, a child under the age of 18 customarily is placed “in the care of an authorized agency,” Soc. Serv. Law §384-b.7.(a), usually a state institution or a foster home. At that point, “the state’s first obligation is to help the family with services to... reunite it....” §384-b.l.(a)(iii). But if convinced that “positive, nurturing parent-child relationships no longer exist,” §384-b.l.(b), the State may initiate “permanent neglect” proceedings to free the child for adoption.
The State bifurcates its permanent neglect proceeding into “fact-finding” and “dispositional” hearings. Fam. Ct. Act §§ 622, 623. At the factfinding stage, the State must prove that the child has been “permanently neglected,” as defined by Fam. Ct. Act § § 614.1. (a> — (d) and Soc. Serv. Law §384-b.7.(a). See Fam. Ct. Act §622. The Family Court judge then determines at a subsequent dispositional hearing what placement would serve the child’s best interests. §§623, 631.
At the factfinding hearing, the State must establish, among other things, that for more than a year after the child entered state custody, the agency “made diligent efforts to encourage and strengthen the parental relationship.” Fam. Ct. Act §§ 614.1.(c), 611. The State must further prove that during that same period, the child's natural parents failed “substantially and continuously or repeatedly to maintain contact with or plan for the future of the child although physically and financially able to do so.” §614.1.(d). Should the State support its allegations by “a fair preponderance of the evidence,” §622, the child may be declared permanently neglected. §611. That declaration empowers the Family Court judge to terminate permanently the natural parents’ rights in the child. §§ 631(c), 634. Termination denies the natural parents physical custody, as well as the rights ever to visit, communicate with, or regain custody of the child.
New York’s permanent neglect statute provides natural parents with certain procedural protections. But New York permits its officials to establish “permanent neglect” with less proof than most States require. Thirty-five States, the District of Columbia, and the Virgin Islands currently specify a higher standard of proof, in parental rights termination proceedings, than a “fair preponderance of the evidence.” The only analogous federal statute of which we are aware permits termination of parental rights solely upon “evidence beyond a reasonable doubt.” Indian Child Welfare Act of 1978, Pub. L. 95-608, § 102(f), 92 Stat. 3072, 25 U. S. C. § 1912(f) (1976 ed., Supp. IV). The question here is whether New York’s “fair preponderance of the evidence” standard is constitutionally sufficient.
B
Petitioners John Santosky II and Annie Santosky are the natural parents of Tina and John III. In November 1973, after incidents reflecting parental neglect, respondent Kramer, Commissioner of the Ulster County Department of Social Services, initiated a neglect proceeding under Fam. Ct. Act § 1022 and removed Tina from her natural home. About 10 months later, he removed John III and placed him with foster parents. On the day John was taken, Annie Santosky gave birth to a third child, Jed. When Jed was only three days old, respondent transferred him to a foster home on the ground that immediate removal was necessary to avoid imminent danger to his life or health.
In October 1978, respondent petitioned the Ulster County Family Court to terminate petitioners’ parental rights in the three children. Petitioners challenged the constitutionality of the “fair preponderance of the evidence” standard specified in Fam. Ct. Act §622. The Family Court Judge rejected this constitutional challenge, App. 29-30, and weighed the evidence under the statutory standard. While acknowledging that the Santoskys had maintained contact with their children, the judge found those visits “at best superficial and devoid of any real emotional content.” Id., at 21. After deciding that the agency had made “ ‘diligent efforts’ to encourage and strengthen the parental relationship,” id., at 30, he concluded that the Santoskys were incapable, even with public assistance, of planning for the future of their children. Id., at 33-37. The judge later held a dispositional hearing and ruled that the best interests of the three children required permanent termination of the Santoskys’ custody. Id., at 39.
Petitioners appealed, again contesting the constitutionality of § 622’s standard of proof. The New York Supreme Court, Appellate Division, affirmed, holding application of the preponderance-of-the-evidencé standard “proper and constitutional.” In re JohnAA, 75 App. Div. 2d 910, 427 N. Y. S. 2d 319, 320 (1980). That standard, the court reasoned, “recognizes and seeks to balance rights possessed by the child... with those of the natural parents....” Ibid.
The New York Court of Appeals then dismissed petitioners’ appeal to that court “upon the ground that no substantial constitutional question is directly involved.” App. 55. We granted certiorari to consider petitioners’ constitutional claim. 450 U. S. 993 (1981).
J — I > — I
Last Term, in Lassiter v. Department of Social Services, 452 U. S. 18 (1981), this Court, by a 5-4 vote, held that the Fourteenth Amendment’s Due Process Clause does not require the appointment of counsel for indigent parents in every parental status termination proceeding. The case casts light, however, on the two central questions here— whether process is constitutionally due a natural parent at a State’s parental rights termination proceeding, and, if so, what process is due.
In Lassiter, it was “not disputed that state intervention to terminate the relationship between [a parent] and [the] child must be accomplished by procedures meeting the requisites of the Due Process Clause.” Id., at 37 (first dissenting opinion); see id., at 24-32 (opinion of the Court); id., at 59-60 (Stevens, J., dissenting). See also Little v. Streater, 452 U. S. 1, 13 (1981). The absence of dispute reflected this Court’s historical recognition that freedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment. Quilloin v. Walcott, 434 U. S. 246, 255 (1978); Smith v. Organization of Foster Families, 431 U. S. 816, 845 (1977); Moore v. East Cleveland, 431 U. S. 494, 499 (1977) (plurality opinion); Cleveland Board of Education v. LaFleur, 414 U. S. 632, 639-640 (1974); Stanley v. Illinois, 405 U. S. 645, 651-652 (1972); Prince v. Massachusetts, 321 U. S. 158, 166 (1944); Pierce v. Society of Sisters, 268 U. S. 510, 534-535 (1925); Meyer v. Nebraska, 262 U. S. 390, 399 (1923).
The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life. If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures.
In Lassiter, the Court and three dissenters agreed that the nature of the process due in parental rights termination proceedings turns on a balancing of the “three distinct factors” specified in Mathews v. Eldridge, 424 U. S. 319, 335 (1976): the private interests affected by the proceeding; the risk of error created by the State’s chosen procedure; and the countervailing governmental interest supporting use of the challenged procedure. See 452 U. S., at 27-31; id., at 37-48 (first dissenting opinion). But see id., at 59-60 (Stevens, J., dissenting). While the respective Lassiter opinions disputed whether those factors should be weighed against a presumption disfavoring appointed counsel for one not threatened with loss of physical liberty, compare 452 U. S., at 31-32, with id., at 41, and n. 8 (first dissenting opinion), that concern is irrelevant here. Unlike the Court’s right-to-counsel rulings, its decisions concerning constitutional burdens of proof have not turned on any presumption favoring any particular standard. To the contrary, the Court has engaged in a straightforward consideration of the factors identified in Eldridge to determine whether a particular standard of proof in a particular proceeding satisfies due process.
In Addington v. Texas, 441 U. S. 418 (1979), the Court, by a unanimous vote of the participating Justices, declared: “The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to ‘instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.’” Id., at 423, quoting In re Winship, 397 U. S. 358, 370 (1970) (Harlan, J., concurring). Addington teaches that, in any given proceeding, the minimum standard of proof tolerated by the due process requirement reflects not only the weight of the private and public interests affected, but also a societal judgment about how the risk of error should be distributed between the litigants.
Thus, while private parties may be interested intensely in a civil dispute over money damages, application of a “fair preponderance of the evidence” standard indicates both society’s “minimal concern with the outcome,” and a conclusion that the litigants should “share the risk of error in roughly equal fashion.” 441 U. S., at 423. When the State brings a criminal action to deny a defendant liberty or life, however, “the interests of the defendant are of such magnitude that historically and without any explicit constitutional requirement they have been protected by standards of proof designed to exclude as nearly as possible the likelihood of an erroneous judgment.” Ibid. The stringency of the “beyond a reasonable doubt” standard bespeaks the “weight and gravity” of the private interest affected, id., at 427, society’s interest in avoiding erroneous convictions, and a judgment that those interests together require that “society impos[e] almost the entire risk of error upon itself.” Id., at 424. See also In re Winship, 397 U. S., at 372 (Harlan, J., concurring).
The “minimum requirements [of procedural due process] being a matter of federal law, they are not diminished by the fact that the State may have specified its own procedures that it may deem adequate for determining the preconditions to adverse official action.” Vitek v. Jones, 445 U. S. 480, 491 (1980). See also Logan v. Zimmerman Brush Co., ante, at 432. Moreover, the degree of proof required in a particular type of proceeding “is the kind of question which has traditionally been left to the judiciary to resolve.” Woodby v. INS, 385 U. S. 276, 284 (1966). “In cases involving individual rights, whether criminal or civil, ‘[t]he standard of proof [at a minimum] reflects the value society places on individual liberty.'” Addington v. Texas, 441 U. S., at 425, quoting Tippett v. Maryland, 436 F. 2d 1153, 1166 (CA4 1971) (opinion concurring in part and dissenting in part), cert. dism’d sub nom. Murel v. Baltimore City Criminal Court, 407 U. S. 355 (1972).
This Court has mandated an intermediate standard of proof — “clear and convincing evidence” — when the individual interests at stake in a state proceeding are both “particularly important” and “more substantial than mere loss of money.” Addington v. Texas, 441 U. S., at 424. Notwithstanding “the state’s ‘civil labels and good intentions,’” id., at 427, quoting In re Winship, 397 U. S., at 365-366, the Court has deemed this level of certainty necessary to preserve fundamental fairness in a variety of government-initiated proceedings that threaten the individual involved with “a significant deprivation of liberty” or “stigma.” 441 U. S., at 425, 426. See, e. g., Addington v. Texas, supra (civil commitment); Woodby v. INS, 385 U. S., at 285 (deportation); Chaunt v. United States, 364 U. S. 350, 353 (1960) (denaturalization); Schneiderman v. United States, 320 U. S. 118, 125, 159 (1943) (denaturalization).
In Lassiter, to be sure, the Court held that fundamental fairness may be maintained in parental rights termination proceedings even when some procedures are mandated only on a case-by-case basis, rather than through rules of general application. 452 U. S., at 31-32 (natural parent’s right to court-appointed counsel should be determined by the trial court, subject to appellate review). But this Court never has approved case-by-case determination of the proper standard of proof for a given proceeding. Standards of proof, like other “procedural due process rules[,] are shaped by the risk of error inherent in the truth-finding process as applied to the generality of cases, not the rare exceptions.” Mathews v. Eldridge, 424 U. S., at 344 (emphasis added). Since the litigants and the factfinder must know at the outset of a given proceeding how the risk of error will be allocated, the standard of proof necessarily must be calibrated in advance. Retrospective case-by-case review cannot preserve fundamental fairness when a class of proceedings is governed by a constitutionally defective evidentiary standard.
Ill
In parental rights termination proceedings, the private interest affected is commanding; the risk of error from using a preponderance standard is substantial; and the countervailing governmental interest favoring that standard is comparatively slight. Evaluation of the three Eldridge factors compels the conclusion that use of a “fair preponderance of the evidence” standard in such proceedings is inconsistent with due process.
A
“The.extent to which procedural due process must be afforded the recipient is influenced by the extent to which he may be ‘condemned to suffer grievous loss.’” Goldberg v. Kelly, 397 U. S. 254, 262-263 (1970), quoting Joint Anti-Fascist Refugee Committee v. McGrath, 341 U. S. 123, 168 (1951) (Frankfurter, J., concurring). Whether the loss threatened by a particular type of proceeding is sufficiently grave to warrant more than average certainty on the part of the factfinder turns on both the nature of the private interest threatened and the permanency of the threatened loss.
Lassiter declared it “plain beyond the need for multiple citation” that a natural parent’s “desire for and right to ‘the companionship, care, custody, and management of his or her children’ ” is an interest far more precious than any property right. 452 U. S., at 27, quoting Stanley v. Illinois, 405 U. S., at 651. When the State initiates a parental rights termination proceeding, it seeks not merely to infringe that fundamental liberty interest, but to end it. “If the State prevails, it will have worked a unique kind of deprivation.... A parent’s interest in the accuracy and justice of the decision to terminate his or her parental status is, therefore, a commanding one.” 452 U. S., at 27.
In government-initiated proceedings to determine juvenile delinquency, In re Winship, supra; civil commitment, Addington v. Texas, supra; deportation, Woodby v. INS, supra; and denaturalization, Chaunt v. United States, supra, and Schneiderman v. United States, supra, this Court has identified losses of individual liberty sufficiently serious to warrant imposition of an elevated burden of proof. Yet juvenile delinquency adjudications, civil commitment, deportation, and denaturalization, at least to a degree, are all reversible official actions. Once affirmed on appeal, a New York decision terminating parental rights is final and irrevocable. See n. 1, supra. Few forms of state action are both so severe and so irreversible.
Thus, the first Eldridge factor — the private interest affected — weighs heavily against use of the preponderance standard at a state-initiated permanent neglect proceeding. We do not deny that the child and his foster parents are also deeply interested in the outcome of that contest. But at the factfinding stage of the New York proceeding, the focus emphatically is not on them.
The factfinding does not purport — and is not intended — to balance the child’s interest in a normal family home against the parents’ interest in raising the child. Nor does it purport to determine whether the natural parents or the foster parents would provide the better home. Rather, the fact-finding hearing pits the State directly against the parents. The State alleges that the natural parents are at fault. Fam. Ct. Act §614.1.(d). The questions disputed and decided are what the State did — “made diligent efforts,” § 614.1.(c) — and what the natural parents did not do — “maintain contact with or plan for the future of the child.” §614.1.(d). The State marshals an array of public resources to prove its case and disprove the parents’ case. Victory by the State not only makes termination of parental rights possible; it entails a judicial determination that the parents are unfit to raise their own children.
At the factfinding, the State cannot presume that a child and his parents are adversaries. After the State has established parental unfitness at that initial proceeding, the court may assume at the dispositional stage that the interests of the child and the natural parents do diverge. See Fam. Ct. Act § 631 (judge shall make his order “solely on the basis of the best interests of the child,” and thus has no obligation to consider the natural parents’ rights in selecting dispositional alternatives). But until the State proves parental unfitness, the child and his parents share a vital interest in preventing erroneous termination of their natural relationship. Thus, at the factfinding, the interests of the child and his natural parents coincide to favor use of error-reducing procedures.
However substantial the foster parents’ interests may be, cf. Smith v. Organization of Foster Families, 431 U. S., at 845-847, they are not implicated directly in the factfinding stage of a state-initiated permanent neglect proceeding against the natural parents. If authorized, the foster parents may pit their interests directly against those of the natural parents by initiating their own permanent neglect proceeding. Fam. Ct. Act § 1055(d); Soc. Serv. Law §§384-6.3(b), 392.7.(c). Alternatively, the foster parents can make their case for custody at the dispositional stage of a state-initiated proceeding, where the judge already has decided the issue of permanent neglect and is focusing on the placement that would serve the child’s best interests. Fam. Ct. Act §§623, 631. For the foster parents, the State’s failure to prove permanent neglect may prolong the delay and uncertainty until their foster child is freed for adoption. But for the natural parents, a finding of permanent neglect can cut off forever their rights in their child. Given this disparity of consequence, we have no difficulty finding that the balance of private interests strongly favors heightened procedural protections.
B
Under Mathews v. Eldridge, we next must consider both the risk of erroneous deprivation of private interests resulting from use of a “fair preponderance” standard and the likelihood that a higher evidentiary standard would reduce that risk. See 424 U. S., at 335. Since the factfinding phase of a permanent neglect proceeding is an adversary contest between the State and the natural parents, the relevant question is whether a preponderance standard fairly allocates the risk of an erroneous factfinding between these two parties.
In New York, the factfinding stage of a state-initiated permanent neglect proceeding bears many of the indicia of a criminal trial. Cf. Lassiter v. Department of Social Services, 452 U. S., at 42-44 (first dissenting opinion); Meltzer v. C. Buck LeCraw & Co., 402 U. S. 954, 959 (1971) (Black, J., dissenting from denial of certiorari). See also dissenting opinion, post, at 777-779 (describing procedures employed at factfinding proceeding). The Commissioner of Social Services charges the parents with permanent neglect. They are served by summons. Fam. Ct. Act §§ 614, 616, 617. The factfinding hearing is conducted pursuant to formal rules of evidence. § 624. The State, the parents, and the child are all represented by counsel. §§ 249, 262. The State seeks to establish a series of historical facts about the intensity of its agency’s efforts to reunite the family, the infrequency and in-substantiality of the parents’ contacts with their child, and the parents’ inability or unwillingness to formulate a plan for the child’s future. The attorneys submit documentary evidence, and call witnesses who are subject to cross-examination. Based on all the evidence, the judge then determines whether the State has proved the statutory elements of permanent neglect by a fair preponderance of the evidence. §622.
At such a proceeding, numerous factors combine to magnify the risk of erroneous factfinding. Permanent neglect proceedings employ imprecise substantive standards that leave determinations unusually open to the subjective values of the judge. See Smith v. Organization of Foster Families, 481 U. S., at 835, n. 36. In appraising the nature and quality of a complex series of encounters among the agency, the parents, and the child, the court possesses unusual discretion to underweigh probative facts that might favor the parent. Because parents subject to termination proceedings are often poor, uneducated, or members of minority groups, id., at 833-835, such proceedings are often vulnerable to judgments based on cultural or class bias.
The State’s ability to assemble its case almost inevitably dwarfs the parents’ ability to mount a defense. No predetermined limits restrict the sums an agency may spend in prosecuting a given termination proceeding. The State’s attorney usually will be expert on the issues contested and the procedures employed at the factfinding hearing, and enjoys full access to all public records concerning the family. The State may call on experts in family relations, psychology, and medicine to bolster its case. Furthermore, the primary witnesses at the hearing will be the agency’s own professional caseworkers whom the State has empowered both to investigate the family situation and to testify against the parents. Indeed, because the child is already in agency custody, the State even has the power to shape the historical events that form the basis for termination.
The disparity between the adversaries’ litigation resources is matched by a striking asymmetry in their litigation options. Unlike criminal defendants, natural parents have no “double jeopardy” defense against repeated state termination efforts. If the State initially fails to win termination, as New York did here, see n. 4, supra, it always can try once again to cut off the parents’ rights after gathering more or better evidence. Yet even when the parents have attained the level of fitness required by the State, they have no similar means by which they can forestall future termination efforts.
Coupled with a “fair preponderance of the evidence” standard, these factors create a significant prospect of erroneous termination. A standard of proof that by its very terms demands consideration of the quantity, rather than the quality, of the evidence may misdirect the factfinder in the marginal case. See In re Winship, 397 U. S., at 371, n. 3 (Harlan, J., concurring). Given the weight of the private interests at stake, the social cost of even occasional error is sizable.
Raising the standard of proof would have both practical and symbolic consequences. Cf. Addington v. Texas, 441 U. S., at 426. The Court has long considered the heightened standard of proof used in criminal prosecutions to be “a prime instrument for reducing the risk of convictions resting on factual error.” In re Winship, 397 U. S., at 363. An elevated standard of proof in a parental rights termination proceeding would alleviate “the possible risk that a factfinder might decide to [deprive] an individual based solely on a few isolated instances of unusual conduct [or]... idiosyncratic behavior.” Addington v. Texas, 441 U. S., at 427. “Increasing the burden of proof is one way to impress the factfinder with the importance of the decision and thereby perhaps to reduce the chances that inappropriate” terminations will be ordered. Ibid.
The Appellate Division approved New York’s preponderance standard on the ground that it properly “balanced rights possessed by the child... with those of the natural parents....” 75 App. Div. 2d, at 910, 427 N. Y. S. 2d, at 320. By so saying, the court suggested that a preponderance standard properly allocates the risk of error between the parents and the child. That view is fundamentally mistaken.
The court’s theory assumes that termination of the natural parents’ rights invariably will benefit the child. Yet we have noted above that the parents and the child share an interest in avoiding erroneous termination. Even accepting the court’s assumption, we cannot agree with its conclusion that a preponderance standard fairly distributes the risk of error between parent and child. Use of that standard reflects the judgment that society is nearly neutral between erroneous termination of parental rights and erroneous failure to terminate those rights. Cf. In re Winship, 397 U. S., at 371 (Harlan, J., concurring). For the child, the likely consequence of an erroneous failure to terminate is preservation of an uneasy status quo. For the natural parents, however, the consequence of an erroneous termination is the unnecessary destruction of their natural family. A standard that allocates the risk of error nearly equally between those two outcomes does not reflect properly their relative severity.
C
Two state interests are at stake in parental rights termination proceedings — a parens patriae interest in preserving and promoting the welfare of the child and a fiscal and administrative interest in reducing the cost and burden of such proceedings.. A standard of proof more strict than preponderance of the evidence is consistent with both interests.
“Since the State has an urgent interest in the welfare of the child, it shares the parent’s interest in an accurate and just decision” at the factfinding proceeding. Lassiter v. Department of Social Services, 452 U. S., at 27. As parens patriae, the State’s goal is to provide the child with a permanent home. See Soc. Serv. Law § 384-b. l.(a)(i) (statement of legislative findings and intent). Yet while there is still reason to believe that positive, nurturing parent-child relationships exist, the parens patriae interest favors preservation, not severance, of natural familial bonds. § 384 — b. l.(a)(ii). “[T]he State registers no gain towards its declared goals when it separates children from the custody of fit parents.” Stanley v. Illinois, 405 U. S., at 652.
The State’s interest in finding the child an alternative permanent home arises only “when it is clear that the natural parent cannot or will not provide a normal family home for the child.” Soc. Serv. Law §384-b.l.(a)(iv) (emphasis added). At the factfinding, that goal is served by procedures that promote an accurate determination of whether the natural parents can and will provide a normal home.
Unlike a constitutional requirement of hearings, see, e. g., Mathews v. Eldridge, 424 U. S., at 347, or court-appointed counsel, a stricter standard of proof would reduce factual error without imposing substantial fiscal burdens upon the State. As we have observed, 35 States already have adopted a higher standard by statute or court decision without apparent effect on the speed, form, or cost of their factfinding proceedings. See n. 3, supra.
Nor would an elevated standard of proof create any real administrative burdens for the State’s factfinders. New York Family Court judges already are familiar with a higher evidentiary standard in other parental rights termination proceedings not involving permanent neglect. See Soc. Serv. Law §§384-b.3.(g), 384-b.4.(c), and 384-b.4.(e) (requiring “clear and convincing proof” before parental rights may be terminated for reasons of mental illness and mental retardation or severe and repeated child abuse). New York also demands at least clear and convincing evidence in proceedings of far less moment than parental rights termination proceedings. See, e. g., N. Y. Veh. & Traf. Law §227.1 (McKinney Supp. 1981) (requiring the State to prove traffic infractions by “clear and convincing evidence”) and In re Rosenthal v. Hartnett, 36 N. Y. 2d 269, 326 N. E. 2d 811 (1975); see also Ross v. Food Specialties, Inc., 6 N. Y. 2d 336, 341, 160 N. E. 2d 618, 620 (1959) (requiring “clear, positive and convincing evidence” for contract reformation). We cannot believe that it would burden the State unduly to require that its factfinders have the same factual certainty when terminating the parent-child relationship as they must have to suspend a driver’s license.
IV
The logical conclusion of this balancing process is that the “fair preponderance of the evidence” standard prescribed by Fam. Ct. Act § 622 violates the Due Process Clause of the Fourteenth Amendment. The Court noted in Addington: “The individual should not be asked to share equally with society the risk of error when the possible injury to the individual is significantly greater than any possible harm to the state.” 441 U. S., at 427. Thus, at a parental rights termination proceeding, a near-equal allocation of risk between the parents and the State is constitutionally intolerable. The next question, then, is whether a “beyond a reasonable doubt” or a “clear and convincing” standard is constitutionally mandated.
In Addington, the Court concluded that application of a reasonable-doubt standard is inappropriate in civil commitment proceedings for two reasons — because of our hesitation to apply that unique standard “too broadly or casually in noncriminal cases,” id., at 428, and because the psychiatric evidence ordinarily adduced at commitment proceedings is rarely susceptible to proof beyond a reasonable doubt. Id., at 429-430, 4324433. To be sure, as has been noted above, in the Indian Child Welfare Act of 1978, Pub. L. 95-608, § 102(f), 92 Stat. 3072, 25 U. S. C. § 1912(f) (1976 ed., Supp. IV), Congress requires “evidence beyond a reasonable doubt” for termination of Indian parental rights, reasoning that “the removal of a child from the parents is a penalty as great [as], if not greater, than a criminal penalty....” H. R. Rep. No. 95-1386, p. 22 (1978). Congress did not consider, however, the evidentiary problems that would arise if proof beyond a reasonable doubt were required in all state-initiated parental rights termination hearings.
Like civil commitment hearings, termination proceedings often
Question: What is the issue of the decision?
01. voting
02. Voting Rights Act of 1965, plus amendments
03. ballot access (of candidates and political parties)
04. desegregation (other than as pertains to school desegregation, employment discrimination, and affirmative action)
05. desegregation, schools
06. employment discrimination: on basis of race, age, religion, illegitimacy, national origin, or working conditions.
07. affirmative action
08. slavery or indenture
09. sit-in demonstrations (protests against racial discrimination in places of public accommodation)
10. reapportionment: other than plans governed by the Voting Rights Act
11. debtors' rights
12. deportation (cf. immigration and naturalization)
13. employability of aliens (cf. immigration and naturalization)
14. sex discrimination (excluding sex discrimination in employment)
15. sex discrimination in employment (cf. sex discrimination)
16. Indians (other than pertains to state jurisdiction over)
17. Indians, state jurisdiction over
18. juveniles (cf. rights of illegitimates)
19. poverty law, constitutional
20. poverty law, statutory: welfare benefits, typically under some Social Security Act provision.
21. illegitimates, rights of (cf. juveniles): typically inheritance and survivor's benefits, and paternity suits
22. handicapped, rights of: under Rehabilitation, Americans with Disabilities Act, and related statutes
23. residency requirements: durational, plus discrimination against nonresidents
24. military: draftee, or person subject to induction
25. military: active duty
26. military: veteran
27. immigration and naturalization: permanent residence
28. immigration and naturalization: citizenship
29. immigration and naturalization: loss of citizenship, denaturalization
30. immigration and naturalization: access to public education
31. immigration and naturalization: welfare benefits
32. immigration and naturalization: miscellaneous
33. indigents: appointment of counsel (cf. right to counsel)
34. indigents: inadequate representation by counsel (cf. right to counsel)
35. indigents: payment of fine
36. indigents: costs or filing fees
37. indigents: U.S. Supreme Court docketing fee
38. indigents: transcript
39. indigents: assistance of psychiatrist
40. indigents: miscellaneous
41. liability, civil rights acts (cf. liability, governmental and liability, nongovernmental; cruel and unusual punishment, non-death penalty)
42. miscellaneous civil rights (cf. comity: civil rights)
Answer:
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songer_typeiss
|
D
|
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.
Russell SHEPPARD, Appellant, v. Barney CORNELIUS, trading as Barney Coal Company, and Leckie Smokeless Coal Company, Appellees. Ray E. RHODES, Appellant, v. Joe COSTA, trading as Joe Costa Coal Company, and Leckie Smokeless Coal Company, Appellees.
No. 8486.
United States Court of Appeals Fourth Circuit.
Argued March 28, 1962.
Decided April 26, 1962.
James K. Edmundson, Beckley, W. Va., for appellants.
Joseph M. Holt, Lewisburg, W. Va., and George Richardson, Jr., Bluefield, W. Va., for appellees.
Before SOBELOFF, Chief Judge, and HAYNSWORTH and BRYAN, Circuit Judges.
HAYNSWORTH, Circuit Judge.
In these proceedings, filed under § 16 of the Fair Labor Standards Act, the two plaintiffs assert a contractual claim to additional compensation by their employer. They had been paid at rates in excess of the minimum wages required by § 6 of the Act, but they contend that their employment was governed by the National Bituminous Coal Agreement of 1950, as amended, and they claim they should have been compensated at the higher rate specified in that agreement. They worked no more than forty hours in any week, so that the requirements of § 7 are not involved.
The District Court granted summary judgment for the defendants on the ground that there was no cause of action under the Fair Labor Standards Act, and no other basis of federal jurisdiction. We agree with the District Court.
By § 16(b) of the Fair Labor Standards Act, an employer may be held liable to an employee for unpaid wages due to have been paid under §§ 6 or 7 of the Act. The action may be maintained in any court of competent jurisdiction. Section 6 of the Act is violated, however, only if the actual rate paid is less than the minimum specified in that section. There is a violation of § 7 if compensation for hours worked in any week in excess of the maximum number is at a rate less than one and one-half the regular rate. Where overtime compensation is involved, of course, it is necessary to determine what the regular rate is, and, to do so, reference must be had to the rates prescribed in any applicable collective bargaining agreement. Payment of contract rates is not required by § 6, however, for hours worked in any week if they do not exceed the maximum fixed by § 7. If, therefore, the plaintiffs' employment was governed by the National Bituminous Coal Agreement of 1950, they may have an action founded upon the contract for unpaid wages, but they have not shown a violation of the Fair Labor Standards Act. Section 16 of that Act confers no jurisdiction upon this Court to adjudicate contractual claims for wages unless such adjudication is necessary to enforcement of the Act.
The plaintiffs seek to support the jurisdiction of the Court by reference to § 301 of the Labor Management Relations Act. That Act, of course, permits actions in the District Courts of the United States, without regard to the amount in controversy, by or against a labor organization representing employees, for violations of collective bargaining agreements. It is now settled that the United States District Courts have jurisdiction to enforce the arbitration provisions of a collective bargaining contract at the instance of the recognized representative of the employees when the relief sought is additional compensation or benefits due the employees generally under other provisions of the •contract. Earlier, however, the Supreme Court had held there was no jurisdiction of an action brought by the recognized representative of the employees when the relief sought was additional1 compensation to individual employees alleged to be due under the terms of the collective agreement. The Supreme Court found no congressional intention “ * * * to open the doors of the federal courts to a potential flood of grievances based upon an employer’s failure to comply with terms of a collective agreement relating to compensation, terms peculiar in the individual benefit which is their subject matter and which, when violated, give a cause of action to the individual employee. * * * ” Enforcement of such rights was to be left to the individual employees.
Here, the employees’ representative, if there is one, is not a party to these actions. The Mine Workers are not here contending that they have a contract with the employers which the employers have violated. Jurisdiction, under § 301 of the Labor Management Relations Act, to adjudicate claims by or against a labor organization representing employees does not extend to the claims of two employees asserting in their own names individual rights to additional compensation under a contract which they claim to be applicable.
Individual rights, individually asserted, though stemming from a collective employment agreement and solely dependent upon it, cannot be enforced under § 301 of the Labor Management Relations Act. If there is substance in the rights asserted by these employees, the rights may be enforced through traditional actions brought in the state courts. There is no federal jurisdiction to enforce them.
Affirmed.
. 29 U.S.C.A. § 216.
. 29 U.S.C.A. § 206.
. 29 U.S.C.A. § 207.
. Sheppard v. Cornelius et al., D.C.S.D.W. Va., 194 F.Supp. 823.
. If there was a violation of § 7 of the Act, and the court determined that the contract rate was the regular rate within the meaning of that Section, the court would not be limited to an award of compensation for the overtime hour's worked. It could adjudicate the entire controversy by requiring payment of the contract rate for the first forty hours worked in each week and thus dispose of the entire controversy. When the court has jurisdiction of a federal claim under § 7 of the Act, it may proceed to adjudicate the closely related nonfederal contract claim for additional compensation during the first forty hours worked in any week. Manosky v. Betklehem-Hingham Shipyard, Inc., 1 Cir., 177 F.2d 529, 534. When there has been- no violation of the Fair Labor Standards Act, however, § 16 of that Act confers no jurisdiction upon the court to award any relief.
. 29 U.S.C.A. § 185.
. Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972; United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424; Textile Workers Union of America v. Cone Mills Corp., 4 Cir., 268 F.2d 920.
. Association of Westinghouse Salaried Employees v. Westinghouse Electric Corp., 348 U.S. 437, 75 S.Ct. 489, 99 L.Ed. 510.
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
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songer_initiate
|
G
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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.
Marcia STONE, Appellant, v. Luther H. BOBBITT.
No. 14736.
United States Court of Appeals Eighth Circuit.
Nov. 13, 1952.
Robert L. Jackson and William Harrison Norton, Kansas City, Mo., for appellant.
Spurgeon L. Smithson, Kansas City, Mo., for appellee.
PER CURIAM.
Appeal from District Court docketed and dismissed, on motion of appellee.
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
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sc_adminactionstate
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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 of the state agency associated with the administrative action that occurred prior to the onset of litigation.
HILLSBOROUGH COUNTY, FLORIDA, et al. v. AUTOMATED MEDICAL LABORATORIES, INC.
No. 83-1925.
Argued April 16, 1985
Decided June 3, 1985
MARSHALL, J., delivered the opinion for a unanimous Court.
Emetine C. Acton argued the cause for appellants. With her on the briefs was Joe Horn Mount.
Paul J. Larkin, Jr., argued the cause pro hac vice for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Lee, Acting Assistant Attorney General Willard, Deputy Solicitor General Geller, and Margaret E. Clark.
Larry A. Stumpf argued the cause for appellee. With him on the brief was Victoria L. Baden.
Richard Landfield argued the cause for the American Blood Resources Association et al. as amici curiae urging affirmance. With him on the brief was William W. Becker.
Benjamin W. Heineman, Jr., filed a brief for the National Association of Counties et al. as amici curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the American Blood Commission by Michael H. Cardozo; and for Grocery Manufacturers of America, Inc., by Peter Barton Hutt.
Justice Marshall
delivered the opinion of the Court.
The question presented is whether the federal regulations governing the collection of blood plasma from paid donors pre-empt certain local ordinances.
t — I
Appellee Automated Medical Laboratories, Inc., is a Florida corporation that operates, through subsidiaries, eight blood plasma centers in the United States. One of the centers, Tampa Plasma Corporation (TPC), is located in Hillsborough County, Florida. Appellee’s plasma centers collect blood plasma from donors by employing a procedure called plasmapheresis. Under this procedure, whole blood removed from the donor is separated into plasma and other components, and “at least the red blood cells are returned to the donor,” 21 CFR § 606.3(e) (1984). Appellee sells the plasma to pharmaceutical manufacturers.
Vendors of blood products, such as TPC, are subject to federal supervision. Under § 351(a) of the Public Health Service Act, 58 Stat. 702, as amended, 42 U. S. C. § 262(a), such vendors must be licensed by the Secretary of Health and Human Services (HHS). Licenses are issued only on a showing that the vendor’s establishment and blood products meet certain safety, purity, and potency standards established by the Secretary. 42 U. S. C. § 262(d). HHS is authorized to inspect such establishments for compliance. § 262(c).
Pursuant to § 351 of the Act, the Food and Drug Administration (FDA), as the designee of the Secretary, has established standards for the collection of plasma. 21 CFR §§640.60-640.76 (1984). The regulations require that a licensed physician determine the suitability of a donor before the first donation and thereafter at subsequent intervals of no longer than one year. § 640.63(b)(1). A physician must also inform the donor of the hazards of the procedure and obtain the donor’s consent, §640.61, and must be on the premises when the procedure is performed, §640.62. In addition, the regulations establish minimum standards for donor eligibility, §§640.63(c)-(d), specify procedures that must be followed in performing plasmapheresis, § 640.65, and impose labeling requirements, §640.70.
In 1980, Hillsborough County adopted Ordinances 80-11 and 80-12. Ordinance 80-11 imposes a $225 license fee on plasmapheresis centers within the county. It also requires such centers to allow the County Health Department “reasonable and continuing access” to their premises for inspection purposes, and to furnish information deemed relevant by the Department. See App. 21-23.
Ordinance 80-12 establishes a countywide identification system, which requires all potential donors to obtain from the County Health Department an identification card, valid for six months, that may be used only at the plasmapheresis center specified on the card. The ordinance incorporates by reference the FDA’s blood plasma regulations, but also imposes donor testing and recordkeeping requirements beyond those contained in the federal regulations. Specifically, the ordinance requires that donors be tested for hepatitis prior to registration, that they donate at only one center, and that they be given a breath analysis for alcohol content before each plasma donation. See id., at 24-31.
The county has promulgated regulations to implement Ordinance 80-12. The regulations set the fee for the issuance of an identification card to a blood donor at $2. They also establish that plasma centers must pay the county a fee of $1 for each plasmapheresis procedure performed. See id., at 32-34.
In December 1981, appellee filed suit in the United States District Court for the Middle District of Florida, challenging the constitutionality of the ordinances and their implementing regulations. Appellee argued primarily that the ordinances violated the Supremacy Clause, the Commerce Clause, and the Fourteenth Amendment’s Equal Protection Clause. Ap-pellee sought a declaration that the ordinances were unlawful and a permanent injunction against their enforcement. Id., at 5-20.
In November 1982, following a bench trial, the District Court upheld all portions of the local ordinances and regulations except the requirement that donors be subject to a breath-analysis test. Id., at 40-46. The court rejected the Supremacy Clause challenge, discerning no evidence of federal intent to pre-empt the whole field of plasmapheresis regulation and finding no conflict between the Hillsborough County ordinances and the federal regulations.
In addition, the District Court rejected the claim that the ordinances violate the Equal Protection Clause because they regulate only centers that pay donors for plasma, and not centers in which volunteers donate whole blood. The court identified a rational basis for the distinction: paid donors sell plasma more frequently than volunteers donate whole blood, and paid donors have a higher rate of hepatitis than do volunteer donors.
Finally, the District Court found that, with one exception, the ordinances do not impermissibly burden interstate commerce. It concluded that the breath-analysis requirement would impose a large burden on plasma centers by forcing them to purchase fairly expensive testing equipment, and was not shown to achieve any purpose not adequately served by the subjective evaluations of sobriety already required by the federal regulations.
Automated Medical Laboratories appealed to the Court of Appeals for the Eleventh Circuit, which affirmed in part and reversed in part. 722 F. 2d 1526 (1984). The Court of Appeals held that the FDA’s blood plasma regulations pre-empt all provisions of the county’s ordinances and regulations. The court acknowledged the absence of an express indication of congressional intent to pre-empt. Relying on the pervasiveness of the FDA’s regulations and on the dominance of the federal interest in plasma regulation, however, it found an implicit intent to pre-empt state and local laws on that subject. In addition, the court found a serious danger of conflict between the FDA regulations and the Hillsborough County ordinances, reasoning that “[i]f the County scheme remains in effect, the national blood policy of promoting uniformity and guaranteeing a continued supply of healthy donors will be adversely affected.” Id., at 1533.
The Court of Appeals thus affirmed, albeit on other grounds, the District Court’s invalidation of the breath-analysis requirement. It reversed the District Court’s judgment upholding the remaining requirements of the Hillsborough County ordinances and regulations. In view of its decision, the court did not reach the Commerce Clause and Equal Protection challenges to the county’s scheme. Ibid.
Hillsborough County and the County Health Department appealed to this Court pursuant to 28 U. S. C. § 1254(2). We noted probable jurisdiction, 469 U. S. 1156 (1984), and we now reverse.
I — I I — I
It is a familiar and well-established principle that the Supremacy Clause, U. S. Const., Art. VI, cl. 2, invalidates state laws that “interfere with, or are contrary to,” federal law. Gibbons v. Ogden, 9 Wheat. 1, 211 (1824) (Marshall, C. J.). Under the Supremacy Clause, federal law may supersede state law in several different ways. First, when acting within constitutional limits, Congress is empowered to pre-empt state law by so stating in express terms. Jones v. Rath Packing Co., 430 U. S. 519, 525 (1977). In the absence of express pre-emptive language, Congress’ intent to preempt all state law in a particular area may be inferred where the scheme of federal regulation is sufficiently comprehensive to make reasonable the inference that Congress “left no room” for supplementary state regulation. Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947). Pre-emption of a whole field also will be inferred where the field is one 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.” Ibid.; see Hines v. Davidowitz, 312 U. S. 52 (1941).
Even where Congress has not completely displaced state regulation in a specific area, state law is nullified to the extent that it actually conflicts with federal law. Such a conflict arises when “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 when state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” Hines v. Davidowitz, supra, at 67. See generally Capital Cities Cable, Inc. v. Crisp, 467 U. S. 691, 698-699 (1984).
We have held repeatedly that state laws can be pre-empted by federal regulations as well as by federal statutes. See, e. g., Capital Cities Cable, Inc. v. Crisp, supra, at 699; Fidelity Federal Savings & Loan Assn. v. De la Cuesta, 458 U. S. 141, 153-154 (1982); United States v. Shimer, 367 U. S. 374, 381-383 (1961). Also, for the purposes of the Supremacy Clause, the constitutionality of local ordinances is analyzed in the same way as that of statewide laws. See, e. g., City of Burbank v. Lockheed Air Terminal, Inc., 411 U. S. 624 (1973).
I — i HH
In arguing that the Hillsborough County ordinances and regulations are pre-empted, appellee faces an uphill battle. The first hurdle that appellee must overcome is the FDA’s statement, when it promulgated the plasmapheresis regulations in 1973, that it did not intend its regulations to be exclusive. In response to comments expressing concern that the regulations governing the licensing of plasmaphere-sis facilities “would pre-empt State and local laws governing plasmapheresis,” the FDA explained in a statement accompanying the regulations that “[t]hese regulations are not intended to usurp the powers of State or local authorities to regulate plasmapheresis procedures in their localities.” 38 Fed. Reg. 19365 (1973).
The question whether the regulation of an entire field has been reserved by the Federal Government is, essentially, a question of ascertaining the intent underlying the federal scheme. See supra, at 712-713. In this case, appellee concedes that neither Congress nor the FDA expressly preempted state and local regulation of plasmapheresis. Thus, if the county ordinances challenged here are to fail they must do so either because Congress or the FDA implicitly pre-empted the whole field of plasmapheresis regulation, or because particular provisions in the local ordinances conflict with the federal scheme. According to appellee, two separate factors support the inference of a federal intent to pre-empt the whole field: the pervasiveness of the FDA’s regulations and the dominance of the federal interest in this area. Appellee also argues that the challenged ordinances reduce the number of plasma donors, and that this effect conflicts with the congressional goal of ensuring an adequate supply of plasma.
The FDA’s statement is dispositive on the question of implicit intent to pre-empt unless either the agency’s position is inconsistent with clearly expressed congressional intent, see Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-845 (1984), or subsequent developments reveal a change in that position. Given appel-lee’s first argument for implicit pre-emption — that the comprehensiveness of the FDA’s regulations evinces an intent to pre-empt — any pre-emptive effect must result from the change since 1973 in the comprehensiveness of the federal regulations. To prevail on its second argument for implicit pre-emption — the dominance of the federal interest in plas-mapheresis regulation — appellee must show either that this interest became more compelling since 1973, or that, in 1973, the FDA seriously underestimated the federal interest in plasmapheresis regulation.
The second obstacle in appellee’s path is the presumption that state or local regulation of matters related to health and safety is not invalidated under the Supremacy Clause. Through the challenged ordinances, Hillsborough County has attempted to protect the health of its plasma donors by preventing them from donating too frequently. See Brief for Appellants 12. It also has attempted to ensure the quality of the plasma collected so as to protect, in turn, the recipients of such plasma. “Where . . . the field that Congress is said to have pre-empted has been traditionally occupied by the States ‘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.’” Jones v. Rath Packing Co., 430 U. S., at 525 (quoting Rice v. Santa Fe Elevator Corp., 331 U. S., at 230) (citations omitted). Cf. Kassel v. Consolidated Freightways Corp., 450 U. S. 662, 670 (1981) (deference to state regulation of safety under the dormant Commerce Clause); id., at 681, n. 1 (Brennan, J., concurring in judgment) (same); id., at 691 (Rehnquist, J., dissenting) (same). Of course, the same principles apply where, as here, the field is said to have been pre-empted by an agency, acting pursuant to congressional delegation. Appellee must thus present a showing of implicit pre-emption of the whole field, or of a conflict between a particular local provision and the federal scheme, that is strong enough to overcome the presumption that state and local regulation of health and safety matters can constitutionally coexist with federal regulation.
HH <
Given the clear indication of the FDA’s intention not to preempt and the deference with which we must review the challenged ordinances, we conclude that these ordinances are not pre-empted by the federal scheme.
A
We reject the argument that an intent to pre-empt may be inferred from the comprehensiveness of the FDA’s regulations at issue here. As we have pointed out, given the FDA’s 1973 statement, the relevant inquiry is whether a finding of pre-emption is justified by the increase, since 1973, in the comprehensiveness of the federal regulations. Admittedly, these regulations have been broadened over the years. When they were adopted in 1973, these regulations covered only plasma to be used in injections. In 1976, the regulations were expanded to cover also plasma to be used for the manufacture of “noninjectable” products. 41 Fed. Reg. 10762 (1976). The original regulations also were amended to “clarify and strengthen the existing Source Plasma (Human) regulations in light of FDA inspectional and other regulatory experience.” Ibid.; see also 39 Fed. Reg. 26161 (1974) (first proposing the amendments).
The FDA has not indicated that the new regulations affected its disavowal in 1973 of any intent to pre-empt state and local regulation, and the fact that the federal scheme was expanded to reach other uses of plasma does not cast doubt on the continued validity of that disavowal. Indeed, even in the absence of the 1973 statement, the comprehensiveness of the FDA’s regulations would not justify pre-emption. In New York Dept. of Social Services v. Dublino, 413 U. S. 405 (1973), the Court stated that “[t]he subjects of modern social and regulatory legislation often by their very nature require intricate and complex responses from the Congress, but without Congress necessarily intending its enactment as the exclusive means of meeting the problem.” Id., at 415. There, in upholding state work-incentive provisions against a pre-emption challenge, the Court noted that the federal provisions “had to be sufficiently comprehensive to authorize and govern programs in States which had no . . . requirements of their own as well as cooperatively in States with such requirements.” Ibid. But merely because the federal provisions were sufficiently comprehensive to meet the need identified by Congress did not mean that States and localities were barred from identifying additional needs or imposing further requirements in the field. See also De Canas v. Bica, 424 U. S. 351, 359-360 (1976).
We are even more reluctant to infer pre-emption from the comprehensiveness of regulations than from the comprehensiveness of statutes. As a result of their specialized functions, agencies normally deal with problems in far more detail than does Congress. To infer pre-emption whenever an agency deals with a problem comprehensively is virtually tantamount to saying that whenever a federal agency decides to step into a field, its regulations will be exclusive. Such a rule, of course, would be inconsistent with the federal-state balance embodied in our Supremacy Clause jurisprudence. See Jones v. Rath Packing Co., 430 U. S., at 525.
Moreover, because agencies normally address problems in a detailed manner and can speak through a variety of means, including regulations, preambles, interpretive statements, and responses to comments, we can expect that they will make their intentions clear if they intend for their regulations to be exclusive. Thus, if an agency does not speak to the question of pre-emption, we will pause before saying that the mere volume and complexity of its regulations indicate that the agency did in fact intend to pre-empt. Given the presumption that state and local regulation related to matters of health and safety can normally coexist with federal regulations, we will seldom infer, solely from the comprehensiveness of federal regulations, an intent to pre-empt in its entirety a field related to health and safety.
Appellee also relies on the promulgation of the National Blood Policy by the Department of Health, Education, and Welfare (HEW), as an indication that the federal regulatory scheme is now comprehensive enough to justify complete preemption. See Brief for Appellee 25-26. Such reliance is misplaced.
The National Blood Policy was established in 1974 as “a pluralistic and evolutionary approach to the solution of blood collection and distribution problems.” 39 Fed. Reg. 32702 (1974). The policy contains no regulations; instead, it is a broad statement of goals and a call for cooperation between the Federal Government and the private sector:
“These policies are intended to achieve certain goals but do not detail methods of implementation. In developing the most effective and suitable means of reaching these goals, the Secretary will involve, as appropriate, all relevant public and private sectors and Federal Government agencies in a cooperative effort to provide the best attainable blood services.” Id., at 32703.
The National Blood Policy indicates that federal regulation will be employed only as a last resort: “[I]f the private sector is unable to make satisfactory progress toward implementing these policies, a legislative and/or regulatory approach would have to be considered.” Ibid. The adoption of this policy simply does not support the claim that the federal regulations have grown so comprehensive since 1973 as to justify the inference of complete pre-emption.
B
Appellee’s second argument for pre-emption of the whole field of plasmapheresis regulation is that an intent to preempt can be inferred from the dominant federal interest in this field. We are unpersuaded by the argument. Undoubtedly, every subject that merits congressional legislation is, by definition, a subject of national concern. That cannot mean, however, that every federal statute ousts all related state law. Neither does the Supremacy Clause require us to rank congressional enactments in order of “importance” and hold that, for those at the top of the scale, federal regulation must be exclusive.
Instead, we must look for special features warranting preemption. Our case law provides us with clear standards to guide our inquiry in this area. For example, in the seminal case of Hines v. Davidowitz, 312 U. S. 52 (1941), the Court inferred an intent to pre-empt from the dominance of the federal interest in foreign affairs because “the supremacy of the national power in the general field of foreign affairs ... is made clear by the Constitution,” id., at 62, and the regulation of that field is “intimately blended and intertwined with responsibilities of the national government,” id., at 66; see also Zschernig v. Miller, 389 U. S. 429, 440-441 (1968). Needless to say, those factors are absent here. Rather, as we have stated, the regulation of health and safety matters is primarily, and historically, a matter of local concern. See Rice v. Santa Fe Elevator Corp., 331 U. S., at 230.
There is also no merit in appellee’s reliance on the National Blood Policy as an indication of the dominance of the federal interest in this area. Nothing in that policy takes plasma regulation out of the health-and-safety category and converts it into an area of overriding national concern.
C
Appellee’s final argument is that even if the regulations are not comprehensive enough and the federal interest is not dominant enough to pre-empt the entire field of plasmaphere-sis regulation, the Hillsborough County ordinances must be struck down because they conflict with the federal scheme. Appellee argues principally that the challenged ordinances impose on plasma centers and donors requirements more stringent than those imposed by the federal regulations, and therefore that they present a serious obstacle to the federal goal of ensuring an “adequate supply of plasma.” Tr. of Oral Arg. 24; see Brief for Appellee 30; 37 Fed. Reg. 17420 (1972). We find this concern too speculative to support pre-emption.
Appellee claims that “[t]he evidence at trial indicated that enforcement of the County ordinances would result in an increase in direct costs of plasma production by $1.50 per litre, and a total increase in production costs (including direct and indirect costs) of $7 per litre of plasma, an increase of approximately 15% in the total cost of production.” Brief for Appellee 30. Appellee argues that these increased financial burdens would reduce the number of plasma centers. In addition, appellee claims, the county requirements would reduce the number of donors who only occasionally sell their plasma because such donors would be deterred by the identification-card requirement. Id., at 30-31.
On the basis of the record before it, the District Court rejected each of appellee’s factual assertions. The District Court found that appellee’s cost-of-compliance estimates “were clouded with speculation.” App. 42. It also found that appellee had presented no facts to support its conclusion that “the vendor population would decrease by twenty-five percent.” Ibid. These findings of fact can be set aside only if they are clearly erroneous, Fed. Rule Civ. Proc. 52(a); see Anderson v. Bessemer City, 470 U. S. 564 (1985), and hence come to us with a strong presumption of validity.
More importantly, even if the Hillsborough County ordinances had, in fact, reduced the supply of plasma in that county, it would not necessarily follow that they interfere with the federal goal of maintaining an adequate supply of plasma. Undoubtedly, overly restrictive local legislation could threaten the national plasma supply. Neither Congress nor the FDA, however, has struck a particular balance between safety and quantity; as we have noted, the regulations, which contemplated additional state and local requirements, merely establish minimum safety standards. See 38 Fed. Reg. 19365 (1973); supra, at 710-711. Moreover, the record in this case does not indicate what supply the Federal Government considers “adequate,” and we have no reason to believe that any reduction in the quantity of plasma donated would make that supply “inadequate.”
Finally, the FDA possesses the authority to promulgate regulations pre-empting local legislation that imperils the supply of plasma and can do so with relative ease. See swpra, at 713. Moreover, the agency can be expected to monitor, on a continuing basis, the effects on the federal program of local requirements. Thus, since the agency has not suggested that the county ordinances interfere with federal goals, we are reluctant in the absence of strong evidence to find a threat to the federal goal of ensuring sufficient plasma.
Our analysis would be somewhat different had Congress not delegated to the FDA the administration of the federal program. Congress, unlike an agency, normally does not follow, years after the enactment of federal legislation, the effects of external factors on the goals that the federal legislation sought to promote. Moreover, it is more difficult for Congress to make its intentions known — for example by amending a statute — than it is for an agency to amend its regulations or to otherwise indicate its position.
In summary, given the findings of the District Court, the lack of any evidence in the record of a threat to the “adequacy” of the plasma supply, and the significance that we attach to the lack of a statement by the FDA, we conclude that the Hillsborough County requirements do not imperil the federal goal of ensuring sufficient plasma.
Appellee also argues that the county ordinances conflict with the federal regulations because they prevent individuals with hepatitis from donating their plasma. See supra, at 710. Such plasma is used for the production of hepatitis vaccines, and the federal regulations provide for its collection pursuant to special authorization and under carefully controlled conditions. 21 CFR § 610.41 (1984). To the extent that the Hillsborough County ordinances preclude individuals with hepatitis from donating their plasma, the ordinances are said to stand in the way of the accomplishment of the federal goal of combating hepatitis.
In order to collect plasma from individuals with hepatitis, however, a plasma center must obtain from the FDA, pursuant to §640.75, an exemption from the good-health requirements of § 640.63(c). The record does not indicate that appellee has received the required exemption. As a result, appellee could not collect plasma from individuals with hepatitis even in the absence of the county ordinances. Thus, appellee lacks standing to challenge the ordinances on this ground.
V
We hold that Hillsborough County Ordinances 80-11 and 80-12, and their implementing regulations, are not preempted by the scheme for federal regulation of plasmaphere-sis. The judgment of the Court of Appeals for the Eleventh Circuit is therefore reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
For the purposes of § 1254(2), local ordinances are treated in the same manner as state statutes. See, e. g., New Orleans v. Dukes, 427 U. S. 297, 301 (1976) (per curiam); Doran v. Salem Inn, Inc., 422 U. S. 922, 927, n. 2 (1975).
Appellee does not argue that pre-emption can be inferred from the comprehensiveness of the federal statutes governing plasmapheresis.
Nor do the amendments to the 1973 regulations indicate that the FDA was departing from its earlier statement; most of the changes are technical and provide no basis for inferring an intent that federal regulation be exclusive.
It follows that the FDA’s 1973 statement did not underestimate the federal interest in plasmapheresis regulation.
Two of the amici argue that the county ordinances interfere with the federal interest in uniform plasma standards. There is no merit to that argument. The federal interest at stake here is to ensure minimum standards, not uniform standards. Indeed, the FDA’s 1973 statement makes clear that additional, nonconflicting requirements do not interfere with federal goals, and we have found no reason to doubt the continued validity of that statement. See supra, at 714.
Since the ordinances incorporate the FDA’s regulations, see supra, at 710, they may in fact also provide for the type of exemptions authorized by 21 CFR § 640.75 (1984). If the ordinances were interpreted that way there would be, of course, no conflict.
Question: What is the state of the state agency associated with the administrative action?
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_adminaction
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032
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to 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.
MOHASCO CORP. v. SILVER
No. 79-616.
Argued March 25, 1980
Decided June 23, 1980
SteveNS, J., delivered the opinion of the Court, in which BurgeR, C. J., and Stewart, White, Powell, and RehNQUist, JJ., joined. BlacicmuN, J., filed a dissenting opinion, in which BreNNAN and Marshall, JJ., joined, post, p. 826.
Thomas Mead Santoro argued the cause for petitioner. With him on the briefs was Francis J. Holloway.
Judith P. Vladeck argued the cause for respondent. With her on the brief was Sheldon Engelhard. Edwin S. Kneedler argued the cause for the United States et al. as amici curiae urging affirmance. With him on the brief were Solicitor General McCree, Assistant Attorney General Days, Deputy Solicitor General Claiborne, Leroy D. Clark, Joseph T. Eddins, and Lutz Alexander Prager.
Robert E. Williams and Douglas S. McDowell filed a, brief for the Equal Employment Advisory Council as amicus curiae urging reversal.
Mb. Justice Stevens
delivered the opinion of the Court.
The question in this Title VII case is whether Congress intended the word “filed” to have the same meaning in subsections (c) and (e) of § 706 of the Civil Rights Act of 1964, 78 Stat. 260, as amended in 1972, 86 Stat. 104M05, 42 U. S. C. §§ 2000e-5 (c) and (e). The former subsection prohibits the filing of an unfair employment practice charge with the federal Equal Employment Opportunity Commission (EEOC) until after a state fair employment practices agency has had an opportunity to consider it. The latter subsection requires that in all events the charge must be filed with the EEOC within 300 days of the occurrence. We hold that a literal reading of the two subsections gives full effect to the several policies reflected in the statute.
On August 29, 1975, Mohasco Corp. discharged the respondent from his position as senior marketing economist. On June 15, 1976 — 291 days later — the EEOC received a letter from respondent asserting that Mohasco had discriminated against him because of his religion. The letter was promptly referred to the New York State Division of Human Rights. That state agency reviewed the matter and, in due course, determined that there was no merit in the charge.
Meanwhile, on August 20, 1976 — a date more than 60 days after respondent’s letter had been submitted to the EEOC and 357 days after respondent’s discharge — the EEOC notified Mohasco that respondent had filed a charge of employment discrimination.
About a year later, on August 24, 1977, the EEOC issued its determination that “there is not reasonable cause to believe the charge is true,” and formally notified respondent that if he wished to pursue the matter further, he had a statutory right to file a private action in a federal district court within 90 days. Respondent commenced this litigation 91 days later in the United States District Court for the Northern District of New York.
The District Court granted Mohasco’s motion for summary judgment on the ground that respondent’s failure to file a timely charge with the EEOC deprived the court of subject-matter jurisdiction. The court concluded that June 15, 1976 (the 291st day), could not be treated as the date that respondent’s charge was “filed” with the EEOC, because § 706 (c) provides that in States which have their own fair employment practice agencies — and New York is such a State — “no charge may be filed... by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated....” Since no proceedings had been commenced before the New York agency prior to June 15, 1976, and since the proceedings that were commenced at that time did not terminate within 60 days, the District Court read § 706 (c) as precluding any filing with the EEOC until 60 days after June 15, 1976. Because that date was 51 days beyond § 706 (e)’s 300-day time limit for filing in so-called “deferral States,” the charge was not timely filed.
The District Court refused to apply an EEOC regulation that would have treated respondent’s charge as timely because it was submitted to the EEOC within 300 days of the practice complained of and also within the applicable New York limitations period. The District Court held that the regulation was contrary to the plain language of the statute, and in any event, had not been followed by the EEOC itself in this case.
Over the dissent of Judge Meskill, the Court of Appeals for the Second Circuit reversed. 602 F. 2d 1083 (1979). It recognized that the District Court had read the statute literally, but concluded that a literal reading did not give sufficient weight to the overriding purpose of the Act. In the majority’s view, in order to be faithful to “the strong federal policy in insuring that employment discrimination is redressed,” id., at 1087, it was necessary “to conclude that a charge is 'filed’ for purposes of § 706 (e) when received, and 'filed’ as required by § 706 (c) when the state deferral period ends.” Ibid. By giving the word “filed” two different meanings, the court concluded that the letter received by the EEOC on June 15, 1976, had been filed within 300 days as required by § 706 (e), but had not been filed during the 60-day deferral period for purposes of § 706 (c).
Judge Meskill believed that a literal reading of the statute was not only consistent with its basic purpose, but was also warranted by the additional purpose of “requiring] prompt action on the part of Title VII plaintiffs.” 602 F. 2d, at 1092. He noted that Congress had imposed a general requirement of filing within 180 days, and that the exceptional period of 300 days for deferral States was merely intended to give the charging party a fair opportunity to invoke his state remedy without jeopardizing his federal rights; the exception was not intended to allow residents of deferral States to proceed with less diligence than was generally required.
Because there is a conflict among the Courts of Appeals on the proper interpretation of the word “filed” in this statute, we granted certiorari. 444 U. S. 990. We now reverse.
We first review the plain meaning of the relevant statutory language; we next examine the legislative history of the 1964 Act and the 1972 amendments for evidence that Congress intended the statute to have a different meaning; and finally we consider the policy arguments in favor of a less literal reading of the Act.
I
Section 706 (e) begins with the general rule that a “charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred... Since respondent’s letter was submitted.to the EEOC 291 days after the occurrence, he plainly did not exercise the diligence required by that general rule. Nor, as we shall explain, did he have to; but it should be pointed out that had he sent his charge to either the state agency or the EEOC within 180 days, he would have had no difficulty in complying with the terms of the exception to that general rule allowing a later filing with the EEOC in deferral States.
That exception allows a filing with the EEOC after 180 days if “the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice... When respondent submitted his letter to the EEOC, he had not yet instituted any state proceedings. Under the literal terms of the statute, it could therefore be argued that he did not bring himself within the exception to the general 180-day requirement. But in Love v. Pullman Co., 404 U. S. 522, 525, we held that “[n]othing in the Act suggests that the state proceedings may not be initiated by the EEOC acting on behalf of the complainant rather than by the complainant himself....” Here, state proceedings were instituted by the EEOC when it immediately forwarded his letter to the state agency on June 15, 1976. Accordingly, we treat the state proceedings as having been instituted on that date. Since the EEOC could not proceed until either state proceedings had ended or 60 days had passed, the proceedings were "initially instituted with a State... agency” prior to their official institution with the EEOC. Therefore, respondent came within § 706 (e)’s exception allowing a federal filing more than 180 days after the occurrence.
That exception states that “such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred, or within thirty days after receiving notice that the State or local agency has terminated the proceedings under the State or local law, whichever is earlier....” Since the state proceedings did not terminate until well after the expiration of the 300-day period, see n. 5, supra, the 300-day limitations period is the one applicable to respondent’s charge. The question, then, is whether the June 15, 1976, letter was “filed” when received by the EEOC within the meaning of subsection (e) of § 706.
The answer is supplied by subsection (c), which imposes a special requirement for cases arising in deferral States: “no charge may be filed under subsection [(b)] by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated....” Thus, in terms, the statute prohibited the EEOC from allowing the charge to be filed on the date the letter was received. Although, as the Court held in Love v. Pullman Co., supra, it was proper for the EEOC to hold respondent’s “complaint in ‘suspended animation,’ automatically filing it upon termination of the State proceedings,” 404 U. S., at 526 (emphasis added), that means that the charge was filed on the 351st day, not the 291st. By that time, however, the 300-day period had run and the filing was therefore untimely.
II
In contrast to this rather straightforward reading of the statute, respondent urges us to give the word “filed” two different meanings within the same statutory section in order better to effectuate Congress’ purpose underlying Title VII. Essentially, his argument is that a rule permitting filings for up to 300 days after the discriminatory occurrence — regardless of the rule against filing during the deferral period — would help further the cause of eliminating discriminatory employment practices. We therefore turn to the legislative history, but in doing so we emphasize that the words of the statute are not ambiguous. Nor does a literal reading of them lead to “absurd or futile results,” United States v. American Trucking Assns., 310 U. S. 534, 543. For time limitations are inevitably arbitrary to some extent; and the limitations at issue here are not so short that a plaintiff’s remedy is effectively denied for all practical purposes without an opportunity for a hearing.
A
It is unquestionably true that the 1964 statute was enacted to implement the congressional policy against discriminatory employment practices, and that that basic policy must inform construction of this remedial legislation. It must also be recognized, however, in light of the tempestuous legislative proceedings that produced the Act, that the ultimate product reflects other, perhaps countervailing, purposes that some Members of Congress sought to achieve. The present language was clearly the result of a compromise. It is our task to give effect to the statute as enacted. See Toussie v. United States, 397 U. S. 112, 123-124.
The typical time limitations provision in the numerous proposed civil rights bills required the filing of a charge with the new federal fair employment practices agency within six months of the discriminatory conduct. These initial proposals did not provide for mandatory deferral by the federal agency during comparable state administrative proceedings, though some proposals would have authorized the federal agency to enter agreements of cooperation with state agencies, under which the federal agency would refrain from processing charges in specified cases.
On February 10, 1964, the House of Representatives passed H. R. 7152, its version of the comprehensive Civil Rights Act. Title VII of that bill contained a 6-month limitations provision for the filing of charges with the EEOC, and directed the EEOC to enter into agreements with state agencies providing for suspension of federal enforcement. In the Senate, H. R. 7152 met with exceptionally strong opposition. The principal opposition focused not on the details of the bill, but on its fundamental purpose. During the course of one of the longest filibusters in the history of the Senate, the bipartisan leadership of the Senate carefully forged the compromise substitute (Dirksen compromise) that was ultimately to become in substantial part the Civil Rights Act of 1964. The purpose of the compromise was to attract sufficient support to achieve the two-thirds vote necessary for cloture. This effort was successful. Fifteen days after the Dirksen compromise was offered as an amendment, a cloture motion carried the necessary votes.
Section 706 (d) of the compromise provided for a 90-day limitations period for filing discrimination claims with' the EEOC in nondeferral States, the period ultimately adopted in the 1964 version of the Act. It was the first time the 90-day figure appeared in any proposed bill, and its appearance was unaccompanied by any explanation. Section 706 (b) of the compromise introduced the mandatory deferral concept for the first time, providing that during a 60-day deferral period, “no charge may be filed” — language that figures so prominently in this case. In such deferral States, § 706 (d) extended the time for filing with the EEOC to 210 days.
Since the Senate did not explain why it adopted a time limitation of only half that adopted by the House, one can only speculate. But it seems clear that the 90-day provision to some must have represented a judgment that most genuine claims of discrimination would be promptly asserted and that the costs associated with processing and defending stale or dormant claims outweigh the federal interest in guaranteeing a remedy to every victim of discrimination. To others it must have represented a necessary sacrifice of the rights of some victims of discrimination in order that a civil rights bill could be enacted. Section 706 (b) was rather clearly intended to increase the role of States and localities in resolving charges of employment discrimination. And § 706 (d)’s longer time of 210 days for filing with the EEOC in deferral States was included to prevent forfeiture of a complainant’s federal rights while participating in state proceedings.
But neither this latter provision nor anything else in the legislative history contains any “suggestion that complainants in some' States were to be allowed to proceed with less diligence than those in other states.” Moore v. Sunbeam Corp., 459 F. 2d 811, 825, n. 35 (CA7 1972). The history identifies only one reason for treating workers in deferral States differently from workers in other States: to give state agencies an opportunity to redress the evil at which the federal legislation was aimed, and to avoid federal intervention unless its need was demonstrated. The statutory plan was not designed to give the worker in a deferral State the option of choosing between his state remedy and his federal remedy, nor indeed simply to allow him additional time in which to obtain state relief. Had that been the plan, a simple statute prescribing a 90-day period in nondeferral States and a 210-day period in deferral States would have served the legislative purpose. Instead, Congress chose to prohibit the filing of any federal charge until after state proceedings had been completed or until 60 days had passed, whichever came sooner.
To be sure, in deferral States having fair employment practices agencies over- one year old, Congress in effect gave complainants an additional 60 days in which initially to file a charge and still ensure preservation of their federal rights. In other words, under the 1964 Act, a complainant in such a deferral State could have filed on the 160th day, and then filed with the EEOC on the 210th day at the end of the 60-day deferral period, while a complainant in a nondeferral State had to file on the 90th day with the EEOC. But there is no reason to believe that the 1964 Congress intended deferral state complainants to have the additional advantage of being able to ignore the 210-day limitations period when they failed to invoke their rights early enough to allow the 60-day deferral period to expire within the 210-day period.
In sum, the legislative history of the 1964 statute is entirely consistent with the wording of the statute itself.
B
In 1972, Congress amended § 706 by changing the general limitations period from 90 days to 180 days and correspondingly extended the maximum period for deferral States from 210 days to 300 days. The amendment did not make any change in the procedural scheme, however, although such a change was proposed and rejected.
As initially introduced in the House of Representatives, the proposed 1972 amendments to Title VII would have deleted § 706 (b)’s prohibition against the filing of a federal charge until 60 days after the institution of state proceedings, and would have substituted language merely prohibiting the EEOC from taking any action on the charge until the prescribed period had elapsed. The House, however, concluded that no change in this aspect of the 1964 statute should be made, and deleted the amendment prior to passage. The Senate version of the amendments passed with the provision merely prohibiting the EEOC from taking any action on a charge in the deferral period. But at conference, the position of the House prevailed on the understanding that the law as interpreted in Love v. Pullman Co., 404 U. S. 522, was controlling. As already noted, our literal reading of the word “filed” in § 706 is fully supported by the Love opinion.
It is true that a section-by-section analysis of the 1972 amendments filed by Senator Williams refers to the then recent decision of the Tenth Circuit in Vigil v. American Tel. & Tel. Co., 455 F. 2d 1222 (1972), see n. 16, supra, with approval, and that that case supports respondent’s reading of the Act. But we do not find that isolated reference — which was first inserted into the legislative history after the completion of the work of both the Senate Committee and House Committee, as well as after the Report of the joint conference just referred to — to represent either a sound interpretation of the 1964 enactment or a conscious intention of Congress to change existing law. The point at which it appears in the legislative history simply refutes any notion that Congress focused on the precise issue, much less adopted the approach of the Vigil case. To the extent that Congress focused on the issue at all in 1972, it expressly rejected the language that would have mandated the exact result that respondent urges.
Ill
Finally we consider the additional points advanced in support of respondent’s position: (1) that it is unfair to victims of discrimination who often proceed without the assistance of counsel; (2) that it is contrary to the interpretation of the Act by the agency charged with responsibility for its enforcement; and (3) that a less literal reading of the Act would adequately effectuate the policy of deferring to state agencies.
The unfairness argument is based on the assumption that a lay person reading the statute would assume that he had 300 days in which to file his first complaint with either a state or federal agency. We find no merit in this argument. We believe that a lay person would be more apt to regard the general obligation of filing within 180 days as the standard of diligence he must satisfy,, and that one who carefully read the entire section would understand it to mean exactly what it says.
We must also reject any suggestion that the EEOC may adopt regulations that are inconsistent with the statutory mandate. As we have held on prior occasions, its “interpretation” of the statute cannot supersede the language chosen by Congress.
Finally, we reject the argument that the timeliness requirements would be adequately served by allowing the EEOC to treat a letter received on the 291st day as “filed” and interpreting the § 706 (c) prohibition as merely requiring it to postpone any action on the charge for at least 60 days. There are two reasons why this interpretation is unacceptable.
By choosing what are obviously quite short deadlines, Congress clearly intended to encourage the prompt processing of all charges of employment discrimination. Under a literal reading of the Act, the EEOC has a duty to commence its investigation no later than 300 days after the alleged occurrence; under respondent's “interpretation” of § 706 (c), that duty might not arise for 360 days. Perhaps the addition of another 60-day delay in the work of an already seriously overburdened agency is not a matter of critical importance. But in a statutory scheme in which Congress carefully prescribed a series of deadlines measured by numbers of days — rather than months or years — we may not simply interject an additional 60-day period into the procedural scheme. We must respect the compromise embodied in the words chosen by Congress. It is not our place simply to alter the balance struck by Congress in procedural statutes by favoring one side or the other in matters of statutory construction.
In the end, we cannot accept respondent’s position without unreasonably giving the word “filed” two different meanings in the same section of the statute. Even if the interests of justice might be served in this particular case by a bifurcated construction of that word, in the long run, experience teaches that strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law.
Accordingly, the judgment of the Court of Appeals is reversed.
So ordered.
“In the case of an alleged unlawful employment practice occurring in a State, or political subdivision of a State, which has a State or local law prohibiting the unlawful employment practice alleged and establishing or authorizing a State or local authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, no charge may be filed under subsection [(b)] by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated, provided that such sixty-day period shall be extended to one hundred and twenty days during the first year after the effective date of such State or local law. If any requirement for the commencement of such proceedings is imposed by a State or local authority other than a requirement of the filing of a written and signed statement of the facts upon which the proceeding is based, the proceeding shall be deemed to have been commenced for the purposes of this subsection at the time such statement is sent by registered mail to the appropriate State or local authority.” 86 Stat. 104.
“A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred and notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice) shall be served upon the person against whom such charge is made within ten days thereafter, except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant dr seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred, or within thirty days after receiving notice that the State or local agency has terminated the proceedings under the State or local law, whichever is earlier, and a copy of such charge shall be filed by the Commission with the State or local agency.” 86 Stat. 105.
According to respondent’s complaint, he holds a master’s degree in economics from Columbia University. Record Item No. 1, p. 3.
The District Court stated that “[t]he period of limitation for filing a complaint with the New York State Division of Human Rights is one year. N. Y. Exec. Law § 297 (5) (McKinney Supp. 1977).” App. to Pet. for Cert. A14.
The determination by the New York State Division of Human Rights that there was no probable cause to believe Mohasco had engaged in the discriminatory conduct described by respondent was issued on February 9, 1977. That determination was upheld by order of the New York State Human Rights Appeal Board on December 22, 1977.
The notice was on a printed form which merely advised Mohasco of the name of the charging party, the date of the alleged violation, and that the nature of the charge was an alleged discharge on the basis of religion. The notice further advised Mohasco that “[bjecause of the Commission’s volume of pending work, we are unable to tell you when we are able to schedule investigation of this charge....” App. 18. One might therefore infer that as of 1976, the EEOC had not overcome its enormous backlog as documented in 1971. See H. R. Rep. No. 92-238, p. 64 (1971), Legislative History of Equal Employment Opportunity Act of 1972 (Committee Print compiled for the Senate Committee on Labor and Public Welfare by the Subcommittee on Labor), p. 124 (1972) (hereinafter 1972 Leg. Hist.); S. Rep. No. 92-415, p. 23, 1972 Leg. Hist. 432; Occidental Life Ins. Co. v. EEOC, 432 U. S. 355, 369, n. 24.
App. to Pet. for Cert. A49.
App. 19.
Petitioner did not assert respondent’s failure to file the action within 90 days as a defense.
The pro se complaint prayed for an injunction against alleged continuing unlawful employment practices, compensatory damages against Mohasco and several of its executives jointly and severally in the sum of $100,000, and punitive damages against Mohasco in the sum of $1 million and against each individual defendant in the sum of $100,000. Record Item No. 1, p. 19. The District Court dismissed the complaint against the individual defendants on the ground that they had not been named in the original charge. The validity of that dismissal is not before us.
The District Court noted that the EEOC’s letter forwarding respondent’s charge to the state agency had stated that the EEOC would automatically file the charge “at the expiration date of the deferral period, unless the EEOC was notified of an earlier termination of proceedings by the Division of Human Rights.” App. to Pet. for Cert. A15 (emphasis in original). Thus, the Court concluded that the EEOC itself did not deem the charge filed until 60 days after June 15, 1976. Ibid.
Title 29 CFR § 1601.12 (b) (1) (v) (A) (1977) state:
“In cases where the document is submitted to the Commission more than 180 days from the date of the alleged violation but within the period of limitation of the particular 706 Agency, the case shall be deferred pursuant to the procedures set forth above: Provided, however, That unless the Commission is earlier notified of the termination of the State or local proceedings, the Commission will consider the charge to be filed with the Commission on the 300th day following the alleged discrimination and will commence processing the case. Where the State or local agency terminates its proceedings prior to the 300th day following the alleged act of discrimination, without notification to the Commission of such termination, the Commission will consider the charge to be filed with the Commission on the date the person making the charge is notified of the termination.”
A current regulation to substantially the same effect is found at 29 CFR §§ 1601.13 (a), (c), (d)(2) (in) (1979).
See n. 4, supra.
App. to Pet. for Cert. A15. See. n. 11, supra.
The 300-day period expired on June 24, 1976.
The decision of the Court of Appeals in this case is consistent with the decision of the Tenth Circuit in Vigil v. American Tel. & Tel. Co., 455 F. 2d 1222 (1972), but is in conflict with the decision of the Seventh Circuit in Moore v. Sunbeam Corp., 459 F. 2d 811 (1972). Anderson v. Methodist Evangelical Hospital, Inc., 464 F. 2d 723 (CA6 1972), cited Vigil with approval, though the court’s conclusion that the plaintiff’s filing in that case was timely would have been the same under the construction of § 706 adopted in the Moore case.
The approach of the Eighth Circuit, see Olson v. Rembrandt Printing Co., 511 F. 2d 1228 (1975), also conflicts with the decision of the Second Circuit in this case, but in a way that substantially differs from that of the Seventh Circuit decision in Moore. Olson held that in order to preserve his rights under Title VII, a complainant must under all circumstances initially file his charge with either a state fair employment practices agency or the EEOC within 180 days of the discriminatory occurrence. See also Geromette v. General Motors Corp., 609 F. 2d 1200 (CA6 1979) (citing Olson with approval, thus perhaps signalling a retreat from Anderson’s endorsement of Vigil); Rodriguez v. Southern Pacific Transp. Co., 587 F. 2d 980 (CA9 1978). Cf. Ciccone v. Textron Inc., 616 F. 2d 1216 (CA1 1980) (substantially same approach under similar provisions in the Age Discrimination in Employment Act, 29 U. S. C. §§ 621-634).
As indicated in n. 19, infra, we believe that the restrictive approach exemplified by Olson, is not supported by the statute. Under the Moore decision, which we adopt today, a complainant in a deferral State having a fair employment practices agency over one year old need only file his charge within 240 days of the alleged discriminatory employment practice in order to insure that his federal rights will be preserved. If a complainant files later than that (but not more than 300 days after the practice complained of), his right to seek relief under Title VII will nonetheless be preserved if the State happens to complete its consideration of the charge prior to the end of the 300-day period. In a State with a fair employment practices agency less than one year old, however, a complainant must file within 180 days in order to be sure that his federal rights will be preserved, since the EEOC must defer consideration during proceedings before such a new agency for up to 120 days. See 42 U. S. C. § 2000e-5 (e), n. 1, supra.
The District Court refused to consider respondent’s allegations that discrimination in the form of blacklisting had continued beyond the date of his discharge, since in its view that allegation was not fairly comprised by respondent’s June 15, 1976, letter to the EEOC. The Court of Appeals unanimously reversed on that point, and remanded the case to the District Court. Petitioner sought review of that ruling in this Court, but we limited our grant of certiorari to the timeliness question discussed in today’s opinion. For purposes of decision, we assume that the discrimination complained of
Question: What is the agency involved in the administrative action?
001. Army and Air Force Exchange Service
002. Atomic Energy Commission
003. Secretary or administrative unit or personnel of the U.S. Air Force
004. Department or Secretary of Agriculture
005. Alien Property Custodian
006. Secretary or administrative unit or personnel of the U.S. Army
007. Board of Immigration Appeals
008. Bureau of Indian Affairs
009. Bureau of Prisons
010. Bonneville Power Administration
011. Benefits Review Board
012. Civil Aeronautics Board
013. Bureau of the Census
014. Central Intelligence Agency
015. Commodity Futures Trading Commission
016. Department or Secretary of Commerce
017. Comptroller of Currency
018. Consumer Product Safety Commission
019. Civil Rights Commission
020. Civil Service Commission, U.S.
021. Customs Service or Commissioner or Collector of Customs
022. Defense Base Closure and REalignment Commission
023. Drug Enforcement Agency
024. Department or Secretary of Defense (and Department or Secretary of War)
025. Department or Secretary of Energy
026. Department or Secretary of the Interior
027. Department of Justice or Attorney General
028. Department or Secretary of State
029. Department or Secretary of Transportation
030. Department or Secretary of Education
031. U.S. Employees' Compensation Commission, or Commissioner
032. Equal Employment Opportunity Commission
033. Environmental Protection Agency or Administrator
034. Federal Aviation Agency or Administration
035. Federal Bureau of Investigation or Director
036. Federal Bureau of Prisons
037. Farm Credit Administration
038. Federal Communications Commission (including a predecessor, Federal Radio Commission)
039. Federal Credit Union Administration
040. Food and Drug Administration
041. Federal Deposit Insurance Corporation
042. Federal Energy Administration
043. Federal Election Commission
044. Federal Energy Regulatory Commission
045. Federal Housing Administration
046. Federal Home Loan Bank Board
047. Federal Labor Relations Authority
048. Federal Maritime Board
049. Federal Maritime Commission
050. Farmers Home Administration
051. Federal Parole Board
052. Federal Power Commission
053. Federal Railroad Administration
054. Federal Reserve Board of Governors
055. Federal Reserve System
056. Federal Savings and Loan Insurance Corporation
057. Federal Trade Commission
058. Federal Works Administration, or Administrator
059. General Accounting Office
060. Comptroller General
061. General Services Administration
062. Department or Secretary of Health, Education and Welfare
063. Department or Secretary of Health and Human Services
064. Department or Secretary of Housing and Urban Development
065. Administrative agency established under an interstate compact (except for the MTC)
066. Interstate Commerce Commission
067. Indian Claims Commission
068. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
069. Internal Revenue Service, Collector, Commissioner, or District Director of
070. Information Security Oversight Office
071. Department or Secretary of Labor
072. Loyalty Review Board
073. Legal Services Corporation
074. Merit Systems Protection Board
075. Multistate Tax Commission
076. National Aeronautics and Space Administration
077. Secretary or administrative unit or personnel of the U.S. Navy
078. National Credit Union Administration
079. National Endowment for the Arts
080. National Enforcement Commission
081. National Highway Traffic Safety Administration
082. National Labor Relations Board, or regional office or officer
083. National Mediation Board
084. National Railroad Adjustment Board
085. Nuclear Regulatory Commission
086. National Security Agency
087. Office of Economic Opportunity
088. Office of Management and Budget
089. Office of Price Administration, or Price Administrator
090. Office of Personnel Management
091. Occupational Safety and Health Administration
092. Occupational Safety and Health Review Commission
093. Office of Workers' Compensation Programs
094. Patent Office, or Commissioner of, or Board of Appeals of
095. Pay Board (established under the Economic Stabilization Act of 1970)
096. Pension Benefit Guaranty Corporation
097. U.S. Public Health Service
098. Postal Rate Commission
099. Provider Reimbursement Review Board
100. Renegotiation Board
101. Railroad Adjustment Board
102. Railroad Retirement Board
103. Subversive Activities Control Board
104. Small Business Administration
105. Securities and Exchange Commission
106. Social Security Administration or Commissioner
107. Selective Service System
108. Department or Secretary of the Treasury
109. Tennessee Valley Authority
110. United States Forest Service
111. United States Parole Commission
112. Postal Service and Post Office, or Postmaster General, or Postmaster
113. United States Sentencing Commission
114. Veterans' Administration or Board of Veterans' Appeals
115. War Production Board
116. Wage Stabilization Board
117. State Agency
118. Unidentifiable
119. Office of Thrift Supervision
120. Department of Homeland Security
121. Board of General Appraisers
122. Board of Tax Appeals
123. General Land Office or Commissioners
124. NO Admin Action
125. Processing Tax Board of Review
Answer:
|
songer_district
|
H
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
John W. HECHINGER, et al., Appellants, v. Bernard V. O’NEILL, et al., Appellees. Bernard V. O’NEILL, et al., Appellants, v. John W. HECHINGER, et al., Appellees.
Nos. 12046-12047.
United States Court of Appeals District of Columbia Circuit
Argued Oct. 20, 1954.
Decided Nov. 4, 1954.
Mr. Cornelius H. Doherty, Washington, D. C., with whom Mr. Robert A. Littleton, Washington, D. C., was on the brief, for appellants in No. 12046 and appellees in No. 12047.
Mr. James M. Earnest, Washington, D. C., with whom Mr. Fred M. Vinson, Jr., Washington, D. C., was on the brief, for appellees in No. 12046 and appellants in No. 12047.
Before EDGERTON, FAHY, and WASHINGTON, Circuit Judges.
PER CURIAM.
These appeals involve controversies between trustees and beneficiaries. We find no error affecting substantial rights in the District Court’s disposition of these controversies.
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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sc_authoritydecision
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B
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence.
KRAFT GENERAL FOODS, INC. v. IOWA DEPARTMENT OF REVENUE AND FINANCE
No. 90-1918.
Argued April 22, 1992
Decided June 18, 1992
Stevens, J., delivered the opinion of the Court, in which White, O’Con-nor, Scalia, Kennedy, Souter, and Thomas, JJ., joined. Rehnquist, C. J., filed a dissenting opinion, in which Blackmun, J., joined, post, p. 82.
Jerome B. Libin argued the cause for petitioner. With him on the briefs 'were Kathryn L. Moore and John V. Donnelly.
Marcia Mason, Assistant Attorney General of Iowa, argued the cause for respondent. With her on the brief were Bonnie J. Campbell, Attorney General, and Harry M. Griger, Special Assistant Attorney General.
Kent L. Jones argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Starr, Acting Assistant Attorney General Bruton, Deputy Solicitor General Wallace, Gary B. Allen, and Ernest J. Brown.
Briefs of amici curiae urging reversal were filed for Avon Products, Inc., et al. by Timothy B. Dyk, Edward, K. Bilieh, and Maryann B. Gall; for Chevron Corp. et al. by Mark L. Evans, Alan I. Horowitz, and Anthony F. Shelley; and for the Washington Legal Foundation by Stephan G. Weil, Susan G. Braden, Daniel J. Popeo, and Paul D. Kamenar.
Richard Ruda, Michael G. Dzialo, Martin Label, and James F. Flug filed a brief for the National Conference of State Legislatures et al. as amici curiae urging affirmance.
Justice Stevens
delivered the opinion of the Court.
In 1981 petitioner Kraft General Foods, Inc. (Kraft), operated a unitary business throughout the United States and in several foreign countries. Because part of its business was conducted in Iowa, Kraft was subject to the Iowa Business Tax on Corporations. At issue in this case is Iowa’s inclusion in the tax base of the dividends that Kraft received from six subsidiaries, each of which was incorporated and conducted its business in a foreign country. While Iowa taxes the dividends that a corporation receives from its foreign subsidiaries, Iowa does not tax dividends received from domestic subsidiaries. The question presented is whether the disparate treatment of dividends from foreign and from domestic subsidiaries violates the Foreign Commerce Clause.
I
The Iowa statute uses the federal definition of “net income” with certain adjustments. For federal tax purposes, corporations are generally allowed a deduction for dividends received from domestic subsidiaries. As the earnings of the domestic subsidiaries, themselves, are subject to federal taxation, this deduction avoids a second federal tax on those earnings. The Federal Government generally does not tax the earnings of foreign subsidiaries, and the dividends paid by foreign subsidiaries are not deductible. The parent corporation, however, does receive a credit for the foreign taxes paid on the dividends and on the underlying foreign earnings. Like the deduction for domestic subsidiary dividends, the foreign tax credit is intended to mitigate multiple taxation of corporate earnings.
In following the federal scheme for the calculation of taxable income, Iowa allows a deduction 'for dividends received from domestic subsidiaries, but not for those received from foreign subsidiaries. Iowa does not directly tax the income of a subsidiary unless the subsidiary, itself, does business in Iowa. Thus, if a domestic subsidiary transacts business in Iowa, its income is taxed, but if it does not do business in Iowa, neither its income nor the dividends paid to its parent are taxed. In the ease of the foreign subsidiary doing business abroad, Iowa does not tax the corporate income,'but does tax the dividends paid to the parent. Unlike the Federal Government, Iowa does not allow a credit for taxes paid to foreign countries. See 465 N. W. 2d 664, 665 (Iowa 1991).
In computing its taxable income on its 1981 Iowa return, Kraft deducted foreign subsidiary dividends, notwithstanding contrary provisions of Iowa law. Respondent Iowa Department of Revenue and Finance (Iowa) assessed a defi-cieney. After its administrative protest was denied, Kraft challenged the assessment in Iowa courts, alleging that the disparate treatment of domestic and foreign subsidiary dividends violated the Commerce Clause and the Equal Protection Clause of the Federal Constitution. The Iowa Supreme Court rejected the Commerce Clause claim because petitioner failed to demonstrate “that Iowa businesses receive a commercial advantage over foreign commerce due to Iowa’s taxing scheme.” Id., at 668. In considering Kraft’s challenge under the Equal Protection Clause, the court found that Iowa’s use of the federal formula for calculation of taxable income was convenient both for the taxpayer and for the State. Concluding that the Iowa statute was rationally related to the goal of administrative efficiency, the Iowa Supreme Court held that the statute did not violate equal protection. Id., at 669. We granted certiorari. 502 U. S. 1056 (1992).
II
The principal dispute between the parties concerns whether, on its face, the Iowa statute discriminates against foreign commerce. It is indisputable that the Iowa statute treats dividends received from foreign subsidiaries less favorably than dividends received from domestic subsidiaries. Iowa includes the former, but not the latter, in the calculation of taxable income. While admitting that the two kinds of dividends are treated differently, Iowa and its amici advance several arguments in support of the proposition that this differential treatment does not constitute prohibited discrimination against foreign commerce.
Amicus United States notes that a subsidiary’s place of incorporation does not necessarily correspond to the locus of its business operations. A domestic corporation might do business abroad, and its dividends might reflect earnings from its foreign activity. Conversely, a foreign corporation might do business in the United States, with its dividend payments reflecting domestic business operations. On this basis, the United States contends that the disparate treatment of dividends from foreign and domestic subsidiaries does not translate into discrimination based on the location or nature of business activity and is thus not prohibited by the Commerce Clause.
We recognize that the domicile of a corporation does not necessarily establish that it is engaged in either foreign or domestic commerce. In this case, however, it is stipulated that the foreign subsidiaries did, in fact, operate in foreign commerce and, further, that the decision to do business abroad through foreign subsidiaries is typically supported by legitimate business reasons. By its nature, a unitary business is characterized by a flow of value among its components. See Container Corp. of America v. Franchise Tax Bd., 463 U. S. 159, 178 (1983). The flow of value between Kraft and its foreign subsidiaries clearly constitutes foreign commerce; this flow includes the foreign subsidiary dividends, which, as Iowa acknowledges, themselves constitute foreign commerce.
Moreover, through the interplay of the federal and Iowa tax statutes, the applicability of the Iowa tax necessarily depends not only on the domicile of the subsidiary, but also on the location of the subsidiary’s business activities. The Federal Government generally taxes the income that a foreign corporation earns in the United States. To avoid multiple taxation, the Government allows a deduction for foreign subsidiary dividends that reflect such domestic earnings. In adopting the federal pattern, Iowa also allows a deduction for dividends received from a foreign subsidiary if the dividends reflect business activity in the United States. Accordingly, while the dividends of all domestic subsidiaries are excluded from the Iowa tax base, the dividends of foreign subsidiaries are excluded only to the extent they reflect domestic earnings. In sum, the only subsidiary dividend payments taxed by Iowa are those reflecting the foreign business activity of foreign subsidiaries. We do not think that this discriminatory treatment can be justified on the ground that some of the (untaxed) dividend payments from domestic subsidiaries also reflect foreign earnings.
In a related argument, Iowa and amicus United States assert that Kraft could conduct its foreign business through domestic subsidiaries instead of foreign subsidiaries or, alternatively, could set up a domestic company to hold the stock of the foreign subsidiaries and receive the foreign dividend payments. In either case, Kraft, itself, would receive no dividends from foreign subsidiaries and would thus avoid paying Iowa tax on income attributable to the foreign operations. Iowa and the United States contend that these alternatives further demonstrate that it is not foreign commerce, but, at most, a particular form of corporate organization that is burdened.
This argument is not persuasive. Whether or not the suggested methods of tax avoidance would be practical as a business matter, and whether or not they might generate adverse tax consequences in other jurisdictions, we do not think that a State can force a taxpayer to conduct its foreign business through a domestic subsidiary in order to avoid discriminatory taxation of foreign commerce. Cf. Metropolitan Life Ins. Co. v. Ward, 470 U. S. 869, 878-879 (1985). We have previously found that the Commerce Clause is not violated when the differential tax treatment of two categories of companies "results solely from differences between the nature of their businesses, not from the location of their activities.” Amerada Hess Corp. v. Director, Div. of Taxation, N. J. Dept. of Treasury, 490 U. S. 66, 78 (1989). We find no authority for the different proposition advanced here that a tax that does discriminate against foreign commerce may be upheld if a taxpayer could avoid that discrimination by changing the domicile of the corporations through which it conducts its business. Our cases suggest the contrary. See Westinghouse Electric Corp. v. Tully, 466 U. S. 388, 406 (1984); Halliburton Oil Well Cementing Co. v. Reily, 373 U. S. 64, 72 (1963).
Repeating the argument that prevailed in the Iowa Supreme Court, Iowa next insists that its tax system does not violate the Commerce Clause because it does not favor local interests. To the extent corporations do business in Iowa, an apportioned share of their entire corporate income is subject to Iowa tax. In the case of a foreign subsidiary doing business abroad, Iowa would tax the dividends paid to the domestic parent, but would not tax the subsidiary’s earnings. Summarizing this analysis, Iowa asserts: “More earnings of the domestic subsidiary, which has income producing activities in Iowa, than earnings of the foreign subsidiary, which has no Iowa activities, are included in the preapportioned net income base for the unitary business as a whole.” Brief for Respondent 19. Far from favoring local commerce, Iowa argues, the tax system places additional burdens on Iowa businesses.
We agree that the statute does not treat Iowa subsidiaries more favorably than subsidiaries located elsewhere. We are not persuaded, however, that such favoritism is an essential element of a violation of the Foreign Commerce Clause. In Japan Line, Ltd. v. County of Los Angeles, 441 U. S. 434 (1979), we concluded that the constitutional prohibition against state taxation of foreign commerce is broader than the protection afforded to interstate commerce, id., at 445-446, in part because matters of concern to the entire Nation are implicated, id., at 448-451. Like the Import-Export Clause, the Foreign Commerce Clause recognizes that discriminatory treatment of foreign commerce may create problems, such as the potential for international retaliation, that concern the Nation as a whole. Id., at 450. So here, we think that a State’s preference for domestic commerce over foreign commerce is inconsistent with the Commerce Clause even if the State’s own economy is not a direct beneficiary of the discrimination. As the absence of local benefit does not eliminate the international implications of the discrimination, it cannot exempt such discrimination from Commerce Clause prohibitions.
Iowa and amicus United States also assert the stronger claim that Iowa’s tax system does not favor business activity in the United States generally over business activity abroad. If true, this would indeed suggest that the statute does not discriminate against foreign commerce. We are not convinced, however, that this description adequately characterizes the relevant features of the Iowa statute. It is true that if a subsidiary were located in another State, its earnings would be subject to taxation by the Federal Government and by the other State (assuming that the State was one of the great majority that impose a corporate income tax). This state and federal tax burden might exceed the sum of the foreign tax that a foreign subsidiary would pay and the tax that Iowa collects on dividends received from a foreign subsidiary. But whatever the tax burdens imposed by the Federal Government or by other States, the fact remains that Iowa imposes a burden on foreign subsidiaries that it does not impose on domestic subsidiaries. We have no reason to doubt the assertion of the United States that “[i]n evaluating the alleged facial discrimination effected by the Iowa tax, it is not proper to ignore the operation of other provisions of the same statute.” Brief for United States as Amicus Curiae 14, n. 19 (emphasis added). We find no authority, however, for the principle that discrimination against foreign commerce can be justified if the benefit to domestic subsidiaries might happen to be offset by other taxes imposed not by Iowa, but by other States and by the Federal Government.
Finally, Iowa insists that even if discrimination against foreign commerce does result, the statute is valid because it is intended to promote administrative convenience rather than economic protectionism. Iowa contends that the adoption of the federal definition of “taxable income,” which includes foreign subsidiary dividends, provides significant advantages both to the taxpayers and to the taxing authorities. Taxpayers may compute their Iowa tax easily based on their federal calculations, and the Iowa authorities may rely on federal regulations and interpretations and may take advantage of federal efforts to monitor taxpayer compliance. See 465 N. W. 2d, at 669.
We do not minimize the value of having state forms and auditing procedures replicate federal practice. Absent a compelling justification, however, a State may not advance its legitimate goals by means that facially discriminate against foreign commerce. See Philadelphia v. New Jersey, 437 U. S. 617, 626-628 (1978); Maine v. Taylor, 477 U. S. 131, 148, n. 19 (1986). In this instance, Iowa could enjoy substantially the same administrative benefits by utilizing the federal definition of taxable income, while making adjustments that avoid the discriminatory treatment of foreign subsidiary dividends. Many other States have adopted this approach. It is apparent, then, that this is not a case in which the State’s goals “cannot be adequately served by reasonable nondiscriminatory alternatives.” New Energy Co. of Indiana v. Limbach, 486 U. S. 269, 278 (1988). Even if such adjustments would diminish the administrative benefits of adopting federal definitions, this marginal loss in convenience would not constitute the kind of serious health and safety concern that we have sometimes found sufficient to justify discriminatory state legislation. Cf. Maine v. Taylor, 477 U. S., at 151; Sporhase v. Nebraska ex rel. Douglas, 458 U. S. 941, 956-957 (1982).
> — t > — i i-H
Iowa need not adopt the federal definition of taxable income. Nor, having chosen to follow the federal system in part, must Iowa duplicate that scheme in all respects. The adoption of the federal system in whole or in part, however, cannot shield a state tax statute from Commerce Clause scrutiny. The Iowa statute cannot withstand this scrutiny, for it facially discriminates against foreign commerce and therefore violates the Foreign Commerce Clause.
The judgment of the Supreme Court of Iowa is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.'
Iowa Code §422.32 et seq. (1981).
See App. to Pet. for Cert. 29a. Kraft owned capital stock representing more than 80% of the voting power and of the total value of the subsidiaries. Ibid.
“The Congress shall have Power ... To regulate Commerce with foreign Nations-” U. S. Const., Art. I, §8.
See Iowa Code §422.35 (1981).
See 26 U.S.C. §243.
See 465 N. W. 2d 664, 665 (Iowa 1991); B. Bittker & J. Eustice, Federal Income Taxation of Corporations and Shareholders ¶ 5.05 (5th ed. 1987).
See 26 U. S. C. §§901, 902. Instead of taking the credit, the corporation may elect to deduct the foreign tax withheld on dividends from foreign subsidiaries. See § 164. The taxpayer may not take both the credit and the deduction. See § 275(a)(4). The credit is almost always more valuable to the taxpayer. See 3 B. Bittker & L. Lokken, Federal Taxation of Income, Estates and Gifts ¶ 69.14 (2d ed. 1991).
See United States v. Goodyear Tire & Rubber Co., 493 U. S. 132, 139 (1989); American Chicle Co. v. United States, 316 U. S. 450, 452 (1942); see also Bittker & Eustice, Federal Income Taxation of Corporations and Shareholders ¶ 17.11.
Iowa is not a State that taxes an apportioned share of the entire income of a unitary business, without regard for formal corporate lines. See Tr. of Oral Arg. 37; cf. Container Corp. of America v. Franchise Tax Bd., 463 U. S. 159, 164-169 (1983).
At oral argument, counsel for Kraft offered the following illustration: “If an Iowa parent company had a Kentucky subsidiary, [that] did all its business in Kentucky, and another subsidiary that did all its business in Germany, Iowa would not tax the income of either of those subsidiaries. If each paid a dividend to the Iowa parent, Iowa would tax the German dividends and would not tax the Kentucky dividends.” Tr. of Oral Arg. 47-48.
If in calculating its federal tax liability, a taxpayer elects to deduct foreign tax withheld on foreign subsidiary dividends, a taxpayer may also deduct these tax payments in calculating its Iowa taxes. Electing the deduction, then, allows the taxpayer to reduce, but not eliminate, the Iowa tax on foreign subsidiary dividends. In the relevant year, Kraft elected to take the foreign tax credit, see 465 N. W. 2d, at 666, and thus could not deduct the foreign taxes in computing its federal or Iowa taxable income, see n. 7, supra.
See 465 N. W. 2d, at 666.
See App. to Pet. for Cert. 26a.
“No state shall... deny to any person within its jurisdiction the equal protection of the laws.” U. S. Const., Arndt. 14, § 1.
The parties stipulated as follows:
“Domestic Corporations typically do business in foreign countries through corporations organized in the country in which they are doing business for a variety of reasons. Reasons include, but are not limited to, the requirements of the local country, a better ability to limit their liability in that country, the marketing advantage of being perceived by customers as a local company, greater ease in repatriating funds, greater ease in borrowing funds locally, and ability to own property and manufacture in that country.” App. to Pet. for Cert. 30a-31a.
See Tr. of Oral Arg. 24,35.
See 26 U. S. C. §882.
See §246.
The dissent presents the example of a subsidiary incorporated in a foreign country, but engaged in business exclusively in the United States. The dissent doubts whether a dividend payment from such a subsidiary is properly characterized as "foreign commerce.” Post, at 85. As discussed above, however, a dividend payment from such a subsidiary would not be taxed by Iowa. Iowa taxes foreign subsidiary dividends only to the extent that they reflect foreign earnings. The dissent does not dispute that this kind of dividend payment does constitute "foreign commerce.” Post, at 84.
In Amerada Hess, we rejected the contention that a New Jersey tax violated the Commerce Clause because it “discriminate])!] against oil producers who market their oil in favor of independent retailers who do not produce oil.” 490 U. S., at 78.
“No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws . . . .” U. S. Const., Art. I, § 10, cl. 2.
Corporate income is taxed by 45 States and by the District of Columbia. See 1 J. Hellerstein, State Taxation: Corporate Income and Franchise Taxes ¶ 1.6 (1983).
If one were to compare the aggregate tax imposed by Iowa on a unitary business which included a subsidiary doing business throughout the United States (including Iowa) with the aggregate tax imposed by Iowa on a unitary business which included a foreign subsidiary doing business abroad, it would be difficult to say that Iowa discriminates against the business with the foreign subsidiary. Iowa would tax an apportioned share of the domestic subsidiary’s entire earnings, but would tax only the amount of the foreign subsidiary’s earnings paid as a dividend to the parent.
In considering claims of discriminatory taxation under the Commerce Clause, however, it is necessary to compare the taxpayers who are "most similarly situated.” Halliburton Oil Well Cementing Co. v. Reily, 373 U. S. 64, 71 (1963). A corporation with a subsidiary doing business in Iowa is not situated similarly to a corporation with a subsidiary doing business abroad. In the former case, the Iowa operations of the subsidiary provide an independent basis for taxation not present in the case of the foreign subsidiary. A more appropriate comparison is between corporations whose subsidiaries do not do business in Iowa.
See App. to Pet. for Cert. 74a-75a.
Having concluded that the Iowa statute violates the Foreign Commerce Clause, we do not reach Kraft's challenge to the statute under the Equal Protection Clause.
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_1_2
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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 concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained".
CAPITAL CITY GAS COMPANY, Appellee, v. PHILLIPS PETROLEUM COMPANY, Appellant.
No. 236, Docket 30818.
United States Court of Appeals Second Circuit.
Argued Dec. 16, 1966.
Decided Feb. 14, 1967.
Wick, Dinse & Allen, Burlington, Vt., for appellee.
F. Elliott Barber, Jr., Brattleboro, Vt., William J. Zeman, Lloyd G. Minter, Chas. H. Purdy, Bartlesville, Okl., for appellant.
Before WATERMAN, MOORE and KAUFMAN, Circuit Judges.
WATERMAN, Circuit Judge:
Phillips Petroleum Company (Phillips) appeals from an order of the United States District Court for the District of Vermont requiring it to continue to supply Capital City Gas Company (Capital City) with liquefied petroleum gas (propane) until May 31, 1967.
Phillips is a Delaware corporation. Capital City is a Vermont corporation with its principal place of business at Montpelier, Vermont. Federal jurisdiction is based upon diversity of citizenship. On June 22, 1964, the two companies, continuing a long-time business relationship, entered into a contract for the sale of liquefied petroleum gas by Phillips to Capital City to cover the period from June 1, 1964 to May 31, 1967. The contract contemplated the purchase by Capital City of propane gas between certain specified maximum and minimum quantities per month at a price to be determined by the prevailing market price. Later the contract was modified by a written agreement so as to provide that the price would be eight cents per gallon throughout the life of the contract.
The contract contained the following provision:
14. Force Majeure
No failuire or omission by Seller in the performance of any obligation of this contract shall be deemed a breach of this contract nor create any liability for damages if the same shall arise from any cause or causes beyond Seller’s control, including but not restricted to: acts of God, war, accident, fire, storm, flood, earthquake, or explosion, acts of or compliance with requests of federal, state, or local government, or any agency thereof, strike, lockout, disputes with workmen, labor shortages, transportation embargoes or failures or delays in transportation, unavailability of suitable tank cars or transport trucks or parts therefor, or exhaustion, reduction, or unavailability of liquefied petroleum gas at the source of supply from which deliveries are normally made hereunder, * * *. (Emphasis supplied.)
The contract remained in force and apparently there was no friction between the parties until June 24, 1966, when Phillips addressed a certified mail letter, received June 27, informing Capital City that as of July 1, 1966 it was terminating its propane sales to Capital City and that as of that day it was invoking the Force Majeure provision recited above. Phillips based this action upon its statement that liquefied petroleum gas (propane) was not available to it after June 30, 1966 “at Delaware City, the source of supply from which our deliveries are normally made to you.” In a July 1, 1966 letter Phillips also based its termination upon Capital City’s failure to purchase the minimum contract requirements of propane during the months of May and June 1966. The source of supply at Delaware City, Delaware was Tidewater Oil Company’s Flying A Refinery, also known as Reybold.
On July 6, 1966 Capital City filed this action in the court below seeking injunctive relief to prevent Phillips from terminating the contract. On July 6, 1966, the court issued, without notice to Phillips, an ex parte temporary restraining order, effective until July 15, to prevent Phillips from withholding delivery of three railroad tank cars of propane gas already ordered by Capital City for delivery on July 20, 1966. On July 14 and 15, 1966 the court held a hearing, upon notice, for the purpose of determining whether to continue the temporary restraining order or to grant a preliminary injunction. On July 14 Phillips filed its answer to the complaint. When the case was called neither party was aware that anything other than the proceeding noticed in the order was to be held, and that a full determination on the merits would be forthcoming in normal course on complaint and answer at a later date. Nevertheless, the court proceeded to take testimony and then issued a judgment order that Phillips continue to supply Capital City with propane for the entire remaining period of the contract at the price of eight cents per gallon.
This order is not designated as either a temporary or permanent injunction order, but is only designated “Judgment Order.” Whatever it might have been labeled, it is a permanent injunction because it grants Capital City all the relief it might ultimately be entitled to and makes no provision for further hearings.
Of course the judgment order cannot be permitted to remain in force as a permanent injunction; Phillips has a clear right to have a full hearing on the merits of the complaint, for the order was granted upon a hearing noticed for a temporary injunction only, and no warning was given to the parties that a permanent disposition of the case was likely. Defendant’s answer controverting allegations in the complaint and setting up, additionally, three affirmative defenses, was filed that very day. It is true that permanent relief might be granted after a hearing upon a temporary injunction if no genuine issues of fact are found to be present. Standard Oil Co. of Texas v. Lopeno Gas Co., 240 F.2d 504 (5 Cir. 1957); or if the court had ordered a consolidation of the hearing for temporary relief with the trial on the merits. Fed.R. Civ.P. 65(a)(2), effective July 1, 1966. In this case, however, it is clear to us that there are important genuine factual issues involving a determination of where Phillips’s “normal” source of supply was for the propane gas shipped to Capital City and whether there had been a waiver by Phillips of the minimum quantity of propane Capital City was required to purchase of Phillips under the contract. The noticed hearing upon temporary relief was never consolidated with a trial on the merits for permanent relief although the court considered evidence put in by both parties. As pointed out above, the parties were not made aware that final relief was to be granted. Because of the different scope of possible relief, the difference in types of evidence admissible, and the difference in burden of proof required, compare Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 740 (2 Cir. 1953) with Allen v. Pyrene Mfg. Co., 111 F.Supp. 819 (D.N.J.1953), between permanent and temporary injunctive relief, a party is entitled to notice that permanent rather than temporary relief is being determined. Since Phillips was not given such notice in this case, the permanent injunction must be vacated.
We must next consider whether the district court’s order should remain in force as a temporary injunction until the full evidentiary hearing on the merits of the action on remand. The most significant condition which must be present to support the granting of a temporary injunction is a showing that if the relief is not granted irreparable injury during the pendency of the trial will result. Foundry Services, Inc. v. Beneflux Corp., 206 F.2d 214 (2 Cir. 1953); Meiselman v. Paramount Film Distributing Corp., 180 F.2d 94 (4 Cir. 1950). The evidence in this case does not demonstrate that there is a threat of irreparable injury during the pendency of the action. From the evidence thus far before the court it seems clear that Capital City is able to buy propane gas on a current basis from other sellers of the product. Any injury suffered from having to make such purchases at current prices and costs is compensable by money damages if, on the merits of its complaint, Capital City is ultimately successful.
When we turn to the merits of the controversy we see that Phillips presented two reasons for terminating its contract with Capital City; the failure of Capital City to purchase the minimum amounts required by the contract, and the failure of its “normal” source of supply for propane gas. As to the first of these, the district court, upon its consideration of the limited evidence produced at the hearing, found that the minimum quantity requirements of the contract were waived by the action of Phillips and therefore the requirements were no longer enforceable. There was evidence of an oral agreement between the parties that the minimum requirement would not be enforced and evidence that Phillips made no attempt to enforce this provision until it wished, for another reason, to cancel the contract. Under these circumstances, we cannot say that the finding of the district court that the requirement was waived was clearly erroneous, Fed.R. Civ.P. 52(a), but the parties should have a full opportunity to explore this issue further if evidence not yet in the case is available.
The attempt to cancel the contract by invoking the provision entitled “Force Majeure” presents more difficulty. The district court concluded that this provision was not available to Phillips because no normal supply point had been designated under the contract, Phillips had supplied Capital City from a number of different sources, and the failure of supply was not a “force majeure.” We think the failure to designate a normal source of supply in the contract was not fatal to the effectiveness of the provision. The clause “source of supply from which deliveries are normally made hereunder” (emphasis added) would indicate that the normal source of supply was to be determined by experience under the contract. Nor would the fact that Capital City was supplied from more than one source render the provision inoperative if it could be demonstrated upon a full evidentiary hearing that the source lost was the normal supply point. That a source is the normal one does not mean that it is the exclusive source but only that it is the usual, customary, or habitual one on a long-run basis. If Phillips’s evidence, including the evidence already presented at the prior hearing, Fed.R. Civ.P. 65(a)(2) establishes this, then the provision becomes operative and invokable. Nor is there any merit to the position that the source of supply must be lost in a manner which would be considered a true “force majeure” such as an act of God, see Pacific Vegetable Oil Corp. v. C. S. T. Ltd., 29 Cal.2d 228, 174 P.2d 441 (1946), merely because the contract provision was entitled “Force Majeure.” The operative language of the provision clearly contemplates just such an occurrence as the one before us. While it might have been improvident for Capital City to have agreed to such a condition in the contract, it should not be the function of a court, where there is no ambiguous language and the meaning of the contract term is provable by evidence of an historical course of action by the parties, to reform the agreement.
Although the court below found that plaintiff is a public service corporation and believed that because of that circumstance plaintiff would be more subject to a multiplicity of suits than another corporation might be, it appears to us that whether plaintiff is a public service corporation is quite immaterial when the question for judicial determination is the meaning and effect of a term used in a contract the corporation freely entered into.
An examination of the situation prompts us to believe it best to remand the case to the court below for a hearing upon the merits of all issues in the case that are well-pleaded. Of course the evidence already taken at the July 14-15 hearing need not be repeated, Fed.R. Civ.P. 65(a)(2). We have carefully considered the position the parties will be in upon the receipt by the district court of our mandate, and we are of the belief that it is also best to adjudge that the present judgment order below be vacated in its entirety and the injunction contained therein dissolved.
Any assessment for costs or damages suffered by appellant because of the injunction should await final disposition and judgment of the case on its merits. We urge that the district judge adopt a suggestion by appellee that the case be set for a final hearing at an early date.
The judgment order below is vacated and the cause remanded for proceedings not inconsistent with the within opinion.
. The restraining order issued July 6, 1966 gave notice to defendant as follows:
Now Thebefobe, on motion of the Plaintiff it is ordered that the Defendant, Phillips Petroleum Company, its agents, successors, servants and employees, and all persons acting by, through or under their order, be and they are hereby restrained until the 15 day of July, 1966 from invoking the force majeure clause so as to halt the delivery of three railroad tank cars of propane gas which is ordered for July 20, 1966.
This temporary restraint is on condition that a bond be filed by Plaintiff herein in the sum of $5000.00 dollars.
It is further Ordered that hearing on continuation of this Temporary Restraining Order or granting of a Temporary Injunction be held at the United States Courtroom, Federal Building, Brattleboro, Vermont on July 14, 1966 at 4:00 P.M., E.D.S.T.
When the July 14 hearing was called the following took place:
The Court: You may proceed, Mr. Dinse.
Mr. Dinse: May it Please the Court, as I understand it, under Rule 65, the purpose of this hearing is either for continuance of the temporary restraining order, or for a hearing on the preliminary injunction?
The Court: Right.
Mr. Dinse: We are prepared to do either. I think the first is largely a matter of pleadings that have already been submitted, whereas, if we are talking about a preliminary injunction it is a question of evidence being presented to the Court.
The Court: What do you say, Mr. Barber?
Mr. Barber: Well, we feel, Your Honor, that the temporary order ran out under the Rule 65-B by its own terms and that at this time, there is nothing before the Court, excepting a Petition for a Temporary Order and that they have.
The Court: That is, I think that may be so, unless the parties agree to an extension of time of restraining order, otherwise we will proceed to consider the question of a temporary injunction.
. See definition of “normal” in Restatement (Second), Torts § 302, comment e (1965); In re New Jersey Power & Light Co., 9 N.J. 498, 89 A.2d 26, 41 (1952).
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer:
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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.
INVESTMENT COMPANY INSTITUTE and Securities Industry Association, Petitioners, v. FEDERAL DEPOSIT INSURANCE CORPORATION, et al., Respondents. INVESTMENT COMPANY INSTITUTE, et al., Appellants, v. FEDERAL DEPOSIT INSURANCE CORPORATION, et al.
Nos. 84-1616, 85-5769.
United States Court of Appeals, District of Columbia Circuit.
Argued April 18, 1986.
Decided April 7, 1987.
Harvey L. Pitt, Washington, D.C., with whom Henry A. Hubschman and David M. Miles, Washington, D.C., were on the brief, for petitioners in No. 84-1616 and appellants in No. 85-5769.
Theodore C. Hirt, Atty., Dept, of Justice, Washington, D.C., with whom Richard K. Willard, Asst. Atty. Gen., Joseph E. diGen-ova, U.S. Atty., John C. Murphy, Jr., Gen. Counsel, Federal Deposit Ins. Corp., Ronald Glancz, Asst. Gen., Counsel, Federal Deposit Ins. Corp., and Anthony J. Steinmeyer, Atty., Dept, of Justice, Washington, D.C., were on the brief, for respondents in No. 84-1616 and appellees in No. 85-5769.
Michael S. Heifer, Washington, D.C., was on the brief for amicus curiae Dealer Bank Ass’n, urging affirmance.
John T. Gill, III, Johanna M. Sabol, and Michael F. Crotty, Washington, D.C., were on the brief for amicus curiae American Bankers Ass’n, urging affirmance.
Before STARR and SILBERMAN, Circuit Judges, and WRIGHT, Senior Circuit Judge.
Opinion for the court per curiam.
PER CURIAM:
Petitioners/appellants Investment Company Institute (ICI) and Securities Industry Association (SIA) challenge regulations of the Federal Deposit Insurance Corporation (FDIC) governing the activities of insured banks that are not members of the Federal Reserve System. Petitioners principally argue that insofar as FDIC regulations allow nonmember insured banks to have subsidiary or affiliate relationships with firms engaged in securities work, those regulations violate the command of § 21 of the Banking Act of 1933 (Glass-Steagall Act), 12 U.S.C. § 378 (1982), that securities firms shall not engage in receiving deposits “to any extent whatever.” We cannot agree. The clear language of the Glass-Steagall Act demonstrates that Congress intended to differentiate between the activities of banks and the activities of banks’ subsidiaries and affiliates. As we see no provision in the Act, including § 21, that prohibits subsidiaries or affiliates of nonmember insured banks from engaging in securities work, and because we find unmeritorious petitioners’ arguments under §§ 2[6] and 2[8] of the Federal Deposit Insurance Act, 12 U.S.C. §§ 1816, 1818 (1982), we affirm the District Court’s grant of summary judgment for the defendants, see ICI v. FDIC, 606 F.Supp. 683 (D.D.C.1985), and dismiss the petition for review of the regulation.
I. Background
Federal regulation effectively divides the United States commercial banking community into three major categories. Banks that choose to become members of the Federal Reserve System fall under the jurisdiction of the Board of Governors of the Federal Reserve System. See 12 U.S.C. §§ 221, 248 (1982). National banks come within the jurisdiction of the Comptroller of the Currency. See id. Finally, insured state banks that are not members of the Federal Reserve System operate under the watchful eye of the FDIC. See id. §§ 1811, 1815. Although the FDIC insures the deposits of all three categories, id. § 1811, it regulates directly only the third group. See generally id. § 1815. The Glass-Steagall Act seeks to draw a sharp line between the activities of these three categories of commercial banks and the activities of investment banks and other securities firms. Id. §§ 24, 78, 377, 378; Board of Governors v. Investment Company Institute, 450 U.S. 46, 63, 101 S.Ct. 973, 985, 67 L.Ed.2d 36 (1981) (“Board of Governors ”).
This case explores the periphery of the separation of the banking and securities industries mandated by the Glass-Steagall Act. As the condition and character of the two industries have shifted over the past fifty years, the separation policy has shifted as well. Its changing shape has promoted particularly significant and protracted litigation in recent years, see, e.g., Securities Industry Ass’n v. Board of Governors, 468 U.S. 137, 104 S.Ct. 2979, 82 L.Ed.2d 107 (1984) (“Becker ”) (commercial paper is a security under the Glass-Steagall Act); Securities Industry Ass’n v. Board of Governors, 468 U.S. 207, 104 S.Ct. 3003, 82 L.Ed.2d 158 (1984) (“Schwab ”) (Board may allow bank holding company to acquire affiliate engaged in securities brokerage); Securities Industry Ass’n v. Board of Governors, 807 F.2d 1052, 1058 (D.C.Cir. 1986) (Board may allow banks to sell third-party commercial paper), and has prompted this court to call upon Congress to clarify its precise contours. American Bankers Ass’n v. SEC, 804 F.2d 739, 755-56 (D.C. Cir.1986) (SEC has no authority to regulate securities activities of banks).
The specific issue presented here is the extent to which Congress intended to bar subsidiaries and affiliates of insured nonmember banks from engaging in the securities business. In September 1982 the FDIC published in the Federal Register a policy statement that found the Glass-Stea-gall Act “does not prohibit an insured nonmember bank from establishing an affiliate relationship with or organizing or acquiring a subsidiary corporation that engages in the business of issuing, underwriting, selling, or distributing stocks, bonds, debentures, notes, or other securities.” 49 Fed. Reg. 46709 (Nov. 28, 1984). See 47 Fed. Reg. 38984 (Sept. 3, 1982). The FDIC did note, however, that the securities activities of such affiliates or subsidiaries might raise questions of “unsafe or unsound banking practices” and practices not “consistent with the purposes of” deposit insurance under §§ 2[6] and 2[8] of the Federal Insurance Act (FDIA), 12 U.S.C. §§ 1816, 1818 (1982). Id.
In November 1984, after notice and comment proceedings, the FDIC adopted a final rule regulating the securities activities of affiliates and subsidiaries of insured nonmember banks under §§ 2[6] and 2[8] of the FDIA. 49 Fed.Reg. 46709 (Nov. 28, 1984), regulations codified at 12 C.F.R. § 337.4 (1986). Although the rule does not prohibit such securities activities outright, it does restrict that activity in a number of ways. Banks may only maintain “bona fide” subsidiaries that engage in securities work. The rule defines “bona fide subsidiary” so as to limit the extent to which banks and their securities affiliates and subsidiaries may share company names or logos, as well as places of business. 12 C.F.R. § 337.4(a)(2)(ii), (iii); 49 Fed.Reg. at 46710. The definition also requires banks and subsidiaries to maintain separate accounting records and to observe separate corporate formalities. 12 C.F.R. § 337.-4(a)(2)(iv), (v). The two entities cannot share officers, and must conduct business pursuant to independent policies and procedures, including the maintenance of separate employees and payrolls. Id. § 337.-4(a)(2)(vi), (vii), (viii); 49 Fed.Reg. at 46711-12. Finally, and perhaps most importantly, the rule requires a subsidiary to be “adequately capitalized.” 12 C.F.R. § 337.-4(a)(2)(i).
Petitioners Investment Company Institute and Securities Industry Association, representing mutual fund companies and investment bankers, simultaneously filed a petition for review in this court and an action to enjoin the regulation in the United States District Court for the District of Columbia. They argue that the rule violates § 21 of the Glass-Steagall Act, 12 U.S.C. § 378 (1982), and §§ 2[6] and 2[8] of the Federal Deposit Insurance Act. 12 U.S.C. §§ 1816, 1818 (1982). We stayed our proceedings until the District Court had ruled on the matter. Order of February 19, 1985. District Judge Gesell, on cross-motions for summary judgment, upheld the FDIC’s regulations and dismissed the ICI and SIA action. ICI v. FDIC, 606 F.Supp. 683 (D.D.C.1985). We consider now both the appeal from that judgment (No. 85-5769), and the original petition for review of the FDIC rule (No. 84-1616).
II. Petitioners’ Standing Under the
Glass-Steagall Act and the Federal Deposit Insurance Act
Before we address the merits of petitioners’ challenge, we must examine the standing of securities industry plaintiffs to challenge the FDIC rule at issue. At the outset, we note that petitioners have shown sufficient “injury in fact” from these regulations for standing purposes. The FDIC will deal petitioners competitive injury by allowing insured nonmember banks to enter the securities field indirectly through subsidiaries and affiliates. See, e.g., Hardin v. Kentucky Utilities Co., 390 U.S. 1, 6, 88 S.Ct. 651, 654, 19 L.Ed.2d 787 (1967); Chicago Junction Case, 264 U.S. 258, 44 S.Ct. 317, 68 L.Ed.2d 667 (1924); see also ICI v. FDIC, 606 F.Supp. at 684 (FDIC regulation “plainly threatens” economic injury to securities firms).
But the standing inquiry, of course, does not end with “injury in fact.” Competitive injury alone does not confer standing. Hardin, 390 U.S. at 5-6, 88 S.Ct. at 654-55. Once we find such injury, we must turn to the “prudential” or “zone of interests” standing test enunciated by the Supreme Court in Association of Data Processing Services v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970). If the interest the petitioner seeks to protect is “arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question,” petitioner has standing.
The Supreme Court recently clarified the meaning of the “zone of interests” standing test in its opinion in Clarke v. Securities Industry Ass’n, — U.S. -, 107 S.Ct. 750, 93 L.Ed.2d 757 (1987). In that case securities industry plaintiffs challenged a decision of the Comptroller of the Currency that national bank discount brokering services are not “branch services” for purposes of the McFadden Act. 107 S.Ct. at 754. The McFadden Act places stringent limits on interstate branch banking activities, see 12 U.S.C. §§ 36(c) & (f), 81 (1982), and plaintiffs feared that the Comptroller’s relatively narrow interpretation of the range of services the Act covers would expose the securities industry to competitive injury. Clarke, 107 S.Ct. at 754.
The Court rejected the Comptroller’s argument that SIA lacked standing because Congress had not intended the McFadden Act to protect the competitive position of the securities industry. Id. at 759. The zone of interests test, stated the Court, “denies a right of review if the plaintiff’s interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.” Id. at 757. The Court found that the security industry’s competitive interest bore a “plausible relationship” to the interests Congress sought to protect, id. at 759, and that in any event there were “no indications * * * that make ‘fairly discernible’ a congressional intent to preclude review * * Id., quoting Block v. Community Nutrition Institute, 467 U.S. 340, 347, 104 S.Ct. 2450, 2454, 81 L.Ed.2d 270 (1984). Notably, the Court overturned this court’s decision in Control Data Corp. v. Baldrige, 655 F.2d 283 (D.C.Cir.), cert. denied, 454 U.S. 881, 102 S.Ct. 363, 70 L.Ed.2d 190 (1981), and instructed the lower courts to consider “all indicators helpful in discerning” the interests and parties Congress intended to protect. Clarke, 107 S.Ct. at 757-58 & n. 15.
With these guiding standards firmly in mind, we turn to petitioners’ standing in this suit under § 21 of the Glass-Steagall Act and §§ 2[6] and 2[8] of the Federal Deposit Insurance Act.
A. The Glass-Steagall Act
In Investment Company Institute v. Camp, 401 U.S. 617, 620-21, 91 S.Ct. 1091, 1093-94, 28 L.Ed.2d 367 (1971), the Supreme Court held that securities industry groups had standing to challenge regulations promulgated under the Glass-Steagall Act that allowed national banks to enter the securities field. The Court concluded that in §§ 16 and 21 of the Act Congress “arguably” had legislated against the competition ICI sought to prevent. 401 U.S. at 620, 91 S.Ct. at 1093. We find that Camp controls our Glass-Steagall standing analysis in the present case.
The FDIC attempts to distinguish Camp by pointing out that ICI’s challenge here rests on § 21 alone. Section 21 is a criminal provision, notes FDIC, and thus seeks to protect the public interest, not the interests of securities firms. Implicitly, FDIC
argues that the Camp Court actually rested its standing determination on § 16, not § 21.
Although the FDIC’s point on the criminal focus of § 21 is well taken, it does not adequately demonstrate that the present case is different from the situation in Camp. First of all, nothing in the Camp decision indicates that the Supreme Court meant to distinguish between § 16 and § 21 for standing purposes. 401 U.S. at 620, 91 S.Ct. at 1093. In fact, the Court’s short standing discussion speaks of the two provisions in the same breath, and fails to draw any distinction whatever between them. Id. Second, even though § 21 does contain a criminal penalty element, FDIC’s authority to interpret that section stems from purely civil enforcement powers. 12 U.S.C. § 1818 (1982). Section 21 has repeatedly and consistently received “civil” regulatory interpretation. See, e.g., Becker, 468 U.S. at 139, 104 S.Ct. at 2981; Board of Governors, 450 U.S. at 62, 101 S.Ct. at 984. After all, the Camp case itself was purely civil in nature. 401 U.S. at 617-18, 639, 91 S.Ct. at 1091-92, 1103. In fact, petitioners assert, without contradiction by respondents, that no criminal action has ever been brought under the section. Supplemental Brief for Appellants/Petitioners at 11 n. **.
Moreover, it is well established that courts applying the prudential standing test may look for the requisite protective intent on the part of Congress not only in the specific statutory provision at issue but also in other provisions of a statute. See Clarke, 107 S.Ct. at 758; Tax Analysts & Advocates v. Blumenthal, 566 F.2d 130, 141 (D.C.Cir.1977), cert. denied, 434 U.S. 1086, 98 S.Ct. 1280, 55 L.Ed.2d 791 (1978); see also Autolog Corp. v. Regan, 731 F.2d 25, 30 n. 3 (D.C.Cir.1984). As the Supreme Court has specifically indicated that § 16 and § 21 seek to “draw the same line,” Becker, 468 U.S. at 149, 104 S.Ct. at 2985, we appropriately look to § 16 to help inform our standing decisions under § 21. Clarke, 107 S.Ct. at 757-58. In so doing, our analysis falls squarely within the Supreme Court’s Camp holding that ICI has standing under § 16 and § 21 to challenge regulations allowing banks to enter the securities field. As a consequence, Camp controls. Petitioners’ standing under § 21 of the Glass-Steagall Act to challenge these regulations is clear.
B. The Federal Deposit Insurance Act
Sections 2[6] and 2[8] of the FDIA speak in broad terms, forbidding bank practices that are not “consistent with the purposes” of federal deposit insurance or that are “unsafe and unsound.” 12 U.S.C. §§ 1816, 1818 (1982). Petitioners argue that it is clear from the breadth of this language that Congress has legislated against the very activities that petitioners allege have caused them injury. See Clarke, 107 S.Ct. at 756, 759 (quoting Investment Company Institute v. Camp, 401 U.S. at 620, 91 S.Ct. at 1093).
Congress enacted the FDIA as part of the Banking Act of 1933, 48 Stat. 162, for purposes of providing for “the safer use of the assets of banks, to regulate interbank control, to prevent the undue diversion of funds into speculative operations, and for other purposes * * H.R.Rep. No. 150, 73d Cong., 1st Sess. 1 (May 19, 1933). Although Congress did not expressly indicate a desire to protect the competitive position of the securities industry, we cannot say that the industry’s interests in limiting bank activities in the securities field are “so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.” Clarke, 107 S.Ct. at 757. As a consequence, we find that petitioners have standing under the FDIA to challenge the regulations at issue here.
The facts of the Clarke case bolster this conclusion. In Clarke a securities industry plaintiff asserted standing on the basis of competitive injury under the McFadden Act. 107 S.Ct. at 754. The language of that Act does not expressly protect the competitive position of the securities industry, and neither is any such intent on the part of Congress discernible from the legislative history. See Securities Industry Ass’n v. Comptroller of the Currency, 765 F.2d 1196, 1197 (D.C.Cir.1985) {en bañe) {per curiam) (Scalia, J., dissenting from denial of rehearing en banc) (dissent from Court of Appeals decision upheld in Clarke argues that Congress no more meant the McFadden Act to protect the securities industry’s competitive position than it meant the Act to protect the position of “businesses competing for the parking spaces that an unlawful branch may occupy”). Nevertheless, the Supreme Court found that securities industry competitors were “very reasonable candidates” to seek review of the agency’s ruling in that case. We see no basis for distinguishing the situation in Clarke for standing purposes from that confronting us in the present case.
Finally, we find no indication “fairly discernible in the statutory scheme” of congressional intent to preclude judicial challenges by this particular class of petitioners. Clarke, 107 S.Ct. at 757. This case does not, for example, present a situation in which permitting suits by plaintiffs otherwise within the zone of interest would “severely disrupt [a] complex and delicate administrative scheme.” Id. (quoting Community Nutrition Institute, 467 U.S. at 348, 104 S.Ct. at 2455).
III. The Glass-Steagall Act Challenge
Petitioners present a straightforward statutory argument. Section 21 of the Glass-Steagall Act makes it illegal:
For any person, firm, corporation, association, business trust, or other similar organization, engaged in the business of issuing, underwriting, selling, or distributing, at wholesale or retail, or through syndicate participation, stocks, bonds, debentures, notes, or other securities, to engage at the same time to any extent whatever in the business of receiving deposits * * *.
12 U.S.C. § 378(a)(1). Petitioners interpret the phrase “to any extent whatever” to bar insured nonmember banks from having subsidiaries or affiliates engaged in the securities business. FDIC responds that when Congress intended to bar subsidiary or affiliate relationships of this sort it clearly indicated that intent, and that in any event the court should defer to its reasonable interpretation.
A.
In weighing these competing interpretations of § 21 and the Glass-Steagall Act, we are bound by a venerable line of precedent counseling judicial deference toward an agency’s evaluations of the statutes that give it legal life and authority. See, e.g., NLRB v. Hearst Publications, Inc., 322 U.S. 111, 131, 64 S.Ct. 851, 860, 88 L.Ed. 1170 (1944); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 1801, 23 L.Ed.2d 371 (1969). That line of cases recently culminated in the Supreme Court’s decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), which established a simple two-part test, now familiar. If Congress has spoken clearly to the issue presented in a case, that intent controls. 467 U.S. at 844, 104 S.Ct. at 2782. If the agency’s interpretation is contrary to the clear intent of Congress, the agency’s interpretation is invalid. If, on the other hand, Congress had no clear intent as to the particular question at issue, the courts may invalidate the agency’s interpretation only if it is “unreasonable” or “impermissible.” Id. As we find in the present case that Congress clearly intended § 21 to allow insured nonmember banks to maintain subsidiary or affiliate relationships with securities firms, we uphold FDIC’s interpretation of § 21 and affirm the District Court. Given this clear intent, we need not reach Chevron’s “reasonableness” prong of analysis.
B.
Congress enacted the Glass-Steagall Act in response to the dramatic wave of bank failures of the early Depression, a wave that many perceived to have been the result of securities speculation by the banking industry. See Board of Governors, 450 U.S. at 61 & n. 28, 101 S.Ct. at 984 & n. 28; Camp, 401 U.S. at 629-30. The Act seeks to separate the banking and securities industries “as completely as possible.” Board of Governors, 450 U.S. at 70, 101 S.Ct. at 989. But while Congress may have intended to build an insurmountable barrier between member banks of the Federal Reserve System and the securities industry, see 12 U.S.C. §§ 24, 78, 377 (1982), Congress was far from certain in 1933 that it had authority to effect such a sweeping separation for insured state nonmember banks. In fact, several members of Congress nervously commented during the debate leading to enactment of the bill that Congress might lack power to regulate nonmember banks at all. See 75 Cong.Rec. 9905 (May 10, 1932) (remarks of Sen. Wal-cott); id. at 9911, 9913-14 (remarks of Sen. Bulkley).
The hesitation of the 73rd Congress to regulate state nonmember banks is quite apparent in the actual language of the Act. National banks and banks that have chosen to become members of the Federal Reserve System are subject to stringent regulation that bars them from the securities field. Section 16 severely limits the ability of national banks to deal in securities and bars them from underwriting securities. 12 U.S.C. § 24 (1982); see also Securities Industry Ass’n v. Board of Governors, 807 F.2d 1052 (D.C.Cir.1986). Section 20 bars firms “principally” engaged in securities transactions from affiliating with member banks. 12 U.S.C. § 377 (1982). Section 32 bars member banks from sharing officers or board members with securities firms. 12 U.S.C. § 78 (1982).
Only § 21 regulates both member and nonmember banks. Section 21 bars any “person, firm, corporation, association, business trust, or other similar organization” from engaging in securities business while receiving deposits “to any extent whatever.” 12 U.S.C. § 378 (1982). It says nothing explicitly about the propriety of insured nonmember banks establishing subsidiaries or affiliates that engage in the securities business. Petitioners suggest, nevertheless, that Congress intended that the section prohibit such relationships.
This argument is difficult to support. If we read § 21 to prohibit insured nonmember banks from establishing securities subsidiaries or affiliates, the coherence of the statute as a whole begins to crumble. Section 21 applies to both member and nonmember banks. If it prohibits all bank affiliate or subsidiary relationships with securities firms, then § 20’s somewhat permissive language, which allows member banks to establish affiliate relationships with firms doing some limited amount of securities work, becomes meaningless. Accepting petitioners’ interpretation, therefore, would require us to eliminate a provision of the statute, a clear violation of a fundamental canon of construction. See National Insulation Transportation Committee v. ICC, 683 F.2d 533, 537 (D.C. Cir.1982); In re Surface Mining Regulation Litigation, 627 F.2d 1346, 1362 (D.C. Cir.1980).
Petitioners play down this difficulty by arguing that § 20 constitutes a special exception for member banks to the general prohibition set out by § 21. Petitioners submit that although banks generally cannot maintain affiliate or subsidiary relationships with securities firms “to any extent whatever,” § 20 specifically authorizes member banks to maintain such relationships with firms not “principally” engaged in securities work. Nonmember banks, however, cannot maintain such relationships. This explanation suffers from two readily apparent flaws.
First of all, Congress knew how to indicate that a section of the Act was intended as a specific exception to another section. Congress amended § 21 in 1935 to include language that expressly indicated that activities implicitly authorized under § 16 of the Act were not barred by § 21’s broad language. Act of August 23, 1935, c. 614, § 303, 49 Stat. 707; see also Securities Industry Ass’n v. Board of Governors, 807 F.2d 1052, 1056 (D.C.Cir.1986) (discussing interplay of §§ 16 and 21). Congress has not done the same for § 20, and we see no basis whatever for inferring such intent. On the contrary, § 20 speaks in the language of prohibition, not authorization. Member banks “shall not be affiliated in any manner * * * with any corporation, association, business trust, or other similar organization engaged principally” in securities activities. 12 U.S.C. § 377 (1982). Congress presumably did not indicate that § 20 should be an “exception” to § 21 because it did not intend that § 21 should extend to the activities of affiliates and subsidiaries in the first place. The two sections regulate separate activities.
Second, if we were to accept petitioners’ argument that § 20 exempts member banks from the full prohibitory force of a § 21 that applies to both banks and their affiliates, we would be left with an anomalous result. Under petitioners’ interpretation, member banks would be subject to less stringent § 21 regulation than would be insured nonmember banks. This outcome is dramatically counter to what we would expect on examination of the statute and its history. It seems clear that Congress felt its efforts to regulate nonmember banks rested on shaky, if not ramshackle, authority. Members of Congress explicitly discussed this problem as it pertained to regulation of nonmember bank affiliates, and specifically indicated that regulation of such affiliates was probably beyond the power of Congress. That Congress would have imposed more demanding regulation on nonmember banks than on member banks, given this uncertainty, seems utterly improbable. Absent clear evidence, we will not infer that Congress had such contrary, even irrational, intentions for the statute.
Despite petitioners’ considerable efforts, then, the language and structure of the Glass-Steagall Act do not support the view that § 21 bars insured nonmember banks from maintaining affiliate or subsidiary relationships with securities firms. Section 21 on its face fails to prohibit such relationships, and any judicial inference of such a prohibition would be inconsistent with the overall structure of the Act. This reasoning standing on its own demonstrates not only that FDIC’s interpretation of § 21 is “permissible” but, in fact, that it is the only valid approach.
Moreover, the Supreme Court’s guidance on the proper scope of § 21 supports the agency’s interpretation. In Board of Governors v. Investment Company Institute, 450 U.S. 46, 101 S.Ct. 973, 67 L.Ed.2d 36 (1981), the Supreme Court addressed the argument that § 21 applies to bank holding companies as well as to banks, and that as a consequence it bars bank holding company subsidiaries from engaging in securities work. The Court found that “the language of § 21 cannot be read to include within its prohibition separate organizations related by ownership with a bank, which does receive deposits.” 450 U.S. at 58 n. 24, 101 S.Ct. at 982 n. 24. As if this statement were not clear enough, the Court went on to emphasize that because § 20 specifically addressed the proper relationship between member banks and securities affiliates, “the structure of the Act reveals a congressional intent to treat banks separately from their affiliates. The reading of the Act urged by respondent [arguing for ‘single entity’ treatment of banks and their affiliates under § 21] would render § 20 meaningless.” Id. And to lay the question to rest once and for all, the Court stated that under Glass-Steagall “bank affiliates may be authorized to engage in certain activities that are prohibited to banks themselves.” Id. at 60, 101 S.Ct. at 983. In light of our reasoning above, this language clearly guides the proper holding on the issue presented in this case. The agency’s interpretation of § 21 is entirely consistent with Congress’ intent, and must stand.
C.
Petitioners put forward no direct response to the Supreme Court’s analysis in Board of Governors. Instead, they argue that the FDIC’s rule is at odds with “the legislative purpose underlying Section 21.” Brief for Appellants/Petitioners at 21. This is not a legislative history argument aimed at proving that the express terms of § 21 actually do bar nonmember bank activities of the sort the petitioners challenge. Rather, petitioners’ argument merely adverts to the general policy objectives of the Glass-Steagall Act and attempts to demonstrate that those policies are thwarted, or at least are not furthered, by the FDIC rule at issue here. Id. at 27-33.
Petitioners’ policy arguments can carry but little weight in a judicial forum. Our duty as a court is to interpret the banking laws, not to set national banking policy on the basis of general objectives set out by Congress. See, e.g., American Bankers Ass’n, 804 F.2d at 749. Petitioners have failed to demonstrate that Congress’ intent in this provision is unclear. Even if they had, and if every policy objection they raise were irrefutable, we could not overturn FDIC’s regulation unless the face of the statute and its legislative history demonstrated that FDIC’s interpretation was “impermissible” or “unreasonable.” Chevron, 467 U.S. at 843-44, 104 S.Ct. 2782. Petitioners’ “legislative purpose” arguments do not take this approach, however. They focus on policy alone. As the Supreme Court recently stated, “When a challenge to an agency construction, fairly conceptualized, really centers on the wisdom of the agency’s policy, rather than whether it is a reasonable choice within a gap left by Congress, the challenge must fail.” Chevron, 467 U.S. at 866, 104 S.Ct. at 2793. It is not our place to implement congressional policy in ways Congress itself fails to pursue. Board of Governors v. Dimension Financial Corp., — U.S. -, 106 S.Ct. 681, 688-89, 88 L.Ed.2d 691 (1986); TVA v. Hill, 437 U.S. 153, 194-95, 98 S.Ct. 2279, 2301-02, 57 L.Ed.2d 117 (1978). Congressional intent for § 21 is clear, and FDIC’s interpretation is in line with that intent. We need go no further to uphold FDIC’s view of the matter.
IV. The Federal Deposit Insurance Act Challenges
Petitioners also argue that the rule violates the “unsafe and unsound banking practices” provisions of the Federal Deposit Insurance Act. 12 U.S.C. §§ 1818(a) & (b), 1816 (1982) (powers of state chartered banks must be “consistent with the purposes of” federal deposit insurance). Quoting the Fifth Circuit, petitioners assert that the FDIC rule here presents an “abnormal risk of loss or damage to an institution, its shareholders, or the agencies administering the insurance funds.” Brief for Appellants/Petitioners at 33-34, quoting Gulf Federal Savings & Loan Ass’n v. Federal Home Loan Bank Board, 651 F.2d 259, 264 (5th Cir.1981).
The FDIC itself, of course, has recognized that bank subsidiaries and affiliates engaged in securities activities pose dangers under these two sections. See 49 Fed.Reg. at 46709. In fact, the rule promulgated by the FDIC undertakes to ensure that the harms Congress sought to prevent with the Federal Deposit Insurance Act do not become real. Petitioners’ argument, then, is not that the rule is inconsistent with these sections of the FDIA, but rather that the rule does not go far enough, as it fails to find affiliate or subsidiary relationships of this kind per se “unsafe and unsound.”
The failure of this challenge on its merits is unquestionable. Petitioners’ FDIA arguments rest, in the first instance, on the assumption that the FDIC rule is invalid under § 21. See Brief for Appellants/Petitioners at 34. As we have found above that the rule is entirely consistent with § 21, this element of petitioners’ argument collapses of its own weight.
But even if we read the FDIA challenge to include an independent attack on the FDIC rule, it does not persuade us to invalidate that rule. Petitioners have not demonstrated that when Congress used the broad language “unsafe and unsound bank-. ing practices” it intended a specific result on the issue presented here. And for good reason. Congress intended to delegate a substantial degree of authority to the agency by the use of this language. See Investment Company Institute v. FDIC, 728 F.2d 518 (D.C.Cir.1984); Independent Bankers Ass’n v. Heimann, 613 F.2d 1164, 1169 (D.C.Cir.1979). Authority to determine what constitutes an “unsafe” or “unsound” banking practice is firmly committed to the agency. See, e.g., First National Bank of Lamarque v. Smith, 610 F.2d 1258, 1265 (5th Cir.1980).
Under the Supreme Court’s Chevron analysis, if the intent of Congress on a particular issue is not clear, the courts may only overturn the agency’s view of that issue if it is “impermissible” or “unreasonable.” Chevron, 467 U.S. at 843-44, 104 S.Ct. at
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_respond1_1_3
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F
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "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.
COMMISSIONER OF INTERNAL REVENUE, Petitioner, v. BRITISH MOTOR CAR DISTRIBUTORS, LTD., a corporation, Respondent.
No. 16432.
United States Court of Appeals Ninth Circuit.
March 31, 1960.
Howard A. Heffron, Acting Asst. Atty. Gen., Lee A. Jackson, A. F. Prescott, Kenneth E. Levin, Attys., Dept, of Justice, Washington, D. C., for petitioner.
Frederic T. Leo, San Francisco, Cal., Clyde C. Sherwood, Mountain Ranch, Cal., for the respondent.
Gibson, Dunn & Crutcher, F. Daniel Frost, John J. Waller, Norman B. Barker, Los Angeles, Cal., amicus curiae.
Before POPE, HAMLIN and MERRILL, Circuit Judges.
MERRILL, Circuit Judge.
The taxpayer corporation incurred losses while engaged in the business of selling home appliances. It disposed of all its assets and the corporate shares were then sold to new owners, who used the corporation to operate a previously going automobile business. The question here presented is whether the taxpayer is entitled to carry over the losses incurred in the old business, where it is clear that the principal purpose of the acquisition of the taxpayer by the new owners was to avoid taxes. The Tax Court, five judges dissenting, ruled in the affirmative, 31 T.C. 437 (November 26, 1958), and the Commissioner has appealed. We here hold that carry-over of the loss is forbidden under § 129(a) of the Internal Revenue Code of 1939, 26 U.S.C.A. § 129(a) (added by Chapter 63, 58 Stat. 47,1944). The judgment of the Tax Court accordingly must be reversed.
Empire Home Equipment Company, Inc., was incorporated under the laws of California on November 13, 1948. Empire engaged in the business of selling home appliances at wholesale and retail. During its fiscal years ending in 1949, 1950 and 1951, Empire incurred net operating losses in the sum of $374,406.57. In December, 1949, Empire’s lease of its premises at 40 Drumm Street in San Francisco was cancelled. Unamortized leasehold improvements were written off by January, 1950. In February, 1950, its merchandise inventory was liquidated in bulk at a considerable loss. All of its furniture and fixtures were sold by February 20, 1950. On April 1, 1950, its accounts receivable were sold. On its tax return for the fiscal year ending October 31, 1951, Empire reported its assets as “Nil.”
British Motor Car Company was a partnership consisting of Kjell H. Qvale, who had an 85 per cent interest, and his wife, who had a 15 per cent interest. The partnership had existed from about May 1, 1948, and engaged, in San Francisco, in the business of importing, distributing and selling foreign automobiles and parts. On September 11, 1951, the partnership submitted an offer to counsel for the Empire Home Equipment Company, in which the former offered to buy the outstanding stock of the corporation from its then owners for $21,250.00, upon the conditions, inter alia, that the corporation would increase its authorized capital and change its name. The offer was accepted. On November 2, 1951, Empire changed its name to British Motor Car Distributors, Ltd. On November 30, 1951, the partnership acquired all the outstanding shares of stock and immediately thereafter transferred its net assets (exclusive of the acquired shares) to the corporation in exchange for an additional 15,923 shares of stock. It is not claimed that there was any business purpose in the acquisition.
In the tax years ending October 31, 1952, and October 31, 1953, the corporation operated profitably in the automobile business. In its income and excess profits tax returns for those years, it carried forward the net operating losses that it had sustained in the appliance business in its fiscal years ending in 1949, 1950 and 1951.
The Commissioner disallowed the claimed deductions and gave notice of deficiency. The corporation then petitioned the Tax Court for a redetermination.
The Tax Court, in its construction of § 129(a), adhered to its view as expressed in T.V.D. Company, 27 T.C. 879, 886, following the dictum in Alprosa Watch Company, 11 T.C. 240, to the effect that “it is manifest from the unambiguous terms of § 129 that it applies only to an acquiring corporation.” The court points out that here the corporation is seeking to make use of its own previous loss; that it is the corporation, and not its new stockholders, which is securing the benefit of the deduction. Alprosa Watch is quoted to the effect that § 129 (a) “would seem to prohibit the use of a deduction, credit or allowance only by the acquiring person or corporation and not their use by the corporation whose control was acquired.”
We do not read the language of the section, “securing the benefit of a deduction,” as applying only to the actual taking of such deduction by the taxpayer. We should be closing our eyes to the realities of the situation were we to refuse to recognize that the persons who have acquired the corporation did so to secure for themselves a very real tax benefit to be realized by them through the acquired corporation and which they could not otherwise have realized.
This is not, as the corporation protests, a disregard of its corporate entity. Since § 129(a) is expressly concerned with the persons acquiring control of a corporation, we must recognize such persons as, themselves, having a significant existence or entity apart from the corporation they have acquired. To ignore such independent entity simply because such persons are also the stockholders of their acquisition is to ignore the clear demands of § 129(a). It is not the fact that they are stockholders which subjects them to scrutiny. Rather, it is the fact that they are the persons specified by the section: those who have acquired control of the corporation. They may not escape the scrutiny which the section demands by attempting to merge their identity with that of their acquisition.
Section 129(a) contemplates that it shall not be limited to corporate acquirers. While Clause (2) is specifically limited to corporate acquirers, Clause (1) deals with “persons” as acquirers. That Clause (1) is to include noncorporate acquirers could not be more clearly implied. Nor do we find” any sound reason, if this device for tax avoidance is to be struck down, for doing the job only when the tax avoider is a corporation. Legislative history indicates that a much broader construction was intended.
To limit the effect of § 129(a) to cases in which the taxpayer is seeking to deduct as its own a loss incurred by another would seem to limit Clause (1) to corporate acquirers. Who but a corporation could claim as its own a loss which had been incurred by an acquired corporation? Certainly an individual could not do so. The construction here contended for by the taxpayer corporation would then clearly frustrate legislative purpose.
Such construction is not the necessary result of the language used. To construe “benefit” as limited to the taking of the deduction; or “deduction” as limited to one claimed by the acquirer is to read something into the section which is not expressly there and which serves to prevent its application in an area clearly intended to have been included.
The corporation contends, as stated by the Tax Court, that the benefit to the stockholders (as distinguished from that to the corporate taxpayer) (is too tenuous to bring the section into play. Tenuous or not, it is the benefit which actuated these persons in acquiring this corporation and is thus the very benefit with which this section is concerned. It is not for the courts to judge whether the benefit to the acquiring persons is sufficiently direct or substantial to be worth acquiring. That judgment was made by the acquirers. The judicial problem is whether the securing of the benefit was the principal purpose of the acquisition. If it was, the allowance of the deduction is forbidden. See: Mill Ridge Coal Co. v. Patterson, 5 Cir., 1959, 264 F.2d 713; Tarleau, Acquisition of Loss Companies, 1953, 31 Taxes, The Tax Magazine, 1050.
Judgment reversed. The deductions claimed by the taxpayer are disallowed and judgment is entered for the Commissioner.
. Section 129(a): “Disallowance of deduction, credit, or allowance. If (1) any person or persons acquire, on or after October 8, 1940, directly or indirectly, control of a corporation, or (2) any corporation acquires, on or after October 8, 1940, directly or indirectly, property of another corporation, not controlled, directly or indirectly, immediately prior to such acquisition, by such acquiring corporation or its stockholders, the basis of which property, in the hands of the acquiring corporation, is determined by reference to the basis in the hands of the transferor corporation, and the principal purpose for which such acquisition was made is evasion or avoidance of Federal income or excess profits tax by securing the benefit of a deduction, credit, or other allowance which such person or corporation would not otherwise enjoy, then such deduction, credit, or other allowance shall not be allowed. For the purposes of clauses (1) and (2), control means the ownership of stock possessing at least 50 per centum of the total combined voting power of all classes of stock entitled to vote1 or at least 50 per centum of the total value of shares of all classes of stock of the corporation.”
. This case involved an attempt to tan income to an acquired corporation which had been merged into the acquirer. No question of disallowance of losses was before the court. In W.A.G.E., Inc., 1952, 19 T.C. 249, and in A.B. & Container Corporation, 1950, 14 T.C. 842, also referred to by the Tax Court, business purpose was expressly found.
. H.R. No. 871, 78th Congress, First Session (1944 Cum.Bull. 901, 938):
“This section is designed to put an end promptly to any market for, or dealings in, interests in corporations or property which have as their objective the reduction through artifice of the income •or excess profits tax liability. *
“The crux of the devices which have come to the attention of your committee has been some form of acquisition on or after the effective date of the Second Revenue Act of 1940, but the devices take many forms. Thus, the acquisition may be an acquisition of the shares of a corporation, or it may be an acquisition which follows by operation of law in the case of a corporation resulting from a statutory merger or consolidation. The person, or persons, making the acquisition likewise vary, as do the forms or methods of utilization under which tax avoidance is sought. Likewise, the tax benefits sought may be one or more of several deductions or credits, including the utilization of excess profits credits, carry-overs and carry-backs of losses or unused excess profits credits, and anticipated expense of other deductions. In the light of these considerations, the section has not confined itself to a description of any particular methods for carrying out such tax avoidance schemes but has included within its scope these devices in whatever form they may appear. For similar reasons, the scope of the terms used in the section is to be found in the objective of the section, namely, to prevent the tax liability from being reduced through the distortion or perversion effected through tax avoidance devices.”
The taxpayer corporation contends that the Conference Report, H.Rep. 1079, 78th Congress, Second Session (1944 Cum. Bull. 1069) shows a narrowing of the intendment of the section. However, reference to Sen.Rep. 627, 78th Congress, First Session (1944 Cum.Bull. 973, 1016-1018) clearly shows that restriction on the sweep of the house bill was confined to the elimination of overlaps with existing sections and the formulation of a standard for “control” and that the spirit of the measure was left unaffected.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
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songer_typeiss
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
CHIN HONG v. NAGLE, Commissioner of Immigration.
Circuit Court of Appeals, Ninth Circuit.
August 24, 1925.
Rehearing Denied Oct. 12, 1925.
No. 4371.
1. Aliens <§=>32(8) — Refusal to be guided by evidence of Chinese minor's father being domiciled merchant held not abuse of discretion.
Evidence of mercantile character of father of one seeking admission as the minor son of a domiciled Chinese merchant, in view of evidence of his connection with a lottery, held not of such conclusive character that for department authorities to refuse to be guided by it was abuse of official discretion.
2. Aliens <§=>25 — Lottery business held to deprive Chinese resident of status of merchant.
Father of one seeking admission as minor son of a domiciled Chinese merchant was deprived of his status of merchant by his devoting the greater part of his time to, and principally deriving his income from, a lottery, which had no connection with his occupation as a merchant.
3. Aliens <§=>25 — Father of Chinese minor seeking admission must be merchant at time.
Father of minor, seeking admission as son of domiciled Chinese merchant, must be shown to be such merchant at the time the son seeks to enter.
Appeal from the District Court of the United States for the Southern Division of the Northern District of California; Frank II. Kerrigan, Judge.
Habeas corpus by Chin Hong against John D. Nagle, as Commissioner of Immigration at the Port of San Francisco, Cal. From a judgment denying the petition, petitioner appeals.
Affirmed.
Geo. A. McGowan, of San Francisco, Cal., for appellant.
Sterling Carr, U. S. Atty., and Alma M. Myers, Asst. U. S. Atty., both of San Francisco, Cal., for appellee.
Before GILBERT, HUNT, and RUDKIN, Cireuit Judges.
GILBERT, Circuit Judge.
The appellant, coming from China, and claiming to be the minor son of Chin Lung, a domiciled Chinese merchant, was denied admission to the United States for failure of proof of the mercantile status of his father. He appeals from the judgment of the court below, denying a petition in his behalf for habeas corpus. In the petition it was alleged that the evidence submitted before the Commissioner of Immigration and the Secretary of Labor, attesting the mercantile status of Chin Lung, was of such a conclusive character that to refuse to he guided thereby was abuse of official discretion. -The proof was that Chin Lung was a member of the firm of Qwong Sun Kee Company, engaged in general merchandise business in a small way at Monterey, Cal., and that, connected with the store and under the same roof were two rooms used for a restaurant and a lottery.
The ground on which Chin Lung was found not to be a merchant within the meaning of the Chinese Exclusion Act (Comp. St. § 4290 et sec.) was that a very considerable portion of his time was devoted to the lottery business. The report of Butler, immigration inspector, was that on visiting the premises he found Chin Lung in the lottery room, a room considerably larger than the store room, busily engaged in marking off the duplicate lottery tickets and receiving the cash, that several white persons were in the room, that upon questioning them they informed him that they had seen Chin Lung there oft and on when they had come in to buy tickets. The inspector also directed attention to the testimony of a. constable and a traffic officer of Monterey; the former testifying that he had found Chin Lung in the store and also found him in the lottery room selling lottery tickets .hack of the counter off and on during the past year, once a week or oftener, but he had not found him in the lottery room all the time. The traffic officer stated that he had found Chin Lung selling lottery tickets back of the Counter in the lottery room not less than a dozen times and perhaps more. Chin Lung testified that he had no connection with the lottery, that while he was there when the inspector called, he was there merely to take the place of the man who was ratming the lottery while the latter was out. The testimony was conflicting, and whether or not the decision of the Commissioner and the Secretary was against the weight of the evidence we are not called upon to decide. Certain it is that the evidence of the mercantile status of Chin Lung was not of such a conclusive ,character that to refuse to be guided by it was abuse of official discretion. In United States v. Ah Fawn (D. C.) 57 F. 591, it was held that the term “Chinese laborers” in the Exclusion Act is broad enough in its meaning and intent to inelude Chinese gamblers, and such is the generally accepted construction.
The appellant contends that the occasional activities of Chin Lung in conducting the lottery should not be held to deprive him of' the status of a merchant, and cites our decision in Ow Yang Dean v. United States, 145 F. 801, 76 C. C. A. 365. But in that case the manual- labor performed by the merchant was found to be only such as was connected with and necessary to the conduct of his business as such merchant and permissible within the express language of the statutory definition of the term “merchant,” whereas in the ease at bar the activities of Chin Lung in conducting a lottery business had no connection whatever with his occupation as a merchant, and there was evidence tending to show that the greater portion of his time was devoted to the lottery, and that his income was principally derived therefrom. The appellant cites Ng Fung Ho v. White (C. C. A.). 266 F. 765, to the proposition that a Chinese merchant, once domiciled as such within the United States, is not subject to deportation on the ground that he has abandoned his business as merchant and become a gambler. That decision has no bearing on the ease in hand, it being well settled that one who has once been lawfully domiciled within the United States as a Chinese merchant may not be thereafter deported as a laborer. Here the crucial question is whether or not Chin Lung was a merchant at the time when his minor son sought to enter the United States.
The judgment is affirmed. ■
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
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songer_numappel
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1
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of appellants in the case. If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, Plaintiff-Appellee, v. Gerald Paul HARWOOD, Defendant-Appellant.
No. 72-1498.
United States Court of Appeals, Tenth Circuit.
Dec. 18, 1972.
Jerry Cord Wilson, Asst. U. S. Atty., (William R. Burkett, U. S. Atty., on the brief), for plaintiff-appellee.
Mac Oyler, Oklahoma City, Okl., for defendant-appellant.
Before BREITENSTEIN and MC-WILLIAMS, Circuit Judges, and CHRISTENSEN, District Judge.
McWILLIAMS, Circuit Judge.
Gerald Paul Harwood was charged in a one count indictment with knowingly and unlawfully possessing six automatic firearms not registered to him in violation of r 26 U.S.C. §§ 5845(b) and 5861(d). Thereafter, Harwood filed a motion to suppress the use as evidence of the six firearms which formed the basis for the indictment on the grounds that such were obtained in an unlawful search and seizure. Upon hearing, the trial court, apparently without comment, simply denied the motion to suppress.
Trial by jury before a- judge other than the one who denied the motion to suppress resulted in a guilty verdict and Harwood now appeals. The only issue presented to us is the correctness of the trial court’s denial of the motion to suppress. We conclude that the trial court erred and under the circumstances should have granted the motion to suppress the use as evidence of the six weapons in question. The evidence adduced at the hearing on the motion to suppress is all important and we shall review it in some detail.
The search in question was pursuant to a warrant issued on the basis of the affidavit of one James P. Wheeler, a special investigator for the Alcohol, Tobacco and Firearms Division of the United States Treasury. The facts alleged in the affidavit as grounds for the issuance of a search warrant are set forth below. The italicized portion of the factual recital was penned in, with the balance of the recital being in typewritten form.
At the hearing on the motion to suppress, it developed that an informer had called the police chief for Midwest, Oklahoma, on November 21, 1971, concerning some automatic weapons. The police chief testified that although he had prior acquaintance with the informer, he had no occasion to ever use any of the informer’s information as the basis for any criminal investigation.
Wheeler, whose affidavit formed the basis for the issuance of the search warrant, testified at the hearing on the motion to suppress that he first learned about the matter when he was called by the police chief on November 22, 1971, and that later that same evening he conferred with the police chief and the informer. Wheeler went on to testify that he had no prior acquaintance with the informer and that accordingly he had no occasion to ever use any information given him by the informer, let alone that such information had resulted in two convictions.
The search warrant issued on Wheeler’s affidavit authorized a search of a one-story frame dwelling house, all appurtenances and all outbuildings located at 1228 SE 20th Street, in Oklahoma City, Oklahoma. These premises were occupied by one David Leon Harvey, who testified that sometime in September 1971 he had given Harwood permission to store some containers in the attic of his garage. The weapons in question were later found in these containers stored in the attic of Harvey’s garage. Harvey further testified that he gave Harwood permission “to come and go in regard to these containers” and that Harwood had on at least one occasion checked the containers in question.
The search warrant was issued by a United States Commissioner at 6:30 A. M. on November 23, 1971, and, as indicated, a search of the premises described in the search warrant about an hour after the issuance of the warrant disclosed the six automatic firearms packed in containers stored in the attic of the Harvey garage.
It was on this general state of the record that the trial court denied the motion to suppress, notwithstanding the fact that the testimony of Wheeler was patently at odds with the recitals in his affidavit. In our view of the matter, when it came to the attention of the trial court that the recitals in the affidavit upon which the search warrant had been issued were incorrect in significant particulars, the trial court should have promptly granted the motion to suppress. In support of our conclusion, see such cases as United States v. Upshaw, 448 F.2d 1218 (5th Cir. 1971), cert. denied, 405 U.S. 934, 92 S.Ct. 970, 30 L.Ed.2d 810; United States v. Roth, 391 F.2d 507 (7th Cir. 1968); and United States v. Pearce, 275 F.2d 318 (7th Cir. 1960).
In Upshaw appears the following pertinent comment:
“Once it came to the attention of the court, from the testimony at the motion to suppress hearing, that evidence had been seized on the basis of statements of facts erroneously made by the affiant which struck at the heart of the affidavit’s showing of probable cause, the court was required to grant the motion [to suppress]. -x- -x- ”
To like effect, in Roth it was stated:
“At the hearing on the motion to suppress in the instant case, testimony was elicited which exposed a fatal flaw in the affidavit. The affiant, Morrison, testified tha't the confidential informant told him, ‘there was a load of Hamilton Beach products that were stored in a grocery store out on the 6500 block of Calumet Avenue in Hammond, Indiana.’ In contrast, Morrison’s affidavit stated that the informant told him that ‘the said electric blenders [the stolen items]’ were on the defendant’s premises. (Emphases added.) When Morrison’s testimony is compared with his statement in the affidavit, a contradiction is disclosed, glaring enough to require the trial court to find the affidavit insufficient as a matter of law.”
And in Pearce it was held that in a hearing on the defendant’s motion to suppress it was proper for the court to hear evidence bearing on the asserted falsity of recitals in the affidavit and when such falsity was demonstrated the evidence obtained in the search should be suppressed.
In the instant case, it was demonstrated beyond any question that the recitals made by Wheeler in his affidavit presented to the Commissioner as grounds for issuing a search warrant were manifestly incorrect. Wheeler, in his testimony at the hearing on the motion to suppress, testified that he had never even seen the informant before his meeting with him and the police chief on November 22, 1971. Such completely negates, for example, the assertion in his affidavit that “the reliable source, has furnished me with reliable information, in the past several months, which has resulted in two convictions.” It also refutes the assertion in the affidavit that he (Wheeler) had received information “from a heretofore reliable source * -X- -x- »
In sum, the demonstrated falsity of material recitals in the affidavit rendered invalid the ensuing search. That is not to say that every misstatement in an affidavit would necessitate a holding that a search warrant issued thereon is invalid. But in the instant case, the incorrect statements related to material matters, and if the incorrect statements be eliminated, there is nothing left which would meet the requirements of such cases as United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); and Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960).
There remains the issue as to whether Harwood has standing to challenge the search of Harvey’s premises and the seizure therein of his (Harwood’s) property. We conclude that he has. In this regard, the undisputed evidence was that Harwood stored the containers in question in the attic of Harvey's garage with the latter’s permission and that Harwood was granted permission to “come and go” to the end that he did on occasion check his property. In our view, these , facts bring the instant case clearly within the rationale of such cases as Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); and United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951). Indeed, the facts of the instant case are quite analogous to those in Jeffers. There, the defendant was held to have standing to challenge the unlawful search of his aunts’ hotel room which resulted in the seizure of certain drugs allegedly belonging to the defendant. Though the aunts had not given the defendant permission to store drugs in their room, the defendant nevertheless had permission to use the room at will and had often used the room for various purposes. Such is believed to be quite comparable to the facts of this case.
The Government suggests that our recent case of United States v. Galvez, 465 F.2d 681 (10th Cir. 1972), requires the conclusion that Harwood has no standing to challenge the search of Harvey’s garage. However, on oral argument counsel conceded that the facts of Galvez are so dissimilar as to render Galvez of little help in resolving the present controversy. We agree.
Also upon oral argument it was agreed that should this court reverse, the case should be remanded with directions to dismiss, inasmuch as the gravamen of the charge was the possession of the weapons taken in the unlawful search. Without such evidence, the Government concedes, its case must fall. Again, we agree.
In our disposition of the case we need not, and do not, concern ourselves with the legality of a “second” search of the defendant’s own premises situated at 410 SE 17th in Oklahoma City.
Judgment reversed and cause remanded with direction that the trial court grant the motion to suppress and dismiss the indictment.
. “On Nov 23, 1971, I received information from a heretofore proven reliable source, which I believe, that a large quantity of machineguns were stashed at the above premises. The reliable source further stated to me that he had been at 1228 SE 20th Street, Okla City, Oklahoma on Nov 22, 1971; that he saw a machine gun pistol, a grease gun, a MI4 Al machinegun, a anti tank gun and about 8 foreign maehineguns. He further stated to me that the firearms were stashed in the attic above the garage at 1228 SE 20th Street, Okla City, Oklahoma and that the foreign maehineguns, greasegun, and machino gun pistol were in a box about 3 ft long and 2 ft wide, olive drab in color, with white lettering on the box. He also stated that the anti tank gun and other firearms in olive drab canvas cases were laying beside the box in the attic. The reliable source, has furnished me with reliable information, in the past several months, which has resulted in two convictions.”
Question: What is the total number of appellants in the case? Answer with a number.
Answer:
|
sc_decisiondirection
|
B
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases.
COUNTY OF LOS ANGELES et al. v. DAVIS et al.
No. 77-1553.
Argued December 5, 1978
Decided March 27, 1979
BreNNAN, J., delivered the opinion of the Court, in which White, Marshall, BlackmtjN, and Stevens, JJ., joined. Stewart, J., filed a dissenting opinion, in which RehNQUist, J., joined, post, p. 634. Powell, J., filed a dissenting opinion, in which Burger, C. J., joined, post, p. 636.
William F. Stewart argued the cause for petitioners. With him on the briefs was John H. Larson.
A. Thomas Hunt argued the cause for respondents. With him on the brief were Timothy B. Flynn and Walter Cochran-Bond.
Briefs of amici curiae urging reversal were filed by Qeorge Agnost, Burk E. Delventhal, and Diane L. Hermann for the City and County of San Francisco; by Stephen Warren Solomon and Ralph B. Saltsman for the California Organization of Police and Sheriffs; and by Robert E. Williams, Douglas S. McDowell, and Jeffrey A. Norris for the Equal Employment Advisory Council.
Briefs of afnici curiae urging affirmance were filed by Bruce J. Ennis, Burt Neuborne, E. Richard Larson, Fred Okrand, and Paul Hoffman for the American Civil Liberties Union et ah; by Charles A. Bane, Thomas D. Barr, Norman Redlich, Robert A. Murphy, Norman J. Chachkin, Richard T. Seymour, and Richard S. Kohn for the Lawyers’ Committee for Civil Rights Under Law; and by Jack Greenberg, 0. Peter Sherwood, and Eric Schnapper for the N. A. A. C. P. Legal Defense and Educational Fund, Inc.
Briefs of amici curiae were filed by Robert A. Helman, Arnold Forster, 'Jeffrey P. Sinensky, and Richard A. Weisz for the Anti-Defamation League of B’nai B’rith; by Vilma S. Martinez, Morris J. Bailer, and Joel G. Contreras for the Incorporated Mexican American Government Employees et al.; and by Ronald A. Zumbrun and John H. Findley for the Pacific Legal Foundation.
Mr. Justice Brennan
delivered the opinion of the Court.
The District Court for the Central District of California determined in 1973 that hiring practices of the County of Los Angeles respecting the County Fire Department violated 42 U. S. C. § 1981. The District Court in an unreported opinion and order permanently enjoined all future discrimination and entered a remedial hiring order. The Court of Appeals for the Ninth Circuit affirmed in part, reversed in part, and remanded the case for further consideration. 566 F. 2d 1334 (1977). We granted certiorari to consider questions presented as to whether the use of arbitrary employment criteria, racially exclusionary in operation, but not purposefully discriminatory, violates 42 U. S. C. § 1981 and, if so, whether the imposition of minimum hiring quotas for fully qualified minority applicants is an appropriate remedy in this employment discrimination case. 437 IT. S. 903 (1978). We now find that the controversy has become moot during the pend-ency of this litigation. Accordingly, we vacate the judgment of the Court of Appeals and direct that court to modify its remand so as to direct the District Court to dismiss the action.
I
In 1969, persons seeking employment with the Los Angeles County Fire Department were required to take a written civil service examination and a physical-agility test. Applicants were ranked according to their performance on the two tests and selected for job interviews on the basis of their scores. Those who passed their oral interviews were then placed on a hiring-eligibility list. Because blacks and Hispanics did poorly on the written examination, this method of screening job applicants proved to have a disparate impact on minority hiring.
The County of Los Angeles has not used the written civil service examination as a ranking device since 1969. The county desisted, prior to the commencement of this litigation, because it felt that the test had a disparate adverse impact on minority hiring, because it feared that this impact might violate Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. § 2000e et seq., and because it wished, in any event, to increase minority representation in the Fire Department. See App. to Brief for Respondents 1-4.
In 1971, the county replaced the 1969 procedure with a new method of screening job applicants. A new written test was designed expressly to eliminate cultural bias. The test was to be given and graded on a pass-fail basis for the sole purpose of screening out illiterates. Five hundred of the passing applicants were to be selected at random for oral interviews and physical-agility tests. Passing applicants were to be ranked solely on the basis of the results of the physical-agility test and the oral interview. See 566 F. 2d, at 1346 (Wallace J., dissenting).
An examination was conducted, pursuant to this plan, in January 1972. Ninety-seven percent of the applicants passed the written test. There was no disparate adverse impact on minorities and this use of the written examination has not been challenged in this litigation.
After administration of the written test, but before the random selection could be made, an action was filed in state court against the county charging that the random-selection process violated provisions of the county charter and civil service regulations. The county was enjoined from using the random-selection method pending trial on the merits. See ibid.
For a time the hiring process came to a halt. The eligibility list drawn from the 1969 examination had been exhausted. The county was unable to devise a nonrandom method of screening job applicants and the county lacked the resources to interview all of the applicants who had passed the 1972 examination.
As a consequence of this unintended hiring freeze, vacancies in the County Fire Department increased and the manpower needs of the Department became critical. Finally, to break the logjam, the County Department of Personnel proposed to interview those applicants who had received the top 544 scores on the 1972 written test. Of this number, 492 were white, 10 black, and 33 Mexican-American. The applicants were not to be ranked on the basis of the test results, however, and the interviews were not intended to eliminate the remaining applicants from consideration. The purpose was solely to expedite the hiring of sufficient firefighters to meet the immediate urgent requirements of the Fire Department. See ibid. But when minority representatives objected to the plan, it was abandoned, uneffectuated, prior to the commencement of this litigation.
In January 1973, respondents, representing present and future black and Mexican-American applicants to the Fire Department, brought a class action against the County of Los Angeles, the Board of Supervisors of the County of Los Angeles, and the Civil Service Commission of the County of Los Angeles (petitioners). Respondents charged that petitioners’ 1969 hiring procedures violated 42 U. S. C. § 1981. Respondents also charged that petitioners’ plan to interview those applicants who had received the top 544 scores on the 1972 written test violated 42 U. S. C. § 1981.
The District Court found that petitioners had acted without discriminatory intent. Nonetheless, the District Court held that because the 1969 and 1972 written examinations had not been validated as predictive of job performance, petitioners’ employment practices had violated 42 U. S. C. § 1981. The court permanently enjoined all future discrimination and mandated good-faith affirmative-action efforts. The court also entered a remedial hiring order whereby at least 20% of all new firefighter recruits were required to be black and another 20% were required to be Mexican-American until the percentage of blacks and Mexican-Amerieans in the Los Angeles County Fire Department was commensurate with their percentage in Los Angeles County.'
The Court of Appeals reversed the District Court with respect to the 1969 examination: The Court of Appeals held that respondents did not have standing to seek relief on account of the 1969 civil service examination because the plaintiff class, as certified by the District Court, consisted only of present and future job applicants and did not include any persons who had in any way been affected by the 1969 test.
The Court of Appeals affirmed, however, the District Court’s holding with respect to the 1972 proposal to use ah unvalidated civil service examination.
II
The only question remaining in this case, then, concerns petitioners’ 1972 plan to interview the top 544 scorers on the 1972 written examination in order to fill temporary emergency manpower needs. We find that this controversy became moot during the pendency of this litigation.
“Simply stated, a case is moot when the issues presented are no longer 'live’ or the parties lack a legally cognizable interest in the outcome.” Powell v. McCormack, 395 U. S. 486, 496 (1969). We recognize that, as a general rule, “voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i. e., does not make the case moot.” United States v. W. T. Grant Co., 345 U. S. 629, 632 (1953). But jurisdiction, properly acquired, may abate if the case becomes moot because
(1) it can be said with assurance that “there is no reasonable expectation . . .” that the alleged violation will recur, see id., at 633; see also SEC v. Medical Committee For Human Rights, 404 U. S. 403 (1972), and
(2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation. See, e. g., DeFunis v. Odegaard, 416 U. S. 312 (1974); Indiana Employment Security Div. v. Burney, 409 U. S. 540 (1973).
When both conditions are satisfied it may be said that the case is moot because neither party has a legally cognizable interest in the final determination of the underlying questions of fact and law.
The burden of demonstrating mootness “is a heavy one.” See United States v. W. T. Grant Co., supra, at 632-633. Nevertheless, that burden is fully met on this record.
The first condition is met because there can be no reasonable expectation that petitioners will use an unvalidated civil service examination for the purposes contemplated in 1972. Petitioners have not used an unvalidated written examination to rank job applicants since 1969. Petitioners considered employing such a procedure in 1972 only because of a temporary emergency shortage of firefighters and only because petitioners then had no alternative means of screening job applicants. Those conditions were unique, are no longer present, and are unlikely to recur because, since the commencement of this litigation, petitioners have succeeded in instituting an efficient and nonrandom method of screening job applicants and increasing minority representation in the Fire Department. The new procedures are as follows:
To fill each group of vacancies petitioners interview 500 applicants who passed their written examination, including the highest scoring 300 whites, 100 blacks, and 100 Mexican-Americans. The number interviewed is several times the number of actual vacancies. The interviewers rate each of these applicants on his or her merits without regard to race or national origin. Thereafter applicants are hired solely on the basis of the score given by the interviewer, again without regard to race or national origin. Those hired are not hired from separate lists, no quotas are used, and the same rating standards are applied to all applicants. The interviewers are not authorized to give extra points because of an applicant’s race or national origin, but are directed only to be alert for talented minority applicants. This procedure has resulted every year since 1972 in a minority hiring level which consistently, though by varying amounts, exceeded 50%.
There has been no suggestion by any of the parties, nor is there any reason to believe, that petitioners would significantly alter their present hiring practices if the injunction were dissolved. See also Brief for N. A. A. C. P. Legal Defense and Educational Fund, Inc., as Amicus Curiae 7. A fortiori, there is no reason to believe that petitioners would replace their present hiring procedures with procedures that they regarded as unsatisfactory even before the commencement of this litigation. Under these circumstances we believe that this aspect of the case has “lost its character as a present, live controversy of the kind that must exist if '[the Court is] to avoid advisory opinions on abstract propositions of law.” Hall v. Beals, 396 U. S. 45, 48 (1969).
The second condition of mootness is met because petitioners’ compliance during the five years since 1973 with the District Court’s decree and their hiring of over 50% of new recruits from minorities has completely cured any discriminatory effects of the 1972 proposal. Indeed, it is extremely doubtful, from this record, that the 1972 proposal had any discriminatory effects to redress. The plan, it must be remembered, was never carried out. As a consequence, there has been no finding that any minority job applicant was excluded from employment as a result of the proposal. Cf. Franks v. Bowman Transportation Co., 424 U. S. 747 (1976). Nor has there been a finding that any prospective minority job applicant was deterred from applying for employment with the Fire Department as a result of the proposed application of the examination. Cf. Teamsters v. United States, 431 U. S. 324, 365-367 (1977). Nor has there been a finding that the 1972 proposal reflected a racial animus that might have tainted other employment practices. Cf. Keyes v. School Dist. No. 1, Denver, Colo., 413 U. S. 189 (1973). On the contrary the District Court expressly found:
“Neither Defendants nor their officials engaged in employment practices with a willful or conscious purpose of excluding blacks and Mexican-Americans from employment at the Los Angeles County Fire Department. To the contrary, several of Defendants’ officials engaged in efforts designed to increase the minority representation in the Los Angeles County Fire Department.” App. 41.
All of these circumstances, taken together, persuade us that, whatever might have been the case at the time of trial, the controversy has become moot during the pendency of this litigation. Accordingly, we vacate the judgment of the Court of Appeals and remand to that court for entry of an appropriate order directing the District Court to dismiss the action as moot. See United States v. Munsingwear, Inc., 340 U. S. 36, 39 (1960).
So ordered.
Revised Stat. § 1977, 42 U. S. C. § 1981, provides:
“All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.”
Despite the fact that the Mexican-American population of Los Angeles County was approximately double the size of the black population, the District Court ordered identical accelerated hiring for both groups due to its finding that the Fire Department’s 5'7"' height requirement for job applicants was a valid requirement for employment and that this height requirement had the effect of eliminating 41% of the otherwise eligible Mexican-American applicants from consideration. See 566 F. 2d 1334, 1337 (1977). The Court of Appeals reversed the District Court in this respect and ordered a relative increase in the Mexican-American hiring quota. In light of our disposition on grounds of mootness we do not consider this issue.
Respondents contend that their failure to include past applicants in the class was a “mere oversight” which should not be used to vitiate the District Court’s decree. But respondents did not cross petition for modification of the judgment of the Court of Appeals reversing the District Court with respect to the 1969 test. The issue of oversight, as a consequence, is not properly before us. See FEA v. Algonquin SNG, Inc., 426 U. S. 548, 560 n. 11 (1976). We intimate no view whether respondents may seek, despite the oversight, to bring a new lawsuit with new and proper parties. See Gibson v. Supercargoes & Checkers, 543 F. 2d 1259, 1264 (CA9 1976).
The parties stipulated that approximately 100 vacancies occur in the ranks of firemen each year, and testimony at trial established that 187 applicants were placed on an eligibility list following the 1969 test. Based on this evidence the Court of Appeals concluded that the 1969 list had been exhausted before plaintiffs applied for employment as firefighters in October 1971. See 566 F. 2d, at 1338.
Moreover, there appears to be no possibility that persons hired pursuant to the District Court’s order will be terminated in consequence of our vacation of the Court of Appeals’ judgment as moot. Cf. DeFunis v. Odegaard, 416 U. S. 312 (1974).
Of necessity our decision “vacating the judgment of the Court of Appeals deprives that court’s opinion of precedential effect . . . .” O’Connor v. Donaldson, 422 U. S. 563, 577-578, n. 12 (1975). See also A. L. Mechling Barge Lines v. United States, 368 U. S. 324, 329-330 (1961).
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
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sc_respondent
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105
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the respondent of the case. The respondent is the party being sued or tried and is also known as the appellee. Characterize the respondent as the Court's opinion identifies them.
Identify the respondent by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the respondent is actually single entitiy or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single respondent, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name.
BOWSHER, COMPTROLLER GENERAL OF THE UNITED STATES, et al. v. MERCK & CO., INC.
No. 81-1273.
Argued December 1, 1982
Decided April 19, 1983
O’Connor, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, Powell, and Rehnquist, JJ., joined, and in Part V of which White and Marshall, JJ., joined. White, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL, J., joined, post, p. 845. Blackmun, J., filed an opinion concurring in part and dissenting in part, in which Stevens, J., joined, post, p. 860.
Jerrold J. Ganzfried argued the cause for petitioners in No. 81-1273 and respondents in No. 81-1472. With him on the briefs were Solicitor General Lee, Assistant Attorney General McGrath, Deputy Solicitor General Geller, and Michael Kimmel.
Philip A. Lacovara argued the cause for respondent in No. 81-1273 and petitioner in No. 81-1472. With him on the briefs was Ronald A. Stem.
Together with No. 81-1472, Merck & Co., Inc. v. Bowsher, Comptroller General of the United States, et al., also on certiorari to the same court.
Robert D. Wallick filed a brief for the Aerospace Industries Association of America, Inc., as amicus curiae urging reversal.
Stanley L. Temko and Charles Lister filed a brief for SmithKline Corp. as amicus curiae.
Justice O’Connor
delivered the opinion of the Court.
The issue before the Court is the scope of the authority of the Comptroller General of the United States to examine the records of a private contractor with whom the Government has entered into fixed-price negotiated contracts. We conclude that, under the circumstances presented in this action, the Comptroller General may inspect the contractor’s records of direct costs, but not records of indirect costs.
In 1973 Merck & Co., Inc. (Merck), entered into three contracts with the Defense Supply Agency of the Department of Defense and one contract with the Veterans’ Administration for the sale of pharmaceutical products to the Government. All four contracts were negotiated, rather than awarded after formal advertising. The pharmaceutical products supplied under each contract were standard commercial products sold by Merck in substantial quantities to the general public. App. 41a. The price term proposed by Merck for each contract was based on the catalog price at which Merck sold the item to the general public or was otherwise determined by adequate competition. Before the award of each of the contracts at the fixed price proposed by Merck, there was no actual negotiation of price, and the Government contracting officers did not request Merck to submit cost data in connection with any of the four contracts.
As required by 10 U. S. C. § 2313(b) and 65 Stat. 700, 41 U. S. C. § 254(c), each contract contained a standard access-to-records clause granting the Comptroller General the right to examine any directly pertinent records involving transactions related to the contract. Relying on these clauses, in August 1974 the Comptroller General issued a formal demand to Merck for access to the following:
“all books, documents, papers, and other records directly pertinent to the contracts, which include, but are not limited to (1) records of experienced costs including costs of direct materials, direct labor, overhead, and other pertinent corporate costs, (2) support for prices charged to the Government, and (3) such other information as may be necessary for use to review the reasonableness of the contract prices and the adequacy of the protection afforded the Government’s interests.” App. 18a.
Merck refused to comply with the Comptroller General’s request and commenced this action in the United States District Court for the District of Columbia, seeking a declaratory judgment that the Comptroller General’s access demand exceeded his statutory authority. The United States intervened and counterclaimed to enforce the Comptroller General’s demand.
The District Court granted partial summary judgment for each party. Rejecting Merck’s argument that cost records are not “directly pertinent” to the fixed-price contracts that were the predicate of the General Accounting Office (GAO) demand, the court permitted access to all records
“directly pertaining to the pricing and cost of producing the items furnished by... Merck under the... contracts... including manufacturing costs (including raw and packaging materials, labor and fringe benefits, quality control and supervision), manufacturing overhead (including plant administration, production planning, warehousing, utilities and security), royalty expenses, and delivery costs.” App. to Pet. for Cert, in No. 81-1273, p. 39a.
The court barred access, however, to records “with respect to research and development, marketing and promotion, distribution, and administration (except to the extent such data may be included in the cost items listed above).” Id., at 40a. In a brief per curiam opinion, the United States Court of Appeals for the District of Columbia Circuit affirmed. Merck & Co. v. Staats, 214 U. S. App. D. C. 418, 665 F. 2d 1236 (1981).
Both parties sought certiorari. In No. 81-1273, the United States petitioned for review of the Court of Appeals’ determination that records of Merck’s indirect costs are not subject to examination by the Comptroller General. In No. 81-1472, Merck challenges the determination that records of its direct costs are “directly pertinent” to the contracts in question and are therefore subject to examination. Merck also contends that access to its cost records is barred because the Comptroller General’s access demand was not made for a congressionally authorized purpose. We granted certiorari on the petitions of both parties, 456 U. S. 925 (1982), and now affirm.
II
As with any issue of statutory construction, we “ ‘must begin with the language of the statute itself. ’ ” Bread Political Action Committee v. FEC, 455 U. S. 577, 580 (1982), quoting Dawson Chemical Co. v. Rohm & Haas Co., 448 U. S. 176, 187 (1980). The focal point of controversy is the meaning of the statutory phrase “directly pertain to and involve transactions relating to the contract.” See n. 3, supra. It is plain from the face of the provisions that these are words of limitation designed to restrict the class of records to which access is permitted by requiring some close connection between the type of records sought and the particular contract.
The legislative history of the access provisions underscores what the language reflects: the intention of Congress to limit to some degree the Comptroller General’s access powers. As originally introduced, the bill now codified as 10 U. S. C. § 2313(b) and 41 U. S. C. § 254(c) provided access to “pertinent” records “involving transactions related to” the contract. See 97 Cong. Rec. 13371 (1951). Representative Hoffman opposed the original bill on the ground that it permitted “unnecessary snooping expeditions” and allowed the GAO to “go into everybody’s business and look it over if they just wanted to take a look at it.” Id., at 13373. He therefore offered a floor amendment to insert the word “directly” before the word “pertinent,” stating that the purpose of the amendment “is to limit the ‘snooping’ that may be carried on under this bill.” Id., at 13377. The sponsor of the original bill, Representative Hardy, did not oppose the amendment, and the amendment passed without debate or discussion.
The passage of the Hoffman amendment clearly reveals that Congress did not want unrestricted “snooping” by the Comptroller General into the business records of a private contractor. The Government nevertheless attempts to discount the significance of Congress’ addition of the word “directly.” Based on the lack of opposition to the limiting amendment by the bill’s sponsor and the lack of debate, the Government argues that the Hoffman modification did not significantly alter the scope of the Hardy bill. We cannot agree. The only explanation in the legislative history of the meaning and purpose of the amendment is that of Representative Hoffman. His statement, which, as the explanation of the sponsor of the language, is an “authoritative guide to the statute’s construction,” North Haven Board of Education v. Bell, 456 U. S. 512, 527 (1982), expressly indicates that the intent of the amendment was to curtail the scope of investigation authorized under the bill. Although, as the Government emphasizes, Representative Hoffman did not have the votes to defeat the bill in its entirety, he nevertheless had the votes to circumscribe the inquiry that the Comptroller General was authorized to undertake. Moreover, to accept the Government’s contention that the amendment had no substantive effect would contradict the settled principle of statutory construction that we must give effect, if possible, to every word of the statute. Fidelity Federal Savings & Loan Assn. v. De la Cuesta, 458 U. S. 141, 163 (1982). Therefore, in our attempt to give meaning to the words “directly pertinent,” we must be mindful of Congress’ aim to protect contractors from broad-ranging governmental intrusion into their private business affairs.
It does not follow, however, that our interpretation of the language added by the Hoffman amendment must be guided solely by that policy, for it is expressive of only one of the aims embraced by Congress in enacting the access-to-records provisions. The legislative history also reveals that Congress sought, in granting the GAO this access authority, to equip that agency with a tool to detect fraud, waste, inefficiency, and extravagance in Government contracting generally. Representative Hardy, the sponsor of the legislation, explained that the two major purposes of the bill were “to give the Comptroller General the proper tools to do the job the Congress has instructed him to do... and... to provide a deterrent to improprieties and wastefulness in the negotiation of contracts.” 97 Cong. Rec. 13198 (1951). With regard to the former purpose, it is clear that Congress envisioned use of the access authority as an adjunct to the Comptroller General’s statutory responsibility to “investigate... all matters relating to the receipt, disbursement, and application of public funds” and to “make recommendations looking to greater economy or efficiency in public expenditures.” 31 U. S. C. § 53(a). See also 31 U. S. C. §§ 60, 65(a). Obviously, broad access to cost records would enhance the GAO’s ability to evaluate the reasonableness of the price charged the Government and to identify areas of waste and inefficiency in procurement.
Because of the lack of debate or discussion of the Hoffman amendment, however, we do not have any indication in the legislative history, nor indeed in the language of the statute itself, of the scope of access authority left to the GAO after the restrictive words were added to the bill. In defining the degree of limitation, we thus traverse uncharted seas guided only by the two general statutory purposes reflected in the legislative history. Consequently, our task in construing the statutes as they apply in this action is to give effect to both of these congressional aims. The tension between these goals is apparent. For some industries and some types of contracts, including perhaps those at issue here, neither objective can be achieved fully without sacrificing the other. Given these dual, conflicting aims, we must balance the public interest served by full GAO investigations against the private interest in freedom from officious governmental intermeddling in the contractor’s private business affairs.
I — i HH I — (
w □> ^
The Government contends that the Court of Appeals erred in holding that records of Merck’s indirect costs are not “directly pertinent” to the contracts in question. In so arguing, the Government maintains that Merck’s indirect costs are directly pertinent to the fixed-price contracts because Merck uses payments made by the Government under these contracts to defray indirect expenses. Thus, the Government would have us define as “directly pertinent” the records of any costs defrayed from commingled general revenues that include Government payments under the contract.
We cannot accept this interpretation of the statute, however, for it completely eviscerates the congressional goal of protecting the privacy of the contractor’s business records. Under the Government’s proposed definition, records of expenditures to purchase raw materials for the manufacture of an entirely different product than that sold under the Government contract or to invest in the stock of another corporation would be subject to inspection by the Comptroller General. Hence, the Government’s interpretation would permit far-ranging governmental scrutiny of a contractor’s business records of nongovernmental transactions completely unrelated to either the contract underlying the access demand or the product procured under that contract. Indeed, carried to its logical extreme, the argument would dictate that few, if any, of a private contractor’s business records would be immune from GAO scrutiny. In short, the Government’s proposed definition of the statutory language admits of no doctrinal limitation, effectively reading the Hoffman limiting language and its “antisnooping” policy out of the statute.
B
Nor are we persuaded by the Government’s argument that the GAO’s consistent and longstanding interpretation of its authority under the access-to-records statutes supports the view that indirect cost records are subject to examination under the fixed-price contracts in question here. Even if that interpretation could be characterized as consistent, it would not be entitled to deference, for, as we have noted above, it is inconsistent with the statutory language. See Southeastern Community College v. Davis, 442 U. S. 397, 411 (1979).
Moreover, to characterize the GAO’s current sweeping view of its access authority as “consistent” would be generous. There is significant evidence indicating that in the past the GAO itself has acknowledged a deficiency in its statutory authority to examine indirect cost records. For example, in a ruling of particular significance for the facts of this case, the Comptroller General determined in 1967 that the access provisions do not confer upon the GAO the right to examine records relating to a contractor’s nongovernmental business, even when such review is necessary to determine whether a catalog-priced item was actually sold in substantial quantities to the general public. App. 162a-163a. Moreover, in late 1969, the GAO prepared a memorandum for Congress in connection with congressional consideration of a proposed grant of additional access authority to the GAO to pursue a study of contractor profits in the defense industry. In the memorandum, the GAO informed Congress that its authority under the 1951 access provisions did not extend to review of records of a contractor’s nongovernmental business and that additional access authority was therefore necessary to conduct a profit study. 115 Cong. Rec. 25800-25801 (1969) (reprinting GAO Memorandum on the Adequacy of the Legal Authority of the Comptroller General to Conduct a Comprehensive Study of Profitability in Defense Contracting). Finally, a 1970 internal memorandum also reveals the GAO’s belief that amendment of the 1951 access statutes would be necessary to give it the power to examine records of indirect costs. App. 160a-161a.
The only statements by the GAO directly supportive of its position here occur in testimony before a congressional Subcommittee in 1963 regarding the GAO’s litigation of the scope of its access authority in Hewlett-Packard Co. v. United States, 385 F. 2d 1013 (CA9 1967), cert. denied, 390 U. S. 988 (1968). In light of the GAO’s litigation posture during these hearings, as well as the contrary expressions of GAO opinion noted above, this testimony cannot provide persuasive evidence of the GAO’s consistent interpretation or practice.
> 1 — H
To summarize, the Government has failed to offer a definition of “directly pertinent” that would give any effect to the limiting purpose of that language. In our view, the appropriate accommodation of the competing goals reflected in the legislative history counsels us to draw the line precisely where both lower courts have drawn it. Thus, under the four fixed-price contracts in question, the Comptroller General should be permitted access to records of direct costs. He should be barred, however, from inspecting records of costs incurred in the areas of research and development, marketing and promotion, distribution, and administration, except to the extent the contractor has allocated these costs as attributable to the particular contract.
Direct costs certainly pertain directly to even a fixed-price contract, for direct costs are, by definition, readily identifiable as attributable to the specific product supplied under the contract. Consequently, as a rational businessman, the contractor will have some regard for these costs in setting even a catalog price in order to avoid a loss on the product. Because these costs therefore have a very direct influence on the price charged the Government, the GAO would need to examine records of these costs to determine whether the contractor is making an excessively high profit or the Government is getting a “fair deal” under the contract. Presumably, indirect costs also influence in some manner the setting of a catalog price, although to what extent is unclear, given the somewhat arbitrary accounting allocations that must be made to determine what portion of indirect costs may be attributed to a specific product. Nevertheless, the degree of intrusion into the contractor’s private business affairs occasioned by GAO scrutiny of indirect cost records is far greater, particularly where pure fixed-price contracts are involved. Such an inspection would entail exposure to the GAO of many of the contractor’s nongovernmental transactions. We therefore conclude that the appropriate balance of public and private interests in this situation weighs in favor of access to direct cost records but against access to Merck’s indirect cost records. Our decision in this regard is in accord with that of the majority of the Courts of Appeals to have considered this issue.
The Government objects strenuously that barring such access impermissibly constrains the GAO in its efforts to improve the procurement process. In an industry in which indirect costs represent such a large proportion of total costs, access to records of those costs is critical to an understanding of the industry with which the Government is dealing and to an assessment of the fairness of the contract price and the advisability of continued adherence to the negotiated procurement methods employed under those contracts.
As we have already noted, however, in adopting the Hoffman amendment, Congress was apparently willing to forgo the benefits that might be gained from permitting the GAO broad access to the contractor’s business records in order to protect those contractors from far-reaching governmental scrutiny of their nongovernmental affairs. By inclusion of that language, Congress injected into the determination of which records are accessible considerations besides the Government’s need for the information. Thus, any impediment that our holding places in the path of the GAO’s power to investigate fully Government contracts is one that Congress chose to adopt, and any arguments that this situation should be changed must be addressed to Congress, not the courts.
V
We address briefly Merck’s contention that there is yet another independent ground upon which the Comptroller General should be denied access to any of its cost records. Merck argues that the GAO is not entitled to examine these records because the access demand was not made for a congressionally authorized purpose. Specifically, Merck contends that the access-to-records statutes do not permit the Comptroller General to request records for the purpose of either conducting an economic study of the pharmaceutical industry or securing information desired by individual Members of Congress.
Much of what we have already said provides an answer to this contention. The legislative history reveals that Congress granted the GAO authority to examine directly pertinent records under individual procurement contracts in order to assess the reasonableness of the prices paid by the Government and to detect inefficiency and wastefulness. Given this authorized purpose, there is no reason to conclude that the GAO may not compile the information that it may lawfully obtain, within the statutory limits outlined above, from an investigation of individual contracts in order to arrive at a picture of the pharmaceutical industry generally. Moreover, the fact that two Senators encouraged the GAO to use its lawful authority to the fullest extent possible is irrelevant. The GAO is an independent agency within the Legislative Branch that exists in large part to serve the needs of Congress. If the records sought by the GAO are within the scope of the access-to-records provisions, the fact that the Comptroller General’s request had its origin in the requests of Congressmen or that the GAO reported the data to Congress does not vitiate its authority.
VI
Because of the GAO’s mandate to detect fraud, waste, inefficiency, and extravagance through full audits of Government contracts, we cannot accept Merck’s view that the only records directly pertinent to the four fixed-price contracts at issue are those necessary to verify that Merck actually had an established catalog price for the item procured, that it sold the items in substantial quantities to the general public at the catalog price, that it delivered the product specified, and that it received from the Government no more than the amount due under the contract. On the other hand, given the policy of protecting the privacy of contractors’ business records also expressed in the statutory language and legislative history, neither can we accept the Government’s contention that it must be permitted access to all of Merck’s cost records. Accordingly, we affirm the judgment below.
It is so ordered.
A pure fixed-price contract requires the contractor to furnish the goods or services for a fixed amount of compensation regardless of the costs of performance, thereby placing the risk of incurring unforeseen costs of performance on the contractor rather than the Government. See 1R. Nash & J. Cibinic, Federal Procurement Law 413 (3d ed. 1977). Variations on the pure fixed-price contract may contain some formula or technique for adjusting the contract price to account for unforeseen cost elements. See id., at 413-415 (discussing fixed-price contract with escalation clause, fixed-price incentive contract, and fixed-price redeterminable contract).
The Government employs two methods of procurement: advertised procurement, i. e., formal solicitation of competitive bids, and procurement by negotiation. A negotiated contract is the method authorized by statute for use in situations in which the formal advertising and bidding procedure is deemed impractical or unnecessary. See 10 U. S. C. § 2804(a); 41 U. S. C. § 252(c). In procuring by negotiation, the Government agency discusses the terms of the procurement with one or more contractors and awards the contract to the party offering the terms most advantageous to the Government.
Title 10 U. S. C. § 2313(b), which applies to the Defense Supply Agency contracts, provides:
“Except as provided in subsection (c), each contract negotiated under this chapter shall provide that the Comptroller General and his representatives are entitled, until the expiration of three years after final payment, to examine any books, documents, papers, or records of the contractor, or any of his subcontractors, that directly pertain to and involve transactions relating to, the contract or subcontract.”
The Veterans’ Administration contract is governed by 41 U. S. C. § 254(c), which provides in pertinent part:
“All contracts negotiated without advertising... shall include a clause to the effect that the Comptroller General of the United States... shall until the expiration of three years after final payment
Question: Who is the respondent of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
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sc_decisiondirection
|
A
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases.
KANSAS, Petitioner
v.
Jonathan D. CARR.
Kansas, Petitioner
v.
Reginald Dexter Carr, Jr.
Kansas, Petitioner
v.
Sidney J. Gleason.
Nos. 14-449
14-450
14-452.
Supreme Court of the United States
Argued Oct. 7, 2015.
Decided Jan. 20, 2016.
Derek L. Schmidt, Attorney General, for Petitioner.
Jeffrey T. Green, Washington, D.C., for Respondents in No. 14-449 and in No. 14-452.
Neal K. Katyal, for Respondent in No. 14-450, for the Burden Question.
Stephen R. McAllister, Solicitor General, for Petitioner.
Rachel P. Kovner for the United States as amicus curiae, by special leave of the Court, supporting the Petitioner.
Frederick Liu, for Respondent in No. 14-450.
Jeffrey T. Green, Washington, D.C., for Respondent in No. 14-449, for the Severance Question.
Derek Schmidt, Attorney General of Kansas, Jeffrey A. Chanay, Chief Deputy Attorney General, Stephen R. McAllister, Solicitor General of Kansas, Kristafer R. Ailslieger, Deputy Solicitor General, Natalie Chalmers, Assistant Solicitor General, David Lowden, Chief Assistant District Attorney, Topeka, KS, for Petitioner.
Jeffrey T. Green, Clayton G. Northouse, Kelly A. Rosencrans, Sidley Austin LLP, Washington, D.C., Sarah O'Rourke Schrup, Northwestern Univ. School of Law, Chicago, IL, Sarah Ellen Johnson, Meryl Carver-Allmond, Capital Appellate Defender Office, Topeka, KS, for Respondent Jonathan D. Carr.
Debra J. Wilson, Capital Appeals and Conflicts Office, Topeka, KS, Neal Kumar Katyal, Frederick Liu, Colleen E.R. Sinzdak, Jaclyn L. DiLauro, Eugene A. Sokoloff, Hogan Lovells US LLP, Washington, D.C., for Respondent Reginald Dexter Carr, Jr.
Jeffrey T. Green, Tobias S. Loss-Eaton, Brian Corman, Sidley Austin LLP, Washington, D.C., Sarah O'Rourke Schrup, Northwestern Univ. School of Law, Chicago, IL, Sarah Ellen Johnson, Meryl Carver-Allmond, Capital Appellate Defender Office, Topeka, KS, for Respondent Sidney J. Gleason.
Justice SCALIA delivered the opinion of the Court.
The Supreme Court of Kansas vacated the death sentences of Sidney Gleason and brothers Reginald and Jonathan Carr. Gleason killed one of his co-conspirators and her boyfriend to cover up the robbery of an elderly man. The Carrs' notorious Wichita crime spree culminated in the brutal rape, robbery, kidnaping, and execution-style shooting of five young men and women. We first consider whether the Constitution required the sentencing courts to instruct the juries that mitigating circumstances "need not be proved beyond a reasonable doubt." And second, whether the Constitution required severance of the Carrs' joint sentencing proceedings.
I
A
Less than one month after Sidney Gleason was paroled from his sentence for attempted voluntary manslaughter, he joined a conspiracy to rob an elderly man at knifepoint. Gleason and a companion "cut up" the elderly man to get $10 to $35 and a box of cigarettes. 299 Kan. 1127, 1136, 329 P.3d 1102, 1115 (2014). Fearing that their female co-conspirators would snitch, Gleason and his cousin, Damien Thompson, set out to kill co-conspirator Mikiala Martinez. Gleason shot and killed Martinez's boyfriend, and then Gleason and Thompson drove Martinez to a rural location, where Thompson strangled her for five minutes and then shot her in the chest, Gleason standing by and providing the gun for the final shot.
The State ultimately charged Gleason with capital murder for killing Martinez and her boyfriend, first-degree premeditated murder of the boyfriend, aggravating kidnaping of Martinez, attempted first-degree murder and aggravated robbery of the elderly man, and criminal possession of a firearm. He was convicted on all counts except the attempted first-degree murder charge. Id., at 1134-1135, 1146, 329 P.3d, at 1114, 1120. The jury also found that the State proved beyond a reasonable doubt the existence of four aggravating circumstances and unanimously agreed to a sentence of death. Id., at 1146-1147, 329 P.3d, at 1120-1121.
B
In December 2000, brothers Reginald and Jonathan Carr set out on a crime spree culminating in the Wichita Massacre. On the night of December 7, Reginald Carr and an unknown man carjacked Andrew Schreiber, held a gun to his head, and forced him to make cash withdrawals at various ATMs.
On the night of December 11, the brothers followed Linda Ann Walenta, a cellist for the Wichita symphony, home from orchestra practice. One of them approached her vehicle and said he needed help. When she rolled down her window, he pointed a gun at her head. When she shifted into reverse to escape, he shot her three times, ran back to his brother's car, and fled the scene. One of the gunshots severed Walenta's spine, and she died one month later as a result of her injuries.
On the night of December 14, the brothers burst into a triplex at 12727 Birchwood, where roommates Jason, Brad, and Aaron lived. Jason's girlfriend, Holly, and Heather, a friend of Aaron's, were also in the house. Armed with handguns and a golf club, the brothers forced all five into Jason's bedroom. They demanded that they strip naked and later ordered them into the bedroom closet. They took Holly and Heather from the bedroom, demanded that they perform oral sex and digitally penetrate each other as the Carrs looked on and barked orders. They forced each of the men to have sex with Holly and then with Heather. They yelled that the men would be shot if they could not have sex with the women, so Holly-fearing for Jason's life-performed oral sex on him in the closet before he was ordered out by the brothers.
Jonathan then snatched Holly from the closet. He ordered that she digitally penetrate herself. He set his gun between her knees on the floor. And he raped her. Then he raped Heather.
Reginald took Brad, Jason, Holly, and Aaron one-by-one to various ATMs to withdraw cash. When the victims returned to the house, their torture continued. Holly urinated in the closet because of fright. Jonathan found an engagement ring hidden in the bedroom that Jason was keeping as a surprise for Holly. Pointing his gun at Jason, he had Jason identify the ring while Holly was sitting nearby in the closet. Then Reginald took Holly from the closet, said he was not going to shoot her yet, and raped her on the dining-room floor strewn with boxes of Christmas decorations. He forced her to turn around, ejaculated into her mouth, and forced her to swallow. In a nearby bathroom, Jonathan again raped Heather and then again raped Holly.
At 2 a.m.-three hours after the mayhem began-the brothers decided it was time to leave the house. They attempted to put all five victims in the trunk of Aaron's Honda Civic. Finding that they would not all fit, they jammed the three young men into the trunk. They directed Heather to the front of the car and Holly to Jason's pickup truck, driven by Reginald. Once the vehicles arrived at a snow-covered field, they instructed Jason and Brad, still naked, and Aaron to kneel in the snow. Holly cried, "Oh, my God, they're going to shoot us." Holly and Heather were then ordered to kneel in the snow. Holly went to Jason's side; Heather, to Aaron.
Holly heard the first shot, heard Aaron plead with the brothers not to shoot, heard the second shot, heard the screams, heard the third shot, and the fourth. She felt the blow of the fifth shot to her head, but remained kneeling. They kicked her so she would fall face-first into the snow and ran her over in the pickup truck. But she survived, because a hair clip she had fastened to her hair that night deflected the bullet. She went to Jason, took off her sweater, the only scrap of clothing the brothers had let her wear, and tied it around his head to stop the bleeding from his eye. She rushed to Brad, then Aaron, and then Heather.
Spotting a house with white Christmas lights in the distance, Holly started running toward it for help-naked, skull shattered, and without shoes, through the snow and over barbed-wire fences. Each time a car passed on the nearby road, she feared it was the brothers returning and camouflaged herself by lying down in the snow. She made it to the house, rang the doorbell, knocked. A man opened the door, and she relayed as quickly as she could the events of the night to him, and minutes later to a 911 dispatcher, fearing that she would not live.
Holly lived, and retold this play-by-play of the night's events to the jury. Investigators also testified that the brothers returned to the Birchwood house after leaving the five friends for dead, where they ransacked the place for valuables and (for good measure) beat Holly's dog, Nikki, to death with a golf club.
The State charged each of the brothers with more than 50 counts, including murder, rape, sodomy, kidnaping, burglary, and robbery, and the jury returned separate guilty verdicts. It convicted Reginald of one count of kidnaping, aggravated robbery, aggravated battery, and criminal damage to property for the Schreiber carjacking, and one count of first-degree felony murder for the Walenta shooting. Jonathan was acquitted of all counts related to the Schreiber carjacking but convicted of first-degree felony murder for the Walenta shooting. For the Birchwood murders, the jury convicted each brother of 4 counts of capital murder, 1 count of attempted first-degree murder, 5 counts of aggravated kidnaping, 9 counts of aggravated robbery, 20 counts of rape or attempted rape, 3 counts of aggravated criminal sodomy, 1 count each of aggravated burglary and burglary, 1 count of theft, and 1 count of cruelty to animals. The jury also convicted Reginald of three counts of unlawful possession of a firearm. 300 Kan. 1, 15-16, 331 P.3d 544, 573-574 (2014).
The State sought the death penalty for each of the four Birchwood murders, and the brothers were sentenced together. The State relied on the guilt-phase evidence, including Holly's two days of testimony, as evidence of four aggravating circumstances: that the defendants knowingly or purposely killed or created a great risk of death to more than one person; that they committed the crimes for the purpose of receiving money or items of monetary value; that they committed the crimes to prevent arrest or prosecution; and that they committed the crimes in an especially heinous, atrocious, or cruel manner. Id., at 258-259, 331 P.3d, at 708. After hearing each brother's case for mitigation, the jury issued separate verdicts of death for Reginald and Jonathan. It found unanimously that the State proved the existence of the four aggravating circumstances beyond a reasonable doubt and that those aggravating circumstances outweighed the mitigating circumstances, justifying four separate verdicts of death for each brother for the murders of Jason, Brad, Aaron, and Heather. App. in No. 14-449 etc., pp. 461-492.
C
The Kansas Supreme Court vacated the death penalties in both cases. It held that the instructions used in both Gleason's and the Carrs' sentencing violated the Eighth Amendment because they "failed to affirmatively inform the jury that mitigating circumstances need only be proved to the satisfaction of the individual juror in that juror's sentencing decision and not beyond a reasonable doubt." 299 Kan., at 1196, 329 P.3d, at 1147 (Gleason) ; 300 Kan., at 303, 331 P.3d, at 733 (Reginald Carr) ; 300 Kan. 340, 369-370, 329 P.3d 1195, 1213 (2014) (Jonathan Carr). Without that instruction, according to the court, the jury "was left to speculate as to the correct burden of proof for mitigating circumstances, and reasonable jurors might have believed they could not consider mitigating circumstances not proven beyond a reasonable doubt." 299 Kan., at 1197, 329 P.3d, at 1148. This, the court concluded, might have caused jurors to exclude relevant mitigating evidence from their consideration. Ibid.
The Kansas Supreme Court also held that the Carrs' death sentences had to be vacated because of the trial court's failure to sever their sentencing proceedings, thereby violating the brothers' Eighth Amendment right "to an individualized capital sentencing determination." 300 Kan., at 275, 331 P.3d, at 717, 300 Kan., at 368, 329 P.3d, at 1212. According to the court, the joint trial "inhibited the jury's individualized consideration of [Jonathan] because of family characteristics tending to demonstrate future dangerousness that he shared with his brother"; and his brother's visible handcuffs prejudiced the jury's consideration of his sentence. 300 Kan., at 275, 331 P.3d, at 717. As for Reginald, he was prejudiced, according to the Kansas Supreme Court, by Jonathan's portrayal of him as the corrupting older brother. Id., at 276, 331 P.3d, at 717. Moreover, Reginald was prejudiced by his brother's cross-examination of their sister, who testified that she thought Reginald had admitted to her that he was the shooter. Id., at 279, 331 P.3d, at 719. (She later backtracked and testified, " 'I don't remember who was, you know, shot by who[m].' " Ibid. ) The Kansas Supreme Court opined that the presumption that the jury followed its instructions to consider each defendant separately was "defeated by logic." Id., at 280, 331 P.3d, at 719. "[T]he defendants' joint upbringing in the maelstrom that was their family and their influence on and interactions with one another... simply was not amenable to orderly separation and analysis." Ibid., 331 P.3d, at 719-720. The Kansas Supreme Court found itself unable to "say that the death verdict was unattributable, at least in part, to this error." Id., at 282, 331 P.3d, at 720. We granted certiorari. 575 U.S. ----, 135 S.Ct. 1698, 191 L.Ed.2d 675 (2015).
II
We first turn to the Kansas Supreme Court's contention that the Eighth Amendment required these capital-sentencing courts to instruct the jury that mitigating circumstances need not be proved beyond a reasonable doubt.
A
Before considering the merits of that contention, we consider Gleason's challenge to our jurisdiction. According to Gleason, the Kansas Supreme Court's decision rests on adequate and independent state-law grounds. This argument is a familiar one. We rejected it in Kansas v. Marsh, 548 U.S. 163, 169, 126 S.Ct. 2516, 165 L.Ed.2d 429 (2006). Like the defendant in that case, Gleason urges that the decision below rests only on a rule of Kansas law announced in State v. Kleypas, 272 Kan. 894, 40 P.3d 139 (2001) (per curiam )-a rule later reiterated in State v. Scott, 286 Kan. 54, 183 P.3d 801 (2008) (per curiam ). As we stated in Marsh, "Kleypas, itself, rested on federal law." 548 U.S., at 169, 126 S.Ct. 2516. So too does the relevant passage of Scott, which rested on Kleypas's discussion of the constitutional rule that jurors need not agree on mitigating circumstances. See Scott, supra, at 106-107, 183 P.3d, at 837-838. The Kansas Supreme Court's opinion in this case acknowledged as much, saying that "statements from Kleypas implicate the broader Eighth Amendment principle prohibiting barriers that preclude a sentencer's consideration of all relevant mitigating evidence." 299 Kan., at 1195, 329 P.3d, at 1147.
The Kansas Supreme Court's opinion leaves no room for doubt that it was relying on the Federal Constitution. It stated that the instruction it required "protects a capital defendant's Eighth Amendment right to individualized sentencing," that the absence of the instruction "implicat[ed] Gleason's right to individualized sentencing under the Eighth Amendment, " and that vacatur of Gleason's death sentence was the "[c]onsequen[ce]" of Eighth Amendment error. Id., at 1196-1197, 329 P.3d, at 1147-1148 (emphasis added).
For this reason, the criticism leveled by the dissent is misdirected. It generally would have been "none of our business" had the Kansas Supreme Court vacated Gleason's and the Carrs' death sentences on state-law grounds. Marsh, 548 U.S., at 184, 126 S.Ct. 2516 (SCALIA, J., concurring). But it decidedly did not. And when the Kansas Supreme Court time and again invalidates death sentences because it says the Federal Constitution requires it, "review by this Court, far from undermining state autonomy, is the only possible way to vindicate it." Ibid. "When we correct a state court's federal errors, we return power to the State, and to its people. " Ibid. The state courts may experiment all they want with their own constitutions, and often do in the wake of this Court's decisions. See Sutton, San Antonio Independent School District v. Rodriguez And Its Aftermath, 94 Va. L. Rev. 1963, 1971-1977 (2008). But what a state court cannot do is experiment with our Federal Constitution and expect to elude this Court's review so long as victory goes to the criminal defendant. "Turning a blind eye" in such cases "would change the uniform 'law of the land' into a crazy quilt." Marsh, supra, at 185, 126 S.Ct. 2516. And it would enable state courts to blame the unpopular death-sentence reprieve of the most horrible criminals upon the Federal Constitution when it is in fact their own doing.
B
We turn, then, to the merits of the Kansas Supreme Court's conclusion that the Eighth Amendment requires capital-sentencing courts in Kansas "to affirmatively inform the jury that mitigating circumstances need not be proven beyond a reasonable doubt." 299 Kan., at 1197, 329 P.3d, at 1148.
Approaching the question in the abstract, and without reference to our capital-sentencing case law, we doubt whether it is even possible to apply a standard of proof to the mitigating-factor determination (the so-called "selection phase" of a capital-sentencing proceeding). It is possible to do so for the aggravating-factor determination (the so-called "eligibility phase"), because that is a purely factual determination. The facts justifying death set forth in the Kansas statute either did or did not exist-and one can require the finding that they did exist to be made beyond a reasonable doubt. Whether mitigation exists, however, is largely a judgment call (or perhaps a value call); what one juror might consider mitigating another might not. And of course the ultimate question whether mitigating circumstances outweigh aggravating circumstances is mostly a question of mercy-the quality of which, as we know, is not strained. It would mean nothing, we think, to tell the jury that the defendants must deserve mercy beyond a reasonable doubt; or must more-likely-than-not deserve it. It would be possible, of course, to instruct the jury that the facts establishing mitigating circumstances need only be proved by a preponderance, leaving the judgment whether those facts are indeed mitigating, and whether they outweigh the aggravators, to the jury's discretion without a standard of proof. If we were to hold that the Constitution requires the mitigating-factor determination to be divided into its factual component and its judgmental component, and the former to be accorded a burden-of-proof instruction, we doubt whether that would produce anything but jury confusion. In the last analysis, jurors will accord mercy if they deem it appropriate, and withhold mercy if they do not, which is what our case law is designed to achieve.
In any event, our case law does not require capital sentencing courts "to affirmatively inform the jury that mitigating circumstances need not be proved beyond a reasonable doubt." Ibid. In Buchanan v. Angelone, 522 U.S. 269, 118 S.Ct. 757, 139 L.Ed.2d 702 (1998), we upheld a death sentence even though the trial court "failed to provide the jury with express guidance on the concept of mitigation." Id., at 275, 118 S.Ct. 757. Likewise in Weeks v. Angelone, 528 U.S. 225, 120 S.Ct. 727, 145 L.Ed.2d 727 (2000), we reaffirmed that the Court has "never held that the State must structure in a particular way the manner in which juries consider mitigating evidence" and rejected the contention that it was constitutionally deficient to instruct jurors to " 'consider a mitigating circumstance if you find there is evidence to support it,' " without additional guidance. Id., at 232-233, 120 S.Ct. 727.
Equally unavailing is the contention that even if an instruction that mitigating evidence need not be "proven beyond a reasonable doubt" is not always required, it was constitutionally necessary in these cases to avoid confusion. Ambiguity in capital-sentencing instructions gives rise to constitutional error only if "there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence." Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990) (emphasis added). The alleged confusion stemming from the jury instructions used at the defendants' sentencings does not clear that bar. A meager "possibility" of confusion is not enough. Ibid.
As an initial matter, the defendants' argument rests on the assumption that it would be unconstitutional to require the defense to prove mitigating circumstances beyond a reasonable doubt. Assuming without deciding that that is the case, the record belies the defendants' contention that the instructions caused jurors to apply that standard of proof. The defendants focus upon the following instruction: "The State has the burden to prove beyond a reasonable doubt that there are one or more aggravating circumstances and that they are not outweighed by any mitigating circumstances found to exist." App. to Pet. for Cert. in No. 14-452, p. 133 (Instr. 8). The juxtaposition of aggravating and mitigating circumstances, so goes the argument, caused the jury to speculate that mitigating circumstances must also be proved beyond a reasonable doubt. 299 Kan., at 1197, 329 P.3d, at 1148. It seems to us quite the opposite. The instruction makes clear that both the existence of aggravating circumstances and the conclusion that they outweigh mitigating circumstances must be proved beyond a reasonable doubt; mitigating circumstances themselves, on the other hand, must merely be "found to exist." That same description, mitigating circumstances "found to exist, " is contained in three other instructions, App. to Pet. for Cert. in No. 14-452, at 133 (Instrs. 7, 9, and 10) (emphasis added)-unsurprisingly, since it recites the Kansas statute, see Kan. Stat. Ann. § 21-4624(e) (1995). "Found to exist" certainly does not suggest proof beyond a reasonable doubt. The instructions as a whole distinguish clearly between aggravating and mitigating circumstances: "The State has the burden to prove beyond a reasonable doubt that there are one or more aggravating circumstances...," and the jury must decide unanimously that the State met that burden. App. to Pet. for Cert. in No. 14-452, at 133 (Instrs. 8 and 10) (emphasis added). "Mitigating circumstances," on the other hand, "do not need to be found by all members of the jury" to "be considered by an individual juror in arriving at his or her sentencing decision." Id., at 131 (Instr. 7). Not once do the instructions say that defense counsel bears the burden of proving the facts constituting a mitigating circumstance beyond a reasonable doubt-nor would that make much sense, since one of the mitigating circumstances is (curiously) "mercy," which simply is not a factual determination.
We reject the Kansas Supreme Court's decision that jurors were "left to speculate as to the correct burden of proof for mitigating circumstances." 299 Kan., at 1197, 329 P.3d, at 1148. For the reasons we have described, no juror would reasonably have speculated that mitigating circumstances must be proved by any particular standard, let alone beyond a reasonable doubt. The reality is that jurors do not "pars[e] instructions for subtle shades of meaning in the same way that lawyers might." Boyde, supra, at 381, 110 S.Ct. 1190. The instructions repeatedly told the jurors to consider any mitigating factor, meaning any aspect of the defendants'
background or the circumstances of their offense. Jurors would not have misunderstood these instructions to prevent their consideration of constitutionally relevant evidence.
III
We turn next to the contention that a joint capital-sentencing proceeding in the Carrs' cases violated the defendants' Eighth Amendment right to an "individualized sentencing determination." 300 Kan., at 276, 331 P.3d, at 717.
The Kansas Supreme Court agreed with the defendants that, because of the joint sentencing proceeding, one defendant's mitigating evidence put a thumb on death's scale for the other, in violation of the other's Eighth Amendment rights. Ibid. It accepted Reginald's contention that he was prejudiced by his brother's portrayal of him as the corrupting older brother. And it agreed that Reginald was prejudiced by his brother's cross-examination of their sister, who equivocated about whether Reginald admitted to her that he was the shooter. (Reginald has all but abandoned that implausible theory of prejudice before this Court and contends only that the State "likely would not have introduced any such testimony" had he been sentenced alone. Brief for Respondent in No. 14-450, p. 34, n. 3.) Jonathan asserted that he was prejudiced by evidence associating him with his dangerous older brother, which caused the jury to perceive him as an incurable sociopath. Both speculate that the evidence assertedly prejudicial to them would have been inadmissible in severed proceedings under Kansas law. The Kansas Supreme Court also launched a broader attack on the joint proceedings, contending that the joinder rendered it impossible for the jury to consider the Carrs' relative moral culpability and to determine individually whether they were entitled to "mercy." 300 Kan., at 278, 331 P.3d, at 718-719.
Whatever the merits of defendants' procedural objections, we will not shoehorn them into the Eighth Amendment's prohibition of "cruel and unusual punishments." As the United States as amicus curiae intimates, the Eighth Amendment is inapposite when each defendant's claim is, at bottom, that the jury considered evidence that would not have been admitted in a severed proceeding, and that the joint trial clouded the jury's consideration of mitigating evidence like "mercy." Brief for United States 24, n. 8. As we held in Romano v. Oklahoma, 512 U.S. 1, 114 S.Ct. 2004, 129 L.Ed.2d 1 (1994), it is not the role of the Eighth Amendment to establish a special "federal code of evidence" governing "the admissibility of evidence at capital sentencing proceedings." Id., at 11-12. Rather, it is the Due Process Clause that wards off the introduction of "unduly prejudicial" evidence that would "rende[r] the trial fundamentally unfair." Payne v. Tennessee, 501 U.S. 808, 825, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991) ; see also Brown v. Sanders, 546 U.S. 212, 220-221, 126 S.Ct. 884, 163 L.Ed.2d 723 (2006).
The test prescribed by Romano for a constitutional violation attributable to evidence improperly admitted at a capital-sentencing proceeding is whether the evidence "so infected the sentencing proceeding with unfairness as to render the jury's imposition of the death penalty a denial of due process." 512 U.S., at 12, 114 S.Ct. 2004. The mere admission of evidence that might not otherwise have been admitted in a severed proceeding does not demand the automatic vacatur of a death sentence.
In light of all the evidence presented at the guilt and penalty phases relevant to the jury's sentencing determination, the contention that the admission of mitigating evidence by one brother could have "so infected" the jury's consideration of the other's sentence as to amount to a denial of due process is beyond the pale. To begin with, the court instructed the jury that it "must give separate consideration to each defendant," that each was "entitled to have his sentence decided on the evidence and law which is applicable to him," and that any evidence in the penalty phase "limited to only one defendant should not be considered by you as to the other defendant." App. to Pet. for Cert. in No. 14-450, at 501 (Instr. 3). The court gave defendant-specific instructions for aggravating and mitigating circumstances. Id., at 502-508 (Instrs. 5, 6, 7, and 8). And the court instructed the jury to consider the "individual" or "particular defendant" by using four separate verdict forms for each defendant, one for each murdered occupant of the Birchwood house. Id., at 509 (Instr. 10); App. in No. 14-449 etc., at 461-492. We presume the jury followed these instructions and considered each defendant separately when deciding to impose a sentence of death for each of the brutal murders. Romano, supra, at 13, 114 S.Ct. 2004.
The contrary conclusion of the Kansas Supreme Court-that the presumption that jurors followed these instructions was "defeated by logic," 300 Kan., at 280, 331 P.3d, at 719 -is untenable. The Carrs implausibly liken the prejudice resulting from the joint sentencing proceeding to the prejudice infecting the joint trial in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), where the prosecution admitted hearsay evidence of a codefendant's confession implicating the defendant. That particular violation of the defendant's confrontation rights, incriminating evidence of the most persuasive sort, ineradicable, as a practical matter, from the jury's mind, justified what we have described as a narrow departure from the presumption that jurors follow their instructions, Richardson v. Marsh, 481 U.S. 200, 207, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987). We have declined to extend that exception, id., at 211, 107 S.Ct. 1702 and have continued to apply the presumption to instructions regarding mitigating evidence in capital-sentencing proceedings, see, e.g., Weeks, 528 U.S., at 234, 120 S.Ct. 727. There is no reason to think the jury could not follow its instruction to consider the defendants separately in this case.
Joint proceedings are not only permissible but are often preferable when the joined defendants' criminal conduct arises out of a single chain of events. Joint trial may enable a jury "to arrive more reliably at its conclusions regarding the guilt or innocence of a particular defendant and to assign fairly the respective responsibilities of each defendant in the sentencing." Buchanan v. Kentucky, 483 U.S. 402, 418, 107 S.Ct. 2906, 97 L.Ed.2d 336 (1987). That the codefendants might have "antagonistic" theories of mitigation, Zafiro v. United States, 506 U.S. 534, 538, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993), does not suffice to overcome Kansas's "interest in promoting the reliability and consistency of its judicial process," Buchanan, supra, at 418, 107 S.Ct. 2906. Limiting instructions, like those used in the Carrs' sentencing proceeding, "often will suffice to cure any risk of prejudice." Zafiro, supra, at 539, 113 S.Ct. 933 (citing Richardson, supra, at 211, 107 S.Ct. 1702 ). To forbid joinder in capital-sentencing proceedings would, perversely, increase the odds of "wanto[n] and freakis[h]" imposition of death sentences. Gregg v. Georgia, 428 U.S. 153, 206-207, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.). Better that two defendants who have together committed the same crimes be placed side-by-side to have their fates determined by a single jury.
It is improper to vacate a death sentence based on pure "speculation" of fundamental unfairness, "rather than reasoned judgment," Romano, supra, at 13-14, 114 S.Ct. 2004. Only the most extravagant speculation would lead to the conclusion that the supposedly prejudicial evidence rendered the Carr brothers' joint sentencing proceeding fundamentally unfair. It is beyond reason to think that the jury's death verdicts were caused by the identification of Reginald as the "corrupter" or of Jonathan as the "corrupted," the jury's viewing of Reginald's handcuffs, or the sister's retracted statement that Reginald fired the final shots. None of that mattered. What these defendants did-acts of
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
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sc_respondent
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028
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the respondent of the case. The respondent is the party being sued or tried and is also known as the appellee. Characterize the respondent as the Court's opinion identifies them.
Identify the respondent by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the respondent is actually single entitiy or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single respondent, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name.
BAILEY et al. v. PATTERSON et al.
No. 643.
Decided February 26, 1962.
Constance Baker Motley, Jack Greenberg, James M. Nabrit III and R. Jess Brown for appellants.
Dugas Shands and Edward L. Cates, Assistant Attorneys General of Mississippi, and Charles Clark, Special Assistant Attorney General, for Patterson, Thomas H. Watkins for the City of Jackson, Mississippi, et al., and Junior O’Mara for the Greyhound Corporation et al., appellees.
Per Curiam.
Appellants, Negroes living in Jackson, Mississippi, brought this civil rights action, 28 U. S. C. § 1343 (3), in the United States District Court for the Southern District of Mississippi, on behalf of themselves and others similarly situated, seeking temporary and permanent injunctions to enforce their constitutional rights to nonsegregated service in interstate and intrastate transportation, alleging that such rights had been denied them under color of state statutes, municipal ordinances, and state custom and usage. A three-judge District Court was convened, 28 U. S. C. § 2281, and, Circuit Judge Rives dissenting, abstained from further proceedings pending construction of the challenged laws by the state courts. 199 F. Supp. 595. Plaintiffs have appealed, 28 U. S. C. § 1253; N. A. A. C. P. v. Bennett, 360 U. S. 471. We denied a motion to stay the prosecution of a number of criminal cases pending disposition of this appeal. 368 U. S. 346.
Appellants lack standing to enjoin criminal prosecutions under Mississippi’s breach-of-peace statutes, since they do not allege that they , have been prosecuted or threatened with prosecution under them. They cannot represent a class of whom they are not a part. McCabe v. Atchison, T. & S. F. R. Co., 235 U. S. 151, 162-163. But as passengers using the segregated transportation facilities they are aggrieved parties and have standing to enforce their rights to nonsegregated treatment. Mitchell v. United States, 313 U. S. 80, 93; Evers v. Dwyer, 358 U. S. 202.
We have settled beyond question that no State may require racial segregation of interstate or intrastate transportation facilities. Morgan v. Virginia, 328 U. S. 373; Gayle v. Browder, 352 U. S. 903; Boynton v. Virginia, 364 U. S. 454. The question is no longer open; it is foreclosed as a litigable issue. Section 2281 does not require a three-judge court when the claim that a statute is unconstitutional is wholly insubstantial, legally speaking nonexistent. Ex parte Poresky, 290 U. S. 30; Bell v. Waterfront Comm’n, 279 F. 2d 853, 857-858. We hold that three judges are similarly not required when, as here, prior decisions make frivolous any claim that a state statute on its face is not unconstitutional. Willis v. Walker, 136 F. Supp. 181; Bush v. Orleans Parish School Board, 138 F. Supp. 336; Kelley v. Board of Education, 139 F. Supp. 578. We denied leave to file petitions for mandamus in Bush, 351 U. S. 948, and from a similar ruling in Booker v. Tennessee Board of Education, 351 U. S. 948. The reasons for convening an extraordinary court are inapplicable in such cases, for the policy behind the three-judge requirement — that a single judge ought not to be empowered to invalidate a state statute under a federal claim — does not apply. The three-judge requirement is a technical one to be narrowly construed, Phillips v. United States, 312 U. S. 246, 251. The statute comes into play only when an injunction is sought “upon the ground of the unconstitutionality” of a statute. There is no such ground when the constitutional issue presented is essentially fictitious.
This case is therefore not one “required ... to be heard and determined by a district court of three judges,” 28 U. S. C. § 1253, and therefore cannot be brought here on direct appeal. However, we have jurisdiction to determine the authority of the court below and “to make such corrective order as may be appropriate to the enforcement of the limitations which that section imposes,” Gully v. Interstate Natural Gas Co., 292 U. S. 16, 18; Oklahoma Gas & Elec. Co. v. Oklahoma Packing Co., 292 U. S. 386, 392; Phillips v. United States, 312 U. S. 246, 254. Accordingly, we vacate the judgment and remand the case to the District Court for expeditious disposition, in light of this opinion, of the appellants’ claims of right to unsegregated transportation service.
Vacated and remanded.
The statutes in question are Miss. Code, 1942, Tit. 11, §§ 2351, 2351.5, 2351.7, and Tit. 28, §§ 7784, 7785, 7786, 7786-01, 7787, 7787.5.
Question: Who is the respondent of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
|
songer_method
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine the nature of the proceeding in the court of appeals for the case, that is, the legal history of the case, indicating whether there had been prior appellate court proceeding on the same case prior to the decision currently coded. Assume that the case had been decided by the panel for the first time if there was no indication to the contrary in the opinion. The opinion usually, but not always, explicitly indicates when a decision was made "en banc" (though the spelling of "en banc" varies). However, if more than 3 judges were listed as participating in the decision, code the decision as enbanc even if there was no explicit description of the proceeding as en banc.
UNITED STATES of America, Appellee, v. Hortence RAMOS, a/k/a Hortense Ramos, Appellant.
No. 12676.
United States Court of Appeals Fourth Circuit.
Argued Feb. 4, 1969.
Decided Feb. 28, 1969.
Thurman L. Dodson, Washington, D. C. (Court-appointed counsel) for appellant.
Nevett Steele, Jr., Asst. U. S. Atty. (Stephen H. Sachs, U. S. Atty., and Alan B. Lipson, Asst. U. S. Atty., on brief) for appellee.
Before SOBELOFF, WINTER and BUTZNER, Circuit Judges.
PER CURIAM:
Hortence Ramos appeals from a conviction for forging and uttering a United States Treasurer’s check in violation of 18 U.S.C. § 495. The arguments which she presents on appeal indicate no instance of reversible error on the part of the District Court, and the conviction is accordingly
Affirmed.
Question: What is the nature of the proceeding in the court of appeals for this case?
A. decided by panel for first time (no indication of re-hearing or remand)
B. decided by panel after re-hearing (second time this case has been heard by this same panel)
C. decided by panel after remand from Supreme Court
D. decided by court en banc, after single panel decision
E. decided by court en banc, after multiple panel decisions
F. decided by court en banc, no prior panel decisions
G. decided by panel after remand to lower court
H. other
I. not ascertained
Answer:
|
songer_r_fed
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES v. BOYER.
No. 8888.
United States Court of Appeals District of Columbia.
Argued May 22, 1945.
Decided July 9, 1945.
Mr. Bernard Margolius, Assistant United States Attorney, of Washington, D. C., with whom Messrs. Edward M. Curran, United States Attorney, and Charles B. Murray, John D. Lane, and John P. Burke, Assistant United States Attorneys, all of Washington, D. C., were on the brief, for appellant.
No appearance for appellee.
Before GRONER, Chief Justice, and MILLER and EDGERTON, Associate Justices.
EDGERTON, Associate Justice.
Appellee was convicted in the Municipal Court of obtaining money by false pretenses. There was ample evidence that he cashed a check which he knew to be worthless. He was cross-examined about previous convictions on other bad check charges, and was allowed to say in explanation that those charges were all due to a mistake of his secretary. But the court did not allow him to explain the circumstances of a previous conviction of embezzlement. For this reason the Municipal Court of Appc reversed his present conviction and ordered a new trial. The government appeals from this reversal.
The fact that a witness has been convicted of a crime may be shown, on the theory that it diminishes the value of his testimony. The question is whether he may then explain the circumstances of his conviction in order to mitigate its apparent effect on his credibility. We agree with the Municipal Court of Appeals that it is unfair to the witness to permit no explanation, particularly when he is at the same time a defendant in a criminal case and “the prior conviction, though permitted solely for the purpose of affecting the credibility of the defendant, may have some tendency in the minds of the jury to prove his guilt of the crime for which he is then on trial.” It may have such a tendency even when it has no actual bearing on his credibility. Whether the witness is or is not a defendant, if the opposing party introduces his previous convictions we think the witness should be allowed to make such reasonably brief “protestations on his own behalf as he may feel able to make with a due regard to the penalties of perjury.” Since not all guilty men are equally guilty and some convicted men are innocent, we think the witness should be allowed either to extenuate his ;gu'ilt or to assert his innocence of the previous charges.
The government contends that if an explanation or denial is permitted it •opens the way to a collateral inquiry which may be long and confusing. Fear of such a result has led some courts to exclude all evidence designed to mitigate or rebut the im-peachment which results from proof of a prior conviction. But there is respectable authority to the contrary. It is generally agreed that in order to save time and avoid ■confusion of issues, inquiry into a previous ■crime must be stopped before its logical possibilities are exhausted; the witness ■cannot call other witnesses to corroborate his story and the opposing party cannot call •other witnesses to refute it. The disputed ■question is whether inquiry into a previous crime should stop (1) with proof of the •conviction of the witness or (2) with any reasonably brief “protestations on his own behalf” which he may wish to make. The second alternative will seldom be materially more confusing or time-consuming than the first, if the trial judge duly exercises his “considerable discretion in admitting or rejecting evidence.” And we think the second alternative is more conducive to the ends of justice. The jury is not likely to give undue weight to an ex-convict’s uncorroborated assertion of innocence or of .extenuating circumstances. Just where to draw the line, in. order to avoid both unfairness to the witness and confusion of issues, is a question which must frequently arise. The correct rule in such cases, we think,, is to recognize a wide discretion in the trial judge. He observes the conduct of counsel, the reaction of the witness under examination, and the resulting effect upon the jury. In other words, he is aware as no appellate court can be of the courtroom psychology and can best determine whether particular testimony should or should not be received.
The trial court’s refusal in the present case to let appellee offer any explanation whatever of one conviction, while technically wrong, does not justify a reversal. It related to a different kind of offense from the one for-which appellee was on trial. There was convincing proof of his guilt of the bad check charge which was the only issue to be tried. The jury knew that he had previously been convicted on similar charges. He was permitted to explain all his convictions but one. In spite of this the jury did not believe his testimony. In view of the number of his offenses, it is scarcely believable that failure to explain only one of them could have affected the verdict. Accordingly the judgment of the trial court should have been affirmed. The judgment of the Municipal Court of Appeals is therefore reversed.
Reversed.
D.C.Code, 1940, § 22 — 1301.
Boyer v. United States, Mun.Ct.App.D.C., 40 A.2d 247.
D.C.Code 1940, § 14 — 305. This provision covers both felonies and misdemeanors. Bostic v. United States, 68 App.D.C. 167, 94 F.2d 636, certiorari denied 303 U.S. 635, 58 S.Ct. 523, 82 L.Ed. 1095.
Wigmore on Evidence, 3d ed., § 1117(3).
Cf. Borchard, Convicting the Innocent (1932).
Wagman v. United. States, 6 Cir., 269 F. 568, certiorari denied, 255 U.S. 572, 41 S.Ct. 376, 65 L.Ed. 792.
E. g., Lamoureux v. New York, N. H. & H. R. Co., 169 Mass. 338, 47 N.E. 1009 (Holmes, J.).
E. g., Wagman v. United States, supra, note 6; Donnelly v. Donnelly, 156 Md. 81, 143 A. 648.
Bracey v. United States, 79 U.S.App.D.C. 23, 142 P.2d 85, 89.
Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
|
songer_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.
Albert HARTWICK, Elizabeth Hartwick, Plaintiffs-Appellants. v. UNITED STATES STEEL CORPORATION, Defendant-Appellee.
No. 72-1280.
United States Court of Appeals, Sixth Circuit.
Argued Oct. 12, 1972.
Decided Jan. 18, 1973.
James A. Tuck, Goodman, Eden, Mil-lender, Goodman & Bedrosian, Detroit, Mich., for plaintiffs-appellants; William H. Goodman, Detroit, Mich., on brief.
Gilbert E. Gove, Miller, Canfield, Paddock & Stone, Detroit, Mich., for defendant-appellee; John A. Marxer, Detroit, Mich., on brief.
Before CELEBREZZE and MILLER, Circuit Judges, and HOGAN , District Judge.
The Honorable Timothy S. Hogan, United States District Judge for the Southern District of Ohio, sitting by designation.
WILLIAM E. MILLER, Circuit Judge.
This is a negligence action against United States Steel Corporation arising from the injury of Albert Hartwick, the appellant, while he was foreman for the C-Way Construction Company. The United States Army Corps of Engineers had contracted with C-Way, appellant’s employer, for the construction of a lock on the Crooked River near Alanson, Michigan. The appellant was in charge of the steel pile driving crews.
In order to construct the lock it was necessary first to divert the river and to fill the river bed with gravel. Two cells, each 15 feet wide and 80 feet long, were then to be contructed on the sides of the old river bed. The cell walls were to consist of a continuous web of sheet piling to be driven some 27 feet into the ground by a pile driver. The sheet piling was manufactured by the 'appellee, United States Steel Corporation.
The sheets of piling are “Z” shaped, about 18 inches wide and varying in length from 27 to 28 feet. On each edge of the piling and extending the entire length of one edge there is a ball or a socket allowing the sheets of piling to be attached to one another. To assemble the piling around the cell, it is necessary to lift a sheet some 30 feet into the air and align the ball of that sheet with the corresponding socket of the adjacent sheet. After the ball and socket are initially aligned, the sheet piling is lowered into place and driven into the ground. Correctly manufactured, the sheets will form a straight line when installed. The sheets of piling manufactured by the ap-pellee, however, would not align properly. When the pilings were threaded together the sheets would be from 4 to 6 inches out of alignment. It was un-eontradicted at trial that appellee was aware of this defect in the piling when it was manufactured.
In order to correct the defect the appellant’s employer used a system of chains and chain binders to pull the piling back into alignment, so that it could be correctly driven into the ground. During the pile driving process, tension is placed on the chains and binders as they hold the pile in alignment. At the time of the accident the appellant was releasing the tension on a chain and chain binder attached to a pile that had been driven into the ground. When the binder was first attached to the chain holding the pile, a small wire had been placed around the handle of the binder to prevent it from being inadvertently knocked open. To release the tension on the chain and binder, the appellant removed the wire from the binder’s handle. The handle snapped open, striking the appellant on the shin and causing the injury.
After completion of the appellant’s proof, the appellee moved for a directed verdict. This motion was granted by the district court. In its ruling on the motion the district court found that the appellee’s manufacture of the pilings was not the proximate cause of the appellant’s injury.
The jurisdiction of the court was based upon diversity of citizenship. Directed verdicts are not favored in Michigan. Blazo v. Neveau, 382 Mich. 415,170 N.W.2d 62 (1969); See Serratoni v. Chesapeake & Ohio Ry., 333 F.2d 621 (6th Cir. 1964). The standard to be applied for directed verdicts is succinctly stated in Blazo:
On a motion for directed verdict it is the duty of the trial judge to review all the evidence, giving to the opposing party the benefit of all conflicts and inferences, and decide if there is any evidence from which the jury could reasonably find a verdict contrary to the moving party. 382 Mich. at 424, 170 N.W.2d at 66.
If reasonable minds can differ, the question should be submitted to the jury. Davis v. Thornton, 384 Mich. 138, 180 N.W.2d 11 (1970).
The district court found that the injury was not a natural event flowing from the appellee’s “negligent construction of the pilings . . . . ” In so ruling the court thus assumed that the appellee was negligent in its manufacture of the pilings and there is substantial evidence in the record to support this conclusion. The Michigan Supreme Court has made clear that the question of proximate cause, in case of doubt, is for the jury. As the court stated in Davis v. Thornton, supra at 145, 180 N. W.2d at 15.
But determination of negligence alone does not end the inquiry. Once a jury or judge has found that the defendant was negligent and that the plaintiff suffered injuries, it must be determined, whether the plaintiff’s injuries were caused by the defendant’s wrongful conduct and, then, if the defendant did cause the injuries, judge whether the plaintiff's injuries were too insignificantly related to or too remotely effected by the defendant’s negligence.
Of all the elements necessary to support recovery in a tort action, causation is the most susceptible to summary determination for it usually amounts to a logical connection of cause to effect. However, any doubts about the connections between the causes and the effects, should be resolved by the jury.
In Parks v. Starks, 342 Mich. 443, 448, 70 N.W.2d 805, 807 (1955), the court quoted with approval from 38 Am.Jur. Negligence, § 55 at 705 (1941):
The proximate cause of an injury is not necessarily the immediate cause; not necessarily the cause nearest in time, distance, or space. Assuming that there is a direct, natural, and continuous sequence between an act and an injury, . . . the act can be accepted as the proximate cause of the injury without reference to its separation from the injury in point of time or distance.
This holding was reaffirmed by the court in McKine v. Sydor, 387 Mich. 82, 88, 194 N.W.2d 841, 844 (1972).
Since- we must assume that the appellee’s manufacture was negligent, under the applicable Michigan precedents the element of the foreseeability of the harm is removed. As noted in Davis v. Thornton, supra, 384 Mich. at 146, 180 N.W.2d at 15:
The jury must then bridge the gap between the plaintiff’s injuries and the defendant’s negligence. This is the determination of cause and the remoteness of the effect. Once negligence is determined, foreseeability of harm should no longer be considered.
Causation is a process of logical determination, while the significance of the connections — remoteness—is a policy determination.
There is no doubt from the record before us that the appellee’s negligent construction was at least one of the causes of the appellant’s injury. Plainly the accident and injury would not have occurred absent such negligence. Thus we are left with the question of remoteness. As the Michigan Supreme Court has demonstrated, such an issue, as that of negligence itself, should ordinarily be determined by the jury:
The determination of remoteness, however, should seldom, if ever, be summarily determined.
Both the determination of remoteness and of negligence should almost always be left to the jury. Davis v. Thornton, supra, 384 Mich. at 147-148, 180 N.W.2d at 16.
Under these principles declared by the highest court of Michigan, we feel that there is sufficient connection between the appellee’s negligent construction or manufacture of the pilings and the appellant’s injury that reasonable minds could differ on the issue of causation and hence that the issue of proximate cause should have been left to the jury.
Although the district court made reference to the possibility of contributory negligence, he made no specific ruling on this issue and we therefore express no opinion with respect to it.
The judgment of the district court is reversed and the action is remanded for further proceedings not inconsistent with this opinion.
. This opinion specifically refers to the appellants, Albert Hartwick and Elizabeth Hartwick, only in the singular since any possible recovery by Elizabeth Hartwick is dependent upon her husband’s negligence action. The complaint alleges that she has been damaged by “Loss of society, companionship, love, affection and services of her husband . . . .”
. We need not determine here whether the rule governing the direction of verdicts is “substantive” or “procedural” within the meaning of the Erie rationale. This is true because the federal and Michigan rules appear to be substantially identical. For the Federal rule see 5A Moore, Federal Practice If 50.02(1) (2d ed. 1971). For the Michigan rule see the cases cited in this opinion, particularly Davis v. Thornton, 384 Mich. 138, 180 N.W.2d 11 (1970).
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
|
songer_circuit
|
J
|
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.
Mose W. SANDERS, Appellant, v. Sherman H. CROUSE, Warden, Kansas State Penitentiary, Appellee.
No. 160-70.
United States Court of Appeals, Tenth Circuit.
June 10, 1970.
Rehearing Denied Aug. 24, 1970.
Kent Frizzell, Atty. Gen., and Edward G. Collister, Jr., Asst. Atty. Gen., for appellee.
Mose W. Sanders, pro se.
Before LEWIS, Chief Judge, and PICKETT and HICKEY, Circuit Judges.
PER CURIAM.
At the time this case was docketed, Sanders was notified that the court was considering summary affirmance, and thereater appellee filed a motion to affirm, with a supporting memorandum. Sanders has taken the opportunity afforded him to file a memorandum opposing such disposition, and a motion for appointment of counsel, which motion is denied.
Examination of the file and records in this cause prompts the conclusion that a single question is presented which is so unsubstantial as not to warrant further argument. Accordingly, the motion of appellee is granted, and the judgment of the district court is affirmed for the reasons stated in its Memorandum and Order, 313 F.Supp. 1031 (D.Kan.1969). See also Whiteley v. Meacham, 416 F.2d 36 (10th Cir. 1969); and Pierce v. Wilson, 306 F.Supp. 91 (D. Utah 1969).
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_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.
George CROCKETT, Jr., individually in his capacity as a member of the United States House of Representatives, et al., Appellants, v. Ronald Wilson REAGAN, individually and in his capacity as President of the United States, et al.
No. 82-2461.
United States Court of Appeals, District of Columbia Circuit.
Argued Oct. 18, 1983.
Decided Nov. 18, 1983.
As Amended Nov. 18, 1983.
Peter Weiss, New York City, a member of the Bar, Second Dept. Appellate Div. of N.Y., pro hac vice by special leave of Court with whom Ira Lowe and Reverend Robert F. Drinan, S.J., Washington, D.C., were on brief, for appellants. Frank E. Deale, New York City, also entered an appearance for appellants.
Vincent M. Garvey, Atty., Dept. of Justice, with whom J. Paul McGrath, Asst. Atty. Gen., Stanley S. Harris, U.S. Atty. and Brook Hedge, Atty., Dept, of Justice, Washington, D.C., were on brief, for appellees. Neil H. Koslowe, Washington, D.C., Atty. for Dept. of Justice also entered an appearance for appellees.
Steven M. Schneebaum and Keith R. Fisher, Washington, D.C., were on the brief for Intern. Human Rights Law Group, ami-cus curiae, urging reversal.
Sara E. Lister and Sarah E. Burns, Washington, D.C., were on brief, for Nat. Council of Churches of Christ in the United States of America, et al., amici curiae, urging reversal.
Alan Dranitzke, Washington, D.C., was on brief, for Catholic Peace Fellowship, et al., amici curiae, urging reversal.
Jose Acosta, El Paso, Tex., was on brief, for Border Ass’n for Refugees from Central America, amicus curiae, urging reversal.
Daniel J. Popeo, Paul D. Kamenar and Nicholas E. Calió, Washington, D.C., were on brief, for Senators Jepsen, et ah, amici curiae, urging affirmance.
Before EDWARDS and BORK, Circuit Judges, and LUMBARD, Senior Circuit Judge, United States Court of Appeals for the Second Circuit.
Sitting by designation pursuant to 28 U.S.C. § 294(d) (Supp. V 1981).
PER CURIAM:
This is an appeal from the dismissal of a suit brought by 29 Members of Congress against President Reagan and other United States officials, challenging the legality of the United States’ presence in, and military assistance to, El Salvador. The principal contention of the plaintiffs-appellants is that United States military officials have been introduced into situations in El Salvador where imminent involvement in hostilities is clearly indicated by the circumstances and, consequently, the President’s failure to report to Congress is a violation of both the War Powers Resolution (“WPR”) and the war powers clause in the Constitution. The appellants also alleged that violations of human rights by the Government of El Salvador are pervasive and that, in the absence of a certification of “exceptional circumstances” by the President, United States military assistance to El Salvador violates the Foreign Assistance Act of 1961 (“FAA”). In pursuing their claims, plaintiffs-appellants have sought, inter alia, an injunction directing that the appellees immediately withdraw all United States Armed Forces, weapons, military equipment and aid from El Salvador and prohibiting any further aid of any nature.
The District Court dismissed all of plaintiffs’ claims without resolution of the merits of their suit. Crockett v. Reagan, 558 F.Supp. 893 (D.D.C.1982). Judge Joyce Green held that the war powers issue presented a non justiciable political question. In particular, Judge Green found that the trial court did not have the resources or expertise to resolve the particular factual disputes involved in this case, id. at 898, 899, and that Congress had taken no action which would suggest that it viewed our involvement in El Salvador as subject to the WPR. Id. at 899. Judge Green’s dismissal of the FAA claim was based on the equitable discretion doctrine, which counsels judicial restraint where á congressional plaintiff’s dispute is primarily with his or her fellow legislators. Riegle v. Federal Open Market Committee, 656 F.2d 873, 881 (D.C.Cir.), cert. denied, 454 U.S. 1082, 102 S.Ct. 636, 70 L.Ed.2d 616 (1981).
We have reviewed with care the parties’ contentions and submissions and we can find no error in the judgment of the District Court. We therefore affirm the dismissal of this case for the reasons stated by the District Court.
So ordered.
. 50 U.S.C. §§ 1541-1548 (1976). Section 4(a) of the WPR, 50 U.S.C. § 1543(a) (1976) provides:
In the absence of a declaration of war, in any case in which United States Armed Forces are introduced—
(1) into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances;
(2) into the territory, airspace or waters of a foreign nation, while equipped for combat, except for deployments which relate solely to supply, replacement, repair, or training of such forces; or
(3) in numbers which substantially enlarge United States Armed Forces equipped for combat already located in a foreign nation; the President shall submit within 48 hours to the Speaker of the House of Representatives and to the President pro tempore of the Senate a report, in writing, setting forth—
(A) the circumstances necessitating the introduction of United States Armed Forces;
(B) the constitutional and legislative authority under which such introduction took place; and
(C) the estimated scope and duration of the hostilities or involvement.
. U.S. Const, art. 1, § 8, cl. 11.
. 22 U.S.C. §§ 2151-2443 (1976 & Supp. V 1981). Section 502B of the FAA prohibits security assistance to “any country the government of which engages in a consistent pattern of gross violations of internationally recognized human rights,” unless the President certifies that “extraordinary circumstances exist warranting provision of such assistance.” 22 U.S.C. § 2304(a)(2) (Supp. V 1981).
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:
|
sc_casesource
|
008
|
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.
UNITHERM FOOD SYSTEMS, INC. v. SWIFTECKRICH, INC., dba CONAGRA REFRIGERATED FOODS
No. 04-597.
Argued November 2, 2005
Decided January 23, 2006
Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., and O’Connor, Scalia, Souter, Ginsburg, and Breyer, JJ., joined. Stevens, J., filed a dissenting opinion, in which Kennedy, J., joined, post, p. 407.
Burch Bailey argued the cause for petitioner. With him on the briefs were Greg A. Castro, Jay P. Walters, and Dennis D. Brown.
Malcolm L. Stewart argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Clement, Assistant Attorney General Keisler, Deputy Solicitor General Hungar, Mar-leigh Dover, and August Flentje.
Robert A. Schroeder argued the cause for respondent. With him on the briefs were John R. Reese, Leigh Otsuka Curran, and John P. Passarelli.
Justice Thomas
delivered the opinion of the Court.
Ordinarily, a party in a civil jury trial that believes the evidence is legally insufficient to support an adverse jury verdict will seek a judgment as a matter of law by filing a motion pursuant to Federal Rule of Civil Procedure 50(a) before submission of the case to the jury, and then (if the Rule 50(a) motion is not granted and the jury subsequently decides against that party) a motion pursuant to Rule 50(b). In this case, however, the respondent filed a Rule 50(a) motion before the verdict, but did not file a Rule 50(b) motion after the verdict. Nor did respondent request a new trial under Rule 59. The Court of Appeals nevertheless proceeded to review the sufficiency of the evidence and, upon a finding that the evidence was insufficient, remanded the case for a new trial. Because our cases addressing the requirements of Rule 50 compel a contrary result, we reverse.
I
The genesis of the underlying litigation in this case was ConAgra’s attempt to enforce its patent for “A Method for Browning Precooked Whole Muscle Meat Products,” U. S. Patent No. 5,952,027 (’027 patent). In early 2000, ConAgra issued a general warning to companies who sold equipment and processes for browning precooked meats explaining that it intended to “ ‘aggressively protect all of [its] rights under [the ’027] patent.’” 375 F. 3d 1341, 1344 (CA Fed. 2004). Petitioner Unitherm sold such processes, but did not receive ConAgra’s warning. ConAgra also contacted its direct competitors in the precooked meat business, announcing that it was “ ‘making the ’027 Patent and corresponding patents that may issue available for license at a royalty rate of 100 per pound.’” Id., at 1345. Jennie-O, a direct competitor, received ConAgra’s correspondence and undertook an investigation to determine its rights and responsibilities with regard to the ’027 patent. Jennie-0 determined that the browning process it had purchased from Unitherm was the same as the process described in the ’027 patent. Jennie-0 further determined that the ’027 patent was invalid because Unitherm’s president had invented the process described in that patent six years before ConAgra filed its patent application.
Consistent with these determinations, Jennie-0 and Uni-therm jointly sued ConAgra in the Western District of Oklahoma. As relevant here, Jennie-0 and Unitherm sought a declaration that the ’027 patent was invalid and unenforceable, and alleged that ConAgra had violated §2 of the Sherman Act, ch. 647,26 Stat. 209, as amended, 15 U. S. C. §2, by attempting to enforce a patent that was obtained by committing fraud on the Patent and Trademark Office (PTO). See Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., 382 U. S. 172, 174 (1965) (holding that “the enforcement of a patent procured by fraud on the Patent Office may be violative of §2 of the Sherman Act provided the other elements necessary to a §2 case are present”). The District Court construed the ’027 patent and determined that it was invalid based on Unitherm’s prior public use and sale of the process described therein. 35 U. S. C. § 102(b). After dismissing Jennie-0 for lack of antitrust standing, the District Court allowed Unitherm’s Walker Process claim to proceed to trial. Prior to the court’s submission , of the case to the jury, ConAgra moved for a directed verdict under Rule 50(a) based on legal insufficiency of the evidence. The District Court denied that motion. The jury returned a verdict for Unitherm, and ConAgra neither renewed its motion for judgment as a matter of law pursuant to Rule 50(b), nor moved for a new trial on antitrust liability pursuant to Rule 59.
On appeal to the Federal Circuit, ConAgra maintained that there was insufficient evidence to sustain the jury’s Walker Process verdict. Although the Federal Circuit has concluded that a party’s “failure to present the district court with a post-verdict motion precludes appellate review of sufficiency of the evidence,” Biodex Corp. v. Loredan Biomedical, Inc., 946 F. 2d 850, 862 (1991), in the instant case it was bound to apply the law of the Tenth Circuit, 375 F. 3d, at 1365, n. 7 (“On most issues related to Rule 50 motions . . . we generally apply regional circuit law unless the precise issue being appealed pertains uniquely to patent law”). Under Tenth Circuit law, a party that has failed to file a postverdict motion challenging the sufficiency of the evidence may nonetheless raise such a claim on appeal, so long as that party filed a Rule 50(a) motion prior to submission of the case to the jury. Cummings v. General Motors Corp., 365 F. 3d 944, 950-951 (2004). Notably, the only available relief in such a circumstance is a new trial. Id., at 951.
Freed to examine the sufficiency of the evidence, the Federal Circuit concluded that, although Unitherm had presented sufficient evidence to support a determination that ConAgra had attempted to enforce a patent that it had obtained through fraud on the PTO, 375 F. 3d, at 1362, Uni-therm had failed to present evidence sufficient to support the remaining elements of its antitrust claim. Id., at 1365 (“Unitherm failed to present any economic evidence capable of sustaining its asserted relevant antitrust market, and little to support any other aspect of its Section 2 claim”). Accordingly, it vacated the jury’s judgment in favor of Uni-therm and remanded for a new trial. We granted certiorari, 543 U. S. 1186 (2005), and now reverse.
II
Federal Rule of Civil Procedure 50 sets forth the procedural requirements for challenging the sufficiency of the evidence in a civil jury trial and establishes two stages for such challenges — prior to submission of the case to the jury, and after the verdict and entry of judgment. Rule 50(a) allows a party to challenge the sufficiency of the evidence prior to submission of the case to the jury, and authorizes the district court to grant such motions at the court’s discretion:
“(a) Judgment as a Matter op Law.
“(1) If during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evi-dentiary basis for a reasonable jury to find for that party on that issue, the court may determine the issue against that party and may grant a motion for judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue.
“(2) Motions for judgment as a matter of law may be made at any time before submission of the case to the jury. Such a motion shall specify the judgment sought and the law and the facts on which the moving party is entitled to the judgment.”
Rule 50(b), by contrast, sets forth the procedural requirements for renewing a sufficiency of the evidence challenge after the jury verdict and entry of judgment.
“(b) Renewing Motion for Judgment After Trial; Alternative Motion for New Trial. If, for any reason, the court does not grant a motion for judgment as a matter of law made at the close of all the evidence, the court is considered to have submitted the action to the jury subject to the court’s later deciding the legal questions raised by the motion. The movant may renew its request for judgment as a matter of law by filing a motion no later than 10 days after entry of judgment — and may alternatively request a new trial or join a motion for a new trial under Rule 59. In ruling on a renewed motion, the court may:
“(1) if a verdict was returned:
“(A) allow the judgment to stand,
“(B) order a new trial, or
“(C) direct entry of judgment as a matter of law ....” .
This Court has addressed the implications of a party’s failure to file a postverdict motion under Rule 50(b) on several occasions and in a variety of procedural contexts. This Court has concluded that, “[i]n the absence of such a motion” an “appellate court [is] without power to direct the District Court to enter judgment contrary to the one it had permitted to stand.” Cone v. West Virginia Pulp & Paper Co., 330 U. S. 212, 218 (1947). This Court has similarly concluded that a party’s failure to file a Rule 50(b) motion deprives the appellate court of the power to order the entry of judgment in favor of that party where the district court directed the jury’s verdict, Globe Liquor Co. v. San Roman, 332 U. S. 571 (1948), and where the district court expressly reserved a party’s preverdict motion for a directed verdict and then denied that motion after the verdict was returned, Johnson v. New York, N. H. & H. R. Co., 344 U. S. 48 (1952). A postverdiet motion is necessary because “[djetermination of whether a new trial should be granted or a judgment entered under Rule 50(b) calls for the judgment in the first instance of the judge who saw and heard the witnesses and has the feel of the case which no appellate printed transcript can impart.” Cone, supra, at 216. Moreover, the “requirement of a timely 'application for judgment after verdict is not an idle motion” because it “is ... an essential part of the rule, firmly grounded in principles of fairness.” Johnson, supra, at 53.
The foregoing authorities lead us to reverse the judgment below. Respondent correctly points out that these authorities address whether an appellate court may enter judgment in the absence of a postverdict motion, as opposed to whether an appellate court may order a new trial (as the Federal Circuit did here). But this distinction is immaterial. This Court’s observations about the necessity of a postverdict motion under Rule 50(b), and the benefits of the district court’s input at that stage, apply with equal force whether a party is seeking judgment as a matter of law or simply a new trial. In Cone, this Court concluded that, because Rule 50(b) permits the district court to exercise its discretion to choose between ordering a new trial and entering judgment, its “appraisal of the bona fides of the claims asserted by the litigants is of great value in reaching a conclusion as to whether anew trial should be granted.” ' 330 U. S., at 216 (emphasis added). Similarly, this Court has determined that a party may only pursue on appeal a particular avenue of relief available under Rule 50(b), namely, the entry of judgment or a new trial, when that party has complied with the Rule’s filing requirements by requesting that particular relief below. See Johnson, supra, at 54 (“Respondent made a motion to set aside the verdict and for new trial within the time required by Rule 50(b). It failed to comply with permission given by 50(b) to move for judgment n. o. v. after the verdict. In this situation respondent is entitled only to a new trial, not to a judgment in its favor”).
Despite the straightforward language employed in Cone, Globe Liquor, and Johnson, respondent maintains that those cases dictate affirmance here, because in each of those cases the litigants secured a new trial. But in each of those cases the appellants moved for a new trial postverdict in the District Court, and did not seek to establish their entitlement to a new trial solely on the basis of a denied Rule 50(a) motion. See Cone, swpra, at 213 (noting that respondent moved for a new trial); Globe Liquor, supra, at 572 (“The respondents ... moved for a new trial on the ground ... that there were many contested issues of fact”). Indeed, Johnson concluded that respondent was only entitled to a new trial by virtue of its motion for such “within the time required by Rule 50(b).” 344 U. S., at 54. Accordingly, these outcomes merely underscore our holding today — a party is not entitled to pursue a new trial on appeal unless that party makes an appropriate postverdict motion in the district court.
Our determination that respondent’s failure to comply with Rule 50(b) forecloses its challenge to the sufficiency of the evidence is further validated by the purported basis of respondent’s appeal, namely, the District Court’s denial of respondent’s preverdict Rule 50(a) motion. As an initial matter, Cone, Globe Liquor, and Johnson unequivocally establish that the precise subject matter of a party’s Rule 50(a) motion — namely, its entitlement to judgment as a matter of law — cannot be appealed unless that motion is renewed pursuant to Rule 50(b). Here, respondent does not seek to pursue on appeal the precise claim it raised in its Rule 50(a) motion before the District Court — namely, its entitlement to judgment as a matter of law. Rather, it seeks a new trial based on the legal insufficiency of the evidence. But if, as in Cone, Globe Liquor, and Johnson, a litigant that has failed to file a Rule 50(b) motion is foreclosed from seeking the relief it sought in its Rule 50(a) motion — i. e., the entry of judgment — then surely respondent is foreclosed from seeking a new trial, relief it did not and could not. seek in its preverdict motion. In short, respondent never sought a new trial before the District Court, and thus forfeited its right to do so on appeal. Yakus v. United States, 321 U. S. 414, 444 (1944) (“No procedural principle is more familiar to this Court than that a . . . right may be forfeited ... by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it”).
The text of Rule 50(b) confirms that respondent’s prever-dict Rule 50(a) motion did not present the District Court with the option of ordering a new trial. That text provides that a district court may only order a new trial on the basis of issues raised in a preverdict Rule 50(a) motion when “ruling on a renewed motion” under Rule 50(b). Accordingly, even if the District Court was inclined to grant a new trial on the basis of arguments raised in respondent’s preverdict motion, it was without the power to do so under Rule 50(b) absent a postverdict motion pursuant to that Rule. Consequently, the Court of Appeals was similarly powerless.
Similarly, the text and application of Rule 50(a) support our determination that respondent may not challenge the sufficiency of the evidence on appeal on the basis of the District Court’s denial of its Rule 50(a) motion. The Rule provides that “the court may determine” that “there is no legally sufficient evidentiary basis for a reasonable jury to find for [a] party on [a given] issue,” and “may grant a motion for judgment as a matter of law against that party ....” (Emphasis added.) Thus, while a district court is permitted to enter judgment as a matter of law when it concludes that the evidence is legally insufficient, it is not required to do so. To the contrary, the district courts are, if anything, encouraged to submit the case to the jury, rather than granting such motions. As Wright and Miller explain:
“Even at the close of all the evidence it may be desirable to refrain from granting a motion for judgment as a matter of law despite the fact that it would be possible for the district court to do so. If judgment as a matter of law is granted and the appellate court holds that the evidence in fact was sufficient to go to the jury, an entire new trial must be had. If, on the other hand, the trial court submits the case to the jury, though it thinks the evidence insufficient, final determination of the case is expedited greatly. If the jury agrees with the court’s appraisal of. the evidence, and returns a verdict for the party who moved for judgment as a matter of law, the case is at an end. If the jury brings in a different verdict, the trial court can grant a renewed motion for judgment as a matter of law. Then if the appellate court holds that the trial court was in error in its appraisal of the evidence, it can reverse and order judgment on the verdict of the jury, without any need for a new trial. For this reason the appellate courts repeatedly have said that it usually is desirable to take a verdict, and then pass on the sufficiency of the evidence on a post-verdict motion.” 9A Federal Practice §2533, at 319 (footnote omitted).
Thus, the District Court’s denial of respondent’s preverdict motion cannot form the basis of respondent’s appeal, because the denial of that motion was not error. It was merely an exercise of the District Court's discretion, in accordance with the text of the Rule and the accepted practice of permitting the jury to make an initial judgment about the sufficiency of the evidence. The only error here was counsel’s failure to file a postverdict motion pursuant to Rule 50(b).
* H= *
For the foregoing reasons, we hold that since respondent •failed to renew its preverdict motion as specified in Rule 50(b), there was no basis for review of respondent’s sufficiency of the evidence challenge in the Court of Appeals. The judgment of the Court of Appeals is reversed.
It is so ordered.
Petitioner contends that respondent’s Rule 50(a) motion pertained only to the fraud element of petitioner’s Walker Process claim, and that it did not encompass the remaining antitrust elements of that claim. Because we conclude that petitioner is entitled to prevail irrespective of the scope of respondent’s Rule 50(a) motion, we assume without deciding that that motion pertained to all aspects of petitioner’s §2 claim. But see Amendments to Federal Rules of Civil Procedure, 134 F R. D. 525, 687 (1991) (“A post-trial motion for judgment can be granted only on grounds advanced in the pre-verdict motion”).
While ConAgra did file a postverdict motion seeking a new trial on antitrust damages, that motion did not seek to challenge the sufficiency of the evidence establishing antitrust liability and thus has no bearing on the instant case.
Neither Neely v. Martin K. Eby Constr. Co., 386 U. S. 317 (1967), nor Weisgram v. Marley Co., 528 U. S. 440 (2000), undermine our judgment about the benefit of postverdict input from the district court. In those cases this Court determined that an appellate court may, in certain circumstances, direct the entry of judgment when it reverses the district court’s denial of a Rule 50(b) motion. But in such circumstances the district court will have had an opportunity to consider the propriety of entering judgment or ordering a new trial by virtue of the postverdict motion. Moreover, these cases reiterate the value of the district court’s input, cautioning the courts of appeals to be “‘constantly alert’ to ‘the trial judge’s first-hand knowledge of witnesses, testimony, and issues.’” Id., at 443 (quoting Neely, supra, at 325).
The dissent’s suggestion that 28 U. S. C. §2106 permits the courts of appeals to consider the sufficiency of the evidence underlying a civil jury verdict notwithstanding a party’s failure to comply with Rule 50 is foreclosed by authority of this Court. While the dissent observes that §2106 was enacted after Cone and Globe Liquor Co. v. San Roman, 332 U. S. 571 (1948), post, at 408 (opinion of Stevens, J.), it fails to note that it was enacted prior to Johnson. Johnson explicitly reaffirmed those earlier cases, concluding that “in the absence of a motion for judgment notwithstanding the verdict made in the trial court within ten days after reception of a verdict [Rule 50] forbids the trial judge or an appellate court to enter such a judgment.” 344 U. S., at 50. Moreover, in Neely, this Court observed that § 2106 is “broad enough to include the power to direct entry of judgment n. o. v. on appeal,” 386 U. S., at 322, but nonetheless reaffirmed that Cone, Globe Liquor, and Johnson “make it clear that an appellate court may not order judgment n. o. v. where the verdict loser has failed strictly to comply with the procedural requirements of Rule 50(b),” 386 U. S., at 325. Contrary to the dissent’s suggestion, Neely confirms that the broad grant of authority to the courts of appeals in § 2106 must be exercised consistent with the requirements of the Federal Rules of Civil Procedure as interpreted by this Court.
The dissent’s approach is not only foreclosed by authority of this Court, it also may present Seventh Amendment concerns. The implication of the dissent’s interpretation of §2106 is that a court of appeals would be free to examine the sufficiency of the evidence regardless of whether the appellant had filed a Rule 50(a) motion in the district court and, in the event the appellant had filed a Rule 50(a) motion, regardless of whether the district court had ever ruled on that motion. The former is squarely foreclosed by Slocum v. New York Life Ins, Co., 228 U. S. 364 (1913), and the latter is inconsistent with this Court’s explanation of the requirements of the Seventh Amendment in Baltimore & Carolina Line, Inc. v. Redman, 295 U. S. 654, 658 (1935) (explaining that “under the pertinent rules of the common law the court of appeals could set aside the verdict for error of law, such as the trial court’s ruling respecting the sufficiency of the evidence, and direct a new trial, but could not itself determine the issues of fact and direct a judgment for the defendant, for this would cut off the plaintiff’s unwaived right to have the issues of fact determined by a jury” (emphasis added)). Indeed, Rule 50 was drafted with such concerns in mind. See 9A C. Wright & A. Miller, Federal Practice and Procedure §2522, pp. 244-246 (2d ed. 1995) (hereinafter Federal Practice).
While the precise nature of the new trial motion at issue in Cone is difficult to ascertain from this Court’s description of that motion, the Court of Appeals opinion in that case confirms that the movant had properly objected to the admission of certain evidence, and then moved post-verdict “for a new trial [on the basis of the inadmissible evidence] and later renewed, this motion upon the basis of newly-discovered evidence.” West Virginia Pulp & Paper Co. v. Cone, 153 F. 2d 576, 580 (CA4 1946). This Court did not disturb the Court of Appeals’ holding that formed the basis of the movant's entitlement to a new trial, namely, “the Circuit Court of Appeals’ holding that there was prejudicial error in the admission of evidence.” 330 U. S., at 215.
Respondent claims that its failure to renew its Rule 50(a) motion was in reliance on the Tenth Circuit’s determination that it could order a new trial in the absence of a Rule 50(b) motion. But respondent cannot credibly maintain that it wanted the Court of Appeals to order a new trial as opposed, to entering judgment. And, as the Tenth Circuit has recognized, respondent could not obtain the entry of judgment unless it complied with Rule 50(b). Cummings v. General Motors Corp., 365 F. 3d 944, 951 (2004). Respondent therefore had every incentive to comply with that Rule’s requirements. Accordingly, we reject its contention that our application of Rule 50(b) to the instant case is impermissibly retroactive. See also Harper v. Virginia Dept. of Taxation, 509 U. S. 86, 97 (1993) (“[W]e can scarcely permit the substantive law to shift and spring according to the particular equities of individual parties’ claims of actual reliance on an old rule and of harm from a retroactive application of the new rule” (internal quotation marks and brackets omitted)).
We reject respondent’s contention that it is entitled to a remand for reconsideration in light of Phillips v. AWH Corp., 415 F. 3d 1303 (CA Fed.2005). The Federal Circuit has already denied respondent’s petition for rehearing raising this issue.
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
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198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
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200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
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203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
Answer:
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songer_casetyp1_2-2
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C
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "civil rights".
Yanci DUPREE, Appellant, v. Burtell JEFFERSON, et al.
No. 79-1847.
United States Court of Appeals, District of Columbia Circuit.
Argued Dec. 4, 1980.
Decided Oct. 6, 1981.
Dennis Hart, Washington, D. C., with whom Kenneth Michael Robinson, Washington, D. C., was on the brief, for appellant.
Richard B. Nettler, Asst. Corp. Counsel, Washington, D. C., with whom Judith W. Rogers, Corp. Counsel, and Richard W. Barton, Deputy Corp. Counsel, Washington, D. C., were on the brief, for appellees.
Before ROBINSON, Chief Judge, WALD, Circuit Judge, and JUNE L. GREEN, District Judge.
Of the United States District Court for the District of Columbia, sitting by designation pursuant to 28 U.S.C. § 292(a) (1976).
Opinion for the Court filed by Chief Judge ROBINSON.
SPOTTSWOOD W. ROBINSON, III, Chief Judge:
This is an appeal from an order of the District Court dismissing appellant’s action against the District of Columbia, its Chief of Police, and numerous named police officers as barred by the statute of limitations. The issue presented is whether, under District of Columbia law, the statute is tolled during pendency of a suit ultimately dismissed involuntarily without prejudice — a question not yet resolved by the District of Columbia courts. Concluding that those courts would hold that the running of the statute is not arrested, we affirm the order of dismissal.
I
Appellant’s controversy with the District’s Metropolitan Police Department has been before the courts, in one form or another, for eight years. On August 10, 1973, appellant filed Civil Action No. 1602-73 in the District Court against the Chief of Police, several police officers, and the District of Columbia, alleging that she had been deprived of constitutional rights and had suffered physical injury, pain, mental anguish, and loss of freedom as a result of numerous encounters with police officers during 1972 and 1973. Specifically, the complaint averred that on August 30, 1972, appellant was arrested twice for “incommoding the sidewalk,” and on the second of these occasions was physically and verbally abused. The complaint further charged that subsequent to the August 30 incident, she was followed without reason and stopped or arrested, the last time on July 28, 1973. In her prayer for relief, appellant sought to have two statutes declared unconstitutional, both facially and as applied. She also demanded injunctive relief, and compensatory and punitive damages.
On June 6, 1975, appellant moved to dismiss the claims for injunctive and declaratory relief on terms the parties had previously stipulated. The District Court, in an order dated June 30, 1975, granted that motion and further ordered that, for the monetary consideration agreed to by the parties, appellant’s damage claims be dismissed with prejudice. Shortly thereafter, on July 10, appellant moved to vacate the dismissal order, stating that the motion requesting it had been filed without her knowledge or assent. The record does not reflect a ruling on this motion.
However, on October 31, 1975, appellees moved to enforce a settlement agreement allegedly entered into with appellant on March 17. Appellees stated that appellant had repudiated their earlier monetary settlement and had refused to execute releases. The District Court, on February 27, 1976, granted this motion as to injunctive and declaratory relief, and denied it as to damages. Appellant filed a notice of appeal but apparently abandoned it.
More than a year later, on September 8, 1977, appellant filed what was termed a “supplemental complaint.” In addition to the allegations set forth in the 1973 complaint, the supplemental complaint charged that, as part of a continuing course of misconduct by the Police Department, appellant had been stopped, harassed, and physically and verbally abused on December 10, 1975. On September 26, 1978, the District Court sua sponte dismissed this complaint without prejudice for failure to prosecute. Appellant’s subsequent motions for reconsideration of that dismissal were denied by the court.
Undaunted, the appellant filed a new suit, Civil Action No. 79-1917, on March 29, 1979. Following the District Court’s order for briefing on the question whether further pursuit of the cause of action was foreclosed by the statute of limitations, on May 29, 1979, the court dismissed the action as so barred. It is an appeal from this dismissal that is now before us.
Appellant argues that, under District of Columbia law, statutes of limitation are suspended during pendency of an action subsequently involuntarily dismissed, and that the District Court therefore erred in not excluding from its computation of the limitation period the time during which the first lawsuit remained on the court’s docket. We believe appellant has misapprehended the substantive District of Columbia law on this point, and accordingly we affirm the order under review.
II*
The question, then, is whether appellant’s initial action, which as to damages ultimately was involuntarily dismissed without prejudice, tolled the running of the statute of limitations while it remained pending. The parties say unanimously that District of Columbia law controls, and we approach the problem on that basis. The issue presented, however, has not yet been resolved by the District of Columbia courts; indeed, decision thereon has specifically been reserved by the District of Columbia Court of Appeals. Our task is thus to decide the question as we believe those courts would.
As enunciated by the Supreme Court, the general rule on the subject is that “if a plaintiff mistakes his remedy, in the absence of any statutory provisions saving his rights, or where from any cause . . . the action abates or is dismissed, and, during the pendency of the action, the limitation runs, the remedy is barred.” So pervasive is this principle that the District of Columbia courts presumably would adopt it; that would dictate that there be no tolling in the instant situation. Appellant urges, however, that the rule is discretionary, and therefore need not govern the question of tolling when dismissal of the earlier action was involuntary.
As we have noted, the courts of the District of Columbia have not yet ruled definitively on this issue. The District of Columbia Court of Appeals, however, has considered the question of tolling in a slightly different context. In York & York Construction Co. v. Alexander, that court held that the pendency of an action voluntarily dismissed without prejudice does not interrupt the running of the statute of limitations. In so concluding, the York Court cited both the Supreme Court opinion quoted above and several opinions from federal courts of appeals. Because the court relied upon these cases without further discussion, it is to them that we must now look for guidance in resolving the question presented on this appeal.
Each of those cases held, as did the York Court, that a statute of limitations is not tolled during pendency of an action voluntarily dismissed without prejudice. Without exception, the decisions cited by York reasoned that a dismissal without prejudice does not operate as an adjudication upon the merits, and thus leaves the situation the same as if suit had never been brought. In effect, therefore, there was nothing to suspend the operation of the limitation period. Thus, as the Sixth Circuit has aptly declared, “[i]n the absence of a statute to the contrary a party cannot deduct from the period of the statute of limitations the time during which the action ... dismissed [without prejudice] was pending.”
The District Court for the Middle District of Pennsylvania, adopting this reasoning, held in DiSabatino v. Mertz that the Pennsylvania statute of limitations for personal injury actions was not tolled during pendency of an earlier action involuntarily dismissed for lack of venue. The DiSabatino court emphasized, not that the dismissal was involuntary, but rather that it was without prejudice, and therefore did not operate as an adjudication upon the merits. We think the court identified the crucial consideration, and that the pivotal question is whether the dismissal was with or without prejudice, not whether it was voluntary or involuntary.
We conclude, then, that the rule against tolling set forth by the District of Columbia Court of Appeals in York applies with equal force to nonprejudicial dismissals, be they voluntary or involuntary. We therefore hold, as we believe the District of Columbia courts would hold, that under District of Columbia law the pendency of an action involuntarily dismissed without prejudice does not operate to toll the running of the statute of limitations. In the case at bar, whatever the limitation period applicable, it was not arrested during pendency of appellant’s first action which was involuntarily dismissed without prejudice for want of prosecution. Because the complaint in the instant case was not filed until March 29, 1979, more than three years — the outermost limit — after the last wrongful act alleged, the action was barred by the statute, and the order of the District Court dismissing it is accordingly
Affirmed.
. Complaint, Dupree v. Wilson, Civ. No. 1602-73 (D.D.C.) (filed Aug. 10, 1973). The District Court record in Civil Action No. 1602-73 will hereinafter be cited as 73-R. In addition to Jerry C. Wilson, the former Chief of the Metropolitan Police Department, the complaint named as defendants a dozen members of the Department: Burtell Jefferson, Donald Randall, John Sherman, John Nichols, R. R. Ramey, S. R. Cooley, R. W. Hudson, J. C. White, Frank Martin, Winston Robinson, Harvey Lee, and Howard Dublin. The record in Civil Action No. 1602-73 is not part of the record on appeal in this case, but we refer to it pursuant to our authority to judicially notice related proceedings in other courts. See Gomez v. Wilson, 155 U.S.App.D.C. 242, 247 n.28, 477 F.2d 411, 416 n.28 (1973); Stradley v. Cortez, 518 F.2d 488, 494 n.8 (3d Cir. 1975); United States v. Verlinsky, 459 F.2d 1085, 1089 (5th Cir. 1972).
. Complaint, 73-R., % 8; see D.C.Code § 22-1107 (1973).
. Complaint, 73-R., UK 9-14.
. Id. UK 15-19.
. D.C.Code §§ 22-1107, 22-1121(2) (1973).
. Complaint, 73-R., j|K 26, 27.
. Id. K 28. Appellant requested a permanent injunction prohibiting appellees from interfering with her rights, and an order requiring Chief of Police Wilson to submit a proposed directive to the Police Department implementing the court-ordered relief.
. Id. 1HI 30-32.
. Motion of Plaintiff to Dismiss Claims for Injunctive and Declaratory Relief, 73-R. (filed June 6, 1975).
. Order, 73-R. (filed June 30, 1975). This order called upon the Police Department to implement a- program of instruction, supervision and evaluation relative to enforcement of §§ 22-1107 and 22-1121(2) of the District of Columbia Code. Id.
. Motion of Plaintiff to Vacate Order of June 30, 1975, 73-R. (filed July 10, 1975). This motion also stated that the attorney who had filed the June 6 motion had been previously informed that appellant had obtained other counsel. Id.
. Motion of Defendants to Enforce the Settlement Agreement, 73-R. (filed Oct. 31, 1975).
. Id.
. Order, 73-R. (filed Feb. 27, 1976).
. Notice of Appeal by Plaintiff From Order of February 27, 1976, 73-R. (filed Mar. 26, 1976).
. Supplemental Complaint (Supp. Complaint), 73-R. (filed Sept. 8, 1977). This complaint was filed with the District Court’s leave pursuant to Fed.R.Civ.P. 15(d). Order, 73-R. (filed Oct. 5, 1977). The complaint added the following individual members of the Metropolitan Police Department as defendants: Maurice C. Cullinane, Thomas N. Chamberlain, Vernon N. Jones, Norman A. Walker, Donald R. Exium and Jerome M. Fremeau.
. Supp. Complaint, 73-R., Iffl 21-22.
. Order, 73-R. (filed Sept. 26, 1978).
. See Motion and Memorandum of Law by Plaintiff in Support of Motion for Reconsideration of Order Dismissing Case, 73-R. (filed Oct. 3, 1978); Order, 73-R. (filed Oct. 18, 1978); Motion of Plaintiff for Reconsideration of Order Dismissing Case or in the Alternative for Hearing Before the Court on Matter, 73-R. (filed Jan. 30, 1979); Order, 73-R. (filed Feb. 13, 1979).
. Complaint, Dupree v. Jefferson, Civ. No. 79-1847 (D.D.C.), Doc. No. 1 (filed Mar. 29, 1979). The District Court record in Civil Action No. 79-1847, the instant case, will hereinafter be cited as 79-R. At the time the complaint therein was filed, Burtell Jefferson had replaced Jerry C. Wilson as Chief of the Metropolitan Police Department. With this minor exception in the parties named, the 1979 complaint was identical to the supplemental complaint filed in 1977. Compare id. with Supp. Complaint, 73-R.
. Order, 79-R., Doc. 4 (filed May 1, 1979).
. Order, 79-R., Doc. No. 7 (filed May 29, 1979). This, order did not cite a specific statutory limitation period.
. Brief for Appellant at 5.
. See Brief for Appellee at 2. Appellant stated at oral argument that the statute-of-limitations question is covered by local “jurisdictional” caselaw. A rationale for application of the local statute to this constitutional cause of action was not advanced by the parties, either in briefs or at oral argument. For this reason, we decline to address the question ourselves. Rather we take the case as we find it, and proceed for purposes of this appeal on the parties’ common premise that District of Columbia law does control. See Trailmobile Co. v. Whirls, 331 U.S. 40, 48, 50, 67 S.Ct. 982, 986, 987, 91 L.Ed. 1328, 1335, 1336 (1947); United States v. White, 454 F.2d 435, 439 (7th Cir. 1971), cert. denied, 406 U.S. 962, 92 S.Ct. 2070, 32 L.Ed.2d 350 (1972); Pedicord v. Swenson, 431 F.2d 92, 93 (8th Cir. 1970); Hernandez v. City of Los Angeles, 624 F.2d 935, 937 n.2 (9th Cir. 1980); cf. Miller v. Aviron, 127 U.S.App.D.C. 367, 369-370, 384 F.2d 319, 321-322 (1967).
. At oral argument, appellees cited Harris v. Pennsylvania R.R., 106 U.S.App.D.C. 399, 273 F.2d 524 (1959), and contended that Harris decided the precise question of local law presented herein. Although we today reach the same result that Harris did, that case is distinguishable. In Harris, this court affirmed a District Court order dismissing as time-barred an action duplicating one previously filed and dismissed for want of prosecution. Id. at 400, 273 F.2d at 526. As such, the Harris opinion not indicating otherwise, the dismissal presumably was with prejudice. See Fed.R.Civ.P. 41(b). A dismissal with prejudice operates as an adjudication upon the merits, and consequently operates to bar a later action.
. See York & York Constr. Co. v. Alexander, 296 A.2d 710, 712 (D.C.App.1972).
. Willard v. Wood, 164 U.S. 502, 523, 17 S.Ct. 176, 181, 41 L.Ed. 531, 540 (1896).
. See, e.g., Walko v. Burger Chef Systems, Inc., 281 Md. 207, 378 A.2d 1100, 1102 (1975); Swallows v. Albuquerque, 61 N.M. 265, 298 P.2d 945, 948 (1956); Royal-Globe Ins. v. Hauck Mfg. Co., 233 Pa.Super. 248, 335 A.2d 460, 462 (1975).
. Brief for Appellant at 5, 7.
. Supra note 26.
. 296 A.2d at 712.
. Id. at 712 n.1, citing Willard v. Wood, supra note 27; Kington v. United States, 396 F.2d 9 (6th Cir.), cert. denied, 393 U.S. 960, 89 S.Ct. 396, 21 L.Ed.2d 373 (1968); Bomer v. Ribicoff, 304 F.2d 427 (6th Cir. 1962); Humphreys v. United States, 272 F.2d 411 (9th Cir. 1959).
. Kington v. United States, supra note 32, 396 F.2d at 10; Bomer v. Ribicoff, supra note 32, 304 F.2d at 429; Humphreys v. United States, supra note 32, 272 F.2d at 412.
. Kington v. United States, supra note 32, 396 F.2d at 10; Bomer v. Ribicoff, supra note 32, 304 F.2d at 428; Humphreys v. United States, supra note 32, 272 F.2d at 412.
. Bomer v. Ribicoff, supra note 32, 304 F.2d at 429; accord, Enos v. Kaiser Indus. Corp., 443 F.Supp. 798, 802 (D.D.C.1978).
. 82 F.Supp. 248 (M.D.Pa.1949).
. Id. at 249.
. Id.
. York & York Constr. Co. v. Alexander, supra note 26, 296 A.2d 710.
. As was noted above, see note 22 supra, the District Court did not specify which statutory limitation period barred the action. Appellees argued that the action is barred by D.C.Code § 12-301(4) (1973), which provides a one-year period for actions for assault, battery, malicious prosecution, false arrest, and false imprisonment. Brief for Appellees at 2; see D.C. Code § 12-301(4) (1973). Appellant has not cited a statutory provision, either before the District Court or on this appeal. At oral argument, however, appellant seem to suggest that the complaint included causes of action for harassment and loss of reputation, either or both of which might be covered by the three-year catch-all period set forth in § 12-301(8). See D.C.Code § 12-301(8) (1973). We need not reach the question of which of the two sections controls, because the action is time-barred under either. See text infra at note 42.
. See note 40 supra.
. See Complaint, 79-R., Doc. No. 1, j| 24.
. Because appellant summoned the District Court to exercise its legal and equitable jurisdiction concurrently in the present case, the District of Columbia statute of limitations operates to bar her claims for both legal and equitable relief. See Cope v. Anderson, 331 U.S. 461, 464, 67 S.Ct. 1340, 1341, 91 L.Ed. 1602, 1607 (1947); Angelo-Colombian Dev. Co. v. Stapleton, 57 App.D.C. 209, 211 (1927); Chiswell v. Johnston, 55 App.D.C. 3, 5, 7 (1924); Washington Loan & Trust Co. v. Darling, 21 App.D.C. 132, 140 (1903).
Question: What is the specific issue in the case within the general category of "civil rights"?
A. civil rights claims by prisoners and those accused of crimes
B. voting rights, race discrimination, sex discrimination
C. other civil rights
Answer:
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songer_casetyp1_7-3-3
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C
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - commercial disputes".
COHEN v. METROPOLITAN LIFE INS. CO.
No. 8585.
Circuit Court of Appeals, Third Circuit.
Argued June 20, 1944.
Decided Sept. 22, 1944.
Edmund J. Canzona, of Red Bank, N.J. (Parsons, Labrecque & Borden, of Red Bank, N.J., on the brief), for appellant.
Augustus C. Studer, Jr., of Newark, N. J. (McCarter, English & Egner, of Newark, N.J., on the brief), for appellee.
Before BRATTON and GOODRICH, Circuit Judges, and KIRKPATRICK, District Judge.
KIRKPATRICK, District Judge.
This is an appeal from a summary judgment for the defendant in an action for accidental death benefits, by the beneficiary in three contracts of life insurance. The only question involved is whether the plaintiff has complied with the conditions of the policy relating to the furnishing of due proof of the death of the insured by accidental means.
In passing upon the motion, the court had before it the pleadings, the plaintiff’s answer to the defendant’s request for admissions, to which was annexed a proof of death in the form of questions and answers together with the physician’s statement in the same form, the affidavit of the defendant’s general counsel and the affidavit of the plaintiff herself. From this, evidence, which discloses no conflict on essential points, the facts appear to be as follows:
The three policies were for different amounts but were otherwise alike. Attached to each was an “Accidental Death Benefit” supplementary contract or rider providing for payments in double the amount of the policy in the event of the insured’s death by accidental means. The insured died August 17, 1938. The defendant paid the face amount of each policy but not the accidental death benefit.
Within two or three weeks after her husband’s death, the plaintiff had several conversations with the defendant’s agent at Freehold, New Jersey, during which she “explained to (him) the manner in which my husband met with his accident and told him that my husband’s death was the result of the accident of July 29, 1938.” Shortly thereafter she accompanied the agent to the district office of the defendant at Freehold where she had a long interview with a person introduced to her by the agent as the manager, in the course of which she stated that “my husband had met with an accident in Lakewood, New Jersey, on July 29, 1938 and that the accident was the direct cause of his death.” The manager told her that the policies were still in the contestable stage and advised her that if she made claim for accidental death benefits the Company might refuse to pay anything. She never gave the defendant any cause other than accident for the death of her husband. Subsequently, she submitted a written proof of death on one of the Company’s forms in which the question “Cause of death” was not answered. The physician’s statement submitted at the same time contains the following questions and answers: “What was the immediate cause of death? 1. Mesenteric thrombosis. 2. Duodenal ulcer perforated.” “Was the death due to suicide, homicide or accident?” “No.”
Neither in the body of the policy nor in the supplementary contract is there any requirement that the proof of death be in writing or under oath. Consequently no objection can be taken to the form in which proof was made — an unsworn oral statement of the facts. Levine v. New York Insurance Co., 155 Misc. 806, 280 N.Y.S. 468.
The learned Judge of the District Court put his entry of judgment for the defendant upon two grounds; first, that the plaintiff’s proof was not submitted at the home office in New York but at a district office in Freehold, New Jersey, and second, that the plaintiff’s oral statement did not sufficiently show death resulting solely through external, violent and accidental means, independently of all other causes, and did not expressly negative disease as a contributing cause.
We are of the opinion that it was not necessary for the plaintiff to submit her proof of death at the home office of the Company in New York City. The supplementary contract provides that the Company will pay the additional benefits “upon receipt, at the Home Office of the Company in the City of New York, of due proof,” etc. The body of the policy contains no condition that the beneficiary must submit the proof of death to the Company at its home office but says merely that the Company will pay at its home office, upon receipt of due proof, without specifying where the proof may be received. Upon the back of the policy is a notice to the policyholder which says, “In the event of death of the Insured, the Claimant should promptly advise the Home Office or the District Office through which premium payments have been made.”
The supplementary contract in this case does not supersede or eliminate any of the general terms of the policy, but on the contrary expressly incorporates them into it. Conflict between it and the body of the policy can be avoided if the clause in the supplementary contract, relating to receipt of proof at the home office, be taken to mean that the Company will pay the double indemnity benefits only after the claim has been passed upon at its home office. In other words, the district offices have no right to pass upon the validity of accidental death claims but are to transmit the proofs to the home office for determination there. We consider this the fair interpretation of the provision, but if it should be given the interpretation for which the defendant contends the conflict with the notice to policyholders displayed on the back of the policy would create an ambiguity which we should resolve in favor of the insured. The conclusion is that the plaintiff complied with the requirements of the policy as to the place of proof by making her statement at the defendant’s district office at Freehold, New Jersey.
As to the remaining point, we think that the evidence shows that the proof of accidental death submitted by the plaintiff was a sufficient compliance with the requirement of the supplementary contract. It will be noted that the provision in question calls for due proof of the death of the insured, “as the result, directly and independently of all other causes, of bodily injuries sustained solely through external, violent and accidental means.” It does not say that the proof must negative suicide or disease as contributing causes. That is a condition to recovery, but the preliminary proof need not be cast in a form which expressly excludes those causes. Nor do we think that the provision of the contract means that the proof must be in complete detail and conform with particularity to the words of the insuring clause. Those words have, through long litigation, become practically words of art, and their precise implications have been the subject of many conflicting judicial decisions. The notice to policyholders advises that it is not necessary to employ an attorney to collect the insurance, but the ordinary layman would certainly need a lawyer to file the kind of proof of death which the defendant argues is necessary. The plaintiff’s affidavit, not contradicted, shows that she told the defendant’s manager that the accident was the direct cause of her husband’s death. This was in the course of a long conversation with the manager and the agent to whom she had already explained the manner in which her husband met with the accident, and it is certainly a reasonable inference that the facts of the accident were discussed at that time. Her affidavit also states that she never gave any cause other than accident.
We do not think it important that, later, in a proof of death on a Company form, the question “Cause of death” was not answered. If the plaintiff’s oral statement heretofore made was sufficient, the fact that she did not answer that question was unimportant. Furthermore, in view of what the manager told her, it may well be that the reason for her failure to do so was due to her desire to have the face of the policy paid promptly and not incur the risk of a contest upon the whole policy, which the manager had suggested might occur if she made a claim for the double indemnity.
The law of New Jersey governs, but no decision of a court of New Jersey ruling the question involved has been cited, and we have found none. In Dikowski v. Metropolitan Life Ins. Co., 128 N.J.L. 124, 24 A.2d 173, 174, a very recent case, the Court of Errors and Appeals of New Jersey said: “There appears to be no reported case in this state passing upon the question of submitting proof of death by accidental means as a condition to recovery under a double indemnity clause in a life insurance policy.” The policy under consideration in that case was similar to those before the court in this appeal but the question before •the court was not the sufficiency of proof submitted but whether failure to submit any proof whatever was fatal to the plaintiff’s case. The court held that it was, and the only point decided which has any bearing upon the present case is that the submission of proofs of some kind was a condition precedent to a right of recovery — a matter fully conceded by the present plaintiff.
The judgment of the District Court is reversed and the cause remanded for further proceedings in accordance with this opinion. .
Question: What is the specific issue in the case within the general category of "economic activity and regulation - commercial disputes"?
A. contract disputes-general (private parties) (includes breach of contract, disputes over meaning of contracts, suits for specific performance, disputes over whether contract fulfilled, claims that money owed on contract) (Note: this category is not used when the dispute fits one of the more specific categories below)
B. disputes over government contracts
C. insurance disputes
D. debt collection, disputes over loans
E. consumer disputes with retail business or providers of services
F. breach of fiduciary duty; disputes over franchise agreements
G. contract disputes - was there a contract, was it a valid contract ?
H. commerce clause challenges to state or local government action
I. other contract disputes- (includes misrepresentation or deception in contract, disputes among contractors or contractors and subcontractors, indemnification claims)
J. private economic disputes (other than contract disputes)
Answer:
|
songer_r_fiduc
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "fiduciaries". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Robert A. RIDDELL, Collector of Internal Revenue for the Sixth Collection District of California, Appellant, v. LA JOLLA CASA DE MANANA, Appellee.
No. 13662.
United States Court of Appeals Ninth Circuit.
Sept. 22, 1953.
Appeal from the United States District Court for the Southern District of California, Central Division; Wm. Bryne, Judge.
H. Brian Holland, Asst. Atty. Gen., Ellis N. Slack, Robert N. Anderson, John J. Kelley, Jr., Sp. Assts. to Atty. Gen., Alonzo Watson, Sp. Asst, to Atty. Gen., Washington, D. G, Walter S. Binns, U. S. Atty., E. II. Mitchell and Edward R. McHale, Asst. U. S. Attys., Los Angeles, Cal., for appellant.
W. I. Titus, Los Angeles, Cal., Harry B. Jones, and R. B. Hooper, Seattle, Wash., for appellee.
Before HEALY, BONE, and POPE, Circuit Judges.
PER CURIAM.
The judgment is affirmed for the reasons given in the opinion of the trial court, D. C, 106 F.Supp. 132.
Question: What is the total number of respondents in the case that fall into the category "fiduciaries"? Answer with a number.
Answer:
|
songer_origin
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
UNITED STATES of America, Plaintiff-Appellee, v. Earl James BRIDGES, Defendant-Appellant.
No. 126-68.
United States Court of Appeals Tenth Circuit.
Feb. 24, 1969.
John A. Babington, Asst. U. S. Atty., (John Quinn, U. S. Atty., on the brief), for plaintiff-appellee.
Thomas C. Seawell, Denver, Colo., for defendant-appellant.
Before LEWIS, BREITENSTEIN and HICKEY, Circuit Judges.
BREITENSTEIN, Circuit Judge.
The jury found defendant-appellant guilty of violating the Dyer Act, 18 U.S.C. § 2312, and he appeals from the judgment imposing sentence. By the false use of a credit card issued .to James W. Francis, defendant obtained a Chevrolet automobile from a rental agency in Phoenix, Arizona, on April 24, 1968, under an agreement to return the car on April 27. On April 27, the car was stopped for speeding violations near Las Cruces, New Mexico, by a state patrol officer. One Phillips was driving and defendant was riding in the right, front seat. Phillips could not produce a driver’s license. The officer asked defendant who owned the car. He replied that he had rented the car in Phoenix and produced the rental agreement. The officer immediately made a radio check and learned that the car was stolen. He then placed both defendant and Phillips under arrest and advised them of their constitutional rights. At the trial the defense offered no evidence.
The evidence is sufficient to sustain the verdict. The defendant obtained the ear by fraud. The fact that he was arrested before the rental return date had expired is no defense. See McCarthy v. United States, 10 Cir., 403 F.2d 935. He may not hide behind the fact that another was driving. He wrongfully got the car in Arizona and before the arrest asserted possession by virtue of the rental agreement. The jury could reasonably infer that he had caused the interstate transportation. Wheeler v. United States, 10 Cir., 382 F.2d 998, 1000. The instruction on the inference arising from possession of property recently stolen in another state was proper. Garrison v. United States, 10 Cir., 353 F.2d 94, 95, and cases there cited. Relevant evidence of material facts was admissible even though it incidentally showed another offense. See O’Dell v. United States, 10 Cir., 251 F.2d 704, 707.
■ The state patrolman in testifying that the defendant and his companion were taken before a justice of the peace on state charges volunteered the testimony that they “refused to give statements.” The reference was to the state charges. No objection was made and the court was not asked to instruct the jury to disregard the answer. In the circumstances no prejudicial error occurred.
The claims of prosecutor misconduct have no substantial basis. Appellate counsel’s criticism of the tactics of trial counsel establishes no reason for reversal. The record shows that the defendant was competently represented and had a fair trial.
Affirmed.
Question: What type of court made the original decision?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Special DC court
H. Other
I. Not ascertained
Answer:
|
songer_circuit
|
A
|
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.
CLAUSON, Collector of Internal Revenue, v. VAUGHAN.
No. 4020.
Circuit Court of Appeals, First Circuit.
Jan. 29, 1945.
L. W. Post, Sp. Asst. to the Atty. Gen. (Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key, Sp. Asst. to the Atty. Gen., J. Louis Monarch, Helen R. Carloss, and James P. Garland, Sp. Assts. to the Atty. Gen., John D. Clifford, Jr., U. S. Atty., and Edward J. Harrigan, Asst. U.S. Atty., both of Portland, Me., on the brief), for appellant.
Earle W. Carr, of Boston, Mass. (Philip G. Willard, of Portland, Me., and Gaston, Snow, Rice & Boyd, of Boston, Mass., of counsel), for appellee.
Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges.
WOODBURY, Circuit Judge.
This in an appeal by the defendant, a collector of internal revenue, from a judgment entered by the court below for the plaintiff in an action to recover a deficiency in federal estate tax assessed against her as executrix of the estate of her deceased husband, Henry G. Vaughan, and paid under protest. The case was heard by the District Court on the pleadings and a stipulation of facts. Its opinion is reported in 54 F.Supp. 8.
The facts can be stated briefly.
Benjamin Vaughan, father of Henry, died on July 2, 1912, leaving a will, by a codicil to which dated February 12, 1911, he left certain property to his daughter Bertha in trust “for the benefit of my son Henry and the income of said trust shall be payable to him only in the absolute discretion of the trustee and he shall have no rights whatsoever therein at his decease the trust shall terminate and the principal and any income thereof shall be disposed of as my son Henry may by will appoint. But no portion whatsoever of the income or principal of said trust shall ever go or be paid directly or indirectly to the present wife of said Henry or to any of her family or assigns whether by voluntary or involuntary assignment transfers or appointment or whether by any judgment or de■cree of any court or in any way whatever and any appointment or assignment to said persons shall be void and of no effect.”
The “present wife” of Henry at the time Benjamin’s will and codicil were executed was Olea Bull Vaughan, who divorced Henry on May 11, 1911, and died on July 18 following. In April, 1915, Henry married plaintiff-appellee herein and on November 21, 1938, he died leaving a will in which he appointed the property referred to in his father’s will to this second wife. At the time of Llenry’s death there were living an illegitimate child of his first wife as well as five first cousins and some other more distant relatives of hers. Also, such illegitimate child had two living children.
The sole question presented on this appeal is whether the property over which Henry had a power of appointment under his father’s will should be included as part of his gross estate under section 302 (f) of the Revenue Act of 1926, 44 Stat. 9, as amended by section 404 of the Revenue Act of 1934, 48 Stat. 680, 26 U.S.C.A.Int. Rev.Code, § 811 (f), which provides so far as material:
“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. * * *
“(f) To the extent of any property passing under a general power of appointment exercised by the decedent (1) by will *
Clearly Congress intended by this statute that only property over which a decedent’s power of appointment was general should be included for estate tax purposes and since Congress did not define “a general power of appointment” as distinguished from a special or other kind of power, the quoted phrase must be taken in its generally accepted sense, that is, as meaning an unrestricted power to appoint to anyone the donee of the power might select.
“None of the revenue acts has defined the phrase ‘general power of appointment’. The distinction usually made between a general and a special power lies in the circumstance that, under the former, the donee may appoint to anyone, including his own estate or his creditors, thus having as full dominion over the property as if he owned it; whereas, under the latter, the donee may appoint only amongst a restricted or designated class of persons other than himself.
“We should expect, therefore, that Congress had this ’ distinction in mind when it used the adjective ‘general’. The legislative history indicates that this is so.” Morgan v. Commissioner, 309 U.S. 78, 81, 626, 60 S.Ct. 424, 426, 84 L.Ed. 585. See also Christine Smith Kendrick v. Commissioner, 34 B.T.A. 1040, 1042; Fidelity Trust Co. v. McCaughn, D.C., 1 F.2d 987, 988; Whitlock-Rose v. McCaughn, D. C., 15 F. 2d 591, 592; Leser v. Burnet, 4 Cir., 46 F. 2d 756, 758.
But the collector contends that the power of appointment exercised by the decedent here was a general power within the meaning of the taxing statute for two reasons; first because the limitation was so trivial as to be virtually non-existent and second because it did not prevent appointment either to the decedent’s estate or to his creditors. In other words, he says that the power given to the decedent was of such a general character that he was “with respect to disposition of the property at his death, in a position not unlike that of its owner” and hence that Congress must have intended to tax the property covered by the power to the decedent’s estate. We cannot agree.
For present purposes we may concede that the classic definition of a general power of appointment is too broad for application to a case involving a trivial or fake limitation obviously imposed for the purpose of tax evasion. However, we can postpone decision of this question until it arises, if it ever does (section 403 of the Revenue Act of 1942, 26 U.S.C.A.Int.Rev. Code, § 811, drastically amended the section we are considering), because in the case at bar there could have been no tax evasion or even tax avoidance motive present when the donor of the power drew his will in 1911, more than five years before the Revenue Act of 1916, 39 Stat. 756, and in addition there is every indication of the existence of a strong family reason for the limitation imposed. Nor can we say that the limitation was trivial or of no practical consequence to Henry. To be sure, we do not know his attitude toward his first wife, or her descendants, or her family, and it is useless to inquire into such transitory matters, but from the vehement language of Benjamin’s will and the fact that Henry allowed his first wife to divorce him in spite of her conduct, it is safe to infer that he may have been favorably disposed toward at least some of his first wife’s family in spite of her dereliction. At any rate on the facts before us we cannot say that the limitation was not genuinely imposed for valid family reasons and not patently wholly ineffective to limit Henry in the exercise of his power of appointment, and this it seems to us is enough to make the power not a general one within the meaning of the statute.
But the collector advances the view that whenever property may be appointed to a donee’s estate or to his creditors the power must be deemed general, whatever other restrictions may be placed upon a donee with respect to eligible appointees, and he cites for authority the applicable regulation (Regulation 80 (1937 Ed.) art. 24) which reads:
“Only property passing under a general power should be included. Ordinarily a general power is one to appoint to any person or persons in the discretion of the donee of the power, or, however limited as to the persons or objects in whose favor the appointment may be made, is exercisable in favor of the donee, his estate, or his creditors.”
Earlier regulations did not contain the provisions embodied in the last part of the second sentence quoted above but provided: “Only property passing under a general power should be included. Ordinarily a general power is one to appoint to any person or persons in the discretion of the donee. Where the donee is required to appoint a specified person or class of persons, the property should not be included in his gross estate.” So this contention of the Collector poses the question whether the 1937 Regulation can affix a new meaning to the statute in spite of the fact that with the earlier regulations outstanding Congress repeatedly re-enacted the statute without change and thus may be said to have adopted its administrative construction. See Morgan v. Commissioner, supra.
But we do not need to consider this question because any appointment or any other action by Henry with respect to the property in question was at all times subject to the father’s vigorously and sweepingly worded injunction that none of it was ever directly or indirectly to be enjoyed by any member of the first wife’s family, so that Henry was not free to appoint the property to his estate and dispose of his estate as he wished, or to his creditors and arrange who his creditors were to be. Thus Henry’s power to dispose of the property at his death was by no means substantially as broad as it would have been had he owned it, and from this we conclude, as did the District Court, that the power of appointment was not a general one, even though article 24 of the 1937 regulations is valid, and in consequence that the property subject to the power did not form a part of the decedent’s gross estate.
The judgment of the District Court is affirmed.
Report of the Ways and Means Committee on the Revenue Bill of 1918, H. Rep. No. 767, 65th Cong., 2nd Sess., pp. 21-22 (1939-1 Cum. Bull. (Part 2) 86, 101)
“There has also been included in the gross estate the value of property passing under a general power of appointment. This amendment as well as that preceding is for the purpose of clarifying rather than extending the existing statute. A person having a general power of appointment is, with respect to disposition of the property at his death, in a position not unlike that of its owner. The possessor of the power has full authority to dispose of the property at his death, and there seems to be no reason why the privilege which he exercises should not be taxed in the same degree as other property over which he exercises the same authority. The absence of a provision including property transferred by power of appointment makes it possible, by resorting to the creation of such a power, to effect two transfers of an estate with the payment of only one tax.”
This word was added to the original regulation (article 30 of Regulations 37 of 1918) by article 24 of Regulations 70 of 1926.
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_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.
UNITED STATES of America, Appellee, v. Manuel JIMENEZ-OTERO, Defendant, Appellant.
No. 89-1562.
United States Court of Appeals, First Circuit.
Heard March 6, 1990.
Decided March 14, 1990.
Gabriel Hernandez Rivera, with whom Feldstein, Gelpi, Hernandez & Gotay, Old San Juan, P.R., was on brief for defendant, appellant.
Warren Vazquez, Asst. U.S. Atty., with whom Daniel F. Lopez-Romo, U.S. Atty., Hato Rey, P.R., was on brief for the U.S.
Before BREYER and SELYA, Circuit Judges, and RE, Judge.
The Honorable Edward D. Re, Chief Judge of the United States Court of International Trade, sitting by designation.
SELYA, Circuit Judge.
This is a single-issue sentencing appeal wherein a defendant who pled guilty to a charge of threatening a federal officer, in violation of 18 U.S.C. § 115(a), (b)(4), challenges the district court’s 6-point adjustment in its computation of defendant’s total offense level. The court made the upward adjustment because it found that the defendant had engaged in conduct “evidencing an intent to carry out [the] threat,” U.S.S.G. § 2A6.1(b)(l), by brandishing a screwdriver during the crime’s commission.
The circumstances are as follows. On September 28, 1988, defendant-appellant Manuel Jimenez-Otero (Jimenez) was charged with having verbally threatened to murder a postal service employee engaged in the performance of his official duties. Subsequently, a non-binding plea agreement was entered, Fed.R.Crim.P. 11(e)(1)(B), in which the government agreed to reduce the charge from “threat to murder” to “threat to assault.” Jimenez agreed to plead guilty to the reduced charge. The parties stipulated that they believed the applicable sentencing guideline should be computed at a base offense level of 12, U.S.S.G. § 2A6.1(a), to be decreased by 4 levels since defendant’s conduct involved a single instance evidencing little or no deliberation, U.S.S.G. § 2A6.1(b)(2), and further reduced by 2 more levels for acceptance of responsibility, U.S.S.G. § 3El.l(a). (A base offense level of 6 and a criminal history category of I would produce a sentencing range of 0 to 6 months).
Defendant pled guilty to the reduced charge. Pursuant to standard convention, see Fed.R.Crim.P. 32(c), the court ordered a presentence report (PSI Report). The Report did not recommend the downward adjustments foreseen by the parties. Rather, the probation officer suggested an increase of 6 levels on the ground that the defendant had brandished a dangerous weapon — a screwdriver — during the commission of the crime Inasmuch as this conduct called for a 6-level upward adjustment, see infra, the probation officer advised computing the sentence at a total offense level of 18, resulting in a guideline imprisonment range of 27-33 months. The Report concluded with the opinion that there was no information that would warrant departure from the guidelines.
At the sentencing hearing, the court granted defendant a 2-point reduction for acceptance of responsibility (not envisioned by the probation officer) but increased the base offense level by 6 because the “defendant engaged in conduct evidencing an intent to carry out a threat ... [by] brandishing] a dangerous weapon.” See U.S. S.G. § 2A6.1(b)(l). The resultant total offense level (16) produced a 21-27 month spread. The court sentenced defendant at the nadir of the guideline range, 21 months in prison.
Jimenez appeals on the basis that the district court incorrectly applied the guidelines. See 18 U.S.C. § 3742(a)(2). We review the district court’s fact-based determination regarding defendant’s purpose in holding the screwdriver only for clear error. See 18 U.S.C. § 3742(e) (court of appeals “shall accept the findings of fact of the district court unless they are clearly erroneous and shall give due deference to the district court’s application of the guidelines to the facts”); United States v. Royer, 895 F.2d 28, 29-30 (1st Cir.1990); United States v. Mata-Grullon, 887 F.2d 23, 24 (1st Cir.1989) (per curiam); United States v. Zayas, 876 F.2d 1057, 1060 (1st Cir.1989); United States v. Diaz-Villafane, 874 F.2d 43, 48 (1st Cir.), cert. denied, — U.S. -, 110 S.Ct. 177, 107 L.Ed.2d 133 (1989); United States v. Wright, 873 F.2d 437, 443-44 (1st Cir.1989). The “clearly erroneous” rule applies “in full flower” to inferences drawn from documentary evidence and/or agreed facts. E.g., In re Tully, 818 F.2d 106, 109 (1st Cir.1987). It is plainly reasonable to think of a screwdriver as a “dangerous weapon” in the context of this offense and therefore to conclude the wielder has “engaged in conduct evidencing an intent to carry out a threat.” U.S. S.G. § 2A6.1(b)(l). Accordingly, we cannot alter the trial court’s interpretation of the undisputed facts. After all, “[w]here there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” Anderson v. City of Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518 (1985).
Nor can we say that the plea agreement made a dispositive difference. Appellant concedes that the colloquy ordained under Fed.R.Crim.P. 11(c) contained all of the required advice, warnings, and caveats. Moreover, the law is clear that, where a non-binding plea agreement is struck, the district court is constrained neither by the United States Attorney’s sentencing recommendation, see U.S.S.G. § 6Bl.l(b) (policy statement), nor by stipulations of fact accompanying the plea contract, U.S.S.G. § 6B1.4(d) (policy statement).
Defendant also argues that there were “mitigating circumstances” such that the court should have departed downward in imposing sentence. We have held before, and today reaffirm, that a criminal defendant cannot normally ground an appeal on such a theory. See United States v. Pighetti, 898 F.2d 3, 4 (1st Cir.1990); United States v. Tucker, 892 F.2d 8, 10 (1st Cir.1989). This case is no exception to that rule.
We need go no further. Although the district judge might have elected to view the scenario more congenially to defendant, she was not obliged to do so. Because the court’s recension of the evidence was plausible, we cannot say that its conclusions were unfounded or clearly erroneous. The judgment of conviction and the concomitant sentence are, therefore, Affirmed.
. Defendant did not dispute that he was holding the screwdriver at the time. He argued instead that it was part of his usual equipage as a maintenance man and that he was not carrying it in a threatening manner.
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
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songer_usc1sect
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151
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 29. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
NATIONAL LABOR RELATIONS BOARD v. FAIRMONT CREAMERY CO.
No. 2862.
Circuit Court of Appeals, Tenth Circuit.
July 29, 1944.
John E. Lawyer, of Washington, D. C. (Alvin J. Rockwell, Gen. Counsel, Howard Lichtenstein, Asst. Gen. Counsel, Roman Beck, and Thomas B. Sweeney, all of Washington, D. C., on the brief), for petitioner.
Leonard A. Flansburg, of Lincoln, Neb. (Charles H. Flansburg, of Lincoln, Neb., on the brief), for respondent.
Before PHILLIPS, BRATTON, and HUXMAN, Circuit Judges.
BRATTON, Circuit Judge.
The National Labor Relations Board seeks enforcement of its order entered in a conventional proceeding requiring Fairmont Creamery Company, a corporation, doing business under the name of Concordia Creamery Company, at Concordia, Kansas, to cease and desist from interfering with, restraining, or coercing its employees in their right of self-organization for purposes of collective bargaining, to post notices at its plant, and to notify the Regional Director of the Board.
The first question presented relates to the sufficiency of the evidence to support the material findings of the Board. Congress entrusted to the Board in a proceeding of this kind the function of passing upon the credibility of witnesses, determining the weight to be given to their testimony, drawing inferences from the facts and circumstances, choosing between inconsistent inferences, and resolving conflicts in evidence. And where the findings are supported by substantial evidence, they cannot be overturned on review. National Labor Relations Board v. Link-Belt Co., 311 U.S. 584, 61 S.Ct. 358, 85 L.Ed. 368; National Labor Relations Board v. Virginia Electric & Power Co., 314 U.S. 469, 62 S.Ct. 344, 86 L.Ed. 348; National Labor Relations Board v. Nevada Consolidated Copper Corp., 316 U.S. 105, 62 S.Ct. 960, 86 L.Ed. 1305; Utah Copper Co. v. National Labor Relations Board, 10 Cir., 139 F.2d 788; National Labor Relations Board v. Concordia Ice Co., 10 Cir., 143 F.2d 656; National Labor Relations Board v. Fairmont Creamery Co., 10 Cir., 143 F.2d 668.
It would not serve any useful purpose to review the evidence in detail, as no two cases of this kind are identical. It is enough to say in resume that a painstaking review of the record leads us to the conclusion that the evidence adduced and the inferences reasonably to be drawn from it adequately support the findings. Therefore the findings are conclusive here.
The National Labor Relations Act, 49 Stat. 449, 29 U.S.C.A. § 151 et seq., does not prohibit an employer from merely expressing his views concerning labor policies or problems. And isolated or casual expressions of individual views made by supervisory employees, not authorized by the employer and not of such character or made under circumstances reasonably calculated to generate the conclusion that they are an expression of his policy, fail to constitute interference with the employees in the exercise of their right of self-organization, within the intent and meaning t>f the Act. But a continued course of conduct, consisting in part of statements or comments of foreman and other employees having supervisory authority, in connection with other circumstances entitled to consideration, may in its totality constitute interference, restraint, coercion, and domination in respect of the right of self-organization. National Labor Relations Board v. Virginia Electric & Power Co., supra; Utah Copper Co. v. National Labor Relations Board, supra. Here, the number of statements made by supervisory employees of the company, their nature and substance, the time within which they were made, the conditions under which they were made, and other circumstances entitled to consideration, in their totality, warrant the conclusion that they were far more than mere casual or desultory expressions of individual views, unrelated to the policy of the company.
An order of enforcement will be entered.
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 29? Answer with a number.
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 the Matter of A. Michael HYDE, A. Michael Hyde Oil and Gas Company and A. Michael Hyde Oil and Gas Company, Inc., Debtors. Clifford C. BURGESS, Trustee, et al., Appellants, v. SAWYER DRILLING & SERVICE, INC., Appellees.
No. 89-4733.
United States Court of Appeals, Fifth Circuit.
May 10, 1990.
Randall S. Davidson, and' Allison A. Jones, Davidson, Nix & Arceneaux, Shreveport, La., for Burgess.
J. Jay Caraway and Paul M. Adkins, Blanchard, Walker, O’Quin & Roberts, Shreveport, La., for So. Union Exploration Co.
John M. Shuey, Shuey & Smith, Shreveport, La., for appellees.
Before REAVLEY, JONES and DUHÉ, Circuit Judges.
REAVLEY, Circuit Judge:
Clifford C. Burgess, trustee for the debtors' estate, and several creditors appeal the district court’s ruling, which recognized the validity under Louisiana law of a lien claimed by Sawyer Drilling & Service, Inc. (“Sawyer”). We affirm.
I. Background
In 1985 Sawyer contracted with A. Michael Hyde Oil & Gas Company (“Hyde Oil”) to drill the Harris No. 1 Well (“Well”) in Louisiana. Sawyer completed the drilling on November 4, 1985 and “rigged down” the following day. The rig was physically removed from the location on November 23. Sawyer was not paid for this work.
On July 25, 1986 Sawyer filed a Statement of Lien Claim and Privilege, asserting its claim under the Louisiana Oil, Gas, and Water Well Lien Act (“Well Lien Act”). La.Rev.Stat. §§ 9:4861-9:4867 (West 1983 & Supp.1990). On October 21, 1986 an involuntary bankruptcy proceeding was initiated against Hyde Oil, which was later converted to a voluntary bankruptcy under Chapter 11.
On March 26,1987 Burgess, as trustee of the bankrupt estate, commenced an adversary proceeding against five trade creditors, including Sawyer, and against those claiming an ownership interest in the Well. The purpose of the proceeding was to determine the validity, amount, and priority of the lien claims against the Well. Sawyer answered the complaint on April 30, 1987 — more than a year but less than a year and 180 days after completing the drilling.
In proceedings before the bankruptcy court, Sawyer moved for summary judgment, claiming that it was entitled to the statutory lien privileges under the Well Lien Act. The court found that because Sawyer did not file a lien within the 180-day statutory filing period, it held an unrecorded lien. See id. § 9:4862 A(l) (amended 1986). The court then determined that the prescriptive period for asserting an unrecorded lien is one year and 180 days from the last day of service. Since Sawyer had asserted its lien within that period, the bankruptcy court granted Sawyer’s summary judgment motion. The district court affirmed. Burgess and the other creditors (collectively “Burgess”) appeal, claiming that the bankruptcy and district courts erred in finding that the prescriptive period for unrecorded liens runs one year and 180 days.
II. Analysis
The Well Lien Act provides a statutory privilege in favor of those who perform services in connection with the drilling of oil, gas, or water wells. Id. § 9:4861. In 1986 the Act was amended to require recordation to preserve the statutory privilege. 1986 Louisiana Acts, No. 191, § 1 (codified at La.Rev.Stat. § 9:4865). However, in cases, such as this, that are governed by the statute as it existed prior to the 1986 amendment, the privilege is recognized regardless of whether the lien was recorded. Louisiana Materials Co., Inc. v. Atlantic Richfield Co., 493 So.2d 1141, 1147-48 (La.1986). Recordation is required solely to benefit from the superior statutory ranking. Id. at 1144-45, 1147-48.
Although it is undisputed that Sawyer has been the holder of an unrecorded lien, the question raised is whether Sawyer asserted its claim within the prescriptive period for an unrecorded lien. The precise duration of that prescriptive period is currently unsettled by the Louisiana courts.
While the Well Lien Act provides that recorded liens will prescribe one year from the date of filing, unless “interrupted by suit,” La.Rev.Stat. § 9:4865 (West 1983 & Supp.1990) (amended 1986), it does not specify a prescriptive period for unrecorded liens. In Louisiana Materials, the Louisiana Supreme Court held that the prescriptive period for unrecorded liens extends, at a minimum, to one year after the date on which the last work was performed. 493 So.2d at 1148. The court also stated that the prescriptive period may extend as long as one year plus the statutory recordation period of 180 days, but declined to resolve the issue. Id. The Louisiana Courts of Appeal that have addressed the question in the wake of Louisiana Materials have been unable to reach a consensus on whether the prescriptive period runs one year and 180 days or merely one year. Compare Compadres, Inc. v. Johnson Oil & Gas Corp., 547 So.2d 382, 387 (La.Ct.App.3d Cir.1989) (prescriptive period one year plus 180-day recordation period); Hawn Tool Co. v. Crystal Oil Co., 514 So.2d 636, 639 (La.Ct.App. 2d Cir.1987) (same) with Genina Marine Servs., Inc. v. ARCO Oil & Gas Co., 499 So.2d 257, 261 (La.Ct.App.1st Cir.1986) (one year prescriptive period), subsequent appeal, 552 So.2d 1005, 1006 n. 1 (La.Ct.App.1st Cir.1989), writ denied, 556 So.2d 1281 (1990).
In support of their adoption of a one year and 180-day prescriptive period, the Second and Third Circuit Courts of Appeal discerned from Louisiana Materials a broad view toward the viability of unrecorded liens. Compadres, 547 So.2d at 387; Hawn Tool, 514 So.2d at 639. Faced with conflicting decisions and the lack of conclusive statements from the Louisiana Supreme Court, the bankruptcy court followed this more permissive approach and also adopted the one year and 180-day prescriptive period. Sawyer asserted its claim more than one year but less than one year and 180 days after the date on which the last work was performed. Accordingly, the bankruptcy court upheld the validity of Sawyer’s lien against the Well. The district court agreed with the bankruptcy court’s analysis and affirmed its ruling.
In cases raising unsettled questions of state law, the district court is entitled to substantial deference in its “determination of the law of the state in which it sits.” Stephenson v. Paine Webber Jackson & Curtis, Inc., 839 F.2d 1095, 1101 n. 19 (5th Cir.), cert. denied, — U.S. -, 109 S.Ct. 310, 102 L.Ed.2d 328 (1988). As the one year and 180-day prescriptive period is supported by the somewhat greater weight of Louisiana authority and nothing in the Well Lien Act or Louisiana case law mandates a contrary conclusion, summary judgment in favor of Sawyer is AFFIRMED.
. The privilege of a claimant, who files within 180 days after the last date of performance of service, is superior to all other privileges or mortgages against the property, except taxes or a bona fide vendor's privilege, or those filed prior to the date on which the claimant began providing services. La.Rev.Stat. § 9:4862 A(2) (West 1983 & Supp.1990) (amended 1986 and 1989).
. The bankruptcy court determined that Sawyer's answer on April 30, 1987 to Burgess’ complaint constituted a "suit” interrupting the prescriptive period within the meaning of section 9:4865. Burgess does not contest that determination.
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:
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songer_usc1
|
0
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
C. C. MENGEL & BRO. CO. v. HANDY CHOCOLATE CO.
(Circuit Court of Appeals, First Circuit.
January 26, 1926.)
No. 1909.
1. Contracts @=>163 — Written insertions in printed contract prevail over inconsistent printed provisions.
Written insertions in printed contract prevail over inconsistent printed provisions.
2. Bales @=>176(3) — Buyer’s refusal of tender on specified ground held not to preclude defenses on other grounds; “waiver;” “estoppel.”
Buyer, by refusal of seller’s tender on specified ground, was not precluded by theory of waiver or estoppel from making other defenses; “waiver” being intentional relinquishment of a known right, and “estoppel” requiring that other party change his position.
[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Estoppel; Waiver.]
3. Appeal and error @=>1610(1) — Circuit Court of Appeals held authorized to determine whether there was any substantial evidence to support finding.
Where seller excepted to court’s refusal to rule that on all the evidence judgment must be for plaintiff, Circuit Court of Appeals was authorized to determine whether, under proper construction of sale contract, there was any substantial evidence to support finding for buyer.
4. Sales @=>83 — Ineffectual tender from vessel held not election, precluding subsequent tender from warehouse.
Under contract for sale of cocoa for “shipment July-Sept. from the Gold Coast or via Liverpool or equivalent dely. from Whse. N. Y.,” title not to pass until delivery in New York, subject to inspection by buyer’s broker, held, that seller had right to chooue, within contract time, delivery from vessel from Gold Coast or warehouse, and tender from vessel, properly refused because of quality, was not election, precluding subsequent seasonable tender from warehouse.
5. Customs and usages <@=>17 — Contract held plain on face, and evidence of custom limiting “equivalent delivery from warehouse” held inadmissible.
Contract for sale of cocoa for shipment from Gold Coast, “or equivalent dely. from Whse. N. Y.,” held plain on its face, and evidence of custom limiting term “equivalent delivery from warehouse” to about 30 days from last permissible sailing date, was inadmissible, under rule that written contract cannot be controlled, varied, or contradicted by custom.
6. Customs and usages <@=>19(3) — Evidence held not to warrant finding of custom limiting ■term “equivalent delivery from warehouse,” to certain period after last permissible sailing date.
Evidence held not to warrant finding of custom of cocoa trade limiting term “equivalent delivery from warehouse” as alternative to delivery from vessel arriving to about 30 days after last permissible sailing date from point of shipment.
7. Sales <@=>181 (9) — Evidence that another vessel arrived 3 weeks later .than vessel carrying seller’s goods held inadmissible, as immaterial.
Where seller tendered cocoa from warehouse promptly on buyer’s rejection of cocoa arriving on vessel from Gold Coast, as permitted by contract, court properly excluded seller’s evidence that another vessel, taking shipment under same sailing date, arrived 3 weeks later.
8. Sales <@=>150(3)— Seller’s tender of delivery from warehouse the same day buyer properly refused delivery from vessel held not too late.
Under contract calling for shipment during July-September or equivalent delivery from warehouse seller’s tender of cocoa from warehouse the same day buyer properly refused tender from vessel held not too late.
In Error to the District Court of the United States for the District of Massachusetts; James Arnold Lowell, Judge.
Action by the C. C. Mengel & Bro. Company against the Handy Chocolate Company. Judgment for defendant, and plaintiff brings error.
Reversed and remanded.
Addison C. Burnham, of Boston, Mass. (Blodgett, Jones, Burnham & Bingham, of Boston, Mass., on the brief), for plaintiff in error.
Philip 3sT. Jones, of Boston, Mass. (Hurlburt, Jones & Hall, of Boston, Mass., on the brief), for defendant in error.
Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.
ANDERSON, Circuit Judge.
This is an action for breach of contract. The plaintiff was the seller and the defendant the buyer of 50 tons- of cocoa beans. The case was submitted to the District Court without a jury, and, without opinion or special findings of fact, that court entered judgment for the defendant.
The controlling facts are undisputed. The contract was in writing, as follows:
“Cocoa Contract to Arrive.
“New York, July 7, 1920.
“Sold for Account of C. C. Mengel é Bro. Co. to the W. H. Miner Chocolate Co.
Springfield, Mass.
“Quantity: Fifty (50) tons (5% more or less).
“Description: Usual good fair fermented Accra cocoa beans.
“Shipment: July-Sept. from the Gold Coast or via Liverpool or equivalent dely. from Whse. N. Y.
“Price: 13%e. cents per pound. Terms: Net cash 10 days from weighing and delivery.
“To be taken promptly by buyers on arrival ex dock at the port of New York and N. Y. weights to govern, usual tare.
“Each shipment to be considered a separate contract. Should any import duty, internal revenue, or any other form of tax be levied by the U. S. government on the cocoa embraced in this contract, it shall be assumed and paid for by the buyers.
“In case of loss, destruction, or seizure of cocoa or any part thereof, or abandonment thereof or any part thereof to underwriters, after shipment, this contract for such portion to be void and the amount sold reduced accordingly; in case the cocoa or any part thereof be transshipped within a reasonable time and arrive by any other vessel or vessels, this contract for such portion, to hold good.
“Sellers not liable for contingencies beyond their control.
“Quality to be inspected and passed upon by the undersigned.
“Snyder & Wheeler, Brokers.
“Brokerage 1 % of sale. This also applies to any portion lost or damaged at sea.”
The italicized portions are written insertions in a printed form. On familiar principles such insertions are to prevail over any inconsistent provisions in the printed form. Hagan v. Ins. Co., 186 U. S. 423, 428, 22 S. Ct 862, 46 L. Ed. 1229.
Coeoa intended by the seller for the buyer was shipped from the Gold Coast prior to September 30 by the steamship Tuekanuek. This shipment arrived in New York on December 15, and was properly rejected on December 18 by the buyer, because not of the specified quality. On the same day, the seller tendered the buyer the required quantity of cocoa from warehouse in New York. This tender was rejected by the buyer on December 20, in a letter, the pertinent part of which is as follows:
“We regret to advise that we are unable to accept a tender of 800 bags from store against this contract, you having previously notified the buyer that this cocoa was coming forward on the S. S. Tuekanuck afloat to New York. This cocoa duly arrived, was sampled and quality rejected by the b.uyers as not being up to contract requirements. In consequence of your having declared a specific lot, and this being duly tendered and rejected, does not give you the privilege of submitting or declaring another parcel.
“We submitted to you, by telephone, on Saturday proposition covering the 800 bags as tendered per S. S. Tuekanuck lately arrived. If you are not prepared to accept this, it will be necessary to cancel the contract.”
It thus appeares that the seller’s second tender (from the warehouse) preceded any claim of the buyer of a right to cancel. Defendant treated the contract as valid and outstanding until plaintiff rejected its offer of a reduced price for the cocoa on the Tuekanuek. The seller insisted on its rights to make the warehouse tender, and brought this suit.
On October, and perhaps in September, 1920, the buyer had made repeated requests for speedy delivery of the cocoa from the warehouse. As a result of these requests the seller wrote, on October 19, a letter, the material parts of which are as follows:
“Referring to 50 tons of usual good fair fermented Accra cocoa beans sold to you for shipment from the Gold Coast July/September or equivalent delivery from warehouse New York, through Messrs. Snyder & Wheeler, under contract dated July 7th, 1920, we beg to advise you that this cocoa is now afloat on the steamship Tuekanuck and will be delivered to you ex dock New York upon its arrival.”
But after receipt of this letter the buyer continued requests for delivery suggesting warehouse delivery. The seller declined to comply with these requests, but reiterated its intention to make delivery per shipment from the Tuekanuck. On October 28, 1920, the seller again wrote:
“As requested by you in your letter of October 27th, we beg to say that the 50 tons of fermented Accra Cocoa sold by us through you to the W. H. Miner Chocolate Company, Springfield, Mass., for July/September shipment from the Gold Coast is now afloat on the Steamship Tuekanuck.
“We have in our possession bills of lading dated Seeeondee, West Coast Africa, August 31, 1920, and Accra, West Coast Africa, September 3,1920, and the cocoa sold to the W. H. Miner Chocolate Company will be delivered from the lots covered by either of the above-mentioned bills of lading.
“We have been in touch with the steamship company, who inform us that the Steamship Tuekanuck will probably not arrive at the port of New York before November 15, 1920, and possibly will not arrive until after December 1, 1920.”
As late as the latter part of October, the plaintiff was told by the broker (acting for the defendant) “that as this contract called for either a shipment or equivalent, that his time to perform against his equivalent was pretty near to the finish, and that he would have to show something; we cautioned him”; that after “the Tuekanuck had been declared * * * I explained * * * that the delay of this boat was a hardship on the buyer, and that, as they had cocoa in store, why didn’t they let the buyer have some of that cocoa? He said, ‘No, the Miner Chocolate Company’s cocoa is coming on the Tuckanuck, and they will have to wait for the Tuekanuck; we can’t give them any store cocoa; they will have to wait until the Tuckanuek comes in.’ That comment was made at least, I will go under oath, six different times.”
The gist of the plaintiff’s contention, saved by appropriate requests for rulings which the court below denied, obviously was that the contract permitted the plaintiff to perform by tendering the cocoa either from a July-September shipment from the Gold Coast, or by a warehouse delivery, substantially within the same time limit.
The defendant, on the other hand, contended that the plaintiff, by its letter of October 19, had finally elected the alternative of performing from the Tuekanuck, and that no other alternative was thereafter open to it.
A secondary contention of the defendant was that, if the alternative of delivery from the warehouse was after its letter of October 19, 1920, open to the plaintiff, the tender of warehouse delivery on December 18 was not seasonable under the terms of the contract. In support of this defense, the defendant offered, and the court admitted subject to the plaintiff’s exception, evidence of an alleged custom limiting the term “equivalent delivery from warehouse” to a period, variously stated by the defendant’s witnesses, but roughly ending about 30 days from the last permissible date of sailing from the Gold Coast, so that, if such custom was proved and applicable, the tender of warehouse delivery after the arrival of the Tuekanuek on December 15 would be too late.
To meet this evidence, the plaintiff offered, and the court below excluded, subject to plaintiff’s exception testimony that the steamship Sehoodie left the Gold Coast with a eoeoa shipment prior to September 30, and yet did not arrive in New York until some three weeks after the arrival of the Tuekanuck.
It is difficult to determine upon what theory the court below went in admitting the evidence of custom in order to limit the time within which seasonable warehouse delivery might be made; for, at the plaintiff’s request and subject to the defendant’s exception, the court ruled that the defendant — by its letter of December 20, 1920, refusing the plaintiff’s offer of warehouse delivery on the specified ground that the plaintiff had by its letter of October 19, 1920, made a final election of delivery from the Tuekanuck — had waived all other defenses. As the eoeoa on the Tuekanuck was eoneededly not of the quality required by the contract, if this was the only tender that under the contract the plaintiff was entitled to make, it would seem immaterial whether the warehouse delivery subsequently tendered was or was not seasonable.
But we think the court erred in ruling that the defendant, by. its letter of December 20, 1920, waived all claims of defense other than that the plaintiff, by notifying the purchaser that the goods were coming on the Tuekanuck, and by tendering goods from the Tuekanuck, was precluded from making any further tender. The defense that the tender of December 18 was too late was duly pleaded, and there was, on this record, neither estoppel nor. waiver. “Waiver is an intentional relinquishment of a known right.” Suburban Land Co. v. Brown, 237 Mass. 166, 168, 129 N. E. 291, 292. There is no evidence of such intentional relinquishment. Doubtless in some of the cases are found inadequately guarded expressions as to waiver, which, considered apart from the facts before the court, might be thought to sustain the ruling below and the plaintiff’s present contention. But, on principle and the overwhelming weight of authority, a party does not lose a substantial right merely by failure to mention it. To ground an estoppel, it must appear that the other party, relying on that failure, changed its position. See 2 Williston on Sales, § 495; Galle v. Hamburg, etc., Co., 233 F. 424, 425, 147 C. C. A. 360. We find nothing in the cases cited and relied upon by the plaintiff which, on this record, constrain us to a different conclusion. Nor do we find any evidence of an estoppel. We treat this defence of unseasonable tender as open to the defendant, notwithstanding its letter of December 20.
The plaintiff excepted to the court’s refusal to rule that on all the evidence judgment must be for the plaintiff. The main question, therefore, before this court, is whether, under a proper construction of the contract, there was any substantial evidence to support the finding for. the defendant. We do not overlook the limitations upon this court arising under rules laid down in such eases as Law v. United States, 266 U. S. 494, 45 S. Ct. 175, 69 L. Ed. 401; Wear v. Imperial Glass Co., 224 F. 60, 139 C. C. A. 622; Dangberg Land Co. v. Day, 247 F. 477, 159 C. C. A. 531; White v. German Alliance Ins. Co., 103 F. 260, 43 C. C. A. 216; Gilbane v. Fidelity Co., 163 F. 673, 674, 90 C. C. A. 265; Ins. Co. v. Folsom, 18 Wall. 237, 21 L. Ed. 827; Cooper v. Omohundro, 19 Wall. 65, 69, 22 L. Ed. 47.
It is manifest that the finding below for the defendant must have been based on one of two theories:
(1) That the plaintiff had conclusively elected to perform its contract by allocating the cocoa on the Tuekanuck, and that the .defendant was not thereafter bound to accept cocoa from the warehouse.
(2) That the. tender of warehouse delivery on' December 18, 1920, was too late, even if otherwise permissible under the contract.
We think neither defense was, under a proper construction of the contract, sustained by any substantial evidence.
(1) There was no election. Plaintiff had, under the contract, a right to choose, within the contract time limit, either method of performance. Its stated intention of performance by allocation from the Tuekanuck (bad because of the quality of the cocoa) did not exhaust either the plaintiff’s right or its obligation to make warehouse delivery. The ease does not fall within the principle illustrated in the leading ease of Norrington v. Wright, 115 U. S. 188, 6 S. Ct. 12, 29 L. Ed. 366, and recently applied by this court in Burrows & Kenyon, Inc., v. Warren, decided December 7, 1925, 9 F.(2d) 1. Under this contract, title was to pass only by delivery in New York, subject to inspection of the .goods by the defendant’s brokers. The ease is therefore plainly distinguishable from the commercial contracts in which the declaration of a ship is a material provision. Compare The Manhattan (C. C. A.) 284 F. 310; Nat. Bank v. Lamboro (C. C. A.) 2 F.(2d) 23, 36 A. L. R. 509.
Defendant’s counsel concedes that if the plaintiff had made a defective tender of a July-September shipment from the Gold Coast, it would not thereby have been barred from performing by a subsequent July-September shipment from the Gold Coast. But if the declaration of a July-September shipment, bad because of honest mistake either as to the date of shipment, as to quantity or quality of the cargo, or for any other reason, left the seller at liberty, on discovering the error, to make another tender, that right must have been applicable, not merely to shipments from the Gold Coast, but to equivalent warehouse delivery. There would be neither logic nor business sense in holding that a defective designation of a Gold Coast shipment left it open to the seller to designate another Gold Coast shipment, but excluded an equivalent warehouse delivery.
The defendant’s counsel also invokes the familiar principle that “the practical interpretation of a contract by the parties to it for any considerable period of time before it comes to be the subject of controversy is deemed of great, if not controlling, influence” — citing Old Colony Trust Co. v. Omaha, 230 U. S. 100, 118, 33 S. Ct. 967, 972 (57 L. Ed. 1410), and other cases. The application of that rule to this record leads to a result the reverse of that for which defendant contends; for, as indicated in the statement above, the defendant, many days after the plaintiff had declared its intention of making delivery from the. Tuckanuek, insisted that, because of the delay, it should have warehouse delivery, and, indeed, never, until after the plaintiff had refused the defendant’s compromise offer for the cocoa on the Tuckanuek, suggested that the contract was not still valid and outstanding. Otherwise stated, both defendant and plaintiff plainly construed the contract as we now construe it.
Without further elaboration, we think it clear that there was no election. Compare Watson v. Watson, 128 Mass. 152; Friederichsen v. Renard, 247 U. S. 207, 213, 38 S. Ct. 450, 62 L. Ed. 1075; Wm. W. Bierce, Ltd., v. Hutchins, 205 U. S. 340, 347, 27 S. Ct. 524, 51 L. Ed. 828; Snow v. Alley, 156 Mass. 193, 30 N. E. 691; Tetley v. Shand, 20 W. R. 206; Mill Dam Foundry v. Hovey, 21 Pick. (Mass.) 417; Borrowman v. Free, L. R. 4 Q. B. D. 500; Ashmore v. C. S. Cox Co. (1889) L. R. 1 Q. B. D. 436; Mann v. Eastern, etc., Co., 244 Mass. 100, 138 N. E. 244.
(2) Was the tender of warehouse delivery on December 18 too late? In this connection, it is neeesary to consider the admissibility of the evidence as to custom. We think the court erred in admitting such evidence in order to control the time within which plaintiff was entitled to make equivalent warehouse delivery. The contract was, in our view, plain on its face. It falls within the principles stated by Mr. Justice Story in the Reeside Case, 2 Sumn. 567, Fed. Cas. No. 11657: “A written and express contract cannot be controlled, or varied, or contradicted by a usage or custom.”
Besides, even if custom were arguably admissible, the evidence on this record utterly failed to show any clear, definite, certain, and uniform custom or usage. On the contrary, the defendant’s witnesses were in hopeless confusion and disagreement as to what the alleged custom really was. We need not review the evidence in detail. It is enough to observe that the alleged custom was so little understood and observed during a period of three years after the making of the contract now in question that, as appeared from the testimony of the defendant’s own witness Barrett, the Cocoa Merchants’ Association then undertook to straighten it out by agreeing on a written rule fixing a time limit for such “equivalent warehouse deliveries.” There was therefore no evidence properly before the court warranting a finding that the warehouse delivery, tendered promptly after the arrival of the Tuckanuek and the rejection of the cocoa thereon, was too late under the terms of the contract.
The plaintiff’s offer of evidence that the steamer Schoodie, taking a July-September shipment, did not arrive until three weeks after the Tuckanuek, was, under the construction we give to the contract, properly rejected as immaterial; for it is undisputed that the shipment by the Tuckanuek was within the terms of the contract, and that the tender from warehouse followed promptly on the defendant’s proper rejection of the Tuekanuck cargo. There was, therefore, no occasion to show a later arrival of a Gold Coast shipment.
The result is that the tender of warehouse delivery on December 18 was strictly in accord with the terms of the contract. It follows that it was error for the court to refuse to rule, as the plaintiff requested, that on all the evidence the plaintiff was entitled to recover the difference between the contract price of the cocoa and the market price on December 18, 1920, with interest from that date. See Irvine v. Angus, 93 F. 629, 35 C. C. A. 501; Bayne v. United States, 195 F. 236, 115 C. C. A. 188.
The judgment of the District Court is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion. The plaintiff in error recovers costs in this court.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
sc_issuearea
|
I
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states.
SOUTH PRAIRIE CONSTRUCTION CO. v. LOCAL NO. 627, INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO, et al.
No. 75-1097.
Decided May 24, 1976
Together with No. 75-1243, National Labor Relations Board v. Local No. 627, International Union of Operating Engineers, AFL-CIO, et al., also on petition for writ of certiorari to the same court.
Per Curiam.
Respondent Union filed a complaint in 1972 with the National Labor Relations Board alleging that South Prairie Construction Co. (South Prairie) and Peter Kiewit Sons’ Co. (Kiewit) had violated §§ 8 (a)(5) and (1) of the National Labor Relations Act, as amended, 61 Stat. 140, 29 U. S. C. §§ 158 (a)(5) and (1), by their continuing refusal to apply to South Prairie’s employees the collective-bargaining agreement in effect between the Union and Kiewit. The Union first asserted that since South Prairie and Kiewit are wholly owned subsidiaries of Peter Kiewit Sons’, Inc. (PKS), and engage in highway construction in Oklahoma, they constituted a single “employer” within the Act for purposes of applying the Union-Kiewit agreement. That being the case, the Union contended, South Prairie was obligated to recognize the Union as the representative of a bargaining unit drawn to include South Prairie’s employees. Disagreeing with the Administrative Law Judge on the first part of the Union’s claim, the Board concluded that South Prairie and Kiewit were in fact separate employers, and dismissed the complaint.
On the Union’s petition for review, the Court of Appeals for the District of Columbia Circuit canvassed the facts of record. It discussed, inter alia, the manner in which Kiewit, South Prairie, and PKS functioned as entities; PKS’ decision to activate South Prairie, its nonunion subsidiary, in a State where historically Kiewit had been the only union highway contractor among the latter’s Oklahoma competitors; and the two firms’ competitive bidding patterns on Oklahoma highway jobs after South Prairie was activated in 1972 to do business there.
Stating that it was applying the criteria recognized by this Court in Radio Union v. Broadcast Service, 380 U. S. 255 (1965), the Court of Appeals disagreed with the Board and decided that on the facts presented Kiewit and South Prairie were a single “employer.” It reasoned that in addition to the “presence of a very substantial qualitative degree of centralized control of labor relations,” the facts “evidence a substantial qualitative degree of interrelation of operations and common management — one that we are satisfied would not be found in the arm’s length relationship existing among uninte-grated companies.” 171 U. S. App. D. C. 102, 108, 109, 518 F. 2d 1040, 1046, 1047 (1975). The Board’s finding to the contrary was, therefore, in the view of the Court of Appeals “not warranted by the record.” Id., at 109, 518 F. 2d, at 1047.
Having set aside this portion of the Board’s determination, however, the Court of Appeals went on to reach and decide the second question presented by the Union’s complaint which had not been passed upon by the Board. The court decided that the employees of Kiewit and South Prairie constituted the appropriate unit under § 9 of the Act for purposes of collective bargaining. On the basis of this conclusion, it decided that these firms had committed an unfair labor practice by refusing “to recognize Local 627 as the bargaining representative of South Prairie’s employees or to extend the terms of the Union’s agreement with Kiewit to South Prairie’s employees.” Id., at 112, 518 F. 2d, at 1050. The case was remanded to the Board for “issuance and enforcement of an appropriate order against . . . Kiewit and South Prairie.” Ibid.
Petitioners South Prairie and the Board in their petitions here contest the action of the Court of Appeals in setting aside the Board’s determination on the “employer” question. But their principal contention is that the Court of Appeals invaded the statutory province of the Board when it proceeded to decide the § 9 “unit” question in the first instance, instead of remanding the case to the Board so that it could make the initial determination. While we refrain from disturbing the holding of the Court of Appeals that Kiewit and South Prairie are an “employer,” see NLRB v. Pittsburgh S. S. Co., 340 U. S. 498 (1951), we agree with petitioners’ principal contention.
The Court of Appeals was evidently of the view that since the Board dismissed the complaint it had necessarily decided that the employees of Kiewit and South Prairie would not constitute an appropriate bargaining unit under § 9. But while the Board’s opinion referred to its cases in this area and included a finding that “the employees of each constitute a separate bargaining unit,” 206 N. L. R. B. 562, 563 (1973), its brief discussion was set in the context of what it obviously considered was the dispositive issue, namely, whether the two firms were separate employers. We think a fair reading of its decision discloses that it did not address the “unit” question on the basis of any assumption, arguendo, that it might have been wrong on the threshold “employer” issue.
Section 9 (b) of the Act, 29 U. S. C. § 159 (b), directs the Board to
“decide in each case whether, in order to assure to employees the fullest freedom in exercising the rights guaranteed by this Act, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof . . .
The Board's cases hold that especially in the construction industry a determination that two affiliated firms constitute a single employer “does not necessarily establish that an employerwide unit is appropriate, as the factors which are relevant in identifying the breadth of an employer’s operation are not conclusively determinative of the scope of an appropriate unit.” Central New Mexico Chapter, National Electrical Contractors Assn., Inc., 152 N. L. R. B. 1604, 1608 (1965). See also B & B Industries, Inc., 162 N. L. R. B. 832 (1967). Cf. Gerace Constr., Inc., 193 N. L. R. B. 645 (1971).
The Court of Appeals reasoned that the Board’s principal case on the “unit” question, Central New Mexico Chapter, supra, was distinguishable because there the two affiliated construction firms were engaged in different types of contracting. It thought that this fact was critical to the Board’s conclusion in that case that the employees did not have the same “community of interest” for purposes of identifying an appropriate bargaining unit. Whether or not the Court of Appeals was correct in this reasoning, we think that for it to take upon itself the initial determination of this issue was “incompatible with the orderly function of the process of judicial review.” NLRB v. Metropolitan Ins. Co., 380 U. S. 438, 444 (1965). Since the selection of an appropriate bargaining unit lies largely within the discretion of the Board, whose decision, “if not final, is rarely to be disturbed,” Packard Motor Co. v. NLRB, 330 U. S. 485, 491 (1947), we think the function of the Court of Appeals ended when the Board’s error on the “employer” issue was “laid bare.” FPC v. Idaho Power Co., 344 U. S. 17, 20 (1952).
As this Court stated in NLRB v. Food Store Employees, 417 U. S. 1, 9 (1974):
“It is a guiding principle of administrative law, long recognized by this Court, that 'an administrative determination in which is imbedded a legal question open to judicial review does not impliedly foreclose the administrative agency, after its error has been corrected, from enforcing the legislative policy committed to its charge.' FCC v. Pottsville Broadcasting Co., 309 U. S. 134, 145 (1940).”
In foreclosing the Board from the opportunity to determine the appropriate bargaining unit under § 9, the Court of Appeals did not give “due observance [to] the distribution of authority made by Congress as between its power to regulate commerce and the reviewing power which it has conferred upon the courts under Article III of the Constitution.” FCC v. Pottsville Broadcasting Co., 309 U. S. 134, 141 (1940).
The petitions for certiorari are accordingly granted, and that part of the judgment of the Court of Appeals which set aside the determination of the Board on the question of whether Kiewit and South Prairie were a single employer is affirmed. That part of the judgment which held that the two firms’ employees constituted the appropriate bargaining unit for purposes of the Act, and which directed the Board to issue an enforcement order, is vacated, and the case is remanded to the Court of Appeals for proceedings consistent with this opinion.
It is so ordered.
The relevant portions of the Act, §§ 8 and 9, 29 U. S. C. §§ 158 and 159, provide in part:
“Sec. 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;
“(5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 9 (a).
“Sec. 9 (a) Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit....
“(b) The Board shall decide in each case whether, in order to assure to employees the fullest freedom in exercising the rights guaranteed by this Act, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof . . . .”
On the facts of this ease, the Union first had to establish that Kiewit and South Prairie were a single “employer.” If it succeeded, the existence of a violation under § 8 (a) (5) would then turn on whether under § 9 the “employer unit” was the “appropriate” one for collective-bargaining purposes.
We need not for present purposes set out the facts as Summarized at length in the Court of Appeals’ opinion. See 171 U. S. App. D. C. 102, 104r-107, 518 F. 2d 1040, 1042-1045 (1975).
“[I]n determining the relevant employer, the Board considers several nominally separate business entities to be a single employer where they comprise an integrated enterprise, N. L. R. B. Twenty-first Arm. Rep. 14r-15 (1956). The controlling criteria, Set out and elaborated in Board decisions, are interrelation of operations, common management, centralized control of labor relations and common ownership.” 380 U. S., at 256.
See n. 1, supra.
“Were we called upon to pass on the Board's conclusions in the first instance or to make an independent' review of the review by the Court of Appeals, we might well support the Board’s conclusion and reject that of the court below. But Congress has charged the Courts of Appeals and not this Court with the normal and primary responsibility for granting or denying enforcement of Labor Board orders.” 340 U. S., at 502.
The Administrative Law Judge’s decision in favor of the Union included a conclusion that the pertinent employees of Kiewit and South Prairie constituted an appropriate unit under § 9 (b). But that conclusion was, of course, preceded by the determination that the two firms were a single employer. In disagreeing on the “employer” issue, the Board was not compelled to reach the § 9 (b) question in order to dismiss the complaint.
Compare Radio Union v. Broadcast Service, 380 U. S. 255 (1965), with Packard Motor Co. v. NLRB, 330 U. S. 485, 491-492 (1947).
Question: What is the issue area of the decision?
A. Criminal Procedure
B. Civil Rights
C. First Amendment
D. Due Process
E. Privacy
F. Attorneys
G. Unions
H. Economic Activity
I. Judicial Power
J. Federalism
K. Interstate Relations
L. Federal Taxation
M. Miscellaneous
N. Private Action
Answer:
|
songer_r_bus
|
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 "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.
Norman Quincy WRIGHT, Plaintiff-Appellant, v. Nevil C. TRAMMELL, Jr.; Charles M. Traughber; Linda K. Miller; Donna Blackburn; and Ed Hoover, Defendants-Appellees.
No. 85-6053.
United States Court of Appeals, Sixth Circuit.
Submitted Jan. 22, 1987.
Decided Feb. 9, 1987.
Norman Quincy Wright, pro se.
Gary D. Housepian, State of Tenn. Atty. Gen. Office, Nashville, Tenn., for defendants-appellees.
Before ENGEL and BOGGS, Circuit Judges, and HILLMAN, District Judge.
The Honorable Douglas W. Hillman, Chief Judge, U.S. District Court for the Western District of Michigan, sitting by designation.
PER CURIAM.
The pro se appellant, Norman Quincy Wright, is appealing the October 23, 1985, order of the district court dismissing his civil rights case. He is an inmate at Nashville Community Service Center, Tennessee.
The case has been referred to a panel of the Court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon consideration of the briefs, documents filed on appeal, and the record, the panel agrees unanimously that oral argument is not needed, the parties having adequately briefed and developed the issues. Rule 34(a), Federal Rules of Appellate Procedure.
On June 4, 1985, the appellant appeared before the Tennessee Parole Board. He was informed by appellee parole board member, Charles M. Traughber, that he would not have an opportunity for a court ordered release. The appellant alleges due process violations in that he was not allowed to submit evidence in support of his release, a parole board quorum was not present, and he was not presented with a written statement of the reasons for his parole denial. The appellant has brought suit pursuant to 42 U.S.C. § 1983 against all parole board members asking for a declaratory judgment, injunctive relief and damages.
The district court held that due process was not required in connection with a parole board determination of whether or not to grant parole, to a prisoner otherwise lawfully detained. Sharp v. Leonard, 611 F.2d 136 (6th Cir.1979); Wagner v. Gilligan, 609 F.2d 866 (6th Cir.1979). In addition, the expectancy of release upon parole is not a constitutionally protected interest where the state holds out “no more than a mere hope that the benefit will be obtained.” Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 11, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979).
This Court held in Mayes v. Trammell, 751 F.2d 175 (6th Cir.1984), that the Tennessee parole scheme, particularly Rule 1100-1-1-.06 of the Rules of Tennessee Board of Parole, creates a liberty entitlement protected by due process. Id. at 179. At the time of the Mayes decision, Rule 1100-1-1-.06 provided in part as follows:
The Board operates under the presumption that each resident who is eligible for parole is a worthy candidate and thus the Board presumes that he unll be released on parole when he is first eligible. Before granting or denying parole, the Board shall apply the following factors to each eligible resident to assist it in determining whether such resident will live and remain at liberty without violating the law or the conditions of his parole: (emphasis added)
The rule has since been amended to read in part as follows:
Before granting or denying parole, the Board shall apply the following factors to each eligible resident to assist it in determining whether such resident will live and remain at liberty without violating the law or the conditions of his parole:
The amended rule was effective on April 10, 1985, and thus pertained to the appellant at his June 4, 1985, parole hearing. The amended rule eliminated the words from the former rule which granted a constitutionally-protected liberty interest.
Accordingly, it is ORDERED that the final judgment of the district court is affirmed. Rule 9(d)(3), Rules of the Sixth Circuit.
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:
|
sc_respondentstate
|
45
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state associated with the respondent. If the respondent is a federal court or federal judge, note the "state" as the United States. The same holds for other federal employees or officials.
LEMON et al. v. KURTZMAN, SUPERINTENDENT OF PUBLIC INSTRUCTION OF PENNSYLVANIA, et al.
No. 89.
Argued March 3, 1971
Decided June 28, 1971
Burgee, C. J., delivered the opinion of the Court, in which Black, Douglas, HarlaN, Stewart, Marshall (as to Nos. 569 and 570), and Blackmun, JJ., joined. Douglas, J., filed a concurring opinion, post, p. 625, in which Black, J., joined, and in which Marshall, J. (as to Nos. 569 and 570), joined, filing a separate statement, post, p. 642. BreNNan, J., filed a concurring opinion, post, p. 642. White, J., filed an opinion concurring in the judgment in No. 89 and dissenting in Nos. 569 and 570, post, p. 661. Marshall, J., took no part in the consideration or decision of No. 89.
Henry W. Sawyer III argued the cause and filed briefs for appellants in No. 89. Edward Bennett Williams argued the cause for appellants in No. 569. With him on the brief were Jeremiah C. Collins and Richard P. McMahon. Charles F. Cottam argued the cause for appellants in No. 570. With him on the brief were Herbert F. DeSimone, Attorney General of Rhode Island, and W. Slater Allen, Jr., Assistant Attorney General.
J. Shane Creamer argued the cause for appellees Kurtz-man et al. in No. 89. On the brief were Fred Speaker, Attorney General of Pennsylvania, David W. Rutstein, Deputy Attorney General, and Edward Friedman. William B. Ball argued the cause for appellee schools in No. 89. With him on the brief were Joseph C. Shelly, James E. Gallagher, Jr., C. Clark Hodgson, Jr., Samuel Rappaport, Donald A. Semisch, and William D. Valente. Henry T. Reath filed a brief for appellee Pennsylvania Association of Independent Schools in No. 89. Leo Pfeffer and Milton Stanzler argued the cause for appellees in Nos. 569 and 570. With them on the brief were Harold E. Adams, Jr., and Allan M. Shine.
Briefs of amid curiae urging reversal in No. 89 were filed by Mr. Pfeffer for the American Association of School Administrators et al.; by Henry C. Clausen for United Americans for Public Schools; by Samuel Rabinove, Arnold Forster, George Soil, Joseph B. Robi-son, Paul Hartman, and Sol Rabkin for the American Jewish Committee et al.; by Franklin C. Salisbury for Protestants and Other Americans United for Separation of Church and State; by J. Harold Flannery for the Center for Law and Education, Harvard University, et al.; and by Peter L. Costas and Paul W. Orth for the Connecticut State Conference of Branches of the NAACP et. al.
Briefs of amici curiae urging affirmance in No. 89 were filed by Acting Solicitor General Friedman, Assistant Attorney General Ruckelshaus, Robert V. Zener, and Donald L. Horowitz for the United States; by Paul W-Brown, Attorney General of Ohio, pro se, and Charles S. Lopeman, First Assistant Attorney General, for the Attorney General of Ohio et al.; by Levy Anderson for the City óf Philadelphia; by Robert M. Landis for the School District of Philadelphia; by the City of Pittsburgh; by Bruce W. Kauffman, John M. Elliott, and Edward F. Mannino for the City of Erie; by James A. Kelly for the School District of the City of Scranton; by Charles M. Whelan, William R. Consedine, Alfred L. Scanlan, Arthur E. Sutherland, and Harmon Burns, Jr., for the National Catholic Educational Association et al.; by Ethan A. Hitchcock and I. Ñ. P. Stokes for the National Association of Independent Schools, Inc.; by Jerome H. Gerber for the Pennsylvania State AFL-CIO; by Thomas J. Ford, Edward J. Walsh, Jr., and Theodore D. Hoffmann for the Long Island Conference.of Religious Elementary and Secondary School Administrators; by Nathan Lewin for the National Jewish Commission on Law and Public Affairs; by Stuart Hubbell for Citizens for Educational Freedom; and by Edward M. Koza, Walter L. Hill, Jr., Thomas B. Balaban, and William J. Pinkowski for the Polish American Congress, Inc., et al.
The National Association of Laymen filed a brief as amicus curiae in No. 89.
Briefs of amici curiae urging reversal in Nos. 569 and 570 were filed by Acting Solicitor.General Friedman, Assistant Attorney General Gray, and Messrs. Zener and Horowitz for the United States, and by Jesse H. Choper and Messrs. Consedine, Whelan, and Burns for the National Catholic Educational Association et al.
Briefs of amici curiae urging affirmance in Nos. 569 and 570 were filed by Messrs. Rabinove, Robison, Forster, and Rabkin for the American Jewish Committee et al.; by Mr. Salisbury for Protestants and Other Americans United for Separation of Church and State; by Mr. Flannery for the Center for Law and Education, Harvard University, et al.; and by Messrs. Costas and. Orth for the Connecticut State Conference of Branches of the NAACP et al.
Together with No. 569, Earley et al. v. DiCenso et al., and No. 570, Robinson, Commissioner of Education of Rhode Island, et al. v. DiCenso et al., on appeal from the United States District Court for the District of Rhode Island.
Me. Chief Justice Burger
delivered the opinion of the Court.
These two appeals raise questions as to Pennsylvania and Rhode Island statutes providing state aid to church-related elementary and secondary schools. Both statutes are challenged as violative of the Establishment and Free Exercise Clauses of the First Amendment and the Due Process Clause of the Fourteenth Amendment.
Pennsylvania has adopted a statutory program that provides financial support to nonpublic elementary and secondary schools by way of reimbursement for the cost of teachers’ salaries, textbooks, and instructional materials in specified secular subjects. Rhode Island has adopted a statute under which the State pays directly to teachers in nonpublic elementary schools a supplement of 15% of their annual salary. Under each statute state aid has been given to church-related educational institutions. We hold that both statutes are unconstitutional.
I
The Rhode Island Statute
The Rhode Island Salary Supplement Act was enacted in 1969. It rests on the legislative finding that the quality of education available in nonpublic elementary schools has been jeopardized by the rapidly rising salaries needed to attract competent and dedicated teachers. The Act authorizes state officials to supple-mént the salaries of teachers of secular subjects in nonpublic elementary schools by paying directly to a teacher an amount not in exc'ess of 15% of his current annual salary. As supplemented, however, a nonpublic school teacher’s salary cannot exceed the maximum paid to teachers in the State’s public schools, and the recipient must be certified by the state board of education in substantially the same manner as public school teachers.
In order to be eligible for the Rhode Island salary supplement, the recipient must teach in a nonpublic school at which the average per-pupil expenditure on secular education is less than the average in the State’s public schools during a specified period. Appellant State Commissioner of Education also requires eligible schools to submit financial data. If this information indicates a per-pupil expenditure in excess of the statutory limitation, the records of the school in question must be examined in order to assess how much of the expenditure is attributable to secular education and how much to religious activity.
The Act also requires that teachers eligible for salary supplements must teach only those subjects that are offered in the State’s public schools. They must use “only teaching materials which are used in the public schools.” Finally, any teacher applying for a salary supplement must first agree in writing “not to teach a course in religion for so long as or during such time a"s he or she receives any salary supplements” under the Act;
Appellees are citizens and taxpayers of Rhode Island. They brought this suit to have the Rhode Island Salary Supplement Act declared unconstitutional and its operation enjoined on the ground that it violates the Establishment and Free Exercise Clauses of the First Amendment. Appellants are state officials charged with administration of the Act, teachers eligible for salary supplements under the Act, and parents of children in church-related elementary schools whose teachers would receive state salary assistance.
A three-judge federal court was convened pursuant to 28 U. S. C. §§ 2281, 2284. It found that Rhode Island’s nonpublic elementary schools accommodated approximately 25% of the State’s pupils. About 95% of these pupils attended schools affiliated with the Roman Catholic church. To date some 250 teachers have applied for benefits under the Act. All of them are employed by Roman Catholic schools.
The court held a hearing at which extensive evidence was introduced concerning the nature of the secular instruction offered in the Roman Catholic schools whose teachers would be eligible for salary assistance under the Act. Although the court found that concern for religious values does not necessarily affect the content of secular subjects, it also found that the parochial school system was “an integral part of the religious mission of the Catholic Church.”
The District Court concluded that the Act violated the Establishment Clause, holding that it fostered “excessive entanglement” between government and religion. In addition two judges thought that the Act had the impermissible effect of giving “significant aid to a religious enterprise.” 316 F. Supp. 112. We affirm,.
The Pennsylvania Statute
Pennsylvania has adopted a program that has some but not all of the features of the Rhode Island program. The Pennsylvania Nonpublic Elementary and Secondary Education Act was passed in 1968 in response to a crisis that the Pennsylvania Legislature found existed in the State’s nonpublic schools due to rapidly rising costs. The statute affirmatively reflects the legislative conclusion that the State’s educational goals could appropriately be fulfilled by government support of “those purely secular educational objectives achieved through nonpublic education.....”
The statute authorizes appellee state Superintendent of Public Instruction to “purchase” specified “secular educational services” from nonpublic schools. Under the “contracts” authorized by the statute, the State directly reimburses nonpublic schools solely for their actual expenditures for teachers’ salaries, textbooks, and instructional materials. A school seeking reimbursement must-maintain prescribed accounting procedures that identify the “separate” cost of the “secular educational service.” These accounts are subject to state audit. The funds for this program were originally derived from a new tax on horse and harness racing, but the Act is now financed by a portion of the state tax on cigarettes.
There are several significant statutory restrictions on state aid. Reimbursement is limited to courses “presented in the curricula of the public schools.” It is further limited “solely” to courses in the following “secular” subjects: mathematics, modern foreign languages, physical science, and physical education. Textbooks and instructional materials included in the program must be approved by the state Superintendent of Public Instruction. Finally, the statute prohibits reimbursement for any course that contains “any subject matter expressing religious teaching, or the morals or forms of worship of any sect.”
The Act went into effect on July 1, 1968, and the first reimbursement payments to schools were made on September 2, 1969. It appears that some $5 million has been expended annually under the Act. The State has now entered into contracts with some 1,181 nonpublic elementary and secondary schools with a student population of some 636,215 pupils — more than 20% of the total number of students in the State. More than 96% of these pupils attend church-related schools, and most of these schools are affiliated with the Roman Catholic church.
Appellants brought this action in the District Court to challenge the constitutionality of the Pennsylvania statute. The organizational plaintiffs-appellants are associations of persons resident in Pennsylvania declaring belief in the-separation of church and state; individual plaintiffs-appellants are citizens and taxpayers of Pennsylvania. Appellant Lemon, in addition to being a citizen and a taxpayer, is a parent of a child attending public school in Pennsylvania. Lemon also alleges that he purchased, a ticket at a race track and thus had paid the specific tax that supports the expenditures under the Act. Appellees are state officials who have the responsibility for administering the Act. In addition seven church-related schools are defendants-appellees.
A three-judge federal court was convened pursuant to 28 U. S. C. §§ 2281, 2284. The District Court held that the individual plaintiffs-appellants had standing to challenge the Act, 310 F. Supp. 42. The organizational plaintiffs-appellants were denied standing under Flast v. Cohen, 392 U. S. 83, 99, 101 (1968).
The court granted appellees’ motion to dismiss the complaint for failure to state a claim for relief. 310 F. Supp. 35. It held that the Act violated neither the Establishment nor the Free Exercise Clause, Chief Judge Hastie dissenting. We reverse.
II
In Everson v. Board of Education, 330 U. S. 1 (1947), this Court-upheld a state statute that reimbursed the parents of parochial school children for bus transportation expenses. There Mr. Justice Black, writing for the majority, suggested that the decision carried to “the verge” of forbidden territory under the Religion Clauses. Id,., at 16. Candor compels acknowledgment, moreover, that we can only dimly perceive the lines of demarcation in this extraordinarily sensitive area of constitutional law.
The language of the Religion Clauses of the First Amendment is at best opaque, particularly when compared with other portions of the Amendment. Its authors did not simply prohibit the establishment of a state church or a state religion, an area history shows they regarded as very important and fraught with great dangers. Instead they commanded that there should be “no law respecting an establishment of religion.” A law may be one “respecting” the forbidden objective while falling short of its total realization. A law “respecting” the proscribed result, that is, the establishment of religion, is not always easily identifiable as one viola-tive of the Clause. A given law might not establish a state religion but nevertheless be one “respecting” that end in the sense of being a step that could lead to such establishment and hence offend the First Amendment.
In the absence of precisely stated constitutional prohibitions, we must draw lines with reference to the three main evils against which the Establishment Clause was intended to afford protection: “sponsorship, financial support, and active involvement of the sovereign in religious activity.” Walz v. Tax Commission, 397 U. S. 664, 668 (1970).
Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years. Three such tests may be gleaned from our cases. First; the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, Board of Education v. Allen, 392 U. S. 236, 243 (1968); finally, the statute must not foster “an excessive government entanglement with religion.” Walz, supra, at 674.
Inquiry into the legislative purposes of the Pennsylvania and Rhode Island statutes affords no basis for a conclusion that the legislative intent was to advance religion. On the contrary, the statutes themselves clearly state that they are intended to enhance the quality of the secular education in all schools covered by the compulsory attendance laws. There is no reason' to believe the legislatures meant anything else. A State always has a legitimate concern for maintaining minimum standards in all schools it allows to operate. As in Allen, we find nothing here that undermines the stated legislative intent ; it must therefore be accorded appropriate deference.
In Allen the Court acknowledged that secular and religious teachings were not necessarily so intertwined that secular textbooks furnished to students by the State were in fact instrumental in the teaching of • religion. 392 U. S., at 248. The legislatures of Rhode Island and Pennsylvania have concluded that secular and religious education are identifiable and separable. In the abstract we have no quarrel with this conclusion.
The two legislatures, however, have also recognized that church-related elementary and secondary schools have a significant religious mission and that a substantial portion of their activities is religiously oriented. They have therefore sought to create statutory restrictions designed to guarantee the separation between secular and religious educational functions and to ensure that State financial aid supports only the former..All these provisions are precautions taken in candid recognition that these programs approached, even if they did not intrude upon, the forbidden areas under the Religion Clauses. We need not decide whether these legislative precautions restrict the principal or primary effect of the programs to the point where they do not offend the Religion Clauses, for we conclude that the cumulative impact of the entire relationship arising under the statutes in each State involves excessive entanglement between government and religion.
Ill
In Walz v. Tax Commission, supra, the Court upheld state tax exemptions for real property owned by religious organizations and used for religious worship. That holding, however, tended to confine rather than enlarge the area of permissible state involvement with religious institutions by calling for close scrutiny of the degree of entanglement involved in the relationship. The obj ective is to prevent, as far as possible, the intrusion of either into the precincts of the other.
Our prior holdings do not call for total separation between church and state; total separation is not possible in an absolute sense. Some relationship between government and religious organizations is inevitable. Zorach v. Clauson, 343 U. S. 306, 312 (1952); Sherbert v. Verner, 374 U. S. 398, 422 (1963) (Harlan, J., dissenting). Fire inspections, building and zoning regulations, and state requirements under compulsory school-attendance laws are examples of necessary and permissible contacts. Indeed, under the statutory exemption before us in Walz, the State had a continuing burden, to ascertain that the exempt property was in fact being used for religious worship. Judicial caveats against entanglement must recognize that the line of separation, far from being a “wall,” is a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship.
This is not to suggest, however, that we are to engage in a legalistic minuet in which precise rules and forms must govern. A true minuet is a matter of pure form and style, the observance of which is itself the substantive end. Here we examine the form of the relationship for the light that it casts on the substance.
In order to determine whether the government entanglement with religion is excessive, we must examine the character' and purposes of the institutions that are benefited, the nature of the aid that the State provides, and the resulting relationship between the government and the religious authority. Mr. Justice Harlan, in a separate opinion in Walz, supra, echoed the classic warning as to “programs, whose very nature is apt to entangle the state in details of administration....” Id., at 695. Here we find that both statutes foster an impermissible degree of entanglement.
(a) Rhode Island program
The District Court made extensive findings on the grave potential for excessive entanglement that inheres in the religious character and purpose of the Roman Catholic elementary schools of Rhode Island, to date the sole beneficiaries of the Rhode Island Salary Supplement Act.
The church schools involved in the program are located close to parish churches. This understandably permits convenient access for religous exercises since instruction in faith and morals is part of the total educational process. The school buildings contain identifying religious symbols such as crosses on the exterior and crucifixes, and religious paintings and statues either in the classrooms or hallways. Although only approximately 30 minutes a day are devoted to direct religious instruction, there are religiously oriented extracurricular activ> ties. Approximately two-thirds of the teachers in these schools are nuns of various religious orders. Their dedicated efforts provide an atmosphere in which religious instruction and religious vocations are natural and proper parts of life in such schools. Indeed, as the District Court found, the role of teaching nuns in enhancing the religious atmosphere has led the parochial school authorities to attempt to maintain a one-to-one ratio between nuns and lay teachers in all schools rather than to permit some to be staffed almost entirely by lay. teachers.
On the basis of these findings the District Court con-: eluded that the parochial schools constituted “an integral part of the religious mission of the Catholic Church'.” The various characteristics of the schools make them “a powerful vehicle for transmitting the Catholic faith to. the next generation.” This process of inculcating religious doctrine is, of course, enhanced by the impressionable age of the pupils, in primary schools particularly. In short, parochial schools involve substantial religious activity and purpose.
The substantial religious character of these church-related schools gives rise to entangling church-state relationships of the kind the Religion Clauses sought to avoid. Although the District Court found that concern for religious values did not inevitably or necessarily intrude into the content of secular subjects, the considerable religious activities of these schools led the legislature to provide for careful governmental controls and surveillance by state authorities in order to ensure that state aid supports only secular education.
The dangers and corresponding entanglements are enhanced by the particular form of aid that the Rhode Island Act provides. Our decisions from Everson to Allen have permitted the States to provide church-related schools with secular, neutral, or nonidéological services, facilities, or materials. Bus transportation, school lunches, public health services, and secular textbooks supplied in common to all students were not thought to offend the Establishment Clause. We note that the dissenters in Allen seemed chiefly concerned with the pragmatic difficulties involved in ensuring the truly secular content of the textbooks provided at state expense.
In Allen the Court refused to make assumptions, on a meager record, about the religious content of the textbooks that the State would be asked to provide. We cannot, however, refuse here to recognize that teachers have a substantially different ideological character from books. In terms of potential for involving some aspect of faith or morals in secular subjects, a textbook’s content is ascertainable, but a teacher’s handling of a subject is not. We cannot ignore the danger that a teacher under religious control and discipline-poses to the separation of the religious from the purely secular aspects of pre-college education. The conflict of functions inheres in the situation.
In our view the record shows these dangers are present, to a substantial degree. The Rhode Island Roman Catholic elementary schools are under the general supervision of the Bishop of Providence and his appointed representative, the Diocesan Superintendent of Schools. In most cases, each individual parish, however, assumes the ultimate financial responsibility for the school, with the parish priest authorizing the allocation of parish funds. With only two exceptions, school principals are nuns appointed either by the Superintendent or the Mother Provincial of the order whose members staff the school. By 1969 lay teachers constituted more than a third of all teachers in the parochial elementary schools, and their number is growing. They are first interviewed by the superintendent’s office and then by the school principal. The contracts are signed by the parish priest, and he retains some discretion in negotiating salary levels. Religious authority necessarily pervades the school system.
The schools are governed by the standards set forth in a “Handbook of School-Regulations,” which has the force of synodal law in the diocese. It emphasizes the role and importance of the teacher in parochial schools: “The prime factor for the success or the failure of the school is the spirit and personality, as well as the professional competency, of the teacher... The Handbook also states that; “Religious formation is not confined to formal courses; nor is it restricted to a single subject area.” Finally, the Handbook advises teachers to stimulate interest in religious vocations and missionary work. Given the mission of the church school, these instructions are consistent and logical.
Several teachers testified, however, that they did not inject religion into their secular classes. And the District Court found that religious values did not necessarily affect the content of the secular instruction; But what has been recounted suggests the potential if not actual hazards of this form of state aid. The teacher is employed by a religious organization, subject to the direction and discipline of religious authorities, and works in a system dedicated to rearing children in a particular faith. These controls are not lessened by the fact that most of the lay teachers are of the Catholic faith. Inevitably some of a teacher’s responsibilities hover on the border between secular and religious orientation.
We need not and do not assume that teachers in parochial schools will be guilty of bad faith or any conscious design to evade the limitations imposed by the statute and the First Amendment. We simply recognize that a dedicated religious person, teaching in a school affiliated with his or her faith and operated to inculcate its tenets, will inevitably experience great difficulty in remaining religiously neutral. Doctrines and faith are not inculcated or' advanced by neutrals. With' the best of intentions such a teacher would find it hard to make a total separation between secular teaching and religious doctrine. What would appear to some to be essential to good citizenship might well for others border on or constitute instruction in religion. Further difficulties are inherent in the combination of religious discipline and the possibility of disagreement between teacher and religious authorities over the meaning of the statutory restrictions.
We do not assume, however, that ■ parochial school teachers will be unsuccessful in their attempts to segregate their religious beliefs from their secular educational responsibilities. But the potential for impermissible fostering of religion is. present. The Rhode Island Legislature has not, and could not, provide state aid on the basis of a mere assumption that secular teachers under religious discipline can avoid conflicts. The State must be certain, given the Religion Clauses, that subsidized teachers do not inculcate religion- — indeed the State here has undertaken to do so. To ensure that no trespass occurs, the State has therefore carefully conditioned its aid with pervasive restrictions. An eligible recipient must teach only those courses that are offered in the public schools and use only those texts and materials that are found in the public schools. In addition the teacher must not engage in teaching any course in religion.
A comprehensive, discriminating, and continuing state surveillance will' inevitably be required to ensure that these restrictions are obeyed and the First Amendment otherwise respected. Unlike a book, a teacher cannot be inspected once so as to determine the extent and intent of his or her personal beliefs and subjective acceptance of the limitations imposed by the First Amendment. These prophylactic contacts will involve excessive and enduring entanglement between state and church.
There is another area of entanglement in the Rhode Island program that gives concern. The statute excludes teachers employed by nonpublic schools whose average per-pupil expenditures on secular education equal or exceed the comparable figures for public schools. In the event that the total expenditures of an otherwise eligible school exceed this norm, the program requires the govern-, ment to examine the school’s records in order to determine how much of the total expenditures is attributable to secular education and how much to religious activity. This kind of state inspection and evaluation of the religious content of a religious organization is fraught with the sort of entanglement that the Constitution forbids. It is a relationship pregnant with dangers of excessive government direction of church schools and hence of churches. The Court noted “the hazards of government supporting churches” in Walz v. Tax Commission, supra, at 675, and we cannot ignore here the danger that pervasive modern governmental power will ultimately intrude on religion and thus conflict with the Religion Clauses.
(b) Pennsylvania program
The Pennsylvania statute also provides state aid -to church-related schools for teachers’ salaries. The complaint describes an educational system that is very similar to the one existing in Rhode Island. According to the allegations, the church-related elementary and secondary schools are controlled by religious organizations, have the purpose of propagating and promoting a particular religious faith, and conduct their operations to fulfill that purpose. Since this complaint was dismissed for failure to state a claim for relief, we must accept these allegations as true for purposes of our review.
As we. noted earlier, the very restrictions and surveillance necessary to ensure that teachers play a strictly nonideological role give rise to entanglements between church and state. The Pennsylvania statute, like that of Rhode Island, fosters this kind of relationship. Reimbursement is not only limited to courses offered in the public schools and materials approved by state officials, but the statute excludes “any subject matter expressing religious teaching, or the morals or forms of worship of any sect.” In addition, schools seeking reimbursement must maintain accounting procedures that require the State to establish the cost of the secular as distinguished from the religious instruction.
The Pennsylvania statute, moreover, has the further defect of providing state financial aid directly to the church-related school. This factor distinguishes both Everson and Allen, for in both those cases the Court was careful to point out that state aid was provided to the student and his parents — not to the church-related school. Board of Education v. Allen, supra, at 243-244; Everson v. Board of Education, supra, at 18. In Walz v. Tax Commission, supra, at 675, the Court warned of the dangers of direct payments to religious organizations:
“Obviously a direct money subsidy would be a relationship pregnant with involvement and, as with most governmental grant programs, could encompass, sustained and detailed administrative relationships for enforcement of statutory or administrative standards....”
The history of government grants of a continuing cash subsidy indicates that such programs have' almost always been accompanied by varying measures of control and surveillance. The government cash grants before us now provide no basis for predicting that comprehensive measures of surveillance and controls will not follow,. In particular the government’s post-audit.power to inspect arid evaluate a church-related school’s financial records and to determine which expenditures are religious arid which are secular creates an intimate and continuing relationship between church and state.
IV
A broader base of entanglement of yet a different character is presented by the divisive political potential of these state programs. In a community where such a large number of pupils are served by church-related schools, it can be assumed that state assistance will entail considerable political activity. Partisans of parochial schools, understandably concerned with rising costs and sincerely dedicated to both the religious and secular educational missions of their schools, will inevitably champion this cause and promote political action to achieve their goals. Those who oppose state aid, whether for constitutional, religious, or fiscal reasons, will inevitably respond and employ all of the usual political campaign techniques to prevail. Candidates will be forced to declare and voters to choose. It would be unrealistic to ignore the fact that many people confronted with issues of this kind will find their votes aligned with their faith.
Ordinarily political debate and division, however vigorous or even partisan, are normal and healthy manifestations of our democratic system of government, but political division along religious lines was one of. tlie principal evils against which- the First Amendment was intended to protect. Freund, Comment, Public Aid to Parochial Schools, 82 Harv. L. Rev. 1680, 1692 (1969). The potential divisiveness of such conflict is a threat tó the normal political process. Walz v. Tax Commission, supra, at 695 (separate opinion of Harlan,- J.). See also Board of Education v. Allen, 392 U. S., at 249 (Harlan, J., concurring); Abington School District v. Schempp, 374 U. S. 203, 307 (1963) (Goldberg, J., concurring). To have States or Communities divide on-the issues presented • by state aid to parochial schools would' tend, to eonfuse.- and obscure other issues of great urgency. We have an expanding array of vexing issues, local and national, domestic and international, to debate and divide on. It conflicts with our whole history and tradition to permit questions of the Religion Clauses to assume such importance in our legislatures and in opr elections that they could divert attention from the myriad issues and problems that confront every level of government. The highways of church and state relationships are not likely to be one-way streets, and the Constitution’s authors sought to protect religious worship from the pervasive power of government. The history of many countries attests to the hazards of religion’s intruding into the political arena or of political power intruding into the legitimate and free exercise of religious belief.
Of course, as the Court noted in Walz, “[a]dherents of particular faiths and individual churches frequently take strong positions on public issues.” Walz v. Tax Commission, supra, at 670. We could not expect otherwise, for religious values pervade the fabric of our national life. But in Walz we dealt with a status under state tax laws for the benefit of all religious groups. Here we are confronted with successive and very likely permanent annual appropriations that benefit relatively few religious groups. Political fragmentation and divisiveness on religious lines are thus likely to be intensified.
The potential for political divisiveness related to religious belief and practice is aggravated in these two statutory programs by the need for continuing annual appropriations and the likelihood of larger and larger demands as costs and populations grow. The Rhode Island District Court. found that the parochial school system’s “monumental and deepening financial crisis” would “inescapably” require larger annual appropriations subsidizing greater percentages of the salaries of lay teachers. Although no facts have been developed in this respect in the Pennsylvania case, it appears that such pressures for expanding aid have already required the state legislature to include a portion of the state revenues from cigarette taxes in the program.
Y
In Walz it was argued that a tax exemption for places of religious worship would prove to be the first step in an inevitable progression leading to the establishment of state churches and state religion. That claim could not stand up against more than 200 years of virtually universal practice imbedded in our colonial experience and continuing into the present.
The progression argument, however, is more persuasive here. We have no long history of state aid to church-related educational institutions comparable to 200 years of tax exemption for churches. Indeed, the state programs before us today represent something of an innovation. We have already noted that modern governmental programs have self-perpetuating and self-expanding propensities. These internal pressures are only enhanced when the schemes involve institutions whose legitimate needs are growing and whose interests have substantial political support. Nor can we fail to see that in constitutional adjudication some steps, which when taken were thought to approach “the verge,” have become the platform for yet further steps. A certain momentum develops in constitutional theory and it can be a “downhill thrust” easily set in motion but difficult to retard or stop. Development by momentum. is not invariably bad; indeed, it is the way the common law has grown, but.it is a force to be recognized and reckoned with. The dangers are increased by the difficulty of perceiving in advance exactly where the “verge” of the precipice lies. As well as constituting an independent evil against which the Religion Clauses were intended to protect, involvement or entanglement between government and religion serves as a warning signal.
Finally, nothing we have said can be construed to disparage the role of church-related elementary and secondary schools in our national life. Their contribution has been and is enormous. Nor- do we ignore their economic plight in a period of rising costs and expanding need. Taxpayers generally have been spared vast sums by the maintenance of these educational institutions by religious organizations, largely by the gifts of faithful adherents.
The merit and benefits of these schools, however, are not the issue before us in these cases. The sole question is.whether state aid to these schools can be squared with the dictates of the Religion Clauses. Under our system the choice has been made that government is to be entirely excluded from the area of religious instruction and churches excluded from the affairs of government. The Constitution decrees that religion must be a private matter for the individual, the family, and the institutions of private choice, and that while some involvement and entanglement are inevitable, lines must be drawn.
The judgment of the Rhode Island District Court in No. 569 and No. 570 is affirmed. The judgment of the Pennsylvania District Court in No. 89 is reversed, and the case is remanded for further proceedings consistent with this opinion.
Mr. Justice Marshall took no part in the consideration or decision of No. 89.
R. I. Gen. Laws Ann. § 16-51-1 et seq. (Supp. 1970).
The District Court found only one instance in which this breakdown between religious and secular expenses was necessary. The school in question was not affiliated with the Catholic church. The court found it unlikely that such determinations would be necessary with respect to Catholic schools because their heavy reliance on nuns kept their wage costs substantially below those of the public schools.
Pa. Stat. Ann., Tit. 24, §§ 5601-5609 (Supp. 1971).
Latin, Hebrew, and classical Greek
Question: What state is associated with the respondent?
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_adminaction
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082
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
NATIONAL LABOR RELATIONS BOARD v. STOWE SPINNING CO. et al.
No. 46.
Argued December 9-10, 1948.
Decided February 28, 1949.
Mozart G. Ratner argued the cause for petitioner. With him on the brief were Solicitor General Perlman, David P. Findling and Ruth Weyand.
Paul C. Whitlock argued the cause and filed a brief for respondents.
Opinion of the Court by
Mr. Justice Murphy,
announced by Mr. Justice Rutledge.
The principal question for decision is whether the circumstances justified the finding of an unfair labor practice. A union organizer was refused the use of a company-owned meeting hall, and the union complained to the Board. After the usual proceedings, the Board found an unfair labor practice had been committed, 70 N. L. R. B. 614. The Court of Appeals refused to enforce the Board’s order, 165 F. 2d 609, and the case is here on certiorari. A subsidiary problem is the breadth of the order we are asked to enforce.
First. We are asked to overrule the Board’s finding that it is an unfair labor practice to discriminate against a union by denying it the only available meeting hall in a company town when the Board finds that the “sole purpose” of the discriminatory denial is “to impede, prevent, and discourage self-organization and collective bargaining by the [company’s] employees within the meaning of Section 7 of the Act.”
North Belmont, North Carolina, is the home of the four respondents’ mills. Interlocking directorates and family ties make the four equal one for our purposes. Each of the mills owns a large number of houses in North Belmont which are rented to employees. At a central location are a school, a theatre, and a building housing a post office, all owned or controlled by the mill owners. In sum, North Belmont is a company town.
In December, 1944, Harris, a union organizer, appeared in North Belmont and began the first organization drive since the textile strike ten years earlier. He decided to begin with employees of respondent Stowe. A meeting hall was needed for the activity, and the post office building was the only choice open to the organizer — he was refused permission to use the school building, and was told that the theatre could be used only for motion pictures. Most of the post office building was erected by respondents for the Patriotic Order Sons of America, a “patriotic secret order to which any male citizen of the United States of good moral character” can belong. Many of respondents’ employees are members; respondents check off monthly dues.
The Order’s president, Baxter Black, told Harris that the proposed meeting might be held in the hall on the payment of a janitor’s fee. Harris emphasized that he was willing to pay for the use of the hall. It is clear he was not asking special favors. Circulars were printed announcing the time and place of the meeting. Thereupon D. P. Stowe, for the four employer-owners, rescinded the permission granted — because Harris was a textile organizer. While the building seems to have been erected on the understanding that only the Patriotic Order might use it, that condition was never enforced until Harris’ union affiliation reached the ears of the owners. Until then the Order had handled its own affairs; Black had been sure that his permission was the final word on the matter.
The Board found that the refusal “to permit use of the hall . . . under the circumstances, constituted unlawful disparity of treatment and discrimination against the Union.” The union’s complaint also charged that several employees had been discharged because of union activity, and again the Board found for the union. The Court of Appeals enforced the reinstatement order, but refused enforcement of the order relating to the use of the hall. On the latter determination we granted certiorari to resolve an asserted conflict with prior decisions of this Court.
Company rules in Republic Aviation Corp. v. Labor Board and Labor Board v. Le Tourneau Company of Georgia, 324 U. S. 793, forbade union solicitation on company property. Under the circumstances the Board found that these rules offended the Act, and we upheld the Board. Stowe tells us that its case is far removed from the principles established in those decisions: the Board is now invading private property unconnected with the plant, for a private purpose, in the very teeth of the Fifth Amendment. “From Magna Charta on down,” we are warned, “the individual has been guaranteed against disseisin of his property.” A privately owned hall is different from the parking lot involved in Le Tourneau’s case.
In the sense suggested by Stowe, the Board finding goes further than those upheld previously by this Court. But in a larger sense it does not. We mention nothing new when we notice that union organization in a company town must depend, even more than usual, on a hands-off attitude on the part of management. And it is clear that one of management’s chief weapons, in attempting to stifle organization, is the denial of a place to meet. We cannot equate a company-dominated North Carolina mill town with the vast metropolitan centers where a number of halls are available within easy reach of prospective union members. We would be ignoring the obvious were we to hold that a common meeting place in a company town is not an important part of the company’s business. The question is of course one of degree. But isolated plants must draw labor, and an element in that drawing power is a community hall of some kind. In the background of discrimination found by the Board in this case, we cannot say that its conclusion should be upset. As we will point out below, the Board may weigh the employer’s expressed motive in determining the effect on employees of management’s otherwise equivocal act.
Stowe contends that its denial of facilities to the union was in accord with § 8 (2) of the Act, prohibiting employer interference with the formation or administration of a labor organization. One Board member agreed, citing a number of cases in which the Board had made a grant of company facilities the basis for unfair practice findings. But Stowe would have the cases hold more than they do. In each of them, granting such facilities to the union was only one facet in a pattern of domination found by the Board. The opinion of the Board in this case states that the “mere granting of a meeting place to a union by an employer under the conditions present here would not ... in and of itself constitute unlawful assistance to that union . . .• .” We have said that the Wagner Act “left to the Board the work of applying the Act’s general prohibitory language in the light of the infinite combinations of events which might be charged as violative of its terms.” Republic Aviation Corp. v. Labor Board, supra, 324 U. S. at 798. Sections 8(1) and 8 (2) of the Act would seem to run into each other in the situation before us, were we to forget that the Board is the agency which weighs the relevance of factual data. Presumptions such as those employed in the Peyton Packing Company case, 49 N. L. R. B. 828, at 843-844, may be important in cases like this one. While the Wagner Act does not ask punishment for evil intent, repeated acts of discrimination may establish a natural tendency to view justifications of other labor practices with some skepticism. Calculating a cumulative effect on employees is not a job for this Court. We cannot say that the Board was wrong as a matter of law in view of the setting. •
The philosophy expressed in the Fifth Amendment does not affect the view we take. The Wagner Act was adopted pursuant to the commerce clause, and certainly can authorize the Board to stop an unfair labor practice as important as the one we are considering. Respondents are unquestionably engaged in interstate commerce within the meaning of the Act. It is not “ ‘every interference with property rights that is within the Fifth Amendment .... Inconvenience, or even some dislocation of property rights, may be necessary in order to safeguard the right to collective bargaining.’ ” 324 U. S. at 802.
Accordingly, we think the Court of Appeals should have upheld the Board’s unfair practice charge.
Second. Stowe’s final contention, that the Board’s order is too broad, is more serious. Stowe is ordered to “cease and desist from . . . refusing to permit the use of the Patriotic Order Sons of America hall by its employees or employees of [the other respondents] or by Textile Workers Union of America, C. I. 0., or any other labor organization, for the purpose of self-organization or collective bargaining.” There are none of the usual qualifications on the face of the order;* one construction would permit unions to use the hall at all times, whatever the legitimate activity of the Patriotic Order.
We are asked to read the decree in its background, and reject what is called a strained construction. Implicit in the order, we are told, is the word “reasonable.” Perhaps this is true. The words of even a judicial decree must be read in their setting. But violation of the order brings the swift retribution of contempt, without the normal safeguards of a full-dress proceeding. Some notice of the prior proceeding must be taken in a contempt action — the very word “reasonable” invites a glance at what has gone before. But too great dependence on the former action places defendants under a restraint that makes the order itself a useless formality. Again the question is of degree.
In this case, however, the Board did not find that the very denial of the hall was an unfair labor practice. It found that the refusal by these respondents was unreasonable because the hall had been given freely to others, and because no other halls were available for organization. Now the Board asks us to enforce an order that simply does not mean what it says. We must require explicit language making it clear that the mere denial of facilities will not subject respondents to punishment for contempt. What the Board found, and all we are considering here, is discrimination. The decree should be modified to order respondents to refrain from any activity which would cause a union’s application to be treated on a different basis than those of others similarly situated.
We therefore direct the Court of Appeals to remand the case to the Board for amendment of its order to conform to the Board’s findings and this opinion.
Reversed and remanded.
Under the Wagner Act, 49 Stat. 449, 29 U. S. C. §§ 151, 158 (1).
The Board found that “A. C. Lineberger is president of the respondents Perfection, Acme, and Linford; J. Harold Lineberger is vice president of the respondents Perfection and Linford, and secretary-treasurer of the respondent Acme; D. P. Stowe is vice president of the respondent Acme and secretary-treasurer of the respondent Perfection. The officers of the respondent Stowe are C. T. Stowe, president; C. P. Stowe, vice president; and R. L. Stowe, secretary-treasurer, all of whom are cousins of D. P. Stowe.”
Stowe’s petition was denied, 334 U. S. 831; the reinstatement order is not being reviewed in this Court.
See Lahne, The Cotton Mill Worker (New York, 1944), pp. 50-51.
See MacDonald, Southern Mill Hills (New York, 1928), p. 34; Blanshard, Labor in Southern Cotton Mills (New York, 1927), p. 64.
See notes 4 and 5.
Respondents do not contest the Board finding that antiunion bias was the cause for their refusal of the hall. And four employees were discharged for union activity. See 165 F. 2d 609, 614. Even in the Republic and Le Tourneau cases no such discrimination was shown. 324 U. S. at 797, 801.
See, for example, Berkshire Knitting Mills v. Labor Board, 139 F. 2d 134 (company union given use of hall denied to outside union); Labor Board v. Carlisle Lumber Co., 94 F. 2d 138 (company union given preference over Board-certified bargaining representative); Labor Board v. Norfolk Shipbuilding & Drydock Corp., 109 F. 2d 128 (recognition of inside union without ascertaining employees’ wishes — inside union given use of company rooms); Labor Board v. Lane Cotton Mills, 111 F. 2d 814 (refusal to bargain with certified union coupled with use of recreation room by company union). And see Cudahy Packing Co. v. Labor Board, 118 F. 2d 295; Matter of Standard Oil of California, 61 N. L. R. B. 1251; Matter of Virginia Electric & Power Co., 44 N. L. R. B. 404, enforced 319 U. S. 533.
Cited and quoted with approval in the Republic case at 803, 804.
We pointed out that neither the Republic nor Le Tourneau cases “is like a mining or lumber camp where the employees pass their rest as well as their work time on the employer’s premises, so that union organization must proceed upon the employer’s premises or be seriously handicapped.” 324 U. S. at 799.
Compare Labor Board v. Lake Superior Lumber Corp., 167 F. 2d 147, 150, where the Board recognized that the employer might impose “lawful and reasonable conditions.”
Question: What is the agency involved in the administrative action?
001. Army and Air Force Exchange Service
002. Atomic Energy Commission
003. Secretary or administrative unit or personnel of the U.S. Air Force
004. Department or Secretary of Agriculture
005. Alien Property Custodian
006. Secretary or administrative unit or personnel of the U.S. Army
007. Board of Immigration Appeals
008. Bureau of Indian Affairs
009. Bureau of Prisons
010. Bonneville Power Administration
011. Benefits Review Board
012. Civil Aeronautics Board
013. Bureau of the Census
014. Central Intelligence Agency
015. Commodity Futures Trading Commission
016. Department or Secretary of Commerce
017. Comptroller of Currency
018. Consumer Product Safety Commission
019. Civil Rights Commission
020. Civil Service Commission, U.S.
021. Customs Service or Commissioner or Collector of Customs
022. Defense Base Closure and REalignment Commission
023. Drug Enforcement Agency
024. Department or Secretary of Defense (and Department or Secretary of War)
025. Department or Secretary of Energy
026. Department or Secretary of the Interior
027. Department of Justice or Attorney General
028. Department or Secretary of State
029. Department or Secretary of Transportation
030. Department or Secretary of Education
031. U.S. Employees' Compensation Commission, or Commissioner
032. Equal Employment Opportunity Commission
033. Environmental Protection Agency or Administrator
034. Federal Aviation Agency or Administration
035. Federal Bureau of Investigation or Director
036. Federal Bureau of Prisons
037. Farm Credit Administration
038. Federal Communications Commission (including a predecessor, Federal Radio Commission)
039. Federal Credit Union Administration
040. Food and Drug Administration
041. Federal Deposit Insurance Corporation
042. Federal Energy Administration
043. Federal Election Commission
044. Federal Energy Regulatory Commission
045. Federal Housing Administration
046. Federal Home Loan Bank Board
047. Federal Labor Relations Authority
048. Federal Maritime Board
049. Federal Maritime Commission
050. Farmers Home Administration
051. Federal Parole Board
052. Federal Power Commission
053. Federal Railroad Administration
054. Federal Reserve Board of Governors
055. Federal Reserve System
056. Federal Savings and Loan Insurance Corporation
057. Federal Trade Commission
058. Federal Works Administration, or Administrator
059. General Accounting Office
060. Comptroller General
061. General Services Administration
062. Department or Secretary of Health, Education and Welfare
063. Department or Secretary of Health and Human Services
064. Department or Secretary of Housing and Urban Development
065. Administrative agency established under an interstate compact (except for the MTC)
066. Interstate Commerce Commission
067. Indian Claims Commission
068. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
069. Internal Revenue Service, Collector, Commissioner, or District Director of
070. Information Security Oversight Office
071. Department or Secretary of Labor
072. Loyalty Review Board
073. Legal Services Corporation
074. Merit Systems Protection Board
075. Multistate Tax Commission
076. National Aeronautics and Space Administration
077. Secretary or administrative unit or personnel of the U.S. Navy
078. National Credit Union Administration
079. National Endowment for the Arts
080. National Enforcement Commission
081. National Highway Traffic Safety Administration
082. National Labor Relations Board, or regional office or officer
083. National Mediation Board
084. National Railroad Adjustment Board
085. Nuclear Regulatory Commission
086. National Security Agency
087. Office of Economic Opportunity
088. Office of Management and Budget
089. Office of Price Administration, or Price Administrator
090. Office of Personnel Management
091. Occupational Safety and Health Administration
092. Occupational Safety and Health Review Commission
093. Office of Workers' Compensation Programs
094. Patent Office, or Commissioner of, or Board of Appeals of
095. Pay Board (established under the Economic Stabilization Act of 1970)
096. Pension Benefit Guaranty Corporation
097. U.S. Public Health Service
098. Postal Rate Commission
099. Provider Reimbursement Review Board
100. Renegotiation Board
101. Railroad Adjustment Board
102. Railroad Retirement Board
103. Subversive Activities Control Board
104. Small Business Administration
105. Securities and Exchange Commission
106. Social Security Administration or Commissioner
107. Selective Service System
108. Department or Secretary of the Treasury
109. Tennessee Valley Authority
110. United States Forest Service
111. United States Parole Commission
112. Postal Service and Post Office, or Postmaster General, or Postmaster
113. United States Sentencing Commission
114. Veterans' Administration or Board of Veterans' Appeals
115. War Production Board
116. Wage Stabilization Board
117. State Agency
118. Unidentifiable
119. Office of Thrift Supervision
120. Department of Homeland Security
121. Board of General Appraisers
122. Board of Tax Appeals
123. General Land Office or Commissioners
124. NO Admin Action
125. Processing Tax Board of Review
Answer:
|
songer_appel1_1_2
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained".
The MIHALEK CORPORATION and Lawrence Patrick Mihalek, Plaintiffs-Appellants, v. The STATE OF MICHIGAN, Governor James J. Blanchard, the Dept. of Commerce of the State of Michigan, Ralph J. Gerson, Director, Ross Roy, Inc., Defendants-Appellees.
Nos. 84-1851, 84-1854, 85-1593 and 84-1986.
United States Court of Appeals, Sixth Circuit.
June 8, 1987.
Before MERRITT, WELLFORD, and NORRIS, Circuit Judges.
ORDER
We filed an opinion in this cause on March 18,1987, 814 F.2d 290, affirming the decision of the district court and denying plaintiffs the relief sought for alleged misappropriation of their copyrighted and trademark materials and ideas in the advertising plan in controversy. The petition for rehearing asserts that we failed to reach two issues in our prior opinion. First, the misappropriation claim included the contention that defendants, through governmental and state action, had taken their property without compensation within the meaning of the fifth amendment. Our opinion does not specifically mention the fifth amendment claim. It is clear, however, that our holding was to the effect that as a matter of law there was no “taking” of plaintiffs’ materials and concepts and those utilized by defendants. We found no error in the district court’s conclusion that defendants had not used, appropriated, or benefitted from plaintiffs’ property in the form of ideas, materials, or advertising concepts. There was, then, no violation of plaintiffs’ claimed fifth amendment rights.
Plaintiffs also assert that we failed to address their claims of “direct photocopying by defendants” of “copyrighted advertising program plan at the direction of two of the highest officials in the Michigan Department of Commerce.” This contention involves the statement made in (plaintiffs’ brief that two state officials had kept two photocopies of some of the copyrighted material. This photocopying was assertedly discovered during plaintiffs’ Michigan Freedom of Information Act investigation following selection by defendants of another advertising program.
It is not clear whether defendants asserted “fair use” as an affirmative defense in this case, nor whether there may have been a technical, although possibly de minimis non curat lex violation of 17 U.S.C. § 106 in the alleged retention of photocopies by two state officials. This question was not specifically addressed by the district court in his decision nor does it appear that this failure to address this issue was called to his attention by the parties. We believe it is best for the district court in the first instance to address this contention. We therefore REMAND the question of alleged photocopying by state officials and whether, if it occurred, this constituted a violation of plaintiffs’ claimed rights in any respect in light of the record made by the parties.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer:
|
songer_geniss
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
Weldon Kelley LORRAINE, Appellant, v. UNITED STATES of America et al., Appellees.
No. 71-1069.
United States Court of Appeals, Tenth Circuit.
June 18, 1971.
Weldon Kelley Lorraine, pro se.
C. Nelson Day, U. S. Atty. and Glenn J. Mecham, Asst. U. S. Atty., Salt Lake City, Utah.
Before PICKETT, BREITENSTEIN and McWILLIAMS, Circuit Judges.
PER CURIAM.
Lorraine was sentenced to a term of imprisonment on June 9, 1970, after his conviction by a jury of bank robbery, 18 U.S.C. § 2113. We were without jurisdiction to entertain his direct appeal because of an untimely notice of appeal. United States v. Lorraine, No. 666-70, unpublished (10th Cir. March 30, 1971). An opinion affirming on direct appeal the conviction of two co-defendants is being filed with this opinion. See United States of America v. Lujan, 444 F.2d 103 (10th Cir. 1971).
By motion pursuant to 28 U.S.C. § 2255, Lorraine alleged that he had been denied adequate assistance of counsel at trial, and challenged the court’s instructions to the jury and the sufficiency of the evidence. Relief was denied without a hearing. The court held that the bare conclusionary statements without factual allegations cannot avail against the court’s observation at the trial of the representation of the defendant by his counsel. Under the circumstances of this case, we agree.
Lorraine’s attack on his trial representation is directed to counsel’s failure to file certain motions, that he committed tactical errors, that he lost interest in the case for personal and financial reasons, and that he failed to interview witnesses with evidence favorable to Lorraine without specifying the content of the alleged favorable evidence.
As noted by the district court, these claims are conclusionary statements with no supporting factual allegations and therefore insufficient. See Atkins v. Kansas, 386 F.2d 819 (10th Cir. 1967) and Martinez v. United States, 344 F.2d 325 (10th Cir. 1965).
We recently held that the competency and qualification of a lawyer before the court are a matter of which the trial court had judicial knowledge and of which it could take judicial notice. Mitchell v. United States, 432 F.2d 94 (10th Cir. 1970).
The burden on an appellant to establish a claim of ineffective assistance is heavy, and neither hindsight nor success is the measure. Ellis v. Oklahoma, 430 F.2d 1352 (10th Cir. 1970). It does not mean victorious or flawless counsel. Brady v. United States, 433 F.2d 924 (10th Cir. 1970). The representation must have been such as to make the trial a mockery, sham, or farce, Basker v. Crouse, 426 F.2d 531 (10th Cir. 1970), or resulted in the deprivation of constitutional rights. Kienlen v. United States, 379 F.2d 20 (10th Cir. 1967); Criser v. United States, 319 F.2d 849 (10th Cir. 1963). The instant allegations do not meet these tests.
Lorraine challenges the sufficiency of the evidence. The question is not whether the evidence was sufficient, in a collateral attack, but whether the verdict of guilty was so devoid of evidentiary support as to raise a due process issue. Johnson v. Turner, 429 F.2d 1152 (10th Cir. 1970); Mathis v. Colorado, 425 F.2d 1165 (10th Cir. 1970); Martinez v. Patterson, 371 F.2d 815 (10th Cir. 1966); Hall v. Crouse, 339 F.2d 316 (10th Cir. 1964), cert. denied 381 U.S. 941, 85 S.Ct. 1777, 14 L.Ed.2d 704 (1965). We have the trial transcript before us and are satisfied that there is ample evidentiary support.
Finally, collateral relief is not available to set aside a conviction on the basis of erroneous jury instructions unless the error had such an effect on the trial as to render it so fundamentally unfair that it constitutes a denial of a fair trial in a constitutional sense. Linebarger v. Oklahoma, 404 F.2d 1092 (10th Cir. 1968), cert. denied 394 U.S. 938, 89 S.Ct. 1218, 22 L.Ed.2d 470 (1969). See also Ortiz v. Baker, 411 F.2d 263 (10th Cir. 1969), cert. denied 396 U.S. 935, 90 S.Ct. 279, 24 L.Ed.2d 234 (1969); Martinez v. Patterson, supra; Poulson v. Turner, 359 F.2d 588 (10th Cir. 1966), cert. denied 385 U.S. 905, 87 S.Ct. 219, 17 L.Ed.2d 136 (1966); Hilliard v. United States, 345 F.2d 252 (10th Cir. 1965); Carrillo v. United States, 332 F.2d 202 (10th Cir. 1964).
This case was assigned to the summary calendar upon docketing in this court and Lorraine was informed that he could submit papers addressing the underlying merits, which he has not done. Nonetheless, we have carefully and thoroughly reviewed the files and records in this cause and are convinced that the judgment of the district court was correct
Accordingly, we affirm.
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_direct2
|
C
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for the defendant. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
UNITED STATES v. BOZZA.
No. 9013.
Circuit Court of Appeals, Third Circuit
Argued March 7, 1946.
Decided May 17, 1946.
Harold Simandl, of Newark, N. J., for appellant.
Charles J. Tyne, of Newark, N. J. (Edgar H. Rossbach, U. S. Atty., of Newark, N. J., on the brief), for appellee.
Before BIGGS, GOODRICH, and O’CONNELL, Circuit Judges.
O’CONNELL, Circuit Judge.
Bozza and one Nicholas Chirichillo were tried and convicted under' an indictment containing five counts charging offenses against the revenues of the United States. From judgment and sentence of the District Court for the District of New Jersey, Bozza appeals.
In a midnight raid on a dilapidated farmhouse at Woodbridge, New Jersey, state police officials discovered an illicit still, set up but not cooking. Though barren of normal house furnishings, the apparently deserted structure contained the usual paraphernalia essential to an illicit still enterprise. In addition to the distillation plant, the officials found bags of sugar, 600 gallons of fermenting sugar mash, and 2% gallons of alcohol which were in the receiving tank.
From the government’s case, it is fairly apparent that Chirichillo was the dominant member of the group which carried on the illicit enterprise. He leased the house. He brought raw materials there. With the help of Bozza and one other he operated the still. And, finally, Chirichillo transported the finished product, alcohol, to Newark for disposition there.
Because appellant challenges the sufficiency of the proof to sustain conviction on any count, the charges against him and the evidence in support thereof will be summarized.
The first count charges Bozza, Chirichillo, Ellen Vettor, and Peter Milito with the unlawful carrying on of the business of a distiller and the making and distilling of 2% proof gallons of spirits with intent to defraud the United States of the tax thereon. The second count charges the same parties with unlawfully having in their possession and custody and under their control a still set up for the unlawful production of distilled spirits for beverage and commercial purposes, which they failed to register as required by law. The third count charges them with unlawfully making and fermenting 600 gallons of mash intended for distillation and production of spirits in a building not duly authorized as a distillery. The fourth count charges them with the unlawful concealment of 2% gallons of distilled spirits with intent to defraud the United States of the tax thereon. The fifth count charges Bozza and Chirichillo with the unlawful transportation of 35 gallons of distilled spirits with intent to defraud the United States of the tax thereon.
To sustain conviction of Bozza on any of the five counts, reliance must be placed on the testimony of Ellen Vettor. She testified that Chirichillo was the moving party throughout the enterprise. She identified Bozza as a man called “Jack” who “helped out” Chirichillo in the making of the alcohol inside the farmhouse. She swore that Bozza “wasn’t there every day in the week” and that “he would just come around between two and three times a week he would appear there; he was not there steady.” In response to a question of the court, “When he did come there what did he do?” she replied, “He would help, he would take instructions from Nick and help him around.” The only other evidence she gave against Bozza was in describing how Chirichillo transported the alcohol from the farmhouse to Newark. She testified that the cans of alcohol were in Chiri-chillo’s car, in which she rode, and that “sometimes we would follow Jack Bozza’s car.” She testified further that so far as she knew there never was any alcohol carried in Bozza’s automobile.
The question for our determination is whether Vettor’s testimony, relating to Bozza, as summarized above, is sufficient to sustain conviction on any of the counts. Section 332 of the Criminal Code makes every person who “directly commits any act constituting an offense defined in any law of the United States, or aids, abets, counsels, commands, induces, or procures its commission” a “principal.” Vettor’s testimony justified a jury finding that Chirichillo directly committed and Bozza aided, abetted or counseled the commission of the offenses charged in the first three counts: Cf. United States v. Johnson, 1943, 319 U.S. 503, 514, 63 S.Ct. 1233, 87 L.Ed. 1546.
But, the concealment and transportation counts stand on a different footing. Mere evidence that Bozza “helped around” in the cooking of alcohol would not justify a finding that he directly concealed or that he aided or abetted in the concealment of the specific 2% gallons of alcohol found in the still’s receiving tank: Cf. Czarnecki v. United States, 3 Cir., 1938, 95 F.2d 32; United States v. Sail, 3 Cir., 1940, 116 F. 2d 745.
We reach a similar conclusion regarding the conviction on the transportation count. Mere evidence that Chirichillo in transporting the alcohol sometimes followed Bozza’s automobile would not warrant a finding that Bozza transported or aided or abetted in the illegal transportation of 35 gallons of alcohol.
Consequently, the convictions on the fourth and fifth counts cannot stand.
Appellant challenges the legality of the sentence on the first three counts. On the morning of July 23, 1945, following the return of the guilty verdict, the trial judge sentenced Bozza to two years’ imprisonment on each of the first three counts and to two years’ and six months’ imprisonment on the fourth and fifth counts, all the sentences to run concurrently, That same day, about five hours later, Bozza was recalled and the court added certain minimum mandatory fines and penalties to the sentences. In the interim, Bozza had been taken to a marshal’s detention room in the same building in which the United States District Court is held and from there removed to the Hudson County Jail in Jersey City, a federal place of detention, where he awaited transportation to the place where his sentence was to be served. Appellant now contends that because he had begun service of his sentence (18 U.S.C.A. § 709a) the trial judge lacked the power to increase his punishment by adding the fines and penalties. It is true that a judge is powerless to add to a sentence, once validly imposed, after the prisoner has begun to serve it. This is “upon the ground that to increase the penalty is to subject the defendant to double punishment for the same offense in violation of the Fifth Amendment to the Constitution, which provides that no person shall ‘be subject for the same offense to be twice put in jeopardy of life or limb’”: United States v. Benz, 1931, 282 U.S. 304, 307, 51 S.Ct. 113, 114, 75 L.Ed. 354. Cf. Roberts v. United States, 1943, 320 U.S. 264, 64 S.Ct. 113, 88 L.Ed. 41.
However, it is well established that imposition of a sentence at variance with the statutory requirements is a “void act”. Such a sentence may be superseded by a new sentence in conformity to the provisions of the statute. It is no hindrance that the correction- — even when it entails a greater punishment — occurs after sentence has been partially served or after the term of court has expired: See King v. United States, 1938, 69 App.D.C. 10, 98 F.2d 291, DeBenque v. United States, 1936, 66 App. D.C. 36, 85 F.2d 202, 106 A.L.R. 839, certiorari denied, 1936, 298 U.S. 681, 56 S.Ct. 960, 80 L.Ed. 1402, rehearing denied, 1936, 299 U.S. 620, 57 S.Ct. 6, 81 L.Ed. 457; Anderson v. Rives, 1936, 66 App.D.C. 174, 85 F.2d 673; Egan v. United States, 1923, 52 App.D.C. 384, 287 F. 958; Harman v. United States, C.C., 1892, 50 F., 921; D.C., 1895, 68 F. 472 (same case on resentence). These authorities are dispositive of appellant’s reliance on the double jeopardy clause of the Fifth Amendment unless they are distinguishable because, here, the trial judge corrected the erroneous sentence on his own initiative.
“Double jeopardy” is a plastic concept. Its application has never been immutably fixed, either at common law or under the protective Bill of Rights. Palko v. Connecticut, 1937, 302 U.S. 319, 322, 58 S.Ct. 149, 82 L.Ed. 288. Uncorrected, the court’s action was violative of congressional will: Ex parte United States, 1916, 242 U.S. 27, 37 S.Ct. 72, 61 L.Ed. 129, L.R.A. 19.17E, 1178, Ann.Cas.1917B, 355. Corrected, it merely imposed upon the defendant a penalty fixed by Act of Congress. This is neither double jeopardy nor double punishment. We see no constitutional hindrance to the court’s action: cf. United States v. Roberts, 320 U.S. 264, 276, 277, 64 S.Ct. 113, 88 L.Ed. 41 (dissent by Frankfurter, J.) We conclude that the sentence as amended by the court below is valid and operative:’ cf. Rowley v. Welch, 1940, 72 App.D.C. 351, 114 F.2d 499.
Appellant’s final contention that the charge of the trial judge “took the form of animated argument and amounts to acts of advocacy in favor of the government” is without merit. Taking the charge in its entirety, we believe it to be a fair presentation of the case and without prejudice to the appellant.
Since we have concluded that the government’s proof was insufficient to sustain a: conviction on either the fourth or fifth counts, a reversal must follow. The question' is whether we must remand for a new trial or whether it is proper to direct entry of judgment of acquittal. A directed verdict of acquittal requires action by a jury and it has been held, under common law criminal practice, that upon an erroneous refusal of a trial judge to direct a verdict of acquittal, the appellate court must remand for a new trial. Cf. Tatcher v. United States, 3 Cir., 1939, 107 F.2d 316 with United States v. Tatcher, 3 Cir., 1942, 131 F.2d 1002. But see Commonwealth v. Benz, 1935, 318 Pa. 465, 472, and 477, 178 A. 390.
By the Rules of Criminal Procedure for the District Courts of the United States, effective March 21, 1946, motions for directed verdict, are. abolished and in their place are substituted motions for judgment of acquittal. Rule 29(a). And, Rule 29 (b) permits judgments non obstante veredicto. ' In the Advisory Committee Note to Rule 29.(b), it is stated that, “This rule is in substance similar to Rule 50(b) of the Federal Rules of Civil Procedure [28 U.S. ,C.A. following section 723.c] and permits the court to render judgment for the defendant notwithstanding a verdict of guilty. Some Federal courts have recognized and approved the use óf a judgment non obstante veredicto for the defendant in a criminal case, Ex parte United States, 7 Cir., 101 F.2d 870 [131 A.L.R. 176], affirmed by.an equally divided court, United States v. Stone, 308 U.S. 519, 60 S.Ct. 177, 84 L.Ed. 441. The rule sanctions this practice.”
Rule 59 provides that the Rules “govern all criminal proceedings” commenced after their effective date, “and so far as just and practicable all proceedings then pending.” The present is a “pending” proceeding. It is both just and practicable to reverse and remand for entry of judgment of acquittal on the fourth and fifth counts because of insufficiency of proof to sustain such convictions.
Accordingly, judgment of the court below is affirmed' as to the conviction and sentence on the first three counts. It is reversed and remanded for entry of judgment of acquittal on the fourth and fifth counts.
This is a receptacle into which the alcohol drips in the process of distillation. Presence of rust and water gives rise to appellant’s speculation that the 2% gal-Ions of alcohol thus found might easily have been the residue in the tank remaining after the operators thought they had emptied it.
26 I.R.C. See. 2833(a), 26 U.S.C.A. Int.Rev.Code, § 2833(a).
26 I.R.C. Sec. 2810(a), 26 U.S.C.A. Int.Rev.Code, § 2810(a).
26 I.R.C. Sec. 2834, 26 U.S.O.A. Int. Rev.Code, § 2834.
26 I.R.C. See. 3321(a), 26 U.S.O.A. Int.Rev.Code; § 3321(a).
26 I.R.C. Sec. 2803, 26 U.S.C.A. Int. Rev.Code, § 2803.
18 U.S.O.A. § 550.
Thus, conviction on the first count carried a mandatory punishment of a fine of not less than $100 nor more than $5000 and imprisonment for not less than thirty days nor more than two years. Punishment for conviction on the second count is fixed by Act of Congress at a penalty of $500, fine of not less than $100 nor more than $1000 and imprisonment for not less than one month nor more than two years. Under count 4, conviction required a fine of not less than $500 nor more than $5000 and imprisonment for not less than six months nor more than two years. As to each count, on recalling the prisoner, the court added the minimum fine and penalty as required in order to bring the sentence into conformity with the Internal Revenue Code provisions cited in footnotes 2, 3, 4 supra.
In these eases, the defendant attacked the original improperly imposed sentence. A resentenee even to a greater punishment than that originally imposed would not violate the double jeopardy clause of the Fifth Amendment: Murphy v. Commonwealth of Massachusetts, 1900, 177 U.S. 155, 20 S.Ct. 639, 44 L.Ed. 711; cf. Kepner v. United States, 1904, 195 U.S. 100, 24 S.Ct. 797, 49 L.Ed. 114, 1 Ann.Cas. 655; Trono v. United States, 1905, 199 U.S. 521, 26 S.Ct. 121, 50 L.Ed. 292, 4 Ann.Cas. 773.
Rule 29(a) provides as follows: “Motions for directed verdict are abolished and motions for judgment of acquittal shall be used in their place. The court on motion of a defendant or of its own motion shall order the entry of judgment of acquittal of one or more offenses charged in the indictment or information after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses. If a defendant’s motion for judgment of acquittal at the close of the evidence offered by the government is not granted, the defendant may offer evidence without having reserved the right.”
Rule 29(b) provides as follows: “If a motion for judgment of acquittal is made at the close of all the evidence, the court may reserve decision on the motion, submit the case to the jury and decide the motion either before the jury returns a verdict or after it returns a verdict of guilty or is discharged without having returned a verdict. If the motion is denied and the case is submitted to the jury, the motion may be renewed within 5 days after the jury is discharged and may include in the alternative a motion for a new trial. If a verdict of guilty is returned the court may on such motion set aside the verdiGt and order a new trial or enter judgment of acquittal. If no verdict is returned the court may order a new trial or enter judgment of acquittal.”
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. 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.
Kitty B. ROBERTS and James E. Roberts, Wage Earner, Appellants, v. Casper WEINBERGER, Secty. of HEW, Appellee.
No. 75-1503.
United States Court of Appeals, Fourth Circuit.
Argued Sept. 8, 1975.
Decided Oct. 16, 1975.
Carl W. Newman, Appalachia, Va. (Shannon & Newman, Appalachia, Va., on brief), for appellants.
E. Montgomery Tucker, Asst. U. S. Atty. (Leigh B. Hanes, Jr., U. S. Atty., Stephanie W. Naidoff, Regional Atty. and Roland L. Vaughan, Jr., Asst. Regional Atty., on brief), for appellee.
Before BRYÁN, Senior Circuit Judge, and WINTER and RUSSELL, Circuit Judges.
WINTER, Circuit Judge:
Kitty B. Roberts, whose husband died of “black lung” in 1971, appeals from an order of the district court sustaining the Secretary of H.E.W.’s denial of widow’s benefits under the Federal Coal Mine Health and Safety Act of 1969, as amended, 30 U.S.C. § 801 et seq. (1975). The only dispute between the parties concerns whether Mr. Roberts was a miner within the meaning of the Act and the pertinent regulations. While the Secretary concluded that he was not a miner and his conclusion was sustained by the district court, we disagree. Thus, we reverse the judgment for the Secretary and remand the case for award of the claimed benefits.
I.
As found by the district court, the claimant meets all of the personal eligibility requirements for a widow seeking benefits under the Act; and it is uncontradicted that her husband was totally disabled from pneumoconiosis at the time of his death. It is undisputed that Mr. Roberts operated a truck hauling coal from the immediate site of its extraction in a strip mine to a tipple where it was processed, graded and loaded into railroad cars for further shipment. This journey took place over dirt roads of the mining company. While the evidence in the record is in conflict as to whether Mr. Roberts was employed by the mine owner or by a trucking company engaged by the mine owner, it is certain that he had engaged in this work for approximately fourteen years and he was exposed to substantial coal dust during the loading and unloading of the truck.
II.
As amended, 30 U.S.C. § 902(d) defines “miner” as “any individual who is or was employed in a coal mine.” In regulations adopted pursuant to 30 U.S.C. § 921(a), the Secretary has defined “coal mine” as follows:
an area of land and all structures, facilities, machinery, tools, equipment, shafts, .slopes, tunnels, excavations, and other property, real or personal, placed upon, under, or above the surface of such land by any person, used in or to be used in, or resulting from, the work of extracting in such area bituminous coal, lignite, or anthracite from its natural deposits in the earth by any means or method, and the work of preparing the coal so extracted, and includes custom coal preparation facilities (emphasis added). 20 C.F.R. § 410.110(h) (1974).
Given only the statute and this broad definition of “coal mine,” it would be clear that Mr. Roberts was covered by the Act. He performed the same function, in a strip mine, as do the operators of mechanical conveyances which bring the coal to the shaft and ultimately to the surface in an underground mine. The Secretary concedes that in an underground mine such workers would be covered, and he does not dispute that even though he worked aboveground, Mr. Roberts was continuously exposed to the hazard of coal dust.
The Secretary argues, however, that Mr. Roberts was excluded from the definition of “miner” by virtue of 20 C.F.R. § 410.110(j), which reads:
“Miner” or “coal miner” means any individual who is working or has worked as an employee in a coal mine, performing functions in extracting the coal or preparing the coal so extracted.
The Secretary contends that this section encompasses those workers engaged in extraction and preparation, but not persons engaged in on-site transportation.
We disagree with the Secretary’s interpretation and application of his regulation. In agreement with the administrative law judge, we think that Roberts’ functions were part of the process of “extracting the coal and preparing the coal so extracted.” The coal was not extracted and prepared until it was taken from the mine to the place where it was processed and graded so as to be in condition for delivery to distributors and consumers. We add also that, if given the effect advocated by the Secretary, 20 C.F.R. § 410.110(j) would add a further qualification to the clear language of 30 U.S.C. § 902(d). Since the statute is unambiguous in extending coverage to “any individual who is or was employed in a coal mine,” and its legislative history makes plain that a coal mine may be aboveground as well as underground, 20 C.F.R. § 410.110(j) would be in direct conflict with the governing statute and, hence, invalid.
Despite the conflict as to whether Mr. Roberts was employed directly by the coal mine operator or by a trucking subcontractor, we think it is indisputable that he was employed in a coal mine. The Secretary’s own regulation, 20 C.F.R. § 410.110(h), indicates that the boundaries of the mine extend at least to the point where the coal is processed and loaded for further shipment.
The judgment of the district court must be reversed and the case remanded for entry of an order directing that Mrs. Roberts be awarded benefits under the Act.
Reversed and remanded.
. Section 402 of the Act, as amended, defines pneumoconiosis as “a chronic dust disease of the lung arising out of employment in a coal mine.” It is significant in light of our view of the merits of the case that, before amendment, the disease was defined as one “arising out of employment in an underground mine (emphasis added).”
. Prior to amendment, § 902(d) defined a miner as one “employed in an underground coal mine” (emphasis added).
. Given the amendments to § 902 referred to in n. 1 and n. 2, the Secretary’s all-encompassing definition — “upon, under, or above” — is manifestly in accord with congressional intent.
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
sc_jurisdiction
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the manner in which the Court took jurisdiction. The Court uses a variety of means whereby it undertakes to consider cases that it has been petitioned to review. The most important ones are the writ of certiorari, the writ of appeal, and for legacy cases the writ of error, appeal, and certification. For cases that fall into more than one category, identify the manner in which the court takes jurisdiction on the basis of the writ. For example, Marbury v. Madison, 5 U.S. 137 (1803), an original jurisdiction and a mandamus case, should be coded as mandamus rather than original jurisdiction due to the nature of the writ. Some legacy cases are "original" motions or requests for the Court to take jurisdiction but were heard or filed in another court. For example, Ex parte Matthew Addy S.S. & Commerce Corp., 256 U.S. 417 (1921) asked the Court to issue a writ of mandamus to a federal judge. Do not code these cases as "original" jurisdiction cases but rather on the basis of the writ.
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 is the manner in which the Court took jurisdiction?
A. cert
B. appeal
C. bail
D. certification
E. docketing fee
F. rehearing or restored to calendar for reargument
G. injunction
H. mandamus
I. original
J. prohibition
K. stay
L. writ of error
M. writ of habeas corpus
N. unspecified, other
Answer:
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