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What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that the indictment was defective?" 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".
MARTIN et al. v. UNITED STATES.
Nos. 1705-1709, 1717-1719.
Circuit Court of Appeals, Tenth Circuit.
Dec. 7, 1938.
Rehearing Denied Jan. 9, 1939.
Jean S. Breitenstein, of Denver, Colo. (Louis R. Stein, of El Paso, Tex., on the brief), for appellants Porter Allbee, Andrew Berns, Carl Ernest Brown, Jack Herring, and Harry W. Martin.
J. H. Boutcher, of Denver, Colo., for appellants Oral V. McMenus, Walter Nisun, and Austin Patton Muzingo.
David H. Morris, Asst. U. S. Atty., of Denver, Colo. (Thomas J. Morrissey, U. S. Dist. Atty., of Denver, Colo., and Arthur G. Higgs, Sp. Asst. U. S. Atty., of Washington, D. C., on the brief), for the United States.
Before LEWIS, BRATTON, and WILLIAMS, Circuit Judges.
Writ of certiorari denied 59 S.Ct. 590, 83 L.Ed. —.
BRATTON, Circuit Judge.
These eight appeals are from convictions for a conspiracy to violate the Motor Carrier Act of 1935, 49 Stat. 543, 49 U. S.C.A. § 301 et seq. The indictment charged that on or about October 15, 1935, and continuously thereafter to the return of the presentment, Frank Murphy, doing business as Frank Murphy Travel Bureau, in New York City; Made Schultz, doing business as Main Travel Bureau, in New York City; Andrew Berns, doing business as Andy’s Bus Depot, in Chicago; Walter Nisun, doing business as Midway Travel Bureau and NiSun Bus Lines and NiSun Lines, Ltd., in Chicago; Howard Stee'd, doing business as Steed Travel Bureau, in Omaha, Nebraska, also as Steed Travel Bureau and Reliable Travel Bureau, in Denver, Colorado; Oral V. McMenus, doing business as Mack’s Travel Bureau, in Denver, Wm. Gottesman, doing business as Bill’s Reliable Travel Service, in Denver; Edwin Oswald Weimer, doing business as Kane Travel Bureau, in Denver; Monty Cox, doing business as Interstate Employment Tourist Travel Bureau, in Salt Lake City, Utah; James Manasee, doing business as Nu-Way Cut-Rate Travel, in San Francisco, California; Carl Ernest Brown, doing business as Auto Travel Bureau, in Los Angeles, California; Austin Patton Muzingo, doing business as Pat’s Travel Bureau, in Los Angeles; Rosemond Young and Oscar Turlington Marshall, each doing business as Coast to Coast Travel Bureau, in Los Angeles; Stanley Cruson, Colonel Perry, and Phillip Fisher Finch, doing business as DeLuxe Travel Bureau, in Phoenix, Arizona; James R. S. Lefebvre, doing business as U. S. Travel Service, in Phoenix; Harry W. Martin, doing business as Martin Travel Bureau, in El Paso, Texas; Guy Stedham and Doyle Coles, each doing business as Majestic Travel Bureau, in Fort Worth, Texas; Edd Roberts, doing business as A A Travel Bureau, in Fort Worth; V. C. Hale, doing business as All American Travel Bureau, in Fort Worth; John Elliott Frank, doing business as Frank The Travel Man, in Dallas, Texas; Pap Garland and Lee Gsrland, each doing business as Garland Bros. Travel Bureau, in Dallas; Jack Herring, doing business as Interstate Travel Bureau, in Oklahoma City, Oklahoma; Porter All-bee, doing business as Interstate Travel Bureau, in Tulsa, Oklahoma; and James W. Reddick, doing business as AAA Travel Exchange and Grand Travel Exchange, in Kansas City, Missouri, conspired, combined, confederated, and agreed, each with the other and with divers other persons whose names were unknown, to violate the Motor Carrier Act; that they: “so conspired * *' * each with the other, and that they did, and each of them did, unlawfully * * * for compensation negotiate for, and did hold himself out by solicitation, advertisement, and otherwise> as one who sells, provides, furnishes procures, contracts, and arranges for transportation of passengers for the general public in interstate commerce by motor vehicle for compensation over.and upon the public highways of the United States ■* * * and did, for compensation, negotiate for, provide, furnish, procure, contact, and arrange for such transportation of passengers for the general public in interstate commerce by motor vehicle for compensation * * * and was and is a broker and as such broker was and is subject to the Motor 'Carrier Act of 1935 * * *. And that they so conspired * * * each with the other, and that they did, and each of them did, unlawfully * * * enter into the execution of contracts, agreements or arrangements to sell, provide, procure, furnish, and arrange for such transportation; unlawfully * * * to employ for such transportation common carriers of passengers in interstate commerce by motor vehicle for compensation * * *, who or which said common carriers * * * were not the holder or holders * * * of an effective certificate of public convenience and necessity issued by the Interstate Commerce Commission of the United States, authorizing such common carriers to transport passengers for the general public in interstate commerce by motor vehicle for compensation, as aforesaid; such employment of said common carriers, as aforesaid, being unlawful and in violation of Section 211 of the Motor Carrier Act of 1935 [49 U.S.C.A. § 311] * *. Murphy, Schultz, Weimer, Cruson," Finch, and Lefebvre pleaded guilty; the case was dismissed as to Manasee at the close of the evidence submitted by the Government; directed verdicts of not guilty were returned as to Roberts, Frank Garland and Lee Garland; and Berns, Nisun, McMenus, Brown, Muzingo, Martin, Stedham, Herring, and Allbee were convicted. Stedham did not appeal. The others perfected separate appeals.
The Motor Carrier Act is attacked on the ground that it is unconstitutional for the reason that it fails to define a standard of conduct from which it may be determined when and under what circumstances its provisions are violated. The statute provides that it is the declared policy of Congress to regulate transportation by motor carriers engaged in interstate or foreign commerce in such manner as to recognize and preserve its inherent advantages; to foster sound economic conditions in such transportation; to promote adequate, economical, and efficient service by motor carriers; to prevent unjust discriminations, undue preferences or advantages, and unfair or destructive practices; to improve the relations between such carriers and other carriers; and to develop a system of highway transportation properly adapted to the needs of the commerce of the United States and of the national defense. § 202, 49 U.S.C.A. § 302. The term “common carrier by motor vehicle” is defined as any person who undertakes to transport passengers or property for the general public in interstate or foreign commerce by motor vehicle for compensation; the term “motor carrier” is defined to include both a common carrier and a contract carrier by motor vehicle; and the term “broker” is defined to mean any person, not .included in the term “motor carrier” and not a bona fide employee or agent of any such carrier, who sells or offers for sale any transportation subject to the act, or negotiates for or hglds himself out by solicitation, advertisement, or otherwise as one who sells, provides, furnishes, contracts, or arranges for such transportation. §' 203, 49 U.S.C.A. § 303. The Interstate Commerce Commission is vested with power to administer the statute, that is, to regulate transportation of that kind. §§ 204, 205, 49 U.S.C.A. §§ 304, 305. It is provided that no common carrier subject to the act shall engage in interstate or foreign operation on a public highway, or within a reservation under the exclusive jurisdiction of the United States unless there is in force and effect an authorizing certificate of public convenience and necessity issued by the Commission, § 206, 49 U.S.C.A. § 306; and that no person shall engage in the business of a contract carrier by motor vehicle in such commerce on such a highway or within such a reservation unless there is in force and effect an authorizing permit likewise issued by the Commission. § 209, 49 U.S.C.A. § 309. But it is further provided that nothing contained therein shall be construed to include the casual, occasional, or reciprocal transportation of passengers or property in interstate or foreign commerce for compensation by a person not engaged in such transportation as a regular occupation or business, § 203, 49 U.S.C.A. § 303. It is also provided that no person shall for compensation sell or offer for sale transportation subject to the act or make any contract, agreement, or arrangement to provide, procure, furnish, or arrange for such transportation, or hold himself out by advertisement, solicitation, or otherwise as one who does such things unless he holds a broker’s license issued by the Commission, § 211, 49 U.S.C.A. § 311.
Appellants did not transport passengers. They were unlicensed brokers engaged in the business of making arrangements for compensation for transportation of passengers by motor vehicle in interstate commerce. They, therefore, came within the purview of section 211 of the act. But it is argued that the statute fails to provide any standard or guide by which it could be determined whether the persons who transported such passengers were engaged in transportation of that kind as a regular occupation or business and were required to obtain certificates of public convenience and necessity, or were not engaged in such transportation as a regular occupation or business but merely carried such passengers as casual, occasional, or reciprocal transportation, and for that reason no certificate was required. The act brings within its provisions those regularly engaged in the occupation or business of transporting persons or property by motor vehicle in interstate or foreign commerce and excludes casual, occasional, or reciprocal transportation of that kind as a regular occupation or business, without undertaking to define textually either class or to fix a standard by which to determine in advance whether certain conduct is in one class or the other. Reasonable definiteness and certainty is required in the enactment of statutes, but in the very nature of things rules of conduct oftentimes must be stated in general language and. depend for their application upon diversified circumstances. It frequently is impossible to state in detail rules or formulae. which will meet different conditions or varying qualities. A penal statute must be sufficiently explicit to enable a person of ordinary intelligence to understand its provisions but the employment of terms ordinarily used to express ideas is not fatal. The words, “casual”, “occasional”, “reciprocal”, “regular”, “occupation”, and “business” are in common use, and each has a well understood meaning; and in the absence of anything indicating otherwise it is to be presumed that Congress used them in their generally accepted meaning. It manifestly is possible through the exercise of ordinary intelligence to determine with reasonable exactness and certainty whether given facts and circumstances constitute engaging in the transportation of passengers or property as a regular occupation or business, or merely casual, occasional, or reciprocal transportation by one not engaged in it as a regular occupation or business. Accordingly, the statute is not so vague and indefinite that it offends the due process clause. Nash v. United States, 229 U.S. 373, 33 S.Ct. 780, 57 L.Ed. 1232; Miller v. Strahl, 239 U.S. 426, 36 S.Ct. 147, 60 L.Ed. 364; Omaechevarria v. Idaho, 246 U.S. 343, 38 S.Ct. 323, 62 L.Ed. 763; United States v. Alford, 274 U.S. 264, 47 S.Ct. 597, 71 L.Ed. 1040; United States v. Wurzbach, 280 U.S. 396, 50 S.Ct. 167, 74 L.Ed. 508; Sproles v. Binford, 286 U.S. 374, 52 S.Ct. 581, 76 L.Ed. 1167; McElvogue v. United States, 8 Cir., 40 F.2d 889; United States v. Hill, 3 Cir., 90 F.2d 573.
Next to be considered are the contentions that there was a variance between the indictment and the proof in that the indictment charged a nationwide conspiracy to violate the statute by the employment of unlicensed carriers in interstate commerce while the proof showed, if anything, several small conspiracies; and that the evidence was insufficient to sustain the charge. These contentions are so interwoven that disposition may be made of them together. The substance of the indictment has been stated. There was evidence that appellants and others similarly engaged operated travel bureaus in cities. jWhile there may have been others located elsewhere, reference is made in the record to two bureaus each in New York, Chicago, Denver, and Los Angeles, and one each in Salt Lake City, Phoenix, El Paso, Fort Worth, Dallas, Oklahoma City, Tulsa, and Kansas City. Signs were usually displayed, sometimes with such words as “share expense plan”. One read: “This bureau has no connection with any bureau operated by Steed, but has working agreements with all other bureaus in Denver and from border to border and Coast to Coast”; another “Baggage Limited”; and a third “Drivers please loaf in the rear.” And rates were frequently posted. Cards were printed usually containing such information as the name, street address, and telephone number. It was the custom for each bureau to send cards to others, and they were preserved as a directory and sometimes displayed. The usual method of business was that a person desiring transportation was charged a fee or compensation which usually ranged from fifty cents to two or three dollars depending upon the length of the trip, and.he was told the time at which it was expected an automobile would depart. The automobile called at the bureau for passengers, and each passenger paid the driver his charge for the transportation. There was one exception. In some instances appellant Nisun collected the charge for the transportation and paid it to the driver. In the event the passenger was bound for a destination beyond that of the automobile, the bureau gave him a card called a transfer stating in substance that he was to be transferred to another automobile. Upon arriving at the destination of the automobile, the passenger presented the transfer to the bureau located there and that bureau placed him in another automobile for part or all of the remainder of the journey. To illustrate, if a passenger starting from New York to Los Angeles was placed in an automobile going no farther than Chicago, he Was given a transfer addressed to a bureau in Chicago requesting that he be transferred to an automobile bound for Los Angeles or some intermediate point, and that process was repeated until he reached his destination. Each driver was paid his charge for transportation, but the intermediate bureaus did not make any charge for the transfers. Each of the bureaus operated by appellants issued one or more transfers to one or more other bureaus or accepted one or more transfers issued by one or more of the others, but in no instance did a single bureau issue transfers to all others or accept transfers from all others. Some of the transfers bore a special notation stating in substance that the passenger desired a regular driver. Some of the appellants solicited business from others through correspondence, and some solicited it through personal visits and interviews. Appellant Nisun stated in a letter to Weimer that he had cars leaving every night for New York. There were two kinds of drivers. Those operating automobiles in such transportation as a business or occupation were called regulars ; and those making occasional or infrequent trips and taking one or more passengers for the purpose of meeting the expense were called angels. There were a great many regulars. About fifty operated out of one of the bureaus in Chicago; about forty out of one in Denver; and about eighty per cent of those operating out of one in Los Angeles were regulars. Five regulars without licenses testified. One made several trips between v Los Angeles and Chicago; he made six or seven out of the bureau of appellant Brown; he stopped at the Kane Travel Bureau in Denver; and he contacted the bureaus of appellants Berns and Nisun in Chicago. Another made four or five trips between Los Angeles and Chicago during one summer; he made two out of the bureau of appellant Brown; he contacted the bureaus of appellants Berns and Nisun in Chicago, that of Steed in Omaha and Denver, and that of Cox in Salt Lake City. A third transported passengers out of Fort Worth, Denver, and Kansas City. A fourth transported passengers out of Fort Worth, Oklahoma City, and Denver. The remaining one transported passengers from El Paso to Dallas; he made three trips out of the State of Texas; and he took passengers from the Martin Travel Bureau in El Paso. And passengers from different bureaus testified concerning other regular drivers. Emphasis is seemingly laid upon the insufficiency of the evidence to sustain the verdict against appellant Martin. There was a Martin Bureau in El Paso. Cards were in it advertising bureaus in different parts of the country. A man named Toby either operated it or was connected with it, but Martin was seen there on one occasion. He visited a bureau in Denver on two occasions, once in 1936 and once in 1937; he stated to an employee there that he owned the bureau in El Paso, and that he was doing a nice business; and on each occasion he and the employee agreed each to send the other all business possible. The bureau in Denver sent cards and passengers to him and received transfers from him. In like manner stress is laid upon the inadequacy of the evidence relating to appellant Allbee. He operated a bureau in Tulsa;* he advertised in the papers; he sent cards to a bureau in Denver on two or three occasions; the cards bore the name of Herring on one side and that of Allbee on the other; he accepted one transfer and arranged for the transfer of the passenger; he sent transfers to the bureau in Denver; and a certain driver who drove for him and Herring made frequent trips to Denver. Appellant Allbee denied much of the testimony establishing these facts but that merely formed an issue of fact for the jury.
In respect to the question of variance there was evidence from which the inference could be reasonably drawn that the system existed throughout a large part of the United States; that all of appellants understood it and participated in it; and that they stood ready to further it by maintaining intercourse with all others through the issuance and acceptance of transfers. A variance is not to be treated as material unless there is a substantial departure of the proof from the charge of a character which could mislead the defendant at the trial. Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314. There was no departure of that kind here. The proof substantially conformed to the charge. The assertion of a material variance cannot be sanctioned.
Concerning the sufficiency of the evidence, the essence of the crime of conspiracy is two or more persons combining and confederating with the intent and purpose of committing a public offense by doing an unlawful act or doing a lawful act in an unlawful manner. The agreement need not be in any particular form. It is enough if the minds of the parties meet and unite in an understanding way with the single design to accomplish a common purpose,1 and the union of the minds may be proved by circumstantial evidence. The agreement may be inferred from statements, acts, and circumstances. It is frequently not susceptible of direct proof. Parnell v. United States, 10 Cir., 64 F.2d 324; Telman v. United States, 10 Cir., 67 F.2d 716; Brayton v. United States, 10 Cir., 74 F.2d 389; Jaramillo v. United States, 10 Cir., 76 F.2d 700; Marx v. United States, 8 Cir., 86 F.2d 245; Marino v. United States, 9 Cir., 91 F.2d 691, 113 A.L.R. 975; Robinson v. United States, 5 Cir., 94 F.2d 752. And it is not necessary that all of the parties be personally acquainted with each other. Neither is it requisite that one have direct contact with all others. It suffices if with knowledge that others have combined to violate the law, one knowingly co-operates in some affirmative manner to further the purpose of the conspiracy. Booth v. United States, 10 Cir., 57 F.2d 192; Wilder v. United States, 10 Cir., 100 F.2d 177, decided November 28, 1938; Allen v. United States, 7 Cir., 4 F.2d 688. The evidence adduced at the trial with the inferences and deductions reasonably to be drawn from it was sufficient to warrant the jury in finding that an agreement existed to violate the statute and that with knowledge of that fact each of the appellants affirmatively co-operated to further the unlawful design.
Complaint is made in respect to the instructions, also the refusal to give certain requested instructions. It is argued that the gist of the charge was an agreement to employ unlicensed carriers of passengers; that the court failed to so instruct; that instead the jury were erroneously instructed that the charge was a conspiracy to violate subsection (a) of Section 211 of the statute, 49 U.S.C.A. § 311(a), which provides that no person shall sell, offer for sale, provide, procure, furnish, or arrange for transportation, or hold himself by advertisement, solicitation, or otherwise as one who does such things unless he holds a broker’s license authorizing him to engage in such transactions; and that the requested instructions correctly stated the elements of the offense laid in the indictment. The jury were instructed at the outset that the charge was a conspiracy to violate a law of the United States, and the conspiracy statT ute — Section 37 of the Criminal Code, 18 U.S.C.A. § 88 — was quoted; they were then instructed that the object of the conspiracy was to violate one paragraph of the new statute in respect to the regulation of motor vehicles engaged in carrying passengers for hire between states, and subsection (a) of Section 211 was quoted as the provision; and they were further instructed: “The question in this case is, gentlemen, whether these defendants got together, any two or more of them, and had a common understanding that they would violate this law by doing what the government says they did, that is, by soliciting people for hire to go by motor transportation by arranging for their transportation from state to state, or advertising or holding themselves 'out as people properly authorized or able to procure such transportation. * * * If you believe beyond a reasonable doubt, gentlemen, that that was the practice, and that it was a practice and an understood thing between these dealers that they would get people from Chicago to the coast, or vice versa, or from Tulsa to Denver, or vice versa, it makes no difference where, by this method, and would recognize these introductions and forego a fee at every one of these places where a passenger had to transfer from one automobile to another, then you are justified in saying that the conspiracy existed. * * * You cannot convict these defendants for a casual or occasional or reciprocal transportation of passengers or property in interstate commerce for compensation by any person not engaged in transporting by motor vehicles as a regular occupation or business. The occasional act is specifically exempted by this particular act. * * * What is .the evidence here, gentlemen? Briefly, it is something like this. The evidence of the government tends to prove that these different defendants had these several establishments in several different cities of the United States, extending from Chicago through Kansas City, Tulsa, Oklahoma City, Denver, and Salt Lake, two or three places in Texas, and out to California to Los Angeles; that by advertisements and solicitation they would attract passengers, people desiring to go by automobile from state to state, and that for a fee of $1.00, $1.75, or varying amounts, they would arrange for them to get transportation in some other fellow’s automobile — they did not own these cars — and they would send them on to Kansas City, and give them a card of introduction to a man in Kansas City, for instance, who was in the same business, and he would arrange, upon presentation of this card, or letter of introduction, whatever you want to call it, it makes no difference — they would pass them on to another city until they finally reached their destination.”
It is well settled that all parts of the instructions must be considered together, and that excerpts or particular parts cannot be separated and considered apart from the whole. Caldwell v. United States, 10 Cir., 36 F.2d 742; Tanchuck v. United States, 10 Cir., 93 F.2d 534. Considered in that manner it cannot be said that the jury failed to understand the nature of the conspiracy or the facts which must be established in order to warrant a conviction. Furthermore, the trial of the case extended throughout six days. Appellant Allbee testified briefly in his own behalf. Otherwise, appellants did not offer any evidence. An examination of the entire record indicates clearly that the verdict was right, and that the reference to section 211 of the statute cannot be regarded as substantial prejudice. A judgment should not be reversed for a harmless error. Berger v. United States, supra; Tanchuck v. United States, supra; Eierman v. United States, 10 Cir., 46 F2d 46; United States v. Brown, 2 Cir., 79 F.2d 321; Stokes v. United States, 5 Cir., 93 F.2d 744; Stunz v. United States, 8 Cir., 27 F.2d 575; Dye v. United States, 4 Cir., 262 F. 6.
It may be conceded without deciding that each of the requested instructions was accurate in substance. But the instructions of the court fairly and fully covered the issues in the case, and a court is not required to give a requested instruction which is an accurate statement if the subject matter has been appropriately covered in the instructions given. Tingley v. United States, 10 Cir., 34 F.2d 1; Luke v. United States, 5 Cir., 84 F.2d 823; Brett v. United States, 9 Cir., 86 F.2d 305; Bowater v. Worley, 10 Cir., 57 F.2d 970; Detroit Fire & Marine Ins. Co. v. Oklahoma Terminal Elevator Co., 10 Cir., 64 F.2d 671; George v. Wiseman, 10 Cir., 98 F.2d 923.
The remaining contention which merits a word is that the conspiracy statute should not be used to subject one to a more severe penalty than that which may be imposed for the substantive offense. Section 222 of the Motor Carrier Act, 49 U.S.C.A. § 322, provides that the penalty for the first violation of its terms shall be a fine of not more than $100, and that the penalty for each subsequent violation shall be a fine not to exceed $500. Some of appellants were sentenced to the penitentiary and to pay a fine of $500, and others were given jail sentences. But they were found guilty of the crime of conspiracy. The crime is distinct from the offense which the parties intend to ac-complish as the result of the conspiracy; and it is completed when the agreement has been formed, and one or more overt acts have been committed in furtherance of such unlawful design. Callan v. Wilson, 127 U.S. 540, 8 S.Ct. 1301, 32 L.Ed. 223; Pettibone v. United States, 148 U.S. 197, 13 S.Ct. 542, 37 L.Ed. 419; Clune v. United States, 159 U.S. 590, 16 S.Ct. 125, 40 L.Ed. 269; Williamson v. United States, 207 U.S. 425, 28 S.Ct. 163, 52 L.Ed. 278; United States v. Rabinowich, 238 U.S. 78, 35 S.Ct. 682, 59 L.Ed. 1211; Duplex Printing Press Co. v. Deering, 254 U.S. 443, 41 S.Ct. 172, 65 L.Ed. 349, 16 A.L.R. 196; Truax v. Corrigan, 257 U.S. 312, 42 S.Ct. 124, 66 L.Ed. 254, 27 A.L.R. 375; Di Bonaventura v. United States, 4 Cir., 15 F.2d 494; Marcante v. United States, 10 Cir., 49 F.2d 156; Booth v. United States, supra; Marino v. United States, supra; Maryland Casualty Co. v. Hosmer, 1 Cir., 93 F.2d 365.
Section 37 of the Criminal Code, supra, fixes the penalty for the crime of conspiracy, and these sentences were within its limits. The fixing of penalties for criminal offenses is a legislative function; and a sentence within the limits fixed in the statute which has been violated will not ordinarily be disturbed on appeal as being excessive, or cruel, or inhuman. Bailey v. United States, 10 Cir., 74 F.2d 451; Martin v. United States, 10 Cir., 99 F.2d 236.
The remaining contentions are so lacking in merit that they need not be discussed.
The judgments are severally affirmed.
Question: Did the court rule that the indictment was defective?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
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songer_othadmis
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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 that some evidence, other than a confession made by the defendant or illegal search and seizure, was inadmissibile, (or did ruling on appropriateness of evidentary hearing benefit the defendant)?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
SON SHIPPING CO., Inc. v. DE FOSSE & TANGHE et al.
No. 26, Docket 22394.
United States Court of Appeals Second Circuit.
Argued Oct. 16, 1952.
Decided Nov. 12, 1952.
Hill, Rivkins & Middleton, New York City, for appellants; Gregory S. Rivkins and John J. Killea, New York City, of counsel.
Dow & Symmers, New York City, for appellee; John R. Sheneman and William A. Wilson, New York City, of counsel.
Before AUGUSTUS N. HAND, CHASE and CLARK, Circuit Judges.
CHASE, Circuit Judge.
The principal problem presented by this appeal is whether an arbitration clause in a charter party was so incorporated in bills of lading that the provisions for arbitration in the charter party are enforceable.
De Fosse & Tanghe chartered the tanker Norita, on June 29, 1948, to transport a full cargo of fuel oil from Antwerp to Tel Aviv and Haifa, Palestine. It is probable that De Fosse & Tanghe were acting as agents for Solel Boneh, Ltd., but that is not entirely clear and is immaterial on this appeal.
On July 1, 1948, the master of the Norita signed and delivered to Raffinerie Beige De Petroles S. A., as the shipper,, two memorandum order bills of lading accepting the receipt aboard the vessel of 9,089,038 kilos of oil. This oil had been purchased from the above named shipper by Solel Boneh, Ltd., and the shipper later delivered to that buyer the usual commercial documents including the order bills of lading, indorsed in blank. While the vessel was proceeding from Antwerp to Palestine, Solel Boneh, Ltd., sold the full cargo of oil to The Palestine .Electric Corporation and delivered the documents to it.
The vessel duly arrived at Tel Aviv, where it discharged one-half of its cargo, and at Haifa where the remainder was discharged on July 16, 1948. On July 18, 1948, the ultimate consignee made claim against the vessel for short delivery to the extent of a little over 242 metric tons of oil. Nothing further seems to have been done until, on April 14, 1950, the charterer demanded arbitration of the claim in accordance with the charter provisions. The shipowner denied liability, declined to arbitrate and brought this proceeding to secure a permanent injunction to prevent the arbitration of the dispute. The injunction was granted and this appeal followed.
The charter party provided that, “Any and all differences and disputes of whatsoever nature arising out of this charter shall be put to arbitration in the city of New York * * * ” and there is no question but that the provisions of this charter were duly invoked by the appellants, if their demand for arbitration was timely. The order bills of lading provided in part as follows:
“This shipment is carried under and pursuant to the terms of the charter dated Antwerp, June 29th, 1948 between Son Shipping Company and De Fosse & Tanghe, charterer, and all the terms whatsoever of the said charter except the rate and payment of freight specified therein apply to and govern the rights of the parties concerned in this shipment.”
The injunction was granted because the court was of the opinion (1) that the language above quoted was insufficient as a matter of law to make the terms of the charter party in respect to arbitration a part of the bills of lading; and (2) that this dispute arose out of the non-fulfillment of the terms of the bills of lading as to which there were no applicable provisions for arbitration. We do not agree.
These order bills of lading specifically referred to the charter party and, in language so plain that its meaning is unmistakable, incorporated in the bills all the terms “whatsoever” of the charter party “except the rate and payment of freight specified therein.” The very breadth of the language of inclusion is emphasized by the specific exception and leaves no fair doubt as to the meaning of the parties. Gronstadt v. Withoff, C.C.S.D.N.Y., 21 F. 253; The Silverbrook, D.C.E.D.La., 18 F.2d 144. Since it is so plain that the provisions for arbitration in the charter party were brought over into the bills, it is unnecessary to make any distinction in this instance between the two documents. See In re Canadian Gulf Line, 2 Cir., 98 F.2d 711. Where terms of the charter party are,, as here, expressly incorporated into the bills of lading they are a part of the contract of carriage and are binding upon those making claim for damages for the breach of that contract just as they would be if the dispute were between the charterer and the shipowner. See The Fri, 2 Cir., 154 F. 333; Gronstadt v. Withoff, supra; The Silverbrook, supra. See also United States v. Sugarland Industries, D.C.S.D.Tex., 281 F. 239, affirmed, 5 Cir., 296 F. 913; One Thousand and Two Bales of Sisal Hemp, D.C.S.D.Ala., 75 F. 408.
Since our decision in Kulukundis Shipping Company v. Amtorg Trading Corp., 2 Cir., 126 F.2d 978, it should be understood that arbitration clauses are to be treated like any other contract provisions. Thomas & Son v. Portsea Steamship Company, 1912, A.C. 1, and cases in this circuit like The Thrasyvoulos, D.C.S.D.N.Y., 28 F.Supp. 434, and The Harmatris, D.C.S.D.N.Y., 1940 A.M.C. 797, which followed it, and upon which the appellee relies, are not approved in so far as they are contrary.
Nor does the reservation to the carrier in the charter party of all rights it would have under The Carriage of Goods by Sea Act, 46 U.S.C.A. § 1300 et seq., make the demand for arbitration untimely. It is true that the demand was not made within the one year limitation upon suits, contained in § 1303(6) of the above Act, but there is, nevertheless, no time bar because arbitration is not within the term “suit” as used in that statute. Instead, it is the performance of a contract providing for the resolution of controversy without suit. See Murray Oil Products Co. v. Mitsui & Co., 2 Cir., 146 F.2d 381. We are aware that the time within which arbitration may be demanded may be of great importance to the parties who have by contract agreed to have their differences so determined, especially to a shipowner. But unless they see fit to condition their agreement by an express time limitation, a demand within a reasonable time, as here, is not barred.
Order reversed and injunction dissolved.
Question: Did the court rule that some evidence, other than a confession made by the defendant or illegal search and seizure, was inadmissibile (or did ruling on appropriateness of evidentary hearing benefit the defendant)?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
songer_treat
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
Winston Monroe HOLLOWAY, Appellant, v. C. A. BRUTON, Court Bailiff, Fourth Division, Pulaski Circuit Court; Gerald Kirk, Pulaski County Deputy Sheriff; and Mark Fryklund, Channel Four Newservice Cameraman, Appellees.
No. 79-1408.
United States Court of Appeals, Eighth Circuit.
Submitted Nov. 10, 1980.
Decided Nov. 17, 1980.
Winston Holloway, pro se.
Akins & Matthews by John E. Matthews, Little Rock, Ark., for appellant.
Wilbur C. Bentley, Pros. Atty., Sixth Judicial District of Arkansas by Hugh L. Brown and Larry D. Vaught, Deputy Pros. Attys., Little. Rock, Ark., for appellees.
.Before HEANEY, BRIGHT and ROSS, Circuit Judges.
PER CURIAM.
Before the Court is appellant’s appeal from an order of the district court dismissing his civil rights action without prejudice.
In his original complaint, the appellant alleged that his constitutional right to a fair trial before an impartial jury was infringed by conspiratorial acts engaged in by the Pulaski County Sheriff, Gerald Kirk, and the court bailiff of the Pulaski Circuit Court for the Fourth Division, C. A. Bruton. The appellant’s claim is that Messrs. Kirk and Bruton permitted the appellant and a codefendant to be photographed while being transported with other prisoners from the Pulaski County Courthouse to the county jail. At the time they were photographed, the prisoners were all handcuffed and chained together. The appellant contends that the dissemination of these photographs in conjunction with excessive adverse news coverage rendered it impossible for him to secure a fair trial. At the time the appellant filed this civil rights action, he was awaiting his criminal trial.
The court below permitted the appellant to proceed in forma pauperis, 28 U.S.C. § 1915, but concluded later that the case was prematurely filed and dismissed the cause without prejudice.
We determine that the district court properly dismissed the appellant’s case as premature. The lower court correctly reasoned that in order to receive monetary relief under the Civil Rights Act, 42 U.S.C. § 1983, for the deprivation of the right to a fair trial, a petitioner must establish that the alleged improper conduct in fact had that effect. McNally v. Pulitzer Publishing Co., 532 F.2d 69, 76 (8th Cir. 1976); Rosenberg v. Martin, 478 F.2d 520, 525 (2d Cir.), cert. denied, 414 U.S. 872, 94 S.Ct. 102, 38 L.Ed.2d 90 (1973).
The district court correctly reasoned that since the appellant had filed his complaint prior to his criminal trial, he could state no set of facts which could amount to a showing of present injury.
Now that his trial has finally resulted in conviction and has been affirmed on appeal to the Arkansas Supreme Court, Holloway v. State, 594 S.W.2d 2 (Ark.1980), he is free to reassert his civil rights claim.
The order of the district court is affirmed.
. The appellant was charged with armed robbery of a Little Rock restaurant and with rape of a restaurant employee in 1975. He was convicted in a joint trial with his two codefendants and the conviction was affirmed on appeal by the Arkansas Supreme Court. Holloway v. State, 539 S.W.2d 435 (Ark. 1976). The conviction was, however, reversed by the United States Supreme Court on the ground that the trial court had unconstitutionally failed to appoint separate counsel for the multiple defendants. Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). It was while the appellant was awaiting his retrial that the actions giving rise to the instant case occurred.
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_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.
YOUNG MOTOR COMPANY, Inc., Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
No. 6339.
United States Court of Appeals First Circuit.
Dec. 28, 1964.
Walter H. McLaughlin, Jr., Boston, Mass., with whom Walter H. McLaughlin, Sr., Arthur M. Gilman and The McLaughlin Brothers, Boston, Mass., were on brief, for petitioner.
Frederick E. Youngman, Atty. Dept, of Justice, with whom Louis F. Ober-dorfer, Asst. Atty. Gen., and Meyer Rothwacks, Atty. Dept, of Justice, was on brief, for respondent.
Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit J udges.
HARTIGAN, Circuit Judge.
This is a petition by a corporate taxpayer to review a decision of the Tax Court of the United States deciding that there are deficiencies in its income tax for the calendar years 1950, 1951, and 1952 under Sec. 102(a) of the Internal Revenue Code of 1939 which imposes a surtax on corporations improperly accumulating surplus. This is the third appeal to this court from a decision of the Tax Court in this case. Young Motor Company v. C. I. R., 281 F.2d 488 (1st Cir. 1960), reversing 32 T.C. 1336 (1959) and C. I. R. v. Young Motor Company, 316 F.2d 267 (1st Cir. 1963), reversing Young Motor Company, Inc., 31 P-H Tax Ct.Mem. 778 (1962). The facts will be found in the two opinions of the Tax Court and in our opinion on the first appeal.
The questions raised in this appeal are whether the Tax Court placed the proper burden of proof upon the taxpayer and whether on the evidence the decision of that court was warranted. We believe that the Tax Court used the proper burden of proof and that its decision should be sustained.
The combined holding of our first two decisions was that a tax under Sec. 102 (a) of the 1939 Code could be levied only where avoidance of the surtax was the primary or dominant reason for the accumulation of earnings and profits but that the burden is on the taxpayer to prove that avoidance of the surtax was not the primary or dominant reason for the accumulations. The taxpayer argues that the Tax Court in its latest decision placed a burden on it which goes one further step beyond what we have demanded. It says that the Tax Court placed a burden upon it to prove not only the negative, that it did not accumulate its earnings and profits to avoid the surtax, but also the affirmative, that it accumulated its earnings and profits for some reason other than avoidance of the surtax (here, to meet reasonable business needs). We do not agree that the court improperly increased taxpayer’s burden.
There can be no question that the trial judge initially conceived of his task as one of placing only a negative burden upon the taxpayer. Indeed, he expressly says that “in reconsidering the ultimate issue we do so with the burden of proof resting upon the petitioner to prove by a preponderance of evidence that it has not been availed of * * However, in analyzing the evidence, the court proceeded to deal in large part with the question of whether in fact a reasonable business need motivated the taxpayer’s accumulations, and at one point commented,
“A preponderance of evidence sufficient to sustain petitioner herein we think necessarily requires some proof that petitioner’s continuing to accumulate its profits during the years at issue * * * was not for the primary purpose of saving its stockholders harmless from payment of the income taxes normally imposed upon the receipt of corporate dividends, but rather that it was for the primary and dominant purpose of meeting business exigencies. * * *»
It is difficult to prove a negative without advancing one or more affirmatives. In this case the taxpayer advanced only one, namely, that it accumulated its earnings to meet reasonable business needs. In such circumstances it seems to us that in recognizing a burden to prove a purpose of meeting business needs the court was merely stating two sides of the same coin. Had taxpayer suggested more than one legitimate (from a tax standpoint) reason for the accumulations the situation would be different. In such event there would be no burden to prove any particular one.
It remains only to decide whether the Tax Court’s decision on the facts was warranted. On appeal from that court, of course, we are limited to the “clearly erroneous” rule in our review of such determination. Commissioner of Internal Revenue v. Duberstein, 363 U.S. 278, 291, 80 S.Ct. 1190, 4 L.Ed.2d 1218 (1960). Nor are we obliged to agree with every sentence in the opinion.
It is quite true that the Tax Court found that taxpayer’s accumulations were not, in fact, beyond reasonable business needs. Taxpayer in effect argues this of itself established the propriety of its motive, or the purpose of its accumulation. We rejected that contention in our first opinion. The fact that it would have been reasonable does not mean that it was the actual purpose. Furthermore, there is a distinction in scope between what might be reasonable and what were essential business needs. A taxpayer might, in thinking about its business needs, and acting entirely reasonably, accumulate less than the maximum reasonable amount, and any larger amount, although still reasonable, might, in fact have been retained for quite different purposes. Hence the court’s finding, although important, does not resolve the present question. The burden remains where it began, to show that the subjective motive for this particular retention was not to avoid the surtax.
Since 1929, when taxpayer was incorporated, no dividends have been declared or paid. Since 1941 no officer or director has received a salary. Since 1945 taxpayer’s earnings have been used as unsecured and, except in 1952, interest-free loans to provide funds to meet the operating expenses of unrelated enterprises owned by Young, taxpayer’s controlling stockholder. Since 1947 taxpayer’s earnings have also been used to purchase unrelated securities. It was the function of the Tax Court to draw inferences and to weigh the evidence. Helvering v. National Grocery Co., 304 U.S. 282, 295, 58 S.Ct. 932, 82 L.Ed. 1346 (1938). It is true that Young’s testimony that he contemplated some investment of further funds in the company’s business was well documented. However, it did not appear that he had set his mind to any pax*ticular plans, or to the involvement of any particular amount of money. While the question may not be as clear as in Barrow Mfg. Co. v. Commissioner, 294 F.2d 79 (5th Cir. 1961), cert. den. 369 U.S. 817, 82 S.Ct. 827, 7 L.Ed.2d 783, we believe that the Tax Gourt could reasonably find that taxpayer’s future plans were secondary to a predominant motive of tax avoidance, or that the plans wex-e too vague and indefinite to sustain taxpayer’s position.
Judgment will be entered affirming the decision of the Tax Court.
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_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.
The FALMOUTH NATIONAL BANK, Plaintiff, Appellant, v. TICOR TITLE INSURANCE COMPANY, Defendant, Appellee.
No. 90-1335.
United States Court of Appeals, First Circuit.
Heard Sept. 7, 1990.
Decided Dec. 12, 1990.
Douglas A. Hale,. with whom Wynn & Wynn, P.C., Raynham, Mass., was on brief, for plaintiff, appellant.
Mary E. O’Neal, with whom Masterman, Culbert & Tully, Boston, Mass., was on brief, for defendant, appellee.
Before CAMPBELL and TORRUELLA, Circuit Judges, and CAFF REY, Senior District Judge.
Of the District of Massachusetts, sitting by designation.
CAFFREY, Senior District Judge.
This is an appeal of an order of the United States District Court for the Do-trict of Massachusetts dismissing the plaintiffs, The Falmouth National Bank (“Bank”), complaint without prejudice for failure to state a claim. The Bank brought this diversity action against the defendant, Ticor Title Insurance Company (“Ticor”), to recover for Ticor's failure to pay a loss sustained by the Bank as an insured under a mortgagee’s title insurance policy. The alleged loss resulted from an adverse decision by the Massachusetts Supreme Judicial Court in the case of Thibbitts v. Crowley, a case specifically covered by the policy. The complaint alleged two counts, one for breach of the title insurance policy and a second count for violation of Mass.Gen.L. ch. 93A, Section 11. Ticor moved for an order dismissing or, in the alternative, staying all proceedings until the disposition on remand of the case which was pending in state court. The district court allowed Ti-cor’s motion. On appeal, the Bank argues, as it did below, that Ticor’s liability was “definitely fixed” according to the terms of the policy when the Supreme Judicial Court rendered its decision, and therefore, that Ticor breached the policy by failing to pay within thirty days. Thus, the Bank argues that the district court erred as a matter of lav/ in dismissing the complaint as premature. Ticor, on the other hand, argues that its liability will not be “definitely fixed” until the final determination of the Bank’s losses on remand. After reviewing the record and the appellant’s arguments, we affirm the district court’s dismissal of the complaint without prejudice.
I.
The relevant facts are not in dispute. On May 22, 1985, John F. Thibbitts (“Buyer”) entered into a purchase and sale agreement with Patrick M. Crowley (“Seller”) for land located in Mashpee, Massachusetts. Thibbitts assigned his rights under the agreement to South Cape Industrial Park, Inc. (“South Cape”). Thereafter, a dispute arose, and the Buyer sued the Seller in state superior court. The parties entered into a consent judgment which called for a conveyance on or before March 9, 1987. Difficulties arose at the closing, and when it became clear that the sale would not be consummated on the date set by the consent judgment, the Buyer brought an ex parte motion to extend time for performance. The judge granted that ex parte motion, extending the closing date to March 23, 1987. The closing did in fact go through on that date, the Seller conveying the Mashpee property to the Buyer, South Cape, for $1,250,000.00. At the same time, the Buyer executed a note and granted the Bank a mortgage to secure the note in the amount of $2,150,000.00. The amount of this loan in excess of the purchase price was to be advanced as a construction loan according to a set payment schedule.
In April, shortly after the closing, the Seller appealed the judge’s order extending the time for performance under the consent judgment to the Massachusetts Appeals Court. Thereafter, the Supreme Judicial Court, on its own initiative, agreed to hear the appeal. The Bank did not learn of the Seller’s appeal until September, at which time it notified the title insurer, Chicago Title Company (“Chicago”), of the pending appeal. When Chicago refused to insure any further advances from the Bank to the Buyer, the Bank similarly refused to disburse any more money. To remedy this situation, the Buyer arranged to have Ticor provide title insurance to the Bank. This policy provided coverage up to the amount of $2,150,000.00, and in a special “Note I,” affirmatively insured against all loss, including attorney’s fees, arising out of the appeal, final decision, judgment or award of the state court action Thibbitts v. Crowley.
Subsequent to the issuance of this policy, the Supreme Judicial Court held that the judge below had lacked the authority to extend unilaterally the time for perform-anee under the consent judgment. Thibbitts v. Crowley, 405 Mass. 222, 226, 539 N.E.2d 1035, 1038 (1989). The Supreme Judicial Court therefore remanded the case to Barnstable Superior Court for reconveyance and for such other proceedings as were necessary, including making adjustments for the passage of time and for the Buyer’s improvements to the property. Id. at 230, 539 N.E.2d at 1040.
As a result of the decision, the Bank made a claim to Ticor in a letter dated July 12, 1989 for payment of all losses. They set this amount at $1,915,878.46 plus interest, which represented the principal indebtedness outstanding on the Buyer’s loan obligation. Ticor responded to the letter stating that the claim was premature, and that it would not pay until the Barnstable Superior Court, on remand, established the amount of actual damages. When Ticor refused to pay, the Bank sent a demand letter pursuant to Mass.Gen.L. ch. 93A. Since that time, both Ticor and the Bank have sought and were granted permission to intervene in the state court action.
The Bank instituted this action in Federal District Court for the District of Massachusetts for payment under the policy. Ticor moved for dismissal on the grounds that the complaint was premature given the Supreme Judicial Court’s remand to the Barnstable Superior Court. The district court allowed that motion, holding that “liability” as used in the policy does not merely mean a determination regarding title, but also includes losses and damages, and therefore, that liability had not been “definitely fixed.”
It is this determination that the Bank is appealing. After a careful review of the record, we affirm the district court’s dismissal without prejudice of both counts of the complaint.
II.
The parties’ dispute is basically one of contract interpretation. Application of the terms of an insurance policy to established facts is a question of law. Cody v. Connecticut Gen. Life Ins. Co., 387 Mass. 142, 146, 439 N.E.2d 234, 237 (1982); Robert Indus., Inc. v. Spence, 362 Mass. 751, 755, 291 N.E.2d 407, 409-10 (1973); Ober v. National Casualty Co., 318 Mass. 27, 31, 60 N.E.2d 90, 91 (1945). Thus, our review of the district court’s dismissal of the plaintiff’s complaint is plenary.
Title insurance policies are subject to the same rules of construction that apply to other types of insurance policies. Brown v. St. Paul Title Ins. Corp., 634 F.2d 1103, 1107 (8th Cir.1980); Lawyers Title Ins. Corp. v. Research Loan & Inv. Corp., 361 F.2d 764, 768 (8th Cir.1966); Sandler v. New Jersey Realty Title Ins. Co., 36 N.J. 471, 479, 178 A.2d 1, 5 (1962); 9 Appleman, Insurance Law and Practice § 5201 (1981). The overall goal in interpreting an insurance policy is to ascertain the expectations of the parties. Cullen Enter., Inc. v. Massachusetts Property Ins. Underwriting Ass’n, 399 Mass. 886, 900 n. 27, 507 N.E.2d 717, 725 n. 27 (1987); Eureka Inv. Corp., N.V. v. Chicago Title Ins. Co., 530 F.Supp. 1110, 1118 (D.D.C.1982), aff'd in relevant part and rev’d in part, 743 F.2d 932 (D.C.Cir.1984).
In attempting to discern the expectations of the parties, Massachusetts courts look at the insurance contract as a whole in order to effectuate its overall purpose. Cullen Enter., Inc., 399 Mass. at 900 n. 27, 507 N.E.2d at 725 n. 27; Ober, 318 Mass. at 31, 60 N.E.2d at 91 (1945); see Lawyers Title Ins. Corp., 361 F.2d at 768. The corollary of this rule is that whenever possible, each word in an insurance policy should be considered and given some meaning. Feinberg v. Insurance Co. of N. Am., 260 F.2d 523, 527 (1st Cir.1958).
When considering an insurance policy in its entirety, the general rule is that any ambiguity should be construed against the insurer as it is the insurer who supplies the contract. Marston v. American Employers Ins. Co., 439 F.2d 1035, 1039 (1st Cir.1971); Liberty Mut. Ins. Co. v. Tabor, 407 Mass. 354, 362, 553 N.E.2d 909, 914 (1990) (quoting Transamerica Ins. Co. v. Norfolk & Dedham Mut. Fire Ins. Co., 361 Mass. 144, 147, 279 N.E.2d 686, 688 (1972)); Lawyers Title Ins. Corp., 361 F.2d at 768. The rationale behind interpreting ambiguities against the insurer would not seem to apply as strongly when the transaction is between two parties of equal sophistication and equal bargaining power. Eagle-Picher Indus., Inc. v. Liberty Mut. Ins. Co., 682 F.2d 12, 21 n. 6 (1st Cir.1982), cert. denied, 460 U.S. 1028, 103 S.Ct. 1279, 75 L.Ed.2d 500 (1983); First State Underwriters Agency of New England Reinsurance Corp. v. Travelers Ins. Co., 803 F.2d 1308, 1314 n. 5 (3d Cir.1986); Industrial Risk Insurers v. New Orleans Pub. Serv., 666 F.Supp. 874, 881 (E.D.La.1987); McNeilab, Inc. v. North River Ins. Co., 645 F.Supp. 525, 547 (D.N.J.1986), aff'd, 831 F.2d 287 (3d Cir.1987); D. Burke, Jr., Law of Title Insurance 59 (1986); see Commercial Ins. Co. of Newark, N.J. v. Gonzalez, 512 F.2d 1307, 1313 n. 11 (1st Cir.), cert. denied, 423 U.S. 838, 96 S.Ct. 65, 46 L.Ed.2d 57 (1975).
We now turn to an application of these principles to the mortgagee title insurance policy in dispute. The first step is to examine the specific language of the provisions at issue. The Bank points to Paragraph 6 of the insurance policy, a standard provision in mortgagee policies. See Burke, supra, at 499. Paragraph 6 is entitled “Determination and Payment of Loss,” and reads as follows: “(c) When liability has been definitely fixed in accordance with the conditions of this policy, the loss or damage shall be payable within 30 days thereafter.” The Bank argues that liability was “definitely fixed” when the Supreme Judicial Court ordered the Buyer to reconvey the property to the Seller, and that the policy required Ticor to pay the loss within thirty days of that decision. Ticor argues, and the district court agreed, that liability would not be “definitely fixed” until the Barnstable Superior Court determined the damages on remand. The district court essentially equated loss with liability in interpreting Paragraph 6.
According to the canons of construction previously discussed, we must look at the meaning of the word “liability” in the context of the policy as a whole. Although 6(c) could be read as distinguishing between “loss” on one hand, and “liability” on the other, an examination of Paragraph 6 as a whole suggests that the two words are used synonymously. Paragraph 6 states that “(a) The liability of the Company under this policy shall in no case exceed the least of: (i) the actual loss of the insured claimant, or (ii) the amount of insurance stated in Schedule A_” Similarly, Endorsement No. 1 equates liability with the amount of loss, stating that “[liability ... is hereby increased ... bringing the total liability to $1,412,655.00.” Thus, the language of the policy does not clearly support the interpretation that the Bank suggests. Furthermore, the sophistication of the Bank and the fact that it negotiated specific terms of the policy lead us to believe that the general rule of interpreting ambiguities in favor of the insured does not apply with the same force here and therefore does not compel us to adopt the Bank’s interpretation.
The general rule regarding ambiguities also does not apply because the interpretation of the word “liability” propounded by the Bank conflicts with the basic characteristics of title insurance. First, title insurance is a contract of indemnity, not guarantee. Gibraltar Sav. v. Commonwealth Land Title Ins. Co., 905 F.2d 1203, 1205 (8th Cir.1990); Diversified Mortgage Investors v. U.S. Life Title Ins. Co. of N.Y., 544 F.2d 571, 574 n. 2 (2d Cir.1976); Goode v. Federal Title and Ins. Corp., 162 So.2d 269, 270 (Fla.Dist.Ct.App.1964) (quoting Annotation, Measure, extent, or amount of recovery on policy of title insurance, 60 A.L.R.2d 972, 975-76); Green v. Evesham Corp., 179 N.J.Super. 105, 111, 430 A.2d 944, 947 (quoting Diversified Mortgage Investors v. U.S. Life Title Ins. Co. of N.Y., 544 F.2d at 574), certif. denied, 87 N.J. 422, 434 A.2d 1095 (1981); Grunberger v. Iseson, 75 A.D.2d 329, 331, 429 N.Y.S.2d 209, 210 (1980); Burke, supra, at § 1.3.1. Thus, an insurer does not guarantee the state of the title, but rather, agrees to indemnify the insured for any loss. Burke, supra, at § 1.3.1. Another distinguishing characteristic of a contract to indemnify is that the loss must be actual; the mere existence of a defect covered by the policy in and of itself is not sufficient to justify recovery. Title & Trust Co. of Fla. v. Parker, 468 So.2d 520, 523 (Fla.Dist.Ct.App.1985); Ferrell v. Inter-County Title Guar. & Mortgage Co., 213 So.2d 518, 521 (Fla.Dist.Ct.App.1968); see Green, 179 N.J.Super. 105, 111, 430 A.2d at 947-48; Goode, 162 So.2d at 270; Burke, supra, at § 1.3.1. Currently, there is no determination of the exact amount of loss, if any, that Ticor owes the Bank.
The Bank’s argument regarding the meaning of “liability” also fails to recognize the important distinction between a title insurance policy issued to the owner of property, and a policy such as the one in question here, issued to a mortgagee who merely has a security interest in the property. See Bank of Miami Beach v. Lawyers’ Title Guar. Fund, 214 So.2d 95, 96 (Fla.Dist.Ct.App.1968), cert. dismissed, 239 So.2d 97 (1970); Goode, 162 So.2d at 270; CMEI, Inc. v. American Title Ins. Co., 447 So.2d 427, 428 (Fla.Dist.Ct.App.1984); Green, 179 N.J.Super. 105, 109, 430 A.2d at 946; Blackhawk Production Credit Association v. Chicago Title Insurance, 144 Wis.2d 68, 78-9, 423 N.W.2d 521, 525 (1988); Burke, supra, at § 2.2. This distinction relates to the definition and measurement of the loss. More specifically, an owner-insured is entitled to the full market value of the property, a value that is immediately diminished by the presence of title defects.
On the contrary, a mortgagee-insured’s loss cannot be determined unless the note is not repaid and the security for the mortgage proves inadequate. Blackhawk Prod. Credit Ass’n v. Chicago Title Ins. Co., 144 Wis.2d at 78-79, 423 N.W.2d at 525 (1988); CMEI, Inc., 447 So.2d at 428; Green, 179 N.J.Super. 105, 109, 430 A.2d at 946; Burke, supra, at § 2.2. Such is the case because it is only after the insurer or the insured sues on the note and the debtor fails to pay, that the actual loss can be determined. Burke, supra, at § 2.2. Put another way, it is not the mortgage note that is insured, but rather, what is insured is the loss resulting from a defect in the security. Southwest Title Ins. Co. v. Northland Bldg. Corp., 552 S.W.2d 425, 430 (Tex.1977). In the case at hand, the exact amount of this actual loss remains uncertain. The Supreme Judicial Court remanded the case for a determination of the loss, taking into consideration the passage of time and the Buyer’s improvements to the property. Until that determination, there is no reconveyance, no repayment of the purchase price from the Seller to the Buyer, and no way to ascertain the dollar amount of the Bank’s impaired security.
The plaintiffs attempt to circumvent this result by arguing that Ticor can pay the outstanding principal, interest and late charges due under the note and subrogate to the Bank’s rights. This argument is unavailing. Paragraph 5 of the policy states in relevant part that “[Ticor] shall have the option to pay or otherwise settle ... any claim insured against.” Furthermore, it states that “[i]n case loss or damage is claimed under this policy by an insured, [Ticor] shall have the further option to purchase such indebtedness for the amount owing thereon_” Upon exercising the option, Ticor becomes subrogated to the Bank’s rights according to Paragraph 10. The language of the policy makes it clear that subrogation is an option to be exercised at Ticor’s discretion. To require Ticor to pay at this juncture would have the effect of amending the policy by making subrogation mandatory rather than optional.
There are two cases not raised in the parties’ briefs that shed additional light on the meaning of Paragraph 6 entitled “Determination and Payment of Loss.” In McHenry Savings Bank v. Pioneer National Title Insurance Co., the Illinois Appellate Court examined Paragraph 6 of a mortgagee’s title insurance policy, the language of which was identical to Paragraph 6 of Ticor’s policy. 186 Ill.App.3d 238, 132 Ill.Dec. 617, 540 N.E.2d 357 (1989). In reversing the lower court’s grant of the insurer’s motion for summary judgment, the court emphasized that the mortgagee policy only insured against “actual loss.” On the point of actual loss, the court stated that there was an issue of material fact given that the record did not indicate if the property in question had been sold, nor did it indicate what its present value was. The court then equated “loss” with “liability” holding that “[wjithout such factual determinations it is impossible to ascertain what actual loss, if any, plaintiff has suffered as a result of the invalid mortgage lien, and, therefore it cannot be determined what the extent of defendant’s liability is under paragraph 6.” Id. 132 Ill.Dec. at 621, 540 N.E.2d at 361. This conclusion applies with equal force in the situation at hand, where the extent of liability will not be determined until the conclusion of the proceedings in Barnstable Superior Court.
The second case addresses the specific language of Paragraph 6(c) concerning when liability is “definitely fixed.” In Davis v. Stewart Title Guar. Co., the Missouri Court of Appeals for the Western District addressed the question of whether the insurer had vexatiously refused to pay under a title insurance policy issued on owned property. 726 S.W.2d 839, 842 (Mo.App.1987). When the plaintiff attempted to sell the property to an abutting church, he was told that the church had an easement for parking over part of the tract. Upon learning of the right of easement asserted by the church, the plaintiff contacted the title insurer and requested that it take action. The insurer refused and the plaintiff therefore brought an action on his own against the church for unlawful de-tainer.
The title insurance policy in Davis provided that when presented with a claim of an adverse interest to the insured property, the insurer had the option of pursuing a quiet title action without unreasonable delay, or of paying any loss resulting from the defect. Davis, 726 S.W.2d at 845. Regarding the timing of payment of the loss, the policy contained precisely the same language as Ticor’s policy, namely, that “[wjhen liability has been definitely fixed ... the loss or damage shall be payable within 30 days thereafter.” Davis, 726 S.W.2d at 845 n. 2. In a lengthy opinion, the court held that the liability of the insurer was definitely fixed when it refused to take any action to quiet title. Thus, the court held that an offer of payment of the loss was due thirty days thereafter. Davis, 726 S.W.2d at 855.
At first glance, this holding would seem to lend support to the Bank’s argument that “liability” and “loss” are not synonymous as liability was “fixed” in Davis before the loss was calculated. Upon closer examination, however, Davis is distinguishable because the policy in Davis was an owner’s policy and not a mortgagee’s policy such as that issued by Ticor. As discussed above, there are substantive differences between the two types of policies. The interest of an owner, such as the plaintiff in Davis, is immediately diminished by the presence of a defect, in that case, the easement. CMEI, 447 So.2d at 428; Green, 179 N.J.Super. 105, 109, 430 A.2d at 946; Burke, supra, at § 2.2. The policy issued by Ticor, however, is a mortgagee's policy which means that the actual loss can only be determined after the Buyer is sued on the outstanding note and fails to pay the judgment. See Burke, supra, at § 2.2. This determination will be made by way of the complaint in intervention asserted by the Bank for payment of the note. We are not unsympathetic to the plaintiffs concern that the loss may exceed the policy’s limit while the state action is pending. Until that action is concluded, however, the amount owed by Ticor is undetermined.
Our conclusion that the Bank’s action in this case was premature is supported by the existence of Paragraph 7 which states that “[n]o claim shall arise or be maintainable under this policy ... in the event of litigation until there has been a final determination by a court of competent jurisdiction_” According to the principles of construction discussed previously, we must assume that this provision can be read together with Note I which expanded the standard coverage to include the pending state case. Reading the two provisions together supports Ticor’s position, as “final determination” clauses refer to a “final determination of any litigation concerning the subject matter of a claim.” Burke, supra, at § 9.4.3 (Supp.1989) (emphasis added); see Eureka, 530 F.Supp. at 1118 n. 8 (no liability until “the litigation was finally resolved”). “Any litigation” would include the Supreme Judicial Court’s remand to Barnstable Superior Court in Thibbitts v. Crowley.
This construction of the “final determination” provision in Ticor’s policy is consistent with those cases addressing the issue of when a judgment is final for appeal purposes. The United States Supreme Court has held that a final decision is one that ends litigation and leaves the court with nothing to do but execute the judgment. Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945). Thus, a determination of liability is not a final decision where the issue of damages remains unresolved. Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 744, 96 S.Ct. 1202, 1206, 47 L.Ed.2d 435 (1976); Director, Office of Workers’ Compensation Programs, U.S. Dep’t of Labor v. Bath Iron Works Corp., 853 F.2d 11, 15 (1st Cir.1988) (rejecting argument that because remand involved a purely ministerial arithmetic function, the judgment was final).
Despite our conclusion that the Bank’s action in this case was premature, it is worth noting that, although rare, it is possible to negotiate a title insurance policy provision that permits recovery for losses prior to a final determination of litigation. See, e.g., Eureka, 530 F.Supp. at 1118. For example, the parties in one case drafted “Note II” of an owner’s title insurance policy to encompass loss or damage arising out of the enforcement or attempted enforcement of rights by tenants in the building covered by the policy. Id. at 1114. The court had to resolve the conflict between Note II and a “final determination” clause identical to that in Ticor’s policy.
The court held that standing alone, the “final determination” provision meant that the insurer would not be liable for any amount until “litigation was finally resolved.” Id. at 1118 n. 8. Unlike the present situation, however, the “final determination” provision could not be reconciled with “Note II.” Given that the parties had specifically negotiated the unique coverage of Note II, the court held that Note II prevailed, and the company was liable for losses regardless of the ultimate outcome of the tenants’ action. Id. at 1118. The court noted, however, that coverage of interim losses as provided for by the parties in Eureka was novel. Id. at 1117. Moreover, it is worth pointing out that Eureka involved an owner’s rather than a mortgagee’s policy of title insurance.
It follows that because there has been no breach of the title insurance contract, the plaintiffs have also failed to state a claim for violation of Mass.Gen.L. ch. 93A. Thus, that count of the complaint was also properly dismissed.
In sum, and for all of the reasons stated above, the district court did not err in dismissing without prejudice as premature the Bank’s action for payment under the title insurance policy and for violation of Mass. Gen.L. ch. 93A. Accordingly, the district court’s judgment is hereby affirmed. Costs to appellees.
. Honorable Douglas P. Woodlock, United States District Judge, presiding.
. Patrick M. Crowley was acting as Trustee of the Mashpee Industrial Park Realty Trust. He was replaced by Richard P. Crowley, who at the closing, conveyed the Mashpee property to South Cape. For simplicity purposes, the term "Buyer” shall be used to refer to both Thibbitts and South Cape.
. The court quoted Paragraph 6 in "pertinent part,” namely 6(a)(i) and (ii) which state:
6. Determination and Payment of Loss
(a) The liability of the Company under this policy shall in no case exceed the least of:
(i) the actual loss of the insured claimant; or
(ii) the amount of insurance stated in Schedule A, or, if applicable, the amount of insurance as defined in paragraph 2(a) hereof, or
(iii) the amount of the indebtedness secured by the insured mortgage as determined under paragraph 8 hereof, at the time the loss or damage insured against hereunder occurs, together with interest thereon.
. The opinion in Davis states that the plaintiff received the land as security for a promissory note. Davis, 726 S.W.2d at 842. Nonetheless the opinion makes it clear that the policy was "issued on owned property.” Likewise, in a previous appeal, the court stated that the plaintiff took out the title policy in conjunction with the real estate purchase. See Davis v. Stewart Title Guar. Co., 695 S.W.2d 164, 165 (Mo.App.1985). The plaintiff would not be considered an owner simply by virtue of a security arrangement given that Missouri follows the lien theory of mortgages. See R.L. Sweet Lumber Co. v. E.L. Lane, 513 S.W.2d 365, 368 (Mo.1974).
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_appbus
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
WESTINGHOUSE ELECTRIC CORPORATION, AEROSPACE DIVISION, Appellee, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO and CLC, Local Union No. 1805, Appellants.
No. 76-2268.
United States Court of Appeals, Fourth Circuit.
Heard April 4, 1977.
Decided Aug. 23, 1977.
Bernard W. Rubenstein, Baltimore, Md. (Edelman, Levy & Rubenstein, Baltimore, Md., on brief), for appellants.
Leonard E. Cohen, Baltimore, Md. (Jeffrey E. Rockman, Frank, Bernstein, Cona-way & Goldman, Baltimore, Md., on brief), for appellee.
Before WINTER, BUTZNER and HALL, Circuit Judges.
BUTZNER, Circuit Judge:
The International Brotherhood of Electrical Workers (I.B.E.W.) appeals an order of the district court vacating an arbitrator’s award against Westinghouse Electric Corporation. We affirm because the arbitrator’s allowance of damages was improper.
The collective bargaining agreement permits Westinghouse to shut down for vacations, leaving the time of the shutdown to negotiations. The company is required to designate this time before January 1 of the year in which the shutdown is to occur.
On November 25,1974, Westinghouse formally notified the union that it was planning a vacation shutdown for Christmas week of 1975. This decision was based on sound business reasons, and at no time has the union questioned the company’s motives for choosing that week. After a slight delay attributable to the fault of neither party, a negotiating session was held on December 16, 1974. At that time, the union representative raised several questions which had been discussed at an earlier union meeting. Since the representative had to report to the full membership for a vote, he asked that a final decision be delayed until after the next union meeting, scheduled for January. However, because the collective bargaining agreement required that the shutdown be designated before January 1, and because other unions at the plant had already agreed to the Christmas week shutdown, Westinghouse advised the 1. B.E.W. on December 20, 1974, that the vacation shutdown would take place during Christmas week, 1975.
Dissatisfied with the company’s unilateral action, the union filed a grievance, and when the dispute remained unsettled, requested that it be submitted to arbitration. After a hearing, the arbitrator found that the company had violated the collective bargaining agreement by failing to provide sufficient time for negotiations in advance of the January 1 deadline, and he awarded each employee three additional paid vacation days.
Westinghouse then filed this action to set aside the arbitrator’s award. On cross-motions for summary judgment, the district court granted the company’s request. It found that the arbitrator ignored the language of the bargaining agreement by viewing the shutdown itself, instead of just the time of the shutdown, as a matter for negotiation. It also found that the arbitrator exceeded the scope of the issues submitted to him for arbitration. Nevertheless, the court accepted his finding that the 37 days between the date of the company’s notice and the January 1 deadline was too short a period to allow for negotiations. Finally, the court concluded that since the union had failed to prove any monetary loss, the award of damages was impermissi-bly punitive.
We find no error in the district court’s acceptance of the arbitrator’s finding that the company allowed insufficient time for negotiations. Notwithstanding this violation, we agree with the district court that the arbitrator’s award of damages cannot be sustained.
In International Paper Co., Container Div., 76-1 ARB 18214 (1976), the arbitrator found that the company had violated a collective bargaining agreement by scheduling a vacation shutdown. Nonetheless, with respect to the appropriate remedy for the violation, he stated:
The Union has asked that the remedy for the breach be an award of additional vacation time with pay. I see no justification for such a remedy. Though the vacation shutdown interfered with certain valuable employee rights, no employee lost any vacation time because of the shutdown. Such an award would be punitive in nature, and there is nothing in the record to justify a punitive sanction. The Company acted in good faith, with advance notice and made a sincere effort to reach an understanding of its rights under the Agreement .... I can find no basis for calculating any monetary damages in this case or for devising an effective affirmative remedy.
Similarly, in another vacation shutdown case, Philip Carey Mfg. Co., 37 LA 134, 136 (1961), the arbitrator said:
[Tjhere is no established concept of which I am aware to the effect that contract violations involving no monetary loss to employees are to be remedied by payments based on inconvenience or designed as punitive damages. On the contrary, there are innumerable cases in which arbitrators have found violations of contract provisions without awarding any monetary compensation, when no monetary losses are shown.
As the district judge noted, these arbitration decisions embody principles that may be viewed as a part of the “industrial common law” which is incorporated into the collective bargaining agreement. See United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 581-82, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960). With respect to vacation shutdowns, compensatory damages may be awarded only when a breach of the bargaining agreement causes a monetary loss. In the absence of willful or wanton conduct, punitive damages should not be awarded. See also F. Elkouri and E. El-kouri, How Arbitration Works 356-57 (3d ed. 1973); 0. Fairweather, Practice and Procedure in Labor Arbitration 303-09 (1973).
In this case, the union makes no claim that the company’s conduct was willful or wanton, and the arbitrator characterized his award as “non-punitive.” With respect to the employees who took their vacation during the shutdown, the arbitrator ruled:
Employees who have reserved three days of vacation for this particular period should be granted three additional days of paid vacation in 1976.
It is clear, however, that none of these employees suffered any monetary loss. Each received the exact number of paid vacation days to which he was entitled without losing any days of work.
The entitlement to damages of the workers who chose to take their vacations before Christmas week presents a closer issue. As to them, the arbitrator ruled:
Employees who have not been deprived of vacation time because they have already taken their full vacations should not be compelled to take a three-day layoff without pay. They should therefore be paid for the three days.
At first blush this award seems plausible. However, examination of the arbitration record discloses that there is no evidence to support a finding of any compensable damage to these employees. The arbitrator ruled that the only breach of the agreement was the company’s failure to afford sufficient time for negotiations. The union did not introduce proof that this violation influenced any employee’s scheduling of his vacation. Thus, no causal relationship between the company’s violation of the agreement and the loss claimed by these employees has been shown.
The employees had about 12 months notice that the vacation shutdown was scheduled for Christmas week, 1975. Instead of insisting that all vacations coincide with the shutdown, the company accommodated its employees who desired to schedule their vacations at other times. No employee testified that he suffered any monetary loss, inconvenience or hardship. Moreover, the evidence fails to show, and it is unreasonable to assume, that even if the company had allowed sufficient time for negotiations, a shutdown could have been scheduled that would have suited the convenience of every employee.
Though nominally compensatory, the award was actually punitive. Because no provision of the contract warranted this punishment, the arbitrator exceeded his jurisdiction. See United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). We therefore affirm the judgment of the district court.
. Article XIV, section 1 of the agreement provides in part:
The Company will schedule vacation shutdowns for vacation purposes, and the time of year of the vacation shutdowns will be a matter for negotiations. The vacations will run concurrently with the vacation shutdown periods . .
The Company shall be required to designate the time of the vacation shutdown or shutdowns before January 1 of the vacation
year after such time has been made a matter for negotiations as above provided.
. The company proposed to schedule the vacation shutdown during Christmas week because the natural gas supply would be curtailed in winter; in the past, many employees had taken Christmas week off even when a shutdown was not scheduled; and the employees would use only three of their vacation days since the week already had two holidays.
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_suffic
|
E
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that there was insufficient evidence for conviction?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
Jean Whitehouse RAMEY, Plaintiff-Appellee, v. The CINCINNATI ENQUIRER, INC., and American Financial Corporation, Defendants-Appellants. Angiolina MORELLI, Plaintiff-Appellee, v. The CINCINNATI ENQUIRER, INC., and American Financial Corporation, Defendants-Appellants. Albert HARRIS, Plaintiff-Appellee, v. The CINCINNATI ENQUIRER, INC., and American Financial Corporation, Defendants-Appellants. Jean W. RAMEY et al., Plaintiffs-Appellees, v. The E. W. SCRIPPS COMPANY et al., Defendants-Appellants. Cecil F. SCHOEN, a.k.a. Cecile F. Schoen, Plaintiff-Appellant and Cross-Appellee, v. The CINCINNATI ENQUIRER, INC., et al., Defendants-Appellees and Cross-Appellants (3 cases).
Nos. 74-1110 to 74-1116.
United States Court of Appeals, Sixth Circuit.
Dec. 26, 1974.
John A. Lloyd, Jr., Frost & Jacobs, John L. Muething, Louis F. Gilligan, Cincinnati, Ohio, for appellants in Nos. 74— 1110 to 74^1113.
Jerome Goldman, Douglas G. Cole, C. R. Beirne, Cincinnati, Ohio, for appellee in No. 74H110.
Arnold Morelli, Cincinnati, Ohio, for appellee in No. 74 — 1111.
Irving Harris, Cincinnati, Ohio, for ap-pellee in No. 74 — 1112.
James W. Henglebrok, Cincinnati, Ohio, Richard F. Stevens, H. Stephen Madsen, Baker, Hostetler & Patterson, Cleveland, Ohio, for appellants in Nos. 74 — 1114, 74 — 1115 and appellees in No. 74-1116.
C. R. Beirne, Cincinnati, Ohio for ap-pellees in No. 74-1114.
Ambrose H. Lindhorst, Gene Mesh, Cincinnati, Ohio, David C. Bayne, Professor of Law University of Iowa College of Law, Iowa City, Iowa, for appellees in No. 74-1113.
Ambrose H. Lindhorst, Gene Mesh, Cincinnati, Ohio, for appellees in No. 74— 1115 and appellants in No. 74 — 1116.
Before PHILLIPS, Chief Judge, and EDWARDS and McCREE, Circuit Judges.
PHILLIPS, Chief Judge.
These are appeals from an order granting attorneys’ fees in four stockholder derivative suits that were dismissed on grounds of mootness after trial but before adjudication. The District Judge’s order awarded a total of $865,-000 in attorneys’ fees and $35,115.96 in expenses to be paid to plaintiffs’ attorneys in four cases by defendants Enquirer and Scripps, with a contribution of $145,375.00 on the part of the minority shareholders to be paid by American Financial Corporation.
This litigation had its genesis in an antitrust action filed against the E. W. Scripps Company by the Department of Justice in 1964. The Scripps-Howard interests, while owning Cincinnati’s only evening newspaper, The Cincinnati Post and Times Star, also acquired the majority interest in the stock of The Cincinnati Enquirer, Cincinnati’s only morning newspaper. The antitrust action was tried before the same District Judge who rendered the judgment involved in the present appeal and was terminated by a consent decree requiring that Scripps divest itself within 18 months of its controlling interest in the Enquirer.
Early in 1970 the management of the Enquirer, ultimately supported by a majority of the minority shareholders, put together a bid to Scripps-Howard to purchase Scripps-Howard’s 60 per cent share of the Enquirer stock. A stock acquisition agreement was signed which provided that the Enquirer would purchase all of the Enquirer stock owned by Scripps-Howard at $35 per share, IIV2 million dollars to be paid in cash and the balance to be paid by the issuance of 60,000 shares of preferred stock.
The details of the plan and its proposed financing by the Prudential Life Insurance Co. of America were as follows:
1) The Enquirer would purchase directly from the Scripps group 330,558 Enquirer shares at $35 a share, totalling $11,569,530.
2) Of this sum the Enquirer was to borrow $10,500,000 from the Prudential Life Insurance Co., to be repaid at 12 per cent interest over 16 years.
3) The balance of 171,428 shares owned by the Scripps group would be purchased by the Enquirer by issuance and exchange of 60,000 newly authorized shares of convertible preferred stock that Scripps then agreed to sell (and Prudential by separate contract agreed to buy) for $6,000,000 in cash. The Enquirer would be obligated to pay a yearly dividend of $7.65 on each share of preferred stock and to redeem a minimum of 3,000 shares a year at $110 per share.
4) Under this arrangement the Prudential Life Insurance Co. would have invested $16,500,000, on which the Enquirer would be required to pay a return of 12 per cent on the loan and about ten per cent on the preferred stock. On default of the Enquirer’s obligation on either the preferred stock or the debt, Prudential could acquire the entire assets of the Enquirer.
5) The Enquirer was able to contribute only one million dollars from its working capital to accomplish this purchase.
6) The redemption of preferred stock, plus the interest on the loan, would equal about one and one-half million dollars a year. Previously the Enquirer had been netting about two million dollars each year after taxes.
7) No provision was made for any offer to the minority stockholders of the Enquirer. At a stockholders’ meeting on October 23, 1970, the stock acquisition plan described above was approved by a vote of 222,930 to 75,307, with the Scripps’ 60 per cent of the shares not voting.
In October 1970 three stockholders’ derivative suits (Ramey, Morelli and Harris) were filed to set aside this stock purchase plan, alleging, among other things, that the proxy statement contained untrue and misleading statements of material fact and that the plan violated various provisions of both federal and Ohio law. Two of these suits (Ramey and Morelli) were filed before the stockholders’ meeting and resulted in the order of the District Court on October 22 enjoining the execution of the purchase agreement until further order. The derivative action of Harris was filed on October 26. Later in November an action was filed on behalf of a stockholder named Schoen. This suit also attacked the acquisition agreement, essentially contending that the proposed transaction was fraudulent.
The cases were tried for about two months, concluding January 18, 1971. Ten days after the trial and before any opinion had been announced, the litigation was mooted when Scripps, making use of an escape clause in the acquisition agreement, terminated its proposed deal with the Enquirer group. This termination by Scripps was prompted by a bid of $35 a share (the same figure as the Enquirer bid, but extended to all minority shareholders) from a California-based trading stamp company called Blue Chip Stamps. Thereafter, and before the court had acted on a petition by the United States and the Enquirer to require the Scripps group to extend the Enquirer agreement, the American Financial Corporation offered Scripps-Howard $40 per share for its 60 per cent interest in the Enquirer’s stock and offered the same amount per share to all of the minority shareholders. This offer was accepted by Scripps-Howard. AFC proceeded to acquire the entire Scripps-Howard interest and ultimately all of the minority shares.
The District Judge subsequently issued an informal opinion disclosing the findings of fact that he would have made and the conclusions of law that he would have entered had the case not been1 mooted. He then heard and decided the ■ requests by the different attorneys for attorneys’ fees.
In his fee opinion, the District Judge described the Enquirer-Scripps deal, as originally proposed, in the following language:
“However, it is to be noted that the transaction would have changed the Enquirer stock from ‘safe’ to ‘risky’ or ‘high leverage.’ And the Enquirer-Scripps deal was accurately described as ‘thin.’ As stated by one of the Enquirer directors, it was no deal for ‘widows or orphans.’ ”
In the same opinion he also said in part:
“The purchase by a corporation of its own shares has a potential for abuse, and restrictive legislation has therefore grown up to meet the need to prevent such abuse. Hence, any time a corporation attempts to purchase its own shares, especially on a shoestring, the transaction has to be cast in a form which meets the legal requirements and a number of extremely difficult questions in the area of corporate law and finance arise. One restriction on purchase by a corporation of its own shares is the Impairment of Capital Statute, Ohio Revised Code 1701.35, which provides that after such purchase the ‘debts’ of the corporation must not exceed its assets plus ‘stated capital.’ That explains why only so much money could be borrowed from Prudential and the balance had to be raised by sale of preferred stock which could be determined to be ‘equity’ and not ‘debt.’ In this case the preferred stock had warrants, voting powers, conversion privileges, redemption.and other rights, and a difficult and serious question was presented as to whether, though cast in the form of ‘equity,’ it was not in law and in fact ‘debt.’ If the shares were ‘debt,’ the assets of the Enquirer after the purchase of the Scripps shares would not have exceeded debts plus stated capital as required by ORC 1701.35, and the deal would have been illegal.
“That was just one of many complex questions. Another involved the corporate power and many others arose in connection with the proxy statement and the claims that statements therein were materially misleading. One of these was it was not accurate in its portrayal of the effect of the deal on the Enquirer’s ability to pay dividends and its dividend policy. Another was that in describing the effect of the plan on the book value of the Enquirer stock (proxy statement, p. 6) instead of a drop from plus $15.42 per share to ‘none,’ the proxy statement should have shown a drop from $15.42 to minus $13.07.
****:{::(:
“[I]n the Enquirer case, by deciding to change stated capital as proposed from $5 per share to $1 per share, the shareholders were saying in effect they chose to embark on the proposed corporate venture and in order to do so to completely change the capital structure of the Enquirer, eliminate the shareholders’ equity, change its stock from ‘safe’ to ‘risky,’ and agreed to pay for the outstanding shares out of future earnings.
* * * * * *
“We also considered the commentary and the chapter on the Model Corporation Act — the commentary to § 5, ‘Right of corporation to acquire and dispose of its own shares.’ This points out that most statutes, like the Model Act, provide in substance that á corporation’s own shares shall be purchased only out of surplus except in special situations specified in the statute. And of the many cases, one which we found noteworthy is Mountain States [State] Steel Foundries, Inc. v. C.I.R., 284 F.2d 737 (5 [4] Cir., 1960), where an impairment statute similar to Ohio’s was under the glass.
“This should suffice to underline that a proposed acquisition of the Enquirer of its own shares, cast in the form it was, was not only ‘thin’ financially, but legally as well.
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“As to economic benefit, while there is dispute, this much can be said. If the Enquirer had purchased the Scripps shares, that is, if the plan had not been restrained, the Enquirer would have paid out $17.5 million in principal and would have lost the income on investments owned by it which had to be liquidated to apply on the purchase price of the stock in the sum of $1,026,748. In addition, the Enquirer would have obligated itself to interest payment on the loan of $15,975,000, and dividend payments on preferred stock of $4,590,000, and payment of premiums on required preferred stock redemption of- $600,000, which payments would have totaled $22,191,748, in addition to the $17.5 million in principal previously stated. Also, as to economic benefit, it can be said that the corporation, as Mr. Goldman contended, received nothing for the $17.5 million it paid for its own stock, or would have paid. If the deal had gone through, the book value of the stock would have gone from plus to minus, and it is probable the market value would have gone way down, at least temporarily. An incidental benefit conferred on the shareholders was that in the time it took to litigate Scripps kept its option open, and along came the Blue Chip offer to all shareholders for $35 a share, and the AFC offer to all shareholders of $40 a share, the difference between $40 and $35 being about $2.5 million or more to Scripps alone.
“Nevertheless, in fixing the fee we have not gone on the assumption that there is an identifable fund, such as the interest on the obligation to Prudential. We have concluded that as far as economic benefit and other ways this case is unique, and, while we conclude that a significant service was performed by the applicants, and there is strong evidence of economic benefit, especially in the testimony... ”
The District Judge then proceeded to decide the claims of the different attorneys for fees. He noted that the claims had totaled a maximum of $1,750,000. His award was less than half of that sum, $750,000, augmented by $115,000 of prejudgment interest, an item contended by appellants to be unprecedented on these facts. The District Judge also ordered that ten per cent of the fee be awarded to Mesh, the attorney for Schoen, with the balance to be divided one-third each to the three law firms representing Ramey, Morelli and Harris, respectively. He also ordered that $326,-290.90 be paid by the Scripps-Howard group, $393,333.60, plus $35,115.95 expenses, by the Enquirer, and $145,375.50 by American Financial Corp., which had, by court order, withheld $2.00 a share for legal fees when it bought the shares of the minority stockholders.
The principal appellate issues appear to us to be these:
1) Did this litigation produce such a benefit for the corporation (The Cincinnati Enquirer, Inc.) as to justify the award of fees?
2) Did the District Judge abuse his discretion by awarding excessive fees?
3) Was the award of prejudgment interest legally justified?
4) Assuming attorneys’ fees were justified in some sum, could they legally be awarded against any party other than the Enquirer?
5) Did the District Judge commit error in dismissing the Scripps-Howard indemnity cross-claim against the Enquirer and AFC?
1) The Corporate and Stockholder Benefit
The District Court’s proposed findings of fact and conclusions of law in the original derivative actions found violations of state and federal laws that would have required preparation of an amended proxy statement and resubmission of the acquisition plan to the Enquirer shareholders. It is clear to this court that the District Judge made no findings of deliberate concealment or fraud. It also is clear that although appellants describe the violations found by the District Judge as “technical,” nonetheless they would have served to require disclosures that would have alerted the Enquirer’s minority stockholders further concerning the financial burden that their corporation was undertaking to assume.
There was testimony before the District Judge from which he could have concluded, as he did, that the Enquirer’s management was proposing a high-risk plan. The cash payment of over one million dollars would have depleted the Enquirer’s working capital, thereby impairing liquidity. The $16,500,000 obligation to Prudential, including the loan and the preferred stock, was about equal to the total asset value of the Enquirer. The plan would have raised the Enquirer’s debt ratio to about 90% from a relatively low 21%. It is clear that such a highly leveraged capital structure could bring about a financial disaster if the Enquirer suffered even a temporary decline in revenues. The District Judge had ample reason to doubt that Enquirer earnings could service the Prudential loan and at the same time meet the preferred stock dividend and redemption requirements. Finally, we note that the plan of acquisition would have produced no corporate benefit for the Enquirer commensurate with the substantial debt that it would have assumed.
As we see the matter, plaintiffs’ derivative suits succeeded in delaying consummation of the risky repurchase plan until two other companies made offers that would have accomplished the Scripps-Howard divestiture without the adverse effect upon the Enquirer’s capital structure. Further, insofar as the derivative actions exposed inaccuracies and misleading statements in the proxy materials, this litigation constituted “corporate therapeutics,” which benefits both the corporation and its stockholders. Mills v. Electric Auto-Lite Co., 396 U.S. 375, 396, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970). The plaintiffs’ efforts also conferred an incidental benefit upon all of the Enquirer’s shareholders. Had the initial repurchase plan not been delayed, the more attractive AFC offer presumably would not have been made.
On the record before us, we cannot hold clearly erroneous the findings of the District Court that the plaintiffs’ suits resulted in a substantial benefit to the Enquirer. Fed.R.Civ.P. 52(a).
We conclude that the services performed by plaintiffs’ attorneys justify an award of fees, even though no fund has been brought into court and even though it may be impossible to assign an exact monetary value to the benefit conferred upon the corporation. In this respect the present case is controlled by Mills v. Electric Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970), in which the Supreme Court outlined the following definitive view on the award of attorneys’ fees when no specific fund has been produced by the litigation:
“While the general American rule is that attorneys’ fees are not ordinarily recoverable as costs, both the courts and Congress have developed exceptions to this rule for situations in which overriding considerations indicate the need for such a recovery. A primary judge-created exception has been to award expenses where a plaintiff has successfully maintained a suit, usually on behalf of a class, that benefits a group of others in the same manner as himself. See Fleischmann Corp. v. Maier Brewing Co., 386 U.S. [714], at 718-719 [87 S.Ct. 1404, at 1408, 1409, 18 L.Ed.2d 475]. To allow the others to obtain full benefit from the plaintiff’s efforts without contributing equally to the litigation expenses would be to enrich the others unjustly at the plaintiff’s expense. This suit presents such a situation. The dissemination of misleading proxy solicitations was a ‘deceit practiced on the stockholders as a group,’ J. I. Case Co. v. Borak, 377 U.S. [426], at 432 [84 S.Ct. 1555, at 1560, 12 L.Ed.2d 423], and the expenses of petitioners’ lawsuit have been incurred for the benefit of the corporation and the other shareholders.
“The fact that this suit has not yet produced, and may never produce, a monetary recovery from which the fees could be paid does not preclude an award based on this rationale. Although the earliest cases recognizing a right to reimbursement involved litigation that had produced or preserved a ‘common fund’ for the benefit of a group, nothing in these cases indicates that the suit must actually bring money into the court as a prerequisite to the court’s power to order reimbursement of expenses.
“Other cases have departed further from the traditional metes and bounds of the doctrine, to permit reimbursement in cases where the litigation has conferred a substantial benefit on the members of an ascertainable class, and where the court’s jurisdiction over the subject matter of the suit makes possible an award that will operate to spread the costs proportionately among them. This development has been most pronounced in shareholders’ derivative actions, where the courts increasingly have recognized that the expenses incurred by one shareholder in the vindication of a corporate right of action can be spread among all shareholders through an award against the corporation, regardless of whether an actual money recovery has been obtained in the corporation’s favor. For example, awards have been sustained in suits by stockholders complaining that shares of their corporation had been issued wrongfully for an inadequate consideration. A successful suit of this type, resulting in cancellation of the shares, does not bring a fund into court or add to the assets of the corporation, but it does benefit the holders of the remaining shares by enhancing their value. Similarly, holders of voting trust certificates have been allowed reimbursement of their expenses from the corporation where they succeeded in terminating the voting trust and obtaining for all certificate holders the right to vote their shares. In these cases there was a ‘common fund’ only in the sense that the court’s jurisdiction over the corporation as nominal defendant made it possible to assess fees against all of the shareholders through an award against the corporation.
“In many of these instances the benefit conferred is capable of expression in monetary terms, if only by estimating the increase in market value of the shares attributable to the successful litigation. However, an increasing number of lower courts have acknowledged that a corporation may receive a ‘substantial benefit’ from a derivative suit, justifying an award of counsel fees, regardless of whether the benefit is pecuniary in nature.
“In many suits under § 14(a), particularly where the violation does not relate to the terms of the transaction for which proxies are solicited, it may be impossible to assign monetary value to the benefit. Nevertheless, the stress placed by Congress on the importance of fair and informed corporate suffrage leads to the conclusion that, in vindicating the statutory policy, petitioners have rendered a substantial service to the corporation and its shareholders.” Id. at 391 — 396, 90 S.Ct. at 625 — 627.) (footnotes omitted.)
Moreover, the fact that these suits became moot does not preclude recovery of attorneys’ fees. So long as a substantial benefit is conferred upon the corporation, it is not necessary that the litigation be brought to a successful completion. Kahan v. Rosenstiel, 424 F.2d 161, 167 (3d Cir.), cert. denied, 398 U.S. 950, 90 S.Ct. 1870, 26 L.Ed.2d 290 (1970); see Blau v. Rayette-Faberge, Inc., 389 F.2d 469, 473-474 (2d Cir. 1968).
We have no doubt that the District Court was warranted in awarding counsel fees to plaintiffs’ attorneys.
2) Reasonableness of Fees
The trial judge in determining the value of services rendered by lawyers who have tried a case before him ordinarily has an infinitely better opportunity to evaluate those services than does an appellate court. Therefore, appellate courts hold that the trial judge’s determinations on legal fees should not be set aside unless there is a clear abuse of discretion.
In an early case the United States Supreme Court stated this principle clearly:
“The conclusion to which we have come is that, under the circumstances of this case, the Circuit Court had the power, in its discretion, to allow to the complainant, Yose, his reasonable costs, counsel fees, charges, and expenses incurred in the fair prosecution of the suit, and in reclaiming and rescuing the trust fund and causing it to be subjected to the purposes of the trust. The allowances made for these purposes we have examined, and do not find anything therein seriously objectionable. The court below should have considerable latitude of discretion on the subject, since it has far better means of knowing what is just and reasonable than an appellate court can have.” Trustees v. Greenough, 105 U.S. 527, 537, 26 L.Ed. 1157 (1881) (Emphasis added.)
This circuit over the years has pointed out the considerations that enter into the fixing of reasonable fees by the court. They include 1) the value of the benefit rendered to the corporation or its stockholders, 2) society’s stake in rewarding attorneys who produce such benefits in order to maintain an incentive to others, 3) whether the services were undertaken on a contingent fee basis, 4) the value of the services on an hourly basis, 5) the complexity of the litigation, and 6) the professional skill and standing of counsel involved on both sides. Denney v. Phillips & Buttorff Corp., 331 F.2d 249 (6th Cir.), cert. denied, 379 U.S. 831, 85 S.Ct. 61, 13 L.Ed.2d 39 (1964); Pergament v. Kaiser-Frazer Corp., 224 F.2d 80 (6th Cir. 1955); In re Detroit Int’l Bridge Co., 111 F.2d 235 (6th Cir. 1940).
Denney presents a fact situation quite similar to the instant case in that no cash fund ever was developed from which fees could be paid:
“The derivative action concerned the purchase by the respondent of 60,000 shares of stock, owned by the controlling stockholders, in Wm. R. Moore Dry Goods Company for $2,700,000. While the derivative action was pending and before it was assigned for trial, the officers and directors rescinded the purchase of the Moore stock. On the former appeal we held that the purchase of the stock, at least, constituted constructive fraud. On remand we instructed the District Court to require the defendants (officers and directors of the respondent) to pay to the respondent interest on $2,700,000 from the date of the commencement of the action to the date of rescission and to fix attorneys’ fees for the petitioners. We held that the fact that the defendants rescinded the transaction before the court had an opportunity to pass upon the merits of the case would not defeat the right of counsel to compensation.
“The trial judge entered judgment for interest in the sum of $40,800. Counsel for the respondent claim that this was the only fund recovered for the corporation. They further claim that under Tennessee law an allowance of attorneys’ fees must be limited to an amount commensurate with this recovery. In support of this theory, counsel cite Southern v. Beeler, Atty. Gen., 183 Tenn. 272, 195 S.W.2d 857. More relevant to the issue in this case is Grant v. Lookout Mountain Co., 93 Tenn. 691, 28 S.W. 90, 27 L.R.A. 98. There the court held that since the minority stockholders by their action had benefited the corporation, it was therefore responsible for proper and reasonable attorneys’ fees. The court further determined that the attorneys were entitled to a lien for their fees upon the land conveyed by the deeds which were canceled by the action of the minority stockholders.
“It cannot be said that the cancellation of the purchase of the Moore stock did not result from the action of the minority stockholders. Its cancellation inured to the benefit of the corporation by restoring $2,700,000 in assets in lieu of the Moore stock. After the rescission of the purchase of the Moore stock, or its resale, the trial judge entered an order impounding $270,000 of the corporation’s funds out of which attorneys’ fees might be paid. This order was made without prejudice to the contentions of any of the parties.
“The court granted judgment in favor of the petitioners for $235,000 attorneys’ fees and for $6,227.98 expenses. The trial judge found that the services were of vast proportions and that they were effective. He took into consideration the time spent by the lawyers, the complexity of the legal questions involved, the results accomplished, the professional standing of petitioners, and the professional standing of respondent’s lawyers. He viewed the transaction in its entirety based upon all the facts in the case. The judge also took into account the public policy aspect to stockholders’ derivative actions, i. e., that they serve a good purpose and should be encouraged rather than discouraged.” Id. 331 F.2d at 250-251.
The District Judge in the instant case found on substantial evidence that this was difficult and complex litigation, that the public had a stake in this and similar litigation, that the lawyers on both sides were competent and of high standing in their profession, and that plaintiffs’ lawyers had contingent agreements that could not possibly compensate them (or encourage others) in relation to the services performed.
On the subject of amount of fees, the plaintiffs relied upon three witnesses, Mr. Jerome Goldman, Mr. James D. St. Clair, and Mr. Henry P. Jeffrey — all capable and experienced attorneys of excellent reputation. Their opinions as to fees earned in the subject litigation were $1,750,000, $1,500,000 and $1,250,000, respectively.
It does not appear to this court that the defendants ever really anticipated escaping from payment of substantial attorney fees. They called as expert witnesses the Honorable Earl Morris, former President of the American Bar Association, and Mr. Thomas Conlan, a prominent member of the Cincinnati Bar. Morris’ total estimate of an appropriate fee was just under $400,000 and Conlan’s was $465,000. While the $750,-000 awarded by the District Judge exceeds the defendants’ estimates, it is approximately half of the plaintiffs’ claims. As we have pointed out, the District Judge found that defendants’ benefit from this litigation was substantial. He did not pin a specific figure upon the benefit, but he had before him testimony that would have allowed a finding of between $7,500,000 and $17,500,000. We find no abuse of discretion in the District Court’s award of the sum total of fees.
We have considered the subsidiary argument between the attorneys for plaintiffs in the consolidated cases, who had stipulated to an equal division of fees between three firms representing Ra-mey, Morelli and Harris, and attorney Mesh in the Schoen case. Similarly, we find no abuse of discretion, and no basis in law or fact for either setting aside or increasing the ten percent of the total fee awarded to Mesh, the attorney for plaintiff Schoen.
3) Prejudgment Interest
This court, however, finds no legal grounds for the $115,000 award of “prejudgment interest.” The District Court said:
“In fixing the amount of the award now the Court must also take into account the fact that it should have been fixed sixteen months ago, and would have been but for the fact that the Enquirer’s application to have Scripps pay part or all of the fee was delayed and much time was taken to try to get the matter settled.
“As a result the Enquirer and AFC have had use of the money, and, in that connection, a representative of AFC testified that they expected to make 15% per annum from their capital. The money paid into a fund at the Court’s direction when AFC offered to buy the minority shareholders has been on interest.”
We recognize that some courts have regarded prejudgment interest as being justified by the need for adequate compensation so as to make the injured party whole. See United States v. Michael Schiavone & Sons, Inc., 450 F.2d 875 (1st Cir. 1971); Louisiana & Arkansas Ry. v. Export Drum Co., 359 F.2d 311 (5th Cir. 1966).
In the instant case, however, we feel that the attorneys involved have been compensated amply for their services by the District Judge’s fee award. Obviously, the District Judge allowed fees based not on quantum meruit alone but in substantial part upon the favorable results of their labors. As we have noted, he made no findings of fraud or overreaching that might justify punitive damages. We find no evidence of dilatory tactics or purposeful delay on the part of defendants.
In the instant case the attorneys’ fees ultimately allowed were not a liquidated sum or a sum certain until the entry of the District Court’s judgment for fees filed on October 10, 1973. In a recent case the Ninth Circuit stated:
“True, claims for ‘reasonable’ attorneys’ fees, being unliquidated until they are determined by a court, are not entitled to pre-judgment interest as would be certain liquidated claims. But once a judgment is obtained, interest thereon is mandatory without regard to the elements of which that judgment is composed. Cf. United States v. Michael Schiavone & Sons, Inc., 450 F.2d 875 (1st Cir. 1971).” Perkins v. Standard Oil Co., 487 F.2d 672, 675 (9th Cir. 1973).
The judgment of the District Court is modified to allow interest on the award of $750,000 in fees from October 10, 1973.
4) Liability for the Attorneys’ Fees
We now turn to the question of whether the attorneys’ fees can be awarded legally against any party other than the Enquirer.
This appeal grows out of derivative actions filed on behalf of the Enquirer by four of its minority stockholders. The Enquirer itself was named as a nominal defendant, but the real defendants were Scripps-Howard and individual officers and directors of the Enquirer. As the Ramey complaint makes clear, it was a corporate right of the Enquirer that the suits sought to enforce:
“This action is filed on behalf of Enquirer for its benefit and the benefit of its shareholders as a shareholder’s derivative action to enforce a right and cause of action of Enquirer which should be enforced by said corporation, but on which said corporation refuses to act because it is being prevented from so doing by the Board of Directors of Enquirer..
Thus it appears that this case presents typical derivative actions within the meaning of the conventional hornbook definition:
“In legal effect, a stockholders’ suit is one by the corporation conducted by the stockholder as its representative. The stockholder is only a nominal plaintiff, the corporation being the real party in interest.
“The suit is a derivative one, and is to be distinguished from a representative action brought by a stockholder as an individual and for his own benefit in behalf of himself and other stockholders similarly situated. Where plaintiff does not seek to enforce relief for the benefit of the corporation, it is not derivative and not a stockholders’ suit.” 13 W. Fletcher, Private Corporations § 5939 (perm. ed. 1970) (footnotes omitted).
It is a general principle of corporate law that a minority stockholder who proceeds at his own expense in a derivative action resulting in a substantial benefit to the corporation is entitled to recover reasonable counsel fees from the corporation that has benefitted from his efforts. See 19 Am.Jur.2d Corporations § 588, at 111 (1965); 13 W. Fletcher, Private Corporations § 6045 (perm. ed. 1970); 10 C. Wright & A. Miller, Federal Practice and Procedure § 2675 (1973); Annot., Litigation Expense — Corporate Charge, 39 A.L.R.2d 580, 583 (1955); An-not., Litigation Expense — Corporation Liability, 152 A.L.R. 909, 914 (1914).
The cases make it clear'that “[t]he obligation to reimburse a shareholder who brings a successful derivative suit is an obligation of the corporation.” Levine v. Bradlee, 378 F.2d 620, 622 (3d Cir. 1967). See Mills v. Electric Auto-Lite Co., 396 U.S. 375, 389-390, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970) (assessing fees against corporation); Kahan v. Rosenstiel, 424 F.2d 161, 167 (3d Cir.), cert. denied, 398 U.S. 950, 90 S.Ct. 1870, 26 L.Ed.2d 290 (1970) (“In derivative suits. the corporation which benefits from the suit... is directed to pay [attorneys’ fees].”); Denney v. Phillips & Buttorff Corp., 331 F.2d 249 (6th Cir.), cert. denied, 379 U.S. 831, 85 S
Question: Did the court rule that there was insufficient evidence for conviction?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
songer_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.
Joshua Lee CALLAND, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
No. 14172.
United States Court of Appeals Seventh Circuit.
Oct. 10, 1963.
Knoch, Circuit Judge, dissented.
Edwin A. Rothschild, Chicago, Ill., Joshua Lee Calland, for appellant.
Alfred W. Moellering, U. S. Atty., Joseph F. Eichhorn, Asst. U. S. Atty., Fort Wayne, Ind., for appellee.
Before SCHNACKENBERG, KNOCH and KILEY, Circuit Judges.
SCHNACKENBERG, Circuit Judge.
Joshua Lee Calland, petitioner, has appealed from an order of the district court entered January 17, 1963, which denied his motion of October 30, 1962 requesting that the court grant him the right to appeal his conviction and sentence by the district court on April 10, 1962, despite petitioner’s explanation that, although the time for filing a notice of appeal had long since expired when his motion was filed, the delay was occasioned by the fraud and ineffective assistance of counsel.
The motion upon which the district court ruled was subscribed and sworn to by petitioner before a parole officer in the United States penitentiary, where undoubtedly petitioner is serving said sentence, the total effect of which was to impose a term of imprisonment of 10 years.
According to the verified motion, Wayne Miller, counsel for petitioner at his trial, failed to provide effective assistance to defendant.
The district court also had before it, when it made its ruling of January 17, 1963, petitioner’s so-called motion to show cause in which it is alleged that petitioner was tried on April 10, 1962 for a violation of 18 U.S.C. §§ 1708 and 495, and that immediately after sentence was imposed petitioner instructed his attorney to give notice of appeal, which counsel agreed to do; that on April 11, 1962, in the Allen County jail, he again instructed his counsel to give notice of appeal and obtain transcript of the proceedings, which counsel agreed to do, but that he “has never heard from or seen defense counsel since the conference of April 11, 1962.”
Said motion also alleges that on April 19, 1962, he conferred at the county jail with attorney Norbert L. Wyss and retained him to file the notice of appeal and pay the filing fee of $5; and on April 23,. 1962 he paid attorney Wyss $200 for his services in filing the notice of appeal and starting the appeal, pursuant to 18 U.S.C.A. rule 37(a) (2), Federal Rules of Criminal Procedure. The next day, according to petitioner’s motion, he was removed to the United States penitentiary and later transferred to the penitentiary where he is now confined. According to the motion, petitioner on May 28, 1962 received a letter from attorney Wyss stating that he was working in all haste on the motion, but, on or about August 24, 1962, petitioner received a copy of the docket sheet from the district court which revealed that no notice of appeal was filed in the district court,, no motion was there made to support an, appellate review and Wyss’ name did not appear on said docket sheet.
On October 24, 1962, according to the-motion, petitioner received from attorney Wyss a letter stating that he had held: conferences with one Carol Honess, an investigating agent, the district attorney and various policemen and that “Pie feels, the success of an appeal is nil.”
On the basis of the charges of petitioner that there was ineffective assistance of counsel and that counsel had perpetrated fraud and misrepresentation upon him, we granted leave to petitioner to proceed in forma pwwperis in this court, and appointed attorney Edwin A. Rothschild of the Illinois bar to represent him.
Said rule 37(a) (2) provides, in part:.
“ * * * An appeal by a defendant may be taken within 10 days after entry of the judgment or order appealed from, * * *. When a court after trial imposes sentence upon a defendant not represented by counsel, the defendant shall be ad-wised of his right to appeal and if he so requests, the clerk shall prepare and file forthwith a notice of •appeal on behalf of the defendant.
•* * *»
Assuming, only for the purposes of this opinion, the truth of the allegations ■of facts by petitioner, it is evident that .he was desirous of having a review by this court of his conviction and that he in effect so instructed attorney Miller, who represented him at the trial. He gave this instruction twice, once immediately after sentencing and again on the following day, and his lawyer agreed to act accordingly. After the expiration of nine days, not hearing from his attorney, he retained attorney Wyss for the same purpose and thereafter paid him a substantial fee as a retainer, only to ’learn several months later that the docket of the district court did not show that ■a notice of appeal had been filed. Not until October did he learn that attorney Wyss considered his. appeal would be fruitless.
The United States Supreme Court said in Coppedge v. United States, 369 U.S. 438, 441, 82 S.Ct. 917, 919, 8 L.Ed.2d 21:
“Present federal law has made an .appeal from a District Court’s judgment of conviction in a criminal ■case what is, in effect, a matter of right. That is, a defendant has a right to have his conviction reviewed "by a Court of Appeals, and need not petition that court for an exercise •of its discretion to allow him to bring the case before the court. The •only requirements a defendant must meet for perfecting his appeal are those expressed as time limitations within which various procedural .steps must be completed. First, a timely notice of appeal must be filed in the District Court to confer jurisdiction upon the Court of Appeals over the case. * * * ”
In Coppedge, at 442 of 369 U.S., at 919 of 82 S.Ct., the court remarked:
“The indigent defendant will generally experience no material difficulty in filing a timely notice of appeal. * * * ”
It added, however, in footnote 5, p. 442 of 369 U.S., p. 919 of 82 S.Ct., language indicating that it favored “a liberal view of papers filed by indigent and incarcerated defendants, as equivalents of notices of appeal * * * ”.
In Boykin v. Huff, 73 App.D.C. 378, 121 F.2d 865, the petitioner within the time for appeal had written to the trial judge from the district jail, stating that he did not know if he was represented by counsel and advising the judge of his “desire to appeal”. There followed a lengthy correspondence in which the petitioner requested the aid of counsel for appeal and the judge advised the petitioner that he must employ private counsel. The Court of Appeals considered the informal letter constituted a notice of appeal.
In the case at bar petitioner had at least attempted to safeguard his rights by securing counsel to represent him, and presumptively was in a more secure position than was the prisoner in Boykin, who was not represented by counsel but whose right of appeal was upheld on the facts of that case. In the case at bar, if petitioner’s representations of fact are true, he had a right to rely upon his attorney to perfect his appeal and the failure of both of his successive counsel to do so cannot be permitted to work a forfeiture of his right of review by this court, if we may by analogy apply the liberal view suggested by the Supreme Court, in Coppedge, p. 442, note 5 of 369 U.S., p. 919 of 82 S.Ct., supra, p. 407.
In the light of these holdings, we now note that in his brief, petitioner’s counsel expressly disclaims that petitioner is proceeding under 18 U.S.C.A. rule 45(b). He also repudiates any claim of excusable neglect, but positively asserts that this is not a case of neglect but of fraud; that he does not seek an enlargement of time, but asks only that effect be given to his timely and diligent effort to perfect his appeal. He asserts that, whatever may be the rule as to negligence of counsel, it is clear that fraud may vitiate the entire relationship. The distinction between a charge of neglect and a charge of fraud is emphasized by Dodd v. United States, 9 Cir., 321 F.2d 240 (1963), where a prisoner sought relief under 28 U.S. C.A. § 2255 because of an appointed attorney’s failure to file notice of appeal although requested to do so. The court, at 243 of 321 F.2d pointed out that:
“Many of the grounds often asserted to sustain lack of effective assistance of counsel do not justify a hearing or entitle a petitioner to relief. Of such character are contentions as to the ‘competence of counsel.’ ”
However, the court thereupon referred to Kennedy v. United States, 5 Cir., 259 F.2d 883 (1958), cert. denied 359 U.S. 994, 79 S.Ct. 1126, 3 L.Ed.2d 982, which
“* * * requires a showing of ‘misconduct of his counsel amounting to a breach of his legal duty faithfully to represent his client’s interests * * ”
Thus, it seems to us, Dodd recognizes the distinction between a charge as to the competency of counsel and a charge of fraud by counsel.
The government relies on United States v. Robinson, 361 U.S. 220, 80 S. Ct. 282, 4 L.Ed.2d 259. In that case the court pointed out that the single question presented was whether the filing of a notice of appeal in a criminal case, after expiration of the time prescribed in rule 37(a) (2), confers jurisdiction of the appeal upon the court of appeals if the district court, proceeding under rule 45 (b), has found that the late filing of the notice of appeal was the result of excusable neglect.
The court held that rule 45(b), relied upon by Robinson, plainly provides “ * * * the court may not enlarge * * * the period for taking an appeal.”
In view of the fact that here petitioner does not rely upon this rule and that his; counsel in this court expressly disclaims, relief on the ground of excusable neglect,, we feel that Robinson is inapposite, especially when petitioner relies expressly upon a charge of fraud, which if not met. forthrightly by this court would result, in a deprivation of appeal, which the Supreme Court says is a matter of right. Coppedge v. United States, supra 441 of 369 U.S., 919 of 82 S.Ct.
A federal court has inherent power to> investigate whether a judgment was obtained by fraud and the power to unearth such a fraud is the power to unearth it effectively. Universal Oil Products Co. v. Root Refining Co., 328 U.S. 575, 580, 66 S.Ct. 1176, 1179, 90 L.Ed. 1447. The court there said:
“ * * * Accordingly, a federal' court may bring before it by appropriate means all those who may be-affected by the outcome of its- investigation. * * * ”
We agree with counsel for appellant that one, who justifiably believes-, that he is represented by counsel and who instructs his counsel to appeal and is assured by counsel that the appeal will be-filed, should not suffer a loss of rights, if counsel proves faithless, any more than-a defendant whose appeal was delayed in the mails, Reynolds v. United States, 5 Cir., 288 F.2d 78 (1961), or was delayed by act of a court or prison official, Williams v. United States, 88 U.S.App.D.C.. 212, 188 F.2d 41 (1951), Wallace v. United States, 8 Cir., 174 F.2d 112 (1949). Moreover, in the case at bar,. those charged with fraud are officers of the court under whose sanction they are permitted to practice their profession therein and represent persons who have been made parties to cases before the ■courts. Therefore, a special reason exists for the court in this case to confront the lawyers named by petitioner with his ■charges and to thoroughly determine the truth», or falsity thereof.
We have made clear that the application of our remarks to this case depends ¡upon the truth of the factual allegations ■of petitioner. We realize that vital rights of petitioner are involved in this proceeding, but we also are conscious of the fact that attorneys Miller and Wyss, .as officers of the district court, are entitled to be heard in some forum in reference to the charges which petitioner has made.
For these reasons, we vacate the •order from which petitioner has appealed and remand this cause to the district court with directions to cause the production of petitioner in open court at a .hearing, at which the court will require the attendance of attorneys Wayne Miller .and Norbert L. Wyss and shall hear them, as well as petitioner, and any ■other competent evidence that may be •offered relevant to the purpose of this remandment, and the said district court upon the conclusion of said hearing, at which the government as well as petitioner may be represented by counsel, shall make findings of fact and conclusions of law and thereupon enter a new final order based upon the record as supplemented by said findings and conclusions, in which new order the court shall again rule on petitioner’s motion of October 30, 1962, supra 1. United States v. Keig, 7 Cir., 320 F.2d 634, July 24, 1963.
We appointed Attorney Edwin A. Rothschild, Esq., a member of the bar of Illinois, to represent petitioner. Mr. Hothschild has generously rendered diligent and effective service to the petitioner and we express our appreciation therefor.
Order vacated with directions.
. “ (b) Wben an act is required or allowed to be done at or within a specified time, the court ior cause shown may at any time in its discretion (1) with or without motion or notice, order the period enlarged if application therefor is made before the expiration of the period orginally prescribed or as extended by a previous order or (2) upon motion permit the act to be done after the expiration of the specified period if the failure to act was the result of excusable neglect; but the court may not enlarge the period for taking any action under Rules 33, 34 and 35, except as otherwise provided in those rules, or-the period for taking an appeal.”
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_appel1_1_3
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
MARYLAND CASUALTY COMPANY, Appellant, v. PACIFIC EMPLOYERS INSURANCE COMPANY, Appellee. PACIFIC EMPLOYERS INSURANCE COMPANY, Cross-Appellant, v. MARYLAND CASUALTY COMPANY, Cross-Appellee.
Nos. 5148, 5149.
United States Court of Appeals Tenth Circuit.
Nov. 7, 1955.
Samuel M. January, Denver, Colo. (January & Gilchrist, Denver, Colo., on the brief), for appellant.
Kenneth Wormwood, Denver, Colo. (Wolvington & Wormwood, Denver, Colo., on the brief), for appellee.
Before BRATTON, MURRAH and PICKETT, Circuit Judges.
BRATTON, Circuit Judge.
Maryland Casualty Company, hereinafter referred to as Maryland, instituted this action against Pacific Employers Insurance Company, hereinafter referred to as Pacific, for a declaratory judgment determining the rights and liabilities of the two companies under liability insurance policies issued by them, respectively. The material facts were not in controversy. A. M. Corkins, of Greeley, Colorado, was a commercial carrier by motor vehicle within the intent and meaning of the laws of Colorado. Maryland issued to Corkins its policy of liability insurance. The policy described the insured as a grain dealer, and it expressly covered a certain trailer and tractor to which reference is hereinafter made. The maximum amount of coverage in the policy was $25,000 for each person, $50,-000 for personal injury for each accident, and $5,000 for damage to property for each accident. The policy provided that the word “insured” should include the named insured, any person while using the vehicle, and any organization legally responsible for the use thereof, provided the actual use of the vehicle was by the named insured or with his permission. And it further provided that if the insured had other insurance against a loss covered by such policy, the company should not be liable for a greater proportion of such loss than the applicable limit of liability stated in such policy bore to the total applicable limit of all valid and collectible insurance against such loss. Colorado Milling and Elevator Company and Denver Flour Mills Company were corporations; the latter was a wholly owned subsidiary of the former; both were engaged in the grain elevator and milling business; and both were operating motor vehicles under commercial carrier permits issued by the Public Utilities Commission of Colorado. Pacific issued to Colorado Milling and Elevator Company its-policy of liability insurance. The policy designated as the named insured Colorado Milling and Elevator Company and certain subsidiary companies, including Denver Flour Mills Company. The vehicles covered were all equipment owned, used, or operated by the named insureds. The maximum amount of coverage in the policy was $100,000 for each person, $300,000 for each accident, and $5,000 for damage to property for each accident. In respect to the word “insured” covering the named insured and any other person while using the motor vehicles with the permission of the named insured, and in respect to the limit of liability in the event of other insurance, the policy contained provisions substantially identical with those in the policy issued by Maryland. An endorsement was attached to the policy which related to hired automobiles. It provided that the insurance afforded for bodily injury liability and for property damage should apply with respect to hired automobiles, subject to the provisions following therein. The substance of the subsequent provisions referred to was that the words “hired automobile” should mean a motor vehicle used under contract in behalf of, or loaned to, the named insured provided such automobile was not owned by or registered in the name of the named insured, an executive officer or partner of the named insured, or an employee or agent of the named insured, who was granted an operating allowance of any sort for the use of such automobile; that the word “automobile” whenever used in the policy, with respect to the insurance afforded under the endorsement, should include “hired automobile”; that the definition of insured agreement of the policy should apply to the insurance afforded under the endorsement, except to the owner of the automobile or any employee of such owner; that the insurance should apply to the maintenance or use, for the purposes stated in the schedule forming a part thereof, of any hired automobile; and that the definitions in the policy of commercial and pleasure and business should apply respectively to automobiles of the commercial or truck type and to automobiles of the private passenger type, except as otherwise provided. There was also attached to the policy the motor vehicle public liability and property damage insurance certificate which the statutes and the rules require to be filed with the Public Utilities Commission of Colorado setting forth that Pacific had issued to the Denver Flour Mills Company the policy of bodily injury liability and property damage liability insurance required by the statutes and the rules; and there was also attached the uniform public liability and property damage endorsement required by the statutes and the rules. The last endorsement provided among other things that Pacific agreed to pay any final judgment, within the limits set forth in the policy or endorsements attached thereto for death or personal injury and damage to property resulting from the ownership, maintenance, or use of any and all motor vehicles, pursuant to a certificate of public convenience and necessity or a permit issued by the Commission; that liability for death or injury to any one person should not exceed $5,000; and that liability for property damage should not exceed $1,000.
Corkins entered into an oral agreement with Denver Flour Mills Company to furnish a truck and driver to such company for the purpose of hauling grain from various elevators to Denver. Everett Wayne Kent had been regularly employed by Corkins as a truck driver for eighteen or twenty years. He was driving the tractor and trailer owned by Corkins and covered by the policy issued by Maryland. A load of grain was being transported for Denver Flour Mills Company pursuant to the oral agreement. The trailer and tractor was involved in an accident with two automobiles on a highway in Colorado. One person was killed, another was injured, and both automobiles were damaged. Kent filed a claim for benefits under the Workmen’s Compensation Act; Corkins and Maryland were named as employer and insurance carrier, respectively; and benefits were awarded to Kent. Two suits were filed in the state court, one to recover damages for the death of the person killed in the accident and the other to recover damages for the personal injury sustained therein. Corkins, Colorado Milling and Elevator Company, and Kent were joined as defendants in each case. Maryland accepted coverage under its policy according to the terms thereof and made demand upon Pacific that it accept coverage under its policy for it's pro•portionate share of any and all claims and demands'arising out of the accident. Pacific denied liability and rejected the demand. Judgment for plaintiff was entered in each case, and the two judgments aggregated $11,000. Maryland paid both judgments under an agreement between it and Pacific that such payment would not be' considered voluntary and would be without prejudice to the rights of the two companies.
The trial court entertained the view that Kent was an employee of Corkins; that he was not an employee of Denver Flour Mills Company; that the hired automobile endorsement attached to the policy issued by Pacific was applicable; that Corkins and Kent were excluded from coverage under such endorsement; that the uniform public liability and property endorsement attached to the policy issued by Pacific covered Kent in the respective amounts stated therein; and that the proportion of liability of Pacific was 16.666, per cent on 'the death or personal injury coverage and 20 per cent on the property damage coverage. And in-harmony with such views, the court entered judgment .which provided that Maryland recover from Pacific $1,833.26, representing 16.666 per cent of the $11,-000 which had been paid in the discharge •of the two judgments rendered in the •state court, and further provided that in the event settlement should be made of the two property damage claims, Maryland should pay 80 per cent and Pacific 20 per cent thereof. The parties perfected separate appeals.
On its appeal, Maryland states with candor that the real question in the case is whether Kent was at the time of the accident an employee of Denver Flour Mills Company. It urges that under the terms of the statutes of Colorado and the rules and regulations promulgated by the Public Utilities Commission of that state, Kent was an employee of Denver Flour Mills Company and that the judgment should have determined the rights of the two companies under their respective policies accordingly. Corkins, Colorado Milling and Elevator Company, and Denver Flour Mills Company were subject to the statutes of Colorado and the rules and regulations promulgated by the Public Utilities Commission relating to carriers by motor vehicle. Section 11, article 10, chapter 115, Colorado Revised Statutes 1953, empowers the Commission to promulgate such rules and re'gulations as may be reasonably necessary for the effective administration of the provisions of the chapter. Rule 11 promulgated by the Commission relates to ownership or leasing of equipment of carriers by motor vehicle, and it provides :
“(a) AH permit holders shall either own the motor vehicles operated under their permits or shall lease such equipment. Leasing of equipment shall not include the service of a driver of operator, but the employment of drivers or operators shall be made upon a basis óf a separate transaction by which the driver or operator shall bear the relationship of an employee to the carrier. The leasing of equipment or employing of drivers with compensation on a percentage basis; dependent upon tonnage hauled per trip, or for any period of time, is prohibited. All leases shall provide that the lessee shall have absolute and exclusive control and management of leased vehiclés during the term of the lease.
“(b) Leases of equipment shall be in writing and a duplicate original of such lease, with the actual signatures of lessor and lessee thereon, shall be filed with the Commission.
“(c) The Commission shall at all times have the right to examine all leases of equipment, and approve or disapprove the same.”
Rule 12(a) concerns itself with permits for emergency equipment, and it provides :
“(a) Whenever any commercial •carrier by motor vehicle, in cases of emergency or unusual demands for transportation, must.use equipment not listed with the Commission, and for which identification cards have not been issued, the permit holder shall furnish the operator of each emergency vehicle with, and the operator of any such vehicle, shall carry, a letter stating that the emergency vehicle described in such letter is being operated as such under the authority of the permit held by the commercial carrier using such emergency vehicle. Such letter of authority shall specify the number and class of the permit held by the writer thereof, the name and address of the owner of such emergency vehicle, license number, identification of insurance policy which covers- the emergency vehicle, a complete description of the vehicle, the nature of the emergency requiring use of such equipment, for what trip or trips such emergency equipment is needed, particularly describing the points of origin and destination of same, and the period for which, the emergency vehicle is to be operated as such.”
An emergency letter was issued to Denver Flour Mills Company. It authorized that company to operate as emergency equipment for a specified period the motor vehicle owned by Corkins and involved in the accident. But Rule 11 requires that a lease of equipment shall be in writing; that a duplicate original with the actual signatures of the lessor and lessee thereon shall be filed with the Commission; and that the Commission shall at all times have the right to examine all leases, and to approve or disapprove the same. Corkins and Denver Flour Mills Company did not comply with that strict command of the rule. They never entered into a written lease, and therefore no duplicate thereof with the signatures of the parties thereon was ever filed with the Commission. The rule provides that the leasing of equipment shall not include the service of a driver or operator and that the employment of drivers or operators shall be made upon a basis of a separate transaction by which the driver or operator shall bear the relationship of an employee to the carrier. There was a complete failure to comply with that inflexible provision of the rule. Instead of complying with it, the oral agreement into which Cor-kins and Denver Flour Mills Company entered included the furnishing of the equipment and the driver. The agreement did not include upon the basis of a separate transaction the furnishing of the driver. ■ The regulation expressly forbids the leasing of equipment or the employing of drivers with compensation on a percentage basis, dependent upon tonnage hauled per trip. In violation of that unyielding provision in the rule, the agreement between Corkins and Denver Flour Mills Company provided for remuneration for the hauling of grain on a percentage basis, dependent upon haulage per trip. And the regulation exacts in clear terms that the lessee shall have absolute and exclusive control and management of the leased vehicles. The agreement between Corkins and Denver Flour Mills Company did not contain any provision of that kind. Under it, the lessee merely designated the grain to be hauled and fixed the destination. It did not have any further control or management of the vehicle. The rule was promulgated pursuant to statutory authority vested in the Commission. It had the force and effect of law and therefore the agreement was subject to its requirements. Universal Indemnity Insurance Co. v. Tenery, 96 Colo. 10, 39 P.2d 776. Since the agreement fell far short of complying with the rule in certain fixed respects, and affirmatively contravened its clear commands in other respects, the rule did not have the force and effect in law of making Kent the employee of Denver Flour Mills Company.
Maryland attacks the judgment on the further ground that aside from the statutes of Colorado and the rules promulgated by the Public Utilities Commission, Kent was as a matter of common law an employee of Denver Flour Mills Company at the time of the accident. The rationalizing general rule is that a servant may be lent or hired by his master to another for some special purpose and become the servant of such other person in the performing of the particular service contemplated by the loan or hire. But while a person in the general employ of one person may be lent or hired to another in such way as to become the servant of the person to whom he is lent or hired for the time and occasion, the mere fact that an employee is sent to do .certain work pointed out to him' by the person who made the arrangement with his general employer does not make him that person’s servant. Kelley v. Summers, 10 Cir., 210 F.2d 665.
Kent was a regular employee of Corkins and had been for eighteen or twenty years. Corkins selected him, determined and paid his compensation, determined and assigned his work, directed its performance, and had the right to discharge him at will. There was no provision in the agreement between Cor-kins and Denver Flour Mills Company that while the grain was being transported for the latter, it should have directing supervision and control over Kent. ' And in carrying out the agreement, Denver Flour Mills Company merely told Kent the location of the grain to be hauled and the point of its destination. It did not exercise any further supervision, direction, or control.over him. It did not pay him anything. And it did not have the power to replace him with another driver of the truck. Corkins had that power. And Corkins had the power to direct Kent at any time to cease transporting grain for Denver Flour Mills Company, go elsewhere, and engage in other work. Viewed in the light of these uncontroverted facts and circumstances, it is clear that under the common law as it obtains in Colorado, Kent was not an employee of Denver Flour Mills Company. Instead, he was an employee of Cor-kins. Thayer v. Kirchhof, 83 Colo. 480, 266 P. 225; Landis v. McGowan, 114 Colo. 355, 165 P.2d 180.
On its appeal, Pacific advances the contention that the fact that Denver Flour Mills Company was insured under..the policy of Pacific does not make Pacific liable' to Maryland. As we understand the argument in support of the contention, it is in substance that if Kent was not covered under the policy issued by Pacific, then in the event Denver Flour Mills Company was forced to pay anything by reason of Kent’s negligence, it would have a claim or cause of action against Kent to recover back that amount; and that in order to avoid circuity of action, judgment should have been rendered in favor of Pacific. The argument is ingenious but not persuasive. Maryland being liable under its policy, Pacific being liable under the uniform public liability and property damage endorsement attached to its policy, and the two companies occupying that juxtaposition, the proration provisions contained in the two policies came into play. And such provisions required the two companies to participate in the loss on the basis of the formula therein specified.
The judgment is affirmed.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
|
songer_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".
FIDELITY SHIPPING COMPANY, Ltd., Appellant, v. William ERICKSON and W. J. Jones & Son, Inc., Appellees. FIDELITY SHIPPING COMPANY, Ltd., Appellant, v. Eugene BENNETT and W. J. Jones & Son, Inc., Appellees.
Nos. 19791, 19792.
United States Court of Appeals Ninth Circuit.
April 12, 1965.
Rehearing Denied May 20, 1965.
Erskine B. Wood, John R. Brooke, Wood, Wood, Tatum, Mosser & Brooke, Portland, Or., for appellant.
Philip Levin, Pozzi, Levin & Wilson, Dennis J. Lindsay, Garry P. McMurry, Krause, Lindsay & Nahstoll, Portland, Or., for appellees.
Before ORR, MERRILL and BROWNING, Circuit Judges.
PER CURIAM.
Appellees Erickson and Bennett are longshoremen who were injured by a falling boom aboard the Steamship Alexandria. Erickson and Bennett each filed a libel against the vessel and its owner, appellant Fidelity Shipping Company, alleging that their injuriés were the proximate result of unseaworthiness of the Alexandria. Appellant impleaded appel-lee stevedoring company, W. J. Jones & Son, employer of Erickson and Bennett, claiming a right to indmenity due to an alleged failure to perform stevedoring services in a safe, proper, and workmanlike manner. Trial was had and the trial judge found that the appellees were injured as a proximate result of the unseaworthiness of the Alexandria. Specifically, the supply of steam was found to be inadequate to properly operate the boom and the brake inadequate to prevent the boom from falling. He also found in favor of W. J. Jones & Son on the third-party indemnity claim. He found no failure on the part of W. J. Jones & Son or its employees to perform the stevedoring services here in a safe, proper, and workmanlike manner.
We have examined the record in this case and find substantial evidence to support each of the above findings.
Appellant contends that the amount of damages awarded to Erickson was excessive. Our examination of the record convinces us that there is no merit to this contention.
Affirmed.
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
|
songer_appel1_7_5
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers).
Kurt Karl Friedrich HEGERICH, Appellant, v. Albert DEL GUERCIO, District Director, Immigration and Naturalization Service, Los Angeles, California, Appellee.
No. 15577.
United States Court of Appeals Ninth Circuit.
May 12, 1958.
Harry Wolpin, Los Angeles, Cal., for appellant.
Laughlin E. Waters, U. S. Atty., Richard A. Lavine, Burton C. Jacobson, Asst. U. S. Attys., Los Angeles, Cal., for ap-pellee.
Before CHAMBERS and BARNES, Circuit Judges, and CHASE A. CLARK, District Judge.
PER CURIAM.
Hegerich is a national and citizen of Germany. He was properly admitted at New York City on February 18, 1956. His permit authorized him to stay until May 20, 1956. With his passport was a visa from the United States consul in Munich, Germany, reciting that he had until May, 1957, to apply for permanent admission to the United States.
On May 23, 1956, he went for the second time to the immigration and naturalization office in Los Angeles to clear up his status, to seek extension of the time of his stay. The office’s reply to his request was to arrest him on the spot. Subsequently, administrative proceedings were held to determine his deportability and to consider his application for voluntary departure. The result was an order directing his deportation and denying his application for voluntary departure.
The administrative proceedings were upheld on review by the district court. This appeal followed.
As to deportability, the facts would seem to positively support the administrative conclusion. However, as tc the ruling on voluntary departure which would affect Hegerich’s right to apply for readmission, this court is of the opinion that there was an abuse of discretion. No suggestion is made that appellant is not a person of good moral character. His overstaying was de minimis in time. Blunderingly, he was trying to comply with the law. It is clear that his conduct was neither slick nor foxy. In this field of voluntary departure, ordinarily action unfavorable to the deportee must be upheld. But the government, as it should, seems to concede that there can be a case where the denial of voluntary departure can be an abuse of administrative discretion. This court holds that this is it.
Reversed for proceedings which will permit appellant’s voluntary departure.
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_threejudgefdc
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the case was heard by a three-judge federal district court. Beginning in the early 1900s, Congress required three-judge district courts to hear certain kinds of cases. More modern-day legislation has reduced the kinds of lawsuits that must be heard by such a court. As a result, the frequency is less for the Burger Court than for the Warren Court, and all but nonexistent for the Rehnquist and Roberts Courts.
LOUISIANA et al. v. UNITED STATES.
No. 67.
Argued January 26-27, 1965.
Decided March 8, 1965.
Harry J. Kron, Jr., Assistant Attorney General of Louisiana, argued the cause for appellants. With him on the brief were Jack P. F. Gremillion, Attorney General of Louisiana, and Carroll Buck, First Assistant Attorney General.
Louis F. Claiborne argued the cause for the United States. With him on the brief were Solicitor General Cox, Assistant Attorney General Marshall, Harold H. Greene and David Rubin.
Mr. Justice Black
delivered the opinion of the Court.
Pursuant to authority granted in 42 U. S. C. § 1971 (c) (1958 ed., Supp. V), the Attorney General brought this action on behalf of the United States in the United States District Court for the Eastern District of Louisiana against the State of Louisiana, the three members of the State Board of Registration, and the Director-Secretary of the Board. The complaint charged that the defendants by following and enforcing unconstitutional state laws had been denying and unless restrained by the court would continue to deny Negro citizens of Louisiana the right to vote, in violation of 42 U. S. C. § 1971 (a) (1958 ed.) and the Fourteenth and Fifteenth Amendments to the United States Constitution. The case was tried and after submission of evidence, the three-judge District Court, convened pursuant to 28 U. S. C. § 2281 (1958 ed.), gave judgment for the United States. 225 F. Supp. 353. The State and the other defendants appealed, and we noted probable jurisdiction. 377 U. S. 987.
The complaint alleged, and the District Court found, that beginning with the adoption of the Louisiana Constitution of 1898, when approximately 44% of all the registered voters in the State were Negroes, the State had put into effect a successful policy of denying Negro citizens the right to vote because of their race. The 1898 constitution adopted what was known as a “grandfather clause,” which imposed burdensome requirements for registration thereafter but exempted from these future requirements any person who had been entitled to vote before January 1, 1867, or who was the son or grandson of such a person. Such a transparent expedient for disfranchising Negroes, whose ancestors had been slaves until 1863 and not entitled to vote in Louisiana before 1867, was held unconstitutional in 1915 as a violation of the Fifteenth Amendment, in a case involving a similar Oklahoma constitutional provision. Guinn v. United States, 238 U. S. 347. Soon after that decision Louisiana, in 1921, adopted a new constitution replacing the repudiated “grandfather clause” with what the complaint calls an “interpretation test,” which required that an applicant for registration be able to “give a reasonable interpretation” of any clause in the Louisiana Constitution or the Constitution of the United States. From the adoption of the 1921 interpretation test until 1944, the District Court’s opinion stated, the percentage of registered voters in Louisiana who were Negroes never exceeded one percent. Prior to 1944 Negro interest in voting in Louisiana had been slight, largely because the State’s white primary law kept Negroes from voting in the Democratic Party primary election, the only election that mattered in the political climate of that State. In 1944, however, this Court invalidated the substantially identical white primary law of Texas, and with the explicit statutory bar to their voting in the primary removed and because of a generally heightened political interest, Negroes in increasing numbers began to register in Louisiana. The white primary system had been so effective in barring Negroes from voting that the “interpretation test” as a disfranchising device had been ignored over the years. Many registrars continued to ignore it after 1944, and in the next dozen years the proportion of registered voters who were Negroes rose from two-tenths of one percent to approximately 15% by March 1956. This fact, coupled with this Court’s 1954 invalidation of laws requiring school segregation, prompted the State to try new devices to keep the white citizens in control. The Louisiana Legislature created a committee which became known as the “Segregation Committee” to seek means of accomplishing this goal. The chairman of this committee also helped to organize a semiprivate group called the Association of Citizens Councils, which thereafter acted in close cooperation with the legislative committee to preserve white supremacy. The legislative committee and the Citizens Councils set up programs, which parish voting registrars were required to attend, to instruct the registrars on how to promote white political control. The committee and the Citizens Councils also began a wholesale challenging of Negro names already on the voting rolls, with the result that thousands of Negroes, but virtually no whites, were purged from the rolls of voters. Beginning in the middle 1950’s registrars of at least 21 parishes began to apply the interpretation test. In 1960 the State Constitution was amended to require every applicant thereafter to “be able to understand” as well as “give a reasonable interpretation” of any section of the State or Federal Constitution “when read to him by the registrar.” The State Board of Registration in cooperation with the Segregation Committee issued orders that all parish registrars must strictly comply with the new provisions.
The interpretation test, the court found, vested in the voting registrars a virtually uncontrolled discretion as to who should vote and who should not. Under the State’s statutes and constitutional provisions the registrars, without any objective standard to guide them, determine the manner in which the interpretation test is to be given, whether it is to be oral or written, the length and complexity of the sections of the State or Federal Constitution to be understood and interpreted, and what interpretation is to be considered correct. There was ample evidence to support the District Court’s finding that registrars in the 21 parishes where the test was found to have been used had exercised their broad powers to deprive otherwise qualified Negro citizens of their right to vote; and that the existence of the test as a hurdle to voter qualification has in itself deterred and will continue to deter Negroes from attempting to register in Louisiana.
Because of the virtually unlimited discretion vested by the Louisiana laws in the registrars of voters, and because in the 21 parishes where the interpretation test was applied that discretion had been exercised to keep Negroes from voting because of their race, the District Court held the interpretation test invalid on its face and as applied, as a violation of the Fourteenth and Fifteenth Amendments to the United States Constitution and of 42 U. S. C. § 1971 (a). The District Court enjoined future use of the test in the State, and with respect to the 21 parishes where the invalid interpretation test was found to have been applied, the District Court also enjoined use of a newly enacted “citizenship” test, which did not repeal the interpretation test and the validity of which was not challenged in this suit, unless a reregistration of all voters in those parishes is ordered, so that there would be no voters in those parishes who had not passed the same test.
I.
We have held this day in United States v. Mississippi, ante, p. 128, that the Attorney General has power to bring suit against a State and its officials to protect the voting rights of Negroes guaranteed by 42 U. S. C. § 1971 (a) and the Fourteenth and Fifteenth Amendments. There can be no doubt from the evidence in this case that the District Court was amply justified in finding that Louisiana’s interpretation test, as written and as applied, was part of a successful plan to deprive Louisiana Negroes of their right to vote. This device for accomplishing unconstitutional discrimination has been little if any less successful than was the “grandfather clause” invalidated by this Court’s decision in Guinn v. United States, supra, 50 years ago, which when that clause was adopted in 1898 had seemed to the leaders of Louisiana a much preferable way of assuring white political supremacy. The Governor of Louisiana stated in 1898 that he believed that the “grandfather clause” solved the problem of keeping Negroes from voting “in a much more upright and manly fashion” than the method adopted previously by the States of Mississippi and South Carolina, which left the qualification of applicants to vote “largely to the arbitrary discretion of the officers administering the law.” A delegate to the 1898 Louisiana Constitutional Convention also criticized an interpretation test because the “arbitrary power, lodged with the registration officer, practically places his decision beyond the pale of judicial review; and he can enfranchise or disfranchise voters at his own sweet will and pleasure without let or hindrance.”
But Louisianans of a later generation did place just such arbitrary power in the hands of election officers who have used it with phenomenal success to keep Negroes from voting in the State. The State admits that the statutes and provisions of the state constitution establishing the interpretation test “vest discretion in the registrars of voters to determine the qualifications of applicants for registration” while imposing “no definite and objective standards upon registrars of voters for the administration of the interpretation test.” And the District Court found that “Louisiana ... provides no effective method whereby arbitrary and capricious action by registrars of voters may be prevented or redressed.” The applicant facing a registrar in Louisiana thus has been compelled to leave his voting fate to that official’s uncontrolled power to determine whether the applicant’s understanding of the Federal or State Constitution is satisfactory. As the evidence showed, colored people, even some with the most advanced education and scholarship, were declared by voting registrars with less education to have an unsatisfactory understanding of the Constitution of Louisiana or of the United States. This is not a test but a trap, sufficient to stop even the most brilliant man on his way to the voting booth. The cherished right of people in a country like ours to vote cannot be obliterated by the use of laws like this, which leave the voting fate of a citizen to the passing whim or impulse of an individual registrar. Many of our cases have pointed out the invalidity of laws so completely devoid of standards and restraints. See, e. g., United States v. L. Cohen Grocery Co., 255 U. S. 81. Squarely in point is Schnell v. Davis, 336 U. S. 933, affirming 81 F. Supp. 872 (D. C. S. D. Ala.), in which we affirmed a district court judgment striking down as a violation of the Fourteenth and Fifteenth Amendments an Alabama constitutional provision restricting the right to vote in that State to persons who could “understand and explain any article of the Constitution of the United States” to the satisfaction of voting registrars. We likewise affirm here the District Court’s holding that the provisions of the Louisiana Constitution and statutes which require voters to satisfy registrars of their ability to “understand and give a reasonable interpretation of any section” of the Federal or Louisiana Constitution violate the Constitution. And we agree with the District Court that it specifically conflicts with the prohibitions against discrimination in voting because of race found both in the Fifteenth Amendment and 42 U. S. C. § 1971 (a) to subject citizens to such an arbitrary power as Louisiana has given its registrars under these laws.
H-i k-i
This leaves for consideration the District Court’s decree. We bear in mind that the court has not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future. Little if any objection is raised to the propriety of the injunction against further use of the interpretation test as it stood at the time this action was begun, and without further discussion we affirm that part of the decree.
Appellants’ chief argument against the decree concerns the effect which should be given the new voter-qualification test adopted by the Board of Registration in August 1962, pursuant to statute and subsequent constitutional amendment after this suit had been filed. The new test, says the State, is a uniform, objective, standardized “citizenship” test administered to all prospective voters alike. Under it, according to the State, an applicant is “required to indiscriminately draw one of ten cards. Each card has six multiple choice questions, four of which the applicant must answer correctly.” Confining itself to the allegations of the complaint, the District Court did not pass upon the validity of the new test, but did take it into consideration in formulating the decree. The court found that past discrimination against Negro applicants in the 21 parishes where the interpretation test had been applied had greatly reduced the proportion of potential Negro voters who were registered as compared with the proportion of whites. Most if not all of those white voters had been permitted to register on far less rigorous terms than colored applicants whose applications were rejected. Since the new “citizenship” test does not provide for a reregistration of voters already accepted by the registrars, it would affect only applicants not already registered, and would not disturb the eligibility of the white voters who had been allowed to register while discriminatory practices kept Negroes from doing so. In these 21 parishes, while the registration of white persons was increasing, the number of Negroes registered decreased from 25,361 to 10,351. Under these circumstances we think that the court was quite right to decree that, as to persons who met age and residence requirements during the years in which the interpretation test was used, use of the new “citizenship” test should be postponed in those 21 parishes where registrars used the old interpretation test until those parishes have ordered a complete reregistration of voters, so that the new test will apply alike to all or to none. Cf. United States v. Duke, 332 F. 2d 759, 769-770 (C. A. 5th Cir.).
It also was certainly an appropriate exercise of the District Court’s discretion to order reports to be made every month concerning the registration of voters in these 21 parishes, in order that the court might be informed as to whether the old discriminatory practices really had been abandoned in good faith. The need to eradicate past evil effects and to prevent the continuation or repetition in the future of the discriminatory practices shown to be so deeply engrained in the laws, policies, and traditions of the State of Louisiana, completely justified the District Court in entering the decree it did and in retaining jurisdiction of the entire case to hear any evidence of discrimination in other parishes and' to enter such orders as justice from time to time might require.
Affirmed.
Mr. Justice Harlan considers that the constitutional conclusions reached in this opinion can properly be based only on the provisions of the Fifteenth Amendment. In all other respects, he fully subscribes to this opinion.
“All citizens of the United States who are otherwise qualified by law to vote at any election by the people in any State, Territory, district, county, city, parish, township, school district, municipality, or other territorial subdivision, shall be entitled and allowed to vote at all such elections, without distinction of race, color, or previous condition of servitude; any constitution, law, custom, usage, or regulation of any State or Territory, or by or under its authority, to the contrary notwithstanding.” 16 Stat. 140, 42 U. S. C. § 1971 (a) (1958 ed.).
The appellants did not present any evidence. By stipulation all the Government’s evidence was presented in written form.
La. Const. 1898, Art. 197, § 5. See generally Eaton, The Suffrage Clause in the New Constitution of Louisiana, 13 Harv. L. Rev. 279.
The Louisiana Constitution of 1868 for the first time permitted Negroes to vote. La. Const. 1868, Art. 98.
La. Const. 1921, Art. VIII, §§ 1 (c), 1 (d).
Smith v. Allwright, 321 U. S. 649.
Brown v. Board of Education, 347 U. S. 483.
La. Acts 1960, No. 613, amending La. Const. Art. VIII, § 1 (d), previously implemented in La. Rev. Stat. § 18:36. Under the 1921 constitution the requirement that an applicant be able “to understand” a section “read to him by the registrar” applied only to illiterates. La. Const. 1921, Art. VIII, § 1 (d); compare id., § 1 (c).
“Although the vote-abridging purpose and effect of the [interpretation] test render it per se invalid under the Fifteenth Amendment, it is also per se invalid under the Fourteenth Amendment. The vices cannot be cured by an injunction enjoining its unfair application.” 225 F. Supp., at 391-392.
It is argued that the members of the State Board of Registration were not properly made defendants because they were “mere conduits,” without authority to enforce state registration requirements. The Board has the power and duty to supervise administration of the interpretation test and prescribe rules and regulations for the registrars to follow in applying it. La. Rev. Stat. § 18:191 A; La. Const. Art. VIII, § 18. The Board also is by statute directed to fashion and administer the new “citizenship” test. La. Rev. Stat. § 18:191 A; La. Const. Art. VIII, § 18. And the Board has power to remove any registrar from office “at will.” La. Const. Art. VIII, § 18. In these circumstances the Board members were properly made defendants. Compare United States v. Mississippi, ante, at 141-142.
There is also no merit in the argument that the registrars, who were not defendants in this suit, were indispensable parties. The registrars have no personal interest in the outcome of this case and are bound to follow the directions of the State Board of Registration.
Louisiana Senate Journal, 1898, p. 33.
Ibid.
Kernan, The Constitutional Convention of 1898 and its Work, Proceedings of the Louisiana Bar Association for 1898-1899, pp. 59-60.
225 F. Supp., at 384.
La. Acts 1962, No. 62, amending La. Rev. Stat. 18:191A.
La. Acts 1962, No. 539, amending La. Const. Art. VIII, § 18.
Like the District Court, we express no opinion as to the constitutionality of the new “citizenship” test. Any question as to that point is specifically reserved. That test was never challenged in the complaint or any other pleading. The District Court said “we repeat that this decision does not touch upon the constitutionality of the citizenship test as a state qualification for voting.” 225 F. Supp., at 397. The Solicitor General did not challenge the validity of the new test in this Court either in briefs or in oral argument, but instead recognized specifically that that issue was not before us in this case. And at oral argument in this Court the attorney for the United States stated that the Government has pending in a lower court a new suit challenging registration procedures in Louisiana “under the new regime,” i. e., employed subsequent to the invalidation of the interpretation test in this case. The new “citizenship” test, he said, “is simply not an issue in this proceeding and was not invalidated in the lower court and we are not here challenging it.”
Question: Was the case heard by a three-judge federal district court?
A. Yes
B. No
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.
Joe R. LONG, and Teresa Long, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
No. 76-3270.
United States Court of Appeals, Fifth Circuit.
June 14, 1978.
Robert Edwin Davis, C. M. Meadows, Jr., Dallas, Tex., for plaintiffs-appellants.
John Clark, U.S. Atty., San Antonio, Tex., Myron C. Baum, Acting Asst. Atty. Gen., Tax Div., Dept, of Justice, Washington, D.C., Daniel F. Ross, Atty., Tax Div., Leonard J. Henzke, Jr., James A. Riedy, Attys., Dept, of Justice, Washington, D.C., for defendant-appellee.
Before GODBOLD, SIMPSON and MORGAN, Circuit Judges:
PER CURIAM:
The district judge, after a full bench trial, decided this income tax refund suit adversely to the taxpayers. The suit was generated by the Commissioner’s rejection of the taxpayers’ attempted deduction of one-half of the alleged losses of the husband’s joint venture with Mr. Long’s former law partner, Jake Jacobsen, relative to the operation of two apartment complexes. The Longs paid the deficiency, filed an unsuccessful claim for refund, and timely brought suit.
The judgment below for the United States was supported by the district judge’s careful, complete and well-documented Memorandum Opinion, reported at 451 F.Supp. 1009 (D.C.1976). Our consideration of the briefs, the record, and oral argument persuades us that the judgment was correct, for the reasons stated in the opinion of the district court, which we adopt.
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_casedisposition
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss.
ALI v. FEDERAL BUREAU OF PRISONS et al.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
No. 06-9130.
Argued October 29, 2007
Decided January 22, 2008
Jean-Claude André, by appointment of the Court, 551 U. S. 1186, argued the cause for petitioner. With him on the briefs were Michael G. Smith, Peter K. Stris, Shaun P. Martin, and Brendan Maher.
Kannon K. Shanmugam argued the cause for respondents. With him on the brief were Solicitor General Clement, Assistant Attorney General Keisler, Deputy Solicitor General Kneedler, and Mark B. Stern.
Justice Thomas
delivered the opinion of the Court.
This ease concerns the scope of 28 U. S. C. § 2680, which carves out certain exceptions to the United States’ waiver of sovereign immunity for torts committed by federal employees. Section 2680(c) provides that the waiver of sovereign immunity does not apply to claims arising from the detention of property by “any officer of customs or excise or any other law enforcement officer.” Petitioner contends that this clause applies only to law enforcement officers enforcing customs or excise laws, and thus does not affect the waiver of sovereign immunity for his property claim against officers of the Federal Bureau of Prisons (BOP). We conclude that the broad phrase “any other law enforcement officer” covers all law enforcement officers. Accordingly, we affirm the judgment of the Court of Appeals upholding the dismissal of petitioner’s claim.
I
Petitioner Abdus-Shahid M. S. Ali was a federal prisoner at the United States Penitentiary in Atlanta, Georgia, from 2001 to 2003. In December 2003, petitioner was scheduled to be transferred to the United States Penitentiary Big Sandy (USP Big Sandy) in Inez, Kentucky. Before being transferred, he left two duffle bags containing his personal property in the Atlanta prison’s Receiving and Discharge Unit to be inventoried, packaged, and shipped to USP Big Sandy. Petitioner was transferred, and his bags arrived some days later. Upon inspecting his property, he noticed that several items were missing. The staff at USP Big Sandy’s Receiving and Discharge Unit told him that he had been given everything that was sent, and that if things were missing he could file a claim. Many of the purportedly missing items were of religious and nostalgic significance, including two copies of the Qur’an, a prayer rug, and religious magazines. Petitioner estimated that the items were worth $177.
Petitioner filed an administrative tort claim. In denying relief, the agency noted that, by his signature on the receipt form, petitioner had certified the accuracy of the inventory listed thereon and had thereby relinquished any future claims relating to missing or damaged property. Petitioner then filed a complaint alleging, inter alia, violations of the Federal Tort Claims Act (FTCA), 28 U. S. C. §§ 1346, 2671 et seq. The BOP maintained that petitioner’s claim was barred by the exception in § 2680(c) for property claims against law enforcement officers. The District Court agreed and dismissed petitioner’s FTCA claim for lack of subject-matter jurisdiction. Petitioner appealed.
The Eleventh Circuit affirmed, agreeing with the District Court’s interpretation of § 2680(c). 204 Fed. Appx. 778, 779-780 (2006) (per curiam). In rejecting petitioner’s arguments, the Court of Appeals relied on this Court’s broad interpretation of §2680(c)’s “detention” clause in Kosak v. United States, 465 U. S. 848, 854-859 (1984), on decisions by other Courts of Appeals, and on its own decision in Schlaebitz v. United States Dept. of Justice, 924 F. 2d 193, 195 (1991) (per curiam) (holding that United States Marshals, who were allegedly negligent in releasing a parolee’s luggage to a third party, were “law enforcement officers” under § 2680(c)). See 204 Fed. Appx., at 779-780.
We granted certiorari, 550 U. S. 968 (2007), to resolve the disagreement among the Courts of Appeals as to the scope of § 2680(c).
II
In the FTCA, Congress waived the United States’ sovereign immunity for claims arising out of torts committed by federal employees. See 28 U. S. C. § 1346(b)(1). As relevant here, the FTCA authorizes “claims against the United States, for money damages ... for injury or loss of property . . . caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment.” Ibid. The FTCA exempts from this waiver certain categories of claims. See §§ 2680(a)-(n). Relevant here is the exception in subsection (c), which provides that § 1346(b) shall not apply to “[a]ny claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods, merchandise, or other property by any officer of customs or excise or any other law enforcement officer.” § 2680(c).
This case turns on whether the BOP officers who allegedly lost petitioner’s property qualify as “other law enforcement officer[s]” within the meaning of § 2680(c). Petitioner argues that they do not because “any other law enforcement officer” includes only law enforcement officers acting in a customs or excise capacity. Noting that Congress referenced customs and excise activities in both the language at issue and the preceding clause in § 2680(c), petitioner argues that the entire subsection is focused on preserving the United States’ sovereign immunity only as to officers enforcing those laws.
Petitioner's argument is inconsistent with the statute’s language. The phrase “any other law enforcement officer” suggests a broad meaning. Ibid, (emphasis added). We have previously noted that “[r]ead naturally, the word ‘any’ has an expansive meaning, that is, ‘one or some indiscriminately of whatever kind.’” United States v. Gonzales, 520 U. S. 1, 5 (1997) (quoting Webster’s Third New International Dictionary 97 (1976)). In Gonzales, we considered a provision that imposed an additional sentence for firearms used in federal drug trafficking crimes and provided that such additional sentence shall not be concurrent with “ ‘any other term of imprisonment.’” 520 U. S., at 4 (quoting 18 U. S. C. § 924(c)(1) (1994 ed.); emphasis deleted). Notwithstanding the subsection’s initial reference to federal drug trafficking crimes, we held that the expansive word “any” and the absence of restrictive language left “no basis in the text for limiting” the phrase “any other term of imprisonment” to federal sentences. 520 U. S., at 5. Similarly, in Harrison v. PPG Industries, Inc., 446 U. S. 578 (1980), the Court considered the phrase “any other final action” in amendments to the Clean Air Act. The Court explained that the amendments expanded a list of Environmental Protection Agency Administrator actions by adding two categories of actions: actions under a specifically enumerated statutory provision, and “any other final action” under the Clean Air Act. Id., at 584 (emphasis deleted). Focusing on Congress’ choice of the word “any,” the Court “discern[ed] no uncertainty in the meaning of the phrase, ‘any other final action,’ ” and emphasized that the statute’s “expansive language offer[ed] no indication whatever that Congress intended” to limit the phrase to final actions similar to those in the specifically enumerated sections. Id., at 588-589.
We think the reasoning of Gonzales and Harrison applies equally to the expansive language Congress employed in 28 U. S. C. § 2680(c). Congress’ use of “any” to modify “other law enforcement officer” is most naturally read to mean law enforcement officers of whatever kind. The word “any” is repeated four times in the relevant portion of § 2680(c), and two of those instances appear in the particular phrase at issue: “any officer of customs or excise or any other law enforcement officer.” (Emphasis added.) Congress inserted the word “any” immediately before “other law enforcement officer,” leaving no doubt that it modifies that phrase. To be sure, the text’s references to “tax or customs duty” and “officer[s] of customs or excise” indicate that Congress intended to preserve immunity for claims arising from an officer’s enforcement of tax and customs laws. The text also indicates, however, that Congress intended to preserve immunity for claims arising from the detention of property, and there is no indication that Congress intended immunity for those claims to turn on the type of law being enforced.
Petitioner would require Congress to clarify its intent to cover all law enforcement officers by. adding phrases such as “performing any official law enforcement function,” or “without limitation.” But Congress could not have chosen a more all-encompassing phrase than “any other law enforcement officer” to express that intent. We have no reason to demand that Congress write less economically and more repetitiously.
Recent amendments to § 2680(c) support the conclusion that “any other law enforcement officer” is not limited to officers acting in a customs or excise capacity. In the Civil Asset Forfeiture Reform Act of 2000, Congress added subsections (c)(l)-(c)(4) to 28 U.S.C. § 2680. §3(a), 114 Stat. 211. As amended, § 2680(c) provides that the § 1346(b) waiver of sovereign immunity, notwithstanding the exception at issue in this case, applies to:
“[A]ny claim based on injury or loss of goods, merchandise, or other property, while in the possession of any officer of customs or excise or any other law enforcement officer, if—
“(1) the property was seized for the purpose of forfeiture under any provision of Federal law providing for the forfeiture of property other than as a sentence imposed upon conviction of a criminal offense;
“(2) the interest of the claimant was not forfeited;
“(3) the interest of the claimant was not remitted or mitigated (if the property was subject to forfeiture); and
“(4) the claimant was not convicted of a crime for which the interest of the claimant in the property was subject to forfeiture under a Federal criminal forfeiture law.”
The amendment does not govern petitioner’s claim because his property was not “seized for the purpose of forfeiture,” as required by paragraph (1). Nonetheless, the amendment is relevant because our construction of “any other law enforcement officer” must, to the extent possible, ensure that the statutory scheme is coherent and consistent. See Robinson v. Shell Oil Co., 519 U. S. 337, 340 (1997) (citing United States v. Ron Pair Enterprises, Inc., 489 U. S. 235, 240 (1989)). The amendment canceled the exception - and thus restored the waiver of sovereign immunity - for certain seizures of property based on any federal forfeiture law. See 28 U. S. C. § 2680(c)(1) (excepting property claims if “the property was seized for the purpose of forfeiture under any provision of Federal law providing for the forfeiture of property” (emphasis added)).
Under petitioner’s interpretation, only law enforcement officers enforcing customs or excise laws were immune under the prior version of § 2680(c). Thus, on petitioner’s reading, the amendment’s only effect was to restore the waiver for cases in which customs or excise officers, or officers acting in such a capacity, enforce forfeiture laws. This strikes us as an implausible interpretation of the statute. If that were Congress’ intent, it is not apparent why Congress would have restored the waiver with respect to the enforcement of all civil forfeiture laws instead of simply those related to customs or excise. Petitioner’s interpretation makes sense only if we assume that Congress went out of its way to restore the waiver for cases in which customs or excise officers, or officers acting in such a capacity, enforce forfeiture laws unrelated to customs or excise. But petitioner fails to demonstrate that customs or excise officers, or officers acting in such a capacity, ever enforce civil forfeiture laws unrelated to customs or excise, much less that they do so with such frequency that Congress is likely to have singled them out in the amendment. It seems far more likely that Congress restored the waiver for officers enforcing any civil forfeiture law because, in its view, all such officers were covered by the exception to the waiver prior to the amendment.
Against this textual and structural evidence that “any other law enforcement officer” does in fact mean any other law enforcement officer, petitioner invokes numerous canons of statutory construction. He relies primarily on ejusdem generis, or the principle that “when a general term follows a specific one, the general term should be understood as a reference to subjects akin to the one with specific enumeration.” Norfolk & Western R. Co. v. Train Dispatchers, 499 U. S. 117, 129 (1991). In petitioner’s view, “any officer of customs or excise or any other law enforcement officer” should be read as a three-item list, and the final, catchall phrase “any other law enforcement officer” should be limited to officers of the same nature as the preceding specific phrases.
Petitioner likens his case to two recent cases in which we found the canon useful. In Washington State Dept. of Social and Health Servs. v. Guardianship Estate of Keffeler, 537 U. S. 371, 375 (2003), we considered the clause “execution, levy, attachment, garnishment, or other legal process” in 42 U. S. C. § 407(a). Applying ejusdem generis, we concluded that “other legal process” was limited to legal processes of the same nature as the specific items listed. 537 U. S., at 384-385. The department’s scheme for serving as a representative payee of the benefits due to children under its care, while a “legal process,” did not share the common attribute of the listed items, viz., “utilization of some judicial or quasi-judicial mechanism ... by which control over property passes from one person to another in order to discharge” a debt.. Id., at 385. Similarly, in Dolan v. Postal Service, 546 U. S. 481 (2006), the Court considered whether an exception to the FTCA’s waiver of sovereign immunity for claims arising out of the “ ‘loss, miscarriage, or negligent transmission of letters or postal matter’ ” barred a claim that mail negligently left on the petitioner’s porch caused her to slip and fall. Id., at 485 (quoting 28 U. S. C. § 2680(b)). Noting that “loss” and “miscarriage” both addressed “failings in the postal obligation to deliver mail in a timely manner to the right address,” 546 U. S., at 487, the Court concluded that “negligent transmission” must be similarly limited, id., at 486-489, and rejected the Government’s argument that the exception applied to “all torts committed in the course of mail delivery,” id., at 490.
Petitioner asserts that § 2680(c), like the clauses at issue in Keffeler and Dolan, “‘presents a textbook ejusdem generis scenario.’” Brief for Petitioner 15 (quoting Andrews v. United States, 441 F. 3d 220, 224 (CA4 2006)). We disagree.
The structure of the phrase “any officer of customs or excise or any other law enforcement officer” does not lend itself to application of the canon. The phrase is disjunctive, with one specific and one general category, not — like the clauses at issue in Keffeler and Dolan — a list of specific items separated by commas and followed by a general or collective term. The absence of a list of specific items undercuts the inference embodied in ejusdem generis that Congress remained focused on the common attribute when it used the catchall phrase. Cf. United States v. Aguilar, 515 U. S. 593, 615 (1995) (Scalia, J., concurring in part and dissenting in part) (rejecting the canon’s applicability to an omnibus clause that was “one of... several distinct and independent prohibitions” rather than “a general or collective term following a list of specific items to which a particular statutory command is applicable”).
Moreover, it is not apparent what common attribute connects the specific items in § 2680(c). Were we to use the canon to limit the meaning of “any other law enforcement officer,” we would be required to determine the relevant limiting characteristic of “officer of customs or excise.” In Jarecki v. G. D. Searle & Co., 367 U. S. 303 (1961), for example, the Court invoked noscitur a sociis in limiting the scope of the term “'discovery’” to the common characteristic it shared with '"exploration”’ and '"prospecting.”’ Id., at 307. The Court noted that all three words in conjunction “describe[d] income-producing activity in the oil and gas and mining industries.” Ibid. Here, by contrast, no relevant common attribute immediately appears from the phrase “officer of customs or excise.” Petitioner suggests that the common attribute is that both types of officers are charged with enforcing the customs and excise laws. But we see no reason why that should be the relevant characteristic as opposed to, for example, that officers of that type are commonly involved in the activities enumerated in the statute: the assessment and collection of taxes and customs duties and the detention of property.
Petitioner’s appeals to other interpretive principles are also unconvincing. Petitioner contends that his reading is supported by the canon noscitur a sociis, according to which “ ‘a word is known by the company it keeps.’ ” S. D. Warren Co. v. Maine Bd. of Environmental Protection, 547 U. S. 370, 378 (2006). But the cases petitioner cites in support of applying noscitur a sociis involved statutes with stronger contextual cues. See Gutierrez v. Ada, 528 U. S. 250, 254-258 (2000) (applying the canon to narrow the relevant phrase, “any election,” where it was closely surrounded by six specific references to gubernatorial elections); Jarecki, supra, at 306-309 (applying the canon to narrow the term “discoveries” to discoveries of mineral resources where it was contained in a list of three words, all of which applied to the oil, gas, and mining industries and could not conceivably all apply to any other industry). Here, although customs and excise áre mentioned twice in § 2680(c), nothing in the overall statutory context suggests that customs and excise officers were the exclusive focus of the provision. The emphasis in subsection (c) on customs and excise is not inconsistent with the conclusion that “any other law enforcement officer” sweeps as broadly as its language suggests.
Similarly, the rule against superfluities lends petitioner sparse support. The construction we adopt today does not necessarily render “any officer of customs or excise” superfluous; Congress may have simply intended to remove any doubt that officers of customs or excise were included in “law enforcement officer[s].” See Fort Stewart Schools v. FLRA, 495 U. S. 641, 646 (1990) (noting that “technically unnecessary” examples may have been “inserted out of an abundance of caution”). Moreover, petitioner’s construction threatens to render “any other law enforcement officer” superfluous because it is not clear when, if ever, “other law enforcement officer[s]” act in a customs or excise capacity. In any event, we do not woodenly apply limiting principles every time Congress includes a specific example along with a general phrase. See Harrison, 446 U. S., at 589, n. 6 (rejecting an argument that ejusdem generis must apply when a broad interpretation of the clause could render the specific enumerations unnecessary).
In the end, we are unpersuaded by petitioner’s attempt to create ambiguity where the statute’s text and structure suggest none. Had Congress intended to limit §2680(c)’s reach as petitioner contends, it easily could have written “any other law enforcement officer acting in a customs or excise capacity.” Instead, it used the unmodified, all-encompassing phrase “any other law enforcement officer.” Nothing in the statutory context requires a narrowing construction — indeed, as we have explained, the statute is most consistent and coherent when “any other law enforcement officer” is read to mean what it literally says. See Norfolk & Western R. Co., 499 U. S., at 129 (noting that interpretive canons must yield “when the whole context dictates a different conclusion”). It bears emphasis, moreover, that § 2680(c), far from maintaining sovereign immunity for the entire universe of claims against law enforcement officers, does so only for claims “arising in respect of” the “detention” of property. We are not at liberty to rewrite the statute to reflect a meaning we deem more desirable. Instead, we must give effect to the text Congress enacted: Section 2680(c) forecloses lawsuits against the United States for the unlawful detention of property by “any,” not just “some,” law enforcement officers.
III
For the reasons stated, the judgment of the Court of Appeals for the Eleventh Circuit is
Affirmed.
The Eleventh Circuit joined five other Courts of Appeals in construing § 2680(c) to encompass all law enforcement officers. See Bramwell v. Bureau of Prisons, 348 F. 3d 804, 806-807 (CA9 2003); Chapa v. United States Dept. of Justice, 339 F. 3d 388, 390 (CA5 2003) (per curiam); Hatten v. White, 275 F. 3d 1208, 1210 (CA10 2002); Cheney v. United States, 972 F. 2d 247, 248 (CA8 1992) (per curiam); Ysasi v. Rivkind, 856 F. 2d 1520, 1525 (CA Fed. 1988). Five other Courts of Appeals reached the contrary conclusion, interpreting the clause as limited to officers performing customs or excise functions. See ABC v. DEF, 500 F. 3d 103, 107 (CA2 2007); Dahler v. United States, 473 F. 3d 769, 771-772 (CA7 2007) (per curiam); Andrews v. United States, 441 F. 3d 220, 227 (CA4 2006); Bazuaye v. United States, 83 F. 3d 482, 486 (CADC 1996); Kurinsky v. United States, 33 F. 3d 594, 598 (CA6 1994).
We assume, without deciding, that the BOP officers “detained” Ali’s property and thus satisfy § 2680(c)’s “arising in respect of. . . detention” requirement. The Court of Appeals held that the “detention” clause was satisfied, and petitioner expressly declined to raise the issue on certiorari. See 204 Fed. Appx. 778, 779-780 (CA11 2006) (per curiam); Brief for Petitioner 10-11, n. 9.
We consider this question for the first time in this ease. Petitioner argues that this Court concluded in Kosak v. United States, 465 U. S. 848 (1984), that the phrase “any other law enforcement officer” is ambiguous. Reply Brief for Petitioner 4. In that case, the Court construed a portion of the same clause at issue here, but the decision had no bearing on the meaning of “any other law enforcement officer.” 465 U. S., at 853-862 (holding that “detention” encompasses claims resulting from negligent handling or storage). Indeed, the Court expressly declined to reach the issue. Id., at 852, n. 6 (“We have no occasion in this ease to decide what kinds of ‘law-enforcement officer[s],’ other than customs officials, are covered by the exception” (alteration in original)). Petitioner’s reliance on the footnote as concluding that the phrase is ambiguous reads too much into the Court’s reservation of a question that was not then before it.
Of course, other circumstances may counteract the effect of expansive modifiers. For example, we have construed an “any” phrase narrowly when it included a term of art that compelled that result. See Circuit City Stores, Inc. v. Adams, 532 U. S. 105, 115-116 (2001) (construing “any other class of workers engaged in . .. commerce,” 9 U. S. C. § 1, narrowly based on the Court’s previous interpretation of “in commerce” as a term of art with a narrower meaning). We also have construed such phrases narrowly when another term in the provision made sense only under a narrow reading, see United States v. Alvarez-Sanchez, 511 U. S. 350, 357-358 (1994) (limiting “any law-enforcement officer” to federal officers because the statute’s reference to “delay” made sense only with respect to federal officers), and when a broad reading would have implicated sovereignty concerns, see Raygor v. Regents of Univ. of Minn., 534 U. S. 533, 541-542 (2002) (applying the “clear statement rule” applicable to waivers of sovereign immunity to construe the phrase “all civil actions” to exclude a category of claims, “even though nothing in the statute expressly exclude[d]” them). None of the circumstances that motivated our decisions in these cases is present here.
Justice Kennedy’s dissent (hereinafter the dissent) argues that, during border searches, customs and excise officers “routinely” enforce civil forfeiture laws unrelated to customs or excise. Post, at 239-240. But the examples the dissent provides do not support that assertion. The dissent maintains that a customs officer who seizes material defined as contraband under 49 U. S. C. § 80302 et seq. is one such example. Post, at 240. But a customs officer’s authority to effect a forfeiture of such contraband derives from a specific customs law. See 19 U. S. C. § 1595a(c)(l)(C). Similarly, the dissent suggests that a Drug Enforcement Administration (DEA) agent “assisting a customs official” in a border search who seizes drug-related contraband under 21 U. S. C. § 881 is acting in a “traditional revenue capacity.” Post, at 240. But that argument is based on the assumption that an officer who assists in conducting a border search acts in a customs capacity even if he is not a customs officer and is not enforcing a customs law. That assumption, far from self-evident, only underscores the difficulty that would attend any attempt to define the contours of the implied limitation on § 2680(c)’s reach proposed by petitioner and embraced by the dissent. “Acting in a customs or excise capacity” is not a self-defining concept, and not having included such a limitation in the statute’s language, Congress of course did not provide a definition. Finally, the dissent points out that a customs or excise officer might effect a forfeiture of currency or monetary instruments under 31 U. S. C. § 5317(c). Post, at 240. But § 5317(e) is hardly a civil forfeiture law unrelated to customs or excise. See § 5317(c)(2) (2000 ed., Supp. V) (authorizing forfeiture of property involved in a violation of, inter alia, § 5316 (2000 ed.), which sets forth reporting requirements for exporting and importing monetary instruments).
As an example of “other law enforcement officer[s]” acting in an excise or customs capacity, petitioner cites Formula One Motors, Ltd. v. United States, 777 F. 2d 822, 823-824 (CA2 1985) (holding that the seizure of a vehicle still in transit from overseas by DEA agents who searched it for drugs was “sufficiently akin to the functions carried out by Customs officials to place the agents’ conduct within the scope of section 2680(c)”). But it is not clear that the agents in that case were acting in an excise or customs capacity rather than in their ordinary capacity as law enforcement agents. It seems to us that DEA agents searching a car for drugs are acting in their capacity as officers charged with enforcing the Nation’s drug laws, not the customs or excise laws.
Similarly, the dissent notes that 14 U. S. C. § 89(a) authorizes Coast Guard officers to enforce customs laws. Post, at 233. But the very next subsection of §89 provides that Coast Guard officers effectively are customs officers when they enforce customs laws. See § 89(b)(1) (providing that Coast Guard officers “insofar as they are engaged, pursuant to the authority contained in this section, in enforcing any law of the United States shall... be deemed to be acting as agents of the particular executive department . . . charged with the administration of the particular law”). As a result, a Coast Guard officer enforcing a customs law is a customs officer, not some “other law enforcement officer.”
Congress, we note, did provide an administrative remedy for lost property claimants like petitioner. Federal agencies have authority under 31 U. S. C. § 3723(a)(1) to settle certain “claim[s] for not more than $1,000 for damage to, or loss of, privately owned property that... is caused by the negligence of an officer or employee of the United States Government acting within the scope of employment.” The BOP has settled more than 1,100 such claims in the last three years. Brief for Respondents 41, n. 17.
Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed?
A. stay, petition, or motion granted
B. affirmed (includes modified)
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to or from a lower court
K. no disposition
Answer:
|
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.
RENO, ATTORNEY GENERAL OF THE UNITED STATES, et al. v. AMERICAN CIVIL LIBERTIES UNION et al.
No. 96-511.
Argued March 19, 1997
Decided June 26, 1997
Stevens, J., delivered the opinion of the Court, in which Scalia, Kennedy, Souter, Thomas, Ginsburg, and Breyer, JJ., joined. O’Connor, J., filed an opinion concurring in the judgment in part and dissenting in part, in which Rehnquist, C. J., joined, post, p. 886.
Deputy Solicitor General Waxman argued the cause for appellants. On the briefs were Acting Solicitor General Dellinger, Assistant Attorney General Hunger, Deputy Solicitor General Kneedler, Irving L. Gornstein, Barbara L. Herwig, and Jacob M. Lewis.
Bruce J. Ennis, Jr., argued the cause for appellees. With him on the brief for appellees American Library Association et al. were Ann M. Kappler, Paul M. Smith, Donald B. Verrilli, Jr., John B. Morris, Jr., Jill Lesser, Richard M. Schmidt, Jr., Bruce Rich, James Wheaton, Jerry Berman, Elliot M. Mincberg, Lawrence S. Ottinger, Andrew J. Schwartzman, Ronald L. Plesser, James J. Halpert, Michael Traynor, Robert P. Taylor, Rene Milam, Marc Jacobson, Bruce W. Sanford, and Henry S. Hoberman. Christopher A. Hansen, Steven R. Shapiro, Marjorie Heins, Catherine Weiss, Stefan Presser, David L. Sobel, Marc Rotenberg, and Roger Evans filed a brief for appellees American Civil Liberties Union Foundation et al.
Briefs of amici curiae urging reversal were filed for Member of Congress Dan Coats et al. by Bruce A. Taylor and Cathleen A. Cleaver; for Enough is Enough et al. by Ronald D. Maines; for the Family Life Project of the American Center for Law and Justice by Jay Alan Sekulow, James M. Henderson, Sr., Colby M. May, Keith A. Fournier, John G. Stepano-vich, and Thomas P. Monaghan; for Morality in Media, Inc., by Paul J. McGeady and Robert W. Peters; and for James J. Clancy by Mr. Clancy, pro se, and Carol A. Clancy.
Briefs of amici curiae urging affirmance were filed for the American Association of University Professors et al. by James D. Crawford, Carl A. Solano, Theresa E. Loscalzo, Jennifer DuFault James, and Joseph T. Lu-kens; for Apollomedia Corporation et al. by William Bennett Turner; for the Association of National Advertisers, Inc., by P. Cameron DeVore, John J. Walsh, Steven G. Brody, Mary Elizabeth Taylor, Gilbert H. Weil, and Sol Schildhause; for the Chamber of Commerce of the United States by Clifford M. Sloan, Bert W. Rein, Robert J. Butler, Stephen A. Bokat, and Robin S. Conrad; for Feminists for Free Expression by Barbara McDowell; for the National Association of Broadcasters et al. by Floyd Abrams, Jack N. Goodman, and Susanna M. Lowy; for Playboy Enterprises, Inc., by Robert Corn-Revere and Burton Joseph; for the Reporters Committee for Freedom of the Press et al. by Jane E. Kirtley and S. Mark Goodman; for Site Specific, Inc., et al. by Jamie B. W. Stecher; and for Volunteer Lawyers for the Arts et al. by Daniel H. Weiner.
Raphael Winick filed a brief of amicus curiae for the Speech Communication Association.
Justice Stevens
delivered the opinion of the Court.
At issue is the constitutionality of two statutory provisions enacted to protect minors from “indecent” and “patently offensive” communications on the Internet. Notwithstanding the legitimacy and importance of the congressional goal of protecting children from harmful materials, we agree with the three-judge District Court that the statute abridges “the freedom of speech” protected by the First Amendment.
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The District Court made extensive findings of fact, most of which were based on a detailed stipulation prepared by the parties. See 929 F. Supp. 824, 830-849 (ED Pa. 1996). The findings describe the character and the dimensions of the Internet, the availability of sexually explicit material in that medium, and the problems confronting age verification for recipients of Internet communications. Because those findings provide the underpinnings for the legal issues, we begin with a summary of the undisputed facts.
The Internet
The Internet is an international network of interconnected computers. It is the outgrowth of what began in 1969 as a military program called “ARPANET,” which was designed to enable computers operated by the military, defense contractors, and universities conducting defense-related research to communicate with one another by redundant channels even if some portions of the network were damaged in a war. While the ARPANET no longer exists, it provided an example for the development of a number of civilian networks that, eventually linking with each other, now enable tens of millions of people to communicate with one another and to access vast amounts of information from around the world. The Internet is “a unique and wholly new medium of worldwide human communication.”
The Internet has experienced “extraordinary growth.” The number of “host” computers — those that store information and relay communications — increased from about 300 in 1981 to approximately 9,400,000 by the time of the trial in 1996. Roughly 60% of these hosts are located in the United States. About 40 million people used the Internet at the time of trial, a number that is expected to mushroom to 200 million by 1999.
Individuals can obtain access to the Internet from many different sources, generally hosts themselves or entities with a host affiliation. Most colleges and universities provide access for their students and faculty; many corporations provide their employees with access through an office network; many communities and local libraries provide free access; and an increasing number of storefront “computer coffee shops” provide access for a small hourly fee. Several major national “online services” such as America Online, CompuServe, the Microsoft Network, and Prodigy offer access to their own extensive proprietary networks as well as a link to the much larger resources of the Internet. These commercial online services had almost 12 million individual subscribers at the time of trial.
Anyone with access to the Internet may take advantage of a wide variety of communication and information retrieval methods. These methods are constantly evolving and difficult to categorize precisely. But, as presently constituted, those most relevant to this case are electronic mail (e-mail), automatic mailing list services (“mail exploders,” sometimes referred to as “listservs”), “newsgroups,” “chat rooms,” and the “World Wide Web.” All of these methods can be used to transmit text; most can transmit sound, pictures, and moving video images. Taken together, these tools constitute a unique medium — known to its users as “cyberspace” — located in no particular geographical location but available to anyone, anywhere in the world, with access to the Internet.
E-mail enables an individual to send an electronic message — generally akin to a note or letter — to another individual or to a group of addressees. The message is generally stored electronically, sometimes waiting for the recipient to check her “mailbox” and sometimes making its receipt known through some type of prompt. A mail exploder is a sort of e-mail group. Subscribers can send messages to a common e-mail address, which then forwards the message to the group’s other subscribers. Newsgroups also serve groups of regular participants, but these postings may be read by others as well. There are thousands of such groups, each serving to foster an exchange of information or opinion on a particular topic running the gamut from, say, the music of Wagner to Balkan politics to AIDS prevention to the Chicago Bulls. About 100,000 new messages are posted every day. In most newsgroups, postings are automatically purged at regular intervals. In addition to posting a message that can be read later, two or more individuals wishing to communicate more immediately can enter a chat room to engage in real-time dialogue — in other words, by typing messages to one another that appear almost immediately on the others’ computer screens. The District Court found that at any given time “tens of thousands of users are engaging in conversations on a huge range of subjects.” It is “no exaggeration to conclude that the content on the Internet is as diverse as human thought.”
The best known category of communication over the Internet is the World Wide Web, which allows users to search for and retrieve information stored in remote computers, as well as, in some cases, to communicate back to designated sites. In concrete terms, the Web consists of a vast number of documents stored in different computers all over the world. Some of these documents are simply files containing information. However, more elaborate documents, commonly known as Web “pages,” are also prevalent. Each has its own address — “rather like a telephone number.” Web pages frequently contain information and sometimes allow the viewer to communicate with the page’s (or “site’s”) author. They generally also contain “links” to other documents created by that site’s author or to other (generally) related sites. Typically, the links are either blue or underlined text — sometimes images.
Navigating the Web is relatively straightforward. A user may either type the address of a known page or enter one or more keywords into a commercial “search engine” in an effort to locate sites on a subject of interest. A particular Web page may contain the information sought by the “surfer,” or, through its links, it may be an avenue to other documents located anywhere on the Internet. Users generally explore a given Web page, or move to another, by clicking a computer “mouse” on one of the page’s icons or links. Access to most Web pages is freely available, but some allow access only to those who have purchased the right from a commercial provider. The Web is thus comparable, from the readers’ viewpoint, to both a vast library including millions of readily available and indexed publications and a sprawling mall offering goods and services.
From the publishers’ point of view, it constitutes a vast platform from which to address and hear from a worldwide audience of millions of readers, viewers, researchers, and buyers. Any person or organization with a computer connected to the Internet can “publish” information. Publishers include government agencies, educational institutions, commercial entities, advocacy groups, and individuals. Publishers may either make their material available to the entire pool of Internet users, or confine access to a selected group, such as those willing to pay for the privilege. “No single organization controls any membership in the Web, nor is there any single centralized point from which individual Web sites or services can be blocked from the Web.”
Sexually Explicit Material
Sexually explicit material on the Internet includes text, pictures, and chat and “extends from the modestly titillating to the hardest-core.” These files are created, named, and posted in the same manner as material that is not sexually explicit, and may be accessed either deliberately or unintentionally during the course of an imprecise search. “Once a provider posts its content on the Internet, it cannot prevent that content from entering any community.” Thus, for example,
“when the UCR/California Museum of Photography posts to its Web site nudes by Edward Weston and Robert Mapplethorpe to announce that its new exhibit will travel to Baltimore and New York City, those images are available not only in Los Angeles, Baltimore, and New York City, but also in Cincinnati, Mobile, or Beijing — wherever Internet users live. Similarly, the safer sex instructions that Critical Path posts to its Web site, written in street language so that the teenage receiver can understand them, are available not just in Philadelphia, but also in Provo and Prague.”
Some of the communications over the Internet that originate in foreign countries are also sexually explicit.
Though such material is widely available, users seldom encounter such content accidentally. “A document’s title or a description of the document will usually appear before the document itself... and in many cases the user will receive detailed information about a site’s content before he or she need take the step to access the document. Almost all sexually explicit images are preceded by warnings as to the content.” For that reason, the “odds are slim” that a user would enter a sexually explicit site by accident. Unlike communications received by radio or television, “the receipt of information on the Internet requires a series of affirmative steps more deliberate and directed than merely turning a dial. A child requires some sophistication’ and some ability to read to retrieve material and thereby to use the Internet unattended.”
Systems have been developed to help parents control the material that may be available on a home computer with Internet access. A system may either limit a computer’s access to an approved list of sources that have been identified as containing no adult material, it may block designated inappropriate sites, or it may attempt to block messages containing identifiable objectionable features. “Although parental control software currently can screen for certain suggestive words or for known sexually explicit sites, it cannot now screen for sexually explicit images.” Nevertheless, the evidence indicates that “a reasonably effective method by which parents can prevent their children from accessing sexually explicit and other material which parents may believe is inappropriate for their children will soon be widely available.”
Age Verification
The problem of age verification differs for different uses of the Internet. The District Court categorically determined that there “is no effective way to determine the identity or the age of a user who is accessing material through e-mail, mail exploders, newsgroups or chat rooms.” The Government offered no evidence that there was a reliable way to screen recipients and participants in such forums for age. Moreover, even if it were technologically feasible to block minors’ access to newsgroups and chat rooms containing discussions of art, politics, or other subjects that potentially elicit “indecent” or “patently offensive” contributions, it would not be possible to block their access to that material and “still allow them access to the remaining content, even if the overwhelming majority of that content was not indecent.”
Technology exists by which an operator of a Web site may condition access on the verification of requested information such as a credit card number or an adult password. Credit card verification is only feasible, however, either in connection with a commercial transaction in which the card is used, or by payment to a verification agency. Using credit card possession as a surrogate for proof of age would impose costs on noncommercial Web sites that would require many of them to shut down. For that reason, at the time of the trial, credit card verification was “effectively unavailable to a substantial number of Internet content providers.” 929 F. Supp., at 846 (finding 102). Moreover, the imposition of such a requirement “would completely bar adults who do not have a credit card and lack the resources to obtain one from accessing any blocked material.”
Commercial pornographic sites that charge their users for access have assigned them passwords as a method of age verification. The record does not contain any evidence concerning the reliability of these technologies. Even if passwords are effective for commercial purveyors of indecent material, the District Court found that an adult password requirement would impose significant burdens on noncommercial sites, both because they would discourage users from accessing their sites and because the cost of creating and maintaining such screening systems would be “beyond their reach.”
In sum, the District Court found:
“Even if credit card verification or adult password verification were implemented, the Government presented no testimony as to how such systems could ensure that the user of the password or credit card is in fact over 18. The burdens imposed by credit card verification and adult password verification systems make them effectively unavailable to a substantial number of Internet content providers.” Ibid. (finding 107).
II
The Telecommunications Act of 1996, Pub. L. 104-104, 110 Stat. 56, was an unusually important legislative enactment. As stated on the first of its 103 pages, its primary purpose was to reduce regulation and encourage “the rapid deployment of new telecommunications technologies.” The major components of the statute have nothing to do with the Internet; they were designed to promote competition in the local telephone service market, the multichannel video market, and the market for over-the-air broadcasting. The Act includes seven Titles, six of which are the product of extensive committee hearings and the subject of discussion in Reports prepared by Committees of the Senate and the House of Representatives. By contrast, Title V — known as the “Communications Decency Act of 1996” (CDA) — contains provisions that were either added in executive committee after the hearings were concluded or as amendments offered during floor debate on the legislation. An amendment offered in the Senate was the source of the two statutory provisions challenged in this case. They are informally described as the “indecent transmission” provision and the “patently offensive display” provision.
The first, 47 U. S. C. § 223(a) (1994 ed., Supp. II), prohibits the knowing transmission of obscene or indecent messages to any recipient under 18 years of age. It provides in pertinent part:
“(a) Whoever—
“(1) in interstate or foreign communications—
“(B) by means of a telecommunications device knowingly—
“(i) makes, creates, or solicits, and
“(ii) initiates the transmission of,
“any comment, request, suggestion, proposal, image, or other communication which is obscene or indecent, knowing that the recipient of the communication is under 18 years of age, regardless of whether the maker of such communication placed the call or initiated the communication;
“(2) knowingly permits any telecommunications facility under his control to be used for any activity prohibited by paragraph (1) with the intent that it be used for such activity,
“shall be fined under Title 18, or imprisoned not more than two years, or both.”
The second provision, § 223(d), prohibits the knowing sending or displaying of patently offensive messages in a manner that is available to a person under 18 years of age. It provides:
“(d) Whoever—
“(1) in interstate or foreign communications knowingly—
“(A) uses an interactive computer service to send to a specific person or persons under 18 years of age, or “(B) uses any interactive computer service to display in a manner available to a person under 18 years of age, “any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs, regardless of whether the user of such service placed the call or initiated the communication; or
“(2) knowingly permits any telecommunications facility under such person’s control to be used for an activity prohibited by paragraph (1) with the intent that it be used for such activity,
“shall be fined under Title 18, or imprisoned not more than two years, or both.”
The breadth of these prohibitions is qualified by two affirmative defenses. See § 223(e)(5). One covers those who take “good faith, reasonable, effective, and appropriate actions” to restrict access by minors to the prohibited communications. § 223(e)(5)(A). The other covers those who restrict access to covered material by requiring certain designated forms of age proof, such as a verified credit card or an adult identification number or code. § 223(e)(5)(B).
I — I HH
On February 8, 1996, immediately after the President signed the statute, 20 plaintiffs filed suit against the Attorney General of the United States and the Department of Justice challenging the constitutionality of §§ 223(a)(1) and 223(d). A week later, based on his conclusion that the term “indecent” was too vague to provide the basis for a criminal prosecution, District Judge Buckwalter entered a temporary restraining order against enforcement of § 223(a)(1)(B)(ii) insofar as it applies to indecent communications. A second suit was then filed by 27 additional plaintiffs, the two cases were consolidated, and a three-judge District Court was convened pursuant to § 561 of the CDA. After an evidentiary hearing, that court entered a preliminary injunction against enforcement of both of the challenged provisions. Each of the three judges wrote a separate opinion, but their judgment was unanimous.
Chief Judge Sloviter doubted the strength of the Government’s interest in regulating “the vast range of online material covered or potentially covered by the CDA,” but acknowledged that the interest was “compelling” with respect to some of that material. 929 F. Supp.,' at 853. She concluded, nonetheless, that the statute “sweeps more broadly than necessary and thereby chills the expression of adults” and that the terms “patently offensive” and “indecent” were “inherently vague.” Id., at 854. She also determined that the affirmative defenses were not “technologically or economically feasible for most providers,” specifically considering and rejecting an argument that providers could avoid liability by “tagging” their material in a manner that would allow potential readers to screen out unwanted transmissions. Id., at 856. Chief Judge Sloviter also rejected the Government’s suggestion that the scope of the statute could be narrowed by construing it to apply only to commercial pornographers. Id., at 854-855.
Judge Buckwalter concluded that the word “indecent” in § 223(a)(1)(B) and the terms “patently offensive” and “in context” in § 223(d)(1) were so vague that criminal enforcement of either section would violate the “fundamental constitutional principle” of “simple fairness,” id., at 861, and the specific protections of the First and Fifth Amendments, id., at 858. He found no statutory basis for the Government’s argument that the challenged provisions would be applied only to “pornographic” materials, noting that, unlike obscenity, “indecency has not been defined to exclude works of serious literary, artistic, political or scientific value.” Id., at 863. Moreover, the Government’s claim that the work must be considered patently offensive “in context” was itself vague because the relevant context might “refer to, among other things, the nature of the communication as a whole, the time of day it was conveyed, the medium used, the identity of the speaker, or whether or not it is accompanied by appropriate warnings.” Id., at 864. He believed that the unique nature of the Internet aggravated the vagueness of the statute. Id., at 865, n. 9.
Judge Dalzell’s review of “the special attributes of Internet communication” disclosed by the evidence convinced him that the First Amendment denies Congress the power to regulate the content of protected speech on the Internet. Id., at 867. His opinion explained at length why he believed the CDA would abridge significant protected speech, particularly by noncommercial speakers, while “[p]erversely, commercial pornographers would remain relatively unaffected.” Id., at 879. He construed our cases as requiring a “medium-specific” approach to the analysis of the regulation of mass communication, id., at 873, and concluded that the Internet — as “the most participatory form of mass speech yet developed,” id., at 883 — is entitled to “the highest protection from governmental intrusion,” ibid.
The judgment of the District Court enjoins the Government from enforcing the prohibitions in § 223(a)(1)(B) insofar as they relate to “indecent” communications, but expressly preserves the Government’s right to investigate and prosecute the obscenity or child pornography activities prohibited therein. The injunction against enforcement of §§ 223(d)(1) and (2) is unqualified because those provisions contain no separate reference to obscenity or child pornography.
The Government appealed under the CDA’s special review provisions, § 561, 110 Stat. 142-143, and we noted probable jurisdiction, see 519 U. S. 1025 (1996). In its appeal, the Government argues that the District Court erred in holding that the CDA violated both the First Amendment because it is overbroad and the Fifth Amendment because it is vague. While we discuss the vagueness of the CDA because of its relevance to the First Amendment overbreadth inquiry, we conclude that the judgment should be affirmed without reaching the Fifth Amendment issue. We begin our analysis by reviewing the principal authorities on which the Government relies. Then, after describing the overbreadth of the CDA, we consider the Government’s specific contentions, including its submission that we save portions of the statute either by severance or by fashioning judicial limitations on the scope of its coverage.
IV
In arguing for reversal, the Government contends that the CDA is plainly constitutional under three of our prior decisions: (1) Ginsberg v. New York, 390 U. S. 629 (1968); (2) FCC v. Pacifica Foundation, 438 U. S. 726 (1978); and (3) Renton v. Playtime Theatres, Inc., 475 U. S. 41 (1986). A close look at these cases, however, raises — rather than relieves— doubts concerning the constitutionality of the CDA.
In Ginsberg, we upheld the constitutionality of a New York statute that prohibited selling to minors under 17 years of age material that was considered obscene as to them even if not obscene as to adults. We rejected the defendant’s broad submission that “the scope of the constitutional freedom of expression secured to a citizen to read or see material concerned with sex cannot be made to depend on whether the citizen is an adult or a minor.” 390 U. S., at 636. In rejecting that contention, we relied not only on the State’s independent interest in the well-being of its youth, but also on our consistent recognition of the principle that “the parents’ claim to authority in their own household to direct the rearing of their children is basic in the structure of our society.”
In four important respects, the statute upheld in Ginsberg was narrower than the CDA. First, we noted in Ginsberg that “the prohibition against sales to minors does not bar parents who so desire from purchasing the magazines for their children.” Id., at 639. Under the CDA, by contrast, neither the parents’ consent — nor even their participation— in the communication would avoid the application of the statute. Second, the New York statute applied only to commercial transactions, id., at 647, whereas the CDA contains no such limitation. Third, the New York statute cabined its definition of material that is harmful to minors with the requirement that it be “utterly without redeeming social importance for minors.” Id., at 646. The CDA fails to provide us with any definition of the term “indecent” as used in § 223(a)(1) and, importantly, omits any requirement that the “patently offensive” material covered by § 223(d) lack serious literary, artistic, political, or scientific value. Fourth, the New York statute defined a minor as a person under the age of 17, whereas the CDA, in applying to all those under 18 years, includes an additional year of those nearest majority.
In Pacifica, we upheld a declaratory order of the Federal Communications Commission, holding that the broadcast of a recording of a 12-minute monologue entitled “Filthy Words” that had previously been delivered to a live audience “could have been the subject of administrative sanctions.” 438 U. S., at 730 (internal quotation marks omitted). The Commission had found that the repetitive use of certain words referring to excretory or sexual activities or organs “in an afternoon broadcast when children are in the audience was patently offensive” and concluded that the monologue was indecent “as broadcast.” Id., at 735. The respondent did not quarrel with the finding that the afternoon broadcast was patently offensive, but contended that it was not “indecent” within the meaning of the relevant statutes because it contained no prurient appeal. After rejecting respondent’s statutory arguments, we confronted its two constitutional arguments: (1) that the Commission’s construction of its authority to ban indecent speech was so broad that its order had to be set aside even if the broadcast at issue was unprotected; and (2) that since the recording was not obscene, the First Amendment forbade any abridgment of the right to broadcast it on the radio.
In the portion of the lead opinion not joined by Justices Powell and Blackmun, the plurality stated that the First Amendment does not prohibit all governmental regulation that depends on the content of speech. Id., at 742-743. Accordingly, the availability of constitutional protection for a vulgar and offensive monologue that was not obscene depended on the context of the broadcast. Id., at 744-748. Relying on the premise that “of all forms of communication” broadcasting had received the most limited First Amendment protection, id., at 748-749, the Court concluded that the ease with which children may obtain access to broadcasts, “coupled with the concerns recognized in Ginsberg,” justified special treatment of indecent broadcasting. Id., at 749-750.
As with the New York statute at issue in Ginsberg, there are significant differences between the order upheld in Pa-cifica and the CDA. First, the order in Pacifica, issued by an agency that had been regulating radio stations for decades, targeted a specific broadcast that represented a rather dramatic departure from traditional program content in order to designate when — rather than whether — it would be permissible to air such a program in that particular medium. The CDA’s broad categorical prohibitions are not limited to particular times and are not dependent on any evaluation by an agency familiar with the unique characteristics of the Internet. Second, unlike the CDA, the Commission’s declaratory order was not punitive; we expressly refused to decide whether the indecent broadcast “would justify a criminal prosecution.” 438 U. S., at 750. Finally, the Commission’s order applied to a medium which as a matter of history had “received the most limited First Amendment protection,” id., at 748, in large part because warnings could not adequately protect the listener from unexpected program content. The Internet, however, has no comparable history. Moreover, the District Court found that the risk of encountering indecent material by accident is remote because a series of affirmative steps is required to access specific material.
In Renton, we upheld a zoning ordinance that kept adult movie theaters out of residential neighborhoods. The ordinance was aimed, not at the content of the films shown in the theaters, but rather at the “secondary effects” — such as crime and deteriorating property values — that these theaters fostered: “Tt is th[e] secondary effect which these zoning ordinances attempt to avoid, not the dissemination of “offensive” speech.’” 475 U. S., at 49 (quoting Young v. American Mini Theatres, Inc., 427 U. S. 50, 71, n. 34 (1976)). According to the Government, the CDA is constitutional because it constitutes a sort of “cyberzoning” on the Internet. But the CDA applies broadly to the entire universe of cyberspace. And the purpose of the CDA is to protect children from the primary effects of “indecent” and “patently offensive” speech, rather than any “secondary” effect of such speech. Thus, the CDA is a content-based blanket restriction on speech, and, as such, cannot be “properly analyzed as a form of time, place, and manner regulation.” 475 U. S., at 46. See also Boos v. Barry, 485 U. S. 812, 321 (1988) (“Regulations that focus on the direct impact of speech on its audience” are not properly analyzed under Renton); Forsyth County v. Nationalist Movement, 505 U. S. 123, 134 (1992) (“Listeners’ reaction to speech is not a content-neutral basis for regulation”).
These precedents, then, surely do not require us to uphold the CDA and are fully consistent with the application of the most stringent review of its provisions.
V
In Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546, 557 (1975), we observed that “[e]ach medium of expression... may present its own problems.” Thus, some of our cases have recognized special justifications for regulation of the broadcast media that are not applicable to other speakers, see Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969); FCC v. Pacifica Foundation, 438 U. S. 726 (1978). In these cases, the Court relied on the history of extensive Government regulation of the broadcast medium, see, e. g., Red Lion, 395 U. S., at 399-400; the scarcity of available frequencies at its inception, see, e. g., Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 637-638 (1994); and its “invasive” nature, see Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 128 (1989).
Those factors are not present in cyberspace. Neither before nor after the enactment of the CDA have the vast democratic forums of the Internet been subject to the type of government supervision and regulation that has attended the broadcast industry. Moreover, the Internet is not as “invasive” as radio or television. The District Court specifically found that “[cjommunications over the Internet do not ‘invade’ an individual’s home or appear on one’s computer screen unbidden. Users seldom encounter content ‘by accident.’ ” 929 F. Supp., at 844 (finding 88). It also found that “[ajlmost all sexually explicit images are preceded by warnings as to the content,” and cited testimony that “ ‘odds are slim’ that a user would come across a sexually explicit sight by accident.” Ibid.
We distinguished Pacifica in Sable, 492 U. S., at 128, on just this basis. In Sable, a company engaged in the business of offering sexually oriented prerecorded telephone messages (popularly known as “dial-a-porn”) challenged the constitutionality of an amendment to the Communications Act of 1934 that imposed a blanket prohibition on indecent as well as obscene interstate commercial telephone messages. We held that the statute was constitutional insofar as it applied to obscene messages but invalid as applied to indecent messages. In attempting to justify the complete ban and criminalization of indecent commercial telephone messages, the Government relied on Pacifica, arguing that the ban was necessary to prevent children from gaining access to such messages. We agreed that “there is a compelling interest in protecting the physical and psychological well-being of minors” which extended to shielding them from indecent messages that are not obscene by adult standards, 492 U. S., at 126, but distinguished our “emphatically narrow holding” in Pacifica because it did not involve a complete ban and because it involved a different medium of communication, id., at 127. We explained that “the dial-it medium requires the listener to take affirmative steps to receive the communication.” Id., at 127-128. “Placing a telephone call,” we continued, “is not the same as turning on a radio and being taken by surprise by an indecent message.” Id., at 128.
Finally, unlike the conditions that prevailed when Congress first authorized regulation of the broadcast spectrum, the Internet can hardly be considered a “scarce” expressive commodity. It provides relatively unlimited, low-cost capacity for communication of all kinds. The Government estimates that “[a]s many as 40 million people use the Internet today, and that figure is expected to grow to 200 million by 1999.” This dynamic, multifaceted category of communication includes not only traditional print and news services, but also audio, video, and still images, as well as interactive, real-time dialogue. Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer. As the District Court found, “the content on the Internet is as diverse as human thought.” 929 F. Supp., at 842 (finding 74). We agree with its conclusion that our cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium.
H-i >
Regardless of whether the CDA is so vague that it violates the Fifth Amendment, the many ambiguities concerning the scope of its coverage render it problematic for purposes of the First Amendment. For instance, each of the two parts of the CDA uses a different linguistic form. The first uses the word “indecent,” 47 U. S. C. § 223(a) (1994 ed., Supp. II), while the second speaks of material that “in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs,” § 223(d). Given the absence of a definition of either term, this difference in language
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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sc_caseorigin
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111
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court 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.
INTERSTATE CIRCUIT, INC., et al. v. CITY OF DALLAS.
No. 42.
Decided May 6, 1968
Grover Hartt, Jr., and Edwin Tobolowsky for petitioners in No. 42.
N. Alex Bickley and Ted P. MacMaster for petitioner in No. 44 and for respondent in No. 42.
Together with No. 44, City of Dallas v. Interstate Circuit, Inc., et al., also on petition for writ of certiorari to the same court.
Per Curiam.
The petitions for writs of certiorari are granted. The judgment is vacated and the cases are remanded to the United States Court of Appeals for the Fifth Circuit for further consideration in light of the opinion of this Court in Interstate Circuit, Inc. v. City of Dallas, 390 U. S. 676, decided April 22, 1968.
Mr. Justice Black and Mr. Justice Douglas would grant certiorari and reverse the judgment of the Court of Appeals for the reasons stated in the dissenting opinion of Mr. Justice Douglas in Ginsberg v. New York, 390 U. S. 629, 650, decided April 22, 1968.
Question: What is the court in which the case originated?
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210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
212. United States Supreme Court
Answer:
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songer_classact
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B
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What follows is an opinion from a United States Court of Appeals. Your task is to determine whether the case is described in the opinion as a class action suit. If so, the opinion should specifically indicate that the action was filed as a representative of a class or of "all others similarly situated".
Ronald Lee LONG, a minor, by Lewis Daniel Long, his father and next friend, and James Brooks, Jr., a minor by Lillian Brooks, his mother and next friend, individually and on behalf of all other minor children similarly situated and Robert D. Neal, Intervenor, v. Honorable Jerome ROBINSON, Associate Judge, Municipal Court of Baltimore City and State of Maryland.
No. 15033.
United States Court of Appeals, Fourth Circuit.
Aug. 11, 1970.
Joseph A. Matera and Michael A. Millemann, Baltimore, Md., for original plaintiffs.
Peter Smith and Edwin S. Villmoare, Baltimore, Md., for intervening plaintiff.
Francis B. Burch, Atty. Gen., Edward F. Borgerding, Robert DiCicco, and Alfred J. O’Ferrall, Asst. Attys. Gen., for the State of Maryland.
MEMORANDUM AND ORDER
WINTER, Circuit Judge.
Application has been made to me as a single United States Circuit Judge for a stay of an order of the district court entered August 6, 1970 pending appeal. Rule 62(g), F.R.Civ.P.
The order sought to be stayed, filed simultaneously with an opinion expressing fully the district court’s views, declared unconstitutional certain provisions of the Ann.Code of Md., Art. 26, § 51 et seq., and the Charter and Public Local Laws of Baltimore City, Art. 4, § 240, which exempt Baltimore City from the uniform state definition of juvenile age as 18 years. By virtue of these statutes a child in Baltimore City ceases to be juvenile upon obtaining the age of 16. The age for determining who is a juvenile is important, because juveniles are treated differently from adults when they are charged with a violation of the criminal laws and for other purposes. The order required that all persons between 16 and 18 years of age when arrested (except in the case of alleged capital offenders) who are currently confined in the city jail and other places of incarceration in Baltimore City awaiting trial be released to the juvenile authorities “as expeditiously as possible.” The order did not seek to implement in other respects the declaration of invalidity, but the opinion recited that the court was of the view that such affirmative relief was unnecessary because public officials charged with enforcement of the statutes would comply with the declaration without the necessity of an injunction or restraining order. Although not mentioned in the order, the opinion indicated that the principles decided therein should be applied retroactively to May 15, 1969, the date on which suit was instituted.
The stay is sought by defendants on the assertion that the district judge reached incorrect legal conclusions. Defendants cite no authority for this contention not considered by the district court. Factually, defendants contend that they are entitled to a stay because of the substantial administrative and economic burdens which will be placed upon them in complying with the order. These burdens would prove unnecessary and would not be reimbursible if the order is reversed on appeal. Testimony was proffered (the proffer of counsel being accepted as to what the witnesses would have testified without the necessity of hearing the witnesses) that it is estimated that the order will ultimately double the yearly caseload of juvenile causes in Baltimore City. This increase, the proffer concluded, will require an expansion of special temporary detention facilities for juveniles, training schools, courts and court personnel, social workers and other personnel to apprehend, process and deal with the persons accused of offenses other than capital crimes between the ages of 16 and 18. It is said also that equipment to transport juveniles other than the customary “paddy wagon” will be required, and increased burdens will be placed upon the police department of Baltimore City which will require an increase of personnel to avoid a diminution in other police work. Additionally, it is said that the doubling of the caseload will adversely affect the treatment program for juveniles under the age of 16 until the additional facilities and personnel can be provided.
While it is obvious that the annual number of adult causes in Baltimore City will decrease by the same amount that the number of juvenile causes will increase, the effect will not be a “wash” transaction. This is so because juvenile causes require special facilities, special personnel and special procedures. Additionally, many, if not most, charges lodged against those between the ages of 16 and 18 are presently determined in the Municipal Court of Baltimore City. The Municipal Court has no juvenile jurisdiction so that under existing law juvenile causes must be dealt with by the Supreme Bench of Baltimore City. Judges and other court personnel may not be transferred or assigned from the Municipal Court to the Supreme Bench. Because insufficient funds to meet the estimated increased costs of additional juvenile causes are not available, it may be necessary to convene a special session of the General Assembly of Maryland to make appropriations to meet the increased costs attributable to the order.
I.
The legal principles by which an application for a stay of an order of a district court pending appeal is to be judged may be simply stated. The leading authority is Virginia Petroleum Jobbers Association v. Federal Power Commission, 104 U.S.App.D.C. 106, 259 F.2d 921 (1958) cited with approval in Permian Basin Area Rate Cases, 390 U.S. 747, 773, 88 S.Ct. 1344, 20 L.Ed.2d 312 (1968). The principles set forth in the Virginia Petroleum Jobbers Association case appear to be the law of this circuit. Airport Commission of Forsyth County, N. C. v. Civil Aeronautics Board, 296 F.2d 95 (4 Cir. 1961). They have sub sequently been expressly adopted in the fifth and second circuits. Belcher v. Birmingham Trust National Bank, 395 F.2d 685 (5 Cir. 1968); Eastern Air Lines, Inc. v. Civil Aeronautics Board, 261 F.2d 830 (2 Cir. 1958). See also Pitcher v. Laird, 415 F.2d 743 (5 Cir. 1969); Covington v. Schwartz, 230 F.Supp. 249 (N.D.Cal.1964), mod. and aff’d, 341 F.2d 537 (9 Cir. 1965). Briefly stated, a party seeking a stay must show (1) that he will likely prevail on the merits of the appeal, (2) that he will suffer irreparable injury if the stay is denied, (3) that other parties will not be substantially harmed by the stay, and (4) that the public interest will be served by granting the stay.
In the instant case the district judge twice refused oral requests for a stay. Ordinarily, when a party seeking a stay makes application to an appellate judge following the denial of a similar motion by a trial judge, the burden of persuasion on the moving party is substantially greater than it was before the trial judge. See, for example, the opinion of Mr. Justice Jackson in United States ex rel. Kanuf v. McGrath, October Term 1949, quoted in Breswick & Co. v. United States, 75 S.Ct. 912, 100 L.Ed. 1510 (1955); Magnum Import Co. v. Coty, 262 U.S. 159, 43 S.Ct. 531, 67 L.Ed. 922 (1923); Railway Express Agency, Inc. v. United States, 82 S.Ct. 466, 7 L.Ed.2d 432 (1962). See also Organized Village of Kake v. Egan, 80 S.Ct. 33, 4 L.Ed.2d 34 (1959). The premise of this rule, however, is that the motion for a stay has received full consideration by the trial judge. Leaving aside the suggestion advanced by defendants that the district judge did not afford them a full opportunity to develop the facts with regard to a stay beyond those which were adduced at the trial, it appears that some of the statistics and some of the evidence as to the effects of the order were not developed until after the trial. Therefore I will treat the application as if it were made to me in the first instance and not give weight to the district judge’s denial of the motion.
II.
From consideration of the factors set forth above, I conclude that the stay should be denied. My reasoning with regard to each follows:
A. Probability of success on appeal. I conclude that on the main questions decided the probability of success on appeal is not substantial. In arriving at this conclusion I emphasize that I do not, expressly or impliedly, decide any of the substantive issues which will be reached on appeal or express any view on the ultimate merits of the appeal. But in studying the opinion of the district court I note that the court has applied a conservative test of what constitutes denial of equal protection of the laws. Unlike most equal protection cases, the district judge received extensive testimony in his search for a possible rational basis for a difference in definition between what constitutes a juvenile in Baltimore City and what constitutes a juvenile in the rest of the state. The district judge found as a fact that there was no rational basis for the distinction, and the finding does not appear to be clearly erroneous. All of the legal authorities which the parties claim are pertinent to the litigation were considered by the district judge and appear to have been correctly applied.
The question of in what retrospective period the principles announced are to be applied may be more debatable. It would appear that those included within the class should be entitled to the same relief as the named plaintiffs, but what should be done with regard to those whose trials have not been stayed awaiting the outcome of this litigation is more uncertain. However, the number of persons falling into this category cannot be substantial although the parties are presently unable to estimate their number.
B. Irreparable injury to moving party. I do not minimize the cost, the inconvenience or the burdens which will be placed upon the defendants should they begin compliance with the order. However, “[m]ere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay, are not enough.” Virginia Petroleum Jobbers Association v. Federal Power Commission, 259 F.2d at 925. Even if the economic and administrative impact on the defendants is substantial and, indeed, irreparable should the order be reversed on appeal, I cannot conclude that this factor is entitled to much weight when I consider the historical context in which the litigation arises.
As more fully set forth in the opinion of the district court, the lower age for juveniles in Baltimore City was the subject of careful study and full legislative consideration in 1966 by the Legislative Council and in particular by the so-called Rasin Committee. Based upon this study a legislative determination to abolish the distinction between Baltimore City and the rest of the state was made in 1966, to become effective July 1, 1969. Obviously the effective date of the change was deferred to make possible the construction of facilities, the employment of personnel and the revision of procedures to deal with the change. So far as I have been able to determine nothing was done.
In 1969 the effective date of the change was postponed for another year, and again, with the possible exception of inter-departmental planning, no effective steps to cope with the change were taken. This was so notwithstanding the view that the distinction between the juvenile age in Baltimore City and the rest of the state was unconstitutional had been advanced in 1966 and that this litigation attacking the constitutionality of the distinction was instituted on May 15, 1969.
Again in 1970, with the instant case pending, the effective date of the change was postponed until 1971. With the exception of some inter-departmental consideration as to the effect of the change, some preliminary planning for a new detention facility and the authorization for a bond issue to be voted on at the General Election in November, 1970 to finance the construction of some facilities, no steps have been taken to implement the decision made in 1966. There has apparently been no thought given to the revision of police procedures and no substantial steps taken for the opening of temporary places of detention for the small percentage of juveniles not released initially into the custody of their parents prior to the time that the district court’s opinion was filed.
Regrettably I must conclude that the principal irreparable injury which defendants claim that they will suffer if the order of the district court is not stayed is injury of their own making. The defendant State of Maryland has postponed the moment of truth as long as possible, but the moment of truth is now at hand. It would seem elementary that a party may not claim equity in his own defaults.
C. Harm, to plaintiffs. Little need be said with regard to this factor. Defendants are willing to concede that the named plaintiffs may obtain the immediate benefit of the district court’s order, but they press for the stay as to other members of the class on whose behalf the named plaintiffs sue. I do not believe that the named plaintiffs can or should be so severed. Aside from the likely deleterious consequences which will be visited upon persons between the ages of 16 and 18 by reason of their temporary or permanent incarceration with persons over the age of 18 should the order be stayed, the other civil disabilities enumerated by the district judge are entitled to great weight.
D. Public interest. In accord with the views of those who have carefully studied the question — both the members of the Rasin Commission and those who gave uncontradicted testimony before the district judge — the public interest lies in immediate implementation of the order. The problem has been studied in Maryland since 1966, and so far as the record before me shows, the views of those competent to express them with regard to how to meet the problem are virtually unanimous. The feeling is that what has not been done should have been done both for the benefit of persons within the 16 to 18 year age bracket and for society in general.
The Attorney General has raised the possibility — but not pressed it — that if the General Assembly is convened in special session to finance implementation of the order, that body may seek to solve the problem by lowering the maximum juvenile age to 16 throughout the state. I recognize that the General Assembly has that authority, and if it exercises it, the legal issues will be obviated, and all plaintiffs will be denied relief. I hope it unlikely that the General Assembly would lightly cast aside the time, thought and study which have gone into this problem by seizing upon this retrogressive expedient in the light of its thrice recognized need for changing the old distinction. But a judicial officer should not grant a stay to forestall adverse legislative action; rather the stay should be granted or withheld on the facts of record before the judge.
III.
Finding that defendants have not established their entitlement to a stay under a balancing of the factors which govern the grant, I deny it. Because it is obviously in the public interest to do so, I will, with the consent of parties and with their offers of complete cooperation, expedite the appeal, to the end that it will probably be heard at the September Term. The filing of the record and the schedule for the filing of briefs will be worked out by the clerk with counsel. Printing of briefs will be excused.
It is so ordered.
Question: Is the case described in the opinion as a class action suit?
A. No
B. Yes
Answer:
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songer_procedur
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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 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.
Ferd SCHNEIDER v. DUMBARTON DEVELOPERS, INC., a D.C. Corporation, d/b/a Clermont Partnership, et al., Clermont Tenants Association, Inc., a D.C. Non-Profit Corp., d/b/a Clermont Partnership, Appellant. Ferd SCHNEIDER v. DUMBARTON DEVELOPERS, INC., a D.C. Corporation, d/b/a Clermont Partnership, et al., 2106 F Street Associates, Appellant. Ferd SCHNEIDER v. DUMBARTON DEVELOPERS, INC., a D.C. Corporation, d/b/a Clermont Partnership and Clermont Corporation, a D.C. Corporation, Appellants, Clermont Tenants Association, Inc., a D.C. Non-Profit Corp., d/b/a Clermont Partnership, et al. Ferd SCHNEIDER, Appellant, v. DUMBARTON DEVELOPERS, INC., a D.C. Corporation, d/b/a Clermont Partnership, et al.
Nos. 83-2075 to 83-2078.
United States Court of Appeals, District of Columbia Circuit.
Argued Sept. 13, 1984.
Decided July 23, 1985.
Kate Abbott Martin, Washington, D.C., with whom David N. Webster and William R. Robertson, Washington, D.C., were on the brief for 2106 F Street Associates and Clermont Tenants Ass’n appellants in No. 83-2075 and 83-2076 and cross-appellees in No. 83-2077.
Reuben B. Robertson, III, Washington, D.C., for Dumbarton Developers, Inc., et al., appellant in No. 83-2077 and cross-appellees in Nos. 83-2075, 83-2076 and 83-2078.
Howard H. Stahl, Washington D.C., for Ferd T. Schneider appellee in No. 83-2078 and cross-appellant in Nos. 83-2075, 83-2076 and 83-2077. Loren Kieve, Washington, D.C., also entered an appearance for Schneider.
Before MIKVA, GINSBURG and STARR, Circuit Judges.
Opinion for the Court filed by Circuit Judge MIKVA.
MIKVA, Circuit Judge:
This appeal and cross appeal (as well as the related case District-Realty Title Insurance Corp. v. Ensmann, 767 F.2d 1018, also released today) arise frbm appellee Ferd Schneider’s abortive attempt to sell the appellants the Clermont apartment building, located at 2106 F Street, N.W., in Washington. This court has jurisdiction on the basis of diversity of citizenship. See 28 U.S.C. § 1332 (1982).
The legal questions raised are straightforward, but the facts are convoluted. The district court’s findings consume almost twenty pages of small type. We repeat only the more salient findings here.
On February 10, 1981, Schneider agreed to sell his building to appellants, Clermont Tenants Association, Inc., (“CTA”), a District of Columbia nonprofit corporation and Dumbarton Developers, Inc. (“Dumbarton”), a District of Columbia corporation, co-partners t/a Clermont Partnership, (collectively, the purchaser) (see Land Purchase Agreement, reprinted in Record Excerpts (“R.E.”) at 319-36). Dumbarton apparently had been recruited by CTA as a developer partner; its role was to obtain the funds necessary to buy the property and make certain payments of cash and notes to CTA members. Under the terms of the Land Purchase Agreement, settlement was to have been completed 120 days following execution of the agreement. At the purchaser’s request, however, settlement was postponed twice. Finally, Schneider announced that unless “full settlement [was] made on or before 3:00 P.M., May 17, 1982,” he would consider the Land Purchase Agreement terminated. On May 17, Schneider did all that the Agreement required of him, but the purchaser failed to make settlement. Schneider then brought suit seeking a declaratory judgment that the agreement was terminated. This suit was settled under an “Agreement of Settlement and Release,” dated August 4, 1982 (“August 4 Settlement Agreement”, reprinted in R.E. at 108-13).
Under the August 4 Settlement Agreement, purchaser agreed to “consummate settlement of the Agreement on or before October 4, 1982, time being of the essence.” Apart from seven exceptions not pertinent to this appeal, the time for settlement could not be further extended for “any reason whatsoever.” The agreement further provided:
[I]n the event it fails to consummate settlement as aforesaid, the deposit in the amount of Fifty Thousand Dollars ... shall be forfeited to Schneider as liquidated damages, the Agreement will thereupon be terminated and of no further force or effect, and the parties relieved of all further liability or obligation thereunder. Clermont, Dumbarton, and Corporation agree that in the event settlement is not consummated in accordance with the terms of Paragraph 1, they shall thereupon have waived and relinquished any and all interest in or rights to purchase the property.
Thus, the purchaser was given two months — from August 4, 1982, until October 4 — to consummate settlement. Schneider was ready, willing, and able to make settlement at all times during that period, but the purchasers designated the very last day, October 4, 1982, as the earliest date at which they would be ready to make settlement.
Unbeknownst to Schneider, Dumbarton had entered into a financing arrangement with West German investor Rudolf Ensmann for the purchase and development of the property. Since early September 1982, moreover, Ensmann’s attorneys had been attempting — without success — to persuade Dumbarton to let Ensmann take title to the property at the closing. Having failed to persuade Dumbarton, Ensmann’s attorneys had begun pressing CTA to exercise its contractual option to buy out Dumbarton’s share of the partnership. As of daybreak on October 4, however, no agreement had been reached.
The events of October 4, 1982, and the days immediately following are a tangled web of mix-ups, mistakes, and miscalculations.
On the morning of October 4, Ensmann’s attorneys finally concluded an “Agreement for Assignment and Disbursement” with CTA under which CTA was to assign all of the Clermont Partnership’s right, title, and interest in the apartment building to Ensmann and do everything in its power to ensure that Ensmann perfected title to the property. Schneider was not told of this agreement. At about noon, 2106 F Street Associates (“2106”) was created as a limited partnership 99% owned by Ensmann. Schneider was not told about this development either.
Schneider and his attorney arrived at the title company at about 2:00 P.M. and had completed their part of the transaction by about 2:20 P.M. At that time, one of Dumbarton’s attorneys informed Schneider that it “might be necessary” to change the name of the grantee on the deed. Schneider’s lawyer replied that his client had no objection provided he “gets his money.” The possible new grantee was not named, and Schneider was still not informed of the agreement which had been concluded that morning.
Schneider asked the settlement officer for his payment, but was told it was not yet available. Schneider asked “when will I get my money” and was told to call the title company on Wednesday, October 6. Having fulfilled all his obligations under the Land Purchase Agreement and the August 4 Settlement Agreement, Schneider left the title company’s offices at about 2:30 P.M. At about 4:00 P.M., Schneider’s attorney phoned the title company and was informed that the purchaser had not completed settlement. He was still not informed, however, of the assignment or of the creation of 2106.
Between 4:00 and 5:00 P.M., CTA delivered to Dumbarton a document that purported to exercise CTA’s option to buy out Dumbarton’s interest in the Clermont Partnership. Dumbarton immediately informed CTA that Dumbarton was not in default as to any of its obligations, considered the purported exercise of the option invalid, and would contest it.
At about 6:00 P.M., lawyers for CTA and for 2106 delivered escrow instructions and three checks totalling $1,405,000 to the title company. Dumbarton had never authorized or joined in the escrow instructions. The instructions were defective in a number of other respects as well.
Schneider’s attorney called the title company’s offices at about 6:30 P.M. and was again told nothing except that settlement had not been completed.
At about 8:30 P.M., new escrow instructions were delivered to the title company, this time by CTA, 2106 and Dumbarton. The title company was unable to comply with the mandate of the instructions because they contained several preconditions which could not be satisfied. Specifically, the instructions required certain payments to Dumbarton, CTA, and others, for which the sums then deposited with the title company were insufficient. The instructions also required delivery to the title company of certain documents — CTA’s assignment of its interests to 2106 and Ensmann’s release of a lawsuit against Dumbarton— which either had not been delivered or had not been fully executed.
At about 10:00 A.M. on October 5, 1982, Schneider’s lawyer called the title company and learned that settlement had still not been made. At 11:00 A.M., representatives of Dumbarton, CTA, and 2106 (Ensmann) arrived at the title company, delivered more money, and began drawing up still more instructions. At 2:00 P.M., Schneider’s attorney called again. After learning that settlement was still not complete because the title company could not comply with the latest escrow instructions, Schneider decided to terminate the Land Purchase Agreement. Schneider and his lawyer appeared at the title company at about 2:50 P.M. and, upon being informed by the settlement officer that no substantial progress has been made, tendered a letter terminating the agreement and claiming the $50,000 deposit as liquidated damages. Schneider’s attorney instructed the title company to return ail documents submitted in connection with the settlement.
After Ensmann’s attorneys learned that Schneider had terminated the agreement, they drafted yet another set of escrow instructions and directed that the title company issue a check for the adjusted purchase price to Schneider.
On the morning of October 6, Schneider’s attorney received from the title company, not the documents whose return he had requested, but instead the check, a copy of a new deed naming 2106 as grantee, and a new District of Columbia Real Estate Deed Recordation Tax and Real Property Tax Return. This was the first that Schneider’s attorney had heard of 2106. The title company had forwarded a copy of CTA’s assignment of its rights to 2106; it had forwarded nothing indicating a similar assignment by Dumbarton. Schneider’s attorney was aware of disputes among Dumbarton, CTA, and their financial backer and, consequently, was leary of assuming Dumbarton’s acquiescence. He asked a lawyer who was acting for both Ensmann and 2106 whether she could obtain Dumbarton’s consent to the exercise of the option and was told that that would be “impossible.” Ensmann’s attorneys offered to indemnify Schneider for any resultant litigation.
Schneider’s attorney advised that the proffered indemnification was inadequate to protect Schneider from lawsuits claiming he had wrongfully transferred property. Thus, on October 7, 1982, Schneider returned the check and filed suit in district court, seeking a declaratory judgment that the Land Purchase Agreement was terminated, $50,000 in liquidated damages, and attorney fees. Dumbarton and CTA counterclaimed for specific performance. The district court found for Schneider, declaring the agreement terminated and holding all the defendants jointly and severally liable in the amount of $50,000, but ordered the parties to bear their own costs and fees. Defendants appealed; Schneider cross-appealed for attorney fees. We affirm all aspects of the district court’s judgment except the conclusion that 2106 is jointly and severally liable with the other defendants for the $50,000 liquidated damages.
Substantial Performance:
The appellants contend that their actions on October 4 and the two days immediately following constituted substantial performance under the contracts. Although the district court may have overstated the holding of Drazin v. American Oil Company, 395 A.2d 32 (D.C.App.1978), in asserting that the doctrine of substantial performance can never apply where time is of the essence, the district judge reached the correct result.
In Drazin, the District of Columbia Court of Appeals considered whether a unilateral act by one party could add a “time is of the essence” provision to a real estate contract that initially had not had one. The court concluded it could and denied appellant Drazin’s claim for specific performanee, noting that he had failed to meet the deadline that the defendant had imposed.
The court did not address the question of whether Drazin’s performance had been substantial or whether the substantial performance doctrine in general could apply where time is of the essence. We too need not decide whether the substantial performance doctrine has any proper application to time is of the essence contracts because it is evident that the appellants did not substantially perform. The appellants’ acts on October 4 were not sufficient to constitute substantial performance and their acts after that date may not properly be considered.
Under District of Columbia law, “time is of the essence” provisions are taken seriously and occasion a departure from the ordinary rules governing time limitations in land contracts. Generally, the time set in a real estate contract is looked upon as “an approximation of what the parties regard as a reasonable time.” Drazin, 395 A.2d at 34; Doering v. Fields, 187 Md. 484, 490, 50 A.2d 553, 555-56 (1947). Normally, neither party is held strictly to the time limit although the limit is “not nugatory” and the seller has “a right to expect that the vendees [will] be ready at about that time.” Drazin, 395 A.2d at 34. Such laxity ceases, however, where time is of the essence. In contracts for sale of land
equity treats the [time] provision as formal rather than essential, and permits the purchaser who has suffered the period to elapse to make payment after the prescribed date, and to compel performance by the vendor notwithstanding the delay, unless it appears that time is of the essence of the contract by express stipulation, or by inference from the conduct of the parties, the special purpose for which the sale was made, or other circumstances surrounding the sale.
Id.; Kasten Construction Co. v. Maple Ridge Construction Co., 245 Md. 373, 379, 226 A.2d 341, 345 (1967) (both quoting Soehnlein v. Pumphrey, 183 Md. 334, 338, 37 A.2d 843, 845 (1944)).
Given that the August 4 Settlement Agreement stated not only that “time is of the essence” but also that “the time for settlement may not be further extended for any reason whatsoever,” acts performed after the October 4 deadline may not be considered in determining whether there was substantial performance. The appellants actions before the October 4 deadline, however, do not constitute substantial performance.
As commentators have noted, see, e.g., Corbin on Contracts § 704, substantial performance is not susceptible of simple definition. It is generally conceded to exist, however, when a contracting party has failed to render full performance but the defects are, all considered, minor. Although it most often applies to construction contracts (and some cases have even limited it to that context, see, e.g., Corbett v. Freedman & Sons, 161 N.E. 415, 263 Mass. 391 (1928)), the general view is that the doctrine may apply to any contract, see Corbin on Contracts § 701. Whether a particular tender of performance is ‘substantial’ depends on the facts of the case.
Where the line is to be drawn between the important and the trivial cannot be settled by a formula. In the nature of the case, precise boundaries are impossible. The same omission may take on one aspect or another according to its setting ... Nowhere will change be tolerated, however, if it is so dominant or pervasive as in any real or substantial measure to frustrate the purpose of the contract____ The question is one of degree, to be answered ... if the inferences are certain, by the judges of the law. We must weigh the purpose to be served, the desire to be gratified, the excuse for deviation from the letter, the cruelty of enforced adherence.
Jacob & Youngs v. Kent, 129 N.E. 889; 230 N.Y. 239 (1921) (Cardozo, J.). Important factors are the character of the performance promised, the purposes and interests it was expected to serve, and the extent to which nonperformance has defeated those purposes and ends. Another key consideration is the actual receipt and enjoyment of benefits by the defendant. In short, substantial performance does not contemplate full performance but does contemplate performance of all important parts of the contract. See Corbin on Contracts § 712.
Turning to the facts at hand, we find that the performance tendered by the appellants cannot be considered substantial. The central purpose of the contract was to effect a transfer of real estate. To realize this purpose, the appellants had to pay the full purchase price to the title company (which would then issue a check to Schneider) and agree to a transfer to the entities named in the original agreement or their lawful substitutes. Neither of these acts was performed on October 4.
That the appellants paid ‘substantial’ sums of money over to the title company was of no benefit to Schneider because the appellants’ escrow instructions prevented the title company from releasing the funds. We reject appellants’ contention that the unfulfilled preconditions in the escrow instructions were merely minor details, devoid of real significance. Since the title company would not release any funds to Schneider until the full amount was deposited, these ‘minor details’ prevented Schneider from receiving any payment whatsoever on the date due, let alone the full payment to which he was entitled under the contract.
Equally important, the appellants failed to make proper provisions for the transfer of title. Schneider was contractually bound to deliver the property to the Clermont Partnership, but the partnership’s financial backer, Ensmann, was insisting upon transfer to a new entity called 2106. This controversy was not resolved on October 4, nor, so far as the record discloses, at any point thereafter.
Ensmann was able eventually to present a legally effective assignment from CTA to 2106 but admitted that it would be “impossible” to obtain a similar document from Dumbarton. The best Ensmann could do was make a lame offer to indemnify Schneider if Dumbarton sued for wrongful transfer. Indemnity is not performance and cannot be cavalierly substituted for performance. Nor is the distinction a mere technicality. Ensmann in essence had conditioned payment on the issuance of a new deed not in accordance with the Land Purchase Agreement. Such “performance” is not “substantial”; indeed under District of Columbia law, it is of no effect whatsoever. Ferguson v. Caspar, 359 A.2d 17, 24 (D.C. 1976), holds that “a tender of performance by the purchaser which contains conditions other than those specified in the contract between the parties is ineffectual.”
In sum, the August 4 Settlement Agreement made timely compliance a key term of the contract by stating both that “time is of the essence” and that the time for compliance could not be extended for “any reason whatsoever.” When we further recall the history of the case — the original provision for settlement within 120 days of the execution of the Land Purchase Agreement, the two postponements at the appellants’ request, Schneider’s ultimatum that payment be made by May 17, 1982 or the contract would terminate and appellants’ failure to meet the deadline, Schneider’s original suit for declaratory judgment and the August 4 Settlement Agreement providing the appellants with one last chance to buy the property — we have no difficulty discerning that stricter adherence to the deadline was intended than is generally the case in real estate transactions. The parties bargained for the strict construction that Schneider urges and it would be improper for the courts to put any other interpretation on the “time is of the essence” clause.
It would therefore be improper to include acts performed after October 4 in considering substantial performance. Turning to the events of October 4, we find that the appellants failed to pay the seller any money and failed also to resolve a dispute as to which entity would take title. Both of these failures go to the heart of the contract. They are material; indeed it is difficult to imagine anything more material.
Reviewing all the circumstances of the present case, we conclude that the district judge was correct in ruling that the appellants had not substantially performed their obligations under the contract within the time allotted.
Notice and Opportunity to Cure:
The appellants argue that under the terms of the Land Purchase Agreement, they were entitled to notice of default and a five-day opportunity to cure the default, which entitlements were improperly denied by Schneider’s filing suit only three days after the scheduled settlement date. The appellants suggest that the contract’s notice and cure provision applied to any and all defaults, even the most grievous. We need not determine whether this interpretation — which in effect provides an automatic extension whenever settlement is not made — is correct. We agree with the district judge that the August 4 Settlement Agreement effectively eliminated the grace period provision from the agreement between the parties.
The August 4 Settlement Agreement, reached in compromise of a lawsuit that had been filed solely because of excessive delays in making settlement under the contract to purchase, essentially provided for one last chance to complete the deal. The agreement not only asserted that “time is of the essence” but also emphatically stated that “the time for settlement may not be further extended for any reason whatsoever.”
Settlement agreements are in high judicial favor. See, e.g., Williams v. First National Bank, 216 U.S. 582, 595, 30 S.Ct. 441, 445, 54 L.Ed. 625 (1910); Autera v. Robinson, 419 F.2d 1197, 1199 (D.C.Cir. 1969). They enable the parties to avoid the expense and delay involved in full litigation of the issues and spare the court the burden of trial. The District of Columbia partakes of the general view that such an agreement voluntarily entered into cannot be repudiated by either party and will be enforced summarily by the court. See, e.g., Autera v. Robinson, 419 F.2d at 1200; see also Kelly v. Greer, 365 F.2d 669, 671 (3rd Cir.1966), cert. denied, 385 U.S. 1035, 87 S.Ct. 772, 17 L.Ed.2d 682 (1967); Cummins Diesel Michigan, Inc. v. The Falcon, 305 F.2d 721, 723 (7th Cir.1962).
A settlement agreement resolving a contract dispute is said to operate as a substituted contract, cancelling or modifying the prior contract to the extent that the two are inconsistent. See Sirota v. Econo-Car, International, Inc., 556 F.2d 676, 681 (2d Cir.1977); Jersey Central Power and Light Co. v. Local 327, IBEW, 508 F.2d 687, 703 & n. 44 (3rd Cir.1975); Restatement of Contracts § 408 (1932 & Supp. 1979); 6 Corbin on Contracts § 1293 (1962). Whether the provisions of a subsequent contract are deemed to supersede the provisions of a prior contract turns on the parties’ intent which is ascertained from the contracts themselves when they are unambiguous. See Jersey Central Power & Light Co., 508 F.2d at 703.
We find that the August 4 Settlement Agreement clearly meant for October 4, to be the last and final opportunity to settle and that an automatic five-day extension is inconsistent with the intent of the Settlement Agreement. We conclude that the settlement contract eliminated the grace period provision and that, consequently, the appellants’ claim of entitlement is without merit.
Waiver:
The appellants assert that even if Schneider had a right to demand payment on October 4, his actions on that day constituted a waiver. The appellants point to Schneider’s failure to terminate the agreement when first informed that the title company would not pay out his money before October 6 and Schneider’s apparent willingness to provide a new deed if necessary. We reject appellants’ waiver argument.
Under District of Columbia law, which we are bound to apply in this diversity case, a written contract specifying that time is of the essence can only be modified in writing. See Landow v. Georgetown-In land West Corp., 454 A.2d 310, 313 (D.C. 1982). In Landow, the District of Columbia Court of Appeals rejected arguments remarkably similar to those advanced by the appellants here. The buyer had contended that as long as he was making good faith efforts to consummate the transaction, the settlement date should be extended notwithstanding a “time is of the essence” clause. The court rejected the buyer’s argument as “without legal foundation” and “commercially impracticable.” Id.
The court noted that in a written contract where time is not of the essence, strict compliance with the date of performance may be waived orally. Where time is stated to be of the essence, however, a different rule applies. Modification of the date of settlement is then regarded as a material change which cannot be effected without a writing. Since no one here contends that Schneider’s right to demand adherence to the October 4 deadline was ever waived in writing, whether Schneider’s actions suggested a willingness to dispense with the deadline is and should be irrelevant.
A different rule would be inconsistent with public policy. Were we to adjudge acts as equivocal as Schneider’s sufficient to constitute a binding waiver of material contractual rights, we would discourage the negotiations and minor, reasonable accommodations which are the norm in the business world. The consequence would be a decrease in flexibility and an increase in litigation. Such a rule would be as unwise as it would be unprecedented in District law. Consequently, we affirm the trial court’s conclusion with respect to waiver.
Attorney Fees:
Schneider has cross-appealed from the district court’s denial of attorney fees. We affirm the district court. The cases Schneider cites fail to establish his entitlement to fees. Under the American rule, parties normally bear their own costs and fees. A fee award is an extraordinary remedy which the court grants only where specially authorized by contract or statute or where the conduct of the losing party was exceptionally bad. See, e.g., Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240, 249-70, 95 S.Ct. 1612, 1617-28, 44 L.Ed.2d 141 (1975); Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 717-19, 87 S.Ct. 1404, 1406-07, 18 L.Ed.2d 475 (1967); Trilon Plaza Co. v. Allstate Leasing Corp., 399 A.2d 34, 37 (D.C.1979).
Schneider, rather than the appellants, initiated this lawsuit in the district court, and although the legal position of the appellants was weak and they have pursued their cause here without success, we are not convinced that they have acted “in bad faith, vexatiously, wantonly, or for oppressive reasons.” Cf. Wisconsin Avenue Associates, Inc. v. 2720 Wisconsin Avenue Cooperative Association, Inc., 385 A.2d 20, 24 (D.C.App.1978); 1901 Wyoming Avenue Cooperative Association v. Lee, 345 A.2d 456, 465 (D.C.App.1975); F.W. Berens Sales Co. v. McKinney, 310 A.2d 601, 603 (D.C.App.1973).
Nor do we accept Schneider’s claim that he is entitled to fees on a breach of contract theory. He asserts that the August 4 Settlement Agreement was a contract and that a major goal of the agreement was to avoid litigation; by forcing him to sue for declaratory judgment and then pursuing this appeal, appellants, he contends, deprived him of the benefit of his bargain. A settlement agreement is, of course, a contract, see Bullard v. CurryCloonan, 367 A.2d 127, 131 (D.C.App. 1976), and litigation in defiance of a promise not to sue could constitute a breach. But no such situation presents itself here. The August 4 Settlement Agreement contains no explicit covenant not to sue. Even if we were to find such a covenant by implication, as the law permits us to do, the covenant would go only to the merits of the controversy settled — not to the existence or terms of the Settlement Agreement itself. See Winchester Drive-In Theatre, Inc. v. Warner Bros. Pictures Distributing Corp., 358 F.2d 432, 436 (9th Cir.1966). Since we find that this suit arose from genuine disputes as to the terms and import of the settlement agreement, we reject Schneider’s breach of contract theory.
Where the trial court exercises its discretion to award or deny attorney fees, our role on review is restricted to determining whether discretion was abused. See Trilon Plaza Co., 399 A.2d at 38; Panos v. Nefflen, 205 A.2d 600, 602 (D.C.App.1964) (quoting Shima v. Brown, 140 F.2d 337, 337 (D.C.Cir.1943)). Here we have little difficulty in concluding that the trial court exercised its discretion soundly. Indeed, as indicated above, we are unaware of any precedent which would authorize the award of fees in the circumstances of this case.
Liability of 2106 F Street Associates:
Appellant 2106 objects on both procedural and substantive grounds to its being held jointly and severally liable for the $50,000 liquidated damages. 2106 contends that because it appeared as an intervenor and Schneider never amended his complaint to include specific claims against the intervenor, 2106 had neither adequate notice of nor reasonable opportunity to defend against the liquidated damages liability. 2106 further contends that it assumed no liability for damages under the agreements between it and Dumbarton and CTA. We find the first contention without merit, but agree with the second.
When a party intervenes, it becomes a full participant in the lawsuit and is treated just as if it were an original party. See District of Columbia v. Merit Systems Protection Board, 762 F.2d 129, 132 (D.C.Cir.1985); Marcaida v. Rascoe, 569 F.2d 828, 831 (5th Cir.1978). The intervenor renders itself “vulnerable to complete adjudication by the federal court of the issues in litigation between the intervenor and the adverse party.” United States v. Oregon, 657 F.2d 1009, 1014 (8th Cir.1981) (quoting 3B Moore’s Federal Practice ¶ 24.16[6] (2d ed. 1981)). It is said to assume the risk that its position will not prevail and that an order adverse to its interests will be entered. See 7A C. Wright & A. Miller, Federal Practice & Procedure § 1920, at 611 (1972). As we said recently, “the possibility that the plaintiff will be able to obtain, relief against the intervenor-defendant” is part of the “price” paid for intervention. District of Columbia, at 132.
As an intervenor, 2106 subjected itself to the plaintiff’s claims against the defendant, notwithstanding plaintiff’s failure to amend his complaint to include reference to 2106. 2106 entered the lawsuit with full awareness of the nature of Schneider’s claims against the defendants and participated actively. It argued vehemently that it was the lawful substitute for the original parties and had the right to take title to the property under the contracts negotiated by the original parties. It was aware, moreover, that Schneider’s trial brief asked for “judgment against the defendants CTA, Dumbarton, and 2106 FSA, and each of them, in the amount of $50,000” (emphasis added). Although 2106 may not have anticipated that the court would hold it liable, unpleasant surprise is not the same as unfair surprise and certainly does not constitute a due process violation in circumstances such as these. The district court therefore reasonably rejected 2106’s claim of inadequate notice and opportunity to defend. See Order, Civ. Action No. 82-2876 (D.C.D.C. Sept. 27, 1983); cf. Memorandum of Points and Authorities in Support of 2106 F Street Associates’ Motion for Reconsideration, Schneider v. Dumbarton Developers, Inc., Civ. Action No. 82-2876.
The district court erred, however, when it concluded that 2106 was jointly and severally liable for the liquidated damages. Given that appellants failed to make settlement and that Schneider lawfully terminated the contract, 2106 was under no further obligation. It was not the defendants’ assignee unless settlement was made and even if it had been, under District of Columbia law, the terms of the assignments were insufficient to impute an assumption of liability to 2106.
The agreement between 2106 and CTA, see R.E. at 122-26, and the agreement between 2106 and Dumbarton, see id. at 141-51, were drafted at the eleventh hour when the danger that the deal would fall through must have been apparent. They are structured so as to terminate if settlement is not consummated. The agreement with CTA stated:
Provided that Ensmann is able to acquire the Property at the closing, Ensmann will indemnify and hold CTA harmless from and against any and all loss, cost, damage, expenses or attorneys fees arising from any claims by any person, firm, [or] corporation____ If [however] Ensmann is not able to acquire title to the Property pursuant to the Dumbarton Agreement at Closing for any reason, this Agreement shall be void and of no further force and effect, the Title Company shall return the funds provided ... to Ensmann and neither party hereto shall have any obligation or liability to the other under this Agreement.
See id. at 124-25 (emphasis added). The agreement with Dumbarton contained a similar provision. See id. at 147. Since the district court properly found that settlement was neither made nor consummated, the assignments terminated and CTA and Dumbarton (or their successors) must bear the burden of the liquidated damages.
Even if assignments had not terminated, we would still conclude that 2106 was not liable. Under District of Columbia law an assignee is responsible only for those obligations of the assignor that he contracts to undertake. He is only liable for past breaches if he has “expressly assume[d] any duties correlative with the right assigned, there being no implication of assumption by the mere assignment.” Rittenberg v. Donohoe Construction Co., 426 A.2d 338, 341 (D.C.1981). Since the district court properly found that 2106 v/as not an assignee on October 4, it became one only after October 4, if at all; 2106 never assumed liability for the damages in question.
Schneider has contended that 2106 is attempting to “have it both ways” and should be equitably estopped from refusing to accept liability. We disagree. There can be no question that the arrangement 2106 negotiated was highly advantageous to it, but driving a hard bargain is not grounds for estoppel. We do not consider 2106’s position internally inconsistent. 2106 has argued that the purchasers are entitled to specific performance of the Land Purchase Agreement and that 2106 should take title as the assignee. If, as the district court properly determined, however, Schneider was within his rights in terminating the agreement, 2106 contends that its relationship with Dumbarton and CTA is severed and 2106 has no further obligations to either in connection with this matter. In other words, the assignment was good only for the purposes of a successful transfer of the apartment building, and, failing that, is of no further purpose or effect.
Conclusion:
Because we find that the assignments, in effect, allocated the risk of nonsettlement to Dumbarton and CTA (or their successors), we conclude that the trial court erred in holding 2106 jointly and severally liable for the liquidated damages. We reverse the trial court’s ruling on that issue. In all other respects, we affirm.
It is so ordered.
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_weightev
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
John A. EDSBERG and S. W. Buchanan, Appellants, v. LOCAL UNION NO. 12 OF the INTERNATIONAL UNION OF OPERATING ENGINEERS et al., Appellees.
No. 17367.
United States Court of Appeals Ninth Circuit.
March 5, 1962.
Roger J. Pryor, Compton, Cal., for appellant.
Albert Brundage, Brundage, Haclder & Flaum, Los Angeles, Cal., for appellee.
Before BARNES and DUNIWAY, Circuit Judges, and DAVIS, District Judge.
BARNES, Circuit Judge.
Appellants petitioned for an injunction below. When this was dismissed because no claim was stated, they sought this review.
Appellant are two members of Local Union No. 12 of the International Union of Operating Engineers (hereinafter sometimes referred to as Local Union 12). Both Local Union 12 and the International Union are appellees here and defendants below.
At a meeting of Local Union 12 held on December 3, 1960, (at which some six hundred members were present) it was voted that any change in the By-Laws of Local Union 12 (required by the passage of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C.A. § 401 et seq., effective December 14, 1959) was postponed to a date after the anticipated election of new officers in June 1961.
This special meeting was subsequent to a partially completed referendum vote by mail on proposed new By-Laws, which changes, appellants assert, were for the purpose of benefiting the executive board and business manager of Local Union 12. Upon objection made to the International President, he set aside the partially completed vote by mail. Thereafter, contrary to the express vote for delay in such amendments, made at the special meeting, the International President with knowledge of the vote for delay by Local Union 12 ordered a second referendum. It was had; the new By-Laws were approved by a vote of 3,-386 for, to 1,961 against; they were ratified by the International President, and Local Union 12 is now operating under them.
Appellees urge that the entire proceedings relating to the adoption of the new By-Laws triggered by the Landrum-Griffin Bill, complied fully with the By-Laws of Local Union 12, the Constitution of the International Union, all laws of the states involved and the federal laws.
As an example, appellees point out that Article XXIII, Subdivision 12, of the Constitution of the International Union of Operating Engineers provides:
“Local unions may adopt and amend by-laws * * * by a majority vote of the members voting at a regular membership meeting, at a special meeting for that purpose, or in a mail referendum of the membership * *
This means, urge appellants, that if a majority of a union’s membership present at a meeting (as here) decided to postpone action relating to the amendment of its by-laws, then in good faith the membership cannot vote a contrary conclusion (that it will amend its bylaws) at a mail referendum held “immediately" thereafter. But we are referred to no provision of the By-Laws, either local or international, that forbids such a practice. For how long should such a “command” be binding on the membership ? At oral argument, the answer given this court to such question was “a reasonable period.” No clearer or more precise definition could be offered. And such an unprecise rule might well create more bad than good in union affairs.
But such an interpretation, say appellants, is the only reasonable one that could be adopted, for otherwise the majority of the members voting at the meeting would be disenfranchised. We cannot agree. The will of that majority may be overruled by the majority will of a later mail vote. This is not disenfranchisement, but the democratic process of majority rule in action. Such majority may well sway one way or another from time to time. If it did not, the interest of our people in minority parties would quickly disappear; and their will become a hopeless cause.
But whether this is a democratic process or no, it was and is the procedure set up in the By-Laws. No restriction was set up as to how soon after a regular or special meeting majority action could be challenged by the holding of a referendum by mail. Nor can we rewrite the By-Laws to set up such a restriction.
But in any event, say appellants (after a recital of the purposes and policy of the Labor-Management Reporting and Diselosuz'e Act of 1959), Section 101(a) (1) and Section 101(a) (2) of the Act (and perhaps Section 501 of Title V of the Act) permit the filing of the instant action. These two sections read as follows, in pertinent part:
“Sec. 101(a) (1) — Bill of Rights of Members of Labor Organizations.
“Every member of a labor organization shall have equal rights and privileges within such organization to nominate candidates, to vote in elections or referendums * * * to attend membership meetings, and to participate in the deliberations and voting upon the business of such meetings, subject to reasonable rules and regulations in such organization’s constitution and bylaws.”
“Sec. 101(a) (2) — Freedom of Speech and Assembly.
“Every member of any labor organization shall have the right to meet and assemble freely with other members; and to express any views, arguments, or opinions; and to express at meetings of the labor organization his views, upon candidates in an election of the labor organization or upon any business properly before the meeting, subject to the organization’s established and rea> sonable rules pertaining to the conduct of the meetings: Provided * * (Emphasis appellants’.)
When pressed to state what portions of these sections had actually been violated in this ease, we think it fair to state that appellants fell back on the theory that the legislative intent of the Act had been violated, rather than any specific provision of the Act.
But we need not here finally decide the issue thus presented, because of the defense that appellants have not exhausted their administrative remedies, which defense we find valid and controlling.
When the mail referendum was ordered by the Union’s International President, Mr. Hummel, one of the appellants (in his affidavit supporting his motion for a preliminary injunction) states: “[H]e filed a notice of appeal to the International President in a letter dated December 7, 1960 * * That letter was attached as Exhibit A to his affidavit.
This letter was no appeal, nor notice thereof, in the ordinary legal sense. It was an appeal to the conscience of the International President. It urged that he change his mind about the mail referendum and stop it. The letter was acknowledged without commitment or comment.
Thus appellants by their affidavit recognize that there existed procedures for an appeal within the Union’s By-Laws. The Constitution of the International Union recognizes the right of appeal (Art. XVII, Section 1(a)). Detailed procedures are set up to accomplish it (Art. XVII, Section 1(b)). Exhaustion of remedies within the Union procedures is required (Art. XVII, Section 4). Cf: also, Art. VI, Section 2; and Art. XVII, Sections 1(c), 2 and 3.
The procedures for appeal so set up do not seem upon first blush too complicated or likely to result in long delays in processing on appeal. And we think it clearly appears from the record no real attempt to exhaust administrative remedies has here been made.
We need not decide whether exhaustion of remedies provided by the Union is an absolute requirement before asking the federal courts to intervene in intra-union activities. Penuelas v. Moreno, S.D.Cal., 1961, 198 F.Supp. 441; Acevedo v. Bookbinders & Machine Operators, Local No. 25, S.D.N.Y., 1961, 196 F.Supp. 308; Smith v. General Truck Drivers, Union Local 467, S.D.Cal., 1960, 181 F.Supp. 14; Holderby v. International Union of Operating Engineers, Local Union No. 12, 1955, 45 Cal.2d 843, 291 P.2d 463. But Cf: Detroy v. American Guild of Variety Artists, 2 Cir. 1961, 286 F.2d 75.
We find here no uncertain or futile remedy offered to appellants by their own organization. In the absence of such a factual situation, we recognize and reaffirm “the declared policy [of the courts], favoring self-regulation by unions.” Detroy v. American Guild of Variety Artists, supra at 81.
The federal courts, of limited jurisdiction, cannot and should not intervene in any and every intra-union dispute.
The dismissal of the action below is affirmed.
. “ * * * Declaration of findings, purposes, and policy: Sec. 2(a).
“The Congress finds that, in the public interest, it continues to be the responsibility of the Federal Government to protect employees’ rights to organize, choose their representatives, bargain collectively, and otherwise engage in concerted activities for their mutual aid or protection. * * * [Emphasis appellants’.]
“(b) The Congress further finds, from recent investigations in the labor and management fields, that there have been a number of instances of breach of trust, corruption, disregard of the rights, of individual employees, and other failures to observe high standards of responsibility and ethical conduct which requires further and supplementary legislation that will afford necessary protection of the rights and interests of employees and the public generally as they relate to the activities of labor organizations, employ-erg * * * an<j their officers and representatives.” (Emphasis appellants’.)
. On brief, appellants cite other sections of the Act (Sections 101(a) (4); 101(b); 102; and 103), but did not seriously urge these sections on oral argument as controlling.
. See discussion of other reasons for court action, Falsetti v. Local 2026 U.M.W., 400 Pa. 145, 161 A.2d 882. Also see Allen v. Local 92 Iron Workers, 47 L.R.R.M. 2214.
Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
sc_issue_8
|
01
|
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.
GOLDFARB et ux. v. VIRGINIA STATE BAR et al.
No. 74-70.
Argued March 25, 1975
Decided June 16, 1975
Burger, C. J., delivered the opinion of the Court, in which all other Members joined except Powell, J., who took no part in the consideration or decision of the case.
Alan B. Morrison argued the cause and filed briefs for petitioners.
Andrew P. Miller, Attorney General of Virginia, argued the cause for respondent Virginia State Bar. With him on the brief were Anthony F. Troy, Deputy Attorney General, and Stuart H. Dunn, Assistant Attorney General. Lewis T. Booker argued the cause for respondent Fairfax County Bar Assn. With him on the brief was John H. Shenefield.
Solicitor General Bork argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Assistant Attorney General Kauper, Gerald P. Norton, and Howard E. Shapiro.
Eleanor M. Fox filed a brief for the Association of the Bar of the City of New York as amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed by James D. Fellers and H. Blair White for the American Bar Assn.; by Richard C. McFarlain for the National Organization of Bar Counsel; by Leroy Jeffers for the State Bar of Texas; by Warren H. Resh for the State Bar of Wisconsin; by E. Robert Wallach and Walter J. Robinson for the Bar Association of San Francisco; and by Owen Roll and Peter M. Sfikas for the American Dental Assn.
Mr. Chief Justice Burger
delivered the opinion of. the Court.
We granted certiorari to decide whether a minimum-fee schedule for lawyers published by the Fairfax County Bar Association and enforced by the Virginia State Bar violates § 1 of the Sherman Act, 26 Stat. 209, as amended, 15 U. S. C. § 1. The Court of Appeals held that, although the fee schedule and enforcement mechanism substantially restrained competition among lawyers, publication of the schedule by the County Bar was outside the scope of the Act because the practice of law is not “trade or commerce,” and enforcement of the schedule by the State Bar was exempt from the Sherman Act as state action as defined in Parker v. Brown, 317 U. S. 341 (1943).
I
In 1971 petitioners, husband and wife, contracted to buy a home in Fairfax County, Va. The financing agency required them to secure title insurance; this required a title examination, and only a member of the Virginia State Bar could legally perform that service. Petitioners therefore contacted a lawyer who quoted them the precise fee suggested in a minimum-fee schedule published by respondent Fairfax County Bar Association; the lawyer told them that it was his policy to keep his charges in line with the minimum-fee schedule which provided for a fee of 1% of the value of the property involved. Petitioners then tried to find a lawyer who would examine the title for less than the fee fixed by the schedule. They sent letters to 36 other Fairfax County lawyers requesting their fees. Nineteen replied, and none indicated that he would charge less than the rate fixed by the schedule; several stated that they knew of no attorney who would do so.
The fee schedule the lawyers referred to is a list of recommended minimum prices for common legal services. Respondent Fairfax County Bar Association published the fee schedule although, as a purely voluntary association of attorneys, the County Bar has no formal power to enforce it. Enforcement has been provided by respondent Virginia State Bar which is the administrative agency through which the Virginia Supreme Court regulates the practice of law in that State; membership in the State Bar is required in order to practice in Virginia. Although the State Bar has never taken formal disciplinary action to compel adherence to any fee schedule, it has published reports condoning fee schedules, and has issued two ethical opinions indicating that fee schedules cannot be ignored. The most recent opinion states that “evidence that an attorney habitually charges less than the suggested minimum fee schedule adopted by his local bar Association, raises a presumption that such lawyer is guilty of misconduct.
Because petitioners could not find a lawyer willing to charge a fee lower than the schedule dictated, they had their title examined by the lawyer they had first contacted. They then brought this class action against the State Bar and the County Bar alleging that the operation of the minimum-fee schedule, as applied to fees for legal services relating to residential real estate transactions, constitutes price fixing in violation of § 1 of the Sherman Act. Petitioners sought both injunctive relief and damages.
After a trial solely on the issue of liability the District Court held that the minimum-fee schedule violated the Sherman Act. 355 F. Supp. 491 (ED Va. 1973). The court viewed the fee-schedule system as a significant reason for petitioners’ failure to obtain legal services for less than the minimum fee,, and it rejected the County Bar’s contention that as a “learned profession” the practice of law is exempt from the Sherman Act.
Both respondents argued that their actions were also exempt from the Sherman Act as state action. Parker v. Brown, supra. The District Court agreed that the Virginia State Bar was exempt under that doctrine because it is an administrative agency of the Virginia Supreme Court, and more important, because its “minor role in this matter... derived from the judicial and ‘legislative command of the State and was not intended to operate or become effective without that command.’ ” The County Bar, on the other hand, is a private organization and was under no compulsion to adopt the fee schedule recommended by the State Bar. Since the County Bar chose its own course of conduct the District Court held that the antitrust laws “remain in full force and effect as to it.” The court enjoined the fee schedule, 15 TJ. S. C. i 26, and set the case down for trial to ascertain damages. 15 U. S. C. § 15.
The Court of Appeals reversed as to liability. 497 F. 2d 1 (CA4 1974). Despite its conclusion that it “is abundantly clear from the record before us that the fee schedule and the enforcement mechanism supporting it act as a substantial restraint upon competition among attorneys practicing in Fairfax County,” id., at 13, the Court of Appeals held the State Bar immune under Parker v. Brown, supra, and held the County Bar immune because the practice of law is not “trade or commerce” under the Sherman Act. There has long been judicial recognition of a limited exclusion of “learned professions” from the scope of the antitrust laws, the court said; that exclusion is based upon the special form of regulation imposed upon the professions by the States, and the incompatibility of certain competitive practices with such professional regulation. It concluded that the promulgation of a minimum-fee schedule is one of “those matters with respect to which an accord must be reached between the necessities of professional regulation and the dictates of the antitrust laws.” The accord reached by that court was to hold the practice of law exempt from the antitrust laws.
Alternatively, the Court of Appeals held that respondents’ activities did not have sufficient effect on interstate commerce to support Sherman Act jurisdiction. Petitioners had argued that the fee schedule restrained the business of financing and insuring home mortgages by inflating a component part of the total cost of housing, but the court concluded that a title examination is generally a local service, and even where it is part of a transaction which crosses state lines its effect on commerce is only “incidental,” and does not justify federal regulation.
We granted certiorari, 419 U. S. 963 (1974), and are thus confronted for the first time with the question of whether the Sherman Act applies to services performed by attorneys in examining titles in connection with financing the purchase of real estate.
II
Our inquiry can be divided into four steps: did respondents engage in price fixing? If so, are their activities in interstate commerce or do they affect interstate commerce? If so, are the activities exempt from the Sherman Act because they involve a “learned profession?” If not, are the activities “state action” within the meaning of Parker v. Brown, 317 U. S. 341 (1943), and therefore exempt from the Sherman Act?
A
The County Bar argues that because the fee schedule is merely advisory, the schedule and its enforcement mechanism do not constitute price fixing. Its purpose, the argument continues, is only to provide legitimate information to aid member lawyers in complying with Virginia professional regulations. Moreover, the County Bar contends that in practice the schedule has not had the effect of producing fixed fees. The facts found by the trier belie these contentions, and nothing in the record suggests these findings lack support.
A purely advisory fee schedule issued to provide guidelines, or an exchange of price information without a showing of an actual restraint on trade, would present us with a different question, e. g., American Column Co. v. United States, 257 U. S. 377 (1921); Maple Flooring Assn. v. United States, 268 U. S. 563, 580 (1925). But see United States v. National Assn. of Real Estate Boards, 339 U. S. 485, 488-489, 495 (1950). The record here, however, reveals a situation quite different from what would occur under a purely advisory fee schedule. Here a fixed, rigid price floor arose from respondents’ activities: every lawyer who responded to petitioners’ inquiries adhered to the fee schedule, and no lawyer asked for additional information in order to set an individualized fee. The price information disseminated did not concern past standards, cf. Cement Mfrs. Protective Assn. v. United States, 268 U. S. 588 (1925), but rather minimum fees to be. charged in future transactions, and those minimum rates were increased over time. The fee schedule was enforced through the prospect of professional discipline from the State Bar, and the desire of attorneys to comply with announced professional norms, see generally American Column Co., supra, at 411; the motivation to conform was reinforced by the assurance that other lawyers would not compete by underbidding. This is not merely a case of an agreement that may be inferred from an exchange of price information, United States v. Container Corp., 393 U. S. 333, 337 (1969), for here a naked agreement was clearly shown, and the effect on prices is plain. Id., at 339 (Fortas, J., concurring).
Moreover, in terms of restraining competition and harming consumers, like petitioners the price-fixing activities found here are unusually damaging. A title examination is indispensable in the process of financing a real estate purchase, and since only an attorney licensed to practice in Virginia may legally examine a title, see n. 1, supra, consumers could not turn to alternative sources for the necessary service. All attorneys, of course, were practicing under the constraint of the fee schedule. See generally United States v. Container Corp., supra, at 337. The County Bar makes much of the fact that it is a voluntary organization; however, the ethical opinions issued by the State Bar provide that any lawyer, whether or not a member of his county bar association, may be disciplined for “habitually charging] less than the suggested minimum fee schedule adopted by his local bar Association... See supra, at 777-778, and n. 4. These factors coalesced to create a pricing system that consumers could not realistically escape. On this record respondents’ activities constitute a classic illustration of price fixing.
B
The County Bar argues, as the Court of Appeals held, that any effect on interstate commerce caused by the fee schedule’s restraint on legal services was incidental and remote. In its view the legal services, which are performed wholly intrastate, are essentially local in náture and therefore a restraint with respect to them can never substantially affect interstate commerce. Further, the County Bar maintains, there was no showing here that the fee schedule and its enforcement mechanism increased fees, and that even if they did there was no showing that such an increase deterred any prospective homeowner from buying in Fairfax County.
These arguments misconceive the nature of the transactions at issue and the place legal services play in those transactions. As the District Court found, “a significant portion of funds furnished for the purchasing of homes in Fairfax County comes from without the State of Virginia,” and “significant amounts of loans on Fairfax County real estate are guaranteed by the United States Veterans Administration and Department of Housing and Urban Development, both headquartered in the District of Columbia.” Thus in this class action the transactions which create the need for the particular legal services in question frequently are interstate transactions. The necessary connection between the interstate transactions and the restraint of trade provided by the minimum-fee schedule is present because, in a practical sense, title examinations are necessary in real estate transactions to assure a lien on a valid title of the borrower. In financing realty purchases lenders require, “as a condition of making the loan, that the title to the property involved be examined... Thus a title examination is an integral part of an interstate transaction and this Court has long held that
“there is an obvious distinction to be drawn between a course of conduct wholly within a state and conduct which is an inseparable element of a larger program dependent for its success upon activity which affects commerce between the states.” United States v. Frankfort Distilleries, 324 U. S. 293, 297 (1945).
See United States v. Yellow Cab Co., 332 U. S. 218, 228-229 (1947).
Given the substantial volume of commerce involved, and the inseparability of this particular legal service from the interstate aspects of real estate transactions, we conclude that interstate commerce has been sufficiently affected. See Montague & Co. v. Lowry, 193 U. S. 38, 45-46 (1904); United States v. Women’s Sportswear Assn., 336 U. S. 460, 464-465 (1949).
The fact that there was no showing that home buyers were discouraged by the challenged activities does not mean that interstate commerce was not affected. Otherwise, the magnitude of the effect would control, and our cases have shown that, once an effect is shown, no specific magnitude need be proved. E. g., United States v. McKesson & Robbins, Inc., 351 U. S. 305, 310 (1956). Nor was it necessary for petitioners to prove that the fee schedule raised fees. Petitioners clearly proved that the fee schedule fixed fees and thus “deprive [d] purchasers or consumers of the advantages which they derive from free competition.” Apex Hosiery Co. v. Leader, 310 U. S. 469, 501 (1940). See United States v. Socony-Vacuum Oil Co., 310 U. S. 150 (1940).
Where, as a matter of law or practical necessity, legal services are an integral part of an interstate transaction, a restraint on those services may substantially affect commerce for Sherman Act purposes. Of course, there may be legal services that involve interstate commerce in other fashions, just as there may be legal services that have no nexus with interstate commerce and thus are beyond the reach of the Sherman Act.
C
The County Bar argues that Congress never intended to include the learned professions within the terms “trade or commerce” in § 1 of the Sherman Act, and therefore the sale of professional services is exempt from the Act. No explicit exemption or legislative.history is provided to support this contention; rather, the existence of state regulation seems to be its primary basis. Also, the County Bar maintains that competition is inconsistent with the practice of a profession because enhancing profit is not the goal of professional activities; the goal is to provide services necessary to the community. That, indeed, is the classic basis traditionally advanced to distinguish professions from trades, businesses, and other occupations, but it loses some of its force when used to support the fee control activities involved here.
In arguing that learned professions are not “trade or commerce” the County Bar seeks a total exclusion from antitrust regulation. Whether state regulation is active or dormant, real or theoretical, lawyers would be able to adopt anticompetitive practices with impunity. We cannot find support for the proposition that Congress intended any such sweeping exclusion. The nature of an occupation, standing alone, does not provide sanctuary from the Sherman Act, Associated Press v. United States, 326 U. S. 1, 7 (1945), nor is the public-service aspect of professional practice controlling in determining whether § 1 includes professions. United States v. National Assn, of Real Estate Boards, 339 U. S., at 489. Congress intended to strike as broadly as it could in § 1 of the Sherman Act, and to read into it so wide an exemption as that urged on us would be at odds with that purpose.
The language of § 1 of the Sherman Act, of course, contains no exception. “Language more comprehensive is difficult to conceive.” United States v. South-Eastern Underwriters Assn., 322 U. S. 533, 553 (1944). And our cases have repeatedly established that there is a heavy presumption against implicit exemptions, United States v. Philadelphia National Bank, 374 U. S. 321, 350-351 (1963); California v. FPC, 369 U. S. 482, 485 (1962). Indeed, our cases have specifically included the sale of services within § 1. E. g., American Medical Assn. v. United States, 317 U. S. 519 (1943); Radovich v. National Football League, 352 U. S. 445 (1957). Whatever else it may be, the examination of a land title is a service; the exchange of such a service for money is “commerce” in the most common usage of that word. It is no disparagement of the practice of law as a profession to acknowledge that it has this business aspect, and § 1 of the Sherman Act
“[o]n its face... shows a carefully studied attempt to bring within the Act every person engaged in business whose activities might restrain or monopolize commercial intercourse among the states.” United States v. South-Eastern Underwriters Assn., supra, at 553.
In the modern world it cannot be denied that the activities of lawyers play an important part in commercial intercourse, and that anticompetitive activities by lawyers may exert a restraint on commerce.
D
In Parker v. Brown, 317 U. S. 341 (1943), the Court held that an anticompetitive marketing program which “derived its authority and its efficacy from the legislative command of the state” was not a violation of the Sherman Act because the Act was intended to regulate private practices and not to prohibit a State from imposing a restraint as an act of government. Id., at 350-352; Olsen v. Smith, 195 U. S. 332, 344-345 (1904): Respondent State Bar and respondent County Bar both seek to avail themselves of this so-called state-action exemption.
Through its legislature Virginia has authorized its highest court to regulate the practice of law. That court has adopted ethical codes which deal in part with fees, and far from exercising state power to authorize binding price fixing, explicitly directed lawyers not “to be controlled” by fee schedules. The State Bar, a state agency by law, argues that in issuing fee schedule reports and ethical opinions dealing with fee schedules it was merely implementing the fee provisions of the ethical codes. The County Bar, although it is a voluntary association and not a state agency, claims that the ethical codes and the activities of the State Bar “prompted” it to issue fee schedules and thus its actions, too, are state action for Sherman Act purposes.
The threshold inquiry in determining if an anticompetitive activity is state action of the type the Sherman Act was not meant to proscribe is whether the activity is required by the State acting as sovereign. Parker v. Brown, 317 U. S., at 350-352; Continental Co. v. Union Carbide, 370 U. S. 690, 706-707 (1962). Here we need not inquire further into the state-action question because it cannot fairly be said that the State- of Virginia through its Supreme Court Rules required the anticompetitive activities of either respondent. Respondents have pointed to no Virginia statute requiring their activities; state law simply does not refer to fees, leaving regulation of the profession to the Virginia Supreme Court; although the Supreme Court’s ethical codes mention advisory fee schedules they do not direct either respondent to supply them, or require the type of price floor which arose from respondents’ activities. Although the State Bar apparently has been granted the power to issue ethical opinions, there is no indication in this record that the Virginia Supreme Court approves the opinions. Respondents’ arguments, at most, constitute the contention that their activities complemented the objective of the ethical codes. In our view that is not state action for Sherman Act purposes. It is not enough that, as the County Bar puts it, anticompetitive conduct is “prompted” by state action; rather, anti-competitive activities must be compelled by direction of the State acting as a sovereign.
The fact that the State Bar is a state agency for some limited purposes does not create an antitrust shield that allows it to foster anticompetitive practices for the benefit of its members. Cf. Gibson v. Berryhill, 411 U. S. 564, 578-579 (1973). The State Bar, by providing that deviation from County Bar minimum fees may lead to disciplinary action, has voluntarily joined in what is essentially a private anticompetitive activity, and in that posture cannot claim it is beyond the reach of the Sherman Act. Parker v. Brown, supra, at 351-352. Its activities resulted in a rigid price floor from which petitioners, as consumers, could not escape if they wished to borrow money to buy a home.
Ill
We recognize that the States have a compelling interest in the practice of professions within their boundaries, and that as part of their power to protect the public health, safety, and other valid interests they have broad power to establish standards for licensing practitioners and regulating the practice of professions. We also recognize that in some instances the State may decide that “forms of competition usual in the business world may be demoralizing to the ethical standards of a profession.” United States v. Oregon State Medical Society, 343 U. S. 326, 336 (1952). See also Semler v. Oregon State Board of Dental Examiners, 294 U. S. 608, 611-613 (1935). The interest of the States in regulating lawyers is especially great since lawyers are essential to the primary governmental function of administering justice, and have historically been “officers of the courts.” See Sperry v. Florida ex rel. Florida Bar, 373 U. S. 379, 383 (1963); Cohen v. Hurley, 366 U. S. 117, 123-124 (1961); Law Students Research Council v. Wadmond, 401 U. S. 154, 157 (1971). In holding that certain anticompetitive conduct by lawyers is within the reach of the Sherman Act we intend no diminution of the authority of the State to regulate its professions.
The judgment of the Court of Appeals is reversed and the case is remanded to that court with orders to remand to the District Court for further proceedings consistent with this opinion.
Reversed and remanded.
Mr. Justice Powell took no part in the consideration or decision of this case.
Unauthorized Practice of Law, Opinion No. 17, Aug. 5, 1942, Virginia State Bar — Opinions 239 (1965).
Virginia Code Ann. § 54-49 (1972) provides:
“The Supreme Court of Appeals may, from time to time, prescribe, adopt, promulgate and amend rules and regulations organizing and governing the association known as the Virginia State Bar, composed of the attorneys at law of this State, to act as an administrative agency of the Court for the purpose of investigating and reporting the violation of such rules and regulations as are adopted by the Court under this article to a court of competent jurisdiction for such proceedings as may be necessary, and requiring all persons practicing law in this State to be members thereof in good standing.”
Ibid.
In 1962 the State Bar published a minimum-fee-schedule report that listed a series of fees and stated that they “represent the considered judgment of the Committee [on Economics of Law Practice] as to [a] fair minimum fee in each instance.” The report stated, however, that the fees were not mandatory, and it recommended only that the State Bar consider adopting such a schedule. Nevertheless, shortly thereafter the County Bar adopted its own minimum-fee schedule that purported to be “a conscientious effort to show lawyers in their true perspective of dignity, training and integrity.” The suggested fees for title examination were virtually identical to those in the State Bar report. In accord with Opinion 98 of the State Bar Committee on Legal Ethics the schedule stated that, although there is an ethical duty to charge a lower fee in a deserving case, if a lawyer
“ ‘purely for his own advancement, intentionally and regularly bills less than the customary charges of the bar for similar services... [in order to] increase his business with resulting personal gain, it becomes a form of solicitation contrary to Canon 27 and also a violation of Canon 7, which forbids the efforts of one lawyer to encroach upon the employment of another.’ ” App. 30.
In 1969 the State Bar published a second fee-schedule report that, as it candidly stated, “reflect[ed] a general scaling up of fees for legal services.” The report again stated that no local bar association was bound by its recommendations; however, respondent County Bar again quickly moved to publish an updated minimum-fee schedule, and generally to raise fees. The new schedule stated that the fees were not mandatory, but tempered that by referring again to Opinion 98. This time the schedule also stated that lawyers should feel free to charge more than the recommended fees; and to avoid condemnation of higher fees charged by some lawyers, it cautioned County Bar members that “to... publicly criticize lawyers who charge more than the suggested fees herein might in itself be evidence of solicitation....”
Virginia State Bar Committee on Legal Ethics, Opinion No. 98, June 1, 1960; Virginia State Bar Committee on Legal Ethics, Opinion No. 170, May 28,1971.
Ibid. The parties stipulated that these opinions are a substantial influencing factor in lawyers’ adherence to the fee schedules. One reason for this may be because the State Bar is required by statute to “investigat [e] and report... the violation of... rules and regulations as are adopted by the [Virginia Supreme Court] to a court of competent jurisdiction for such proceedings as may be necessary....” Va. Code Ann. §54-49 (1972). Therefore any lawyer who contemplated ignoring the fee schedule must have been aware that professional sanctions were possible, and that an enforcement mechanism existed to administer them.
Two additional county bar associations were originally named as defendants but they agreed to a consent judgment under which they were directed to cancel their existing fee schedules, and were enjoined from adopting, publishing, or distributing any future schedules of minimum or suggested fees. Damage claims against these associations were then dismissed with prejudice.
The court was satisfied that interstate commerce was sufficiently affected to sustain jurisdiction under the Sherman Act because a significant portion of the funds and insurance involved in the purchase of homes in Fairfax County comes from outside the State of Virginia. 355 F. Supp 491, 497 (ED Va. 1973).
The Court of Appeals accurately depicted the situation:
“[I]t is clear from the record that ah or nearly all of the [County Bar] members charged fees equal to or exceeding the fees set forth in the schedule for title examinations and other services involving real estate.” 497 F. 2d 1,12 (CA4 1974).
“ ‘A significant reason for the inability of [petitioners] to obtain legal services... for less than the fee set forth in the Minimum Fee Schedule... was the operation of the minimum fee schedule system.’ ” Id., at 4.
“It is abundantly clear from the record before us that the fee schedule and the enforcement mechanism supporting it act as a substantial restraint upon competition among attorneys practicing in Fairfax County.” Id., at 13.
The Court of Appeals did not disturb the District Court’s findings of fact. It simply disagreed on the conclusions of law drawn therefrom.
It is in a practical sense that we must view an effect on interstate commerce, Swift & Co. v. United States, 196 U. S. 376, 398 (1905); Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U. S. 219, 233 (1948).
355 F. Supp., at 494.
The County Bar relies on United States v. Yellow Cab Co., 332 U. S. 218 (1947), to support its argument that the “essentially local” legal services at issue here are beyond the Sherman Act. There we held, inter alia, that intrastate taxi trips that occurred at the start and finish of interstate rail travel were “too unrelated to interstate commerce to constitute a part thereof within the mean-' ing of the Sherman Act.” Id., at 230. The ride to the railway station, we said, “[f]rom the standpoints of time and continuity... may be quite distinct and separate from the interstate journey.” Id., at 232. Here, on the contrary, the legal services are coincidental with interstate real estate transactions in terms of time, and, more important, in terms of continuity they are essential. Indeed, it would be more apt to compare the legal services here with a taxi trip between stations to change trains in the midst of an interstate journey. In Yellow Cab we held that such a trip was a part of the stream of commerce. Id., at 228-229.
355 F. Supp., at 497.
The County Bar cites phrases in several cases that implied the practice of a learned profession is not “trade or commerce” under the antitrust laws. E. g., Federal Club v. National League, 259 U. S. 200, 209 (1922) (“a firm of lawyers sending out a member to argue a case... does not engage in... commerce because the lawyer... goes to another State”); FTC v. Raladam Co., 283 U. S. 643, 653 (1931) (“medical practitioners... follow a profession and not a trade...”); Atlantic Cleaners & Dyers v. United States, 286 U. S. 427, 436 (1932); United States v. National Assn. of Real Estate Boards, 339 U. S. 485, 490 (1950). These citations are to passing references in cases concerned with other issues; and, more important, until the present case it is clear that we have not attempted to decide whether the practice of a learned profession falls within § 1 of the Sherman Act. In National Assn. of Real Estate Boards, we specifically stated that the question was still open, 339 U. S., at 492, as we had done earlier in American Medical Assn. v. United States, 317 U. S. 519, 528 (1943).
The reason for adopting the fee schedule does not appear to have been wholly altruistic. The first sentence in Tospondent State Bar’s 1962 Minimum Fee Schedule Report states:
“ ‘The lawyers have slowly, but surely, been committing economic suicide as a profession.’ ” Virginia State Bar, Minimum Fee Schedule Report 1962, p. 3, App. 20.
The fact that a restraint operates upon a profession as distinguished from a business is, of course, relevant in determining whether that particular restraint violates the Sherman Act. It would be unrealistic to view the practice of professions as interchangeable with other business activities, and automatically to apply to the professions antitrust concepts which originated in other areas. The public service aspect, and other features of the professions, may require that a particular practice, which could properly be viewed as a violation of the Sherman Act in another context, be treated differently. We intimate no view on any other situation than the one with which we are confronted today.
Virginia Code Ann. § 54-48 (1972) provides:
“Rules and regulations defining practice of law and prescribing codes of ethics and disciplinary procedure. — The Supreme Court of Appeals may, from time to time, prescribe, adopt, promulgate and amend rules and regulations:
“(a) Defining the practice of law.
“(b) Prescribing a code of ethics governing the professional conduct of attorneys at law and a code of judicial ethics.
“(c) Prescribing procedure for disciplining, suspending, and disbarring attorneys at law.”
In addition, the Supreme Court of Virginia, has inherent power to regulate the practice of law in that State. Button v. Day, 204 Va. 547, 132 S. E. 2d 292 (1963). See Lathrop v. Donohue, 367 U. S. 820 (1961).
In 1938 the Supreme Court of Virginia adopted Rules for the Integration of the Virginia State Bar, and Rule II, § 12, dealt with the procedure for setting fees. Among six factors that court directed to be considered in setting a fee were “the customary charges of the Bar for similar services.” The court also directed that
"[i]n determining the customary charges of the Bar for similar services, it is proper for a law}-er to consider a schedule of minimum fees adopted by a Bar Association, but no lawyer should permit himself to be controlled thereby or to follow it as his sole guide in determining the amount of his fee.” Rules for Integration of the Virginia State Bar, 171 Va. xvii, xxiii. (Emphasis supplied.)
In 1970 the Virginia Supreme Court amended the 1938 rules in part, and adopted the Code of Professional Responsibility, effective January 1, 1971. 211 Va. 295 (1970). Certain of its provisions also dealt with the fee-setting procedure. In EC 2-18 lawyers were told again that fees vary according to many factors, but that “[s]uggested fee schedules and economic reports of state and local bar associations provide some guidance on the subject of reasonable fees.” 211 Va., at 302. In DR 2-106 (B), which detailed eight factors that should be considered in avoiding an excessive fee, one of the factors was “[t]he fee customarily charged in the locality for similar legal services.” DR 2-106 (B)(3). 211 Va., at 313.
See supra, at 776 n. 2.
The District Court stated that the State Bar acted in only a “minor role” as far as the price fixing was concerned, 355 F. Supp., at 496, and one member of the Court of Appeals panel was prepared to exonerate the State Bar because its participation was so minimal as to be insufficient to impose Sherman Act liability. 497 F. 2d, at 21 (Craven, J., concurring and dissenting). Of course, an alleged participant in a restraint of trade may have so insubstantial a connection with the restraint that liability under the Sherman Act would not be found, see United States v. National Assn. of Real Estate Boards, 339 U. S., at
Question: What is the issue of the decision?
01. antitrust (except in the context of mergers and union antitrust)
02. mergers
03. bankruptcy (except in the context of priority of federal fiscal claims)
04. sufficiency of evidence: typically in the context of a jury's determination of compensation for injury or death
05. election of remedies: legal remedies available to injured persons or things
06. liability, governmental: tort or contract actions by or against government or governmental officials other than defense of criminal actions brought under a civil rights action.
07. liability, other than as in sufficiency of evidence, election of remedies, punitive damages
08. liability, punitive damages
09. Employee Retirement Income Security Act (cf. union trust funds)
10. state or local government tax
11. state and territorial land claims
12. state or local government regulation, especially of business (cf. federal pre-emption of state court jurisdiction, federal pre-emption of state legislation or regulation)
13. federal or state regulation of securities
14. natural resources - environmental protection (cf. national supremacy: natural resources, national supremacy: pollution)
15. corruption, governmental or governmental regulation of other than as in campaign spending
16. zoning: constitutionality of such ordinances, or restrictions on owners' or lessors' use of real property
17. arbitration (other than as pertains to labor-management or employer-employee relations (cf. union arbitration)
18. federal or state consumer protection: typically under the Truth in Lending; Food, Drug and Cosmetic; and Consumer Protection Credit Acts
19. patents and copyrights: patent
20. patents and copyrights: copyright
21. patents and copyrights: trademark
22. patents and copyrights: patentability of computer processes
23. federal or state regulation of transportation regulation: railroad
24. federal and some few state regulations of transportation regulation: boat
25. federal and some few state regulation of transportation regulation:truck, or motor carrier
26. federal and some few state regulation of transportation regulation: pipeline (cf. federal public utilities regulation: gas pipeline)
27. federal and some few state regulation of transportation regulation: airline
28. federal and some few state regulation of public utilities regulation: electric power
29. federal and some few state regulation of public utilities regulation: nuclear power
30. federal and some few state regulation of public utilities regulation: oil producer
31. federal and some few state regulation of public utilities regulation: gas producer
32. federal and some few state regulation of public utilities regulation: gas pipeline (cf. federal transportation regulation: pipeline)
33. federal and some few state regulation of public utilities regulation: radio and television (cf. cable television)
34. federal and some few state regulation of public utilities regulation: cable television (cf. radio and television)
35. federal and some few state regulations of public utilities regulation: telephone or telegraph company
36. miscellaneous economic regulation
Answer:
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songer_appel1_3_3
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J
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. 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.
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MILLWRIGHTS & MACHINERY ERECTORS, LOCAL UNION 1510, affiliated with the United Brotherhood of Carpenters & Joiners of America, AFL-CIO, Respondent.
No. 23839.
United States Court of Appeals Fifth Circuit.
June 21, 1967.
Marcel Mallet-Prevost, Asst. Gen. Counsel, George B. Driesen, Atty., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Julius Rosenbaum, Atty., N. L. R. B., Washington, D. C., for petitioner.
Henry L. Jalette, Frank E. Hamilton, Jr., Hardee, Ott & Hamilton, Tampa, Fla., for respondent.
Before GEWIN and AINSWORTH, Circuit Judges, and LYNNE, District Judge.
AINSWORTH, Circuit Judge:
The Board has petitioned us to enforce its order holding that the Union violated Sections 8(b) (1) (A), 29 U.S.C.A. § 158 (b) (1) (A), and 8(b) (2), 29 U.S.C.A. § 158(b) (2), of the National Labor Relations Act by threatening to fine and to deny job referral to one of its members, Lige Lee, if he should file unfair labor practice charges against the Union with the Board, and by the Union causing the Employer (Mulberry Construction & Welding Company) to discriminate against Lee by refusing to hire him. We enforce.
The Union is the exclusive source of the Employer’s millwrights. In the latter part of March 1964, Lee, a Union member in good standing, worked as a foreman of millwrights at the Employer’s Fort Meade, Florida, project. As the project was nearing completion at that time, the Employer’s owner, Norris, and the Employer’s superintendent, Curry, requested Lee’s referral as foreman of millwrights to a new Employer project at Tenoroc Mines, Lakeland, Florida. The request was denied by the business representative of the Union, Turner, who referred another Union member as foreman on April 2, 1964. Four days later Turner referred Lee as a journeyman. Lee declined the referral and unsuccessfully brought charges against Turner for restitution of wages before the Union’s executive board. At this hearing Lee was reminded by the recording secretary of the Union that he possibly could be fined and deprived of work if he complained to the Labor Board of the Union’s actions. Lee, nevertheless, filed a complaint of unfair labor practices against the Union with the Board on April 23, 1964. On the same day the Employer again requested the Union, through Turner, to refer Lee as foreman to replace the employee who was not satisfactorily performing the job. The Union agreed, and on the following morning, Friday, April 24, Lee'was referred to the project and told to report to work on Monday, April 27. On that same Friday, April 24, Turner of the Union called Norris, owner of Employer company, and requested that Lee not be given the job of foreman. It was agreed that Lee would be used as a journeyman millwright. Lee reported for work on Monday but when told that he was to work as a journeyman he declined the offer. Howell, who had been informed that day that he was to assume the job as foreman, unsuccessfully attempted to persuade Lee to accept the job. Several hours later, Lee returned to the jobsite accompanied by an agent from the Board’s Tampa Regional Office, who had advised Lee to accept the job as journeyman. Lee indicated to Superintendent Curry that he was ready to work as a journeyman. Curry, however, referred Lee to Howell for clearance because he (Curry) did not “want to get in bad with the Union.” When Howell learned that the person with Lee was a Board agent and that Lee had filed unfair labor charges, he urged Lee to withdraw the charges. Upon Lee’s refusal to do so, Howell informed Lee, without explanation, that he was unable to employ him.
We agree with the Board that there is substantial evidence that Lee was refused employment as a journeyman millwright because he had invoked the provisions of the Act in filing charges against the Union with the Board. The Trial Examiner was of the opinion that Lee was denied employment on April 27 because he was not qualified to fill the only alleged existing vacancy at the time, that of a welder. The Board did not accept this explanation of the events of April 27, nor do we. When Lee reported for work that morning he had been referred by the Union for the job as journeyman millwright, and was accordingly offered the job, and actually urged to take it by Howell and Curry. The presence of the Labor Board agent, indicating Lee’s intervention with the Board, and the statement by Lee that he had filed charges against the Union, are the only conceivable factors, in the absence of any intervening circumstances — and there were none— that could have motivated Howell to deny Lee the job which was available only a few hours before. The evidence supports the Board’s finding that this action was violative of Section 8(b)(2) and (1) (A) of the Act. See Partin v. National Labor Relations Board, 5 Cir., 1966, 356 F.2d 512; Local No. 320, International Union of Operating Engineers, AFL-CIO v. National Labor Relations Board, 5 Cir., 1966, 357 F.2d 340.
We further agree with the Board that the remarks of the recording secretary of the Union to Lee relative to a possible fine and loss of work if Lee should complain to the Board were clearly threatening and coercive. As such they were vio-lative of Section 8(b) (1) (A) of the Act which makes it an unfair labor practice for a union to restrain or coerce employees in the exercise of their Section 7 rights, 29 U.S.C.A. § 157; N. L. R. B. v. Local Union No. 450, etc., 5 Cir., 1960, 281 F.2d 313.
The Board’s order in respect to the Union’s violation of the Act by the threatening and coercive remarks made to Lee and by causing the Employer to refuse to hire him is supported by substantial evidence. Therefore, it must be enforced. See N. L. R. B. v. Brown, 380 U.S. 278, 85 S.Ct. 980, 13 L.Ed.2d 839 (1965); Universal Camera Corp. v. National Labor Rel. Bd., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951).
Two arguments are advanced by the Union on appeal which were not urged during the administrative proceedings. The Union claims (1) that Lee, the charging party, was not a bona fide applicant for employment but rather was engaged in a plan to entrap the Union, and (2) Howell was not an agent of the Union when he prevented Lee from working.
The Entrapment Argument
The Union asserts that Lee was not seriously seeking employment when he returned the second time to the job-site on April 27; that his purpose was to entrap the Union. The Union is precluded by Section 10(e) of the Act, 29 U.S.C.A. § 160(e), from raising this issue on appeal. See N. L. R. B. v. Ochoa Fertilizer Corp., 368 U.S. 318, 82 S.Ct. 344, 7 L.Ed.2d 312 (1961); Marshall Field & Co. v. National Labor Rel. Board, 318 U.S. 253, 63 S.Ct. 585, 87 L.Ed. 744 (1943). This subsection specifically provides in pertinent part that “No objection that has not been urged before the Board, its member, agent, or agency, shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances.” The assertion of entrapment is based only on the Union’s conjecture arising from the presence of the Board agent with Lee. No circumstances have been shown in this ease which would take it out of the ambit of Section 10(e).
The Non-Agent Argument
The Union contends that Howell was not its agent and consequently that the order of the Board should not be enforced.
After the Union’s formal denial of the allegation in the complaint that Howell was its agent, the Union apparently abandoned this defense up until the time of this appeal. Howell testified before the Trial Examiner that he was representing the Union as a steward. The Union offered no rebutting evidence or argument, and the Trial Examiner found Howell to be an agent of the Union within the meaning of the Act. No exceptions were filed by the Union to this finding; nor was the issue raised in the Union’s motion for reconsideration and request for oral argument subsequent to the Board’s reversal of the Trial Examiner’s dismissal of the complaint. Regardless of whether or not the issue is properly before us, we find no merit in it. The evidence clearly shows that Howell was acting as an agent for the Union when he refused to employ Lee.
Accordingly, the Board’s order is enforced.
Question: This question concerns the first listed appellant. 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:
|
songer_majvotes
|
11
|
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.
CENTER FOR AUTO SAFETY, et al., Petitioners, v. Lee M. THOMAS, Administrator, Environmental Protection Agency, et al., Respondents, Automobile Importers of America, Inc., Ford Motor Company, et al., Intervenors.
No. 85-1515.
United States Court of Appeals, District of Columbia Circuit.
Sept. 16, 1988.
Roger J. Marzulla, Asst. Atty. Gen., and Peter R. Steenland, Jr., Anne S. Almy and Michael A. McCord, Attys., U.S. Dept, of Justice, and Lawrence J. Jensen, Acting Gen. Counsel, and Nancy A. Ketcham-Col-will, Atty., U.S. E.P.A., Washington, D.C., were on petition for limited rehearing and suggestion for rehearing en banc for respondents.
Cornish F. Hitchcock, Alan B. Morrison and William B. Schultz, Washington, D.C., were on response of petitioners.
Edward W. Warren, Arthur F. Sampson, III, John G. Mullan, Washington, D.C., and Thomas L. Arnett, Detroit, Mich, (for General Motors Corp.), and Charles H. Lockwood, II, Detroit, Mich, (for Auto. Importers of America, Inc.), were on Intervenors’ petition for limited rehearing with suggestion for rehearing en banc.
Before WALD, Chief Judge, and ROBINSON, MIKVA, EDWARDS, RUTH BADER GINSBURG, STARR, SILBERMAN, BUCKLEY, WILLIAMS, D.H. GINSBURG and SENTELLE, Circuit Judges.
Opinion PER CURIAM.
ON PETITIONS FOR LIMITED REHEARING
PER CURIAM:
The Environmental Protection Agency (the “Agency”), respondent in the original proceeding, and representatives of the automotive industry intervening on behalf of the Agency have petitioned for a limited rehearing of the judgment of the en banc court set out at 847 F.2d 843 (D.C.Cir.1988). In the per curiam opinion accompanying that judgment, the court stated that although its members were evenly divided as to the existence of Article III standing on the original petitioners’ part, we would reinstate the panel decision in which standing had been found and a disposition made on the merits. This action was taken in light of the fact that there was no district court opinion and the agency itself had no cause to pass on the Article III standing issue. We ruled, however, that the reinstatement of the panel opinion was to have no prece-dential effect in future cases as to standing.
After consideration of the arguments set forth in the petitions for rehearing submitted by the Agency and intervenors and in original petitioners’ reply thereto, we have decided that our original disposition was not an appropriate one. We now hold that as a majority of the en banc court was unable to satisfy itself that the court had jurisdiction, the court should not have taken any affirmative action on the merits, including reinstatement of the panel opinion. Accordingly, we now vacate the opinion and judgment of May 17, 1988, and deny the original petition for review, leaving the Agency decision in effect.
Question: What is the number of judges who voted in favor of the disposition favored by the majority?
Answer:
|
songer_applfrom
|
J
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
NATIONAL LABOR RELATIONS BOARD v. PRETTYMAN et al.
No. 8547.
Circuit Court of Appeals, Sixth Circuit.
Feb. 13, 1941.
Richard C. Barrett, of Washington, D. C. (Charles Fahy, Robert B. Watts, Laurence A. Knapp, and Robert Kramer, all of Washington, D. C., on the brief), for petitioner.
Arthur J. Wiltse, of Ann Arbor, Mich., for respondents.
Before HICKS, SIMONS and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge.
This is a proceeding by the National Labor Relations Board to enforce its order issued pursuant to Section 10(c) of the National Labor Relations Act, 49 Stat. 449, 29 U.S.C.A. § 151 et seq., against respondents, Plorace G. Prettyman and Arthur J. Wiltse, co-partners, doing business as the Ann Arbor Press.
After charges were filed against respondents by the International Typographical Union, a labor organization, the petitioner issued a complaint against respondents on April 23, 1938, alleging, in addition to jurisdictional matters, that since September 1, 1937, they had engaged in unfair labor practices within the meaning of Section 8(1) (2) (3) and (5) of the Act.
Respondents answered and denied the jurisdiction of the Board and all allegations of the complaint. An examiner was designated and a hearing was had in which respondents participated and at which proof was heard. The Trial Examiner filed his intermediate report containing findings of fact and conclusions of law supporting the allegations of the complaint. Respondents filed exceptions which, after hearing, were overruled by the Board and a finding made that respondents had violated Section 8(1) (2) (3) (5) and Section 2(6) (7) of the Act. The Board issued a cease and desist order requiring the respondents (a) to withdraw all recognition from and completely disestablish an Association of its employees, (b) to bargain collectively with the International Typographical Union as a representative of its employees, (c) upon application, to reinstate their employees who went on strike and those who had been discriminatorily discharged for union activities,' placing those for whom employment was not immediately available upon a preferential list, (d) to make whole the employees discriminated against for union activity for any loss of pay they may have suffered by reason of such discrimination and to make whole for loss of pay any strikers who, five days after application, were not reinstated or placed upon a preferential list, and (e) to post appropriate notices.
Petitioner seeks to have the cease and desist order enforced.
Respondents resist enforcement on the following grounds: (1) That their busi-' ness was intrastate and did not directly affect commerce among the states; (2) That the Board’s hearings were arbitrary and they were denied due process of law; (3) That the Board based its order in part on incompetent evidence and that its order is not supported by substantial evidence; (4) The Board erroneously denied the complainant’s motion to dismiss the proceeding; (5) That they had settled their controversy with the complainants before the Board entered its order.
Respondents are co-partners, operating a commercial printing establishment with their only plant and offices at Ann Arbor, Michigan. They annually purchase about $5,000 worth of repair parts for their plant, approximately 66/z percent or $3,333 worth of which are purchased outside Michigan. During 1937, respondents acquired $163,813.47 worth of raw materials, $26,487.52 or 16 percent of which were imported from points outside Michigan. During 1937, respondents produced $400,631.90 worth of printed material, of which amount, four percent, or $17,945.97, was sent to customers outside of the state. About $150,000 of the total $400,000 production consisted of various periodicals, most of which were addressed by respondents and delivered by them to the Ann Arbor post office, the postage being paid by customers of respondents. In most cases the periodicals were mailed out of the state. Respondents also print matter for national manufacturers and dealers such as General Motors Corporation and Nash Kelvinator Corporation. Some of these materials are mailed by respondents to points outside Michigan at the direction of their customers, and some delivered to the customers in the state and by them distributed throughout the country.
Under the Supreme Court’s latest pronouncement of constitutional power, the right of Congress to regulate interstate commerce is plenary and extends to all such commerce whether great or small. The amount thereof is of special significance only to the extent that Congress may be taken to have excluded commerce of small volume from its regulatory measure by express provision or fair implication. National Labor Board v. Fainblatt, 306 U.S. 601, 606, 59 S.Ct. 668, 83 L.Ed. 1014; National Labor Board v. Bradford Dyeing Association, 310 U.S. 318, 326, 60 S.Ct. 918, S4 L.Ed. 1226.
Under these cases the respondents’ business sufficiently affected interstate commerce to bring it within the National Labor Relations Act. The Board had jurisdiction.
Frank H. Bowen, Regional Director of the National Labor Relations Board for the Seventh Region, which includes the State of Michigan, pursuant to charges filed by the International Typographical Union issued a complaint March 18, 1938, against respondent and issued notice of a hearing at Ann Arbor, Michigan, on March 31, 1938. On March 30, 1938, respondents instituted an action in chancery in the Circuit Court for the County of Washtenaw against Frank H. Bowen, Regional Direc-. tor for the Seventh Region of the National Labor Relations Board, Harold A. Crane-field, Regional Attorney for the Board, John Doe, Trial Examiner for the Board, Harry H. Reifin and Louis Falstreaux, officers of the International Typographical Union, Local No. 154, and Independent Association of Ann Arbor Press Employees, Inc., seeking to enjoin the defendants officers of the National Labor Relations Board, from holding a hearing on March 31, 1938, or at any other time on the complaint issued against them by the National Labor Relations Board and enjoining defendants Reifin and Falstreaux from interfering with respondents’ business by intimidating and coercing employees and former employees into joining International Typographical Union 154, and by making false statements to customers of respondents and false statements of their relations with their employees. They prayed for other relief not material here.
Without notice or hearing on March 30, 1938, the Michigan Court issued an injunction conformable to the prayer of respondents’ petition. On April 18, 1938, the National Labor Relations Board by its attorney, Harold A. Cranefield, filed a motion in the State action for the dissolution of the injunction and that the bill of complaint be dismissed., The court requested briefs and took the motions under advisement and on November 22, 1938, entered a decree dissolving the injunction and dismissing the bill of complaint.
The National Labor Relations Board abandoned the proceedings against complainant commenced March 18, 1938, and instituted the present proceedings. The unfair labor practices on which the present complaint is based, were identical with the ones on which the hearing was enjoined by the Michigan Court.
The charges on which petitioner issued its complaint were filed with the Board in Washington, D. C., and notice of a hearing there was mailed to respondents April 25, 1938, and a hearing had from May 2 through May 12, 1938, before a Trial Examiner duly designated by the Board. Petitioner admits that the hearing was had in Washington solely to avoid interference by the State Courts of Michigan.
On April 30, 1938, respondents moved the Board to abandon the hearing in Washington on the ground that their residences and place of business and where the controversy arose with their employees was in the city of Ann Arbor, approximately 700' miles from Washington and that the trial' in Washington would place an unreasonable burden on them in bringing witnesses ,'o the hearing and that such a proceeding was unreasonable and arbitrary and denial of due process. They further claimed they were financially unable to make a proper defense to the matters set forth in the complaint at such a great distance from their residences and place of business. They further stated they were compelled to answer the complaint within five days and be prepared to go into a trial of the issues within nine days. Their motion was supported by the affidavit of the respondent, Arthur J. Wiltse. The motion was denied.
Respondents insist that the present hearing did not comport with the standards of fairness inherent in procedural due process for the reason that their place of business, all of their records and employees and all of their witnesses lived six hundred and fifty miles from Washington and that all of their employees who had any knowledge of the matters inquired about were their executives and to have transported them to Washington would have required the closing of their plant for ten days and imposed on them a heavy financial burden.
No particular form of procedure is required to constitute due process in administrative hearings. Its requirement must be measured in the light and purpose of such hearings. • Under the National Labor Relations Act, hearings are not of an executive character purely, but require the taking and weighing- of evidence, determination of facts based upon consideration of evidence and the making of an order supported by such findings. Proceedings under the Act in their essential aspects resemble judicial hearings, and may be characterized as quasi judicial. Morgan v. United States, 298 U.S. 468, 481, 56 S.Ct. 906, 80 L.Ed. 1288.
An employer is entitled to a hearing of and decision on the charges against him according to the fundamental principles that inhere in due process of law, and indispensable requisites of such hearings are that the course of proceedings shall be appropriate to the case and just to the employer; that he shall be notified of the charges against him in time to meet them and shall have an opportunity to be heard and cross-examine the witnesses against him and shall have time and opportunity at a convenient place, after the evidence against him is produced and known to him, to produce evidence and witnesses to refute the charges, and that the decision of the Board shall be governed by and based upon the .evidence produced at the hearing.
Under the provisions of the Act, ch. 372, Section 5, 49 Stat. 452, 29 U.S.C.A. § 155, the principal office of the Board is in the District of Columbia, but it may meet and exercise any or all of its powers in any place in the United States and it may delegate its power to hear complaints to any of its agents who may prosecute the inquiry in any part of the United States.
The petitioner urges on us that under the above provisions of the Act, it has the uncontrolled discretion to hold hearings at whatever point it deems proper within the United States and its territories. To this we cannot agree. In the Act, the Congress manifests an intention to create a system for the prevention of controversies between employers and employees and it is the duty of the court to effectuate that purpose by such construction as will make the system consistent in all of its parts and uniform in all of its operations. To this end, the procedure must harmonize with the characteristics of our system of government that the law is supreme, which means, in the first place, the absolute supremacy or preponderance of regular law as opposed to the influence of arbitrary power. It excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of the government. Where great inconvenience will result to persons affected by a statute from a particular construction, that construction should be avoided unless the meaning of the legislature is so plain no other is possible. Knowlton v. Moore, 178 U.S. 41, 77, 20 S.Ct. 747, 44 L.Ed. 969.
The power conferred on the Board by the Act to hold hearings anywhere within the territorial limits of the United States, was not conferred for its sole benefit, but for the benefit also of those subject to the provisions of the Act. It was not intended that those affected by the Act should be penalized by being required to travel and transport witnesses unreasonable distances to attend hearings pursuant to complaint, nor was it intended that the Act should be used as an instrument of intimidation or oppression on those affected by it. One of the purposes to be accomplished in the administration of every law is the maintenance of public confidence in the value of the measure. This idea was clearly expressed in Morgan v. United States, 304 U.S. 1, 14, 58 S.Ct. 773, 775, 999, 82 L.Ed. 1129, in which it was said:
“The first question goes to the very foundation of the action of administrative agencies intrusted by the Congress with broad control over activities which in their detail cannot be dealt with directly by the Legislature. The vast expansion of this field of administrative regulation in response to the pressure of social needs is made possible under our system by adherence to the basic principles that the •Legislature shall appropriately determine the standards of administrative action and that in administrative proceedings of a quasi judicial character the liberty and property of the citizen shall be protected by the rudimentary requirements of fair play. These demand ‘a fair and open hearing,’— essential alike to the legal validity of the administrative regulation and to the maintenance of public confidence in the value and soundness of this important governmental process. Such a hearing has been described as an ‘inexorable safeguard.’ ”
It is the practice of the Board to hold hearings at places convenient to the parties and petitioner assigns as its reason for departing from this practice that the respondents obtained from the Circuit Court of Washtenaw County an injunction prohibiting the hearing at Ann Arbor. The action of the respondents in the State Court was in good faith. They there contended they were engaged exclusively in intrastate commerce, for which reason the Board lacked jurisdiction, and the Court sustained them. The Board was not compelled to litigate its jurisdiction in the State Court of Michigan, but its representative voluntarily participated in that hearing. After a"n unfavorable decision, the Board sought to avoid jurisdiction of the State Court, by resorting to its alleged powers under the statute to institute a new proceeding beyond the reach of the Michigan courts and at a place remote from all the necessary witnesses. If the Board had authority to thus proceed, it could have issued its citation to respondents to appear in St. Andrews, Maine, or Fort Dick, California. No sensible rule of statutory construction would support such an interpretation of the statute and such a course of conduct would shortly bring a beneficent statute into disrepute. Fair play, under the statute, required the Board to hold a hearing at a place convenient to each of the parties.
Section 10(e) of the Act, 29 U.S. C.A. § 160(e) authorizes this court, when a petition for enforcement of the Board’s order is brought before it, to consider any objection made before the Board or one of its agents, or to pass upon objections not so raised, if the circumstances are such as to justify it.
Congress has given the Board the authority to administer the National Labor Relations Act, subject to the supervisory power of the Court of Appeals and the court must act within the bounds of the statute, without intruding upon the administrative province, but it may adjust its relief to the exigencies of the case in accordance with the equitable principles governing judicial action. Ford Motor Company v. National Labor Relations Board, 305 U.S. 364, 373, 59 S.Ct. 301, 83 L.Ed. 221. The court is not compelled to enforce an order of the Board which is impregnated with a hearing not comporting with the standards of fairness inherent in procedural due process. So scrupulous are our courts to maintain the supremacy of the ordinary law in cases where officers of the Government itself are concerned, they will not permit the Government to profit in any way by wrongs which its officers have committed. Silverthorn Lumber Company v. United States, 251 U.S. 385, 391, 40 S.Ct. 182, 64 L.Ed. 319, 24 A.L.R. 1426.
“The maintenance of proper standards on the part of administrative agencies in the performance of their quasi judicial functions is of the highest importance and in no way cripples or embarrasses the exercise of their appropriate authority. On the contrary, it is in their manifest interest. For, as we said at the outset, if these multiplying agencies deemed' to be necessary in our complex society are to serve the purposes for which they are created and endowed with vast powers, they must accredit themselves by acting in accordance with the cherished judicial tradition embodying the basic concepts of fair play.” Morgan v. United States, supra.
Even if the order of the Board were justified by the facts, which we are not here deciding, the necessity of according due process of law to the respondents is not obviated. No order is just if obtained without due process of law; otherwise, the Board could enter orders without a hearing. Ohio Bell Telephone Company v. Public Utilities Commission, 301 U.S. 292, 304, 57 S.Ct. 724, 81 L.Ed. 1093.
On November 23, 1938, the International Typographical Union, which had filed the charges that resulted in the complaint against respondents, petitioned the Board to dismiss the charges, because an amicable settlement of the differences had been made. The Board denied the motion. Respondents insist that as the controversy between them and their employees had been settled, the Board, in the exercise of a reasonable discretion, should have ended'the hearing and for this alleged abuse they urge on us to remand the cause with directions to dismiss. This we cannot do under the Act, as it does not provide individuals with administrative remedy for private wrongs. An employee or an association of such persons, if deeming themselves aggrieved, because of unfair labor practices on the part of an employer, may make complaint to the Board against the alleged wrongdoer, but under the statute the formal complaint must be brought in the Board’s name and prosecuted wholly by it at Government expense. The power to prevent unfair labor practices is vested by Congress in the Board alone and by the plain language of the Act, Section 10(a), the power in the Board “shall be exclusive, and shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, code, law, or otherwise.” Federal Trade Commission v. Klesner, 280 U.S. 19, 26, 50 S.Ct. 1, 74 L.Ed. 138, 68 A.L.R. 838; National Labor Board v. Greyhound Lines, 303 U.S. 261, 271, 58 S.Ct. 571, 82 L.Ed. 831, 115 A.L.R. 307; National Labor Relations Board v. Colten, 6 Cir., 105 F.2d 179; National Labor Relations Board v. Louisville Refining Company, 6 Cir., 102 F.2d 678.
The purpose of the National Labor Relations Act is to promote peaceful settlement of disputes between employers and employees by providing legal remedies for the invasion of employees’ rights of self organization and collective bargaining, and at any stage of the proceedings, after complaint has been filed, when the object of the complaint has been accomplished, the proceedings should be brought to an end, but the Board itself representing the United States is a party in interest relating to unfair labor practices under the Act and any agreement between the parties settling their differences must have the approval of the Board. No evidence appears as to the terms of the settlement. Under the facts here, there is no abuse of the Board’s discretion.
Since the Board is not empowered to initiate proceedings on its own motion but must await the filing of charges by employees before issuing a complaint, and since there has been, as indicated, an amicable settlement of the differences between the respondents and the representatives of their employees in a collective bargaining agreement, and the right of the Board to proceed, notwithstanding the request of the complaining employees that their charges be withdrawn, has now been vindicated, it may appear to the satisfaction of the Board that the public interest no longer requires the renewal of proceedings in a situation where specific grievance has already been compromised.
An order will be entered denying the petitioner’s petition in its entirety but without prejudice to the right of the Board to conduct a new hearing at Ann Arbor, Michigan.
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
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songer_r_state
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Daniel ANDERSEN, Petitioner-Appellant, v. James THIERET, Warden, Respondent-Appellee.
No. 89-1574.
United States Court of Appeals, Seventh Circuit.
Argued April 3, 1990.
Decided June 5, 1990.
As Amended June 11, 1990.
Frank C. Lipuma, Mayer, Brown & Platt, Chicago, Ill., for petitioner-appellant.
Nathan P. Maddox, Asst. Atty. Gen., Office of the Atty. Gen., Criminal Appeals Div., Springfield, Ill., for respondent-appel-lee.
Before WOOD, Jr., EASTERBROOK and MANION, Circuit Judges.
HARLINGTON WOOD, Jr., Circuit Judge.
Daniel Andersen brings this habeas petition to challenge his incarceration at the Menard Correctional Center in Menard, Illinois. Andersen alleges that his confession to these crimes was not voluntary and that the state trial court violated his Miranda rights by admitting into evidence certain statements he made shortly after his arrest. The district court denied Andersen’s petition and we affirm.
I. Factual Background
On the night of January 19, 1980, Cathy Trunko was stabbed in the chest three times near her home in Chicago, Illinois. Only her assailant witnessed the attack. A passerby found Cathy lying on the sidewalk, covered with blood. By the time she was found, medical assistance was no help, and Cathy eventually succumbed to her wounds. An Illinois state trial court convicted petitioner Andersen of attempted rape and murder in connection with this attack and sentenced him to concurrent thirty and fifty-five year sentences. On direct appeal, the Illinois Appellate Court affirmed Andersen’s conviction, and that court’s decision contains a full narrative of the crime and Andersen’s arrest. See People v. Andersen, 134 Ill.App.3d 80, 82-94, 479 N.E.2d 1164, 1166-74, 89 Ill.Dec. 158, 160-68 (1985). A less-detailed version of the facts is necessary to an understanding of this case.
The voluntariness of the petitioner’s confession predominates the issues in this appeal. After his arrest, Andersen told the following story to the police. At about 10:00 P.M. on January 19, 1980, he had been drinking and felt a need for sex. Andersen obtained a knife from a toolbox in the attic of his home, placed it in his boot, and walked outside. He saw Cathy Trun-ko, a woman he had known for twelve years. Not wishing to be caught for the crime he was contemplating, Andersen went to his car and got a pair of gloves.
Next, Andersen came alongside Cathy and struck up a conversation. When they passed her home, Cathy informed Andersen that she had to go inside for a moment to give her mother some cigarettes. She came back outside, and they resumed their walk. In front of a church, Andersen told Cathy to wait on the front steps while he went around back to urinate. When out of her sight, he took the knife from his boot and placed it on some stairs where he could reach it from the sidewalk. Andersen put on his gloves and returned to Cathy, walking with her toward the stairs.
When they got close enough to the stairs, Andersen bent down and picked up the knife. He put his arm around Cathy, kissed her, and said he wanted to make love. She refused. He forced her to the ground and fondled her. Cathy spit in his face. She tried to escape and started to scream. Andersen then thrust the knife into her chest, once in each breast and “once in the middle.” As he fled, Cathy was crawling on the ground. Andersen then discarded his knife and gloves, but the knife was later recovered by the police in an area that Andersen agreed was the place he had thrown it.
This was the story that Andersen related five days later, on January 24, 1980, after his arrest for disorderly conduct. Petitioner’s mother had asked her friend, Officer Riley, to bring the defendant home as he was drunk, had a weapon, and was driving his silver Ford Pinto. Riley passed this information along to another police officer who soon spotted the silver Pinto. This second officer stopped the car, but the defendant was not in it; a friend had agreed to drive it because Andersen was too drunk to drive. The officers and the friend then proceeded to the mother’s house. They saw the defendant walking toward them. The police searched Andersen but found no weapon. One of the officers asked the defendant’s mother if she wanted the defendant left with her or taken to the station. She said the defendant had been causing a disturbance so she signed a disorderly conduct complaint against him.
Nothing in the record suggests that at this point, the police suspected Andersen of the Trunko murder, but he soon provided them with a reason to do so. During the five-minute ride to the police station, there was some conversation about the weapon that the defendant’s mother said he had, but the defendant denied he had one, saying he was just out drinking. After an interval of silence, Andersen then blurted, “I stabbed her”; the arresting officer asked, “Who?”; and Andersen responded, “Cathy.” At the suppression hearing before the state trial court, the arresting officer testified that this exchange occurred before Andersen was read his Miranda rights, but at trial the same officer testified that the statement was made after Miranda warnings. Although the state trial court suppressed any statements made before Miranda warnings, this colloquy was allowed into evidence consistent with the testimony at trial and on the basis that it occurred after Miranda warnings.
After Andersen was read his Miranda warnings, he responded that he knew them and that he wished to waive them. The police then questioned him further about the stabbing, and this is when he gave the disputed confession to the police. What happened at the station house is a matter of conflicting evidence. Andersen contended that he was roughly handled and injured by the police, that he was misled by a “good officer” routine, and that his oral and written confessions were involuntary under all the circumstances. The degree of the petitioner's intoxication was also disputed. Some of the petitioner’s witnesses said that he was drunk, that he had a chronic alcohol problem, and that he had smoked parts of two marijuana cigarettes. Finally, Andersen contended that his confession was merely a script story, concocted by him and the officer who had promised to be his friend.
The state trial court, based upon the credibility of the witnesses and considering the contradictions in the testimony of the defendant’s witnesses, determined that the defendant’s confession was voluntary. In oral findings reproduced as an appendix to this opinion, the trial court rejected Andersen’s contention that intoxication rendered him susceptible to police suggestions that he confess. His speech was found not to be slurred; he walked normally, displayed no lack of coordination, had no hand tremors, no difficulty focusing his attention, and gave coherent answers. When the defendant reviewed a draft of his written confession, he had the presence to change the word “shooting” to “stabbing.” Similarly, the trial court found that no physical coercion had occurred. In sum, the state trial court rejected Andersen’s evidence.
Both parties consented to the entry of a final judgment on the habeas petition by a United States magistrate. Relying on the factual findings of the state trial court, the magistrate did not conduct an evidentiary hearing. The magistrate concluded that Andersen had not shown his confession was involuntary, rejected Andersen’s Miranda claims, and denied the petition. Andersen now appeals that decision pursuant to 28 U.S.C. §§ 636(c)(3), 1291.
II. Discussion
A. Voluntariness of Confession
The threshold issue is the correct standard for reviewing the magistrate’s decision on the voluntariness of Andersen’s confession. As a habeas petitioner, Andersen is entitled to a federal district court’s de novo review of the voluntariness issue under Miller v. Fenton, 474 U.S. 104, 112, 106 S.Ct. 445, 450, 88 L.Ed.2d 405 (1985), and we have interpreted Miller to require de novo appellate review of the district court’s decision on voluntariness, see United States v. Hawkins, 823 F.2d 1020, 1022-23 & n. 1 (7th Cir.1987). This standard of review has recently come under attack, see, e.g., United States v. Rutledge, 900 F.2d 1127, 1128-29 (7th Cir.1990); Weidner v. Thieret, 866 F.2d 958, 961 (7th Cir.1989); Sotelo v. Indiana State Prison, 850 F.2d 1244, 1253-55 (7th Cir.1988) (concurring opinion), and even replaced by an abuse of discretion standard when we exercise discretionary jurisdiction under 28 U.S.C. § 636(c)(5), see Wilson v. O’Leary, 895 F.2d 378, 383 (7th Cir.1990). Nevertheless, because an ultimate resolution is not necessary for our decision, we will follow the example of Sotelo and leave the question for another day. 850 F.2d at 1247 n. 4; see also Rutledge, 900 F.2d at 1129 (declining to decide question where litigants did not challenge the correct standard of review). Therefore, we will review the magistrate’s decision on voluntariness de novo.
Before considering the substance of Andersen’s petition, we must pause because the state trial court’s choice of words complicates our decision. Where the state trial judge orally stated that he believed none of Andersen’s statements “were obtained as a result of” possible police misconduct, he could have been clearer. A rhetorician might quibble with this language; saying that something is not “the result of” a sequence of events is not literally the same as saying the sequence of events did not occur. Cf. Weidner, 866 F.2d at 960, 964 (granting evidentiary hearing to habeas petitioner to clarify state trial court’s findings that no threats or coercion had “induced” the confession). But a state trial court’s findings on voluntariness need not be talismanic, especially where the findings are rendered orally. In this case, the state trial judge carefully surveyed the evidence that had been presented, considered the credibility of the witnesses, and then rendered his findings. The state trial judge’s findings manifest his clear intent to repudiate Andersen’s excuses for his confession. That is enough for us to easily infer the underlying factual findings he must have made. His findings are adequate.
Turning to the merits, we must presume correct subsidiary factual findings of the state courts. 28 U.S.C. § 2254(d). Before this presumption can arise, the state court must have resolved the merits of a factual dispute. Id. § 2254(d)(1). In essence, subsection 2254(d)(1) of the habeas statute merely codifies the self-evident proposition that a state court must have made a finding on a particular factual issue before a federal court can defer to that finding. See Townsend v. Sain, 372 U.S. 293, 313-14, 83 S.Ct. 745, 757-58, 9 L.Ed.2d 770 (1963). A federal court, however, is not limited to express factual findings made by the state court; it must also rely on any resolution of factual disputes that can be fairly inferred from the state court record. See LaVallee v. Delle Rose, 410 U.S. 690, 694-95, 93 S.Ct. 1203, 1205-06, 35 L.Ed.2d 637 (1973); Townsend, 372 U.S. at 314-15, 83 S.Ct. at 757-58. For example, where a habeas petitioner’s story would have led the state trial court to conclude the petitioner’s confession was involuntary, the state court’s finding of voluntariness implies that petitioner’s version of the facts was rejected. See LaVallee, 410 U.S. at 692-93, 93 S.Ct. at 1204-05. (habeas petitioner alleged police brutality and torture).
We think this is a similar ease; the state trial court’s discussion of the evidence and its conclusion that Andersen’s confession was voluntary is fairly interpreted as a rejection of his version of the facts. In the absence of evidence to the contrary, we must assume that the state courts applied the correct constitutional standards to this case. Townsend, 372 U.S. at 314-15, 83 S.Ct. at 757-58. If the state courts had credited his story, these standards would have required them to conclude that Andersen’s confession was involuntary. The physical abuse that Andersen claims occurred would have led to a finding of involuntariness. See, e.g., Stein v. New York, 346 U.S. 156, 182, 73 S.Ct. 1077, 1091, 97 L.Ed. 1522 (1953) (When physical violence is present, “there is no need to weigh or measure its effects on the will of the individual victim.”); Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682 (1936) (confession involuntary where defendant was whipped); see also 1 W. LaFave & J. Israel, Criminal Procedure § 6.2(c) (1984) (collecting cases). Food, sleep, and water deprivation and a mentally coercive interrogation would also have caused the state courts to conclude that Andersen’s confession was involuntary. See, e.g., Brooks v. Florida, 389 U.S. 413, 88 S.Ct. 541, 19 L.Ed.2d 643 (1967) (deprivation of food and water, combined with conditions of confinement, made confession involuntary); see also Colorado v. Connelly, 479 U.S. 157, 163 n. 1, 107 S.Ct. 515, 520 n. 1, 93 L.Ed.2d 473 (1986) (collecting cases); 1 W. LaFave & J. Israel, Criminal Procedure § 6.2(c) (1984) (collecting cases). Because Andersen alleged the police’s use of “third-degree methods” and the state trial court refused to exclude the confession from evidence, we may assume the state court found the “facts against the petitioner, the law being, of course, that third-degree methods necessarily produce a coerced confession.” Townsend, 372 U.S. at 315, 83 S.Ct. at 758.
We need not rely exclusively on our own inferences that may be drawn from the state trial court’s findings. The Illinois Appellate Court rejected Andersen’s plea to find his confession involuntary by saying, “It is evident that the trial court chose to believe [the interrogating officer’s] testimony rather than that of the defendant’s witnesses.” 134 Ill.App.3d at 95, 479 N.E.2d at 1175, 89 Ill.Dec. at 169. Whether a factual finding is made by a state trial or state appellate court is inconsequential; subsection 2254(d) applies a presumption of correctness to both. See Sumner v. Mata, 449 U.S. 539, 547, 101 S.Ct. 764, 769, 66 L.Ed.2d 722 (1981). Because the Illinois Appellate Court’s statement could be read either as an interpretation of the state trial court’s findings or as an independent factual finding that the defendant’s witnesses were not credible, we need not base our holding on it. Nevertheless, to the extent this statement can be interpreted as a finding of fact, it provides another reason for our decision.
Andersen also urges that the record as a whole does not support the state trial court’s findings. See 28 U.S.C. § 2254(d)(8). While it is true that the state trial judge never made a finding as to Andersen’s specific blood alcohol level at different times, this was hardly necessary. The state trial court’s finding necessarily rejected Andersen’s claim that he was overborne by a combination of intoxication and coercive police tactics. This finding is hardly illogical given that at least nineteen hours elapsed between Andersen’s last drink and his confession. As to Andersen’s allegations that he was physically abused and mentally coerced, he admits that he is the only witness. We agree with the Illinois Appellate Court’s observation: the state trial court obviously chose to credit the testimony of Andersen’s custodians rather than his own. The testimony of these witnesses provides ample support for the state trial court’s findings.
Andersen has not shown that any of the exceptions in 28 U.S.C. § 2254(d) are applicable, and we must presume the accuracy of the state trial court’s factual findings. Because the state trial court rejected Andersen’s story of a third-degree interrogation, the record contains no support for a finding that Andersen’s confession was involuntary. The police did not arrest Andersen because they suspected him of the Trunko murder. Rather, Andersen was properly arrested on a disorderly conduct charge initiated by his mother, and the police uncovered Andersen’s involvement in the murder as a follow-up to surprise statements he made shortly after his arrest. Even reviewing the magistrate’s decision de novo, we must find that Andersen voluntarily confessed to the Trunko murder.
B. Admissibility of Custodial Statements
Andersen and his prosecutors agree that the following exchange occurred while Andersen was in custody:
ANDERSEN: “I stabbed her.”
POLICE OFFICER: “Who?”
ANDERSEN: “Cathy.”
The parties argue over whether this conversation occurred before or after Andersen was given Miranda warnings and whether the admission of this statement violates the dictates of Miranda. While the state contends that Andersen waived this argument by not squarely presenting it in his petition for leave to appeal to the Illinois Supreme Court, see Nutall v. Greer, 764 F.2d 462, 465 (7th Cir.1985), we find that Andersen sufficiently presented the issue to the Illinois state courts to preserve it for federal habeas review.
At a suppression hearing, the arresting officer testified that Andersen made these statements before Miranda warnings, but at trial, the same officer stated that the statements were made after Miranda warnings. Although the state trial judge had excluded any of Andersen’s statements made before Miranda warnings, the arresting officer was allowed to testify as to this colloquy on the basis of trial testimony that it occurred after Miranda warnings. However, the timing of this conversation is inconsequential. Even if the statements were made before warnings were given, they could have been properly received into evidence, because Andersen volunteered his initial statement and the arresting officer’s reflexive question does not constitute an “interrogation” for purposes of Miranda. Therefore, Andersen was not prejudiced by the admission of these statements.
Shortly after his arrest, the police asked Andersen if he had a gun, an arguably proper line of questioning to protect the officers’ safety. See New York v. Quarles, 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984). Despite this initial questioning, we agree with the Illinois Appellate Court that Andersen’s statement a few minutes later was initially volunteered. This lapse of time and the nonresponsive character of Andersen’s statement removes any possibility that Andersen was responding to police interrogation about a gun when he stated, “I stabbed her.” By its own terms, Miranda does not apply to volunteered statements, and thus Andersen’s first exclamation could be properly received into evidence. See Miranda v. Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1966).
Furthermore, the police officer’s responsive question, “Who?,” did not require full Miranda warnings before its utterance. See, e.g., United States v. Rhodes, 779 F.2d 1019, 1032 (4th Cir.1985) (no interrogation occurred where drug dealer saw police officers were confiscating his notebook and said, “You can’t take that,” to which a police officer responded, “Why” and drug dealer stated, “I can’t run my business without that.”), cert. denied, 476 U.S. 1182, 106 S.Ct. 2916, 91 L.Ed.2d 545 (1986); Papile v. Hernandez, 697 F.Supp. 626, 630-31 (E.D.N.Y.1988) (no interrogation occurred where police officer asked, “What kind of a deal?” in response to habeas petitioner’s spontaneous offer, “I want to make a deal.”); Turner v. Sullivan, 661 F.Supp. 535, 538 (E.D.N.Y.1987) (no interrogation occurred where habeas petitioner had initiated exchange by stating, “My leg is hurting,” to which police officer responded, “What happened to you?”), aff'd, 842 F.2d 1288 (2d Cir.), cert. denied, 487 U.S. 1240, 108 S.Ct. 2913, 101 L.Ed.2d 944 (1988); 1 W. LaFave & J. Israel, Criminal Procedure § 6.7(d) (1984). The police officer’s question was a neutral response, intended to clarify Andersen’s puzzling declaration; it was not coercive interrogation that Miranda seeks to prevent. Therefore, the police officer’s question and Andersen’s response could have been properly admitted. On the facts of this case, the spontaneous colloquy, which was initiated by the accused, did not require full Miranda warnings before it could be admissible.
III. CONCLUSION
Andersen has not established an exception to the general rule that we must presume correct the findings of the state trial court, and consequently, there is no basis upon which we can find his confession involuntary. Also, Andersen has not established a violation of Miranda. Accordingly, the judgment of the district court denying his petition for a writ of habeas corpus is
Affirmed.
Appendix
Oral Findings of the State Trial Judge:
All right. The Court has heard extensive evidence, witnesses on the defendant’s motion to quash and also, the second motion. The motion to suppress statements has heard arguments of Counsel. And the matter was taken under advisement and continued today’s'date for the Courts [sic] ruling and finding of fact.
The Court will not comment in great detail prior to making the finding of fact, but the Court will comment as to one facet because in the Court’s opinion, it is one of the crutial [sic] elements as indicated in the motion to quash and also, in the motion to suppress. And that is the defendant’s condition at the time of his arrest and at the time of giving the purported statements as to his sobriety or lack thereof.
Different witnesses have testified and most of them have commented on his condition at the time that they saw him. And the comments have been as to the — one witness indicated the word he — his opinion was “drunk.” Another one indicated he was “dead drunk.” Another one indicated he was “intoxicated.” However, upon the particular witnesses being questioned further, as to the basis for their opinion, they then came up with statements as or admissions they had not seen the defendant consume any alcohol.
Some indicated they had seen him consume only one drink. Others indicated the basis of their opinion was merely the fact they smelled the odor of alcohol on his breath, however, they indicated that he was able to drive a car, to walk without stumbling and his speech, although it was raspy, they could understand what he was saying. And that he was coherent. So, there’s a great divergence as to his condition. And the Court must consider the credibility of the witnesses as testified based upon the basis that they indicated for their conclusion that he was drunk or dead drunk or intoxicated, according to the words that were used by the different witnesses that testified.
Although there is contradiction in the record as to the witnesses [sic] statement as to what occurred at the time that the defendant was taken into custody in front of his house; one witness indicated that he was being held over the top of a van. Another witness indicated that he was being placed with his hands over the hood of a car — hood of the police car. And the other witness indicated that he was being held with his hands over the — it would be the top of the police car, but covering the windows to the back. There’s an indication they could hear everything that was being said, even though the windows were rolled up in the squad car. There was even testimony from the defendant’s mother that the windows were rolled up in the squad car, but she still could hear Norman Menagus (sic) hollering from the rear of the squad car, which she placed quite a distance from her home, which all goes to the credibility and the weight the Court had to give the testimony aduced [sic].
Based upon the totality of the evidence presented to the Court, in considering the credibility the Court has aduced [sic ], based upon those witnesses [sic] testimony, the Court finds as follows:
The Court finds, first, in my first ruling that deals with the motion to quash, the Court finds that the arrest of the defendant was not a pretex [sic ] or a subterfuge arrest. The Court finds that the defendant’s arrest took place when he was placed in the squad car at 5191 South Hermitage immediately after the complainant Mrs. Anderson [sic ] signed a complaint for disorderly conduct.
The Court further finds that there, the arrest was based upon probable cause and, therefore, the defendant, Daniel Anderson’s [sic], motion to quash the arrest is denied.
Now, as to the motion to suppress statements, the Court finds that the defendant was in custodial arrest when he was placed in the police car in front of his home after Mrs. Anderson [sic] had signed the complaint for disorderly conduct. The Court further finds that the statements made in the squad car between the time of leaving the house and arriving at the police station at 85th and Lowe and also, the statements made in the parking lot of the police station at 35th and Lowe were not volunteered statements. And the Court finds that the defendant had not knowingly waived his right of Miranda rights at the time that those statements were given. Therefore, as to those statements only, the defendant’s motion to suppress those statements is sustained.
Now, as to the subsequent statements given inside the police station, the Court finds that prior to such interrogation, the defendant was advised of his Miranda rights and that he knowingly and intelligently waived those particular rights. The Court further finds that the defendant was capable of appreciating and understanding the full meaning of his Miranda rights and waive them voluntarily, knowingly and intelligently.
The Court further finds that the statements were not obtained as a result of the interrogation, in contradiction of the defendant’s request for food and water while manacled to the lock-up. The Court further finds that the statements were not obtained as a result of undue questions for a lengthy period of time for the promises of leniency being made to the defendant.
The Court further finds that the statements were not obtained as a result of physical coercion or psychological or mental coercion and were not obtained as a result of confronting the accused with evidence which had been obtained in derogation of his Constitutional rights. The Court also finds that the statements were not obtained as a result of material misrepresentations made to the Defendant. Therefore, as to the remaining statements, the defendant’s motion to suppress is denied.
. The Supreme Court has now made clear that in the absence of coercive police conduct, a criminal defendant’s mental state alone cannot make his confession involuntary. Colorado v. Connelly, 479 U.S. 157, 163-67, 107 S.Ct. 515, 520-22, 93 L.Ed.2d 473 (1986). Therefore, Andersen’s intoxication by itself could not support a finding of involuntariness and is relevant only to the extent it made him more susceptible to mentally coercive police tactics.
. At oral argument, we asked whether the magistrate had applied an incorrect quantum of proof in deciding that the petitioner’s confession was voluntary. On two occasions in his written opinion, the magistrate stated that the petitioner "must prove beyond a reasonable doubt" that his confession was involuntary. Of course, the correct standard is that the petitioner prove by a preponderance of the evidence that his confession was involuntary. See United States ex rel. Cross v. DeRobertis, 811 F.2d 1008, 1015 (7th Cir.1987); Martin v. Wainwright, 770 F.2d 918, 925 (11th Cir.), cert. denied, 479 U.S. 909, 107 S.Ct. 307, 93 L.Ed.2d 281 (1986). Because petitioner never raised this argument except in response to questions at oral argument, he has waived it. In addition, the magistrate correctly identified the proper quantum of proof in other places in his opinion, convincing us that any prejudice to the petitioner was minimal.
Question: What is the total number of respondents in the case that fall into the category "state governments, their agencies, and officials"? Answer with a number.
Answer:
|
songer_realresp
|
B
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine whether or not the formally listed respondents in the case are the "real parties." That is, are they the parties whose real interests are most directly at stake? (e.g., in some appeals of adverse habeas corpus petition decisions, the respondent is listed as the judge who denied the petition, but the real parties are the prisoner and the warden of the prison) (another example would be "Jones v A 1990 Rolls Royce" where Jones is a drug agent trying to seize a car which was transporting drugs - the real party would be the owner of the car). For cases in which an independent regulatory agency is the listed respondent, the following rule was adopted: If the agency initiated the action to enforce a federal rule or the agency was sued by a litigant contesting an agency action, then the agency was coded as a real party. However, if the agency initially only acted as a forum to settle a dispute between two other litigants, and the agency is only listed as a party because its ruling in that dispute is at issue, then the agency is considered not to be a real party. For example, if a union files an unfair labor practices charge against a corporation, the NLRB hears the dispute and rules for the union, and then the NLRB petitions the court of appeals for enforcement of its ruling in an appeal entitled "NLRB v Widget Manufacturing, INC." the NLRB would be coded as not a real party. Note that under these definitions, trustees are usually "real parties" and parents suing on behalf of their children and a spouse suing on behalf of their injured or dead spouse are also "real parties."
KINGSPORT PUBLISHING CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 18048.
United States Court of Appeals Sixth Circuit.
Sept. 4, 1968.
Edwin O. Norris, Kingsport, Tenn., (David W. Zugschwerdt, F. Allan Kelly, Kingsport, Tenn., on the brief), for petitioner. Hunter, Smith, Davis, Norris, Waddey & Treadway, Kingsport, Tenn., of counsel.'
Nancy M. Sherman, N. L. R. B., Washington, D. C., (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel-Mallet-Prevost, Asst. Gen. Counsel, on the brief), for respondent.
Before CELEBREZZE, PECK and McCREE, Circuit Judges.
PECK, Circuit Judge.
In this action Kingsport Publishing Company, hereinafter the “Company,” petitioned for review, and the National Labor Relations Board cross-petitioned for enforcement of an order of the Board dated June 21, 1967 (165 NLRB No. 116), which held the Company to be in violation of Section 8(a) (5) and (1) of the National Labor Relations Act, as amended (29 U.S.C. § 158(a) (5) and (1) ), upon a charge of unilaterally altering a condition of employment during the course of negotiations with the Union for a new collective bargaining agreement.
The Company and the Union executed a collective bargaining agreement on November 1, 1962, which extended through October 31, 1964. On August 25, 1964, the Union notified the Company by letter that “on October 31 any agreement — written, oral or implied — or any conditions of employment or other understanding now in effect between the [Company] and [the Union] will terminate,” and offered to meet with the Company to negotiate an agreement with respect to wages, hours and other terms and conditions of employment. A number of bargaining sessions were held between September, 1964, and November, 1966, at which time no agreement had been consummated.
On June 22, 1965, approximately eight months after the expiration of the 1962 contract, employee Ivil Lytz was discharged by the Company for refusal to carry out a foreman’s instructions and for deliberately ignoring posted instructions regarding holiday shifts. (It is not contended that this discharge was discriminatory or that it constituted an independent violation under the Act.) The Union then took the position that the Company should reinstate Lytz and process his discharge in accordance with the grievance procedure contained in the contract which terminated in October, 1964. The Company refused the request to so process the grievance, and the Union thereafter rejected the Company’s offer to discuss the discharge during contract negotiations. The Union subsequently filed the unfair labor practice charges upon which the complaint underlying the order on review was based.
It is the Board’s position that a grievance procedure constitutes a mandatory subject for collective bargaining (N.L.R.B. v. United Nuclear Corp., 381 F.2d 972 (10th Cir. 1967); N.L.R.B. v. Celotex Corp., 364 F.2d 552 (5th Cir.), cert. denied, 385 U.S. 987, 87 S.Ct. 601, 17 L.Ed.2d 450 (1966); N.L.R.B. v. Century Cement Mfg. Co., Inc., 208 F.2d 84 (2d Cir. 1953) ), and that the Company violated the Act by unilaterally altering, or stated more precisely, by abandoning the grievance procedure provided in the expired 1962 contract. See N.L.R.B. v. Katz, 369 U.S. 736, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962); Fibreboard Paper Products Co. v. N.L.R.B., 379 U.S. 203, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964).
It is clear that no bad faith motive or anti-union sentiment is imputable to the Company by any of its actions, as evidenced by the non-discriminatory nature of the discharge and the Company’s offer to discuss the grievance in question at bargaining negotiations or to process it in accordance with the new grievance procedure tentatively agreed upon once the new contract was executed. Moreover, the Company did not attempt to substitute a new grievance procedure in lieu of the one contained in the expired contract during the course of negotiations. Compare Industrial Union of Marine & Shipbuilding Wkrs. v. N.L.R.B., 320 F.2d 615, at 620 (3rd Cir. 1963), cert. denied, Bethlehem Steel Co. v. N.L.R.B., 375 U.S. 984, 84 S.Ct. 516, 11 L.Ed.2d 472 (1964). The unfair labor practice charge in this case rests solely upon the Company’s refusal to process the grievance relating to Lytz’s discharge in accordance with the provisions of the 1962 collective bargaining contract.
The grievance procedure contained in the 1962 contract between the Company and the Union provided for binding arbitration as the final step in the settlement of any dispute. The Board, by adopting the Trial Examiner’s findings and conclusions, held that “it would, of course, seem totally inconsistent to hold that a grievance procedure would survive a contract but the arbitration clause, the final and binding part of that procedure, would not.” While congressional policy favors the settlement of labor disputes by the arbitral process rather than by economic warfare (See Section 203(d) of the Labor Management Relations Act, 29 U.S.C. § 173(d); United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers of America v. Warrier & Gulf Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960)), arbitration nevertheless rests upon a contractual basis. John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964); Amalgamated Clothing Workers v. Ironall Factories Co., Inc., 386 F.2d 586 (6th Cir. 1967). . Thus, although the Board by its order would require the Company to process the grievance in dispute in accordance with the provisions of the 1962 collective bargaining contract, the Board does not refute the Company’s contention that neither party to the contract could successfully have brought suit under Section 801 of the Labor Management Relations Act to compel arbitration. Cf. Procter & Gamble Independent Union v. Procter & Gamble Mfg. Co., 312 F.2d 181 (2d Cir. 1962), cert. denied, 374 U.S. 830, 83 S.Ct. 1872, 10 L.Ed.2d 1053 (1963).
The Company argues that the Union, by its letter of August 25, 1964, fully terminated all working conditions and other understandings under the contract then in effect. The Board, however, found that the letter “was no more than required by Section 8(d) of the Act.” While we disagree with the Board’s conclusion, since it seems quite clear that the language used went far beyond anything required by Section 8(d), we find it unnecessary to decide whether the Union’s letter, standing alone, constituted a “clear and unmistakable” waiver (Dura Corp. v. N.L.R.B., 380 F.2d 970 (6th Cir. 1967) ) of the alleged statutory right to bargain about any change regarding a condition of employment.
There is little evidence in the record establishing the extent to which the formal grievance procedure was actually employed by the parties during the effective term of the 1962 contract, and what evidence there is shows that the grievance arising out of Lytz’s discharge was to be the first to be formally processed “outside of normal negotiations.” As stated in N.L.R.B. v. Frontier Homes Corp., 371 F.2d 974, 980-981 (8th Cir. 1967):
“An expired contract in the Labor-Management field must be viewed in light of its effect upon the past operation of the plant and the entire industrial pattern which has been established, in part, by it, together with the customs, practices, and traditions of the. industry and the Company. Expired contract rights affecting mandatory bargaining issues, therefore, have no efficacy unless the rights have become a part of the established operational pattern and thus become a part of the status quo of the entire plant operation.”
Because of the absence of evidence of prior use of the grievance procedure, it certainly cannot be said that the grievance machinery was part of the “established operational pattern” at the Company’s plant, or that the Company unlawfully upset the status quo by resisting attempts to settle the grievance by means other than direct negotiations with the Union. Cf. N.L.R.B. v. Katz, supra at 746, 82 S.Ct. 1107.
In accordance with the foregoing, it is here determined that the Board’s conclusion that the Company unlawfully refused to bargain with the Union in violation of Section 8(a) (5) and (1) of the Act was unwarranted. Accordingly, enforcement of the Board’s order requiring the Company to reinstate Lytz with back pay and to process the grievance in accordance with the expired 1962 contract should be denied.
Enforcement denied.
Kingsport Typographical Union No. 940, an affiliate of the International Typographical Union.
Question: Are the formally listed respondents in the case the "real parties", that is, are they the parties whose real interests are most directly at stake?
A. both 1st and 2nd listed respondents are real parties (or only one respondent, and that respondent is a real party)
B. the 1st respondent is not a real party
C. the 2nd respondent is not a real party
D. neither the 1st nor the 2nd respondents are real parties
E. not ascertained
Answer:
|
sc_casedisposition
|
D
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss.
J. E. B. v. ALABAMA ex rel. T. B.
No. 92-1239.
Argued November 2, 1993
Decided April 19, 1994
Blackmun, J., delivered the opinion of the Court, in which Stevens, O’Connor, Souter, and Ginsburg, JJ., joined. O’Connor, J., filed a concurring opinion, post, p. 146. Kennedy, J., filed an opinion concurring in the judgment, post, p. 151. Rehnquist, C. J., filed a dissenting opinion, ■post, p. 154. Scalia, J., filed a dissenting opinion, in which Rehnquist, C. J., and Thomas, J., joined, post, p. 156.
John F Porter III argued the cause and filed briefs for petitioner.
Michael R. Dreeben argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Days, Acting Assistant Attorneys General Keeney and Turner, and Deputy Solicitor General Bryson.
Lois N. Brasfield, Assistant Attorney General of Alabama, argued the cause for respondent. With her on the briefs was 'William F. Prendergast, Assistant Attorney General.
David H. Coburn, Stephanie A Philips, and Marcia Greenberger filed a brief for the National Women’s Law Center et al. as amici curiae urging reversal.
Justice Blackmun
delivered the opinion of the Court.
In Batson v. Kentucky, 476 U. S. 79 (1986), this Court held that the Equal Protection Clause of the Fourteenth Amendment governs the exercise of peremptory challenges by a prosecutor in a criminal trial. The Court explained that although a defendant has “no right to a ‘petit jury composed in whole or in part of persons of his own race,’ ” id., at 85, quoting Strauder v. West Virginia, 100 U. S. 303, 305 (1880), the “defendant does have the right to be tried by a jury whose members are selected pursuant to nondiscriminatory criteria,” 476 U. S., at 85-86. Since Batson, we have reaffirmed repeatedly our commitment to jury selection procedures that are fair and nondiscriminatory. We have recognized that whether the trial is criminal or civil, potential jurors, as well as litigants, have an equal protection right to jury selection procedures that are free from state-sponsored group stereotypes rooted in, and reflective of, historical prejudice. See Powers v. Ohio, 499 U. S. 400 (1991); Edmonson v. Leesville Concrete Co., 500 U. S. 614 (1991); Georgia v. McCollum, 505 U. S. 42 (1992).
Although premised on equal protection principles that apply equally to gender discrimination, all our recent cases defining the scope of Batson involved alleged racial discrimination in the exercise of peremptory challenges. Today we are faced with the question whether the Equal Protection Clause forbids intentional discrimination on the basis of gender, just as it prohibits discrimination on the basis of race. We hold that gender, like race, is an unconstitutional proxy for juror competence and impartiality.
I
On behalf of relator T. B., the mother of a minor child, respondent State of Alabama filed a complaint for paternity and child support against petitioner J. E. B. in the District Court of Jackson County, Alabama. On October 21, 1991, the matter was called for trial and jury selection began. The trial court assembled a panel of 36 potential jurors, 12 males and 24 females. After the court excused three jurors for cause, only 10 of the remaining 33 jurors were male. The State then used 9 of its 10 peremptory strikes to remove male jurors; petitioner used all but one of his strikes to remove female jurors. As a result, all the selected jurors were female.
Before the jury was empaneled, petitioner objected to the State’s peremptory challenges on the ground that they were exercised against male jurors solely on the basis of gender, in violation of the Equal Protection Clause of the Fourteenth Amendment. App. 22. Petitioner argued that the logic and reasoning of Batson v. Kentucky, which prohibits peremptory strikes solely on the basis of race, similarly forbids intentional discrimination on the basis of gender. The court rejected petitioner’s claim and empaneled the all-female jury. App. 23. The jury found petitioner to be the father of the child, and the court entered an order directing him to pay child support. On postjudgment motion, the court reaffirmed its ruling that Batson does not extend to gender-based peremptory challenges. App. 33. The Alabama Court of Civil Appeals affirmed, 606 So. 2d 156 (1992), relying on Alabama precedent, see, e. g., Murphy v. State, 596 So. 2d 42 (Ala. Crim. App. 1991), cert. denied, 506 U. S. 827 (1992), and Ex parte Murphy, 596 So. 2d 45 (Ala. 1992). The Supreme Court of Alabama denied certiorari, No. 1911717 (Oct. 23, 1992).
We granted certiorari, 508 U. S. 905 (1993), to resolve a question that has created a conflict of authority — whether the Equal Protection Clause forbids peremptory challenges on the basis of gender as well as on the basis of race. Today we reaffirm what, by now, should be axiomatic: Intentional discrimination on the basis of gender by state actors violates the Equal Protection Clause, particularly where, as here, the discrimination serves to ratify and perpetuate invidious, archaic, and overbroad stereotypes about the relative abilities of men and women.
II
Discrimination on the basis of gender in the exercise of peremptory challenges is a relatively recent phenomenon. Gender-based peremptory strikes were hardly practicable during most of our country’s existence, since, until the 20th century, women were completely excluded from jury service. So well entrenched was this exclusion of women that in 1880 this Court, while finding that the exclusion of African-American men from juries violated the Fourteenth Amendment, expressed no doubt that a State “may confine the selection [of jurors] to males.” Strauder v. West Virginia, 100 U. S., at 310; see also Fay v. New York, 332 U. S. 261, 289-290 (1947).
Many States continued to exclude women from jury service well into the present century, despite the fact that women attained suffrage upon ratification of the Nineteenth Amendment in 1920. States that did permit women to serve on juries often erected other barriers, such as registration requirements and automatic exemptions, designed to deter women from exercising their right to jury service. See, e. g., Fay v. New York, 332 U. S., at 289 (“[I]n 15 of the 28 states which permitted women to serve [on juries in 1942], they might claim exemption because of their sex”); Hoyt v. Florida, 368 U. S. 57 (1961) (upholding affirmative registration statute that exempted women from mandatory jury service).
The prohibition of women on juries was derived from the English common law which, according to Blackstone, rightfully excluded women from juries under “the doctrine of propter defectum sexus, literally, the ‘defect of sex.’” United States v. De Gross, 960 F. 2d 1433, 1438 (CA9 1992) (en banc), quoting 2 W. Blackstone, Commentaries *362. In this country, supporters of the exclusion of women from juries tended to couch their objections in terms of the ostensible need to protect women from the ugliness and depravity of trials. Women were thought to be too fragile and virginal to withstand the polluted courtroom atmosphere. See Bailey v. State, 215 Ark. 53, 61, 219 S. W. 2d 424, 428 (1949) (“Criminal court trials often involve testimony of the foulest kind, and they sometimes require consideration of indecent conduct, the use of filthy and loathsome words, references to intimate sex relationships, and other elements that would prove humiliating, embarrassing and degrading to a lady”); In re Goodell, 39 Wis. 232, 245-246 (1875) (endorsing statutory ineligibility of women for admission to the bar because “[r]everence for all womanhood would suffer in the public spectacle of women... so engaged”); Bradwell v. State, 16 Wall. 130, 141 (1873) (concurring opinion) (“[T]he civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life.... The paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator”). Cf. Frontiero v. Richardson, 411 U. S. 677, 684 (1973) (plurality opinion) (This “attitude of ‘romantic paternalism’... put women, not on a pedestal, but in a cage”).
This Court in Ballard v. United States, 329 U. S. 187 (1946), first questioned the fundamental fairness of denying women the right to serve on juries. Relying on its supervisory powers over the federal courts, it held that women may not be excluded from the venire in federal trials in States where women were eligible for jury service under local law. In response to the argument that women have no superior or unique perspective, such that defendants are denied a fair trial by virtue of their exclusion from jury panels, the Court explained:
“It is said... that an all male panel drawn from the various groups within a community will be as truly representative as if women were included. The thought is that the factors which tend to influence the action of women are the same as those which influence the action of men — personality, background, economic status — and not sex. Yet it is not enough to say that women when sitting as jurors neither act nor tend to act as a class. Men likewise do not act like a class.... The truth is that the two sexes are not fungible; a community made up exclusively of one is different from a community composed of both; the subtle interplay of influence one on the other is among the imponderables. To insulate the courtroom from either may not in a given case make an iota of difference. Yet a flavor, a distinct quality is lost if either sex is excluded.” Id., at 193-194 (footnotes omitted).
Fifteen years later, however, the Court still was unwilling to translate its appreciation for the value of women’s contribution to civic life into an enforceable right to equal treatment under state laws governing jury service. In Hoyt v. Florida, 368 U. S., at 61, the Court found it reasonable, “[d]e-spite the enlightened emancipation of women,” to exempt women from mandatory jury service by statute, allowing women to serve on juries only if they volunteered to serve. The Court justified the differential exemption policy on the ground that women, unlike men, occupied a unique position “as the center of home and family life.” Id., at 62.
In 1975, the Court finally repudiated the reasoning of Hoyt and struck down, under the Sixth Amendment, an affirmative registration statute nearly identical to the one at issue in Hoyt. See Taylor v. Louisiana, 419 U. S. 522 (1975). We explained: “Restricting jury service to only special groups or excluding identifiable segments playing major roles in the community cannot be squared with the constitutional concept of jury trial.” Id., at 530. The diverse and representative character of the jury must be maintained “‘partly as assurance of a diffused impartiality and partly because sharing in the administration of justice is a phase of civic responsibility.’” Id., at 530-531, quoting Thiel v. Southern Pacific Co., 328 U. S. 217, 227 (1946) (Frankfurter, J., dissenting). See also Duren v. Missouri, 439 U. S. 357 (1979).
Ill
Taylor relied on Sixth Amendment principles, but the opinion’s approach is consistent with the heightened equal protection scrutiny afforded gender-based classifications. Since Reed v. Reed, 404 U. S. 71 (1971), this Court consistently has subjected gender-based classifications to heightened scrutiny in recognition of the real danger that government policies that professedly are based on reasonable considerations in fact may be reflective of “archaic and over-broad” generalizations about gender, see Schlesinger v. Ballard, 419 U. S. 498, 506-507 (1975), or based on “outdated misconceptions concerning the role of females in the home rather than in the ‘marketplace and world of ideas.’ ” Craig v. Boren, 429 U. S. 190, 198-199 (1976). See also Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432, 441 (1985) (differential treatment of the sexes “very likely reflects] outmoded notions of the relative capabilities of men and women”).
Despite the heightened scrutiny afforded distinctions based on gender, respondent argues that gender discrimination in the selection of the petit jury should be permitted, though discrimination on the basis of race is not. Respondent suggests that “gender discrimination in this country... has never reached the level of discrimination” against African-Americans, and therefore gender discrimination, unlike racial discrimination, is tolerable in the courtroom. Brief for Respondent 9.
While the prejudicial attitudes toward women in this country have not been identical to those held toward racial minorities, the similarities between the experiences of racial minorities and women, in some contexts, “overpower those differences.” Note, Beyond Batson: Eliminating Gender-Based Peremptory Challenges, 105 Harv. L. Rev. 1920, 1921 (1992). As a plurality of this Court observed in Frontiero v. Richardson, 411 U. S., at 685:
“[Throughout much of the 19th century the position of women in our society was, in many respects, comparable to that of blacks under the pre-Civil War slave codes. Neither slaves nor women could hold office, serve on juries, or bring suit in their own names, and married women traditionally were denied the legal capacity to hold or convey property or to serve as legal guardians of their own children.... And although blacks were guaranteed the right to vote in 1870, women were denied even that right — which is itself ‘preservative of other basic civil and political rights’ — until adoption of the Nineteenth Amendment half a century later.” (Footnote omitted.)
Certainly, with respect to jury service, African-Americans and women share a history of total exclusion, a history which came to an end for women many years after the embarrassing chapter in our history came to an end for African-Americans.
We need not determine, however, whether women or racial minorities have suffered more at the hands of discriminatory state actors during the decades of our Nation’s history. It is necessary only to acknowledge that “our Nation has had a long and unfortunate history of sex discrimination,” id., at 684, a history which warrants the heightened scrutiny we afford all gender-based classifications today. Under our equal protection jurisprudence, gender-based classifications require “an exceedingly persuasive justification” in order to survive constitutional scrutiny. See Personnel Administrator of Mass. v. Feeney, 442 U. S. 256, 273 (1979). See also Mississippi Univ. for Women v. Hogan, 458 U. S. 718, 724 (1982); Kirchberg v. Feenstra, 450 U. S. 455, 461 (1981). Thus, the only question is whether discrimination on the basis of gender in jury selection substantially furthers the State’s legitimate interest in achieving a fair and impartial trial. In making this assessment, we do not weigh the value of peremptory challenges as an institution against our asserted commitment to eradicate invidious discrimination from the courtroom. Instead, we consider whether peremptory challenges based on gender stereotypes provide substantial aid to a litigant’s effort to secure a fair and impartial jury.
Far from proffering an exceptionally persuasive justification for its gender-based peremptory challenges, respondent maintains that its decision to strike virtually all the males from the jury in this case “may reasonably have been based upon the perception, supported by history, that men otherwise totally qualified to serve upon a jury in any case might be more sympathetic and receptive to the arguments of a man alleged in a paternity action to be the father of an out-of-wedlock child, while women equally qualified to serve upon a jury might be more sympathetic and receptive to the arguments of the complaining,witness who bore the child.” Brief for Respondent 10.
We shall not accept as a defense to gender-based peremptory challenges “the very stereotype the law condemns.” Powers v. Ohio, 499 U. S., at 410. Respondent’s rationale, not unlike those regularly expressed for gender-based strikes, is reminiscent of the arguments advanced to justify the total exclusion of women from juries. Respondent offers virtually no support for the conclusion that gender alone is an accurate predictor of juror’s attitudes; yet it urges this Court to condone the same stereotypes that justified the wholesale exclusion of women from juries and the ballot box. Respondent seems to assume that gross generalizations that would be deemed impermissible if made on the basis of race are somehow permissible when made on the basis of gender.
Discrimination in jury selection, whether based on race or on gender, causes harm to the litigants, the community, and the individual jurors who are wrongfully excluded from participation in the judicial process. The litigants are harmed by the risk that the prejudice that motivated the discriminatory selection of the jury will infect the entire proceedings. See Edmonson, 500 U. S., at 628 (discrimination in the courtroom “raises serious questions as to the fairness of the proceedings conducted there”). The community is harmed by the State’s participation in the perpetuation of invidious group stereotypes and the inevitable loss of confidence in our judicial system that state-sanctioned discrimination in the courtroom engenders.
When state actors exercise peremptory challenges in reliance on gender stereotypes, they ratify and reinforce prejudicial views of the relative abilities of men and women. Because these stereotypes have wreaked injustice in so many other spheres of our country’s public life, active discrimination by litigants on the basis of gender during jury selection “invites cynicism respecting the jury’s neutrality and its obligation to adhere to the law.” Powers v. Ohio, 499 U. S., at 412. The potential for cynicism is particularly acute in cases where gender-related issues are prominent, such as cases involving rape, sexual harassment, or paternity. Discriminatory use of peremptory challenges may create the impression that the judicial system has acquiesced in suppressing full participation by one gender or that the “deck has been stacked” in favor of one side. See id., at 413 (“The verdict will not be accepted or understood [as fair] if the jury is chosen by unlawful means at the outset”).
In recent cases we have emphasized that individual jurors themselves have a right to nondiscriminatory jury selection procedures. See Powers, supra, Edmonson, supra, and Georgia v. McCollum, 505 U. S. 42 (1992). Contrary to respondent’s suggestion, this right extends to both men and women. See Mississippi Univ. for Women v. Hogan, 458 U. S, at 723 (that a state practice “discriminates against males rather than against females does not exempt it from scrutiny or reduce the standard of review”); cf. Brief for Respondent 9 (arguing that men deserve no protection from gender discrimination in jury selection because they are not victims of historical discrimination). All persons, when granted the opportunity to serve on a jury, have the right not to be excluded summarily because of discriminatory and stereotypical presumptions that reflect and reinforce patterns of historical discrimination. Striking individual jurors on the assumption that they hold particular views simply because of their gender is “practically a brand upon them, affixed by the law, an assertion of their inferiority.” Strauder v. West Virginia, 100 U. S., at 308. It denigrates the dignity of the excluded juror, and, for a woman, reinvokes a history of exclusion from political participation. The message it sends to all those in the courtroom, and all those who may later learn of the discriminatory act, is that certain individuals, for no reason other than gender, are presumed unqualified by state actors to decide important questions upon which reasonable persons could disagree.
IV
Our conclusion that litigants may not strike potential jurors solely on the basis of gender does not imply the elimination of all peremptory challenges. Neither does it conflict with a State’s legitimate interest in using such challenges in its effort to secure a fair and impartial jury. Parties still may remove jurors who they feel might be less acceptable than others on the panel; gender simply may not serve as a proxy for bias. Parties may also exercise their peremptory challenges to remove from the venire any group or class of individuals normally subject to “rational basis” review. See Cleburne v. Cleburne Living Center, Inc., 473 U. S., at 439-442; Clark v. Jeter, 486 U. S. 456, 461 (1988). Even strikes based on characteristics that are disproportionately associated with one gender could be appropriate, absent a showing of pretext.
If conducted properly, voir dire can inform litigants about potential jurors, making reliance upon stereotypical and pejorative notions about a particular gender or race both unnecessary and unwise. Voir dire provides a means of discovering actual or implied bias and a firmer basis upon which the parties may exercise their peremptory challenges intelligently. See, e. g., Nebraska Press Assn. v. Stuart, 427 U. S. 539, 602 (1976) (Brennan, J., concurring in judgment) (voir dire “facilitate[s] intelligent exercise of peremptory challenges and [helps] uncover factors that would dictate disqualification for cause”); United States v. Witt, 718 F. 2d 1494, 1497 (CA10 1983) (“Without an adequate foundation [laid by voir dire], counsel cannot exercise sensitive and intelligent peremptory challenges”).
The experience in the many jurisdictions that have barred gender-based challenges belies the claim that litigants and trial courts are incapable of complying with a rule barring strikes based on gender. See n. 1, supra (citing state and federal jurisdictions that have extended Batson to gender). As with race-based Batson claims, a party alleging gender discrimination must make a prima facie showing of intentional discrimination before the party exercising the challenge is required to explain the basis for the strike. Batson, 476 U. S., at 97. When an explanation is required, it need not rise to the level of a “for cause” challenge; rather, it merely must be based on a juror characteristic other than gender, and the proffered explanation may not be pretextual. See Hernandez v. New York, 500 U. S. 352 (1991).
Failing to provide jurors the same protection against gender discrimination as race discrimination could frustrate the purpose of Batson itself. Because gender and race are overlapping categories, gender can be used as a pretext for racial discrimination. Allowing parties to remove racial minorities from the jury not because of their race, but because of their gender, contravenes well-established equal protection principles and could insulate effectively racial discrimination from judicial scrutiny.
V
Equal opportunity to participate in the fair administration of justice is fundamental to our democratic system. It not only furthers the goals of the jury system. It reaffirms the promise of equality under the law — that all citizens, regardless of race, ethnicity, or gender, have the chance to take part directly in our democracy. Powers v. Ohio, 499 U. S., at 407 (“Indeed, with the exception of voting, for most citizens the honor and privilege of jury duty is their most significant opportunity to participate in the democratic process”). When persons are excluded from participation in our democratic processes solely because of race or gender, this promise of equality dims, and the integrity of our judicial system is jeopardized.
In view of these concerns, the Equal Protection Clause prohibits discrimination in jury selection on the basis of gender, or on the assumption that an individual will be biased in a particular case for no reason other than the fáct that the person happens to be a woman or happens to be a man. As with race, the “core guarantee of equal protection, ensuring citizens that their State will not discriminate..., would be meaningless were we to approve the exclusion of jurors on the basis of such assumptions, which arise solely from the jurors’ [gender].” Batson, 476 U. S., at 97-98.
The judgment of the Court of Civil Appeals of Alabama is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion.
It is so ordered.
The Federal Courts of Appeals have divided on the issue. See United States v. De Gross, 913 F. 2d 1417 (CA9 1990), and 960 F. 2d 1433, 1437-1443 (1992) (en banc) (extending Batson v. Kentucky, 476 U. S. 79 (1986), to prohibit gender-based peremptory challenges in both criminal and civil trials); cf. United States v. Nichols, 937 F. 2d 1257, 1262-1264 (CA7 1991) (declining to extend Batson to gender), cert. denied, 502 U. S. 1080 (1992); United States v. Hamilton, 850 F. 2d 1038, 1042-1043 (CA4 1988) (same), cert. dism’d, 489 U. S. 1094 (1989), and cert. denied, 493 U. S. 1069 (1990); United States v. Broussard, 987 F. 2d 215, 218-220 (CA5 1993) (same).
State courts also have considered the constitutionality of gender-based peremptory challenges. See Laidler v. State, 627 So. 2d 1263 (Fla. App. 1993) (extending Batson to gender); State v. Burch, 65 Wash. App. 828, 830 P. 2d 357 (1992) (same, relying on State and Federal Constitutions);Di Donato v. Santini, 232 Cal. App. 3d 721, 283 Cal. Rptr. 751 (1991), review denied (Cal., Oct. 2, 1991); Tyler v. State, 330 Md. 261, 623 A. 2d 648 (1993) (relying on State Constitution); People v. Mitchell, 228 111. App. 3d 917, 593 N. E. 2d 882 (1992) (same), aff’d in part and vacated in relevant part, 155 Ill. 2d 643, 602 N. E. 2d 467 (1993); State v. Gonzales, 111 N. M. 590, 808 P. 2d 40 (App.) (same), cert. denied, 111 N. M. 590, 806 P. 2d 65 (1991); State v. Levinson, 71 Haw. 492, 498-499, 795 P. 2d 845, 849 (1990) (same); People v. Irizarry, 165 App. Div. 2d 715, 560 N. Y. S. 2d 279 (1990) (same); Commonwealth v. Hutchinson, 395 Mass. 568, 570, 481 N. E. 2d 188,190 (1985) (same); cf. State v. Culver, 293 Neb. 228, 444 N. W. 2d 662 (1989) (refusing to extend Batson to gender); State v. Clay, 779 S. W. 2d 673, 676 (Mo. App. 1989) (same); State v. Adams, 533 So. 2d 1060,1063 (La. App. 1988) (same), cert. denied, 540 So. 2d 338 (La. 1989); State v. Oliviera, 534 A. 2d 867, 870 (R. I. 1987) (same); Murphy v. State, 596 So. 2d 42 (Ala. Crim. App. 1991) (same), cert. denied, 596 So. 2d 45 (Ala.), cert. denied, 506 U. S. 827 (1992).
There was one brief exception. Between 1870 and 1871, women were permitted to serve on juries in Wyoming Territory. They were no longer allowed on juries after a new chief justice who disfavored the practice was appointed in 1871. See Abrahamson, Justice and Juror, 20 Ga. L. Rev. 257, 263-264 (1986).
In 1947, women still had not been granted the right to serve on juries in 16 States. See Rudolph, Women on Juries — Voluntary or Compulsory?, 44 J. Am. Jud. Soc. 206 (1961). As late as 1961, three States, Alabama, Mississippi, and South Carolina, continued to exclude women from jury service. See Hoyt v. Florida, 368 U. S. 57, 62 (1961). Indeed, Alabama did not recognize women as a “cognizable group” for jury-service purposes until after the 1966 decision in White v. Crook, 251 F. Supp. 401 (MD Ala.) (three-judge court).
In England there was at least one deviation from the general rule that only males could serve as jurors. If a woman was subject to capital punishment, or if a widow sought postponement of the disposition of her husband’s estate until birth of a child, a writ de ventre inspiciendo permitted the use of a jury of matrons to examine the woman to determine whether she was pregnant. But even when a jury of matrons was used, the examination took place in the presence of 12 men, who also composed part of the jury in such cases. The jury of matrons was used in the United States during the Colonial period, but apparently fell into disuse when the medical profession began to perform that function. See Note, Jury Service for Women, 12 U. Fla. L. Rev. 224, 224-225 (1959).
Taylor distinguished Hoyt by explaining that that case “did not involve a defendant’s Sixth Amendment right to a jury drawn from a fair cross section of the community,” 419 U. S., at 534. The Court now, however, has stated that Taylor “in effect” overruled Hoyt. See Payne v. Tennessee, 501 U. S. 808, 828, n. 1 (1991).
Because we conclude that gender-based peremptory challenges are not substantially related to an important government objective, we once again need not decide whether classifications based on gender are inherently suspect. See Mississippi Univ. for Women, 458 U. S., at 724, n. 9; Stanton v. Stanton, 421 U. S. 7, 13 (1975); Harris v. Forklift Systems, Inc., 510 U. S. 17, 26, n. (1993) (Ginsburg, J., concurring) (“[I]t remains an open question whether ‘classifications based on gender are inherently suspect’ ”) (citations omitted).
Although peremptory challenges are valuable tools in jury trials, they “are not constitutionally protected fundamental rights; rather they are but one state-created means to the constitutional end of an impartial jury and a fair trial.” Georgia v. McCollum, 505 U. S. 42, 57 (1992).
Respondent argues that we should recognize a special state interest in this case: the State’s interest in establishing the paternity of a child born out of wedlock. Respondent contends that this interest justifies the use of gender-based peremptory challenges, since illegitimate children are themselves victims of historical discrimination and entitled to heightened scrutiny under the Equal Protection Clause.
What respondent fails to recognize is that the only legitimate interest it could possibly have in the exercise of its peremptory challenges is securing a fair and impartial jury. See Edmonson v. Leesville Concrete Co., 500 U. S. 614, 620 (1991) (“[The] sole purpose [of the peremptory challenge] is to permit litigants to assist the government in the selection of an impartial trier of fact”). This interest does not change with the parties or the causes. The State’s interest in every trial is to see that the proceedings are carried out in a fair, impartial, and nondiscriminatory manner.
Respondent cites one study in support of its quasi-empirical claim that women and men may have different attitudes about certain issues justifying the use of gender as a proxy for bias. See R. Hastie, S. Penrod, & N. Pennington, Inside the Jury 140 (1983). The authors conclude: “Neither student nor citizen judgments for typical criminal case materials have revealed differences between male and female verdict preferences.... The picture differs [only] for rape cases, where female jurors appear to be somewhat more conviction-prone than male jurors.” The majority of studies suggest that gender plays no identifiable role in jurors’ attitudes. See, e. g., V. Hans & N. Vidmar, Judging the Jury 76 (1986) (“[I]n the majority of studies there are no significant differences in the way men and women perceive and react to trials; yet a few studies find women more defense-oriented, while still others show women more favorable to the prosecutor”). Even in 1966, before women had a constitutional right to serve on juries, some commentators warned against using gender as a proxy for bias. See F. Busch, Law and Tactics in Jury Trials § 143, p. 207 (1949) (“In this age of general and specialized education, availed of generally by both men and women, it would appear unsound to base a peremptory challenge in any case upon the sole ground of sex...”).
A manual formerly used to instruct prosecutors in Dallas, Texas, provided the following advice: “T don’t like women jurors because I can’t trust them. They do, however, make the best jurors in cases involving crimes against children. It is possible that their “women’s intuition” can help you if you can’t win your case with the facts.’” Alschuler, The Supreme Court and the Jury: Voir Dire, Peremptory Challenges, and the Review of Jury Verdicts, 56 U. Chi. L. Rev. 153, 210 (1989). Another widely circulated trial manual speculated:
“If counsel is depending upon a clearly applicable rule of law and if he wants to avoid a verdict of ‘intuition’ or ‘sympathy,’ if his verdict in
amount is to be proved by clearly demonstrated blackboard figures for example, generally he would want a male juror.
“[But] women... are desired jurors when plaintiff is a man. A woman juror may see a man impeached from the beginning of the case to the end, but there is at least the chance [with] the woman juror (particularly if the man happens to be handsome or appealing) [that] the plaintiff’s derelictions in and out of court will be overlooked. A woman is inclined to forgive sin in the opposite sex; but definitely not her own.” 3 M. Belli, Modern Trials §§ 51.67 and 51.68, pp. 446-447 (2d ed. 1982).
Even if a measure of truth can be found in some of the gender stereotypes used to justify gender-based peremptory challenges, that fact alone cannot support discrimination on the basis of gender in jury selection. We have made abundantly clear in past eases that gender classifications that rest on impermissible stereotypes violate the
Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed?
A. stay, petition, or motion granted
B. affirmed (includes modified)
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to or from a lower court
K. no disposition
Answer:
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songer_interven
|
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 one or more individuals or groups sought to formally intervene in the appeals court consideration of the case.
THE JOSEPHINE. TEXAS CO. (SOUTH AMERICA), Limited, et al. v. CUMMINS et al.
No. 4408.
Circuit Court of Appeals, Third Circuit.
April 6, 1931.
Acker, Manning & Brown, of Philadelphia, Pa., and Bigham, Englar, Jones & Houston and Osear R. «Houston, all of New York City, for appellants.
Howard M. Long, of Philadelphia, Pa., and Burlingham, Veeder, Fearey, Clark & Hupper, of New York City (Roscoe H. Hupper and William J. Dean, both of New York City, of counsel), for appellees.
Before BUFFINGTON and WOOLLEY, Circuit Judges, and THOMPSON, District Judge.
WOOLLEY, Circuit Judge.
The Schooner “Josephine,” having sailed from Port Arthur, Texas, arrived at Pernambuco, Brazil, her port of destination, long overdue with her cargo damaged by water taken aboard during heavy weather. The Texas Company, the ostensible owner of the cargo and party to the charter, filed a libel in rem for damages. Although The Texas Company (South America) Limited, an affiliated corporation, .intervened as the real party injured, we shall, for convenience, speak of the cargo owner as the libellant.
The case was tried on an issue of law arising from the owner’s warranty of the schooner’s seaworthiness and on a corresponding issue of fact. The District Court, finding her seaworthy, entered a decree dismissing the libel. The libellant appealed.
Before coming to the facts we pausé to make certain the issue raised by the pleadings and briefly to examine the applicable law.
The cargo owner avers in its libel that in December 1917 it entered into a charter party whereby the shipowner agreed to let and the libellant agreed to hire the schooner for transportation of petroleum products on a voyage between the ports stated; that early in April 1918, the libellant put aboard the schooner, then lying at Port Arthur, Texas, the agreed cargo in good order and condition; that on April 13 she sailed and after a voyage of four months reached her port of destination and delivered the cargo not in the good order and condition in which it was shipped but damaged through negligence of the schooner in respect to loading, stowage, custody and care, and through her unseaworthiness. As the issue raised by the libellant’s averment of negligence in loading, stowage, etc. was not separately pressed at the trial, the pertinent part of the schooner’s answer may be limited to the owner’s traverse of the libellant’s averment of her unseaworthiness and to his reply that he had used due diligence and ordinary care to make the schooner seaworthy in all respects and that at the time of sailing she was seaworthy and was properly manned, equipped and supplied for the voyage, and that any damage sustained by the cargo was not caused or contributed to by any fault on his part but was occasioned by perils of the sea which were excepted in the charter party and bill of lading.
Thus it is clear from the pleadings that the libellant relies for its law upon the owner’s express warranty in the charter party as to seaworthiness, namely, that the schooner was “tight, staunch, strong, and in every way fitted for the voyage.” The Edwin I. Morrison, 153 U. S. 199, 14 S. Ct. 823, 825, 38 L. Ed. 688; The Caledonia, 157 U. S. 124, 15 S. Ct. 537, 39 L. Ed. 644; The Lockport (D. C.) 197 F. 213. The owner however pleads the Harter Act (27 Stat. 445 [46 USCA §§ 190-195]) which makes no change in his duty under the warranty to furnish a seaworthy vessel, The Carib Prince, 170 U. S. 655, 18 S. Ct. 753, 42 L. Ed. 1181; The Cornelia (D. C.) 15 F.(2d) 245, but does modify liability to the extent that if he used diligence to see that the vessel was seaworthy he and his vessel are exempt from liability for loss arising from various causes — among them perils Of the sea. The Fort Gaines (D. C.) 21 F.(2d) 865; Id. (D. C.) 24 F.(2d) 849, affirmed Federal Forwarding Co. v. Lanasa (C. C. A.) 32 F.(2d) 154; The Agwimoon (D. C.) 24 F.(2d) 864; affirmed Atlantic Gulf & West Indies S. S. Lines v. Interocean Oil Co. (C. C. A.) 31 F.(2d) 1006, distinguished. The distinction between due diligence imposed upon an owner by the Harter Act and his relief from liability on the one hand and the owner’s duty and liability under his general warranty of seaworthiness on the other hand need not be discussed in this case because the evi denee bears equally upon the question of due diligence and the question of seaworthiness. And so evidently thought the proctors for the opposing parties, for both looked upon the schooner’s seaworthiness as the center of the ease and each voluntarily, and at once, assumed the burden of proving the opposite of the issue, respectively. This, however, does not relieve the respondent owner of his burden of proving the seaworthiness of his schooner, or of proving the exercise of due diligence in making her seaworthy as a prerequisite to availing himself of the liberality of the Harter Act, by showing that damage to the cargo arose from one of the exceptions in the charter party, The Folmina, 212 U. S. 354, 29 S. Ct. 363, 53 L. Ed. 546, 15 Ann. Cas. 748, which, as pleaded in this ease, is perils of the sea. The Cornelia, supra. Therefore the first question, (and, it may be, the only one), is that of the schooner’s seaworthiness under the warranty. In considering this question we shall follow the voyage through the evidence in order to determine the schooner’s condition at the start and her condition at sea in view of the perils she encountered.
As a warranty of seaworthiness must be construed as requiring the vessel to be seaworthy when she sails, Federal Forwarding Co. v. Lanasa (The Fort Gaines) 32 F.(2d) 154 (C. C. A.); Luckenbach v. McCahan Sugar Co., 248 U. S. 139, 150, 39 S. Ct. 53, 63 L. Ed. 170,1 A. L. R. 1522, the first question of fact bears on the condition of the schooner when she put to sea.
The “Josephine” was a wooden craft of about 940 gross tons, originally built with barkentine rigging but later changed to a four mast schooner. She was launched in 1896. Advancing in age, she was in 1916 stiffened by placing heavy top sister keelsons along her entire length and heavy tumbuckle rods athwartship. Nevertheless she was in 1917 hogged to the extent of fourteen inches.
From December 1915 to March 1918, a period of twenty-eight months, the “Josephine” was repaired four times at a cost of $17,500, of which $1,742 was expended upon her late in 1917. These facts and figures were used by the libellant as proof of the schooner’s bad condition and were relied upon by the owner as evidence of her good condition and of his diligence in making and keeping her seaworthy. To fortify its interpretation of these figures the libellant produced two witnesses who had surveyed the schooner in-1919 — nine months after she had sailed from Texas on the voyage in question and two months after she, had grounded on a later voyage. They testified that the condition of her hull was bad and gave their opinion that judging from what they saw when they examined her in January 1919 she must have "been, unseaworthy when she sailed on the voyage in April 1918. Against this opinion evidence by relation back to the critical time of departure there was direct evidence for the owner which showed that the schooner was under repairs at Mobile late in 1917 and after their completion she was reelassed by-the American Bureau of Shipping as A 1% for a six year period, the highest class for a schooner of her age; and there was testimony by the surveyor for the bureau that he examined the sehooner in the doek at Mobile and made a report on March 29,1918, specific as to details, and concluding: “Ship in good condition, this has been endorsed on her Class Certificate.” He also testified that at the time of his certificate she was seaworthy and in condition to take the cargo on the chartered voyage. Two weeks later she sailed.
True, the schooner was old, but age alone is not evidence of unseaworthiness. A wooden ship may be old and still be fit.
Finding the sehooner seaworthy at the inception of the voyage, the next question is, did she afterward become unseaworthy at a time and under circumstances which rendered the owner by due diligence capable of reconditioning her?
Sailing from Port Arthur, Texas, on April 13 the schooner’s troubles began the very next day when, encountering high winds in the Gulf of Mexico, she began to. lose her sails. The winds increased to hurricane force until by April 19 she had been practically stripped of her sails. She then put about and staggered back to the coast, arriving at Galveston on April 23, where she laid by awaiting new sails. There is no evidence that in this experience the hull of the sehooner had become unseaworthy. Indeed, no one seems to have thought anything about it; at least there is no evidence that she leaked during the gulf storm, or that loose planking or loose caulking was discovered after her return to port or that, except her sails, any repairs were needed or made, or that her cargo had been damaged. So, we find that when starting on her voyage a second time she was seaworthy.
Having received her sails, the sehooner made her second start on May 15 and proceeded through the Gulf without incident. But on June 21, when in the Atlantic Ocean, she encountered another storm rising to the force of a gale or hurricane. Again the schooner lost her sails. During seven days of pounding, she shipped much water, her deck seams and butts opened and let water into the hold, the steam pump refused to work for a time and the hand pumps did not keep the water from "the cargo, with the result that it suffered the damage of which the libellant complains.
Having found from the evidence that the schooner was seaworthy when first she sailed and, from the same evidence confirmed by the fact that she weathered the gulf storm without known strain, that she was staunch and strong when next she put to sea, it is evident the behavior of her hull in the ocean storm arose from something which occurred after she was well on her voyage. There is no evidence that anything had happened before the storm which contributed to the damage to the ship and her cargo. It follows that it must have been the storm to which the hull yielded. Was, therefore, the storm a “peril of the sea” within the exception of the charter party? This is always a troublesome question because a peril of the sea is not susceptible of a satisfactory, or comprehensive, definition. A storm may or may not be such a peril. The test, however, seems to be — at least it is the one we shall apply in this instance — that when a storm is of Such unusual violence that it cannot reasonably be anticipated and avoided or cannot be resisted by ordinary exertions of skill and prudence and when it has caused unusual and unexpected damage to the hull of a seaworthy vessel resulting in damage to her cargo, the loss may fairly be attributed to a peril of the sea and falls within the exception of the charter party. The Warren Adams (C. C. A.) 74 F. 413; Id., 163 U. S. 679, 16 S. Ct. 1199, 41 L. Ed. 316; The Frey (C. C. A.) 106 F. 319; The Folmina, 212 U. S. 354, 29 S. Ct. 363, 53 L. Ed. 546,15 Ann. Cas. 748; The Newport News (D. C.) 199 F. 968; 24 R. C. L. 1314. And such we are constrained to hold was the case in this marine disaster.
But the owner’s warranty of seaworthiness extends to the ship’s equipment and the owner’s duty to make her seaworthy also extends to her equipment. This rule, clearly recognized by the parties, appears in the averments of both the libel and answer. Of her- equipment that did not withstand the ocean storm were her sails. As most of these were new when she encountered that storm we imagine the libellant does not hopefully charge unseaworthiness or negligence in respect to them. It does, however, very earnestly charge unseaworthiness in respeet to the steam pump, a vital part of a ship’s equipment, saying that, “At no time on the voyage could the steam pump be made to' work.”
So, as in case of the hull, we must examine the pump at the inception of the voyage and at the time of the storm.
There is no evidence as to the condition of the steam pump on April 13 when the schooner first put to sea other than the favorable inference from the survey and classification made by the American Bureau of Shipping immediately before and testimony as to her seaworthiness in general. Entries in the ship’s log on four days before and during the gulf storm show “Lights and pumps attended to.” There are no entries or other evidence that the steam pump would not work during the gulf storm or after the schooner returned to port. It is fair to assume that on her second start the pump was in the condition the log seems to have recorded.
On the first day of the ocean storm the log shows: “Steam pump broke down.” It also discloses that on June 22, 23, 24, 27, 28 and 29 the crew worked the hand pumps. The log does not reveal when, if ever, the steam pump was repaired. In the master’s protest, however, there is an entry: “Steam pump failed to work and vessel’s pumps were worked by hand until repairs were made on steam pump.” This contradicts to some extent the libellant’s statement that “At no time on the voyage could the steam pump be made to work.” That statement is also contradicted by the cook who testified that the steam pump “choked and they cleared it.”
“Q. How long did it take to clear it? A. Didn’t take long, about an hour or two, and it was dear.
“Q. Then did your steam pump operate on the voyage after that? A. Yes, sir; our steam pump operates all times. It would be ninety days, God knows where we would have been if the pump wasn’t going.”
Yet, truly, her steam pump did not work for a time. This was because of a defect in equipment which so far as the record shows was not there before the storm. What caused it ? In the absence of evidence indicating any other probable cause we must hold it was the storm. Being violent enough to rip the sails and damage the hull we are constrained to hold that it was, equally in respect to the pump, a peril of the sea within the exception of the charter party.
The decree of the court dismissing the libel is affirmed.
Question: Did one or more individuals or groups seek to formally intervene in the appeals court consideration of the case?
A. no intervenor in case
B. intervenor = appellant
C. intervenor = respondent
D. yes, both appellant & respondent
E. not applicable
Answer:
|
songer_direct1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
BLANCH et al. v. CORDERO, Auditor, et al.
No. 4451.
United States Court of Appeals First Circuit.
March 22, 1950.
Arturo O’Neill, Hato Rey, P. R., for appellants.
Melvin Richter, Attorney, Department of Justice, Washington, D. C. (H. G. Morison, Assistant Attorney General, Paul A. Sweeney and Richard P. Williams, III, Attorneys, Department of Justice, Mastín G. White, Solicitor, Department of the Interior, Irwin W. Silverman, Chief Counsel, Division of Territories and Island Possessions, Department of the Interior, and Shirley Ecker Boskey, Attorney, Department of the Interior, all of Washington, D. C., on the brief), for appellees.
MAGRUDER, Chief Judge, and MARIS (by special assignment) and WOODBURY, Circuit Judges.
WOODBURY, Circuit Judge.
This is an appeal from a judgment of the Supreme Court of Puerto Rico affirming a judgment of the District Court for the Judicial District of San Juan dismissing a complaint praying for the issuance of a writ of mandamus directed to the insular Auditor and the insular Treasurer. The plaintiffs allege that they were all officers or employees of the People of Puerto Rico on July 1, 1932, whose salaries were specified in the budget bill enacted by the Legislature of Puerto' Rico for the fiscal year beginning on July 1, 1932 and ending on June 30, 1933; and that their salaries as so specified were reduced by the governor of Puerto Rico and they were paid the salaries as so reduced for the above fiscal year. The object of these proceedings, which were instituted on June 16, 1947, is to recover the difference between the salaries as originally provided in the budget bill and the reduced salaries actually paid on the ground that the governor is without authority under the Organic Act to reduce any item of appropriation of money made by the legislature.
Section 34 of the Organic Act, 39 Stat. 960, 961, 48 U.S.C.A. § 822 et seq., after provisions with respect to the enactment of legislation and the veto power, provides: “If any bill presented to the governor contains several items of appropriation of money, he may object to one or more of such items, or any part or parts, portion or portions thereof, while approving of the other portion of the bill.”
It is contended that this language, while giving the governor power to eliminate or strike any item or part or portion of an appropriation bill, does not give the governor the power to' scale down or reduce any item of appropriation of money made by the legislature. The contention rests upon a detailed grammatical analysis of the language employed. It is said that the word “thereof” is defined in the dictionaries as meaning “of that” or “of it”, wherefore it must refer to an antecedent in a singular form, and the only antecedent in that form in the sentence under consideration is the word “bill”. Thus it is said that the language of the Organic Act quoted above should be read as authorizing the governor to veto any item or items, or any part or parts, portion or portions of the. bill, but not as authorizing him to veto any part or parts, portion or portions of an item in the bill.
The contention that the .word “thereof” has reference to the word “bill” in the first part of the sentence quoted above, instead of to the word “items” repeated therein twice subsequently, was rejected after full consideration by the Supreme Court of Puerto Rico in De la Rosa v. Winship, 47 P.R.R. 312, and again in Leon v. Fitzsimmons, 61 P.R.R. 340. And in the latter case on appeal, Fitzsimmons v. Leon, 1 Cir., 141 F.2d 886, 888, this court brushed it aside in a dictum in the course of holding that the power to object to an item in a general appropriation bill did not confer power to reduce the amount of the salary set for an insular official in antecedent legislation establishing his office. We now reject the contention categorically.
It may be that “thereof” usually refers to a singular antecedent, but we are not aware that its reference must always be to such an antecedent. At any rate we see no grammatical objection to the use of the word as referring to a plural, and indeed in Commonwealth v. Bralley, 3 Gray. 456, 69 Mass. 456, it was construed by the Supreme Judicial Court of Massachusetts (Shaw, C. J.), apparently without thought of any. grammatical impediment, as having ■ reference to “spirituous or intoxicating liquors” in a statute making it a crime to sell such commodities “without being duly appointed or authorized.”
Furthermore statutes are to be construed primarily with an eye to the legislative intent, rather than with an eye primarily to the niceties and refinements of English grammar, and so construing the sentence we think that Congress clearly meant to empower the insular governor to scale down, as well as to reject altogether, any item in a money bill. Certainly the sentence so reads at first glance, as the appellant concedes, and this ordinary reading is reinforced by legislative history, for it appears that as the Act was originally introduced it gave the governor power merely to object to “one or more of such items,” but that it was amended on the floor of the Senate to its present phraseology by the insertion after the word “items” of the words “or any part or parts, portion or portions thereof.” 54 Cong.Rec. 2256. There is no illuminating discussion of this amendment available, but the amendment is meaningless surplusage unless it was intended to give power to veto a part or portion of an item, in other words to reduce it, as well as to strike it out altogether. Power to veto, parts or portions of an appropriation bill adds nothing to the power to veto any or all of its individual items. Perhaps the amendment might be construed as adding power to veto generally entire sections or subdivisions of an appropriation bill, if such a bill should be subdivided into parts or portions, but we do not think this meaning could have been intended, for the Organic Act does not require that budget bills shall be subdivided into parts and portions. Indeed it does not in any way .specify the form in which general appropriation bills shall be cast. It merely provides in § 34, supra, that “The governor shall submit at the opening of each regular session of the legislature a budget of receipts and expenditures, which shall be the basis of the ensuing biennial appropriation bill”, and that such bills shall originate in the house of representatives and shall embrace only appropriations for the ordinary expenses of the three basic departments of the government, interest on the public debt, and appropriations for public schools.
The foregoing considerations leave no doubt in our minds that under the Organic Act the governor has the power to reduce, as well as to strike, items in an appropriation bill.
Moreover, the question of laches has been decided adversely to the plaintiffs by both insular courts and we see no reason to disturb this conclusion of local law on the ground that it is “inescapably wrong” or “patently erroneous.”
The judgment of the Supreme Court of Puerto Rico is affirmed.
. The contention was advanced in both courts below, but has been abandoned on this appeal, that for reasons we need not detail no valid budget bill for the fiscal year 1932-1933 was ever enacted, with the result that the salaries of the plaintiffs as fixed in the preceding budget bill should have been paid pursuant to the provision of § 34 of the Organic Act, infra, to the effect that “If at the termination of any fiscal year the appropriations necessary for the support of the government for the ensuing fiscal year shall not have been made, the several sums appropriated in the last appropriation bills for the objects and purposes therein specified, so far as the same may be applicable, shall be deemed to be re-appropriated item by item; and until the legislature shall act in such behalf the treasurer may, with the advice of the governor, make the payments necessary for the purposes aforesaid.”
. We are told that the Supreme Court of Puerto Rico rejected it a third time in the recent case of Ferrao v. Cordero, 67 P.R.R. -, not yet translated into English.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
sc_caseorigin
|
160
|
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.
WARREN TRADING POST CO. v. ARIZONA TAX COMMISSION et al.
No. 115.
Argued March 9, 1965.
Decided April 29, 1965.
Edward, Jacobson argued the cause and filed briefs for appellant.
Philip M. Haggerty, Assistant Attorney General of Arizona, argued the cause for appellees. tVith him on the brief were Robert W. Pickrell, Attorney General, and Walter O. Holm, Assistant Attorney General.
Briefs of amici curiae, urging reversal, were filed by Solicitor General Cox and Roger P. Marquis for the United States; by.Arthur Lazarus, Jr., and Royal D. Marks for the Association on American Indian Affairs, Inc., et al.; by Norman M. Littell and Leland O. Graham for the Navajo Tribe of Indians, and by Edward B. Berger for the Papago Tribe.
Mr. Justice Black
delivered the opinion of the Court.
Arizona has levied a tax of 2% on the “gross proceeds of sales, or gross income” of appellant Warren Trading Post Company, which does a retail trading business with Indians on the Arizona part of the Navajo Indian Reservation under a license granted by the United States Commissioner of Indian Affairs pursuant to 19 Stat. 200, 25 U. S. C. § 261 (1958 ed.). Appellant claimed that as applied to its income from trading with reservation Indians on the reservation the state tax was invalid as (1) in violation of Art. I, § 8, cl. 3, of the United States Constitution, which provides that “Congress shall have Power ... To regulate Commerce . . . with the Indian Tribes”; (2) inconsistent with the comprehensive congressional plan, enacted under authority of Art. I, § 8, to regulate Indian trade and traders and to have Indian tribes on reservations govern themselves. The State Supreme Court rejected these contentions and upheld the tax, one Justice dissenting. 95 Ariz. 110, 387 P. 2d 809. The case is properly here on appeal under 28 U. S. C. § 1257 (2) (1958 ed.). Since we hold that this state tax cannot be imposed consistently with federal statutes applicable to the Indians on the Navajo Reservation, we find it unnecessary to consider whether the tax is also barred by that part of the Commerce Clause giving Congress power to regulate commerce with the Indian tribes.
The Navajo Reservation was set apart as a “permanent home” for the Navajos in a treaty made with the “Navajo nation or tribe of Indians” on June 1, 1868. Long before that, in fact from the very first days of our Government, the Federal Government had been permitting the Indians largely to govern themselves, free from state interference, and had exercised through statutes and treaties a sweeping and dominant control over persons who wished to trade with Indians and Indian tribes. As Chief Justice John Marshall recognized in Worcester v. Georgia, 6 Pet. 515, 556-557:
“From the commencement of our government, congress has passed acts to regulate trade and intercourse with the Indians; which treat them as nations, respect their rights, and manifest a firm purpose to afford that protection which treaties stipulate.”
He went on to say that:
“The treaties and laws of the United States contemplate the Indian territory as completely separated from that of the states; and provide that all intercourse with them shall be carried on exclusively by the government of the union.” Id., at 557,
See also, e. g., United States v. Forty-three Gallons of Whiskey, 93 U. S. 188. In the very first volume of the federal statutes is found an Act, passed in 1790 by the first Congress, “to regulate trade and intercourse with the Indian tribes,” requiring that Indian traders obtain a license from a federal official, and specifying in detail the conditions on which such licenses would be granted.
Such comprehensive federal regulation of Indian traders has continued from that day to this. Existing statutes make specific restrictions on trade with the Indians, and one of them, passed in 1876 and tracing back to comprehensive enactments of 1802 and 1834, provides that the Commissioner of Indian Affairs shall have “the sole power and authority to appoint traders to the Indian tribes” and to specify “the kind and quantity of goods and the prices at which such goods shall be sold to the Indians.” Acting under authority of this statute and one added in 1901, the Commissioner has promulgated detailed regulations prescribing in the most minute fashion who may qualify to be a trader and how he shall be licensed; penalties for acting as a trader without a license; conditions under which government employees may trade with Indians; articles that cannot be sold to Indians; and conduct forbidden on a licensed trader’s premises. He has ordered that detailed business records be kept and that government officials be allowed to inspect these records to make sure that prices charged are fair and reasonable; that traders pay Indians in money; that bonds be executed by proposed licensees; and that the governing body of an Indian reservation may assess from a trader “such fees, etc., as it may deem appropriate.” It was under these comprehensive statutes and regulations that the Commissioner of Indian Affairs licensed appellant to trade with the Indians on the Navajo Reservation. These apparently all-inclusive regulations and the statutes authorizing them would seem in themselves sufficient to show that Congress has taken the business of Indian trading on reservations so fully in hand that no room remains for state laws imposing additional burdens upon traders. In fact, the Solicitor’s Office of the Department of the Interior in 1940 and again in 1943 interpreted these statutes to bar States from taxing federally licensed Indian traders on their sales to reservation Indians on a reservation. We think those rulings were correct.
Congress has, since the creation of the Navajo Reservation nearly a century ago, left the Indians on it largely free to run the reservation and its affairs without state control, a policy which has automatically relieved Arizona of all burdens for carrying on those same responsibilities. And in compliance with its treaty obligations the Federal Government has provided for roads, education and other services needed by the Indians. We think the assessment and collection of this tax would to a substantial extent frustrate the evident congressional purpose of ensuring that no burden shall be imposed upon Indian traders for trading with Indians on reservations except as authorized by Acts of Congress or by valid regulations promulgated under those Acts. This state tax on gross income would put financial burdens on appellant or the Indians with whom it . deals in addition to those Congress or the tribes have prescribed, and could thereby disturb and disarrange the statutory plan Congress set up in order to protect Indians against prices deemed unfair or unreasonable by the Indian Commissioner. And since federal legislation has left the State with no duties or responsibilities respecting the reservation Indians, we cannot believe that Congress intended to leave to the State the privilege of levying this tax. Insofar as they are applied to this federally licensed Indian trader with respect to sales made to reservation Indians on the reservation, these state laws imposing taxes cannot stand. Cf. Rice v. Santa Fe Elevator Corp., 331 U. S. 218. The judgment of the Supreme Court of Arizona is reversed and the cause remanded for further proceedings npt inconsistent with this opinion.
Reversed and remanded.
Ariz. Rev. Stat. §§ 42-1309, 42-1312. The tax is applicable to “every person engaging or continuing within this state in the business of selling any tangible personal property whatever at retail,” with stated exceptions. Ariz. Rev. Stat. § 42-1312. Appellant’s challenge to these statutes is limited to the State’s attempt to apply them to gross income from sales made on the reservation to reservation Indians.
15 Stat. 667.
Arizona was admitted to the Union on its agreement that
“the people inhabiting said proposed State do agree and declare that they forever disclaim all right and title to . . . all lands lying within said boundaries owned or held by any Indian or Indian tribes, the right or title to which shall have been acquired through or from the United States or any prior sovereignty, and that until the title of such Indian or Indian tribes shall have been extinguished the same shall be and remain subject to the disposition and under the absolute jurisdiction and control of the Congress of the United States . . . Act of June 20, 1910, 36 Stat. 557, 569. See also Act of Aug. 21, 1911, 37 Stat. 39.
Certain state laws have been permitted to apply to activities on Indian reservations, where those laws are specifically authorized by acts of Congress, or where they clearly do not interfere with federal policies concerning the reservations. See Organized Village of Kake v. Egan, 369 U. S. 60, 72-75; Williams v. Lee, 358 U. S. 217, 219-221; Thomas v. Gay, 169 U. S. 264; Utah & N. R. Co. v. Fisher, 116 U. S. 28, 31-32. Compare, e. g., 18 U. S. C. § 1161 (1958 ed.) (permitting application of state liquor law standards within an Indian reservation under certain conditions); 45 Stat. 1185, as amended, 25 U. S. C. § 231 (1958 ed.) (permitting application of state health and education laws within a reservation under certain conditions); 18 U. S. C. § 1162 .(1958 ed.) and 28 U. S. C. § 1360 (1958 ed.) (respectively granting certain States criminal and civil jurisdiction over offenses and causes of action involving Indians within specified Indian reservations).
In 1778, in its first treaty with an Indian tribe, the United States promised to provide for the Delaware Nation
“a well-regulated trade, under the conduct of an intelligent, candid agent, with an adequate sallery, one more influenced by the love of his country, and a constant attention to the duties of his department by promoting the common interest, than the sinister purposes of converting and binding all the duties of his office to his private emolument Treaty of Sept. 17, 1778, Art. V, 7 Stat. 13, 14.
Similar provisions were found in other early treaties, concluded before the first Congress legislated on the subject of Indian trade. See United States Department of the Interior, Federal Indian Law 96 (hereafter cited as Federal Indian Law). In 1871 Congress forbade future treaties with the Indian tribes but left the obligations of existing treaties unimpaired. 16 Stat. 544, 566, now 25 U. S. C. § 71 (1958 ed.).
Act of July 22, 1790, 1 Stat. 137.
See generally Federal Indian Law 94 — 138, 373-381.
E. g., 4 Stat. 729, now 25 U. S. C. § 263 (1958 ed.) (empowering the President in the public interest to forbid introduction of any or all goods into the territory of a tribe, and to revoke and refuse all licenses to trade with that tribe); 4 Stat. 729, as amended, now 25 U. S. C. § 264 (1958 ed.) (establishing penalties for trading without a license and forbidding traders to hire white persons as clerks unless licensed to do so); 18 U. S. C. § 3113 (1958 ed.) (forbidding unlawful introduction of liquor into Indian country and providing for revocation of the license of any trader violating this prohibition).
Act of March 30, 1802, 2 Stat. 139.
Act of June 30, 1834, 4 Stat. 729.
19 Stat. 200, 25 U. S. C. § 261 (1958 ed.), provides:
“The Commissioner of Indian Affairs shall have the sole power and authority to appoint traders to the Indian tribes and to make such rules and regulations as he may deem just and proper specifying the kind and quantity of goods and the prices at which, such goods shall be sold to the Indians.”
31 Stat. 1066, as amended, 25 U. S. C. § 262 (1958 ed.), provides:
“Any person desiring to trade with the Indians on any Indian reservation shall, upon establishing the fact, to the satisfaction of the Commissioner of Indian Affairs, that he is a proper person to engage in such trade, be permitted to do so under such rules and regulations as the Commissioner of Indian Affairs may prescribe for the protection of said Indians.”
25 CFR §§251.9, 252.6, 251.3, 252.3, 251.5, 251.8, 251.18, 251.19, 251.21, 252.15.
25 CFR §§252.7, 251.22, 251.24, 251.10, 252.9, 252.27c. See generally 25 CFR §§ 251, 252.
These statutes and regulations apply only to activities on reservations. See Taylor v. United States, 44 F. 2d 531 (C. A. 9th Cir.), cert. denied, 283 U. S. 820; 57 I. D. 124, 125.
57 I. D. 124.
58 I. D. 562.
Since 1950 Congress has authorized expenditure of over $100,-000,000 as part of an extensive plan to rehabilitate the Navajo and Hopi tribes of Arizona. 64 Stat. 44, as amended, 25 U. S. C. §§631-640 (1958 ed.). Detailed accounts of the ways in which the Federal Government has aided and supported the Navajos and other tribes may be found in Secretary of the Interior, Annual Report, 1963, pp. 11-47; id., 1962, pp. 7-44; id., 1961, pp. 277-318. See also Federal Indian Law 268-306; Young, The Navajo Yearbook, Report No. viii, 1951-1961, A Decade of Progress (1961).
The Buck Act, now 4 U. S. C. §§ 105-110 (1964 ed.), in which Congress permitted States to levy sales or use taxes within certain federal areas, has been interpreted by what appears to be the only court to consider the question before this ease, and by the Interior Department, as not applying to Indian reservations. Your Food Stores, Inc. v. Village of Espanola, 68 N. M. 327, 334, 361 P. 2d 950, 955-956; 58 I. D. 562. Cf. 4 U. S. C. § 109 (1964 ed.), excepting taxes on Indians from the scope of the Act. We think that interpretation was correct. See S. Rep. No. 1625, 76th Cong., 3d Sess., 2, 3. Moreover, we hold that Indian traders trading on a reservation with reservation Indians are immune from a state tax like Arizona’s, not simply because those activities take place on a reservation, but rather because Congress in the exercise of its power granted in Art. I, § 8, has undertaken to regulate reservation trading in such a comprehensive way that there is no room for the States to legislate on the subject. Cf. Surplus Trading Co. v. Cook, 281 U. S. 647, 651. Even assuming that the Arizona tax here is of a kind to which the Buck Act applies, nothing whatever in that Act suggests to us that Congress meant to give States new power to tax federally licensed Indian traders. See 58 I. D. 562.
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_state
|
31
|
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".
UNITED STATES of America, Appellant, v. Lowell BROWN.
No. 88-5363.
United States Court of Appeals, Third Circuit.
Argued Oct. 17, 1988.
Decided Dec. 15, 1988.
Rehearing and Rehearing In Banc Denied Jan. 12, 1989.
Samuel A. Alito, U.S. Atty., Marion Per-cell (argued), Asst. U.S. Atty., Newark, N.J., for appellant.
David E. Schafer (argued), Asst. Federal Public Defender, Trenton, N.J., for appel-lee.
Before STAPLETON, SCIRICA and COWEN, Circuit Judges.
OPINION OF THE COURT
COWEN, Circuit Judge.
The United States appeals the order of the district court acquitting defendant Lowell Brown (“Brown”) of knowingly receiving child pornography in violation of 18 U.S.C. § 2252 (1986). Brown was found guilty by a jury on February 18,1988. The district court thereafter granted his motion for a judgment of acquittal pursuant to Fed.R.Crim.P. 29(c) on April 19, 1988.
We determine that the district court erred in its construction of the statute. We also conclude that the evidence, when viewed in the light most favorable to the United States, supports the jury’s verdict. Accordingly, we will vacate the order of acquittal, reinstate the jury verdict of guilty, and remand the matter to the district court for sentencing.
I.
As part of a sting operation named “Project Looking Glass,” the United States Postal Inspection Service in the spring of 1986 sent letters to certain individuals identified as being interested in child pornography. These individuals’ names had appeared on lists compiled from investigations by the Postal Inspection Service and the United States Customs Service, and from information provided by state and local police. The letters were sent by a sham company dubbed Far Eastern Trading Corporation (“Far Eastern”), which purported to be based overseas and to deal in child pornography. The letters stated that “we have devised a method of getting these [child pornography materials] to you without prying eyes of U.S. Customs seizing your mail,” and invited the recipients to respond for further information. App. at 166.
One such letter was sent to Brown. In order to obtain further information, he provided his name and address on a coupon attached to the letter, signed it, and returned it to the address given in the letter. Far Eastern responded with a letter to Brown stating that its catalogue would be available in the fall of 1986, and also that it would be producing its own child pornography publication. In December 1986, Brown wrote inquiring about the delay and requesting a catalogue. At about the same time, a catalogue was sent to him.
The catalogue had been compiled by a postal inspector. It contained the same descriptions of movies, videotapes, and magazines which had actually been used by the child pornography distributors in their own catalogues. It was accompanied by a letter containing ordering instructions. Because the Postal Inspection Service did not expect to actually sell anything from the catalogue, the letter instructed the purchaser to order materials COD rather than to send money. In addition, because the Postal Inspection Service was seeking people who were interested in submitting, as well as receiving child pornography, another letter accompanying the catalogue described a magazine which Far Eastern planned to publish, and offered preference to any individual who sent materials to Far Eastern. There is no dispute that the cat-alogue describes pornographic materials involving children and that the materials described in the catalogue constitute child pornography.
On the same day he received the cat-alogue, Brown wrote back to Far Eastern. Relevant excerpts of that letter include the following:
I would like to enter a business relationship for priority service, but I do not currently have the necessary material you require. Hopefully, by summer 1987 I will have something to offer. However, I would still very much appreciate your considering me as a customer. But in the interest of establishing as safe an exchange system as possible, allow me to explain my situation. Three years ago I had a problem with U.S. Customs though nothing legal ever developed. For a short time (6 months) some of my mail was opened, especially cartons or boxes. However over the last two years I have ordered adult materials ... through the mails with no problems whatsoever.... I am interested in your “Teen Sex Video” series (all 3 titles). While I am not concerned with receiving mainstream adult videos C.O.D., I would be concerned at receiving this video series C.O.D. because might it not attract more attention than if it were pre-payed.
[I]f you accept me as a customer, would you take prepayment.
I would appreciate your reply & opinion. I would have written you sooner.... [But] ... I wanted to wait to see if you really had what I wanted.
App. at 173-75. In a postscript Brown asked, “[i]f I were to buy films from you,” whether he would be permitted to transfer films to videotape and return the films for partial credit against future orders. App. at 175.
The videotapes that Brown requested were three tapes in the “Teen Sex” series, a well-established child pornography series featuring pubescent children, as opposed to completely undeveloped younger children. The Postal Inspection Service had not planned to ship any of the items in the catalogue, and did not have the tapes which Brown requested. After receiving Brown’s letter in January 1987, however, it decided to turn “Project Looking Glass” into a reverse sting operation in which materials would be sold to the individuals who placed orders. The Postal Inspection Service then prepared a revised catalogue containing only those items which it had in stock as a result of previous seizures of materials.
In February 1987, Far Eastern wrote its customers indicating that the company had suffered a seizure of its materials in Central America. In March 1987, Far Eastern mailed the revised catalogue. By June 1987, Brown had not responded to either the February or the March mailings from Far Eastern, and the Postal Inspection Service decided to attempt to fill Brown’s initial request. Because the Postal Inspection Service did not have the “Teen Sex” series of videotapes, a videotape entitled “Preteen Trio” was sent to Brown instead. “Preteen Trio” had been included in the original cat-alogue Brown received, and it was chosen as the videotape most closely resembling the “Teen Sex” tapes which Brown requested.
The government applied for and was granted a search warrant based on probable cause that Brown would receive the “Preteen Trio” tape. On June 10, a postal inspector posed as a letter carrier and attempted to deliver the tape. The postal inspector knocked on Brown’s door, but no one answered. Later that day, the postal inspector placed in Brown’s mail slot a notice indicating that a package was being held at the post office for Brown, and that he could pick it up the next day, June 11. Brown failed to appear at the post office.
On the morning of June 12, 1987, a postal inspector again went to Brown’s house to deliver the “Preteen Trio” videotape to Brown, but no one answered. Later that day, the postal inspector returned to Brown’s house. This time, Brown answerr ed the door and accepted the package. The package bore the following return address: “Far Eastern Trading Co., LTD, P.O. Box 3071, Frederiksted, St. Croix, U.S. Virgin Islands.” Brown looked at the package and took it upstairs.
Fifteen minutes later, postal inspectors knocked on Brown’s door and executed the search warrant. The inspectors found the opened parcel containing “Preteen Trio”, as well as other pornographic videotapes in the house.
A postal inspector testified at trial that “Preteen Trio” and four other videotapes found in Brown’s home constituted child pornography. Portions of all five videotapes were shown at trial to allow the jury to determine whether the tapes constituted child pornography.
II.
The primary issue on this appeal is whether the district court’s construction of 18 U.S.C. § 2252(a)(2) is correct. Because this poses a pure question of law, our review is plenary. United States ex rel. Forman v. McCall, 776 F.2d 1156, 1161 (3d Cir.1985), cert. denied., 476 U.S. 1119, 106 S.Ct. 1981, 90 L.Ed.2d 663 (1986).
The indictment charges that Brown “did knowingly and willfully receive ‘Preteen Trio,’ a video tape ... which visually depicted and whose production involved the use of minors engaging in sexually explicit conduct” in violation of 18 U.S.C. § 2252(a)(2). That statute provides for the punishment of any person who:
knowingly receives, or distributes any visual depiction that has been transported or shipped in interstate or foreign commerce or mailed ... if—
(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and
(B) such visual depiction is of such conduct. ...
18 U.S.C. § 2252(a)(2). The district court agreed with the jury’s findings that Brown received the “Preteen Trio” videotape, that the tape constituted child pornography, and that when Brown received the tape he knew that it constituted child pornography.
The district court, however, found that Brown did not receive the “Preteen Trio” tape “knowingly”, because he had not ordered that tape, but instead had ordered three tapes in the “Teen Sex” series. The court concluded: “In short, the Government has not proven a knowing reception [sic] of the video he is charged with having received. Although Brown may have attempted to violate the statute, § 2252 contains no provision for an attempted receipt.” App. at 180-81. On appeal, the United States contends that the district court erred in reading the statute as requiring Brown to have known not merely that the package he received was child pornography, but also the specific contents of the videotape in the package — i.e., that it contained the “Preteen Trio” videotape.
The starting point of our analysis is the language of the statute. The relevant portion of section 2252 provides for the punishment of any person who “knowingly receives ... any visual depiction that has been ... mailed” if the depiction constitutes child pornography. 18 U.S.C. § 2252(a)(2) (emphasis added). The statute does not require that a recipient of child pornography know the precise contents of such materials. Rather, the statutory words “any visual depiction” compel the view that the recipient need only know that the material he receives is child pornography. The jury found and the district court agreed that Brown received the “Preteen Trio” tape knowing that it was child pornography. We hold, therefore, that the court erred in concluding Brown did not knowingly receive the “Preteen Trio” tape merely because it was not the same child pornography tape that he had requested.
We have found no case direetly on point with the facts of the present matter, nor has any been brought to our attention. The United States, however, has pointed to a number of narcotics cases to support its argument that it matters not whether Brown knew the particular piece of child pornography he received, as long as he knowingly received child pornography. In United States v. Kairouz, 751 F.2d 467 (1st Cir.1985), the defendant was charged with importation and possession of heroin, and his defense was that he believed he was carrying cocaine rather than heroin. The district court instructed the jury that if the defendant knew he carried a controlled substance, it was irrelevant that he mistakenly believed the substance to be cocaine. 751 F.2d at 468.
The Court of Appeals for the First Circuit in Kairouz approved the district court’s jury instruction, emphasizing that the statute in question prohibited intentional conduct regarding all listed controlled substances, including both heroin and cocaine. The Court stated: “What is of essence to establish [the intent] element of the offense is that the substance be controlled within the meaning of [the statute], not which one of the proscribed substances it happens to be.” Id. (emphasis in original).
The Court of Appeals for the Ninth Circuit has held likewise in several drug cases. See, e.g., United States v. Lopez-Martinez, 725 F.2d 471, 475 (9th Cir.), cert. denied, 469 U.S. 837, 105 S.Ct. 134, 83 L.Ed.2d 74 (1984) (“[Defendant] was charged with importing and possessing a controlled substance, heroin, and the evidence established ... that he did so. The evidence also established ... that he intended to import marihuana, which, like heroin, is a schedule I [controlled] substance. It was not necessary for the government to prove that he knew he was importing heroin_”); United States v. Jewell, 532 F.2d 697, 698 (9th Cir.) (in banc) (“[A] defendant who has knowledge that he possesses a controlled substance may have the state of mind necessary for conviction even if he does not know which controlled substance he possesses.”), cert. denied, 426 U.S. 951, 96 S.Ct. 3173, 49 L.Ed.2d 1188 (1976); United States v. Davis, 501 F.2d 1344, 1346 (9th Cir.1974) (per curiam) (“The government is not required to prove that the defendant actually knew the exact nature of the substance with which he was dealing.”).
This view has also been adopted by Courts of Appeals for the Second Circuit, see United States v. Morales, 571 F.2d 769, 776 (2d Cir.1978), the Fifth Circuit, see United States v. Rodriguez, 588 F.2d 1003, 1010 (5th Cir.1979), and the Eleventh Circuit, see United States v. Lewis, 676 F.2d 508, 512 (11th Cir.), cert. denied, 459 U.S. 976, 103 S.Ct. 313, 74 L.Ed.2d 291 (1982). Indeed, a district court has noted: “It is well settled that one who sells a controlled substance mistakenly believing that he is selling a different controlled substance is nonetheless guilty of the substantive offense of distributing the controlled substance he actually sells.” United States v. Betancourt, 594 F.Supp. 686, 690 (S.D.N.Y.1984).
The statutes construed in the drug cases above are strongly analogous to 18 U.S.C. § 2252, the child pornography statute. Both the drug statutes and the child pornography statute require specific knowledge or intent as to a general category of unlawful items, but not as to particular items within that category. The drug statutes prohibit the intentional importation, possession, and distribution of any controlled substance. The child pornography statute similarly prohibits the knowing receipt of any child pornography.
We find the courts’ reasoning in the drug cases persuasive in the instant case. To require proof that a defendant knew the specific contents of an item of child pornography finds no support in the language of section 2252. Nor is such a result supported by the policy of the statute, or by common sense. Although the tape constituting child pornography which Brown received was different from the child pornography tapes that he requested, he nonetheless “knowingly received” child pornography. We hold that the district court incorrectly construed the statute and erred in entering an order acquitting Brown.
III.
Brown also argues that there was insufficient evidence to support the guilty verdict in this case. Specifically, he argues that the government did not prove that he knowingly received child pornography because there was insufficient evidence to show that he ordered any videotape, and because there was insufficient evidence to show that the “Teen Sex” series tapes did in fact constitute child pornography. Our standard of review of a claim of insufficient evidence to support a guilty verdict is narrow. We must determine whether there is substantial evidence, when viewed in a light most favorable to the United States, to support the jury’s finding of guilt beyond a reasonable doubt. Government of Virgin Islands v. Williams, 739 F.2d 936, 940 (3d Cir.1984).
A.
Brown first contends that he did not knowingly receive child pornography because he did not order any tape from Far Eastern. Brown argues that because he did not order a tape, he could not have expected to receive one, and thus he could not have knowingly received a tape containing child pornography.
The district court determined that “[t]here was certainly sufficient evidence at trial to allow the jury to find that Brown was attempting to procure child pornography by placing an order for the ‘Teen Sex’ series.” App. at 180 (emphasis added). The court recognized, however, that section 2252 does not require proof that a defendant ordered child pornography, but merely that he knowingly received it. The court stated: “As noted, the criminal act is the reception [sic] of that material. Evidence of what was ordered is, nevertheless, certainly relevant to ascertaining the intent of the defendant receiving the material.” App. at 180.
We agree that evidence of Brown ordering the tape is helpful, but not required, in establishing that he intended to receive, and thus did knowingly receive, child pornography. We recognize several factors which might suggest that Brown did not in fact “order” the videotapes. First, the tentative, questioning letter from Brown to Far Eastern (stating “I am interested in your ‘Teen Sex Video’ series (all 3 titles)”) might be considered an inquiry rather than an order. Also, Brown did not respond to the next two communications from Far Eastern. Finally, Brown’s request for prepayment was never responded to, nor did the delivery man process the delivery COD.
Brown’s letter nonetheless could lead a reasonable finder of fact to conclude that Brown did order the videotapes. Thus, we agree with the district court that sufficient evidence was presented from which the jury could find that Brown ordered the tapes. However, because section 2252(a)(2) does not require proof that a defendant ordered child pornography, we need not resolve this issue. It is enough for the jury to find that Brown knowingly received child pornography, and the evidence was sufficient to allow the jury to make this finding. Brown’s knowing receipt was demonstrated by his strong interest in receiving child pornography, as evidenced by the collection of child pornography found in his home and his solicitation of child pornography as expressed in his letter and other correspondence with Far Eastern.
Further evidence of Brown’s knowing receipt of child pornography included testimony that Brown looked at the package when it was delivered to him. Brown contends that no evidence was introduced to show that he saw the return address label marked “Far Eastern Trading Co.” when he received the package. Appellee’s Brief at 14. To the contrary, strong circumstantial evidence exists which would indicate that Brown did see the address label. The postal inspector who delivered the package testified that Brown looked at the package briefly when it was handed to him. App. at 82. It would not be unreasonable for the jury to infer that, when Brown received and looked at the package, he noticed the return address which indicated that the package had been sent by Far Eastern.
Moreover, given that Brown had received three separate sets of correspondence, including two catalogues, from Far Eastern, and that he had responded to the first correspondence with a detailed and considered letter of his own, we think it is reasonable for the jury to infer that at the time Brown received the package he remembered Far Eastern as a purveyor of child pornography.
For the above reasons, we conclude that, when viewed in a light most favorable to the United States, substantial evidence exists to support the jury’s finding that Brown knowingly received child pornography-
B.
Brown’s second evidentiary argument is that insufficient evidence existed to show that the tapes in the “Teen Sex” series which he requested did in fact constitute child pornography. He argues, therefore, that he could not have “knowingly received” child pornography. The district court determined that “[tjhere was certain^ ly sufficient evidence at trial to allow the jury to find that Brown was attempting to 'procure child pornography by placing an order for the ‘Teen Sex’ series.” App. at 180 (emphasis added). Brown contends, however, that because the United States failed to show a videotape from the “Teen Sex” series, there was insufficient evidence from which the jury could find that the material that Brown requested was child pornography.
We find Brown’s argument unpersuasive. He correctly notes that the only tapes shown at trial were the “Preteen Trio” tape, received by Brown courtesy pf “Operation Looking Glass,” and the four additional child pornography tapes found at Brown’s home. However, “Teen Sex” was relevant only to the issue of Brown’s state of mind at the time he received the package from Far Eastern. Accordingly, the only relevant fact with respect to “Teen Sex” was what Brown believed it depicted. Brown’s understanding on that score came from the catalogue and, based on the cat-alogue’s description of “Teen Sex,” the jury was justified in concluding that Brown believed it depicted minors engaged in sexually explicit conduct.
IV.
We acknowledge this is a novel case because of the substitution of the videotape. Nonetheless, we find that under a proper construction of the statute, the substitution of one child pornography tape for another does not convert Brown’s conduct from knowing to unknowing receipt of child pornography. Moreover, the jury was free to make proper inferences from all the evidence, both direct and circumstantial, on the issue of Brown’s knowing receipt. Finally, the testimony of the postal inspector provided sufficient evidence from which the jury could, if it desired, find that the tapes which Brown requested did in fact constitute child pornography. When viewed in the light most favorable to the United States, substantial evidence exists to support the jury’s finding beyond a reasonable doubt that Brown knowingly received child pornography.
Accordingly, we will vacate the order of acquittal, reinstate the jury verdict of guilty, and remand the matter to the district court for sentencing.
. The Appendix references throughout this opinion refer to the Appendix of the Appellant. The initial letter from Far Eastern states in relevant part:
Dear Potential Friend:
As many of you know, much hysterical nonsense has appeared in the American media concerning "pornography" and what must be done to stop it from coming across your bor-ders_ We have read the comments of Mr. Van Rabb of your Customs Service concerning the efforts of his agents to find "children's pornography” and we find that many of you are denied a product because of that agency. After conversation with enlightened Americans, we have found that if material is given to your post without a Custom Inspection, a search warrant must be gotten in order to open your mail.
For those of you who have enjoyed youthful material from publishers such as COQ, Color Climax, Rodox and others, we have devised a method of getting these to you without prying eyes of U.S. Customs seizing your mail. All material that you order from our company will be sent to you through our branch office in the U.S. Virgin Islands. After consultation with American solicitors, we have been advised that once we have posted our material through your system, it cannot be opened for any inspection without authorization of a judge.
If you want further information, please complete the following coupon and disclaimer and post it to the listed addresses....
App. at 166. The disclaimer read: "I affirm that I am not a law enforcement officer or agent of the U.S. Government acting in an undercover capacity for the purpose of entrapping Far Eastern Trading Company, its agents or customers. I am 21 years of age.” Id.
. The catalogue sent to Brown offered selections in the form of eight millimeter film as well as videotape.
. In this opinion, for convenience we shall use the phrase "child pornography” to refer to material which meets the statutory description "any visual depiction” if “such visual depiction involves the use of a minor engaging in sexually explicit conduct" and “such visual depiction is of such conduct". 18 U.S.C. § 2252(a)(2).
. In United States v. Hale, 784 F.2d 1465 (9th Cir.), cert. denied, 479 U.S. 829, 107 S.Ct. 110, 93 L.Ed.2d 59 (1986), the defendant argued that "although he knew the general nature of the material, he did not know the actual contents.” Id. at 1471. There, the defendant had stipulated as to his intent to obtain child pornography, and the district court found sufficient evidence to support the conclusion that he had "knowingly received" such material. Id. The Court of Appeals for the Ninth Circuit affirmed the defendant’s conviction.
The Hale Court, however, did not specify whether it interpreted § 2252 as not requiring the defendant to know the specific contents of the child pornography he received; or, instead, whether the it simply determined that sufficient evidence existed for the district court to have found that the defendant did know the actual contents. Id. Moreover, because the defendant received the exact photographs which he had ordered, the Hale case did not address the issue of substituted child pornography materials.
. In addition, the district court correctly noted, app. at 179, that if an act is voluntary and intentional, then it has been performed knowingly. See, e.g., United States v. Rubio, 834 F.2d 442, 448 (5th Cir.1987); United States v. Jewell, 532 F.2d 697, 699 (9th Cir.), cert. denied, 426 U.S. 951, 96 S.Ct. 3173, 49 L.Ed.2d 1188 (1976).
. We find no difficulty with the admission into evidence of the child pornography found, along with "Preteen Trio”, in Brown’s home. Admission of this material was properly within the discretion of the district court, to show “proof of ... intent, ... knowledge, ... or absence of mistake or accident” under Fed.R.Evid. 404(b).
. We are not alone in rejecting challenges to the sufficiency of evidence regarding knowledge in cases involving receipt of child pornography. See, e.g., United States v. Marchant, 803 F.2d 174, 176-77 (5th Cir.1986); United States v. Hurt, 795 F.2d 765, 773-74 (9th Cir.1986), cert. denied, — U.S. -, 108 S.Ct. 69, 98 L.Ed.2d 33 (1987); United States v. Hale, 784 F.2d 1465, 1471 (9th Cir.), cert. denied, 479 U.S. 829, 107 S.Ct. 110, 93 L.Ed.2d 59 (1986).
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
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19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
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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
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51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
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sc_casedisposition
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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 identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss.
CSX TRANSPORTATION, INC. v. McBRIDE
No. 10-235.
Argued March 28, 2011
Decided June 23, 2011
Charles A. Rothfeld argued the cause for petitioner. With him on the briefs were Evan M. Tager, Dan Himrnel-farb, and James A. Bax.
David C. Frederick argued the cause for respondent. With him on the brief were Derek T. Ho, Brendan J. Crim-mins, Daniel G. Bird, Michael A. Gross, Lawrence M. Mann, John P. Kujawski, and Robert P. Marcus.
Daniel Saphire filed a brief for the Association of American Railroads as amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the American Association for Justice by Jeffrey R. White; for the American Train Dispatchers Association et al. by Harold A. Rogo and Clinton J. Miller III; and for Cheryl Campagno et al. by Michael F. Sturley, S. Scott Bluestein, John W. deGravelles, Ross Diamond, Richard J. Dodson, Kenneth H. Hooks III, Paul Edelman, John H. Hickey, Paul T. Hofmann, and Roger Vaughan.
William G. Jungbauer filed a brief for the Academy of Rail Labor Attorneys as amicus curiae.
Justice Ginsbueg
delivered the opinion of the Court, except as to Part III-A.
This case concerns the standard of causation applicable in cases arising under the Federal Employers' Liability Act (FELA or Act), 45 U. S. C. § 51 et seq. FELA renders railroads liable for employees’ injuries or deaths “resulting in whole or in part from [carrier] negligence.” § 51. In accord with the text and purpose of the Act, this Court’s decision in Rogers v. Missouri Pacific R. Co., 352 U. S. 500 (1957), and the uniform view of federal appellate courts, we conclude that the Act does not incorporate “proximate cause” standards developed in nonstatutory common-law tort actions. The charge proper in FELA cases, we hold, simply tracks the language Congress employed, informing juries that a defendant railroad caused or contributed to a plaintiff employee’s injury if the railroad’s negligence played any part in bringing about the injury.
Respondent Robert McBride worked as a locomotive engineer for petitioner CSX Transportation, Inc., which operates an interstate system of railroads. On April 12, 2004, CSX assigned McBride to assist oh a local run between Evansville, Indiana, and Mount Vernon, Illinois. The run involved frequent starts and stops to add and remove individual rail cars, a process known as “switching.” The train McBride was to operate had an unusual engine configuration: two “wide-body” engines followed by three smaller conventional cabs. McBride protested that the configuration was unsafe, because switching with heavy, wide-body engines required constant use of a hand-operated independent brake. But he was told to take the train as is. About ten hours into the run, McBride injured his hand while using the independent brake. Despite two surgeries and extensive physical therapy, he never regained full use of the hand.
Seeking compensation for his injury, McBride commenced a FELA action against CSX in the U. S. District Court for the Southern District of Illinois. He alleged that CSX was twice negligent: First, the railroad required him to use equipment unsafe for switching; second, CSX failed to train him to operate that equipment. App. 24a-26a. A verdict for McBride would be in order, the District Court instructed, if the jury found that CSX “was negligent” and that the “negligence caused or contributed to” McBride’s injury. Id., at 23a.
CSX sought additional charges that the court declined to give. One of the rejected instructions would have required “the plaintiff [to] show that... the defendant’s negligence was a proximate cause of the injury.” Id., at 34a. Another would have defined “proximate cause” to mean “any cause which, in natural or probable sequence, produced the injury complained of,” with the qualification that a proximate cause “need not be the only cause, nor the last or nearest cause.” Id., at 32a.
■ Instead, the District Court employed, as McBride requested, the Seventh Circuit’s pattern instruction for FELA cases, which reads:
“Defendant ‘caused or contributed to’ Plaintiff’s injury if Defendant’s negligence played a part — no matter how small — in bringing about the injury. The mere fact that an injury occurred does not necessarily mean that the injury was caused by negligence.” Id., at 31a.
For this instruction, the Seventh Circuit relied upon this Court’s decision in Rogers v. Missouri Pacific R. Co., 352 U. S. 500 (1957). The jury returned a verdict for McBride, setting total damages at $275,000, but reducing that amount by one-third, the percentage the jury attributed to plaintiff’s negligence. App. 29a.
CSX appealed to the Seventh Circuit, renewing its objection to the failure to instruct on “proximate cause.” Before the appellate court, CSX “maintain[ed] that the correct definition of proximate causation is a ‘direct relation between the injury asserted and the injurious conduct alleged.’ ” 598 F. 3d 388, 393, n. 3 (2010) (quoting Holmes v. Securities Investor Protection Corporation, 503 U. S. 258, 268 (1992)). A properly instructed jury, CSX contended, might have found that the chain of causation was too indirect, or that the engine configuration was unsafe because of its propensity to cause crashes during switching, not because of any risk to an engineer’s hands. Brief for Defendant-Appellant in No. 08-3557 (CA7), pp. 49-52.
The Court of Appeals approved the District Court’s instruction and affirmed the judgment entered on the jury’s verdict. Rogers had “relaxed the proximate cause requirement” in FELA cases, the Seventh Circuit concluded, a view of Rogers “echoed by every other court of appeals.” 598 F. 3d, at 399. While acknowledging that a handful of state courts “still applied] traditional formulations of proximate cause in FELA cases,” id., at 404, n. 7, the Seventh Circuit said it could hardly declare erroneous an instruction that “simply paraphrased] the Supreme Court's own words in Rogers,” id., at 406.
We granted certiorari to decide whether the causation instruction endorsed by the Seventh Circuit is proper in FELA cases. 562 U. S. 1060 (2010). That instruction does not include the term “proximate cause,” but does tell the jury defendant’s negligence must “pla[y] a part — no matter how small — in bringing about the [plaintiff’s] injury.” App. 31a.
II
A
The railroad business was exceptionally hazardous at the dawn of the 20th eentury. As we have recounted, “the physical dangers of railroading... resulted in the death or maiming of thousands of workers every year,” Consolidated Rail Corporation v. Gottshall, 512 U. S. 532, 542 (1994), including 281,645 casualties in the year 1908 alone, S. Rep. No. 432, 61st Cong., 2d Sess., 2 (1910). Enacted that same year in an effort to “shif[t] part of the human overhead of doing business from employees to their employers,” Gottshall, 512 U. S., at 542 (internal quotation marks omitted), FELA prescribes:
“Every common carrier by railroad... shall be liable in damages to any person suffering injury while he is employed by such carrier... for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier....” 45 U. S. C. § 51 (emphasis added).
Liability under FELA is limited in these key respects: Railroads are hable only to their employees, and only for injuries sustained in the course of employment. FELA’s language on causation, however, “is as broad as could be framed.” Urie v. Thompson, 337 U. S. 163, 181 (1949). Given the breadth of the phrase “resulting in whole or in part from the [railroad’s] negligence,” and Congress’ “humanitarian” and “remedial goal[s],” we have recognized that, in comparison to tort litigation at common law, “a relaxed standard of causation applies under FELA.” Gottshall, 512 U. S., at 542-543. In our 1957 decision in Rogers, we described that relaxed standard as follows:
“Under [FELA] the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought.” 352 U. S., at 506.
As the Seventh Circuit emphasized, the instruction the District Court gave in this case, permitting a verdict for McBride if “[railroad] negligence played a part — no matter how small — in bringing about the injury,” App. 31a, tracked the language of Rogers. If Rogers prescribes the definition of causation applicable under FELA, that instruction was plainly proper. See Patterson v. McLean Credit Union, 49.1 U. S. 164, 172 (1989) (“Considerations of stare decisis have special force in the area of statutory interpretation....”). While CSX does not ask us to disturb Rogers, the railroad contends that lower courts have overread that opinion. In CSX’s view, shared by the dissent, post, at 713-714, Rogers was a narrowly focused decision that did not touch, concern, much less displace common-law formulations of “proximate cause.”
Understanding this argument requires some background. The term “proximate cause” is shorthand for a concept: Injuries have countless causes, and not all should give rise to legal liability. See W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts § 42, p. 273 (5th ed. 1984) (hereinafter Prosser and Keeton). “What we... mean by the word ‘proximate,’” one noted jurist has explained, is simply this: “[B]ecause of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point.” Palsgraf v. Long Island R. Co., 248 N. Y. 339, 352, 162 N. E. 99, 103 (1928) (Andrews, J., dissenting). Common-law “proximate cause” formulations varied, and were often both constricted and difficult to comprehend. See T. Cooley, Law of Torts 73-77, 812-813 (2d ed. 1888) (describing, for example, prescriptions precluding recovery in the event of any “intervening” cause or any contributory negligence). Some courts cut off liability if a “proximate cause” was not the sole proximate cause. Prosser and Keeton §65, p. 452 (noting “tendency... to look for some single, principal, dominant, ‘proximate’ cause of every injury”). Many used definitions resembling those CSX proposed to the District Court or urged in the Court of Appeals. See supra, at 689-690 (CSX proposed key words “natural or probable” or “direct” to describe required relationship between injury and alleged negligent conduct); Prosser and Keeton § 43, pp. 282-283.
Drawing largely on Justice Souter’s concurring opinion in Norfolk Southern R. Co. v. Sorrell, 549 U. S. 158,173 (2007), CSX contends that the Rogers “any part” test displaced only common-law restrictions on recovery for injuries involving contributory negligence or other “multiple causes.” Brief for Petitioner 35 (internal quotation marks omitted). Rogers “did not address the requisite directness of a cause,” CSX argues, hence that question continues to be governed by restrictive common-law formulations. Brief for Petitioner 35.
B
To evaluate CSX’s argument, we turn first to the facts of Rogers. The employee in that case was injured while burning off weeds and vegetation that lined the defendant’s railroad tracks. A passing train had fanned the flames, which spread from the vegetation to the top of a culvert where the employee was standing. Attempting to escape, the employee slipped and fell on the sloping gravel covering the culvert, sustaining serious injuries. 352 U. S., at 501-503. A Missouri state-court jury returned a verdict for the employee, but the Missouri Supreme Court reversed. Even if the railroad had been negligent in failing to maintain a flat surface, the court reasoned, the employee was at fault because of his lack of attention to the spreading fire. Rogers v. Thompson, 284 S. W. 2d 467, 472 (1955). As the fire “was something extraordinary, unrelated to, and disconnected from the incline of the gravel,” the court felt “obliged to say [that] plaintiff's injury was not the natural and probable consequence of any negligence of defendant.” Ibid.
We held that the jury's verdict should not have been upset. Describing two potential readings of the Missouri Supreme Court’s opinion, we condemned both. First, the court erred in concluding that the employee’s negligence was the “sole” cause of the injury, for the jury reasonably found that railroad negligence played a part. Rogers, 352 U. S., at 504-505. Second, the court erred insofar as it held that the railroad’s negligence was not a sufficient cause unless it was the more “probable” cause of the injury. Id., at 505. FELA, we affirmed, did not incorporate any traditional common-law formulation of “proximate causation[,] which [requires] the jury [to] find that the defendant’s negligence was the sole, efficient, producing cause of injury.” Id., at 506. Whether the railroad’s negligent act was the “immediate reason” for the fall, we added, was “an irrelevant consideration.” Id., at 503. We then announced the “any part” test, id., at 506, and reiterated it several times. See, e. g., id., at 507 (“narro[w]” and “single inquiry” is whether “negligence of the employer played any part at all” in bringing about the injury); id., at 508 (FELA case “rarely presents more than the single question whether negligence of the employer played any part, however small, in the injury”).
Rogers is most sensibly read as a comprehensive statement of the FELA causation standard. Notably, the Missouri Supreme Court in Rogers did not doubt that a FELA injury might have multiple causes, including railroad negligence and employee negligence. See 284 S. W. 2d, at 472 (reciting FELA’s “in whole or in part” language). But the railroad’s part, according to the state court, was too indirect, not sufficiently “natural and probable,” to establish the requisite causation. Ibid. That is the very reasoning the Court rejected in Rogers. It is also the reasoning CSX asks us to resurrect.
Our understanding is informed by the statutory history and precedent on which Rogers drew. Before FELA was enacted, the “harsh and technical” rules of state common law had “made recovery difficult or even impossible” for injured railroad workers. Trainmen v. Virginia ex rel. Virginia State Bar, 377 U. S. 1,3 (1964). “[Dissatisfied with the [railroad’s] common-law duty,” Congress sought to “supplan[t] that duty with [FELA's] far more drastic duty of paying damages for injury or death at work due in whole or in part to the employer’s negligence.” Rogers, 352 U. S., at 507. Yet, Rogers observed, the Missouri court and other lower courts continued to ignore FELA’s “significan[t]” departures from the “ordinary common-law negligence” scheme, to reinsert common-law formulations of causation involving “probabilities,” and consequently to “deprive litigants of their right to a jury determination.” Id., at 507, 509-510. Aiming to end lower court disregard of congressional purpose, the Rogers Court repeatedly called the “any part” test the “single” inquiry determining causation in FELA cases. Id., at 507, 508 (emphasis added). In short, CSX’s argument that the Rogers standard concerns only division of responsibility among multiple actors, and not causation more generally, misses the thrust of our decision in that case.
Tellingly, in announcing the “any part... in producing the injury” test, Rogers cited Coray v. Southern Pacific Co., 335 U. S. 520 (1949), a decision emphasizing that FELA had parted from traditional common-law formulations of causation. What qualified as a “proximate” or legally sufficient cause in FELA cases, Coray had explained, was determined by the statutory phrase “resulting in whole or in part,” which Congress “selected... to fix liability” in language that was “simple and direct.” Id., at 524. That straightforward phrase, Coray observed, was incompatible with “dialectical subtleties” that common-law courts employed to determine whether a particular cause was sufficiently “substantial” to constitute a proximate cause. Id., at 523-524.
Our subsequent decisions have confirmed that Rogers announced a general standard for causation in FELA cases, not one addressed exclusively to injuries involving multiple potentially cognizable causes. The very day Rogers was announeed, we applied its “any part” instruction in a case in which the sole causation issue was the directness or foreseeability of the connection between the carrier’s negligence and the plaintiff’s injury. See Ferguson v. Moore-McCormack Lines, Inc., 352 U. S. 521, 523-524 (1957) (plurality opinion).
A few years later, in Gallick v. Baltimore & Ohio R. Co., 372 U. S. 108 (1963), we held jury findings for the plaintiff proper in a case presenting the following facts: For years, the railroad had allowed a fetid pool, containing “dead and decayed rats and pigeons,” to accumulate near its right-of-way; while standing near the pool, the plaintiff-employee suffered an insect bite that became infected and required amputation of his legs. Id., at 109. The appellate court had concluded there was insufficient evidence of causation to warrant submission of the ease to the jury. Id., at 112. We reversed, reciting the causation standard Rogers announced. 372 U. S., at 116-117, 120-121. See also Crane v. Cedar Rapids & Iowa City R. Co., 395 U. S. 164, 166-167 (1969) (contrasting suit by railroad employee, who “is not required to prove common-law proximate causation but only that his injury resulted fin whole or in part’ from the railroad’s violation,” with suit by nonemployee, where “definition of causation... [is] left to state law”); Gottshall, 512 U. S., at 543 (“relaxed standard of causation applies under FELA”).
In reliance on Rogers, every Court of Appeals that reviews judgments in FELA cases has approved jury instructions on causation identical or substantively equivalent to the Seventh Circuit’s instruction. Each appellate court has rejected common-law formulations of proximate cause of the kind CSX requested in this case. See supra, at 689-690. The current model federal instruction, recognizing that the “FELA causation standard is distinct from the usual proximate cause standard,” reads:
“The fourth element [of a FELA action] is whether an injury to the plaintiff resulted in whole or part from the negligence of the railroad or its employees or agents. In other words, did such negligence play any part, even the slightest, in bringing about an injury to the plaintiff?” 5 L. Sand et al., Modern Federal Jury Instructions-Civil ¶ 89.02, pp. 89-38, 89-40, and comment (2010) (hereinafter Sand).
Since shortly after Rogers was decided, charges of this order have been accepted as the federal model. See W. Mathes & E. Devitt, Federal Jury Practice and Instructions §84.12, p. 517 (1965) (under FELA, injury “is proximately caused by” the defendant’s negligence if the negligence “played any part, no matter how small, in bringing about or actually causing the injury”). The overwhelming majority of state courts' and scholars similarly comprehend FELA’s causation standard.
In sum, the understanding of Rogers we here affirm “has been accepted as settled law for several decades.” IBP, Inc. v. Alvarez, 546 U. S. 21, 32 (2005). “Congress has had [more than 50] years in which it could have corrected our decision in [Rogers] if it disagreed with it, and has not chosen to do so.” Hilton v. South Carolina Public Railways Comm’n, 502 U. S. 197, 202 (1991). Countless judges have instructed countless juries in language drawn from Rogers. To discard or restrict the Rogers instruction now would ill serve the goals of “stability” and “predictability” that the doctrine of statutory stare decisis aims to ensure. 502 U. S., at 202.
III
CSX nonetheless insists that proximate causation, as captured in the charge and definitions CSX requested, is a concept fundamental to actions sounding in negligence. The Rogers “any part” instruction opens the door to unlimited liability, CSX worries, inviting juries to impose liability on the basis of “but for” causation. The dissent shares these fears. Post, at 710-711, 719-720. But a half century’s ex-perienee with Rogers gives us little cause for concern: CSX’s briefs did not identify even one trial in which the instruction generated an absurd or untoward award. Nor has the dissent managed to uncover such a case. Post, at 717-718 (citing no actual case but conjuring up images of falling pianos and spilled coffee).
While some courts have said that Rogers eliminated the concept of proximate cause in FELA cases, we think it “more accurate... to recognize that Rogers describes the test for proximate causation applicable in FELA suits.” Sorrell, 549 U. S., at 178 (Ginsburg, J., concurring in judgment). That understanding was expressed by the drafters of the 1965 federal model instructions, see supra, at 698-699: Under FELA, injury “is proximately caused” by the railroad’s negligence if that negligence “played any part... in... causing the injury.” Avoiding “dialectical subtleties” that confound attempts to convey intelligibly to juries just what “proximate cause” means, see Coray, 385 U. S., at 524, the Rogers instruction uses the everyday words contained in the statute itself. Jurors can comprehend those words and apply them in light of their experience and common sense. Unless and until Congress orders otherwise, we see no good reason to tamper with an instruction tied to FELA’s text, long employed by lower courts, and hardly shown to be unfair or unworkable,
A
As we have noted, see supra, at 692-693, the phrase “proximate cause” is shorthand for the policy-based judgment that not all factual causes contributing to an injury should be legally cognizable causes. Prosser and Keeton explain: “In a philosophical sense, the consequences of an act go forward to eternity, and the causes of an event go back to the dawn of human events, and beyond.” §41, p. 264. To prevent “infinite liability,” ibid., courts and legislatures appropriately place limits on the chain of causation that may support recovery on any particular claim.
The term “proximate cause” itself is hardly essential to the imposition of such limits. It is a term notoriously confusing. See, e. g., id., §42, p. 273 (“The word ‘proximate’ is a legacy of Lord Chancellor Bacon, who in his time committed other sins.... It is an unfortunate word, which places an entirely wrong emphasis upon the factor of physical or mechanical closeness. For this reason ‘legal cause’ or perhaps even ‘responsible cause’ would be a more appropriate term.” (footnotes omitted)).
And the lack of consensus on any one definition of “proximate cause” is manifest. Id., § 41, p. 263. Common-law formulations include, inter alia, the “immediate” or “nearest” antecedent test; the “efficient, producing cause” test; the “substantial factor” test; and the “probable,” or “natural and probable,” or “foreseeable” consequence test. Smith, Legal Cause in Actions of Tort, 25 Harv. L. Rev. 103, 106-121 (1911); Smith, Legal Cause in Actions of Tort (Concluded), 25 Harv. L. Rev. 303, 311 (1912).
Notably, CSX itself did not settle on a uniform definition of the term “proximate cause” in this litigation, nor does the dissent. In the District Court, CSX requested a jury instruction defining “proximate cause” to mean “any cause which, in natural or probable sequence, produced the injury complained of.” App. 32a. On appeal, “CSX maintain[ed] that the correct definition... is a ‘direct relation between the injury asserted and the injurious conduct alleged/ ” 598 F. 3d, at 393, n. 3. Before this Court, CSX called for “a demonstration that the plaintiff’s injury resulted from the wrongful conduct in a way that was natural, probable, and foreseeable.” Tr. of Oral Arg. 9-10.
Lay triers, studies show, are scarcely aided by charges so phrased. See Steele 6; Thornburg, Jury Instructions: A Persistent Failure To Communicate, 67 N. C. L. Rev. 77, 88-92, 110 (1988) (85% of actual and potential jurors were unable to understand a pattern proximate-cause instruction similar to the one requested by CSX); Charrow & Charrow, Making Legal Language Understandable: A Psycholinguistic Study of Jury Instructions, 79 Colum. L. Rev. 1306, 1353 (1979) (nearly one-quarter of subjects misunderstood proximate cause to mean “approximate cause” or “estimated cause”). In light of the potential of “proximate cause” instructions to leave jurors at sea, it is not surprising that the drafters of the Restatement (Third) of Torts avoided the term altogether. See 1 Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 29 (2005) (confining liability to “harms that result from the risks that made the actor’s conduct tortious”); id., Comment b.
Congress, it is true, has written the words “proximate cause” into a number of statutes. But when the legislative text uses less legalistic language, e. g., “caused by,” “occasioned by,” “in consequence of,” or, as in FELA, “resulting in whole or in part from,” and the legislative purpose is to loosen constraints on recovery, there is little reason for courts to hark back to stock, judge-made proximate-cause formulations. See Smith, Legal Cause in Actions of Tort (Continued), 25 Harv. L. Rev. 223, 235 (1912).
B
FELA’s language is straightforward: Railroads are made answerable in damages for an employee’s “injury or death resulting in whole or in part from [carrier] negligence.” 45 U. S. C. § 51. The argument for importing into FELA’s text “previous judicial definitions or dicta” originating in non-statutory common-law actions, see Smith, Legal Cause in Actions of Tort (Continued), supra, at 235, misapprehends how foreseeability figures in FELA cases.
“[Reasonable foreseeability of harm,” we clarified in Gallick, is indeed “an essential ingredient of [FELA] negligence” 372 U. S., at 117 (emphasis added). The jury, therefore, must be asked, initially: Did the carrier “fai[l] to observe that degree of care which people of ordinary prudence and sagacity would use under the same or similar circumstances[?]” Id., at 118. In that regard, the jury may be told that “[the railroad’s] duties are measured by what is reasonably foreseeable under like circumstances.” Ibid. (internal quotation marks omitted). Thus, “[i]f a person has no reasonable ground to anticipate that a particular condition... would or might result in a mishap and injury, then the party is not required to do anything to correct [the] condition.” Id., at 118, n. 7 (internal quotation marks omitted). If negligence is proved, however, and is shown to have “played any part, even the slightest, in producing the injury,” Rogers, 352 U. S., at 506 (emphasis added), then the carrier is answerable in damages even if “the extent of the [injury] or the manner in which it occurred” was not “probable” or “foreseeable.” Gallick, 372 U. S., at 120-121, and n. 8 (internal quotation marks omitted); see 4 F. Harper, F. James, & O. Gray, Law of Torts §20.5(6), p. 203 (3d ed. 2007); 5 Sand 89-21.
Properly instructed on negligence and causation, and told, as is standard practice in FELA cases, to use their“common sense” in reviewing the evidence, see Tr. 205 (Aug. 19, 2008), juries would have no warrant to award damages in far out “but for” scenarios. Indeed, judges would have no warrant to submit such eases to the jury. See Nicholson v. Erie R. Co., 253 F. 2d 939, 940-941 (CA2 1958) (alleged negligence was failure to provide lavatory for female employee; employee was injured by a suitcase while looking for a lavatory in a passenger car; applying Rogers, appellate court affirmed lower court's dismissal for lack of causation); Moody v. Boston & Maine Corp., 921 F. 2d 1, 2-5 (CA1 1990) (employee suffered stress-related heart attack after railroad forced him to work more than 12 hours with inadequate breaks; applying Rogers, appellate court affirmed grant of summary judgment for lack of causation). See also supra, at 699-700 (Rogers has generated no extravagant jury awards or appellate court decisions).
In addition to the constraints of common sense, FELA’s limitations on who may sue, and for what, reduce the risk of exorbitant liability. As earlier noted, see supra, at 691, the statute confines the universe of compensable injuries to those sustained by employees, during employment. §51. Hence there are no unforeseeable plaintiffs in FELA cases. And the statute weeds out the injuries most likely to bear only a tenuous relationship to railroad negligence, namely, those occurring outside the workplace.
There is a real risk, on the other hand, that the “in natural or probable sequence” charge sought by CSX would mislead. If taken to mean the plaintiff’s injury must probably (“more likely than not”) follow from the railroad’s negligent conduct, then the force of FELA’s “resulting in whole or in part” language would be blunted. Railroad negligence would “probably” cause a worker’s injury only if that negligence was a dominant contributor to the injury, not merely a contributor in any part.
* * *
For the reasons stated, it is not error in a FELA case to refuse a charge embracing stock proximate-cause terminology. Juries in such cases are properly instructed that a defendant railroad “caused or contributed to” a railroad worker’s injury “if [the railroad’s] negligence played a part — no matter how small — in bringing about the injury.” That, indeed, is the test Congress prescribed for proximate causation in FELA cases. See supra, at 696, 700. As the courts below so held, the judgment of the U. S. Court of Appeals for the Seventh Circuit is
Affirmed.
Justice Thomas joins all but Part III-A of this opinion.
In Sorroll, tho Court hold that the causation standard was the same for railroad negligence and employee contributory negligence, but said nothing about what that standard should be. 549 U. S., at 164-165.
In face of Rogers’ repeated admonition that the “any part... in producing the injury” test was the single test for causation under FELA, the dissent speculates that Rogare waa oimply making a veiled reference to a particular form of modified comparative negligence, i. e., allowing plaintiff to prevail on showing that her negligence was “slight” while the railroad’s was “gross.” Post, at 713-714. That is not what Rogers conveyed. To repeat, Rogers instructed that “the test of a jury ease [under FELA] is simply whether... employer negligence played any part, even the slightest, in producing the injury.” 352 U. S., at 506.
The dissent, while recognizing “the variety of formulations” courts have employed to define “proximate cause,” post, at 707, does not say which of the many formulations it would declare applicable in FELA cases. We regard the phrase “negligence played a part — no matter how small,” see Rogers, 352 U. S., at 508, as synonymous with “negligence played any part, even the slightest,” see id., at 506, and the phrase “in producing the injury” as synonymous with the phrase “in bringing about the injury.” We therefore approve both the Seventh Circuit’s instruction and the “any part, even the slightest, in producing the injury” formulation. The host of definitions of proximate cause, in contrast, are hardly synonymous.
CSX and the dissent observe, corroctly, that some of our pre -Rogers decisions invoked common-law formulations of proximate cause. See, e. g., Brady v. Southern R. Co., 320 U. S. 476, 483 (1943) (injury must be “the natural and probable consequence of the negligence” (internal quotation marks omitted)). Indeed, the “natural or probable” charge that CSX requested was drawn from Brady, which in turn relied on a pre-FELA ease, Milwaukee & St. Paul R. Co. v. Kellogg, 94 U. S. 469,- 475 (1877). But other pre-Rogers FELA, decisions invoked no common-law formulations. See, e. g., Union Pacific R. Co. v. Huxoll, 245 U. S. 535, 537 (1918) (approving instruction asking whether negligence “contribute[d] ‘in whole or in part’ to cause the death”); Coray v. Southern Pacific Co., 335 U. S. 520, 524 (1949) (rejecting use of common-law “dialectical subtleties” concerning the term “proximate cause,” and approving use of “simple and direct” statutory language). We rely on Rogers not because “time begins in 1957,” post, at 711, but because Rogers stated a clear instruction, comprehensible by juries: Did the railroad’s “negligence pla[y] any part, even the slightest, in producing [the plaintiff’s] injury?” 352 U. S., at 506. In so instructing, Rogers replaced the array of formulationo then prevalent. We have repeated the Rogers instruction in subsequent opinions, and lower courts have employed it for over 60 years. To unsettle the law as the diasent urges would show scant rospeot for the principio of stars decisis.
See Moody v. Maine General R. Co., 823 F. 2d 693,696 696 (CA1 1987); Ulfik v. Metro-North Commuter R. Co., 77 F. 3d 64, 68 (
Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed?
A. stay, petition, or motion granted
B. affirmed (includes modified)
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to or from a lower court
K. no disposition
Answer:
|
songer_genresp2
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent.
UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey PAYNE, Defendant-Appellant.
No. 80-1742.
United States Court of Appeals, Tenth Circuit.
Argued and Submitted Feb. 19, 1981.
Decided March 3, 1981.
Sara Criscitelli, Atty., Dept, of Justice, Appellate Div., Washington, D. C. (Charles E. Graves, U. S. Atty., and Jeffrey C. Fisher, Asst. U. S. Atty., Cheyenne, Wyo., on the brief), for plaintiff-appellee.
Douglas J. Moench, Jr., of Cole & Moench, Cheyenne, Wyo., for defendant-appellant.
Before BARRETT, DOYLE and LOGAN, Circuit Judges.
BARRETT, Circuit Judge.
Jeffrey Payne (Payne) was convicted by a jury of conspiring to distribute, and possessing with intent to distribute, controlled substances in violation of 21 U.S.C. §§ 841 and 846. Payne appeals, alleging (1) a denial of his Sixth Amendment right to effective assistance of counsel, and (2) that the evidence adduced at trial is not sufficient to support the jury’s verdict.
Sixth Amendment Violations
Payne asserts his Sixth Amendment right to effective assistance of counsel was abridged when his trial counsel failed to present the defense outlined in his opening statement to the jury. We disagree.
In Dyer v. Crisp, 613 F.2d 275, 278 (10th Cir. 1980) (en banc), cert. denied, 445 U.S. 945, 100 S.Ct. 1342, 63 L.Ed.2d 779 (1980), we held that the “Sixth Amendment demands that defense counsel exercise the skill, judgment and diligence of a reasonably competent defense attorney.” This does not mean, however, that because “[t]he case was lost ... trial counsel’s performance was subpar.” United States v. Vader, 630 F.2d 792, 794 (10th Cir. 1980). Rather, each case must be determined on an ad hoc basis.
While trial counsel indicated in his opening statement that a separate defense case would be presented, he placed primary emphasis on the anticipated weakness of the prosecution’s case which would be exposed through cross-examination. As Payne’s trial counsel explained in his summation, no witnesses were called for the defense because he believed that the Government failed to meet its burden of proving Payne guilty beyond a reasonable doubt. “When a case is lost, hindsight, by different counsel, often suggests many ways in which the trial could have been conducted differently.” Id. at p. 794. Defense attorneys must be given wide latitude and should not be condemned for making reasonable, strategic decisions in the heat of trial. No Sixth Amendment deprivation occurred under the circumstances presented in this case.
We have indicated that where the incompetence of counsel is pervasive, United States v. Porterfield, 624 F.2d 122, 124 (10th Cir. 1980), or other unusual circumstances exist, United States v. Golub, 638 F.2d 185 (10th Cir. 1980), specific proof of prejudice by the defendant is not required. Rather, the “burden should be on the government to establish the lack of prejudice.” United States v. Porterfield, supra, at p. 125. While this proposition may be questionable in light of United States v. Morrison, - U.S. -, 101 S.Ct. 665, 66 L.Ed.2d 564 (1981) and other decisions, e. g. United States v. Wood, 628 F.2d 554 (D.C.Cir.1980) (en banc), we need not address the issue. Here, the Government has met its burden of establishing a lack of prejudice. Even should we assume ineffectiveness of counsel, the circumstances presented here do not warrant reversal.
Sufficiency of the Evidence
Payne also contends the evidence adduced at trial is not sufficient to support the conviction. Viewing the evidence in the light most favorable to the Government, United States v. Petersen, 611 F.2d 1313 (10th Cir. 1979), cert. denied, 905 U.S. 447, 100 S.Ct. 2985, 64 L.Ed.2d 854 (1980), we hold that evidence presented supports the jury’s verdict.
AFFIRMED.
. Payne is represented by-new counsel on appeal.
Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_appel1_7_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 "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained").
UNITED STATES of America, Appellee, v. Sara Maria NUNEZ, Reyes Torres Troche, Manuel O. Nunez, Defendants, Appellants.
No. 80-1837.
United States Court of Appeals, First Circuit.
Argued Nov. 2, 1981.
Decided Dec. 10, 1981.
Lorenzo 0. Caban Arocho, Mayaguez, P. R., for defendants, appellants.
H. Manuel Hernandez, Asst. U. S. Atty., San Juan, P. R., with whom Raymond L. Acosta, U. S. Atty., San Juan, P. R., was on brief, for appellee.
Before CAMPBELL, BÓWNES and BREYER, Circuit Judges.
PER CURIAM.
The government charged appellants, in a two count indictment, with “aiding and abetting each other” in encouraging and inducing “the entry into the United States of aliens not lawfully entitled to enter or reside” there. Appellants waived a jury trial. They were convicted, sentenced to terms of imprisonment ranging from six months to two years, and placed on five years probation. They raise a number of objections to their convictions and sentences, all of which we find to be without merit.
Appellants’ major argument is that Count I of the indictment (which relates to the illegal aliens Marta Linares Ramirez and Ruth Esther Linares Ramirez) is insufficiently specific about the date of the offense. That count charges that the offense took place “on or about 1977, the exact dates to the grant jury unknown.” Although it is unusual for an indictment not to pin down the date of the crime with greater specificity than this, it is nonetheless hornbook law that “great generality in the allegation of date” is allowed, 1 Wright, Federal Practice and Procedure: Criminal § 125 at 246-47 — at least where, as here, the exact time of the crime’s commission is not important under the statute allegedly violated. See United States v. Antonelli, 439 F.2d 1068, 1070 (1st Cir. 1971), and 8 U.S.C. § 1324(a)(4). “Generally,' exact dates are not required so long as they are within the statute of limitation . . . and no prejudice is shown.” United States v. Austin, 448 F.2d 399, 401 (9th Cir. 1971) (citation omitted). In a case such as this one, the allegation of time “is not regarded as going to an essential element of the crime, and, within reasonable limits, proof of any date before the return of the indictment and within the statute of limitations is sufficient.” Wright, supra, at 247. See also United States v. Vahalik, 606 F.2d 99, 100 (5th Cir. 1979); Russell v. United States, 429 F.2d 237, 238 (5th Cir. 1970).
The charge in this instance would seem “reasonable.” The government states, and appellants do not deny, that the witnesses were unable to be more specific as to date. Moreover, the facts at issue were scarcely concealed from or unknown to appellants. Under the Jencks Act, appellants were provided with the government’s evidence, including the statements of the relevant witnesses, long before trial. The two aliens named in Count I of the indictment lived in the house of and worked for one of the appellants and were personally known to all of them. Appellants, in short, knew virtually as much about the government’s evidence, including the evidence about the date, as did the government. As imprecise as the date charged in Count I of the indictment was, it fell plainly within the applicable five year statute of limitations. See 18 U.S.C. § 3282. No other special factor here makes the indictment’s language unfair or prejudicial.
Appellants seek to bolster their argument by pointing out that on November 6, 1980, in response to a request for more specific information about dates, an assistant United States attorney wrote that the events charged in Count I took place in February 1978. The government agrees that its answer in this letter was mistaken. It discovered its mistake at a pretrial conference held one week later on November 14. It immediately told appellants’ counsel that the February date was wrong and that it would rely instead upon the dates charged in the indictment.
We are aware of no prejudice that this mistake could have caused appellants. Appellants knew about the government’s claim as to date for at least a month prior to November 6. They had received the Jencks Act material with the alien witnesses’ statements two months before November 8. At most they were under a misapprehension about the relevant date for eight days. And any misapprehension was cleared up ten days before trial. We consider the government’s “February” response, then, as of no more consequence than a minor variance between a date charged in an indictment and a date proved at trial — a variance that generally does not warrant reversal. See, e.g., United States v. Antonelli, 439 F.2d at 1070; Russell v. United States, 429 F.2d at 238. See generally Wright, supra, at 247 & n.37.
Appellants’ other claims are equally without merit. They argue that the district judge abused his discretion in sentencing them to more than probation. It is well-settled, however, that as an appellate court “we are without authority to reverse [an] adult sentence . .. imposed within statutory and constitutional limits.” United States v. Beliard, 618 F.2d 886, 888 (1st Cir. 1980).
Appellant Sara Maria Nunez argues that she cannot be convicted because her actions allegedly took place in the Dominican Republic — outside the United States. It is clear, however, that an individual can be convicted of inducing and encouraging the unlawful entry of aliens into the United States even though the acts of inducement and encouragement take place abroad, United States v. Beliard, 618 F.2d at 887; United States v. Castillo-Felix, 539 F.2d 9, 13 (9th Cir. 1976), United States v. Williams, 464 F.2d 599, 601 (2d Cir. 1972), particularly where, as here, the aliens in fact enter this country.
The remainder of appellants’ claims consist of wide-ranging arguments as to why the witnesses against them ought not to be believed and why their evidence was more convincing than that of the government. As to those claims, we simply state that our review of the record convinces us that there was adequate lawful evidence upon the basis of which a rational trier of fact could have concluded beyond a reasonable doubt that appellants were guilty of the crimes charged. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Nardi, 633 F.2d 972, 974 (1st Cir. 1980).
Affirmed.
. See 8 U.S.C. § 1324(a)(4), which provides: (a) Any person ... who—
(4) willfully or knowingly encourages or induces, or attempts to encourage or induce, either directly or indirectly, the entry into the United States of— any alien .. . not lawfully entitled to enter or reside within the United States .. . shall be guilty of a felony....
And see 18 U.S.C. § 2(a), which provides:
(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces, or procures its commission, is punishable as a principal.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity.
A. not ascertained
B. male - indication in opinion (e.g., use of masculine pronoun)
C. male - assumed because of name
D. female - indication in opinion of gender
E. female - assumed because of name
Answer:
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sc_caseorigin
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041
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York.
UNITED STATES v. AGUILAR
No. 94-270.
Argued March 20, 1995 —
Decided June 21, 1995
Rehnquist, C. J., delivered the opinion of the Court, in which O’Con-nor, Souter, Ginsburg, and Breyer, JJ., joined, in Part I of which Stevens, J., joined, and in all but Part I and the last paragraph of Part II of which Scalia, Kennedy, and Thomas, JJ., joined. Stevens, J., filed an opinion concurring in part and dissenting in part, post, p. 606. Scalia, J., filed an opinion concurring in part and dissenting in part, in which Kennedy and Thomas, JJ., joined, post, p. 609.
James A. Feldman argued the cause for the United States. With him on the briefs were Solicitor General Days, Assistant Attorney General Harris, Deputy Solicitor General Dreeben, and Patty Merkamp Stemler.
Robert D. Luskin argued the cause for respondent. With him on the brief were Joseph G. Davis and Paul B. Meltzer
Gerald B. Lefcourt filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae urging affirmance.
Chief Justice Rehnquist
delivered the opinion of the Court.
A jury convicted United States District Judge Robert Aguilar of one count of illegally disclosing a wiretap in violation of 18 U. S. C. § 2232(c), and of one count of endeavoring to obstruct the due administration of justice in violation of § 1503. A panel of the Court of Appeals for the Ninth Circuit affirmed the conviction under § 2232(c) but reversed the conviction under § 1503. After rehearing en banc, the Court of Appeals reversed both convictions. We granted certio-rari to resolve a conflict among the Federal Circuits over whether § 1503 punishes false statements made to potential grand jury witnesses, and to answer the important question whether disclosure of a wiretap after its authorization expires violates § 2232(c). 513 U. S. 1013 (1994).
Many facts remain disputed by the parties. Both parties appear to agree, however, that a motion for postconviction relief filed by one Michael Rudy Tham represents the starting point from which events bearing on this case unfolded. Tham was an officer of the International Brotherhood of Teamsters, and was convicted of embezzling funds from the local affiliate of that organization. In July 1987, he filed a motion under 28 U. S. C. § 2255 to have his conviction set aside. The motion was assigned to Judge Stanley Weigel. Tham, seeking to enhance the odds that his petition would be granted, asked Edward Solomon and Abraham Chalupowitz, a.k.a. Abe Chapman, to assist him by capitalizing on their respective acquaintances with another judge in the Northern District of California, respondent Aguilar. Respondent knew Chapman as a distant relation by marriage and knew Solomon from law school. Solomon and Chapman met with respondent to discuss Tham’s case, as a result of which respondent spoke with Judge Weigel about the matter.
Independent of the embezzlement conviction, the Federal Bureau of Investigation (FBI) identified Tham as a suspect in an investigation of labor racketeering. On April 20, 1987, the FBI applied for authorization to install a wiretap on Tham’s business phones. Chapman appeared on the application as a potential interceptee. Chief District Judge Robert Peckham authorized the wiretap. The 30-day wiretap expired by law on May 20,1987,18 U. S. C. §2518(5), but Chief Judge Peckham maintained the secrecy of the wiretap under §2518(8)(d) after a showing of good cause. During the course of the racketeering investigation, the FBI learned of the meetings between Chapman and respondent. The FBI informed Chief Judge Peckham, who, concerned with appearances of impropriety, advised respondent in August 1987 that Chapman might be connected with criminal elements because Chapman’s name had appeared on a wiretap authorization.
Five months after respondent learned that Chapman had been named in a wiretap authorization, he noticed a man observing his home during a visit by Chapman. He alerted his nephew to this fact and conveyed the message (with an intent that his nephew relay the information to Chapman) that Chapman’s phone was being wiretapped. Respondent apparently believed, in error, both that Chapman’s phones were tapped in connection with the initial application and that the initial authorization was still in effect. Chief Judge Peckham had in fact authorized another wiretap on Tham’s phones effective from October 1987 through the period in which respondent made the disclosure, but there is no suggestion in the record that the latter had any specific knowledge of this reauthorization.
At this point, respondent’s involvement in the two separate Tham matters converged. Two months after the disclosure to his nephew, a grand jury began to investigate an alleged conspiracy to influence the outcome of Tham’s habeas case. Two FBI agents questioned respondent. During the interview, respondent lied about his participation in the Tham case and his knowledge of the wiretap. The grand jury returned an indictment; a jury convicted Aguilar of one count of disclosing a wiretap, 18 U. S. C. § 2232(c), and one count of endeavoring to obstruct the due administration of justice, §1503. A panel of the Court of Appeals for the Ninth Circuit affirmed the § 2232(c) conviction but reversed the § 1503 conviction.
On rehearing en banc, the Court of Appeals reversed both convictions for the reason that the conduct in each instance was not covered by the statutory language. 21 F. 3d 1475 (1994). The court concluded that § 2232(c) requires the disclosure of a pending wiretap application or an authorization that had not expired because the purpose of the statute was to thwart interference with the “‘possible interception’” of the wiretap of which the defendant had knowledge. Id., at 1480. Finding the interception in this case impossible once the authorization had expired, it held respondent’s disclosure was not covered by the plain language of the statute. The Court of Appeals also found that respondent had not interfered with a pending judicial proceeding under § 1503. It first noted that the grand jury had not authorized or directed the FBI investigation. It then held that merely uttering false statements does not “ ‘corruptly influence’ ” within the meaning of the statute. Id., at 1485-1486. It drew this conclusion, in part, from 1988 amendments to § 1512, which added a prohibition on corrupt persuasion of. witnesses. The court read the corrupt persuasion prohibited by § 1512 to require an active attempt to persuade a witness to tell a false story, and used the language in § 1512 as a guide to interpret the omnibus clause of § 1503 narrowly.
I — i
Section 1503 provides:
“Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any grand or petit juror, or officer in or of any court of the United States, or officer who may be serving at any examination or other proceeding before any United States commissioner or other committing magistrate, in the discharge of his duty, or injures any such grand or petit juror in his person or property on account of any verdict or indictment assented to by him, or on account of his being or having been such juror, or injures any such officer, commissioner, or other committing magistrate in his person or property on account of the performance of his official duties, or corrwptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be fined not more than $5,000 or imprisoned not more than five years, or both.” 18 U. S. C. § 1503 (emphasis added).
The statute is structured as follows: first it proscribes persons from endeavoring to influence, intimidate, or impede grand or petit jurors or court officers in the discharge of their duties; it then prohibits injuring grand or petit jurors in their person or property because of any verdict or indictment rendered by them; it then prohibits injury of any court officer, commissioner, or similar officer on account of the performance of his official duties; finally, the “Omnibus Clause” serves as a catchall, prohibiting persons from endeavoring to influence, obstruct, or impede the due administration of justice. The latter clause, it can be seen, is far more general in scope than the earlier clauses of the statute. Respondent was charged with a violation of the Omnibus Clause, to wit: with “corruptly endeavoring] to influence, obstruct, and impede the . .. grand jury investigation.” App. 106.
The first case from this Court construing the predecessor statute to § 1503 was Pettibone v. United States, 148 U. S. 197 (1893). There we held that “a person is not sufficiently charged with obstructing or impeding the due administration of justice in a court unless it appears that he knew or had notice that justice was being administered in such court.” Id., at 206. The Court reasoned that a person lacking knowledge of a pending proceeding necessarily lacked the evil intent to obstruct. Id., at 207. Recent decisions of Courts of Appeals have likewise tended to place metes and bounds on the very broad language of the catchall provision. The action taken by the accused must be with an intent to influence judicial or grand jury proceedings; it is not enough that there be an intent to influence some ancillary proceeding, such as an investigation independent of the court’s or grand jury’s authority. United States v. Brown, 688 F. 2d 596, 598 (CA9 1982) (citing cases). Some courts have phrased this showing as a “nexus” requirement — that the act must have a relationship in time, causation, or logic with the judicial proceedings. United States v. Wood, 6 F. 3d 692, 696 (CA10 1993); United States v. Walasek, 527 F. 2d 676, 679, and n. 12 (CA3 1975). In other words, the endeavor must have the “ ‘natural and probable effect’ ” of interfering with the due administration of justice. Wood, supra, at 695; United States v. Thomas, 916 F. 2d 647, 651 (CA11 1990); Walasek, supra, at 679. This is not to say that the defendant’s actions need be successful; an “endeavor” suffices. United States v. Russell, 255 U. S. 138, 143 (1921). But as in Pettibone, if the defendant lacks knowledge that his actions are likely to affect the judicial proceeding, he lacks the requisite intent to obstruct.
Although respondent urges various broader grounds for affirmance, we find it unnecessary to address them because we think the “nexus” requirement developed in the decisions of the Courts of Appeals is a correct construction of § 1503. We have traditionally exercised restraint in assessing the reach of a federal criminal statute, both out of deference to the prerogatives of Congress, Dowling v. United States, 473 U. S. 207 (1985), and out of concern that “a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed,” McBoyle v. United States, 283 U. S. 25, 27 (1931). We do not believe that uttering false statements to an investigating agent — and that seems to be all that was proved here — who might or might not testify before a grand jury is sufficient to make out a violation of the catchall provision of § 1503.
The Government did not show here that the agents acted as an arm of the grand jury, or indeed that the grand jury had even summoned the testimony of these particular agents. The Government argues that respondent “understood that his false statements would be provided to the grand jury” and that he made the statements with the intent to thwart the grand jury investigation and not just the FBI investigation. Brief for United States 18. The Government supports its argument with a citation to the transcript of the recorded conversation between Aguilar and the FBI agent at the point where Aguilar asks whether he is a target of a grand jury investigation. The agent responded to the question by stating:
“[T]here is a Grand Jury meeting. Convening I guess that’s the correct word. Um some evidence will be heard I’m . . . I’m sure on this issue.” App. 86.
Because respondent knew of the pending proceeding, the Government therefore contends that Aguilar’s statements are analogous to those made directly to the grand jury itself, in the form of false testimony or false documents.
We think the transcript citation relied upon by the Government would not enable a rational trier of fact to conclude that respondent knew that his false statement would be provided to the grand jury, and that the evidence goes no further than showing that respondent testified falsely to an investigating agent. Such conduct, we believe, falls on the other side of the statutory line from that of one who delivers false documents or testimony to the grand jury itself. Conduct of the latter sort all but assures that the grand jury will consider the material in its deliberations. But what use will be made of false testimony given to an investigating agent who has not been subpoenaed or otherwise directed to appear before the grand jury is far more speculative. We think it cannot be said to have the “natural and probable effect” of interfering with the due administration of justice.
Justice Scalia criticizes our treatment of the statutory language for reading the word “endeavor” out of it, inasmuch as it excludes defendants who have an evil purpose but use means that would “only unnaturally and improbably be successful.” Post, at 612. This criticism is unwarranted. Our reading of the statute gives the term “endeavor” a useful function to fulfill: It makes conduct punishable where the defendant acts with an intent to obstruct justice, and in a manner that is likely to obstruct justice, but is foiled in some way. Were a defendant with the requisite intent to lie to a subpoenaed witness who is ultimately not called to testify, or who testifies but does not transmit the defendant’s version of the story, the defendant has endeavored to obstruct, but has not actually obstructed, justice. Under our approach, a jury could find such defendant guilty.
Justice Scalia also apparently believes that any act, done with the intent to “obstruct... the due administration of justice,” is sufficient to impose criminal liability. Under the dissent’s theory, a man could be found guilty under § 1503 if he knew of a pending investigation and lied to his wife about his whereabouts at the time of the crime, thinking that an FBI agent might decide to interview her and that she might in turn be influenced in her statement to the agent by her husband’s false account of his whereabouts. The intent to obstruct justice is indeed present, but the man’s culpability is a good deal less clear from the statute than we usually require in order to impose criminal liability.
► — I
Section 2232(c) prohibits the disclosure of information that a wiretap has been sought or authorized. The statute reads:
“Whoever, having knowledge that a Federal investigative or law enforcement officer has been authorized or has applied for authorization under chapter 119 to intercept a wire, oral, or electronic communication, in order to obstruct, impede, or prevent such interception, gives notice or attempts to give notice of the possible interception to any person shall be fined under this title or imprisoned not more than five years, or both.” 18 U. S. C. § 2232(c).
This section is much more precisely targeted than is the catchall provision of § 1503 discussed above. The first clause defines the element of knowledge required for the act to be criminal: knowledge that an officer has been authorized or has sought authorization to intercept a communication. The second clause defines the required intent with which the act be done: “in order to obstruct, impede, or prevent such interception.” The third clause defines the punishable act: “gives notice or attempts to give notice of the possible interception.” Respondent persuaded the Court of Appeals to hold that the wiretap application or authorization must be pending or in esse at the time of the disclosure, but we do not believe any such requirement is to be found in the statutory language.
Respondent here urges the reasoning accepted by the Court of Appeals. “[T]he purpose of the statute is to prevent interference with ‘possible interception.’ ” 21 F. 3d, at 1480. Once a wiretap has expired or been denied, the Ninth Circuit reasoned, there is no “‘possible interception’” to disclose or attempt to disclose. Ibid. The narrow purpose of the statute is further evidenced by the statute’s intent requirement, which limits punishable disclosures to those undertaken with the intent to interfere with “‘such interception’” of which the defendant “has knowledge.” Ibid. Under the circumstances, the disclosure of an expired wiretap not only fails to violate the terms of the statute, it fails to implicate any interest protected by § 2232(c). Brief for Respondent 38.
But this argument, we think, fails in the face of the statutory language itself. The term “such interception” is part of the intent requirement in the second clause; the defendant must intend to obstruct the interception made pursuant to the application or authorization of which he has the knowledge required by the first clause. The phrase “possible interception” is found in the third clause, which describes the act which offends the statute. A defendant intending to disclose the existence of a pending application would ordinarily have no way of knowing whether the application or authorization had resulted in an interception, and that is doubtless why the third clause uses the term “possible” interception. It was not intended to limit the offense to cases where the interception based upon the application or authorization was factually possible, but to recognize the fact that at the time the prohibited notice was given it very likely could not be known whether or not there would be an interception.
The Court of Appeals thought its result justified by its view that the aim of the statute was to prevent interference with “possible” interceptions, and that if an interception was not possible because the wiretap was no longer in place at the time of the disclosure, that interest was not threatened. But the statute is aimed at something more than the interference with interceptions; it is aimed at disclosure of wiretap orders or applications which may lead to interceptions. The offense is complete at the time the notice is given, when it often cannot be known whether any interception will take place.
Justice Stevens argues that § 2232(c) criminalizes disclosures of pending applications without a need to rely on the word “ ‘possible.’ ” Post, at 608. That is not so. The reference to pending applications occurs only in the clause specifying the knowledge element. The actus reus element must be independently satisfied. Without the word “possible,” the statute would only prohibit giving notice of “the interception”: It would not reach the giving of notice of an application which has not yet resulted in an authorization or an authorization which has not yet resulted in an interception. That Congress could have accomplished the same result by phrasing the statute differently — for instance, by repeating “‘such interception’” in the third clause, ibid. — does not undercut the fact that the word “possible” is necessary in the statute as written to criminalize such behavior.
Acceptance of respondent’s position would open the door to additional claims of “impossibility” other than the fact that the application or order was not pending at the time of the disclosure. Some sort of mechanical failure, or the departure of the person whose conversation was to be intercepted from the place at which the reception was authorized, are two which come to mind. In Osborn v. United States, 385 U. S. 323, 333 (1966), we expressed reservations about the “continuing validity [of] the doctrine of ‘impossibility,’ with all its subtleties,” in the law of criminal attempt, and we would require much more than the statutory language before us to believe that Congress intended to engraft it onto the language of § 2232(c).
Finally, respondent urges us to read the statute to exclude disclosures of expired wiretaps because of concern that a broader construction would run counter to the First Amendment. We see no necessity for such a restrictive construction of the statute. It is true that the Government may not generally restrict individuals from disclosing information that lawfully comes into their hands in the absence of a “state interest of the highest order.” Smith v. Daily Mail Publishing Co., 443 U. S. 97, 103 (1979). But the statute here in question does not impose such a restriction generally, but only upon those who disclose wiretap information “in order to obstruct, impede, or prevent” the interception. Nor was the respondent simply a member of the general public who happened to lawfully acquire possession of information about the wiretap; he was a Federal District Court Judge who learned of a confidential wiretap application from the judge who had authorized the interception, and who wished to preserve the integrity of the court. Government officials in sensitive confidential positions may have special duties of nondisclosure. See Fed. Rule Crim. Proc. 6(e) (prohibiting the disclosure of grand jury information). Likewise, protective orders may be imposed in connection with information acquired through civil discovery without violating the First Amendment. Seattle Times Co. v. Rhinehart, 467 U. S. 20, 31 (1984). As to one who voluntarily assumed a duty of confidentiality, governmental restrictions on disclosure are not subject to the same stringent standards that would apply to efforts to impose restrictions on unwilling members of the public. See Snepp v. United States, 444 U. S. 507 (1980) (per curiam). In this case, Chief Judge Peckham postponed the notification of parties named in the application in order to maintain the secrecy of the wiretap. See 18 U. S. C. §2518(l)(d). We think the Government’s interest is quite sufficient to justify the construction of the statute as written, without any artificial narrowing because of First Amendment concerns.
Respondent raised below a challenge to the jury instructions, but the Court of Appeals found it unnecessary to decide. We affirm the decision of the Court of Appeals with respect to respondent’s conviction under § 1503 and reverse with respect to respondent’s conviction under § 2232(c). We remand for proceedings consistent with this decision.
So ordered.
Respondent argues that the term “corruptly” is vague and overbroad as applied to the type of conduct at issue in this case and that Congress narrowed the scope of the Omnibus Clause when it expressly punished his conduct in 18 U. S. C. § 1512.
See, e. g., United States v. Mullins, 22 F. 3d 1365, 1367-1368 (CA6 1994) (altered records and instructed co-worker to alter records subject to subpoena duces tecum); United States v. Williams, 874 F. 2d 968, 976-982 (CA5 1989) (uttered false testimony to grand jury); United States v. McComb, 744 F. 2d 555, 659 (CA7 1984) (created false meeting minutes and voluntarily delivered them to grand jury); United States v. Faudman, 640 F. 2d 20, 23 (CA6 1981) (falsified records, some of which had been sought by subpoena duces tecum); United States v. Walasek, 527 F. 2d 676, 679-680 (CA3 1975) (falsified documents requested by subpoena duces tecum).
Justice Stevens also argues that our reading of the statute would achieve no temporal limitation on liability and could result in the “absurd” prosecution of a discloser 10 years after the wiretap expired. Post, at 608-609. Although we reserve the question for a case that presents it, we note that the wiretapping scheme as a whole suggests that a plausible temporal limit on liability for disclosure would be the point at which the authorizing judge notifies the interceptee and related parties of the existence of an application or authorization pursuant to 18 U. S. C. § 2518(8)(d). Such notification must occur “within a reasonable time” after denial of the application or termination of a wiretap, and may be postponed only upon a showing of “good cause.” § 2518(8)(d). The parties did not brief this issue, and we need not decide it on these facts because respondent disclosed his knowledge of the wiretap application before Chief Judge Peck-ham notified the parties in May 1989. That notification issued two years after the FBI first applied for authorization and one year after the last authorized wiretap expired.
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
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078. Missouri Western U.S. District Court
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081. Nevada U.S. District Court
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128. West Virginia U.S. District Court
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132. Alabama U.S. District Court
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134. Georgia U.S. District Court
135. Illinois U.S. District Court
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137. Iowa U.S. District Court
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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
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148. Texas U.S. District Court
149. Virginia U.S. District Court
150. Norfolk U.S. District Court
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153. New Jersey U.S. District Court
154. California U.S. District Court
155. Florida U.S. District Court
156. Arkansas U.S. District Court
157. District of Orleans U.S. District Court
158. State Supreme Court
159. State Appellate Court
160. State Trial Court
161. Eastern Circuit (of the United States)
162. Middle Circuit (of the United States)
163. Southern Circuit (of the United States)
164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas
166. California U.S. Circuit for (all) District(s) of California
167. Connecticut U.S. Circuit for the District of Connecticut
168. Delaware U.S. Circuit for the District of Delaware
169. Florida U.S. Circuit for (all) District(s) of Florida
170. Georgia U.S. Circuit for (all) District(s) of Georgia
171. Illinois U.S. Circuit for (all) District(s) of Illinois
172. Indiana U.S. Circuit for (all) District(s) of Indiana
173. Iowa U.S. Circuit for (all) District(s) of Iowa
174. Kansas U.S. Circuit for the District of Kansas
175. Kentucky U.S. Circuit for (all) District(s) of Kentucky
176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
177. Maine U.S. Circuit for the District of Maine
178. Maryland U.S. Circuit for the District of Maryland
179. Massachusetts U.S. Circuit for the District of Massachusetts
180. Michigan U.S. Circuit for (all) District(s) of Michigan
181. Minnesota U.S. Circuit for the District of Minnesota
182. Mississippi U.S. Circuit for (all) District(s) of Mississippi
183. Missouri U.S. Circuit for (all) District(s) of Missouri
184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
212. United States Supreme Court
Answer:
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songer_casetyp1_7-3-3
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D
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What follows is an opinion from a United States Court of Appeals.
Your task is to 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".
FITKIN et al. v. CENTURY OIL CO. (MARYLAND) et al. GUARANTY TRUST CO. OF NEW YORK v. LA PORTE OIL & REFINING CORPORATION (MARYLAND).
(Circuit Court of Appeals, Second Circuit.
December 6, 1926.)
No. 87.
1. Mortgages <§=>209 — Trustee under mortgage held not entitled to tile claim against corporation after appointment of receiver.
Trustee under mortgage to secure notes issued by corporation held not such creditor as entitled it to file claim after appointment of receiver for corporation.
2. Mortgages <§=>209 — Trustee in deed of trust has no right to tile claim therefor, in absence of express authority.
In absence of authority granted to trustee in deed of trust by terms of mortgage, right to file claim therefor resides in note or bondholders only.
3. Action <§=>! — Right to maintain suit is matter of Jaw.
Right to maintain suit is matter of law, and not subject to be controlled by private conventions of parties.
4. Parties <§=>6(l) — Real parties In interest must bring suit.
Suits must be in name of real parties in interest.
5. Mortgages <§=>209 — Trustee is not creditor because holding legal title to security.
Mere f aqt that trustee holds legal title to security does not make it in equity a creditor with respect to deed itself.
Appeal from the District Court of the United States for the Southern District of New York.
Proceeding in equity by A. E. Fitkin and others against the Century Oil Company (Maryland) and others. Order allowing in part the claim filed by the Guaranty Trust Company as trustee under a mortgage for unpaid secured notes against the La Porte Oil & Refining Corporation, and E. Bright Wilson, as receiver, appeals.
Order reversed.
Gilman & Unger, of New York City, for appellant.
Davis, Polk, Wardwell, Gardiner & Reed, of New York City (William C. Cannon, of New York'City, of counsel), for appellees.
Before HOUGH, MANTON, and HAND, Circuit Judges.
MANTON, Circuit Judge.
By order of the District Court, a receiver was appointed for the La Porte Oil & Refining Corporation in a proceeding in equity to conserve its assets. That corporation had a mortgage upon its property, and the’ Guaranty Trust Company was named as trustee in the mortgage. . The corporation authorized and issued 5-year first lien and collateral trust 7 per cent, convertible gold notes giving the mortgage on its property as security therefor. The order appointing the receiver enjoined creditors from instituting or prosecuting claims or suits and further decreed that notice should be sent to the creditors to file their claims with the receiver within 90 days of the date of the order. The statement of claim must be duly sworn to by the creditor and the publication of notice for presentation of claims was ordered for a period of 90 days in a newspaper. The appellee filed a claim for the principal amount of the bonds authenticated, interest thereon, its commissions and expenses. At the hearing before the special master, it was conceded that the amount of the bonds outstanding at the time were of the face value of $467,412. All of the holders of these bonds had filed their claims excepting those of the face value of $122,857, and as to this latter sum, the court below allowed the claim of the appellee.
The appellee in its claim stated that it was a creditor of the corporation, and that the consideration for the bonds issued was moneys loaned to it (the La Porte corporation), “and in consideration of the acceptance or purchase of said notes by the holders or registered owners thereof.” The claim stated that the appellee could not attach the original notes issued on which the claim was based, because the notes were in the possession of the owners or holders thereof, and the claimant could not obtain the same in order that they might be made part of the claim. It referred to the copy of the notes set forth in the debenture or deed of trust in lieu of the original notes issued thereunder. It further stated that, in filing the claim, the appellee did not surrender or release whatever rights it may hold for said debt under the terms of the trust indenture, but filed its claim for the purpose of securing the notes and right to share in dividends in case the security which it held under the deed of trust was insufficient for the payment of the debts, and expressly reserved its right to enforce such security in the same manner and to the same extent as if the claim had not been filed with the receiver. As the claim was finally presented, it was referred to a special master, who held that the appellee could not maintain its claim; but this was reversed by the District Judge, and the receiver seeks a review of that ruling.
The mortgage by its terms in no way confers upon the appellee rights, other than those usual, to enforce payment of the notes, in the event of default, out of the security held by it as trustee. The appellee was not a creditor of the La Porte corporation, nor did it become assignee, by reason of the terms of the mortgage or otherwise, or attorney in fact for the owners or holders of the outstanding notes, with respeet to anything except the mortgaged property. The notes aré payable to the bearer thereof, or, if the notes be registered, to the registered holder thereof on the due date.
We are referred to article 6 of the mortgage, the clause with reference to what may be done in ease of default. Section 3 thereof provides that the trustee in such event may proceed to protect and enforce its rights and the rights of the note holders “under this indenture” by suit in equity or action at law, either for the specific performance of any covenant or agreement contained or in aid of the execution of any power granted, or to foreclose under. the indenture for the interest or for principal or both, and “for the enforcement of any other appropriate legal or "equitable right as the trustee shall deem most effectual in support of its rights or duties hereunder.” It thus appears that the trustee, in representing the note holders and enforcing their rights as such trustee, is restricted to the rights conferred under this indenture “with reference to the mortgaged property.” The purpose of this clause was to permit the foreclosure of the lien held by the trustee for the benefit of the note holders in the event of default, or to take such other action as may be necessary to make valid the lien granted upon the securities and the property transferred to the appellee as security for the payment of the notes.
Article 6, § 4, required the trustee “to take all steps needful for the protection and enforcement of the rights of the trustee and the rights of the holders of the notes hereby secured.” The same clause provides such action be taken upon proper indemnity and upon receiving the written request of 20 per cent, of the note holders outstanding. It is no): alleged or contended that 20 per cent, or more of the note holders made such a request or that proper indemnity was given. This provision gives the trustee no right to file a claim. The evidence of indebtedness is the note — not the instrument of mortgage. The consent of the appellee to reduce its claim when note holders actually filed their claims individually is an admission against the contention made that the sole and exclusive right resides with the appellee to file a claim for note holders. Without the original notes accompanying the mortgage as part of the proof of claim, the order of the District Court was not complied with in the matter of filing claims. As stated by the appellee, it could not do so, for the notes were in possession of the owners and holders.
It was said below that the practice in the District Court.has been to permit the trustee to file the claims of bond, or note holders under the mortgage. Pintsch Compressing Co. v. Buffalo Gas Co. (C. C. A.) 280 F. 830, and Penn. Steel Co. v. N. Y. City Ry. et al., 216 F. 458, 132 C. C. A. 518, are referred to as authorities for such practice. The cited eases do not support such a practice or rule of law. In the Pintseh Case, it was not contended that the trustee could not prosecute its claim on its deficiency judgment. It was claimed that, as the bonds were not in default at the time of the appointment of sequestration receivers, the trustee was not entitled to share in the funds of the sequestration receivership. We held that the bonds were provable at the time of the appointment of the receivers without it being necessary for the trustee or bondholders to first resort to the security given for .the bonds. No question was presented as to whether the trustee or bondholders were the proper parties to prosecute the claim. The question presented was whether it was necessary to first resort to the collateral security. In the opinion there delivered, the writer quoted from the opinion of the special master in Penn. Steel Co. v. N. Y. City Ry. Co., supra, where the special master said:
“The claimant trustee under the two Metropolitan mortgages have an unquestionable right under the authorities, federal and state, to prove claims to the extent of the face value of bonds secured, against general assets of the insolvent Metropolitan Company, subject only to the limitation that the amount-of the deficiency decrees to be hereafter entered will suggest a maximum amount to be paid on the claims allowed.”
There the master was considering two mortgages which contained provisions other than those in the case at bar, one of which contained a covenant that the railway company would pay to the trustee, for the benefit of the holders of the bonds and coupons that may be secured and then outstanding, the whole sum due and payable on all such bonds and coupons for the principal or interest, or both. And, in case the railway company failed to pay the sum, “the trustee in its own name, and as trustee of an express trust, shall be entitled to recover judgment against the railway company for the whole amount so due and unpaid,” and the master held that, by virtue of such express authority, the other claimant was authorized to file and approve the claims on behalf of all the owners and holders of bonds as trustees of the express trust. The master’s report was approved by the District Judge. There the trustee was a payee of the bonds, and by virtue of the express authority conferred by the mortgage, was duly authorized to file and. approve the claim on behalf of the owners and holders of the bonds.
The cases are distinguishable. Here the appellee is not the payee named in the notes, nor is it made such a creditor under the terms of the mortgage. It has been judicially recognized that a provable debt under a deed of trust is represented by the bonds secured thereby, and, in the absence of authority granted to the trustee by the. terms of the mortgage,, the right to file a claim resides in the note or bond holders only. United States-Trust Co. v. Gordon, 216 F. 929, 133 C. C. A. 117; Mackay v. Randolph Macon Coal Co., 178 F. 881, 102 C. C. A. 115; In re U. S. Leatheroid & Rubber Co. (D. C.) 285 F. 884. Under the mortgage here considered, since the trustee is neither the holder nor the payee of the note, it could not maintain an action at law for the collection of any of the notes. Its authority to proceed under the mortgage to collect the principal and interest of the bonds has reference to the collection of or the enforcement of the security.
The right to maintain a suit is a matter of law, and not subject to be controlled by private conventions of the parties. Suits must be in the name of the real parties in interest. The only exception to this rule is where a trustee of an express trust may maintain an action in his own' name on behalf of the beneficiaries. There the trustee must be the holder of the property or obligation out of which the action arises, or a person with whom or in whose name a contract is made-for the benefit of another may maintain an action upon the contract. A trustee under a mortgage comes within this exception as to the security, but not as to the bonds or notes, for they are not payable to the trustee. Mackay v. Randolph Macon Coal Co., supra. The mere fact that a trustee holds legal title to security does not make it in equity a creditor with respect to the debt itself. United States Trust Co. v. Gordon, 216 F. 929, 133 C. C. A. 117.
A distinction is to be noted between allowing a deficiency judgment in foreclosure proceedings and filing a claim as a creditor in either equity or - bankruptcy proceedings. Where there is a mere foreclosure, affecting a portion only of the corporation’s property, it is advisable, in order to avoid multiplicity of suits arising out of the deficiency judgment and number of note holders, that the-trustee collect and distribute pro rata the entire deficiency. But, where an equity receivership or bankruptcy intervenes, there is-no longer a reason for allowing the trustee to act for the benefit of the note holders. Particularly is this true where there has been no foreclosure, and where the' claim is based solely upon the obligation represented by the notes, which were not owned or held by the trustee, other than the rights conferred by the terms of the deed of trust.
Order reversed.
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:
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sc_jurisdiction
|
A
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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.
BRENNER, COMMISSIONER OF PATENTS v. MANSON.
No. 58.
Argued November 17, 1965.
Decided March 21, 1966.
Paul Bender argued the cause for petitioner, pro hac vice, by special leave of Court. With him on the brief were Solicitor General Marshall, Assistant Attorney General Douglas, Sherman L. Cohn and Edward Berlin.
Dean Laurence argued the cause for respondent. With him on the brief were Herbert I. Sherman and John L. White.
W. Brown Morton, Jr., and Ellsworth H. Mosher filed a brief for the American Patent Law Association, as amicus curiae, urging affirmance.
Mr. Justice Fortas
delivered the opinion of the Court.
This case presents two questions of importance to the administration of the patent laws: First, whether this Court has certiorari jurisdiction, upon petition of the Commissioner of Patents, to review decisions of the Court of Customs and Patent Appeals; and second, whether the practical utility of the compound produced by a chemical process is an essential element in establishing a prima facie case for the patentability of the process. The facts are as follows:
In December 1957, Howard Ringold and George Rosen-kranz applied for a patent on an allegedly novel process for making certain known steroids. They claimed priority as of December 17, 1956, the date on which they had filed for a Mexican patent. United States Patent No. 2,908,693 issued late in 1959.
In January 1960, respondent Manson, a chemist engaged in steroid research, filed an application to patent precisely the same process described by Ringold and Rosenkranz. He asserted that it was he who had discovered the process, and that he had done so before December 17, 1956. Accordingly, he requested that an “interference” be declared in order to try out the issue of priority between his claim and that of Ringold and Rosenkranz.
A Patent Office examiner denied Manson’S application, and the denial was affirmed by the Board of Appeals within the Patent Office. The ground for rejection was the failure “to disclose any utility for” the chemical compound produced by the process. Letter of Examiner, dated May 24, 1960. This omission was not cured, in the opinion of the Patent Office, by Manson’s reference to an article in the November 1956 issue of the Journal of Organic Chemistry, 21 J. Org. Chem. 1333-1335, which revealed that steroids of a class which included the compound in question were undergoing screening for possible tumor-inhibiting effects in mice, and that a homologue adjacent to Manson’s steroid had proven effective in that role. Said the Board of Appeals, “It is our view that the statutory requirement of usefulness of a product cannot be presumed merely because it happens to be closely related to another compound which is known to be useful.”
The Court of Customs and Patent Appeals (hereinafter CCPA) reversed, Chief Judge Worley dissenting. 52 C. C. P. A. (Pat.) 739, 745, 333 F. 2d 234, 237-238. The court held that Manson was entitled to a declaration of interference since “where a claimed process produces a known product it is not necessary to show utility for the product,” so long as the product “is not alleged to be detrimental to the public interest.” Certiorari was granted, 380 U. S. 971, to resolve this running dispute over what constitutes “utility” in chemical process claims, as well as to answer the question concerning our certiorari jurisdiction.
I.
Section 1256 of Title 28 U. S. C. (1964 ed.), enacted in 1948, provides that “Cases in the Court of Customs and Patent Appeals may be reviewed by the Supreme Court by writ of certiorari.” This unqualified language would seem to foreclose any challenge to our jurisdiction in the present case. Both the Government and the respondent urge that we have certiorari jurisdiction over patent decisions of the CCPA, although the latter would confine our jurisdiction to those petitions filed by dissatisfied applicants and would deny the Commissioner of Patents the right to seek certiorari. This concert of opinion, does not settle the basic question because jurisdiction cannot be conferred by consent of the parties. The doubt that does exist stems from a decision of this Court, rendered in January 1927, in Postum Cereal Co. v. California Fig Nut Co., 272 U. S. 693, which has been widely interpreted as precluding certiorari jurisdiction over patent and trademark decisions of the CCPA.
Postum, however, was based upon a statutory scheme materially different from the present one. Postum involved a proceeding in the Patent Office to cancel a trademark. The Commissioner of Patents rejected the application. An appeal was taken to the then Court of Appeals for the District of Columbia, which in 1927 exercised the jurisdiction later transferred to the CCPA. Under the statutory arrangement in effect at the time, the judgment of the Court of Appeals was not definitive because it was not an order to the Patent Office determinative of the controversy. A subsequent bill in equity could be brought in the District Court and it was possible that a conflicting adjudication could thus be obtained. On this basis, the Court held that it could not review the decision of the Court of Appeals. It held that the conclusion of the Court of Appeals was an “administrative decision” rather than a “judicial judgment”: “merely an instruction to the Commissioner of Patents by a court which is made part of the machinery of the Patent Office for administrative purposes.” 272 U. S., at 698-699. Therefore, this Court concluded, the proceeding in the Court of Appeals — essentially administrative in nature — was neither case nor controversy within the meaning of Article III of the Constitution. Congress might confer such “administrative” tasks upon the courts of the District of Columbia, wrote Chief Justice Taft, but it could not empower this Court to participate therein.
Congress soon amended the statutory scheme. In March of 1927 it provided that an action in the District Court was to be alternative and not cumulative to appellate review, that it could not be maintained to overcome
an adjudication in the Court of Appeals. In 1929 Congress transferred appellate jurisdiction over the Commissioner’s decisions from the Court of Appeals to what had been the Court of Customs Appeals and was now styled the Court of Customs and Patent Appeals. Whereas the Court of Appeals had been empowered to take additional evidence and to substitute its judgment for that of the Commissioner, the CCPA was confined to the record made in the Patent Office. Compare Federal Communications Comm’n v. Pottsville Broadcasting Co., 309 U. S. 134, 144-145. Despite these changes, however, Postum had acquired a life of its own. It continued to stand in the way of attempts to secure review here of CCPA decisions respecting the Commissioner of Patents. See, e. g., McBride v. Teeple, 311 U. S. 649, denying certiorari for “want of jurisdiction” on the authority of Postum.
This was the background against which Congress, in its 1948 codification of statutes pertaining to the judiciary, enacted § 1256, blandly providing in unqualified language for review on certiorari of “[cjases in the Court of Customs and Patent Appeals.” Nothing in the legislative materials relating to the statute, except its language, is of assistance to us in the resolution of the present problem: Did the statutory changes which followed Postura mean that a patent decision by the CCPA was a “judicial” determination reviewable by this Court under Article III? And, if so, was § 1256 intended to create such jurisdiction?
Assistance came with the 1958 revision of the Judicial Code. Congress there declared the CCPA “a court established under article III...,” that is, a constitutional court exercising judicial rather than administrative power. 28 U. S. C. § 211 (1964 ed.). In 1962 this Court addressed itself to the nature and status of the CCPA. Olidden Co. v. Zdanok, 370 U. S. 530, raised the question whether a judge of the CCPA was an Article III judge, capable of exercising federal judicial power. In answering that question in the affirmative, MR. Justice Harlan's opinion, for three of the seven Justices participating, expressly left open the question whether § 1256 conferred certiorari jurisdiction over patent and trademark cases decided in the CCPA, 370 U. S., at 578 n. 49. It suggested, however, that Postura might be nothing-more than a museum piece. The opinion noted that Postura “must be taken to be limited to the statutory scheme in existence before” 1929. 370 U. S., at 579. The concurring opinion of Mr. Justice Clark, in which The Chief Justice joined, did not reflect any difference on this point.
Thus, the decision sought to be reviewed is that of an Article III court. It is “judicial” in character. It is not merely an instruction to the Commissioner or part of the “administrative machinery” of the Patent Office. It is final and binding in the usual sense. In sum, Postura has no vitality in the present setting, and there remains no constitutional bar to our jurisdiction.
Having arrived at this conclusion, we have no difficulty in giving full force and effect to the generality of the language in § 1256. It would be entirely arbitrary for us to assume, despite the statutory language, that Congress in 1948 intended to enshrine Postum — dependent as it was upon a statutory scheme fundamentally altered in 1927 and 1929 — as a hidden exception to the sweep of § 1256. The contrary is more plausible: that by using broad and unqualified language, Congress intended our certiorari jurisdiction over CCPA cases to be as broad as the Constitution permits.
This conclusion is reinforced by reference to the anomalous consequences which would result were we to adopt a contrary view of § 1256. Determinations of the Patent Office may be challenged either by appeal to the CCPA or by suit instituted in the United States District Court for the District of Columbia. 35 U. S. C. § 145, 28 U. S. C. § 1542 (1964 ed.). Where the latter route is elected, the decision obtained may be reviewed in the Court of Appeals for the District of Columbia Circuit, and ultimately in this Court upon writ of certiorari. Hoover Co. v. Coe, 325 U. S. 79. It would be strange indeed if corresponding certiorari jurisdiction did not exist where the alternative route was elected. Were that so, in the event of conflict between the CCPA and the courts of the District of Columbia, resolution by this Court would be achievable only if the litigants chose to proceed through the latter. Obviously, the orderly administration both of our certiorari jurisdiction and of the patent laws requires that ultimate review be available in this Court, regardless of the route chosen by the litigants.
We therefore conclude that § 1256 authorizes the grant of certiorari in the present case. We now turn to the merits.
II.
Our starting point is the proposition, neither disputed nor disputable, that one may patent only that which is “useful.” In Graham v. John Deere Co., ante, p.' 1, at 5-10, we have reviewed the history of the requisites of patentability, and it need not be repeated here. Suffice it to say that the concept of utility has maintained a central place in all of our patent legislation, beginning with the first patent law in 1790 and culminating in the present law’s provision that
“Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.”
As is so often the case, however, a simple, everyday word can be pregnant with ambiguity when applied to the facts of life. That this is so is demonstrated by the present conflict between the Patent Office and the CCPA over how the test is to be applied to a chemical process which yields an already known product whose utility— other than as a possible object of scientific inquiry — has not yet been evidenced. It was not long ago that agency and court seemed of one mind on the question. In Application of Bremner, 37 C. C. P. A. (Pat.) 1032, 1034, 182 F. 2d 216, 217, the court affirmed rejection by the Patent Office of both process and product claims. It noted that “no use for the products claimed to be developed by the processes had been shown in the specification.” It held that “It was never intended that a patent be granted upon a product, or a process producing a product, unless such product be useful.” Nor was this new doctrine in the court. See Thomas v. Michael, 35 C. C. P. A. (Pat.) 1036, 1038-1039, 166 F. 2d 944, 946-947.
The Patent Office has remained steadfast in this view. The CCPA, however, has moved sharply away from Bremner. The trend began in Application of Nelson, 47 C. C. P. A. (Pat.) 1031, 280 F. 2d 172. There, the court reversed the Patent Office’s rejection of a claim on a process yielding chemical intermediates “useful to chemists doing research on steroids,” despite the absence of evidence that any of the steroids thus ultimately produced were themselves “useful.” The trend has accelerated, culminating in the present case where the court held it sufficient that a process produces the result intended and is not “detrimental to the public interest.” 52 C. C. P. A. (Pat.), at 745, 333 F. 2d, at 238.
It is not remarkable that differences arise as to how the test of usefulness is to be applied to chemical processes. Even if we knew precisely what Congress meant in 1790 when it devised the “new and useful” phraseology and in subsequent re-enactments of the test, we should have difficulty in applying it in the context of contemporary chemistry where research is as comprehensive as man’s grasp and where little or nothing is wholly beyond the pale of “utility” — if that word is given its broadest reach.
Respondent does not — -at least in the first instance— rest upon the extreme proposition, advanced by the court below, that a novel chemical process is patentable so long as it yields the intended product and so long as the product is not itself “detrimental.” Nor does he commit the outcome of his claim to the slightly more conventional proposition that any process is “useful” within the meaning of § 101 if it produces a compound whose potential usefulness is under investigation by serious scientific researchers, although he urges this position, too, as an alternative basis for affirming the decision of the CCPA. Rather, he begins with the much more orthodox argument that his process has a specific utility which would entitle him to a declaration of interference even under the Patent Office’s reading of § 101. The claim is that the supporting affidavits filed pursuant to Rule 204 (b), by reference to Ringold’s 1956 article, reveal that an adjacent homologue of the steroid yielded by his process has been demonstrated to have tumor-inhibiting effects in mice, and that this discloses the requisite utility. We do not accept any of these theories as an adequate basis for overriding the determination of the Patent Office that the “utility” requirement has not been met.
Even on the assumption that the process would be patentable were respondent to show that the steroid produced had a tumor-inhibiting effect in mice, we would not overrule the Patent Office finding that respondent has not made such a showing. The Patent Office held that, despite the reference to the adjacent homologue, respondent’s papers did not disclose a sufficient likelihood that the steroid yielded by his process would have similar tumor-inhibiting characteristics. Indeed, respondent himself recognized that the presumption that adjacent homologues have the same utility has been challenged in the steroid field because of “a greater known unpredictability of compounds in that field.” In these circumstances and in this technical area, we would not overturn the finding of the Primary Examiner, affirmed by the Board of Appeals and not challenged by the CCPA.
The second and third points of respondent’s argument present issues of much importance. Is a chemical process “useful” within the meaning of § 101 either (1) because it works — i. e., produces the intended product? or (2) because the compound yielded belongs to a class of compounds now the subject of serious scientific investigation? These contentions present the basic problem for our adjudication. Since we find no specific assistance in the legislative materials underlying § 101, we are remitted to an analysis of the problem in light of the general intent of Congress, the purposes of the patent system, and the implications of a decision one way or the other.
In support of his plea that we attenuate the requirement of “utility,” respondent relies upon Justice Story’s well-known statement that a “useful” invention is one “which may be applied to a beneficial use in society, in contradistinction to an invention injurious to the morals, health, or good order of society, or frivolous and insignificant” — and upon the assertion that to do so would encourage inventors of new processes to publicize the event for the benefit of the entire scientific community, thus widening the search for uses and increasing the fund of scientific knowledge. Justice Story’s language sheds little light on our subject. Narrowly read, it does no more than compel us to decide whether the invention in question is “frivolous and insignificant” — a query no easier of application than the one built into the statute. Read more broadly, so as to allow the patenting of any invention not positively harmful to society, it places such a special meaning on the word “useful” that we cannot accept it in the absence of evidence that Congress so intended. There are, after all, many things in this world which may not be considered “useful” but which, nevertheless, are totally without a capacity for harm.
It is true, of course, that one of the purposes of the patent system is to encourage dissemination of information concerning discoveries and inventions. And it may be that inability to patent a process to some extent discourages disclosure and leads to greater secrecy than would otherwise be the case. The inventor of the process, or the corporate organization by which he is employed, has some incentive to keep the invention secret while uses for the product are searched out. However, in light of the highly developed art of drafting patent claims so that they disclose as little useful information as possible — while broadening the scope of the claim as widely as possible — the argument based upon the virtue of disclosure must be warily evaluated. Moreover, the pressure for secrecy is easily exaggerated, for if the inventor of a process cannot himself ascertain a “use” for that which his process yields, he has every incentive to make his invention known to those able to do so. Finally, how likely is disclosure of a patented process to spur research by others into the uses to which the product may be put? To the extent that the patentee has power to enforce his patent, there is little incentive for others to undertake a search for uses.
Whatever weight is attached to the value of encouraging disclosure and of inhibiting secrecy, we believe a more compelling consideration is that a process patent in the chemical field, which has not been developed and pointed to the degree of specific utility, creates a monopoly of knowledge which should be granted only if clearly commanded by the statute. Until the process claim has been reduced to production of a product shown to be useful, the metes and bounds of that monopoly are not capable of precise delineation. It may engross a vast, unknown, and perhaps unknowable area. Such a patent may confer power to block off whole areas of scientific development, without compensating benefit to the public. The basic quid pro quo contemplated by the Constitution and the Congress for granting a patent monopoly is the benefit derived by the public from an invention with substantial utility. Unless and until a process is refined and developed to this point — where specific benefit exists in currently available form — there is insufficient justification for permitting an applicant to engross what may prove to be a broad field.
These arguments for and against the patentability of a process which either has no known use or is useful only in the sense that it may be an object of scientific research would apply equally to the patenting of the product produced by the process. Respondent appears to concede that with respect to a product, as opposed to a process, Congress has struck the balance on the side of non-patentability unless “utility” is shown. Indeed, the decisions of the CCPA are in accord with the view that a product may not be patented absent a showing of utility greater than any adduced in the present case. We find absolutely no warrant for the proposition that although Congress intended that no patent be granted on a chemical compound whose sole “'utility” consists of its potential role as an object of use-testing, a different set of rules was meant to apply to the process which yielded the unpatentable product. That proposition seems to us little more than an attempt to evade the impact of the rules which concededly govern patentability of the product itself.
This is not to say that we mean to disparage the importance of contributions to the fund of scientific information short of the invention of something “useful,” or that we are blind to the prospect that what now seems without “use” may tomorrow command the grateful attention of the public. But a patent is not a hunting license. It is not a reward for the search, but compensation for its successful conclusion. “[A] patent system must be related to the world of commerce rather than to the realm of philosophy....”
The judgment of the CCPA is Reversed.
Mr. Justice Douglas, while acquiescing in Part I of the Court’s opinion, dissents on the merits of the controversy for substantially the reasons stated by Mr. Justice Harlan.
The applicants described the products of their process as “2-methyl dihydrotestosterone derivatives and esters thereof as well as 2-methyl dihydrotestosterone derivatives having a C-17 lower alkyl group. The products of the process of the present invention have a useful high anabolic-androgenic ratio and are especially valuable for treatment of those ailments where anabolic or antiestro-genic effect together with a lesser androgenic effect is desired.”
35 U. S. C. § 135 (1964 ed.) provides: “Whenever an application is made for a patent which, in the opinion of the Commissioner, would interfere with any pending application, or with any unexpired patent, he shall give notice thereof.... The question of priority of invention shall be determined by a board of patent interferences... whose decision, if adverse to the claim of an applicant, shall constitute the final refusal by the Patent Office of the claims involved, and the Commissioner may issue a patent to the applicant who is adjudged the prior inventor....”
Patent Office Rule 204 (b), 37 CFR § 1.204 (b), provides: “When the filing date or effective filing date of an applicant is subsequent to the filing date of a patentee, the applicant, before an interference will be declared, shall file an affidavit that he made the invention in controversy in this country, before the filing date of the pat-entee... and, when required, the applicant shall file an affidavit... setting forth facts which would prima facie entitle him to an award of priority relative to the filing date of the patentee.”
Judge Thurman Arnold has provided an irreverent description of the way patent claims, including “interferences,” are presented to the Patent Office. See Monsanto Chemical Co. v. Coe, 79 U. S. App. D. C. 155, 145 F. 2d 18.
“A homologous series is a family of chemically related compounds, the composition of which varies from member to member by CH2 (one atom of carbon and two atoms of hydrogen).... Chemists knowing the properties of one member of a series would in general know what to expect in adjacent members.” Application of Henze, 37 C. C. P. A. (Pat.) 1009, 1014, 181 F. 2d 196, 200-201. See also In re Hass, 31 C. C. P. A. (Pat.) 895, 901, 141 F. 2d 122, 125; Application of Norris, 37 C. C. P. A. (Pat.) 876, 179 F. 2d 970; Application of Jones, 32 C. C. P. A. (Pat.) 1020, 149 F. 2d 501. With respect to the inferior predictability of steroid homologues, see, infra, p. 532.
In addition to the clear conflict between the Patent Office and the CCPA, there arguably exists one between the CCPA and the Court of Appeals for the District of Columbia. See Petrocarbon Limited v. Watson, 101 U. S. App. D. C. 214, 247 F. 2d 800, cert. denied, 355 U. S. 955. But see Application of Szwarc, 50 C. C. P. A. (Pat.) 1571, 1576-1583, 319 F. 2d 277, 281-286.
The present case is the first in which the Government has taken the position that § 1256 confers jurisdiction upon this Court to review patent decisions in the CCPA. Prior to Glidden Co. v. Zdanok, 370 U. S. 530, the Government was of the view that the Court lacked jurisdiction. See, e. g., the Brief in Opposition in Dalton v. Marzall, No. 87, O. T. 1951, cert. denied, 342 U. S. 818. After the decision in Glidden, discussed infra, at 526, the Government conceded the issue was a close one. See, e. g., Brief in Opposition in In re Gruschwitz, No. 579, O. T. 1963, cert. denied, 375 U. S. 967.
We find no warrant for this curious limitation either in the statutory language or in the legislative history of § 1256. Nor do we find persuasive the circumstance that the Commissioner may not appeal adverse decisions of the Board of Appeals. 35 U. S. C. §§141, 142, and 145 (1964 ed.). As a member of the Board and the official responsible for selecting the membership of its panels, 35 U. S. C. §7 (1964 ed.), the Commissioner may be appropriately considered as bound by Board determinations. No such consideration operates to prevent his seeking review of adverse decisions rendered by the CCPA.
Act of March 2, 1927, c. 273, §11, 44 Stat. 1335, 1336. See Glidden Co. v. Zdanok, supra, at 572-579; Kurland & Wolfson, Supreme Court Review of the Court of Customs and Patent Appeals, 18 Geo. Wash. L. Rev. 192 (1950). This remains the law. 35 U. S. C. §§ 141, 145.
Act of March 2, 1929, c. 488, 45 Stat. 1475.
See Kurland & Wolfson, op. cit. supra, n. 7, at 196.
Apart from Postum, until enactment of § 1256 in 1948 there existed no statutory basis for jurisdiction in these eases. See Robertson & Kirkham, Jurisdiction of the Supreme Court of'the United States, §251 (Wolfson & Kurland ed. 1951).
This is not to say that a CCPA determination that an applicant is entitled to a patent precludes a contrary result in a subsequent infringement suit, any more than issuance of a patent by the Patent Office or the decision in an earlier infringement action against a different “infringer” has that effect. See, e. g., Graham v. John Deere Co., ante, p. 1, at 4. We review decisions of the District Court under 35 U. S. C. § 145 although these are subject to the same measure of readjudication in infringement suits. See Hoover Co. v. Coe, 325 U. S. 79.
Respondent and the amicus curiae take a different view than does the Government of precisely what the issue on the merits is. They argue that the issue of “patentability” is not properly before us, that the issue actually presented is whether the Primary Examiner in the Patent Office has authority under Rule 204 (b) himself to evaluate the sufficiency of affidavits submitted under that Rule.
Both the Board of Appeals and the CCPA rejected this view and focused instead on the question of what averments satisfy the statutory requirement that a claimed chemical process be “useful.” We agree. First, the issue of “patentability” cannot be foreclosed by the circumstance that the Patent Office — which, according to counsel for respondent, processes some 1,800 claims and issues 700 patents each week — has already issued a patent to Ringold and Rosenkranz who asserted in their claim that their process yielded useful products. See note 1, supra. Second, there is no basis for the proposition that even where an applicant for an interference presents a claim which on its face is unpatentable, a complicated and frequently lengthy factual inquiry into priority of invention must 'inexorably take place. On the contrary, Rule 201 (a), 37 CFR § 1.201 (a), defines an interference proceeding as one involving “two or more parties claiming substantially the same patentable invention and may be instituted as soon as it is determined that common patentable subject matter is claimed....” (Emphasis supplied.) See Application of Rogoff, 46 C. C. P. A. (Pat.) 733, 739, 261 F. 2d 601, 606: “The question as to patentability of claims to an applicant must be determined before any question of interference arises and claims otherwise unpatentable to an applicant cannot be allowed merely in order to set up an interference.” See also Wirkler v. Perkins, 44 C. C. P. A. (Pat.) 1005, 1008, 245 F. 2d 502, 504. Cf. Glass v. De Roo, 44 C. C. P. A. (Pat.) 723, 239 F. 2d 402.
The current version of Rule 203 (a), 37 CFR § 1.203 (a), makes it explicit that the examiner, “[bjefore the declaration of interference,” must determine the patentability of the claim as to each party. See also Rule 237, 37 CFR § 1.237.
See Act of April 10, 1790, c. 7, 1 Stat. 109; Act of Feb. 21, 1793, e. 11, 1 Stat. 318; Act of July 4, 1836, c. 357, 5 Stat. 117; Act of July 8, 1870, c. 230, 16 Stat. 198; Rev. Stat. §4886 (1874).
35 U. S. C. § 101 (1964 ed.).
Thus, in Application of Wilke, 50 C. C. P. A. (Pat.) 964, 314 F. 2d 558, the court reversed a Patent Office denial of a process claim, holding that 35 U. S. C. § 112 (1964 ed.) was satisfied even though the specification recited only the manner in which the process was to be used and not any use for the products thereby yielded. See also Application of Adams, 50 C. C. P. A. (Pat.) 1185, 316 F. 2d 476.
In Application of Szwarc, 50 C. C. P. A. (Pat.) 1571, 319 F. 2d 277, the court acknowledged that its view of the law respecting utility of chemical processes had changed since Bremner. See generally, Note, The Utility Requirement in the Patent Law, 53 Geo. L. J. 154, 175-181 (1964).
Respondent couches the issue in terms of whether the process yields a “known” product. We fail to see the relevance of the fact that the product is “known,” save to the extent that references to a compound in scientific literature suggest that it might be a subject of interest and possible investigation.
In light of our disposition of the case, we express no view as to the patentability of a process whose sole demonstrated utility is to yield a product shown to inhibit the growth of tumors in laboratory animals. See Application of Hitchings, 52 C. C. P. A. (Pat.) 1141, 342 F. 2d 80; Application of Bergel, 48 C. C. P. A. (Pat.) 1102, 292 F. 2d 955; cf. Application of Dodson, 48 C. C. P. A. (Pat.) 1125, 292 F. 2d 943; Application of Krimmel, 48 C. C. P. A. (Pat.) 1116, 292 F. 2d 948. For a Patent Office view, see Marcus, The Patent Office and Pharmaceutical Invention, 47 J. Pat. Off. Soc. 669, 673-676 (1965).
See n. 3, supra.
See respondent’s letter requesting amendment, dated July 21, 1960, Record, pp. 20-23. See also Application of Adams, 50 C. C. P. A. (Pat.) 1185, 1190, 316 F. 2d 476, 479-480 (concurring-dissenting opinion). In the present case, the Board of Appeals found support in the Ringold article itself for the view that “minor changes in the structure of a steroid may produce profound changes in its biological activity.” Record, p. 52.
Note on the Patent Laws, 3 Wheat. App. 13, 24. See also Justice Story’s decisions on circuit in Lowell v. Lewis, 15 Fed. Cas. 1018 (No. 8568) (C. C. D. Mass.), and Bedford v. Hunt, 3 Fed. Cas. 37 (No. 1217) (C. C. D. Mass.).
“As a reward for inventions and to encourage their disclosure, the United States offers a seventeen-year monopoly to an inventor who refrains from keeping his invention a trade secret.” Universal Oil Prods. Co. v. Globe Oil & Ref. Co., 322 U. S. 471, 484.
See Monsanto Chemical Co. v. Coe, 79 U. S. App. D. C. 155, 158-161, 145 F. 2d 18, 21-24.
See, e. g., the decision below, 52 C. C. P. A. (Pat.), at 744, 333 F. 2d, at 237. See also Application of Bergel, 48 C. C. P. A. (Pat.), at 1105, 292 F. 2d, at 958. Cf. Application of Nelson, 47 C. C. P. A. (Pat.), at 1043-1044, 280 F. 2d, at 180-181; Application of Folkers, 52 C. C. P. A. (Pat.) 1269, 344 F. 2d 970.
The committee reports which preceded enactment of the 1952 revision of the patent laws disclose no intention to create such a dichotomy, and in fact provide some evidence that the contrary was assumed. Sen. Rep. No. 1979, Committee on the Judiciary, 82d Cong., 2d Sess., 5, 17; H. R. Rep. No. 1923, Committee on the Judiciary, 82d Cong., 2d Sess., 6, 17. Cf. Hoxie, A Patent Attorney’s View, 47 J. Pat. Off. Soc. 630, 636 (1965).
Application of Ruschig, 52 C. C. P.
Question: What is the manner in which the Court took jurisdiction?
A. cert
B. appeal
C. bail
D. certification
E. docketing fee
F. rehearing or restored to calendar for reargument
G. injunction
H. mandamus
I. original
J. prohibition
K. stay
L. writ of error
M. writ of habeas corpus
N. unspecified, other
Answer:
|
songer_direct1
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
Leona WEINER, Plaintiff-Appellant, v. INTERNAL REVENUE SERVICE, Donald Sommerset and John Doe, IRS Collection Agent, Defendants-Appellees.
No. 430, Docket 92-6152.
United States Court of Appeals, Second Circuit.
Argued Jan. 7, 1993.
Decided Jan. 25, 1993.
Leona Weiner, pro se.
Steven C. Bennett and Thomas A. Zaceara, Asst. U.S. Attys., S.D.N.Y., New York City (Otto G. Obermaier, U.S. Atty., of counsel), for defendants-appellees.
Before: PRATT and MAHONEY, Circuit Judges, and DANIEL M. FRIEDMAN, Circuit Judge of the United States Court of Appeals for the Federal Circuit, sitting by designation.
PER CURIAM:
This appeal was originally heard on January 7, 1993, and decided by a detailed written order dated January 25, 1993, which affirmed the judgment of the United States District Court for the Southern District of New York, substantially for the reasons set forth in Judge Sprizzo’s Memorandum Opinion and Order dated April 30, 1992. 789 F.Supp. 655. Upon further consideration, we conclude that our decision should be published, and we accordingly repeat the substance of our January 25th order in this opinion.
Plaintiff Weiner, appearing pro se, has chronicled her tale of frustrations suffered while seeking a prompt and courteous remedy from the Internal Revenue Service (“IRS”) for its three erroneous and improperly executed levies upon her pension fund at Long Island University and two bank accounts. Weiner alleged several negative consequences of the erroneous tax liens, including a denial of credit when a department store relied on a credit-reporting bureau’s notation of the liens on Weiner’s record, loss of monthly income, embarrassment, loss of reputation at the university where the pension fund was kept, loss of credit rating, and ill health.
Weiner’s efforts to resolve the situation resulted in repeated but unfulfilled verbal assurances from IRS staff that the errors would be corrected. Weiner’s correspondence to the IRS seemed to have been disregarded, and her personal visits to the office were similarly unhelpful. Weiner claims that one IRS letter was illustrative of her experience with the agency. The letter instructed her that writing the IRS within the next three months, while the agency underwent a computer-system conversion, would be futile and would, in fact, delay processing requests concerning her account.
The IRS does not dispute that the three levies were unauthorized, and that they were executed with lack of proper notice to Weiner. In fact, the IRS entered into a settlement agreement to return the funds that the IRS obtained from the wrongful levy against Weiner’s pension account. We note however that the IRS waited 2-and-V2 years after Weiner filed this lawsuit against it to do so.
The record is clear that Weiner’s bank accounts were improperly levied upon due to “computer error” at the IRS. In this suit, Weiner seeks damages flowing from the wrongful levies. Weiner’s principal concern however, is not money damages, but what seems like a reasonable request under the circumstances—that the IRS provide a letter acknowledging its multiple errors, and a “statement and or information” as to why Weiner’s tax return was handled in an unauthorized manner. Weiner further asks for the IRS collection division to operate with “courtesy in handling clients”, and that it acknowledge and respond to communications. Finally, in a plea that evokes almost Orwellian imagery, Weiner asks this court “[i]s there something in the IRS record that [I] should know about?”
Unfortunately, Weiner has no legal remedies for damages, to compel an apology from the IRS, or even to obtain an explanation of the errors that caused the improper levies. Congress has enacted a thicket of statutes that protect federal employees from liability for the improper execution of their duties, and has thereby blocked Weiner’s path to legal redress in this case. The relevant provision of the tort claims act bars tort claims against the federal government which “aris[e] in respect of the assessment * * * of any tax”. 28 U.S.C. § 2680(c). The anti-injunction act, 26 U.S.C. § 7421(a), similarly states that, except in circumstances not relevant here, no suit shall be maintained in any court “for the purpose of restraining the assessment or collection of any tax”. Additionally, plaintiff may not sue for unlawful disclosure of her confidential tax information, because “computer error” by IRS employees does not amount to knowing or negligent disclosure by United States employees. See 26 U.S.C. §§ 7431 and 6103. In short, although the IRS did wrong, congress has immunized it and its employees from liability for damages. While it is understandable that congress would want to protect federal collectors of revenue from harassment by taxpayer litigation, the result of that blanket protection impacts unfortunately upon a taxpayer like Weiner, who simply sought courteous and fair dealing from the IRS.
We are often expected to live with governmental actions that resist characterization as rational. And while modern urban life may bring to all its share of petty insults or injuries, we certainly sympathize with the plight of one like Weiner who, using all methods at her disposal, was still unable to secure a speedy resolution of such obvious governmental error. The reason she can not obtain the apology that she so clearly deserves is no doubt due, regrettably, to the fact that probably not one individual in the entire IRS bureaucracy believes that he or she did wrong. While this court cannot speak for the IRS, it may be some comfort to Weiner that she has convinced us that while she is entitled to no legal remedy, fair dealing and simple courtesy should have impelled the IRS to have corrected its error more expeditiously, to have apologized for having erred in the first place, and to have provided her with sufficient documentation of its error to enable her to undo some of the harm done to her.
Affirmed.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_counsel2
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
W. Van Meter ALFORD, Plaintiff-Appellee, v. CONTINENTAL CASUALTY Company, Defendant-Appellant (two cases). W. Van Meter ALFORD, Plaintiff-Appellee-Cross-Appellant, v. CONTINENTAL CASUALTY COMPANY, Defendant-Appellant-Cross-Appellee.
Nos. 75-1019, 75-1020.
United States Court of Appeals, Sixth Circuit.
Argued June 3, 1975.
Decided Oct. 6, 1975.
William H. McCann, Brown, Sledd & McCann, Lexington, Ky., for Continental Cas. Co.
R. J. Turley, Turley, Savage & Moore, Lexington, Ky., for W. Van Meter Alford.
Before PHILLIPS, Chief Judge, and WEICK and EDWARDS, Circuit Judges.
PHILLIPS, Chief Judge.
In May 1972, William Van Meter Alford underwent surgery for the removal of a small tumor in the lacrimal gland near his left eye. The operation was performed skillfully by a competent surgeon, and there is no allegation of medical negligence. Two days later the bandages were removed, and it was discovered that Mr. Alford had lost sight in his left eye. The surgeon was surprised at this unfortunate and unusual development, and none of the physicians involved in the case was able to explain definitely the cause of Mr. Alford’s partial blindness. The medical testimony indicated that the loss of vision probably resulted from a temporary occlusion or spasm of the central retinal artery, but the cause of the occlusion is unknown. The physicians saw no causal relationship between the presence of the tumor and the occlusion, but they guessed that Mr. Alford would not have lost vision in his left eye if the operation had not been performed.
At the time of the surgery, Mr. Alford was insured under an accidental death and dismemberment insurance policy issued by Continental Casualty Company. The policy provided that the insured would receive $37,500 for the loss of sight in one eye resulting from “bodily injury caused by an accident.” Mr. Alford filed a timely claim under the policy, stating that his loss was the result of an accidental injury during surgery. After processing and investigating the claim, Continental concluded that Mr. Alford’s loss of vision was not the result of an accident within the meaning of the policy. Accordingly, Continental refused payment of the claim.
Subsequent negotiations were fruitless, and Mr. Alford eventually filed suit against Continental in Fayette Circuit Court, Fayette County, Kentucky, seeking recovery of the $37,500 allegedly due under the insurance contract. In addition, the complaint sought compensatory and punitive damages on the ground that Continental’s refusal to pay Mr. Alford’s claim was oppressive and in bad faith and therefore tortious. Continental removed the action to the District Court on the basis of diversity jurisdiction, and the case came on for trial before the late District Judge Mac Swinford. At the close of the evidence, both parties moved for a directed verdict. Judge Swinford dismissed the tort claim and submitted the contract claim to the jury, which found in favor of the plaintiff. Accordingly, the court entered judgment against Continental in the amount of' $37,500, plus interest and posts. Both parties have appealed to this court.
In Continental’s appeal, it argues that as a matter of Kentucky law plaintiff’s evidence was insufficient to create a jury question on the issue of whether Mr. Alford’s loss of sight was accidental within the meaning of the insurance policy. The court’s denial of Continental’s motion for a directed verdict and its instructions to the jury on the meaning of the word “accident” were based largely on Donohue v. Washington National Insurance Co., 259 Ky. 611, 82 S.W.2d 780 (1935). In this case, the insured was stricken with a sharp pain in his hip while lifting a large can of oil. The pain caused him to fall on the afflicted hip, and the injury resulted in a substantial period of disability. The attending physician apparently was unable to identify with certainty the cause of the initial pain. The court held that the trial judge should have submitted to the jury the question of whether the insured’s injury was accidental. In the course of its opinion, the court discussed generally the law applicable to accident insurance policies:
An accident in its commonly accepted meaning and as used in insurance contracts is “an event that takes place without one’s foresight or expectation. An undesigned, sudden and unexpected event, * * * happening by chance or unexpectedly, taking place not according to the usual course of things.” “An event which proceeds from an unknown cause, or is an unusual effect of a known cause, and therefore not expected; chance, casualty or contingency.” Pack v. Prudential Casualty Co., 170 Ky. 47, 185 S.W. 496, 498, L.R.A.1916E, 952; Huffman v. Commonwealth, 193 Ky. 79, 234 S.W. 962, 964.
The words “accident,” “accidental” and “accidental means,” as used in insurance policies, have never acquired a technical meaning in law, and must be interpreted according to the usage of the average man and as they would be read and understood by him in the light of the prevailing rule that uncertainties and ambiguities must be resolved in favor of the insured. Id. at 613, 619, 82 S.W.2d at 781, 784.
If this is an accurate statement of Kentucky law, Judge Swinford was surely correct in overruling Continental’s motion for a directed verdict and in submitting the contract claim to the jury. There was ample evidence to the effect that Mr. Alford’s loss of vision was an entirely unforeseen and unexpected result arising from an unknown ultimate cause. Under the Donohue definition, the evidence plainly warranted a finding by the jury that Mr. Alford’s loss was accidental.
Continental, however, argues that Donohue is factually distinguishable and that this case should be controlled by Salinger v. Fidelity & Casualty Co., 178 Ky. 369, 198 S.W. 1163 (1917), which stated that “an injury is not produced by accidental means within the terms of an accident insurance policy where it is the direct though unexpected result of an ordinary act in which the insured intentionally engages.” Id. at 371, 198 S.W. at 1164. Continental believes that under Salinger plaintiff suffered no accident, since his blindness resulted from the surgery, which he underwent intentionally.
Although the issue is not free from doubt, we hold that the District Court properly applied the Donohue definition in the case at bar. It appears that the effect of the language from Salinger quoted above was called into question by the court’s later opinion in Donohue, in which the court concluded that:
[Salinger is not] rested on the theory that the insured was voluntarily and intentionally doing the thing claimed to have caused the injury, although that principle was referred to in [the opinion]. The opinion in [Salinger] was based on the theory that the injury resulted from disease 259 Ky. at 615, 82 S.W.2d at 782.
In the case at bar, of course, the evidence indicated that Mr. Alford’s loss of vision did not result from the disease in his lacrimal gland.
Furthermore, a number of subsequent cases have relied upon Donohue in defining the word “accident.” The Travelers v. Humming Bird Coal Co., 371 S.W.2d 35, 38 (Ky.1963); Travelers Ins. Co. v. Witt, 260 S.W.2d 641, 642-43 (Ky.1953); Pacific Mutual Life Ins. Co. v. Fagan, 292 Ky. 533, 536-37, 166 S.W.2d 1007, 1009 (1942). In these cases, the court essentially looked to the factors identified by Donohue in determining whether the injury involved was accidental. We eonclude that Donohue states general principles of Kentucky insurance law properly applicable to this case. Accordingly, the District Court did not err in denying Continental’s motion for a directed verdict on the contract claim.
In his appeal, Mr. Alford contends that the District Court should have submitted to the jury his tort claim for compensatory and punitive damages based on Continental’s refusal to make payment under the policy. Initially, we note our uncertainty that Kentucky recognizes a cause of action in tort for refusal to pay an insurance claim. See McNutt v. State Farm Mutual Automobile Ins. Co., 369 F.Supp. 381, 385-86 (W.D.Ky.1973), aff’d 494 F.2d 1282 (6th Cir. 1974); United States Fidelity & Guar. Co. v. Fyffe, 471 S.W.2d 23 (Ky. 1971); General Accident Fire & Life Assurance Corp. v. Judd, 400 S.W.2d 685 (Ky.1966).
As we view the matter, however, this question of Kentucky law need not be resolved. Mr. Alford does not argue that he is entitled to recover in tort in the absence of bad faith or unreasonable conduct on the part of the insurer, and in this respect the proof was entirely inadequate. The record in this case demonstrates that Continental obtained several medical reports from the doctors who treated Mr. Alford. This information was examined by Continental’s claims adjusters and reviewed by the company’s medical staff. Mr. Alford’s claim was considered thoroughly by Continental employees in consultation with each other. In addition, it was by no means obvious that Mr. Alford’s loss of sight was accidental within the meaning of the insurance policy. There is simply no evidence that Continental’s refusal to make payment was motivated by other than a good-faith belief that Mr. Alford’s loss was not covered under the policy. Since there was no evidence of bad faith or unreasonable conduct, the District Court properly directed a verdict in favor of Continental on the tort issue,
The judgment of the District Court is affirmed. No costs are taxed; each party will bear its own costs on appeal,
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_appnonp
|
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 appellants in the case that fall into the category "groups and associations". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
KEELER et al. v. FRED T. LEY & CO., Inc.
No. 2544.
Circuit Court of Appeals, First Circuit.
May 16, 1931.
Lothrop Withington, of Boston, Mass. (Edward C. Park and Withington, Cross, Proctor & Park, all of Boston, Mass., on the brief), for appellants.
Herbert Parker, of Boston, Mass. (Charles G. Gardner and William V. Baldwin, both of Springfield, Mass., on the brief), for appellee.
Before BINGHAM, ANDERSON, and WILSON, Circuit Judges.
ANDERSON, Circuit Judge.
This was an action for deceit in inducing the plaintiffs to enter into contracts. At the close of the plaintiffs’ evidence the court ordered a verdict for' the defendant. Under such circumstances, the plaintiffs were entitled to have their evidence considered in its aspect most favorable to them. Gray v. Davis, etc. (C. C. A.) 294 F. 57; Union Pacific R. R. v. Huxoll, 245 U. S. 535, 539, 38 S. Ct. 187, 62 L. Ed. 455; Myers v. Pittsburgh Coal Co., 233 U. S. 184, 34 S. Ct. 559, 58 L. Ed. 906.
There was evidence tending to show facts as follows: In the fall of 1927 the plaintiffs owned the vacant Keeler Hotel site, in Al'bany, N. Y. The business of the defendant had been, for a generation, the construction of public works and buildings, and the management of buildings owned by controlled subsidiary corporations. Its treasurer, principal stockholder, and chief executive was Pred T. Ley. It was an expert both in building and in the management of such properties.
In November, 1927, the plaintiffs negotiated with Ley for the sale of this vacant land at an agreed price of $1,010,000 upon the understanding that the defendant was to construct an office building thereon substantially like another building built by defendant in New York City. Ley had an estimate made of the cost of such a building, and told plaintiffs that the structural cost thereof would be not less than $850,000; that the Ley Company would continue to operate the completed building through its subsidiary, and would look to the common stock of such subsidiary for its profit; that the Ley Company would have an investment of $150,000 to $200,000 above a contemplated first mortgage of $850,000 on the completed property.
Accordingly, the plaintiffs deeded their land to the defendant’s ■ subsidiary — the Broadway-Maiden Lane Corporation — which executed a first mortgage for $850,000 to the Pirst Trust Company of Albany, and a second mortgage for $870,000 to the plaintiffs. Prom the proceeds of the'first mortgage, the plaintiffs were paid $140,000, and the building was erected by the defendant,-at an actual cost of about $500,000. The defendant got as profit the balance of the proceeds of the first mortgage. The Broadway-Maiden Lane 'Company shortly defaulted on the interest on both mortgages as well as on the taxes. The plaintiffs were therefore constrained to pay the interest on the first mortgage and the taxes, and to foreclose their second mortgage.
Ley’s representations that the building-' would cost not less than $850,009 and that his company would continue in the management thereof until it was on an income-produeing basis were knowingly false.
Ley himself, called as a witness by the plaintiffs, testified specifically that, when the contract was made, he did not intend to cause his company to expend $850,000 on the contemplated building; that he fully expected to obtain a profit out of the proceeds of the first mortgage to be placed on the building; that “it was not his expectation or intention that there would not be any profit to the Ley Company out of the proceeds of the first mortgage. It is a fact that they obtained a profit from the proceeds of the first mortgage. It was not his expectation and intention * f ’ that his company would necessarily manage the business, either through direct ownership or through a subsidiary, until it was upon an income-producing basis.”
These false representations were substantially repeated in January, 1928, in defendant’s application to the Trust Company for the first mortgage of $850,000. There was abundant evidence that these false representations by Ley were believed and relied upon by the plaintiffs and induced them to deed their land to the defendant’s subsidiary and to make a contract with the defendant for the erection of*a building thereon, under financial arrangements above outlined.
Neither into the deed nor into this contract were inserted the representations made by Ley as to the cost of the building and its continued operation by defendant through its subsidiary. The defendant contends, and the court below apparently ruled, that all the rights and obligations of the parties were strictly limited by and to the terms of the ' contract itself. This was error. The correct rule was stated by the same learned District Judge in overruling the demurrer when he said: “The defendant demurred to the declaration, and stated as ground for demurrer that the statement of facts in the declaration showed that after the alleged misrepresentation had been made a contract was entered into which contained the entire agreement between the parties, and the parol evidence rule would not allow the plaintiffs to prove anything in variance with the contract. In. my opinion this argument is unsound. * * * The parol evidence rule has no application, as this is not a suit on a contract but is an action of tort for deceit in fraudulently inducing the plaintiffs to enter into a contract.”
It was no more necessary to set forth the inducing representations in the building contract than it was in the deed of the land. A party fraudulently induced to execute a deed is not remediless because the inducements thereto are not contained in the deed itself. Adams v. Gillig, 199 N. Y. 314, 319, 322, 92 N. E. 670, 32 L. R. A. (N. S.) 127, 20 Ann. Cas. 910; Ritzwoller v. Lurie, 225 N. Y. 464, 467, 122 N. E. 634.
The case is to be governed by the law of New York. James-Dickinson Co. v. Harry, 273 U. S. 119, 125, 47 S. Ct. 308, 71 L. Ed. 569; Huntington v. Attrill, 146 U. S. 657, 13 S. Ct. 224, 36 L. Ed. 1123.
The New York rule is well stated in Arnold, v. National Aniline & Chemical Co. (C. C. A.) 20 F.(2d) 364, 369, 56 A. L. R. 4. We have no occasion to determine whether the law of Massachusetts is in any way different.
It is well settled that fraud may consist in asserting a belief or an opinion, when such belief or opinion is not entertained and the assertion is made in bad faith, with a design to mislead and deceive. See Milliken-Tomlinson Co. v. Am. Sug. Ref. Co. (C. C. A.) 9 F.(2d) 809, 815, and eases cited. Shackett v. Bickford, 74 N. H. 57, 59, 60, 65 A. 252, 7 L. R. A. (N. S.) 646, 124 Am. St. Rep. 933;. Adams v. Gillig, supra.
In Vulcan Metals Co., Inc., v. Simmons Mfg. Co., 248 F. 853, 856, Judge Learned Hand, speaking for the Circuit Court of Appeals for the Second Circuit, said:
“An opinion is a fact, and it may be a very relevant fact; the expression of an opinion is the assertion of a belief, and any rule which condones the expression of a consciously false opinion condones a consciously false statement of fact. When the parties are so situated that the buyer may reasonably rely upon the expression of the seller’s opinion, it is no excuse to give a false one. Bigler v. Flickinger, 55 Pa. 279. And so it makes much difference whether the parties stand ‘on an equality.’ For example, we should treat very differently the expressed opinion of a chemist to a layman about the properties of a composition from the same opinion between chemist and chemist, when the buyer had full opportunity to examine.”
In Seven Cases v. United States, 239 U. S. 510, 517, 36 S. Ct. 190, 193, 60 L. Ed. 411, L. R. A. 1916D, 164, the court said:
“It is said that the owner has the right to give his views regarding the effect of his drugs. But state of mind'is itself a fact, and may be a material fact, and false and fraudulent representations may be made about it; and persons who make or deal in substances or compositions alleged to be curative are in a position to have superior knowledge, and may be held to good faith in their statements.”
See, also, authorities cited in 239 U. S. page 518, 36 S. Ct. 190, 193. Cf. Gordon v. Butler, 105 U. S. 553, 558, 26 L. Ed. 1166; 3 Williston on Contracts, No. 1494; Kerr on Fraud and Mistake (5th Ed.) p. 51; Simar v. Canaday, 53 N. Y. 298, 306, 13 Am. Rep. 523; People v. Peckens, 153 N. Y. 576, 591, 47 N. E. 883; Edgington v. Fitzmaurice, L. R. 29 Ch. Div. 459.
The plaintiffs’ evidence would warrant a finding of fraud. It tended to show that Ley not only intentionally misrepresented the actual estimate of the' cost of the contemplated building; but also falsely stated his intention of staying with the project until the completed building was a financial success; and the defendant apparently derived from its fraud an immediate profit of nearly $200,-000. Cf. Aaron’s Reefs v. Twiss, L. R. (1896) A. C. 273, 285.
The ruling that the plaintiffs were barred by their contract was error.
The judgment of the District Court is reversed, with costs, and the case is remanded to that court for further proceedings notv inconsistent with this opinion.
Question: What is the total number of appellants in the case that fall into the category "groups and associations"? Answer with a number.
Answer:
|
songer_casetyp1_2-3-2
|
F
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "civil rights - voting rights, race discrimination, sex discrimination".
Ben JOHNSON, III, Appellant, v. LEGAL SERVICES OF ARKANSAS, INC.; Gil Glover, Individually and in his capacity as Executive Director of Legal Services of Arkansas; Vince Foster; William H. Hodge; Evangeline Brown; Eddie Walker, Jr.; Bill D. Etter; G. Alan Wooten; Gregory T. Karber; Floyd Thomas; Ruthie Williams; Sam Whitfield; Virginia Holt; Patti Goff; Charles Clifford Gibson, III; and Demaris Hart Edwards, Individually and in their capacity as members of the Board of Directors of Legal Services of Arkansas, Appellees.
No. 85-2440.
United States Court of Appeals, Eighth Circuit.
Submitted Sept. 10, 1986.
Decided March 10, 1987.
Rehearing Denied April 27, 1987.
Richard Quiggle, Little Rock, Ark., for appellant.
Darrell P. Brown, Little Rock, Ark., for appellees.
Before LAY, Chief Judge, HEANEY, Circuit Judge, and HENLEY, Senior Circuit Judge.
HENLEY, Senior Circuit Judge.
Ben Johnson appeals from judgment entered against him by the United States District Court for the Eastern District of Arkansas. Johnson sued Legal Services of Arkansas, Inc. (LSA), Gil Glover, its Executive Director, and the members of LSA’s Board of Directors for race, handicap and retaliatory discrimination under 29 U.S.C. § 794 and 42 U.S.C. §§ 1981, 1983 and 2000e. Johnson’s complaint also included a pendent state claim for intentional infliction of emotional distress. Following a bench trial, the court found in favor of the defendants on all claims. On appeal Johnson contends that the district court made numerous factual and legal errors in considering his claims. We affirm in part and reverse and remand in part with directions.
Johnson, a blind black attorney, began working for LSA on July 18,1983 as directing attorney for the Monticello branch office. As will be seen, Johnson’s tenure with LSA was stormy. On March 19, 1984 appellee Gil Glover, the Executive Director of LSA, issued three reprimands to Johnson. Johnson filed charges of discrimination with the EEOC on March 22, 1984. On April 27, 1984, Glover began an investigation of Johnson’s unauthorized handling of cases he retained from private practice. Johnson filed a charge of retaliation with the EEOC on May 2, 1984. On May 8, 1984, Glover terminated Johnson for failure to rid himself of his private cases and for unauthorized representation of non-LSA clients in violation of his employment contract and LSA policy. The Personnel Committee reinstated Johnson at a hearing on May 12,1984, and they gave him sixty days from May 23, 1984 to rid himself of his private cases. Johnson was terminated again on January 12, 1985 when the Personnel Committee determined that he had not complied with the condition of his reinstatement. Johnson subsequently filed another retaliation charge with the EEOC.
I. DISCRIMINATION CLAIMS.
The three-step burden shifting presentation of proof procedure used in Title VII cases is by now all too familiar. The plaintiff must first prove a prima facie case of discrimination by a preponderance of the evidence. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-58, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). If the plaintiff succeeds, it then becomes the burden of the defendant to show a legitimate, nondiscriminatory reason for the adverse employment action. Burdine, 450 U.S. at 253, 101 S.Ct. at 1093; Green, 411 U.S. at 802, 93 S.Ct. at 1824. Finally, if the defendant succeeds, the plaintiff must prove by a preponderance of the evidence that the reason given by the defendant for the challenged employment action was pretextual. Burdine, 450 U.S. at 253, 101 S.Ct. at 1093; Green, 411 U.S. at 804, 93 S.Ct. at 1825.
A prima facie case of discrimination consists of proof that the plaintiff is a member of a protected class, and that an adverse employment action was taken against the plaintiff in circumstances from which an inference of unlawful discrimination arises. See Burdine, 450 U.S. at 253, 101 S.Ct. at 1093; Green, 411 U.S. at 802, 93 S.Ct. at 1824. An inference of discrimination is commonly raised in these cases by proving disparate treatment. A plaintiff proves disparate treatment by showing that he was treated less favorably than similarly situated employees who are not in plaintiffs protected class. See Boner v. Board of Commissioners, 674 F.2d 693, 696-97 (8th Cir.1982).
The same procedure for the order and allocation of proof is used for claims brought under 42 U.S.C. § 1981, Kenyatta v. Bookey Packing Co., 649 F.2d 552, 554 (8th Cir.1981), and for claims brought under 29 U.S.C. § 794 when the defendant has denied considering handicap in an employment action, Norcross v. Sneed, 755 F.2d 113, 116-17 (8th Cir.1985).
In reviewing the decision of the district court, we are bound by the “clearly erroneous” standard of Fed.R.Civ.P. 52(a). We cannot hold the district court’s findings of fact to be clearly erroneous unless we are “ ‘left with the definite and firm conviction that a mistake has been committed.’ ” Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 541, 92 L.Ed. 746 (1948)).
Johnson challenges three adverse employment actions: (1) the three reprimands given to him by Gil Glover; (2) his first termination by Gil Glover; and (3) his final termination by the Personnel Committee. We will review these three actions separately.
In a memo dated March 19, 1984 Gil Glover reprimanded Johnson for being sexist, for poor management, particularly with respect to case acceptance, and for insubordination. Johnson contends that these reprimands were groundless and that they were motivated by his race and handicap. The court found that regardless of the merits of the reprimands, there was no evidence in the record to show that they were discriminatorily motivated by Johnson’s race or handicap. We agree.
Johnson completely failed to show that with these reprimands he was being treated less favorably in circumstances from which discrimination could be inferred. These reprimands were the product of a bitter dispute between Johnson and Gil Glover in which each party was probably partially right and partially wrong. Disputes generally arise out of mutual misunderstanding, misinterpretation and overreaction, and without more, such disputes do not give rise to an inference of discrimination.
Johnson’s only disparate treatment evidence relating to the reprimands goes to the charge that he was a sexist. Johnson contends that David Manley, a sighted white male LSA employee was similarly situated. Michal Garland, a former female LSA employee, reported to Gil Glover that Manley had sexually harassed her, and in addition she filed charges with the EEOC as a result of Manley’s conduct. We agree that Manley appears to have been a sighted non-minority LSA employee similarly situated to Johnson, but Johnson failed to show that Manley was treated more favorably. Indeed, the record contains no evidence of what action, if any, was taken against Manley. Garland testified that she did not know if any action was taken against Manley. Absent proof that Manley was treated more favorably, Johnson has failed to show disparate treatment.
While it appears that the three reprimands were somewhat the result of overreaction on Glover’s part and that they may have been inartfully written and a bit overblown, they were not groundless, as claimed by Johnson. In the fall of 1983 two female employees in the Monticello office complained of Johnson’s conduct towards them. These complaints were related to Glover by Barbara Smith, Glover’s Executive Assistant, and by Kay Allen. Although Glover thought that Johnson’s reported conduct was sexist, he chose not to take any action at that time. The problems in the Monticello office were later worked out, and the two female employees stated that they thought the situation was the result of their difficulty in adjusting to Johnson’s handicap. Glover was not immediately informed that these problems had been resolved. When he later concluded that Johnson’s attitude toward women played a part in a late February, 1984 conflict with Jean Turner Carter, a female Little Rock staff attorney, Glover reprimanded Johnson for being sexist. While it was perhaps a bit strong, this reprimand did have some basis in fact.
The poor management reprimand dealt mostly with Johnson’s case acceptance practices. Glover reprimanded Johnson for failure to abide by LSA case acceptance policies and for using his own subjective criteria to accept or reject cases. The conflict over case acceptance was well documented in various memoranda, and both Glover and Johnson were probably partially wrong and partially right. This reprimand was not without factual basis.
The insubordination reprimand was based on language used by Johnson in several memoranda which Glover perceived to be attacks on himself and LSA. Past memoranda from Johnson had at least insinuated that Glover and LSA were not committed to helping poor blacks. Johnson’s memoranda of late February and early March, 1984 contained accusations that Glover was not treating him fairly. Glover interpreted these memoranda as accusing him of discrimination. While Glover’s reprimand may have been an overreaction to Johnson’s memoranda, it was not groundless. The memoranda showed that Johnson did not take orders or criticism well, and he often used strong language and accusations when he became defensive. He often vehemently challenged Glover’s administrative decisions and was insubordinate.
There is no evidence in the record regarding these three reprimands from which an inference of discrimination can be drawn. Thus, we conclude that Johnson failed to make a prima facie case of either race or handicap discrimination with regard to the reprimands, and we find no error of fact or law in the district court’s decision to that effect.
As a result of the reprimands, Johnson filed charges of discrimination with the EEOC on March 22, 1984. On May 8, 1984 Glover terminated Johnson for unauthorized representation of non-LSA clients and for failure to rid himself of his cases carried over from private practice. Other grounds stated for the action were Johnson’s failure to cooperate in the investigation of his unauthorized private practice and his past conduct and warnings. Johnson claims that this termination was discriminatorily motivated by his race and handicap. He also contends that Glover terminated him in retaliation for the EEOC charge of March 22.
To some extent LSA is governed by federal statutes and regulations. 42 U.S.C. § 2996f(a)(4) states:
With respect to grants or contracts in connection with the provision of legal assistance to eligible clients under this subchapter, the Corporation shall—
(4) insure that attorneys employed full time in legal assistance activities supported in major part by the Corporation refrain from (A) any compensated outside practice of law, and (B) any uncompensated outside practice of law except as authorized in guidelines promulgated by the Corporation];.]
45 C.F.R. § 1604.3 states:
No attorney shall engage in any outside practice of law if the director ... has determined that such practice is inconsistent with the attorney’s full time responsibilities.
Section 1604.4 states:
A recipient may permit an attorney to engage in the outside practice of law for compensation if § 1604.3 is satisfied, and
(a) The attorney is newly employed and has a professional responsibility to close cases from a previous law practice, and does so as expeditiously as possible];.]
Section 1604.5 states:
A recipient may permit an attorney to engage in uncompensated outside practice of law if 1604.3 is satisfied, and the attorney is acting [on behalf of]:
(b) A close friend or family member[.]
When Johnson began work for LSA on July 18, 1983 he had forty-six active cases in his private practice. In his employment agreement, Johnson was given three months to dispose of his private cases. Johnson was later given a three-week extension on this deadline, but he failed to rid himself of his private cases. He offered two explanations for his failure to meet the initial deadline. First, Johnson said that his private secretary who was helping him on the cases found other employment. Second, he stated that he had worked out a plan with another attorney, Julius Kearney, whereby Kearney would take over Johnson’s private cases by October 18, 1983. He claimed that Kearney’s acceptance of another job made this arrangement impossible. Kearney testified that he did not remember any arrangement with Johnson, and he further stated that had such an arrangement involving that many cases been discussed, he would remember.
In the months following the expiration of Johnson’s three-week deadline extension, he properly requested and received permission from Glover to take particular action in one or two of his cases. On April 23, 1984 Johnson went to Pine Bluff without Glover’s knowledge to try one of his private cases. Glover discovered this unauthorized conduct and in a letter dated April 27, 1984 he informed Johnson that he was going to investigate the matter. A meeting on May 1, 1984 between Glover and Johnson ended in anger before it ever got started, and Johnson was instructed to respond in writing regarding the April 23 trial. On May 2, 1984 Johnson responded in writing to Glover’s investigation and also filed a charge of retaliation with the EEOC. On May 8, 1984 Johnson was terminated.
The district court found that Johnson failed to establish a prima facie case of discrimination with respect to this first termination. In the context of race and handicap discrimination, we agree. Johnson claims that throughout his tenure Glover knew that he still had private cases. The record indicates that after the original extended deadline, Johnson requested permission to take particular action in only one or two cases. This was hardly enough to indicate to Glover that Johnson still retained a massive private caseload in violation of his employment agreement and LSA policy. It was only when Johnson violated LSA policy by trying a case for a non-LSA client without permission that Glover discovered Johnson’s continued substantial private practice.
Johnson contends that Sam Pope, Larry Dunklin and Jan Scussel were similarly situated LSA employees who were not terminated for representing non-LSA clients. The district court found that these three were not similarly situated to Johnson, and we agree. As stated in his employment contract, Pope was governed by the same rules as was Johnson. Pope had a very small private caseload when he joined LSA. He obeyed all rules in requesting permission from the Director when time away from work was needed for private practice, and he disposed of his private cases very shortly after joining LSA. Larry Dunklin asked for and received permission to represent a close personal friend in a Title VII case in order to save his friend legal fees. Section 1604.5 expressly covers this situation. Scussel had between five and ten private cases when she joined LSA in May of 1984. She had enlisted joint counsel in all but one case. Three months later, in August of 1984, she was asked to submit a report on her private cases. She listed two cases in which she was actively involved, and they were cases in which she was only attempting to collect legal fees.
Johnson failed to show that with his May 8, 1984 termination he was treated less favorably than similarly situated employees who were not members of his protected class. He failed to raise in any way an inference of race or handicap discrimination, and he therefore failed to establish a prima facie case of race or handicap discrimination with respect to his first termination.
Johnson’s charge of retaliation in connection with his first termination is a more troublesome issue. In order to establish a prima facie case of retaliation under 42 U.S.C. § 2000e-3(a), Johnson needed to show: “(1) statutorily protected participation [in Title VII proceedings]; (2) adverse employment action; and (3) a causal connection between the two.” Womack v. Munson, 619 F.2d 1292, 1296 (8th Cir.1980), cert. denied, 450 U.S. 979, 101 S.Ct. 1513, 67 L.Ed.2d 814 (1981). In testimony that is somewhat unclear, on cross-examination Glover in effect may have admitted that he considered Johnson’s EEOC charges as one factor in making his decision to terminate Johnson. While this admission may have tended to establish a prima facie case of retaliation, the trial court did find that Johnson’s continued private practice was a legitimate, nondiscriminatory, nonpretextual reason for his termination. We find no error in this determination.
The district court’s finding that the record contained no evidence of retaliation was, however, in error. Although on direct examination Glover denied discrimination on account of EEOC charges, litigation, race or handicap, in light of his cross-examination Glover may have presented a classic mixed motive case in which an unlawfully discriminatory consideration was a discernible factor in an employment decision. In Womack, we adopted a “same decision” test in mixed motive retaliation cases, but we indicated that the discriminatory consideration had to be a substantial factor in the employment decision before the mixed motive analysis applied. Id. at 1297. Under the Womack test, the employer completely escaped liability if he could show that the same decision would have been made absent the discriminatory consideration. Id.
We have since decided Bibbs v. Block, 778 F.2d 1318 (8th Cir.1985) (en banc), in which the “same decision” test was modified for Title VII mixed motive situations. Bibbs can be factually distinguished but its holdings are applicable here. Under Bibbs, in a mixed motive case once a plaintiff establishes that a discriminatory consideration played some part in an employment decision adverse to a claimant, he has established a Title VII violation and is entitled to limited relief, including, as may be appropriate, declaratory or injunctive relief and partial attorney’s fees. Id. at 1323-24. The employer, however, may avoid reinstatement and backpay if he can prove by a preponderance of the evidence that the same decision would have been made absent the discriminatory consideration. Id. at 1324.
The district court did not have the benefit of Bibbs when this case was decided nor do its findings adequately and completely cover the Bibbs problem. We therefore remand Johnson’s retaliation claim arising from his May 8, 1984 termination for further consideration. In applying Bibbs to this claim, the court should address Glover’s deposition testimony in which he may have agreed that he had taken Johnson’s EEOC claim into consideration. The court, however, is not bound to accept this testimony, and, in fact, good reasons exist to doubt its value.
Should the court find that retaliation played some invidious part in the May 8, 1984 termination, a violation of Title VII will be established under Bibbs and Johnson will be entitled to limited relief. In that event, the district court should determine whether LSA established by a preponderance of the evidence that the same decision would have been made absent the retaliatory factor. The record contains strong evidence that the same decision would have been made, and in fact later was made, absent consideration of the EEOC charges. Should the court determine that LSA failed to carry this burden, Johnson will be entitled to an appropriate award under the full array of Title VII relief. The court should note that Johnson was reinstated by the Personnel Committee very shortly after this first termination, and any relief awarded in all probability should be minimal. Although no new hearings or evidence appear to be needed for the findings required by this remand, such proceedings are not prohibited.
As indicated, Johnson appealed his May 8, 1984 termination to the Personnel Committee. Following a hearing on May 12,1984, the Committee reinstated Johnson conditioned upon his ridding himself of his private cases within sixty days from May 23, 1984. The Personnel Committee was made up of one black female, one black male and one white male. In early June the LSA Board set up a Management Committee to oversee Johnson in order to create a buffer between Glover and him. The Management Committee consisted of one black male and one white male.
Johnson attempted to enlist attorney Don Glover as joint counsel on some of his cases, but he still failed to dispose of all of his private cases. As of May 23, 1984 Johnson was sole attorney in ten cases. On July 30, 1984 Johnson reported to the Personnel Committee that he was attempting joint entry with Don Glover on several of the cases. He stated, however, that he still wanted to be active in most of these cases due to Don Glover’s inexperience with Title VII matters. At a hearing on January 12, 1985, almost six months past the sixty-day deadline, the Personnel Committee determined that to a limited extent Johnson was still active in private litigation. They therefore terminated Johnson for failure to comply with the condition of his reinstatement.
We have already upheld the district court’s finding that Johnson’s private practice constituted a legitimate, nondiscriminatory, and nonpretextual reason for his termination. Johnson argues that he tried several times to get responses and clarifications from the Personnel Committee, but was unsuccessful. He contends that he did not know that the Committee’s sixty-day deadline was rigid and final. These arguments defy logic. Even though Johnson may have had trouble communicating with the Committee, no one ever told him that he was relieved from the deadline. A conditional reinstatement is very serious, and Johnson violated the condition at his peril.
We agree with the district court that Johnson failed to establish a prima facie case of race, handicap or retaliatory discrimination with respect to his final termination. He was given a second chance to comply with LSA policy and he was treated fairly by the Personnel Committee. No inference of unlawful discrimination can be drawn from these circumstances.
II. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS.
We turn to Johnson’s pendent state claim for intentional infliction of emotional distress. The district court found that since there was no basis for Johnson’s discrimination claims, there was no support in the record for his claim of intentional infliction of emotional distress. Although to a degree it appears that the court may have used phraseology that unnecessarily tied the discrimination and emotional distress claims together, the result was correct.
The elements of the tort of intentional infliction of emotional distress are “(1) extreme and outrageous conduct, (2) willfully or wantonly performed, (8) which caused severe emotional distress.” Lucas v. Brown & Root, Inc., 736 F.2d 1202, 1206 (8th Cir.1984) (quoting Orlando v. Alamo, 646 F.2d 1288, 1290 (8th Cir.1981)). The Arkansas Supreme Court has adopted the approach of the Restatement (Second) of Torts § 46 comment d, in holding that outrageous conduct is “conduct that is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.” M.B.M. Co. v. Counce, 268 Ark. 269, 280, 596 S.W.2d 681, 687 (1980).
There is no evidence of any actions by any of the appellees which rises to the level of outrageous conduct. Hence the district court’s conclusion that there was no support in the record for Johnson’s intentional infliction of emotional distress claim was clearly required.
III. CONCLUSION.
We reverse the decision of the district court regarding Johnson’s claim of retaliation in his May 8, 1984 termination, and we remand that claim to the court for further proceedings consistent with this opinion. In all other respects, the judgment of the district court should be, and it is, affirmed.
. A mixed motive situation is not presented merely because a plaintiff establishes a Burdine prima facie case, Mullins v. Uniroyal, Inc., 805 F.2d 307, 309 (8th Cir.1986), and we do not so hold.
Bibbs applies only when the employee establishes that the employment decision was based on a mixed motive. For example, a mixed motive case under Bibbs exists when the defendant-employer concedes that [a discriminatory consideration] was a discernible factor ... for the employment decision.
Id. Should the district court decide to treat Glover’s deposition testimony as an admission, this example would appear to be directly on point and a mixed motive case might be presented.
Question: What is the specific issue in the case within the general category of "civil rights - voting rights, race discrimination, sex discrimination"?
A. voting rights - reapportionment & districting
B. participation rights - rights of candidates or groups to fully participate in the political process; access to ballot
C. voting rights - other (includes race discrimination in voting)
D. desegregation of schools
E. other desegregation
F. employment race discrimination - alleged by minority
G. other race discrimination - alleged by minority
H. employment: race discrimination - alleged by caucasin (or opposition to affirmative action plan which benefits minority)
I. other reverse race discrimination claims
J. employment: sex discrimination - alleged by woman
K. pregnancy discrimination
L. other sex discrimination - alleged by woman
M. employment: sex discrimination - alleged by man (or opposition to affirmative action plan which benefits women)
N. other sex discrimination - alleged by man
O. suits raising 42 USC 1983 claims based on race or sex discrimination
Answer:
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songer_dissent
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1
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine the number of judges who dissented from the majority (either with or without opinion). Judges who dissented in part and concurred in part are counted as dissenting.
SYSTEMATIC TOOL & MACHINE COMPANY et al., Appellees, v. WALTER KIDDE & COMPANY, INC., Appellant.
No. 76-1660.
United States Court of Appeals, Third Circuit.
Argued Jan. 11, 1977.
Decided March 25, 1977.
Gordon D. Coplein, Darby & Darby, New York City, Richard M. Rosenbleeth, William H. Roberts, Blank, Rome, Klaus & Comisky, Philadelphia, Pa., Jacob C. Kellem, Connolly, Bove & Lodge, Wilmington, Del., for appellant.
Alan H. Bernstein, Caesar, Rivise, Bernstein & Cohen, Philadelphia, Pa., for appel-lees.
Before ROSENN and HUNTER, Circuit Judges, and SNYDER, District Judge.
Daniel J. Snyder, Jr., United States District Judge for the Western District of Pennsylvania, sitting by designation.
SNYDER, District Judge:
Systematic Tool and Machine Co., Systematic Products, Inc., and Dominic D’Am-bro, licensees, with Clayton E. Giangiulio, owner of the patent, filed this action for patent infringement. The decision of the district court found valid and infringed Patent No. 3,369,582 (hereinafter “the ’582 patent”) issued February 20, 1968, for a hand-operated tomato-slicing device. Appeal was taken to this court under 28 U.S.C. § 1292(a)(4) giving us jurisdiction over “Judgments in civil actions for patent infringement which are final except for accounting.” Since we find the subject matter of the patent and the prior art relating to this device is obvious, we reverse under 35 U.S.C. § 103.
I. THE PATENT IN SUIT
The patent in suit relates to a commercially successful and efficient tomato slicer. As set forth in Claim 1, the device is characterized by the following features:
1. A pusher to hold the tomato and move it with reference to an array of blades.
2. The blade array lying at an angle less than 40° with respect to the pusher path of movement.
3. The angle of separation between the pusher leading arm and trailing arm being greater than 90°.
4. The angle between the leading arm ■ and the cutting edge of the blades being less than 90°.
5. The trailing arm of the pusher making a small acute angle with reference to the cutting edge of the blades.
The plaintiffs assert that the tough skin and mushy interior of a tomato present a unique problem in slicing since a direct perpendicular contact of the tomato and blade edge tends to bruise or mangle the tomato. Plaintiffs’ claimed invention solved this problem by the various angles between the leading and trailing arms which hold the tomato between the pusher and the angle of the cutting edges of the blades to the pusher. The ’582 patent device pushes the tomato in a straight line through the rack of thin blades at an angle less than 40° with respect to the pusher path of movement. See Figure I.
The original claims filed did not relate the angle of the leading and trailing arms to the physical structure or recite any particular angles for them. The Examiner originally rejected the claims for two reasons: (1) for indefiniteness in not stating relationships between the angles and physical structures, and (2) for obviousness over a combination of prior art slicers with similar structures but having somewhat different angles relating to the blades and pusher. The claims were amended to distinguish the prior art (as underlined by the patentee to make it apparent how the claim differed from the prior art) as follows:
“. . .an [relatively small acute] angle less than forty (40) degrees with respect to said pusher path of movement, the angle of separation between said pusher leading arm and trailing arm being greater than 90°. the ande between said leading arm and the cutting edge of said blades being less than 90° with the trailing arm of said pusher making a small acute angle with respect to said cutting edge. . . . whereby said pusher assembly [achieving] achieves a smooth shearing action [by said blades through] with a tomato urged against and through said blades to secure a plurality of thin tomato slices, essentially undamaged, with said tomato holding pocket slots allowing said blades to pass through the tomato.” [Additions to the claim are underlined; deletions are in brackets.]
II. THE ACCUSED DEVICES
There are two accused devices know as the TK-I and the TK-II machines. The TK-I, not sold since 1968, is a virtual copy of the plaintiffs’ machine and was stipulated to be an infringement of the patent in suit, if the court finds the patent in suit valid. The TK-II, not sold since 1972, is a somewhat different looking method of doing that which the plaintiffs’ device (called the “Tomato Tamer”) achieves. See Figure II.
III. THE TRIAL COURT’S TREATMENT
The district court filed a preliminary opinion and order holding the ’582 patent valid and infringed but allowed 30 days to file exceptions. Exceptions were filed and by its second opinion, the district court denied the exceptions, affirming and readopting its earlier findings of fact and conclusions of law. A third order later denied injunctive relief in view of the defendant’s cessation of infringing activities in 1972.
Plaintiffs’ principal witness, Clayton Giangiulio, inventor and former delicatessen operator, pointed out that prior to his invention, tomatoes had been sliced with a hand-held knife, a slow process at best, or with an expensive commercial meat slicer which scattered individual slices, released juice, and required time consuming clean-up procedures. He demonstrated that a tomato could be sliced by pushing it with his hand but not as safely and efficiently as with the patented device. He admitted that while the basic elements of a slicer consisting of blades, pushers, bases and relative movement were well known, innovation was claimed in the unique arrangement of otherwise general elements which existed in different relationships in the prior art — “the slicing of tomatoes at a rate ten times greater than the prior art as well as providing straighter slices held together in the form of a tomato.” (Appellees’ Brief, p. 14.)
The defendant elicited through Ronald Karr, an extensively qualified mechanical engineer, a designer, and professor of mechanical design, that the ’582 patent was a routine development of old elements in view of prior art patents for straight line slicing devices. He stated on cross examination:
“Q. Now, you have testified with respect to six patents on direct examination?
A. Yes, sir.
Q. Is it your testimony that given these patents and put in a room you could come up with the invention in suit?
A. I would need in that room several tools and materials to produce the invention. And I would have to qualify that a little bit, but yes; I could. And there are about half a dozen others that could do that. Since I don’t know every engineer in the country, there might be a thousand people that could do that.” (p. 342a).
The plaintiff chose not to contradict this testimony but to argue that the six prior art patents relied upon by the defendant did not show a pusher containing slots for the reception of blades, where the blade array lies at an angle of less than 40° with respect to the pusher path movement to achieve thin tomato slices in a single pass of the pusher through the blades.
The district court analyzed the six patents from a functional viewpoint saying for example, that the French patent to Biram-beau for a tomato slicer relied on a sawing action which did not foreshadow a mechanical, single pass slicer such as the subject matter of the patent in suit. The court held that the Bever patent for a bun slicer could not pass completely through the tomato and “[n]o reasonable adaptation of the machine will perform such a function. Hence, we conclude that the Bever patent neither suggests nor discloses the subject matter of the patent in suit.” The court continued this type of analysis through the other prior patents and concluded:
“We have determined from the patent material submitted by the defendant and discussed above, that the ordinary level of skill in the art of food slicing is that possessed by an individual performing that task. .
We have heard the evidence of defendant’s expert engineering witness. We understand his testimony to mean that slicers are interesting developments of known technology and that, while a particular slicer may be an extremely efficient, and well-designed piece of machinery, there is no invention in putting a slicer together. However, in light of the prior art, and of our determination of the ordinary level of skill in the art, we disagree with his opinion as to the obviousness of the '582 patent. . . .We find that the subject matter of the ’582 patent is not obvious to an individual possessing the average level of skill in the art, in light of the prior art existing at the time the invention was developed and the application was filed; the inventor of the ’582 patent, Clayton Giangiulio, did not know of the existence of any device which suggested to him the machine he devised. Rather, the ’582 patent was the product of his own independent and original development, and hence we disagree with the defendant’s contention of obviousness from the prior art.”
In coming to this conclusion the court rejected Karr’s expert opinion that it is routine handbook procedure first to determine the physical nature of the object to be sliced, and that merely to recognize the physical properties of the common tomato does not reach the level of invention. Further, the court held that the basic elements of fruit and vegetable slicers — blades, pushers, bases and means for relative movement — were well known in the prior art but that innovation existed here in the synergistic result achieved by the unique arrangement of these basic elements which existed separately or in different relationships in the prior art. The lower court concluded it was the plaintiffs’ solution to the peculiar problem of slicing tomatoes (pressure build-up during slicing) that embodied innovative and unique developmental work which resulted in the invention.
On infringement, the court relied on the doctrine of equivalents, i. e., the essence of the invention used is identical even though the superficial form is different. Cf., Graver Tank & Mfg. Co. v. Linde Air Products Co., 339 U.S. 605, 608, 70 S.Ct. 854, 856, 94 L.Ed. 1097 (1950) (“if two devices do the same work in substantially the same way, and accomplish substantially the same result, they are the same, even though they differ in name, form, or shape.”) Since the TK-I admittedly infringed upon some of the claims of the ’582 patent and the TK-II used the same element of the ’582 patent (a shallow-entry-angle pusher in relation to the blades) for the same purpose and in the same manner, it, too, infringed.
“Tomatoes have always been favorites here,” wrote John Lewis, a transplanted Englishman. “They generally require a person to be educated to them. . . . They . . . are eaten in every possible way, mostly however cut up alone.” From We Americans, A Volume in the Story of Man Library, published by The National Geographic Society, p. 228 (1975).
“Our conclusion is based on the following factors: (1) the central factor in the development of a food sheer is the identification of the unique problems associated with the preparation of a particular category of fruits or vegetables; (2) while diverse elements of food slicers are well-known in the art, it is the synergistic result of arranging these elements in a specific manner that is significant in the issuance of a patent for the invention; (3) it would be unusual for an engineer to have either the need for such a device, or the method of accomplishing the desired result; and (4) the activity of an engineer in those circumstances would be cumulative toward a successful embodiment of the concept, and not independent of the actual creative work involved in isolating the problems before arriving at a solution.”
IV. OBVIOUSNESS
Very recently in Sakraida v. AG Pro, Inc., 425 U.S. 273, 279-80, 96 S.Ct. 1532, 1536, 47 L.Ed.2d 784 (1976) the court stated:
“It has long been clear that the Constitution requires that there be some ‘invention’ to be entitled to patent protection. Dann v. Johnston, 425 U.S. 219, 96 S.Ct. 1393, 47 L.Ed.2d 692 (1976). As we explained in Hotchkiss v. Greenwood, 11 How. 248, 267, 13 L.Ed. 683, 691 (1851): ‘[U]nless more ingenuity and skill . were required . . . than were possessed by an ordinary mechanic acquainted with the business, there was an absence of that degree of skill and ingenuity which constitute essential elements of every invention. In other words, the improvement is the work of the skillful mechanic, not that of the inventor.’ This standard was enacted in 1952 by Congress in 35 U.S.C. § 103 ‘as a codification of judicial precedents . . . with congressional directions that inquiries into the obviousness of the subject matter
sought to be patented are a prerequisite to patentability.' Graham v. John Deere Co., 383 U.S. 1, 17, 86 S.Ct. 684, 693, 15 L.Ed.2d 545, 566 (1966). Section 103 provides:
‘A patent may not be obtained though the invention is not identically disclosed or described, as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.’
The ultimate test of patent validity is one of law, A & P Tea Co. v. Supermarket Corp., 340 U.S. 147, 155, 71 S.Ct. 127, 131, 95 L.Ed. 162,168 (1950), but resolution of the obviousness issue necessarily entails several basic factual inquiries. Graham v. John Deere Co., supra, 383 U.S. at 17, 86 S.Ct. at 693.
‘Under § 103, the scope and content of the prior art are to be determined; differences between the prior art and the claims at issue are to be ascertained; and the level of ordinary skill in the pertinent art resolved.’ Ibid."
These three inquiries — scope and content of the prior art, differences between prior art and the claims at issue, and the level of ordinary skill in the art — are findings of fact to be made by the district court; having resolved these crucial factual questions, the court then draws its legal conclusion as to obviousness. E. g., Philips Elec. & P. Ind. Corp. v. Thermal & Elec. Inc., 450 F.2d 1164, 1173-74 (3d Cir. 1971). In the case before us, appellants claim that one of these factual questions — level of ordinary skill in the art — was erroneously determined and that this resulted in an improper conclusion of law as to obviousness.
The search in this branch of inquiry under 35 U.S.C. § 103 is for a hypothetical person having ordinary skill in the art to which said subject matter pertains, i. e., the problem solver and not the user of the solution. Gass v. Montgomery Ward & Co., 387 F.2d 129, 132 (7th Cir. 1967), quoted in Erie Technological Products, Inc. v. Die Craft Metal Products, Inc., 461 F.2d 5, 8 n.5 (7th Cir. 1972) (“The level of ordinary skill in the field appears to be that of mechanically inclined men with long experience in design of auto accessories”); Howe v. General Motors Corporation, 401 F.2d 73, 78 (7th Cir. 1968), cert, denied 394 U.S. 919, 89 S.Ct. 1192, 22 L.Ed.2d 452 (“The level of ordinary skill in the field of designing automobile bodies, including hinges, was that of engineers of substantial training, and specialized skill.”).
In the case at bar, the district court engaged in a detailed analysis of the prior art as illustrated in prior patents, admitting that the activity of an engineer, if he were aware of the problems associated with slicing tomatoes, would culminate in the patented concept. But it then stated:
“(3) it would be unusual for an engineer to have either the need for such a device, or the method of accomplishing the desired result; and (4) the activity of an engineer in those circumstances would be cumulative toward a successful embodiment of the concept, and not independent of the actual creative work involved in isolating the problems before arriving at a solution.”
The court therefore looked to the knowledge of persons who perform the task of tomato slicing to determine skill in the pertinent art. By focusing on the user rather than the problem solver, the district court erred.
An interesting and pertinent application of principle can be gleaned from the court’s treatment of the skill in the pertinent art for beehive fasteners in In re Application of Grout, 377 F.2d 1019, 1021-22, 54 CCPA 1559 (1967):
“It is appellant’s position that since the combination of elements claimed is to be used by beekeepers that it is to this group we must turn to ascertain what would have been obvious to them. After discussing the disclosures of the prior art, appellant states the position in his brief that:
The preceding discussion calls attention to a variety of facts, circumstances and reasons which repel the inference that it would have been obvious in 1961 for a man of ordinary skill in the beekeeping art to turn to the window shade roller art or Andersen’s polymer film stretching device for ways and means of improving beehive components. Such facts, circumstances and reasons, show the difference in problems and objectives in the several arts differ from one another and how the defor-mative measures inhering in the arts of the secondary references would be completely unsuitable for application to bees’ wax foundation webs which are commonly used in the invention. .
“Considering all the papers of record, we are not convinced that the ‘person having ordinary skill in the art to which said subject matter pertains,’ section 103, is exemplified by a beekeeper. Appellant’s invention relates to novel fastening means used in beehives. It is alleged that a problem existed in the support of honeycomb foundations which appellant solved. While this problem would be encountered by a beekeeper, we think the problem naturally calls for the talents of one skilled in the art of fasteners. Under section 103 we must look to the person of ordinary skill in the art to which the invention pertains, not those who may use the invention.” [Emphasis supplied.]
Similarly, in Universal Athletic Sales Co. v. American Gym, Rec. & Ath. Eq. Corp., 546 F.2d 530, at 537 (3d Cir. 1976), this Court looked to the problem solver in the business when it held that the art pertinent to a weightlifting apparatus is the design of body-training devices. In other words, the hypothetical person skilled in the pertinent art is the mechanically skilled individual familiar with the design of devices in the industry. Erie Technological Products, Inc. v. Die Graft Metal Products, Inc., supra; Howe v. General Motors Corp., supra. Here, then, the pertinent art is the design of food slicing devices. We hold, therefore, that the district court’s finding as to the level of ordinary skill in the art was clearly erroneous.
Having resolved this critical factual issue, this court is in a position to draw the ultimate conclusion of law with respect to obviousness. As stated in Deller’s Walker on Patents, § 109 at 153-54 (2d ed. 1964):
“The issue of law as to whether an invention was obvious to one having ordinary skill in the art is one which a court of appeals is in as good a position to determine as the district court; the latter’s conclusion on this issue, not being on a question of fact, is not clothed with a presumption of correctness, and instead requires that the court of appeals make its own independent determination thereon. Rule 52(a) does not require the court of appeals either to accept findings unsupported by the evidence or to require the court of appeals to respect conclusions which do not rest properly on the facts of the case. . . . [But] such finding[s] . of fact . . . unless clearly erroneous will not be set aside by the court of appeals.” (Footnotes omitted)
Had the district court applied the proper standard of skill — that possessed by the mechanic familiar with the design of food slicing devices — it would have had only the uncontradicted expert testimony of Mr. Karr to determine the question of “obviousness” with respect to such persons. Mr. Karr testified that it would be routine procedure for a mechanic first to determine the physical properties of the object to be sliced, see supra at 346, and that mechanics familiar with other patents in the food slicing industry would apply known mechanical principles to come up with the tomato slicer in question, see supra at 347. He supported his conclusion with testimony about six prior patents which would suggest to the mechanic the principles applied in the Tomato Tamer. Specifically, the Bever patent (a bun slicer) had its blade fixed at the same shallow angle to the path of the pusher, but it would not pass the blade clearly through the tomato. The Curtis patent (a fruit slicer) also showed an angle of less than 90° (“an angle of at least 70 °”) and contained the equivalent of the pusher leading arm of the Tomato Tamer (p. 329a).
Mr. Karr was asked by the Court: “You are saying in effect . . . that given a mechanic and designer of ordinary skill and given the problem of cutting a tomato, that the prior art which certainly has encompassed pushers with pockets to hold the fruit or the object, blades to push them through and means of.so angling the pusher so that it goes through the blades, that this would be an obvious thing for anybody presented with the problem who had the skills of an ordinary mechanic or designer?”
His response was, “Yes, your Honor.” (p. 337a)
In light of this uncontradicted testimony about the skill of mechanics familiar with the design of food slicers, we need not remand to the district court for further findings of fact. Although the synergistic combination of known elements is one factor to consider in determining obviousness, we cannot agree that the district court’s findings reveal any more of a synergistic effect than was found in the device to release water on a barn floor from a storage tank in Sakraida, supra. See also Anderson’s-Black Rock v. Pavement Salvage Co., 396 U.S. 57, 61, 90 S.Ct. 305, 24 L.Ed.2d 258 (1960). As a matter of law, plaintiffs’ slicer was “obvious.”
Despite the commercial success of the product, there was no “invention” to warrant patentability, and the judgment of the district court will be reversed.
. 35 U.S.C. § 103 reads as follows: “A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.”
. See Appellees’ Brief, p. 7. Capable of slicing a tomato per second, plaintiffs’ invention, it was agreed, was an improvement over slicing with a hand-held knife or slicing with a meat-slicer which scattered individual slices, released juice, and required cleanup procedures. Commercial success without invention, however, will not make patentability. Anderson’s-Black Rock, Inc. v. Pavement Salvage Co., Inc., 396 U.S. 57, 61, 90 S.Ct. 305, 24 L.Ed.2d 258 (1969); A & P Tea Co. v. Supermarket Corp., 340 U.S. 147, 71 S.Ct. 127, 95 L.Ed. 162 (1950); U. S. Expansion Bolt Company v. Jordan Industries, Inc., 488 F.2d 566 (3rd Cir. 1973).
. Redco, Inc. (a non-party) was the sole manufacturer of the accused devices and sold them to defendant Kidde which, in turn, resold through distributors as well as users like Burger King Corporation, an operator of hamburger restaurants. This action was commenced in the Northern District of Illinois against Kidde and several of its customers, including Burger King. It was transferred to the Eastern District of Pennsylvania, with Kidde as the only active defendant. Suit was stayed as to all other defendants pending disposition of the litigation before this court.
. While apparently counsel originally conceived that accounting would proceed before appeal to this Court (Trial Transcript, p. 12) the three orders dispose of all proceedings in the district court except for an accounting and collectively constitute the requisite judgment for our jurisdiction under 28 U.S.C. § 1292(a)(4). Cf., Allis-Chalmers Corp. v. Philadelphia Electric Co., 521 F.2d 360 (3rd Cir. 1975); W. L. Gore & Associates, Inc. v. Carlisle Corp., 529 F.2d 614 (3rd Cir. 1976); Kramer v. Scientiñc Control Corp., 534 F.2d 1085 (3rd Cir. 1976).
. Page numbers followed by “a” refer to pages in the Appendix to the Briefs.
. The following appears in Chapter “1876 Centennial
. The lower court stated:
. In Tokyo Shibaura Electric Co., Ltd, et al. v. Zenith Radio Corp., 548 F.2d 88 (3rd Cir. 1977) at p. 94, fn. 18, we said:
“[This theoretical person of] ordinary skill in the art is ‘charged with knowledge of all that the prior art disclosed at the time of his alleged invention, irrespective of whether persons of ordinary skill in the field, or he himself, or anyone else, actually possessed such all-encompassing familiarity with prior disclosures.’ Cool-Fin Electronics Corp. v. International Electronic Research Corp., 491 F.2d 660, 662 n.7 (9th Cir. 1974), quoting Walker v. General Motors Corp., 362 F.2d 56, 60 n.3 (9th Cir. 1966). Accord Layne-New York Co. v. Allied Asphalt Co., 501 F.2d 405, 406 (3rd Cir. 1974), cert, denied, 421 U.S. 914, 95 S.Ct. 1572, 43 L.Ed.2d 780 (1975).”
. The dissenting opinion expresses concern that Mr. Karr did not represent a person having ordinary skill in the pertinent art — the design of food slicing machines. That concern would be relevant to the issue before us only if Mr. Karr had testified that the device in question would not have been obvious to anyone “who had the skills of an ordinary mechanic or designer.” Then we would have been forced to remand the case so that the lower court could consider whether a person with the additional skiils of one who designs food slicers might have viewed the device as obvious.
As it is, however, Mr. Karr testified that the device would have been obvious to anyone with ordinary mechanical or design skills — skills we must presume food slicing designers to possess. A fortiori, the device must have been obvious to the latter group, too. There is no need, then, to remand the case so that the impact of food slicing designers’ peculiar skills can be considered.
Question: What is the number of judges who dissented from the majority?
Answer:
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songer_othappth
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D
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What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the appeals court level. That is, it is conceded that the trial court properly reached the merits, but the issue is whether, in spite of that concession, the appellant has a right to an appeals court decision on the merits (e.g., the issue became moot after the trial). The issue is: "Did the court refuse to rule on the merits of the appeal because of some threshhold issue other than timeliness or frivolousness that was relevant on appeal but not at the original trial? (e.g., the case became moot after the original trial)" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
DES MOINES TERMINAL CO. v. DES MOINES UNION RY. CO. et al. CHICAGO GREAT WESTERN R. CO. et al. v. DES MOINES UNION RY. CO. et al. DES MOINES UNION RY. CO. et al. v. DES MOINES TERMINAL CO. et al.
Nos. 8990-8992.
Circuit Court of Appeals, Eighth Circuit.
Aug. 10, 1931.
Rehearing'Denied Oct. 28, 1931.
J. G. Gamble,- of Des Moines, Iowa (R. L. Read and Gamble, Read & Howland, all of Des Moines, Iowa, on the brief), for Des Moines Terminal Co.
Donald Evans, of Des Moines, Iowa (W. D. Eaton and J. C. Pryor, both of Burlington, Iowa, and Carr, Cox, Evans & Riley, of Des Moines, Iowa, on the brief), for interveners Chicago, B. & Q. R. Co. and Chicago Great Western R. Co.
N. S. Brown, of St. Louis, Mo., and John N. Hughes, of Des Moines, Iowa (Homer Hall, of St. Louis, Mo., and Hughes, O’Brien & Faville, of Des Moines, Iowa, on the brief), for Des Moines Union Ry. Co. et al.
Before KENYON and VAN YALKENBURGH, Circuit Judges, and DAYIS, District Judge.
KENYON, Circuit Judge.
Three appeals are here involved. The Des Moines Terminal Company (hereinafter designated the Terminal Company) brought action in the district court of Polk county, Iowa, at the May term, 1923, against the Des Moines Union Railway Company (hereinafter termed the Union Company), Chicago, Milwaukee & St. Paul Railway Company, and Wabash Railway Company, to- quiet title in it to certain railway terminal property in Des Moines, consisting of rights of way upon which were located railroad tracks, switches, and other terminal facilities. The cause was duly removed to the United States District Court, and an answer and cross-bill was filed by defendants, in which they asserted that the Union Company was the owner in trust for the benefit of the cross-petitioners, the Milwaukee Railway Company and the Wabash Railway Company, of all the tracks, rights of way, and facilities claimed by the Terminal Company; that the Terminal Company had acquired them as the result of a seheme and conspiracy entered into between P. M. Hubbell, P. C. Hubbell (his son), and H. D. Thompson (brother-in-law), as- officers and stockholders of the Union Company, to enrich themselves out of the trust estate, of which the Union Company was trustee; that the transactions of said parties were in violation of their duties as such officers and trustees, and cross-petitioners asked that the tracks and right of way and other terminal property claimed to be owned by the Terminal Company be decreed to be a part of the trust estate held by the Union Company as trustee for the exclusive use of cross petitioners.
In reply the Terminal Company denied any scheme or conspiracy on the part of P. M. Hubbell, P. C. Hubbell, and H. D. Thompson, to enrich themselves out of trust property; further that, in an «equity suit in the District Court of the United States for the Southern District of Iowa, in which the Milwaukee and Wabash Companies were complainants and the Hubbells were defendants, together with the Union Company, complainants filed an amended bill on May 12, 1909, in which they set up part of the same dereliction they now assert in this case; that they had at that time full information of the facts and are estopped to- now raise these questions. Waiver and laches are also asserted.
The Chicago Great Western Railroad Company and the Chicago, Burlington & Quincy Railroad Company intervened in the action, claiming the right to possession of the so-called terminal tracks and properties of the Terminal Company by virtue of a lease from that company of date June 3, 1921. We shall hereinafter refer to these two intervening railroads as interveners.
Eight weeks of time was occupied in the trial of this ease in the District Court. The facts are intricate and involved, and show a much scrambled condition of affairs. To outline them in detail would make a book. A mass of records, correspondence, and evidence is presented to us. The legal questions discussed are numerous. The trial court held that Messrs. Hubbell, who were in control of the Terminal Company, had violated their trust in developing the system of tracks, known as the Terminal Company’s system, for their own benefit and profit, and in failing to carry out the purposes for which the Union Company was organized, but held that any right on the part of the Union Company or the Milwaukee and Wabash Companies to claim ownership of the Terminal properties had been waived; that the Union Company was not entitled to have transferred to it as trustee for the Milwaukee and Wabash Companies ownership of these properties. It held that, while the Union Company and the proprietary roads were not in position to claim ownership in the railroad properties of the Terminal Company by reason of waiver, they wore entitled to claim as to said properties the exclusive use thereof upon reasonable terms to be fixed by the court it' no agreement should be made covering the same. It held that the finding of waiver and abandonment by the Union Company and the proprietary roads of the right to claim equitable ownérship of the Terminal properties was not inconsistent with the right to have established an implied parol arrangement for the exclusive use of the tracks by the Union Company enforced upon reasonable terms.
As to interveners, the trial court held they had acquired their rights by lease with the Terminal Company under such conditions as to put them on inquiry and to require them to use reasonable diligence to ascertain the fights.of the Union Company, and that the lease to them was void. The main relief granted by the trial court is expressed in this order: “It is therefore the Order and Judgment of this Court that all of the tracks of the Des Moines Terminal Company and the real estate used in connection therewith, and the real estate, if any, now under lease to the Des Moines Union be impressed with a trust in favor of the Des Moines Union Railway Company for the exclusive possession and use thereof by the Des Moines Union Company upon reasonable terms.”
As the Hubbells are the parties around whom this controversy rages it will be well to get clearly in mind their relationship to the situation. The Des Moines Union Railway Company was incorporated in 1884. F. M. Hubbell was one of the incorporators. He was secretary and a director of said company from the date of its incorporation until April 5, 1921. His son, F. C. Hubbell, was president and director of the company from 1892 until April 5,1921, when he became president of the Terminal Company. Mr. H. D. Thompson, a brother-in-law of F. M. Hub-bell, was director and treasurer of the Union Company at the time the Terminal Company was organized, and so continued until April 5, 1921.
The Des Moines Terminal Company was incorporated in May, 1902, by F. M. Hubbell, H. D. Thompson, and C. Huttenloeher (am employee of F. M. Hubbell). F. M. Hub-bell was by the articles of incorporation made the first president of the Terminal Company, II. D. Thompson, vice president, and Mr. Huttenloeher, secretary and treasurer. They also comprised the first board of directors. The Frederick M. Hubbell estate is a trust estate created by Frederick M. Hubbell. F. M. Hubbell Son & Co., Inc., is a corporation which took over the real estate business formerly conducted by the partnership of F. M, Hubbell & Son. The Frederick M. Hubbell estate was a stockholder of the Terminal Company, as was F. M. Hubbell Son & Co., Inc. The Hubbell interests and Thompson were in complete control of the Terminal Company during its entire existence and it was entirely a Hubbell enterprise. The stock of F. M. Hubbell Son & Co., Inc. was owned at the time of trial of the original ease, one-third by H. D. Thompson, one-third by F. C. Hubbell, and one-third by the trustees of the F. M. Hubbell estate. Contracts were made between the Terminal Company, signed by F. M. Hubbell as president, with the Union Company, signed by F. C. Hubbell, as president.
The dominating personality in the Union Company until 1921, and in the Terminal Company from its organization, was Mr. F. M. Hubbell. We shall refer to the various Hubbell enterprises, individual and collective, as the Hubbell interests.
The genesis of the Des Moines Union Railway Company is this: On the 2d day of January, 1882, an agreement was made in the city of New York between the Des Moines & St. Louis Railway Company, the Des Moines Northwestern Railway Company, and tho St. Louis, Des Moines & Northern Railway Company, and several individual signers, to organize a terminal company in Des Moines to be known as the Des Moines Union Railway. The purpose is expressed in subdivision 8 thereof, as follows: “It is understood and agreed that spur tracks shall be built connecting tho said terminal grounds with such manufactories and other sources of trade in and about the City of Des Moines, as afford sufficient opportunity for profit by so doing, and that all of said tracks shall be adopted for use for both broad and narrow gauge (trucks), provided that in case either of said Companies shall deem the construction of any of said tracks as not advantageous to its business, tho question of constructing said tracks, and which of the parties hereto shall pay therefor shall be determined by arbitration.”
Mr. F. M. Hubbell did not sign this agreement, but was active in organizing the Union Company. He was holding offices in a number of these roads and was regarded by the Wabash, which in fact controlled one of the signatory roads, as their representative in Des Moines. From 1882 to 1888 the terminal properties were'largely operated by the Wabash, and Mr. Hubbell was participating in acquiring the property for the Union Company intended to be used for terminal purposes. The respective railway companies entering into said agreement, and to- carry out its provisions, caused to be incorporated the Des Moines Union Railway Company.
The articles of incorporation were signed on December 10, 1884, by J. S. Polk, F. M. Hubbell, and J. S. Runnells, although the corporation did not actively function until 1888. Thef objeet of this corporation is shown by article II of the articles of ineorporation, which is as follows:
“The general nature of the business to be transacted shall be the construction, ownership, and operation of- a railway in, around and about the City of Des Moines, Iowa, including the construction, ownership and use of depots, freight houses, railway shops, repair shops, stock yards, and whatever else may be useful and convenient for the operation of railways at the terminal point of Des Moines, Iowa, as well as the transfer of ears from the line or depot of one railway to another or from the various manufactories, warehouses, storehouses, or elevators to each other or to any of the railways or depots thereof now constructed or to be hereafter constructed in or around said City of Des Moines, and such corporation shall possess all the powers conferred upon corporations for pecuniary profit by Chapter 1 of Title IX of the Code and the amendments thereto.
“All the powers exercised by this Company shall be in accordance with the terms and spirit of the aforesaid contract entered into on the 2nd day of January, A. D. 1882, by and between the Des Moines and St. Louis Railroad Company, the Des Moines Northwestem Railway Company, the St. Louis, Des Moines and Northern Railway Company, jas. F. How, Jas. F. How, Trustee, and Granville M. Dodge.”
We need not follow through the various transactions that made the Wabash and Milwaukee Companies the successors and assigns of the companies entering into the eon-tract of January 2, 1882. It is sufficient to say that the Milwaukee is the remote suecessor to the Des Moines Northwestern Railway Company and the St. Louis, Des Moines & Northern Railway Company, while the Wabash is remote successor of the. Des Moines & St. Louis Railway Company. The rights of the various railroads instrumental in forming the Union Company were transfe'rred to it..,
Prior to May, 1888, F. M. Hubbell had acquired title to a large area of land in Des Moines designated in these proceedings as the factory district which he intended to develop industrially. It-was located south óf Market street, and may be described as a tract approximately three-fourthfe of a mile long east and west and one-half mile wide, lyiug south of the right of way of the ChicaS°, Rock Island & Pacific Railroad, bounded °u the north by Market and Elm streets, on the east and south by the Raccoon liver, and on the west by what is now the 100-foot right of way of the Union Company, secured from R- Hubbell in 1890. It is a question of so^le dispute whether Mr. Hubbell ha.d acfluí1’6*! all of the lands in the factory district Pnor t° 1888. The Union Company contends that not more than one-fifth of the district ^ad been bought at that time. However^ properties had been purchased there for the purpose of the terminal prior to that time ail(^ held in trust by one How, as trustee,,Tlle property involved in this controversy Is principally located in the factory district, though some tracks are in other parts of the city, viz., east Des Moines. The Unio"n Cornpany endeavored to extend its operations as a Terminal Company into this district, and in 1890 bought several strips of land from F. M. Hubbell to be used as rights of way. One strip so purchased as part of the development plan in the district was known as the 100-foot strip and extended from Market street south to the Raccoon river. On this a number of tracks were built. As a part of the consideration therefor, the Union Company was to construct an embankment to protect the factory district from threatened overflow from the Raccoon river. Tracks used as connections for the Chicago, Buriington $¡ Quincy, and other roads, were eonstrueted. The Des Moines Union grew until it extended across the city of Des Moines from east to west about five miles, with an extensive system of trackage. It constructed a union depot occupied lay many railroad companies.’ Exhibit 1, introduced in evidence, is a plat showing the tracks and property of the Des Moines Union in the factory district prior to the organization of the Terminal Company in May, 1902. It shows that many tracks had been constructed therein by the Union Company, such as tracks 87, 98, 100, and 103, appearing thereon. These led from the tracks on the 100-foot strip or connected with such tracks and reached the very heart of the factory district, evidencing the purpose to extend the union into this territory in accordance with its franchises. Right of way deeds were made hy F. if. Ilubbell and wife to the Union Company conveying rights of way for tracks 87 and 103, which will be referred to hereinafter. A 2,000-foot strip was conveyed by F. M. Ilubbell to the Union Company April 1, 1889, which was entirely within the factory dislriei, and was to be used in the development of the Union Company’s terminal facilities. In 1902 the Union Company was adequately serving some eighteen, industries that had been established in the factory district, mid had sufficient trackage so to do. In 1893 the Messrs. Ilubbell and Thompson had acquired five-eighths of the capital stock of the Union Company. Outside of eight qualifying shares the Milwaukee and Wabash owned the balance. As minority stockholders of the Union Company the proprietary roads had little to say in its management. In 1889 they made an operating contract with the Union Company for the use of the terminal properties for a long period of time.
From the organization of the Des Moines Terminal Company in.1902, up to April, 1921, the Ilubbell interests had complete control of both companies. There was no uniform system in the development of the factory district, but it went continuously forward. We cannot set forth the situation as to each specific track. Some were constructed by the Union Company and the Terminal Company billed on for the cost thereof. As to others, the Union Company furnished the labor merely, or material, and tlien billed on the Terminal for the same. Some of the tracks constructed by the Union Company were taken over by the Terminal Company hy reimbursing the Union Company for the cost of material and labor expended. Some were purchased by the Terminal Company from the Union Company, and others constructed by the Terminal Company out of its own funds. Rights of way were in some instances conveyed by deeds from the various Ilubbell interests, in others secured by leases from the Hubbell interests for short periods of time. In some instances the Union would own the connecting track between two sections of the Terminal Company tracks, and vico versa. Beginning about 1906 the Terminal Company charged the Union Company a trackage or switching charge for every car switched over its tracks, which brought large sums to the Terminal. Fifteen thousand cars were switched over Terminal tracks by Union Company for year ending February 28,1921. Some part at least of these funds so collected was used by the Terminal Company in constructing additional trackage.
Exhibit 3 in evidence shows a vast network of tracks, switches, spurs, and terminal facilities as they existed in 1921 when the Hubbells were ousted from control of the Union Company following the decision of the Supremo Court of the United States. Mr. Morgan, engineer of the Union Company, testified as to the system of trackage as follows :
“Q. They were operated, weren’t they, by the Des Moines Union Railway Company as one unified system? A. Yes sir.
“Q. Was the terminal system laid out by you as an engineer having in mind that it would be a unified system of terminal railway in that district? A. Yes sir. The engineering was done so that it could be operated by one company and the tracks were so constructed and operated.
“It could economically be operated as a unified system of Terminal tracks.
“Q. Was it during the whole time that it was operated by the Des Moines Union, in your judgment, operated economically as a unified system of railway terminal in Des Moines?' A. Yes sir.
“The tracks were constructed so that they could bo operated by the Des Moines Union and were so operated during 1902.”
As illustrating the method in which the construction of tracks and the general development were carried on, we refer specifically to a few of the many tracks. The leading track constructed was what was known as the Dike track, which was built in the winter of 1903 and 1904 along the northerly bank of the Raccoon river from the 100-foot strip to Seventh street. The factory district could best be served by a main lead track at the south, from which spurs could be built, as the northern end of the district was congested. Mr. Morgan laid it out with the view of making it a lead track. It is designated in the evidence and on the plats as a main track, and it was the plan, as shown by Mr. Morgan, to use this track as the key track in the factory district. He testified the work was done at the request of Mr. F. M. Hubbell. It was necessary in its building to secure a crossing contract with the Chicago, Burlington & Quincy Railroad Company. This was made in the name of the Union Company, and such- contract is still in force. Reconstruction of the same was paid for by the Terminal Company. There was miich.filling to be done, and the dirt for the embankment was mainly secured from excavations at Allen’s Bluff. The Hubbell interests furnished dump ears, the steam shovel, and the ties for the track. Mr. Morgan testified: “My search shows F. M. Hubbell Son & Co. paid $2,535.-42 toward the expense of this work and furnished the dump ears. The,Des Moines Union paid the remainder of the cost and in addition thereto furnished the engines, track-age and administration. Part of the figures were obtained from the Auditor’s office in the bills and in the bill books and other sources of record of the Des Moines Union. The items with reference to what Mr. Hub-bell paid were obtained from our bill books. The larger items with reference to excavation at the Bluffs and filling on the dike were kept under my supervision. I found no other items that Mr. Hubbell had paid except those I have stated.”
The right of way for the Dike track was conveyed by the trustees of the Hubbell estate to the Terminal Company. According to Mr. Morgan’s testimony the excavating at Allen’s Bluff and constructing the dike embankment for the track, the filling on the 100-foot strip, and for a short track known as Parker track, cost $11,049.32, originally paid by the Union Company, except $2,535.42, paid by Hubbell Son & Co. The part paid by the Union Company was billed on the Terminal Company and paid by it.
There was a twofold object in the construction of the Dike track, i. e., to serve as a lead track and also to protect the district from floods, which in 1902 had wrought great devastation. The result of this transaction was that when it was all over the lehd track necessary to the proper development of the factory district, though constructed largely by the Union, had become property of the Terminal Company. Its importance is shown by the testimony of Mr. Morgan: “The industries in the factory district south and east of the Chicago, Burlington & Quincy Railway were served, until about 1914, by this main lead No. 87 before they were connected with the dike.track. In 1914 track No. 87 was connected with the dike track. It was done by extending No. 87, southerly and curved to the west connecting with the dike track west of 9th Street.” Under the fiduciary relationship of the Hubbells to the Union Company the Dike track should have been a part of its property.
Another track known as No. 7 was the first track in the district placed in the name of the Terminal Company. As to this track Mr. Morgan’s testimony is interesting as it shows the general method pursued in building tracks in the district. He says: “Track No. 7 is a Terminal track which was constructed in 1902 connecting with the Des Moines Union track on lot 4, and with the main lead across 9th Street which is track No. 87 of the Des Moines Union and connecting near the 100-foot strip, and paralleling the C. B. & Q. railroad, and the Des -Moines Terminal has title to track No. 7 and owns the right of way. Track No. 7 was built by the Dos Moines Union and then the Des Moines billed on the Des Moines Terminal for the materials used for the construction of the track and the labor. It was constructed in August, 1902.” The only access the Union Company had to its own track 88-a was over the Terminal track No. 7. Nor was there aeeess to Terminal track No. 7 except by going over a Union track. This is typical of many situations in the district.
Thirty-two of the tracks of the Terminal Company were joined onto the Union tracks, forming a part of the general system of terminal tracks, and being in fact mere extensions of tracks of the Union Company. There were.also some tracks in East Des Moines constructed under the same kind of arrangement. Twelve tracks in the- district were constructed by the Union Company between May, 1907, and January, 1920, on rights of way leased to the Union Company by the Hubbell interests and conveyed in most instances thereafter to the Terminal Company.
According to the testimony of Mr. Hahn-en, an employee of the auditor’s office of the Union Company, the cost of constructing the Des Moines Terminal tracks was $134,000. There is no need, we think, to more specifically set forth or group these various tracks and their construction and the method of payment therefor. Sufficient has been stated to visualize the method carried on between the Union Company and the Terminal Company.
It is evident from the plat, Exhibit 3, that this great system of trackage could be operated only as a unified system. There was no need of two terminal systems in this district, and the tracks were so constructed as to be interdependent upon and interrelated to one another. Each track in the district fits into the system.
After the construction of the Dike track the Terminal Company charged the Union Company $1 for every carload of freight switched over any Terminal track. Mr. Wagner, superintendent of the Union Company, testified that Mr. Hubbell directed him as to the collection of the trackage charge. The total payment so made, according to the evidence, was approximately $147,267.17. They were made, not by virtue of any specific contract, except an understanding between F. M. llubbell, as president of the Terminal Company, and his son, F. C. llubbell, as president of the Union Company. These payments were not authorized by the board of directors and were charged against surplus earning’s, or a special account of switching revenues.
In the year 1907 an action was brought by the Chicago, Milwaukee & St. Paul Company and the Wabash Company against the Des Moines Union Railway Company, F. M. Hubbell, F. C. Hubbell, and F. M. llubbell & Son, defendants, asking that the Union Company be declared to be a trustee holding in tiust for said railway companies the terminal properties in the name of the Union Company. That case reached this court (254 F. 927), and it was held that the Union Company owned the legal title, and that the interest of the railroad companies was only that represented by their stock. The Supreme Court of the United States (254 U. S. 196, 41 S. Ct. 81, 65 L. Ed. 219) reversed the decision of this court, and held that the Union Company was a trustee holding the property in trust for the railway companies, and that the fiduciary character of the Union Company extended to its officers and directors. In 1909 an amended bill of complaint was filed in that suit, which included a paragraph of claimed importance here, viz., No. 37, which is as follows:
“And your orators further complain of the defendants Frederick M. Hubbell and Frederick C. Hubbell, and as a ground for still further and other relief represent and show to the court:
“That the defendants, Frederick C. Hub-bell and Frederick M. Hubbell, while being respectively President and Secretary of the Terminal Company, and after your orators became the successors in interest of the original proprietary railroad companies without authority from the Board of Directors of the Terminal Company, or from your orators, built spur tracks from a connection with the tracks of the Terminal' Company to industries located adjacent to said tracks, and now claim such spur tracks belong to themselves or some corporation organized and controlled by them; that since the building of such spur tracks, continuously and now, the said defendants, the Hubbells, switch and haul cars from the tracks of the Terminal Company over said spur tracks, using the switch engines and motive power and the employees of the defendant corporation to do such switching (at the cost and expense of your orators). And the said Hubbells, themselves, or in the name of their said corporation, collect from all railroad companies, including your orators, an extra charge of $---per car, and appropriate such collections or switching charges to their individual use and benefit, or to the use and benefit of their said corporation.
“That such spur tracks at their initial point are each and all laid for some distance upon the ground which was acquired and is hold by the Terminal Company, as Is herein-before charged, and such spur tracks in some instances are laid in the streets or alleys of the City of Des Moines where permission was granted to the Terminal Company, defendant, by the city council of said city. That your oraidrs are not advised and cannot state the cost or value of the ground occupied outside of said streets and outside of the ground held by the defendant corporation as trustee for your orators as herein-before charged.
“And your orators represent and show lo the court that in good faith and in equity said spur tracks should either be conveyed to the defendant corporation for the reasonable cost of constructing the same, including right of way, or that the part of the same that has been laid upon the ground of the Terminal Company should be taken up and removed.
“And your orators state that they are willing that said tracks and connection may remain, provided such spur tracks and the right of way upon which they are laid be conveyed to the Terminal Company, and they are willing that the said Terminal Company reimburse the defendants Frederick M. Hub-bell and Frederick C. Hubbell, or their said corporation, for the reasonable cost and expense of constructing said spur tracks, including right of way and legal interest therein, after an accounting for the amounts received for switching over the same as herein-before stated. And your orators hero and now offer to do and perform whatever this Court determines is equitable and just as a condition precedent to the conveying of said spur tracks and right of way and turning over of the same to the Terminal Company.”
While there were assignments of error in this court covering the questions raised by paragraph 37, there was no decision thereon, nor did the Supreme Court consider the same. After the decision in that ease representatives of the Union, the Milwaukee, and the Wabash Companies on the one hand, and the Messrs. Hubbell on the other, made an attempt to agree upon terms for a lease for fifty years of the Terminal Company facilities to the Union Company. Controversy arose over the question of who should pay the taxes, and the lease was not made. The Terminal Company then leased its properties to the Chicago Great Western and the Chicago, Burlington & Quincy Railroad Companies, and the Terminal Company constructed additional tracks for necessary connections with said companies at an expense of some $12,000. Sufficient we think has been stated to show the nature of the present ease. For further facts reference may be made to the opinion of this court in 254 F. 927.
The trial court in its opinion, after referring to certain legal decisions said:
“Based upon these rules of law there can be but one answer to the question whether or not the Messrs. Hubbell violated their trust in the building, owning and extending a system of tracks connected and joined directly or indirectly with the Des Moines Union system for their own benefit and profit; and in failing to extend the Des Moines Union for the purposes for which it was organized; and in constructing their own system as to bottle up, hinder and deny to the Des Moines Union power to extend farther their tracks into the factory district.
“In fact some of the acts of the Des' Moines Terminal Company in extending spur tracks to a manufacturing plant or establishment, with their own funds, and charging the Des Moines Union for the use thereof, would hardly stand the scrutiny of a Court of Equity were the transaction had between private individuals.”
We agree with this statement.
The Supreme Court of the United States in the former ease (254 U. S. 212, 41 S. Ct. 81, 87, 65 L. Ed. 219) said: “Obviously the fiduciary character of the terminal company extended to its officers and directors as to all others concerned in its management, charging them with a duty to'uphold the trust and imposing upon them the usual disability about reaping a personal advantage at the expense of the beneficiaries. * * * Mr. F. M. Hubbell was an officer and director of that company at the beginning and continuously thereafter, especially active in its management; and during a period which included the important transactions in question he also was a director and officer of each of the proprietary companies and their trusted representative in respect to terminal matters at Des Moines.”
The Hubbells thus, by the language of the Supreme Court of the United States, were held to be in a fiduciary capacity in relation to the Des Moines Union. The Supreme Court settled the question as to the Union Company holding property as a trustee for the proprietary roads. The relationship of Hubbell and his son as officers and directors of that company charged them with all the duties and obligations arising from a fiduciary relationship. It was their duty to develop the business of the Union Company according to the purpose of its organization, as evidenced by the contract of 1882 and the articles of its incorporation. Such was evidently Mr. Hubbell’s purpose in the early life of the Union Company, as is apparent from the language of two deeds for right of way purposes made by him to the Union.' The first, dated October 1, 1895, is for right of way for track designated as No. 87, and contains this provision-: “The above-granted right of way is granted only for the construction, maintenance and operation of a sidetrack and not for a main track. Said track is to be laid, maintained and operated upon said premises so that the Des Moines Union Railway Company can obtain access to manufactories, warehouses and other industries located upon the land belonging to said Hubbell in said section 9, township 78, range 24, and it is not to be used as a sidetrack for general railway purposes, save in such manner and at such times as will in no way interfere with its use as a sidetrack for the accommodation, of manufactories, warehouses and other industries located upon the aforementioned land belonging to said Hubbell, and it is expressly understood and agreed that the right of way herein granted is limited to the purposes and for the objects hereinbefore set forth.” (Taken from appellant’s brief in No-. 8992, not being set out fully in the record).
The second, dated April 1, 1899, was for the 2,000-foot strip and contains this covenant: “The above-granted right of way is a right of way only for the construction, maintenance and operation of a sidetrack, and not for a main track. Said track is to be laid, maintained and operated upon said premises so that the Des Moines Union Rail-way Company can obtain access to manufactories, warehouses or other industries lo eated upon said lots fifty-seven (57), fifty-eight (58) and fifty-nine (59), said official plat, and it is not to be used for any other purpose than as a sidetrack, and it is not to be used as a sidetrack for general railway purposes, save in such manner and at such times as will in no way interfere with its use as a sidetrack for the accommodation of manufactories, warehouses or other industries located upon the aforementioned lots, and it is expressly agreed and understood that the right of way herein granted is limited to the purposes and for the objects above set forth.” (Taken from appellant’s brief in No. 8992, not being set out fully in tbe reeord.)
It is contended by counsel for the Terminal Company that the individual properly of officers and directors acquired before the trust relation cannot bo impressed with a trust. While it is not clear in this case that all the property in the factory district owned by the Iiubbells was acquired before the Union was incorporated, and while the evidence tends to show that a part of it was acquired thereafter, we do not think this of any particular importance. Ordinarily, as claimed, Mr. Hubbell could do what he chose with his property acquired prior to the fiduciary relationship, but he could not use his property so acquired to assist in violating the duties which he owed to the Union Company as a fiduciary officer thereof. Contracts of course may be made between individuals interested in a corporation and the corporation and which do not secure any unwarranted advantage to such individuals. The question of good faith is the test. Jones v. Missouri-Edison Electric Co. et al. (C. C. A.) 144 P. 765; Cowell v. Mc
Question: Did the court refuse to rule on the merits of the appeal because of some threshhold issue other than timeliness or frivolousness that was relevant on appeal but not at the original trial?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
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".
Kenneth E. MAYO, Plaintiff, Appellee, v. SCHOONER CAPITAL CORP., et al., Defendants, Appellants.
No. 86-2128.
United States Court of Appeals, First Circuit.
Heard May 4, 1987.
Decided July 27, 1987.
Robert M. Buchanan with whom Sullivan & Worcester, Boston, Mass., was on brief, for defendants, appellants.
Henry F. Spaloss for plaintiff, appellee; Arthur O. Gormley, III and Gormley & Kaklamanos, P.C., Nashua, N.H., on brief.
Before COFFIN, ALDRICH and SELYA, Circuit Judges.
COFFIN, Circuit Judge.
In this diversity case, defendants Schooner Capital Corporation (“Schooner”) and its president, Vincent Ryan (“Ryan”), appeal a jury verdict of $154,000 in favor of plaintiff-appellee Kenneth E. Mayo (“Mayo”) for breach of an oral employment contract. Schooner and Ryan contend that the court erred in denying their motion for judgment notwithstanding the verdict and their motion for a new trial. We find that none of their arguments has merit and therefore affirm the judgment of the district court.
I. Factual Setting.
The following facts were adduced at trial. Plaintiff Mayo is a mechanical engineer with considerable experience in the field of hydroelectric power. In January 1980, he met with defendant Ryan and his associate, A. Gail Staker, to discuss potential participation in the formation of a new corporation for the ownership and development of hydroelectric energy facilities and related activities. (App.187). Mayo testified that Ryan, through his venture capital company, Schooner, sought to fund a study of potential hydroelectric sites in which the new corporation, to be known as Continental Hydro Corporation (“Continental”), could acquire an interest. Mayo described that Ryan, for investment purposes, needed to get a “quick fix” on the largest possible number of hydroelectric sites that could be put into negotiation for acquisition. (App. 204).
On January 24, 1980, according to Mayo, Ryan offered him a three month deal to serve as an engineering consultant at an annual rate of $30,000 plus expenses. (App.186). In addition, Mayo asserts that Ryan — on behalf of himself, Schooner, and Continental — offered him between ten and fifteen percent of the equity in Continental once it was formed. (App.188, 222). Mayo contends that Ryan’s offer included a promise to pay Mayo a commission of $20,-000 per megawatt of potential installed capacity of all hydroelectric sites identified by Mayo that were acquirable within three years and that these funds could later be applied to Mayo’s purchase of stock in Continental. (App.188). Mayo contends that he accepted this offer and performed the duties required of him by the contract. He explained that the $30,000 annual rate was the bare minimum he could accept for the three month start-up period and that, in essence, he was contributing “sweat equity” in the new venture for which he expected to be compensated at a much higher level in the future. (App.222). At trial, Mayo surrendered his claim to an equity share in Continental, allegedly due to the speculative nature of his damages in that regard, and instead pressed his “straightforward” claim for his commissions based on the potential capacity of the sites he identified for Schooner. (App.248). In his own words: “$20,000 a megawatt of installed capacity potential for acquirable sites; that’s the deal.” (App. at 299).
Ryan characterized his dealings with Mayo in a very different manner. He claims to have orally offered Mayo either payments for three months at an annual rate of $30,000 plus expenses or a commission of $20,000 per megawatt of installed capacity for all sites actually brought on line. (App.262). Ryan testified that Mayo accepted the former offer and rejected the latter, preferring to be paid in salary rather than on a commission basis. (App.262). According to Ryan, therefore, he never entered an oral contract that included a promise to compensate Mayo with an equity share in the new corporation or a commission of $20,000 per megawatt of installed capacity at all acquirable sites.
The parties agree that Mayo served as Ryan’s engineering consultant for a three month period and that Schooner compensated him at an annual rate of $30,000 plus expenses. During this period, Mayo estimated that he completed 50 to 75 or more site evaluations and composed detailed reports on those sites he deemed to be desirable for acquisition by Continental. (App. 208-09). The list of desirable hydroelectric sites, according to Mayo, contained 21 proposed acquisitions totalling 40.1 megawatts of potential installed capacity. (App. 211— 14). Mayo asserted that a diligent effort by Continental could have resulted in the acquisition of all of these sites within a three year period. (App.213). This list of “acquirable sites” forms the basis for Mayo’s claim of contract damages in the amount of $802,000 (40.1 megawatts 2a $20,000 per megawatt). Mayo testified, however, that as far as he knew, Continental and its affiliates actually acquired only three sites — Spaulding Fiber (2.4 megawatts), Greg Falls (2.5 megawatts), and the Suncook Project (2.8 megawatts) — totalling 7.7 megawatts of potential installed capacity within the three years following his study. (App.211, 301). The testimony regarding the sites actually acquired was undisputed and the jury apparently awarded Mayo damages at the rate of $20,000 per megawatt ($154,000) only for the three “actually acquired” sites.
After serving three months as a consulting engineer, Mayo continued his association with Ryan and Staker even though he was no longer employed by Schooner or Continental. First, he attempted to negotiate a 25% equity position in Continental, but was unsuccessful in this regard. (App. 265). Eventually, Staker recommended making Mayo president of a company called Water Power Development Corporation (“Water Power”) that was one of Continental’s state affiliates. Pursuant to the deal that was struck, Mayo became president and his wife became a substantial shareholder in Water Power. (App.264). Mayo retained his position as president of Water Power until July 22, 1981, when, according to a court order, he was removed from office pursuant to a vote of the corporation’s stockholders. (App.440-41). The shareholders’ vote was apparently engineered by Ryan through the exercise of warrants that permitted Schooner to obtain a controlling interest in Water Power. (App.279). Water Power, which was one of the original defendants in this action, brought and won a counterclaim for misappropriation of funds in the amount of $18,-000 in the district court. This portion of the court’s judgment has not been appealed.
Defendants offer three arguments aimed at overturning the jury’s verdict in favor of Mayo. First, they contend that Mayo failed to prove the existence of an oral contract. Second, they argue that the oral contract implicitly found by the jury is too vague and speculative to be enforceable. Third, they claim that the contract implicitly found by the jury is unenforceable due to the statute of frauds. We treat each of these contentions in turn.
II. Does The Evidence Support The Existence Of A Contract?
The jury found that Mayo was entitled to recover $154,000 for breach of his employment contract. Defendants, however, do not believe that the evidence introduced at trial is sufficient to justify such an award and contend that the district court should have granted their motion for judgment n.o.v. or, in the alternative, their motion for a new trial.
Before considering these arguments, we briefly describe the standards of review to be employed in this case. As to the district court’s denial of plaintiff's motion for judgment notwithstanding the verdict, the standard of review is the same as for a denial of a motion for directed verdict: “we must examine the evidence in the light most favorable to the plaintiff and determine whether there are facts and inferences reasonably drawn from those facts which lead to but one conclusion — that there is a total failure of evidence to prove plaintiff’s case.” Fact Concerts, Inc. v. City of Newport, 626 F.2d 1060, 1064 (1st Cir.1980), vacated on other grounds, 453 U.S. 247, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981). With regard to the court’s denial of defendants’ new trial motion, we will reverse only if defendants can “show that the verdict was ‘so clearly against the weight of the evidence as to constitute a manifest miscarriage of justice.’ ” Jordan v. United States Lines, Inc., 738 F.2d 48, 49 (1st Cir.1984) (quoting Lakin v. Daniel Marr & Son Co., 732 F.2d 233, 237 (1st Cir.1984)).
A. Motion for Judgment Notwithstanding the Verdict.
Defendants begin by challenging the district court’s denial of their motion for judgment n.o.v. on the ground that the jury’s verdict was not supported by the evidence. They correctly note that the only evidence of the oral contract claimed by Mayo is his own trial testimony. Mayo offered no corroborating witnesses, nor did he introduce any documentary evidence in support of his claim. These facts alone, however, do not require the entry of judgment n.o.v. so long as Mayo's testimony and the inferences that can reasonably be drawn from it support the jury’s conclusion.
To support their contention that the verdict is unsupported by the evidence, defendants cite glaring discrepancies between Mayo's redrafted complaint and his testimony at trial. Mayo’s complaint first alleges that he would be entitled to at least a ten percent equity share in Continental “as well as” a commission of $20,000 per megawatt capacity “on all dams he identified or analyzed which were subsequently acquired by the yet unnamed, unformed company or its assigns within a period of three (3) years.” Redrafted Complaint il 9 (emphasis supplied). The very next paragraph of the complaint states the terms of the contract differently, alleging that Mayo would receive a one-third ownership interest in the new corporation or, if he chose to terminate his relationship with the venture after the original three month period, a commission of “$20,000 per megawatt.” Redrafted Complaint 1110. His testimony at trial was different still from both versions of the contract described in his complaint. Mayo testified that he was entitled to a commission of $20,000 per megawatt of potential installed capacity of all sites he identified that could have been acquired in the exercise of reasonable diligence within three years. (App.299).
Defendants contend that Mayo’s shifting description of the alleged oral contract renders his trial testimony totally unbelievable. They insist that it is completely “inconceivable that a financer [sic] for a power project would request a list of ‘the largest possible number’ of potential sites and agree to pay $20,000 per megawatt capacity related to those sites, completely regardless of whether those sites were ever acquired or attempted to be acquired.” Defendants’ Brief at 22. Defendants add, moreover, that Mayo did not terminate his relationship with the venture at the conclusion of his three month consulting contract. Instead, he stayed on, attempted without success to negotiate for a share of the equity in Continental, and eventually settled on the deal making him president, and his wife a major stockholder, in Water Power. Defendants contend that, under the version of the contract alleged in the Redrafted Complaint, Mayo’s decision to continue with the venture should have precluded his collection of the $20,000 per megawatt commission. They suggest that Mayo changed his story at trial and abandoned pursuit of an equity share in Continental because the corporation had ceased to enjoy financial success.
We acknowledge the power of these arguments, but we believe they are addressed to the wrong audience. Although entirely appropriate in the context of a closing argument to the jury, these contentions do not affect our review of the jury’s verdict in plaintiff's favor. The variance between Mayo’s complaint and trial testimony may very well support the conclusion that his testimony was the product of a flight of fancy. But the jury is the ultimate finder of fact with regard to such issues of credibility and its determination must be respected. On a motion for judgment n.o.v., a court must view all the evidence in the light most favorable to the prevailing party and may not substitute its opinion of witnesses’ credibility for that of the jury. Fact Concerts, 626 F.2d at 1064.
It is obvious, moreover, that the jury did not accept as true everything that Mayo said on the witness stand. In addition to finding against him on a counterclaim that is not before us on this appeal, the jury also rejected Mayo’s suggestion that he was owed a commission on several sites he had recommended to Ryan as desirable acquisitions, but which were not ultimately acquired. Instead, it apparently believed that Mayo was entitled to a commission of $20,000 per megawatt of potential installed capacity only for the three hydroelectric sites actually acquired by Continental or its affiliates. At bottom, this boils down to the jury determining that Mayo’s identification of 21 sites as “acquirable” within three years was overly optimistic in light of the other evidence in the case. We are persuaded that the jury acted properly in making this finding based on the available evidence and, hence, see no cause for overturning its verdict.
B. Motion for New Trial.
While Mayo’s credibility is completely irrelevant to the motion for judgment n.o.v., the district court could properly have considered this factor in ruling on the new trial motion advanced by defendants. Defendants asserted in their motion to the district court that a new trial was necessary because the jury’s verdict was inconsistent, against the weight of the evidence, and represented a miscarriage of justice. See Borras v. Sea-Land Service, Inc., 586 F.2d 881, 886 (1st Cir.1978). On appeal they focus solely on their claim that the verdict was against the clear weight of the evidence because “the proposition that such a contract ever existed between defendants and Mayo is completely unbelievable” and because “Mayo’s own testimony is not creditable, as shown by his shifting allegations concerning the alleged contract, as well as his cavalier misappropriation of corporate assets.” Defendants’ Brief at 24. Thus, credibility is at the very heart of their demand for a new trial.
We recognize, as we have previously stated, the trial court’s “duty to set aside the verdict and grant a new trial if [it] is of the opinion that the verdict is against the clear weight of the evidence, or is based upon evidence which is false, or will result in a clear miscarriage of justice.” Coffran v. Hitchcock Clinic, Inc., 683 F.2d 5, 6 (1st Cir.), cert. denied, 459 U.S. 1087, 103 S.Ct. 571, 74 L.Ed.2d 933 (1982). Here, however, the district court did not believe that the jury was so derelict in rendering its verdict as to require a new trial and denied defendants’ motion. Our review of this decision is necessarily circumscribed, first, by our appreciation of the district court’s superior ability to monitor the conduct of the trial and assess the credibility of witnesses, and second, by the jury’s constitutionally sanctioned role as finder of fact. Thus, absent a showing that the verdict was “so clearly against the weight of the evidence as to constitute a manifest miscarriage of justice,” we will refrain from substituting our view of the evidence for that shared by both the jury and the trial court. Jordan, 738 F.2d at 49 (quoting Lakin, 732 F.2d at 233).
Given this deferential standard of review and the evidence as described above, we hold that the district court’s denial of the new trial motion does not amount to an abuse of discretion. Although the district court admitted that the evidence supporting plaintiff’s claim was “awful thin” (App. 255), we believe that it correctly denied defendants’ new trial motion because the verdict was not so improper as to constitute a miscarriage of justice and we refuse to overturn this considered judgment.
III. Are The Terms Of The Contract Too Vague or Speculative?
Defendants’ second argument assumes that the jury believed Mayo’s testimony and found that defendants were contractually obligated to pay Mayo $20,000 per megawatt of potential installed capacity for each recommended dam site that was acquirable within three years. Such a contract, argue defendants, would be too vague or speculative to warrant enforcement by a court of law. Defendants specifically complain that the alleged contract (1) does not sufficiently describe Mayo’s contractual obligations; (2) does not provide a definitive means by which to ascertain whether a given site was “acquirable;” and (3) does not specify who was to pay the $20,000 per megawatt commission to Mayo. We are unpersuaded that any of these alleged defects precludes enforcement of the oral contract described by Mayo. “While it is true that contracts, both oral and written, must be definite in order to be enforceable, the standard of definiteness is one of reasonable certainty and not ‘pristine preciseness.’ ” Sawin v. Carr, 114 N.H. 462, 465, 323 A.2d 924, 926 (1974).
First, we believe there was ample evidence concerning Mayo’s performance obligations under the contract. Mayo testified that his job was to serve Ryan and Schooner as a consulting engineer for an initial period of three months and, within that period, he was to get a “quick fix” on “the largest possible number of sites that could be put into negotiation for acquisition.” (App.204). Time was of the essence because, as Mayo explained, the idea was to put numerous sites on line and generate income as quickly as possible (App.205), and his job was to provide Ryan, a venture capitalist, with valuable technical information that was essential to Ryan’s investment decisions. Defendants are correct that there was little testimony regarding negotiations or agreements between Ryan and Mayo regarding Mayo’s specific job duties. Ryan testified, however, that Mayo was to “analyze New England hydro sites for three months” (App.264) and the record is rich with description of the tasks Mayo performed, apparently with Ryan’s approval, in this regard. For instance, the record contains no less than twenty pages of testimony by Mayo setting forth the process he used to analyze and evaluate hydroelectric sites. (App.192-204). Mayo also testified that, pursuant to his contract with Ryan and Schooner, he carried out site evalúa-tions on numerous potential sites during his three month consultancy and prepared written reports for Ryan on approximately 20 desirable sites. (App.208-09). Taken in the light most favorable to plaintiff, we believe that this undisputed evidence, along with the inferences that can reasonably be drawn from it, sufficiently describe Mayo’s duties under the alleged oral contract. .
Second, we find no merit in defendants’ contention that the term “acquirable” was too vaguely defined to permit enforcement of the bargain. Mayo specifically testified that the term referred to all hydroelectric sites which, “with a diligent effort[,j ... could have been acquired” by the newly formed corporation within three years. (App.213). We believe that, despite the term’s inherent imprecision, it is not so ambiguous as to fall afoul of the “reasonable certainty” standard and cause the contract itself to be unenforceable. True, there was a factual dispute at trial as to which hydroelectric sites identified by Mayo could have been acquired in the exercise of reasonable diligence, but this issue was properly left to the jury. The jury heard evidence regarding the methods of evaluating the capacity and value of hydroelectric sites, the various means of acquiring the rights to such sites, and the need to obtain regulatory approval before operating a site. Having reviewed this evidence, it rejected Mayo’s proposed list of 21 sites and found instead that the only “acquirable” sites were the three actually acquired by Continental and its affiliates during the three year period. The factual dispute, therefore, concerned only which sites satisfied the standard set by contractual term. Such a dispute does not render the oral contract unenforceable on vagueness grounds where, as here, the meaning of a term itself is “reasonably, certain.” Sawin, 114 N.H. at 465, 323 A.2d at 926.
Finally, we are not persuaded by defendants’ assertion that the failure to specify precisely which party was to pay the commission renders the contract too vague or speculative to be enforced. Mayo first testified that Ryan, acting on behalf of Schooner, said, “what I'll do is I will pay you $20,000 a megawatt of ... the potential installed capacity of the sites.” (App. 188). Then, according to Mayo, Ryan went on to say that “Continental Hydro, the new company that is to be formed, will pay that $20,000 a megawatt.” (App.188). We admit that Mayo’s testimony leaves some confusion as to which party was actually supposed to pay the commission, but given the posture of this appeal we must view the evidence in the light most favorable to Mayo. Mayo did testify regarding his understanding that Ryan entered the contract on behalf of himself, Schooner, and the as yet unformed corporation (Continental) which Schooner sought to fund. (App. 222). It is also significant that, at the time the parties entered the oral contract, Continental existed only in the sense that Ryan hoped to form such a corporation in the future to exploit the opportunities identified by Mayo. We are of the opinion, therefore, that the jury could have reasonably believed that the contract called for Ryan and Schooner, not Continental, to be ultimately responsible for paying Mayo’s commission. Thus, we hold that the contract is not so vague in this regard as to be unenforceable against the two parties— Ryan and Schooner — who originally made the promise to Mayo.
IV. Is The Contract Barred By The Statute Of Frauds?
Defendants’ final challenge concerns the enforceability of the alleged oral contract in light of the statute of frauds. According to defendants' theory, the contract to which Mayo testified at trial — involving a commission on all identified hydroelectric sites, that could be acquired in the exercise of reasonable diligence within three years — violates that portion of the statute of frauds which requires a writing for agreements that cannot be completed within one year. See N.H.Rev.Stat.Ann. § 506:2; see also Mass.Gen.L. ch. 259, § 1. Defendants raised this defense for the first time in their motions for judgment n.o.v. and for a new trial.
Mayo’s response is that defendants waived reliance on the statute of frauds because they neither pleaded it as an affirmative defense, nor cited it when moving for a directed verdict at the close of plaintiffs case and again at the close of all the evidence. We have held, pursuant to Federal Rule of Civil Procedure 50(b), that a party may not be awarded judgment no-thwithstanding the verdict on a ground that was not previously included in a motion for directed verdict at the close of all the evidence. Martinez Moll v. Levitt & Sons of Puerto Rico, Inc., 583 F.2d 565, 568 (1st Cir.1978). As we explained, the prudential rationale underlying Rule 50(b) is that both the opposing party and the court should be on notice of the movant’s legal claim prior to the case going to the jury. This ensures that the opposing party will be able to cure any deficiency in his case and permits the judge to rule on the legal sufficiency of the case “without impinging on the jury’s fact-finding province.” Id. at 569.
Defendants seek to escape the operation of Rule 50(b) in this case by asserting that there was no previous occasion on which they could possibly have raised the statute of frauds defense. They attempt to support this contention by noting that Mayo, who had previously been pursuing an equity interest in Continental, changed his theory just prior to trial and sought instead the $20,000 per megawatt commission for all sites acquirable within three years. According to defendants, there was no waiver of the statute of frauds defense because they asserted it at the earliest possible opportunity after reviewing the plaintiff’s claims as stated at trial.
We cannot accept this rationalization. Plaintiff’s pre-trial decision to change his theory of recovery may excuse defendants' failure to plead the statute of frauds defense in their answer, but it does not excuse defendants’ inaction after the plaintiff had completed his testimony regarding the alleged oral contract. If defendants truly believed that Mayo’s testimony was inconsistent with the allegations of his complaint, then they should have objected to the introduction of this evidence or moved to amend their answer in light of the new theory advanced by plaintiff. Nothing in the record indicates that defendants took such steps. Subsequent to plaintiff's trial testimony, moreover, defendants had two additional opportunities to raise the statute of frauds defense when moving for a directed verdict. Yet defendants, while fully cognizant of the contours of Mayo’s contract claim, failed to raise the defense both at the conclusion of the plaintiff’s case and at the conclusion of all the evidence. We therefore see no compelling reason to treat their failure to act as anything other than a waiver of the statute of frauds defense.
For the reasons stated, the judgment of the district court is affirmed.
. Rule 50(b) states:
Whenever a motion for directed verdict made at the close of all the evidence is denied or for any reason not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion.... [A] party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for directed verdict....
Fed.R.Civ.P. 50(b) (emphasis supplied).
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_procedur
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
Donald G. GRIFFIN, Petitioner-Appellant, v. WARDEN, MARYLAND CORRECTIONAL ADJUSTMENT CENTER; Attorney General of the State of Maryland, Respondents-Appellees.
No. 91-6066.
United States Court of Appeals, Fourth Circuit.
Argued April 10, 1992.
Decided July 28, 1992.
Mark Lawrence Gitomer, Cardin & Gi-tomer, P.A., Baltimore, Md., argued, for petitioner-appellant.
Gary Eugene Bair, Asst. Atty. Gen., Crim. Appeals Div., Baltimore, Md., argued (J. Joseph Curran, Jr., Atty. Gen. of Maryland, Crim. Appeals Div., on brief), for respondents-appellees.
Before ERVIN, Chief Judge, and HALL and PHILLIPS, Circuit Judges.
OPINION
K.K. HALL, Circuit Judge:
Donald Griffin appeals a final order of the district court denying his 28 U.S.C. § 2254 petition for a writ of habeas corpus. Concluding that Griffin was denied the minimum level of effective assistance of counsel guaranteed to him by the Sixth Amendment, we reverse.
I.
At 3:45 p.m. on July 24, 1983, a Rite-Aid Drug Store in Baltimore, Maryland, was robbed by two men armed with handguns. Two security guards were shot and wounded during the robbery.
Two days later, one of the security guards picked appellant Donald Griffin out of a photo array. When he learned that he was wanted in connection with the robbery, Griffin surrendered to police. He was charged with robbery and using a handgun during a crime of violence. Attorney Charles Howard entered an appearance for Griffin in December, 1983, and represented him when he tendered a not guilty plea. On or about February 22, 1984, Griffin and his mother, Dorothy Josey, provided attorney Howard with a list of five alibi witnesses. Howard failed to contact these witnesses or to respond to the state’s discovery requests, among which were requests to be notified of intent to rely on alibi and for the identities of alibi witnesses. See Md.Rule 4-263.
From his personal standpoint, Howard had moré serious concerns than his representation of Griffin.' On June 1, 1984, he was disbarred for misappropriating client funds, commingling funds, failing to keep records, and neglecting a legal matter. In concluding that the ultimate sanction of disbarment was warranted, the Maryland Court of Appeals pointed out that it had previously reprimanded Howard for neglecting cases, including, on three occasions, failing to be present when a case was called. Attorney Grievance Comm’n v. Howard, 299 Md. 731, 737-738, 475 A.2d 466 (1984), citing, Attorney Grievance Comm’n v. Howard, 282 Md. 515, 385 A.2d 1191 (1978).
George David, who shared office space with Howard, took over Griffin’s file. Howard advised David to “take a plea” for Griffin. David, expecting Griffin to plead guilty, did nothing. He contacted no witnesses, though he “imagine[s]” he “glanced” at the file, and he failed to confirm that the state’s discovery requests had been answered. At a hearing on October 25, 1984, four months after he entered his appearance in Howard’s stead, David met his client for the first time. At this hearing, David expected Griffin to plead guilty. Griffin refused.
On November 19, 1984,' Griffin’s case was scheduled for trial. David still expected Griffin to change his mind and plead guilty, and he had done nothing more to prepare for trial. Instead, Griffin reiterated his not guilty plea and told the court he was “uncomfortable” with his attorney. Just before the jury was brought into the courtroom, this colloquy, a harbinger of the events we address today, ensued:
THE COURT: Now, Mr. Griffin, have you had an opportunity to discuss your case adequately with Mr. David? Have you talked it over with him?
THE DEFENDANT: Somewhat. I haven’t talked at all with him.
THE COURT: Was there anything you wanted to tell him that you haven’t told him?
THE DEFENDANT: I haven’t seen my true bill indictment papers or nothing. I ain’t seen nothing.
THE COURT: All right. Show it to him, Mr. David. Anything else other than that?
THE DEFENDANT: No, not really. I just wanted to know everything they charging me with.
The state’s evidence at trial consisted of two eyewitness identifications by the security guards. Because David had failed to contact any of Griffin’s witnesses, only one — Dorothy Josey, Griffin’s mother— was present. She was there only because Griffin himself had been able to get a message to her through a cellmate that the trial was about to be held.
Attorney David called Josey to the stand. When he asked a question that would have prompted alibi testimony, the state objected. At a bench conference, the court ruled that the testimony would not be permitted because of David’s (and Howard’s) failure to notify the state of Griffin’s intent to rely on an alibi. David offered two excuses for the failure to respond to the state’s discovery request, both of which were confessions of his own dereliction. First, he told the court that “any discovery ... would have been propounded to Charles Howard and I don’t know if he replied or not.” Moments later, he said “it’s been my impression ... that this case was going to be pleaded all the way up until this morning.”
Unable to elicit the alibi evidence, David asked Griffin’s mother no further questions. Griffin then testified on his own behalf. He stated that he was at home in his pajamas at the time of the robbery, and that soon thereafter he went with Rodney Staples and Perry Payne to Eddie Williams’ house.
On closing argument, the prosecutor attacked Griffin’s story, and specifically referred to the lack of corroboration of his alibi. In other words, the state got double mileage out of the failure to notify it of the alibi defense — it was able to exclude evidence corroborating Griffin’s story and then emphasize the lack of corroboration to the jury.
Griffin was convicted of robbery and use of a handgun in connection with a crime of violence. He was sentenced to two consecutive twenty-year terms. He appealed. The Court of Special Appeals affirmed, holding that the trial court acted within its discretion in refusing to admit the alibi testimony. Griffin v. State, No. 166 (Md.Ct.Spec.App., October 21, 1985). The appellate court had harsh words for attorney David, however: “Appellant’s trial counsel’s excuse that he thought there would be a plea bargain is no justification for neglecting to discover alibi witnesses and reveal them to the State.” Griffin’s petition for certiorari to the Court of Appeals of Maryland was denied.
On October 1, 1987, Griffin filed a petition for post-conviction relief in state trial court, in which he argued that he had been denied effective assistance of counsel. An evidentiary hearing was held, at which Griffin, his five alibi witnesses, and both attorneys — Howard and David — testified. The state court denied relief. Griffin v. State, P.C.P.A. No. 6113 (Baltimore (Md.) City Cir. Ct., June 1, 1988). The Court of Special Appeals denied leave to appeal on December 7, 1988. On December 6, 1990, Griffin filed this petition in district court under 28 U.S.C. § 2254. Adopting the reasoning of the state court, which we discuss below, the district court denied the petition without a hearing on April 2, 1991. Griffin appeals.
II.
The Supreme Court has devised a two-step inquiry to determine whether a lawyer’s poor performance has deprived an accused of his Sixth Amendment right to assistance of counsel. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, the defendant must show that his attorney’s performance was deficient. “Deficient performance” is not merely below-average performance; rather, the attorney’s actions must fall below the wide range of professionally competent performance. Second, the defendant must show that he was prejudiced by the substandard performance. “Prejudice” is a “reasonable probability that but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. at 2068. Because effectiveness of counsel is a mixed question of law and fact, we owe no special deference to the finding of the state court on the question. Id. at 698, 104 S.Ct. at 2070.
III.
The “deficient performance” prong is easily met here. An attorney’s failure to present available exculpatory evidence is ordinarily deficient, “unless some cogent tactical or other consideration justified it.” Washington v. Murray, 952 F.2d 1472, 1476 (4th Cir.1991). Accord, Lawrence v. Armontrout, 900 F.2d 127, 130 (8th Cir. 1990), appeal after remand 961 F.2d 113 (8th Cir.1992) (failure to interview alibi witnesses was deficient performance under first Strickland factor); Harris v. Reed, 894 F.2d 871, 878 (7th Cir.1990) (failure to call witnesses to contradict eyewitness identification of defendant was ineffective assistance); Grooms v. Solem, 923 F.2d 88, 90 (8th Cir.1991) (“it is unreasonable not to make some effort to contact [alibi witnesses] to ascertain whether their testimony would aid the defense”).
As we will discuss below, the “cogent tactical considerations” that the state court bestowed on David for failing to present Griffin’s alibi witnesses are exercises in retrospective sophistry. From the attorney's perspective at the time of trial, no reasonable excuse for failing to notify the state of Griffin’s alibi and to secure the attendance of alibi witnesses appears or is even suggested in the evidentiary record. Indeed, David’s statements at the bench conference are unambiguous admissions of unpardonable neglect. We hold that counsel’s performance was deficient.
IY.
We thus turn to the second Strickland factor: was Griffin prejudiced, i.e., does the attorney’s deficient performance undermine confidence in the outcome? The state post-conviction court focused on this prong, but its decision invokes speculation and hindsight to evade the stark prejudice we find apparent. A synopsis of the state court’s analysis of the testimony of the alibi witnesses will illustrate.
A.
Joseph “Eddie” Williams and his mother, Beatrice Williams, both testified that Griffin arrived at their house at 4 p.m. on the date of the robbery, where he remained, watching sports and eating chicken, until nightfall. The state court concluded that this evidence did not establish an alibi because it “[did] not cover the period in question.” The court’s conclusion is strained, at best. The Williams’ house is three to four miles from the site of the robbery. Griffin testified that it takes twenty to twenty-five minutes to drive that distance because of numerous stoplights. Finally, the court ignored the trial testimony of one of the Rite Aid security guards, who testified that the robbers entered the store at 3:45 p.m. and did not leave until ten to fifteen minutes later.
B.
Rodney Staples testified that he arrived at Griffin’s house between 3:00 and 3:15 p.m. on the day of the robbery. He stated that soon thereafter he and Griffin went to the Williams’ house to watch sports. Inasmuch as this testimony clearly “covers” the period in question, the state court took a different tack. Staples had been picked out of a photo array by one of the security guards and identified as one of the robbers. Therefore, concluded the state court, it may have been sound trial strategy not to call Staples, i.e. if he were an accomplice, and the state could show that when he was on the stand, it could have hurt Griffin’s case.
This reasoning is thoroughly disingenuous. David did not even talk to Staples, let alone make some strategic decision not to call him. Strickland and its progeny certainly teach indulgence of the on-the-spot decisions of defense attorneys. On the other hand, courts should not conjure up tactical decisions an attorney could have made, but plainly did not. The illogic of this “approach” is pellucidly depicted by this case, where the attorney’s incompetent performance deprived him of the opportunity to even make a tactical decision about putting Staples on the stand. A court should “evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S. at 689,104 S.Ct. at 2065. Tolerance of tactical miscalculations is one thing; fabrication of tactical excuses is quite another. Kimmelman v. Morrison, 477 U.S. 365, 386-387, 106 S.Ct. 2574, 2588-2589, 91 L.Ed.2d 305 (1986) (hindsight cannot be used to supply a reasonable reason for decision of counsel); Harris, 894 F.2d at 878 (same).
C.
Griffin’s mother testified that her son was at home until he left to go to the Williams’ shortly after 4:00 p.m. The state court faulted this testimony because of discrepancies between it and other alibi testimony in estimates of times. Inasmuch as the state court discounted all the other alibi evidence, the court’s insistence that Griffin’s mother’s testimony be strictly consistent with it is a plain fallacy.
The state court also credited David’s testimony that he was afraid Griffin’s mother would commit perjury as a sound reason not to put her on the stand. Again, this retro-speculative reasoning (advanced, we must note, in the sworn testimony of an officer of the court) bizarrely ignores, and is utterly belied by, the actual course of the trial. David put Griffin’s mother on the stand. He tried to introduce her testimony establishing an alibi. He failed because of his disregard of professional duty. The tug on his conscience not to sponsor perjured testimony is revisionist history.
D.
Monica Tyson testified that she talked briefly with Griffin between 3:30 and 4:00 p.m., when Griffin was seated on his front porch in his pajamas. The state court ruled that this testimony “did not affirmatively demonstrate that [Griffin] was at home when the crime was committed.”
This last quote brings us to a legal error that complements the tortured logic of the state court’s factual analysis — an overly-strict legal standard for the second Strickland prong. The court stated that Griffin had to “demonstrate affirmatively that, but for trial counsel’s unprofessional errors, the result would have been different.” Strickland is not so demanding. If a petitioner establishes a reasonable probability that the result would have been different, prejudice is established. Moreover, a “reasonable probability” is simply “a probability sufficient to undermine confidence in the outcome.” 466 U.S. at 694, 104 S.Ct. at 2068.
Our confidence in the outcome is very much undermined. Eyewitness identification evidence, uncorroborated by a fingerprint, gun, confession, or coconspirator testimony, is a thin thread to shackle a man for forty years. Moreover, it is precisely the sort of evidence that an alibi defense refutes best. Lawrence, 900 F.2d at 130; cf. Montgomery v. Petersen, 846 F.2d 407, 415-416 (7th Cir.1988) (where trial was “swearing match” between biased witnesses, counsel’s failure to call unbiased alibi witness was prejudicial); Harris, 894 F.2d at 879 (failure to call two witnesses who would have identified someone else as perpetrator prejudicial where prosecution relied on single eyewitness identification). This excerpt from the prosecutor’s closing argument, to which we referred earlier, demonstrates the narrow scope of the state’s case and the prejudice that resulted to Griffin from his inability to introduce alibi evidence (emphasis added):
The entire case hinges on the credibility of the witnesses. Who do you believe? Do you believe ... the security officers, who were trained as security officers in identification, who have positively identified Donald Gary Griffin as the individual responsible for shooting them on July 24th, 1983 or do you believe Donald Gary Griffin, who makes the self-serving statement, I was at home at the time that the alleged incident took place, I had been out all night, I did not return home until seven o’clock that morning, I was in my pajamas at 3:30 in the afternoon when friends of mine, none of which you heard from, come in and they went to a friend’s house?
The judgment of the district court is reversed, and the case is remanded with instructions to grant the writ. Unless the state elects to retry him within sixty days from the issuance of the writ, Griffin should be released.
REVERSED AND REMANDED WITH INSTRUCTIONS.
. A criminal defendant’s right to present witnesses is of course protected by the Compulsory Process Clause of the Sixth Amendment, and trial courts must take this right into account in sanctioning a defendant for noncompliance with a discovery rule. Since the Maryland courts considered Griffin’s direct appeal, the United States Supreme Court has held that the extreme sanction of preclusion is constitutional under some circumstances, and at least where a discovery rule is willfully violated by the defendant in hopes of gaining a tactical advantage. Taylor v. Illinois, 484 U.S. 400, 415, 108 S.Ct. 646, 656, 98 L.Ed.2d 798 (1988). In any event, Griffin has not asserted a Taylor-style compulsory process claim on collateral review in either the state or federal courts.
. Staples has never been formally charged with complicity in the robbery.
. Griffin’s mother corroborated that Tyson had spoken to her son, though she estimated the time as 3:20 to 3:30 p.m.
. Because of our disposition of Griffin’s ineffectiveness claim, we do not address his contention that the state court unconstitutionally punished him, through an increased sentence, for exercising his right to a jury trial.
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_applfrom
|
E
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
Robert N. PILGRIM, Appellant, v. Maurice H. SIGLER, Appellee.
No. 20497.
United States Court of Appeals, Eighth Circuit.
April 14, 1971.
Robert N. Pilgrim, filed brief pro se.
Clarence A. H. Meyer, Atty. Gen., and Harold Mosher, Asst. Atty. Gen., Lincoln, Neb., filed brief for appellee.
Before GIBSON, HEANEY and BRIGHT, Circuit Judges.
PER CURIAM.
Petitioner Robert N. Pilgrim, a Nebraska state prisoner, brings this in forma pauperis appeal from the federal district court’s denial of his petition for a writ of habeas corpus. He claims that his constitutional right to a fair trial was violated by the prosecuting attorney’s alleged misconduct in displaying inadmissible exhibits and adducing fingerprint testimony before the jury. The habeas court rejected the claim. We affirm.
Pilgrim was convicted by a jury on May 11, 1967, of the second-degree murder of his wife, and was sentenced to imprisonment for a period of sixteen years. He appealed directly from his conviction, raising, among other questions, the issue of the prosecuting attorney’s alleged misconduct in displaying inadmissible exhibits before the jury. The Nebraska Supreme Court affirmed the conviction. State v. Pilgrim, 182 Neb. 594, 156 N.W.2d 171 (1968). Petitioner then applied to the United States District Court for the District of Nebraska for a writ of habeas corpus. The district court, Judge Van Pelt presiding, held the petition in abeyance pending petitioner’s presentation of the matter first to the state courts. Petitioner then brought such an action under the Nebraska Post-Conviction Remedy Law, NEB.REV.STAT. §§ 29-3001-3004 (Supp.1969), in a Nebraska lower court, where it was dismissed. On appeal, the Nebraska Supreme Court affirmed the dismissal. State v. Pilgrim, 184 Neb. 457, 168 N.W.2d 368 (1969).
Subsequently, on June 12, 1969, petitioner filed in federal district court a request for reconsideration of his application for a writ of habeas corpus. An evidentiary hearing was held, and on July 23, 1970, Judge Van Pelt denied the petition, explaining his ruling in an accompanying memorandum. Petitioner then filed a motion for a rehearing, which Judge Van Pelt denied on August 5, 1970, in a supplemental memorandum.
On this appeal, Pilgrim particularly notes that the prosecutor displayed before the jury several exhibits, some likely to incite passion or prejudice, which were not admitted into evidence. He charges that the jury’s request during its deliberations that two of such exhibits be brought to the jury room establishes the prejudicial nature of this misconduct. Appellant further contends that the prosecuting attorney, by presenting testimony of the search for fingerprints, knowingly created a false impression that Pilgrim’s fingerprints were found at the scene of the crime.
Judge Van Pelt analyzed petitioner’s contentions in depth and concluded that the prosecution committed no error amounting to a denial of due process. The habeas court also determined the trial errors to be harmless beyond a reasonable doubt within the rules of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), and Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).
We agree with this analysis and affirm on the basis of Judge Van Pelt’s memorandum opinions.
. The July 23, 1970, memorandum and the August 5, 1970, supplemental memorandum are unpublished.
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
|
songer_state
|
21
|
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".
UNITED STATES of America, Appellee, v. Raynard CARROLL, Appellant.
No. 81-5176.
United States Court of Appeals, Fourth Circuit.
Argued March 4, 1982.
Decided May 27, 1982.
Joseph Kiel, Towson, Md., for appellant.
Richard E. Dunne, III, Asst. U. S. Atty., Baltimore, Md. (J. Frederick Motz, U. S. Atty., Baltimore, Md., on brief), for appel-lee.
Before WINTER, Chief Judge, ERVIN, Circuit Judge, and YOUNG, District Judge.
Honorable Joseph H. Young, United States District Judge for the District of Maryland, sitting by designation.
HARRISON L. WINTER, Chief Judge:
A jury found defendant guilty of bank robbery, bank larceny, and assault with a dangerous weapon during a bank robbery, in connection with the armed robbery at the Savings Bank of Baltimore in Baltimore, Maryland on October 24, 1980. In defendant’s appeal from the judgment entered on the verdict, the question presented is whether certain remarks made by the prosecutor during closing arguments to the jury constitute reversible error. We conclude that the remarks were improper and prejudicial, and that, under the facts of this case, the curative instructions given by the court were insufficient to dissipate the prejudice. Accordingly, we reverse and grant a new trial.
I.
The bank was robbed by three persons, two masked and one unmasked. The government sought to prove that the defendant was the unmasked robber. The government’s evidence included the bank surveillance photographs of the holdup; the testimony of three bank employees and two persons who saw the getaway car, which defendant stipulated was owned by him; and a surgical glove seized from defendant’s car. The photographs showed that one of the masked robbers wore a glove similar to the one found in defendant’s car.
There was considerable uncertainty in the evidence identifying defendant as the unmasked robber. The bank manager described the unmasked robber as a black man with no facial hair, but could not identify the defendant at trial. One of the bank tellers made an out-of-court identification of the defendant from photographs as the one most resembling the unmasked robber, but could not identify him at trial. That teller described the robber as having had facial hair. Another teller made an in-court identification of the defendant after describing the robber as having had facial hair. She admitted that she had earlier identified him in two pictures which did not show facial hair, one of which was the surveillance photograph. Defendant’s mother testified that defendant had always worn facial hair and that he had a front gold tooth, which none of the identification witnesses had mentioned. One of the two persons who saw the getaway car could make no identification, and the other could identify only defendant’s “hair style.” The defendant did not testify.
During closing arguments, the prosecutor noted that at one point during the trial defense counsel and defendant had, with the permission of the district court, approached and examined the blowups of the bank surveillance photographs. The prosecutor then stated:
.. . and if you will recall, it was the defendant who was doing most of the pointing. It was the defendant who was explaining to his lawyer what the pictures were all about. It was the defendant who knew more about the pictures than the lawyer did. Now, I submit to you ... the reason he knew so much about those pictures is because he was in the bank there at the robbery. That’s the only reasonable explanation. If there was an explanation, an innocent explanation, as to why he knew more about the pictures than his lawyer did, I honestly don’t know what it is.
In order to register an objection, defense counsel immediately asked to approach the bench, but the district judge denied the request. After the prosecutor concluded his closing argument, defense counsel again asked to approach the bench. The district judge again declined the request and, further, admonished defense counsel to restrain himself and apologized to the jury for the “outbreak.”
In its instructions, which were given approximately thirty minutes after the challenged argument, the district court advised the jury to disregard the prosecutor’s comments on the defendant’s examination of the photographs, and explained to the jury that both defendant and defense counsel had been provided copies of the photographs prior to trial.
II.
It is clear that the prosecutor’s reference to the courtroom behavior of the defendant was improper. It impugned defendant’s Fifth and Sixth Amendment rights. Defendant had a Fifth Amendment right not to testify, and he elected to exercise that right. He also had a Fifth Amendment right not to be convicted except on the basis of evidence adduced against him. Defendant had not only a Sixth Amendment right to a trial by jury (and he elected to exercise that right also), but also the right to counsel, including the right to assist his counsel in his own defense. In tandem, defendant had the right to a jury trial at which, if he elected not to testify, the fact of his presence and his non-testimonial behavior in the courtroom could not be taken as evidence of his guilt.
When, as here, the prosecutor describes the courtroom behavior of a defendant who has not testified, and then goes on to tell the jury that it may consider that behavior as evidence of guilt, the prosecutor violates those rights. Moreover, he has introduced evidence of character — courtroom demeanor — solely to prove guilt. United States v. Wright, 489 F.2d 1181, 1186 (D.C. Cir.1973). But it is forbidden to introduce evidence of the character of the accused solely to prove guilt. Fed.R.Evid. 404(a). Therefore, the prosecutor erred in asking the jury to consider defendant’s examination of the photographs as evidence of his participation in the bank robbery.
The prosecutor compounded the error of describing defendant’s courtroom behavior as evidence of guilt when he also told the jury that it was defendant who was “explaining to his lawyer what the pictures were all about.” The record is devoid of any evidence, aside from the prosecutor’s assertion, that the defendant knew more about the photographs than did his lawyer. In Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935), the Court reversed a conviction where the prosecutor claimed, without evidence in the record, that a particular witness knew the defendant, on the grounds that this statement contained “improper insinuations and assertions calculated to mislead the jury.” Id. at 85, 55 S.Ct. at 632. Similarly, here, the argument that the defendant had been at the scene of the crime because he knew more about the photographs than did his lawyer was wholly improper since there was no evidence of the latter proposition. United States v. Corona, 551 F.2d 1386, 1389 (5 Cir. 1977).
The government argues that the prosecutor’s remarks, even if improper, were cured by the district court’s instructions to the jury. We reject the argument.
By allowing the prosecutor’s remarks to pass uncorrected, over defense counsel’s objection, for a not-inconsiderable period of time, the district court implied that the remarks were unobjectionable. This impression was reinforced by the district court’s admonition to defense counsel and its apology to the jury for the “outbreak.”
We do not doubt that if an improper statement, not elicited by the government, is made during trial, and if the admissible evidence of guilt is “solid and convincing,” prompt and strong curative instructions may dissipate the error. United States v. Johnson, 610 F.2d 194, 196-197 (4 Cir. 1979). The same may be true when the improper statement is elicited by the government. But this is not such a case. The issue of identification was the central issue and the government had something less than an overwhelming case. The error was reinforced by the district court’s admonition to counsel and its apology to the jury, and the curative instruction did not immediately follow on the heels of the prosecutor’s improper argument. Accordingly, we think that, despite the curative instruction, there is more than a fair possibility that the improper argument contributed to defendant’s conviction. Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 230, 11 L.Ed.2d 171 (1963).
REVERSED AND REMANDED.
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_appstate
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Odell Aaron HICKS, Petitioner-Appellee, v. Louie L. WAINWRIGHT, Secretary, Department of Corrections, State of Florida, Respondent-Appellant.
No. 80-5097
Summary Calendar.
United States Court of Appeals, Fifth Circuit. Unit B
Jan. 5, 1981.
Calvin L. Fox, Asst. Atty. Gen. of Fla., Miami, Fla., for respondent-appellant.
Elliot H. Scherker, Asst. Public Defender, Miami, Fla., for petitioner-appellee.
Before RONEY, FRANK M. JOHNSON, Jr. and HENDERSON, Circuit Judges.
RONEY, Circuit Judge:
This is an appeal from the- grant of a writ of habeas corpus under 28 U.S.C.A. § 2254. Although mindful of the difficulties which confront state trial judges in managing busy dockets, especially in the handling of professional witnesses and in the recalcitrance of some counsel, we nevertheless agree with the district court that the denial of a continuance in this case prevented petitioner from presenting his only expert witness on his insanity defense, the sole issue at trial, and deprived petitioner of his right to due process. The conditional grant of a writ of habeas corpus is affirmed.
Petitioner was prosecuted in state court for breaking and entering a dwelling with intent to commit a felony and involuntary sexual battery. His only defense at trial was insanity. The prosecution rested its case at approximately 4:30 p. m. on the first day of trial. At that time, counsel for petitioner requested a continuance because the petitioner’s sole witness, Dr. David Rothenberg, a clinical psychologist, was unavailable to testify. Counsel explained that Dr. Rothenberg had been available up until 4:00 o’clock and would be willing to testify after he finished a therapy group at 10:00 p. m., but he could not come now. To counsel’s request for a recess, the judge responded “No way.” The following exchange ensued.
The Court: We are taking all the testimony tonight.
Mr. Rubio [petitioner’s counsel]: 10:30 is all right, then?
The Court: We have another case that will be tried this week. It will be tried.
Mr. Rubio: I am not so sure that case is going to be tried.
The Court: Or it will close. At any rate, I am assuming it is a jury and we are definitely not recessing this case. Definitely not.
Mr. Rubio: He can’t testify until tomorrow.
The Court: That is unfortunate. We are proceeding.
Mr. Rubio: Then, I’d like to make a proffer of what his testimony would have been. He would have testified favorably for the Defense.
He would have testified that Odell Hicks did not know right from wrong or the nature and consequences of his act.
* * * sfc sfi *
The Court: We are proceeding.
sfs j(: * * sjí *
Mr. Rubio: We are not going to be allowed to present our Defense, then, with our psychiatrist.
The Court: You can present anything you want. This case announced ready. It’s going to trial. It’s in trial and it’s going forward.
Mr. Rubio: I have done my best. I have done everything I can to get Doctor Rothenberg here.
The Court: What can I tell you? We are going forward.
* * * * * *
Mr. Rubio: Is there any way the Court can require Doctor Rothenberg, then, to appear?
The Court: Isn’t he under subpoena?
Mr. Rubio: Yes, he is.
The Court: Why is he refusing?
Mr. Rubio: Because he was available all day and he’s got commitments until 10:00 o’clock tonight.
The Court: I would suggest you have your associate telephone him and say he’d best get his way over here.
* * * * * *
We will sit right here. Go use my phone. Go use Peggy’s phone.
[Apparently a pause while Mr. Rubio telephoned Dr. Rothenberg.]
Mr. Rubio: Judge, he says that he’s for years, on Wednesday nights, he’s had-
The Court: I don’t care for years.
Mr. Rubio: He says he will be here after the group, which is around 10:00,10:30. ******
The Court: I don’t care what he’s done for years. This case is proceeding with him or without him ....
Petitioner’s counsel then made his introductory statement to the jury. Immediately afterwards, he again asked that the case be recessed until he could call the psychologist. The motion was firmly denied. Counsel announced that he would be forced to call petitioner to the stand.
The motion to recess was renewed and denied following petitioner’s testimony and again at the close of the prosecution’s insanity testimony. All the testimony was taken that night and closing arguments were made. The next morning the jury was instructed and they rendered their guilty verdict. Petitioner’s motion for a new trial, which did not raise the issue of a compulsory process or the denial of continuance, was denied.
On direct appeal to the District Court of Appeal of Florida, petitioner asserted, inter alia, that the denial by the trial court of a continuance or a recess denied petitioner due process and his right to present a defense under the Sixth Amendment. Petitioner’s conviction was affirmed in a per curiam order without opinion.
The identical issue formed the basis of petitioner’s petition for a writ of habeas corpus in the district court. The court, over the State’s objections that petitioner did not properly raise the issue in the trial court and the proffer by petitioner’s counsel was not true, granted the writ without an evi-dentiary hearing. The State now appeals to this Court.
The State argues that the constitutional issue presented in the federal court was not raised in the state trial court and therefore petitioner is not entitled to relief because of failure to exhaust state remedies and because he is now barred by the contemporaneous objection rule. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).
This argument is based on a mischarac-terization of the constitutional claim. The State characterizes the issue as whether the trial court denied petitioner his constitutional right to compulsory process under the Sixth Amendment. The petition in the district court, however, framed the claim as a due process violation, that is, the denial of a continuance violated the right to present a crucial defense witness. While not stated in specific federal constitutional terms, this issue, as shown by the portion of the transcript quoted above, was repeatedly raised by petitioner in the trial court and was specifically relied upon as a basis of error in his direct appeal to the state appellate court. This was sufficient. See Picard v. Connor, 404 U.S. 270, 278, 92 S.Ct. 509, 513, 30 L.Ed.2d 438 (1971); Lamberti v. Wainwright, 513 F.2d 277, 282 (5th Cir. 1975).
A motion for continuance is addressed to the sound discretion of the trial court and will not be disturbed on a direct appeal unless there is a showing that there has been an abuse of that discretion. United States v. Uptain, 531 F.2d 1281 (5th Cir. 1976); United States v. Gidley, 527 F.2d 1345 (5th Cir. 1976), cert. denied, 429 U.S. 841, 97 S.Ct. 116, 50 L.Ed.2d 110 (1977). When a denial of a continuance forms a basis of a petition for a writ of habeas corpus, not only must there have been an abuse of discretion but it must have been so arbitrary and fundamentally unfair that it violates constitutional principles of due process. See Gandy v. Alabama, 569 F.2d 1318, 1323 (5th Cir. 1978); Shirley v. North Carolina, 528 F.2d 819, 822 (4th Cir. 1975).
The Supreme Court addressed this subject in Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964):
The matter of continuance is traditionally within the discretion of the trial judge, and it is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel. Contrariwise, a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality. There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied. (Citations omitted.)
When a motion for a continuance for the purpose of securing defense witnesses is denied, our cáses have identified the following factors in considering whether denial of the motion was an abuse of the trial court’s discretion:
the diligence of the defense in interviewing witnesses and procuring their presence, the probability, of procuring their testimony within a reasonable time, the specificity with which the defense is able to describe their expected knowledge or testimony, the degree to which such testimony is expected to be favorable to the accused, and the unique or cumulative nature of the testimony.
United States v. Uptain, 531 F.2d at 1287 (footnotes omitted).
The record in this case demonstrates that the defense exercised due diligence to obtain the witness’s presence. Dr. Rothenberg had interviewed petitioner and had been prepared by the defense to testify. He had been placed under subpoena and had been available to testify earlier in the day. Petitioner’s counsel was in telephone contact with him during the trial. The witness’s unwillingness to appear when the court was ready to hear his testimony cannot be attributed to the petitioner.
The State faults petitioner for failing to attempt to have the witness testify the next morning. This argument ignores the fact that the proceedings on the second day were after the State and the defense had presented their cases in chief and in rebuttal, and after they had completed their closing arguments. The trial judge may have foreclosed this avenue completely the night before when she ruled, “We are taking all the testimony tonight.”
The record also shows that Dr. Rothen-berg would have testified within a reasonable time. It was represented to the state court and never controverted that the witness was willing to testify after his group therapy session at 10:00 that evening or at any time thereafter.
The district court found that Dr. Rothen-berg would have given substantial and significant testimony in favor of the petitioner. As shown in the proffer by petitioner’s counsel, Dr. Rothenberg was prepared to testify that petitioner was insane at the time of the offense for which he was being tried. This proffer was not challenged by the State’s attorney. From the opening statement to the jury made by the State’s attorney, it is clear that she expected Dr. Rothenberg to so testify. Where insanity was the sole issue at trial, this testimony was plainly substantial and significant.
The State argues, however, that Dr. Rothenberg would not have so testified. This argument is based on a deposition of Dr. Rothenberg taken three months after the trial in which the doctor stated that he had not determined that petitioner was insane at the time of the offense, but only that he had determined that petitioner was incompetent to stand trial. This argument is misleading. The district court found, and the record amply supports the conclusion, that the deposition referred to was taken in another criminal matter in which petitioner was involved. The statement referred to another offense and had nothing to do with this case. The State’s argument is squarely rebutted by the affidavits of the doctor and petitioner’s trial attorney filed with the district court. The doctor’s affidavit specifically states that he was prepared to testify that petitioner was psychotic on the date of the alleged offense and was unable to determine right from wrong or understand the consequences of his actions at that time.
Dr. Rothenberg’s testimony was critical. It was, as the district court found, the “only testimony potentially effective to his defense.” United States v. Fessei, 531 F.2d 1275, 1280 (5th Cir. 1976). Denying petitioner’s motion for a continuance for a few hours effectively stripped him of any defense he might have had.
The State argues that the district court should have held an evidentiary hearing. An evidentiary hearing is necessary only when facts are at issue. When the only question is legal rather than factual no evidentiary hearing is needed. Anderson v. Maggio, 555 F.2d 447 (5th Cir. 1977).
The district court properly balanced the competing interests at stake here and held the right of petitioner to present the witness outweighed any inconvenience that would have been caused by extending the trial by a few hours.
AFFIRMED.
Question: What is the total number of appellants in the case that fall into the category "state governments, their agencies, and officials"? Answer with a number.
Answer:
|
songer_source
|
P
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the forum that heard this case immediately before the case came to the court of appeals.
Fred WILLIAMS, Petitioner, v. Walter A. SAHLI, District Director of Immigration and Naturalization at Detroit, Michigan, Defendant.
No. 13762.
United States Court of Appeals Sixth Circuit.
July 3, 1961.
George W. Crockett, Jr., of Goodman, Crockett, Eden, Robb & Philo, Detroit, Mich., for appellant.
Lawrence Gubow, U. S. Atty., Detroit, Mich., of counsel. Charles Gordon, Regional Counsel Immigration & Naturalization Service, St. Paul, Minn., for appellee.
Before MARTIN, McALLISTER and WEICK, Circuit Judges.
WEICK, Circuit Judge.
This case has been before the courts on two previous occasions in which petitioner unsuccessfully attacked, on various grounds, the deportation order of August 27, 1954. Williams v. Butterfield, D.C., 145 F.Supp. 567, affirmed Williams v. Mulcahey, 6 Cir., 250 F.2d 127, rehearing denied 6 Cir., 253 F.2d 709, certiorari denied 356 U.S. 946, 78 S.Ct. 793, 2 L.Ed.2d 821, rehearing denied 356 U.S. 970, 78 S.Ct. 1009, 2 L.Ed.2d 1076; Williams v. Sahli, D.C., 166 F.Supp. 734, affirmed 6 Cir., 271 F.2d 228, certiorari denied 361 U.S. 966, 80 S.Ct. 588, 4 L.Ed.2d 547.
Petitioner is now in his third round. Following an affirmance of the judgment in the second case and the denial of certiorari by the Supreme Court, deportation was stayed voluntarily by the Immigration Service to enable Congress to consider a private bill introduced in behalf of petitioner. When Congress adjourned in 1960, without acting on the bill, petitioner was ordered to report for deportation. He then filed a motion in the District Court under Rule 60(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., to reopen the case, presenting a constitutional question which he claimed had not been adjudicated or considered in his previous two cases. The District Judge granted an injunction restraining deportation until further order. The District Judge subsequently concluded that he did not have authority to entertain the motion to reopen without our approval. Home Indemnity Co. of New York v. O’Brien, 6 Cir., 1940, 112 F.2d 387; Tribble v. Bruin, 4 Cir., 1960, 279 F.2d 424. The present petition followed.
We have examined the record and briefs and find that the alleged constitutional question which petitioner is now asserting in his motion under Rule 60(b) was raised in this Court in his second appeal. It was asserted in his complaint filed in the District Court and argued at length in his brief filed in our Court. Appellant’s brief pp. 21, 22 and 23. His claim was that the suspension of deportation procedure violated due process because it required him to submit an application for suspension before his alien-age and deportability were determined. [8 U.S.C.A. § 1254(a) (5); 8 C.F.R. §§ 242.16(e) and 244.2.]
After arguing this point in his brief, petitioner concluded with the following:
“But like most ‘due process’ issues, the question is not answered by any hard and fast rule. What is involved is a judicial weighing in each case of the gravity of the constitutional infringement as against the necessity for the reasonableness of the condition. Cf. American Communications Ass’n v. Douds, 339 U.S. 382 [70 S.Ct. 674, 94 L.Ed. 925] (1950).
“It is unnecessary here, however, to attempt this delicate weighing process; for, as we pointed out above (supra p. 15) the Board itself, by allowing the final order to be set aside for this purpose, has evolved a method of applying the statute in a manner that avoids these constitutional pitfalls. Not only is such an interpretation by the agency charged with the administration of the statute entitled to great weight ([Overnight] Motor Transp. Co. v. Missell [Missel], 316 U.S. 572, 62 S.Ct. 1216, 1221, note 17 [86 L.Ed. 1682]); but, where, as here, an interpretation and application of the statute is available which is both consistent with the Congressional intent,7 and avoids these constitutional issues, that interpretation is to be preferred. Crowell v. Benson, 285 U.S. 22, 62 [52 S.Ct. 285, 76 L.Ed. 598]; Ashwander v. T. V. A., 297 U.S. 288, 348, note 8 [56 S.Ct. 466, 80 L.Ed. 688].”
We interpreted the quoted language to mean that it was unnecessary for us to determine the constitutional question because of the practice of the Board to allow the final order to be set aside for the purpose of consideration of the suspension motion.
Petitioner, after abandonment of the constitutional issue, then raised the question “Did the Board Abuse Its Discretion by Refusing, on the Merits, to Permit Appellant to Apply for Suspension ?” This issue was discussed at length in the remainder of the brief. (Appellant’s brief pp. 24-34.)
The Board not only could, but did consider the matter on its merits although, in our judgment, it was not obliged to do so because the application had not been timely filed. The Board was not required to do a vain thing by reopening the case when petitioner’s established membership in a subversive organization prevented granting relief by suspension of deportation.
We discussed this issue in our opinion stating [271 F.2d 229]:
“The Board pointed out that no useful purpose would be served in reopening the case as the record established appellant's membership in the Communist Party from 1932 to 1949 and that he, therefore, would be unable to prove that he had not been a member of a subversive organization for ten years preceding his application for suspension of deportation as required by Section 244 (a) (5) of the Immigration and Nationality Act [8 U.S.C.A. § 1254(a) (5)]. See: Williams v. Mulcahey, 6 Cir., 1957, 253 F.2d 709.
“Appellant was not entitled to suspension of his deportation as a matter of right. It was solely within the discretion of the Board. Section 244, Immigration & Nationality Act of 1952, 8 U.S.C.A. § 1254, United States ex rel. Hintopoulos v. Shaughnessy, 1957, 353 U.S. 72, 77, 77 S.Ct. 618, 1 L.Ed.2d 652; Jay v. Boyd, 1956, 351 U.S. 345, 76 S.Ct. 919, 100 L.Ed. 1242.
“Appellant has not established to our satisfaction that the Board abused its discretion in refusing to reopen the case.”
If petitioner believed that we were wrong in not considering the constitutional issue, he had a remedy to bring this to our attention in a petition for rehearing. He filed no petition for rehearing. He could also have raised the constitutional question in a petition for a writ of certiorari in the Supreme Court. He may not use a motion to reopen under Rule 60(b) as a substitute for appeal. Ackermann v. United States, 340 U.S. 193, 71 S.Ct. 209, 95 L.Ed. 207; Polites v. United States, 364 U.S. 426, 81 S.Ct. 202, 5 L.Ed.2d 173. In our judgment, there is no merit to petitioner’s claim. This litigation, which has extended over a period of nearly seven years, should be brought to a conclusion.
The petition for leave to proceed under Rule 60(b) is denied with instructions to the District Court to enforce our mandate by dissolving the injunction and dimissing the motion.
Question: What forum heard this case immediately before the case came to the court of appeals?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Court of Customs & Patent Appeals
H. Court of Claims
I. Court of Military Appeals
J. Tax Court or Tax Board
K. Administrative law judge
L. U.S. Supreme Court (remand)
M. Special DC court (not the US District Court for DC)
N. Earlier appeals court panel
O. Other
P. Not ascertained
Answer:
|
sc_casesourcestate
|
06
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state or territory of the court whose decision the Supreme Court reviewed.
UNITED STATES v. NATIONAL CITY LINES, INC. et al.
No. 544.
Argued April 28, 1948.
Decided June 7, 1948.
Charles H. Weston argued the cause for the United States. With him on the brief were George T. Washington, Acting Solicitor General (for this case), Assistant Attorney General Sonnett, Robert G. Seaks and Philip Elman.
C. Frank Reavis argued the cause for appellees. With him on the brief were Martin D. Jacobs, Horace G. Hitchcock, Oscar A. Trippet, Henry M. Hogan, N. J. Rosiello, H. D. Emery, Rayburn L. Foster, R. B. F. Hummer, Hubert T. Morrow, Marshall P. Madison, Eugene M. Prince, Francis R. Kirkham and Everett A. Mathews.
Mr. Justice Rutledge
delivered the opinion of the Court.
In United States v. Scophony Corp., 333 U. S. 795, we recently considered the meaning and effect of § 12 of the Clayton Act, providing for venue and service of process in civil antitrust proceedings against private corporations. This case brings before us another phase of the section’s effect in like proceedings. The principal question, and the only one we find it necessary to consider, is whether the choice of forums given to the plaintiff by § 12 is subject to qualification by judicial application of the doctrine of jorum non conveniens.
The suit was brought by the United States against nine corporations for alleged violation of §§ 1 and 2 of the Sherman Act. 26 Stat. 209, 15 U. S. C. §§ 1, 2. The basic charge is that the appellees conspired to acquire control of local transportation companies in numerous cities located in widely different parts of the United States, and to restrain and monopolize interstate commerce in motorbusses, petroleum supplies, tires and tubes sold to those companies, contrary to the Act’s prohibitions. Injunctive and other relief of an equitable nature was sought.
The appellees filed various motions, including the one involved in this appeal. It sought dismissal of the complaint on the ground that the District Court for the Southern District of California was not a convenient forum for the trial. This motion was supported by a showing not only of inconvenience to the defendants of trial in the California district, but also that the District Court for the Northern District of Illinois, Eastern Division (Chicago), would be the most convenient forum for them. The showing was by affidavits, executed by officers, attorneys and employees of the corporate defendants. Counteraffidavits were filed in opposition on behalf of the Government.
After oral argument, the District Court filed findings of fact and conclusions of law together with a written opinion, substantially accepting appellees’ showing and sustaining the motion. 7 F. R. D. 456. Accordingly it entered judgment dismissing the complaint, but without prejudice to the institution of a similar suit against the named defendants “in a more appropriate and convenient forum.” This decision is brought to us for review on direct appeal pursuant to the statutes applicable in such cases.
It is not disputed that the District Court has jurisdiction in the basic sense of power to hear and determine the cause or that it has venue within the provisions of § 12. Nor can it be questioned that any of the defendants can be brought personally within that court’s jurisdiction by service of process made in accordance with the provisions of either § 12, or those of § 5 of the Sherman Act. The only question presented concerning the court’s power is whether, having jurisdiction and venue of the cause and personal jurisdiction of the defendants, the court also was authorized to decline to exercise its jurisdiction upon finding, without abuse of discretion, that the forum was not a convenient one within the scope of the non-statutory doctrine commonly, though not too accurately, labeled jorum non conveniens.
It would serve no useful purpose to review in detail the reasoning or the authorities upon which the District Court ruled the doctrine applicable in such cases as this, or therefore the further groundings upon which it proceeded in holding the forum inconvenient. For the view has prevailed without qualification during the life of § 12, thirty-four years, that the choice of venues expressly given to the plaintiff is not to be qualified by any power of a court having venue under any of the section’s alternatives to decline to exercise the jurisdiction conferred. None of the decisions on which the District Court relied suggested, much less decided, that such a power exists. This therefore is a case of first impression, seeking departure from long-established practice. Moreover, the analogies drawn from other types of cases in which the doctrine has been applied cannot survive in the face of the section’s explicit terms and the patent intent of Congress in enacting it.
In the Scophony case we gave attention to the history of § 12, which as there related is as pertinent to the question now presented as it was to the issues then under consideration. Reference to the Scophony opinion, Part I, 333 U. S. at 802-810, will avoid the necessity for repeating the history here in extenso. But its present applicability will be accentuated by recalling that we reaffirmed the ruling in Eastman Co. v. Southern Photo Co., 273 U. S. 359, namely, that § 12 of the Clayton Act had enlarged the venue provision of § 7 of the Sherman Act, with the intent and effect to give the plaintiff the right to bring antitrust proceedings not only in the districts where the corporate defendant “resides or is found,” as § 7 had authorized, but also “in any district wherein it... transacts business.”
In the Eastman case, as the Scophony opinion emphasized, the Court had rejected the argument that the addition of “or transacts business” was no more than a redundant reformulation of “is found”; instead it gave the added words broader and less technical meaning than “is found” had acquired under prior decisions. This was done, as the Eastman opinion stated, because accepting the contrary view would have rendered the addition meaningless and defeated the plain remedial purpose of § 12. 273 U. S. at 373. That section, the Court held, supplemented “the remedial provision of the Anti-Trust Act for the redress of injuries resulting from illegal restraints upon interstate trade, by relieving the injured person from the necessity of resorting for the redress of wrongs committed by a non-resident corporation, to a district, however distant, in which it resides or may be 'found’ — often an insuperable obstacle — and enabling him to institute the suit in a district, frequently that of his own residence, in which the corporation in fact transacts business, and bring it before the court by the service of process in a district in which it resides or may be ‘found.’ ” (Emphasis added.) 273 U. S. at 373-374.
The Scophony opinion reaffirmed this view: “Thus, by substituting practical, business conceptions for the previous hair-splitting legal technicalities encrusted upon the ‘found’-'present’-'carrying-on-business’ sequence, the Court yielded to and made effective Congress’ remedial purpose. Thereby it relieved persons injured through corporate violations of the antitrust laws from the ‘often insuperable obstacle’ of resorting to distant forums for redress of wrongs done in the places of their business or residence. A foreign corporation no longer could come to a district, perpetrate there the injuries outlawed, and then by retreating or even without retreating to its headquarters defeat or delay the retribution due.” 333 U. S. at 808.
These conclusions concerning the section’s intent and effect are altogether inconsistent with any idea that the defendant corporation can defeat the plaintiff’s choice of venue as given, by asking for and securing dismissal of the suit, either on the ground that the venue selected within the statutory limits is inconvenient for the defendant or that another authorized venue is more convenient for it.
No such discretionary power had been exercised by any court during the twenty years of the Sherman Act’s application prior to the enactment of § 12, under the narrower range of choice afforded by § 7. None had been suggested, and uniform practice had established that the plaintiff’s choice was conclusive, as was true later under § 12 until the deviation in this case.
When therefore Congress came to face the problem of making the nation’s antitrust policy more effective through the Clayton Act’s provisions, that body was not confronted with any problem of abuse by plaintiffs in selecting venue for antitrust suits; nor was it concerned with any question of providing means by which the defendants in such suits might defeat the plaintiff’s choice to serve their own convenience. Congress’ concern was quite the opposite. It was to provide broader and more effective relief, both substantively and procedurally, for persons injured by violations of its antitrust policy. Insofar as convenience in bringing suit and conducting trial was involved, the purpose was to make these less inconvenient for plaintiffs or, as was said in the Eastman opinion, to remove the “often insuperable obstacle” thrown in their way by the existing venue restrictions.
To have broadened the choice of venue for the reasons which brought about that action, only to have it narrowed again by application of the vague and discretionary power comprehended by jorum non conveniens, would have been incongruous, to say the least. In making the change Congress did not authorize plaintiffs to institute civil antitrust suits in the newly specified districts, merely in order to have them transferred back for trial to one of the districts comprehended by § 7. It intended trial to take place in the district specified by the statute and selected by the plaintiff.
This conclusion is supported as strongly by the history of the legislative proceedings relating to the enactment of § 12 as by the foregoing judicial constructions. Section 7 of the Sherman Act had limited venue, as we have noted, to districts in which the defendant “resides or is found.” As originally introduced in the House, two sections of the Clayton Act, §§ 4 (then § 5) and 12 (then § 10), perpetuated those provisions. During discussion on the floor, however, various Representatives demanded broader choice of venue for plaintiffs. The demand related to both sections, and the discussion went forward now with reference to one, now the other, now both.
The basic aim of the advocates of change was to give the plaintiff the right to bring suit and have it tried in the district where the defendant had committed violations of the Act and inflicted the forbidden injuries. At first they were not much concerned with the exact formulation of the language to accomplish this, several formulas being proposed from time to time. But they were convinced that restricting the choice of venue to districts in which the defendant “resides or is found” was not adequate to assure that the suit could be brought where the cause of action arose, and therefore insisted on change in order to assure that result.
The committee sponsoring the bill had no objection to this purpose; indeed its members expressly approved it. But at first they opposed any amendment, because they thought the object fully achieved by the words “is found.” Over this difference the discussion went forward, as well as over various formulations of the proposed addition. Some were broader than was necessary to achieve the primary aim. Indeed some were so broad that committee members thought their inclusion would jeopardize passage of the entire bill.
To avoid this result and to satisfy those who insisted on amendment, the committee yielded and proposed a substitute amendment for one of those offered from the floor relating to § 4. The committee substitute added the words “or has an agent” after “is found” in the original committee version. 51 Cong. Rec. 9466. This amendment passed the House and later the Senate unchanged. Id. 9467. Section 4 thus became law in its present form, for the limited class of cases covered by its terms. Cf. note 18.
Since however the amendment affected only § 4, the problem concerning § 12 remained unresolved. Suggestions therefore were made at once for amending § 12 to bring it into conformity with § 4. Id. 9467, 9607. Although other proposals were again put forward, id. 9607, the conforming amendment was adopted by the House. Ibid.
After the bill passed the House, it was referred to the Senate Committee on the Judiciary. That committee reported it out with § 12 altered by the substitution of “or transacts business” in place of “or has an agent,” but leaving the latter clause in § 4 untouched. The Senate committee reports and the debates in that body throw little light upon the reasons underlying the committee’s alteration of § 12 and its failure to alter § 4 so as to make them uniform, except for the general statement that § 12 as reported “concerns the venue or the place where suits to enforce the antitrust laws against corporations may be brought and liberalizes the Sherman law to some extent upon this subject.” The bill finally passed the Senate with § 12 substantially as it was reported by the Committee on the Judiciary, and went to conference in that form. In conference the Senate version of § 12 prevailed over that of the House, and the bill was so enacted.
The short outcome was that Congress expanded the venue provisions of the Sherman Act, § 7, in two ways, viz: (1) by adding to “resides or is found,” in § 4 of the Clayton Act, the words “or has an agent”; (2) in § 12 by adding “or transacts business.” Thus strict uniformity in the two sections’ venue provisions was not achieved. But whatever their differences may be, each addition was designed to aid plaintiffs by giving them a wider choice of venues, and thereby to secure a more effective, because more convenient, enforcement of antitrust prohibitions.
Moreover the discussions in Congress, particularly in the House, disclose no other thought than that the choice of forums was given as a matter of right, not as one limited by judicial discretion. There was, in fact, common agreement upon this among both the advocates and the opponents of amendment. No one suggested that the courts would have discretionary power to decline to exercise the jurisdiction conferred. But since it was universally agreed that the choice of venue, to whatever extent it might be conferred, was to be given as a matter of right, several of the broader amendments were opposed and defeated as going too far.
Congress therefore was not indifferent to possibilities of abuse involved in the various proposals for change. Exactly the opposite was true. For the broader proposals were not rejected because they gave the plaintiff the choice. They were rejected because the choice given was too wide, giving plaintiffs the power to bring suit and force trial in districts far removed from the places where the company was incorporated, had its headquarters, or carried on its business. In adopting § 12 Congress was not willing to give plaintiffs free rein to haul defendants hither and yon at their caprice. 51. Cong. Rec. 9466, 9467. But neither was it willing to allow defendants to hamper or defeat effective enforcement by claiming immunity to suit in the districts where by a course of conduct they had violated the Act with the resulting outlawed consequences. In framing § 12 to include those districts at the plaintiffs’ election, Congress thus had in mind not only their convenience but also the defendant company’s inconvenience, and fixed the limits within which each could claim advantage in venue and beyond which neither could seek it. Moreover, in § 12, though not in § 4, the right of choice conferred was given designedly to the Government as well as to private suitors.
In the face of this history we cannot say that room was left for judicial discretion to apply the doctrine of forum non conveniens so as to deprive the plaintiff of the choice given by the section. That result, as other courts have concluded, would be utterly inconsistent with the purpose of Congress in conferring the broader range of choice. Tivoli Realty v. Interstate Circuit, 167 F. 2d 155; Ferguson v. Ford Motor Co., 77 F. Supp. 425.
In this view of Congress’ action, numerous considerations of policy urged by the appellees as supporting the discretionary power’s existence and applicability become irrelevant. Congress’ mandate regarding venue and the exercise of jurisdiction is binding upon the federal courts. Const. Art. Ill, § 2. Our general power to supervise the administration of justice in the federal courts, cf. McNabb v. United States, 318 U. S. 332, does not extend to disregarding a validly enacted and applicable statute or permitting departure from it, even in such matters as venue.
It is true that the appellees made a strong showing of inconvenience, albeit by interested persons, when that matter is considered on their presentation alone. On the other hand, the Government advanced strong reasons, apart from the question of power, for not applying the doctrine. But in the view we take of § 12, we need not consider whether the appellees’ showing on the facts sufficiently outweighed that of the Government to justify dismissal.
Two important policy considerations were advanced by the Government, however, which not only bear strongly upon that question but affect the question of power, if Congress had not concluded it. The first is that permitting the application of jorum non conveniens to antitrust cases inevitably would lengthen litigation already overextended in the time required for its final disposition, and thus would violate Congress’ declared policy of expediting this type of litigation.
The argument has merit to support the conclusion we have reached upon the statute. Antitrust suits, even with all the expedition afforded them, are notoriously though often perhaps unavoidably long drawn out. The more complex and important cases seldom require less than three to five years to conclude, except possibly where consent decrees are entered. Often the time necessary or taken is much longer. To inject into this over lengthened procedure what would amount to an additional preliminary trial and review upon the convenience of the forum could not but add approximately another year or longer to the time essential for disposing of the cases, indeed for reaching the merits. Although some instances of inconvenience to defendants will arise from the absence of discretionary power, that will be unavoidably true in almost any event. And it may well be doubted that the sum total of inconvenience and injustice resulting will be as great as would follow, for both private plaintiffs and the public, from allowing the inescapable delay-incident to the exercise of such a discretionary power. For once the power were found to exist, it is more than likely that injection of the issue would become a common incident of antitrust suits, and create the disadvantage of delay for all concerned.
This consideration is reinforced by another, namely, the difficulty of applying the doctrine in cases such as this, in which the violations charged are nationwide or nearly so in scope and effect, and the defendants are numerous companies widely scattered in the location of their places of incorporation, principal offices, and places of carrying on business and participating in the scheme. In such a case dismissal in one authorized district cannot reinstate or transfer the cause to another. Nor can the court, within the limits of the doctrine, specify the district in which the case shall be reinstituted and tried. It can only terminate the pending proceeding, as was done here, without prejudice to commencement of a like suit “in a more appropriate or convenient forum,” with whatever consequences may follow from having to begin all over again.
Further, when that is done, the result well may be in some instances to have the action commenced again, only to precipitate the same issue and consequent delay in the second forum. Conceivably this could occur from forum to forum in succession, depending upon the number of corporations named as defendants and the variety, proximity, and degree of concentration of the locations of their principal offices, places of business, and the relative advantages of other available forums for the variously situated defendants. Accordingly, in an unknown number of such cases the practical result well might be to establish a merry-go-round of litigation upon the issue, which could be used to defer indefinitely consideration of the merits. The very possibility of such a tactic would greatly hamper the institution as well as the conclusion of antitrust proceedings. Indeed, for cases of this complex type, the uncertainty concerning the outcome of an effort to apply the doctrine might go far toward defeating the Act's effective application to the most serious and widespread offenses and offenders.
Further, even if it is taken that the appellees’ activities constituting the core of the violations charged were as fully concentrated in or near the Illinois district as ap-pellees claim, such a concentration might or might not exist in other like proceedings. And in the latter event the problem of selecting the appropriate forum well might become a highly uncertain and difficult one.
The appellees also strongly urge two other considerations which deserve mention. One is that a criminal prosecution against the appellees (together with seven individuals, officers of some of them), pending in the California district simultaneously with this cause and growing out of substantially the same transactions, had been transferred to the Illinois district shortly before the District Court entered its judgment of dismissal. The transfer was ordered pursuant to Rule 21 (b) of the Federal Rules of Criminal Procedure. That action was taken after the District Court had made findings of fact and conclusions of law founded upon and substantially adopting the appellees’ showing, which was practically identical with their showing in this case. Consequently, as the cases now stand, the criminal cause is to be tried in the Illinois district while this civil suit founded upon practically the same transactions and affecting the same corporate defendants is to be tried in the California district.
Great emphasis is placed upon this as an impelling reason for holding jorum non conveniens applicable here, and then sustaining the order of dismissal under that doctrine and the District Court’s findings. But, for the reasons above stated, we think the matter has been concluded by the terms and intent of § 12. Moreover, it is at least doubtful whether the Government had a right to appeal from the order of transfer in the criminal case. In any event, the validity of that order is not before us.. We therefore express no opinion upon either of those questions. But the fact that we cannot do so goes far to nullify the effect of appellee’s argument of hardship arising from the transfer. For that argument comes down, in the peculiar circumstances, to one that because the District Court on appellees’ application has transferred the criminal cause by a dubiously reviewable order, perforce of that action it should also dismiss this civil cause and we should sustain the dismissal.
In practical effect the outcome of accepting such an argument as ground for sustaining both the power and the dismissal would be to make Rule 21 (b) controlling in civil as well as criminal cases involving the same transactions and parties, thus overriding § 12, and at the same time depriving the plaintiff in the civil cause of anything more than perfunctory review of the District Court’s order of dismissal.
Hardly can it be taken that Rule 21 (b) was intended so to override the provisions of § 12, to confer power on the District Courts to do so, or to nullify the plaintiff’s right of appeal from an order depriving it of the statutory privilege of choosing the venue. Yet these would be the practical results, if the consideration that the court has ordered transfer of the criminal case is to be controlling or highly influential, as it undoubtedly would be in most cases, in applying the doctrine of jorum non conveniens in the civil cause. If matters of policy were material, these possible consequences would add force to the view that the doctrine is not applicable.
Moreover, if the transfer should result in hardship to the appellees, insofar as the hardship arises from that cause it is one which was avoidable by them and will be incurred as a result of their own action in applying for it. That they have voluntarily incurred it is no good reason for depriving the plaintiff of its statutory right of choice under the terms and policy of § 12 in the entirely distinct civil suit.
Finally, both appellees and the District Court have placed much emphasis upon this Court’s recent decisions applying the doctrine of jorum non conveniens and in some instances extending the scope of its application. Whatever may be the scope of its previous application or of its appropriate extension, the doctrine is not a principle of universal applicability, as those decisions uniformly recognize. At least one invariable, limiting principle may be stated. It is that whenever Congress has vested courts with jurisdiction to hear and determine causes and has invested complaining litigants with a right of choice among them which is inconsistent with the exercise by those courts of discretionary power to defeat the choice so made, the doctrine can have no effect. Baltimore & O. R. Co. v. Kepner, 314 U. S. 44; Miles v. Illinois Central R. Co., 315 U. S. 698. The question whether such a right has been given is usually the crux of the problem. It is one not to be answered by such indecisive inquiries as whether the venue or jurisdictional statute is labeled a “special” or a “general” one. Nor is it to be determined merely by the court’s view that applicability of the doctrine would serve the ends of justice in the particular case. It is rather to be decided, upon consideration of all the relevant materials, by whether the legislative purpose and the effect of the language used to achieve it were to vest the power of choice in the plaintiff or to confer power upon the courts to qualify his selection.
This is a case in which the pertinent factors make clear that the courts were given no such power. Accordingly the judgment is
Reversed.
“Sec. 12. That any suit, action, or proceeding under the antitrust laws against a corporation may be brought not only in the judicial district whereof it is an inhabitant, but also in any district wherein it may be found or transacts business; and all process in such cases may be served in the district of which it is an inhabitant, or wherever it may be found.” 38 Stat. 736,15 U. S. C. § 22.
These, with the states of their incorporation and their principal places of business, are as follows:
Corporation State of incorporation Principal place of business
National City Lines, Inc. Delaware Chicago
American City Lines, Inc.
Pacific City Lines, Inc. Oakland, Calif.
Standard Oil Co. of California “ San Francisco
Federal Engineering Corp. California “
Phillips Petroleum Co. Delaware Bartlesville, Okla.
General Motors Corp. “ Detroit, Mich.
Firestone Tire & Rubber Co. Ohio Akron, Ohio
Mack Manufacturing Corp. Delaware New York
Forty-four cities in sixteen states are included. The states are as widely scattered as California, Florida, Maryland, Michigan, Nebraska, Texas and Washington. The larger local transportation systems include those of Baltimore, St. Louis, Salt Lake City, Los Angeles and Oakland. The largest concentrations of smaller systems are in Illinois, with eleven cities; California with nine (excluding Los Angeles); and Michigan with four. The local operating companies were not named as parties defendant.
The appellee companies fall into two groups. The largest, which may be called the supplier group, includes the six last named in note 2 above. Except Federal, they are engaged in producing and distributing the commodities purchased by the local operating companies, the sale of which is charged to be monopolized and restrained. Federal is a wholly owned subsidiary of Standard, engaged in managing investments for Standard.
The other group, including the first three companies listed in note 2, is collectively called City Lines. National is a holding company with operations directed from Chicago. American and Pacific are its subsidiaries. The three own, control or have substantial interests in the operating companies.
The complaint charges that the supplier appellees furnish capital to Cily Lines for acquiring control of the local operating systems, upon the understanding that City Lines cause all requirements of the local systems in busses, petroleum products, tires and tubes to be purchased from the supplier appellees and no other sellers.
The prayer of the complaint sought complete divestiture of the supplier appellees’ financial interests in City Lines; partial divestiture of City Lines’ interests in local transportation companies; voiding of existing contracts between the supplier appellees and City Lines; and an injunction against purchases from those suppliers by City Lines or their operating companies, except in accordance with a competitive bidding plan to be included in the decree.
In highly attenuated summary the showing was that the transactions creating the core of the charged conspiracy took place chiefly in or near Chicago; appellees’ chief witnesses and documentary evidence are located there; their transportation to Los Angeles and extended presence there will cause great hardship; no defendant “resides” or has its principal office or place of business in the California district (cf. note 2); and two trials in distant cities, see text infra at note 41, will greatly magnify the hardship. See 7 F. R. D. 456,465.
The Government stresses that three of the five supplier defendants transact business and are “found,” cf. note 1, in the California district; the volume of sales allegedly restrained is much greater on the Pacific Coast than elsewhere; substantial portions of the evidence, oral and documentary, will be produced from California, etc. Cf. 7 F. R. D. 456,465.
32 Stat. 823, 36. Stat. 1167, 15 U. S. C. §29; 43 Stat. 938, 28 U. S. C. § 345.
It is conceded that three of the defendants, Standard, General Motors, and Firestone, transact business within the Southern District of California. The others apparently were served either pursuant to the concluding clause of § 12 or pursuant to § 5 of the Sherman Act. See note 10 infra.
“Sec 5. Whenever it shall appear to the court before which any proceeding under section four of this act may be pending, that the ends of justice require that other parties should be brought before the court, the court may cause them to be summoned, whether they reside in the district in which the court is held or not; and subpoenas to that end may be served in any district by the marshal thereof.” 26 Stat. 210, 15 U. S. C. § 5. Section 4 of the Sherman Act (i. e., “this act”) refers specifically to civil actions brought by the Government. Cf. Eastman Co. v. Southern Photo Co., 273 U. S. 359, 374.
See note 46 infra.
In the Scophony ease we were concerned, not as here with any question of discretion to decline the exercise of jurisdiction, but in presently pertinent part with the tests of venue prescribed by the section and whether, on the facts presented, those tests had been met, so as to establish venue in the district of suit.
See note 1.
See United States v. Scophony Corp., 333 U. S. 795, Part I at 802-810.
The Clayton Act hardly can be regarded as a statute for the relief of corporate defendants in antitrust proceedings from either procedural or substantive abuses. See Levy, The Clayton Law— An Imperfect Supplement to the Sherman Law, 3 Va. L. Rev. 411.
"Wisely, it has not been attempted to catalogue the circumstances which will justify or require either grant or denial of remedy. The doctrine leaves much to the discretion of the court to which plaintiff resorts, and experience has not shown a judicial tendency to renounce one’s own jurisdiction so strong as to result in many abuses.
“If the combination and weight of factors requisite to given results are difficult to forecast or state, those to be considered are not difficult to name. An interest to be considered, and the one likely to be most pressed, is the private interest of the litigant.... The court will weigh relative advantages and obstacles to fair trial.” Gulf Oil Corp. v. Gilbert, 330 U. S. 501,508.
The Eastman opinion referred to the disadvantages suffered by plaintiffs under § 7 of the Sherman Act who were injured where they resided or conducted their business, only to be forced to seek out the wrongdoing company in a distant forum to secure venue and service of process, and therefore also to transport witnesses and incur other disadvantages in trial. 273 U. S. 359, 373-374. Likewise the legislative discussions hereinafter cited uniformly treat the problem as one involving both instituting the suit and trying it. There is no hint that it was contemplated the two phases of the litigation might be separated and conducted in different places. See, e. g., notes 31 and 32 infra.
Section 12 began as § 10, became § 11 in the Senate, and finally § 12 in conference. Similarly, § 4 began as § 5, changed first to § 3, and finally to § 4. Section 4 provides for recovery of treble damages in private antitrust proceedings and its venue provisions apply in terms only to such suits. Section 12 applies to “any suit, action, or proceeding under the antitrust laws against a corporation.” This literally is broad enough to include the suits comprehended by §4.
The original wording of the two sections in respect to venue was slightly different but the substance was identical, both following the preexisting provisions of § 7 of the Sherman Act.
E. g., Representative Dickinson urged that the language “be extended sufficiently to reach every contingency, so that these concerns may be sued in that jurisdiction where they commit the wrong, where the acts complained of may be committed, where the officers, agents, or employees, acting for their master corporation, may be found setting aside the law, and where the witnesses are easily obtainable....” 51 Cong. Rec. 9190. Later he stated that he wanted to “give the widest liberty of bringing suits where the damage is done and where the action arose.” 51 Cong. Rec. 9417.
Representative Sumners spoke to the same effect: “Mr. Chairman, I believe this matter of venue is one of the most important connected with the whole subject of antitrust legislation.... The philosophy of legislation with regard to this subject should give the venue at the place wherein the cause of action arises.” Id. 9467. See also id. 9414, 9415, 9608.
“Why not at the end of the section, after the word 'found,’ add other words, such as 'doing business, or violating the provisions of this law, or wherever it may do business or where its agents, officers, or employees may be found,’ or other appropriate language. A dozen suggestions may be made in the way of amendment.” Id. 9190. See also id. 9414-9417,9466, 9607,9663,9682.
“Mr. Scott. What is the gentleman’s understanding of the word 'found’; what is its import as used in this section?
“Mr. Dickinson. I understand that there is some decision by some court that I am not very familiar with that may possibly cover the very thought suggested by my proposed amendment. I do not believe that it meets the situation, and if there be any doubt about it, in order that the Government may prosecute successfully and institute suits and actions and have trials the language ought to be clear and definite, and so plain that he who runs may read, so that there can not be two constructions.” Id. 9415.
“Mr. Cullop. May I suggest... that every suit which has arisen under the Sherman antitrust law has been brought at the home of the corporation itself, or at its principal place of business, and therefore there was no occasion to construe this language, ‘is found/ which is ambiguous and uncertain. If you are to construe ‘is found/ you will have to construe that as the place of the residence of the corporation, because it is not migratory. You can not get service upon some person traveling throughout the country and hold your jurisdiction throughout that territory.
“Mr. Carlin. Why should not the suit be brought in the habitat of the corporation? We have been successful so far in that matter.
“Mr. Cullop. In this case for the very best reason, I think. The gentleman from Virginia [Mr. Carlin] now has disclosed the purpose of this language, and that is why I am combating it, and for the best of reasons, I think. I do not want to make a resident of California come to Trenton, N. J., to bring a suit for violation of this law, but I want him to sue at home in the jurisdiction where the cause of action arose.” Id. 9416. See also id. 9466-9467, 9607-9608, 9663-9664.
E. g., Representative Floyd stated that the provisions were designed “to give the Government the widest possible scope in getting service in these cases, and the provision is right as it is written and ought not to be changed.” Id. 9416.
“Mr. Floyd.... The very broadest language that can be used in a statute of this kind conferring jurisdiction is to give the jurisdiction where the corporation resides or is found.” Id. 9415. And “I think the provisions relating to service properly drafted as they appear in the bill, and that the proposed amendment and others suggested in the debate would narrow the scope of the provisions as drawn.” Id.
Question: What is the state of the court whose decision the Supreme Court reviewed?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
26. Massachusetts
27. Michigan
28. Minnesota
29. Mississippi
30. Missouri
31. Montana
32. Nebraska
33. Nevada
34. New Hampshire
35. New Jersey
36. New Mexico
37. New York
38. North Carolina
39. North Dakota
40. Northern Mariana Islands
41. Ohio
42. Oklahoma
43. Oregon
44. Palau
45. Pennsylvania
46. Puerto Rico
47. Rhode Island
48. South Carolina
49. South Dakota
50. Tennessee
51. Texas
52. Utah
53. Vermont
54. Virgin Islands
55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer:
|
songer_stpolicy
|
B
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
WILSON v. HARBURNEY OIL CO. et al.
No. 1470.
Circuit Court of Appeals, Tenth Circuit.
March 24, 1937.
Robert C. Foulston, George Siefkin, Sidney L. Foulston, Lester L. Morris,George B. Powers, Carl T. Smith, and C. H. Morris, all of Wichita, Kan., for appellant.
L. P. Brooks, of Wichita, Kan., for ap-pellees.
Before PHILLIPS, and BRATTON, Circuit Judges, and JOHNSON, District Judge.
BRATTON, Circuit Judge.
H. J. Wilson complains because his claim submitted in a proceeding in bankruptcy was disallowed.
The Harburney Oil Company filed a voluntary petition under section 77B of the Bankruptcy Act (11 U.S.C.A. § 207). It was approved and a trustee appointed. These facts were set forth in the claim with its attached exhibits: On January 18, 1934, claimant secured a mineral lease from Sophia Wendel and others — called the Wendel heirs — covering the east half of section 32, in township 19 south of range 10 west, in Rice county, Kan. By a written contract which accompanied the lease, he was required to begin drilling within a fixed time and to prosecute it diligently to the siliceous sand unless oil or gas in commercial quantities was found at a lesser depth. The lessors were to be paid $6,000 from one-fourth of the claimant’s share of the first oil produced. Claimant and four others — Burton, Harris, Harvey, and Kors — thereafter entered into an undated contract which recited that they were jointly interested in the leasehold estate in the west half of the northeast quarter of section 32, each owning an undivided one-fifth interest therein. They bound themselves to cause a corporation to be organized under the laws of Kansas for the purpose of owning the lease and conducting developments. Each was to assign his interest in the lease to the corporation and to receive therefor a certificate or certificates equal to 20 per cent, of the total number of shares of the capital stock. It was provided that the corporation would begin drilling on or before July 20, 1934, and continue with diligence to the siliceous lime unless oil or gas in commercial quantities was found at a lesser depth; that it would comply in all respects with the Wendel contract, a copy of which was attached; that it would pay claimant $3,000 in cash and a further sum of $3,000 on or before the time the well reached a depth of 2,500 feet; and that it would pay a further sum of $10,000 from one-fourth of the first oil produced, $6,000 to the Wendel heirs and $4,000 to claimant. Claimant and his four associates, each owning an undivided one-fifth interest in oil and gas leases covering 400 acres of land, entered into mutually satisfactory adjustments and agreements in which claimant released and surrendered his interest in 320 acres of such leasehold estate, including that which was subsequently transferred to the corporation, and the other four released and transferred to him their interests in the remaining 80 acres. It was mutually understood in connection with such .transfers that the obligation of the corporation and of the four associates to make the payments required by the terms of the original contract which claimant and his associates entered into should be unaffected. The corporation was “formed and the lease covering the west half of the northeast quarter of section 32 was transferred to it. The transfer was subject to all of. the obligations and liabilities contained in the contract between claimant and his four associates; and the corporation had knowledge of such facts at the time the transfer was made to it. The first $3,000 was paid to claimant before the corporation was formed;' but subsequent to its formation and in recognition of the obligation, the corporation paid or caused to be paid $100 to claimant on the $3,000 which was due when the well reached a depth of 2,500 feet; and from time to time it paid $10,000 out of oil produced on the leased premises in accordance with the terms of such contract. Harvey, as promoter and president of the corporation, agreed and promised repeatedly to pay claimant the balance of $2,900 on the $3,000 obligation, but such payment was never made and the claim was for that amount.
The corporation and the trustee joined in an answer which challenged the sufficiency of the facts to constitute a valid claim, and further that the asserted claim was within the statute of frauds. The court entered an order disallowing the claim because the facts alleged were not sufficient to state a cause of action. Claimant appealed.
The first question which the parties discuss in their briefs is whether the corporation was bound by the contract which the preorganization promoters executed. The challenge to the claim was in effect a demurrer and,, therefore, all matters well pleaded were admitted. Fairly construed, the claim alleged that claimant and his four associates were preorganizers of the corporation; that their contract providing that the lease should be assigned to the corporation, was for the benefit of the corporation; that the lease was transferred subject to all of the obligations and liabilities contained in the agreement; that the corporation developed the premises; that in recognition of its obligation under the contract, the corporation paid $10,000 out of oil produced, of which $6,000 went to the Wendel heirs and $4,000 to claimant; and that it has paid or caused to be paid $100 on the item of $3,000. It is the balance of that item for which the claim is made. A corporation may expressly or impliedly assume the obligations of a contract which its promoters made for its benefit prior to the date of its organization; and any unequivocal act of recognition will suffice for that purpose. Here the corporation accepted the lease with knowledge that it was assigned subject to the obligations and liabilities contained in the agreement, developed the premises, and disbursed money in discharge of provisions in the contract. That clearly constituted recognition and rendered the corporation liable for its obligations fixed by the contract. Boatright v. Steinite Radio Corporation (C.C.A.) 46 F.(2d) 385; Kirkup v. Anaconda Amusement Co., 59 Mont. 469, 197 P. 1005, 17 A.L.R. 441 and notes.
It is urged that the promoters did not undertake in their contract to bind the corporation to make such payments; that, instead, they provided that the corporation would contract and agree to make them. That is a strained and untenable construction of the instrument. Its plain purport and effect was to fix the respective sums, specify the time and manner of their payment, and provide that the corporation should make them. A new and independent contract in which the corporation should bind itself to make them was not contemplated. It was provided that the parties should cause the corporation to adopt and ratify the obligations and benefits of the contract by proper acts of its directors and stockholders; but acceptance of the lease with knowledge of the facts, development of the premises and disbursements of money under the terms of the contract constituted a binding ratification.
The second question to which the parties address themselves relates to the applicability of the statute of frauds in Kansas, which provides in familiar language that no action shall be brought to charge a party upon any special promise to answer for the debt, default or miscarriage of another, unless some agreement or memorandum thereof is in writing and signed by the party to be charged. Section 33 — 106, Revised Statutes Kan. 1923, The statute is confined to a promise of one person to answer for the debt of another. Here the sums fixed in the contract represented a part of the consideration for the lease. The corporation was to acquire the lease, own the estate, develop it, and enjoy the profits after making such payments. It was the real party in interest, the actual beneficiary. Although the obligation was in form that of the promoters or preorganizers, it was in fact that of the corporation. The corporation had an immediate, personal, and pecuniary interest to be subserved in the transaction. For that reason the statute has no application. Emerson v. Slater, 22 How, 28, 43, 16 L„ Ed. 360; Davis v. Patrick, 141 U.S. 479, 12 S.Ct. 58, 35 L.Ed. 826; Gotham Nat. Bank v. Sharood (C.C.A.) 23 F.(2d) 567; Charles Broadway Rouss, Inc. v. Cooper (C.C.A.) 69 F.(2d) 671; Wright v. Farmers’ Nat. Grain Corporation (C.C.A.) 74 F.(2d) 425; Schufeldt v. Smith, 139 Mo. 367, 40 S.W. 887.
The order is reversed, and the cause is remanded with direction to hear the claim on its merits.
Question: Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_appbus
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Rafael RIVERA FERNANDEZ, Plaintiff, Appellant, v. Carlos CHARDON, etc., et al., Defendants, Appellees.
No. 80-1237
United States Court of Appeals, First Circuit.
Argued Feb. 3, 1981.
Decided May 8, 1981.
Sheldon Nahmod, Chicago, 111., with whom Hiram R. Cancio, Harry R. Nadal-Arcelay, Jaime R. Nadal-Arcelay, Blanca I. Mera-Roure, Jesus R. Rabell-Mendez and Cancio, Nadal & Rivera, San Juan, P. R., were on briefs, for plaintiff, appellant, Rafael Rivera-Fernandez, Angel L. ArzonMendez, Ramon A. Vega Cruz, Laura L. Santos-Roa, Angel L. Allende-Velazquez, Evelyn Irizarry-Escobar, Enrique Diaz-Maldonado, Jose D. Nieves-Rivera, Aida L. Sanchez De Negron, Herminia Ortiz-Ortiz, José R. Munoz-Rivera, Eduardo Tarafa-Gonzalez, Gladys Rosado-Acevedo, Roberto Velazquez-Nieves, Sara Velazquez-Concepcion, Cecilio Alvarez-Plajas, Enrique Rosado-Alverio, Julia Martínez Vda. De Calderon, Saquia Azize-Mawad, Isaias Torres-Sanchez, Miguel Alvelo-Rodriguez, Irma L. Baldoni De Valencia, and Manuel Rosas-Lebron.
Roberto L. Cordova, San Juan, P. R., with whom Brown, Newsom & Cordova and Ines Equia Miranda, San Juan, P. R., were on brief, for defendants, appellees.
Before CAMPBELL, BOWNES and BREYER, Circuit Judges.
This opinion disposes of appeals in the following additional cases: No. 80-1238, Angel L. Arzon Mendez v. Carlos Chardon, et al. No. 80-1245, Ramon A. Vega Cruz v. Carlos Chardon, et al. No. 80-1247, Laura L. Santos Roa v. Carlos Chardon, et al. No. 80-1249, Angel Luis Allende v. Carlos Chardon, et al. No. 80-1254, Evelyn Irizarry Escobar v. Carlos Chardon, et al. No. 80-1339, Enrique Diaz Maldonado v. Carlos Chardon, et al. No. 80-1340, Jose D. Nieves Rivera v. Carlos Chardon, et al. No. 80-1341, Aida L. Sanchez de Negron v. Carlos Chardon, et al. No. 80-1342, Herminia A. Ortiz-Ortiz v. Carlos Chardon, et al. No. 80-1343, Jose R. Munoz Rivera v. Carlos Chardon, et al. No. 80-1344, Eduardo Tarafa Gonzalez v. Carlos Chardon, et al. No. 80-1345, Gladys Rosado Acevedo v. Carlos Chardon, et al. No. 80-1392, Roberto Velazquez Nieves v. Carlos Chardon, et al. No. 80-1404, Sara Valezquez Concepcion v. Carlos Chardon, et al. No. 80-1506, Cecilio Alvarez Plajas v. Carlos Chardon, et al. No. 80-1507, Enrique Rosado Alverio v. Carlos Chardon, et al. No. 80-1508, Julia Martinez Vda de Calderon v. Carlos Chardon, et al. No. 80-1509, Saquia Azize Mawad v. Carlos Chardon, et al. 80-1510, Isaias Torres Sanchez v. Carlos Chardon, et al. No. 80-1511, Miguel Alvelo Rodriguez v. Carlos Chardon, et al. No. 80-1512, Irma I. Baldoni de Valencia v. Carlos Chardon, et al. No. 80-1513, Manuel Rosas Lebrón v. Carlos Chardon, et al.
CAMPBELL, Circuit Judge.
Each of these 23 cases raises the issue of when the statute of limitations began to run on an employee’s claim that he or she was wrongfully demoted or fired because of political affiliation: the precise question is whether the limitations period began upon receipt of advance notification of demotion or discharge, or whether it dated from the time the employee stopped working at the job from which he or she was removed.
The plaintiffs in these 23 cases were all employed during the 1976-1977 school year as non-tenured administrators in the Commonwealth of Puerto Rico Department of Education. The plaintiffs were all active members of the Popular Democratic Party which was in power in Puerto Rico in the fall of 1976. A gubernatorial election was held in that year, in which a candidate of the New Progressive Party was elected. In March 1977 the new governor appointed defendant Carlos Chardon as Assistant Secretary of Public Education in charge of personnel. Sometime between June 3 and June 17, 1977, each plaintiff received a letter advising him or her that “the appointment to the position you now occupy expires with the termination of the present school year.” The letters received by 20 of the plaintiffs indicated that they would be reinstated to tenured positions they had previously held as teachers or lower level administrators. The other three, who had not previously held tenured positions, were told that their employment with the Department would cease. Each of the 23 letters indicated a date, between June 30 and August 8, when the action would take effect. The plaintiffs responded, most within a few days of receiving the notice, by a letter to defendant stating that “I am not in agreement with your decision .... To this effect I have remitted copy of the same to the Puerto Rico Teachers Association so that said organization may instruct its Legal Division to take the necessary action.” The demotions and terminations all occurred as scheduled.
On June 19, 1978, one Jose Ortiz Rivera, another Department of Education employee who had suffered similar treatment, filed suit in the United States District Court for the District of Puerto Rico under 42 U.S.C. § 1983. Ortiz Rivera claimed that the action had been taken because of his political affiliation, in violation of the first and fourteenth amendments to the United States Constitution. He purported to represent a class of over 100 persons, including these 23 plaintiffs. Class certification was denied, and each of these plaintiffs then filed a separate complaint, making essentially the same substantive allegations. The district court dismissed all 23 complaints on the ground that they were barred by the one-year statute of limitations applicable to section 1983 actions under 31 L.P.R.A. § 5298(2).
On appeal, the parties are agreed that section 5298 is the applicable statute of limitations, and that the present actions were commenced, for limitations purposes, on June 19, 1978, when Ortiz Rivera filed his complaint. If the one-year limitations period began to run when plaintiffs received notice of demotion or discharge (in each case before June 19, 1977), the current actions are untimely (unless the statute was interrupted, see note 2, infra). However, if the limitations period began later, when the demotion or discharge took effect (in each case after June 19, 1977), the present cases are not time barred. We hold that plaintiffs’ cause of action accrued, and the limitations period began, on the date when the demotions or discharges took effect.
Since section 1983 fixes no limitations period of its own, federal courts in section 1983 actions apply the limitations period provided by state law for the most closely analogous type of action, along with any state tolling rules. Board of Regents v. Tomanio, 446 U.S. 478, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980). When the cause of action accrues, however, is a question of federal law. Rubin v. O’Koren, 621 F.2d 114, 116 (5th Cir. 1980); Briley v. State of California, 564 F.2d 849, 855 (9th Cir. 1977); Cox v. Stanton, 529 F.2d 47, 50 (4th Cir. 1975); Kaiser v. Cahn, 510 F.2d 282, 285 (2d Cir. 1974). Cf. Cope v. Anderson, 331 U.S. 461, 464, 67 S.Ct. 1340, 1341, 91 L.Ed. 1602 (1947) (federal law determines when cause of action accrued in suit by receiver of national bank to collect assessment from stockholder); Rawlings v. Ray, 312 U.S. 96, 98, 61 S.Ct. 473, 474, 85 L.Ed. 605 (1940) (same). In the instant cases, the district court held that a cause of action accrues “when plaintiff knows or has reason to know of the injury which is the basis of the action.” The court found that the plaintiffs knew of the harm when they received the letters more than one year before the suit was filed. The court relied on two federal cases, United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979) (medical malpractice claim against Veterans Administration under Federal Tort Claims Act) and Mitchell v. Hendricks, 431 F.Supp. 1295 (E.D.Pa.1977) (section 1983 claim by prisoner for injury resulting from denial of medical treatment). In both of these cases, the plaintiff had no reason to know of the physical harm underlying his claim until sometime after it had occurred. The rule of accrual at the time of notice therefore served to extend, rather than to shorten, the limitations period. Similarly, a rule based on notice was applied to extend the limitations period in Lavallee v. Listi, 611 F.2d 1129 (5th Cir. 1980) (prisoner injured by negligently performed medical procedure; limitations period began only when prisoner knew or should have known that procedure was the cause of his continuing symptoms); Briley v. State of California, 564 F.2d 849 (9th Cir. 1977) (section 1983 action for fraudulently induced plea bargain; limitations period began only when plaintiff discovered fraud or could have done so); Cox v. Stanton, 529 F.2d 47 (4th Cir. 1975) (section 1983 action for forced sterilization; limitations period began only when plaintiff learned that the operation was permanent); and Young v. Clinchfield Railroad, 288 F.2d 499 (4th Cir. 1961) (Federal Employer’s Liability Act action for disease resulting from exposure to toxic material; limitations period began only when disease diagnosed).
We are aware of only one case which has applied this rule prospectively, Bireline v. Seagondollar, 567 F.2d 260 (4th Cir. 1977), cert. denied, 444 U.S. 842, 100 S.Ct. 83, 62 L.Ed.2d 54 (1979). In that case a nontenured university instructor was notified in May 1970 that her contract would not be renewed at the end of the 1970-71 school year. Citing Cox v. Stanton and Young v. Clinchfield Railroad, the court held that the instructor’s cause of action under section 1983 had accrued when she received notice, even though her termination had not yet occurred. The court did not discuss the policies underlying the notice rule, nor did it explicitly consider whether those policies should properly be applied where notice precedes the challenged action.
In Egleston v. State University College at Geneseo, 2 Cir., 535 F.2d 752 (1976), the Second Circuit took the opposite view on similar facts. The plaintiff, a non-tenured faculty member, was notified in May 1972 that her contract, due to expire in June 1973, would not be renewed. In her suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the court held that June 1973 was the crucial date, since her “primary grievance ... is rooted in her discharge,” and “Appellant’s discharge was consummated only when she left the university — or, possibly, when a replacement was hired.” Id., at 755.
Four other circuits have indicated agreement with Egleston, although in none of these cases was the same issue directly presented for decision. Rubin v. O’Koren, 621 F.2d 114, 116 (5th Cir. 1980) (due process claim under section 1983 by discharged instructor); Kryzewski v. Metropolitan Government, 584 F.2d 802, 806 (6th Cir. 1978) (sex discrimination action under Title VII by discharged policewoman); Bonham v. Dresser Industries, 569 F.2d 187, 192 (3d Cir. 1977), cert. denied, 439 U.S. 821, 99 S.Ct. 87, 58 L.Ed.2d 113 (1978) (age discrimination claim under 29 U.S.C. § 623); Moses v. Falstaff, 525 F.2d 92, 95 (8th Cir. 1975) (age discrimination claim under section 623). See also Greene v. Carter Carburator Co., 532 F.2d 125, 127 (8th Cir. 1976) (Title VII claim).
We think the court in Bireline, and the district court in the present cases, misconstrued the notice rule. In our view, that rule has developed as a safeguard against unfairness to plaintiffs who, through no fault of their own, are unaware of their injuries until after the tortious act occurs. In such cases, the rule operates to postpone the running of the limitations period in order to give the plaintiffs a reasonable time in which to act once they have learned that they have suffered harm. The notice rule does not, however, alter the general rule that no cause of action exists until an unlawful act has occurred. Tort law has not traditionally recognized a doctrine of “anticipatory breach” comparable to that in contracts.
The issue of when the cause of action accrues depends, we believe, on when the alleged unlawful act occurred. It is necessary, therefore, to identify the unlawful act. Where, as here, the claim is that an employment decision was made for a prohibited reason, it could be argued that the unlawful act was the making of the decision, rather than the implementation of it. But we think such a refined rule would depart too sharply from the understanding of ordinary people. The plaintiffs in these cases are complaining that they were demoted or discharged, not merely that a decision was made on a particular occasion, of which notice was then given, to take such action against them. Had the decision been made but not yet implemented, equitable relief might have been sought to forestall irreparable harm, but it is unlikely that plaintiffs would have sought or received damages until or unless the threatened action was consummated. The alleged unlawful act was revocable, incomplete and, for practical purposes, nonexistent until the actual demotion or discharge.
Moreover, important policies of judicial administration favor a rule based on the date of implementation. While the date of notice in the present cases was easily established, other cases would surely arise in which resolution of that question would require lengthy proceedings. Notice might be oral, or it might be ambiguously phrased, or it might be transmitted by one whose authority is subject to question. We see no value in requiring courts and parties to devote their resources to litigating the adequacy of notice, when the date of the action itself is easily determined. In saying this, we are aware that the Supreme Court has declined to reach out for an easily identified date when that date bears no genuine relationship to the act of which plaintiff complains. Compare Delaware State College v. Ricks, - U.S. -, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980) (date of termination not sufficiently connected to the challenged denial of tenure), discussed infra. But where, as here, the date that is most closely related to the plaintiffs’ claim is also the date most easily identified, we think concern for adoption of the rule that best promotes certainty and eliminates litigation over technical niceties is well warranted.
After the district court’s decision of these cases, the Supreme Court decided Delaware State College v. Ricks, supra. Defendants contend that that decision compels affirmance here. We disagree. Ricks, a black Liberian instructor, was informed in June 1974 that the faculty of Delaware State College had voted to deny him tenure. In accordance with the school’s usual practice, he was thereafter granted a one-year terminal contract, after which his employment with the school ended. In his suit alleging discrimination on the basis of national origin, Ricks contended that the limitations period under Title VII began to run only when he left the university in June 1975. The Supreme Court rejected this argument and concluded that Ricks’ cause of action had accrued when he was notified of the denial of tenure, in June 1974, and that his suit was therefore barred. The Court focussed on the allegations of Ricks’ complaint, which it found to charge discrimination in the denial of tenure, not in the discharge or any other subsequent action. The Court held that the denial of tenure was the “unlawful employment practice” within the meaning of Title VII, and that the date of that action was therefore the beginning of the limitations period. Three justices, in dissent, accepted the majority’s analysis (/. e., that denial of tenure, not discharge, was the unlawful employment practice) but placed the denial of tenure at a later date because of the later decision of an internal grievance board. Justice Stevens, alone among the justices, took the view that denial of tenure is analogous to advance notice of discharge. Based on that analogy, he argued that the date of discharge should control.
Refusal of the Ricks majority to adopt Justice Stevens’ analogy does not seem to us in any way to repudiate the precedents to which he sought to draw an analogy. The majority held merely that the denial of tenure in the academic setting is fundamentally different from a notice of discharge; it is a distinct and separate employment action, with important and far-reaching consequences for all aspects of the employee’s status. While denial of tenure is often followed by discharge, it is not always, and the consequences of denial of tenure are not dependent on its being followed by discharge. The Court found that Ricks’ complaint was based on the denial of tenure, which was effective immediately; it followed, therefore, that the limitations period began as soon as Ricks received notice of that action. Here, plaintiffs complain of discharges and demotions, not of any distinct event that occurred on an earlier date. The letters notifying them of the planned actions were notice and nothing more; they were not actions in themselves comparable to the denial of tenure.
To be sure, as we have said, one can argue that the notices themselves mirror the allegedly discriminatory motives of the defendants. One can also argue that a suit for injunctive relief might lie after receipt of notice (or, indeed, even before) to forestall threatened irreparable harm. Still plaintiffs’ quarrel is with their demotions and discharges — not with the notices themselves. No actual harm is done until the threatened action is consummated. Until then, the act which is the central focus of the plaintiffs’ claim remains incomplete. Such was not the situation in Ricks, where the denial of tenure was itself the completed act being challenged.
We conclude, therefore, that Ricks is inapplicable to these cases, and that the district court erred in dismissing the complaints.
The judgments of the district court are vacated and the cases are remanded for further proceedings not inconsistent herewith.
. The statute reads, in applicable part,
“The following prescribe in one year:
(D ...
(2) Actions to demand civil liability for grave insults or calumny, and for obligations arising from the fault or negligence in section 5141 of this title, from the time the aggrieved person has knowledge thereof.”
. This decision makes it unnecessary to reach plaintiffs’ alternative argument that the running of the limitations period was interrupted by their letters of protest, which they characterize as “extra-judicial claims” within 31 L.P. R.A. § 5303.
. Bireline is cited with apparent approval in Jackson v. Hayakawa, 605 F.2d 1121, 1127 (9th Cir. 1979), cert. denied, 445 U.S. 952, 100 S.Ct. 1601, 63 L.Ed.2d 787 (1980), but it is unclear whether this aspect of the holding in Bireline was actually applied in Jackson; the court there focussed on the date of notice, but the facts as stated in the opinion give the impression that the plaintiff had stopped working before he received notice of his termination.
. The Second Circuit followed this holding in Noble v. University of Rochester, 535 F.2d 756 (1976).
. We note that the Puerto Rico statute of limitations provides that actions prescribe within one year “from the time the aggrieved person has knowledge thereof.” See note 1, supra. No Puerto Rico authorities have been called to our attention, however, which suggest that this rule is meant to apply in cases, such as the present, where notice has been given in anticipation of the actual harm. Thus, while federal law would be controlling on accrual in any event, we are aware of nothing inconsistent with our analysis in the Puerto Rico statute and precedents. Indeed, the general federal accrual rule appears no different from that of Puerto Rico.
. We are not now faced with the question whether a mere threat of discharge or demotion, intended to chill the exercise of first amendment rights, would in itself give rise to a cause of action. Compare Elrod v. Bums, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). Plaintiffs here complain not of a mere threat, but of consummated action.
. We do not read the complaints in these cases as charging a “continuing violation” in which the decision and the act were two consecutive elements. See Goldman v. Sears, Roebuck & Co., 607 F.2d 1014 (1st Cir. 1979), cert. denied, 445 U.S. 929, 100 S.Ct. 1317, 63 L.Ed.2d 762 (1980). Rather, in our view each complaint charges a single act of discrimination which was consummated on the date that each plaintiff was discharged or demoted.
. Were the decision separated from its implementation by a greater time period than is involved here, and were the decision-making process more formal and definitive than appears here, the analogy to a tenure decision would be closer. But at least where the action taken follows quite soon after receipt of the notice, as happened here, we view the date of implementation as determinative for limitations purposes.
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_circuit
|
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.
Bobby Joe CRAIG, Appellant, v. SUN OIL COMPANY OF PENNSYLVANIA, and William R. Claiborne, Appellees.
No. 74-1310.
United States Court of Appeals, Tenth Circuit.
Argued Jan. 20, 1975.
Decided April 28, 1975.
Ray Painter, Jr., Tulsa, Okl. (Jack R. Givens, and Jones, Givens, Brett, Gotcher, Doyle & Atkins Inc., Tulsa, Okl., with him on the brief), for appellant.
Jon A. Baughman, Philadelphia, Pa. (John J. Runzer, Philadelphia, Pa., Robert M. Dubbs, St. Davids, Pa., and John A. Ladner, Tulsa, Okl., with him on the brief), for appellee, Sun Oil Co. of Pennsylvania.
Booth & Jay, and Frank R. Hickman, Tulsa, Okl., on the brief for appellee, William R. Claiborne.
Before SETH, HOLLOWAY and BARRETT, Circuit Judges.
SETH, Circuit Judge.
This is a private action under the Sherman Act seeking treble damages against Sun Oil Company of Pennsylvania and William R. Claiborne. The trial court granted motions of the defendants for summary judgment at the conclusion of discovery and after the filing of affidavits by plaintiff in response to the motions.
The defendant Claiborne held a distributorship franchise from Sun, and sold tires, batteries, and accessories pursuant thereto from a filling station in Tulsa. The tire sales by Claiborne were at retail to his station customers and at wholesale to other Sun stations and fleet owners. He sold this station to the plaintiff in May 1969, and plaintiff was given a franchise by Sun. Claiborne then began business under a Sun franchise from another location. This suit centers on this sale and subsequent relationships between Sun, plaintiff, and Claiborne. As mentioned, defendant Claiborne, after his sale to plaintiff, began a wholesale tire distributorship from a warehouse in Tulsa. This enterprise was financed for the most part by Sun. It was operated under the same type of contract with Sun as plaintiff had and Claiborne had before. There were in Tulsa and vicinity at least one or two other similar distributorships at all pertinent times.
The sale of the Claiborne station to plaintiff involved Sun in that it approved the new franchise to plaintiff for tires, batteries, and accessories, and it also financed for plaintiff equipment and machinery at the station. Part of the sale price was applied on debts which Claiborne owed to Sun, and the part for good will concerned only plaintiff and Claiborne. By February 1970 plaintiff’s business had failed, he was in default on notes to Sun, and Sun began suit, and took possession of the equipment.
The essence of plaintiff’s complaint is that Claiborne and Sun conspired to set him up as an additional distributorship for the purpose of making it practical for Sun to finance Claiborne in the new outlet, and that once that purpose was achieved Claiborne and Sun continued to conspire to destroy his business by means of price, credit, and service discrimina-tions in favor of Claiborne.
With respect to conspiracy to restrain trade under 15 U.S.C. § 1, the trial court concluded that even if such claim was supported in fact, which it found was not, a conspiracy which does not decrease competition or the number of competitors, or which replaces one distributor with another, is not actionable under the Sherman Act.
With respect to attempt or conspiracy to monopolize under 15 U.S.C. § 2, the court concluded the complaint made no allegations supporting a claim thereunder.
As to price, service, or credit discrimination under 15 U.S.C. § 13, the court found the only fact situation possibly involving price discrimination was a subsequently corrected mechanical error in a billing; it found that the same services were available to plaintiff and Claiborne alike, but that plaintiff neither accepted nor desired any assistance other than credit; and that discrimination in terms of credit does not as a matter of law violate the Robinson-Patman Act.
The allegations of plaintiff relating to the inducements for him to purchase Claiborne’s station are that Claiborne represented that he was “getting entirely out of the tire business,” and that plaintiff believed this and Sun knew about it. The plaintiff then alleges that the defendants used the proceeds of the sale to set up Claiborne at his new place of business to compete with plaintiff. Thus the conspiracy alleged was to induce plaintiff to buy, to use the money to start Claiborne at a new place, and then for defendants to drive plaintiff put of business by price, credit, service, and facilities discrimination. The plaintiff in his complaint does not refer to any monopoly nor to any relevant markets; in fact, neither of the terms appear in the complaint. Two references are made in the complaint to 15 U.S.C. § 2 but are conclusionary only, and were stricken by the trial court. We agree that there are no allegations which can be taken as asserting a violation of 15 U.S.C.A. § 2.
The plaintiff is very specific that only a 'cause of action for an antitrust violation has been alleged, and that there is only one conspiracy alleged.
We have held that a conspiracy which results merely in the substitution of one distributor for another does not violate 15 U.S.C. § 1. Feddersen Motors, Inc. v. Ward, 180 F.2d 519 (10th Cir.); Shotkin v. General Electric Co., 171 F.2d 236 (10th Cir.). See also, Ace Beer Distributors, Inc. v. Kohn, Inc., 318 F.2d 283 (6th Cir.). An increase in the number of distributors is not actionable under section 1.
Claiborne and Sun argue further that any fraudulent misrepresentations by which.they allegedly induced plaintiff’s entry into the market are at best actionable as a business tort. We agree. Plaintiff, however, responds that if such a tort is not acionable under section 1, it is evidence, together with the later discrimination, of the overall conspiracy against him and that in any event conspiracy to restrain trade is a per se violation of section 1.
As to the per se violation argument, based on the allegation of a conspiracy to restrain trade, the plaintiff refers to Albert Pick-Barth Co. v. Mitchell Woodbury Corp., 57 F.2d 96 (1st Cir.); the later First Circuit case of Atlantic Heel Co. v. Allied Heel Co., 284 F.2d 879 (1st Cir.); to C. Albert Sauter Co., Inc. v. Richard S. Sauter Co., 368 F.Supp. 501 (E.D.Pa.), and to our decision in Perryton Wholesale, Inc. v. Pioneer Distributing Co. of Kansas, 353 F.2d 618 (10th Cir.). The attorneys at oral argument directed the court’s attention to Whitten v. Paddock Pool Builders, Inc., 508 F.2d 547, First Circuit, No. 74-1169, December 17, 1974, which overruled Albert Pick-Barth and Atlantic Heel. We do not consider Perryton Wholesale, Inc. v. Pioneer Distributing Co. of Kansas, 353 F.2d 618 (10th Cir.), to be applicable to this case, as the court was there concerned with a particular type of business activity which is not present here. Reference is made in the Perryton opinion to existing competition, and it is not necessarily a per se case despite the citation of the First Circuit cases.
The complaint, as to the purchase of the business, alleges only a business tort, if anything, as noted above. The subsequent events alleged, and the facts used on the motion for summary judgment, show a series of events which in total amounted to no more than a substitution of distributors. The “in and out” of plaintiff had no impact on the competitive situation, and was not actionable under the antitrust theory of plaintiff’s case.
The complaint also contains allegations framed under the Robinson-Patman Act, assertions that the defendant Sun discriminated against plaintiff, as compared to Claiborne, during the relatively short period plaintiff was in business. Both were “distributors” under franchise agreements with Sun. The record shows that defendant Claiborne was engaged in wholesaling tires, sold to him by Sun, from a warehouse. Plaintiff operated the filling station with facilities for retail sales and service of tires, batteries, and accessories, as well as gasoline and oil. Thus tires were only a part of his business. Plaintiff alleges he acquired no Sun service stations as tire customers for wholesale sales which he was franchised to make.
The allegations of plaintiff considered in this aspect of the appeal, of course, relate to the “services” and “facilities” provided by Sun, 15 U.S.C. § 13(e), and to price discrimination under 15 U.S.C. § 13(a) to include the granting of credit.
It is clear that the allegations of price discrimination are based upon several billing errors made by Sun, but which were corrected. The trial court reached the same conclusion, and it would serve no useful purpose to detail the transactions. Similarly there is also no basis for any assertion of discrimination grounded on the handling of cash discounts, or the annual bonus plan.
The trial court concluded that although there may have been a dispute as to the facts relating to the credit terms and conditions arranged by Sun with Claiborne and those with plaintiff, this made no difference because the discrimination in credit terms as alleged could not, as a matter of law, be the basis for a claim under 15 U.S.C. § 13(a) or (e). We agree with this conclusion.
It is obvious that differences in the borrower’s financial strength, business experience, and many other factors bring about differences in the terms of credit, security required, guarantees, and other devices used by creditors under these circumstances. See Rea v. Ford Motor Co., 497 F.2d 577 (3d Cir.); Skinner v. United States Steel Corp., 233 F.2d 762 (5th Cir.); and Clausen & Sons, Inc. v. Theo. Hamm Brewing Co., 284 F.Supp. 148 (D.Minn.), reversed on other grounds, 395 F.2d 388 (8th Cir.). We do not say that there could not be a discrimination in credit of such magnitude or nature as to constitute a violation, but no such extreme situation was alleged here by any means.
The allegations of the complaint relating to discrimination in the furnishing of facilities are conclusionary only. The record contains nothing which could relate to such an allegation. The allegations concerning the discrimination in the furnishing of services are somewhat more specific.
Plaintiff asserts that Sun did not assist him by advice and counseling provided to others to help in soliciting customers, and for other business matters. The deposition of the plaintiff, however, demonstrates that he did not really know what advice or visits were to be expected. What he did expect by way of visits again related to the solicitation of the former customers of the station and his expectations as to competition from Claiborne. There is really no allegation of any specific way in which there was discrimination; there was thus nothing specific that plaintiff asserts was given others that he did not have available to him. Willis Craig, who managed the business for plaintiff for the first month and also during the period before it closed (in fact, for six out of the ten months the business existed), stated that he did not need any such help, that he did not ask for any. He said: “I didn’t need any help. I didn’t need them telling me how to run my business.” It is apparent from the record that the plaintiff was disappointed in the amount of business he had, but there are no allegations of the specific discrimination, and his evidence shows advice was available but was not sought. We agree with the conclusions of the trial court as to this point.
The facts were clearly insufficient to establish a prima facie violation of the Robinson-Patman Act. The consequences described in FTC v. Simplicity Pattern Co., 360 U.S. 55, 79 S.Ct. 1005, 3 L.Ed.2d 1079, do not come about as the per se aspects were not brought into being.
There were no unresolved questions of fact relevant to the issues when the case is considered strictly as an antitrust action, as plaintiff on appeal asserts that it must be. Disposition by summary judgment under these rather unusual circumstances was proper. The complaint in the final analysis presented questions of law as to several issues, and as to the others, the facts developed left no unresolved questions under the applicable doctrines. See, First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 88 S.Ct. 1575, 20 L.Ed.2d 569, and Bushie v. Stenocord Corp., 460 F.2d 116 (9th Cir.). Also there survives no cause of action under state law.
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_numresp
|
3
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
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.
REESE, Frank Ordean v. SPARKS, Gary E. Caskey, James E., Sease, Kenneth. Appeal of Frank REESE.
No. 84-5590.
United States Court of Appeals, Third Circuit.
Argued March 11, 1985.
Decided April 29, 1985.
Allen C. Welch (argued), Clearfield, Pa., for appellant.
Thomas E. Brenner (argued), Goldberg, Evans & Katzman, Harrisburg, Pa., for appellee.
Before HUNTER and GARTH, Circuit Judges, and VAN DUSEN, Senior Circuit Judge.
OPINION OF THE COURT
GARTH, Circuit Judge:
Frank Reese was transferred from Adams County Prison (ACP) in Gettysburg, Pennsylvania to the State Correctional Institution at Camp Hill on August 3, 1983. Reese subsequently filed a complaint in United States District Court, claiming that his transfer was instituted in retaliation for a prior civil rights action filed by Reese against Gary Sparks. Sparks answered and filed affidavits and documents in support of a motion for summary judgment. Reese failed to respond, and summary judgment in favor of Sparks was granted.
Reese then filed papers styled as an amended complaint, joining defendants James E. Caskey and Kenneth Sease and alleging that he, Reese, had been placed in solitary confinement and subsequently transferred to another institution (Camp Hill) as the result of a misconduct hearing at which he was not present and of which he had no notice. Reese claimed a violation of the due process guarantee of the fourteenth amendment and 42 U.S.C. § 1983.
The district court, in one order dated August 1, 1984, vacated its earlier grant of summary judgment, granted Reese’s motion to amend his complaint, then, treating the amended complaint as a response to Sparks’ original motion for summary judgment, entered another order of summary judgment in favor of Sparks, Caskey, and Sease.
It is from this second grant of summary judgment that Reese appeals. Because we conclude that the district court’s action in granting summary judgment without giving Reese an opportunity to respond by affidavits or other proofs was improper, and, alternatively, because we find that even the documents that were before the district court presented a genuine issue of material fact, we reverse and remand.
I.
According to Reese’s amended complaint, after an escape attempt by several prisoners at ACP, a disciplinary hearing was held on August 2, 1983. Reese had no notice of this hearing, nor was he given an opportunity to appear and be heard. According to Reese, as a result of this hearing he was first confined to special detention, then transferred to Camp Hill.
Sparks’ filings in support of his initial motion for summary judgment included an affidavit that Reese was implicated in the breakout attempt and that “[a] hearing was held for Mr. Reese concerning his transfer on August 2, 1983, following that hearing, Mr. Reese was transferred to the State Correctional Institution at Camp Hill.” Sparks’ papers included a copy of a Petition for Administrative Transfer of Reese pursuant to 61 Pa.S. 72, based on a security risk reclassification. The Petition for transfer was dated August 1, 1983 and approved by a Common Pleas judge on August 2, 1983. Sparks’ papers also included a document entitled “Misconduct Report,” evidencing an August 2, 1983 hearing. That report ordered that Reese immediately be placed in special detention at ACP and directed that Reese be transferred to Camp Hill on August 3, 1983. This “Misconduct Report” is signed by Caskey and Sease as “Hearing Board Members.”
II.
The district court failed to comply with the governing principles of Fed.R. Civ.P. 56 when it granted summary judgment against Reese on his amended complaint without first notifying Reese and giving him an opportunity to file supporting documents. “To exercise the right to oppose summary judgment, a party must have notice____ Although the court may dismiss the action at its own motion, it must first provide [the party] an opportunity to oppose an entry of summary judgment against him.” Bryson v. Brand Insulation, Inc., 621 F.2d 556, 559 (3d Cir. 1980). See also Davis Elliot International v. Pan American Container, 705 F.2d 705, 707 (3d Cir.1983).
Here, Reese filed an amended complaint, which changed not only the legal theory upon which he first sought relief, but also averred additional and different facts supporting his new theory. The district court accepted the amendment to the complaint; and vacated its prior grant of summary judgment. Yet the court at the same time immediately granted summary judgment, based on affidavits and documents previously filed by Sparks when Sparks moved against Reese’s initial complaint.
Thus, Reese was given neither notice nor an opportunity to file affidavits either in support of his amended complaint, or in response to Sparks’ affidavits and motion. Any notice Reese might have had of Sparks’ earlier motion for summary judgment addressed to Reese’s original complaint could not have informed Reese of his need to present affidavits or documents in support of his amended complaint.
Moreover, the theory and the facts asserted in Reese’s amended complaint differed materially from the theory and facts asserted in Reese’s initial complaint. In Reese’s first complaint, as we have observed, Reese claimed that he had been transferred by Sparks in retaliation for having filed a civil suit against Sparks. In Reese’s amended complaint Reese contended that his transfer was ordered on the basis of a misconduct proceeding, which under Pennsylvania law required that Reese be accorded a hearing. Reese also claimed that he had received disciplinary confinement without having been heard, again in violation of prison regulations.
Because of the peculiar sequence of events in which Sparks’ motion for summary judgment against the original complaint was granted, and because Reese had no further opportunity to oppose a grant of summary judgment against his amended complaint (a complaint against which Sparks had never moved), it is evident to us that the case must be remanded to the district court to give Reese an opportunity to oppose any motion that may be filed by Sparks addressed to Reese’s amended complaint. Cf. Bryson v. Brand Insulation, supra, (summary judgment may be granted by court sua sponte, provided, however, that notice has been afforded to party against whom judgment is contemplated),
III.
Even apart from the procedural irregularity of the grant of summary judgment against Reese’s amended complaint, we do not believe that the record and affidavits before the district court justified the second grant of summary . judgment for Sparks in this case. Summary judgment is appropriate only where “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). In making the determination whether a genuine issue of material fact exists, all reasonable inferences from the affidavits must be drawn in favor of the non-moving party. Sun Refining and Marketing Co. v. Rago, 741 F.2d 670, 673 (3d Cir.1984).
The district court relied on the principle that a prisoner enjoys no due process right to a hearing prior to an administrative transfer from one prison to another, including a transfer for security reasons. Montanye v. Haymes, 427 U.S. 236, 96 S.Ct. 2543, 49 L.Ed.2d 466 (1976); Cobb v. Aytch, 643 F.2d 946 (3d Cir.1981) (in banc). See also Robson v. Biester, 53 Pa.Comm. 587, 420 A.2d 9 (1980). However, where the transfer is punitive, provisions of the Pennsylvania Code providing for notice and hearing prior to punishment for misconduct, create a protected liberty interest in remaining in the general prison population. That interest is entitled to procedural due process protections. Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983) (relying on 37 Pa.Code § 95.104 (1978)).
It must be remembered that Reese claimed to have been transferred to Camp Hill not as a security or administrative transferee, but rather as a result of the August 2 misconduct proceeding at which he was improperly denied the right to be present. Thus, treating Reese’s amended complaint as an affidavit in opposition to summary judgment, as the district court treated it, Reese’s claim that the reason for his transfer was the misconduct report and not the administrative transfer petition, creates a genuine issue of material fact. The district court apparently did not recognize that Reese’s claim of a misconduct transfer contradicted Sparks’ contention that Reese’s transfer was of an administrative character. Rather than acknowledging that the disputed type of transfer had given rise to a material dispute of fact which would preclude the entry of summary judgment, the district court sought to reconcile and explain away the evident contradiction by saying:
It is unfortunate that the prison officials used a misconduct report form to present their recommendation that Plaintiff be transferred as a security risk. Use of such a form generally will imply that Plaintiff is being punished and that prison officials acting pursuant to the rules governing misconduct hearings, which may require minimum due process. In this case, though, it is clear that the Warden acted properly under 61 P.S. § 72 to transfer Plaintiff before any misconduct hearing occurred and that no hearing was necessary.
Reese v. Sparks, No. 83-1653 (M.D.Pa. (Aug. 1, 1984)), mem. op. at 6-7.
Because a misconduct charge requires a hearing that Reese was denied, and an administrative transfer requires no such process, it is evident that the dispute revealed by the petition for transfer on the one hand and Reese’s complaint on the other, is material and could not be resolved in the present summary judgment context. Indeed, the finding made by the district court that the transfer was an administrative transfer and not a misconduct transfer — a finding that is impermissible in a summary judgment proceeding — could only result if all inferences were drawn in favor of the moving party, and not the non-moving party. The coincidence in time (August 1 — Petition for Transfer; August 2 — misconduct proceeding and disciplinary confinement; August 3 — transfer) and the sequence of events (finding of misconduct, detention, and transfer) require, particularly when inferences must be drawn in favor of Reese, the non-movant, that this dispute as to the type of transfer responsible for Reese’s reassignment, not be resolved in a summary manner.
Thus, two additional reasons bar summary judgment against Reese’s claim. First, if Reese’s transfer actually resulted from a misconduct hearing held without notice or opportunity for Reese to attend and did not result from the administrative petition, judgment for Sparks is not justified. It is not disputed that Reese had no notice of, and no opportunity for, hearing. What is disputed is that Reese’s transfer was a misconduct transfer which required notice and a hearing. On this record, that issue was improperly decided by the district court in summary fashion.
Second, Reese has claimed without contradiction that he was punished in violation of the Pennsylvania Code by having been confined in special detention without the benefit of a hearing. Confinement to special detention is, unlike a transfer, inherently punitive, and thus within the rule of Hewitt v. Helms, supra, requiring a hearing. Thus, Cobb v. Aytch, supra, which is concerned with administrative transfers, is inapposite. Thus, absent an appropriate justification by the defendants for this action — and none appears in this record— summary judgment in favor of Sparks on the detention claim is also barred at this time.
IV.
The district court’s order dated August 1, 1984 which improperly grants summary judgment in favor of Sparks will be reversed and we will remand the case for further proceedings consistent with this opinion.
. 61 Pa.S. § 72 in relevant part provides:
The Deputy Commissioner ... is hereby authorized ... upon petition being presented to him.... by reason of existing conditions ... that a certain number of inmates, set forth in such petition, should be transferred therefrom, [to] make an order authorizing and directing the said ... official in charge, to transfer to another prison ... such person or persons ...; Provided, however, That before any transfer is made as aforesaid the court of common pleas of the county wherein any such penitentiary ... is located, shall give its consent to such transfer____
. 37 Pa.Code § 95.240 provides in relevant part that:
(3) Confinement is punishment, therefore no further punishment is permitted unless the prisoner violates the rules and regulations of the prison or violates State law.
(7) No prisoner shall be punished unless he has been informed of the offense alleged against him and given an opportunity to present his defense. In addition the following shall apply:
(i) The hearing shall be staffed by an impartial tribunal.
(ii) The hearing shall be preceded by notice to the prisoner, in writing, of the charges against him.
(iii) The decision reached shall be based upon evidence raised at the hearing.
(iv) The decision-makers shall state the reason for their determination of guilt if that is the decision reached.
(9) Punishment may fall into the two following categories:
(i) Loss of privileges.
(ii) Segregation.
. Reese concluded his amended complaint by adding the following declaration, "I declare under penalty of perjury that the foregoing is true and correct.”
. See 37 Pa.Code § 95.240(9), note 2, supra.
. Our rejection of a disposition based on summary judgment is naturally confined to the record before us. Nothing in this opinion would preclude a summary judgment disposition on an appropriate record after an opportunity for discovery and/or an opportunity to file additional affidavits has been afforded.
. We express no opinion as to any possible immunity that may be asserted by Sparks and the other defendants.
Question: What is the total number of respondents in the case? 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.
Thomas SPIEGEL, Plaintiff-Appellee, v. Timothy RYAN; Dept. of Treasury; Office of Thrift Supervision, Defendants-Appellants.
No. 90-55942.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Nov. 7, 1990.
Decided Oct. 11, 1991.
William K. Black, Office of Thrift Supervision, San Francisco, Cal., for defendants-appellants.
Dennis M. Perluss, Dan Marmalefsky, Hufstedler, Kaus & Ettinger, Los Angeles, Cal., for plaintiff-appellee.
Before NORRIS, HALL and RYMER, Circuit Judges.
WILLIAM A. NORRIS, Circuit Judge:
In 1989 Congress enacted the Financial Institutions Reform, Recovery and Enforcement Act (“FIRREA”), Pub.L. No. 101-73, 103 Stat. 183 (1989). Among other things, FIRREA created the Office of Thrift Supervision (“OTS”) to take over many of the savings and loan regulatory tasks previously handled by the Federal Home Loan Bank Board, which the statute abolished. Congress also armed the OTS with expanded powers to deal with the crisis that had gripped the nation’s savings and loan industry. In this appeal we resolve a dispute over the OTS’s statutory authority to issue a temporary cease and desist order requiring a former officer of a savings and loan association to make restitution in the sum of $21 million pending an administrative hearing to determine whether a permanent cease and desist order should issue. We also consider whether the Temporary Order constituted a pre-hearing deprivation of property that violated due process of law.
I
On November 28, 1989, the OTS launched a formal investigation of Columbia Savings and Loan Association (“Columbia”) and Thomas Spiegel (“Spiegel”), its former chairman and chief executive officer. On July 5, 1990, the OTS issued a “Notice of Charges and Hearing and Notice of Intention to Remove and Prohibit, and to Direct Restitution, and Notice of Assessment of Money Penalty” (“Notice of Charges”). This notice, inter alia, alleged that Spiegel misappropriated corporate assets and committed other violations of banking laws, and set September 4,1990 as the date for the commencement of an administrative hearing to determine whether the OTS should issue a permanent cease and desist order against Columbia and/or Spiegel. On the same day, the OTS issued a “Temporary Order to Cease and Desist” (the “Temporary Order”), which required Spiegel, inter alia, to make restitution to Columbia in the amount of approximately $21 million, by no later than 12 o’clock noon the next day, July 6. The Temporary Order provided that this restitution could be accomplished by a cash payment to Columbia, the establishment of an escrow account, or the posting of a letter of credit or bond.
On July 6, Spiegel filed a complaint in the United States District • Court for the Central District of California seeking in-junctive relief from the Temporary Order. He argued to the district court that 12 U.S.C. § 1818(c)(1) (“(c)(1)”), the statutory provision authorizing the OTS to issue temporary cease and desist orders, does not authorize the OTS to order restitution as a temporary remedy. In making this argument, he relied on the following language in (c)(1):
[The OTS] may issue a temporary order requiring [a] party to cease and desist from any ... violation or practice [specified in § 1818(b)(1) ] and to take affirmative action to prevent such insolvency [of the institution] dissipation [of its assets], [weakening of its] condition or prejudice [to its depositors] pending completion of ... proceedings [pursuant to (b)(1) ].
(emphasis added).
Spiegel reads this language in (c)(1) as restricting the OTS’s (c)(1) authority to ordering only “preventive” remedies, which he interprets to mean orders designed to prevent future or ongoing harm to the institution. Restitution does not qualify as such a remedy, he contends, because it is a remedy designed to correct past harm. In the alternative, Spiegel argues that, if (c)(1) is interpreted as authorizing the OTS to require restitution in the Temporary Order, the statute authorizes a prehearing deprivation of his property that violates due process.
In response to Spiegel’s complaint, the OTS moved for a preliminary injunction enforcing the Temporary Order. The district court denied the OTS’s motion and instead permanently enjoined the OTS from enforcing the order. The court agreed with Spiegel that (c)(1) did not authorize the OTS to require restitution in a temporary cease and desist order and held, in the alternative, that if (c)(1) were interpreted to grant that authority, such an order would violate due process.
We respectfully disagree with the district court on both issues. Rather, we agree with the OTS both that (c)(1) authorized it to issue the temporary restitution order and that the order did not deprive Spiegel of due process of law.
II
As the OTS explains, (c)(1) on its face gives it the power to issue temporary-cease and desist orders requiring “affirmative action to prevent ... dissipation [of an institution’s assets] or prejudice [to its depositors].” As a matter of common sense, the $21 million in restitution required by the Temporary Order, however satisfied, strengthens Columbia’s financial condition by preserving Spiegel’s assets, and thereby tends to achieve at least two of the statutory goals set forth in (c)(1), namely, the prevention of the dissipation of assets which might belong to Columbia, and the resulting prejudice to Columbia’s depositors.
Moreover, the plain . language of 12 U.S.C. § 1818(b)(6) (“(b)(6) ”) supports our conclusion that the OTS has authority to order restitution in a (c)(1) temporary order. Subsection (b)(6) provides that “the authority to issue an order under this subsection [(b)] and subsection (c) of this section which requires ... any institution-affiliated party to take affirmative action to correct any conditions resulting from any violation ... includes the authority to ...— (A) make restitution_” 12 U.S.C. § 1818(b)(6) (emphasis added). Thus, the plain, unqualified language of (b)(6) expressly authorizes restitution as a remedy under “subsection (c).”
Spiegel argues that, in unqualifiedly referring in (b)(6) to “subsection (c),” Congress did not really mean “subsection (c),” but instead meant “subsection (c)(3)(A)(ii).” Spiegel offers the explanation that Congress intended “subsection (c)” to mean “subsection (c)(3)(A)(ii)” because (b)(6) and (c)(3)(A)(ii) were enacted at the same time as part of FIRREA. Besides contradicting the plain language of both (b)(6) and (c)(1), Spiegel’s interpretation renders (b)(6)’s reference to “section (c)” redundant. Under his interpretation, the reference in (b)(6) to subsection (c) would be meaningless, because subsection (c)(3)(A)(ii) itself explicitly authorizes the OTS to issue temporary orders restoring an institution’s books and records. See United States v. Fields, 783 F.2d 1382, 1384 (9th Cir.1986) (statutes should be interpreted to give full meaning to all provisions); see also 2A Sutherland Statutory Construction § 46.06 (4th ed. 1984) (same).
Spiegel also attempts to evade the plain meaning of the language in (c)(1) and (b)(6) by arguing that the use of the word “prevent” in (c)(1) makes restitution unavailable as a remedy because restitution is a remedy that corrects past wrongs, not a remedy that prevents new ones. This argument overlooks the OTS’s compelling point that restitution may not only compensate an institution for past wrongs, but may also serve to prevent the dissipation of assets that may belong to it, and thereby prevent prejudice to its depositors.
As a corollary of his argument, Spiegel cites the fact that (b)(6) conversely uses the word “correct” instead of “prevent” in referring to restitution as a remedy. In our view, the contrast between the use of the word “correct” in (b)(6) and “prevent” in (e)(1), especially when considered in the context of (b)(6)’s plain language authorizing restitution for orders issued under subsection (c), lends no support to Spiegel’s argument that we should disregard that plain language and read it as denying the OTS authority to require restitution in temporary orders.
Spiegel’s attempt to interpret (b)(6) as restricting the OTS’s powers under (c)(1) becomes even more implausible when we consider that FIRREA, which added (b)(6) to the statute, was enacted to “enhance[] the enforcement powers of the [federal] regulators” to deal with insider abuses leading to “the highest number of [financial institution] failures since the great depression” by clarifying and strengthening “the reach of those authorities to administer enforcement orders.” H.R.Rep. No. 5094, 101st Cong. 1st Sess., 134 Cong.Rec. 65, 138-40 (1988). Spiegel’s interpretation of (b)(6) would constrict the OTS’s enforcement powers precisely when Congress was bent on strengthening the powers of federal regulators to deal with the savings and loan crisis.
We agree, then, with the OTS that (c)(1) authorizes temporary orders requiring restitution. We turn, therefore, to Spiegel’s argument, accepted by the district court, that the temporary cease and desist order violated due process because it constituted an unwarranted prehearing deprivation of his property.
Ill
The Temporary Order required that Spiegel make restitution in an amount exceeding $21 million, or else face daily-accruing money penalties. The order gave him the option of paying Columbia cash, establishing an escrow account, or posting a bond or letter of credit, pending the outcome of the administrative proceedings determining whether the OTS would issue a permanent order. The district court held that the Temporary Order violated the due process clause. We disagree.
The district court began its due process analysis by holding that the Temporary Order deprived Spiegel of his property. The next step in the inquiry, assuming a prehearing deprivation occurred, is determining “what process is due.” Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). We assume that the Temporary Order amounts to a prehearing deprivation of property and conduct the due process inquiry.
A
Spiegel argues that he was entitled to a predeprivation hearing. As a general rule, it is true that due process requires a hearing before a person may be deprived of her property. See Fuentes v. Shevin, 407 U.S. 67, 90, 92 S.Ct. 1983, 1999, 32 L.Ed.2d 556 (1972). “[I]n a few limited situations,” however, the Supreme Court has “allowed outright seizure without opportunity for a prior hearing.” Id. at 90-91, 92 S.Ct. at 1999-2000. We must determine, then, whether this case presents an “ ‘extraordinary situation[ ]’ that justifies] postponing notice and opportunity for a hearing.” Id. at 90, 92 S.Ct. at 1999.
Fuentes listed three factors common to all cases in which the Court has upheld prehearing deprivations:
First, in each case, the seizure has been directly necessary to secure an important governmental or general public interest. Second, there has been a special need for very prompt action. Third, the State has kept strict control over the monopoly of legitimate force: the person initiating the seizure has been a government official responsible for determining, under the standards of a narrowly drawn statute, that it was necessary and justified in the particular instance.
Id. at 91, 92 S.Ct. at 2000. We analyze this case to determine whether the three Fuentes factors are present here. Our analysis is also guided by Federal Deposit Insurance Corp. v. Mallen, 486 U.S. 230, 108 S.Ct. 1780, 100 L.Ed.2d 265 (1988), which teaches that “[a]n important government interest, accompanied by a substantial assurance that the deprivation is not baseless or unwarranted, may in limited cases demanding prompt action justify postponing the opportunity to be heard until after the initial deprivation.” Id. at 240, 108 S.Ct. at 1787.
Applying Mallen, the district court held that the Temporary Order served an important government interest, which Congress identified as fighting insider abuse of savings institutions in order to maintain the integrity of savings and loan institutions, as well as to protect the public fisc, which, because of deposit insurance, is obligated to make good on most of the deposits in those institutions. See, e.g., H.R.Rep. No. 54(1), 101st Cong. 1st Sess. 307, reprinted, in 1989 U.S. Code Cong. & Admin.News at 86, 103; H.R.Conf.Rep. No. 222, 101st Cong. 1st Sess. 393, reprinted in 1989 U.S.Code Cong. & Admin.News at 432. We agree with the district court and hold that the Temporary Order satisfies the Fuentes “important governmental interest” prong.
We also agree with the district court that Congress, in authorizing temporary restitution orders pending an administrative hearing, acknowledged a need for prompt action against officers and directors formally charged by the OTS with misconduct harmful to a troubled savings institution. In this case, the temporary restitution order was based upon findings by the OTS’s examiners that Spiegel caused Columbia to lend $28 million to a personal friend without adequate collateral, resulting in a loss to Columbia of $5 million, and that he caused Columbia to purchase four condominiums, a jet airplane and a collection of 100 guns, all for his personal enjoyment. In addition, he was charged with accepting inflated compensation, including a $2.4 million bonus in 1989. A year later, shortly after his departure as chairman and chief executive officer, Columbia's financial condition had deteriorated to the point that it was insolvent in the amount of $215 million. In light of the gravity of the charges against Spiegel, it was not unreasonable for the OTS to issue the Temporary Order simultaneously with the Notice of Charges in order to avoid the risk that he would dissipate his assets or attempt to put them beyond the government’s reach. As a result, we hold that the Temporary Order also satisfies the Fuentes “special need for very prompt action” prong.
We disagree, however, with the district court’s decision that the Temporary Order did not provide “substantial assurance that the deprivation is not baseless or unwarranted.” Mallen, 486 U.S. at 240, 108 S.Ct. at 1787. Rather, we agree with the OTS that “substantial assurance” that the charges were not “baseless or unwarranted” was provided by a combination of factors: the OTS was required to meet specific statutory requirements before issuing the order, the decision to issue the order was made by the head of the agency expert in these matters, and his decision was supported by detailed findings of Spie-gel’s misconduct following a long investigation by the OTS’s examiners, the results of which were submitted to the district court under penalty of perjury.
Spiegel’s only response to the OTS’s “substantial assurance” argument is his claim that Mallen requires an independent institutional check on agency action depriving a person of property without a prior hearing. Because the OTS issued the Temporary Order solely on the basis of its own internal examination of Spiegel’s conduct as chairman and chief executive of Columbia, he contends that the order violated due process. We reject this argument because we do not read Mallen as requiring an independent verification of agency action to satisfy the “substantial assurance” test.
In Mallen, the Court rejected a due process challenge to an order of the Federal Deposit Insurance Corporation suspending a bank officer without a hearing. In finding that the “substantial assurance” test was satisfied on the facts of that case, the Court relied upon thefact that the target of the suspension order was already under indictment for violating banking laws. Although the grand jury’s determination that reasonable grounds existed for believing the officer had violated banking laws provided “substantial assurance” that the FDIC’s action was not baseless, nothing in Mallen suggests that the Court intended to require an independent institutional check in every prehearing deprivation case. In other words, the fact that the grand jury indictment was sufficient to satisfy the “substantial assurance” test on the facts of Mallen does not mean that an independent institutional check is necessary in every case.
Indeed, in articulating the factors shared by cases upholding prehearing deprivations, Fuentes made no reference to an external check on the official’s action. Rather, Fuentes held that a state statute authorizing the issuance of prehearing writs of replevin would be constitutional if the responsible official determined, “under the standards of a narrowly-drawn statute, that [the prehearing seizure] was necessary and justified in the particular instance.” 407 U.S. at 91, 92 S.Ct. at 2000. Moreover, in the cases cited by Fuentes, prehearing deprivations were upheld without any suggestion of a requirement of an independent check. See Ewing v. Mytinger & Casselberry, 339 U.S. 594, 70 S.Ct. 870, 94 L.Ed. 1088 (1950) (upholding government authority to seize misbranded health products); Fahey v. Mallonee, 332 U.S. 245, 67 S.Ct. 1552, 91 L.Ed. 2030 (1947) (upholding government authority to appoint conservator for savings and loan institutions); Phillips v. Commissioner, 283 U.S. 589, 51 S.Ct. 608, 75 L.Ed. 1289 (1931) (upholding government authority to collect corporate taxes from shareholders of dissolved corporation); Stoehr v. Wallace, 255 U.S. 239, 41 S.Ct. 293, 65 L.Ed. 604 (1921) (upholding government authority to seize enemy property); North American Cold Storage Co. v. City of Chicago, 211 U.S. 306, 29 S.Ct. 101, 53 L.Ed. 195 (1908) (upholding government authority to seize and destroy infected food). We thus reject Spiegel’s argument that the Temporary Order violates due process because it was based solely on the OTS’s internal investigation of Spiegel’s conduct.
Under Fuentes, however, we must consider whether the statutory scheme has sufficiently tight standards to channel the agency’s discretion. On this issue, we find helpful guidance in Mallen and Fahey, which involved criteria similar to those in 12 U.S.C. § 1818(c)(1). Under the statute that passed muster in Mallen, the agency could suspend an indicted banking official “if continued service or participation by the individual may pose a threat to the interests of the bank’s depositors or may threaten to impair public confidence in the bank....” 12 U.S.C. § 1818(g)(1) (Supp.V 1981), quoted in Mallen, 486 U.S. at 234 n. 5, 108 S.Ct. at 1784 n. 5. The Rules and Regulations for the Federal Savings and Loan System at issue in Fahey provided for appointment of a conservator whenever the Federal Home Loan Bank Administration believed a savings and loan association was “conducting its business in an unlawful or unsafe manner,” was “in an unsound or unsafe condition,” could not “with safety continue in business” or was “pursuing a course that is jeopardizing or injurious to the interests of its members, creditors or the public,” among other things. 24 C.F.R. Cum.Supp. § 206.1 et seq., as amended, 24 C.F.R. 1943 Supp. § 206.1, quoted in Fahey, 332 U.S. at 250-53 n. 1, 67 S.Ct. at 1554 n. 1. These statutory standards are not materially different from those guiding the OTS in determining that a party it believes has engaged in an unsafe or unsound practice “is likely to cause insolvency or significant dissipation of assets or earnings of the depository institution, ... weaken the condition of the depository institution or otherwise prejudice the interests of its depositors,” as it must before issuing a temporary order. See 12 U.S.C. § 1818(b)(1) & (c)(1). Given the industry involved, and the degree of regulation that exists in that industry, the standards in (c)(1) are not constitutionally impermissible. See Fahey, 332 U.S. at 250-254, 67 S.Ct. at 1554-56; cf. Hodel v. Virginia Surface Mining and Reclamation Ass’n, Inc., 452 U.S. 264, 299-303, 101 S.Ct. 2352, 2372-74, 69 L.Ed.2d 1 (1981) (reasoning that statutory and regulatory criteria are specific enough to insulate immediate mining cessation order from due process challenge).
We, therefore, conclude that the State in this case “has kept strict control over its monopoly of legitimate force,” Fuentes, 407 U.S. at 91, 92 S.Ct. at 2000, and hold that the OTS’ prehearing deprivation of property does not violate due process under Fuentes.
B
Having concluded that due process does not entitle Spiegel to a predeprivation hearing, we must still determine whether the statute provides due process. Since the statute here mandates a full postdeprivation hearing subject to judicial review, the sole question is whether, under Mallen, the postdeprivation hearing is “sufficiently prompt.” Mallen, 486 U.S. at 241, 108 S.Ct. at 1788. Spiegel does not dispute the promptness of the postdeprivation hearing. Even if he had advanced that argument, however, his contention would have failed. The statute provides for a prompt administrative hearing, no later than sixty days from the notice of charges and temporary order. See 12 U.S.C. § 1818(b)(1). Section 1818(c)(2) further provides the party who has been served with the opportunity to seek, within ten days of the temporary order’s issuance, an injunction “setting aside, limiting, or suspending the enforcement, operation, or effectiveness of such order.” 12 U.S.C. § 1818(e)(2). The statute we upheld in Mallen did not even provide for such an opportunity for judicial review prior to the administrative hearing. It merely required an administrative hearing within thirty days of a written request and a written decision within sixty days of the hearing. We therefore hold that, under Mallen, the statute affords Spiegel adequate process. Morrissey, 408 U.S. at 481, 92 S.Ct. at 2600.
IV
In light of the foregoing, we hold that the issuance of a Temporary Order did not violate due process. Accordingly, the judgment of the district court permanently enjoining the Temporary Order is REVERSED, and the case is REMANDED to the district court to decide whether Spiegel is entitled to subsection (e)(2) injunctive relief on the merits or whether the OTS is entitled to an order enforcing its Temporary Order.
. Columbia is a state-chartered, publicly-held savings association with its principal place of business in Beverly Hills, California.
. The OTS’s authority to issue temporary cease and desist orders rests on 12 U.S.C. § 1818(c)(1), which read, at the time the temporary order issued, in relevant part, as follows:
Whenever the [OTS] shall determine that the violation or threatened violation or the unsafe or unsound practice or practices, specified in the [NJotice of [CJharges ... is likely to cause insolvency or significant dissipation of assets or earnings of the depository institution, or is likely to weaken the condition of the depository institution or otherwise prejudice the interests of its depositors prior to [permanent cease-and-desist order proceedings], [the OTS] may issue a temporary order requiring the depository institution or such party to cease and desist from any such violation or practice and to take affirmative action to prevent such insolvency, dissipation, condition, or prejudice pending completion of such proceedings. Such order may include any requirement authorized under subsection (b)(6)(B) of this section. Such order shall become effective upon service upon the depository institution or such institution-affiliated party [such as Spiegel] and, unless set aside, limited, or suspended by a court in proceedings authorized by [12 U.S.C. § 1818(c)(2) ], shall remain effective and enforceable pending the completion of the administrative proceedings pursuant to such notice....
. Subsection (c)(3)(A)(ii) authorizes the OTS to issue a temporary order requiring “affirmative action" to restore a financial institution’s books or records "to a complete and accurate state” when the institution’s books are so incomplete that the federal agency cannot determine its financial condition.
. Spiegel argues that we should avoid reaching the due process question by adopting his interpretation of the statute. See, e.g., Edward J. DeBartolo Corp. v. Florida Gulf Coast Building and Construction Trades Council, 485 U.S. 568, 575, 108 S.Ct. 1392, 1397, 99 L.Ed.2d 645 (1988) ("[WJhere an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress.”) This well-known principle of judicial restraint is inapplicable here because Spiegel’s interpretation of the statute is "plainly contrary to the intent of Congress.” Id.
. Because we hold that the Temporary Order did not violate due process, even assuming a deprivation occurred, we need not decide whether the district court erred in deciding that the Temporary Order effected a deprivation.
. Similarly, nothing in Barry v. Barchi, 443 U.S. 55, 99 S.Ct. 2642, 61 L.Ed.2d 365 (1979), or Dixon v. Love, 431 U.S. 105, 97 S.Ct. 1723, 52 L.Ed.2d 172 (1977), both cited by Spiegel, suggests that an independent check is required.
. These cases are cited in Fuentes, 407 U.S. at 92 nn. 24-28, 92 S.Ct. at 2000 nn. 24-28.
. Spiegel argues that safeguards are inadequate because when the government goes to court to enforce its order, the statute contains mandatory language: the district court "shall" issue an injunction enforcing the order if the court determines that there has been a "violation or threatened violation of failure to obey” the order, regardless of the order's actual content. See 12 § 1818(d). We believe that Spiegel’s reading of the statute is too rigid. We decline to interpret the statutory language as precluding any judicial review of the agency action at enforcement proceedings.
Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
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songer_usc1sect
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7201
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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 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, Appellee, v. Roland Leon HUGUENIN, Defendant, Appellant.
No. 90-1591.
United States Court of Appeals, First Circuit.
Submitted Dec. 19, 1990.
Decided Nov. 19, 1991.
Rehearing and Rehearing En Banc Denied Jan. 6, 1992.
Roland Leon Huguenin, pro se.
Lincoln C. Almond, U.S. Atty., and Margaret E. Curran, Asst. U.S. Atty., on brief for appellee.
Before CAMPBELL, SELYA and CYR, Circuit Judges.
PER CURIAM.
The appellant, Roland L. Huguenin, was convicted by a jury on three counts of attempting to evade and defeat the federal income tax in violation of 26 U.S.C. § 7201. On appeal, Huguenin raises eleven arguments, of which we will discuss only three: (1) that the indictment was duplicitous, (2) that Huguenin was wrongfully subjected to a competency examination, and (3) that he was wrongfully denied an opportunity to obtain information about the prospective jurors pursuant to 26 U.S.C. § 6103(h)(5). The other eight arguments range from the discarded to the frivolous; as none is of any substance, we need comment no further.
1. Duplicity
Huguenin contends that the indictment was defective because it was duplicitous, that is, because it charged more than one offense in a single count. 8 Moore’s Federal Practice ¶ 8.04[1] (2d ed.). Count one of the indictment alleged:
That during the calendar year 1984, ROLAND LEON HUGUENIN, a resident of Burrillville, Rhode Island, had and received adjusted gross income in the sum of $30,567.17; that upon said adjusted gross income there was owing to the United States of America an income tax of $4,459.00; that well-knowing and believing the foregoing facts, ROLAND LEON HUGUENIN, on or about April 16, 1985, in the District of Rhode Island, did willfully attempt to evade and defeat the said income tax due and owing by him to the United States for said calendar year by failing to make an income tax return on or about April 16, 1985, as required by law, to any proper officer of the Internal Revenue Service, by failing to pay to the Internal Revenue Service said income tax, and by filing a false W-4 form (Withholding Allowance Certificate) on or about March 6, 1984, with his employer, in which he stated that in both the previous year (1983) and the current year (1984) he did not owe any tax and had a right to a full tax refund, and filing an affidavit on or about September 30, 1987, with his employer, in which he swore that he was exempt from withholding with respect to income taxes because he had no income tax liability for the preceding year and he anticipated no income tax liability for the current year.
The other two counts are virtually identical to count one except for some of the allegations about dates and the amounts of money involved.
Pointing to Sansone v. United States, 380 U.S. 343, 354, 85 S.Ct. 1004, 1011, 13 L.Ed.2d 882 (1965), Huguenin contends that his indictment is duplicitous because it contains allegations that could be interpreted to charge him with both evasion-of-payment and evasion-of-assessment. We see no merit to this contention, since we can, as we recently did with respect to a similar indictment in United States v. Waldeck, 909 F.2d 555, 558 (1st Cir.1990), characterize Huguenin’s indictment as one in which the elements of evasion-of-payment are “overborne” by the “clear and unequivocal” evasion-of-assessment charges. No matter how one resolves the semantic question, moreover, it is beyond reasonable dispute that the indictment charged Huguenin with a single, cognizable crime, and that the jury convicted him of the same crime. See United States v. Dunkel, 900 F.2d 105, 107 (7th Cir.1990). This case therefore raises none of the concerns underlying the prohibition against duplicitous indictments. See United States v. Saleh, 875 F.2d 535, 537 (6th Cir.1989) (vice of duplicity is that a jury may find defendant guilty on the count without having reached a unanimous verdict on the commission of any particular offense). See also 8 Moore’s Federal Practice if 8.03[1] (other concerns underlying prohibition against duplicity include protection of defendant’s right to notice of the nature and cause of the proceedings against him, so that he may effectively prepare a defense).
2. Competency
On October 13, 1989 the district court held a hearing on Huguenin’s appeal of a magistrate’s denial of his motion to vacate the arraignment order. At the hearing, Huguenin refused to acknowledge his presence or to identify himself, and challenged the court’s jurisdiction over him and his case. After denying the appeal as frivolous, the court noted for the record that it had “serious doubts as to [Huguenin’s] competency to represent himself, and also serious doubt as to his full understanding of these charges, the seriousness of these charges, and what is about to occur.” More specifically, the court said:
... I’ve read all the papers and all the filings that have been made by this defendant, and it raises serious doubts in my mind as to the competency of this defendant to stand trial. It seems to me that this defendant is engaged in a process that psychiatrists and psychologists call denial. He is out of touch with reality in this case. He seems to avoid the reality of these charges and these proceedings, and persists in a bizarre form of behavior, rejecting anything that occurs in these proceedings.
The district court did not immediately commit Huguenin to a federal facility for examination, but attempted first to arrange an evaluation by a psychiatrist located in Boston. Huguenin, however, showed up at the scheduled examination accompanied by several “witnesses,” and refused to submit to the examination unless his companions were allowed to observe or he was allowed to tape record the session. After receiving the psychiatrist’s report of this aborted encounter, the district court held a hearing and, on December 12, 1989, granted the government’s motion to revoke bail and committed Huguenin for a determination of his competency to stand trial, pursuant to 18 U.S.C. §§ 4241 and 4247.
Some 77 days later, on February 26, 1990, Huguenin returned to court for a competency hearing. He represented himself, but was accompanied by stand-by counsel, who had been appointed by the court. The district court had by then received a competency report from federal psychiatric authorities which concluded, in the court’s paraphrase, that “Mr. Huguenin is competent to stand trial and to defend himself.” Neither Huguenin nor the government objected to the report or its conclusion; consequently, the district court reinstated bail. Responding to a request from Huguenin for a thirty-day extension “so I can put my material together and view it, consult with my standby counsel”, the court put the case on its trial calendar for the end of March. The calendar call did not, in fact, come until April 11.
Huguenin raises several challenges to the manner in which the court conducted the proceedings to determine his competency, of which we think only two bear comment. First, he claims that the district court had no right to subject him to a competency examination without his consent. This is incorrect. The statute provides that the district court may order a competency examination—either on the government’s motion or sua sponte, as well as at the defendant’s request—when it has “reasonable cause” to believe that the defendant may not be competent to “understand the nature and consequences of the proceedings against him or to assist properly in his defense.” 18 U.S.C. § 4241(a). Requiring the defendant’s consent (particularly where the defendant has chosen to represent himself) could very well defeat the purpose of the statute, since if the defendant is in fact incompetent, his decision to give or withhold consent to an examination cannot be considered valid. See United States v. Muncaster, 345 F.Supp. 970 (M.D.Ala.1972), aff'd 472 F.2d 1407 (5th Cir.), cert. denied, 412 U.S. 963, 93 S.Ct. 3021, 37 L.Ed.2d 1011 (1973) (if defendant “is competent, [he] needs no examination, and the examination will not help [him] ... ”, while if he “is incompetent, [he] cannot make the decision, and [his] agreement thereto is void”). We think that Hugue-nin’s sometimes bizarre behavior, which included a demand that the prosecutor and magistrate both be arrested, and his contention (in response to a direction that he obtain licensed rather than lay counsel) that there were no licensed lawyers in the State of Rhode Island, gave the court “reasonable cause” to invoke § 4241(a) and assure itself of Huguenin’s competency before proceeding to trial.
Huguenin’s second argument is that the court erred in allowing his commitment to extend to seventy-seven days. 18 U.S.C. § 4247(b) authorizes the court to commit a defendant for a competency examination under § 4241 for “a reasonable period, but not to exceed thirty days,” and to extend the commitment for fifteen more days, upon application of the director of the facility to which the defendant is committed, “upon a showing of good cause that the additional time is necessary to observe and evaluate the defendant.”
Huguenin’s prolonged detention thus does appear to have violated the time limits prescribed in the statute. The record discloses no request for an extension, and the total period of detention, in any case, exceeds the maximum statutory period by more than one month. The violation, however, does not require reversal or a new trial, for it in no way affected the fairness or reliability of the ensuing trial. Cf. Gerstein v. Pugh, 420 U.S. 103, 119, 95 S.Ct. 854, 865, 43 L.Ed.2d 54 (1975) (reiterating “established rule” that illegal arrest or detention does not void a subsequent conviction); United States v. Causey, 835 F.2d 1527, 1529 (5th Cir.1988) (delay in bringing defendant before magistrate may have violated Fed.R.Crim.P. 5(a) but did not affect validity of conviction where defendant did not show that he was prejudiced by delay); United States v. Studley, 783 F.2d 934, 937 n. 2 (9th Cir.1986) (same). Huguenin has no claim that the detention denied him his right to a speedy trial, since (a) it appears from the record that (once properly excludable delays are figured into the calculation) his trial began within the seventy-day period required by the Speedy Trial Act, 18 U.S.C. § 3161(c)(1) and (h), and (b) Hugue-nin failed to raise a timely speedy trial objection, which unless it is raised before trial by a motion to dismiss, is deemed to be waived. 18 U.S.C. § 3162(a)(2). See also United States v. Paradis, 802 F.2d 553, 556 (1st Cir.1986). Nor can Huguenin contend that his extended commitment deprived him of adequate time to prepare for trial: as noted above, the district court granted Huguenin’s request for a thirty-day continuance at the hearing on February 26. This gave him ample time to prepare his defense.
Finally, the record contains no suggestion that the competency examination and hearing process, however extended, may have produced an incorrect result— that is to say, that Huguenin was tried even though he was in fact incompetent. Although the conviction of an accused while he is mentally incompetent would be a deprivation of due process, Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975), which can never be harmless error, United States ex. rel. Lewis v. Lane, 822 F.2d 703, 706 (7th Cir.1987), procedural glitches during the competency determination may be deemed harmless error where there is no reasonable probability that different procedures would have produced a finding of incompetency. Id. See also Sturgis v. Goldsmith, 796 F.2d 1103, 1109 (9th Cir.1986); Hayes v. United States, 468 F.Supp. 179, 184 (S.D.Tex.1979).
3. Jury Information
On March 8, 1990, six weeks before his trial began, Huguenin asked the district court to give him a list of the names, addresses and Social Security numbers of all prospective jurors at least one month in advance of trial, so that he could ask the Internal Revenue Service for information about the venire members under 26 U.S.C. § 6103(h)(5). The statute provides:
In connection with any judicial proceeding described in paragraph (4) to which the United States is a party, the Secretary shall respond to a written inquiry from an attorney of the Department of Justice (including a United States Attorney) involved in such proceeding or any person (or his legal representative) who is a party to such proceeding as to whether an individual who is a prospective juror in such proceeding has or has not been the subject of any audit or other tax investigation by the Internal Revenue Service. The Secretary shall limit such response to an affirmative or negative reply to such inquiry.
The district court denied Huguenin’s motion. However, immediately prior to trial, at the prosecutor’s suggestion, the court initiated a two-step procedure of its own to obtain the information covered by Section 6103(h)(5).
When the court empaneled the jury on April 12, 1990, the prosecutor collectively asked the first twelve jurors called whether they or anyone in their immediate families had ever been audited or investigated by the IRS. Only one juror spoke up, saying that he had worked for a company that had been audited many times. This juror, along with several others, was excused as the parties exercised their peremptory challenges.
As the court called new jurors to replace those excused, the prosecutor asked each of them the same question: Have you, or any member of your immediate family, ever been audited or investigated by the Internal Revenue Service? At length, a panel of twelve jurors and two alternates was selected. Eleven of the jurors and one of the alternates had answered “No” to the prosecutor’s question concerning IRS audits or investigations, but two of the panel members had answered “Yes.” John Gomes, who participated in the jury's deliberations and verdict, said that he had been audited twelve or thirteen years earlier. Patricia Gilbert, who sat only as an alternate, said that she had been audited fifteen years earlier. Huguenin did not object to the empanelment of either Gomes or Gilbert.
As a second step, the district court directed the prosecutor to submit the empaneled jurors’ names and Social Security numbers to the IRS and to request a response under § 6103(h)(5). Several days later, the IRS responded that none of the fourteen jurors had been audited or investigated by the IRS. This response conflicted with the recollections of jurors Gomes and Gilbert, but neither Huguenin nor the government brought the inconsistency to the court’s attention, and the trial began on April 23.
The government eventually disclosed the source of the discrepancy. After Hugue-nin’s appeal had been briefed, the government advised us that the IRS’ response in this case “covered only the period from 1985 through 1990.” The IRS had so limited its search because it could conduct a rapid computerized search for § 6103(h)(5) information only for the current year and the five preceding tax years. A more complete search would require a time-consuming, manual review of the files “by year and by region of filing.”
We remanded the matter to the district court with instructions, among other things, to obtain a complete § 6103(h)(5) response from the IRS and to determine whether the response revealed any other discrepancies between the jurors’ voir dire answers and their tax records. The complete response verified the “Yes” answers given on voir dire by jurors Gomes and Gilbert, but contradicted the “No” answers given by jurors Henry and McGowan. According to the IRS records, Henry had been audited in 1978, McGowan in 1975.
We find no reversible error in this record. By its terms, the statute imposes a duty to provide information about prospective jurors only on the Secretary of the Treasury, not on the district court. We do not subscribe to the Ninth Circuit decisions which say that Section 6103(h)(5) gives tax defendants an “absolute right” not to proceed to trial without IRS record information about prospective jurors. See United States v. Sinigaglio, 925 F.2d 339, 341 (9th Cir.1991); United States v. Hashimoto, 878 F.2d 1126, 1130 (9th Cir.1989). Nothing in the statute or in its legislative history suggests that Congress intended the statute to override the district court’s authority to control its docket and its public duty to offer prompt and efficient administration of justice. United States v. Spine, 945 F.2d 143, 147-148 (6th Cir.1991). The district court has an implicit responsibility to promote compliance with § 6103(h)(5), but we must define this responsibility, and the district judge must discharge it, in a manner that takes into account those competing, and we think paramount, concerns. See United States v. Lussier, 929 F.2d 25, 30 (1st Cir.1991) (statute makes no provision for extreme alteration of normal trial arrangements).
We turn, then, to an evaluation of the procedures used in this case. The procedure that the district court sought to use was entirely proper; we have already held that the district court can “adequately enforce[] both the letter and spirit of the statute” by “winnowing the juror pool through questions on voir dire, directing the prosecutor to verify the empaneled jurors’ answers to § 6103(h)(5) information about them from the IRS, and in fact obtaining such verification....” United States v. Lussier, 929 F.2d at 30.
It is true that the IRS’ time-limited response to the prosecutor’s request prevented the court from obtaining complete verification of the jurors’ voir dire answers. But we see no practical way to have avoided that lapse. It is a fact (established on remand in this case by the district court) that a § 6103(h)(5) response going back more than six years requires the IRS to conduct a time-consuming manual search of records housed at one or more of its regional service centers. If, in a given case, the district court can reasonably arrange its docket to accommodate this fact, it may certainly do so, and, where feasible, this may be a desirable course. But we cannot say that a district court has committed reversible error when it attempts to balance competing interests by obtaining the next best alternative to a full § 6103(h)(5) response from another source: the jurors’ answers to voir dire questions.
Defendants in other cases involving § 6103(h)(5) — though not the appellant in this case — have challenged the sufficiency of voir dire questions about a juror’s audit history, pointing out that in the absence of a full response from the IRS the defendant has no way to confirm the accuracy of the jurors’ responses. See United States v. Spine, at 148. See also United States v. Sinigaglio, 925 F.2d at 342 (voir dire questions do not negate “risk of prejudice” raised by incomplete § 6103(h)(5) response). The Fifth and Sixth Circuits have responded to this objection by noting that the courts ordinarily presume veniremen to tell the truth on voir dire, even in response to “sensitive and potentially embarrassing questions.” United States v. Masat, 896 F.2d 88, 95 (5th Cir.1990). See also United States v. Spine, at 148.
We endorse this response, and offer another: even if some jurors were not to tell the truth on voir dire, the “risk of prejudice” to which their falsehoods would expose a tax defendant is ephemeral. If § 6103(h)(5) has any value, it is to alert a tax defendant (or tax prosecutor) to the possibility of bias caused by a prospective juror’s history of dealings with the IRS. See United States v. Hashimoto, 878 F.2d at 1135 (Wiggins, J., dissenting). Common sense tells us that a juror who falsely states that he has not been audited or investigated poses little real risk of bias to the defendant. The juror has either forgotten about the audit (as the district court believes happened here to Henry and McGowan), or has lied about it, perhaps out of embarrassment. In the first case the juror presents no more or less a risk of bias (to either the defendant or the government) than a juror who actually has not been audited or investigated — what the juror does not know cannot warp his judgment. In the second case, the government bears the only plausible burden of risk, since “it is difficult to conceive of a juror who has experienced the investigative powers of the I.R.S. favoring the government over the defendant, a coinvestigatee.” United States v. Johnson, 762 F.Supp. 275, 277 (C.D.Cal.1991).
A defendant might arguably risk prejudice were a court to seat a juror who falsely stated on voir dire that he had been audited, and the incomplete § 6103(h)(5) response failed to reveal the truth. Whether any prospective juror would ever tell such a lie is a matter of speculation, if not fantasy; in any event, it did not happen here.
Affirmed.
. Huguenin says that the trial judge could not exercise Article III powers over him since the judge would not tell Huguenin whether he (that is, the judge) pays his income taxes. A judge who pays the income tax, Huguenin argues, is subject to a diminution of salary in violation of Article III. Although this view once held some currency, see Evans v. Gore, 253 U.S. 245, 255, 40 S.Ct. 550, 553, 64 L.Ed. 887 (1920), it has long been superseded by the more sensible notion that to "subject [judges] to a general tax is merely to recognize that judges are also citizens, and that their particular function in government does not generate an immunity from sharing with their fellow citizens the material burden of the government whose Constitution and laws they are charged with administering.” O'Malley v. Woodrough, 307 U.S. 277, 282, 59 S.Ct. 838, 840, 83 L.Ed. 1289 (1939).
. For example, Huguenin argues that the district court lacked jurisdiction over both him and his crime because Huguenin was not arrested on property owned by the United States and because the crime of tax evasion is not codified in Title 18 of the United States Code. Termed a "silly claim” by one court, this argument has been rejected by a number of courts. See United States v. Koliboski, 732 F.2d 1328, 1329 (7th Cir.1984) and cases cited therein.
. In Sansone the Court said that "§ 7201 includes the offense of willfully attempting to evade or defeat the assessment of a tax as well as the offense of willfully attempting to evade or defeat the payment of a tax.” Id. (emphasis in original). Thus, the fact that Sansone had "stated to a revenue agent that he intended to report his 1957 income in some later year, even if taken at face value, would not detract from the criminality of his willful act defeating the 1957 assessment.” Id.
. Huguenin was arraigned on July 26, 1989. His trial began, for purposes of the Speedy Trial Act, when the jury was empaneled on April 11, 1990—259 days later. See United States v. Za-yas, 876 F.2d 1057, 1058 (1st Cir.1989). Of those 259 days, however, 191 were excludable. One hundred and one were taken up with the pend-ency of various pre-trial motions, and sixty more were devoted to arranging the psychiatric examination in Boston and dealing with Hugue-nin's refusal to participate in it. Finally, thirty of the seventy-seven days of Huguenin’s commitment were properly excludable, since Hu-guenin could legitimately have been detained for at least that much time. See United States v. Jones, 887 F.2d 492, 493 and n. 1 (4th Cir.1989) (where defendant was committed for sixty-six days, district court excluded thirty days for purposes of speedy trial calculation).
. The transcript shows that Huguenin (who largely conducted his own defense) was inexperienced at trial procedures, and obstinate and occasionally obstreperous in his attitude toward the court, but gives no hint that he was mentally incompetent at the time of trial.
.The IRS took nineteen business days to perform a "complete" search of the fourteen jurors’ tax records. The search was "complete” in that it went back to 1967, taking into account all of the records "capable of definitively showing whether or not a person has been audited or investigated." The IRS performed the "complete” search by manually reviewing microfilmed records located at the Andover Regional Service Center, where it keeps records of returns filed in New England. All of the jurors in this case had filed all of their returns for all of the years in question at the Andover center. Had any of the jurors ever filed returns in other areas of the country, the IRS would have had to perform manual searches at the service centers for those areas, and the search process would have lasted longer than nineteen days.
. In this case, the district court suggested that it might allow the IRS to conduct a complete search without seriously disrupting its docket by (1) hearing other trials while awaiting the search results, or (2) bringing in a special juror panel for the express purpose of empaneling a § 6103(h)(5) case several weeks before the anticipated trial date. Given, however, the variations in workload and personnel among different courts, we expressly refrain from requiring a court to adapt its schedule in this manner.
. Common sense evidently spoke to Huguenin, too: he did not challenge either of the two jurors who recalled being audited on voir dire.
. We question the materiality of the prejudice to the defendant even if the fantastic did occur. The risk to the defendant in that case is that the court will seat a juror who is not as biased against the government as his voir dire answer might have led the defendant to believe. That a juror may be less biased against the government than the defendant had hoped, however, does not mean that the juror will be more biased against the defendant. Rather, the potential disadvantage is the loss of an unfair advantage; the defendant’s only real risk is the risk that he will be judged by an impartial juror.
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 26? Answer with a number.
Answer:
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songer_appel1_5_2
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F
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "state government (includes territories & commonwealths)". Your task is to determine which category of state government best describes this litigant.
James Malcolm TUGGLE, Jr., Petitioner-Appellee, v. William SEABOLD, Warden, and David L. Armstrong, Attorney General, Respondents-Appellants.
No. 86-5172.
United States Court of Appeals, Sixth Circuit.
Argued Sept. 22, 1986.
Decided Nov. 24, 1986.
C. McGehee Isaacs (argued), Asst. Public Advocate, Frankfort, Ky., for petitioner-ap-pellee.
David L. Armstrong, Atty. Gen. of Kentucky, Frankfort, Ky., Gerald Henry (argued), for respondents-appellants.
Before LIVELY, Chief Judge, MERRITT, Circuit Judge, TIMBERS, Senior Circuit Judge.
The Honorable William H. Timbers, Senior Judge, United States Court of Appeals for the Second Circuit, sitting by designation.
LIVELY, Chief Judge.
The district court granted a writ of habe-as corpus to the petitioner, Tuggle, and the respondents appeal. Accepting the report and recommendations of the magistrate, the district judge concluded that the proceedings under which Tuggle was convicted of knowingly receiving stolen property denied Tuggle his constitutional right to due process of law. The due process violation consisted of questioning Tuggle at trial about his postarrest silence. See Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976).
I.
Sometime during the night of January 1-2, 1982 Leonard Burke and his fiancee were shot to death in Burke’s home in Hopkinsville, Kentucky, and the house was set on fire. Burke was a professional gambler who wore expensive jewelry and carried large sums of cash. The jewelry was missing when the bodies were discovered and only $500-600 was found in the house. Suspicion seems to have settled on Tuggle early in the investigation. Tuggle was a casual laborer who had a felony record for burglary. He had worked as “door keeper” at Burke’s gambling hall above a pool room for approximately one month, but was laid off or discharged by Burke on December 30, 1981.
The police could not locate Tuggle early in the day on January 2, 1982. However, late that afternoon Tuggle went to the Hopkinsville police station and was interviewed. He was not taken into custody at that time. Tuggle signed a consent for the police to search his automobile, but refused to tell the police where he had been the previous night. The police interrogated Tuggle several times later in January, but he continued to refuse to discuss his whereabouts on the night of the crimes.
On February 19, 1982, after some previous arrangements through an informer named Doug DeRose, Tuggle delivered some of Burke’s jewelry to an undercover police officer in exchange for $10,000. This transaction was monitored and tape recorded by other officers who immediately moved in and arrested Tuggle. One of the officers testified that he told Tuggle that he was under arrest and advised him of his “rights.” Tuggle was indicted on two charges of murder, two charges of burglary and one charge of arson. In a subsequent indictment he was charged with knowingly receiving stolen property. All charges were tried together.
Tuggle elected to testify at trial. On direct examination Tuggle’s attorney asked about his trip to the police station on January 2. Tuggle testified that he went to the police station because his father and a friend told him the police were looking for him. He consented to a search of his car, but testified that when questioned concerning his whereabouts the night before, “I didn’t have anything to say to them.” Tug-gle explained that he was still on parole from his previous convictions and that he had violated conditions of parole by going to Tennessee the night of January 1-2. When Tuggle’s attorney asked about other interrogations prior to his arrest, Tuggle stated that he never told the police, or anyone else where he had been, because to have told would have revealed a parole violation, and he had no concrete alibi.
Tuggle testified extensively about his contacts with DeRose in the days immediately preceding his arrest. He said that DeRose had Burke’s jewelry in his possession and frightened Tuggle into helping him dispose of it. Tuggle testified that when DeRose showed him the jewelry on February 17 he recognized it as Burke’s. He admitted handling the jewelry at the informer’s home, but denied having it in his possession between February 17th and 19th. DeRose testified that Tuggle had the jewelry in his possession on February 17 when he showed it to DeRose and boasted of its value. Having already agreed to cooperate with the police, DeRose made the proposal to sell the jewelry to the undercover officer posing as his uncle. Tuggle’s version of the events was that DeRose kept the jewelry until the night of February 19 when he placed it in an automobile and directed Tuggle where to find it for delivery to his “uncle.” Tuggle’s attorney did not ask him on direct examination whether he made any statement at the time of his arrest or thereafter.
On cross-examination the prosecutor asked Tuggle why he did not tell the police, or anyone else, where he had been on the night of the murders. Tuggle gave the same answer he had given on direct examination. The prosecutor then started questioning Tuggle about the events of February 17-19. Defense counsel objected reminding the court that Tuggle was arrested on February 19. The trial court ruled that the questions still related to Tuggle’s prearrest silence and overruled the objection. This ruling was correct since no questions had been asked at that point which related to the period after Tuggle’s arrest. The prosecutor then asked, referring to Tuggle’s version of the events leading up to his arrest, “In the past five months that you have been in custody, you have not told this to any law enforcement official or any member of the general public?” Without objection, Tuggle answered that he had told his attorney, but not any law enforcement official. Tuggle was also asked why he had not just explained to the police at the time of his arrest “what had taken place.” Again, there was no objection, and Tuggle replied that he was intoxicated, upset and “in shock” immediately after his arrest.
In closing argument Tuggle’s attorney talked about his client’s prearrest silence and reminded the jury of Tuggle’s reasons for not revealing his whereabouts. The attorney did not mention Tuggle’s postar-rest silence. However, in arguing for the Commonwealth, the prosecutor did comment. Referring to Tuggle’s struggles with the arresting officers while being taken to jail, the prosecutor asked:
Did that sound like the actions or the reactions of a man who had been set up, who was innocent, or does it sound like the reactions of a man who is guilty, who thought he’d gotten away with something and realized he’d gotten caught and got mad? Did he tell the police right then what had gone on?
II.
The jury acquitted Tuggle of all the charges except that of knowingly receiving stolen property and fixed his punishment at five years in prison. He was also found, in a bifurcated hearing, to be a persistent felony offender and this resulted in an enhanced sentence. The Supreme Court of Kentucky affirmed the conviction in an unpublished opinion, and this habeas corpus action followed.
On appeal from the order granting habe-as relief the warden and Attorney General (the Commonwealth) make several procedural arguments in addition to the contention that the district court erred in its application of Doyle v. Ohio to the facts of this case.
The Commonwealth argues, first, that Tuggle failed to exhaust his available state remedies, a requirement of 28 U.S.C. § 2254(b) for granting a writ of habeas corpus to a person in state custody. Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). Tuggle filed a petition for rehearing in the Supreme Court of Kentucky in which he reargued only one of five issues contained in his brief on direct appeal. The finding that there had been no Doyle violation was not discussed. The Commonwealth asserts that Tuggle thereby abandoned the claim that he was denied due process when questioned about his postarrest silence, and that he was barred from raising that issue in these habeas corpus proceedings.
The second issue raised by the Commonwealth on appeal is that habeas relief may not be granted because the Supreme Court of Kentucky decided Tuggle’s appeal on independent and adequate state procedural grounds. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Tuggle's retained counsel objected to the prosecutor’s questions to Tuggle about his prearrest silence concerning his whereabouts on January 1-2, but did not object to the questions about his failure, following his arrest, to tell his version of how Burke’s jewelry came into his possession. Kentucky has a contemporaneous objection rule. Kentucky Rules of Criminal Procedure (RCr) 9.22; Turner v. Commonwealth, 460 S.W.2d 345 (Ky.1970).
The third procedural issue rests on the Commonwealth's contention that the district court failed to consider the matter de novo following objections to the magistrate’s report, in that the district court did not “articulate” specific responses to the objections.
Finally, the Commonwealth maintains that the holding of the district court on the substantive Doyle claim is erroneous, or, in the alternative, that any error in this regard was harmless.
III.
We reject each of the procedural arguments of the Commonwealth.
A.
There is no requirement that a litigant petition for rehearing after an appellate court issues a final decision. The rule governing petitions for rehearing in the Supreme Court and Court of Appeals of Kentucky, Civil Rule (CR) 76.32(1)(a), provides that “[a] party adversely affected by an opinion of the Supreme Court or the Court of Appeals in an appealed case may petition the Court for (i) a rehearing....” (Emphasis added). The Supreme Court of Kentucky has rejected an argument that is analogous to the one made by the Commonwealth. In disposing of an argument that a person convicted in Kentucky must seek discretionary review in the Supreme Court or the Court of Appeals from a trial court’s denial of relief under a state postconviction proceeding in order to preserve his right to pursue federal habeas relief, the Supreme Court stated, “The decision of the Court of Appeals denying the RCr 11.42 was final state action, without a useless motion for discretionary review.” Freeman v. Commonwealth, 697 S.W.2d 133, 134 (Ky.1985). The same reasoning applies to discretionary review of the final decision of the Supreme Court; nothing further is required in order to preserve the right to seek federal habeas relief. Tuggle argued the Doyle issue fully in his brief to the Supreme Court and, as we discuss, infra, the court ruled on the issue in its opinion.
In Coleman v. Maxwell, 351 F.2d 285 (6th Cir.1965), the district court dismissed a habeas corpus petition for failure to exhaust state remedies. The petitioner had appealed his conviction to the Ohio Court of Appeals, where it was affirmed. Thereafter, the petitioner took an appeal to the Supreme Court of Ohio on the same grounds, and that court dismissed the appeal. In reversing the district court’s dismissal of the petition, this court stated:
It is clear to this court that once an issue of asserted federal constitutional violation has been presented to the highest state court in the state concerned, that the doctrine of exhaustion of remedies does not require futile repetitive presentation to such court by repeated attempts through a variety of motions.
Id. at 286 (citation omitted). We paraphrased Coleman v. Maxwell in Duke v. Wingo, 386 F.2d 304, 306 (6th Cir.1967):
Once an issue of asserted constitutional violation has been presented to the State’s highest court, the doctrine of exhaustion of remedies does not require future repetitive presentations to such court by additional attempts through a variety of successive motions.
See also Jones v. Foltz, 646 F.2d 1172 (6th Cir.1981); Hill v. Anderson, 492 F.Supp. 930 (E.D.Mich.1980).
The exhaustion requirement is satisfied when a petitioner has “fairly presented” the substance of each federal claim to the state courts. Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 277, 74 L.Ed.2d 3 (1982); Koontz v. Glossa, 731 F.2d 365, 369 (6th Cir.1984). There can be no doubt that this requirement was met in the present case with respect to the Doyle claim.
B.
The state court record does not support the Commonwealth’s contention that the Supreme Court of Kentucky decided Tuggle’s appeal on his counsel’s failure to object to the prosecutor’s questions about Tuggle’s postarrest silence. The opinion of the Kentucky Court addressed the issue as follows:
The appellant on direct-examination first introduced evidence of his post-arrest silence. He was not prejudiced by cross-examination concerning the failure to offer a defense. Tuggle opened the door to the entire subject. One who first introduces evidence pertinent to a field of inquiry that is not competent or relevant to the issue cannot complain if his adversary is allowed to avail himself of such an opening. Richardson, Kentucky Law of Evidence § 11.9 (1973).
In these circumstances, there was no violation of the principles of Doyle v. Ohio, 426 U.S. 610, 90 [96] S.Ct. 2240, 49 L.Ed.2d 91 (1976).
If the Supreme Court of Kentucky had affirmed Tuggle’s conviction because of a procedural default consisting of failure to object to a question or response, our task would be a different one. However, the Kentucky Court did not mention the contemporaneous objection rule in its opinion. Where a state court chooses not to rely on a state procedural default in a criminal appeal but decides the merits of the case, a federal habeas court does not reach the “cause” and “prejudice” inquiry of Wainwright v. Sykes. Martin v. Foltz, 773 F.2d 711, 715 (6th Cir.1985); Hockenbury v. Sowders, 620 F.2d 111, 115 (6th Cir.1980), cert. denied, 450 U.S. 933, 101 S.Ct. 1395, 67 L.Ed.2d 367 (1981).
While the Supreme Court of Kentucky referred to a state rule of evidence as a basis for finding no Doyle violation, nevertheless, it appears to have considered and decided the merits of the claim. To the extent that the reference in the opinion to a Kentucky evidentiary rule might be construed ás a decision of the Doyle claim on the basis of independent and adequate state grounds, we are constrained to hold that the record does not support the conclusion that Tuggle’s attorney opened the door to inquiry about his postarrest silence. The defense attorney clearly first raised the matter of Tuggle’s refusal to tell anyone during the prearrest period of his whereabouts on January 1-2, but only the prosecutor questioned Tuggle about his silence following the arrest. The statement to the contrary in the state court's opinion is not fairly supported by the record. 28 U.S.C. § 2254(d)(8).
C.
When a district judge refers a habeas corpus petition to a magistrate for hearing and recommendations for disposition, and a party files timely objections to the proposed findings and recommendations, a judge of the referring court “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1) (1982).
The district judge in the present case states in an amended order and judgment:
This matter having been considered by U.S. Magistrate W. David King; it appearing that the magistrate has filed his report and that the petitioner has filed his objections to magistrate’s report; the court having considered de novo those portions of the magistrate’s report to which objection is made by the petitioner; the court has determined that there appears to be no factual disputes which would warrant a hearing; and the court having determined that the magistrate’s report should be accepted in whole and the findings of fact and conclusions of law be fully incorporated by reference herein.
The Commonwealth argues that the district court failed to comply with § 636(b)(1) because it did not “articulate” its reasons for overruling the objections. No authority is cited for this assertion, and we know of none. When circumstances demonstrate that a district court has not conducted the required de novo review, the case must be remanded for compliance with the statute. See Hill v. Duriron Co., 656 F.2d 1208 (6th Cir.1981) (record disclosed that transcripts of proceedings before the magistrate had not been filed when district court overruled objections based on evidentiary issues). However, that is not the situation here. The statement of the district court in this case satisfies us that the requirement of a de novo review was met. See United States v. Larson, 760 F.2d 852, 857 (8th Cir.), cert. denied, — U.S. -, 106 S.Ct. 143, 88 L.Ed.2d 119 (1985) (statement in order that district judge made de novo review of record and all objections to magistrate’s findings and recommendations was sufficient.) No further articulation was required.
IV.
It is not a violation of due process for a prosecutor to ask a criminal defendant about prearrest silence. Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980). In overruling Tuggle’s objections to the prosecutor’s questions about his prearrest silence the state trial judge made the distinction between the two situations and exhibited a clear understanding of the Doyle rule. The trial judge had no opportunity to rule on the prosecutor’s questions about Tuggle’s postarrest silence because there was no objection. Nevertheless, this matter was not first raised by the defendant, and the prosecutor’s questions and comments about Tuggle’s postarrest silence violated Doyle.
This court held in Martin v. Foltz, 773 F.2d 711, 715 (6th Cir.1985), that a Doyle error may be harmless. The test for harmless constitutional error is whether a court is “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, 828, 17 L.Ed.2d 705 (1967). The district court did not consider whether the error in this case was harmless, although the record appears to sustain the Commonwealth’s claim that this issue was preserved for habeas review.
If Tuggle had been convicted of murder, burglary, or arson, there is little doubt that the error could not have been harmless. There was no direct evidence placing Tug-gle in or near the Burke home after nightfall on January 1, 1982, and his possession of the jewelry was the only evidence linking him to those crimes. His response to this circumstantial evidence was that he was coerced into helping a man whom he feared dispose of the jewelry that was already in that person’s possession. The questions and comments of the prosecutor were intended to convey to the jury that this explanation was a recent fabrication, and thus remove doubt that Tuggle acquired the jewelry as part of a more serious crime sortie.
The charge on which Tuggle was convicted, knowingly receiving stolen goods, stands on a somewhat different footing. There was direct evidence of the most damning type with respect to this charge. In fact, Tuggle admitted all elements of the offense. Kentucky Revised Statutes (KRS) 514.110 defines the offense as follows:
A person is guilty of receiving stolen property when he receives, retains or disposes of movable property of another knowing that it has been stolen, unless the property is received, retained or disposed of with intent to restore it to the owner.
Tuggle testified that he recognized the jewelry as the property of Burke when it was shown to him and knew it was stolen, that he received it from his former partner in crime and that he disposed of it by delivering it to the undercover officer in exchange for $10,000. His defense was that Doug DeRose tricked him into handling the jewelry and then coerced him into making the delivery.
During the trial no one concentrated on the relatively minor offense of receiving stolen goods. Naturally enough, their concern was with the more serious charges. It seems likely that the jury found the link between the jewelry and the murders too tenuous to serve as the sole evidence of guilt of two capital offenses and the other serious felonies. The jurors could have reached the conclusion that the Commonwealth did not prove guilt of those charges beyond a reasonable doubt without accepting Tuggle’s explanation of how he happened to be in possession of the jewelry. DeRose was a convicted felon and he and Tuggle had engaged in joint criminal activities previously, including “fencing” stolen property. The evidence of coercion was weak and totally unsubstantiated. Under these circumstances, the facts as disclosed in testimony of several witnesses and a taped recording of the transaction, not the prosecutor’s questions and comments, may have resulted in Tuggle’s conviction.
This is a matter to be considered in the first instance by the district court. The judgment of the district court is vacated and the case is remanded to determine whether the constitutional error disclosed by this record was harmless beyond a reasonable doubt.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "state government (includes territories & commonwealths)". Which category of state government best describes this litigant?
A. legislative
B. executive/administrative
C. bureaucracy providing services
D. bureaucracy in charge of regulation
E. bureaucracy in charge of general administration
F. judicial
G. other
Answer:
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songer_respond1_1_4
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A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "financial institution". Your task is to determine what subcategory of business best describes this litigant.
KNOWLES, County Treasurer, v. FIRST NAT. BANK OF SHENANDOAH, IOWA, et al.
No. 9201.
Circuit Court of Appeals, Eighth Circuit.
April 14, 1932.
L. H. Mattox, of Shenandoah, Iowa, for appellant.
Addison G. Kistle, of Council Bluffs, Iowa (George S. Wright, of Council Bluffs, Iowa, on the brief), for appellees.
Before Stone and Booth, Circuit Judges, and Wyman, District Judge.
STONE, Circuit Judge.
The First National Bank of Shenandoah, Iowa, brought a suit against the treasurer of Page county, Iowa, to enjoin collection of taxes assessed against its shares of stock. After a hearing upon the merits, the court granted a permanent injunction. From that decree, this appeal is brought.
One basis of this suit is that the assessments for the years 1920, 1921, 1925, and 1926 violated the statutory requirement that shares of national banks should not -be taxed by a state at a greater rate than that “assessed upon other moneyed capital in the hands of individual citizens of such State coming into competition with the business of national banks.” USCA title 12, § 548. The situation as shown by the evidence and as found by the trial eourt and the special master clearly is that there was, during the years involved here and as to this complainant and other national banks, a consistent policy of discrimination pursued by the taxing officials. This discrimination was worked out as follows. Under the laws of Iowa (Code Iowa 1924, § 6984 et seq.), different rates of taxation were required upon different designated classes into which property, was to be divided. Two of these classes were “moneyed capital” and “moneys and credits.” The rate upon the former was higher than that upon the latter. The taxing officials consistently placed all bank stocks in the former class and no other property therein, while they-placed all other moneys and credits held by individuals in the latter class. As a very substantial amount of these moneys and credits were of the same character as those constituting the loaning feature of the banks, this difference in classification, which determined a different tax rate, constituted an obvious discrimination against the bank stock.
This evidence makes clear that there was a large amount of money and credits used in direct competition with this complainant (during the tax years here involved) which was classified at the lower rate as “moneys and credits,” while the stock of this hank was placed in the higher rate classification as “moneyed capital.” The evidence leaves no doubt of a discrimination such as is forbidden by section 548.
The serious question of law at the time this appeal was presented was whether this complainant was barred from judicial relief because it had failed to avail itself of an administrative remedy before coming into court. The contention of appellant was that the statutes of Iowa (Code 1924, § 7132) provided an adequate administrative remedy for correction of such discriminations by a hearing before a “Board of Review.” A few days after this case was submitted to us, the Supreme Court handed down an opinion which we think is decisive of this appeal. The case of Iowa-Des Moines National Bank v. Bennett, 284 U. S. 239, 52 S. Ct. 133, 135, 76 L. Ed. -, is a mandamus proceeding brought in a state court of Iowa, Iowa Nat. Bank v. Stewart, 232 N. W. 445, by a national bank against county officers to compel tax refunds. The basis of the suit is precisely the same discrimination and violation of section 548 as here. The case came to the Supreme Court by certiorari to the Supreme Court of Iowa, which had held: “That no right of petitioners under the state law was violated, because they were not overassessed; that no right under the federal law was violated, because the lower taxation of their competitors due to usurpation by officials was not an act of the state;' and that the discrimination thus effected was remediable only by correcting the wrong under the state law in favor of the competitors and not ‘by extending * * * the benefits as of a similar wrong* to the petitioners.”
The Supreme Court shortly disposed of a situation exactly like that before us, as follows: “Other competing moneyed capital in the form of investments held by individuals and by a few foreign, corporations was wrongfully classified by the assessor as ‘moneys and credits,’ and so returned upon the assessment rolls to the county auditor, who extended the assessments upon the tax books accordingly, and applied to them the 5-mill levy. The Supreme Court of Iowa held that the right to complain of this discrimination had been lost by failure to avail of the method of review prescribed by the state. We have no occasion to consider this matter, as we hold that the more favorable taxation of the competing domestic corporations entitles the petitioners to the relief sought.”
The decree of the trial court is affirmed.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "financial institution". What subcategory of business best describes this litigant?
A. bank
B. insurance
C. savings and loan
D. credit union
E. other pension fund
F. other financial institution or investment company
G. unclear
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.
Thomas M. RIVES, Superintendent of the Washington Asylum and Jail, Appellant, v. Harry T. JOHNSON, Appellee.
No. 6264.
United States Court of Appeals for the District of Columbia.
Decided Nov. 5, 1934.
Before MARTIN, Chief Justice, and ROBB, HITZ, and GRO'NER, Associate Justices.
HITZ, Associate Justice.
This appeal relates to an order of the Supreme Court of the District in a habeas corpus proceeding discharging appellee, Johnson, who had been sentenced and committed to jail on June 30, 1933, for violation of the National Prohibition Act (27 USCA), and involves the same question decided this day in Rives v. O’Hearne, 64 App. D. C. 48, 73 F.(2d) 984. For the reasons therein stated, the order discharging appellee is reversed.
Reversed.
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
|
songer_usc1sect
|
1255
|
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 8. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
Lyonel DOR, Petitioner-Appellant, v. DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE, Respondent-Appellee.
No. 937, Docket 88-6270.
United States Court of Appeals, Second Circuit.
Submitted March 30, 1989.
Decided Dec. 8, 1989.
Mark Eli Nerenberg (Galef & Jacobs, New York City), for petitioner-appellant.
Noel Anne Ferris, Sp. Asst. U.S. Atty., New York City (Benito Romano, U.S. Atty., S.D.N.Y., Harriet L. Goldberg, Asst. U.S. Atty., of counsel), for respondent-appellee.
Before FEINBERG, PIERCE, and BROWN , Circuit Judges.
Hon. John R. Brown, Senior Circuit Judge, United States Court of Appeals for the Fifth Circuit, sitting by designation.
JOHN R. BROWN, Senior Circuit Judge:
Lyonel Dor appeals a district court decision denying his application for a preliminary injunction and dismissing his petition for a writ of habeas corpus. Dor, a Haitian, was ordered deported in 1985 after serving a prison sentence for manslaughter. A final order of deportation was stayed by this Court in 1987, however, so that the Immigration and Naturalization Service (INS) could determine whether Dor was entitled to relief under a recently passed immigration law. We reject Dor’s arguments that his continued detention (i) is without rational basis, (ii) extends beyond an INS six-month detention limitation, and (iii) violates due process. Furthermore, we find that the terms of our stay have been satisfied, i.e., that Dor’s application for adjustment of status under the new immigration law has been sufficiently adjudicated by the INS. Accordingly, we affirm the district court’s ruling and we vacate our earlier stay.
From Haiti to INS Detention
Dor, a citizen of Haiti, entered the United States at the age of 12 without valid entry documents in 1972. Six years later he was convicted of first degree manslaughter for participating in the murder of his aunt. Dor served 672 years in prison and then was released into the custody of the INS on June 20, 1984. He remains in INS custody today, more than 5 years after completing his sentence.
On December 8, 1982 the INS instituted deportation proceedings against Dor on the ground that he had entered the United States without valid entry documents. Having conceded that he indeed illegally entered the United States, Dor applied for asylum and a withholding of deportation. An Immigration Judge on April 30, 1985 denied his request for asylum and a withholding of deportation on the grounds that Dor is “a danger to the community of the United States” given the role he played in the slaying of his aunt, and ordered his deportation (event 3). See Immigration and Nationality Act (INA), § 243(h)(2)(B), 8 U.S.C. § 1253(h)(2)(B) (1952); 8 C.F.R. § 208.8(f) (1988). Dor unsuccessfully appealed that decision to the Board of Immigration Appeals (BIA) (event 4). In its dismissal order, the BIA determined that Dor was eligible for neither a withholding of deportation nor asylum due to his conviction for first degree manslaughter. Subsequently the BIA also denied Dor’s motion to reconsider and to reopen the deportation hearing (event 7; 7/3/86). Dor became subject to a final order of deportation on December 31, 1985.
Having exhausted his administrative remedies, Dor sought judicial review of the deportation order resulting in a stay of the order. 8 U.S.C. § 1105a(a)(3). In December 1986 this Court affirmed the order of deportation, (event 8; 12/24/86) but then stayed the issuance of its mandate in response to the suggestion that under the then-recently promulgated Immigration Reform and Control Act of 1986 (IRCA), Pub.L. 99-603, Dor as a Haitian might qualify for an adjustment of status and thus avoid deportation by attaining the status of lawfully admitted permanent resident (event 15; 1/20/87). On January 20, 1987 the stay of mandate was modified by extending it from 21 days to “until such time as the Immigration and Naturalization Service adjudicates the applications for relief from deportation by adjustment of status to lawful permanent resident status under [IRCA § 202].” (event 15)
Nearly three years have elapsed since this Court stayed Dor's deportation. On January 15, 1987 Dor filed his application for adjustment of status with the District Director of INS (event 14). The District Director rejected Dor’s application for adjustment on the grounds that he was statutorily ineligible (event 17; 1/29/87). The Administrative Appeals Unit (AAU) then advised that Dor “may be eligible to file an application before the District Director (event 19; 10/16/87).” Thereupon, on December 7, 1987, the District Director denied the application without a hearing (event 20). The District Director concluded that Dor was not eligible for adjustment under IRCA § 202(a)(3) because his manslaughter conviction made him an alien who had “been convicted by a final judgment of a particularly serious crime,” under § 243(h)(2)(B) of the INA. Dor filed a notice of appeal to the AAU (event 21; 12/28/87), and requested the District Director for a hearing. Before the AAU granted an appeal, the District Director granted Dor a hearing, but again ruled against Dor’s application (event 22; 1/23/89).
It Ain’t Over Til It’s Over
Dor has gone back and forth between the District Director and the AAU in his quest for adjustment. Throughout these legal maneuvers, this Court's stay of mandate alone has kept Dor from being deported. In August 1988 Dor filed a petition in the district court for habeas corpus and mandatory and injunctive relief pursuant to 8 U.S.C. § 1329 (event 31). Specifically Dor seeks release from INS custody while his quest for adjustment proceeds at a snail’s pace. At the time the district court denied Dor’s application for a preliminary injunction and dismissed the petition for a writ of habeas corpus, 697 F.Supp. 694 (S.D.N.Y. 1988) (event 32; 9/29/88), the January, 1989 decision of the District Director had not issued.
Today as we review the district court’s denial of habeas corpus relief, the AAU has affirmed (event 24; 6/12/89) the latest decision of the District Director (event 22; 1/23/89), finding once again that Dor does not have grounds for attaining readjustment under IRCA. On August 4, 1989 Dor filed a motion pursuant to 8 C.F.R. § 103.5(a) (1989) seeking AAU reconsideration of that AAU decision (event 25). The AAU denied this motion for reconsideration on September 18, 1989 (event 26), holding that it’s previous decision (event 24) thoroughly reviewed the issues and arguments presented in the appeal and reiterated on motion. Meanwhile, on October 11, 1989, the BIA heard oral argument on Dor’s motion to reopen his deportation proceedings (event 10). This most recent motion to reopen the deportation proceedings has also been denied (event 11; 11/2/89).
I. Issues on Appeal
We are presented initially with the question of whether the district court erred in dismissing Dor’s petition for a writ for habeas corpus and request for injunctive relief. We wholeheartedly embrace the district court’s conclusions that Dor’s continued detention by the INS is legal. We reject Dor’s arguments that (i) the detention without bond was without rational basis; (ii) the INS’ failure to deport him within six months of the entry of the final deportation order precludes his further detention; and (iii) his extended detention violates due process.
(i) Rational Basis?
The Haitian-Cuban Adjustment provision of IRCA, § 202(a), excludes from its coverage those aliens described in the earlier immigration statute, INA § 243(h), 8 U.S.C. § 1253(h). For our purposes, the pertinent subsection of § 243(h) is 243(h)(2)(B), which states that a withholding of deportation shall not be granted when “the alien, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States.” INA § 243(h)(2)(B), 8 U.S.C. § 1253(h)(2)(B). As the district court pointed out, the Immigration Judge has already made an unambiguous finding in the deportation proceedings (event 3; 4/30/85), and this has been confirmed by the BIA (event 4; 8/20/85), that appellant Dor is within those class of persons defined by § 243(h)(2)(B) of the Act, 8 U.S.C. § 1253(h)(2)(B).
Dor makes several arguments to challenge the effect of this characterization by the immigration authorities. None of these arguments are persuasive. First, Dor claims that this Court has already determined that his homicide conviction is insufficient to show that he is “dangerous” under INA 243(h)(2), 8 U.S.C. § 1253(h)(2). Dor bases this claim solely on our earlier rejection (event 18; 2/9/87) of the Government’s motion to vacate the stay of the mandate (event 16; 1/28/87). But in rejecting the Government’s motion to vacate the stay, we neither intended nor intimated a particular substantive ruling, explicit or implied, regarding the merits of either party’s claim. Our stay of the mandate was designed simply to allow Dor the ability to maintain administrative review in the INS in light of the passage of IRCA. Since Dor is a Haitian, and IRCA contains a special provision for Haitians, (the Cuban-Haitian Adjustment provision, § 202), we merely considered the obvious possibility that Dor’s alien status might be adjusted pursuant to that Act. However, well-established doctrine prevented our judicial interference in administrative decision-making at that incomplete stage of the process.
Second, Dor contends that the Immigration Judge and the BIA have no jurisdiction to determine his eligibility under IRCA because the act requires the Attorney General to make the status eligibility determination. We agree. The proper authority to decide Dor’s adjustment application is the Attorney General, and he has delegated that authority, by regulation, to the District Director. 8 C.F.R. § 245.6 (1989). And as we observed, supra, Dor has been pursuing adjustment of status before the District Director and, on appeal, before the AAU. However, merely because the District Director and the AAU have exclusive jurisdiction over Dor’s adjustment application does not prevent them from relying on the pre-IRCA interpretation by the Immigration Judge and the BIA that he was not entitled to a withholding of deportation or a grant of asylum under § 243(h)(2)(B) and 8 C.F.R. § 208.8(f). See note 7, supra. The issue was directly and necessarily involved. The district court was entitled to determine this was a rational decision.
(ii) Six Month Deadline
Dor next argues that § 242(c) of INA, 8 U.S.C. § 1252(c), limits the Attorney General to a six month detention period, and since Dor has been held much longer than six months, his release is required. But Dor misinterprets the language of the statute and ignores prior decisions of this Court. First, the statute clearly states that the commencement date for the six month period is the date of the final order of a court, where judicial review is sought. But the final order of this Court has not been entered since Dor successfully pursued, and obtained, a stay of the mandate (event 15; 1/20/87). As the district court found, this case is governed by United States ex rel. Cefalu v. Shaughnessy, 117 F.Supp. 473, 474 (S.D.N.Y.), aff’d on opinion below, 209 F.2d 959 (2d Cir.1954). When the actions of the alien prevent the INS from effecting deportation, delaying tactics do not support the alien’s claim for release from deportation. See also Doherty v. Meese, 808 F.2d 938, 941 (2d Cir.1986); United States ex rel. Lam Tuk Man v. Esperdy, 280 F.Supp. 303, 304 (S.D.N.Y.1967). Dor contends that the government’s formulation of INA § 242(c), 8 U.S.C. § 1252(c) could lead to the detention of an alien in perpetuity, if the INS refrained from adjudicating a pending application for administrative relief for whose explicit adjudication a Court of Appeals has ordered deportation stayed. But this argument assumes the absence of facts critical to the case at hand, i.e., that Dor is largely responsible for the very delay of deportation of which he complains.
(Hi) Due Process
Dor’s due process claims fail for the same reason. Dor stresses this Court’s decision in United States v. Gonzales Claudio, 806 F.2d 334 (2d Cir.1986), which held that where the Government, “even if not deserving of blame, bears a responsibility for a portion of the delay significant enough to add considerable weight to the [petitioner’s] claim that the duration of detention has exceeded constitutional limits,” lengthy detention pending resolution of a criminal charge “would exceed even the flexible standards of due process.” Id., at 343.
We find Gonzales Claudio not controlling. First, a deportation proceeding is not a criminal proceeding (Gonzales Claudio ) and the full trappings of legal protections that are accorded to criminal defendants are not necessarily constitutionally required in deportation proceedings. See Nee Hao Wong v. INS, 550 F.2d 521, 523 (9th Cir.1977).
Second, while we found that the defendants in Gonzales Claudio bore some responsibility for the delays in that case, a significant portion of the responsibility for the delay fell on the Government. Id. at 342. In Dor’s case, on the other hand, the INS issued its first decision on Dor’s application for Cuban-Haitian Adjustment on January 29, 1987, two weeks after it was filed. Assuming, without deciding, that within the framework of this Court’s very generous stay it was permissible for Dor to pursue repeated, unsuccessful appeals of the various administrative decisions that he is statutorily barred from adjustment, he comes perilously close to Gonzales Claudio’s admonition that “[parties] cannot litigate pretrial matters to the ultimate degree and then rely on the extra time attributable to their * * * practice to claim that the duration of pretrial detention violates due process.” Id. at 341. After all, Dor’s continued presence in the United States, and his sustained detention, result from the simple fact that — at his urgent request and by our stay — we allowed his application to be exhaustively adjudicated by the INS. Dor has failed to demonstrate that his continued detention by the INS is a denial of due process requiring his release.
II. What’s in Store for Dor?
Dor has vigorously cultivated every avenue of relief open to him: he has sought clemency from the Governor of New York, pursued repeated appeals of his adjustment application to the AAU, tried new motions to reopen his deportation proceedings with the BIA, endeavored to have his felony conviction expunged in the New York state court, and now appeals a petition for habe-as corpus and injunctive relief. While the zeal and diligence of his pro bono publico attorney is to be commended, we must recognize that Dor has yet to successfully convince the administrative bodies of the INS that he should be able to remain in the United States.
Satisfaction of Our Stay
As we stated, supra, on January 20th, 1987, the length of stay of our mandate was modified to extend the stay from 21 days to “until such time as the Immigration and Naturalization Service adjudicates the applications for relief from deportation by adjustment of status to lawful permanent resident status under [IRCA § 202]” (event 15). Although the terms of our stay are not directly raised on this appeal of a habeas petition, this Court having found the district court’s decision unqual-ifiedly correct is faced with a problem: what happens now? Obviously, this Court has full authority to vacate a stay of its own mandate. See Miller v. Aaacon Auto Transport, Inc., 545 F.2d 1019, 1020 (5th Cir.1977), cert. denied, 449 U.S. 918, 101 S.Ct. 315, 66 L.Ed.2d 145 (1980).
In its June 12, 1989 decision, the AAU held that “the sole issue in the proceeding is whether [Dor] is statutorily ineligible for [adjustment of status under subparagraph (a)(3) of § 202 of IRCA].” (event 24) This provision, the AAU observed, “bars the adjustment of any alien if the Attorney General determines that the alien, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States.” The AAU then cited immigration cases as authority that (i) manslaughter in the first degree is a “particularly serious crime,” and (ii) no separate determination of dangerousness is necessary once a determination is made that an individual has been convicted of a “particularly serious crime.” See, e.g., Matter of Frentescu, 18 I & N Dec. 244 (BIA 1982), and Matter of Carballe, I.D. 3007 (BIA 1986).
Dor’s motion to reopen before the AAU (event 25) offered two new facts: (i) the BIA decision dismissing Dor’s appeal of the District Director’s denial of request for custody redetermination (event 35); and (ii) a copy of the motion filed with the BIA requesting it to reopen Dor’s deportation proceedings (event 9). Finding neither fact material, the AAU concluded: “The [BIA’s] decision relating to the custody of the applicant and counsel’s motion to reopen deportation proceedings are not pertinent to the matter of the applicant’s ineligibility for the benefit sought as neither affects the finding that the applicant is statutorily ineligible for adjustment of status.” (event 26) In light of these final administrative decisions, we find that Dor’s application for adjustment of status has been sufficiently adjudicated. Accordingly, our stay is hereby vacated. The stayed mandate should issue forthwith, and the mandate affirming the instant appeal should issue forthwith.
Affirmed.
Stay VACATED.
APPENDIX
DOR TIMELINE
Event Date Event No.
Deportation Proceedings
1. 12/08/82 INS institutes deportation proceedings against Dor on the grounds that he entered the United States illegally.
2. 3/12/85 Deportation hearing held before Immigration Judge, who concludes that Dor is deporta-ble.
3. 04/30/85 Dor concedes his deportability, but applies for asylum and a stay of deportation. The Immigration Judge denies both of these requests. The Immigration Judge orders Dor deported and concludes that Dor, having been convicted of a “particularly serious crime ... constitutes a danger to the community of the United States,” and thus is statutorily ineligible for withholding of deportation and not worthy of the favorable exercise of discretion to be granted asylum.
4. 08/20/85 BIA upholds Immigration Judge order of 4/30/85, citing same reasons as the Immigration Judge for disallowing asylum and a stay of deportation.
5. 08/29/85 Dor files petition to review BIA action of 8/20/85 in this Court.
6. 10/29/85 Petition for review of 8/29/85 is withdrawn with prejudice. Dor loses right to appeal BIA decision of 8/20/85 before this Court (effective 12/31/85).
7. 7/3/86 BIA denies Dor’s motion to reopen and reconsider its 8/20/85 decision. Dor’s reliance on the New York State Certificate of Relief from Disabilities (issued 12/20/85), is misplaced, according to the BIA, because it has no legal effect on the finding of de-portability.
8. 12/24/86 This Court upholds, the BIA’s 7/3/86 decision denying Dor’s motion for reconsideration. Pursuant to Fed.R.App.P. 41(a), Dor is given 21 days before the mandate of this Court is carried out ordering Dor deported.
9. 6/23/89 Dor files motion with the BIA to reopen his deportation proceedings for the express purpose of remanding the matter to the Immigration Judge, for a hearing and a reconsideration of BIA’s earlier order on whether Dor is an alien described in § 243(h)(2)(b).
10. 10/11/89 BIA hears oral argument on Dor’s motion to reopen and reconsider his deportation proceedings.
11. 11/2/89 BIA denies Dor’s motion of 6/23/89 to reopen deportation proceedings.
Adjustment of Status Proceedings
12. 11/06/86 Immigration Reform and Control Act (IRCA) enacted.
13. 01/13/87 Dor moves this Court to stay its mandate “until INS adjudicates” his applications for relief, in light of the passage of IRCA. (First time IRCA is raised in Dor’s proceedings).
14. 1/15/87 Dor files his adjustment application with the District Director.
15. 01/20/87 This Court grants Dor’s motion of 1/13/87, staying Dor’s deportation pending final adjudication of his application for adjustment of status as a Cuban/Haitian entrant under the provision of section 202 of IRCA.
16. 01/28/87 INS moves to vacate the stay by this Court.
17. 1/29/87 Dor’s adjustment application is denied by the District Director. Dor appeals to the AAU.
18. 2/9/87 This Court denies the INS’s motion, to vacate its 1/20/87 order staying Dor’s deportation. Consequently, stay issued on 1/20/87 remains in effect.
19. 10/16/87 AAU refers case back to District Director for decision on the merits.
20. 12/07/87 District Director denies, without a hearing, Dor’s application on 10/16/87 remand from the AAU.
21. 12/28/87 Dor appeals the 12/07/87 decision to the AAU.
22. 1/23/89 After a hearing, the District Director again denies Dor’s adjustment application. In its decision, the District Director cites the 4/30/85 decision of the Immigration Judge finding Dor an alien under § 243(h)(2)(b), the 12/24/86 decision of this Court that specifically pointed out the Immigration Judge’s 4/30/85 finding, and the 9/30/88 decision of the District Court dismissing Dor’s petition for a writ of habeas corpus based on what it called the “incontrovertible” finding that Dor was an alien described in § 243(h)(2)(b).
23. 4/6/89 Oral argument granted before the AAU.
24. 06/12/89 AAU affirms the District Director decision of 1/23/89.
25. 08/04/89 Dor files motion seeking AAU reconsideration and reopening of its 6/12/89 opinion.
26. 9/18/89 AAU denies Dor’s 8/4/89 motion to reopen and reconsider his Cuban-Haitian adjustment application.
Custody/Habeas Proceedings
27. 5/20/84 Dor released by New York into INS custody.
28. 7/2/86 Dor requests that the District Director set conditions for his release.
29. 10/3/86 District Director, pursuant to Dor’s 7/2/86 request, reinstates bond in this case in the amount of $20,000. Dor does not post bond and remains in custody.
30. 12/31/86 District Director again revokes Dor’s bond and orders him detained in Service custody.
31. 8/19/88 Dor files a petition for a writ of habeas corpus (for release from custody while INS process continues) in U.S. District Court.
32. 9/29/88 District Court denies Dor’s habeas corpus claims. Dor Appeals to this Court.
10/4/88 Dor requests the District Director for a reconsideration of his custody status.
34. 10/26/88 District Director denies Dor’s 10/4/88 request for reconsideration. District Director concludes in its denial that the basis of the request, i.e., the AAU’s interest in the case, was severely diminished by the 9/29/88 dismissal of the respondent’s petition for a writ of habeas corpus by the District Court. Specifically, the District Director emphasized the District Court’s finding that the INS detention of Dor was not an abuse of discretion. In addition, the District Director finds significant the District Court’s consideration of the respondent’s eligibility for adjustment of status as a Cuban/Haitian entrant and its conclusion that the respondent’s appeal from the denial of his application was not likely to succeed. Dor ordered to remain detained without bond.
35. 4/26/89 BIA affirms the District Director’s 10/26/88 denial of Dor’s request for redetermi-nation of his custody status. BIA asserts lack of jurisdiction over all issues raised with regard to Dor’s Cuban-Háitian adjustment application. BIA limits its inquiry on appeal to a review of the custody determination of the District Director as it relates to the necessity for and the appropriate amount of bond to ensure Dor’s availability for deportation. Upon consideration of the facts and evidence presented in this particular case, the BIA concludes that Dor is a substantial bail risk and that he should not be released from INS custody.
Other Proceedings
36. 1972 Dor enters the United States without valid entry documents.
37. 11/17/78 Dor sentenced to a New York prison term of 5-15 years for first-degree manslaughter.
38. 6/1/88 Dor’s motion to vacate his felony conviction is denied by the New York State Supreme Court, Kings County.
39. 6/19/88 Dor’s request for executive clemency is denied by the New York Executive Clemency Bureau.
40. 7/5/88 Dor files a motion before the Appellate Division for a certificate granting leave to appeal the 6/1/88 denial by the New York State Supreme Court, Kings County.
. An appendix following this opinion delineates the procedural history of Dor’s unusually complex and protracted case. To clarify, we will parenthetically refer throughout the text to the date and "event number” of significant events (see appendix).
. Section 202(a) of IRCA provides, in relevant part:
(a) [An alien’s] status * * * may be adjusted by the Attorney General, in the Attorney General's discretion and under such regulations as the Attorney General may prescribe, to that of an alien lawfully admitted for permanent residence if * * * (3) [the alien] is not an alien described in § 243(h)(2) of [the INA]. See Immigration Reform and Control Act of 1986 (IRCA) P.L. 99-603, 100 Stat. 3359, 3404, § 202. See note following 8 U.S.C.A. § 1255a (West 1988).
Section 202 of IRCA, which is devoted solely to Cuban-Haitian entrants, is discussed in a House Report attached to the bill: "Section 202 of the Committee bill would allow Cuban-Haitian Entrants * * * to apply for lawful permanent resident status if they have resided continuously in the United States since January 1, 1982 and are not excludable on criminal or national security grounds." H.R.Rep. No. 682(1), 99th Cong., 2d Sess. 76, reprinted in 1986 U.S.Code Cong. & Admin.News 5649, 5680 (our emphasis).
. Because our earlier stay involved matters literally not part of the record in this case, the Court on May 25th sent a letter to counsel requesting the Court be kept informed of developments in the case pending in the INS administrative process. The purpose of our request was to be assured that the Court in its continuous appraisal of its earlier stay have accurate information and that further administrative actions in the INS are handled expeditiously to avoid further unnecessary delay.
. The AAU decision was rendered on June 12, 1989. Dor moved to reopen the proceeding given perceived errors in the AAU decision. In response, AAU on June 23, 1989 modified its June 12th opinion. The modifications, however, did not alter the affirmance of the District Director’s denial of adjustment.
.Dor's motion to reopen his deportation proceedings was made pursuant to 8 C.F.R. §§ 3.2 and 3.8(a) (1989). These regulations disallow reopening “unless it appears to the BIA that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing." 8 C.F.R. § 3.2 (1989).
Dor’s motion to reopen alleged two new material facts. First, he claimed that the enactment of IRCA, (especially § 202), justified a fresh look at his deportation order, in light of the remedial purposes of that statute. Second, he alleged that the District Director/AAU improperly relied upon a prior finding of the Immigration Judge in making a critical determination about his application for adjustment of status. Neither of these arguments persuaded the BIA to reopen the deportation proceedings (event 11).
. See note 2, supra.
. The full text of INA § 243(h), 8 U.S.C. § 1253(h) provides as follows:
(h)(1) The Attorney General shall not deport or return any alien (other than an alien described in § 241(a)(19) of this title) to a country if the Attorney General determines that such alien’s life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion.
(h)(2) paragraph (1) shall not apply to any alien if the Attorney General determines that—
(A) the alien ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion;
(B) the alien, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States;
(C) there are serious reasons for considering that the alien has committed a serious nonpolitical crime outside the United States prior to the arrival of the alien in the United States; or
(D) there are reasonable grounds for regarding the alien as a danger to the security of the United States.
.Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 58 S.Ct. 459, 463-64, 82 L.Ed. 638 (1938); see also Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 20-24, 94 S.Ct. 1028, 1038-41, 39 L.Ed.2d 123 (1974); McKart v. United States, 395 U.S. 185, 193, 89 S.Ct. 1657, 1662, 23 L.Ed.2d 194 (1969); County of Rockland v. N.R.C., 709 F.2d 766, 774 (2d Cir.), cert. denied, 464 U.S. 993, 104 S.Ct. 485, 78 L.Ed.2d 681 (1983); Marshall v. Northwest Orient Air lines, 574 F.2d 119, 122 (2d Cir.1978); Brown v. General Services Administration, 507 F.2d 1300, 1307-08 (2d Cir.1974), aff’d, 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976).
. The principal Justice Department units with adjudicative roles in immigration are: 1) the Executive Office for Immigration Review, (which is composed of the Immigration Judges, and as appellate authority, the BIA); and 2) the INS (which is composed of District Directors, and as appellate authority, the AAU). See Le-gomsky, Forum Choices for the Review of Agency Adjudication: A Study of the Immigration Process, 71 Iowa L.Rev. 1297, 1308 (1986). To avoid confusion, it should be stressed that the BIA and the Immigration Judges are no longer (since 1983) formally part of the INS.
The Attorney General sits atop these two divisions. The allocation of adjudicatory responsibility between the Executive Office for Immigration Review and the INS does not lend itself to simple explanation or summary. The Immigration Judges issue both exclusion and deportation orders, among other things. INA §§ 236(a), 242(b), 8 U.S.C. §§ 1226(a), 1252(b) (1982). District Directors decide visa petitions, (8 C.F.R. § 204.1), adjustment of status applications, (§ 245.2, § 245.6), extensions of stays for nonimmigrants, (§ 214.1-2, etc.)
The AAU consists of five “appellate examiners” and the Chief of the Unit, none of whom is an attorney. Each case is considered de novo by one of the appellate examiners and reviewed by the Chief, whose decision prevails in the event of a conflict. Decisions of the AAU are published very infrequently.
The BIA has five members, all attorneys, and all of whom participate in every case. See 8 C.F.R. § 3.1(a)(1), and Legomsky, Forum Choices, supra. They are assisted by a staff of attorney examiners. The BIA selects, for publication, precedent decisions that will bind the INS and the Immigration Judges. 8 C.F.R. § 3.1(g).
. Section 242(c) provides: “When a final order of deportation under administrative processes is made against any alien, the Attorney General shall have a period of six months from the date of such order or, if judicial review is had, then from the date of the final order of the court, within which to effect the alien’s departure from the United States, during which period at the Attorney General’s discretion, the alien may be detained, or released on bond in an amount and containing such conditions as the Attorney General may prescribe. * * * ” 8 U.S.C. § 1252(c).
. As mentioned earlier, Dor has pursued a second series of appeals before the Immigration Judge and the BIA (events 2, 3, 4). The BIA granted Dor’s motion to reopen his deportation proceedings in late August of 1989, and heard oral argument for that motion on October 11, 1989, (event 10). On November 2, 1989, the BIA denied Dor’s motion to reopen his proceedings (event 11).
. At the heart of Dor’s argument in his repeated appeals before the INS is a claim that the AAU and the District Director have erroneously relied on interpretations by the Immigration Judge and the BIA in making their decisions about Dor's application for adjustment of status. The claim can be summarized as follows: 1) the Immigration Judge and the BIA determined that Dor was an alien described in § 243(h)(2)(B) of the INA, and therefore deportable (events 2, 3, 4); 2) then, IRCA was enacted, allowing relief to Dor only if he is not an alien described in § 243(h)(2)(B) (event 12); 3) rather than relying on the previous decisions of the Immigration Judge and the BIA, Dor argues that a de novo determination must be made by the District Director and the AAU as to whether he is an alien described in § 243(h)(2)(B).
Several reasons are given in support of this third assertion. The most persuasive reasons are that new administrative offices (namely, the District Director and the AAU, see 8 C.F.R. § 245.6) have been entrusted with deciding whether relief is available under IRCA, and that § 243(h)(2)(B) might require a different interpretation in light of the remedial purposes of IRCA.
Fortunately, we do not, need to embroil ourselves in these issues, since the AAU’s latest decisions (events 24 and 26) that Dor is an alien described in § 243(h)(2)(B) are reached with sufficient independence.
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 8? Answer with a number.
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.
DRUKKER COMMUNICATIONS, INC., and its wholly owned subsidiary, The Daily Advance, Inc., Petitioner v. NATIONAL LABOR RELATIONS BOARD.
No. 81-2139.
United States Court of Appeals, District of Columbia Circuit.
Argued Oct. 6, 1982.
Decided Feb. 25, 1983.
Henry I. Hamburger for petitioner.
Lawrence Song, Atty., N.L.R.B., Washington, D.C., with whom Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Washington, D.C., was on the brief, for respondent. William R. Stewart, Atty., N.L.R.B., Washington, D.C., also entered an appearance for respondent.
Before TAMM, WILKEY and SCALIA, Circuit Judges.
Opinion for the court filed by Circuit Judge SCALIA.
SCALIA, Circuit Judge:
Drukker Communications, with its wholly owned subsidiary, The Daily Advance, Inc., appeals under 29 U.S.C. § 160(f) (1976) the National Labor Relations Board’s adverse determination and order in an unfair labor practice action.under 29 U.S.C. § 158(a)(1), (5) (1976). The case presents the issue of the Board’s power to withhold relevant testimony of one of its employees, and a number of issues regarding sufficiency of the complaint and factual support for the Board’s determination.
The basic facts, which will be supplemented during the course of our discussion, are as follows: On May 3, 1974, Newark Mailers’ Union Local 11 demanded that Union Building and Investment Company (UBI), then owner of The Daily Advance, recognize it as the collective bargaining agent for the newspaper’s circulation department employees. UBI declined recognition, and the union petitioned for certification by the NLRB. On May 28, representatives of the union and UBI met with George H. Abrams of the NLRB’s Regional Director’s Office and concluded a consent election agreement. The election was held on June 21, and the tally of unchallenged ballots showed that the union had lost by a 12-to-10 vote. The employer challenged five ballots, alleging that they had been cast by “motor route carriers” who were independent contractors and were outside the stipulated unit. After litigation which reached the Board level, the challenge was ultimately rejected and the ballots were opened and counted, producing a 15-to-12 union victory. The union was certified on September 7, 1976.
Between the time of the election and the certification, UBI changed its name to Drukker Communications, Inc., and sold all assets and liabilities of the newspaper to its wholly owned subsidiary, The Daily Advance, Inc. There is no indication in the record, nor has it been alleged, that the change was prompted by unionization of the company’s work force, or was anything other than a bona fide business decision. Either before or after the certification (for certain items the timing is in dispute) The Daily Advance unilaterally made a number of changes in its operations: It moved its mailroom from Dover to Roxbury, New Jersey, some eight miles away. It gradually phased out “motor route carriers” (who delivered papers owned by the newspapers for a fixed stipend) largely in favor of “delivery contract holders” (who bought papers and resold them at a profit, had the right to charge their customers a service fee, and in addition received a fixed stipend to assure profitability). It replaced the employee drivers of company-owned trucks with independent “hauling contract holders”; replaced district advisors with district sales representatives; and reduced a mail clerk from full-time to part-time status.
After certification, the company declined to bargain with the union. On February 14, 1977, the Board issued an unfair labor practice complaint against “Union Building and Investment Company T/A [trading as] The Daily Advance,” alleging refusal to recognize and bargain collectively with the union. An amendment to the complaint added the charges of changing terms and conditions of work without prior consultation with the union and bargaining directly with employees. In the proceedings before an administrative law judge (ALJ) the attorney for the companies raised all of the arguments that will be discussed below. The ALJ rejected them; he found that the companies had committed the unfair labor practices charged, and ordered them to cease and desist from such practices and to bargain concerning the unremedied effects of past violations. His opinion amended the name of respondent to read “Drukker Communications, Inc., and its wholly owned subsidiary The Daily Advance, Inc., formerly Union Building Investment Company T/A The Daily Advance.” The ALJ’s findings, conclusions and order were adopted by the Board with one modification — that the employer need not bargain over the move of the mail room, since the statute of limitations had run on that action. Drukker Communications, Inc., 258 N.L.R.B. 734 (1981).
Subpoena of Board Employee
Petitioner argues that the certification was invalid because the motor route carriers, whose challenged ballots tipped the scales in the election, were excluded from the unit by the May 28 stipulation. The basis of this contention is that the phrase “[a]ll circulation department employees, including drivers,” contained in that portion of the stipulation describing the agreed-upon collective bargaining unit, was not intended to cover motor route carriers. Jt. App. at 58. The language bears the Board’s reading, and we would not normally disturb the agency’s reasonable judgment on a matter of interpretation. The dispute, however, centers about an alleged understanding or oral agreement at the time of the stipulation conference, to the effect that motor route carriers were not meant to be included in the unit. On the basis of the evidence presented (consisting of conflicting testimony by the company’s lawyer on the one hand and the union’s lawyer on the other) the ALJ’s judgment that no oral understanding existed was also well within the bounds of the reasonable. Petitioner asserts, however, that all of the relevant evidence was not considered, because of the ALJ’s refusal to permit subpoena of George H. Abrams. Abrams was a Board employee in Region 22. He had been present at the conference which produced the stipulation, and had signed the document itself, as “Board Agent,” below a line reading “Recommended:”. • Jt.App. at - 53. Petitioner sought from the General Counsel the permission for Abrams’ testimony required by the Board’s rules, 29 C.F.R. § 102.118(a)(1) (1981). When permission was refused, petitioner subpoenaed Abrams; the ALJ denied the motion to compel his testimony, and granted the General Counsel’s motion to quash the subpoena.
The National Labor Relations Act provides that “[t]he Board, or any member thereof, shall upon application of any party to [its] proceedings, forthwith issue to such party subpenas requiring the attendance and testimony of witnesses... in such proceedings.... ” On application of the subpoenaed party, “the Board shall revoke... such subpena if in its opinion the evidence whose production is required does not relate to... any matter in question in such proceedings, or if in its opinion such subpena does not describe with sufficient particularity the evidence whose production is required.” 29 U.S.C. § 161(1) (1976). Although the statute explicitly permits the quashing of subpoenas only for irrelevance or lack of particularity, it does not explicitly exclude other grounds, and the availability of other grounds must certainly be implied — for example, to take an extreme instance, unwarranted interference with First Amendment rights. Thus, the Board’s delegation to administrative law judges of its subpoena authority properly (if somewhat illiterately) adds to the two grounds set forth in the statutory authority to quash “if for any other reason sufficient in law the subpena is otherwise [sic] invalid.” 29 C.F.R. § 102.31(b) (1981). Besides the subpoena section of the Act, two other provisions of law are pertinent. The formal adjudication provision of the Administrative Procedure Act, 5 U.S.C. § 556(d) (1976), which governed this proceeding, see 5 U.S.C. § 554(a) (1976), provides that “[a] party is entitled to present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts.” NLRB unfair labor practice proceedings are also governed by another provision which, if not unique, is at least extraordinary, requiring that they “shall, so far as practicable, be conducted in accordance with the rules of evidence applicable in the district courts of the United States under the rules of civil procedure....” 29 U.S.C. § 160(b) (1976).
Even in courts of law, relevant evidence sought from government officers is sometimes excluded, and a subpoena for it denied, because of a well founded claim that its production would, in one respect or another, harm the public interest:
Such, for example, are claims that the information sought would disclose confidential informants (Mitchell v. Bass, 252 F.2d 513 [(8th Cir.1958)], state secrets (United States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 [(1953)], military secrets (United States v. Reynolds, supra), or mental processes of those engaged in investigative or decisional functions (United States v. Morgan, 313 U.S. 409, 61 S.Ct. 999, 85 L.Ed. 1429 [(1941)]; Appeal of Securities & Exchange Commission, 226 F.2d 501, 519 [(6th Cir. 1955)]).
General Engineering, Inc. v. NLRB, 341 F.2d 367, 375 (9th Cir.1965). This court has applied such a doctrine to district court testimony in a factual context similar to that before us. See International Ass’n of Machinists & Aerospace Workers v. National Mediation Board, 425 F.2d 527, 538-41 (D.C.Cir.1970). There is room for the doctrine in administrative proceedings as well; indeed, the public interest may more often require it there than elsewhere. It has been applied in other circuits, specifically to the proceedings of the Board. See NLRB v. Joseph Macaluso, Inc., 618 F.2d 51 (9th Cir. 1980); M.S.P. Industries, Inc. v. NLRB, 568 F.2d 166, 178-79 (10th Cir.1977) (dictum); Stephens Produce Co. v. NLRB, 515 F.2d 1373, 1376-78 (8th Cir.1975); J.H. Rutter Rex Mfg. Co. v. NLRB, 473 F.2d 223, 232-35 (5th Cir.1973). We believe, moreover, that in appropriate circumstances the doctrine extends to protection of agency concerns of the sort expressed by the General Counsel in his refusal to permit Abrams’ testimony, and essentially accepted by the ALJ, namely that “the highly sensitive and delicate role of the Board Agent in processing and resolving unfair labor practice and representation cases would [be] seriously impaired if a real likelihood existed of the Board Agent’s becoming enmeshed as a witness in cases to which he has been assigned.” We do not believe, however, that permitting the testimony in the distinctive circumstances of this case would create any “real likelihood” of enmeshment in the future. The balancing of need against harm, which evaluation of this evidentiary privilege always involves, leads us to conclude that the testimony should have been required for the following reasons:
The issue on which the testimony was sought was central to the case. On the basis of the legal assumptions applied by the ALJ and presumably adopted by the Board, if the alleged oral agreement existed, the challenged ballots should not have been counted, the union was not elected, the certification was invalid, and the unfair labor practices never occurred.
The issue did not pertain to the internal deliberations of the agency, see, e.g., International Ass’n of Machinists & Aerospace Workers, supra, nor to the accuracy or completeness of its investigative work product, see, e.g., J.H. Rutter Rex Mfg. Co., supra, and Stephens Produce Co., supra. Rather, it concerned an external, operative event which an agency employee had witnessed.
The issue was quite specific — whether or not the conversations of the union and company representatives on a particular occasion manifested an intent to exclude a specific class of employees from their agreement — as opposed to more generalized “fishing expeditions” for helpful evidence which have uniformly been rejected, see, e.g., J.H. Rutter Rex Mfg. Go., supra.
The subpoenaing party’s version of the events, which will allegedly be sustained by the Board employee’s testimony, is highly plausible. The alleged understanding was not raised here, or even before the ALJ, for the first time. It was asserted in the initial challenge to the ballots lodged with the Regional Director, see Jt.App. at 58, on the union’s appeal of that initially successful challenge to the Board, see id. at 66, 88, before the hearing officer designated to determine the employee status of the motor route carriers, see id. at 76, 88, again before the Board in petitioner’s exceptions to the hearing officer’s report, see id. at 88, and again before the Regional Director in its objections to the election and the revised tally, see id. at 80, 81-82. It has been a consistent contention, formally asserted from the earliest time it could have been expected. Moreover, the nature of the alleged agreement is fully consistent with the language of the stipulation — or at least was at the time the stipulation was written. The stipulation places within the agreed-upon unit “[a]ll circulation department employees, including drivers.” Jt.App. at 53 (emphasis added). Motor route carriers are assuredly “drivers,” but whether they are employees is (or at least was) most doubtful. So much so that the Regional Director’s Report on Challenged Ballots recommended sustaining the company’s challenge on the sole ground that these individuals were not employees. See Jt.App. at 60, 65. In other words, petitioner is not urging an agreement which contradicts, or even makes an exception to, the language of the stipulation, except as that language has been given legal content (contrary to the views of the Regional Director) by subsequent Board decision. The ALJ found the company’s account not credible because it was “not likely that the Union’s lawyer brushed away what was then one-third of the Union’s supporters with a ‘we are not interested in them’ response based upon an alleged acceptance without question of a mere statement that they were independent contractors.” 258 N.L.R.B. at 742. It seems to us, however, that the union lawyer had nothing to lose by such a concession if he believed (as subsequently proved to be true) that the stipulation would be interpreted and applied on its face, so that if the motor route carriers could be included within the unit (non-employees of course cannot be, even through stipulation) they would be. The speculation that the union lawyer took such a gamble seems to us at least as plausible as the only other alternatives that would not clearly invalidate the stipulation, which are (1) that the company readily agreed to the inclusion of a group which (as described in the Regional Director’s Report on Challenged Ballots) the company treated substantially differently from the rest of its work force, paying no overtime or fringe benefits and making no payroll deductions; (2) that one or both parties had no specific intent with regard to this large segment of the contemplated unit; or (3) that both parties understood the importance of the issue but intentionally left it to be resolved through the Board’s determination of who is legally an “employee.”
The testimony was of unique value with regard to the issue. The only other witnesses who testified were aligned with the company or the union, and their testimony matched their alignment. The ALJ considered it dispositive of the subpoena issue that petitioner had not sought to introduce the testimony of two more of its employees who were present at the crucial meeting. The availability of other evidence is certainly a factor to be considered, but here the effect of that evidence upon the company’s case would at best have been cumulative. It cannot be compared with the supporting testimony of a neutral governmental official.
Participation of the Board employee in the events bearing upon the issue was of such a character that he was intended to acquire the knowledge which the subpoena seeks to elicit, and the parties would reasonably expect him to convey that knowledge to the Board. As counsel for petitioner (who had been present at the conference) described Abrams’ function (uncontradicted by counsel for the union, who had also been present), “he was assisting the parties to enter into the stipulation] for certification].” Jt.App. at 143 through unnumbered page after 143. He was also there to make sure that the stipulation, properly understood, was worthy of the Board’s approval, so that he could “recommend” it. On both scores, his participation was designed to inform him fully of the facts and circumstances bearing upon the meaning of the agreement; and on the latter score that knowledge was meant to affect the Board’s action. Thus, it was eminently reasonable for the parties to expect an employee in Abrams’ position to enlighten the Board on the events he was assigned to witness. And that is all the subpoena demands. The Board’s leading case giving effect to an oral agreement varying the content of a stipulation for certification emphasized the fact that the agreement was made “in the presence of a Board agent” and “before a Board agent.” Banner Bedding, Inc., 214 N.L.R.B. 1013, 1013-14 (1974). That fact would have been irrelevant if the agent’s knowledge regarding the existence or nonexistence of the agreement could never affect the Board’s on-the-record decision — which only his testimony can achieve.
The proceeding is not a private action, but a complaint pressed by the Board itself against the party who asserts the need for the testimony. It is repugnant to notions of fairness for the government to seek sanctions for alleged wrongdoing while withholding from the proceeding evidence that would demonstrate innocence. Cf. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963) (suppression by criminal prosecutor of evidence favorable to an accused violates due process). That is not the same as saying that the object of government action has an unqualified right to demonstrate the existence of such evidence through subpoena of agency officials, but the case for subpoena is stronger than it is where the government is not involved in the proceeding, or is involved on the side of the subpoenaing party.
The cumulative effect of all these considerations is to render the privilege inapplicable in this case. We recognize that the Board Agent’s action in midwifing a stipulation for certification is akin to agency mediation — which this court and others have found requires broad protection through the evidentiary privilege here at issue. See NLRB v. Joseph Macaluso, Inc., supra; International Ass’n of Machinists & Aerospace Workers, supra. In such a process it is, as we have said, essential that the government agency be “in the condition where it is persona grata to both parties.” 425 F.2d at 539. In the negotiation of a representational unit, it is important that each side be relieved of fear that the other side and the Board Agent will combine their oral testimony to introduce unintended elements into the written agreement. But no such fear can be created by our refusal to recognize the evidentiary privilege in the present case, since we are only compelling employee testimony that is sought for the purpose of undermining the Board’s position. As for the other valid agency concern — the fear that, impairment of persona grata status or not, Board Agents will be diverted from their duties by recurrent requests for testimony — the concurrence of factors as strong as those set forth above will seldom occur, even in the context of stipulations for certification. To eliminate virtually all possibility of recurrence, it might well be sufficient to state prominently on the Board’s form (upon which the stipulations are typed) that the Board Agent will not be permitted to testify regarding the statements and intentions of the parties. Such explicit notice that the parties are left to their own resources would affect our view of the matter.
We therefore find that the Board’s action must be set aside because it was taken without observance of procedure required by law, 5 U.S.C. § 706(2)(D) (1976). Although our holding on this point alone requires remand to the agency, we proceed to consider the other issues properly presented, so that a repetitive appeal may be avoided.
Specificity of the Complaint
Petitioner asserts that the complaint did not specify each instance in which the employer failed to deal directly with the union, and objects to the ALJ’s refusal to require a bill of particulars. Not even the courts any longer require adherence to the technicalities of common law pleading. In NLRB cases, “[i]t is sufficient that the respondent ‘understood the issue and was afforded full opportunity to justify its actions.’ ” Bakery Wagon Drivers & Salesmen, Local 484 v. NLRB, 321 F.2d 353, 356 (D.C.Cir.1963) (quoting NLRB v. Mackay Co., 304 U.S. 333, 350, 58 S.Ct. 904, 912, 82 L.Ed. 1381 (1938)). On that score, the administrative law judge’s response seems to us correct and conclusive: “Respondent had what was more complete than a bill [of particulars], namely, the supporting evidence itself on the record (almost entirely supplied by its own witness), and was allowed a substantial adjournment in which to gather and supply any different or ameliorating evidence, which it did not do.” 258 N.L.R.B. at 750 n. 19.
Statute of Limitations
Petitioner argues that the six-month statute of limitations, 29 U.S.C. § 160(b) (1976), bars prosecution of several of the unilateral changes. It challenges the Board’s finding that “[w]ith the exception of the mailroom relocation, all the unilateral changes which the Administrative Law Judge found to be unlawful occurred after Respondent’s refusal to bargain on January 3, 1977.” 258 N.L.R.B. at 734. If this was intended as a statement of fact, it does not comport with the ALJ’s findings, nor does it have substantial support in the record. The ALJ found that the demotion of the mail clerk to part-time status and the substitution of district sales representatives for district advisors occurred wholly in 1977. 258 N.L.R.B. at 749. With regard to the replacement of motor route carriers with delivery contract holders, however, the ALJ merely found that “the bulk” of the changes occurred in 1977 and 1978, id. at 750 n. 20, and there is no support for a broader statement in the record. He appears to have found that the replacement of drivers with hauling contract holders began prior to 1977 as well. See id. at 749. It may be that the Board meant its statement as a conclusion of law rather than a statement of fact, concluding that if the “bulk” of the personnel change effected by a particular management decision occurs after a certain date the entire change is attributed to that period. If such a principle (the validity of which we do not here consider) was being established, it was incumbent upon the Board to express it. Without such expression, the Board’s decision fails to set forth the required “reasons or basis” as required by 5 U.S.C. § 557(c)(A) (1976) and it must be set aside under 5 U.S.C. § 706(2)(D) (1976).
Liability of Parent Company
Petitioner argues that insufficient evidence existed for the conclusion that Drukker Communications, Inc., was vicariously liable for the unfair labor practices of The Daily Advance, Inc. The ALJ relied on three findings to support liability:
that all shares of The Daily Advance, Inc., are owned by Drukker Communications, Inc., and that The Daily Advance, Inc., is a wholly owned subsidiary of Drukker Communications, Inc., [2] that the officers and directors of Drukker Communications, Inc., and of The Daily Advance, Inc., are the same and that, [3] for the purposes of this proceeding, the change from Union Building and Investment Company trading as The Daily Advance to The Daily Advance, Inc., was a change in name only.
258 N.L.R.B. at 736 n. 1.
The last of these, if it was even meant as a factual determination rather than a conclusion of law, is contradicted by the record. Petitioner’s Amended Answer alleged that the assets and liabilities of the newspaper had been sold to the new corporation; this was never contested. The first two findings have support in the record, but are inadequate to sustain the conclusion of liability. To find a parent corporation liable for the unfair labor practices of its subsidiary under either an agency or integrated enterprise theory, the Board must find that the parent involved itself in the labor relations of the subsidiary. See Bethlehem Steel Co. v. NLRB, 120 F.2d 641, 650 (D.C.Cir.1941) (“personal interference” of sole stockholder required to make it an employer within the Act); Great Chinese American Sewing Co. v. NLRB, 578 F.2d 251, 254 (9th Cir.1978) (“[t]he four criteria for determining the existence of an integrated enterprise [are] interrelation of operations; common ownership or financial control; common management; and centralized control of labor relations”); NLRB v. Condenser Corp., 128 F.2d 67, 71 (3d Cir.1942) (parent and subsidiary jointly liable for unfair labor practice when they “together,... act as employers of those employees... and together actively deal with labor relations of those employees”); NLRB v. Swift & Co., 127 F.2d 30, 32 (6th Cir. 1942).
No evidence was presented to show such an involvement. The fact that The Daily Advance, Inc., was wholly owned by Drukker Communications, Inc., and that the officers and directors of the two corporations were identical does not make the actions of the one company automatically the actions of the other. See Escude Cruz v. Ortho Pharmaceutical Corp., 619 F.2d 902, 905 (1st Cir.1980) (“whether the subsidiary is only an empty shell is a question of fact, and allegations of interlocking directorates and stock ownership will not alone suffice”); 1 W. Fletcher, Cyclopedia Of The Law Of Private Corporations § 43 at 209 (1974) (“[o]wnership of all the stock of a corporation coupled with common management and direction does not... operate as a merger of the two corporations into a single entity”). The fact that Drukker is the successor to UBI, which formerly owned the newspaper and conducted its employment relations, would be determinative if there were indeed “a change in name only”; but in fact the assets and liabilities of the newspaper were conveyed to an entirely separate corporation. 258 N.L.R.B. at 736 n. 1. It appears from the record, moreover, that Drukker is not merely a holding company for The Daily Advance, Inc., but conducts independent business of its own. Id. at 738. The only evidence (other than common ownership and management) pertaining to the relationship between the two companies is the fact that the circulation department of The Daily Advance, after its move to Roxbury, serviced other publications of Drukker. Id. This is not enough, without further elaboration, to demonstrate that the parent “involved itself” in labor relations matters pertaining to those employees. In any event, the ALJ (and hence, we must assume, the Board) did not weigh this factor but evidently considered the inadequate factors set forth above conclusive. Insofar as it affects Drukker Communications, therefore, the Board’s action must be set aside as unsupported by substantial evidence. 5 U.S.C. § 706(2)(E) (1976).
Employee Status op District Advisors [9] Petitioner attacks the finding that district advisors were properly included within the bargaining unit. It asserts that they were exempt “supervisors” within the meaning of the Act — which means supervisors of employees. There is no doubt that the district advisors recruited, trained, and replaced (which are activities potentially included among the supervisory functions listed in the Act, 29 U.S.C. § 152(11) (1976)) individuals whom we will only fleetingly, for the purpose of reader comprehension, describe as newsboys, but hereinafter call “youth carriers.” Petitioner’s ironic contention on this point is that the youth carriers were employees, so that the district advisors were supervisors of employees, and hence not employees, but supervisors. The ALJ’s only justification for his finding that the youth carriers were independent contractors was his assertion that “Respondent and the Union have been in agreement from the outset that the youngster carriers are not employees within the meaning of the Act (testimony of their respective lawyers, Hamburger and Parsonnet).” 258 N.L.R.B. at 743. No record evidence supports that finding. There was no stipulation to that effect, nor even informal expressions by counsel which suggest that was their common understanding, if indeed that would suffice to take the issue out of the case. In fact, we can find no statement of either lawyer or of any witness that expresses even an individual belief that the youth carriers were independent contractors. Absent the agreement which the ALJ erroneously found, the Board’s action required a finding that the district advisors did not supervise, or that the individuals whom they supervised were not employees. Neither was made. Since the Board failed to make a finding on a material issue of fact, 5 U.S.C. § 557(c)(A), its determination on this point must be set aside for failure to observe procedure required by law, 5 U.S.C. § 706(2)(D).
Employee Status of Delivery Contract Holders
Petitioner challenges the finding that delivery contract holders were employees. It argues that since they derived their income principally from the difference between the wholesale and retail price of the papers they received, their status should have been controlled by the Board’s cases finding a newspaper distributor to be an independent contractor when his “income is based on the difference between the price at which he sells the papers, less the price he pays the Company for the papers and the labor costs and losses incurred.” Las Vegas Sun, Inc., 219 N.L.R.B. 889, 891 (1975). See Donrey, Inc., 223 N.L.R.B. 744 (1976). The ALJ’s decision rejected this argument because the motor route carriers received weekly stipends, assuring the profitability of their routes, which distinguished them from the distributors in Las Vegas Sun and Donrey. 258 N.L.R.B. at 746 n. 14. That explanation was adequate at the time it was written and at the time it was adopted by the Board, but petitioner asserts it has been rendered inadequate because of the subsequent decision of the Board in Fort Wayne Newspapers, 263 N.L.R.B. No. 112 (Aug. 31,1982). There a stipend of the sort found conclusive in the present case also existed, but the distributors were nonetheless held to be independent contractors.
The process of developing rational principles through adjudication — especially principles of “mixed law and fact” of the sort at issue here — necessarily causes elements recited as determinative in an earlier case to be found nondeterminative in a later case where additional and perhaps unforeseen elements must be considered. This is the very nature of the adjudicatory, “case law” process. Thus, while a later case can justly be criticized for failure to distinguish an earlier one, the reverse cannot be true. Though circumstances may exist in which we would feel justified in requiring reformulation of an earlier Board decision in order to take account of a later case, see Local 814, International Brotherhood of Teamsters v. NLRB, 512 F.2d 564 (D.C.Cir. 1975), that is assuredly the exception rather than the rule. See City Cab Co. v. NLRB, 628 F.2d 261, 266 n. 22 (D.C.Cir.1980). The Board’s judgment that delivery contract holders are employees was supported by substantial record evidence and was accompanied by a reconciliation of earlier holdings that was adequate at the time. We therefore do not set aside the Board’s decision on this ground. Since, however, our remand on other grounds now requires the Board to reconsider this case subsequent to Fort Wayne, we expect that the Board’s final statement of “reasons or basis” will be visibly consistent with that decision as well. See 5 U.S.C. § 557(c)(A).
Change of Location
Finally, petitioner claims that the change in the mailroom’s location, from Dover to Roxbury, renders the bargaining unit inappropriate. It argues that the stipulation was limited to the Dover plant, and that even if it were not, that the new locale overcomes the presumption of continuing majority support. The ALJ’s finding on this issue was supported by substantial evidence. Since the reference to the Dover location was contained in the stipulation’s jurisdictional provision, entitled “Commerce,” rather than in the section entitled “The Appropriate Collective Bargaining Unit,” it is reasonably interpreted as not specifically limiting the parties’ agreement on the latter point. Jt
Question: What is the total number of appellants in the case that fall into the category "fiduciaries"? Answer with a number.
Answer:
|
songer_fedlaw
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant.
Michael GORDON, Plaintiff-Appellant, v. Herbert M. LUKSCH, Defendant-Appellee. Michael GORDON, Plaintiff-Appellee, v. Herbert M. LUKSCH, Defendant-Appellant.
Nos. 89-2602, 89-2613.
United States Court of Appeals, Fourth Circuit.
Argued Sept. 14, 1989.
Decided Oct. 18, 1989.
As Amended Dec. 28, 1989.
Philip J. Harvey (Shaw, Pittman, Potts & Trowbridge, Washington, D.C., on brief), for plaintiff-appellant.
Neal A. Goldfarb (Warren K. Kaplan, Melrod, Redman & Gartlan, Washington, D.C., on brief), for defendant-appellee.
Before MURNAGHAN, SPROUSE, and CHAPMAN, Circuit Judges.
SPROUSE, Circuit Judge:
Michael Gordon appeals the district court’s order dismissing without prejudice his claim against his business partner Herbert M. Luksch and Luksch Equities, Inc. (hereafter Luksch) for contribution on the repayment of a business loan. Luksch and Gordon cross-appeal the court’s denial of their summary judgment motions. The district court abstained from exercising its jurisdiction on the ground that the claim could and should be heard in an action for dissolution and accounting filed earlier in the superior court of the District of Columbia. We reverse.
I.
Michael Gordon and Herbert M. Luksch had been partners in the District of Columbia in a multi-million dollar business of acquiring real estate properties, developing them and selling them. Gordon and Luksch organized their partnership as a network of partnerships and corporations in which they were stockholders, general partners, and limited partners. They borrowed money to supply working capital and funded their various enterprises with inter-company loans. In 1986, they first opened a $500,000 line of credit with McLachlen Bank, executing a note with GLM Corporation as maker and themselves individually as guarantors. They regularly renewed the promissory note in this manner every six months until September 1987, when McLachlen Bank insisted that Gordon and Luksch be co-makers, jointly and severally liable, although the purpose of the loan remained the same. The renewal note dated January 31, 1988, and executed by Gordon, Luksch, and another person not involved in this suit, is at issue in this case.
Despite the success of their partnership, Luksch withdrew from active participation in 1986, leaving control to Gordon of what was called collectively the “GLM Companies.” On August 11, 1988, Luksch and Luksch Equities, Inc. filed a complaint in superior court in the District of Columbia against Gordon, two other individuals, and several GLM entities for damages, injunction, accounting, dissolution and appointment of a receiver.
In the meantime, the January 31, 1988, renewal note came due, and Gordon paid the entire amount on August 31, 1989. He then filed the present suit in federal district court for the Eastern District of Virginia on October 28, 1988, seeking contribution from Luksch of $166,666.66. The parties filed cross motions for summary judgment, which the district court denied. Luksch alternatively moved that the court stay proceedings pending resolution of the superior court suit. The court denied the summary judgment motions of both parties, but dismissed the action without prejudice, reasoning that it was appropriate to abstain because the issue could be raised in Luksch’s pending suit in superior court. In our view, the district court properly denied both motions for summary judgment, but erred in abstaining.
II.
The Supreme Court has recognized that in some limited situations, a federal court may dismiss a suit “for reasons of wise judicial administration” when there is a “concurrent state proceeding.” Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 818, 96 S.Ct. 1236, 1246, 47 L.Ed.2d 483 (1976). Only in the most extraordinary circumstances, however, may federal courts abstain from exercising jurisdiction in order to avoid piecemeal litigation. Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 15, 103 S.Ct. 927, 936, 74 L.Ed.2d 765 (1983); Cox v. Planning Dist. I Community Mental Health & Mental Retardation Servcs. Bd., 669 F.2d 940, 942 (4th Cir.1982). It follows that because of the “virtually unflagging obligation of the federal courts to exercise the jurisdiction given them,” pendency of an action in state court by itself does not bar proceedings in federal court. Colorado River, 424 U.S. at 817, 96 S.Ct. at 1246. The Supreme Court reiterated factors relevant to a decision to abstain in such cases in Cone, 460 U.S. at 15-16, 103 S.Ct. at 937 (quoting Colorado River, 424 U.S. at 818-19, 96 S.Ct. at 1247):
In assessing the appropriateness of dismissal in the event of an exercise of concurrent jurisdiction, a federal court may also consider such factors as the inconvenience of the federal forum; the desirability of avoiding piecemeal litigation; and the order in which jurisdiction was obtained by the concurrent fo-rums_ Only the clearest of justifications will warrant dismissal.
The factors must be balanced, however, and “heavily weighted in favor of the exercise of jurisdiction.” Id. at 16, 103 S.Ct. at 937.
In the present case, it is clear that the balance of factors does not amount to the exceptional circumstances necessary to justify the district court’s dismissal. It is true that the superior court action was filed some time prior to Gordon’s action on the note filed in the federal court. However, we must look not only to the formal filing sequence but also consider “how much progress has been made in the two actions.” Cone, 460 U.S. at 21, 103 S.Ct. at 940. This is particularly true when the state court action has not progressed far, as in this case where discovery has been stayed pending resolution of a dispute between the parties. Cf. American Disposal Servcs., Inc. v. O’Brien, 839 F.2d 84, 88 (2d Cir.1988). The issues in both courts require interpretation of state law, but they are uncomplicated and permit little legal disagreement. Thus they do not weigh in favor of abstention, particularly since both parties may find an adequate remedy in either state or federal court. Although it would have been possible to raise the issue of the $500,000 loan in the District of Columbia proceedings, judicial diseconomy alone does not justify abstention. See Evans Transp. Co. v. Scullin Steel Co., 693 F.2d 715, 717 (7th Cir.1982). The resolution of the dispute at issue in this forum will not disrupt proceedings in the superior court, even assuming Luksch is entitled to an accounting. Finally, since the federal court is in close proximity to the D.C. court, we assign no weight to Luksch's forum non conveniens argument. We affirm the denial of motions for summary judgment, but reverse the decision to abstain.
REVERSED AND REMANDED.
. In addition to Gordon, defendants included William A. Dietch, Sol Klein, and several GLM entities.
. The other well-settled principles of abstention, of course, do not apply here. See Railroad Comm'n v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941) (when questions of state law may dispose of the case); Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943) (to avoid unnecessary conflict with state law and administration); County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 79 S.Ct. 1060, 3 L.Ed.2d 1163 (1959), and Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 79 S.Ct. 1070, 3 L.Ed.2d 1058 (1959) (eminent domain-type abstention when state law is unsettled); Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) (to avoid restraint of state criminal proceedings).
Question: Did the interpretation of federal statute by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_r_bus
|
3
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of 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.
R. H. MACY &. CO., Inc., v. MACY’S DRUG STORE, Inc., et al.
No. 6044.
Circuit Court of Appeals, Third Circuit.
May 29, 1936.
Sterling & Willing, of Philadelphia, Pa. (Leon Lauterstein, Melbourne Berger-man, and Emanuel Dannett, all of New York City, of counsel), for appellant.
Albert M. Cohen and Harry Langsam, both of Philadelphia, Pa., for appellees.
Before BUFFINGTON, DAVIS, and THOMPSON, Circuit Judges.
BUFFINGTON, Circuit Judge.
This is an appeal from a decree of the District Court for the Eastern District of Pennsylvania, which counsel agree be heard here as if on final hearing. Suit was brought against Macy’s Drug Store, Inc., Irving H. Bernett, and Irvin Rosenfeld, by R. H. Macy & Co., Inc., for an injunction to restrain them from using the name “Macy” in their business.
In its own extensive business the plaintiff company conducts a retail department store in New York City, and does a large volume of interstate business in the United States and very considerable business in the city of Philadelphia. One of its departments deals in drugs, medicines, cosmetics, toilet preparations, cigars, cigarettes, and other articles commonly sold in drug stores. The plaintiff is commonly referred to as “Macy’s,” and its drug department is operated under the name Macy’s Drug Department.
The defendants, whose names are Bernett and Rosenfeld, operate a drug store in the city of Philadelphia, and have registered the name “Macy’s Drug Store” under the Fictitious Names Act (54 P.S. § 21 et seq.). They also use signs on their store stating it is Macy’s Drug Store. No one connected with the defendants store is named Macy. The defendants’ explanation is that they innocently used the last two syllables of the word “pharmacy” in their slogan,. “The last word in pharmacy” as the basis for their use of the name “Macy.” This contention does not deceive this court as to what their real purpose is; namely, to appropriate the good will and trade of the Macy Company.
The District Court refused to find that the defendants were guilty of unfair competition and, therefore, denied the injunction. We think, however, that the word “Macy’s” had acquired a secondary meaning and referred to the plaintiff’s business ; that its application to the defendants’ business was misleading; that its use was intended to, and had a tendency to, mislead and deceive the public into the belief that the defendants’ business was connected with that of the plaintiff. Indeed, the entire atmosphere surrounding the acquisition of the name “Macy’s” by the defendants justifies a conclusion that there was a palpable attempt to make use of the plaintiff’s reputation and good will, acquired through many years of advertising, and appropriate it to the benefit of the defendants and deceive the public. Such holding is in accord with Macy & Co. v. Colorado Clothiftg Mfg. Co. (C.C.A.) 68 F.(2d) 690, and Wall v. Rolls-Royce, 4 F.(2d) 333, 334, where this court said: “We feel the court below, sitting in equity, was justified in preventing the defendant from veiling his business under the name of ‘Rolls-Royce,’ for he had, and could have had, but one object in view, namely, to commercially use as his own a commercial asset that belonged to others, the continued use and abstraction of which is so fraught with such possibilities of irremediable injury that the only way to remedy it is to stop it at the start.”
So holding, the decree below is vacated and the .record remanded, with instructions to reinstate the bill and grant a permanent injunction.
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_r_fiduc
|
2
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of 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.
In re DIVERSEY BLDG. CORPORATION. DIVERSEY BLDG. CORPORATION v. METROPOLITAN TRUST CO. et al.
No. 8387.
Circuit Court of Appeals, Seventh Circuit.
Feb. 29, 1944.
Arthur Abraham and Hyman J. Rosenberg, both of Chicago, for appellant.
Isaac E. Ferguson, Morton Lane, Edward Rothbart, and J. M. Rosenfield, all of Chicago, for appellees.
Before- EVANS, SPARKS, and MIN-TON, Circuit Judges.
SPARKS, Circuit Judge.
The debtor filed its motion in the District Court for permission to file its petition to amend and modify the plan of reorganization which had theretofore been approved and confirmed by that court, and was then being effectuated by the debtor and the defendant trustees appointed by the District Court for that purpose.. With that petition the debtor tendered its proposed modified or amended plan, asked that it be set for hearing on a day certain, find that notice of that fact be given to all creditors and stockholders, in order that those desiring to do so might object to, or accept, the proposed amended plan, and withdraw their acceptance of the original plan. Both trustees under the trust indenture filed written objections to the motion, and the matters in issue were briefed by all parties. The District Court denied the debtor’s motion to file its petition, and from that ruling this appeal is prosecuted.
The motion here in issue was filed by the debtor, on February 25, 1943, in its original bankruptcy proceeding, wherein its original petition for reorganization,was filed June 22, 1934. In that proceeding, the debtor, on February 25, 1935, filed its proposed plan of reorganization, which was approved by the bankruptcy court on April 20, 1935. In its decree the court found that the debtor’s proposed plan complied with the provisions of the pertinent statutes, and had been accepted by the requisite percentage of the debtor’s creditors and stockholders. It authorized the debtor corporation to take all action necessary to consummate it, and set the cause for further hearing with respect to the allowance of fees and expenses, and the entry of a final decree.
At that time the creditors were the holders of 6%% first mortgage bonds issued by the debtor on May 22, 1924, which were guaranteed by Fred Becklenberg. The original amount of those bonds was $1,-250,000. However, at the time of the approval of the original plan, it had been reduced by payments and retirement to $987,500, of which $135,700 were in the hands of Johnson H. Pace and Fred Becklenberg, Jr., as trustees, the latter now being president of the debtor company.
The approved plan proposed to exchange the outstanding 6%% bonds for new 15 year first mortgage bonds, guaranteed by Fred Becklenberg, to bear interest at 5% per annum, if earned during the life of the bonds, but with minimum interest at 3% per annum guaranteed. The new issue was to consist of $851,000 series “A” bonds, and $135,000 series “B” bonds. However, nothing was to be paid on the “B” bonds until all interest and principal on the “A” bonds were paid in full.
The District Court, on June 28, 1935, entered what it termed its final decree, ordering the confirmed plan carried out. Pursuant to that decree the debtor executed a trust deed, securing the new bonds, to Metropolitan Trust Company as corporate trustee, and Benjamin V. Halstead, as individual trustee; it executed and delivered a chattel mortgage upon the furnishings and equipment of the hotel, then being operated in the building, to the Metropolitan Trust Company as mortgagee, as additional security for the bonds issued; it furnished resolutions of its board of directors authorizing its officers to execute and deliver all the bonds, the trust deed and chattel mortgage referred to in the plan, and they were so delivered; the debtor and its stockholders delivered to the trustees all the outstanding shares of the debtor’s capital stock as security under the terms of the indenture; the bonds of Pace and Becklenberg, Jr., so delivered, were endorsed with the legend that they were subordinated and exchangeable for series “B” bonds; Fred Becklenberg executed and delivered to the mortgage trustees his guaranty of the bond principal and the minimum annual interest of 3%; the trustee under the trust deed of May 22, 1924 released that lien, and the indenture trustees thereupon ■ distributed the bonds according to the plan.
Creditors were enjoined from prosecuting proceedings at law or in equity against the debtor or its assets upon any claim, whether or not filed therein, and all rights and interests of creditors of the debtor were thereby terminated and ended.
The debtor was directed to take all steps necessary to consummate the plan, and, in conjunction with the bondholders committee, to construe and interpret the provisions of the plan, and to make such alterations, modifications, changes and amendments to the documents and instruments thereby approved as might be deemed necessary to properly consummate the plan, provided that no such alteration should be made without the authority of the court, if it should be adverse to the interest of any of the creditors or stockholders of the company.
For the determination of all matters germane to that proceeding, not theretofore or thereby determined, the debtor, or any other party in interest, might apply to that court for further instructions and directions with respect to any of the matters covered in the order of confirmation, or in the order then being entered, or by the plan. The court reserved jurisdiction to hear and determine the subject matter of any application with respect to all other matters which might arise in the execution of the order of confirmation, “or in this order, or in the consummation or carrying out of the plan of reorganization.” In this final decree no changes were made in the plan which had been confirmed and ordered consummated by the decree of April 20, 1935.
The new bonds and trust indenture were made effective as of May 1, 1935, and the bonds are to mature in 1950. Since May 1, 1935, the debtor has operated this property under the terms of the trust indenture. All taxes have been paid. The guaranteed 3% interest on the class “A” bonds has all been paid promptly, and a large amount of the additional 2% interest upon the same bonds, which was to have been paid if earned, has been paid, up to and including the year 1942. This was due to the fact that the debtor was enabled to and did pay on that interest account 6% during the year 1942, and a fraction more than 6% during each of the years 1940 and 1941. However, the earnings have not been sufficient to retire any part of the bonded indebtedness, and no funds are available for allocation to the sinking fund for that purpose. Herein is the basis of appellant’s contention.
Notwithstanding the fact that since 1938 the gross income of the debtor company has averaged approximately $8000 per month, and that in each year since 1939 there has been available more than $50,-000 for interest on the bonds, appellant has presented its motion and petition, under the original proceeding, for an amended plan of reorganization. This it does on the theory that no part of the principal can or will be paid before or on the date when due in 1950. It bases its right to an amended plan of reorganization on that part of subsection f of section 77B, Bankr. Act, 11 U.S.C.A. § 207, sub. f, which reads as follows:
“Before or after a plan is confirmed, changes and modifications may be proposed therein by any party in interest and may be made with the approval of the judge after hearing upon notice to creditors and stockholders, subject to the right of any creditor or stockholder who shall previously have accepted the plan to withdraw his acceptance, within a period to be fixed by the judge and after such notice as the judge may direct, if, in the opinion of the judge, the change or modification will be materially adverse to the interest of such creditor or stockholder, and if any creditor or stockholder having such right of withdrawal shall not withdraw within such period, he shall be deemed to have accepted the plan as changed or modified: Provided, however, That the plan as changed or modified shall comply with the provisions of subdivision (b) of this section and shall have been or shall thereafter be accepted as required by the provisions of subdivision (e), clause (1), of this section, including acceptances by reason of failure to withdraw as hereinbefore provided, and the provisions of this subdivision (f), and of subdivision (e), clause (2), of this section, shall have been complied with in respect thereof.”
The proposed plan which accompanies the debtor’s motion contemplates a change in the capitalization of the debtor to provide for an authorized capital stock of 8,518 shares of preferred stock of the par value of $50 per share, and 16,000 shares of no par common stock. It further provides that the present Class A and Class B bonds, secured by the trust indenture, shall be cancelled, and in exchange therefor the holders of each Class A bond of the par value of $100 shall receive $50 in cash, one share of preferred stock, and one-half share of common stock. The holders of the present Class B bonds shall receive nothing for their cancellation. The remaining shares of no par common stock shall be exchanged with the present beneficial owners of the stock of the debtor corporation on a pro rata basis.
The proposed plan provides that a new first mortgage loan shall be secured of $425,900, out of which shall be paid the 50% of the present Class A bonds in cash, and the costs of reorganization. The rate of interest on this loan is not disclosed. However, the plan states that the amount of the mortgage is substantially the entire amount that could be realized from the sale of the property. The cash payment of 50% would relieve Fred Becklenberg from that amount of his present guaranty, and the plan further relieves him from his guaranty of 3% dividends on the stock. He only guarantees the redemption.of the proposed preferred stock fifteen years from the date of its issuance.
We cannot accept appellant’s interpretation of subsection f of this Act. We are convinced that Congress did not intend that a debtor corporation should be permitted to ask for a radical change of plan of reorganization after it had been confirmed by the court and was being executed under the court’s supervision. It is quite true that the quoted language from subsection f states that changes and modifications may be proposed before or after a plan is confirmed, however, this subsection must be construed with other pertinent subsections, such as g and h, in determining the intention of Congress. Here the plan as confirmed had been in operation for almost eight years, without complaint so far as this record shows, and it was originally proposed by the debtor itself. Under these circumstances we think the court was without jurisdiction to entertain appellant’s motion. We interpret subsection f to mean that changes and modifications after the plan is confirmed refer to such changes as will better aid in carrying out the plan which has been finally confirmed, and not such changes or modifications as will materially alter the property rights established by the decree of confirmation, and in no event shall any change be made without the consent of the court.
In support of its contention, appellant relies on In re H. W. Clark Co., 7 Cir., 79 F.2d 681; Downtown Investment Association v. Boston Metropolitan Buildings, 1 Cir., 81 F.2d 314; and In re Celotex Company, D.C., 12 F.Supp. 1. These cases relate to amendments of the plan of reorganization before its consummation, and for that reason we think they are not in point. We find no authority supporting appellant’s interpretation of subsection f. Carried to its ultimate conclusion we think it would end in confusion worse confounded both for the creditor and the debtor.
Appellant urges that the decree of June 28, 1935 was not a final decree in that the cause was not finally disposed of. That decree, however, was interlocutory in its character, and definitely fixed all the rights of all the parties, and it was a final and appealable decree. True, the terms of the trust indenture were not fully performed, and, indeed, full performance could not be required until 1950. However, the property rights were fixed, there was no failure of performance on the part of the debtor and its guarantor, and there was no indication that there would be such failure until the principal of the debt was due. Under these circumstances we think that neither the debtor nor the court could alter those property rights as fixed by the interlocutory decree.
The District Court did not indicate the basis for its ruling. However, we think it was without jurisdiction to grant the relief prayed for. If otherwise, certainly in such matters the District Court necessarily had discretionary powers under the statute. If its ruling was based on the court’s discretionary powers, we think that discretion was not abused. If, on the other hand, it considered the petition as one for a rehearing on the confirmation of the plan, then the order was not appealable.
The order is affirmed.
Question: What is the total number of respondents in the case that fall into the category "fiduciaries"? Answer with a number.
Answer:
|
songer_altdisp
|
A
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on an issue arising out of an alternative dispute resolution process (ADR, settlement conference, role of mediator or arbitrator, etc.) favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
Faris Abdul MATIYN, Plaintiff-Appellant, v. Robert HENDERSON, Superintendent of Auburn Correctional Facility, and Joseph Costello, Deputy Superintendent for Security at Auburn Correctional Facility, Defendants-Appellees.
No. 279, Docket 87-2201.
United States Court of Appeals, Second Circuit.
Submitted Nov. 6, 1987.
Decided March 1, 1988.
Faris Abdul Matiyn, pro se.
Robert Abrams, Atty. Gen., Albany, N.Y. (Peter H. Schiff, Deputy Sol. Gen., Nancy A. Spiegel, Daniel Smirlock, Asst. Attys. Gen., of counsel), for defendants-appellees.
Before LUMBARD, PIERCE, and MINER, Circuit Judges.
PIERCE, Circuit Judge:
In May, 1985, appellant Faris Abdul Ma-tiyn was transferred from the general prison population of Auburn Correctional Facility (“Auburn”) in New York to a special housing unit at the prison, and from the special housing unit to the general prison population at Attica Correctional Facility (“Attica”). Matiyn subsequently commenced this action for damages pursuant to 42 U.S.C. § 1983 against Robert Henderson, the Superintendent of Auburn, and Deputy Superintendent Joseph Costello, alleging that the transfers violated his constitutional rights under the fourteenth amendment. Matiyn now appeals pro se from a judgment of the United States District Court for the Northern District of New York, Howard G. Munson, Ch. J., denying appellant’s motion for summary judgment, granting appellees’ motion for summary judgment, and dismissing the complaint. We affirm.
BACKGROUND
The essential facts herein are not in dispute. Appellant Matiyn, who is currently imprisoned at the Attica Correctional Facility, is a member of the Sunni Muslims, a religious sect. Prior to his transfer from Auburn to Attica, Matiyn was chosen by his fellow Sunni Muslim prisoners to serve as their prayer leader, or imam. On May 5, 1985, amid rumors of impending trouble among factions of the Muslim community of prisoners at Auburn, Sergeant Marroc-cia requested permission from his watch commander to search for contraband in the area of the prison chapel that served as Matiyn’s office. Permission was granted and Marroccia, accompanied by the prison chaplain, Father Enright, searched Ma-tiyn’s office. During the course of the search, Marroccia found a folder, which Father Enright thought belonged to Ma-tiyn, lying on top of the altar. Inside the folder was a twelve-inch homemade knife. Another knife, some eleven inches long, was discovered in another part of the chapel.
The following day, the corrections officer assigned to the chapel area observed a Muslim inmate by the name of Cunningham pacing nervously up and down the hallway outside the chapel. After the noon meal, Cunningham failed to return to the chapel at his usual hour, and stayed away until 2:15 p.m. In the meantime, Matiyn had inquired as to Cunningham’s whereabouts a number of times. According to the observing officer, there seemed to be hard feelings between the Sunnis and another religious sect, the American Muslim Mission, over the knives found in the chapel.
On the basis of the foregoing evidence, officials at Auburn confined Matiyn to a “special housing unit” (“SHU”) at 3 p.m. on May 6, 1985. Four days later, at about 2 p.m. on May 10, Matiyn was released from the SHU and transferred to Attica. It is not disputed that Matiyn was not informed of the reasons for his detention and transfer.
Matiyn subsequently commenced the subject action pursuant to 42 U.S.C. § 1983 (1982), alleging essentially that both his confinement in Auburn’s SHU and his subsequent transfer deprived him of a liberty interest without due process. Matiyn and the defendants, Henderson and Costello, filed cross-motions for summary judgment.
On March 4, 1987, United States Magistrate Scanlon issued a report recommending'that summary judgment be entered in favor of the defendants. Chief Judge Mun-son adopted the report, granted judgment for the defendants, and dismissed the complaint. This appeal followed. We affirm the judgment for the reasons that follow.
DISCUSSION
I. Confinement to SHU and Transfer to Attica
Matiyn principally contends on appeal that appellees violated his right to due process (1) by confining him to SHU for four days without a hearing, and (2) by subsequently transferring him to Attica without notice and a hearing. In resolving these claims, we must determine (1) whether Ma-tiyn was deprived of a protected liberty interest; and (2) if so, what process was due him. See Logan v. Zimmerman Brush Co., 455 U.S. 422, 428, 102 S.Ct. 1148, 1154, 71 L.Ed.2d 265 (1982).
Initially, we note that Matiyn’s claim that the transfer from Auburn to Attica deprived him of a protected liberty interest without due process is without merit. As a general rule, there is no constitutionally based liberty interest that entitles a prisoner to a hearing or any other safeguards before being transferred from one prison to another, absent a state law or regulation conditioning such transfer on proof of misbehavior or other specified events. See Montanye v. Haymes, 427 U.S. 236, 242, 96 S.Ct. 2543, 2547, 49 L.Ed.2d 466 (1976); Meachum v. Fano, 427 U.S. 215, 225, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976). Matiyn had no liberty interest in remaining at the Auburn facility since New York law does not place conditions on interprison transfers. Montanye, 427 U.S. at 243, 96 S.Ct. at 2547; Sher v. Coughlin, 739 F.2d 77, 80 (2d Cir.1984).
More difficult to resolve is the issue of whether Matiyn’s four-day confinement in Auburn’s SHU prior to being transferred to Attica deprived him of a protected liberty interest. In analyzing intraprison restrictive confinements, this circuit has drawn a distinction between confinement as a disciplinary sanction and confinement as an administrative procedure. Generally, when an inmate of the New York prison system is confined to SHU for disciplinary reasons, he is deprived of a liberty interest which is protected by state law. Sher, 739 F.2d at 81. Under such circumstances, due process entitles the prisoner to certain procedural protections as set forth in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). On the other hand, when a prisoner is confined to SHU for administrative reasons, he is entitled to fewer procedural protections. Generally, prison inmates have no liberty interest in remaining within the general prison population, and out of administrative segregation, unless the state has chosen to create such an interest by enacting certain statutory or regulatory measures. Hewitt v. Helms, 459 U.S. 460, 468-69, 103 S.Ct. 864, 869-70, 74 L.Ed.2d 675 (1983). The mere adoption by the state, however, of “procedural guidelines, without more,” is insufficient to give rise to a liberty interest protected under the fourteenth amendment; only “the repeated use of explicitly mandatory language in connection with requiring specific substantive predicates demands a conclusion that the State has created a protected liberty interest.” Id. at 471-72, 103 S.Ct. at 871. In addition, even when the state creates a protected liberty interest, the inmate confined for administrative reasons is entitled to only minimal process— “some notice of the charges against him and an opportunity to present his views to the prison official charged with deciding whether to transfer him to administrative segregation.” Id. at 476, 103 S.Ct. at 874; see also Bolden v. Alston, 810 F.2d 353, 357 (2d Cir.1987). Ordinarily, a written statement by the inmate to the prison officials who are reviewing his confinement will demonstrate that an inmate has been notified of the charges against him and that he has been given an adequate opportunity to present his views to those officials. Hewitt, 459 U.S. at 476, 103 S.Ct. at 874.
In the present case, appellees claim (1) that Matiyn’s four-day confinement was administrative, not punitive; and (2) that the governing statutes and regulations of the State of New York do not bestow upon prison inmates a protected liberty interest in remaining free from administrative segregation. To assess these claims, we note first that the relevant state statute permits the State Department for Correctional Services to adopt whatever regulations it sees fit for the classification of inmates. N.Y. Correc.Law § 137(1) (McKinney 1987); see also Hall v. Unknown Named Agents, 825 F.2d 642, 645-46 & n. 1 (2d Cir.1987); Sher, 739 F.2d at 81. Pursuant to this grant of authority, the Commissioner has promulgated Title 7, Part 304 of the New York Code of Rules and Regulations, relating to “Admission to Special Housing Units.” Our reading of Part 304 suggests that Ma-tiyn may have been placed in administrative confinement under either 7 N.Y.C.R.R. § 304.1(a), relating to “automatic admissions,” or § 304.1(b), relating to “protective admissions.” Therefore, we must determine whether a protected liberty interest can arise out of either of these provisions.
Turning first to § 304.1(a), we note that “automatic admission” shall apply, inter alia, in the case of “a special housing unit used for inmates assigned there temporarily by the central office reclassification and review team for the purpose of evaluation and reclassification.” 7 N.Y.C.' R.R. § 304.1(a)(l)(4). See also 7 N.Y.C.R. R. § 300.3(5) (stating that SHU’s may be used to provide a place for housing persons who are assigned for the purpose of evaluation and reclassification). The regulations set forth no procedures that must be undertaken prior to an automatic admission; consequently, the state impairs no protected liberty interest by placing an inmate in SHU for the purpose of reclassification. Hall, 825 F.2d at 644; Sher, 739 F.2d at 81. We conclude that if Matiyn was confined pursuant to automatic admission, he was not deprived of a protected liberty interest.
As noted above, however, Matiyn may have been confined to administrative segregation pursuant to 7 N.Y.C.R.R. § 304.1(b), which governs “protective admission.” Under this provision, protective admission shall apply, inter alia, in the case of inmates who must, “for good cause, be restricted from communication with the general inmate population.” In accordance with this rule, a decision to confine Matiyn to protective admission pending his transfer to Attica might be justified by the need to restrict him from communicating with the general inmate population during a time of high tension following the discovery of the knives. See, e.g., Deane v. Dunbar, 777 F.2d 871, 873, 875-76 (2d Cir.1985) (inmates transferred temporarily from Attica to Auburn, to stand trial in county courthouse on Attica riot charges; court recognized that involuntary protective custody might be appropriate to preserve safety of inmates and others). Since Matiyn may have been confined pursuant to a protective admission, we must determine whether the applicable regulations give rise to a protected liberty interest.
In our view, the applicable regulations relating to admission to SHU do create a protected liberty interest in remaining free from involuntary protective admission. Under 7 N.Y.C.R.R. § 304.2(b), protective admission cases may be placed in special housing units only in accordance with § 304.3 (“Protective Admissions”), and only when such action is authorized, in writing, by a supervisory officer designated by the superintendent to grant approval in such cases. No variation from these procedures is permitted under any circumstances. 7 N.Y.C.R.R. § 304.2(d). Three other provisions are relevant in determining whether the regulations create a protected liberty interest. First, under § 304.3(a), protective admission to a special housing unit may be made only when there is substantial evidence that such action is necessary, unless the inmate consents to the admission. Second, under § 304.3(c):
Where the inmate does not consent to a protective admission to a special housing unit, a proceeding will be held within 14 days of the date of such admission to determine if there is substantial evidence that protective custody is necessary. The proceeding shall be conducted in accordance with the procedures for a superintendent’s hearing. An" inmate may appeal the finding of substantial evidence in accordance with the provisions of Part 254 of this Title.
Finally, under § 304.3(d), an inmate confined involuntarily under protective admission “shall be specifically advised that he has the right to communicate with the commissioner with respect to his confinement in the special housing unit.” Like the regulations at issue in Hewitt, the New York regulations relating to protective admission contain “language of an unmistakably mandatory character,” Hewitt, 459 U.S. at 471, 103 S.Ct. at 871, such as the requirement that protective admission may be employed only when the superintendent authorizes such confinement in writing. In addition, the New York regulations specify substantive predicates upon which a protective admission may be based, see Hewitt, 459 U.S. at 472, 103 S.Ct. at 871-72, such as the need to restrict the inmate from communicating with fellow prisoners. Based on what we perceive as the “repeated use of explicitly mandatory language,” id., in connection with specified conditions authorizing the use of protective admission, we conclude that the State of New York has created a protected liberty interest in inmates remaining free from involuntary protective admission.
Moreover, on the facts before us, we believe that if Matiyn was involuntarily detained under the protective admission regulations, he was deprived of a protected liberty interest without due process of law. As noted above, the fourteenth amendment requires that an inmate who is deprived of a protected liberty interest must be provided with some notice of the charges against him, and a minimal opportunity to present his views to prison officials. See Hewitt, 459 U.S. at 472, 476, 103 S.Ct. at 871-72, 874. In the present case, however, Matiyn received no process whatsoever. Moreover, appellees are incorrect in asserting that inmates held in administrative segregation for less than fourteen days are not entitled to a hearing under 7 N.Y.C.R.R. § 304.3(c). In the first place, the regulation states only that a proceeding will be held within fourteen days of admission; in our view, the regulation does not suggest that prisoners detained for less than fourteen days may be denied any opportunity at all to contest the detention. Second, even if the regulation could reasonably be construed in the manner suggested by appellees, the constitutional requirement of notice and a hearing would override any regulatory provision to the contrary. For the foregoing reasons, we conclude that if Matiyn was subjected to a protective admission without some form of notice and a hearing, he was deprived of his rights under the fourteenth amendment.
Nevertheless, we believe that, even if appellant was the subject of an administrative protective admission, appellees are entitled to summary judgment on the ground of qualified immunity. As a general rule, state officials are shielded from liability for civil damages in § 1983 actions “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). Two factors suggest to us that appellees’ decision to confine Matiyn to protective admission without notice and a hearing did not violate clearly established law. We note first that, under Hewitt, to determine whether a given regulation creates a protected liberty interest requires an assessment, inter alia, as to whether the regulatory language is “of an unmistakably mandatory character,” Hewitt, 459 U.S. at 471, 103 S.Ct. at 871 (emphasis added). Although we believe that the language of § 304.3 is sufficiently mandatory to create a protected liberty interest, we recognize that Auburn officials heretofore could reasonably have reached a different conclusion. Second, although we interpret § 304.3(c) to require a hearing within fourteen days of the date of admission, and not to eliminate the need for a hearing when, an inmate is confined for a shorter period, we recognize that the regulation is not a model of clarity. Indeed, both the magistrate and the district court accepted appellees’ interpretation of § 304.3(c). Finally, we note that until now there has been no judicial decision or interpretation of the regulations that could have guided the actions of prison officials. We therefore conclude that, even if Matiyn was subjected to administrative detention under the protective admission regulations, and even though appellees’ failure to provide Matiyn with notice and an opportunity to present his views violated his right to due process, qualified immunity protects appel-lees from liability upon the facts of this case.
Finally, we conclude that, even if Matiyn was placed in SHU partly for punitive reasons, he is not entitled to relief herein. We have previously held that an interim confinement pending disciplinary hearings is administrative, not disciplinary. See Bolden, 810 F.2d at 857 n. 3. In like manner, Matiyn’s four-day confinement was simply an interim placement, justifiable either for the purpose of evaluation and reclassification, or for the purpose of restricting him from communication with other prisoners, pending his transfer to another prison. Since Matiyn would have been confined in administrative segregation regardless of any punitive motivation, he was not entitled to the heightened due process procedures associated with disciplinary confinement. See Deane, 777 F.2d at 877; Sher, 739 F.2d at 82.
The foregoing analysis may be summarized as follows. Appellant was subjected to either “automatic admission,” under § 304.1(a)(4), or to “protective admission” under § 304.1(b). If Matiyn was confined under § 304.1(a)(4), however, his rights were not violated because this provision does not give rise to a liberty interest cognizable under the fourteenth amendment. If Matiyn was confined under § 304.1(b), he was deprived of a liberty interest without due process of law. Under this second view, however, appellees are protected from liability by the doctrine of qualified immunity. Finally, even if appellees were motivated in part by punitive considerations, Matiyn was not entitled to the procedures normally associated with disciplinary confinement, because the confinement would have been undertaken in any event on the facts herein for administrative pur- • poses alone.
II. First Amendment Claim
Matiyn contends on appeal that appel-lees’ decision to confine him to administrative segregation violated his first amendment right to freedom of religion. Among other things, appellant argues that, during his confinement, he was prevented from attending congregate services, as required by his religion. The district court held that Matiyn was precluded from raising this issue because it had not been stated in his complaint; instead, Matiyn raised the issue for the first time in his motion papers.
We believe that the district court was correct in holding that the first amendment claim was not properly raised in the complaint. In any event, we agree with the district judge’s alternative holding, that Matiyn was prevented from attending communal services for reasons related to legitimate penological objectives, and that his claim was therefore without merit. See, e.g., O’Lone v. Estate of Shabazz, — U.S. —, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987) (prison officials did not violate inmate’s rights, by assigning him to outside work detail that prevented him from attending weekly congregational service, because rules relating to outside assignments were reasonably related to legitimate penological objectives); Fromer v. Scully, 817 F.2d 227 (2d Cir.1987) (prison officials can require inmate to trim his hair and beard, in contravention of his religious beliefs, to further legitimate government interests).
We have examined appellant’s other arguments and find them to be without merit. For the foregoing reasons, we affirm the judgment in all respects.
. Of course, as we have pointed out above, even if § 304.3 did not include the fourteen-day provision, the fourteenth amendment would entitle appellant to some type of notice and an oppor-tunty to be heard, because the remaining portions of Part 304 create a liberty interest in remaining free from involuntary protective admission.
. The complaint states, inter alia, "i [Matiyn] am the suni muslim imam and because i am the suni muslim imam, i was illegally placed in the special housing unit without a notice and a hearing [sic].” Conceivably, this language could be construed to support a claim that prison officials denied Matiyn his right to equal protection on the basis of his religion. Nevertheless, there is no evidence in the record to support such a claim.
Matiyn requested leave to raise additional issues, including his first amendment claims, by way of an amended complaint, but this request was denied by the district court. Matiyn nonetheless argued some of these additional claims in his motion papers.
Question: Did the court's ruling on an issue arising out of an alternative dispute resolution process (ADR, settlement conference, role of mediator or arbitrator, etc.) favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_district
|
C
|
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".
DICKMAN LUMBER COMPANY, a Washington corporation, Appellant, v. UNITED STATES of America, Appellee.
No. 19923.
United States Court of Appeals Ninth Circuit.
Jan. 19, 1966.
Rehearing Denied Feb. 28, 1966.
Owen P. Hughes, Neal, Bonneville & Hughes, Tacoma, Wash., for appellant.
Richard M. Roberts, Acting Asst. Gen., Meyer Rothwacks, Gilbert E. Andrews, Martin T. Goldblum, Attys., Dept, of Justice, Washington, D. C., William N. Goodwin, U. S. Atty., Tacoma, Wash., for ap-pellee.
Before POPE, BARNES and HAM-LEY, Circuit Judges.
POPE, Circuit Judge.
Appellant corporation was assessed an accumulated earnings tax under the provisions of § 531 of the Internal Revenue Act of 1954. It paid the tax and then sued for refund in the court below.
The tax assessed related to accumulated income for 1959. In that year such income amounted to $142,091.88. From this it paid dividends and other sums to stockholders amounting to $13,060.76. Upon the balance, $129,031.12, the tax of $38,676.98 was assessed. As of December ”31, 1959, appellant’s current assets and current liabilities (in round dollars) were as follows:
Current Assets:
Cash $ 331,852
Short Term Securities 850,000
Accounts Receivable 102,965
Log Inventories 463,186
TOTAL $1,748,003
Current Liabilities
Accounts — Wages Payable 36,545
Accrued Income Tax 156,086
192,631 TOTAL
All of the stock of the corporation (except for four qualifying shares in the names of employees) were owned by Ralph L. Diekman and his wife. Had the entire $129,000 mentioned been distributed in dividends in 1959, the Dickmans’ tax liability would have been increased by more than $87,000.
The trial court held that appellant’s “accumulated earnings and profits were in excess of its reasonably anticipated needs as of the end of 1959 and that the said $129,031.12 was not so needed”; that plaintiff had failed to sustain its burden of proving that it did not have, as one of its purposes for accumulating earnings and profits, the avoidance of income taxes on its shareholders.
Appellant contends that “[a] 11 undistributed earnings and surplus in excess of cash dividends paid in the sum of $12,000 at the end of 1959, were necessary for the four following reasonably anticipated needs of appellant’s business, and by reason thereof such earnings and surplus had not been accumulated for the purpose of avoiding surtax upon the shareholders of appellant: 1. Reserves required to meet competition, fluctuations and hazards of business. 2. Large amounts of available money required in supplying appellant’s mill with logs and timber. 3. Expenditures required for planned modernization and improvements of appellant’s mill. 4. Corporate funds required for payment of federal estate, state inheritance taxes and expenses of administration on retirement of a decedent shareholder’s stock under § 303 of the 1954 Code on the death of either or both of the two principal shareholders of appellant.”
The findings of the court examine in detail and in depth each of these claimed reasons for the accumulations made. In each case the court found as a fact that these claims were without basis, that “the earnings and profits of the plaintiff, in addition to the said $129,031.12 were more than sufficient, in view of the liquidity of the corporation, to meet its anticipated needs.”
The key question here is whether there was accumulation “beyond the reasonable needs of the business”. This, in our view, was a question of fact. Lundgren v. Freeman, 9 cir., 307 F.2d 104 And the trial court’s finding with respect thereto is supported by evidence.
Since we hold that the findings of the trial court are not clearly erroneous, we must affirm the judgment. It is so ordered.
. That section and related sections are as follows:
“§ 531 [Title 26, U.S.C.A.] Imposition of accumulated earnings tax. In addition to other taxes imposed by this chapter, there is hereby imposed for each taxable year on the accumulated taxable income (as defined in section 535) of every corporation described in section 532, an accumulated earnings tax equal to the sum of — •
“(1) 27% percent of the accumulated taxable income not in excess of $100,000 plus
“(2) 38% percent of the accumulated taxable income in excess of $100,000.”
“§ 533 [Title 26 U.S.C.A.] Evidence of purpose to avoid income tax. (a) Unreasonable accumulation determinative of purpose. — For purposes of section 532, the fact that the earnings and profits of a corporation are permitted to accumulate beyond the reasonable needs of the business shall be determinative of the purpose to avoid the income tax with respect to shareholders, unless the corporation by the preponderance of the evidence shall prove to the contrary.”
Ҥ 537 [Title 26, U.S.O.A.] Reasonable needs of the business.
“For purposes of this part, the term ‘reasonable needs of the business’ includes the reasonably anticipated needs of the business.”
. Among the statements cited as authoritative in appellant’s brief is the following from Mertens, Law of Federal Income Taxation, § 39.32: “The question of reasonable accumulation is one of fact to be decided upon the basis of principles of sound business management.”
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
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songer_respond1_7_2
|
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 "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained").
FITZGERALD v. McFADDEN et al.
No. 269.
Circuit Court of Appeals, Second Circuit.
March 15, 1937.
Edwin V. Hellawell, of New York City, for appellant.
O’Connor & Farber, of New York City (W. Lee Helms and Arnold T. Koch, both of New York City, of counsel), for appellees.
Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
L. HAND, Circuit Judge.
This is an appeal from a decree in equity, dismissing a bill between- co-adventurers. The facts are as follows: The defendant, McFadden, in the summer of 1931, by his solicitor, the defendant, Helms, filed an application for a patent on a process for cleaning ships’ oil tanks. The plaintiff, Fitzgerald, who had lived in Georgia, and had been engaged all his life in shipping, met McFadden and Helms on November 18th, 1931, and they interested him in a project to exploit this invention. The three had a number of interviews and came to an agreement, on December 14, 1931, by which Fitzgerald, on behalf of himself and one, Meseck, was to pay $5,-000 to McFadden for an interest in the invention; Fitzgerald was to advance $3,000 to a corporation, the Sealand Process Company, which was to be organized to exploit the patent in the Port of New York; Fitzgerald and McFadden were to contribute between $3,000 and $5,000 toward the expenses of a second company to be organized, to which the patent was to be assigned; and Meseck was to turn over a tug for the use of the Sealand Company. Of the $5,000 later paid to McFadden, $2,-500 came from Meseck; but Meseck’s tug was apparently thought the equivalent of Fitzgerald’s financing of the Sealand Company. In consideration of these promises McFadden and Helms agreed to license the Sealand Company for the Port of New York, and to give Fitzgerald and Meseck jointly thirty-one per cent, of its shares; McFadden was to have fifty-one per cent, and the other eighteen per cent, was to be distributed between Helms and two others. The shares of the holding company when formed were to be divided in the same proportions. Fitzgerald paid $1,000 to McFadden on December fourteenth and the rest of the $5,000 later; just when, the record does not show. The Sealand Process Company was formed in December, and Fitzgerald advanced between $2,-700 and $2,800 to finance it. Again the dates are left uncertain.
Fitzgerald swore that at their first meeting he inquired of Helms whether McFadden’s invention was patentable, and that Helms answered: “I have made thorough'searches of the records in Washington, both foreign and American, and it is new and novel and there has never been anything like it.” However, Fitzgerald appears not to have relied upon this, for he insisted upon a patent lawyer of his own, and on Helms’s recommendation he retained one, Hutchinson, a Washington correspondent of Cooper, Kerr & Dunham, a well known New York firm. He went to Washington with Helms on December sixteenth, but he did not personally see Hutchinson; Helms did, and asked him to complete a search in two days. Hutchinson did what he could, and Cooper, Kerr & Dunham reported the result to Helms on December twenty-fourth, saying that they had not been able to give the necessary time to determine whether the invention was patentable, but that it did not infringe any of ten patents which they enumerated. On November 17, 1931, three months after McFadden had filed his application, a patent issued on an earlier application to an Englishman named Freeman, for a process of “degreasing the interior” of ships’ condensers and the like. On or about January 1, 1932, Helms learned of this, and at once perceived its importance, for he began to bargain for it with the American owners, and on January nineteenth he offered twenty-five hundred dollars for it; and McFadden bought it for himself in May and has held it ever since as his personal property. On February twenty-fourth the patent examiner cited it against McFaddcn’s application; that reference has never been overcome, and up to the time of the trial McFadden had received no patent. '
The parties began to draw apart in the spring of 1932, and had come to a breach by the summer; it is probable that Fitzgerald was already contemplating taking out a patent of his own, which he too meant to keep for himself; but there is no evidence that he knew of the Freeman patent. On the fifteenth of July, 1932, he and Meseck, McFadden, Helms and the two other parties to the project, all entered into an agreement by which they released one another from all obligations; and under which Meseck and Fitzgerald gave back their shares in the Sea-land Company; Meseck received back his tug; and Fitzgerald got a license under the McFadden patent, when issued, for the states of Pennsylvania, Delaware and Maryland. Four days later Fitzgerald learned of the Freeman patent, and, on the second of August, that McFadden had bought it. He says that during the same month he tendered back the license to Helms and demanded his money, but this Helms denied, and the judge made no finding as to where the truth lay between them. On the twenty-second of March, 1933, he filed the bill at bar, seeking (1.) to charge McFadden with a constructive trust of the Freeman patent; (2.), to recover any surplus of what he had paid him that had not gone into it; and (3.) all advances that he had made to finance the Sea-land Process Company. The defendants pleaded the release of July 15, 1932, as a bar, and Fitzgerald replied that it had been procured by fraud.
While the suit was pending the Navy Department had become interested in the exploitation of the invention for its vessels, and opened negotiations with both parties ; with McFadden, as owner of the Freeman patent-and of his own application, and with Fitzgerald as licensee of McFadden in three states, and as patentee of his own patent which had meanwhile issued. The Department secured licenses from both, and paid down $15,000, of which Fitzgerald got a third. Eighteen months before this contract was made, but apparently while the negotiations were pending, they agreed that any arrangement with the Navy Department should be “without prejudice to any and all rights and contentions in any present litigation * * * respecting said patents and applications * * * and further without prejudice to * * * all claims of the respective parties hereto except as to the rights and obligations created by this instrument.”
So much of the bill as seeks to impress a constructive trust upon the Freeman patent on the theory that McFadden had bought it with Fitzgerald’s money, must fall because the judge found that all the money which McFadden used, came from elsewhere. McFadden swore in detail as to how he got it, and the judge, who saw him, believed what he said; his judgment on such an issue was better than ours can be. Upon this appeal Fitzgerald also insists that, no matter whose money purchased the Freeman patent, McFadden and Helms, as co-adventurers in the enterprise, might not buy it in for themselves and hold it as their own. Assuming this to be true, it will not serve Fitzgerald in this suit, because the limit of any relief which those facts would justify, is that McFadden should transfer the patent to the proposed holding company, and give the Sealand Process Company a license under it. Fitzgerald does not want that; he does not suggest that he again become a shareholder of the Sealand Company, or that McFadden proceed to organize the holding company; rather, the very demand for a transfer of the Freeman patent presupposed that he disaffirmed the contract, that the consideration should be restored and that he could trace it into another form. The remainder of the bill is to recover the payments to McFadden which did not go into the Freeman patent; as well as the payments to finance the Sealand Company. As to the first, like the demand for the Freeman patent, it presupposed a disaffirmance of the original contract without which the consideration could not be recovered. The allegations support sucl\ a cause of suit; they are that McFadden and Helms deceived Fitzgerald about the validity of McFadden’s_ invention. The evidence does not, however, prove that when the contract was closed on December 14, 1931, Helms knew of the Freeman patent; he may not have, for it had issued less than a month before. We cannot say, therefore, that there was any fraud in the inception of the contract. Moreover, if it had been once definitely closed, and if there be no implied representation in selling a patent application that a patent will issue, Fitzgerald could not have disaffirmed, merely because Helms learned of the Freeman patent thereafter. The law is indeed settled that if one buys an issued patent and it turns out later to be invalid, the buyer may disaffirm. Darst v. Brockway, 11 Ohio, 462; Herzog v. Heyman, 151 N.Y. 587, 45 N.E. 1127, 56 Am.St.Rep. 646; Harlow v. Putnam, 124 Mass. 553; Keith v. Hobbs, 69 Mo. 84. But it does not follow that the same doctrine applies to a patent application, which is necessarily a gamble anyway. However, we need not decide that here, because of the particular circumstances. We have already quoted what Fitzgerald said that Helms told him about McFadden’s invention. Helms disputed this in part, and though Meseck corroborated Fitzgerald, we will arguendo accept Helms’s version; at least he had told Fitzgerald that he had made a search and had found nothing. That gave Fitzgerald an assurance that, so far as Helms knew, the invention was valid.
But, as we have said, Fitzgerald did not rely upon this; he retained Hutchinson to search and report to him. Although that was after the contract was closed and after he had paid down $1,000, it is obvious that he could only have meant that, in case the report turned out bad, he should have the power to withdraw. No other reasonable interpretation of it is possible. Nevertheless had Fitzgerald made his decision-after consulting his own lawyer, that would have ended it. He did not; it was Helms who got Hutchinson’s report from Cooper, Kerr & Dunham. He got it about December twenty-fourth and kept it till January 21, 1932, three weeks after he had learned of the Freeman patent. Now it is true that the report refused to pass upon the validity of McFadden’s invention because of too little time; but for that very reason Helms must have understood that if Fitzgerald continued in the project, he was relying in some measure upon what Helms had told him, when he said that he had searched and found nothing. Fitzgerald had consulted him and certainly expected some expert advice. When he sent on the report, knowing of the Freeman patent, it was a deceit unless that patent did not impair or substantially affect McFadden’s invention. Further, the report said that McFadden’s disclosure did not infringe any of the ten patents mentioned. If it infringed Freeman’s claims, it was an even plainer fraud to suppress its discovery. Embarrassed for these reasons, Helms and McFadden tried upon the trial to belittle the Freeman patent and say that McFadden’s process did not infringe it. That was altogether contradictory to Helms’s letter to Hutchinson, complaining that Hutchinson had not discovered it; Helms then thought it “exceedingly pertinent” to McFadden’s application and that opinion is confirmed by its repeated citation against the application. But quite aside from these evidences of its importance, a comparison leaves no doubt of its critical character. Taken as disclosure it anticipated every one of McFadden’s claims on file during the first six months of 1932, provided it covered “oil tanks” and the use of tetrachloride. It did both. It was said to cover “condensers and other structures which are not easily accessible”; and indeed that clause was not necessary anyway, because McFadden’s claims would at best have been only for a new use. It used trichlorethylene, but McFadden expressly made that an equivalent of tetrachloride. Limited claims might conceivably have been drawn which would escape; perhaps they still can be; but as the application stood, it was void; and at best any possible value which it could have, was very circumscribed. Furthermore, it is very doubtful whether one could practise McFadden’s process at all without infringing Freeman’s claims. “Heat exchange apparatus” was defined at page 2, lines 38-44, as covering any surfaces “difficult of access”; the inside of oil tanks were such surfaces. Certainly infringement was very likely, and every consideration of honesty demanded that Fitzgerald should be allowed to judge for himself. Therefore, Helms and McFadden — who was chargeable with Helms’s fraud — deceived Fitzgerald while he still could withdraw, and their fraud extended his privilege until he should learn of the Freeman patent. He may recover what he paid unless there be some bar to the suit.
The first defence is the release of July 15, 1932. The fraud invalidated this as well as the contract, unless Fitzgerald had learned of the Freeman patent meanwhile. There is no direct evidence that he had, and the defendants have the affirmative. True, the judge made no finding on the issue, and there is some ground to suspect that the patent may have earlier come to Fitzgerald’s attention. He was .already trying to secure a patent of his own, and had retained a solicitor to make some sort of search, and, as we have said, four days after the release this attorney did report the patent to him- Yet this does not seem to us enough to carry the defendants’ burden and the right to dis-affirm the release like 'that to disaffirm the contract still persisted. The judge thought, however, that Fitzgerald’s delay after learning of the Freeman patent barred disaffirmance. We cannot agree; not even though he did nothing until March, 1933, •when the bill was filed. The defendants had not acted to their detriment in reliance upon his inaction, and seven months is too short a time to infer actual ratification in the absence of some affirmative act. Indeed, Fitzgerald swore that he demanded his money back in August, but Helms denied it, and since the judge would make no finding, we will assume that no demand was made. There is a passage in his testimony which may be read as saying that at one time in some negotiations with the Dupont Company about his own patent he had offered them his license under the McFadden patent; but it is very confusing, not plain enough to prove that he did offer that license. All he meant to say, apparently, was that the Dupont Company had told him that the Freeman patent underlay all the rest. Nothing but such an offer would be a ratification; he needed no license to practise the. invention before a patent issued, if he knew it. The record does not disclose whether the process was ever disclosed to him; originally it was a secret, but after the contract was closed he may have learned it. If he did, he did not learn it as a result of the release; if he did not, it does not appear that it was disclosed to him as part of the consideration for the release; if it was so disclosed, it does not appear that he ever practised it. We can therefore find no evidence of ratification after discovery of the fraud except the delay; and the defendants had the burden of the issue. There is another passage in his testimony which seems to say that he had been offered back his money, but a reading of the whole makes it plain that he did not mean this; and the defendants apparently understood that he did not.
The judge also sustained the defence that Fitzgerald never tendered back his license or Meseck’s tug and that for this reason too he could not disaffirm the release. First, it is to be observed that his tender, even if any were necessary before suit, which it was not would not have included the tug. We have already said that Fitzgerald wants only to disaffirm the contract not to have it reinstated, and the conditions upon one are not the same as upon the other. We can consider the question most clearly by supposing that the two disaffirmances took place in sequence; if the defendants are restored to whatever they should have at the end of both, there is no reason to go through the intermediate steps- To disaffirm the release and get the contract reinstated, Fitzgerald would have to cancel his personal license and Meseck to return his tug; but that was all that both received. Thereupon they would have become entitled to thirty-one per cent, of the Sealand shares and their former status as co-adventurers in the project, being still liable, however, to finance the holding company when formed. If in that posture they had sought to disaffirm the contract they would have had to surrender the Sealand shares; would have become jointly entitled to $5,000; Meseck would have got back his tug; and Fitzgerald his advances to the Sealand Company. Thus at the end of both disaffirmances they would have been exactly where they will be now, if their money is refunded; and McFadden and Helms would have nothing they do not now have, except Fitzgerald’s personal license. The restoration of that and that alone is the only condition; and it was not necessary to tender that in advance of filing the bill, for the decree can take care of it. MacNamee v. Bankers’ Union, etc., 25 F.(2d) 614, 618 (C.C.A.2); Twin Lakes L. & W. Co. v. Dohner, 242 F. 399, 402 (C.C.A.6); Plews v. Burrage, 274 F. 881, 885 (C.C.A.1); Thomas v. Beals, 154 Mass. 51, 27 N.E. 1004; O’Neill v. Kunkle, 244 Mich. 653, 222 N.W. 110.
From the foregoing it also appears that Meseck is not a necessary party to this suit. Fitzgerald does not ask for more than his half of the money paid to McFadden; McFadden can demand nothing from Meseck or Fitzgerald which the decree will not assure him. Meseck cannot himself sue and so subject McFadden and Helms to a second suit because he has waited for four years and a half with notice of the deceit and has not moved; he was a witness on the trial and was chargeable with notice of what came out there. Finally, the contract with the Navy was not a ratification of the release because the parties had expressly provided that it should not be. There was nothing unlawful in their doing so, or any reason why they should not stipulate that the status quo should remain as between themselves. Fitzgerald’s receipt of his share of the payment could not have been an “affirmation” of the release in the face of such an agreement. Thus there is no obstacle to the recovery by Fitzgerald from" McFadden of $2,500 with interest from the dates of payment.
As to Fitzgerald’s payments to finance the Sealand Company somewhat different considerations apply. A decree against that company would, to be sure, be part of the restitution, since it was privy to, and chargeable with, Helms’s deceit. But such a decree would probably be without value, and the question is whether any decree should go against Helms and McFadden, as Helms’s principal. That must depend upon whether they are liable in delicto for Fitzgerald’s loss — not in restitution, but in damages. Any money advanced after Helms delivered Hutchinson’s report to Fitzgerald was a consequence of that deceit; for while it does not expressly appear that Fitzgerald would not have gone on, had he known of the Freeman patent, such an inference from the whole situation is altogether safe. More than that, Helms is liable for all payments between January first, when he knew of the Freeman patent, and January 21, 1932, because during that period he allowed Fitzgerald to act upon his original statement that his search had proved negative, a statement which he then knew to be false, and on the faith of which Fitzgerald was financing the Sealand Company. Loewer v. Harris, 57 F. 368 (C.C.A.2); Monier v. Guaranty Trust Co., 82 F.(2d) 252, 254, 104 A.L.R. 912 (C.C.A.2) (semble). Gerdes v. Lustgarten, 266 U.S. 321, 45 S.Ct. 107, 69 L.Ed. 309, is very similar. There is no objection to thus combining a recovery upon a legal cause of action with a cause of suit for restitution; equity will close up the whole matter at one time. However, as this part of the recovery will be for damages, theoretically it must be limited to the difference between Fitzgerald’s payments to the Sealand Company and any benefit which these added to his shares. Since the McFadden patent has never issued, it is not likely that this has any practical importance; but if the parties cannot agree, it must be settled in the district court.
The reasoning by which Helms is liable for the Sealand payments also applies to make him liable for any payment made to McFadden ■ after January 1, 1932. He then knew that Fitzgerald was relying upon his word and that it had become false; he is liable for any resulting loss- Again the measure of that loss is the difference between 'the payments and the value of the interest which they purchased.
Decree reversed; case remanded with instructions to proceed in accordance with the foregoing.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity.
A. not ascertained
B. male - indication in opinion (e.g., use of masculine pronoun)
C. male - assumed because of name
D. female - indication in opinion of gender
E. female - assumed because of name
Answer:
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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.
AMERICAN NEWSPAPER PUBLISHERS ASSOCIATION v. NATIONAL LABOR RELATIONS BOARD.
No. 53.
Argued November 19, 1952.
Decided March 9, 1953.
Elisha Hanson argued the cause for petitioner. With him on the brief were William K. Van Allen and Arthur B. Hanson.
Bernard Dunau argued the cause for respondent. With him on the brief were Acting Solicitor General Stern, George J. Bott, David P. Findling and Mozart G. Ratner.
Mr. Justice Burton
delivered the opinion of the Court.
The question here is whether a labor organization engages in an unfair labor practice, within the meaning of § 8 (b) (6) of the National Labor Relations Act, as amended by the Labor Management Relations Act, 1947, when it insists that newspaper publishers pay printers for reproducing advertising matter for which the publishers ordinarily have no use. For the reasons hereafter stated, we hold that it does not.
Petitioner, American Newspaper Publishers Association, is a New York corporation the membership of which includes more than 800 newspaper publishers. They represent over 90% of the circulation of the daily and Sunday newspapers in the United States and carry oyer 90% of the advertising published in such papers.
In November, 1947, petitioner filed with the National Labor Relations Board charges that the International Typographical Union, here called ITU, and its officers were engaging in unfair labor practices within the meaning of § 8 (b)(1), (2) and (6) of the National Labor Relations Act, as amended by the Labor Management Relations Act, 1947, here called the Taft-Hartley Act. The Regional Director of the Board issued its complaint, including a charge of engaging in an unfair labor practice as defined in § 8 (b)(6), popularly known as the “anti-featherbedding” section of the Act. It is not questioned that the acts complained of affected interstate commerce.
The trial examiner recommended that ITU be ordered to cease and desist from several of its activities but that the “featherbedding” charges under § 8 (b) (6) be dismissed. 86 N. L. R. B. 951, 964, 1024-1033. The Board dismissed those charges. Id., at 951, 963. Petitioner then filed the instant proceeding in the Court of Appeals for the Seventh Circuit seeking review and modification of the Board’s orders. That court upheld the Board’s dismissal of all charges under § 8 (b) (6). 193 F. 2d 782, 796, 802. See also, 190 F. 2d 45. A comparable view was expressed in Rabouin v. Labor Board, 195 F. 2d 906, 912-913 (C. A. 2d Cir.), but a contrary view was taken in Gamble Enterprises v. Labor Board, 196 F. 2d 61 (C. A. 6th Cir.). Because of this claimed conflict upon an important issue of first impression, we granted cer-tiorari in the instant case, 344 U. S. 812, and in Labor Board v. Gamble Enterprises, 344 U. S. 814. Our decision in the Gamble case follows this, post, p. 117.
Printers in newspaper composing rooms have long sought to retain the opportunity to set up in type as much as possible of whatever is printed by their respective publishers. In 1872, when printers were paid on a piecework basis, each diversion of composition was at once reflected by a loss in their income. Accordingly, ITU, which had been formed in 1852 from local typographical societies, began its long battle to retain as much typesetting work for printers as possible.
With the introduction of the linotype machine in 1890, the problem took on a new aspect. When a newspaper advertisement was set up in type, it was impressed on a cardboard matrix, or “mat.” These mats were used by their makers and also were reproduced and distributed, at little or no cost, to other publishers who used them as molds for metal castings from which to print the same advertisement. This procedure by-passed all compositors except those who made up the original form. Facing this loss of work, ITU secured the agreement of newspaper publishers to permit their respective compositors, at convenient times, to set up duplicate forms for all local advertisements in precisely the same manner as though the mat had not been used. For this reproduction work the printers received their regular pay. The doing of this “made work” came to be known in the trade as “setting bogus.” It was a wasteful procedure. Nevertheless, it has become a recognized idiosyncrasy of the trade and a customary feature of the wage structure and work schedule of newspaper printers.
By fitting the “bogus” work into slack periods, the practice interferes little with “live” work. The publishers who set up the original compositions find it advantageous because it burdens their competitors with costs of mat making comparable to their own. Approximate time limits for setting “bogus” usually have been fixed by agreement at from four days to three weeks. On rare occasions the reproduced compositions are used to print the advertisements when rerun, but, ordinarily, they are promptly consigned to the “hell box” and melted down. Live matter has priority over reproduction work but the latter usually takes from 2 to 5% of the printers’ time. By 1947, detailed regulations for reproduction work were included in the “General Laws” of ITU. They thus became a standard part of all employment contracts signed by its local unions. The locals were allowed to negotiate as to foreign language publications, time limits for setting “bogus” and exemptions of mats received from commercial compositors or for national advertisements.
Before the enactment of § 8 (b)(6), the legality and enforceability of payment for setting “bogus,” agreed to by the publisher, was recognized. Even now the issue before us is not what policy should be adopted by the Nation toward the continuance of this and other forms of featherbedding. The issue here is solely one of statutory interpretation: Has Congress made setting “bogus” an unfair labor practice?
While the language of § 8 (b) (6) is claimed by both sides to be clear, yet the conflict between the views of the Seventh and Sixth Circuits amply justifies our examination of both the language and the legislative history of the section. The section reads:
“Sec. 8. . . .
“(b) It shall be an unfair labor practice for a labor organization or its agents—
“(6) to cause or attempt to cause an employer to pay or deliver or agree to pay or deliver any money or other thing of value, in the nature of an exaction, for services which are not performed or not to be performed. . . .” 61 Stat. 140-142, 29 U. S. C. (Supp. V) 1158(b)(6).
From the above language and its history, the court below concluded that the insistence by ITU upon securing payment of wages to printers for setting “bogus” was not an unfair labor practice. It found that the practice called for payment only for work which actually was done by employees of the publishers in the course of their employment as distinguished from payment “for services which are not performed or not to be performed.” Setting “bogus” was held to be service performed and it remained for the parties to determine its worth to the employer. The Board here contends also that the insistence of ITU and its agents has not been “in the nature of an exaction” and did not “cause or attempt to cause an employer” to pay anything “in the nature of an exaction.” Agreement with the position taken by the court below makes it unnecessary to consider the additional contentions of the Board.
However desirable the elimination of all industrial featherbedding practices may have appeared to Congress, the legislative history of the Taft-Hartley Act demonstrates that when the legislation was put in final form Congress decided to limit the practice but little by law.
A restraining influence throughout this congressional consideration of featherbedding was the fact that the constitutionality of the Lea Act penalizing featherbedding in the broadcasting industry was in litigation. That Act, known also as the Petrillo Act, had been adopted April 16, 1946, as an amendment to the Communications Act of 1934. Its material provisions are stated in the margin. December 2, 1946, the United States District Court for the Northern District of Illinois held that it violated the First, Fifth and Thirteenth Amendments to the Constitution of the United States. United States v. Petrillo, 68 F. Supp. 845. The case was pending here on appeal throughout the debate on the Taft-Hartley bill. Not until June 23, 1947, on the day of the passage of the Taft-Hartley bill over the President’s veto, was the constitutionality of the Lea Act upheld. United States v. Petrillo, 332 U. S. 1.
The purpose of the sponsors of the Taft-Hartley bill to avoid the controversial features of the Lea Act is made clear in the written statement which Senator Taft, cosponsor of the bill and Chairman of the Senate Committee on Labor and Public Welfare, caused to be incorporated in the proceedings of the Senate, June 5, 1947. Referring to the substitution of § 8 (b) (6) in place of the detailed featherbedding provisions of the House bill, that statement said:
“The provisions in the Lea Act from which the House language was taken are now awaiting determination by the Supreme Court, partly because of the problem arising from the term ‘in excess of the number of employees reasonably required.’ Therefore, the conferees were of the opinion that general legislation on the subject of featherbedding was not warranted at least until the joint study committee proposed by this bill could give full consideration to the matter.” 93 Cong. Rec. 6443.
On the same day this was amplified in the Senator’s oral statement on the floor of the Senate:
“There is one further provision which may possibly be of interest, which was not in the Senate bill. The House had rather elaborate provisions prohibiting so-called feather-bedding practices and making them unlawful labor practices. The Senate conferees, while not approving of feather-bedding practices, felt that it was impracticable to give to a board or a court the power to say that so many men are all right, and so many men are too many. It would require a practical application of the law by the courts in hundreds of different industries, and a determination of facts which it seemed to me would be almost impossible. So we declined to adopt the provisions which are now in the Petrillo Act. After all, that statute applies to only one industry. Those provisions are now the subject of court procedure. Their constitutionality has been questioned. We thought that probably we had better wait and see what happened, in any event, even though we are in favor of prohibiting all feather-bedding practices. However, we did accept one provision which makes it an unlawful-labor practice for a union to accept money for people who do not work. That seemed to be a fairly clear case, easy to determine, and we accepted that additional unfair labor practice on the part of unions, which was not in the Senate bill.” 93 Cong. Rec. 6441. See also, his supplementary analysis inserted in the Record June 12, 1947. 93 Cong. Rec. 6859.
As indicated above, the Taft-Hartley bill, H. R. 3020, when it passed the House, April 17, 1947, contained in §§ 2 (17) and 12 (a)(3)(B) an explicit condemnation of featherbedding. Its definition of featherbedding was based upon that in the Lea Act. For example, it condemned practices which required an employer to employ “persons in excess of the number of employees reasonably required by such employer to perform actual services,” as well as practices which required an employer to pay “for services . . . which are not to be performed.” The substitution of the present § 8 (b) (6) for that definition compels the conclusion that § 8 (b)(6) means what the court below has said it means. The Act now limits its condemnation to instances where a labor organization or its agents exact pay from an employer in return for services not performed or not to be performed. Thus, where work is done by an employee, with the employer’s consent, a labor organization’s demand that the employee be compensated for time spent in doing the disputed work does not become an unfair labor practice. The transaction simply does not fall within the kind of featherbedding defined in the statute. In the absence of proof to the contrary, the employee’s compensation reflects his entire relationship with his employer.
We do not have here a situation comparable to that mentioned by Senator Taft as an illustration of the type of featherbedding which he would consider an unfair labor practice within the meaning of § 8 (b)(6). June 5, 1947, in a colloquy on the floor of the Senate he said in reference to § 8 (b) (6):
“[I]t seems to me that it is perfectly clear what is intended. It is intended to make it an unfair labor practice for a man to say, ‘You must have 10 musicians, and if you insist that there is room for only 6, you must pay for the other 4 anyway.’ That is in the nature of an exaction from the employer for services which he does not want, does not need, and is not even willing to accept.” 93 Cong. Rec. 6446.
In that illustration the service for which pay was to be exacted was not performed and was not to be performed by anyone. The last sentence of the above quotation must be read in that context. There was no room for more than six musicians and there was no suggestion that the excluded four did anything or were to do anything for their pay. Section 8 (b) (6) leaves to collective bargaining the determination of what, if any, work, including bona fide “made work,” shall be included as compensable services and what rate of compensation shall be paid for it.
Accordingly, the judgment of the Court of Appeals sustaining dismissal of the complaint, insofar as it was based upon § 8 (b)(6), is
Affirmed.
“Sec. 8. . . .
“(b) It shall be an unfair labor practice for a labor organization or its agents—
■“(6) to cause or attempt to cause an employer to pay or deliver or agree to pay or deliver any money or other thing of value, in the nature of an exaction, for services which are not performed or not to be performed. . . 61 Stat. 140-142, 29 U. S. C. (Supp. V) § 158 (b) (6).
49 Stat. 449, 29 U. S. C. § 151 et seq., as amended, 61 Stat. 140-142, 29 U. S. C. (Supp. V) § 158 (b)(1), (2) and (6).
The grant was—
“limited to question No. 2 presented by the petition for the writ, i. e.:
“Whether the demand and insistence of the International Typographical Union that publishers pay employees in their composing rooms for setting ‘bogus’ violated Section 8 (b) (6) of the National Labor Relations Act in view of the fact that composing room employees perform no service incident or essential to the production of a newspaper in their handling of such ‘bogused’ material.”
For a general discussion of the problems in these cases, see Cox, Some Aspects of the Labor Management Relations Act, 19 V7, 61 Harv. L. Rev. 274, 288-290; Featherbedding and Taft-Hartle, 52 Col. L. Rev. 1020-1033.
In metropolitan areas, only the printers on the “ad side” of a composing room, as contrasted with those on the “news side,” take part in the reproduction work and never on a full-time basis. Such work is not done at overtime rates but when there is an accumulation of it, the newspaper is not permitted to reduce its work force or decline to hire suitable extra printers applying for employment. The trial examiner, in the instant case, found that reproduction work at the Rochester Democrat & Chronicle cost over $5,000 a year, at the Chicago Herald-American, about $50,000, and at the New York Times, about $150,000.
“Sec. 506. (a) It shall be unlawful, by the use or express or implied threat of the use of force, violence, intimidation, or duress, or by the use or express or implied threat of the use of other means, to coerce, compel or constrain or attempt to coerce, compel, or constrain a licensee—
“(1) to employ or agree to employ, in connection with the conduct of the broadcasting business of such licensee, any person or persons in excess of the number of employees needed by such licensee to perform actual services; or
“(2) to pay or give or agree to pay or give any money or other thing of value in lieu of giving, or on account of failure to give, employment to any person or persons, in connection with the conduct of the broadcasting business of such licensee, in excess of the number of employees needed by such licensee to perform actual services; or
“(3) to pay or agree to pay more than once for services performed in connection with the conduct of the broadcasting business of such licensee; or
“(4) to pay or give or agree to pay or give any money or other thing of value for services, in connection with the conduct of the broadcasting business of such licensee, which are not to be performed; ....
“(c) The provisions of subsection (a) or (b) of this section shall not be held to make unlawful the enforcement or attempted enforcement, by means lawfully employed, of any contract right heretofore or hereafter existing or of any legal obligation heretofore or hereafter incurred or assumed.
“(d) Whoever willfully violates any provision of subsection (a) or (b) of this section shall, upon conviction thereof, be punished by imprisonment for not more than one year or by a fine of not more than $1,000, or both. . . .” 60 Stat. 89, 90, 47 U. S. C. § 506 (a) (c)(d).
For a report of the subsequent trial and acquittal on the merits, see United States v. Petrillo, 75 F. Supp. 176.
In its report of December 31, 1948, the Joint Committee on Labor-Management Relations, established under § 401 of the Taft-Hartley Act, later reviewed the litigation arising under § 8 (b) (6), including the trial examiner’s report in the instant case, and recommended “a continuing study of cases arising under the present featherbedding provision, since there has not been sufficient experience upon which to base intelligent amendments at this time.” S. Rep. No. 986, Pt. 3, 80th Cong., 2d Sess. 61, and see pp. 58-61.
See also, Hartley, Our New National Labor Policy (1948), p. xiii (Taft), 174,182-183 (Hartley).
H. R. 3020 as it passed the House provided that:
“Sec. 2. When used in this Act—
“(17) The term 'featherbedding practice’ means a practice which has as its purpose or effect requiring an employer—
“(A) to employ or agree to employ any person or persons in excess of the number of employees reasonably required by such employer to perform actual services; or
“(B) to pay or give or agree to pay or give any money or other thing of value in lieu of employing, or on account of failure to employ, any person or persons, in connection with the conduct of the business of an employer, in excess of the number of employees reasonably required by such employer to perform actual services; or
“(C) to pay or agree to pay more than once for services performed; or
“(D) to pay or give or agree to pay or give any money or other thing of value for services, in connection with the conduct of a business, which are not to be performed; or
“(E) to pay or agree to pay any tax or exaction for the privilege of, or on account of, producing, preparing, manufacturing, selling, buying, renting, operating, using, or maintaining any article, machine, equipment, or materials; or to accede to or impose any restriction upon the production, preparation, manufacture, sale, purchase, rental, operation, use, or maintenance of the same, if such restriction is for the purpose of preventing or limiting the use of such article, machine, equipment, or materials.
“Sec. 12. (a) The following activities, when affecting commerce, shall be unlawful concerted activities:
“(3) Calling, authorizing, engaging in, or assisting—
“(B) any strike or other concerted interference with an employer’s operations, an object of which is to compel an employer to accede to featherbedding practices; . . . .” 1. Legislative History of the Labor Management Relations Act, 1947, 160, 170-171, 204, 205.
Section 8 (b)(6) does not relate to union requests for, or insistence upon, such types of payments as employees’ wages during lunch, rest, waiting or vacation periods; payments for service on relief squads; or payments for reporting for duty to determine whether work is to be done. Such practices are recognized to be incidental to the employee’s general employment and are given consideration in fixing the rate of pay for it. They are not in the nature of exactions of pay for something not performed or not to be performed. See 93 Cong. Rec. 6859.
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:
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songer_appel1_7_5
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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 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).
Eugene E. TURBERVILLE, Appellant, v. UNITED STATES of America, Appellee. Bernard T. WILLIAMS, Appellant, v. UNITED STATES of America, Appellee. James H. SIMPSON, Appellant, v. UNITED STATES of America, Appellee.
Nos. 16343, 16344, 16392.
United States Court of Appeals District of Columbia Circuit.
Argued Oct. 3, 1961.
Decided Feb. 1, 1962.
Petition for Rehearing En Banc in 16343 Denied En Banc March 19, 1962.
Certiorari Denied June 25, 1962.
See 82 S.Ct. 1596.
Mr. Albert Noble McCartney, Washington, D. C. (appointed by this court), for appellant in No. 16343.
Mr. Joseph D. Bulman, Washington, D. C. (appointed by this court), for appellant in No. 16344.
Mr. John E. Powell, Washington, D. C. (appointed by this court), for appellant in No. 16392.
Mr. Donald S. Smith, Asst. U. S. Atty., with whom Mr. David C. Acheson, U. S. Atty., Mr. Charles T. Duncan, Principal Asst. U. S. Atty., and Mr. Thomas A. Flannery, Asst. U. S. Atty., were on the brief, for appellee. Mr. Abbott A. Leban, Asst. U. S. Atty., also entered an appearance for appellee in No. 16344.
Before Prettyman, Washington and Burger, Circuit Judges.
PRETTYMAN, Circuit Judge.
On the evening of December 5, 1959, two men and a woman were sitting beside a fire in front of an unoccupied shack on a vacant lot in the Southwest section of Washington. Three men came upon the lot and launched a vicious assault upon them. As a result of the savage attacks, one of the men already on the lot, Ollie Bowman, was beaten to death; the second was beaten and burned; and the woman was raped, beaten and burned.
The appellants here, Turberville, Simpson and Williams, were arrested and indicted for first degree murder, felony murder, assault with intent to commit rape, assault with intent to commit mayhem, assault with a dangerous weapon, and mayhem. They entered pleas of not guilty and were tried by jury. Each was convicted of second degree murder under the first degree murder count. Each was sentenced to life imprisonment with a minimum of fourteen years. Their appeals were consolidated.
A total of fourteen points are raised. We shall discuss ten. We find the remaining contentions of error to be without merit.
1. Appellant Simpson says the evidence does not sustain his conviction of murder in the second degree. He relies upon the fact that no evidence was presented showing that he participated physically in the assault upon the deceased Bowman. Testimony showed that Turberville and Williams actually beat and kicked Bowman. The prosecution was not required to make such an affirmative showing about Simpson, if he was properly charged as a principal under Section 105, Title 22, of the D. C. Code. That section provides in part: “In prosecutions for any criminal offense all persons advising, inciting, or conniving at the offense, or aiding or abetting the principal offender, shall be charged as principals and not as accessories, * *." The jury was instructed on that section. Under it, where defendants are charged as principals, the act of one defendant is the act of each.
On the witness stand Simpson admitted that he was present at the affray, that he hit the man Lucas, and that he tried to have intercourse with the woman. The man Lucas testified that Simpson stuck burning sticks of wood in his eyes. Thus there is no doubt that Simpson participated actively in the assault on the two men Bowman and Lucas. The fact that the victim beaten by Turberville died and the man beaten by him (Simpson) did not, does not lessen Simpson’s liability for advising, inciting, conniving, aiding or abetting in the homicide. The law on the point is well settled. As Wharton states it:
“All those who assemble themselves together with an intent to commit a wrongful act, the execution whereof makes probable in the nature of things a crime not specifically designed, but incidental to that which was the object of the confederacy, are responsible for such incidental crime. * * * In such cases of confederacy all are responsible for the acts of each, if done in pursuance of, or as incidental to, the common design.”
The cases he cites go back to Hale’s Pleas of the Crown. 1 Hale P.C. 439.
We conclude that the jury’s verdict was amply supported by the evidence.
2. Appellant Simpson argues that the trial judge erred in refusing to grant his motion for a directed verdict of acquittal by reason of insanity, and that the jury was not justified in finding that the Government had proved beyond a reasonable doubt that appellant was not suffering from a mental defect.
Simpson’s insanity defense rested upon the results of two intelligence tests and the testimony of one of his public school teachers. In 1953, when he was fourteen years old, Simpson’s score on a test administered to him by the Public School System of the District of Columbia showed that he had an I. Q. of 67 and a mental age of just over nine years. In 1958 he was rejected for military service because he scored in the lowest mental group on the Armed Forces Qualification Test.
The Moore and Stewart cases are urged upon us by the Government, but those cases are not applicable in the case at bar. In this case the issue was submitted to the jury; the points made by appellant concern his motion for a directed verdict and the sufficiency of the evidence to support the verdict.
When we have ordered directed verdicts it has been upon strong evidentiary grounds. In Douglas we pointed out that “Each case must be decided upon its own facts” and that directing a verdict is “a duty to be performed with caution”. In Fielding we found a “strong showing of insanity made by the defense”. In Satterwhite “substantial evidence established the basis for a reasonable inference that appellant had been suffering from severe mental disturbance on” the date of the offense. In Wright we pointed out that “Wright’s showing of insanity, far from being merely ‘some evidence’ of insanity, is about as strong as can ever be made, unless the accused happens to have had a psychiatric examination immediately prior to his act.” We are of clear opinion that the testimony offered by Simpson was not sufficient to require a directed verdict.
Even if Simpson’s evidence of low scores on intelligence tests were deemed to be sufficient to take the issue of insanity to the jury, the rebuttal testimony offered by the Government clearly justified rejection of the defense by the jury.
3. Simpson challenges as deficient the charge to the jury on the insanity issue. He claims that it dealt principally with the existence or non-existence of “mental disease”, when it should have emphasized “mental defect”.
Assuming that Simpson was entitled to an instruction on insanity, the charge given was not defective. The trial judge repeatedly used the phrase “mental disease or defect”. He employed terms such as “defective mental condition” and “mental abnormalities”. We find no error in his definition of mental defect or in his references to mental defect when explaining the causality requirement and when instructing on the issue of burden of proof.
4. All the appellants contend they were denied their constitutional right to a speedy trial.
Appellants were arrested on December 7 and 8, 1959. On January 25, 1960, Williams moved the court for a mental examination. On January 29th that motion was granted, and in the same order the case was continued to May 25, 1960. On May 16, 1960, Turberville moved for a continuance on the grounds that his counsel was ill and that appellants were still undergoing mental examinations. The case was continued until October 10, 1960. Between this date and November 16, 1960, the date of the actual commencement of the jury trial, the prosecutor was granted three continuances to locate missing witnesses. There is no indication that appellants objected to any of these continuances; nor did they ever move for an immediate trial or contend that any of the various delays were “manufactured” ; no prejudice appears to have been wrought. We think appellants’ contention cannot be sustained.
5. In his closing argument to the jury, counsel for appellant Williams referred to the participation by the other two defendants in activities of Williams and urged the finding of the lesser included offense of second degree murder. Appellant Turberville contends that these statements ignored his persistent denials of participation in the commission of the alleged crimes and interfered with the impartial assertion of his plea of not guilty. Neither Williams nor Simpson makes this argument.
Surely it is not improper per se for defense counsel to urge the jury to return a lesser verdict than that charged in the indictment. Furthermore counsel for Turberville failed to object at the trial to the closing remarks now in dispute. The trial judge charged the jury that what counsel stated in their arguments did not constitute evidence and also instructed the jury to consider separately each crime charged in the indictment, and that the evidence applicable thereto should be considered “separately as to each defendant.” Even were we to hold that the point is reviewable on appeal, we find it difficult to accept the contention that Turberville was prejudiced by an argument which was in essence a strong, and successful, plea against conviction of murder in the first degree and mandatory capital punishment. In the situation in which counsel then found their clients, pleas for convictions of lesser offenses would appear to have been sound tactics.
6. Appellants Turberville and Simpson contend that the trial court erred in admitting evidence regarding what they consider to be the commission of a crime not charged in the indictment.
An examination of the facts surrounding what we shall term the “Tucker incident” is necessary to our disposition of the point. On the evening of the murder Turberville entered a drug-store near the scene of the alleged murder looking for one Tucker, a man who had apparently just struck a friend of Turberville. When an employee told Turberville that he did not know where Tucker was, Turberville announced that he was “going to get him” and left the store. What occurred next is not clear. At about the same time that evening, however, a man was seen being chased by Turberville, Williams, and another man on the vacant lot where the alleged murder occurred. It appears that Tucker shortly thereafter ran back into the drugstore and “laid down on the floor” crying, “They are going to get me.” Turberville, carrying bricks, and Simpson, armed with a piece of wood, then entered the store. After the stoi-e manager had threatened to call the police, they left. As they left, Turberville said, “We are going to get him anyway.” Appellants then approached Lucas, Bunn and Bowman on the vacant lot and asked if they had “seen a man pass”. Bowman answered in the negative, and appellants then commenced the assault.
The well-settled rule which appellants seek to invoke is that upon the trial of an accused person evidence of another offense, wholly independent of the one charged, is inadmissible. However, as we stated in Bracey v. United States, there are many well-established exceptions to this rule. We defined two of these exceptions as follows: “[E]videnee of other criminal acts has been held admissible by this court when they are so blended or connected with the one on trial as that proof of one incidentally involves the other; [citing cases] or explains the circumstances thereof; [citing cases] * * * ”
We conclude from the record that the challenged testimony was admissible as within these exceptions to the general rule. In view of the proximity in time, place, and persons involved, and the close connection between the pursuit of Tucker, the subsequent inquiry of Bowman, and the ensuing assault, we cannot consider the Tucker incident, if indeed it involved any offense, to be an offense which should have been barred from the jury’s consideration.
7. Appellant Simpson contends that two oral statements and a written statement which he made after arrest were admitted in evidence in violation of “the Mallory rule”.
Simpson was arrested at 11:20 p. m., on December 7, 1959. He was taken to police headquarters, arriving around midnight. Immediately thereafter the police began to question him about his alleged participation in the crimes. Within half an hour he made an oral statement implicating himself in the offenses. The officers testified that before he began this statement he was warned of his rights and told he did not have to make a statement; Simpson denied this. The written statement contains a recitation in accordance with the officers’ testimony. The police began to reduce the statement to writing at 12:30 a. m. and completed the transcription at 1:25 a. m. Simpson then read and signed the statement. He was brought before a judge of the Municipal Court at 10:00 a. m. on the same morning. Thereafter, at approximately four o’clock that afternoon, two policemen went to the jail for the purpose of questioning the three defendants. Simpson then repeated his earlier incriminatory statement in the presence of Williams and Turberville.
We think that “unnecessary delay” within the meaning of Rule 5 (a) and the Mallory case has not occurred when a defendant is arrested, brought to police headquarters around midnight, begins to make a statement within thirty minutes thereafter, and is then taken before a magistrate at 10 a. m. the same morning.
Simpson’s second inculpatory oral statement was made after he had been presented before the magistrate. Despite the dispute in the testimony as to whether Simpson was advised by the detectives of his rights before he signed the written statement, it is agreed that he was taken before a judge of the Municipal Court in open court, a lawyer was appointed for him, this attorney conferred with him, and the taking of testimony was then postponed. A detective present at the time testified flatly at first that Simpson was advised of his rights by the judge, but later said he could not remember precisely what was said. This testimony, with the denials by the accused, went to the jury upon the trial. In the absence of clear proof to the contrary we must in these circumstances give weight to the presumption that the judicial proceeding was regular and in accordance with the rules.
In this connection, however, and in our supervisory capacity over criminal proceedings in this jurisdiction, we admonish the judges of the Municipal Court that careful, precise compliance with the criminal rules, under which presentments and preliminary examinations in felony cases are conducted before judges of that court, and unmistakable records of such compliance in these cases, are in the interest of the administration of justice. Failure to comply with those rules is affirmatively detrimental to that administration, since it vitiates much that subsequently occurs. And failure to record compliance in some unmistakable fashion impedes that administration, because it throws these vital events into the realm of testimonial dispute. The requirements of Rule 5(b) are clear, precise and categorical. We should think that compliance in' literal completeness would be a simple record for the courtroom clerk or the judge to keep in so important matters as these.
In the case at bar the trial court put to the jury the issues concerning the statements of Simpson made after his presentment to the magistrate. We think the evidence amply justified the submission.
Simpson urges us to adopt a rule that no statement made by an arrested person as the result of police interrogation may be admitted against him over objection. This, his counsel says, is the precise meaning of the Fifth Amendment. He refers to the elaborate discussion of the history and policy of the privilege by Professor Wigmore. We are advised of no ease which, up to now, has gone so far. The statement of Mr. Justice Douglas, in his concurring opinion in Reck v. Pate, of his own view of what the rule ought to be, clearly shows that he would hold admissible statements made under detention if presentment is prompt, the accused is informed of his right to silence, and he is accorded an opportunity to consult counsel. We are not prepared even to approach the blanket rule of inadmissibility urged upon us by counsel for Simpson.
8. After Simpson had made his second oral admission, in the presence of Williams, the police asked the latter whether he had anything to say. Williams answered in the affirmative and then proceeded to make an incriminatory statement. He now contends that this statement was improperly admitted in evidence at the trial because it was made after the committing magistrate had failed to comply with the requirements of Rule 5 (b), Williams testified at trial that the magistrate did not appoint counsel to represent him, or advise him of his right to refuse to make a statement, or that any statement might be used against him. Nor, it is claimed, was he told of the charge or that he was being held without bond. Williams was arrested about one o’clock, p. m., and was presented before the magistrate about 2:15 p. m. that same day.
The Government offered evidence which contradicted appellant’s version of what had transpired in the Municipal Court. A Detective Pixton testified that during the presentment appellant was advised of his rights, informed of the charge, and allowed time to consult with his court-appointed counsel. The original complaint filed in the Municipal Court, which was admitted in evidence, reveals that an attorney was appointed by the judge and that bond was considered and appellant ordered held in no bond.
We think the trial judge was free to disbelieve Williams’s testimony. The presumption of regularity which applies to judicial proceedings is applicable here. Appellant failed in his burden. Much of what we have said hereinabove in respect to Simpson’s statements applies to Williams.
9. Simpson says the trial court erred in excusing for cause on the voir dire veniremen who answered affirmatively to the question whether they were opposed to capital punishment. What happened was simple and brief. The United States Attorney, addressing the panel, said: “Are any of you opposed to capital punishment, and, if so, stand? ” He then addressed the question to each of eighteen prospective jurors, obviously those who stood in answer to his general question. Some of them said “Yes”; most of them stood silent, perhaps assenting with a nod; one answered “I think so”; one stated, “I am opposed to capital punishment.” All were excused for cause, without further questioning. Thus the panel as it came to the drawing of the jurors for the case was without members who for any reason were opposed to capital punishment. Counsel for Simpson argues that he is entitled as of constitutional right to a jury drawn from a fair cross-section of the community. He cites the Glasser, Thiel, and Ballard eases. A premise of his argument is, of course, that people opposed to capital punishment comprise a large segment of any cross-section of the community.
Dispositive of the contention is the fact that the point was not raised in the trial court. Nevertheless, since it is so earnestly pressed upon us by counsel, and since if a serious error has been committed we might note it sua sponte, we shall discuss it.
The process of selecting jurors in this jurisdiction is delineated quite specifically by statute. A jury commission selects prospective jurors “from the different parts of the District, and * * * as nearly as may be, from its intelligent and upright residents.” The commission writes the names on “separate and similar” pieces of paper, folds them, and puts them in a box. The box is sealed. Not less than six hundred names must be in the box when a drawing begins. Once a month the commission opens the box and draws by lot the names of such number of persons as are needed for jury service in the courts. The persons so drawn constitute a panel, or several panels. When a case is called for trial a panel is summoned and questioned upon subjects pertinent to qualification to serve in the particular case. The court excuses “for cause” such persons as it deems not qualified to render impartial judgment in the case. From the remaining persons the prosecution and the accused are entitled to excuse a certain number for any or no reason — “peremptory challenges”. The end result is twelve persons seated as jurors. The system is discussed in Frazier v. United States.
The point at which an accused is entitled to a fair cross-section of the community is when the names are put in the box from which the panels are drawn. Chance governs the next step. The panel drawn by lot may or may not be a cross-section of the community. No maneuvering or purposeful selection is permitted at that stage, lest the final twelve be by design of one or another thought or character. The rights of an accused in respect to the panel and the final jury are (1) that there be no systematic, intentional exclusion of any section of the community and (2) that there be left as fitted for service no biased or prejudiced person.
None of the cases cited by Simpson expresses a view contrary to the foregoing. Indeed in Thiel the Court after stating the rule as to a jury “drawn from a cross-section of the community”, went on to say:
“This does not mean, of course, that every jury must contain representatives of all the economic, social, religious, racial, political and geographical groups of the community; frequently such complete representation would be impossible. But it does mean that prospective jurors shall be selected by court officials without systematic and intentional exclusion of any of these groups. Recognition must be given to the fact that those eligible for jury service are to be found in every stratum of society. Jury competence is an individual rather than a group or class matter.”
Opposition to capital punishment may be for any one of a variety of reasons. They range from an unshakable religious conviction as stark as the Old Testament Commandment to a mere intellectual or philosophical distaste. Not all “opposition” to this penalty creates incompetence for jury service. So not all who are “opposed” to capital punishment are necessarily unqualified for service in a capital case. The nub of disqualification on this ground is whether the opposition is of such nature as to preclude an impartial judgment on the facts and the law of the case to be tried.
The situation is, then, that the trial judge in the case at bar may have excused more from the panel than he needed to excuse. But among those who remained were none who suffered on this account an impediment to proper service. What Simpson is really asserting is the right to have on the jury some who may be prejudiced in his favor—i. e., some who are opposed to one possible penalty with which he is faced. We think he has no such constitutional right. His right is to absolute impartiality.
The whole subject was thoroughly explored in an exhaustive, scholarly opinion by Circuit Judge Hincks, writing for a unanimous Second Circuit in United States v. Puff. We need not here quote from or attempt to summarize that discussion. We refer to it and rely upon it. The matter is made quite clear by a long series of authoritative pronouncements, beginning with Chief Justice Marshall’s ruling in Burr’s Trial and including Reynolds v. United States, Northern
Pacific R. R. Co. v. Herbert, Brown v. New Jersey, Miles v. United States, and Howard v. Kentucky. In Shettel v. United States this court (Groner, Justin Miller, and Vinson) said on the point:
“Moreover, while it is true, as appellant argues, that the Constitution guarantees to an accused the right to a speedy trial by an impartial jury, it does not follow that the rejection of qualified persons for insufficient cause would deprive appellant of that right; or that any useful or legitimate purpose would be served by remanding the case for a new trial before another impartial jury. It is significant in this respect, moreover, that no claim is made that the jury, as finally constituted, was biased or prejudiced; or that appellant was deprived of a trial by an impartial jury.”
The Supreme Court, citing precedents, said in Logan v. United States, decided seventy years ago:
“5. As the defendants were indicted and to be tried for a crime punishable with death, those jurors who stated on voir dire that they had ‘conscientious scruples in regard to the infliction of the death penalty for crime’ were rightly permitted to be challenged by the government for cause. A juror who has conscientious scruples on any subject, which prevent him from standing indifferent between the government and the accused, and from trying the case according to the law and the evidence, is not an impartial juror.”
In Gillars v. United States we held that a prospective juror who said she was opposed to capital punishment and did not believe she could render a fair and impartial verdict in the case was properly excused for cause. The touchstone in excuse for cause under the doctrine adopted by most courts is a conscientious scruple. This means something more than mere opposition. It means an opposition of such nature as to impede ability to render a fair and impartial verdict upon the law and the evidence as it develops in a given case.
Simpson’s argument, as stated to us, is that the jury which tried him was not a fair cross section of the community, because it did not include any persons opposed to capital punishment. He makes no contention that the jury was prejudiced against him or that it was not impartial. However our own inquiry has brought to our attention another thesis, in this area of the law. It is that persons who are not opposed to capital punishment are psychologically inclined against criminals and therefore a jury composed of such persons is not an impartial jury. We understand that this thesis has not as yet received the sanction of any court. We cannot accept it. We examine it because this is a serious case, and if the thesis were tenable it might cause reversal. No proof is available, so far as we know, and we can imagine none, to indicate that, generally speaking, persons not opposed to capital punishment are so bent in their hostility to criminals as to be incapable of rendering impartial verdicts on the law and the evidence in a capital case. Being not opposed to capital punishment is not synonymous with favoring it. Individuals may indeed be so prejudiced in respect to serious crimes that they cannot be impartial arbiters, but that extreme is not indicated by mere lack of opposition to capital punishment. The two antipathies can readily coexist; contrariwise either can exist without the other; and, indeed, neither may exist in a person. It seems clear enough to us that a person or a group of persons may not be opposed to capital punishment and at the same time may have no particular bias against any one criminal or, indeed, against criminals as a class; people, it seems to us, may be completely without a controlling conviction one way or the other on either subject. We think the premise for the thesis has no substance.
From all these considerations we conclude that the trial judge did not commit error when he excused all persons who opposed capital punishment. At the same time, in our supervisory capacity we urge upon the District Court that a better practice would be to proceed one more step in this questioning on voir dire to ascertain in general terms the weight of the opposition the juror entertains, when measured against his ability to render a fair and impartial verdict in the case on trial, based upon the evidence presented in that case and the law applicable thereto. We do not mean to suggest a prolonged inquiry, or any attempt to probe the mind and conscience of the person, which practice we condemned long ago in Funk v. United States. We mean to suggest an additional question or two, sufficient to identify the nature and substance of the person’s opposition; no farther, as we said in Funk, “than to ascertain the existence of this necessary want of bias or prejudice”.
10. Appellants also urge that the trial judge was not qualified to sit in the District Court, having been appointed to sit in a legislative court and not in a constitutional court. We have rejected the contention in another case, pointing out that the District Court in this jurisdiction is an Article I court as well as an Article III court. The point is before the Supreme Court. We think the administration of justice requires that we not delay disposition of these appeals. We will, of course, entertain a motion for reconsideration and recall of mandate, if the Supreme Court rules this trial judge to be disqualified.
The judgments of the District Court are
Affirmed.
. The indictment contained nine counts. Count 1 charged first degree murder, D.C.Code § 22-2401; Count 2, murder while perpetrating the crime of rape, D.C.Code § 22-2401; Count 3, murder while perpetrating the crime of mayhem, D.C.Code § 22-2401; Count 4, assault with intent to commit rape, D.C.Code § 22-501; Count 5, assault with a dangerous weapon, D.C.Code § 22-502; Counts 6 and 8, mayhem, D.C.Code § 22-506; Counts 7 and 9, assault with intent to commit mayhem, D.C.Code § 22-502.
Counts 2 and 3 were dismissed during the trial at the request of the prosecution.
. Each was convicted and sentenced upon other counts.
. Lucas testified that Turberville and Williams beat and kicked Bowman; Bunn also testified that Williams beat Bowman. The latter’s death was the result of hemorrhage and shock due to ruptured viscera.
. Polen v. United States, 41 App.D.C. 4 (D.C.Cir. 1913) (involving D.C.Code § 908 (1901), the earlier, identical version of § 22-105).
. 1 Wharton, Criminal Law § 258 (12th ed. 1932); and see id. § 251.
. Moore v. United States, 107 U.S.App.D.C. 332, 277 F.2d 684 (1960).
. See Stewart v. United States, 107 U.S.App.D.C. 159, 275 F.2d 617 (1960), rev’d on other grounds, 366 U.S. 1, 81 S.Ct. 941, 6 L.Ed.2d 84 (1961).
. Douglas v. United States, 99 U.S.App.D.C. 232, 239, 239 F.2d 52, 59 (1956).
. Id. at 237, 239 F.2d at 57.
. Fielding v. United States, 102 U.S.App.D.C. 167, 169, 251 F.2d 878, 880 (1957).
. Satterwhite v. United States, 105 U.S.App.D.C. 398, 207 F.2d 675 (1959).
. Wright v. United States, 102 U.S.App.D.C. 36, 41, 250 F.2d 4, 9 (1957).
. The Government offered the testimony of Dr. David J. Owens, a psychiatrist on the staff at St. Elizabeths Hospital, to rebut the alleged insanity defense. Dr. Owens testified that his ninety-day observation and examination of Simpson led him to the diagnosis that Simpson had not been suffering from a mental disease or defect on the date of the crime. He stated that tests administered at St. Elizabeths revealed that Simpson was “suffering from borderline intelligence but not of sufficient degree of impairment to warrant diagnosis of mental defectiveness.”
. In that same order Simpson was also committed for examination pursuant to a motion by the prosecutor; in another order on that day reference is made to a motion by Simpson to the same purpose. On February 3rd Turberville moved for an examination, and the motion was granted February 12th.
. Brooks v. United States, 110 U.S.App.D.C. 192, 290 F.2d 383 (D.C.Cir. 1961); James v. United States, 104 U.S.App.D.C. 263, 261 F.2d 381 (D.C.Cir. 1958), cert. denied, 359 U.S. 930, 79 S.Ct. 613, 3 L.Ed.2d 631 (1959); Pietch v. United States, 110 F.2d 817, 129 A.L.R. 563 (10th Cir.), cert. denied, 310 U.S. 648, 60 S.Ct. 1100, 84 L.Ed. 1414 (1940); Chinn v. United States, 228 F.2d 151 (4th Cir. 1955). See Beavers v. Haubert, 198 U.S. 77, 87, 25 S.Ct. 573, 49 L.Ed. 950 (1905).
. See Clark v. United States, 104 U.S.App.D.C. 27, 259 F.2d 184 (D.C.Cir. 1958); Tatum v. United States, 88 U.S.App.D.C. 386, 392, 190 F.2d 612, 618 (D.C.Cir. 1951).
. In this connection see United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 238-239, 60 S.Ct. 811, 84 L.Ed. 1129-(1940).
. 79 U.S.App.D.C. 23, 25, 142 F.2d 85, 87, cert. denied, 322 U.S. 762, 64 S.Ct. 1274, 88 L.Ed. 1589 (1944).
. Id. at 26, 142 F.2d at 88.
. Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957).
. See Goldsmith v. United States, 107 U.S.App.D.C. 305, 277 F.2d 335 (D.C.Cir.), cert. denied, 364 U.S. 863, 81 S.Ct. 106, 5 L.Ed.2d 86 (1960); Heideman v. United States, 104 U.S.App.D.C. 128, 259 F.2d 943 (D.C.Cir. 1958), cert. denied, 359 U.S. 959, 79 S.Ct. 800, 3 L.Ed.2d 767 (1959); Porter v. United States, 103 U.S.App.D.C. 385, 258 F.2d 685 (D.C.Cir. 1958), cert. denied, 360 U.S. 906, 79 S.Ct. 1289, 3 L.Ed.2d 1257 (1959); Metoyer v. United States, 102 U.S.App.D.C. 62, 250 F.2d 30 (D.C.Cir. 1957).
. 8 Wigmore, Evidence §§ 2250-2252 (McNaughton rev. 1961).
. 367 U.S. 433, 448, 81 S.Ct. 1541, 6 L.Ed.2d 948 (1961).
. Fed.R.Crim.P. rule 5(b), 18 U.S.C.A., provides: “The commissioner shall inform the defendant of the complaint against him, of his right to retain counsel and of his right to have a preliminary examination. He shall also inform the defendant that he is not required to make a statement and that any statement made by him may be used against him. The commissioner shall allow the defendant reasonable time and opportunity to consult counsel and shall admit the defendant. to
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant?
A. not ascertained
B. poor + wards of state
C. presumed poor
D. presumed wealthy
E. clear indication of wealth in opinion
F. other - above poverty line but not clearly wealthy
Answer:
|
songer_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.
HIGLEY v. COMMISSIONER OF INTERNAL REVENUE.
No. 9720.
Circuit Court of Appeals, Eighth Circuit.
Feb. 16, 1934.
Park Chamberlain, of New York City (Don Barnes, of Cedar Rapids, Iowa, and Simpson, Thacher & Bartlett, of New York City, on the brief), for petitioner.
J. Louis Monarch, Sp. Asst. to Atty. Gen. (Sewall Key, Sp. Asst. to Atty. Gen., and E. Barrett Prettyman, Gen. Counsel, Bureau of Internal Revenue, and Lewis S. Pendleton, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C., on the brief), for respondent.
Before STONE, SANBORN, and VAN VALKENBURGH, Circuit Judges.
STONE, Circuit Judge.
This is a petition to review a redetermination of taxes on the estate of Elmer A. Higley by the Board of Tax Appeals.
Elmer A. Higley died in September, 1926, leaving a wife and three adult children. There was no will and no administration of the estate. In November, 1927, Fred M. Higley (one of tbe children) made a return for federal estate tax on the departmental form. In the “jurat” of the return, he recites that the return is “for myself and all the beneficiaries named in schedule £E’ hereto attached.” Schedule E is “Transfers.” Thereunder property valued at $465,398.85 is put down as “description is contained in the Schedule hereto attached” and as nontaxable. The schedule referred to as “hereto attached” was a lengthy document stating, in detail, the condition of the estate; the formation by decedent of a corporation sole to which he had transferred practically all of his property some years before death; the creation of four separate trusts (-one for the widow and one for each of the three children) by decedent shortly after formation of the corporation to which was distributed all but one share of the stock of the corporation; the value of the properties held by the corporation; an argument that the trusts were not in contemplation of death; and reasons for not seasonably filing an estate tax return. This attached schedule was under oath, and affiant “states that this return is made by him in behalf of the widow and all of the heirs at law of the said Elmer A. Higley, who are the beneficiaries of the trusts which are set out in this report.” The only property seheduled in the return as belonging to the estate was one small piece of real estate valued at $1,520.
The Commissioner determined that the entire property in the four trust estates should bo included in the estate and subjected to the tax. He assessed a deficiency of $18,-229.06. Notice of this deficiency was ad-; dressed only to “Fred M. Higley, Beneficiary, Estate of Elmer A. Higley.” Thereafter a petition for redetermination was filed with the Board by the widow and the three children. The substance of this petition was that the property in the trust estates was not subject to the estate tax, for various reasons set forth. There was an extended hearing before the Board resulting in findings that the trusts were in contemplation of death and taxable as determined by the Commissioner. Of its own motion, the Board examined its jurisdiction over the parties. As to that it held as follows: That neither a legal representative of the estate of the decedent nor the trustee (a hank) was a party; that the notice of deficiency was addressed only to Fred M. Higley, and therefore it had no jurisdiction over the widow and the two other children; that it had jurisdiction only of Fred M. Higley. The result of these views as to jurisdiction was that the petition was dismissed as to the widow and two children and retained as to Fred M. Hig'ley. Then the Board examined his liability for the “estate tax” and determined that he was a “transferee,” within section 315 (b) Revenue Act of 1926 (26 USCA § 1115 (b), and liable for the entire estate tax “to the extent of the value of the property received by such transferee.” The Board found it unnecessary to determine whether he was a “benefieiary,” within the meaning of the section. Since it was admitted that the value of the trust estate of which ho was the beneficiary was much more than the tax against the entire estate, the Board determined that he' was liable for the entire tax of $18,229.06, with the right to he reimbursed “by a just and equitable contribution from other persons who are subject to a liability for the estate taxes.” In conformity with such determination, the Board entered an order of re-determination “that there is a deficiency in tax with respect to the petitioner Fred M. Higley, in the amount of $18,229.06.” Fred M. Higley petitions for this review.
The contest here is along two lines: First, that this trust property is not subject to the estate tax; second, that there is no personal liability on this petitioner for any of the estate tax, if such be assessable. It seems so clear to us that the second of these propositions is sound that it is unnecessary to examine the liability of this_ property to the tax. For onr purposes, we will assume, though not examining nor deciding, that this trust property is liable for the estate tax, and that the only question is whether this petitioner is personally liable to pay sueh tax.
The facts material to determination of this question are as follows: Some years before his death, decedent formed a corporation sole to whieh he transferred all of his property, with trivial exceptions. This corporation had 2,250 shares of par value $100. Within a month thereafter, he created four entirely distinct trusts with the same trustee (Merchants’ National Bank of Cedar Rapids, Iowa); the beneficiaries being, separately, the widow and each of the three children. The trust for the widow was in 749 shares of the stock in the corporation (he having retained one share for himself). The trust for each of the children was in separate blocks of 500 shares each. The trust instrument provided that “The Income of the Trust Fund” was to be dividends from shares of stock or other securities belonging to the trust fund (there were no “other securities”), and that the trustee should vote the stock for the creator thereof “as sole director and officer of sueh corporation” until he be unable, mentally or physically, to act as such (in which eventuality, the stoek was to be so voted for his wife); that the creator of the trust might change the trustees, and that the trust should endure for six years after his death when it might he terminated by the beneficiary (except as to the daughter, such termination extended only to half the estate in the trust for her). No trust has or could have been terminated at the date the order of redetermination was entered by the Board — within six years after death of the creator of the trusts.
On the above facts, the legal question here is whether a beneficiary of an existing trust is personally liable to pay an estate tax levied under the Revenue Act of 1926 against an estate of whieh the trust corpus is a taxable part. This is a question of construction of statutes applicable to the situation. The statute involved here is section 315 (b) Revenue Act 1926 (44 Stat. 9, 80, 26 USCA § 1115 (b). It reads as follows: “If (1) the decedent makes a transfer, by trust or otherwise, of any property in contemplation of or intended to take effect in possession or enjoyment at or after his death (except in the ease of a bona fide sale for an adequate and full consideration in money, or money’s worth) or (2) if insurance passes under a contract executed by the decedent in favor of a specific beneficiary, and if in either ease the tax in respect thereto is not paid when due, then the transferee, trustee, or beneficiary shall be personally liable for such tax, and sueh property, to the extent of the decedent’s interest therein at the time of such transfer, or to the extent of sueh beneficiary’s interest under sueh contract of insurance, shall be subject to a like lien equal to the amount of such tax. Any part of'such property sold by sueh transferee or trustee to a bona fide purchaser for an adequate and full consideration in money or money’s worth shall be divested of the lien and a like lien shall then attach to all the property of such transferee or trustee, except any part sold to a bona fide purchaser for an adequate and full consideration in money or money’s worth.”
This section expressly imposes a personal liability on “the transferee, trustee, or beneficiary.” Obviously, the congressional definition of each of these words is to be found in their use in this section, if possible. The section deals with two general classes of disposition, before death, of property by the decedent. The first of these is “transfers”; the second is “insurance.” “Transfers” expressly include trusts. While cestui que trus-■tent are ordinarily called “beneficiaries,” both in legal and every-day speech, yet it is obvious the use of the word “beneficiary” in this section applies only to insurance policy beneficiaries. It is so used specifically in the first sentence, and it is entirely omitted in the second sentence whieh is not concerned with insurance but is with trust estates. If a trust beneficiary is to be personally liable under this section, it must be because he is a “transferee.” In a broad sense, and irrespective of this section, such a beneficiary might be regarded as a “transferee” under a trust instrument. In the same sense, a trustee, who takes the entire legal title, is eertainly a “transferee” under such an instrument. In short, one (the trustee) would always be regarded as a transferee and the other (the beneficiary) might be so regarded. The question here is the meaning intended in this section. The section expressly covers transfers other than trusts. The employment of the word “transferee” must apply to sueh other transfers, and the presence of the word is readily explainable in that connection. But, in addition, the word “trustee” is employed in connection with trusts only. The result is that the application of “transferee” to trust beneficiaries is at least doubtful and the statute iu that respect ambiguous. In sueh a situation the beneficiary is entitled to a favorable construction because liability for taxation must clearly appear. Miller v. Standard Nut Margarine Co., 284 U. S. 498, 508, 52 S. Ct. 260, 76 L. Ed. 422; U. S. v. Updike, 281 U. S. 489, 496, 50 S. Ct. 367, 74 L. Ed. 984; U. S. v. Merriam, 263 U. S. 179, 187, 188, 44 S. Ct. 69, 68 L. Ed. 240, 29 A. L. R. 1547.
Passing from consideration of this section alone to consideration of it as a part of the general scheme of collecting this estate tax, the position of petitioner is further strengthened. Throughout this chapter (Estate Taxes) runs the clear plan as to collection. The prime reliance is the property subject to the tax. Upon this a lien for the taxes is placed. As further assurance, a personal liability is placed upon those who are in position to disposo of the property and possibly delay or defeat collection. Upon them is placed a strong personal incentive to see that the tax is properly and promptly paid. This burden, is placed only upon those (executors, administrators, fiduciaries, transferees, trustees, and insurance beneficiaries) who have such legal title, control, and possession as would afford opportunity to dispose of the property primarily liable for the payment of the tax. A trust beneficiary may or may not occupy such a position, dependent npon the terms of the trust, but all opportunity for him to take advantage thereof is anticipated and guarded against by placing upon the trustee a personal liability and by attaching the lien to the trust property. Although Congress has legislated repeatedly in ¡his matter, it lias in no instance used language clearly providing personal liability of a eostui quo trust.
Again, the results flowing from such a personal liability easily explain why Congress would not impose it, and they argue for a construction of doubtful language against such construction. It is common knowledge that the most usual purpose of creating trusts in contemplation of or to be enjoyed after death of the creator thereof is to provide for children or other dependents. Very often such trusts pass only the income from a trust estate to the beneficiary. To require such beneficiary to be personally liable for the estate tax (in whole or part) would result in dire hardship in many instances. It is very natural to presume that Congress deemed payment of the tax sufficiently secured by a lien on the property and by imposing a personal liability on the trustee without going further and placing this real hardship on beneficiaries who would often ho hopelessly unable to bear it.
While Congress might have the power to place such a personal liability upon trust beneficiaries who did not renounce the trust, yet it would require clear expression of such intent, and it cannot be spelled out from language (as that here) which can be given an esitirely natural and useful meaning and application excluding such intent.
The cause should be remanded, with instruction to enter an order disallowing the determination of a deficiency as to this tax against this petitioner.
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
|
songer_r_subst
|
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 "sub-state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
TYSON v. SWENSON.
No. 6456.
United States Court of Appeals Fourth Circuit.
Argued July 3, 1952.
Decided July 18, 1952.
John Y. Jordan, Jr., Asheville, N. C., for appellant.
Ambrose T. Hartman, Sp. Asst. Atty. Gen. of Maryland (Hall Hammond, Atty. Gen. of Maryland, on brief), for appellee.
Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.
PER CURIAM.
This is an appeal from an order dismissing after hearing a petition for a writ of habeas corpus filed by a person imprisoned by a Maryland state court as punishment for the crime of murder. It appears that appellant was duly convicted of murder by a jury in a trial had in the Maryland court where he was properly represented by competent counsel appointed by the court. His complaint is that evidence of a witness tending to establish an alibi in his behalf was not introduced on the trial. There is nothing to indicate, however, that the trial was not properly conducted, that appellant was not adequately represented by counsel or that any ground exists which would justify a federal court in treating the trial as a nullity and ordering the discharge of the prisoner. It is too well settled to justify discussion that habeas corpus in a federal court may not be used to retry issues properly heard and disposed of in a state court trial. The petition for habeas corpus and the appeal from the order of discharge are, therefore, entirely lacking in merit. The judge below properly declined for this reason to grant the appellant the certificate of probable cause required by 28 U.S.C.A. § 2253 as prerequisite to the right of appeal; and without such certificate we are without jurisdiction to entertain the appeal, which will accordingly be dismissed. Berman v. Swenson, Warden, 4 Cir., 177 F.2d 717; Bernard v. Brady, Warden, 4 Cir., 164 F.2d 881.
Appeal dismissed.
Question: What is the total number of respondents in the case that fall into the category "sub-state governments, their agencies, and officials"? Answer with a number.
Answer:
|
songer_trialpro
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on procedure at trial favor the appellant?" This includes jury instructions and motions for directed verdicts made during trial. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
WALKER v. UNITED STATES.
No. 4300.
United States Court of Appeals Tenth Circuit.
Oct. 17, 1951.
Elmore A. Page, Tulsa, Okl., for appellant.
John S. Athens, Tulsa, Okl. (Whit Y. Mauzy, Tulsa, Okl., on the brief), for -ap-pellee.
Before PHILLIPS, Chief Judge, and BRATTON and HUXMAN, Circuit Judges.
HUXMAN, Circuit Judge.
Appellant, Anna Lee Walker, was indicted in an indictment containing three counts, charging her with violating Title 18 U.S.C.A. § 1001. Count one charged that on or about March 1, 1951 * * * Anna Lee Walker knowingly and wilfully made a false representation in a matter within the jurisdiction of an agency of the United States, in that she at the time and place set out in the indictment procured a prescription for four % grain morphine sulphate tablets from Dr. O. A. Flanagan, falsely representing to him that her address was 822 South Cheyenne, Tulsa, Oklahoma. Count two charged that on or about March 1, 1951, she knowingly and wilfully used a false writing (the prescription which she had obtained), knowing same to contain a false statement, in that she uttered and filed with the William Penn Drug Store, 408 South Boston, in the City of Tulsa, Oklahoma, the prescription which she had obtained from Dr. Flanagan, knowing that said prescription contained the false statement that her address was 822 South Cheyenne, Tulsa, Oklahoma. Count three charged that on or about March 1, 1951, she knowingly and falsely made a false writing, knowing same to contain a false entry, in that she purchased from the Sooner Drug Store in Tulsa one ounce of paregoric and knowingly and falsely registered for such purchase her address as 1719 South Main Street, Tulsa. A trial was had to the court. Appellant was found guilty on all three counts and was sentenced to a term of imprisonment of eighteen months on each count, the sentences being made to run concurrently.
The evidence shows that prior to March 1, 1951, appellant had been living with her parents at 106 First Street South East, Miami, Oklahoma; that her occupation was that of a waitress; that on February 28 she came to Tulsa, bringing with her all of her clothes; that she came at the solicitation of Betty Lightfoot, who was living with her mother at 1719 South Main Street, Tulsa, Oklahoma; that Betty met her at the station; that she went with her to her mother’s home where she left her grips and stayed all night; that on the evening of February 28 she and Betty went to the apartment of Sherry Delphine Smith at 802 South Cheyenne, Tulsa; that there she changed into some clean clothes belonging to Delphine; that she and Betty then went out and apparently stayed out all night and then returned to jetty’s mother’s home at 1719 South Main, wearing Delphine’s clothes. She testified that because of conditions at Betty’s mother’s home, on her first visit to Delphine’s apartment, she talked with her about staying at her apartment until she found work; that she talked with her some time the next morning and that it was understood that she was. to come to Delphine’s house that afternoon and stay with her.
About ten o’clock on the morning of March 1, she and Betty Lightfoot went to the Sooner Drug Store, where she obtained the paregoric involved in count three of the indictment. The records required to be kept by druggists for the sale of paregoric under the Federal regulations corn tained appellant’s signature and gave her address as 1719 South Main. Thereafter about 1:15 P. M. she went to the office of Dr. Flanagan, where she obtained a prescription for four 14 gain morphine sulphate tablets, set out in count one. The prescription was filled , out and signed by Dr. Flanagan, who recorded her address as 822 South Cheyenne. She took the prescription giving her address as 822 South Cheyenne to the William Penn Drug Store, where it was filled and was given by the pharmacist to Betty Lightfoot, appellant being present in the store.
Thomas Richison, a witness called on behalf of the Government, testified that he was operating the Sooner Drug Store; that he kept a register for the recording of sales of exempt narcotic drugs; that anyone purchasing such drugs must register them in this register; that it was the practice in his store to require the purchaser to register such purchase, rather than the clerk who makes the sale. Dr. Flanagan testified that appellant, Anna Lee Walker, gave him the address 822 South Cheyenne and that he so recorded it in the prescription.
Delphine Smith, with whom appellant claims to have made arrangement to live some time during the day of March 1, does not live at 822 South Cheyenne, but lives at 802 South Cheyenne. H. B. Westover, the Federal Narcotic Agent, who arrested appellant, testified that at the time she told him she had given the address 806 and not 822 to the Doctor when she procured the prescription; that appellant told him that 806 was the address of Delphine Smith. There is no residence at 806.
Two grounds are urged for reversal— (1) that the evidence is wholly insufficient to sustain the judgment of guilty, and (2) that the judgments are void because Title 26 Code of Federal Regulations §§ 151.168 and 151.185, under which the charges are laid, are not within the power delegated to Congress by the United States Constitution.
The attacks upon counts one and two may be considered together. When appellant obtained the prescription for the morphine, upon which counts one and two were predicated, her address in the prescription and in the required record in the William Penn Drug Store was recorded as 822 South Cheyenne Street, Tulsa. That was not her address at the time she got the prescription, and the drugs. The only questions are — did she knowingly and wilfully give 'an erroneous address to Dr. Flanagan when she obtained the prescription, and did she later present it at the drug store where she obtained the drugs and, if so, did she do- this wilfully and knowingly. Dr. Flanagan testified that she gave him this address and that he recorded it as she gave it to him in the prescription. True, on cross-examination, he testified that he could have been mistaken and that he was “not infallible”, but this did not overcome his positive statement that he recorded her address as she gave it to him. It is more the mark of a witness who wants to be fair, rather than evidence of a doubt as to what occurred.
If appellant knowingly and falsely gave her address as 822 South Cheyenne, Tulsa, when she obtained the prescription for the morphine tablets, she is guilty of the offense laid in count one and also of the offense charged in count two. Wilfulness is an element of the offense charged and it was necessary for the Government to prove beyond a reasonable doubt that appellant wilfully and knowingly gave a false and erroneous address. To prove this element, it was not necessary, however, as contended by appellant, that the Government prove that she had in fact an evil intent. In some penal statutes, the word “wilful” connotes moral turpitude or evil of mind, but in others it means no more than that the interdicted act is done deliberately and with knowledge. We think that clearly is the sense in which the term is used in the statute under which the charges in the three counts of the indictment are laid. In resolving this question, it was the duty of the court to consider all the evidence as well as the inference deducible therefrom. When so considered, we are of the view that the evidence amply supports the court’s judgment on counts one and two.
As to Count three the contention is that there is no evidence in the record to sustain the verdict of guilty or the judgment entered thereon. It is argued that appellant had left Miami and had come to Tulsa to make her permanent home there and that at the time of the transaction set out in Count three 1719 South Main Street was her correct and only address. Since the sentence on .each count was eighteen months and the three sentences were made to run concurrently, it is not necessary for us to review the conviction on the third count. Assuming without deciding that the contention made is correct, since the sentences on Counts one and two run concurrently with the sentence on Count three, the conviction on Counts one and two are sufficient to sustain the sentence appealed from.
Appellant next contends that, since the purchase of the paregoric and the morphine sulphate tablets were local sales and dispensations and since no federal tax was involved, the control which the Government sought to set up over such sales through the applicable regulations was void for want of Constitutional power. It is argued that the control of all such local sales rests with the states and to permit Federal regulation thereof would violate the Constitutional rights accorded the sovereign states. Young v. United States, 315 U.S. 257, 62 S. Ct. 510, 86 L.Ed. 832, and Linder v. United States, 268 U.S. 5, 45 S.Ct. 446, 69 L.Ed. 819, on which appellant relies, do not sustain this contention. All the Young and Linder cases held was that the second proviso of § 6 of the Harrison Anti-Narcotic Act, as amended, 26 U.S.C.A. § 2551 which required any manufacturer, producer, com-pounder or vendor (including dispensing physicians) to keep a record of the sales did not apply to .physicians administering to patients whom they personally attend. The Linder case reaffirms the holding in United States v. Jin Fuey Moy, 241 U.S. 394, 36 S.Ct. 658, 60 L.Ed. 1061, that the narcotic law is a revenue measure and that Congress could not under the pretext of executing delegated power pass laws for the accomplishment of objects not entrusted to the Federal Government. It points out that the legislation enacted must have some reasonable relation to the exercise of the taxing authority conferred by the Constitution. It reaffirms the holding in United States v. Balint, 258 U.S. 250, 42 S.Ct. 301, 66 L.Ed. 604, that the emphasis is on securing a close supervision of the business of dealing in these dangerous drugs by the taxing officers of the government and that it merely uses a criminal penalty to secure recorded evidence of the disposition of such drugs as a means of taxing and restraining the traffic. It does uphold the authority of the officer charged with the enforcement of the Act to pass reasonable regulations for its enforcement. § 2551 of the Act, specifically provides for records of all sales, exchanges or gifts of such preparations in such manner as the Secretary shall direct and § 2606 authorizes the Secretary to confer any of the rights, privileges, powers and duties in respect to narcotic drugs conferred upon him upon the Commissioner of Narcotics or any officer or employee of the Bureau of Narcotics and to confer or impose upon the Commissioner of Internal Revenue any of such rights, privileges, powers and duties which may be necessary in connection with internal revenue taxes.
Pursuant to this statutory authority Regulation 151.168 was promulgated providing for the manner in which practitioners should issue prescriptions and the records required of - them and Regulation 151.185 was promulgated to provide for the records that were to> be kept with respect to the dispensation of exempt preparations. Requiring the keeping of such records does not invade the police power of the states. Such regulations are a valid exercise of the authority delegated by the statute to promote enforcement of the revenue provisos of the Act in question.
Affirmed.
. Title 18 U.S.C. § 1001 reads as follows:
“ Statements or entries generally.
“Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both.”
. United States v. Buckley, D.C., 49 F. Supp. 993; Todorow v. United States, 9 Cir., 173 F.2d 439; McCoy v. United States, 9 Cir., 169 F.2d 776; United States v. Uram, 2 Cir., 148 F.2d 187; United States v. J. Greenbaum & Sons, 2 Cir., 123 F.2d 770.
. See Browder v. United States, 312 U.S. 335, 61 S.Ct. 599, 85 L.Ed. 862; Nabob Oil Co. v. United States, 10 Cir., 190 F.2d 478, and cases cited therein.
. Brooks v. United States, 267 U.S. 432, 45 S.Ct. 345, 69 L.Ed. 699; Hirabayashi v. United States, 320 U.S. 81, 105, 63 S.Ct. 1375, 87 L.Ed. 1774.
. Watson v. United States, 9 Cir., 16 F.2d 52; Lewis v. United States, 9 Cir., 170 F.2d 43.
Question: Did the court's ruling on procedure at trial favor the appellant? This includes jury instructions and motions for directed verdicts made during trial.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_usc2
|
48
|
What follows is an opinion from a United States Court of Appeals.
The most frequently cited title of the U.S. Code in the headnotes to this case is 25. Your task is to identify the second most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if fewer than two U.S. Code titles are cited. To choose the second title, the following rule was used: If two or more titles of USC or USCA are cited, choose the second most frequently cited title, even if there are other sections of the title already coded which are mentioned more frequently. If the title already coded is the only title cited in the headnotes, choose the section of that title which is cited the second greatest number of times.
HYNES, Regional Director, Fish and Wildlife Service, Department of the Interior, v. GRIMES PACKING CO. et al.
No. 11585.
Circuit Court of Appeals, Ninth Circuit.
Nov. 21, 1947.
As Amended Jan. 12, 1948.
Writ of Certiorari Granted April 5, 1948.
A. Devitt Vanech, Asst. Atty. Gen., Harry O. Arend, U. S. Atty., and Willliam E. Berrett, Asst. U. S. Atty. both of Fairbanks, Alaska, and Roger P. Marquis and S. Billingsley Hill, Attys., Dept, of Justice, both of Washington, D. C., for appellant.
Edward F. Medley, Frank L. Mechem, and W. C. Arnold, all of Seattle, Wash. (Covington, Burling, Rublee, Acheson & Shorb, of Washington, D. C., of counsel), for appellees.
Before DENMAN, HEALY, and BONE, Circuit Judges.
DENMAN, Circuit Judge.
Appellant Hynes appeals from a permanent injunction enjoining him “from enforcing or attempting to enforce the restrictive provisions of Section 208.23 (r) of the 1946 Alaska Fisheries General Regulations and from seizing any boats, seines, nets, or other gear and appliance used or employed in fishing by the plaintiffs in the waters in and adjacent to the Karluk Indian Reservation situated on Kodiak Island, Alaska, three thousand feet seaward from the shore at mean low tide or any fish taken therewith, or from arresting any of plaintiffs’ fishermen who carry on fishing operations in said waters.”
The district court found that appellant, as Regional Director of the Fish and Wildlife Service of the Department of the Interior, had threatened to seize the appellees’ fishing bo’ats and catches of salmon and to arrest their fishermen, some six hundred in number, in the manner prohibited by the injunction, purporting to act under the summary procedures of Section 6 of the White Act of June 6, 1924, 48 U.S.C.A. § 226.
The court held against appellant’s contention that these ocean waters below lofiv tide had been included in a reservation for the Indians of Karluk village located on Shelikof Strait, giving the Indians a monopoly of fishing there. It further held that an Alaska Fisheries General Regulation 208.23 (r), designated to give fishing rights to the Karluk Indians in such purportedly reserved ocean waters and denying to all others the right to fish there unless licensed by the Indians to participate in their monopoly, violated Section 1 of the White Act, considered infra, providing that if any persons are allowed to fish in Alaskan waters none shall be excluded.
Regulation 208.23 (r) of the Secretary of the Interior purports to create a monopoly of fishing in the Karluk Indians in the above described ocean waters by providing:
“Sec. 208.23 Waters closed to salmon fishing. All commercial fishing for salmon is prohibited as follows: * * *
“(r) All waters within 3,000 feet of the shores of Karluk Reservation (Public Land Order No. 128, May 22, 1943), beginning at a point on the east shore of Shelikof Strait, on Kodiak Island, latitude 57° 32' 30" N., thence northeasterly along said shore to a point 57° 39' 40".
“The foregoing prohibition shall not apply to fishing by natives in possession of said reservation, nor to fishing by other persons under authority granted by said natives (49 Stat. 1250). Such authority shall be granted only by or pursuant to ordinance of the Native Village of Karluk, approved by the Secretary of the Interior, or his duly authorized representative.”
It is thus apparent that regulation 208.23 (r) does not contemplate that the ocean waters there involved are ordinary waters open to fishing subject to usual regulations for fish, preservation, but that the regulation is based upon the assumption that there is a reservation of these waters in which there is a monopoly of fishing in the Karluk Indians. Further that it is a monopoly in which these Indians may sell licenses to others to participate. Indeed, the appellant claims that the appellee fishing companies and all others have no cause to complain because they could buy such licenses from the Indians to participate in their monopoly and that the appellees have obtained such licenses in the past, and hence have been able to seine as many fish as they would if the regulation had not existed. The regulation has no other purpose than to create the Indians’ monopoly on the supposition that an Indian reservation in fact has been created and that the Secretary has a right to permit the Indians to fish there and deny the right to all other fishermen not so licensed.
The primary question for our determination is whether the Secretary of the Interior was authorized by Congress to create an Indian reservation in these waters below low tide for, if they are waters not so reserved, monopoly fishing rights therein are prohibited 'by Section 1 of the White Act, 48 U.S. C.A. § 221 et seq. Since we decide that Congress has not given' such authorization, to the Secretary, we are not concerned with the question whether — even if so reserved— regulation 208.23 (r) violates the White Act in permitting the licensed fishermen other than Indians to fish there and refusing the right to the unlicensed.
Appellant contends that Congress created the power in the Secretary to reserve to the Karluk Indians such below low tide ocean waters by Section 2 of the amendment of 1936, 48 U.S.C.A. § 358a,' of the Wheeler-Howard Act of 1934, 48 Stat. 984, 25 U.S.C. A. § 461 et seq. Section 2 describes what of the several classes of lands of the United States may be so covered in Indian reserva^tions.
“Sec. 2. That the Secretary of the Interior is hereby authorized to designate as an Indian reservation [a] any area of land, which has been reserved for the use and occupancy of Indians or Eskimos by section 8 of the Act of May 17, 1884 (23 Stat. 26), or [b] by section 14 or section 15 of the Act of March 3, 1891 (26 Stat. 1101), or [c] which has been heretofore reserved under any executive order and placed under the jurisdiction of the Department of the Interior or any bureau thereof, together with [d] additional public lands adjacent thereto, within the Territory of Alaska, or any other public lands which are actually occupied by Indians or Eskimos within said Territory: Provided, That the designation by the Secretary of the Interior of any such area of land as a reservation shall be effective only upon its approval by the vote, by secret ballot, of a majority of the Indian or Eskimo residents thereof who vote at a special election duly called by the Secretary of the Interior upon thirty days’ notice: * * (Emphasis supplied.)
Concerning the phrase “any area of land which has been reserved,” it is not contended that these Indians had had reserved to them any of the below tide waters of Shelikof Strait by virtue of the Act of May 17, 1884, 48 U.S.C.A. § 356, or of the Act of March 3, 1891, 48 U.S.C.A. § 358, or by any prior reservation placed under the jurisdiction of the Department of the Interior.
Whatever power the Secretary of the Interior had to reserve for them any lands is created by that portion of Section 2 which reads “The Secretary of the Interior is hereby authorized to designate * * * additional public lands adjacent thereto, within the Territory of Alaska, or any other public lands which are actually occupied by Indians or Eskimos within said Territory.” In this respect the 1936 Act differs from the above Acts of 1884 and 1891 which use the general phrase “lands” without the qualifying adjective “public.”
I. Congress in the 1936 amendment to the Wheelcr-Howard Act, authorizing the Secretary of the Interior to reserve “public lands’’ for Alaska Indian tribes, did not empower him to reserve ocean lands below low water mark. It did not intend to create in the Indians communal monopolies in such salmon fishing waters about the long established packing plants from which would be excluded the thousands of white fishermen employed in producing for the world, but principally the United States, its largest supply of canned fish food.
The evidence shows that a large part of the 30,000 Alaska Indians live in over eighty groups, most of them at the mouths of streams into which run the salmon seeking to spawn. Prior to the coming of the canning and packing plants, the Indians smoked the salmon for winter use, that fish being their principal article of diet By a process of survival these Indian villages are at the rivers having the largest salmon runs.
Over a half century ago American enterprises began to supply the world, principally the United States, with these salmon processed into cans. These enterprises grew until their investment of upwards .of seventy million dollars added to the world’s food supply in the three years preceding the 1936 statute, under which the Indian fishing monopolies here in question were purported to be created, an annual average of 5,947,518 cases of 48 pounds each — that is 285,480,899 pounds valued at $30,918-700. In 1935 9,205 fishermen in 845 vesseis and 3,989 boats and 11,861 processing employees were engaged, in this food production.
Congress in 1924 in the so-called White Act, hereafter considered, had recognized the character of this addition of this food to the world’s commerce by placing the fishing regulations under the Secretary of Commerce. It remained there until 1939, three years after the 1936 Act here to be construed, when,, under the executive reorganization act of that year, 53 Stat. 561, it was transferred to the Secretary of the Interior. Such a shift in the administrator does not change the Congressional recognition of the addition to commerce of this food supply.
For some time 'before 1924 the Department of Commerce had created a series of monopolies of exclusive fishing in certain of these Alaskan food processors. The Indians through their counsel joined with other processors excluded by the monopolies to obtain relief from Congress and, in response to their appeals, the Congress in 1924 enacted the White Act. That Act ended the monopoly system by providing that every fishing regulation made by the Secretary of Commerce “shall be of general application within the particular area to which it applies, and- that no exclusive or several right of fishery shall be granted therein nor shall any citizen of the United States be denied the right to take, prepare, cure, or preserve fish or shellfish in any area of the waters of Alaska where fishing is permitted by the Secretary of Commerce.” (Emphasis supplied.) 48 U.S.C. A. § 222.
Whether prior to 1924 citizenship had been conferred on the Alaska Indians and Eskimo who came into the United States not by conquest but by acquisition under the Russian treaty, they clearly were recognized as citizens by the Act of June 2, 1924, 43 Stat. 253, four days before the White Act became law. As such citizens they obtained the freedom from a monopoly exclusion from the fishing waters which they sought in their advocacy of the White Act. This was made apparent by the report on that Act of the House Committee (H.Rep. No. 357, 68th Cong., lst.Sess. p. 2):
“At the present time it is the policy of the department as one means of control of fishing to grant a limited number of fishing permits within any designated area and to exclude .all others from fishing rights therein. Your committee does not question the purpose of the department in this regard, but it has reached the unanimous and positive opinion that this practice of granting exclusive fishing privileges should cease and in this section it is declared that all regulations authorized to be made shall be of general application and that no exclusive or several right of fisheries shall be granted, nor shall any citizen be denied the right to take fish in waters where fishing is permitted. This declaration of policy and prohibition of law was earnestly urged upon the committee by the Delegate from the Territory, Mr. Sutherland, and has the general support of the people of the Territory.”
Senator White, author of the bill, stated (65 Cong.Rec. 5974):
“The Committee inserted this provision in order to do away with that exclusive right of fishing and to insure to every citizen of the United States equality of right and equality of opportunity.”
The contention of the appellant is that Congress in the 1936 amendment of the Wheeler-Howard Act reversed the non-monopoly policy in Alaska fisheries and authorized the Secretary to create a series of monopolies of the Alaska fishing waters. This the Secretary proceeded to do, beginning in 1943, after waiting seven years after the claimed authorization was enacted. Typical of these monopolies to the Indian citizens is that to the Karluk Indians here in question, about which the facts are undisputed.
A group of fifty families of Indians inhabit the village of Karluk. Their men were trappers and fishermen. How few trapped and fished is evidenced by the fact that in 1944 but 57 persons were eligible to vote to organize under the amended Wheeler-Howard Act, supra. Their men operated fish nets owned by the Alaska Packers Association in which they caught salmon by mooring one end of the net to a shore post and drawing the net across the salmon stream moving towards the Karluk River and its upper spawning beds. They also fished for salmon from their own boats. Their catch was sold to the Alaska Packers’ plant on the Karluk spit and to the appellee packers having plants elsewhere on Kodiak Island. They also were employed by the appellee canners on their boats, being paid, as the white fishermen, at so much per fish. In the non-fishing season they were employed by the local Alaska Packers’ plant.
There is no evidence that the catch of the white fishermen in the waters sought to be reserved for the Indians in any way lessened the catch of the fifty Indian families or the wages they earned. It is fair to assume that since six hundred-odd white fishermen used these waters without interfering with each other, the 57 Indian fishermen would find no greater interference. Indeed, so far as their purchasing power is concerned, it well may be that it was much higher than before the white men established their plants on Kodiak Island.
To this Indian group the Secretary’s instant Public Land Order 128 undisputably gave 35,000 acres, over 50 square miles, of upland “public lands” bordering on 15 miles of Shelikof Strait, the western boundary of Kodiak Island. The area of upland so reserved for the fifty families of the Karluk Indians is not questioned. The average for each family is over 700 acres, that is over four times the size of the homestead entry permitted to Indians in Alaska. 34 Stat. 197, 48 U.S.C.A. § 357.
The Secretary’s order also purports to give a fishing monopoly of the entire area of the waters in which the salmon stream to the Karluk River may be caught. This fishing monopoly is created by treating as “public lands” of the United States an area below low water in Shelikof Strait 15 miles long by 3,000 feet wide. That is to say, 5,450 acres or over 8% square miles covering the fishing area of the salmon run into the Karluk River spawning beds, From this reservation, if valid, the appellant’s brief properly claims there are excluded from trespass in its area all the 450 white fishermen shown to be hitherto employed there by the appellees, plus, say, 150 more by the large Alaska Packers’ plant on Karluk spit.
In the last season of 1946 the white fishermen of appellees caught 3,920,789 salmon in the purportedly monopolized area which were processed for the American food supply. To this must be added the large amount of the Alaska Packers. Appellees’ capital investment in plant and equipment, dependent in large part on these salmon, is $2,075,000. Plus this is the capital investment of the Alaska Packers’ Karluk plant The value of the appellees’ enterprises as going concerns is so large that it requires a pre-season expenditure of $1,515,000 and the employment as processors in the packing plants of appellees alone of 624 employees.
If this fishing monopoly exists, the Wheeler-Howard Act permits the sale to the white fishermen of rights to share in it. It is obvious that wha.t the Karluk community monopoly could extract from these food producers for the right to employ its fishermen in these monopolized waters well could be more than enough to comfortably sustain these Indians without any fishing or trapping at all.
Here is not the President’s but the withdrawing power of the Secretary of the Interior, a subordinate officer, which is in question and it is in connection with a statute which confers withdrawal power not in the general language of “lands of the United States” but only over “public lands.” The phrase “public lands” has been confined to a limited class of lands through a long line of Supreme Court decisions which always have distinguished them from other lands of the United States, and which hold that “public lands” do not include the lands below low water mark of ocean waters. These cases require the determination whether the word “public” before the word “lands” gives the phrase “public lands” a specific meaning which does not include such ocean waters and whether Congress would have placed it there if it intended to include such waters, since by omitting the word “public” the word “lands” by itself would have included them. The applicable principle is that restated from many prior decisions in Ex parte Public Bank, 278 U.S. 101, 104, 49 S.Ct 43, 44, 73 L.Ed, 202:
“No rale of statutory construction has been more definitely stated or more often repeated than the cardinal rule that ‘significance and effect shall, if possible, be accorded to every word. As early as in Bacon’s Abridgment, § 2, it was said that “a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.” ’ ”
The same in Washington Market Co. v. Hoffman, 101 U.S. 112, 115, 25 L.Ed. 782.
The principle so stated is always applicable. Here it is the more so in determining whether Congress intended to reverse its anti-monopoly legislation in Alaska fishing in an amendment to an Act in neither of which ocean waters or fishing are mentioned, and upon which nothing concerning ocean waters or fishing appears in the committee reports.
That the all inclusive word “lands” in a statute or a treaty .providing for a reservation of “lands” for Indians includes s.uch navigable waters, has been clearly established. In Alaska Pacific Fisheries v. United States, 248 U.S. 78, 79, 39 S.Ct. 40, 63 L.Ed. 138, it was held that under a Congressional statute specifically creating for the Metlakahtla Indians a reservation of “the body of hands known as Annette Islands, situate in Alexander Archipelago in southeastern Alaska” 48 U.S.C.A. § 358, included the fishing grounds in the adjacent navigable waters and upheld regulations implementing the legislation which gave an exclusive right of fishery to the Indians in an area extending 3,000 feet from the shore line.
So also where Congress enacted that the President should set apart as Indian reservations in California “four tracts of land, within the limits of said sítate,” 13 Stat. 39, § 2, the President was empowered to include in a reservation of the land, the bed of the Klamath River even assuming, which was contested, that the river was navigable. Donnelly v. United States, 228 U.S. 243, 260, 262, 33 S.Ct. 449, 57 L.Ed. 820, Ann. Cas. 1913E, 710.
This court held of the treaty of 1855 with the Quillayute Indians of which Article II provided for a reservation to them of “a tract or tracts of land sufficient for their wants within the Territory of Washington,” 12 Stat. 971, that the treaty, so using the word “land,” warranted a presidential reservation of the tide-lands on. the ocean ■beach of the Quillayute River and of the navigable waters of that river for a distance of over a mile above its mouth. Moore v. United States, 9 Cir., 157 F.2d 760, certiorari denied 330 U.S. 827, 67 S.Ct. 867, 91 L.Ed., ___. So also we held of the word “lands” in the .provision of the Act of 1884 that Alaska “Indians or other persons * * * shall not be disturbed in the possession of any lands actually in their use or occupation” that “lands” included “tidelands” so in use. Heckman v. Sutter, 9 Cir., 119 F. 83, 88.
Since the use of the wordl “lands” alone in Section 2 of the statute of 1936 would have given the Secretary of the Interior ithe power to reserve the ocean waters below low tide, we are required to give significance to the use by Congress of the word “public” before the word “lands” unless the phrase “public lands” has been determined to include lands of the United States in the ocean below low water mark.
No such decision is cited by appellant and our search has revealed none. On the contrary, the decisions unanimously hold the phrase “public lands” to have an established meaning excluding such waters.
On December 11, 1935, a few months before Congress placed the qualifying word “public” before the word “lands” in Section 2 of the Act of 1936, the Supreme Court decided the case of Borax, Ltd. v. Los Angeles, 296 U.S. 10, 17, 56 S.Ct. 23, 80 L.Ed., 9. There, in holding that because the jurisdiction of the Department of the .Interior’s- Land Department extended in preemption claims only to “the public lands of the United States” that body could not render a final decision that preemption claimed lands were not tidelands, the Court states in 296 U.S. at page 17, 56 S.Ct. at page 27, 80 L.Ed. 9:
“Specifically, the term ‘public lands’ did not include tidelands. Mann v. Tacoma Land Co., 153 U.S. 273, 284, 14 S.Ct. 820, 38 L.Ed. 714. ‘The words “public lands” are habitually used in our legislation to describe such as are subject to sale or other disposal under general laws.’ ‘Newhall v. Sanger, 92 U.S. 761, 763, 23 L.Ed. 769; Barker v. Harvey, 181 U.S. 481, 490, 21 S.Ct. 690, 45 L.Ed. 963; Union Pac. R. Co. v. Harris, 215 U.S. 386, 388, 30 S.Ct. 138, 54 L.Ed. 246.”
,This continued limiting construction of the phrase “public lands” as distinguished from the general word “lands” of the United States is thus seen to extend over sixty years’ judicial consideration of our land laws.
In Mann v. Tacoma Land Co., 153 U.S. 273, 284, 14 S.Ct. 820, 822, 38 L.Ed. 714, Mann claimed title to certain tidelands in Commencement Bay in Puget Sound acquired by a location under script issued to one Valentine in lieu of lands claimed by him under a Mexican grant. This script was created by a special (not general) Act of Congress providing that Valentine or his succeeding holders of the script “may select, and shall be allowed, patents for an equal quantity of the unoccupied and unappropriated public lands of the United States.” 17 Stat. 649, 650, § 3. In holding that tidelands were not included in the phrase “public lands” the Supreme Court states:
“There is nothing in the act authorizing the Valentine script, or in the circumstances which gave occasion for its passage, to make an exception to the general rule. It provided that the script might be located on the unoccupied and unappropriated public lands, but the term ‘public lands’ does not include tide lands. As said in Newhall v. Sanger, 92 U.S. 761, [763, 23 L.Ed. 769] : ‘The words “public lands” are habitually used in our legislation to describe such as are subject to sale or other disposal under general laws.’ See also Leavenworth, etc., Railroad v. United States, 92 U.S. 733, [23 L.Ed. 634]; Doolan v. Carr, 125 U.S. 618, 8 S.Ct. 1228 [31 L.Ed. 844].”
The “general rule” referred to was that of Shively v. Bowlby, 152 U.S. 1, 14 S.Ct. 548, 38 L.Ed. 331. Unlike the use of the phrase “public lands” in- the special legislation creating the Valentine script, the; phrase was used in the “general legislation” of September 27, 1850, 9 Stat. 496,-providing for a donation claim of “public" lands” which the Supreme Court held did' not include lands below high water mark. That Act provided for a grant to “every white settler or occupant of the public lands, American half-breed Indians included,” on certain conditions of occupancy and cultivation of the lands, of 320 acres if unmarried and an additional 320 acres to his wife if married to her before December 31, 1851. Despite this specific restriction of the legislation to the relatively ¡few whites and half-breed Indians in Oregon iri 1851, the Supreme Court states that the Oregon Donation Act is “general legislation” by which cannot be granted navigable waters adjoining such “public lands.”
It is thus apparent that whether the Act of 1936 be regarded as general legislation for all the Indians in Alaska or special legislation for their benefit, the phrase “public lands” does not include ocean waters any more than in the special legislation for Valentine or the general legislation for the Oregon whites and half-breeds there in 1851. Nor is the rule of Shively v. Bowlby confined to legislation for grants of land. In the case of United States v. Holt Bank, 270 U.S. 49, 55, 46 S.Ct. 197, 70 L.Ed. 465, its principle was applied in determining that a reservation of the Chippewa Indians surrounding navigable Mud Lake, whose area of 5,000 acres is comparable to the area of navigable waters here involved, did not include that lake.
This court in Heckman v. Sutter, 9 Cir., 128 F. 393, 394, 395, expressly distinguishes between the limited meaning of the phrase “public lands” as excluding ocean lands and distinguished that phrase from the phrase “any lands” of the-Act of May 17, 1884, which it held included Alaska tidelands under the rule of Shively v. Bowlby, stating:
“Nor is it reasonable to suppose that Congress intended the broad and comprehensive terms thus used by it to be limited by the interpretation put upon the term ‘public lands’ in the general land laws, which it expressly provided should not be in force in Alaska. ■* ■* *”
Despite the holding of the limiting meaning of the word “public” before the word “lands” in the Borax, Ltd. case, decided shortly before the Act of 1936, and our decision in Heckman v. Sutter, last cited, it is claimed that Congress intended that the latter Act must be construed as if the all-inclusive word “lands” alone were used. The argument is, in effect, that the coastal Indians of Alaska would be economically benefitted if the word “public” were absent .-and since the Wheeler-Howard Act contemplates an economic benefit to them we -.must construe it without that adjective.
Of course, it could not be contended that the only economic benefit Congress could have contemplated was a reservation of ocean waters, for here we have a reservation of fifty square miles of upland. So also does a reservation of upland bordering on fishing waters give to the Indians exclusive access to such waters from their shore, both for the launching of their boats and for the posts upon which are attached their nets held by boats across the streams of fish in the navigable waters.
That it would be a further economic benefit to create fishing monopolies in the Indians and thus destroy the established packing industries or compel them to pay tribute to them is also obvious, but for the reasons stated we think that Congress did not so intend when it used the phrase “public lands” in the 1936 amendment. The attempt of the Secretary, beginning in 1943, to create the several monopolies in ocean waters as part of “public lands” does not constitute an administrative interpretation overcoming the sixty years of contrary interpretation of the Supreme Court. There is no error in the holding of the district court that such attempted reservation of ocean waters in Public Order 128 is invalid.
In reaching this conclusion we have had in mind that the packing corporations, whose thousands of fishermen have so increased the world’s food production, are not to be regarded as eleemosynary institutions. The American way of the profit motive often leaves unjustly behind minority groups of lesser education and initiative. That the Alaska Indians have suffered in the past under the competitive system is obvious.- That statutes for their relief should be liberally construed in their1 favor is well established. Alaska Pacific Fisheries v. United States, 248 U.S. 78, 39 S.Ct. 40, 63 L.Ed. 138. What we have held is no more than that Congress did not intend to give such monopoly creating power to the Secretary of the Interior by the particular 1936 amendment to the Wheeler-Howard Act which does not concern the Alaska fisheries and in the consideration of which amendment the great food producers had no reason to participate and which could give no ground for their exclusion, from their established fishing grounds, except by a construction of its language contrary to the construction of over half a century.
II. The White Act does not permit a monopoly of fishing in these Indian citizens as a conservation measure.
There is no merit in the contention that, even assuming the ocean waters not reserved, regulation 208.23 (r) is a valid method of conservation because, under the Secretary’s direction, the licensees who share in the monopoly so may be limited that the balance between catch and reproduction of salmon is better maintained. The White Act gives the Secretary the wide discretion recognized in Dow v. Ickes, App.D.C., 123 F.2d 909, but it plainly says that in seeking conservation “no exclusive or several right of fishery shall be granted” in a regulated area — and here exclusive rights are given to the 57 Indians and their favored white licensees. Six hundred American fishermen will be “denied the right to * * * fish” which is given them wherever others are permitted under the White Act so to do.
Nor is there merit in the contention that this is a regulation giving a preference to resident as distinguished from non-resident fishermen held valid in many states. Here is boldly provided a sharing in the monopoly of a limited number of nonresident licensees, a purpose, the evidence shows, which was accomplished by the sale to them by the Indians of permits for the season of 1946.
Likewise with appellant’s contention that appellees cannot obtain relief because some of them actually fished under the Indian permits in the 1946 season. Obviously, under the wrongful threat of appellant to seize their boats during that season, they would pay the Indians their exaction rather than lose a large part of the pre-season expenditures of $1,515,000 which the district court found actually had been made. Action under such a threat cannot deprive appellees of the right to resist such threatened illegal action in succeeding seasons.
III. The Secretary is not an indispensable party. It thus appears that appellees are not to be excluded from fishing in the Karluk salmon run either by the Secretary’s purported reservation of public lands under the Act of 1936 or by his purported conservation reservation of the Karluk fishing area under the White Act. In both cases the purported action was without any authority whatsoever. Since all power to act was absent, the Secretary was not merely abusing a discretion and hence required to be joined. The rule as stated for this circuit in Neher v. Harwood, 9 Cir., 1942, 128 F.2d 846, 849, 158 A.L.R. 1116; certiorari denied 317 U.S. 659, 63 S.Ct. 57, 87 L.Ed. 529, is:
“In the two former cases the superior officer had acted under a statute which was not attacked as unconstitutional, but it was contended that the superior had in some manner abused his discretion and in such circumstance it was held that he should be made a party to the action in order to defend his direction and regulations. Where he was without authority to act at all in the premises his actions assuming to authorize action by the subordinate were of no validity and left the subordinate as the actor subject to restraint.” (Emphasis supplied.)
In that action, in 128 F.2d, at page 849, we described Colorado v. Toll, 268 U.S. 228, 45 S.Ct., 505, 69 L.Ed. 927, as a case in which the superior was not necessarily joined because “he had no statutory authority whatsoever to issue the regulations complained of.” So similarly Berdie v. Kurtz, 9 Cir., 75 F.2d 898.
The rule is similarly stated for the Sixth Circuit that where plaintiffs “are challenging the statutory power of the Administrator to promulgate the regulations in question * * * the Administrator was not an indispensable party to the action and the court had jurisdiction to proceed against the Administrator’s subordinates.” Varney v. Warehime, 6 Cir., 147 F.2d 238, 243; certiorari denied 325 U.S. 882, 65 S.Ct. 1575, 89 L.Ed. 1997. See also in the Fourth Circuit, Ainsworth v. Barn Ballroom Co., 157 F.2d 97, and the Fifth Circuit, Yarnell v. Hillsborough Packing Co., 70 F.2d 435, 438, 92 A.L.R. 1475.
Appellant contends that injunctive relief must be denied under our decision in P. E. Harris Co. v. O’Malley, 9 Cir., 2 F.2d 810. That, however, was not a case where a regulation of the Secretary of Commerce was claimed to be invalid. The injunction there was sought to determine whether a particular salmon trap violated a regulation. In the instant case, the Secretary is held to have no authority to make the regulation the violation of which, if valid, would require the seizure and condemnation of the appellees’ fishing boats and gear and the fine and imprisonment of their fishermen. The facts bring the case clearly within Philadelphia Co. v. Stimson, 223 U.S. 605, 621, 32 S.Ct. 340, 56 L.Ed. 570, where the contention was that the Secretary of War was without authority to make a regulation which, if valid, warranted prosecution for a misdemeanor, and it was held that if the regulation was invalid its enforcement could be enjoined. The doctrine is so restated in Stark v. Wickard, 321 U.S. 288, 290, 311, 64 S.Ct. 559, 88 L.Ed. 733, and in Board of Governors v. Agnew, 329 U.S. 441, 444, 67 S.Ct. 411, 91 L.Ed. ___. Cf. Freeman v. Smith, 9 Cir. 44 F.2d 703.
The decree of the district court is affirmed.
The injunction and present litigation are not concerned with the rights of the Karluk Indians or others in the eastern waters of Shelikof Strait between high and low water.
In Section 1 of Public Land Order No. 128 of May 22, 1943, the Secretary of the Interior designated as a reservation for the Karluk Indians 35,200 acres of land on Kodiak Island bordering on .the east shore of Shelikof Strait. Section 2 adds to the land in the reservation the waters referred to in the court’s permanent injunction, as follows:
“2. The area described above and the water adjacent thereto extending 3,000 feet from the shore line at mean low tide, are hereby designated as an Indian reservation for the use and benefit of the native inhabitants of the native village of Karluk, Alaska, and vicinity.”
Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 25. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_appnatpr
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
APEX HOSIERY CO. v. LEADER et al.
No. 6977.
Circuit Court of Appeals, Third Circuit.
Jan. 3, 1939.
M. Herbert Syme, of Philadelphia, Pa., for appellants.
Sylvan H. Hirsch, of Philadelphia, Pa., (Arno P. Mowitz, Mowitz & Kohlhas, and Sundheim, Folz & Sundheim, all of Philadelphia, Pa., of counsel), for appellee.
Before DAVIS, MARIS, and CLARK, Circuit Judges.
PER CURIAM.
-The defendants in an action for treble damages under the Sherman Anti-Trust Act § 7, 15 U.S.C.A. § 15, note, have appealed from an order of the court below made under Federal Rules of Civil Procedure, rule 34, 28 U.S.C.A. following section 723c, for the discovery and production by them of documents for inspection,copying and photographing by the plaintiff for use at the trial of the action. An order of this nature is interlocutory and, therefore, not appealable. This has been expressly decided by the Supreme Court in the cases of Cogen v. United States, 278 U.S. 221, 49 S.Ct. 118, 73 L.Ed. 275, and Fox v. Capital Co., 299 U.S. 105, 57 S.Ct. 57, 81 L.Ed. 67. In the former case Mr. Justice Brandéis said (pages 223, 224, 49 S.Ct. page 119) : “The disposition made of the motion will necessarily determine the conduct of the trial and may vitally affect the result. In essence, the motion resembles others made before or during a trial to secure or to suppress evidence, such as applications to suppress a deposition, Grant Bros. Const. Co. v. United States, 232 U.S. 647, 661, 662, 34 S.Ct. 452, 58 L.Ed. 776; Pullman Co. v. Jordan (C.C. A.) 218 F. 573, 577; to compel the production of books or documents, Pennsylvania R. Co. v. International Coal Mining Co. (C.C.A.) 156 F. 765; for leave to make physical examination of a plaintiff, Union Pacific Ry. Co. v. Botsford, 141 U.S. 250, 11 S.Ct. 1000, 35 L.Ed. 734; or for a subpoena duces tecum, Murray v. Louisiana, 163 U.S. 101, 107, 16 S.Ct. 990, 41 L.Ed. 87; American Lithographic Co. v. Werclcmeister, 221 U.S. 603, 608-610, 31 S.Ct. 676, 55 L.Ed. 873. The orders made upon such applications, so far as they affect the rights only of parties to the litigation, are interlocutory. Compare Alexander v. United States, 201 U.S. 117, 26 S.Ct. 356, 50 L.Ed. 686. It is only when disobedience happens to result in an order punishing criminally for contempt, that a party may have review by appellate proceedings before entry of the final judgment in the cause. Union Tool Co. v. Wilson, 259 U.S. 107, 110, 111, 42 S.Ct. 427, 66 L. Ed. 848.”
While the appeal must be dismissed for want of jurisdiction, we think it may fairly be said that the order entered by the learned District Judge was most carefully drawn to prevent the plaintiff from unduly prying into the defendants’ affairs.
Appeal dismissed.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_appel1_7_3
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the race or ethnic identity of this litigant as identified in the opinion. Names may be used to classify a person as hispanic if there is little ambiguity. All aliens are coded as "not ascertained".
Charles S. COLEMAN, Appellant, v. UNITED STATES of America, Appellee.
No. 16880.
United States Court of Appeals District of Columbia Circuit.
Argued June 26, 1962.
Decided Dec. 20, 1962.
Mr. David R. Peasback (appointed by this court), for appellant.
Mr. Daniel A. Rezneck, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., and Nathan J. Paulson, Asst. U. S. Atty. at the time of argument, were on the brief, for appellee. Mr. John R. Schmertz, Jr., Asst. U. S. Atty. at the time of argument, also entered an appearance for appellee.
Before Edgerton, Washington, and Bastían, Circuit Judges.
EDGERTON, Circuit Judge.
Appellant Coleman was a passenger in the car involved in the Sheriff Road robbery and killing. Facts are stated in our opinion in Jackson v. United States, 114 U.S.App.D.C. -, 313 F.2d 572 (1962).
The police questioned Coleman on six or seven separate occasions, and as far as appears could have questioned him again at will, before they arrested him at 6:45 p. m. on January 17, 1961. They took him across town to a police station and locked him in a room. Between 7:30 and 8:00 p. m. he was interrogated and made a non-incriminatory statement about his whereabouts at the time of the crime. He was again locked up alone from 8:00 to about 8:45. Three officers then arrived who ha<J been called for the admitted purpose of questioning him. Questioning was resumed, and a “ ‘threshold’ ” confession was obtained at 8:50. From 9:10 to 10:50 p. m. it was reduced to writing. He was then “booked”. He was not brought before a magistrate until 10:00 a. m. the next day.
There was unnecessary delay. As long ago as 1946 we said that “both by law and practice” a prisoner may be brought before a committing magistrate “at any hour.” Akowskey v. United States, 81 U.S.App.D.C. 353, 354, 158 F.2d 649, 650. We recently said: “[N]ot only a magistrate, but an Assistant United States Attorney, are, and were * * * available to the police twenty-four hours a day.” Jones v. United States, 113 U.S. App.D.C. 256, 307 F.2d 397, 399 (1962). Cf. Ginoza v. United States, 279 F.2d 616 (9th Cir., 1960). If because of some extraordinary circumstance no magistrate were available, it would not follow that questioning could continue. The time between arrest and confession was not, as we said it was in the Heideman case, “consumed only by the questions * * * and by the preparing of papers, booking, photographing, fingerprinting and transportation * * Heideman v. United States, 104 U.S.App.D.C. 128, 131, 259 F.2d 943, 946 (1958), cert. denied, 359 U.S. 959, 79 S.Ct. 800, 3 L.Ed. 2d 767 (1959). The delay was “of a nature to give opportunity for the extraction of a confession.” Mallory v. United States, 354 U.S. 449, 455, 77 S.Ct. 1356, 1360, 1 L.Ed.2d 1479 (1957). Since the confessions were obtained during an unnecessary and therefore unlawful detention they should have been excluded. F.R.Crim.P. 5(a); McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943). Other cases are cited in our opinion in Tatum v. United States, 114 U.S.App.D.C. -, 313 F.2d 579. Failure to exclude the confessions was prejudicial error and the judgment must be reversed. Jones v. United States, supra.
Since there must be a new trial, we consider claims of error based on the contention that there was no evidence that appellant aided or abetted in the shooting and that, therefore, he could not be guilty of murder in the second degree. These claims must be rejected. “All those who assemble themselves together with an intent to commit a wrongful act, the execution whereof makes probable in the nature of things a crime not specifically designed, but incidental to that which was the object of the confederacy, are responsible * * * for the acts of each, if done in pursuance of, or as incidental to, the common design.” Turberville v. United States, 112 U.S.App. D.C. 400, 402-403, 303 F.2d 411, 413-414 (1962), cert. denied, 370 U.S. 946, 82 S.Ct. 1596, 1607, 8 L.Ed.2d 813 (1962). The jury could reasonably regard the shooting as incidental to the common design of robbery. The court did not instruct specifically on “common purpose”, but the general instructions on aiding and abetting were adequate and counsel for Coleman did not object to them.
Reversed and remanded for a new trial.
. Quoting 1 Wharton, Criminal Law § 258 (12th ed. 1932).
1. “A confession [made] during a period of necessary delay in arraignment is not inadmissible because that period was followed by a period of unnecessary delay.” See Lockley v. United States, 106 U.S. App.D.C. 163, at 166, 270 F.2d 915, at 918 (1959).
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the race or ethnic identity of this litigant as identified in the opinion?
A. not ascertained
B. caucasian - specific indication in opinion
C. black - specific indication in opinion
D. native american - specific indication in opinion
E. native american - assumed from name
F. asian - specific indication in opinion
G. asian - assumed from name
H. hispanic - specific indication in opinion
I. hispanic - assumed from name
J. other
Answer:
|
songer_district
|
H
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What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
NORTH ATLANTIC WESTBOUND FREIGHT ASSOCIATION et al., Petitioners, v. FEDERAL MARITIME COMMISSION and United States, Respondents, American Export Isbrandtsen Lines, Inc., Intervenor.
No. 21912.
United States Court of Appeals District of Columbia Circuit.
Argued May 13, 1968.
Decided May 16, 1968.
Mr. Ronald A. Capone, Washington, D. C., with whom Messrs. Stuart S. Dye and Robert Henri Binder, Washington, D. C., were on the application for petitioners.
Mr. H. B. Mutter, Asst. Sol., FMC, with whom Messrs. James L. Pimper, General Counsel and Robert N. Katz, Sol., FMC, were on the opposition for respondents.
Mr. Richard W. Kurrus, Washington, D. C., with whom Mr. James N. Jacobi, Washington, D. C., was on the opposition for intervenor.
Before Bastían, Senior Circuit Judge and Leventhal and Robinson, Circuit Judges.
PER CURIAM:
This is an application for stay of a Federal Maritime Commission order accepting for filing certain “through inter-modal container freight tariffs” submitted by Container Marine Lines (CML). Petitioners are the North Atlantic Westbound Freight Association (except CML) (NAWFA) and its member lines (except CML), ocean carriers in the westbound trade between the United Kingdom and United States Atlantic ports.
The tariffs in question establish a single-factor rate for containerized freight from inland points in the United Kingdom to United States Atlantic ports; under the accompanying bill of lading, CML assumes complete liability for both land and water carriage. Rejecting NAWFA’s protest that the CML tariffs were inconsistent with CML’s obligations under the Conference agreement, the Commission held that the agreement applied only to port-to-port carriage and that CML’s through service with through liability was a unique movement which fell outside the scope of the Conference agreement. Thus, the Commission found that CML proposed not merely a combination of an ocean movement and a land movement, but a distinct service. Nevertheless, in order to discharge its regulatory responsibilities, the Commission did require CML to break out the portion of its single-factor rate which constitutes its charge for ocean transportation.
A movant for stay must demonstrate that the ease presents more than a close question; it must make “a strong showing that it is likely to prevail on the merits of its appeal.” Virginia Petroleum Jobbers Ass’n v. FPC, 104 U.S.App.D.C. 106, 110, 259 F.2d 921, 925 (1958). Accordingly the question before us now is not to decide how the court would rule on the merits, but whether we can say we feel the result is so likely as to weigh palpably in the balance of interests.
Although petitioners make some contentions that are not without force, and may prevail on the merits when they are decided, we do not think the showing on the record before us is of such order of probability as to mandate the stay.
The question on the merits is not only how the agreement seems to read to the judges of this court, though that is inescapably involved. Construction of such an agreement involves a question of law but like other questions of law, e. g., interpretation of regulatory statutes, the agency’s determination is entitled to weight on judicial -reconsideration. Certainly where underlying issues of fact or policy are involved an agency’s interpretation of agreements is due judicial respect and deference, cf. Great Northern Ry. v. Merchants’ Elevator Co., 259 U.S. 285, 42 S.Ct. 477, 66 L.Ed. 943 (1922). Specifically in regard to conference agreements, the Commission is to be given “reasonable leeway in delineating the scope” of these agreements, Swift & Co. v. FMC, 113 U.S. App.D.C. 117, 121, 306 F.2d 277, 281 (1962). In addition, the view on the merits taken by the Commission, presumptively guardian of the public interest, has some bearing on another issue for consideration on a stay application, as indicating the direction of the public interest.
The case on the merits may come to require consideration of the question whether the Commission acted properly in holding CML’s service to be a different kind of transportation from that provided under the Conference agreement without the benefit of an evidentiary hearing to explore the service provided by Conference members and without explanation of the significance of the factors which make CML’s service different. However, the record presently before us does not make clear enough to warrant a stay the necessity of a hearing or the insignificance of the differentiating factors.
To avoid any possible misunderstanding, we expressly note that our denial of stay is not to be taken as a forecast that petitioners will not prevail on the merits.
The Commission required CML to break out the ocean portion of its rates and found that the discrepancies between the Conference ocean rate and the water portion of CML’s through rate were not “on their face so discriminatory or prejudicial as to be unlawful per se.” We presume that this indicates that the portion of the through rate allocated to the land leg of CML’s through movement is not so grossly understated as to show that the stated water portion borders on lack of bona fide, or the Commission would not have allowed the tariffs to become effective.
Finally, as bearing on irreparable injury, we take into account that, as indicated by the Commission, the problems raised by this case may be susceptible of resolution by the parties among themselves. In that regard, intervenor represented to the court an oral argument that it would not use its authority under the Conference unanimity rule to block amendment of the Conference agreement to extend to its through service, although we recognize the terms of the amendment would require reasonable negotiation.
Since we believe that the question presented by this case is close, and we appreciate that the stakes are high, we will provide expedited consideration. Our denial of the stay is without prejudice to a renewal of the motion for stay in the briefs and at oral argument on the merits, or at an earlier time if the circumstances warrant.
So ordered.
. CML is a division of intervenor American Export Isbrandtsen Lines, Inc., and a member of the North Atlantic Westbound Freight Association.
. The purpose of the Commission proceeding was solely to determine the acceptability of CML’s tariffs for filing under 46 U.S.C. § 817(b) (1), (3), so the question of the reasonableness of rates was not directly in issue. Apparently the Commission recognized that some consideration, at least preliminary scanning, of the rate was requisite since it found that the discrepancies between the Conference rate and the water portion of CML’s rate were not “so discriminatory or prejudicial as to be unlawful per se.”
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
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songer_bank_r1
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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.
Your task is to determine whether or not the first listed respondent is bankrupt. If there is no indication of whether or not the respondent is bankrupt, the respondent is presumed to be not bankrupt.
SUPERSCOPE, INC., Plaintiff, Appellee, v. BROOKLINE CORP., etc., Defendant, Appellee. Robert E. Lockwood, Defendant, Appellant.
No. 83-1129.
United States Court of Appeals, First Circuit.
Argued Aug. 3, 1983.
Decided Aug. 31, 1983.
George L. Bernstein, Boston, Mass., for defendant, appellant.
Paul E. Heimberg, Brookline, with whom Julius Thannhauser, and Riemer & Braunstein, Boston, Mass., were on brief, for Superscope, Inc.
Before CAMPBELL, Chief Judge, BOWNES, Circuit Judge, and PEREZGIMENEZ, District Judge.
Of the District of Puerto Rico, sitting by designation.
LEVIN H. CAMPBELL, Chief Judge.
Superscope, Inc., appellee, supplied Brookline Corp. with inventory for Brook-line’s chain of retail stores. Payment for the inventory was secured by a purchase money security interest. On November 14, 1980, appellant Lockwood, who was the president, treasurer, and clerk of Brookline, executed and delivered a personal guaranty to Superscope guaranteeing Brookline’s indebtedness in excess of $100,000. The guaranty provided that recourse to Lockwood would be had “simultaneous with proceeding against any security taken and held to satisfy all debt of [Brookline] to [Super-scope] and with exercising any other remedy available to [Superscope] against [Brook-line].”
On April 8, 1981, Brookline filed a petition for relief under Chapter 11 of the United States Bankruptcy Code. On April 13, 1981, Superscope brought the present action against Brookline and Lockwood in the district court. On April 8, 1982, the Chapter 11 proceeding was converted into a Chapter 7 liquidation.
After Superscope had moved for summary judgment in the instant case against both defendants, the parties stipulated that Brookline owed Superscope $176,814.19. Thereafter, the district court entered judgment in the amount of $76,814.19 against Lockwood, that being the portion of the stipulated amount owed by Brookline in excess of $100,000. From that judgment, Lockwood appealed to this court. We agree with the district court that Superscope established all the elements of its case and that no material factual dispute sufficient to defeat summary judgment was raised. Brookline’s underlying obligation is undisputed and fully liquidated. Lockwood does not deny the existence of the debt or his guaranty of a portion thereof. Brookline is clearly in default as the debt has been due and owing for over 30 days and it has filed for bankruptcy. The several letters sent by Superscope to Lockwood and Lockwood’s position in the corporation, as well as the filing of this suit, provided sufficient notice to Lockwood of Brookline’s default. Lastly, the furnishing of credit to Brookline on Lockwood’s promise is sufficient consideration; no benefit need pass directly to Lockwood.
The sole question on appeal is whether Superscope complied with the condition that it proceed simultaneously against both the security and the guarantor. Appellants argue that by filing a claim as an unsecured creditor, Superscope abandoned its security and therefore lost its right to proceed against Lockwood on the guaranty. The district court held, and we agree, that Superscope did not abandon its security and took all required action precedent to realizing on the guaranty.
Brookline’s petition for reorganization listed Superscope as a secured creditor. Under § 1111(a) of the Bankruptcy Code, a proof of claim is deemed filed under § 501 if that claim appears in the schedule filed by the debtor under § 521(1) so long as the claim is not scheduled as disputed, contingent or unliquidated. Thus, Superscope did not have to file a proof of claim for its secured interest because Lockwood had listed Superscope as a secured creditor in Brookline’s schedule. Superscope, to be sure, also filed a proof of claim as an unsecured creditor under § 501. But as the Committee notes to the Senate Report on § 501 explain, S.Rep. No. 989, 95th Cong., 2d Sess. 61, reprinted in 1978 U.S.Code Cong. & Ad.News 5787, 5847, a creditor who is only partially secured, as Superscope appears to have been, may file a proof of claim as an unsecured creditor. Given its listing elsewhere as a secured creditor, Superscope’s filing as an unsecured creditor did not operate to abandon the security but merely gave Superscope claims both as a secured and an unsecured creditor. Nothmg in § 1112 or elsewhere suggests that when the case was converted to Chapter 7 the proof of claim deemed filed under § 1111 disappeared.
The only possible additional action that Superscope could have taken that it did not take was to seek relief from the automatic stay under § 362(d). Like the court below, we do not believe that the guaranty required Superscope to realize on its security before it could proceed against Lockwood. The condition merely required that it proceed simultaneously. The existence of a sufficient proof of claim as a secured creditor coupled with the filing of a proof of claim as an unsecured creditor and the bringing of this action meets this condition; thus, it was unnecessary for Superscope to seek relief from the stay.
Affirmed.
. Schedule A-2 entitled “Creditors Holding Security,” which was filed for Brookline by Lockwood himself, showed a debt to Superscope of $176,814.19; the schedule also showed that this amount was secured by $10,000 of inventory. It was explicitly stated in the schedule that the claim was not contingent, unliquidated or disputed.
. Since Superscope was only partially secured, it properly filed a proof of claim as an unsecured creditor in hope of realizing more than the $10,000 value of its security.
Question: Is the first listed respondent bankrupt?
A. Yes
B. No
Answer:
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songer_circuit
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A
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
AMARIN PLASTICS, INC., Plaintiff, Appellee, v. MARYLAND CUP CORPORATION d/b/a Sweetheart Products Group, Defendant, Appellant.
No. 91-1250.
United States Court of Appeals, First Circuit.
Heard July 29, 1991.
Decided Oct. 8, 1991.
Rehearing and Rehearing En Banc Denied Nov. 14, 1991.
Joseph L. Cotter with whom Helene Ka-zanjian, Barbara Healy Smith, and Goodwin, Procter & Hoar, Boston, Mass., were on brief, for defendant, appellant.
Charles Donelan with whom Ann L. Pal-mieri and Day, Berry & Howard, Boston, Mass., were on brief, for plaintiff, appellee.
Before TORRUELLA, Circuit Judge, HILL, and BOWNES, Senior Circuit Judges.
Of the Eleventh Circuit, sitting by designation.
HILL, Senior Circuit Judge.
Maryland Cup Corporation, doing business as Sweetheart Products Group (“Sweetheart”), appeals from a jury verdict awarding Amarin Plastics Inc. (“Amarin”) damages for breach of contract.
The business relationship between the two parties began approximately 18 years ago. Sam Shapiro owned and operated Sweetheart, a company which was undertaking to sell plastic utensils — knives, forks, spoons, and the like. Richard King, an acquaintance of Shapiro, operated Ama-rin and was its engineer. In 1973, these two men and companies entered into a relationship in which Amarin would produce plastic utensils for Sweetheart. Sweetheart’s sales grew dramatically, and both companies prospered greatly.
Not all of their contractual agreements were formalized to the extent that they might have been had this litigation been foreseen. The parties had worked together in an amicable, symbiotic relationship until Shapiro sold Sweetheart to another corporate entity. The new owners had had no prior dealings with King or Amarin. They elected to cease contracting the production of plastics to Amarin. This termination of the long personal relationship illuminated the lack of formal, detailed writings evidencing the contractual status of the two companies. It required this litigation through a jury trial to determine and define the rights and obligations of the parties.
To determine the present contractual relation of the two parties, the jury was asked to begin in 1973, when Amarin and Sweetheart entered a contract in which Amarin would make plastic cutlery for Sweetheart for a five year period. During this same time, the two parties also entered a Mold Removal Agreement (the “Agreement”). It is this agreement which is the subject of this lawsuit.
To make the plastic cutlery, Amarin used molds. These molds were produced for and owned by Sweetheart, but Amarin allegedly provided the design. The molds remained in the possession of Amarin. The Mold Removal Agreement stated that if Sweetheart ever removed these molds from Amarin’s possession, Sweetheart would pay Amarin one-third of the molds’ costs. At the time of the execution of this agreement, Amarin had nine molds in its possession. The parties disagree over whether the agreement covered subsequently manufactured molds. Amarin contends that the Agreement covers fifty-one molds, for the creation of which it provided the engineering services. Sweetheart argues that the Agreement covered only the nine molds in existence when the contract was made. The contract, by its terms, refers to the “mold charges quoted herein,” implying that the contract referred only to molds in existence at the time of the contract. However, the jury apparently found that the Agreement covered subsequent molds.
In addition to the dispute over whether the contract applied to any subsequent molds, the parties also disagreed over which subsequent molds, if any, the agreement covered. The written Agreement seemed to indicate Sweetheart would be required to pay the one-third charge only for molds removed from Amarin’s possession. Sweetheart never physically removed thirteen of the molds from Amarin’s possession. Moreover, Amarin never had possession of all fifty-one molds. The manufacturers of the molds shipped fifteen of them directly to Sweetheart. However, Amarin claims the agreement covers molds it never physically possessed.
King and industry experts testified at trial that it is industry practice to enter this type of mold removal agreement. The money charged in the agreement would reimburse Amarin for its costs in helping produce and maintain these molds. The agreement would also enable Amarin to recoup the costs of expanding its factory to meet Sweetheart’s production demands. Amarin argued that the Agreement was not designed to pay Amarin for the molds, but to reimburse Amarin for its contribution to the engineering and production of the molds. In effect, then, the Agreement simply reimbursed Amarin for its services and would protect it if Sweetheart decided to stop doing business with Amarin. Therefore, it did not matter, Amarin argued, that Amarin never possessed fifteen molds or lost possession of thirteen. The terms of the agreement covered services, and the termination of the companies’ relationship would trigger the terms of the Agreement.
In 1983, Shapiro sold Sweetheart to Fort Howard Paper Company. The new management decided to start manufacturing cutlery in-house and to end the relationship with Amarin. This decision caused Amarin to invoke the terms of the Agreement and to demand one-third of the molds’ costs. The jury was then asked to decide whether a contract existed and whether this contract covered all fifty-one molds. The jury awarded Amarin $760,026.09, which was one-third of the cost of the fifty-one molds.
Sweetheart appeals this judgment and raises four issues. One, whether there was error in the trial court’s denial of Sweetheart’s motion for judgment notwithstanding the verdict or a new trial. Two, whether evidence concerning Amarin’s engineering services should have been admitted. Three, whether the trial court should have granted continuances until two witnesses were able to attend trial. Four, whether two documents were inadmissible hearsay.
JUDGMENT NOTWITHSTANDING THE VERDICT
Sweetheart contends that there was not enough evidence for the jury to find that the Agreement covered the fifty-one molds, and the district court erred in not granting its motion for judgment notwithstanding the verdict or a new trial. The appellant has a high burden to show that a jury verdict should be disturbed. In Chedd-Angier Production v. Omni Publications Int’l, Inc., this Court wrote
Appellate review of a jury verdict is extremely restricted and should be granted cautiously and sparingly. To do otherwise deprives the party of a decision by jury. We are compelled, therefore, even in a close case, to uphold the verdict unless the facts and inferences, when viewed in the light most favorable to the party for whom the jury held, point so strongly and overwhelmingly in favor of the movant that a reasonable jury could not have arrived at this conclusion. 756 F.2d 930, 934 (1st Cir.1985). The Court should draw all inferences in the plaintiff’s favor. Payton v. Abbott Labs, 780 F.2d 147, 156, 19 Fed.R.Evid.Serv. 1077 (1st Cir.1985). If the evidence is contradictory, and reasonable people could disagree about the outcome, then the issue should be decided by the jury.
Chedd-Angier, 756 F.2d at 934.
After a review of the evidence, we hold that the matter was properly presented to the jury. Both Shapiro and King gave evidence that the Mold Removal Agreement, as orally modified, was designed to reimburse Amarin for its engineering services in production and maintenance of the molds.
In a letter, Shapiro noted that the written agreement was extended beyond 1978 by oral modifications. Shapiro believed that the new agreement covered new molds that replaced the worn molds. Amarin did not demand payment for the old molds, but had a continuing right to do so if Sweetheart stopped doing business with Amarin.
Shapiro and King also modified the Agreement to cover molds that were not sent to Amarin. When King learned that Banner Mold and Die Co., Inc., the mold manufacturer, was sending molds directly to Sweetheart, he voiced his concern to Shapiro that Amarin was being by-passed. King testified that he and Shapiro agreed that the written agreement would cover these molds as well, and that King should continue to provide engineering services for molds sent directly to Sweetheart. This oral agreement modified the original agreement covering only molds in Amarin’s possession.
Amarin also presented evidence about the purpose of the contract. King testified that the Mold Removal Agreement was designed to reimburse him for providing engineering services for the design of the molds. Shapiro, in his letter, agreed that the one-third figure in the agreement covered King’s engineéring assistance. Shapiro also wrote that the Agreement was designed to allay King’s concerns that Sweetheart might produce the cutlery in-house. The agreement would help Amarin recoup the costs of expanding its factory and buying equipment to meet Sweetheart’s needs if the relationship ever ended.
King, Shapiro, and employees of Amarin, Banner, and Tupperware International testified that King performed engineering services as required by the agreement. Sweetheart argues that King’s contributions were minimal and merely replicated the current state of the art. Amarin never contested this. In fact, King himself testified that he provided state of the art engineering to the design and manufacture of the molds and that these services were not unique. Sweetheart’s argument regarding the quality of King’s services is irrelevant since the agreement merely required engineering services, not unique and novel engineering advances.
This evidence was sufficient for the jury to find that there was an agreement covering engineering services, that Amarin had performed, and that Sweetheart’s duty to perform had matured.
Sweetheart also moved for a new trial. A new trial should be granted only if the verdict is against the clear weight of the evidence or “resulted from some trial error and amounts to a clear miscarriage of justice.” Payton, 780 F.2d at 152. While Sweetheart contests the admission of some evidence and the district court’s denial of its motions for continuance, we do not find that the district court erred. See infra. Moreover, although the evidence was contradictory, and the facts were hotly disputed, we conclude that the verdict was supported by substantial evidence and do not conclude that an injustice was done.
EVIDENTIARY RULINGS
Sweetheart next contends that the district court mistakenly introduced evidence of Amarin’s engineering services since these services are irrelevant to the Mold Removal Agreement. King, Haldie Nicholson, an employee of Amarin, and Ralph P. DeFelice, an employee of Banner, all testified as to the nature of Amarin's services. To be admissible at trial, evidence must be relevant, tending to prove a “fact that is of consequence to the determination of the action.” Fed.R.Evid. 401, 402. See Cruz-Sanchez v. Rivera-Cordero, 835 F.2d 947, 949, 24 Fed.R.Evid.Serv. 493 (1st Cir.1987). We find that this was relevant evidence.
Amarin was suing on a contract. Since the matter of consequence was the nature and scope of the contract, any evidence that would help prove a contract would be relevant. In its complaint and at trial, Amarin argued that the Agreement covered engineering services provided by King. Amarin did not introduce evidence of the cost of these services, but merely demonstrated to the jury how King and Amarin helped design the molds. While this evidence could not have been used to prove the existence of a claim, since Amarin was not suing in quantum meruit, the evidence was relevant to show the jury what the contract encompassed and how the contract was performed. This would help make the contract more understandable to the jury.
Moreover, proof of performance is an essential part of a contract claim. To show that it is entitled to recovery, the plaintiff must show that it has performed. See Mirachnick v. Kaplan, 294 Mass. 208, 1 N.E.2d 40 (1936) (to survive a motion for demurrer, a mortgagor must allege performance in an action for breach of contract); Gagnon v. Ainsworth, 283 Mass. 488, 186 N.E. 498, 499 (1933) (plaintiff must prove complete performance to recover on a building contract). By showing that it had provided engineering services, Amarin demonstrated that it had fulfilled its part of the contract, thereby giving rise to Sweetheart’s duty to pay one-third of the costs when Sweetheart terminated the relationship.
CONTINUANCES
Sweetheart next contends that the district court erred in not granting a continuance until one of its witnesses became well enough to testify. In determining whether there was error in a denial of a continuance, the court should evaluate the facts of the particular case and not mechanically apply a test. United States v. Lussier, 929 F.2d 26, 28 (1st Cir.1991); United States v. Poulack, 556 F.2d 83, 86, 2 Fed.R.Evid.Serv. 54 (1st Cir.1977), cert. denied, 434 U.S. 986, 98 S.Ct. 613, 54 L.Ed.2d 480 (1977). The district court is accorded broad discretion to grant or deny continuances, and only an “unreasoning and arbitrary insistence upon expeditiousness in the face of a justifiable request for delay” will abuse it. United States v. Torres, 793 F.2d 436, 440 (1st Cir.1986), cert. denied, 479 U.S. 889, 107 S.Ct. 287, 93 L.Ed.2d 262 (1986), quoted in U.S. v. Lussier, 929 F.2d at 28.
The court may look at prior delays and their reasons, the hardship to the nonmov-ant, and the good faith of the movant. Lussier, 929 F.2d at 28; United States v. Waldman, 579 F.2d 649, 653 (1st Cir.1978).
The conduct of the moving party is a factor to be considered. In Lussier, the defendant moved for a continuance on the grounds that he had not had enough time to digest government documents. 929 F.2d at 28. This Court upheld the district court’s denial of that motion, noting that the problem was partly the defendant’s own fault, for he had had enough time to prepare, and the issues involved were not complex. Id.
In Waldman, the district court denied the defendant’s motion for a continuance, even though the defendant did not have notice of 15 counts of the indictment until the morning of trial. This Court affirmed, holding that the district court was in a better position to weigh the facts of the case. 579 F.2d at 653.
On November 19, 1990, Sweetheart moved for a continuance because one of its employees, Walter Dow, had been hospitalized. Dow would have testified that Ama-rin’s engineering support was not novel and merely mirrored the current art of the industry. Dow would have also testified that some of the molds by-passed Amarin and were sent directly to Sweetheart. Sweetheart contends that this testimony would have rebutted Amarin’s claim that King provided engineering services as provided by their oral agreements.
The district court did not abuse its discretion. Dow’s testimony would have duplicated other witness’s testimony and would have covered uncontroverted matters. Other witnesses were present at trial to testify to the same facts that Dow would have. In addition, Dow’s proposed testimony was never controverted at trial. Ama-rin acknowledged that the engineering designs provided by King were not unique and that many of the molds were shipped directly to Sweetheart from Banner. King, Amarin’s chief witness, supported these assertions in his direct testimony. Furthermore, Dow was not going to testify about the chief issues in the case-whether a contract existed and whether it had been performed.
The parties had approximately fourteen months of discovery in this case. Although the district court granted several extensions of discovery, Sweetheart never deposed Dow to preserve his testimony. Whether this was a trial strategy or an oversight, we cannot say, but there was nothing in the record to guide the district court in determining how Dow’s testimony would have been material to Sweetheart’s case.
Sweetheart next contends that it was error for the trial judge to deny its motion for a continuance until Shapiro returned from Florida. The trial court did not abuse its discretion.
Sweetheart served a subpoena on Shapiro requiring his appearance at trial. After attempting to contact Sweetheart’s attorneys, Shapiro called Ann L. Palmieri, an attorney for Amarin. Shapiro informed Palmieri that he had high blood pressure and that the last time he testified in federal court, he had had a heart attack and had to have heart surgery. His doctors had warned him against placing himself in circumstances that might raise his blood pressure and increase the risk of a heart attack. Since he was afraid that testifying at trial would be precarious for his health, he requested Palmieri to file a motion to quash the subpoena on his behalf. After a doctor certified that Shapiro was in poor health and that testifying at trial might endanger it, the district court granted the motion to quash on November 6, 1990, on the condition that Shapiro submit to a videotaped deposition in Florida. Shapiro was wintering in Florida on the advice of his doctors.
Despite being given an opportunity to depose Shapiro, Sweetheart did not avail itself. Instead, Sweetheart moved for a continuance until Shapiro’s expected return to Massachusetts the following spring. The district court denied this motion, apparently for the same reasons it granted the motion to quash.
There is some disagreement about the reasons for the motion to quash. Sweetheart contends that the motion to quash was based on Shapiro’s physical inability to travel from Florida. This was contradicted, Sweetheart argues, by Shapiro’s return to Boston for the Thanksgiving holiday. If Sweetheart’s contentions were true, then perhaps the trial court might have granted a continuance until Shapiro’s return. The record shows, however, that the motion to quash was granted because testifying at trial would be dangerous to Shapiro’s health, not because travelling from Florida would be dangerous to his health.
Since the district court had granted the motion to quash because Shapiro was too ill to testify at trial, the motion for a continuance essentially asked the trial court to reconsider the issue. There was no indication that Shapiro’s health would ever improve sufficiently for him to testify at trial; thus, the trial court did not abuse its discretion in denying the redundant motion for a continuance.
HEARSAY
At trial, the court admitted Shapiro’s deposition pursuant to Fed.R.Civ.P. 32(a)(3). Under this rule, exhibits to a deposition may be admitted at trial if admissible under the rules of evidence. In effect, the trial court applies the rules of evidence as if the witness were testifying at trial. Sweetheart objects to the admission of two letters — one that Shapiro wrote himself, and another that a lawyer prepared and Shapiro signed — on hearsay grounds. Shapiro’s letters gave evidence that the Mold Removal Agreement covered all fifty-one molds. Sweetheart is correct in that the letters are out-of-court statements and were offered to prove the truth of their contents, but we conclude that the testimony given, including the letters, was not hearsay.
When a witness, on the stand and under oath, acknowledges that a prior statement is his own statement and is truthful, then the witness adopts the prior statement as his present testimony and there is no hearsay problem. Fed.R.Evid. 801 advisory committee’s note (d)(1). In Bell v. City of Milwaukee, the Seventh Circuit held that once the witness affirmed, as his own, statements made in the complaint, “the pri- or statements therefore became part of his oath-supported, court-given testimony subject to cross-examination and are not hearsay.” 746 F.2d 1205, 1274, 16 Fed.R.Evid. Serv. 279 (7th Cir.1984). See also United States v. Davis, 487 F.2d 112, 123 (5th Cir.1973), reh’g denied, 486 F.2d 1403 (5th Cir.1973), and cert. denied, 415 U.S. 981, 94 S.Ct. 1573, 39 L.Ed.2d 878 (1974), and reh’g denied, 416 U.S. 975, 94 S.Ct. 2005, 40 L.Ed.2d 565 (1974) (if the witness asserts as true the contents of a prior statement, the witness in effect adopts the prior statement as his present testimony); 4 Weinstein’s Evidence ¶ 801(d)(l)(A)[02] (an adopted prior statement becomes present testimony); United States v. Klein, 488 F.2d 481, 483 (2d Cir.1973), cert. denied, 419 U.S. 1091, 95 S.Ct. 683, 42 L.Ed.2d 684 (1974) (the adopted statement becomes substantive evidence); Harman v. United States, 199 F.2d 34, 36 (4th Cir.1952) (“when the witness testified that the statement was true it became a part of his testimony, and not a mere matter of impeachment”). Contra United States v. Check, 582 F.2d 668, 680, 3 Fed.R.Evid. Serv. 685 (2d Cir.1978) (the admission of prior consistent statements is error unless offered to rebut a charge of fabrication or improper motive).
At the deposition, Shapiro testified that the letters were his own statements and that the letters were true. The letters then became his present testimony and are not hearsay.
The judgment of the district court is
Affirmed.
. Sweetheart argues that since Shapiro did not draft the agreement, he does not have personal knowledge to testify about the agreement. However, Shapiro signed the agreement and certainly was competent to testify as to its interpretation once the district court found that the contract was ambiguous. Moreover, Shapiro was competent to testify to subsequent oral modifications.
. The trial court’s power to quash a subpoena because of the witness’s ill health is well established. See In re Battaglia, 653 F.2d 419, 420 (9th Cir.1981) (defendant moved to quash grand jury subpoena because of health risk); United States v. Haldeman, 559 F.2d 31, 81, 181 U.S.App.D.C. 254, 1 Fed.R.Evid.Serv. 1203 (D.C.Cir.1976), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977), and reh’g denied, 433 U.S. 916, 97 S.Ct. 2992, 53 L.Ed.2d 1103 (1977) (President Nixon moved to quash subpoena because of poor health); Trebby v. Goodyear Tire & Rubber Co., 129 F.R.D. 468, 16 Fed.R.Serv.3d 971 (S.D.N.Y.1990) (trial court grants motion to quash notice of deposition since witness was hospitalized with serious heart condition).
. Sweetheart argues that it was not given an opportunity to save Shapiro’s testimony because
the court had the previous year denied its motion to reopen discovery for the purpose of deposing Shapiro. Discovery had been open for approximately fourteen months (from November 1, 1987, until January 1, 1989), after the trial court had granted the parties numerous extensions. During that period, Amarin had deposed Shapiro, and Sweetheart had an opportunity to cross-examine Shapiro at that time. On November 3, 1989, and on January 10, 1990, Sweetheart moved to reopen discovery to depose Shapiro. Since the parties had had ample time for discovery, and since Shapiro had already been deposed, the trial court denied the motion.
It did not become apparent until November 6, 1990, that Shapiro would be unable to attend trial. At that time, the district court appropriately ordered Shapiro to make himself available for a deposition. Sweetheart chose not to depose Shapiro.
. Prior statement by witness. Considerable controversy has attended the question whether a prior out-of-court statement by a person now available for cross-examination concerning it, under oath and in the presence of the trier of fact, should be classified as hearsay. If the witness admits on the stand that he made the statement and that it was true, he adopts the statement and there is no hearsay problem.
. We make the following observation out of an abundance of caution that our ruling today does not constitute precedent for the taking of the sort of testimony discussed here over any and all objections. The testimony may have been objectionable on two grounds other than hearsay.
First, Amarin’s counsel asked Shapiro, “Is this letter true?" Such a question put to a witness with the writing tendered to him is obviously leading. Second, Sweetheart might have objected urging that use of the letters was impermissible bolstering. A prior consistent statement may be used only to rebut a charge of "recent fabrication or improper influence or motive." Fed.R.Evid. 801(d)(1)(B). See United States v. Piva, 870 F.2d 753, 758, 27 Fed.R.Evid.Serv. 1101 (1st Cir.1989) (government was allowed to introduce a prior consistent statement to rehabilitate a witness’s credibility after showing defendant had implied an improper influence). We are not directed to anything in the record indicating that Sweetheart charged Shapiro with recent fabrication or an improper motive during the deposition; thus, bolstering would not appear permissible. However, these two objections were never made, and we will not pass on them now.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
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songer_dissent
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1
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine the number of judges who dissented from the majority (either with or without opinion). Judges who dissented in part and concurred in part are counted as dissenting.
Leon H. WHITE, Appellee, v. Warren M. BLOOMBERG, Postmaster, United States Post Office Department to be known as The United States Postal Service, et al., Appellants.
No. 73-1960.
United States Court of Appeals, Fourth Circuit.
Argued Jan. 10, 1974.
Decided July 18, 1974.
Jean A. Staudt, Atty., U. S. Dept, of Justice (Irving Jaffe, Acting Asst. Atty. Gen., George Beall, U. S. Atty., Kathryn H. Baldwin, Atty., U. S. Dept, of Justice, on brief), for appellants.
Kenneth A. Reich, Baltimore, Md. (Robert M. Bell, Garber A. Davidson, Jr., David F. Tufaro and Piper & Mar-bury, Baltimore, Md., on brief) for ap-pellee.
Before WINTER, CRAVEN and WIDENER, Circuit Judges.
CRAVEN, Circuit Judge:
This suit by a wrongfully discharged postal employee raises an ancillary question of procedure under the Back Pay Act of 1966, 5 U.S.C. § 5596. Four months after the district court awarded plaintiff a summary judgment for reinstatement and back pay, the Postal Service attempted to raise an issue of failure to mitigate damages, contending that the period of entitlement to back pay should be reduced because plaintiff had not made reasonable efforts to obtain substitute employment. The district judge refused to reopen the judgment and added post-judgment interest to the amounts due plaintiff. The Postal Service appealed from both rulings. We affirm.
The Baltimore Post Office discharged Leon White on October 30, 1970, for failing to pay a debt claimed by the postal employees’ credit union. After exhausting his administrative remedies, White filed this suit for reinstatement and back pay in the district court. On June 23, 1972, the district court granted plaintiff’s motion for summary judgment. White v. Bloomberg, 345 F.Supp. 133 (D.Md.1972). The court’s opinion was accompanied by an order in these words:
The defendant United States Postal Service shall without delay reinstate plaintiff and pay to him back pay from the date of his discharge, namely, October 30, 1970, to the date of his reinstatement in accordance with the opinion of this Court filed this 23rd day of June, 1972.
The Postal Service reinstated White six days later, and the parties began discussions over the exact amount he would receive under the Back Pay Act. Some time in October 1972 the Postal Service first informed White’s counsel that the back pay award would include only the period from October 30, 1970, the date of discharge, to August 5, 1971, the date of the final administrative action, because White had not actively sought substitute employment after his administrative appeal failed. At plaintiff’s request the district judge met with counsel and took the problem under advisement. On May 4, 1973, he entered the order from which this appeal was taken. White v. Bloomberg, 360 F.Supp. 58 (D.Md.1973). Judge Kaufman held that his order of June 23, 1972, was a final money judgment that only lacked “simple mathematical calculations,” and that the Postal Service’s belated attempt to raise the mitigation issue must be regarded as a motion to reopen the judgment under Rule 60(b). He then refused to reopen the judgment, but also considered the merits, expressing the opinion that White had satisfied the Back Pay Act’s mitigation requirement by actively pressing his claim for reinstatement. We think he acted rightly but not for the assigned reasons. The district court also ruled on a second dispute that had surfaced after summary judgment was entered, holding that plaintiff was entitled to recover post-judgment interest on his back wages.
The Mitigation Issue
The Back Pay Act provides as follows:
(b) An employee of an agency who, on the basis of an administrative determination or a timely appeal, is found by appropriate authority under applicable law or regulation to have undergone an unjustified or unwarranted personnel action that has resulted in the withdrawal or reduction of all or a part of the pay, allowances, or differentials of the employee—
(1) is entitled, on correction of the personnel action, to receive for the period for which the personnel action was in effect an amount equal to all or any part of the pay, allowances, or differentials, as applicable, that the employee normally would have earned during that period if the personnel action had not occurred, less any amounts earned by him through other employment during that period; and
(2) for all purposes, is deemed to have performed service for the agency during that period, except that the employee may not be credited, under this section, leave in an amount that would cause the amount of leave to his credit to exceed the maximum amount of the leave authorized for the employee by law or regulation.
Although the Act itself does not authorize deductions based on an employee’s failure to seek substitute employment, the Court of Claims has held that the common law rules of mitigation apply. Urbina v. United States, 192 Ct.Cl. 875, 428 F.2d 1280 (1970); Schwartz v. United States, 149 Ct.Cl. 145, 181 F.Supp. 408 (1960). Under this doctrine, the employer can reduce its back pay obligation by the amount the employee could have earned if he had made reasonable efforts to find another job. 11 S. Williston, Law of Contracts §§ 1358-59 (Jaeger ed. 1968); NLRB v. Moss Planing Mill Co., 224 F.2d 702 (4th Cir. 1955). In this case neither White nor the defendants raised the issue of mitigation prior to the entry of summary judgment, and each now argues that the other bore the burden of proof with respect to this issue. Because defendants did not appeal the initial back pay award, however, they may not now assert plaintiff’s failure of proof on this issue as a bar to recovery. And, though mitigation is ordinarily considered an affirmative defense that must be pleaded and proved by the employer, e. g., Florence Printing Co. v. NLRB, 376 F.2d 216 (4th Cir.), cert. denied, 389 U.S. 840, 88 S.Ct. 68, 19 L.Ed.2d 104 (1967); Williston, supra, § 1360; 5 C. Wright & A. Miller, Federal Practice and Procedure § 1273 (1969), we rest our decision on other grounds.
Defendants contend that judicial proceedings for reinstatement and back pay under the Act must be bifurcated, and that the judgment of June 23 ordering reinstatement and back pay was valid as to the former and void as to the latter. At the very least, they insist that the back pay order may be valid but empty of significant effect because subject to being reduced, or even wiped out, by application of the law of mitigation. They say that following a judicial reinstatement order, the initial computation of back pay must be made by an agency, subject to limited judicial review if the employee is dissatisfied with the administrative award. Taking this view of procedure under the Act, defendants urge us to hold that the judgment requiring the Postal Service to pay back pay to plaintiff did not destroy the right to insist on mitigation and thus to deny back pay for eleven of the twenty months that White was out of work. On such a theory an order allowing back pay means little or nothing: it is simply background against which the parties then begin to litigate the mitigation issue.
Defendants did not present this procedural argument to the district judge prior to the entry of summary judgment. White’s complaint clearly raised the issue of back pay. Both parties moved for summary judgment, but neither sought to limit the court’s decision to the issue of liability or suggested that there was a genuine issue on damages that would justify a partial summary judgment under Fed.R.Civ.P. 56(c). The defendants’ only reference to the issue of back pay was a brief paragraph in the memorandum supporting their motion for summary judgment. It contended that the United States is an indispensable party in an action for back pay and that the district court therefore lacked jurisdiction to award back pay against the Postal Service. Plaintiff’s memorandum responded to this point by suggesting that if the court lacked jurisdiction to award back pay, it could order reinstatement without mentioning back pay or the Back Pay Act. Defendants neither pursued this alternative nor suggested that the court should confine its decree to reinstatement for any other reason. When the district judge entered summary judgment for White and ordered the Postal Service to reinstate him with back pay, the defendants missed another opportunity to salvage the mitigation issue for administrative determination. Instead of filing a motion to have the judgment amended under Rule 59(e), defendants filed a notice of appeal from the entire judgment and asked for a stay of the back pay order pending appeal. Nor did they seek to have the judgment reopened under Rule 60(b) when they discovered that plaintiff’s counsel viewed the summary judgment as an actual award of back pay, as indeed, it purports to be. Because the parties had proceeded under different assumptions about the scope of the judicial proceeding, defendants might have been entitled to relief on the grounds of mistake, inadvertence, or excusable neglect under Rule 60(b)(1), but they have never asked for a chance to litigate the mitigation issue in the district court. Indeed, they have not suggested that we should remand the ease for this purpose.
Despite their failure to ask the district court to reserve the question of failure to mitigate on the amount of back pay and to limit the summary judgment to a theoretical determination of entitlement to back pay, or even to reinstatement only, defendants contend that the judgment must be so limited because the district court lacked power to make a specific award under the Back Pay Act. Defendants abandoned their contention that the district court lacked jurisdiction to award back pay by choosing not to appeal the summary judgment, which resolved that issue in plaintiff’s favor. Now they base their contentions solely on the language of the Act and the Civil Service Commission’s regulations. Paragraph (b)(1) of the Act provides that an employee is entitled to receive back pay “upon correction of the [unjustified] personnel action,” and 5 C.F.R. § 550.804(a) provides that “[w]hen an appropriate authority corrects an unjustified or unwarranted personnel action, the agency shall recompute” the amount of back pay due. Around this language defendants have built a procedural structure that echoes the doctrine of primary jurisdiction. First they insist that the issue of back pay cannot be resolved until after an agency or court has decided that the employee was improperly discharged. In this regard back pay claims are no different from other civil suits; a decision on entitlement always precedes calculation of damages, but the two issues may still be resolved in the same proceeding. Defendants also contend that it is impractical to calculate back pay in the main proceeding because back pay continues to accrue until the date of actual reinstatement. This factor is not unique to back pay actions; it may figure in any action that seeks both injunction and damages. Finally, defendants interpret the regulations to require that all claims for back pay be decided initially by an agency. Although it may be argued that paragraph (c) of the Act authorizes the Civil Service Commission to adopt a procedure for exclusive administrative computation of back pay following a judicial order for reinstatement, the present regulations have not done so. Neither the Act nor the regulations prescribe the procedure to be followed by the district courts.
Because the Act and the regulations are silent on this point, we decline to impose a bifurcated procedure on the district courts. The district judges are better situated than we to choose the optimum procedure for a given case. In many cases the court may be able to compute back pay at the time it orders reinstatement. If a particular case presents a complex dispute over computation, the district court has discretionary power to bifurcate the proceedings under Rule 42(b) or Rule 56(c). Indeed, the district court might have done so here had it been asked. Or the district judge may prefer to have the employee and the agency seek agreement on the computation of back pay. If so, he may follow a procedure that has been employed in other Back Pay Act cases, ordering reinstatement and retaining jurisdiction over the back pay issue in case the parties cannot reach an administrative settlement. See Floyd v. Resor, 409 F.2d 714 (5th Cir. 1969); Massman v. Secretary of HUD, 332 F.Supp. 894 (D.D.C.1971). We hold that the district courts are free to tailor an appropriate procedure to fit the facts and the pleadings and to select what seems best for a given case. We decline to adopt a mandatory bifurcation rule, and especially so where bifurcation is suggested for the first time four months after final judgment.
Post-Judgment Interest
The Postal Service contends that as a government agency it is immune from an award of post-judgment interest. It is well established that under the doctrine of sovereign immunity, the government may not be required to pay interest on its debts without consent. E. g., United States v. Alcea Band of Tillamooks, 341 U.S. 48, 71 S.Ct. 552, 95 L.Ed. 738 (1951). But it is equally well established that Congress waives sovereign immunity when it authorizes a governmental agency to sue and be sued in its own name. RFC v. J. G. Menihan Corp., 312 U.S. 81, 61 S.Ct. 485, 85 L.Ed. 595 (1941); FHA v. Burr, 309 U.S. 242, 60 S.Ct. 488, 84 L.Ed. 724 (1940). Under the terms of 39 U.S.C. § 401(1), the Postal Service has the power “to sue and be sued in its official name.” The issue we must decide is whether this waiver of immunity subjects the Postal Service to interest on its judgment debts.
In RFC v. J. G. Menihan Corp., supra, the Supreme Court wrote that “the words ‘sue and be sued’ normally include the natural and appropriate incidents of legal proceedings.” 312 U.S. at 85, 61 S.Ct. at 487. Relying on such a grant of authority, it held that the Reconstruction Finance Corporation could be ordered to pay its adversary’s costs in trademark litigation. In FHA v. Burr, supra, the Court held that limits on the authority to sue and be sued should not be presumed. Because post-judgment interest is a normal incident of suits for damages, 28 U.S.C. § 1961, the principle of these cases suggests that a “sue and be sued” clause ordinarily should be construed to waive the agency’s immunity from interest awards. See Asheville Mica Co. v. Commodity Credit Corp., 239 F.Supp. 383, 392-394 (S.D.N.Y.1965), aff’d, 360 F.2d 931 (2d Cir. 1966). The Postal Service contends, however, that Menihan and Burr apply only to governmental corporations, and that because the Postal Service is unincorporated the “sue and be sued” clause cannot be given the same effect. We disagree. A grant of authority to sue and be sued constitutes at least a partial waiver of immunity regardless of the structure or functions of the agency. The question in any such case is the scope of that waiver. In FHA v. Burr the Court outlined the following principles for discerning congressional intent:
[I]f the general authority to “sue and be sued” is to be delimited by implied exceptions, it must be clearly shown that certain types of suits are not consistent with the statutory or constitutional scheme, that an implied restriction of the general authority is necessary to avoid grave interference with the performance of a governmental function, or that for other reasons it was plainly the purpose of Congress to use the “sue and be sued” clause in a narrow sense.
309 U.S. at 245, 60 S.Ct. at 490 (footnote omitted).
The Postal Reorganization Act contains no indication that the “sue and be sued” provision should not be read to authorize an award of interest against the Postal Service. The waiver of immunity is restricted by 39 U.S.C. § 409(b), which gives the Postal Service the benefit of certain procedures that are applicable to suits against the United States and its officers, and section 409(c), which makes the Federal Tort Claims Act applicable to the Postal Service. The Act contains no other limits on the Postal Service’s amenability to suit. Nor under the guidelines of FHA v. Burr is there any suggestion that vulnerability to post-judgment interest will interfere with the Postal Service’s mission. We therefore presume that in creating the Postal Service, Congress used the phrase “sue and be sued” in its normal sense, subjecting the Postal Service to post-j.udgment interest.
Affirmed.
. White filed his initial complaint while he was still engaged in the administrative process, but the district court denied his motions for temporary reinstatement. The present case is based on an amended complaint filed after the last administrative appeal failed.
. We note at the outset that the Back Pay Act is no longer statutorily applicable to the Postal Service. The Back Pay Act applies to “executive agencies” (as defined in 5 U. S.O. § 105) and other specified organiza tions. 5 U.S.C. § 5596(a). The Postal Reorganization Act amended 5 U.S.C. § 101, 104 to exclude the Postal Service from the scope of § 105. Pub.L. No. 91-375, § 6(c), 84 Stat. 775. See also 39 U.S.C. § 410(a), (b)(1). The plaintiff in this case was discharged by the old Post Office Department, which was covered by the Back Pay Act, and the Postal Service has assumed its predecessor’s back pay obligations to employees discharged after July 1, 1970. 345 F.Supp. 142-143.
. The Postal Service contends that it could have refused back pay for the entire period under the Postal Service handbook’s interpretation of implementing regulations under the Back Pay Act. A Civil Service regulation, 5 C.F.R. § 550.804(f) (1973), provides that an agency should make no deductions for failure to seek substitute employment if the employee is reinstated within a year. The reason for the rule is the idea that a wrongfully discharged employee cannot reasonably be expected to seek other employment immediately but is instead justified in spending his time in administrative protest and attempting to obtain reinstatement. The Postal Service handbook follows this rule but provides that if the employee is reinstated after the year expires, he may be denied back pay for the entire period. Both regulations are reproduced in the opinion below. White v. Bloomberg, 360 F.Supp. 58, 61 (D.Md.1973). In this case, the Postal Service has interpreted § 550.804(f) to exempt not a calendar year but the period of time required for administrative appeal. Although the effect of this interpretation is to give White only a nine-month grace period, defendants insist that this treatment is generous because White could be denied the entire amount. We need not decide in this case whether the Postal Service’s rule is valid but we note that it may be inconsistent with the governing Civil Service regulations.
. Defendants initially filed a notice of appeal from the summary judgment and asked the district court for a stay of the back pay award pending appeal, but later dismissed the appeal by stipulation.
. In a series of letters between Judge Kaufman and counsel for both sides, defendants took the position that the administrative process had already been completed, that no administrative hearing was available to White, and that in reviewing the Postal Service’s decision the district court would be limited to a consideration of whether it was arbitrary, capricious, or an abuse of discretion, or made without observance of required procedure or in excess of statutory authority. Letter from Jean G. Rogers, Assistant U. S. Attorney, to Judge Kaufman, Dec. 4, 1972, Record at 316.
. Answering defendants’ contention that the United States is an indispensable party in an action against the Postal Service for back pay, and resolving a further question of whether White’s claim had to be asserted in the Court of Claims because it exceeded $10,000, Judge Kaufman held that the Postal Service is sufficiently independent so that a suit against it does not constitute a suit against the United States. 345 F.Supp. at 142-143. We agree that a suit may be maintained against the Postal Service without joining the United States as a party, and that the district courts have jurisdiction over suits against the Postal Service for amounts over $10,000. The Postal Reorganization Act gave jurisdiction to the district courts in “all actions brought by or against the Postal Service,” 39 U.S.C. § 409(a), and authorized the Postal Service “to sue and be sued in its official name.” Id. § 401(1). Moreover, in listing the provisions of Title 28 that apply to the Postal Service, 39 U.S. C. § 409 does not include sections 1491-1506, which give the Court of Claims jurisdiction over suits against the United States. Consequently, while employees of most federal agencies must resort to the Court of Claims to recover back pay in amounts of over $10,000, see 28 U.S.C. § 1346(a) (2) ; S.Rep.No.1390, 88th Cong., 2d Sess. (1964) (reporting Pub.L.No. 88-519, 78 Stat. 699, which amended 28 U.S.C. § 1346(d)), the district courts have jurisdiction over all back pay claims of Postal Service employees under 39 U.S.C. § 409(a).
. The Supreme Court has defined the doctrine of primary jurisdiction as follows :
The doctrine of primary jurisdiction, like the rule requiring exhaustion of administrative remedies, is concerned with promoting proper relationships between the courts and administrative agencies charged with particular regulatory duties. . . . “Primary jurisdiction” . . . applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views.
United States v. Western Pac. R.R., 352 U.S. 59, 63-64, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956). See also 3 K. Davis, Administrative Law Treatise §§ 19.01-.09 (1958, Supp. 1970). Defendants have not explicitly invoked the doctrine of primary jurisdiction in this case. Instead of urging us to employ this doctrine to require resort to administrative agencies in computing back pay, defendants have simply argued that the existing regulations mandate such a procedure.
. (c) The Civil Service Commission shall prescribe regulations to carry out this section. However, the regulations are not applicable to the Tennessee Valley Authority and its employees.
5 U.S.C. § 5596(c).
. The regulations implementing the Back Pay Act appear at 5 C.F.R. §§ 550.801-.804 (1973). The language most favorable to defendants’ procedural arguments is in § 550.-804(a) :
When an appropriate authority [defined in § 550.803(c) as either an agency or a court] corrects an unjustified or unwarranted personnel action, the agency shall recompttie for the period covered by the corrective action the pay, allowances, differentials, and leave account ... of the employee as if the unjustified or unwarranted personnel action had not occurred ....
5 C.F.R. § 550.804(a) [emphasis added]. Certainly the regulation contemplates that back pay will ordinarily be computed by an agency, and indeed, that may be the usual practice. But the focus of the regulation is on the substance of the computation rather than the procedure to be followed. The remainder of § 550.804 specifies what pay allowances are to be included in the back pay award. It contains no mention of the provisions one would expect in a procedural regulation, e. g., the time period permitted for computation, who shall make the decision, whether a hearing shall be allowed or written evidence received. We think the Civil Service Commission in promulgating this regulation liad no thought of ousting the district courts of jurisdiction to award back pay in reinstatement cases. We need not consider whether it has the power to do so.
. The Court of Claims employs a similar procedure under its rule 131(c). See Urbina v. United States, 192 Ct.Cl. 875, 428 F.2d 1280 (1970); Motto v. United States, 172 Ct.Cl. 162, 360 F.2d 643 (1966).
. See also Federal Land Bank v. Priddy, 295 U.S. 229, 55 S.Ct. 705, 79 L.Ed. 1408 (1935).
. Specifically, these are “the provisions of title 28 relating to service of process, venue, and limitations of time for bringing action in suits in which the United States, its officers, or employees are parties, and the rules of procedure adopted under title 28 for suits in which the United States, its officers, or employees are parties . ...” 39 U.S.O. § 409(b). Presumably this latter clause refers to chapter 161 of title 28, sections 2401 through 2416.
Question: What is the number of judges who dissented from the majority?
Answer:
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sc_lcdisposition
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B
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded.
THE WHARF (HOLDINGS) LTD. et al. v. UNITED INTERNATIONAL HOLDINGS, INC., et al.
No. 00-347.
Argued March 21, 2001
Decided May 21, 2001
Paul M. Dodyk argued the cause for petitioners. With him on the briefs was William R. Jentes.
Louis R. Cohen argued the cause for respondents. With him on the brief were Jonathan J. Frankel, David B. Wilson, and Jeffrey A. Chase.
Matthew D. Roberts argued the cause for the Securities and Exchange Commission as amicus curiae urging affirmance. With him on the brief were Acting Solicitor General Underwood, Deputy Solicitor General Kneedler, David M. Becker, Meyer Eisenberg, Jacob H. Stillman, Katharine B. Gresham, and Susan S. McDonald.
Justice Breyer
delivered the opinion of the Court.
This securities fraud action focuses upon a company that sold an option to buy stock while secretly intending never to honor the option. The question before us is whether this conduct violates § 10(b) of the Securities Exchange Act of 1934, which prohibits using “any manipulative or deceptive device or contrivance” “in connection with the purchase or sale of any security.” 48 Stat. 891, 15 U. S. C. § 78j(b); see also 17 CFR §240.10b-5 (2000). We conclude that it does.
I
Respondent United International Holdings, Inc., a Colorado-based company, sued petitioner The Wharf (Holdings) Limited, a Hong Kong firm, in Colorado's Federal District Court. United said that in October 1992 Wharf had sold it an option to buy 10% of the stock of a new Hong Kong cable television system. But, United alleged, at the time of the sale Wharf secretly intended not to permit United to exercise the option. United claimed that Wharf’s conduct amounted to a fraud “in connection with the .. . sale of [a] security,” prohibited by § 10(b), and violated numerous state laws as well. A jury found in United’s favor. The Court of Appeals for the Tenth Circuit upheld that verdict. 210 F. 3d 1207 (2000). And we granted certiorari to consider whether the dispute fell within the scope of § 10(b).
The relevant facts, viewed in the light most favorable to the verdict winner, United, are as follows. In 1991, the Hong Kong Government announced that it would accept bids for the award of an exclusive license to operate a cable system in Hong Kong. Wharf decided to prepare a bid. Wharf’s chairman, Peter Woo, instructed one of its managing directors, Stephen Ng, to find a business partner with cable system experience. Ng found United. And United sent several employees to Hong Kong to help prepare Wharf’s application, negotiate contracts, design the system, and arrange financing.
United asked to be paid for its services with a right to invest in the cable system if Wharf should obtain the license. During August and September 1992, while United’s employees were at work helping Wharf, Wharf and United negotiated about the details of that payment. Wharf prepared a draft letter of intent that contemplated giving United the right to become a co-investor, owning 10% of the system. But the parties did not sign the letter of intent. And in September, when Wharf submitted its bid, it told the Hong Kong authorities that Wharf would be the system’s initial sole owner, Lodging to App. AY-4, although Wharf would also “consider” allowing United to become an investor, id., at AY-6.
In early October 1992, Ng met with a United representative, who told Ng that United would continue to help only if Wharf gave United an enforceable right to invest. Ng then orally granted United an option with the following terms: (1) United had the right to buy 10% of the future system’s stock; (2) the price of exercising the option would be 10% of the system’s capital requirements minus the value of United’s previous services (including expenses); (3) United could exercise the option only if it showed that it could fund its 10% share of the capital required for at least the first 18 months; and (4) the option would expire if not exercised within six months of the date that Wharf received the license. The parties continued to negotiate about how to write documents that would embody these terms, but they never reduced the agreement to writing.
In May 1993, Hong Kong awarded the cable franchise to Wharf. United raised $66 million designed to help finance its 10% share. In July or August 1998, United told Wharf that it was ready to exercise its option. But Wharf refused to permit United to buy any of the system’s stock. Contemporaneous internal Wharf documents suggested that Wharf had never intended to carry out its promise. For example, a few weeks before the key October 1992 meeting, Ng had prepared a memorandum stating that United wanted a right to invest that it could exercise if it was able to raise the necessary capital. A handwritten note by Wharf’s Chairman Woo replied, “No, no, no, we don’t accept that.” App. DT-187; Lodging to App. AI-1. In September 1993, after meeting with the Wharf board to discuss United’s investment in the cable system, Ng wrote to another "Wharf executive, “How do we get out?” Id., at CY-1. In December 1993, after United had filed documents with the Securities and Exchange Commission (SEC) representing that United was negotiating the acquisition of a 10% interest in the cable system, an internal Wharf memo stated that “[o]ur next move should be to claim that our directors got quite upset over these representations .... Publicly, we do not acknowledge [United’s] opportunity” to acquire the 10% interest. Id., at BF-1 (emphasis in original). In the margin of a December 1993 letter from United discussing its expectation of investing in the cable system, Ng wrote, “[B]e careful, must deflect this! [H]ow?” Id., at DI-1. Other "Wharf documents referred to the need to “back ped[al],” id., at DG-1, and “stall,” id., at DJ-1.
These documents, along with other evidence, convinced the jury that Wharf, through Ng, had orally sold United an option to purchase a 10% interest in the fiiture cable system while secretly intending not to permit United to exercise the option, in violation of § 10(b) of the Securities Exchange Act and various state laws. The jury awarded United compensatory damages of $67 million and, in light of “circumstances of fraud, malice, or willful and wanton conduct,” App. EM-18, punitive damages of $58.5 million on the state-law claims. As we have said, the Court of Appeals upheld the jury’s award. 210 F. 3d 1207 (CA10 2000). And we granted certiorari to determine whether "Wharf’s oral sale of an option it intended not to honor is prohibited by § 10(b).
II
Section 10(b) of the Securities Exchange Act makes it “unlawful for any person . . . [t]o use or employ, in connection with the purchase or sale of any security..., any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the [SEC] may prescribe.” 15 U.S.C. §78j.
Pursuant to this provision, the SEC has promulgated Rule 10b-5. That Rule forbids the use, “in connection with the purchase or sale of any security,” of (1) “any device, scheme, or artifice to defraud”; (2) “any untrue statement of a material fact”; (3) the omission of “a material fact necessary in order to make the statements made ... not misleading”; or (4) any other “act, practice, or course of business” that “operates ... as a fraud or deceit.” 17 CFR §240.10b-5 (2000).
To succeed in a Rule 10b-5 suit, a private plaintiff must show that the defendant used, in connection with the purchase or sale of a security, one of the four kinds of manipulative or deceptive devices to which the Rule refers, and must also satisfy certain other requirements not at issue here. See, e. g., 15 U. S. C. §78j (requiring the “use of any means or instrumentality of interstate commerce or of the mails, or of any facility of any national securities exchange”); Ernst & Ernst v. Hockfelder, 425 U.S. 185, 193 (1976) (requiring sci-enter, meaning “intent to deceive, manipulate, or defraud”); Basic Inc. v. Levinson, 485 U.S. 224, 231-282 (1988) (requiring that any misrepresentation be material); id., at 243 (requiring that the plaintiff sustain damages through reliance on the misrepresentation).
In deciding whether the Rule covers the circumstances present here, we must assume that the “security” at issue is not the cable system stock, but the option to purchase that stock. That is because the Court of Appeals found that Wharf conceded this point. 210 F. 3d, at 1221 (“Wharf does not contest on appeal the classification of the option as a security”). That concession is consistent with the language of the Securities Exchange Act, which defines “security” to include both “any ... option ... on any security” and “any . . . right to . . . purchase” stock. 15 U.S.C. §78e(a)(10) (1994 ed., Supp. V); see also Blue Chip Stamps v. Manor Drug Stores, 421U. S. 723,751 (1975) (“[Holders of... options, and other contractual rights or duties to purchase ... securities” are “‘purchasers’... of securities for purposes of Rule 10b-5”). And Wharf’s current effort to deny the concession, by pointing to an ambiguous statement in its Court of Appeals reply brief, comes too late and is unconvincing. See Reply Brief for Petitioners 16, n. 8 (citing Reply Brief for Appellants in Nos. 97-1421,98-1002 (CA10), pp. 5-6). Consequently, we must decide whether Wharf’s secret intent not to honor the option it sold United amounted to a misrepresentation (or other conduct forbidden by the Rule) in connection with the sale of the option.
Wharf argues that its conduct falls outside the Rule’s scope for two basic reasons. First, Wharf points out that its agreement to grant United an option to purchase shares in the cable system was an oral agreement. And it says that § 10(b) does not cover oral contracts of sale. Wharf points to Blue Chip Stamps, in which this Court construed the Act’s “purchase or sale” language to mean that only “actual purchasers and sellers of securities” have standing to bring a private action for damages. See 421 U.S., at 730-731. Wharf notes that the Court’s interpretation of the Act flowed in part from the need to protect defendants against lawsuits that “turn largely on which oral version of a series of occurrences the jury may decide to credit.” Id., at 742. And it claims that an oral purchase or sale would pose a similar problem of proof and thus should not satisfy the Rule’s “purchase or sale” requirement.
Blue Chip Stamps, however, involved the very different question whether the Act protects a person who did not actually buy securities, but who might have done so had the seller told the truth. The Court held that the Act does not cover such a potential buyer, in part for the reason that Wharf states. But United is not a potential buyer; by providing Wharf with its services, it actually bought the option that Wharf sold. And Blue Chip Stamps said nothing to suggest that oral purchases or sales fall outside the scope of the Act. Rather, the Court’s concern was about “the abuse potential and proof problems inherent in suits by investors who neither bought nor sold, but asserted they would have traded absent fraudulent conduct by others.” United States v. O’Hagan, 521 U.S. 642, 664 (1997). Such a “potential purchase” claim would rest on facts, including the plaintiff’s state of mind, that might be “totally unknown and unknowable to the defendant,” depriving the jury of “the benefit of weighing the plaintiff’s version against the defendant’s version.” Blue Chip Stamps, supra, at 746. An actual sale, even if oral, would not create this problem, because both parties would be able to testify as to whether the relevant events had occurred.
Neither is there any other convincing reason to interpret the Act to exclude oral contracts as a class. The Act itself says that it applies to “any contract” for the purchase or sale of a security. 15 U. S. C. §§78e(a)(13), (14). Oral contracts for the sale of securities are sufficiently common that the Uniform Commercial Code and statutes of frauds in every State now consider them enforceable. See U. C. C. § 8-113 (Supp. 2000) (“A contract... for the sale or purchase of a security is enforceable whether or not there is a writing signed or record authenticated by a party against whom enforcement is sought”); see also 2C U. L. A. 77-81 (Supp. 2000) (table of enactments of U. C. C. Revised Art. 8 (amended 1994)) (noting adoption of § 8-113, with minor variations, by all States except Rhode Island and South Carolina); R. I. Gen. Laws §6A-8-322 (Supp. 1999) (repealed effective July 1, 2001) (making oral contracts for the sale of securities enforceable); §6A-8-113 (2000 Cum. Supp.) (effective July 1, 2001) (same); S. C. Code Ann. §36-8-113 (Supp. 2000) (same); U. C. C. §8-113 Comment (Supp. 2000) (“[T]he statute of frauds is unsuited to the realities of the securities business”). Any exception for oral sales of securities would significantly limit the Act’s coverage, thereby undermining its basic purposes.
Wharf makes a related but narrower argument that the Act does not encompass oral contracts of sale that are unenforceable under state law. But we do not reach that issue. The Court of Appeals held that Wharf’s sale of the option was not covered by the then-applicable Colorado statute of frauds, Colo. Rev. Stat. §4-8-319 (repealed 1996), and hence was enforceable under state law. Though Wharf disputes the correctness of that holding, we ordinarily will not consider such a state-law issue, and we decline to do so here.
Second, Wharf argues that a secret reservation not to permit the exercise of an option falls outside § 10(b) because it does not “relat[e] to the value of a security purchase or the consideration paid”; hence it does "not implicate [§10(b)’s] policy of full disclosure.” Brief for Petitioners 25, 26 (emphasis deleted). But even were it the ease that the Act covers only misrepresentations likely to affect the value of securities, Wharf’s secret reservation was such a misrepresentation. To sell an option while secretly intending not to permit the option’s exercise is misleading, because a buyer normally presumes good faith. Cf., e. g., Restatement (Second) of Torts § 530, Comment e (1976) ("Since a promise necessarily carries with it the implied assertion of an intention to perform[,] it follows that a promise made without such an intention is fraudulent”). For similar reasons, the secret reservation misled United about the option’s value. Since Wharf did not intend to honor the option, the option was, unbeknownst to United, valueless.
Finally, Wharf supports its claim for an exemption from the statute by characterizing this ease as a "disput[e] over the ownership of securities.” Brief for Petitioners 24. Wharf expresses concern that interpreting the Act to allow recovery in a case like this one will permit numerous plaintiffs to bring federal securities claims that are in reality no more than ordinary state breach-of-contract claims — actions that lie outside the Act’s basic objectives. United’s claim, however, is not simply that Wharf failed to carry out a proim ise to sell it securities. It is a claim that Wharf sold it a security (the option) while secretly intending from the very beginning not to honor the option. And United proved that secret intent with documentary evidence that went well beyond evidence of a simple failure to perform. Moreover, Wharf has not shown us that its concern has proved serious as a practical matter in the past. Cf. Threadgill v. Black, 780 F. 2d 810, 811-812 (CADC) (per curiam) (suggesting in 1984 that contracting to sell securities with the secret reservation not to perform one’s obligations under the contract violates § 10(b)). Nor does Wharf persuade us that it is likely to prove serious in the future. Cf. Private Securities Litigation Reform Act of 1995, Pub. L. 104-67, §21D(b)(2), 109 Stat. 747, codified at 15 U.S.C. §78u-4(b)(2) (1994 ed., Supp. V) (imposing, beginning in 1995, stricter pleading requirements in private securities fraud actions that, among other things, require that a complaint “state with particularity facts giving rise to a strong inference that the defendant aeted with the required [fraudulent] state of mind”).
For these reasons, the judgment of the Court of Appeals is
Affirmed.
Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed?
A. stay, petition, or motion granted
B. affirmed
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. modify
K. remand
L. unusual disposition
Answer:
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sc_threejudgefdc
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A
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the case was heard by a three-judge federal district court. Beginning in the early 1900s, Congress required three-judge district courts to hear certain kinds of cases. More modern-day legislation has reduced the kinds of lawsuits that must be heard by such a court. As a result, the frequency is less for the Burger Court than for the Warren Court, and all but nonexistent for the Rehnquist and Roberts Courts.
DAVIS v. FEDERAL ELECTION COMMISSION
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
No. 07-320.
Argued April 22, 2008
Decided June 26, 2008
Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, and Thomas, JJ., joined, and in which Stevens, Souter, Ginsburg, and Breyer, JJ., joined as to Part II. Stevens, J., filed an opinion concurring in part and dissenting in part, in which Souter, Ginsburg, and Breyer, JJ., joined as to Part II, post, p. 749. Ginsburg, J., filed an opinion concurring in part and dissenting in part, in which Breyer, J., joined, post, p. 758.
Andrew D. Herman argued the cause for appellant. With him on the briefs was Stanley M. Brand.
Former Solicitor General Clement argued the cause for appellee. With him on the brief were Acting Solicitor General Garre, Malcolm L. Stewart, Thomasenia P. Duncan, David Kolker, Kevin Deeley, and Holly J. Baker.
Briefs of amici curiae urging reversal were filed for the Center for Competitive Politics by Erik S. Jaffe; and for Gene DeRossett et al. by Kathleen M. Sullivan.
Briefs of amici curiae urging affirmance were filed for Common Cause by Bradley S. Phillips; and for Democracy 21 et al. by Seth P. Waxman, Randolph D. Moss, Roger M. Witten, Donald J. Simon, J. Gerald Hebert, Paul S. Ryan, Tara Malloy, Scott L. Nelson, Fred Wertheimer, and Deborah Goldberg.
Briefs of amici curiae were filed for the Cato Institute by Benjamin D. Wood, William J. McGinley, Glenn M. Willard, and Ilya Shapiro; and for the James Madison Center for Free Speech et al. by James Bopp, Jr., and Richard E. Coleson.
Justice Alito
delivered the opinion of the Court.
In this appeal, we consider the constitutionality of federal election law provisions that, under certain circumstances, impose different campaign contribution limits on candidates competing for the same congressional seat.
I
A
Federal law limits the amount of money that a candidate for the House of Representatives and the candidate’s authorized committee may receive from an individual, as well as the amount that the candidate’s party may devote to coordinated campaign expenditures. 2 U. S. C. § 441a (2006 ed.). Under the usual circumstances, the same restrictions apply to all the competitors for a seat and their authorized committees. Contributions from individual donors during a 2-year election cycle are subject to a cap, which is currently set at $2,300. See §§ 441a(a)(1)(A), (c); 72 Fed. Reg. 5295 (2007). In addition, no funds may be accepted from an individual whose aggregate contributions to candidates and their committees during the election cycle have reached the legal limit, currently $42,700. See 2 U. S. C. §§ 441a(a)(3)(A), (c); 72 Fed. Reg. 5295. A candidate also may not accept general election coordinated expenditures by national or state political party committees that exceed an imposed limit. See 2 U. S. C. §§ 441a(c), (d). Currently, the limit for candidates in States with more than one House seat is $40,900. 72 Fed. Reg. 5294.
Section 319(a) of the Bipartisan Campaign Reform Act of 2002 (BCRA), 116 Stat. 109, 2 U. S. C. § 441a-1(a), part of the so-called “Millionaire’s Amendment,” fundamentally alters this scheme when, as a result of a candidate’s expenditure of personal funds, the “opposition personal funds amount” (OPFA) exceeds $350,000. The OPFA, in simple terms, is a statistic that compares the expenditure of personal funds by competing candidates and also takes into account to some degree certain other fundraising. See § 441a-1(a). When a candidate’s expenditure of personal funds causes the OPFA to pass the $350,000 mark (for convenience, such candidates will be referred to as “self-financing”), a new, asymmetrical regulatory scheme comes into play. The self-financing candidate remains subject to the limitations noted above, but the candidate’s opponent (the “non-self-financing” candidate) may receive individual contributions at treble the normal limit (e.g., $6,900 rather than the current $2,300), even from individuals who have reached the normal aggregate contributions cap, and may accept coordinated party expenditures without limit. See §§ 441a-1(a)(1)(AMC). Once the non-self-financing candidate’s receipts exceed the OPFA, the prior limits are revived. § 441a-1(a)(3). A candidate who does not spend the contributions received under the asymmetrical limits must return them. § 441a-1(a)(4).
In order to calculate the OPFA, certain information is needed about the self-financing candidate’s campaign assets and personal expenditures. Section 319(b) thus requires self-financing candidates to make three types of disclosures. First, within 15 days after entering a race, a candidate must file a “[declaration of intent” revealing the amount of personal funds the candidate intends to spend in excess of $350,000. 2 U. S. C. §441a-1(b)(1)(B). A candidate who does not intend to cross this threshold may simply declare an intent to spend no personal funds. 11 CFR § 400.20(a)(2) (2008). Second, within 24 hours of crossing or becoming obligated to cross the $350,000 mark, the candidate must file an “[i]nitial notification.” 2 U. S. C. § 441a-1(b)(1)(C). Third, the candidate must file an “[additional notification” within 24 hours of making or becoming obligated to make each additional expenditure of $10,000 or more using personal funds. § 441a-1(b)(1)(D). The initial and additional notifications must provide the date and amount of each expenditure from personal funds, and all notifications must be filed with the Federal Election Commission (FEC), all other candidates for the seat, and the national parties of all those candidates. § 441a-1(b)(1)(E). Failure to comply with the reporting requirements may result in civil and criminal penalties. §§ 437g(a)(5)-(6), (d)(1).
A non-self-financing candidate and the candidate’s committee face less extensive disclosure requirements. Within 24 hours after receiving an “initial” or “additional” notification filed by a self-financing opponent, a non-self-financing candidate must provide notice to the FEC and the national and state committees of the candidate’s party if the non-self-financing candidate concludes based on the newly acquired information that the OPFA has passed the $350,000 mark. 11 CFR § 400.30(b)(2). In addition, when the additional contributions that a non-self-financing candidate is authorized to receive pursuant to the asymmetrical limitations scheme equals the OPFA, the non-self-financing candidate must notify the FEC and the appropriate national and state committees within 24 hours. § 400.31(e)(1)(ii). The non-self-financing candidate must also provide notice regarding any refunds of “excess funds” (funds received under the increased limits but not used in the campaign). §§ 400.50, 400.54. For their part, political parties must notify the FEC and the candidate they support within 24 hours of making any expenditures that exceed the normal limit for coordinated party expenditures. § 400.30(c)(2).
B
Appellant Jack Davis was the Democratic candidate for the House of Representatives from New York’s 26th Congressional District in 2004 and 2006. In both elections, he lost to the incumbent. In his brief, Davis discloses having spent $1.2 million, principally his own funds, on his 2004 campaign. Brief for Appellant 4. He reports spending $2.3 million in 2006, all but $126,000 of which came from personal funds. Id., at 13. His opponent in 2006 spent no personal funds. Indeed, although the OPFA calculation provided the opportunity for Davis’ opponent to raise nearly $1.5 million under § 319(a)’s asymmetrical limits, Davis’ opponent adhered to the normal contribution limits.
Davis’ 2006 candidacy began in March 2006, when he filed with the FEC a “Statement of Candidacy” and, in compliance with § 319(b), declared that he intended to spend $1 million in personal funds during the general election. Two months later, in anticipation of this expenditure and its § 319 consequences, Davis filed suit against the FEC, requesting that § 319 be declared unconstitutional and that the FEC be enjoined from enforcing it during the 2006 election.
After Davis declared his candidacy but before he filed suit, the FEC’s general counsel notified him that it had reason to believe that he had violated §319 by failing to report personal expenditures during the 2004 campaign. The FEC proposed a conciliation agreement under which Davis would pay a substantial civil penalty. Davis responded by agreeing to toll the limitations period for an FEC enforcement action until resolution of this suit.
Davis filed this action in the United States District Court for the District of Columbia, and a three-judge panel was convened. BCRA § 403, 116 Stat. 113, note following 2 U. S. C. § 437h. While Davis requested that the case be decided before the general election campaign began on September 12, 2006, the FEC opposed the request, asserting the need for extensive discovery, and the request was denied. Ultimately, the parties filed cross-motions for summary judgment.
Ruling on those motions, the District Court began by addressing Davis’ standing sua sponte. The court concluded that Davis had standing, but rejected his claims on the merits and granted summary judgment for the FEC. 501 F. Supp. 2d 22 (2007). Davis then invoked BCRA’s exclusive avenue for appellate review—direct appeal to this Court. Note following § 437h. We deferred full consideration of our jurisdiction, 552 U. S. 1135 (2008), and we now reverse.
II
Like the District Court, we must first ensure that we have jurisdiction to hear Davis’ appeal. Article III restricts federal courts to the resolution of cases and controversies. Arizonans for Official English v. Arizona, 520 U. S. 43, 64 (1997). That restriction requires that the party invoking federal jurisdiction have standing — the “personal interest that must exist at the commencement of the litigation.” Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 189 (2000) (internal quotation marks omitted). But it is not enough that the requisite interest exist at the outset. “To qualify as a case fit for federal-court adjudication, ‘an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.’ ” Arizonans for Official English, supra, at 67. The FEC argues that Davis’ appeal fails to present a constitutional case or controversy because Davis lacks standing and because his claims are moot. We address each of these issues in turn.
A
As noted, the requirement that a claimant have “standing is an essential and unchanging part of the case-or-controversy requirement of Article III.” Lujan v. Defenders of Wildlife, 504 U. S. 555, 560 (1992); see also Arizonans for Official English, supra, at 64. To qualify for standing, a claimant must present an injury that is concrete, particularized, and actual or imminent; fairly traceable to the defendant’s challenged behavior; and likely to be redressed by a favorable ruling. Lujan, supra, at 560-561.
The District Court held, and the parties do not dispute, that Davis possesses standing to challenge the disclosure requirements of § 319(b). When Davis filed suit, he had already declared his 2006 candidacy and had been forced by § 319(b) to disclose to his opponent that he intended to spend more than $350,000 in personal funds. At that time, Davis faced the imminent threat that he would have to follow up on that disclosure with further notifications after he in fact passed the $350,000 mark. Securing a declaration that § 319(b)’s requirements are unconstitutional and an injunction against their enforcement would have spared him from making those disclosures. That relief also would have removed the real threat that the FEC would pursue an enforcement action based on alleged violations of § 319(b) during his 2004 campaign. As a result, Davis possesses standing to challenge § 319(b)’s disclosure requirement.
The fact that Davis has standing to challenge § 319(b) does not necessarily mean that he also has standing to challenge the scheme of contribution limitations that applies when § 319(a) comes into play. “[Standing is not dispensed in gross.” Lewis v. Casey, 518 U. S. 343, 358, n. 6 (1996). Rather, “a plaintiff must demonstrate standing for each claim he seeks to press” and “'for each form of relief’” that is sought. Daimler Chrysler Corp. v. Cuno, 547 U. S. 332, 352 (2006) (quoting Friends of Earth, supra, at 185).
In light of these principles, the FEC argues that Davis lacks standing to attack § 319(a)’s asymmetrical limits. When Davis commenced this action, his opponent had not yet qualified for the asymmetrical limits, and later, when his opponent did qualify to take advantage of those limits, he chose not to do so. Accordingly, the FEC argues that § 319(a) did not cause Davis any injury.
While the proof required to establish standing increases as the suit proceeds, see Lujan, supra, at 561, the standing inquiry remains focused on whether the party invoking jurisdiction had the requisite stake in the outcome when the suit was filed. Friends of Earth, supra, at 180; Arizonans for Official English, supra, at 68, n. 22. As noted above, the injury required for standing need not be actualized. A party facing prospective injury has standing to sue where the threatened injury is real, immediate, and direct. Los Angeles v. Lyons, 461 U. S. 95, 102 (1983); see also Babbitt v. Farm Workers, 442 U. S. 289, 298 (1979) (A plaintiff may challenge the prospective operation of a statute that presents a realistic and impending threat of direct injury). Davis faced such an injury from the operation of § 319(a) when he filed suit. Davis had declared his candidacy and his intent to spend more than $350,000 of personal funds in the general election campaign whose onset was rapidly approaching. Section 319(a) would shortly burden his expenditure of personal funds by allowing his opponent to receive contributions on more favorable terms, and there was no indication that his opponent would forgo that opportunity. Indeed, the record at summary judgment indicated that most candidates who had the opportunity to receive expanded contributions had done so. App. 89. In these circumstances, we conclude that Davis faced the requisite injury from § 319(a) when he filed suit and has standing to challenge that provision’s asymmetrical contribution scheme.
B
The FEC’s mootness argument also fails. This case closely resembles Federal Election Comm’n v. Wisconsin Right to Life, Inc., 551 U. S. 449 (2007). There, Wisconsin Right to Life (WRTL), a nonprofit, ideological advocacy corporation, wished to run radio and TV ads within 30 days of the 2004 Wisconsin primary, contrary to a restriction imposed by BCRA. WRTL sued the FEC, seeking declaratory and injunctive relief. Although the suit was not resolved before the 2004 election, we rejected the FEC’s claim of mootness, finding that the case “fit comfortably within the established exception to mootness for disputes capable of repetition, yet evading review.” Id., at 462. That “exception applies where ‘(1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.’” Ibid, (quoting Spencer v. Kemna, 523 U. S. 1, 17 (1998)).
In WRTL, “despite BCRA’s command that the cas[e] be expedited ‘to the greatest possible extent,’ ” WRTL’s claims could not reasonably be resolved before the election concluded. 551 U. S., at 462 (quoting § 403(a)(4), 116 Stat. 114, note following 2 U. S. C. § 437h). Similarly, in this case despite BCRA’s mandate to expedite and Davis’ request that his case be resolved before the 2004 general election season commenced, Davis’ case could not be resolved before the 2006 election concluded, demonstrating that his claims are capable of evading review.
As to the second prong of the exception, even though WRTL raised an as-applied challenge, we found its suit capable of repetition where “WRTL credibly claimed that it planned on running ‘materially similar’ future” ads subject to BCRA’s prohibition and had, in fact, sought an injunction that would permit such an ad during the 2006 election. 551 U. S., at 463 (some internal quotation marks omitted). Here, the FEC conceded in its brief that Davis’ § 319(a) claim would be capable of repetition if Davis planned to self-finance another bid for a House seat. Brief for Appellee 14, 20-21, and n. 5. Davis subsequently made a public statement expressing his intent to do so. See Reply Brief 16 (citing Terreri, Democrat Davis Confirms He’ll Run Again for Congress, Rochester Democrat and Chronicle, Mar. 27, 2008, p. 5B). As a result, we are satisfied that Davis’ facial challenge is not moot.
Ill
We turn to the merits of Davis’ claim that the First Amendment is violated by the contribution limits that apply when § 319(a) comes into play. Under this scheme, as previously noted, when a candidate spends more than $350,000 in personal funds and creates what the statute apparently regards as a financial imbalance, that candidate’s opponent may qualify to receive both larger individual contributions than would otherwise be allowed and unlimited coordinated party expenditures. Davis contends that § 319(a) unconstitutionally burdens his exercise of his First Amendment right to make unlimited expenditures of his personal funds because making expenditures that create the imbalance has the effect of enabling his opponent to raise more money and to use that money to finance speech that counteracts and thus diminishes the effectiveness of Davis’ own speech.
A
If § 319(a) simply raised the contribution limits for all candidates, Davis’ argument would plainly fail. This Court has previously sustained the facial constitutionality of limits on discrete and aggregate individual contributions and on coordinated party expenditures. Buckley v. Valeo, 424 U. S. 1, 23-35, 38, 46-47, and n. 53 (1976) (per curiam); Federal Election Comm’n v. Colorado Republican Federal Campaign Comm., 533 U. S. 431, 437, 465 (2001) (Colorado II). At the same time, the Court has recognized that such limits implicate First Amendment interests and that they cannot stand unless they are “closely drawn” to serve a “sufficiently important interest,” such as preventing corruption and the appearance of corruption. See, e. g., McConnell v. Federal Election Comm’n, 540 U. S. 93, 136, 138, n. 40 (2003); Colorado II, supra, at 456; Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 387-388 (2000); Buckley, supra, at 25-30, 38. When contribution limits are challenged as too restrictive, we have extended a measure of deference to the judgment of the legislative body that enacted the law. See, e. g., Randall v. Sorrell, 548 U. S. 230, 248 (2006) (plurality opinion); Nixon, supra, at 396-397; Buckley, supra, at 30, 111, 103-104. But we have held that limits that are too low cannot stand. Randall, 548 U. S., at 246-262; id., at 263 (Alito, J., concurring in part and concurring in judgment).
There is, however, no constitutional basis for attacking contribution limits on the ground that they are too high. Congress has no constitutional obligation to limit contributions at all; and if Congress concludes that allowing contributions of a certain amount does not create an undue risk of corruption or the appearance of corruption, a candidate who wishes to restrict an opponent’s fundraising cannot argue that the Constitution demands that contributions be regulated more strictly. Consequently, if § 319(a)’s elevated contribution limits applied across the board, Davis would not have any basis for challenging those limits.
B
Section 319(a), however, does not raise the contribution limits across the board. Rather, it raises the limits only for the non-self-financing candidate and does so only when the self-financing candidate’s expenditure of personal funds causes the OPFA threshold to be exceeded. We have never upheld the constitutionality of a law that imposes different contribution limits for candidates who are competing against each other, and we agree with Davis that this scheme impermissibly burdens his First Amendment right to spend his own money for campaign speech.
In Buckley, we soundly rejected a cap on a candidate’s expenditure of personal funds to finance campaign speech. We held that a “candidate... has a First Amendment right to engage in the discussion of public issues and vigorously and tirelessly to advocate his own election” and that a cap on personal expenditures imposes “a substantial,” “cleajr],” and “direcft]” restraint on that right. 424 U. S., at 52-53. We found that the cap at issue was not justified by “[t]he primary governmental interest” proffered in its defense, i. e., “the prevention of actual and apparent corruption of the political process.” Id., at 53. Far from preventing these evils, “the use of personal funds,” we observed, “reduces the candidate’s dependence on outside contributions and thereby counteracts the coercive pressures and attendant risks of abuse to which... contribution limitations are directed.” Ibid. We also rejected the argument that the expenditure cap could be justified on the ground that it served “[t]he ancillary interest in equalizing the relative financial resources of candidates competing for elective office.” Id., at 54. This putative interest, we noted, was “clearly not sufficient to justify the... infringement of fundamental First Amendment rights.” Ibid.
Buckley’s emphasis on the fundamental nature of the right to spend personal funds for campaign speech is instructive. While BCRA does not impose a cap on a candidate’s expendíture of personal funds, it imposes an unprecedented penalty-on any candidate who robustly exercises that First Amendment right. Section 319(a) requires a candidate to choose between the First Amendment right to engage in unfettered political speech and subjection to discriminatory fundraising limitations. Many candidates who can afford to make large personal expenditures to support their campaigns may choose to do so despite § 319(a), but they must shoulder a special and potentially significant burden if they make that choice. See Day v. Holahan, 34 F. 3d 1356, 1359-1360 (CA8 1994) (concluding that a Minnesota law that increased a candidate’s expenditure limits and eligibility for public funds based on independent expenditures against her candidacy burdened the speech of those making the independent expenditures); Brief for Appellee 29 (conceding that “[§]319 does impose some consequences on a candidate’s choice to self-finance beyond certain amounts”). Under § 319(a), the vigorous exercise of the right to use personal funds to finance campaign speech produces fundraising advantages for opponents in the competitive context of electoral politics. Cf. Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal., 475 U. S. 1,14 (1986) (plurality opinion) (finding infringement on speech rights where if the plaintiff spoke it could “be forced... to help disseminate hostile views”).
The resulting drag on First Amendment rights is not constitutional simply because it attaches as a consequence of a statutorily imposed choice. In Buckley, we held that Congress “may engage in public financing of election campaigns and may condition acceptance of public funds on an agreement by the candidate to abide by specified expenditure limitations” even though we found an independent limit on overall campaign expenditures to be unconstitutional. 424 U. S., at 57, n. 65; see id., at 54-58. But the choice involved in Buckley was quite different from the choice imposed by § 319(a). In Buckley, a candidate, by forgoing public financing, could retain the unfettered right to make unlimited personal expenditures. Here, § 319(a) does not provide any way in which a candidate can exercise that right without abridgment. Instead, a candidate who wishes to exercise that right has two choices: abide by a limit on personal expenditures or endure the burden that is placed on that right by the activation of a scheme of discriminatory contribution limits. The choice imposed by § 319(a) is not remotely parallel to that in Buckley.
Because § 319(a) imposes a substantial burden on the exercise of the First Amendment right to use personal funds for campaign speech, that provision cannot stand unless it is “justified by a compelling state interest,” Federal Election Comm’n v. Massachusetts Citizens for Life, Inc., 479 U. S. 238, 256 (1986); see also, e. g., McConnell, 540 U. S., at 205; Austin v. Michigan Chamber of Commerce, 494 U. S. 652, 657-658 (1990); id., at 680 (Scalia, J., dissenting); id., at 701, 702-703 (Kennedy, J., dissenting); Federal Election Comm’n v. National Conservative Political Action Comm., 470 U. S. 480, 500-501 (1985); First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 786 (1978); Colorado Republican Federal Campaign Comm. v. Federal Election Comm’n, 518 U. S. 604, 609 (1996) (Colorado I) (principal opinion); id., at 640-641 (Thomas, J., concurring in judgment and dissenting in part). No such justification is present here.
The burden imposed by § 319(a) on the expenditure of personal funds is not justified by any governmental interest in eliminating corruption or the perception of corruption. The Buckley Court reasoned that reliance on personal funds re duces the threat of corruption, and therefore § 319(a), by discouraging use of personal funds, disserves the anticorruption interest. Similarly, given Congress’ judgment that liberalized limits for non-self-financing candidates do not unduly imperil anticorruption interests, it is hard to imagine how the denial of liberalized limits to self-financing candidates can be regarded as serving anticorruption goals sufficiently to justify the resulting constitutional burden.
The Government maintains that §319(a)’s asymmetrical limits are justified because they “level electoral opportunities for candidates of different personal wealth.” Brief for Appellee 34. “Congress enacted Section 319,” the Government writes, “to reduce the natural advantage that wealthy individuals possess in campaigns for federal office.” Id., at 33 (emphasis added). Our prior decisions, however, provide no support for the proposition that this is a legitimate government objective. See Nixon, 528 U. S., at 428 (Thomas, J., dissenting) (“ ‘[Preventing corruption or the appearance of corruption are the only legitimate and compelling government interests thus far identified for restricting campaign finances’” (quoting National Conservative Political Action Comm., supra, at 496-497)); Randall, 548 U. S., at 268 (Thomas, J., concurring in judgment) (noting “the interests the Court has recognized as compelling, i. e., the prevention of corruption or the appearance thereof”). On the contrary, in Buckley, we held that “[t]he interest in equalizing the financial resources of candidates” did not provide a “justification for restricting” candidates’ overall campaign expenditures, particularly where equalization “might serve... to handicap a candidate who lacked substantial name recognition or exposure of his views before the start of the campaign.” 424 U. S., at 56-57. We have similarly held that the interest “in equalizing the relative ability of individuals and groups to influence the outcome of elections” cannot support a cap on expenditures for “express advocacy of the election or defeat of candidates,” as “the concept that govern-merit may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.” Id., at 48-49; see also McConnell, supra, at 227 (noting, in assessing standing, that there is no legal right to have the same resources to influence the electoral process). Cf. Austin, supra, at 705 (Kennedy, J., dissenting) (rejecting as “antithetical to the First Amendment” “the notion that the government has a legitimate interest in restricting the quantity of speech to equalize the relative influence of speakers on elections”).
The argument that a candidate’s speech may be restricted in order to “level electoral opportunities” has ominous implications because it would permit Congress to arrogate the voters’ authority to evaluate the strengths of candidates competing for office. See Bellotti, supra, at 791-792 (“[T]he people in our democracy are entrusted with the responsibility for judging and evaluating the relative merits of conflicting arguments” and “may consider, in making their judgment, the source and credibility of the advocate”). Different candidates have different strengths. Some are wealthy; others have wealthy supporters who are willing to make large contributions. Some are celebrities; some have the benefit of a well-known family name. Leveling electoral opportunities means making and implementing judgments about which strengths should be permitted to contribute to the outcome of an election. The Constitution, however, confers upon voters, not Congress, the power to choose the Members of the House of Representatives, Art. I, § 2, and it is a dangerous business for Congress to use the election laws to influence the voters’ choices. See Bellotti, supra, at 791, n. 31 (The “[g]overnment is forbidden to assume the task of ultimate judgment, lest the people lose their ability to govern themselves”).
Finally, the Government contends that § 319(a) is justified because it ameliorates the deleterious effects that result from the tight limits that federal election law places on individual campaign contributions and coordinated party expenditures. These limits, it is argued, make it harder for candidates who are not wealthy to raise funds and therefore provide a substantial advantage for wealthy candidates. Accordingly, § 319(a) can be seen, not as a legislative effort to interfere with the natural operation of the electoral process, but as a legislative effort to mitigate the untoward consequences of Congress’ own handiwork and restore “the ‘normal relationship’ between a candidate’s financial resources and the level of popular support for his candidacy.” Brief for Appellee 33.
Whatever the merits of this argument as an original matter, it is fundamentally at war with the analysis of expenditure and contributions limits that this Court adopted in Buckley and has applied in subsequent cases. The advantage that wealthy candidates now enjoy and that § 319(a) seeks to reduce is an advantage that flows directly from Buckley’s disparate treatment of expenditures and contributions. If that approach is sound—and the Government does not urge us to hold otherwise—it is hard to see how undoing the consequences of that decision can be viewed as a compelling interest. If the normally applicable limits on individual contributions and coordinated party contributions are seriously distorting the electoral process, if they are feeding a “public perception that wealthy people can buy seats in Congress,” Brief for Appellee 34, and if those limits are not needed in order to combat corruption, then the obvious remedy is to raise or eliminate those limits. But the unprecedented step of imposing different contribution and coordinated party expenditure limits on candidates vying for the same seat is antithetical to the First Amendment.
IV
The remaining issue that we must consider is the constitutionality of §319(b)’s disclosure requirements. “[W]e have repeatedly found that compelled disclosure, in itself, can seriously infringe on privacy of association and belief guaranteed by the First Amendment.” Buckley, 424 U. S., at 64. As a result, we have closely scrutinized disclosure requirements, including requirements governing independent expenditures made to further individuals’ political speech. Id., at 75. To survive this scrutiny, significant encroachments “cannot be justified by a mere showing of some legitimate governmental interest.” Id., at 64. Instead, there must be “a ‘relevant correlation’ or'substantial relation’ between the governmental interest and the information required to be disclosed,” and the governmental interest “must survive exacting scrutiny.” Ibid, (footnotes omitted). That is, the strength of the governmental interest must reflect the seriousness of the actual burden on First Amendment rights. Id., at 68, 71.
The § 319(b) disclosure requirements were designed to implement the asymmetrical contribution limits provided for in § 319(a), and as discussed above, § 319(a) violates the First Amendment. In light of that holding, the burden imposed by the § 319(b) requirements cannot be justified, and it follows that they too are unconstitutional.
* * *
In sum, we hold that §§ 319(a) and (b) violate the First Amendment. The judgment of the District Court is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
APPENDIX
BCRA §§ 319(a) and (b) provide:
“(a) Availability of increased limit
“(1) In general
“Subject to paragraph (3), if the opposition personal funds amount with respect to a candidate for election to the office of Representative in, or Delegate or Resident Commissioner to, the Congress exceeds $350,000—
“(A) the limit under subsection (a)(1)(A) with respect to the candidate shall be tripled;
“(B) the limit under subsection (a)(3) shall not apply with respect to any contribution made with respect to the candidate if the contribution is made under the increased limit allowed under subparagraph (A) during a period in which the candidate may accept such a contribution; and
“(C) the limits under subsection (d) with respect to any expenditure by a State or national committee of a political party on behalf of the candidate shall not apply.
“(2) Determination of opposition personal funds amount
“(A) In general
“The opposition personal funds amount is an amount equal to the excess (if any) of—
“(i) the greatest aggregate amount of expenditures from personal funds (as defined in subsection (b)(1) of this section) that an opposing candidate in the same election makes; over
“(ii) the aggregate amount of expenditures from personal funds made by the candidate with respect to the election.
“(B) Special rule for candidate’s campaign funds
“(i) In general
“For purposes of determining the aggregate amount of expenditures from personal funds under subparagraph (A), such amount shall include the gross receipts advantage of the candidate’s authorized committee.
“(ii) Gross receipts advantage
“For purposes of clause (i), the term 'gross receipts advantage’ means the excess, if any, of—
“(I) the aggregate amount of 50 percent of gross receipts of a candidate’s authorized committee during any election cycle (not including contributions from personal funds of the candidate) that may be expended in connection with the election, as determined on June 30 and December 31 of the year preceding the year in which a general election is held, over
“(II) the aggregate amount of 50 percent of gross receipts of the opposing candidate’s authorized committee during any election cycle (not including contributions from personal funds of the candidate) that may be expended in connection with the election, as determined on June 30 and December 31 of the year preceding the year in which a general election is held.
“(3) Time to accept contributions under increased limit
“(A) In general
“Subject to subparagraph (B), a candidate and the candidate’s authorized committee shall not accept any contribution, and a party committee shall not make any expenditure, under the increased limit under paragraph (1)—
"(i) until the candidate has received notification of the opposition personal funds amount under subsection (b)(1) of this section; and
“(ii) to the extent that such contribution, when added to the aggregate amount of contributions previously accepted and party expenditures previously made under the increased limits under this subsection for the election cycle, exceeds 100 percent of the opposition personal funds amount.
“(B) Effect of withdrawal of an opposing candidate
“A candidate and a candidate’s authorized committee shall not accept any contribution and a party shall not make any expenditure under the increased limit after the date on which an opposing candidate ceases to be a candidate to the extent that the amount of such increased limit is attributable to such an opposing candidate.
“(4) Disposal of excess contributions
“(
Question: Was the case heard by a three-judge federal district court?
A. Yes
B. No
Answer:
|
songer_genresp2
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent.
UNITED STATES of America, Appellant, v. Clement F. COOK, Appellee (two cases). UNITED STATES of America, Appellant, v. Wilfred L. COOK, Appellee (two cases). UNITED STATES of America, Appellant, v. Wilfred L. COOK and Patricia Cook, Appellees (two cases).
Nos. 16132, 16145, 16133, 16146, 16134, 16147.
United States Court of Appeals Eighth Circuit.
Oct 8, 1959.
Carolyn R. Just, Atty., Dept, of Justice, Washington, D. C. (Howard A. Heffron, Acting Asst. Atty. Gen., Lee A. Jacks on, Robert N. Anderson and Louise Foster, Attys., Dept, of Justice, Washington, D. C., Fallon Kelly, U. S. Atty., and Hyam Segell, Asst. U. S. Atty., St. Paul, Minn., were with her on the brief), for appellant.
Joseph A. Maun, St. Paul, Minn. (Jerome B. Simon and Bundlie, Kelley & Maun, St. Paul, Minn., were with him on the brief), for appellees.
Before GARDNER, VOGEL and VAN OOSTERHOUT, Circuit Judges.
VOGEL, Circuit Judge.
These cases, consolidated for the purposes of trial, concern the proper tax treatment to be accorded income resulting from the sale by taxpayers of mink pelts derived from minks culled from their breeding herd. No issues of fact are presented. It is conceded that the business of the taxpayers during the years in question consisted of raising minks for the purpose of selling mink pelts; that this business required the development and maintenance of a breeding herd; that in order to obtain and maintain improved mink strains it was necessary to cull out of the herd minks which were no longer suitable for use as breeders; that the minks in question had been culled out of the herd for this reason; that they had been held by the taxpayers for more than 12 months prior to their pelting and sale and had been utilized during that time solely for breeding purposes; that there was no market for live, culled breeder minks except as pelts; and that the minks in question were killed and pelted in order to be put in a marketable condition.
The taxpayers reported the income received from the sale of such pelts as gain from the sale of capital assets used in their trade or business under § 117(j) of the Internal Revenue Code of 1939, as amended. The Commissioner of Internal Revenue determined that the taxpayers owed deficiencies on the basis that the proceeds from the sale of these pelts should have been treated as ordinary income. These deficiencies were paid by the taxpayers, who thereafter made timely claims for refunds. Suits were brought in the United States District Court for the District of Minnesota. In Cook v. United States, D.C.Minn.1958, 165 F.Supp. 212, the District Court held that the taxpayers were entitled to the refunds claimed, from which holdings the United States has appealed to this court.
Section 39.117(j) — 2 of Treasury Regulations 118 provides that:
“For the purpose of section 117 (j), the term ‘livestock’ shall be given a broad, rather than a narrow, interpretation and includes cattle, hogs, horses, mules, donkeys, sheep, goats, fur-bearing animals, and other mammals. It does not include chickens, turkeys, pigeons, geese, other birds, fish, frogs, reptiles, etc.” (Emphasis supplied.)
In view of this regulation, the appellant concedes that the term “livestock” has been extended to include minks raised for commercial purposes. It is claimed, however, that “ * * * the Commissioner has properly refused to classify the pelts of such animals as ‘livestock’.” The Commissioner’s position is set forth in Revenue Ruling 57-548, 1957-2 Cum. Bull. 54-55, which, in discussing the corresponding section in the 1954 Internal Revenue Code, explains that—
“when animals are periodically taken from the breeding herd and killed for their pelts, the character of the animals has been changed. They are no longer of the type specified for possible capital gain treatment under section 1231 of the Code and the pelts therefrom constitute property of a kind which would properly be includible in inventory if on hand at the close of the taxable year or property held by the taxpayer primarily for sale to customers in the ordinary course of his trade or business, as is the case where such animals are raised for their pelts, i. e., not for breeding.”
Thus, the Commissioner claims here that:
“ * * * when culled breeding animals are killed and pelted, the product which the taxpayer then has to sell is not of the same character as the culled live animal. Therefore such product is not the type specified by Section 117(j) for capital gain treatment.”
And that:
“The privilege of having income taxable at capital gain rates is allowable to the taxpayer here only if he can show that his partnership sold ‘livestock’ which had been held for breeding purposes, but that requirement can not be met because only pelts from the dead mink were sold. Thus the income involved here, which was realized under exactly the same conditions as the income from those pelts which were admittedly held primarily for sale in the ordinary course of the partnership’s business, should be treated exactly like the income from the latter pelts, namely, as ordinary income.”
In reaching its conclusion, the court below relied upon this court’s decision in Albright v. United States, 8 Cir., 1949, 173 F.2d 339. In that case, taxpayer was a farmer engaged'in the production and sale of hogs. In accordance with the customary practice of that business, he annually culled out and sold his entire breeding herd. However, the sale did not occur until after the culled animals had been first allowed to return to “marketable condition”. 173 F.2d at page 345. This court held that the proceeds from that subsequent sale qualified for capital gains treatment and, consequently, that the processing for market of the no longer useful breeding hogs did not constitute their being primarily held for sale in the ordinary course of taxpayer’s business.
As in the Albright case, the minks here were not marketable immediately upon being removed from the breeding herd' and we conclude, similarly, that taking the minimum steps necessary to render them saleable did not change their character within the meaning of section 117(j)(l).
Appellant seeks to distinguish the Al-bright case on the grounds that it was decided before the addition to section 117(j) (1) of the sentence relating specifically to “livestock”. Appellant’s present position is that, if the culled minks had been sold live, the returns therefrom would qualify under the statute as capital gains, but inasmuch as they were killed and pelted by the taxpayers, the product sold had changed in character and no longer fell within the statutory term and thus constituted a sale in the ordinary course of taxpayers’ business.
As this court pointed out in Al-bright, section 117(j) was intended to provide relief for all taxpayers having to sell assets used in their trade or business. Further, it is clear from the legislative history that the addition of the term “livestock” to the section was not intended to limit such relief, but rather to clarify the right of farmers and other animal raisers to it. Finally, it is conceded that there is no market for live culled minks and that their killing and pelting are the minimum steps necessary to make them marketable. Thus, to accept appellant’s interpretation of the amendment would be to make meaningless the application of this remedial legislation to taxpayers’ business and thereby to negate the clear intent of Congress.
We do not think that the term “livestock”, as used by Congress and as interpreted by the Treasury Regulations to include “fur-bearing animals”, can be said to mean that the animals must be alive when sold. Congress stated that:
“ * * * the term ‘livestock’ in this new sentence should be given a broad, rather than a narrow, interpretation; * * *.”
The term was used by Congress in not a literal but in a generic sense.
But be that as it may, if the property at the time of its acquisition and use could be properly characterized as “livestock”, then its subsequent conditioning for market by killing and pelting does not remove it from within that term. Appellant would read into the statute the requirement that at the time of sale or disposition, the property must be in the same form or condition as it was when held by the taxpayers for use in their trade or business. Such conditions are not specifically set forth in the statute and we cannot read them in by implication. We think the critical period for characterization of the property goes further back than the time of disposition. The property is properly characterized at the time it is acquired for use by the taxpayers in their trade or business and during the period it is so used. McDonald v. Commissioner, 2 Cir., 1954, 214 F.2d 341, 343. There is no requirement in the statute that the property be used in the trade or business of the taxpayer right up to and including the date of sale or exchange. The statute contemplates and the regulations provide for a reasonable time for disposition after the necessary termination of the property’s intended use. Treasury Regulations, Sec. 1.1231-2 (b), (c) and Treasury Regulations 118, Sec. 39.-117(j)-2 (b), (c).
In Emerson v. Commissioner, 1949, 12 T.C. 875, 879, the Tax Court, following this court’s decision in the Albright case, stated:
“We also agree with that part of the court’s decision wherein it was held that the fact that hogs from the breeding herd were customarily conditioned for market before sale does not show that the taxpayer has not held them for the purpose of breeding or that they were held primarily for sale to customers in the ordinary course of his trade or business.”
Under the undisputed facts in this case, the minks in question, culled from the taxpayers’ breeding herd, met every condition of the statute up to the time they were killed and pelted by the taxpayers. We see no reason why the returns from the sale of their pelts should not receive the same treatment as if the minks had been sold live, when the latter was concededly a commercial impossibility.
The appellant cites with approval Ka-hua Ranch, Ltd. v. United States, D.C. Hawaii 1956, 165 F.Supp. 210. In that case the taxpayer was engaged in the production of beef cattle, as well as in the operation of slaughter houses and the sale of meat. It was there held that proceeds from the sale of cattle, culled from the breeding herd as unproductive and unserviceable and held for more than 6 months, which were slaughtered on the order of local butchers, with taxpayer retaining their hides as payment for the slaughtering, were capital gains; but, that where the culled animals were shipped to and slaughtered at another of taxpayer’s establishments and their carcasses stored there in the same manner as other animals and subsequently sold upon demand, the receipts were ordinary income. As Judge Donovan pointed out in his opinion below, in that case there was a market for live slaughter animals. That factor distinguishes the Kahua Ranch case from those at bar. If, in the instant cases, the taxpayers had attempted to condition the minks beyond the first stage of marketability and, as an extreme example, turn the pelts into mink coats, a different situation would arise.
The holdings in Cedarburg Fox Farms, Inc. v. United States, D.C.E.D. Wis., 176 F.Supp. 570, and Edwards v. Commissioner, 6/18/59, 32 T.C. No. 64, support the conclusion herein arrived at.
Affirmed.
. 26 U.S.C.A. § 137(j) (1):
“(j) Gains mid losses from involuntary conversion and from the sale or exchange of certain property used in the trade or business.
“(1) Definition of property used in the trade or business. For the purposes of this subsection, the term ‘property used in tho trade or business’ means property used in the trade or business, of a character which is subject to the allowance for depreciation provided in section 23 (1), held for more than 6 months, and real property used in the trade or business, held for more than 6 months, which is not (A) property of a kind which would properly be includible in the inventory of the taxpayer if on hand at the close of the taxable year, or (B) property held by the taxpayer primarily for sale to customers in the ordinary course of his trade or business, or (0) a copyright, a literary, musical, or artistic composition, or similar property, held by a taxpayer described in subsection (a) (1) (c). Such term also includes timber or coal with respect to which subsection (k) (1) or (2) is applicable and unharvested crops to which paragraph (3) is applicable. Such term also includes livestock, regardless of age, held by the taxpayer for draft, breeding, or dairy purposes, and held by him for 12 months or more from the date of acquisition. Such term does not include poultry.”
. H.Rep. No. 586, 82d Cong., 1st Sess., p. 32 (1951-2 Cum.Bull. 357, 380); S. Rep. No. 781, 82d Cong., 1st Sess., pp. 41-42 (1951-2 Cum.Bull. 458, 487-488).
. H.Rep. No. 586, 82d Cong., 1st Sess., p. 32 (1951-2 Cum.Bull. 357, 380).
Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_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.
Richard J. WALL, Plaintiff-Appellant, v. UNITED STATES of America, Department of Health and Human Services, Otis Bowen; Merit Systems Protection Board; and Herbert Ellingwood, Defendants-Appellees.
No. 86-2004.
United States Court of Appeals, Tenth Circuit.
March 31, 1989.
Rehearing Denied May 24, 1989.
J. Larry Louk (Michael L. Snider and Timothy J. Arehart of Thomas, McDonald, Maier, Dykes & Johnston, Chartered, with him on the brief), Overland Park, Kan., for plaintiff-appellant.
E. Yvonne M. Ernzen (Benjamin L. Burgess, Jr., U.S. Atty., D. Kan., Julie Robinson Trice, Asst. U.S. Atty., Kansas City, Kan., Paul P. Cacioppo, Chief Counsel, Region VII, Dept, of Health and Human Services, and Frances Reddis, Asst. Regional Counsel, of counsel), Kansas City, Mo., for defendants-appellees.
Before SEYMOUR and McWILLIAMS, Circuit Judges, and BOHANON, Senior District Judge.
Honorable Luther L. Bohanon of the United States District Court for the Northern, Eastern and Western Districts of Oklahoma, sitting by designation.
McWILLIAMS, Circuit Judge.
Richard J. Wall, a resident of Kansas, was employed by the Department of Health and Human Services (Department) from October, 1973, to September 28, 1984, when his employment was terminated. Shortly prior to September 28, 1984, Wall executed an application for retirement with an effective date of September 28, 1984.
Notwithstanding his application to retire, Wall thereafter filed a timely appeal to the Merit Systems Protection Board (Board) protesting his termination. Wall’s position was that on September 18, 1984, the Department informed him that he would be “removed” from his civil service position on September 28, 1984, because a physical disability prevented him from performing his employment duties and, further, that there was no existing possibility of lateral transfer. According to Wall, at the suggestion of the Department, he then sought advice concerning his retirement rights and that he was misinformed and misled by employees of the Department concerning those rights, all of which led to his application for retirement. Wall claimed that his employment was terminated by the Department because of his age, 65 years of age, and his physical handicap, his left leg having been amputated below the knee in 1981, apparently the result of a diabetic condition.
A hearing was held before a Presiding Official of the Board, which hearing was limited, in the first instance, to the single issue of whether Wall “voluntarily” retired on September 28, 1984. Evidence was taken by the Presiding Official on the issue of the voluntariness of Wall’s application for retirement, and the Presiding Official held that Wall’s retirement was voluntary. Because a voluntary retirement is not an adverse action which is appealable, the Presiding Officer dismissed Wall’s appeal on the ground that the Board had no jurisdiction to hear Wall’s claim of wrongful employment termination because of his age or physical handicap. Wall filed a timely petition for review by the Board of the Presiding Official’s ruling. On May 2, 1985, the Board denied Wall’s petition for review.
On May 29, 1985, Wall filed an action in the United States District Court for the District of Kansas, naming as defendants the United States of America; the Department and Margaret Heckler, then Secretary of the Department; and the Board and its head, Herbert Ellingwood. In his complaint, Wall stated that, after being advised that the Department was going to remove him from his civil service position, he sought advice from the Department concerning possible retirement; in the course of that inquiry he was misled and misinformed by the Department; and as a result he applied for retirement. Wall then set forth two claims for relief, the first based on age discrimination, 29 U.S.C. § 621, et seq., and a second based on handicap discrimination, 29 U.S.C. § 701, et seq.
On May 30, 1985, Wall filed a parallel petition for review of the May 2 decision of the Board with the United States Court of Appeals for the Federal Circuit. By agreement of the parties, Wall’s proceeding in the Federal Circuit has been stayed pending final resolution of the action filed by Wall in the United States District Court for the District of Kansas.
In the Kansas proceeding the defendants filed a motion to dismiss on the ground that the district court in Kansas lacked subject matter jurisdiction and that because of Wall’s voluntary retirement, the Federal Circuit had exclusive jurisdiction to review the ruling of the Board. The district court granted the defendants’ motion to dismiss and dismissed Wall’s action for lack of subject matter jurisdiction. Wall appeals the district court’s order of dismissal. We affirm.
The Memorandum and Order of the district court was published and appears as Wall v. United States, Dep’t of Health and Human Services, 637 F.Supp. 90 (D.Kan.1986). Although the matter is not necessarily free of all doubt, we believe the district court properly construed the statutes in question, and we are in accord with the result reached by the district court and the supporting rationale. We could well let the entire matter rest here, but brief additional comment is in order.
The statutory provisions with which we are primarily concerned are 5 U.S.C. §§ 7703(b)(1), 7703(b)(2), and 7702. Under § 7703(b)(1), “[ejxcept as provided in paragraph (2) of this subsection, a petition to review a final order or final decision of the Board shall be filed in the United States Court of Appeals for the Federal Circuit.” The exception in § 7703(b)(2) provides, in effect, that cases of alleged discrimination “subject to the provisions of section 7702” shall be filed under the applicable statute in a United States District Court. Discrimination cases “subject to the provisions of section 7702” include cases where an employee or an applicant for employment (1) has been affected by an action of an agency which may be appealed to the Board and (2) alleges that the basis for the agency’s action was discrimination prohibited by, inter alia, the Rehabilitation Act of 1973 and the Age Discrimination in Employment Act of 1967. See 5 U.S.C. § 7702.
The district court in the instant case construed those statutory provisions to mean that where, in a given case, the Board determines that the agency action complained of may be appealed to the Board and where the Board further finds that there was no discrimination, the case falls within the exception mentioned in § 7703(b)(1), and detailed in §§ 7703(b)(2) and 7702. Coming within the exception, the employee, in such circumstance, may then file a discrimination action in a United States District Court, and the Federal Circuit would have no jurisdiction to review such an order of the Board. However, the district court also construed those statutory provisions to mean that where the Board determines, as it did in the instant case, that an employee’s appeal to the Board is “not appealable” under the statute, and the Board does not consider the employee’s claim of discrimination on its merits, review of the Board’s determination that it lacks jurisdiction to hear the employee’s claim lies exclusively in the Federal Circuit. As the district court noted, if, in the instant case, the Federal Circuit reverses the Board’s determination that Wall’s retirement was voluntary, the matter will then be remanded to the Board to hear Wall’s discrimination claim on its merits. Should Wall then suffer an adverse ruling on the discrimination issue, he could then file an action in the district court. It would seem to follow that should the Federal Circuit on appeal uphold the Board’s finding that Wall voluntarily retired, such would rule out any claim of discrimination. If Wall, in fact and in law, voluntarily retired, he cannot argue that his termination was the result of agency discrimination.
In support of the district court’s construction of these statutory provisions, see Synan v. Merit Systems Protection Bd., 765 F.2d 1099 (Fed.Cir.1985); Ballentine v. Merit Systems Protection Bd., 738 F.2d 1244 (Fed.Cir.1984); and Williams v. Dep’t of Army, 715 F.2d 1485 (Fed.Cir.1983).
In Synan a postal employee appealed a seven-day suspension order to the Board contending that his suspension was the result of agency discrimination because of physical handicap. The Board dismissed the appeal for lack of subject matter jurisdiction and did not reach the discrimination issue. On review, the Federal Circuit affirmed the Board, holding that the jurisdiction of the Board is not plenary, but is limited to those actions which are made appealable to it by law, rule or regulation, and that the applicable statute provides only for review of a suspension order of more than 14 days. Synan, 765 F.2d at 1100. The Federal Circuit rejected the employee’s alternative argument that the appeal should be transferred to a United States District Court because of lack of jurisdiction by the Federal Circuit, since an appellant is granted no rights to a trial de novo in a civil action under § 7702 or § 7703 until the discrimination issue and the appealable action have been decided on the merits by the Board. Id. at 1101.
Ballentine was the basis for Synan, and neither, in our view, is at odds with Williams.
Such cases as Covington v. Dep’t of Health and Human Services, 750 F.2d 937 (Fed.Cir.1984) and Christo v. Merit Systems Protection Bd., 667 F.2d 882 (10th Cir.1981), relied on by Wall, are inapposite. In Covington, which does not involve alleged discrimination, the Board found “voluntary retirement,” and, on appeal, the Federal Circuit held that because of misinformation the retirement was involuntary as a matter of law, and remanded the case to the Board for further proceedings. Covington, 750 F.2d at 944. As indicated, should the Federal Circuit reverse the Board’s findings that Wall voluntarily retired, the matter presumably will be remanded to the Board with directions to hear the discrimination charge.
In Christo, the Board rejected a terminated employee’s claim of discriminatory discharge, and the employee filed a civil rights case in the United States District Court for the District of Colorado and a petition for review of the Board’s decision in this court (the statute at that time provided for review of the Board’s action by a United States Court of Appeals or the Court of Claims). On a motion to dismiss, this court transferred the petition to the district court. In Christo, unlike the instant case, the Board admittedly had jurisdiction of the appeal and accordingly ruled on the discrimination claim on its merits.
We therefore hold that the Federal Circuit has exclusive jurisdiction to hear Wall’s appeal from the Board’s May 2 order that he voluntarily retired from the Department, and that his de novo action in the United States District Court for the District of Kansas was properly dismissed. Judgment affirmed.
. Christie v. United States, 518 F.2d 584, 207 Ct.Cl. 333 (1975); Schultz v. United States Navy, 810 F.2d 1133 (Fed.Cir.1987); 5 C.F.R. § 752.401(c)(3) (1984).
. Presumably, if the Presiding Officer had ruled that Wall’s application for termination was involuntary, he would have then proceeded to hear and rule on the merits of Wall's claim that he was terminated because of his age and physical handicap.
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_circuit
|
D
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Plaintiff-Appellee, v. SEAFARE CORPORATION, Defendant-Appellant, and Trenor Corporation; Central Fidelity Bank, Defendants.
No. 86-1183.
United States Court of Appeals, Fourth Circuit.
Argued Feb. 2, 1987.
Decided Oct. 16, 1987.
See also, D.C., 614 F.Supp. 525.
John G. Trimpi (C. Everett Thompson, II, Elizabeth City, N.C., on brief), for defendant-appellant.
Barbara Brandon Weyher (Joseph Walker Yates, III, Raleigh, N.C., on brief) for plaintiff-appellee.
Before WIDENER and ERVIN, Circuit Judges, and HAYNSWORTH, Senior Circuit Judge.
WIDENER, Circuit Judge:
Seafare Corporation (Seafare) appeals the granting of summary judgment against it and in favor of plaintiff St. Paul Fire and Marine Insurance Company (St. Paul) by the United States District Court for the Eastern District of North Carolina. We vacate the judgment of the district court and remand for that court to hold this proceeding in abeyance until the constructive trust claims pending in the state court are resolved.
At issue in both this proceeding and the one pending in the state court of North Carolina is the claim to certain insurance proceeds to be paid on a policy covering the Seafare Restaurant (restaurant) in Nags Head, North Carolina. The Seafare Restaurant burned on August 23, 1984. Prior to 1983, the restaurant was owned by Sea-fare. In that year, Seafare conveyed the restaurant to William A. Stafford, who in turn conveyed the property to Trenor Corporation. Trenor took possession of the restaurant in March 1983 and continued in possession until the restaurant was destroyed by fire. St. Paul insured the restaurant against loss including loss by fire. While Central Fidelity Bank held a mortgage on the property, it was not listed as a loss payee on the insurance policy. Trenor was the only one listed on that policy as the named insured.
On or about September 1984, Seafare filed a state civil action in the Dare County, North Carolina Superior Court against Trenor, St. Paul and others. Seafare claimed that the transfer of the restaurant from Stafford to Trenor was fraudulent because Stafford had taken title of the restaurant only as a fiduciary for Seafare’s benefit in order to aid the financially distressed Sea-fare. Seafare sought to have the transaction set aside. Seafare alleged that it was entitled to a constructive trust on Trenor’s insurance proceeds to be paid by St. Paul.
In March 1985, St. Paul filed the instant declaratory judgment action seeking to adjudicate all of the claims to the insurance proceeds payable on account of the restaurant fire. In its complaint, St. Paul alleged that it was not obligated to pay the proceeds to Trenor because Trenor intentionally set the fire that destroyed the restaurant. St. Paul claimed that it was under no obligation to pay the proceeds to either Central Fidelity Bank or Seafare because neither was a named insured or loss payee on the policy and that both were subject to St. Paul’s claimed arson defense as to Trenor.
Seafare answered that it was entitled to the insurance proceeds because of Trenor’s fraud. Additionally, Seafare referred to the suit it had initiated in state court that was still pending at that time.
Prior to trial, St. Paul moved, pursuant to Fed.Civ.Proc. 56, for summary judgment against Seafare and Central Fidelity Bank. In opposing the motion, Seafare argued that it was entitled to recovery based upon a constructive trust theory and the doctrine of trust pursuit. Under the doctrine of trust pursuit, the beneficiary of a constructive trust may assert his rights in the proceeds from the disposition of trust property. These proceeds must be capable of being traced through any intermediate transfers, but even property which has been converted from one form to another (e.g. from a restaurant, to the charred remains of the restaurant, to the insurance proceeds, as here) may be so pursued. See Edgecombe Bank & Trust Co. v. Barrett, 238 N.C. 579, 78 S.E.2d 730 (1953); see generally 5 Scott, The Law of Trusts § 521 (3rd ed. 1967). The district court rejected Seafare’s contentions and granted summary judgment in favor of St. Paul, concluding that “There is nothing in either St. Paul’s complaint or Seafare’s answer that gives rise to such a claim [constructive trust and trust pursuit claims] in the action. Further, Seafare has not filed any counterclaim or cross-claim.”
We conclude that the district court erred in granting summary judgment against Seafare. Seafare was not required to counterclaim and thereby litigate its fraud, constructive trust, and trust pursuit claims'in this action because it already had a pending state court action raising these very issues. Seafare had referred to its pending state court action in its answer to St. Paul's complaint, and a copy of that state court complaint was submitted to the district court for consideration.
FRCP 13(a) provides, with respect to a compulsory counterclaim, that "... the pleader need not state the claim if (1) at the time the action was commenced the claim was the subject of another pending action____” Since Seafare’s claim was “the subject of another pending action” in the state court, the district court erred in granting summary judgment against Sea-fare while its claims were pending in the state court. Accord, United States v. Sarman, 699 F.2d 469 (9th Cir.1983) (a claim in a state court is “another pending action” under Rule 13(a)).
The policy defense St. Paul asserted in this declaratory judgment action was arson on the part of Trenor. Yet that matter has never been adjudicated, and St. Paul’s settlement with Trenor and Central Fidelity with full knowledge of Seafare’s constructive trust and trust pursuit claims as to the insurance proceeds, coupled with summary judgment against Seafare, would effectively bar Seafare from ever litigating the merits of its claim against St. Paul although it complied with every rule of federal procedure.
We are of opinion that, on remand, the district court should hold this case in abeyance pending the outcome of Seafare’s constructive trust and trust pursuit claims in the state court. If Seafare prevails in the action in the state court, then the district court should try the arson policy defense.
VACATED AND REMANDED WITH INSTRUCTIONS.
. Central Fidelity Bank also filed a suit in the Dare County, North Carolina Superior Court seeking reformation of the insurance policy so that it could be named as a loss payee beneficiary and that it thereby recover from St. Paul enough of the insurance proceeds to cover payment of the outstanding mortgage it held on the property.
. Seafare also claimed fraud on the part of Central Fidelity Bank. That claim is not relevant to this appeal.
. Central Fidelity Bank, Trenor Corporation and St. Paul eventually entered into a settlement of all their claims.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
|
songer_r_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.
Xenia GREEN, Petitioner-Appellant, v. Robert ABRAMS, Attorney General of the State of New York, N.Y. County District Attorney’s Office, Commissioner of Corrections, County of New York, Respondents-Appellees.
No. 610, Docket 92-2553.
United States Court of Appeals, Second Circuit.
Argued Oct. 30, 1992.
Decided Jan. 12, 1993.
Eleanor Jackson Piel, New York City, for petitioner-appellant.
Mitchell G. Krapes, Asst. Dist. Atty., New York County (Robert M. Morgenthau, Dist. Atty. for New York County, Alan Gadlin, Asst. Dist. Atty., New York County, New York City, of counsel), for respondents-appellees.
Before: MESKILL, Chief Judge, WINTER, Circuit Judge, and RESTANI, Judge . ,
Honorable Jane A. Restani, of the United States Court of International Trade, sitting by designation.
RESTANI, Judge:
Xenia Green was convicted of criminally negligent homicide on December 16, 1987. After exhausting her remedies in the New York state court system, Green petitioned for a writ of habeas corpus from the United States District Court for the Southern District of New York. The district court, Sweet, J., denied Green’s petition, but certified the issue for appeal. We affirm the district court’s denial of a writ of habeas corpus and we decline to appoint counsel for petitioner.
On March 1, 1986, a sixty-year old man was found dead at the Salon Colonique, a business establishment owned and operated by petitioner, Xenia (also known as “Sophie” or “Sophia”) Green. The Salon Colo-nique offered a form of colonic wash to its customers, using a device invented, by Green. The device consisted of a metal speculum, an inflow tube connected to a water faucet, and an outflow tube. To operate the device, Green or the customer would insert the speculum, attach the tubes and turn on the water faucet.
The pressure in the faucets at the Salon Colonique was between 40 and 50 pounds per square inch. Green encouraged her customers to crimp the outflow tube in order to increase the pressure and thus supposedly the effectiveness of the device. Most procedures of this type deliver water into the colon at a rate of less than one pound per square inch. The government’s expert testified that Green’s variation from the normal procedure was dangerous and without medical justification.
An article co-authored by Green acknowledged the danger of high pressure colonics which “force water into the colon.” Xenia Green & Dan Firth, Welcoming the Water Angel: An Introduction to Colonics 8-9. The same article claimed that Green’s establishment administered a safe treatment to its customers because the water tank on the roof of the building, which fed the faucets, acted exactly like a water bag used in a traditional enema. It never mentioned the fact that the pressure in the faucets exceeded the pressure from a water bag by more than- forty times. See id.
. The decedent often visited Green’s establishment. Green testified that on the night of his death, the decedent administered an enema to himself at 9:00 p.m. on February 28 and a second enema at 2:30 or 3:00 a.m. the morning of March 1. At 4:00 a.m. on March 1, Green called 911 to report that her client had stopped breathing. When the police arrived, Green’s client was found dead, naked and seated on the commode. Both the body and the rooms were spotless.
An autopsy determined that death occurred between 11:30 p.m. on February 28 and 3:30 a.m. on March 1 from a rupture of the colon. The examining doctor discovered a half-inch tear in the wall of the cecum, the upper portion of the colon. The intestinal cavity was filled with water and waste material which had leaked through the wall of the colon. Death resulted from infection and inflammation of the abdominal organs. The examining doctor concluded that the pressure from Green’s device caused the rupture of decedent’s colon, already weakened by age and previous enemas. .
According to the autopsy report, the rupture occurred between two and six hours before death. Although an expert in the field testified that hydrocolon therapists should constantly attend to the client during the colonic, Green was not with her client during the procedure or at the time of death. A perforated cecum is not immediately fatal and, if detected in time, need not result in death.
Based on the evidence recited above, on December 16, 1987 a New York state jury found Green guilty of criminally negligent homicide. Three months later, on March 3, 1988, she was sentenced to five years probation and fined $5,000.00. Neither the oral statements of the sentencing judge nor his written order specified a date for payment of the fine. During the probation period, Green made one attempt to pay $10.
The Department of Probation moved to revoke Green’s probation on the ground that she had not made a good faith attempt to obtain resources to pay the fine. A hearing was held at which the state court judge found that Green had failed to make “any bonafide [sic] efforts to acquire the financial resources necessary to pay the fine that’s been imposed.” He therefore found that she had violated the conditions of her probation and revoked her sentence.
Subsequently, a resentencing hearing was held on June 21, 1991, and the state court resentenced Green to a one-year prison term for failing to make good faith efforts to pay the fine. The court rejected Green’s offer, made during the resentenc-ing hearing, to pay a lump sum of $300 immediately and $100 per month in the future. After the state appellate court affirmed her resentencing, petitioner offered to pay the entire fine out of funds provided by her friends, but the trial court refused. On May 27, 1992, Green petitioned for a writ of habeas corpus. The United States District Court for the Southern District of New York denied her petition in an opinion issued on July 8, 1992. This appeal followed.
STANDARD OF REVIEW
A writ of habeas corpus may be granted to á person being held “in custody in violation of the Constitution or laws ... of the United States.” 28 U.S.C. § 2241(c)(3) (1988). The Supreme Court has determined that the due process clause of the Fourteenth Amendment is violated when a person is convicted without “sufficient proof.” Jackson v. Virginia, 443 U.S. 307, 316, 99 S.Ct. 2781, 2787, 61 L.Ed.2d 560 (1979). There is sufficient proof of guilt if “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. at 319, 99 S.Ct. at 2789.
DISCUSSION
Green relies primarily on two arguments: 1) that there' was insufficient evidence to convict her under New York state law, and 2) that revoking her probation for failure to pay the finé violated her due process rights.
A. Sufficiency of the Evidence
In considering a petition for writ of habeás corpus based on insufficient evidence to support a criminal conviction in the state courts, a federal court must look to state law to détermine the elements of the crime. Jackson v. Virginia, 443 U.S. at 324 n. 16, 99 S.Ct. at 2792 n. 16. New York state law provides: “[a] person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person.” N.Y. Penal Law § 125.10 (McKinney 1987). Criminal negligence is defined as “failpng] to perceive a substantial and unjustifiable risk” and thereby engaging in “a gross deviation from the standard of care that a reasonable person would observe in the situation.” N.Y. Penal Law § 15.05(4) (McKinney 1987).
Under New York state law, a defendant’s actions constitute a “sufficiently direct cause of death” if “the ultimate harm is something which should have been foreseen as being reasonably related to the acts of the accused.” People v. Kibbe, 35 N.Y.2d 407, 412, 321 N.E.2d 773, 776, 362 N.Y.S.2d 848, 851-52 (1974). In Kibbe, the court found that defendants’ act of robbing, partially undressing, and then abandoning a severely intoxicated man on the side of the road would foreseeably lead to death. The victim died when a driver accidentally collided with him. The court found that the driver’s act did not constitute a superseding and intervening cause which would relieve defendants of liability for murder. Id. at 413, 321 N.E.2d at 776, 362 N.Y.S.2d at 852.
Green argues that the fact that she had administered almost 3,000 colonic treatments without problems until the demise of decedent shows that his death was not foreseeable. The government counters with a quote from an article written by Green, saying “[p]ersons interested in co-lonics should especially avoid colonic methods that use a high pressure pump to force water into the colon.” Green denies that her device was a high pressure system. Forty pounds per square inch, however, is clearly a high level of water pressure. Green’s experience renders any denial of knowledge on this point incredible. Given the extreme force provided by Green’s device and her own statements regarding the danger of high pressure systems, a jury could have reasonably concluded that Green should have been aware of a risk of death to her customers.
Green also argues that the decedent was in complete control of the procedure and therefore his acts constituted a superseding and intervening cause sufficient to relieve her of liability. Green’s argument is not persuasive. Green not only provided her client with the instruments of his death but she also encouraged him and other customers to crimp the outflow tube to increase the pressure, thereby heightening the likelihood of death. See Duffy, 584 N.Y.S.2d at 741, 595 N.E.2d at 816, 79 N.Y.2d at 616. Thus, the record contains sufficient evidence of both foreseeability and causation.
The record also contains evidence of the appropriate standard of care and Green’s violation of it. One medical expert described Green’s device and her recommended method of use as dangerous and without medical justification. An expert in hydrocolon therapy testified that a client receiving a colonic should be under constant supervision. Green ■ admittedly did not remain with her client throughout the whole procedure, nor did she witness his decline and death. A jury could rationally conclude that during the two to six hours between the rupture of the client’s colon and his death, a reasonable person, especially one knowledgeable about colonics, would have investigated. There is sufficient evidence that Green’s conduct in providing the decedent with the colonic device, in advising him to use it in a dangerous manner and in failing to supervise the procedure constituted a gross violation of the relevant standard of care.
B. Revocation of Probation for Failure to Pay Fine
As the Supreme Court has stated, “the full panoply of rights due a defendant ... does not apply to parole revocations.” Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). In particular, “[i]f the probationer willfully refused to pay [a fine imposed by the court] or failed to make sufficient bona fide efforts legally to acquire the resources to pay, the court may revoke probation and sentence the defendant to imprisonment.” Bearden v. Georgia, 461 U.S. 660, 672, 103 S.Ct. 2064, 2073, 76 L.Ed.2d 221 (1983). Only if the probationer has made good faith efforts to pay a fine and has failed must the court consider alternatives to imprisonment. Id.
In this case, the sentencing judge made a specific finding of Green’s “willful refusal” to pay the fine imposed by the court. Peo-pie v. Green, Indictment No. 8700/86, at 8 (N.Y.Sup.Ct. June 21, 1991) (transcript of bench order). Although the probation officer constantly reminded Green of her duty to pay the fine, Green said she wanted to pay her appellate attorney first. When told of her obligation to seek employment in order to obtain- the necessary funds, defendant responded that God was her source and she would survive with the help. of her friends.
Green raises two arguments against the revocation of her probation, but neither has merit. First, she contends that, in declining to find indigency, the sentencing court impermissibly relied on petitioner’s change of address to a “high-rent district”. Second, she claims that she did not receive adequate notice that her probation could be revoked for failure to pay the fine before the end of the probationary period.
During resentencing, the district court noted that petitioner changed her address to 108 East 38th Street without informing the probation office. The judge characterized East 38th Street as a high-rent district, but he did not rely solely on this fact in finding a willful refusal to pay the fine. Green v. Abrams, 798 F.Supp. 149, 154-155 (S.D.N.Y.1992). There was more than adequate evidence of plaintiff’s willfulness and lack of effort with regard to payment of the fine. We perceive no constitutional violation on this ground.
Green further contends that the written conditions of probation were so vague as to deprive her of due process. The written order did not designate a particular time for payment, but it clearly conditioned the continuation of probation on payment of the fine. According to a statement signed by her, Green understood that the court could revoke probation if she violated a condition. Id. at 154. The probation officer’s constant urging to pay the fine should have put Green on notice that immediate attempts at payment were included in the conditions of probation.
In conclusion, the state court did not violate Green’s due process rights when it revoked her probation for failure to pay the fine imposed on her. The sentencing court properly found that Green willfully refused to pay the fine based on her grudging response to her probation officer’s frequent reminders to pay and her professed intention to pay her appellate attorney first. The state court violated no constitutional provision in rejecting Green’s attempt to arrange periodic payments to pay the fine. This offer was made only after a probation violation had been found and her sentence had been revoked. If anything, the offer underlined the prior lack of good faith effort. In addition, the written conditions of probation gave Green sufficient notice of possible revocation despite their failure to specify a particular date for payment. Accordingly, the district court’s denial of a writ of habeas corpus is affirmed.
C. Appointment of Counsel
As to petitioner’s motion to appoint the person of her choosing as counsel, it is well settled in the Second Circuit and elsewhere that “there is no constitutional right to representation by counsel in habe-as corpus proceedings.” United States ex rel. Wissenfeld v. Wilkins, 281 F.2d 707, 715 (2d Cir.1960); LeFave & Israel, 3 Criminal Procedure § 27.8, at 392-93 (1984). Moreover, an indigent defendant has no right to choose the particular counsel appointed to represent her. See, e.g., Pizarro v. Bartlett, 776 F.Supp. 815, 819 (S.D.N.Y.1991). Finally, this record does not sustain a finding of indigency. Green’s motion to appoint counsel is denied.
CONCLUSION
In short, we affirm the district court’s denial of a writ of habeas corpus and we deny petitioner’s motion to appoint counsel. Petitioner’s motion for clarification of the bail order issued by this court is rendered moot by this decision.
. The Appellate Division of the Supreme Court affirmed Green's conviction and the revocation of probation on May 19, 1992. Leave to appeal to the New York Court of Appeals was denied on May 27, 1992.
. An appeal from a denial of a writ of habeas corpus may not proceed in the absence of a certificate of probable cause issued by a district or a circuit judge. Fed.R.App.P. 22(b). The district judge who denied the writ in this case issued a "certificate of reasonable doubt” on August 12, 1992. It seems apparent from context that the judge intended to issue a certificate of probable cause. Neither party argues otherwise.
. A common indication of rupture is an intense, knife-like pain felt within seconds. Although the cecum contains nerves which sense pressure only, the nerves in the abdominal wall may translate this pressure into pain. Therefore, while the patient may not sense a colon about to burst, he will normally notice the rupture as it occurs.
The only evidence that decedent noticed the rupture of his colon is the testimony of another customer who heard a man call out "Sophie” from either the reception area or the treatment room several times during the evening. The speaker did not indicate that he was in pain and the voice was never positively identified as belonging to the decedent.
. See also Wright v. West, - U.S. -, - -, 112 S.Ct. 2482, 2485-86, 120 L.Ed.2d 225 (1992) (reaffirming the standard set forth in Jackson v. Virginia).
. See also People v. Duffy, 79 N.Y.2d 611, 616, 595 N.E.2d 814, 816, 584 N.Y.S.2d 739, 741 (1992) (suicide is not a superseding and intervening cause of death that relieves defendant of liability for giving decedent bullets and a gun after decedent expressed suicidal impulses); but cf. People v. Pinckney, 38 A.D.2d 217, 219, 328 N.Y.S.2d 550, 552 (1972) (a person who sells heroin and a syringe to someone who dies after injecting the drug is not guilty of criminally negligent homicide because "[ajlthough it is a matter of common knowledge that the use of heroin can result in death, it is also a known fact that an injection of heroin into the body does not generally cause death”), aff’d, 32 N.Y.2d 749, 297 N.E.2d 523, 344 N.Y.S.2d 643 (1973). Pinckney is distinguishable because the New York state legislature, knowing the possible results of heroin use, chose specific penalties for the sale of heroin. Id. at 220-21, 328 N.Y.S.2d at 553-54.
. Green & Firth, Welcoming the Water Angel 8-9.
. Green argues that all the evidence adduced at trial was circumstantial and that the judge’s failure to instruct the jury to that effect violated her due process rights. The record, however, reflects direct as well as circumstantial evidence. Green admitted that she knew high-pressure colonics were dangerous, that she designed the device, and that she gave it to decedent for his use. It is uncontroverted that decedent’s use of the device killed him.
. The district court allowed Green to proceed in forma pauperis in the habeas corpus action to permit her to preserve her argument as to indi-gency. Green v. Abrams, No. 92 Civ. 3819, at 1, 1992 WL 230182 (S.D.N.Y. August 27, 1992) (memorandum opinion). That determination, standing alone, does not suggest that indigency rather than bad faith was the reason for her failure to pay the fine.
. Green also argues that the court violated the New York Criminal Procedure Law by failing to specify the date of payment. Procedural errors, however, are not appropriate bases for a writ of habeas corpus. See Estelle v. McGuire, - U.S. -, -, 112 S.Ct. 475, 480, 116 L.Ed.2d 385 (1991).
.An alternative basis for the judge’s decision to revoke probation could have been Green's change of address without notifying the probation office. United States v. Brown, 899 F.2d 189, 193 (2d Cir.1990) ("the probationer who fails to keep his probation officer informed of his residence may be found no longer to merit probation”).
. Neither the probation officer nor Green was aware of an exact deadline, but "on each visit" the probation officer informed Green that "this money had to be paid.” J.A. at 94.
. We also note that Green was able to obtain representation without any promise of payment by this court. As we have stated in the past, the law requires "that the indigent be unable to obtain counsel before appointment will even be considered.” Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir.1986), cert. denied sub nom., Hodge v. Colon, — U.S. -, 112 S.Ct. 596, 116 L.Ed.2d 620 (1991); see also Cooper v. A. Sargenti Co., 877 F.2d 170, 173 (2d Cir.1989) (quoting Hodge).
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_r_bus
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
CONTINENTAL GRAIN CO. v. DANT & RUSSELL, Inc.
No. 9572.
Circuit Court of Appeals, Ninth Circuit.
March 29, 1941.
Jay Bowerman and John H. Hall, both of Portland, Or., for appellant.
Wood, Matthiessen & Rankin and Erskine B. Wood, all of Portland, Or., for appellee.
Before WILBUR, GARRECHT, and STEPHENS, Circuit Judges.
WILBUR, Circuit Judge.
The appellant invoked the admiralty jurisdiction of the United States District Court for the District of Oregon hy applying to that court for an order compelling arbitration of certain obligations growing out of a charter party entered into between appellant and appellee. The agreement for arbitration is contained in the charter party and provides that should any dispute arise between the owners and the insurers the matter in dispute shall be referred to three persons in New York, one to be appointed by each of the parties, and the third by the two so chosen. It was provided that “their decision or that of any two of them, shall be final, and for the purpose of enforcing any award, this agreement may be made a rule of the court. The arbitrators shall be commercial men.”
The petition showed the nature of the claim made by it upon the appellee for $1,-949.04 growing out of the charter party, that the appellee had refused to pay the sum alleged to be due and that the appellant had demanded arbitration pursuant to the charter party and had named its arbitrator Geo. M. Bress, 80 Broad Street, New York; that the appellee had refused to arbitrate or to name an arbitrator. Appellant prayed that the arbitration proceed in accordance with §§ 4 and 5 of the United States Arbitration Act, 9 U.S.C.A. §§ 4 and 5, for costs and for further relief.
The appellee, after denial of its motion to dismiss the petition, admitted the execution of the charter party, admitted the existence of a dispute arising therefrom, denied liability, alleged that it refused to arbitrate the matters involved, and that it was unwilling "to do so at New York because its place of business was Portland, Oregon, and that it believed it had a good and meritorious defense to the petitioner’s claim; alleged that the witnesses needed to substantiate its claims resided in Portland, and that the appellant had an office and place of business in Portland; alleged it was willing to arbitrate the matter at Portland, Oregon, or within the District of Oregon, but that it would be unfair and unjust to require respondent to be dragged across the country to arbitrate in New York. The court ordered arbitration “in the manner provided for in the agreement, provided the hearing and proceedings under such agreement shall be within the district in which the petition for the order directing such arbitration is filed and provided that petitioner Continental Grain Company fully cooperate therein and proceed with said arbitration.” Appellant gave notice of appeal.
The appellee, without moving to dismiss the appeal for lack of jurisdiction, has suggested that in view of the decision of this court and the Supreme Court in Schoenamsgruber v. Hamburg American Line, 294 U.S. 454, 55 S.Ct. 475, 79 L.Ed. 989; Id., 9 Cir., 70 F.2d 234, it doubts whether or not the order appealed from is a final order of the court and appealable as such.
It is true, as held in the above case, that where an action has been brought upon an obligation and the defendant, as a defense, invokes an agreement to arbitrate the dispute in order to procure a stay of the trial of the action until the arbitration has been completed, the order for the stay is not a final order because further proceedings are contemplated after the arbitration is completed. 9 U.S.C.A. §§ 3, 5. The appellant is proceeding in conformity with § 4 of the Arbitration Act and the final and only order requested of the court is the order provided for in that section directing “the parties to proceed to arbitration in accordance with the terms of the agreement.”
The arbitration agreement herein does not provide for the entry of the award as a judgment of the court as it might have done if the agreement had so provided. 9 U.S.C.A. § 9. In the absence of such an agreement the award cannot be summarily entered as a judgment of the court. Le-high Structural Steel Co. v. Rust Engineering Co., 61 App.D.C. 224, 59 F.2d 1038 ; 9 U.S.C.A. § 9. It follows that the order appealed from is a final order of the court and that this court has jurisdiction of the appeal. The only point raised by the appellant is that the order of arbitration which is requested should have provided for a hearing in New York. This point is not well taken.
The statute expressly provides that the hearing and proceeding shall be within the district in which the petition for the order directing the arbitration is filed. In the statute (Act of Feb. 12, 1925, ch. 213, § 4, 43 Stat.L. pp. 883, 884, 9 U.S.C.A. § 4) the clause under consideration with reference to the place of the arbitration is in the form of a proviso reading as follows: “ * * * the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement: Provided, That the hearing and proceedings under such agreement shall be within the district in which the petition for an order directing such arbitration is filed.” In the compilation of the act for the United States Code the words “provided that” are omitted. We mention this distinction although there is no difference between the meaning of the section as printed in the statute and in the code. In both it is stated that the hearings and proceedings under the agreement shall be within the district in which the petition for an order directing such arbitration was filed.
The appellant challenges the right of the court to order the arbitration within the district of Oregon because such an order does not conform to the agreement of the parties for an arbitration in New York. Prior to the enactment of the United States arbitration act (1925) such agreements could not be enforced in the courts of the United States. If there could be any doubt of the power of the legislature to limit the right of arbitration to one conducted within the jurisdiction of the district court ordering the arbitration, it must be dispelled by the consideration that Congress could attach any limitation it desired to the right to enforce arbitration in the federal courts, that it has made a condition that the arbitration be held in the district where the court sits, that the contract in question was executed with a knowledge that Congress had so provided, and that the appellant had invoked the jurisdiction of a court other than that having jurisdiction in New York to enforce the agreement. The appellant, having invoked the jurisdiction of the United States District Court for Oregon is hardly in a position to complain that it has exercised that jurisdiction in accordance with the statute giving it jurisdiction.
The appellee, in aid of the interpretation of the statute as applied by the district court, has called attention to the discussion with reference to that matter on the floor of the United States Senate wherein the proviso above mentioned was added by way of amendment. The reference is to the statement of Senator Sterling, in charge of the bill before the Senate. The appellant contends that the court cannot consider this discussion unless the terms of the act are so ambiguous as to require recourse to such discussion. He cites in support of that proposition 59 C.J. 1017, § 604, and Pennsylvania R. R. Co. v. International Coal Mining Co., 230 U.S. 184, 33 S.Ct. 893, 57 L.Ed. 1446; Omaha & Co. B. St. Ry. Co. v. I. C. C., 230 U.S. 324, 33 S.Ct. 890, 57 L.Ed. 1501, 46 L.R.A.,N.S., 385.
It is sufficient for the purposes of this ‘decision to say that the statements invoked merely confirm the clear and obvious meaning of the statute and are not relied upon to change the clearly expressed intent of Congress.
Order affirmed.
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_standing
|
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 determine that the parties had standing?" 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".
CUMBERLAND FARMIS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 92-2008.
United States Court of Appeals, First Circuit.
Heard Jan. 5, 1993.
Decided Feb. 4, 1993.
Philip J. Moss, with whom Moon, Moss, McGill & Bachelder, P.A., was on brief, for petitioner.
Deborah E. Shrager, Atty., with whom Jerry M. Hunter, Gen. Counsel, Yvonne T. Dixon, Acting Deputy Gen. Counsel, Nicholas E. Karatinos, Acting Associate Gen. Counsel, Aileen A. Armstrong, Deputy Associate Gen. Counsel, and Peter Winkler, Supervisory Atty., were on brief, for respondent.
Before TORRUELLA, SELYA and STAHL, Circuit Judges.
TORRUELLA, Circuit Judge.
This case is before us on petition to review a decision and order of the National Labor Relations Board (the “Board”) filed by Cumberland Farms, Inc. (the “Company”), and the cross-application of the Board to enforce its order. The Board found that the Company violated §§ 8(a)(1) and (3) of the National Labor Relations Act (the “Act”), 29 U.S.C. §§ 158(a)(1) and (3) (1973), by engaging in coercive interrogation of its employees regarding their union activities, discharging employees because of these activities, and threatening to arrest a union agent while he distributed handbills on public property. Accordingly, the Board ordered the Company to reinstate the discharged employees with back pay, and to post notices admitting these violations and disclaiming future illegal action.
The Company challenges the findings of the Board, claiming that they are unsupported by substantial evidence on the record considered as a whole. We disagree and thus affirm the Board’s order.
THE FACTS
The record supports the Board’s finding of the following facts. The Company owns a dairy business that operates four plants, including one in Florence, New Jersey. In the summer of 1990, the United Food and Commercial Workers, Local 1360, United Food and Commercial Worker’s International, AFL-CIO (the “Union”) began organizing in this plant. Two employees, John Mariano and John Bartosh, distributed union authorization cards to the employees.
Shortly after they began the membership drive, their immediate supervisor, Company foreman John Messner, questioned them on several occasions regarding their actions and progress. Thomas Sweeney, the Company's Human Resources Director, also questioned Mariano about his union activities in the presence of Bartosh. Mariano and Bartosh admitted involvement with the drive.
On August 3, 1990, six days after Mariano and Bartosh began distributing Union authorization cards, the Company issued a letter to the employees urging them not to sign. At 5:30 p.m. of the same day, Emanuel Cavaco, the Company’s Manager of Dairy Operations, Robert Wood, the Florence plant manager, Sweeney, and plant engineer Allen Canney met with Mariano in a conference room and stated that they had received complaints about his distribution of union authorization cards. Mariano responded that he distributed them during non-working time. Cavaco contended, however, that given the number of complaints received, he must have engaged in these activities during working hours as well. The meeting became more confrontational when Cavaco accused Mariano of violating a Company no-solicitation rule. After further questioning Cavaco stated, “John, we took you out of the cooler; we put you in with the maintenance to learn something, and this is how you repay us. Do you have anything to say for yourself?” When Mariano said no, Cavaco suspended him indefinitely. Wood and Canney then escorted Mariano off the property and denied him access to his locker. Upon reaching the gate Wood said, “John, didn’t we just speak [about a salary increase] a ... week before this—and then you pull something like this? Do you have anything to say?”
Mariano left with the impression that the Company would further investigate. However, a week later, although no further inquiry was made, Mariano received a letter from the Company terminating him due to a “comprehensive investigation concerning the no-solicitation policies.”
On the day that Mariano was suspended, Cavaco, Sweeney, and Wood subjected Bar-tosh to a similar interrogation regarding alleged complaints against him for violation of the no-solicitation rule. Bartosh flatly denied these charges. Cavaco reminded Bartosh that the Company treated him favorably by moving him to the maintenance department and that he therefore “owed them.” Bartosh was then escorted off the Company premises after he locked his tools. When Bartosh returned to the plant to retrieve his tools, Wood fired him for having solicited on company property.
On August 16, various non-employee union organizers, including Mariano and Bar-tosh, distributed union handbills on the public highway near the Company’s plant entrance. Although the organizers were on public property, three Company security officers told one of them that they were on Company property and would be arrested if they did not leave. When they arrived, the Florence police officers indicated that, the handbillers were not violating the law.
STANDARD OF REVIEW
We uphold the Board’s findings of a violation as long as substantial evidence on the record as a whole supports them, even if we would have reached a different conclusion. 29 U.S.C. §§ 160(e) and (f).
ANALYSIS
I. Coercive Interrogation
Section 8(a)(1) of the Act protects employees from coercive interrogation regarding their union activities. NLRB v. Otis Hosp., 545 F.2d 252, 256 (1st Cir.1976). The existence of coercion is generally a factual issue and depends on the totality of the circumstances, id., including the setting of the interrogation and the status of the interrogators. P.S.C. Resources, Inc. v. NLRB, 576 F.2d 380, 383 (1st Cir.1978). An interrogation need not contain explicit threats to be coercive. NLRB v. Gogin, 575 F.2d 596, 600 (7th Cir.1978).
Given the circumstances of this case, we cannot conclude that the evidence does not support the Board’s findings regarding the coercive nature of the interrogations. A team of high level managers confronted Mariano and Bartosh shortly after they began their concerted activities, questioned them about their Union affiliation, and accused them of ingratitude. Moreover, during the confrontations, the managers denied Mariano and Bartosh access to the evidence against them, and in essence, denied them an opportunity to defend themselves. Accordingly, the Board reasonably found the interrogations coercive.
II. Interfering with Lawful Union Activities
An employer lacks a legitimate interest in interfering with union activities which occur away from the employer’s property. Threatening to call the police, in the presence of employees, to interfere with lawful union activity violates the Act. NLRB v. Schlegel Oklahoma, Inc., 644 F.2d 842, 843 (10th Cir.1981). In the present case, Company security officers threatened to have the union organizers arrested in front of Mariano and Bartosh, who as unfair labor practice dischargees, continued to retain employee status under the Act, see 29 U.S.C. § 152(3). Accordingly, the Board correctly concluded that the threat violated Section 8(a)(1) of the Act.
III. Discharge
When an employer discharges an employee for supporting a union, he violates the Act, 29 U.S.C. § 158(a)(3), unless he proves that he would have taken the same action in the absence of the employee’s union activities. NLRB v. Amber Delivery Serv., Inc., 651 F.2d 57, 68-69 (1st Cir.1981). The employer fails to meet this burden, however, if the proposed reason for discharge is shown to be a mere pretext to disguise discrimination. NLRB v. Pilgrim Foods, Inc., 591 F.2d 110, 118 (1st Cir.1979).
In reaching its determination on motive, the Board may consider the timing of the discharge, id. at 117, any differences in the application of disciplinary rules, NLRB v. S.E. Nichols, Inc., 862 F.2d 952, 959 (2d Cir.1988), cert. denied, 490 U.S. 1108, 109 S.Ct. 3162, 104 L.Ed.2d 1025 (1989), the procedures used for discharge, NLRB v. American Spring Bed Mfg. Co., 670 F.2d 1236, 1245 (1st Cir.1982), the investigation of the purported reasons for the discharge, Sioux Products, Inc. v. NLRB, 684 F.2d 1251, 1259 (7th Cir.1982), and the purported justifications for the ultimate actions, American Spring Bed Mfg. Co., 670 F.2d at 1245.
We conclude that substantial evidence on the record as a whole supports the Board’s findings regarding the discharges of Mariano and Bartosh. The Company admits that it discharged the employees for distributing union authorization cards. It argues, however, that by distributing those cards, Mariano and Bartosh were soliciting, and that the no-solicitation rule therefore justified the discharges.
We conclude, as did the Board, that the Company’s reliance on the no-solicitation rule was a pretext to justify discharges for engaging in union activity. At the time of the discharges, the Company knew that Mariano and Bartosh were the in-plant leaders of the union’s organizational effort. The Company then coercively interrogated them and then discharged them based solely upon a cursory investigation, affording them no opportunity to defend themselves. Moreover, the Company’s employees were generally unaware of the no-solicitation rule, much less its enforcement. Indeed, Mariano and Bartosh were the only employees that the Company ever disciplined for alleged violations of the no-solicitation rule. Accordingly, the Board reasonably determined that the no-solicitation rule was merely a pretextual justification for an illegal discharge.
In a final attempt to salvage the validity of the discharges, the Company claimed that Mariano and Bartosh engaged in time card irregularities. However, the Company failed to even mention this serious accusation at the time of the employees’ discharges. Thus, the Board reasonably afforded no credit to this argument.
CONCLUSION
We have considered all other allegations made by the Company and conclude that they lack merit. The Board’s judgment was rational and effectively promotes the goals of the Act. As such, we affirm the Board’s order.
The petition for review is denied and the Board’s request for enforcement of its order is granted.
Costs to the Board.
. The Board’s order is reported at Cumberland Farms, Inc., 307 N.L.R.B. 231 (1992).
. On one occasion, Messner said, "I heard you guys are giving out union cards. I'm all for the union; how’s the guys responding? Are you getting a lot signed?” On another occasion, he said: "How are you guys doing? Have you got a lot of cards signed? How’s the guys responding? I’m all for the union.”
.Sweeney asked, "Hey, John, ... anything new I should know about around here, like the union?”
Question: Did the court determine that the parties had standing?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_post_trl
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on some post-trial procedure or motion (e.g., allocating court costs or post award relief) favor the appellant?" This doe not include attorneys' fees, but does include motions to set aside a jury verdict. 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".
Lucille Dorothy PELTIER et al., Plaintiffs, Appellees, v. Robert Ernest PELTIER et al., Defendants, Appellants.
No. 76-1478.
United States Court of Appeals, First Circuit.
Submitted Jan. 6, 1977.
Decided Feb. 9, 1977.
Aram K. Berberian, Cranston, R. I., on brief for appellants.
Michael F. Horan, Pawtucket, R. I., on brief for Lucille Dorothy Peltier, appellee.
Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, BOWNES, District Judge.
Of the District of New Hampshire sitting by designation.
PER CURIAM.
This appeal derives from attempts by several parties to remove divorce actions from the state to federal court. Appellants — all of whom are represented by the same attorney, who has unsuccessfully attempted the same course before — undertook to remove the divorce actions in which they were involved from the Rhode Island Family Court to the United States District Court for the District of Rhode Island; that court ruled that the cited removal statute, 28 U.S.C. § 1443, did not give it jurisdiction over this type of action, and the cases were remanded to the state court. This appeal followed. See 28 U.S.C. § 1447(d).
The only conceivably relevant portion of § 1443 is § 1443(1), which provides for removal by a person “who is denied or cannot enforce in the courts of [a] State a right under any law providing for the equal civil rights of citizens of the United States . .” The Supreme Court has construed this statutory language as being limited to “any law providing for specific civil rights stated in terms of racial equality.” Georgia v. Rachel, 384 U.S. 780, 792, 86 S.Ct. 1783, 1790, 16 L.Ed.2d 925 (1966). See Johnson v. Mississippi, 421 U.S. 213, 219-20, 95 S.Ct. 1591, 44 L.Ed.2d 121 (1975); Milligan v. Milligan, 484 F.2d 446, 447 (8th Cir. 1973); Pennsylvania ex rel. Gittman v. Gittman, 451 F.2d 155, 156-57 (3d Cir. 1971). Given this authoritative and binding construction, it is plain that the district court, as it ruled, was without jurisdiction under § 1443.
Appellants also challenge the propriety of the district court’s award of attorneys’ fees in appellees’ favor. Although the awarding of attorneys’ fees is not usual, Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 257-59, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975); Diaz Gonzalez v. Colon Gonzalez, 536 F.2d 453, 458 n.17 (1st Cir. 1976), they may be awarded in those instances where a party “has acted in bad faith, vexatiously, wantonly, or for oppressive reasons.” F. D. Rich Co. v. Industrial Lumber Co., 417 U.S. 116, 129, 94 S.Ct. 2157, 2165, 40 L.Ed.2d 703 (1974). See Newman v. Piggie Park Enterprise, Inc., 390 U.S. 400, 402 n.4, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968); Cordeco Development Corp. v. Santiago Vasquez, 539 F.2d 256, 262-63 & nn. 10-12 (1st Cir.), cert. denied, - U.S. -, 97 S.Ct. 488, 50 L.Ed.2d 586 (1976). The district court indicated full awareness that attorneys’ fees should be awarded under the bad faith exception “only in extraordinary circumstances and for dominating reasons of justice.” Cordeco Development Corp. v. Santiago Vasquez, supra at 263 (citations omitted). The court stated that a precondition to such an award is the finding of an “intentional institution of an action which one knows to be fictitious and wholly without merit and which is done for the specific purpose of frustrating and harassing lawfully instituted legal procedures.” Applying this strict standard, the court concluded that it should nonetheless impose attorneys’ fees because of the bad faith of appellants’ attorney. The court stated that “[t]he inescapable conclusion is that Mr. Berberian [the attorney] knew the removals were frivolous and that he instituted them for oppressive reasons” and that “frivolous and groundless petitions for removal were employed by Mr. Berberian in bad faith with the intent to delay and frustrate the Family Court’s jurisdiction.”
We have carefully reviewed the entire record with particular view to the adequacy of the finding of bad faith, and we are persuaded that the court did not abuse its discretion in making this determination and in awarding attorneys’ fees.
Affirmed. Double costs on appeal to appellees.
. See, e. g., Champion v. Champion, 539 F.2d 702 (1st Cir. 1976) (an appeal which we characterized as “frivolous”); Tetreault v. Tetreault, C.A. 75-0226 (D.R.I.), appeal dismissed on appellant’s motion, No. 75-1326 (1st Cir. Sept. 12, 1975).
. Appellant contends, in essence, that the Rhode Island Family Court discriminates against males in divorce actions and that § 1443 should be read as permitting removal in cases involving such alleged discrimination. He argues that recent Supreme Court decisions, such as Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973), militate in favor of applying § 1443 to cases of sexual as well as of racial discrimination.
Appellant has not asserted — nor do we know of — any other statute which is properly available for removal of a divorce action. See Milligan v. Milligan, 484 F.2d 446 (8th Cir. 1973). Cf. Armstrong v. Armstrong, 508 F.2d 348 (1st Cir. 1974); H. Hart & H. Wechsler, The Federal Courts and The Federal System, 1189-92 (2d ed. 1973).
. The district court quite properly noted the distinction between conduct cognizable under the bad faith exception and “tenacious and persistent litigation of unsettled and novel issues.” See In re Bithoney, 486 F.2d 319, 322 (1st Cir. 1973).
. Among the reasons cited by the district court for its finding of bad faith was the lack of “even a modicum of supportive logic” for the proposition that § 1443 would authorize removal. The court concluded “that Mr. Berberian knew the removals were frivolous and that he instituted them for oppressive reasons.” The court obviously agreed with the suggestion of the moving spouses that the only purpose of the removals was “to frustrate the Family Court proceedings and hinder the movants in their attempt to acquire relief [viz. temporary support].”
Question: Did the court's ruling on some post-trial procedure or motion (e.g., allocating court costs or post award relief) favor the appellant? This doe not include attorneys' fees, but does include motions to set aside a jury verdict.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_geniss
|
F
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
REYNOLDS et al. v. BOARD OF PUBLIC INSTRUCTION FOR DADE COUNTY, FLA., et al.
No. 11224.
Circuit Court of Appeals, Fifth Circuit.
April 23, 1945.
Charles H. Hyde, of Coral Gables, Fla., and Edward L. Semple, of Miami, Fla., for appellants.
J. Velma Keen, of Tallahassee, Fla., R. W. Shackleford, of Tampa, Fla., and John J. Lindsey, of Miami, Fla., for appellees.
Before SIBLEY, WALLER, and LEE, Circuit Judges.
SIBLEY, Circuit Judge.
The public schools of Dade County Florida, have about 40,000 pupils, and 1400 principals and teachers, about one-fifth of them colored. Control is vested by State laws in a Board of Public Instruction composed of five citizens elected for a term of four years, and a Superintendent of Public Instruction elected for a like term and ex officio a member of the Board.
The complaint was filed by Hubert C. Reynolds as a class suit in behalf of himself and 262 other colored principals and teachers in the public schools against the Board of Public Instruction of Dade County, and James T. Wilson, the Superintendent of Public Instruction in that County. The allegation is that the defendants, acting for the State of Florida, have “a policy, custom and usage” by which they pay the white principals and teachers of the County higher salaries than they pay the colored principals and teachers, “solely because of their race and color”, contrary to Article XII, Sects. 1 and 12 of the Florida Constitution, which provide for a uniform system of public free school in which colored children shall be taught in separate schools from the white children, but with impartial provision for both; and contrary to the provision of the Fourteenth Amendment of the Constitution of the United States, forbidding a State to deny the equal protection of the laws. The relief prayed is a declaratory judgment that “the policy, custom and usage” is contrary to the Fourteenth Amendment, and an injunction against continuing the same. To show the existence of an actual controversy authorizing a declaratory judgment it is alleged, and admitted, that on Nov. 4, 1941, the colored teachers had sent the Board a petition for the equalization of salaries, with a letter calling attention to the unconstitutionality of the discrimination. It is alleged the petition was entirely ignored. The proof is that at once the then existing salary schedule, which on its face classified teachers as white or colored with different salaries, was abolished, and soon after a schedule adopted which specified other things as the basis of classification, with uniform salaries without distinction as to color; and a reclassification of each teacher under it was undertaken. Without further negotiation or contention the complaint was filed on Feb. 17, 1942.
We much doubt whether a concrete, actual controversy is shown within the meaning of the declaratory judgment statute, 28 U.S.C.A. § 400; or that any specific conduct is pointed out that could be enjoined. No individual is alleged or shown to have been wrongly reclassified, or to have protested his classification. The principals and teachers as a class had taken no further action nor made any further objection when they brought suit. The district judge, however, held there was an actual controversy, and the parties here argue only the merits of the case, so we consider only the merits.
The position of appellants is that the discrimination openly practiced before their petition was presented to the Board has been covertly continued since; or as their brief states it, “that the various systems of rating and grading were evolved for the purpose of lending credibility to defendants’ 'claim of non-discrimination, when as a matter of fact they are a sham and a subterfuge behind which to hide a fixed and determined intention of discrimination”. That fact issue was tried by the district judge and his finding is: “At the time of the institution of this action substantially lower salaries were paid to the group composed of negro teachers and principals than were paid to the white teachers and principals as a group. The differential in the salaries so paid was not occasioned by the arbitrary act of the defendants, nor was such differential the result of an intentional, deliberate or systematic scheme to discriminate against the negro teachers and principals as a group, but resulted from the exercise of the judgment and discretion of the defendants as public officials in evaluating the worth and effectiveness of the respective groups. Prior to the commencement of this suit the defendants had adopted a new salary schedule by which, for the first time, the individual worth of teachers to the educational system was to be evaluated. Under the terms of said schedule a Rating Committee was appointed which consisted of five members, and there is no evidence which would justify an inference that any member of this Committee was possessed of conscious race prejudice. * * * The said Rating Committee appears to the court to have been reasonably competent and qualified from a professional standpoint to perform their duties as provided in the salary schedules, and it is further found as a fact that the Committee did approach their task in a conscientious and professional manner. The various classifications of both white and negro teachers and principals as determined by the Committee were without discrimination against the latter. * * * I further find that pri- or to the trial of this cause, each teacher and principal, both white and negro, was classified and rated, and that this was done conscientiously on the basis of determining teacher value and worth under the terms of the schedule upon a written rating sheet, and without consideration of the race or color of any teacher or principal, and that salaries are now being determined and paid on the classification and rating so done.”
The district judge in these findings and in his conclusions of law distinguished between what had happened before Nov. 4, 1941, what was happening at the filing of the suit Feb. 17, 1942, and the situation at the time of the trial which was concluded in March, 1944. The decision rests on the last finding, because the relief prayed, towit a general declaratory judgment that an unconstitutional discrimination is being carried on, with an injunction against its continuance, could only be operative in futuro. The salary schedule of 1940 appeared on its face to make a col- or discrimination. That a general average justice may have been accomplished under it does not justify it. Its wording would prevent doing equal justice to many individuals. It was properly abolished on Nov. 5, 1941, and a new salary schedule was adopted aimed at rating on the same basis the teacher worth of each individual teacher, white or colored. , This was months before the filing of the suit and years before the trial. The old schedule, classifying teachers by color, was a thing of the past and not a matter to be adjudicated. But the judge in his conclusions of law held it, and the results under it, to be relevant evidence on the issue of bad faith and discriminatory intent continued under the new schedule. This holding we approve. The above quoted findings, however, do not relate to the old schedule, but to the new, first at the date of filing the suit, and next at the date of the trial. They mean not that group discrimination was intentionally continued, but that individual classification was made irrespective of color, and that the continuance of disparity between groups was not a continuation of class discrimination, but the result of honest effort to classify the individuals.
The evidence fully sustains these findings. The complainants offered as testimony only the interrogatories of James T. Wilson, the Superintendent of Education, for seven years past, and of Dan J. Conroy, Supervisor of Negro Education, which seem later to have been excluded, but both appeared as witnesses for the defense, and testified in great detail. They were both on the Rating Committee, which was composed wholly of professional teachers. No member of the defendant Board, elected by the people, was on it except that Wilson was ex officio a Board member. Their evidence, as also that of others who testified for the defense, fully and without contradiction supports the above quoted fact-findings. Complainant’s only other evidence is the schedule of present salaries, which still shows that on an average and as a group the negro teachers and principals are not paid as high salaries as the white. This fact is now principally stressed.
The explanation the witnesses give is in brief this: Before November, 1941, the teachers and principals were classified as white and colored, the latter with lower salaries. The Board itself had already for six months recognized that this basis of classification was wrong, and a member had attended an educational conference to obtain better ideas. At the Board’s meeting on Sept. 5, 1941, on its minutes it expressed its purpose to revise the salary schedule so as to pay teachers in line with their teaching abilities, and that the Superintendent take steps to give tests to all teachers, and in the meantime make only tentative contracts with them. The Superintendent was working on the kinds of tests and the points to be considered in rating teachers when the petition of the colored teachers was handed him and by him presented to the Board on November 5, 1941. The Board at once suspended the old salary schedule, and on Nov. 26 adopted one according to which the new tests and ratings were to be made for each individual without reference to color. This was amended twice before the trial in March, 1944, to make it more workable. Under it the testimony is that the same tests in the same room and at the same time were given the new teachers, both white and colored; and the old teachers were tested alike from time to time, until all were classified. The new basis of individual classification resulted in the change in the salary of many individuals, both white and colored, though it remained true that as a group the white were rated higher than the colored as a group-. The witnesses all said this was not due to any prejudice or discriminatory purpose, but because on the average the negroes were not so well qualified in education, background, personality, and other things required by the schedule to be considered in classifying them. The Director of Instruction said this: “The negro is not an inferior race. The negro is an undeveloped race, as we know him in the South; and I believe from my educational training and my experience with the negro that if you give him the same'training, the same background, the same food, the same environment, he will become and be as capable a man as a white man. That has not prevailed in Dade County, and it does not prevail in Dade County at the present time. I say it with all tolerance and great sympathy for the problem which we face.” It was pointed out also that the negro colleges from which teachers come are not yet the equal of the white colleges, and that negroes who had graduated in the northern white colleges proved better equipped than others. There was also a much narrower field to select the negro teachers from, for their applications were not numerous. On the other hand Miami was overflowing with high grade white teachers attracted there by the climate, so that in the last school year, notwithstanding the war conditions, 400 vacancies were filled with high-class white teachers without difficulty. The Superintendent testified that the continuance of the disparity between the average salaries of white and colored teachers, notwithstanding the individual classification had made many changes in individual salaries, was due to the fact that the old faulty schedule had after all done substantial average justice.
The trial judge saw and heard the witnesses testify, and believed them. We do, too. We are much impressed by a fact he did not mention. The amended salary schedule contains this provision: “If any employee he dissatisfied with the rating received, an appeal may be made to the Board and the Board shall promptly make available, at no expense to such employee, an examination under the supervision of the National Committee on Teacher Examinations. The result of the findings of the National Committee on Teacher Examinations shall be final and the said employee shall be increased or decreased in salary in accordance with said finding.” Not a single appeal to this disinterested arbiter has been taken. Where all rating is on an individual basis, it is impossible that there should be a class discrimination except against members of the class. No case of individual unfairness has been revealed by an appeal and no witness has testified to any, though unintended errors are admitted.
We recognize that while the equal protection clause of the Fourteenth Amendment makes no mention of race or color, and permits reasonable classifications and the exercise of reasonable discretion by officials wielding State power, still a distinction in awarding public employment or compensation on no better basis than mere race or color would generally be arbitrary and forbidden. This was held as to public school teachers in Alston v. School Board, 4 Cir., 112 F.2d 992, 130 A.L.R. 1506, and no contention to the contrary is made in this case. We recognize, too, that equal protection may be denied, not only by arbitrary discrimination in legislation, or in quasi-legislation such as this Board’s establishment of schedules of classification and the resulting salaries, but also by administration “with an evil eye and unequal hand.” Yick Wo v. Hopkins, 118 U.S. 356, 373, 6 S.Ct. 1064, 1073, 30 L.Ed. 220. This case is rested squarely on the finding that here there is neither.
It is lastly argued that the Board filed some special defenses asserting that a difference in salaries of white teachers as a group and colored teachers as a group might be justified by the facts that the education of the former cost them more; that they had as teachers to live more expensively; and that the law of supply and demand might so result. These defenses were not tried out. No evidence was offered to support them. The evidence given is that no differences were in fact made for any such reason; and that indeed there was an over-supply of white teachers. We express no opinion as to whether differences so based would be arbitrary, or valid.
The judgment is affirmed.
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
|
songer_opinstat
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam.
Harry L. CUMBERLAND, Appellant, v. WARDEN, MARYLAND PENITENTIARY, Appellee.
No. 7026.
United States Court of Appeals Fourth Circuit.
Argued Nov. 7, 1955.
Decided Nov. 9, 1955.
Harry L. Cumberland, pro se, on brief. James H. Norris, Jr., Sp. Asst. Atty. Gen., of Maryland (C. Ferdinand Sybert, Atty. Gen., of Maryland, on brief), for appellee.
Before PARKER, Chief Judge, DO-BIE, Circuit Judge, and BARKSDALE, District Judge.
PER CURIAM.
This is an appeal from an order denying a petition for a writ of habeas corpus by a prisoner who is held in custody under the judgment of a Maryland State Court. The appeal must be dismissed for lack of the certificate of probable cause required by 28 U.S.C. § 2253. In addition, it is perfectly clear that the appeal is entirely without merit. The questions which appellant sought to raise by the writ of habeas corpus have been passed upon by the Court of Appeals of Maryland in denying to appellant leave to appeal from denial of habeas corpus by a Maryland state judge. Cumberland v. Warden, 205 Md. 646, 109 A.2d 66, 67, certiorari denied 348 U.S. 929, 75 S.Ct. 344. In that case the court said:
“We have repeatedly held that after trial and conviction the legality of arrest cannot be inquired into upon habeas corpus. Spence v. Warden, 204 Md. 661, 103 A.2d 345. Nor can the extent or legality of his initial detention. Bowie v. Warden, 190 Md. 728, 60 A.2d 185; Taylor v. Warden, 201 Md. 656, 92 A.2d 757; Fisher v. Swenson, 192 Md. 717, 64 A.2d 124. He admits that counsel was appointed to defend him, and there is no allegation that he complained to the court as to the conduct or competency of the counsel appointed. Gillum v. Warden, 200 Md. 656, 90 A.2d 173; Thanos v. Superintendent, 204 Md. 665, 104 A.2d 926. Nor is there any allegation that he objected to the pleas of guilty entered by his counsel. Counsel, of course, had a right to speak for the accused both in the matter of jury trial and plea of guilty. Ahern v. Warden, 203 Md. 672, 100 A.2d 645; Adkins v. Warden, 196 Md. 652, 75 A.2d 772; State ex rel. Freeland v. Warden, 193 Md. 696, 65 A.2d 886; Battle v. Warden, 190 Md. 720, 60 A.2d 182. If the defendant acquiesces, the point could not be raised even on direct appeal where the scope of review is far wider. Banks v. State, 203 Md. 488, 497, 102 A.2d 267; Rose v. State, 177 Md. 577, 581, 10 A.2d 617. Of course, if the plea of guilty was entered without objection in the presence of the accused, as we must assume, there was no occasion for the State to produce witnesses to prove the charges. Lockman v. Warden, 203 Md. 657, 99 A.2d 721; State ex rel. Jordan v. Warden, 191 Md. 753, 59 A.2d 778.”
Where the questions which appellant sought to raise had been adequately considered and properly passed upon by the state courts, appellant was not entitled, as a matter of right, to raise them by habeas corpus in the federal court. Brown v. Allen, 344 U.S. 443, 460-465, 73 S.Ct. 397, 97 L.Ed. 469.
Appeal dismissed.
Question: Is the opinion writer identified in the opinion, or was the opinion per curiam?
A. Signed, with reasons
B. Per curiam, with reasons
C. Not ascertained
Answer:
|
sc_adminaction
|
007
|
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.
IMMIGRATION AND NATURALIZATION SERVICE v. RIOS-PINEDA et al.
No. 83-2032.
Argued March 20, 1985
Decided May 13, 1985
White, J., delivered the opinion of the Court, in which all other Members joined, except Powell, J., who took no part in the consideration or decision of the case.
Alan I. Horowitz argued the cause for petitioner. With him on the briefs were Solicitor General Lee, Acting Assistant Attorney General Willard, Deputy Solicitor General Geller, and James A. Hunolt.
Lawrence H. Rudnick argued the cause for respondents. With him on the brief was Roman de la Campa.
Justice White
delivered the opinion of the Court.
Section 244(a)(1) of the Immigration and Nationality Act (Act), 66 Stat. 214, as amended, 8 U. S. C. § 1254(a)(1), allows the Attorney General to suspend the deportation of an alien. To warrant such action, the alien must have been physically present in the United States for a continuous period of at least seven years, be of good moral character, and demonstrate that deportation would result in extreme hardship to the alien, or the alien’s “spouse, parent, or child, who is a citizen of the United States or an alien lawfully-admitted for permanent residence.” Ibid. Even if these prerequisites are satisfied, it remains in the discretion of the Attorney General to suspend, or refuse to suspend, deportation. INS v. Jong Ha Wang, 450 U. S. 139, 144, n. 5 (1981); Jay v. Boyd, 351 U. S. 345, 353 (1956). Although Congress did not provide a statutory mechanism for reopening suspension proceedings once suspension has been denied, the Attorney General has promulgated regulations under the Act allowing for such a procedure. 8 CFR § 3.2 (1985). Under the regulations, a motion to reopen will be denied unless reopening is sought on the basis of circumstances which have arisen subsequent to the original hearing. Ibid. The Attorney General, authorized by Congress to do so, 8 U. S. C. § 1103, has delegated his authority and discretion to suspend deportation to special inquiry officers of the Immigration and Naturalization Service (INS), whose decisions are subject to review by the Board of Immigration Appeals (BIA). 8 CFR §§242.8, 242.21 (1985).
Respondents, a married couple, are natives and citizens of Mexico. Respondent husband illegally entered the United States in 1972. Apprehended, he returned to Mexico in early 1974 under threat of deportation. Two months later, he and respondent wife paid a professional smuggler $450 to transport them into this country, entering the United States without inspection through the smuggler’s efforts. Respondent husband was again apprehended by INS agents in 1978. At his request, he was granted permission to return voluntarily to Mexico in lieu of deportation. He was also granted two subsequent extensions of time to depart, but he ultimately declined to leave as promised. INS then instituted deportation proceedings against both respondents. By that time, respondent wife had given birth to a child, who, born in the United States, was a citizen of this country. A deportation hearing was held in December 1978. Respondents conceded illegal entry, conceded deportability, but requested suspension of deportation. The Immigration Judge, ruling that respondents were ineligible for suspension because they had not satisfied the requirement of seven years’ continuous physical presence, ordered their deportation. Respondents appealed the order to the BIA, asserting a variety of arguments to establish that the deportation violated their rights or the rights of their child. The BIA rejected these arguments and dismissed the appeal.
In July 1980, respondents filed a petition for review in the Court of Appeals, which automatically stayed their deportation pursuant to 8 U. S. C. § 1105a(a)(3). Asking that the court order their deportation suspended, respondents asserted substantially the same claims rejected by the BIA: that the Immigration Judge should have given them Miranda warnings, that their deportation was an unlawful de facto deportation of their citizen child, and that respondent husband should have been considered present in the United States for seven years. In March 1982, 15 months after the briefs were filed, the Court of Appeals reversed the decision of the BIA and remanded the case for further proceedings. Rios-Pineda v. United States Department of Justice, 673 F. 2d 225 (CA8). The Court of Appeals was of the view that during the pendency of the appeals, respondents had accrued the requisite seven years’ continuous physical presence in the United States. Id., at 227. Because of this development, the court directed the BIA to allow respondents 60 days to file a motion to reopen their deportation proceeding and cautioned the BIA “to give careful and thorough consideration to the . . . motion to reopen if, indeed, one is filed.” Id., at 228, n. 5. During the pendency of the appeals, respondent wife gave birth to a second citizen child.
Respondents then moved the BIA to reopen and requested suspension of deportation. They alleged that deportation would result in extreme hardship in that their two citizen children would be deprived of their right to an education in United States schools and to social assistance. Respondents also alleged general harm to themselves from their “low skills and educations” and the lower standard of living in Mexico.
The BIA denied the motion to reopen. First, the motion was not timely filed, as respondents had not served it on the proper official within the specified 60 days. Second, discretionary relief was unwarranted, since the additional facts — seven years’ continuous physical presence and an additional child — were available only because respondents had delayed departure by frivolous appeals. Third, respondent husband’s conduct in returning to the country only two months after his 1974 departure, respondents’ payment to a professional smuggler to enter this country illegally, and respondent husband’s refusal to depart voluntarily after promising to do so, all evinced a blatant disregard for the immigration laws, disentitling respondents to the favorable exercise of discretion.
The Court of Appeals reversed and directed the BIA to reopen the proceeding. Rios-Pineda v. United States Department of Justice, 720 F. 2d 529 (CA8 1983). The motion to reopen, the panel concluded, was timely filed, respondents had made out a prima facie case of hardship, and the factors relied on by the BIA did not justify its refusal to reopen. Although the court did not find merit in any of the legal arguments respondents had pressed during their prior appeals, their appeals were not frivolous. Neither could the BIA deny a motion to reopen because of respondents’ disregard of the immigration laws, since such disregard is present in some measure in all deportation cases. Id., at 534.
We granted certiorari, 469 U. S. 1071 (1984), because this case involves important issues bearing on the scope of the Attorney General’s discretion in acting on motions to reopen civil requests for suspension of deportation.
We have recently indicated that granting a motion to reopen is a discretionary matter with BIA. INS v. Phinpathya, 464 U. S. 183, 188, n. 6 (1984). Thus, even assuming that respondents’ motion to reopen made out a prima facie case of eligibility for suspension of deportation, the Attorney General had discretion to deny the motion to reopen. INS v. Jong Ha Wang, 450 U. S. 139, 144, n. 5 (1981). We have also held that if the Attorney General decides that relief should be denied as a matter of discretion, he need not consider whether the threshold statutory eligibility requirements are met. INS v. Bagamasbad, 429 U. S. 24 (1976); see also Jong Ha Wang, 450 U. S., at 143-144, n. 5.
Given the Attorney General’s broad discretion in this context, we cannot agree with the Court of Appeals’ holding that denial of the motion to reopen was an impermissible exercise of that discretion. If, as was required by the regulations, respondents’ motion to reopen was based on intervening circumstances demonstrating 7-year residence and extreme hardship, the Attorney General, acting through the BIA, nevertheless had the authority to deny the motion for two separate and quite adequate reasons.
First, although by the time the BIA denied the motion, respondents had been in this country for seven years, that was not the case when suspension of deportation was first denied; the seven years accrued during the pendency of respondents’ appeals. The BIA noted that respondents’ issues on appeals were without merit and held that the 7-year requirement satisfied in this manner should not be recognized. In our view, it did not exceed its discretion in doing so.
The Court of Appeals thought the appeal had not been frivolous because it had resulted in further proceedings. But this was true only because seven years of residence had accrued during the pendency of the appeal. No substance was found in any of the points raised on appeal, in and of themselves, and we agree with the BIA that they were without merit. The purpose of an appeal is to correct legal errors which occurred at the initial determination of deportability; it is not to permit an indefinite stalling of physical departure in the hope of eventually satisfying legal prerequisites. One illegally present in the United States who wishes to remain already has a substantial incentive to prolong litigation in order to delay physical deportation for as long as possible. See, e. g., Sung Ja Oum v. INS, 613 F. 2d 51, 52-54 (CA4 1980); Hibbert v. INS, 554 F. 2d 17, 19-21 (CA2 1977). The Attorney General can, in exercising his discretion, legitimately avoid creating a further incentive for stalling by refusing to reopen suspension proceedings for those who became eligible for such suspension only because of the passage of time while their meritless appeals dragged on. See Leblanc v. INS, 715 F. 2d 685, 693 (CA1 1983); Agustin v. INS, 700 F. 2d 564, 566 (CA9 1983); Balani v. INS, 669 F. 2d 1157, 1160-1162 (CA6 1982); Der-Rong Chour v. INS, 578 F. 2d 464, 467-468 (CA2 1978), cert. denied, 440 U. S. 980 (1979); Schieber v. INS, 171 U. S. App. D. C. 312, 320-321, 520 F. 2d 44, 52-53 (1975).
The impact of any other rule is pointed out by this case. Respondents were apprehended in 1978, and they conceded deportability. Nonetheless, over six years later they remain in the United States by virtue of their baseless appeals. In administering this country’s immigration laws, the Attorney General and the INS confront an onerous task even without the addition of judicially augmented incentives to take merit-less appeals, engage in repeated violations, and undertake other conduct solely to drag out the deportation process. Administering the 7-year requirement in this manner is within the authority of the Attorney General. The Act commits the definition of the standards in the Act to the Attorney General and his delegate in the first instance, “and their construction and application of th[ese] standard[s] should not be overturned by a reviewing court simply because it may prefer another interpretation of the statute.” INS v. Jong Ha Wang, supra, at 144.
Second, we are sure that the Attorney General did not abuse his discretion in denying reopening based on respondents’ flagrant violation of the federal law in entering the United States, as well as respondent husband’s willful failure to depart voluntarily after his request to do so was honored by the INS. The Court of Appeals’ rejection of these considerations as “irrelevant” is unpersuasive. While all aliens illegally present in the United States have, in some way, violated the immigration laws, it is untenable to suggest that the Attorney General has no discretion to consider their individual conduct and distinguish among them on the basis of the flagrancy and nature of their violations. There is a difference in degree between one who enters the country legally, staying beyond the terms of a visa, and one who enters the country without inspection. Nor does everyone who illegally enters the country do so repeatedly and with the assistance of a professional smuggler. Furthermore, the Attorney General can certainly distinguish between those who, once apprehended, comply with the laws, and those who refuse to honor previous agreements to report for voluntary departure. Accordingly, we are convinced that the BIA did not abuse its discretion in denying reopening because of respondents’ prior conduct.
This case, therefore, does not involve the unreasoned or arbitrary exercise of discretion. Here the BIA’s explanation of its decision was grounded in legitimate concerns about the administration of the immigration laws and was determined on the basis of the particular conduct of respondents. In this government of separated powers, it is not for the judiciary to usurp Congress’ grant of authority to the Attorney General by applying what approximates de novo appellate review. See Jong Ha Wang, 450 U. S., at 144-145; Phinpathya, 464 U. S., at 195-196. Because we conclude that here the refusal to reopen the suspension proceeding was within the discretion of the Attorney General, we reverse the decision of the Court of Appeals.
So ordered.
Justice Powell took no part in the consideration or decision of this case.
The issue of whether the motion to reopen was timely filed is not before this Court, and we assume, without deciding, that timely filing was established by service of the motion on the wrong official within the period required by the Court of Appeals’ first decision. See 720 F. 2d, at 532.
Even prior to our decision in INS v. Phinpathya, 464 U. S. 183 (1984), while the administrative practice treated some minor absences as not breaking the continuous presence period, neither the courts nor the Attorney General had ever considered a departure under threat of deportation, coupled with a subsequent illegal entry after two months’ absence, anything less than a meaningful interruption of the period. Not only had the Immigration Judge explained, both at the deportation hearing and in his written decision, App. to Pet. for Cert. 27a, that such an absence was an interruption of the period of continuous presence, the law itself was clear. See Heitland v. INS, 551 F. 2d 495, 503-504 (CA2), cert. denied, 434 U. S. 819 (1977); Segura-Viachi v. INS, 538 F. 2d 91, 92 (CA5 1976); Barragan-Sanchez v. Rosenberg, 471 F. 2d 758, 760 (CA9 1972); see generally Phinpathya, supra, at 193-194.
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:
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sc_lcdisagreement
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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 identify whether the court opinion mentions that one or more of the members of the court whose decision the Supreme Court reviewed dissented. Focus on whether there exists any statement to this effect in the opinion, for example "divided," "dissented," "disagreed," "split.". A reference, without more, to the "majority" or "plurality" does not necessarily evidence dissent (the other judges may have concurred). If a case arose on habeas corpus, indicate dissent if either the last federal court or the last state court to review the case contained one. If the highest court with jurisdiction to hear the case declines to do so by a divided vote, indicate dissent. If the lower court denies an en banc petition by a divided vote and the Supreme Court discusses same, indicate dissent.
UNITED STATES v. SWANK et al.
No. 79-1515.
Argued December 9, 1980
Decided May 18, 1981
Stevens, J., delivered the opinion of the Court, in which BuegeR, C. J., and BrenNan, Marshall, Blackmun, Powell, and Rehnquist, JJ., joined. White, J., filed a dissenting opinion, in which Stewart, J., joined, post, p. 585.
Stuart A. Smith argued the cause for the United States. With him on the briefs were Solicitor General McCree, Assistant Attorney General Ferguson, and Michael L. Paup.
LeRoy Katz argued the cause for respondents and filed a brief for respondent Black Hawk Coal Corp., Inc. Lloyd R. Persun and Howell C. Mette filed a brief for respondents Swank et al. Woodrow A. Potesta and Robert Lathrop filed a brief for respondent Bull Run Mining Co., Inc.
Justice Stevens
delivered the opinion of the Court.
The owner of an economic interest in a mineral deposit is allowed a special deduction from taxable income measured by a percentage of his gross income derived from exhaustion of the mineral. This deduction, codified in §§611 and 613 of the Internal Revenue Code of 1954, is designed to compensate such owners for the exhaustion of their interest in a wasting asset, the mineral in place. This case presents the question whether that “percentage depletion” allowance must be denied to otherwise eligible lessees of underground coal because their leases were subject to termination by the lessor on 30 days’ notice.
This question arises out of three different tax refund suits that were decided by the Court of Claims in a single opinion. 221 Ct. Cl. 246, 602 F. 2d 348. The controlling facts are essentially the same in all three cases. Each taxpayer operated a coal mine pursuant to a written lease; in exchange for a fixed royalty per ton, the lessor granted the lessee the right to extract coal and to sell it at prices determined by the lessee. Each lease contained a clause permitting the lessor to terminate the lease on 30 days’ notice. In fact, however, none of the lessors exercised that right; each lessee mined a substantial tonnage of coal during an uninterrupted operation that continued for several years. The proceeds from the sale of the coal represented the only revenue from which the lessees recovered the royalties paid to the lessors.
In each of the cases, certain additional facts help to illuminate the issue. In the Black Hawk case the lease was to continue “during the term commencing on the first day of March, 1964, and terminating when LESSEE shall have exhausted all of The Feds Creek (or Clintwood) Seam of coal, ... or until said tenancy shall be earlier terminated . . . .” App. 77a. The lease required Black Hawk to pay a royalty of 25 cents per ton of coal or $5,000 per year, whichever was larger. Id., at 77a-78a. In addition, the lease required Black Hawk to pay all taxes on the underground coal, as well as the taxes on its plant and equipment and on mined coal. Id., at 79a. Black Hawk paid independent contractors a fixed price per ton to remove the coal, and Black Hawk was free to sell the coal to any party at whatever price it could obtain. Black Hawk mined the seam to exhaustion, operating continuously under the lease for 13 years. Id., at 70a-71a. The Government stipulated that Black Hawk was the sole claimant to the percentage depletion deduction; no claim had been made by the lessor or by any independent mining contractor employed by Black Hawk. Id., at 71a.
The Swank case involves two separate leases executed by Swank and Northumberland County, Pa., pursuant to which Swank operated mines on land owned by the county. The first lease, a deep-mining lease executed in 1964, was terminated in 1968 after a mountain slide forced Swank to close the mine. Id., at 52a. The second, a strip-mining lease executed in 1966, was still being operated by Swank’s successor in interest in 1977 when the case was tried. During the tax years in dispute, Swank’s royalty payments to the county at the rate of 35 cents per ton amounted to $7,545.10 in 1966 and $6,854.05 in 1967. Id., at 53a. The deduction for depletion, which was based on the gross income received from the sale of the coal, was significantly larger. The record also indicates that Swank invested significant sums in the construction of access roads, the acquisition of equipment, and the purchase and improvement of a “tipple” — the surface structure that is used to remove slate and rock from the mined product and to sort the coal into specific sizes for marketing. Id., at 55a-56a.
The Bull Run case involves a 5-year lease executed in 1967 and renewed in 1972. Id., at 90a-91a. Unlike the leases in the other cases, it gave the lessor a right of first purchase if it was willing to meet the lessee’s price, and in the tax year in dispute the lessor did purchase all of the coal mined by Bull Run. 221 Ct. Cl., at 249, n. 4, 602 F. 2d, at 350, n. 4. The lease did not, however, limit the lessee’s right to set selling prices or to sell to others who were willing to pay more than the lessor. Ibid. Like the lease in Black Hawk, the lease provided for a royalty of 25 cents per ton. App. 91a. As is also true in both Black Hawk and Swank, there is no suggestion that any other party has made any claim to any part of the percentage depletion allowance at issue in this case. See id., at 92a. The Bull Run lease, like the others, contained a provision giving the lessor the right to cancel on 30 days’ written notice.
I
Since 1913 the Internal Revenue Code or its predecessors have provided special deductions for depletion of wasting assets. We have explained these deductions as resting “on the theory that the extraction of minerals gradually exhausts the capital investment in the mineral deposit/’ and therefore the depletion allowance permits “a recoupment of the owner’s capital investment in the minerals so that when the minerals are exhausted, the owner’s capital is unimpaired.” Commissioner v. Southwest Exploration Co., 350 U. S. 308, 312. The percentage depletion allowance, however, is clearly more than a method of enabling the operator of a coal mine to recover the amount he has paid for the unmined coal. Because the deduction is computed as a percentage of his gross income from the mining operation and is not computed with reference to the operator’s investment, it provides a special incentive for engaging in this line of business that goes well beyond a purpose of merely allowing the owner of a wasting asset to recoup the capital invested -in that asset. As the Court said in Southwest Exploration Co., supra:
“The present allowance, however, bears little relationship to the capital investment, and the taxpayer is not limited to a recoupment on his original investment. The allowance continues so long as minerals are extracted, and even though no money was actually invested in the deposit. The depletion allowance in the Internal Revenue Code of 1939 [the forerunner of the present statute] is solely a matter of congressional grace . . . .” 350 U. S., at 312.
Hence eligibility for the deduction is determined not by the amount of the capital investment but by the mine operator’s “economic interest” in the coal.
A recognition that the percentage depletion allowance is more than merely a recovery of the cost of the unmined coal is especially significant in this case. The question here is whether a deduction for the asset depleted by respondents will be received by anyone. The tax consequences of the lessors’ receipt of royalties will not be affected, either favorably or unfavorably, by our decision in this case. The Government therefore is not contending that the wrong party is claiming the percentage depletion allowance. Rather, the Government takes the position that no such deduction shall be allowed to any party if the legal interest of the lessee-operator is subject to cancellation on short notice.
II
The language of the controlling statute makes no reference to the minimum duration of the interest in mineral deposits on which a taxpayer may base his claim to percentage depletion. The relevant Treasury Regulation merely requires the taxpayer to have an “economic interest” in the unmined coal. That term is broadly defined by regulation as follows:
“(b) Economic interest. (1) Annual depletion deductions are allowed only to the owner of an economic interest in mineral deposits or standing timber. An economic interest is possessed in every case in which the taxpayer has acquired by investment any interest in mineral in place or standing timber and secures, by any form of legal relationship, income derived from the extraction of the mineral or severance of the timber, to which he must look for a return of his capital.”
The Government’s argument that the termination clause deprived the lessees of an economic interest is advanced in two forms. First, the Government notes that the regulation distinguishes a mere “economic advantage” from a depleta-ble “economic interest,” and argues that two cases — Parsons v. Smith, 359 U. S. 215, and Paragon Jewel Coal Co. v. Commissioner, 380 U. S. 624 — in which the Court concluded that mining contractors had only an “economic advantage” rather than an “economic interest” in coal deposits — support the conclusion that these lessees also had a mere “economic advantage.” Second, the Government argues as a matter of “practical economics” that the right to terminate gives the lessor the only significant economic interest in the coal. Neither submission is persuasive.
The- Parsons opinion covered two consolidated cases with similar facts. In each the owner of coal-bearing land entered into a contract with the taxpayer providing that the taxpayer would strip-mine the coal and deliver it to the owner for a fixed price per ton. Neither of the contracts purported to give the mining contractor any interest in the coal, either before or after it was mined, or any right to sell it to third parties. See 359 U. S., at 216-219. The contracts were terminable on short notice and terminability was one of the seven factors the Court listed to support its conclusion that the independent contractors did not have an economic interest in the coal. It is perfectly clear, however, that the Court would have reached the same conclusion if that factor had not been present.
The facts in the Paragon Jewel case were much like those in Parsons, except that the mining contractors dealt with lessees instead of the owners of the underground coal. As in Parsons, the contractors agreed to mine the coal at their own expense and deliver it to Paragon’s tipple at a fixed fee per ton. The contractors had no control over the coal after delivery to Paragon, had no responsibility for its sale or in fixing its price, and did not even know the price at which Paragon sold the coal. 380 U. S., at 628. The Court stated that the Commissioner took the position that
“only a taxpayer with a legally enforceable right to share in the value of a mineral' deposit has a depletable capital or economic interest in that deposit and the contract miners in this case had no such interest in the unmined coal.” Id., at 627.
The Court agreed that the miners did not have an economic interest in the coal:
“Here, Paragon was bound to pay the posted fee regardless of the condition of the market at the time of the particular delivery and thus the contract miners did not look to the sale of the coal for a return of their investment, but looked solely to Paragon to abide by its covenant.” Id., at 635.
Thus in Paragon Jewel Coal Co., as in Parsons, the termina-bility of the agreements was not the dispositive factor, and neither case answers the narrow question before us in this case.
The contrast between the interest of the contractors in Parsons and Paragon Jewel and the lessees in these cases is stark. Whereas those contractors never acquired any legal interest in the coal, the lessees in these cases had a legal interest in the mineral both before and after it was mined, and were free to sell the coal at whatever price the market could bear. Indeed, the Government does not contend that, absent the termination clauses, the lessees would not have had an economic interest in the coal. In contrast, it seems clear that the contract miners’ interest in the Parsons and Paragon Jewel cases would have been insufficient even if their agreements had been for a fixed term.
The Government, however, does argue that the lessors’ right to terminate the leases alone made the taxpayers’ interest so tenuous as to defeat a claim to the percentage depletion deduction. According to the Government, as a matter of “practical economics” an increase in the price of the minerals will “assuredly” lead to an exercise of the lessors’ right to terminate; accordingly, the only significant economic interest is controlled by the lessor. We find this theoretical argument unpersuasive for at least three reasons.
First, the royalty rate is a relatively small element of the mine operator’s total cost. Therefore, even if the price of coal increases, the lessor cannot be certain that he will be able to negotiate a more favorable lease with another lessee. Moreover, the quantity of coal extracted by the operator each year may be as important in providing royalties for the lessor as the rate per ton. Purely as a theoretical matter, it therefore is by no means certain that an increase in the price of coal will induce a lessor to terminate a satisfactory business relationship. Indeed, the only evidence in the record — the history of three different operations that were uninterrupted for many years — tends to belie the Government’s entire argument.
Second, from the standpoint of the taxpayer who did in fact conduct a prolonged and continuous operation, it would seem rather unfair to deny him a tax benefit that is available to his competitors simply because he accepted a business risk — the risk of termination — that his competitors were able to avoid when they negotiated their mining leases. It is unlikely that Congress intended to limit the availability of the percentage depletion deduction to the mining operations with the greatest bargaining power.
Third, and most important, the Government has not suggested any rational basis for linking the right to a depletion deduction to the period of time that the taxpayer operates a mine. If the authorization of a special tax benefit for mining a seam of coal to exhaustion is sound policy, that policy would seem equally sound whether the entire operation is conducted by one taxpayer over a prolonged period or by a series of taxpayers operating for successive shorter periods. The Government has suggested no reason why the efficient removal of a great quantity of coal in less than 30 days should have different tax consequences than the slower removal of the same quantity over a prolonged period.
The Court of Claims correctly concluded that the mere existence of the lessors’ unexercised right to terminate these leases did not destroy the taxpayers’ economic interest in the leased mineral deposits.
The judgment is
Ҥ 611. Allowance of deduction for depletion
“(a) General Rule
“In the case of mines, oil and gas wells, other natural deposits, and timber, there shall be allowed as a deduction in computing taxable income a reasonable allowance for depletion and for depreciation of improvements, according to the peculiar conditions in each case; such reasonable allowance in all cases to be made under regulations prescribed by the Secretary. . . .” 26 U. S. C. §611 (a).
Ҥ 613. Percentage depletion
“(a) General Rule
“In the case of the mines, wells, and other natural deposits listed in subsection (b), the allowance for depletion under section 611 shall be the percentage, specified in subsection (b), of the gross income from the property excluding from such gross income an amount equal to any rents or royalties paid or incurred by the taxpayer in respect of the property. Such allowance shall not exceed 50 percent of the taxpayer’s taxable income from the property (computed without allowance for depletion). . . . In no case shall the allowance for depletion under section 611 be less than it would be if computed without reference to this section.
“(b) Percentage depletion rates
“The mines, wells, and other natural deposits, and the percentages, referred to in subsection (a) are as follows:
“(4) 10 percent
“Asbestos, . . . brucite, coal, lignite, perlite, sodium chloride, and wollastonite.” 26 U. S. C. §§613 (a), (b)(4).
Black Hawk Coal Corp., Inc., operated drift mines in Pike County, Ky. Its refund suit covered the tax years 1970-1972.
The Government states that the depletion deductions claimed by Swank in 1966 and 1967 amounted to $41,371.24 and $15,204.32. Brief for United States 3. See also App. 8a-9a. No other party claimed the depletion deduction on coal mined by Swank.
Bull Run Mining Co. operated in West Virginia. In its brief, Bull Run states that the leased coal was mined to exhaustion in September 1978. Brief for Respondent Bull Run Mining Co. 2.
Bull Run claimed a depletion deduction of $39,981.41 for 1974, the tax year in question. App. 92a.
The relevant section of the lease provides:
“5. CANCELLATION. It is agreed between the parties that either party to this agreement may cancel this lease upon giving to the other party a written notice at least thirty (30) days prior to the effective date of said cancellation. If any coal is mined during said thirty (30) day period, the same shall be paid for the same as if said notice were not given, and upon the expiration of said thirty (30) days, Lessee agrees to deliver the possession of said premises to the Lessor. Upon such cancellation becoming effective, Lessor shall reasonably compensate Lessee for the then fair market value of track, conveyors, dumps, bins, motors and other equipment which Lessee shall have affixed to the premises, and if the parties cannot agree upon such compensation, Lessee shall have a period of four (4) months within which to remove his equipment, from the effective date of cancellation.” Id., at 96a.
In Helvering v. Bankline Oil Co., 303 U. S. 362, 366, the Court explained that the deduction “is permitted in recognition'of the fact that the mineral deposits are wasting assets and is intended as compensation to the owner for the part used up in production.”
The Swank case is illustrative of the nature of the depletion deduction. We can determine from the fact that Swank paid royalties of $7,545.10 in 1966 and $6,854.05 in 1967 that Swank mined roughly the same amount of coal in both years, 21,557 tons in 1966 and 19,585 tons in 1967. Thus Swank could apparently claim a depletion allowance of about $1.92 per ton in 1966 and about 78 cents per ton in 1967. Inasmuch as the depletion allowance is a percentage of gross income, these figures — which suggest that the selling price of the coal may have been almost as high as $20 a ton — indicate the lack of any specific relationship between the lessee’s cost of the raw coal and the value of the depletion allowance.
In the Revenue Act of 1918, the capital to be recovered through the depletion allowance was not determined by the owner’s investment in the minerals but rather was measured by the fair market value of the property at the date the mineral deposits were “discovered.” See Revenue Act of 1918, ch. 18, §§214 (a) (10), 234 (a)(9), 40 Stat. 1068, 1078. Although this method of determining the depletion allowance was changed to the percentage depletion method for oil and gas in 1926, Revenue Act of 1926, ch. 27, §204 (c), 44 Stat. (part 2) 16, and for coal in 1932, Revenue Act of 1932, ch. 209, § 114 (b)(4), 47 Stat. 203, this Court, in Helvering v. Bankline Oil Co., su-pra, at 366-367, recognized that “[t]he granting of an arbitrary deduction ... of a percentage of gross income was in the interest of convenience and in no way altered the fundamental theory of the allowance.” Thus since 1918 the depletion deduction has not been limited to a recoupment of the operator’s investment.
The Court developed the “economic interest” test in Palmer v. Bender, 287 U. S. 551. In Palmer, the Court stated:
“The language of the statute is broad enough to provide, at least, for every case in which the taxpayer has acquired, by investment, any interest in the oil in place, and secures, by any form of legal relationship, income derived from the extraction of the oil, to which he must look for a return of his capital.” Id., at 557.
The Government argues that the Court of Claims erred in concluding that a consequence of the Government’s position is that no one will receive the percentage depletion deduction. See 221 Ct. Cl. 246, 251, 602 F. 2d 348, 351; Brief for United States 22-23. This argument is not persuasive.
Under § 631 (c) of the Internal Revenue Code, the lessor is required to treat his royalty income as a capital gain and is not entitled to claim a percentage depletion deduction. Section 631 (c) provides in pertinent part:
“In the case of the disposal of coal (including lignite), or iron ore mined in the United States, held for more than 1 year before such disposal, by the owner thereof under any form of contract by virtue of which such owner retains an economic interest in such coal or iron ore, the difference between the amount realized from the disposal of such coal or iron ore and the adjusted depletion basis thereof plus the deductions disallowed for the taxable year under section 272 shall be considered as though it were a gain or loss, as the case may be, on the sale of such coal or iron ore. Such owner shall not be entitled to the allowance for percentage depletion provided in section 618 with respect to such coal or iron ore. This subsection shall not apply to income realized by any owner as a co-adventurer, partner, or principal in the mining of such coal or iron ore, and the word 'owner’ means any person who owns an economic interest in coal or iron ore in place, including a sublessor.” 26 U. S. C. § 631 (c) (1976 ed., Supp. Ill) (emphasis added).
Unlike the percentage depletion deduction, the capital gains treatment required by § 631 (c) is directly related to the lessor’s capital investment in the mine. Because the lessor’s gain is measured by the difference between his cost, computed on a per ton basis, and his royalty, he of course recoups his capital investment as the coal is mined. In this sense, he receives “cost depletion.” The difference between the lessor’s “cost depletion” and the lessee’s “percentage depletion” is indicated by the record in the Swank case. In 1966 the royalty payments amounted to $7,545.10; a part of that amount was the lessor’s capital gain and the remainder was his “cost depletion.” In contrast, the “percentage depletion” claimed by the lessee amounted to $41,371.24. The amounts are not in dispute. Thus, contrary to the Government’s argument, the provision of capital gains treatment to the lessor does not indicate that the percentage depletion deduction, which we have characterized as a form of “congressional grace,” will be available to some other party if it cannot be claimed by the lessee. See n. 12, infra.
The Government conceded at oral argument that the lessor’s entitlement to the capital gain treatment of the royalty proceeds would be the same regardless of whether the lessee is entitled to percentage depletion. Tr. of Oral Arg. 16. Moreover, the Government also conceded that even if the lessees had a long-term lease and were clearly entitled to the depletion allowance, the lessors would nevertheless have .a retained economic interest in the coal. Id., at 16-18. Therefore, the lessors would be required by § 631 (c) to take capital gains rather than a depletion deduction regardless of whether we hold that the lessee is entitled to the percentage depletion deduction.
Although these cases involve provisions for cancellation on 30 days’ notice, the Government advises us that it takes the same position with respect- to any lease cancellable on less than one year’s notice. Tr. of Oral Arg. 8. This position has its genesis in G. C. M. 26290, 1950-1 Cum. Bull. 42, declared obsolete, Rev. Rui. 70-277, 1970-1 Cum. Bull. 280. See also Rev. Rui. 74-507, 1974-2 Cum. Bull. 179.
See n. 1, supra.
The Court early recognized that lessees had an economic interest in the mines:
“It is, of course, true that the leases here under review did not convey title to the unextracted ore deposits . . . ; but it is equally true that such leases, conferring upon the lessee the exclusive possession of the deposits and the valuable right of removing and reducing the ore to ownership, created a very real and substantial interest therein. . . . And there can be no doubt that such an interest is property.” Lynch v. Alworth-Stephens Co., 267 U. S. 364, 369.
Treas. Reg. §1.611-1 (b), 26 CFR § 1.611-1 (b) (1980).
The regulation provides an example of such an “economic advantage”:
“[A]n agreement between the owner of an economic interest and another entitling the latter to purchase or process the product upon production or entitling the latter to compensation for extraction or cutting does not convey a depletable economic interest.” Ibid.
The Court listed the seven factors in this paragraph:
“To recapitulate, the asserted fiction is opposed to the facts (1) that petitioners’ investments were in their equipment, all of which was movable — not in the coal in place; (2) that their investments in equipment were recoverable through depreciation — not depletion; (3) that the contracts were completely termmable without cause on short notice; (4) that the landowners did not agree to surrender and did not actually surrender to petitioners any capital interest in the coal in place; (5) that the coal at all times, even after it was mined, belonged entirely to the landowners, and that petitioners could not sell or keep any of it but were required to deliver all that they mined to the landowners; (6) that petitioners were not to have any part of the proceeds of the sale of the coal, but, on the contrary, they were to be paid a fixed sum for each ton mined and delivered, which was, as stated in Huss, agreed to be in 'full compensation for the full performance of all work and for the furnishing of all [labor] and equipment required for the work’; and (7) that petitioners, thus, agreed to look only to the landowners for all sums to become due them under their contracts. The agreement of the landowners to pay a fixed sum per ton for mining and delivering the coal 'was a personal covenant and did not purport to grant [petitioners] an interest in the [coal in place].’ Helvering v. O’Donnell, 303 U. S. 370, 372. Surely these facts show that petitioners did not actually make any capital investment in, or acquire any economic interest in, the coal in place, and that they may not fictionally be regarded as having done so.” 359 U. S., at 225 (emphasis added).
Although this fee varied depending on the general trends of the market price and labor costs, the Court noted that such changes “were always prospective, the contractors being notified several days in advance of any change so that they always knew the amount they would get for the mining of the coal upon delivery.” 380 U. S., at 628.
With respect to the terminability issue, although no specific right to terminate was mentioned in the-agreement, the Paragon Jewel Court concluded that because the contractors had apparently been able to terminate at will, such a power should also be imputed to Paragon. The Court indicated, however, that even if the agreements were not terminable at will, the “right to mine to exhaustion, without more, does not constitute an economic interest under Parsons.” Id., at 634.
Another distinguishing feature of Paragon Jewel is that that case really presented an issue respecting which taxpayer — the contract miner or the lessee — should receive the depletion allowance. See id., at 626, 630; id., at 639-649 (Goldberg, J., dissenting). The fact that the existence of a right to terminate is relevant in what is essentially a dispute between the parties to the contract surely does not support the conclusion that such an unexercised right has any bearing on the question whether any taxpayer may claim percentage depletion.
“Although he has a potential right to benefit from a rise in the market, that right is illusory for practical economies will compel the lessor to terminate the lease and conclude a more favorable arrangement if market conditions so dictate.” Brief for United States 19.
“As we have pointed out (supra, page 19), if the market price of the minerals rises above the lessor’s royalty, the lessor will assuredly exercise his right to terminate the lease on short notice and will either enter into a more profitable lease or extract the mineral himself and sell it. In these circumstances, the lease provision permitting termination on short notice gives the lessor the unilateral right to assume complete and unfettered dominion over the mineral deposit, viz., an economic interest in the minerals in place. The unexercised termination clause therefore has profound economic significance, rather than, as the decision below erroneously concluded (Pet. App. 5a), 'mere existence.’ ” Id., at 21-22 (footnotes omitted).
In Swank, for example, the royalty payment was 35 cents per ton, while the price of coal apparently approached $20 per ton. See n. 8, supra.
The Court of Claims opinion also recognized the weakness of this argument. The court stated that counsel for one of the taxpayers at oral argument had noted that the lessors had not terminated even though the value of coal had increased markedly. The taxpayer argued that lessors would be reluctant to terminate because “the costs of continuing with an existing mine are usually so great, comparatively, that it is difficult for a lessor to obtain new lessees at terms more favorable to the lessors than the existing leases.” 221 Ct. Cl., at 251, n. 9, 602 F. 2d, at 351, n. 9. The court did not accept these representations as evidence but indicated that “the record contains nothing to contradict this explanation for what seems to be the fact that leases of this type have not been regularly cancelled by lessors in recent years.” Ibid.
As we have indicated, the depletion deduction is geared to the depletion of the mineral in place, and not to the taxpayer’s capital investment. Therefore, we can perceive no reason to impose duration requirements on the availability of the deduction for taxpayers who admittedly otherwise have an “economic interest” in the coal, are dependent on the market to recover their costs, and are actually depleting the mineral in place.
Question: Does the court opinion mention that one or more of the members of the court whose decision the Supreme Court reviewed dissented?
A. Yes
B. No
Answer:
|
songer_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.
Juan DALMAU RODRIGUEZ, et al., Plaintiffs, Appellants, v. HUGHES AIRCRAFT COMPANY, et al., Defendants, Appellees.
No. 85-1303.
United States Court of Appeals, First Circuit.
Argued Oct. 9, 1985.
Decided Jan. 9, 1986.
Francisco M. Troncoso with whom Paul E. Calvesbert and Calvesbert & Brown, San Juan, P.R., were on brief for plaintiffs, appellants.
Francisco Ponsa-Flores with whom Francisco Ponsa-Feliu, Edda Ponsa-Flores, and Lawrence E. Duffy, San Juan, P.R., were on brief for defendants, appellees.
Before BOWNES, Circuit Judge, TIMBERS, Senior Circuit Judge, TORRUEL-LA, Circuit Judge.
Of the Second Circuit, sitting by designation.
BOWNES, Circuit Judge.
This is an appeal from a dismissal of plaintiffs’ diversity tort action against defendant Hughes Helicopters, Inc. of California for lack of personal jurisdiction. The question is whether Hughes’ contacts with Puerto Rico were sufficient under Puerto Rico law and the due process clause of the Constitution to subject it to the jurisdiction of the United States District Court for Puerto Rico.
THE FACTS
When jurisdiction is contested, the burden is on the plaintiff to prove facts necessary to sustain jurisdiction. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936); Escude Cruz v. Ortho Pharmaceutical Corp., 619 F.2d 902, 904 (1st Cir.1980). This action arose when a helicopter manufactured by Hughes and owned by the Police Department of Puerto Rico crashed on April 20, 1981, seriously injuring its two police occupants. The jurisdictional facts began with the acquisition by the Police Department of the helicopter that crashed.
On July 15, 1980, the General Services Administration of Puerto Rico solicited bids for two helicopters for the Police Department. Bids were submitted by Enstrom Corporation, Carib Aviation, Inc. of Miami, Florida, Hughes, and Helicopter Rental Co., a Puerto Rico company. Carib, Hughes, and Helicopter Rental all bid to sell the same helicopter, a model 300C Hughes helicopter. Enstrom bid to sell its own model, F-28C-2 helicopter. After consideration, the Puerto Rico GSA determined that the 3G0C Hughes machine was superior to the Enstrom. The Enstrom bid, which was the lowest, was, therefore, rejected. The next lowest bidder, Carib, was rejected because it did not submit a bid for the installation of the radios as called for in the specifications. Hughes, which submitted the third lowest bid, was eliminated because it did not submit a bid for the spare parts and special tools as required in the invitation to bid. Helicopter Rental was awarded the contract. It agreed to furnish two model 300C Hughes helicopters, optional equipment, spare parts, tools, freight, insurance, and training for pilots and mechanics for the sum of $272,995.
Hughes submitted its bid by mail and did not appear in person when the bids were opened. Hughes is incorporated in Delaware with its principal place of business in Culver City, California. At no time has it been authorized to do business in Puerto Rico and it has never done business there through any employee, agent or subsidiary. Hughes had no bank account in the Commonwealth and never owned or leased real or personal property located in Puerto Rico. The only personal contact Hughes had with Puerto Rico prior to its bid was a visit to the Island in 1977 or 1978 by its international sales representative, George Hurd, who went there as a guest of Carib Aviation and Marine Consultants, which was Hughes’ distributor for the Caribbean area at the time. After the sale, Ray Stephens, a Hughes technician, went to Puerto Rico from February 23 to 25, 1981, to give assistance and advice relative to the drive shaft alignments of the two helicopters. Stephens also went to Puerto Rico in April of 1981 to help in the investigation of the crash. This constitutes all of Hughes’ direct contacts with Puerto Rico.
Prior to receiving the invitation to bid, Augustine Carrasco, owner of Helicopter Rental, had seen an advertisement of Hughes in one of the trade journals or magazines that he received. He sent a request to the magazine for more information about Hughes helicopters and received a list of the commercial marketing personnel. Carrasco contacted the Eastern Sales Division of Hughes and was referred to one Robert F. Todd who, Carrasco was told, covered the Puerto Rico area. He told Todd about the bid request for the purchase of two helicopters by the Puerto Rico Police Department. According to Car-rasco’s sworn statement, he contacted Todd after he received the invitation to bid “on or about July 15, 1980.” Carrasco was informed by Todd that the two helicopters could be furnished by his office and Todd gave Carrasco all of the financial information needed to comply with the bid specifications.
After his company was awarded the bid, Carrasco called Todd who advised him to come to Atlanta, Georgia, and make a deposit for the two helicopters. When Car-rasco got to Atlanta, he was informed by Todd that the two helicopters had been “optioned” by Hughes to Carib Helicopters, Inc. of Miami. Todd said, however, that if Carrasco paid an additional $5,000 for each machine, he could arrange for them to be delivered to the Puerto Rico Police Department but, if the payment was not made, Carrasco would have to wait until the helicopters came off the production line, which meant delivery after October of 1980. Since Carrasco had to make immediate delivery of the helicopters, he paid the additional $10,000.
Todd wrote to Carrasco on October 10, 1980, telling him that the helicopters would be ready for pick up at Culver City on October 15. By telex of October 17, 1980, Carib authorized Hughes to accept payment in the amount of $181,700 from Car-rasco for the two machines and deliver them to Alex Air. Carrasco instructed Alex Air as to how and where the helicopters were to be shipped. They arrived in San Juan, Puerto Rico, before the end of October and were delivered to the Puerto Rico Police Department. For some reason, the spare parts did not arrive with the helicopters. Carrasco called Todd and the parts arrived in Puerto Rico in different shipments, some consigned directly to the Puerto Rico Police Department and others consigned to Helicopter Rental.
The papers show that the helicopters were sold by Hughes to Carib. The bills of sale ran from Hughes to Carib, as did the warranties. There was evidence that a Hughes warranty could be transferred to the first subsequent purchaser. Hughes had a helicopter service center agreement with Carib whereby Carib was authorized as a factory inspection and service center for Hughes “on a non-exclusive basis.” The agreement specifically provided that Carib was to furnish service “as an independent contractor and not as agent or manufacturer.”
THE LAW
In its definitive opinion on the reach of Puerto Rico’s long-arm statute, the Supreme Court of Puerto Rico held that in personam jurisdiction extends to all cases where it is constitutionally permissible. A.H. Thomas Co. v. Superior Court of Puerto Rico, 98 P.R.R. 864, 870 n. 5 (1970). Our inquiry into the requirements of state-law jurisdiction is, therefore, telescoped into our due process constitutional analysis.
The starting point is International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), which laid down the jurisdictional principle that
due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 342, 85 L.Ed. 278.
Id. at 316, 66 S.Ct. at 158. The Court stated that an estimate of the inconveniences which would result to the corporation from a trial away from its principal place of business was relevant in determining whether the demands of fair play and substantial justice had been met. Id. at 317, 66 S.Ct. at 158. It went on to explain that there could be instances in which the continuous corporate operations within a state could be thought so substantial and of such a nature as to justify suit against it on causes of actions arising from dealings entirely distinct from its continuous activities. Id. at 318, 66 S.Ct. at 159. The Court stated that as a general rule the commission of some single or occasional acts of the corporate agent in a state would not suffice to establish jurisdiction over the corporation. It pointed out, however, that some acts “because of their nature and quality and the circumstances of their commission,” could be deemed sufficient in and of themselves to render the foreign corporation liable to suit. Id. at 318, 66 S.Ct. at 159.
International Shoe’s main theme of “minimum contacts” and “traditional notions of fair play and substantial justice” has been replayed consistently by the Court with some variations and modifications. In McGee v. International Life Insurance Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957), the Court held that a contract which had a “substantial connection” with the forum State was a sufficient basis for allowing it to exercise jurisdiction in a suit based on that contract. Id. at 223, 78 S.Ct. at 201. The particular contract involved was a contract of insurance under which a Texas insurance corporation had agreed to insure a California resident. Suit was later instituted by the beneficiary of the insured against the insurer in California state court. The insurer had no office or agent in California, but the Court upheld the jurisdiction of the California court. It noted that the contract was delivered in California, that the premiums were mailed from there and that the insured was a resident of California when he died. Id. The Court concluded that California had “manifest interest in providing effective means of redress for its residents when their insurers refuse to pay claims.” Id. The Court pointed out that California residents, especially those having small claims, would be seriously disadvantaged if forced to follow the insurance company to a different state in order to hold it legally accountable, and determined that the comparative inconvenience caused to the insurer by having to litigate in California did not amount to a denial of due process. Id. at 224, 78 S.Ct. at 201.
In Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239, 2 L.Ed.2d 1283 (1958), the court reiterated the holding of International Shoe:
[I]t is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws. International Shoe Co. v. Washington, 326 U.S. 310, 319 [66 S.Ct. 154, 159, 90 L.Ed. 95].
The Court found that a Florida court had no jurisdiction to rule on the validity of a trust and power of appointment executed in Delaware with a Delaware trust company as trustee, even though the settlor of the trust was a Florida resident at her death. It distinguished McGee on the ground that the trust agreement had no connection with Florida. Id. at 252, 78 S.Ct. at 1239.
In Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977), a case involving quasi in rem jurisdiction, the court held that “all assertions of state-court jurisdiction must be evaluated according to the standards set forth in International Shoe and its progeny.” Id. at 212, 97 S.Ct. at 2584 (footnote omitted).
The case most pertinent is World-Wide Volkswagen Corp. v. Woodson, District Judge of Creek County, Oklahoma, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). The issue in World-Wide was
whether, consistently with the Due Process Clause of the Fourteenth Amendment, an Oklahoma court may exercise in personam jurisdiction over a nonresident automobile retailer and its wholesale distributor in a products-liability action, when the defendants’ only connection with Oklahoma is the fact that an automobile sold in New York to New York residents became involved in an accident in Oklahoma.
Id. at 287, 100 S.Ct. at 562. The Court reviewed International Shoe and progeny, it noted: “The limits imposed on state jurisdiction by the Due Process Clause, in its role as a guarantor against inconvenient litigation, have been substantially relaxed over the years,” id. at 292, 100 S.Ct. at 565, but pointed out that despite this relaxation, the due process clause ensures not only fairness but the “orderly administration of the laws,” quoting from International Shoe, 326 U.S. at 319, 66 S.Ct. at 159. 444 U.S. at 293-94, 100 S.Ct. at 565. Quoting again from International Shoe, 326 U.S. at 319, 66 S.Ct. at 159, the Court emphasized that “the Due Process Clause ‘does not contemplate that a state may make binding a judgment in personam against an individual or corporate defendant with which the state has no contacts, ties, or relations.’ ” 444 U.S. at 294, 100 S.Ct. at 565. It rejected the theory that foreseeability of an injury in states other than the one of manufacture or sale can be a foothold for jurisdiction. 444 U.S. at 295-96, 100 S.Ct. at 566. The foreseeability that the Court saw as critical was not “the mere likelihood that a product will find its way into the forum State. Rather, it is that the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.” 444 U.S. at 297, 100 S.Ct. at 567. The Court held that the sale of a product must be more than an isolated occurrence to ground jurisdiction, it must arise “from the efforts of the manufacturer or distributor to serve, directly or indirectly, the market for its product in other States.” 444 U.S. at 297, 100 S.Ct. at 567. Jurisdiction over a manufacturer is consonant with due process if it “delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State.” 444 U.S. at 298, 100 S.Ct. at 567. The Court found lack of jurisdiction because plaintiffs had no “contacts, ties, or relations” with the forum State. 444 U.S. at 299, 100 S.Ct. at 568.
Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984), involved a libel suit brought in New Hampshire by a resident of New York against an Ohio corporation. The Court found that defendant’s regular circulation of its magazine in New Hampshire was sufficient for jurisdiction. It noted:
Such regular monthly sales of thousands of magazines cannot by any stretch of the imagination be characterized as random, isolated, or fortuitous. It is, therefore, unquestionable that New Hampshire jurisdiction over a complaint based on those contacts would ordinarily satisfy the requirement of the Due Process Clause that a State's assertion of personal jurisdiction over a nonresident defendant be predicated on “minimum contacts” between the defendant and the State. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297-298 [100 S.Ct. 559, 567, 62 L.Ed.2d 490] (1980); International Shoe Corp. v. Washington, 326 U.S. 310, 317 [66 S.Ct. 154, 158, 90 L.Ed. 95] (1945).
Id. at 774, 104 S.Ct. at 1478.
In another libel case involving the question of jurisdiction decided the same day as Keeton, the Court, in finding jurisdiction was proper, quoted International Shoe’s statement of the requirements of “minimum contacts” and “traditional notions of fair play and substantial justice.” Calder and South v. Jones, 465 U.S. 783, 788, 104 S.Ct. 1482, 1486, 79 L.Ed.2d 804 (1984).
Helicopteros Nacionales De Colombia, S.A. v. Hall, 466 U.S. 408, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984) is a variation on the main theme. It involved a foreign corporation that did business in Texas. In rejecting Texas’ claim of jurisdiction, the Court held “that mere purchases, even if occurring at regular intervals, are not enough to warrant a State’s assertion of in personam jurisdiction over a nonresident corporation in a cause of action not related to those purchase transactions.” Id. at 418, 104 S.Ct. at 1874 (footnote omitted). In doing so, it relied on Rosenberg Bros. & Co. v. Curtis Brown Co., 260 U.S. 516, 43 S.Ct. 170, 67 L.Ed. 372 (1923), noting that “[t]his Court in International Shoe acknowledged and did not repudiate its holding in Rosenberg.” 466 U.S. at 418, 104 S.Ct. at 1874.
In the latest jurisdictional case, Burger King Corporation v. Rudzewicz, - U.S. -, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985), the Court stated that “the constitutional touchstone remains whether the defendant purposefully established ‘minimum contacts’ in the forum State,” citing to International Shoe, 326 U.S. at 316, 66 S.Ct. at 158. - U.S. at -, 105 S.Ct. at 2183. The Court pointed out that “minimum requirements inherent in the concept of ‘fair play and substantial justice’ may defeat the reasonableness of jurisdiction even if the defendant has purposefully engaged in forum activities,” citing to World-Wide Volkswagen Corp. v. Woodson, 444 U.S. at 292, 100 S.Ct. at 564. - U.S. at -, 105 S.Ct. at 2185. The Court found that Florida had jurisdiction over a Michigan franchisee of Burger King where the franchisee relationship was established in Florida, governed by Florida law and called for payment of all required fees and relevant notices to be sent to the Florida headquarters in Miami.
Based on International Shoe and its now considerable progeny, we find that Hughes’ contacts with Puerto Rico are too attenuated to ground jurisdiction. Prior to the accident, Hughes’ only contacts were the submission of the bid, a trip by a Hughes employee for technical help and advice, and a visit by a Hughes sales representative to Puerto Rico in 1977 or 1978. We do not think that attendance by two Puerto Rico Police Department mechanics at Hughes helicopter training school in Culver City, California, qualifies as a contact by Hughes with the forum State. Nor does the crash-investigation visit by a Hughes representative maximize its contacts to a jurisdictional dimension. See Escude Cruz v. Ortho Pharmaceutical Corp., 619 F.2d at 905; Mangual v. General Battery Corp., 710 F.2d 15, 19 (1st Cir.1983).
Appellants’ “stream of commerce” theory must be rejected. Assuming that Hughes knew that the destination of the helicopters was Puerto Rico, we do not think that the sale of two helicopters to a police department can be the source of a stream of commerce. This is not like opening up a particular territory for sales to the general public. Nor can the single advertisement of Hughes helicopters that Car-rasco saw in a magazine be viewed as the incipient source of a stream of commerce. There is nothing in the record showing that Hughes advertised regularly in magazines circulated in Puerto Rico or aimed its advertising at Puerto Rico. The sale, here, was not a stream or the beginning of one; it was an isolated splash. It was not the type of transaction that could reasonably lead a manufacturer to believe would be the basis for haling him into court in Puer-to Rico.
We do not think that whether Hughes knew that the helicopters were being sold to the Puerto Rico Police Department has any jurisdictional significance. The test is not knowledge of the ultimate destination of the product, but whether the manufacturer has purposefully engaged in forum activities so it can reasonably expect to be haled into court there, and, even then, the minimum requirements of “fair play and substantial justice” may defeat jurisdiction. Burger King, - U.S. at -, 105 S.Ct. at 2185; World-Wide Volkswagen, 444 U.S. at 292, 100 S.Ct. at 564. See Commonwealth of Puerto Rico v. S.S. Zoe Colocotroni, 628 F.2d 652, 667 (1st Cir.1980). All of the purposeful activities here were initiated and carried on by Carrasco of Helicopter Rental Co. He contacted Hughes to obtain information necessary to submit a bid and then went to Georgia to facilitate the purchase.
Finally, no jurisdictional consequence follows from the fact that Hughes directly or indirectly may have controlled Carib. Carib, whatever its status vis-a-vis Hughes, was a Florida corporation and there is nothing in the record indicating it did any business in Puerto Rico. In Escude Cruz v. Ortho Pharmaceutical Corp. we noted that “[t]he mere fact that a subsidiary company does business within a state does not confer jurisdiction over its nonresident parent, even if the parent is sole owner of the subsidiary.” 619 F.2d at 905. There is no jurisdictional footing whatsoever in the dealings between Hughes and Carib.
Affirmed.
. Now Hughes Aircraft Company.
. There is a letter in the record, Exhibit 2, from Todd to Carrasco dated June 8, 1980, to which was attached "a print out showing the finite life and TBO components of the Hughes 300C cost of operation financial summary.” The letter gives other cost information about the 300C Hughes helicopter and recommends that Carras-co “have the aircraft flown to P.R. from the Hughes plant." The discrepancy in dates was not explained.
. Carib Aviation, Inc., the rejected bidder, and Carib Helicopters, Inc. have the same Miami address so, for our purposes, we treat them as a single entity.
. We are not suggesting that Carib was not a completely independent corporation. This is merely an arguendo.
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_appnatpr
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
The Second National Natural Gas Rate Cases AMERICAN PUBLIC GAS ASSOCIATION et al., Petitioners, v. FEDERAL POWER COMMISSION, Respondent.*
No. 76-2000.
United States Court of Appeals, District of Columbia Circuit.
Argued March 23,1977 and March 24,1977.
Decided June 16, 1977.
As Amended on Denial of Rehearing Aug. 17, 1977.
See also, 180 U.S.App.D.C. 380, 555 F.2d 852.
Charles F. Wheatley, Jr., Washington, D. C., with whom William T. Miller and Stanley W. Balis, Washington, D. C., were on the brief for petitioners in No. 76-2000 and intervenors, American Public Gas Ass’n, et al.
James L. Feldesman, Washington, D. C., was on the brief for petitioner, Consumer Federation of America in No. 76-2000.
Warren R. Spannaus, Atty. Gen., State of Minnesota, St. Paul, Minn., was on the brief for petitioner, State of Minnesota in No. 76-2000.
Rodney A. Wilson, Sp. Asst. Atty. Gen., State of Minnesota, St. Paul, Minn., was on the brief for petitioner, Minnesota Public Service Commission in No. 76-2000.
Steven M. Schur, Chief Counsel, Public Service Commission of Wisconsin, Madison, Wis., was on the brief for petitioner, Public Service Commission of Wisconsin in No. 76-2000.
David B. Graham, Washington, D. C., was on the brief for petitioner, Natural Rural Elec. Co-op. Ass’n in No. 76-2000.
John Gunther, Washington, D. C., was on the brief for petitioner, United States Conference of Mayors in No. 76-2000.
James F. Flug, Washington, D. C., was on the brief for petitioner, Energy Action Committee in No. 76-2000.
Stephen Schlossberg, Detroit, Mich., was on the brief for petitioner, United Automobile, Aerospace and Agriculture Implement Workers of America in No. 76-2000.
Frank W. Frisk, Jr., Washington, D. C., was on the brief for petitioner, American Public Power Ass’n in No. 76-2000.
Charles Brannan, Denver, Colo., was on the brief for petitioner, National Farmers Union in No. 76-2000.
Lee D. Sinclair, Potomac, Md., was on the brief for petitioner, National Farmers Organization in No. 76-2000.
Leslie G. Foschio, Corp. Counsel, Buffalo, N. Y., was on the brief for petitioner, City of Buffalo, New York in No. 76-2000.
William Straub, Erie County Atty., Buffalo, N. Y., was on the brief for petitioner, County of Erie, New York in No. 76-2000. James L. Magavern, Buffalo, N. Y., also entered an appearance for petitioner in No. 76-2000.
Geoffrey L. Brazier, Helena, Mont., was on the brief for petitioner, Montana Consumer Counsel in No. 76-2000.
Felix G. Forlenza, Newark, N. J., was on the brief for petitioner, New Jersey Bd. of Public Utility Commissioners in No. 76-2000. Carla Vivian Bello, Newark, N. J., also entered an appearance for petitioner, New Jersey Bd. of Public Utility Commissioners in No. 76-2000.
Daniel Guttman, Washington, D. C., with whom Alan Roth, Washington, D. C., was on the brief for petitioners in No. 76-2001 and intervenors, Senators James Abourezk, et al.
Richard A. Solomon, Washington, D. C., with whom Peter H. Schiff, Albany, N. Y., Gen. Counsel, Public Service Commission of the State of New York and Sheila S. Hollis, Washington, D. C., were on the brief for petitioner in No. 76-2072 and intervenor, The Public Service Commission of the State of New York.
Frederick Moring, Washington, D. C., with whom Philip M. Marston, Washington, D. C., was on the brief for petitioner in Nos. 76-2137 and 77-1013 and intervenors, Associated Gas Distributors. Dana Contratto, Washington, D. C., also entered an appearance for intervenor, Associated Gas Distributors.
John F. Bates, Salt Lake City, Utah, with whom Robert S. Campbell, Jr., and R. G. Groussman, Salt Lake City, Utah, were on the brief for petitioner in No. 77-1005.
C. William Cooper, Falmouth, Mass., and Tilford A. Jones, Bethesda, Md., for petitioners in No. 76-2041 and intervenor, United Distribution Companies.
Gordon Gooch, Washington, D. C., with whom Charles M. Darling, IV, Washington, D. C., John M. Young, Michael B. Silva and Phyllis Rainey, Houston, Tex., were on the brief for petitioners in Nos. 77-1060 and 77-1067 and intervenors, Pennzoil Co., et al. and Tenneco Oil Co., et al.
Thomas G. Johnson, Houston, Tex., for petitioner in No. 77-1065 and intervenor, Shell Oil Co.
J. Evans Attwell, Houston, Tex., with whom Judy M. Johnson, Houston, Tex., was on the brief for petitioners in Nos. 76-2108, 77-1068, 77-1069 and intervenors, Austral Oil Co., Inc., Aztec Oil and Gas Co., Belco Petroleum Corp. and Transocean Oil, Inc.
Bernard A. Foster, III, Washington, D. C., with whom H. H. Hillyer, Jr., New Orleans, La., was on the brief for petitioners in No. 77-1075.
Paul W. Mallory, Chicago, 111., with whom Joseph M. Wells, Paul E. Goldstein, Chicago, 111., and Harry L. Albrecht, Washington, D. C., were on the brief for petitioner in No. 77-1121 and intervenor, Natural Gas Pipeline Co. of America in Nos. 76-2053, 76-2041 and 76-2072.
Drexel D. Journey, Gen. Counsel, Federal Power Commission and Patrick J. Keeley, Atty., Federal Power Commission, Washington, D. C., with whom Robert W. Per-due, Deputy Gen. Counsel and Allan Abbot Tuttle, Sol., Federal Power Commission, Washington, D. C., were on the brief, for respondent. Philip R. Telleen, Atty., Federal Power Commission, Washington, D. C., also entered an appearance for respondent.
John L. Williford, Bartlesville, Okl., was on the brief for petitioner in No. 76-2069 and intervenor, Phillips Petroleum Co.
B. James McGraw and A. Randall Friday, Houston, Tex., were on the brief for petitioner in Nos. 77-1022 and 77-1140 and intervenor, Gulf Oil Corp.
Derrill Cody and' Patricia D. Robinson, Oklahoma City, Okl., were on the brief for petitioner in No. 77-1118 and intervenor, Kerr-McGee Corp.
Tom P. Hamill, R. D. Haworth and Roscoe Elmore, Houston, Tex., were on the brief for petitioner in No. 77-1126 and in-tervenor, Mobil Oil Corp.
W. B. Wagner, Jr., Pat F. Timmons, James M. Dunnam, Houston, Tex., and David Bonderman, Washington, D. C., were on the brief for petitioner in No. 77-1052 and intervenor, The Superior Oil Co.
Martin N. Erck, Paul W. Wright and Edmunds Travis, Jr., Houston, Tex., were on the brief for petitioner in No. 77-1127 and intervenor, Exxon Corp.
David M. Whitney, Houston, Tex., was on the brief for petitioner in No. 77-1066 and intervenors, Aminoil Production Co.
Wm. H. Emerson, Tulsa, Okl., was on the brief for petitioner in No. 77-1120 and in-tervenor, Amoco Production Co.
R. F. Generelly, Washington, D. C., was on the brief for petitioner in No. 77-1016 and intervenors, Ashland Oil, Inc. and General American Oil Co. of Texas and also entered an appearance for petitioner in No. 77-1063.
E. J. Kremer and D. Aston, Dallas, Tex., were on the brief for petitioner in No. 77-1220 and intervenor, Atlantic Richfield Co.
Edwin S. Nail, Boston, Mass., was on the brief for petitioner in No. 77-1117 and in-tervenor, Cabot Corp.
Robert S. Wheeler and Sam Riggs, Jr., Tulsa, Okl., were on the brief for petitioner in No. 77-1119 and intervenor, Cities Service Oil Co.
Tom Burton and John M. Badger, Houston, Tex., were on the brief for petitioner in No. 77-1039 and intervenor, Continental Oil Co. Gordon Gooch, Houston, Tex., and Charles M. Darling, IV, Washington, D. C., also entered an appearance for petitioner in No. 77-1039.
Scott P. Anger, Washington, D. C., was on the brief for petitioner in No. 77-1070 and intervenor, Enserch Exploration, Inc.
Wm. Neal Powers, Jr., Houston, Tex., was on the brief for petitioners in Nos. 77-1072 and 77-1074 and intervenors, Free-port Minerals Co., Ecee, Inc., et al. and Estate of E. Cockrill, Jr., et al.
Clay D. Monzingo was on the brief for petitioner in No. 77-1219 and intervenor, Getty Oil Co. Jack L. Brandon also entered an appearance for intervenor, Getty Oil Co.
Robert W. Henderson, Dallas, Tex., was on the brief for petitioners in No. 77-1071 and intervenors, Hunt Oil Co., et al.
Arthur S. Berner, New York City, was on the brief for petitioner in No. 77-1073 and intervenor, Inexco Oil Co. Wm. Neal Powers, Jr., Houston, Tex., also entered an appearance for petitioner in No. 77-1073.
William A. Sackman, Findlay, Ohio, was on the brief for petitioner in No. 76-2103 and intervenor, Marathon Oil Co.
Paul W. Hicks, Dallas, Tex., was on the brief for petitioner in No. 77-1064 and in-tervenor Placid Oil Co. Jimmy C. Bailey, Dallas, Tex., also entered an appearance for petitioner in No. 77-1064 and intervenor, Placid Oil Co.
Richard F. Remmers, Oklahoma City, Okl, was on the brief for petitioner in No. 77-1141 and intervenor, Sohio Petroleum Co.
Roger L. Brandt, Houston, Tex., was on the brief for petitioner in No. 77-1139 and intervenor, Texaco, Inc. William T. Ben-ham, Houston, Tex., also entered an appearance for intervenor, Texaco, Inc.
Kenneth L. Riedman, Jr., and Richard F. Wornson, Los Angeles, Cal., were on the brief for petitioner in No. 77-1221 and in-tervenor, Union Oil Co. of California.
Gordon P. MacDougall, Sp. Asst. Counsel, Commonwealth of Pennsylvania, Washington, D. C., was on the brief for interve-nors, Commonwealth of Pennsylvania and Pennsylvania Public Utilities Commission in No. 76-2000.
Harold B. Scoggins, Jr., Oklahoma City, Okl., was on the brief for intervenor, Independent Petroleum Ass’n of America in Nos. 76-2000 and 76-2001.
J. Randolph Elliott, Los Angeles, Cal., was on the brief for intervenor, Statex Petroleum, Inc.
Gordon Gooch, Houston, Tex., was on the brief for intervenors, Felmont Oil Corp., Coquina Oil Corp. and The Rodman Co.
A. S. Lacy, Birmingham, Ala., was on the brief for intervenor, Alabama Gas Corp. in No. 76-2000.
Ben Stead, Asst. Atty. Gen., for the Public Utilities Commission of the State of South Dakota, was on the brief for interve-nor, Public Utilities Commission, State of South Dakota.
M. Howard Petricoff and Henry J. Bour-guignon, Toledo, Ohio, filed a brief on behalf of the City of Toledo, Ohio as amicus curiae urging reversal.
Philip C. Wrangle, Birmingham, Ala., filed a brief on behalf of Sonat Exploration Co. and the Offshore Co. as amicus curiae urging reversal.
J. Evans Attwell and Judy M. Johnson, Houston, Tex., filed a brief on behalf of Small Producers as amicus curiae urging reversal.
Eugene W. Ward and T. E. Midyett, Jr., Nashville, Tenn., entered appearances for petitioner in No. 76-2053.
J. David Mann, Jr., Washington, D. C., entered an appearance for petitioner in No. 76-2147 and intervenor, Laclede Gas Co.
H. Lamar Curtis, Houston, Tex., entered an appearance for intervenor, J. M. Huber Corp.
Jerome J. McGrath, Washington, D. C., entered an appearance for intervenor, Interstate Natural Gas Ass’n of America.
Ronald E. Jarrett and Ronald J. Jacobs, Tulsa, Okl., entered appearances for inter-venor, Skelly Oil Co.
James D. Olsen, Richardson, Tex., entered an appearance for intervenor, Sun Oil Co. (Delaware).
George W. Hugo, Houston, Tex., and Bruce F. Kiely, Washington, D. C., entered an appearance for intervenor, Texas Gulf, Inc.
Thomas W. Lynch, Tulsa, Okl., entered an appearance for intervenor, Texas Pacific Oil Co., Inc.
Peter W. Hanschen, Malcolm H. Furbush and Daniel E. Gibson, San Francisco, Cal., entered appearances for intervenor, Pacific Gas and Elec. Co.
David G. Stevenson, Tulsa, Okl., entered an appearance for intervenor, Amerada Hess Corp.
Justin R. Wolf, Washington, D. C., entered an appearance for intervenors, The California Co., et al. and Chevron Oil Co., Western Division.
T. Brooke Farnsworth and Wm. Neal Powers, Jr., Houston, Tex., entered appearances for intervenor, Damson Oil Corp.
Harold L. Talisman, Dale A. Wright, Melvin Richter, Gregory Grady and Terence J. Collins, Washington, D. C., entered appearances for intervenors, Cities Service Gas Co. and Tennessee Gas Pipeline Co., etc.
Toney Anaya, Atty. Gen., New Mexico and Cameron R. Graham, Sp. Asst. Atty. Gen., Santa Fe, N. M., entered appearances for intervenor, State of New Mexico.
Jeffrey A. Meith and Thomas D. Clarke, Los Angeles, Cal., entered appearances for intervenor, Southern California Gas Co.
James L. Bomar, Jr., Shelbyville, Tenn., entered an appearance for intervenor, East Tennessee Group.
John B. Randolph, Washington, D. C., entered an appearance for intervenor, Mississippi River Transmission Corp.
Before FAHY, Senior Circuit Judge, LEVENTHAL, Circuit Judge, and GER-HARD A. GESELL, United States District Judge for the United States District Court for the District of Columbia.
Consolidated with the following cases (identified by this Circuit’s case number and petitioner) originally arising in or transferred to this Circuit, in all of which the Federal Power Commission is the respondent:
Originally filed in this Circuit: 76-2001, Senators James Abourezk, John Durkin, and William Proxmire, and Representatives Les Aspin, Berkley Bedell, William Brodhead, et al.; 76-2041, United Distribution Companies; 76-2053, Tennessee Public Service Commission; 76-2069, Phillips Petroleum Company; 76-2072, Public Service Commission of the State of New York; 76-2103, Marathon Oil Company; 76-2108, Belco Petroleum Corporation; 76-2137, Associated Gas Distributors; 76-2147, Laclede Gas Company; 77-1005, Mountain Fuel Supply Company; 77-1016, Ashland Oil Inc.; 77-1022, Gulf Oil Corporation:
From the First Circuit: 77-1117, Cabot Corporation;
From the Second Circuit: 77-1126, Mobil Oil Corporation; 77-1127, Exxon Corporation;
From the Third Circuit: 77-1139, Texaco, Inc.; 77-1140, Gulf Oil Corporation; 77-1141, Sohio Petroleum Company;
From the Fiñh Circuit: 77-1039, Continental Oil Company; 77-1052, Superior Oil Company; 77-1060, Tenneco Oil Company; 77-1063, General American Oil Company of Texas; 77-1064, Placid Oil Company; 77-1065, Shell Oil Company; 77-1066, Aminoil USA, Inc., et al.; 77-1067, Pennzoil Company, et al.; 77-1068, Aztec Oil and Gas Company; 77-1069, Austral Oil Company, Inc; 77-1070, Enserch Exploration, Inc.; 77-1071, Hunt Oil Company, et al.; 77-1072, Freeport Minerals Company; 77-1073, Inexco Oil Company; 77-1074, Ecee, Inc., et al.; 77-1075, Louisiana Land and Exploration Company, et al.;
From the Seventh Circuit: 77-1120, Amoco Production Company; 77-1121, Natural Gas Pipeline Company of America;
From the Ninth Circuit: 77-1219, Getty Oil Company; 77-1220, Atlantic Richfield Company; 77-1221, Union Oil Company;
From the Tenth Circuit: 77-1118, Kerr-McGee Corporation; 77-1119, Cities Service Oil Company; 77-1288, Skelly Oil Company.
Sitting by designation pursuant to 28 U.S.C. § 292(a).
Opinions for the Court filed by LEVEN-THAL, Circuit Judge, and FAHY, Senior Circuit Judge.
Opinion dissenting in part by FAHY, Senior Circuit Judge.
TABLE OF CONTENTS
Opinion for the Court by Circuit Judge LEVENTHAL........•...............1025
I. OVERVIEW AND SCOPE OF REVIEW..............................1027
A. Regulatory Background.........................................1027
B. Procedure in FPC Docket....................................... 1027 •
C. Scope of Issues................................................1028
D. Standards of Judicial Review....................................1028
1. General FPC Approach......................................1030
2. Examination of Reasons and Changes...........................1031
3. Experimental and Dynamic Features of Novel Regulation...........1031
II. PROCEDURAL ISSUES..................'.........................1032
III. REINSTATEMENT OF VINTAGING TO AVOID EXCESSIVE PROFITS.. 1033
IV. COST ALLOWANCE FOR INCOME TAXES PAYABLE................1034
A. Departure from Prior Policy.....................................1034
B. Use of an Economic Model......................................1036
C. Specific Objections to the Model..................................1039
1. Consolidated Returns........................................1039
2. Increased Intangible Drilling Costs.............................1040
D. Conclusion....................................................1042
V. PRODUCTIVITY AND GAS RESERVES.............................1043
VI. ATTACKS ON NATIONAL APPROACH TO COSTS AND PRICES.......1049
A. Failure to Distinguish Between Onshore and Offshore Gas Costs........1049
B. Claimed Need for Area Rate Regulation...........................1051
VII. COST IMPACT OF ADVANCE PAYMENTS..........................1052
VIII. CONTINUATION OF THE OPINION 699 RATE FOR “ROLLOVER” GAS.. 1057
IX. APPLICATION OF BIENNIUM RATES......'........................1061
X. CONCLUSION....................................................1063
Opinion for the Court bv Senior Circuit Judge FAHY.......................1064
XI. THE PROCEDURES FOLLOWED BY THE COMMISSION
WERE LAWFUL.................................................1064
XII. THE COMMISSION WAS NOT DISQUALIFIED TO ISSUE
OPINION NO. 770-A..............................................1067
Attachment.......................................................1070
Opinion of Senior Circuit Judge FAHY. dissenting in part...................1073
I. THE INCOME TAX COMPONENT..................................1073
II. PAST ADVANCE PAYMENTS......................................1078
LEVENTHAL, Circuit Judge:
This case presents petitions to review the 1976 orders of the Federal Power Commission in the second nationwide natural gas rate proceeding.
The pertinent orders embrace Opinion No. 770, issued July 27, 1976; clarifying orders issued in September and October 1976; and Opinion No. 770 — A, on rehearing, issued November 5, 1976. In brief, the FPC’s orders prescribed the following rates:
(a) $1.42 per Mcf, for sales of gas from wells commenced on or after January 1, 1975 — with provision for escalation.
(b) $0.93 Mcf — reduced from the $1.01 rate prescribed in Opinion 770 — for 1973-1974 biennium gas, i. e., sales of gas from wells commenced on or after January 1, 1973 and prior to January 1, 1975. This rate is also subject to escalation.
(c) $0.52 per Mcf, applicable to sales of gas under “renewal contracts” where a contract has expired by its own terms. Again there is escalation.
These rates represent increases from the nationwide rate of $.52 per Mcf, established by Opinion No. 699-H, which was upheld in Shell Oil Co. v. FPC, 520 F.2d 1061 (5th Cir. 1975), cert. denied sub nom. California Co. v. FPC, 426 U.S. 941, 96 S.Ct. 2660, 49 L.Ed.2d 394 (1976).
The impact of the increase was estimated by the Commission at from $1.49 to $1.78 billions during the next 12 months.
Within seconds after Opinion 770-A issued, competing petitions for review were filed in this circuit and in other circuits. A panel of this court heard oral argument on the question of the proper venue for this proceeding and held that although petitions for review had been filed simultaneously in this circuit and the Fifth Circuit, the ultimate standard announced by 28 U.S.C. § 2112(a), “the convenience of the parties in the interest of justice,” dictated that the case be heard in the District of Columbia, American Public Gas Association v. FPC, No. 76-2000, 180 U.S.App.D.C. 380, 555 F.2d 852 (1976).
This court issued orders for an expedited briefing schedule. We heard oral argument on March 23 and 24, 1977. All petitioners complain that the FPC orders violate pertinent statutory mandates, lack support in substantial evidence and are arbitrary and capricious. Essentially, the consumer petitioners complain that the rates by the FPC are too high; the producer petitioners complain that those rates are too low. There are also other parties and positions, as will appear.
Pending disposition, this court provided for contingent refunds. While Opinion 770 was under reconsideration by the Commission, this court exercised its jurisdiction under the All Writs Act, 28 U.S.C. § 1651 (1970), to preserve the possibility of a refund. See Order of August 9, 1976, American Public Gas Association v. FPC, 177 U.S.App.D.C. 209, 543 F.2d 356 (1976). After issuance of Opinion 770-A, this court stayed the FPC’s orders except as to producers who undertook to refund portions of the rate increases subsequently held unlawful and except as to gas from onshore wells commenced after July 27, 1976. Order of November 9, 1976, amended November 18, 1976, included as appendices to American Public Gas Association v. FPC, No. 76-2000, 180 U.S.App.D.C. 380, 555 F.2d 852 (1976)
We have given due consideration to a vast number of issues raised by the various petitioners. We cannot practicably speak separately to each of the issues, but the considerable discussion we provide, for the issues of primary consequence, will fairly identify the bases of our conclusion that the orders before us should be affirmed. For convenience, we have provided a Table of Contents, supra, identifying the topics specifically discussed by the court and in the dissenting opinion of Judge Fahy.
I. OVERVIEW AND SCOPE OF REVIEW
A. Regulatory Background
The FPC’s first venture into a national rate for new natural gas came in its Docket No. R-389-B. This resulted in Opinion 699 and amendments, culminating in Opinion No. 699-H, issued December 4, 1974, which fixed a nationwide base rate of 52$ per Mcf throughout the United States (except Alaska) for new gas (governing wells commenced and deliveries begun after January 1, 1973, and also new contracts replacing expired contracts on “flowing gas”). Opinion 699 and its subsequent clarifications were affirmed in the 1975 Shell opinion of the Fifth Circuit. That opinion sketches, and we do not repeat, the background of previous developments in producer regulation — the FPC’s early abstinence; the 1954 Phillips decision, that the Natural Gas Act provided for regulation of prices charged by natural gas producers in interstate sales; and the FPC’s regulation of producers by regional areas, upheld in the Permian Basin Area Rate Cases, 390 U.S. 747, 88 S.Ct. 1344, 20 L.Ed.2d 312 (1968).
Shortly after beginning Docket R-389-B, the FPC commenced a separate Docket No. R-478, to fix nationwide rates for “flowing gas,” from wells drilled prior to January 1, 1973. Opinion No. 749, issued on December 31,1975, established a rate of 23.5$ per Mcf, increasing to 29.5$, as of July 1, 1976, the date when the 22% depletion tax allowance expired for regulated gas production. That is pending on review in the Fifth Circuit.
B. Procedure in FPC Docket
On December 4, 1974, the same day that Opinion 699-H issued, the FPC instituted Docket RM-75-14, which culminated in the orders and opinions (770 and 770-A) currently under review. The notice projected need for a revision of Opinion 699-H to govern new natural gas for the 1975-1976 biennium and such changes as might further the public interest.
The FPC did not propose specific rates in its Notice but stated it would rely on responses by the parties and Commission staff. The order designated as respondents all interstate pipeline companies, and all producers with jurisdictional sales exceeding 10 million Mcf per annum, who have since participated as Indicated Producer Respondents. Ultimately some 46 parties and groups of parties, representing all segments of the natural gas industry and the consuming public, filed written comments and cross-comments on a host of matters.
The ability of parties to comment was limited in one respect much stressed to this court — concerning the matter of the Staff’s study of 31 off-shore Louisiana gas leases in order to probe the issue of gas reserves.
C. Scope of Issues
Opinions 770 and 770A establish rates dramatically higher than the national rates previously established in Opinion 699-H: - a near-tripling for new gas; for the 1973 — 74 biennium, an increase from 52 to 93 cents. As already noted, the Commission estimated an impact of the increase over the next year ranging from $1.49 to $1.78 billions.
Commensurate with these figures are the complexity, variety and range of the issues raised by the consumer protests. Nor have the producers been supine. Their complaints against the level of the rates, and their perceived inadequacy, are sharpened by their anguish that the FPC has reverted to the practice — abandoned in Opinion 699-H — of vintaging gas prices according to the period of production; and by resentment that Opinion 770-A, in response to consumer presentations on rehearing, set a price for the 1973-74 biennium of 93 cents instead of the $1.01 set in Opinion 770, and narrowed the eligibility for higher new rates.
This is a major case. This court’s 1976 orders provided for submission on a expedited basis. The need for expedition of the decision and opinion has been underscored by the increasing awareness that the country is in the midst of an energy crisis, and is considering measures to cope with it.
The court has also sought to expedite issuance of its opinion. All issues tendered have been given careful consideration, although they have not been discussed in the detail used by the parties. Issues not discussed in this opinion are technical; many concern matters where we agree with the disposition in Shell, and they would not account for any significant portion of the rate increase under review.
D. Standards of Judicial Review
The matrix of a court’s consideration of the validity of a natural gas rate order lies in the scope of and standard for judicial review defined in pertinent decisions.
“[Judicial review] begins at the threshold, with enforcement of the requirement of reasonable procedure, with fair notice and opportunity to the parties to present their case.” Greater Boston TV v. FCC, 143 U.S.App.D.C. 383, 392, 444 F.2d 841, 850 (1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 29 L.Ed.2d 701 (1971). The de tails and techniques differ, but the essential principles apply even in proceedings governed by notice-and-comment disposition rather than evidentiary hearings. Portland Cement Assn. v. Ruckelshaus, 158 U.S.App.D.C. 308, 486 F.2d 375 (1973), cert. denied, 417 U.S. 921, 94 S.Ct. 2628, 41 L.Ed.2d 226 (1974).
In substantive terms, the Administrative Procedure Act describes the principal judicial function with the direction that the reviewing court shall set aside agency action found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). The APA’s terms direct inquiry whether the agency is “unsupported by substantial evidence” only in a case subject to 5 U.S.C. §§ 556, 557, or reviewed “on the record of an agency hearing provided by statute.” The Natural Gas Act does not expressly require a hearing on the record. United States v. Florida East Coast Ry., 410 U.S. 224, 93 S.Ct. 810, 35 L.Ed.2d 223 (1973). Section 19(b) of the Natural Gas Act, 15 U.S.C. § 717 et seq., does provide that the “finding of the Commission as to the facts, if supported by substantial evidence, shall be conclusive.”
The issue of procedure — the permissibility of notice-and-written comment (informal rule making) — is considered separately, in Judge Fahy’s Opinion for the Court.
Some commentators have also put it that a statutory reference to “substantial evidence” requires a more rigorous standard of review than the arbitrary-capricious standard. We agree with Judge Friendly that the issue is largely semantic, and that the two criteria “tend to converge” in notice-and-comment rule making. Associated Industries of New York v. Dept. of Labor, 487 F.2d 342, 348-350 (2d Cir. 1973). What is basic is the requirement that there be support in the public record for what is done, City of Chicago v. FPC, 147 U.S.App.D.C. 312, 458 F.2d 731 (1971), cert. denied, 405 U.S. 1074, 92 S.Ct. 1495, 31 L.Ed.2d 808 (1972).
The ultimate standard of reasonableness of Federal Power Commission rate-making was given an early gloss by the Supreme Court in terms of the “end result
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_genresp1
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
UNITED STATES of America, Appellee, v. Riddick BROWN, Appellant.
No. 8205.
United States Court of Appeals Fourth Circuit.
Argued Jan. 6, 1961.
Decided Jan. 9, 1961.
Len Holt, Norfolk, Va. (Joe Jordan and Ed Dawley, Norfolk, Va., on the brief), for appellant.
Shanley Keeter, Asst. U. S. Atty., Richmond, Va. (Joseph S. Bambacus, U. S. Atty., Richmond, Va., on the brief), for appellee.
Before SOBELOFF, Chief Judge, HAYNSWORTH, Circuit Judge, and HUTCHESON, District Judge.
PER CURIAM.
The defendant, convicted of theft of government property, complains of the court’s charge. He says that the court emphasized -the elements of the offense, particularly by defining the element of asportation. The District Judge was required to do so, and his definition of asportation was extremely pertinent in light of the emphasis by the defense upon the fact that the property had not been removed from the Navy Yard.
There is no contention that the charge was in any way incorrect. We have reviewed the entire charge and find it to be fair, balanced and unobjectionable.
Affirmed.
Question: What is the nature of the first listed 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_counsel2
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E
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
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
Tony A. COLEMAN, Appellant, v. UNITED STATES of America, Appellee.
No. 17444.
United States Court of Appeals District of Columbia Circuit.
Argued Feb. 15, 1963.
Decided April 19, 1963.
Mr. John W. Kern, III, Washington, D. C., with whom Mr. Cecil A. Beasley, Jr., Washington, D. C. (both appointed by this court) was on the brief, for appellant.
Mr. William C. Weitzel, Jr., Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., and Frank Q. Nebeker, Asst. U. S. Atty., were on the brief, for appellee.
Before Washington, Danaher and Burger, Circuit Judges.
DANAHER, Circuit Judge.
This case presents an attack upon rulings by the trial judge as to the admissibility of evidence. Two phases are involved, the first dealing with an oral admission after arrest upon adequate probable cause. 2*The other had to do with earlier and totally unrelated offenses as to which the police had no evidence of complicity by the appellant except oral admissions and a confession elicited during interrogation after a time when he should have been presented before a committing magistrate.
The “seventh count” charged an attempted housebreaking which took place at 12:25 A.M. on February 24,, 1961. The offense occurred practically in the presence of an officer who placed the appellant under arrest and took him to the precinct. There, as will appear, the appellant admitted his purpose to gain admittance to a delicatessen store at 944 Eye Street, N. W. The appellant argued in the District Court and here that his oral admission should not have been received in evidence against him for he was not presented before the Commissioner until about 10 o’clock the next morning.
The other phase, the real heart of the case, involves admissions and a written confession which predicated counts one through six, which, respectively, charged housebreaking and larceny, each pair of counts relating to offenses which occurred on February 16, 19, and 21, 1961. After the appellant had been brought to the precinct on the attempted housebreaking charge, two detectives who were out in a cruiser were sent for. They took the appellant to a back room where they interrogated him. Their purpose was to ascertain appellant’s possible complicity in certain “open” cases, burglaries in which, it was said, a common “technique” or pattern had been followed. The Government has argued here that court decisions applying the exclusionary rule in cases where there has been unnecessary delay in presenting the accused before a magistrate, apply only to “one-of-a-kind” situations. It is contended that the detectives here might properly have been “concerned that perhaps appellant was confused and had been confessing to some of these housebreakings when in fact he did not commit them.” They had been committed in the same area in which the appellant had been arrested. They were said to have possessed certain similarities in execution and in the type of items stolen. We do not doubt that the police had a genuine interest in what appellant might have to say — but they had no evidence against him respecting counts one to six. We turn to more minute details.
About 12:25 A.M. on February 24, 1961, an officer observed the appellant who was then standing in the doorway of a delicatessen store. As the officer approached, appellant moved away some 10 to 15 feet, but by then, the officer could obtain a view of the doorway. He observed that a padlock had been knocked off and was hanging on one side of the door. He asked the appellant what he was doing in the neighborhood and was told that appellant was waiting for a friend. The officer then perceived an iron bar protruding from appellant’s overcoat pocket. Appellant explained that he carried the 18-ineh tire iron for self-protection. The officer arrested the appellant and searched him, finding in his pocket a pair of pliers and a screw driver. Appellant was then taken to the precinct, where the arresting officer reported to a sergeant. The arresting officer did not question the appellant at the precinct, but placed him in a “license room.” It seems clear enough that Coleman thus, in light of such uncontroverted evidence, had not been brought to headquarters that a “process of inquiry” might be pursued to elicit “damaging statements to support the arrest and ultimately his guilt.”
But with the appellant in custody, an officer at headquarters sent for two detectives “to interrogate the defendant,” as a Government witness testified. Apparently they were in charge of the investigation into the three earlier “open” cases. They arrived about 1 A.M., and took Coleman to their office in the rear of the precinct. While questioning appellant to gain information for a “line-up” sheet as to the attempted housebreaking for which he had been arrested, a detective asked Coleman if' he had attempted an entrance to the-delicatessen. As the appellant at first denied complicity and the occurrence was readily susceptible to quick verification, one of the detectives went out to the-store and returned with paint samples- and chips taken from the door, and confronted Coleman. 5Appellant’s original denial then became “within a few minutes,” a frank admission after he-saw the samples of paint and wood chips which, the detectives told appellant, were to be sent to the F.B.I. laboratory for purposes of comparison with particles found on the jimmy. The appellant-stated “he was trying to break in 944-Eye St.” Appellant’s oral admission, simply supplemented what was already known to, and at trial, clearly established by the testimony of the officer. We have-not been shown unlawful police “purpose” or such a lack of “circumstances of legality” as to require reversal on this, aspect of the case.
But that is not the end of the matter, for the interrogation went forward. The appellant was not then brought before a committing magistrate. The record shows that trial counsel developed that a Municipal Judge could have been called to conduct a preliminary hearing. An Assistant United States Attorney was available for nighttime appearances. But the police did not call one of the prosecutors nor was a judge notified. With ample evidence upon which to present Coleman, the detectives did not even “book” him — then, or throughout the night.
Instead, it develops, the detectives really were interested in ascertaining whether or not the appellant was implicated in three other housebreaking episodes which had occurred on February 16, February 19 and February 21, 1961. All of these “open” cases involved small restaurants in the neighborhood, and in each, access had been gained by the use of a jimmy, such as the appellant’s tire iron. The detectives questioned the appellant over the next hour or so. He finally admitted that he had broken into the premises involved, after which the police took him out of the precinct and put him into a police car that together they might view the scenes of the offenses in question. Thereafter the entire party returned to the precinct about 3:30 A.M. Over the next hour or so, one of the detectives typed up the appellant’s confession, and Coleman signed it.
It would seem unnecessary in view of the Mallory opinion and our own subsequent decisions, that we now do more than point to what the Supreme Court has said is the “scheme for initiating a federal prosecution.”
First, wrote Mr. Justice Frankfurter, there must be no arrest on mere suspicion but only upon probable cause. Next, Rule 5 requires the prompt presentation of the accused before a committing magistrate. The accused must be advised of his rights as the Rule provides, and particularly he must be warned that “he is not required to make a statement and that any statement made by him may be used against him.” The presence or the absence of “judicial caution” may often be the touchstone by which the courts ultimately are to determine whether or not confessions are to be received in evidence at the trial.
Upon the basis of the distinction previously discussed, the conviction on count seven will be affirmed.
As to counts one to six, inclusive, many hours after the initial brief delay, the appellant was presented before the Commissioner, some time after 10 A.M. During that period of protracted and unnecessary delay, the appellant’s oral admissions and confession as to these counts were elicited from him, and at the trial, were received over the objection of trial counsel. The objection should have been sustained, and because it was not, the conviction on these counts must be reversed.
Affirmed in part.
Reversed in part.
WASHINGTON, Circuit Judge.
I concur in the reversal of the convictions on Counts 1 through 6. As to the conviction on Count 7, the misdemeanor, it is my view that since the sentence imposed on that count has been served in full the appeal is moot as to any issues arising from that conviction. See St. Pierre v. United States, 319 U.S. 41, 63 S.Ct. 910, 87 L.Ed. 1199 (1943). While there may exist some question as to the continuing scope and vitality of the St. Pierre decision, the modifications that have been enunciated in subsequent Supreme Court decisions do not affect the instant case. A Federal court should not pass judgment on a contention arising in circumstances like the present unless the judgment might have some material effect, Pollard v. United States, 352 U.S. 354, 358, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957). The burden is on the appellant (or petitioner) to show this effect to the court. See St. Pierre and Pollard, supra.
Even if it were true that review should be afforded in all cases of felony convictions, it remains clear that here, where a man with a long criminal record, cf. Parker v. Ellis, 362 U.S. 574, 576, 80 S.Ct. 909, 4 L.Ed.2d 963 (1960) (Harlan, J., concurring), has been convicted of a misdemeanor, has served his sentence, and has not shown any adverse consequences that might flow if the conviction is left undisturbed, the court should not consider his appeal with regard to that conviction.
Nevertheless, a majority of the division has today held that the fact that a convicted person has served his sentence on a given count of a conviction does not render his appeal moot regardless of the lack of demonstrable continued impact of the conviction on that count on the individual. Consequently, I turn to the merits of the appeal from the conviction on Count 7 for attempted housebreaking.
As the majority opinion indicates, Coleman was picked up and taken to the police station, arriving there at approximately 12:50 A.M. Instead of following the ordinary booking procedures, the police led Coleman to a back room where two detectives presumably adept at the art of interrogation questioned him for a period of about “forty-five minutes to an hour.” Although at first steadfastly denying any complicity in the attempted housebreaking and refusing to admit the other offenses, appellant finally broke down and confessed when confronted with certain damaging evidence. Apparently he confessed to all the alleged offenses at once. The majority believes that the “threshold confession” rule expressed in United States v. Mitchell, 322 U.S. 65, 64 S.Ct. 896, 88 L.Ed. 1140 (1944), governs the disposition of this issue. In the Mitchell case the evidence was that the defendant had made “prompt and spontaneous” confession of his misdeeds. Id. at 69, n. 2, 64 S.Ct. at 897. The majority further relies on Naples v. United States, 113 U.S.App.D.C. 281, 283-284, 307 F.2d 618, 620-621 (1962), in which the defendant had also made incriminating statements immediately upon the commencement of questioning. They might have added Jackson v. United States, 114 U.S.App.D.C. 181, 313 F. 2d 572 (1962), and Heideman v. United States, 104 U.S.App.D.C. 128, 259 F.2d 943 (1958) cert. denied, 359 U.S. 959, 79 S.Ct. 800, 3 L.Ed.2d 767 (1959). Indeed, the Heideman case describes the outer limits of permissible police interrogation prior to appearance before the Commissioner.
Today the majority makes an unprecedented extension of the previous decisions by permitting the police to continue interrogation for “forty-five minutes to an hour” in the face of repeated denials of guilt by the suspect. True, the confession came within “a matter of minutes” after the physical evidence was shown to the accused. But this was late in the interrogation, at an hour variously said to be 1:30 or 1:40, or perhaps 1:55. Moreover, appellant then confessed to all the alleged offenses. Surely his confession on the 7th count— not shown to have been the first confession — must be excluded on the same basis as his confession on the other offenses.
. The charge of attempted housebreaking on this aspect of the case was set forth in the “seventh count” of the indictment.
. The point has not been seriously urged for the appellant has served the sentence of one year imposed on this count. On brief lie contends importantly that “in the alternative, the judgment of conviction on counts one through six should be reversed.”
. Mallory v. United States, 354 U.S. 449, 454, 77 S.Ct. 1356, 1359, 1 L.Ed.2d 1479 (1957).
. Trilling y. United States, 104 U.S.App. D.C. 159, 163, 260 F.2d 677, 681 (en banc, 1958).
. As phrased in United States v. Mitchell, 322 U.S. 65, 69, 64 S.Ct. 896, 88 L.Ed. 1140 (1944); and see Naples v. United States, 113 U.S.App.D.C 281, 283, 307 F.2d 618, 620 (en banc, 1962).
. United States v. Mitchell, supra note 5, 322 U.S. at 70, 77 S.Ct. at 898; Turberville v. United States, 112 U.S.App.D.C. 400, 405, 406, 303 F.2d 411, 416, 417, cert. denied, 370 U.S. 946, 82 S.Ct. 1607, 8 L.Ed.2d 813 (1962); United States v. Vita, 294 F.2d 524, 533 (2 Cir. 1961), cert. denied, 369 U.S. 823, 82 S.Ct. 837, 7 L.Ed.2d 788 (1962).
. As to the pattern followed, see Naples v. United States, Part 11(b), supra note 5, 113 U.S.App.D.C. at 284, 307 F.2d at 621.
. Mallory v. United States, supra note 3.
. Rule 5(a) calls for presentation “without unnecessary delay” before the nearest available committing magistrate. Metropolitan Police derive their power of immediate arrest without a warrant from D.C.Code, § 4r-140 (1961). That section commands that the officer “shall immediately, and without delay" (emphasis added) bring his prisoner before the proper court. The Government at argument took the position that the quoted language must be read in light of Rule 5 and the Mallory decision. We do not pass upon that claim, for here the detectives did not comply with Rule 5, much less with the more narrow requirements set forth in our Code.
. Before Mallory, our rule and that prevailing in many federal courts rested upon a different premise. See discussion and citations in Tillotson v. United States, 97 U.S.App.D.C. 402, 403-404, 231 F.2d 736, 737-738, cert. denied, 351 U.S. 989, 76 S.Ct. 1055, 100 L.Ed. 1502 (1956); cf. Mallory v. United States, 98 U.S.App. D.C. 406, 408, 236 F.2d 701, 703 (1956).
. One dear instance in which review will be granted is when the person challenging the conviction is a resident alien or naturalized citizen who might be deported or denaturalized if the conviction stood. Fiswick v. United States, 329 U.S. 211, 67 S.Ct. 224, 91 L.Ed. 196 (1946). Cf. United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954) (habitual offender consequences).
. “At the outset, the police, assuming they have probable cause for arrest, are entitled to ask the arrested suspect what he knows about a crime. If he denies knowledge, they are entitled to state to him what evidence they have and ask whether he cares to comment upon it. * * * If tlie suspect continues to deny knowledge, the police are entitled to conclude the interview by saying, in effect, ‘Do you have anything further to tell us, or do you .just want to let it stand the way it is?’ * * * it is only when the questioning crosses into what can be termed ‘arilling,’ or is continued beyond the brief period allowed, that the resulting confession may be held inadmissible.” (Emphasis supplied.)
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
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sc_precedentalteration
|
A
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the opinion effectively says that the decision in this case "overruled" one or more of the Court's own precedents. Alteration also extends to language in the majority opinion that states that a precedent of the Supreme Court has been "disapproved," or is "no longer good law". Note, however, that alteration does not apply to cases in which the Court "distinguishes" a precedent.
UNITED STATES v. GAUDIN
No. 94-514.
Argued April 17, 1996 —
Decided June 19, 1995
Scaxja, J., delivered the opinion for a unanimous Court. Rehnquist, C. J., filed a concurring opinion, in which O’Connor and Breyer, JJ., joined, post, p. 523.
Deputy Solicitor General Dreeben argued the cause for the United States. With him on the briefs were Solicitor General Days, Assistant Attorney General Harris, Richard H. Seamon, and Kathleen A. Felton.
Richard Hansen argued the cause for respondent. With him on the brief were David Allen and Todd May brown.
Kent S. Scheidegger and Charles L. Hobson filed a brief for the Criminal Justice Legal Foundation as amicus curiae urging reversal.
Bruce S. Rogow and Beverly A Pohl filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae urging affirmance.
Justice Scalia
delivered the opinion of the Court.
In the trial at issue here, respondent was convicted of making material false statements in a matter within the jurisdiction of a federal agency, in violation of 18 U. S. C. § 1001. The question presented is whether it was constitutional for the trial judge to refuse to submit the question of “materiality” to the jury.
I
In the 1980’s, respondent engaged in a number of real estate transactions financed by loans insured by the Federal Housing Administration (FHA), an agency within the Department of Housing and Urban Development (HUD).. Respondent would purchase rental housing, renovate it, obtain an inflated appraisal, and sell it to a “straw buyer” (a friend or relative), for whom respondent would arrange an FHA-insured mortgage loan. Then, as prearranged, respondent would repurchase the property (at a small profit to the straw buyer) and assume the mortgage loan. Twenty-nine of these ventures went into default.
Respondent was charged by federal indictment with, among other things, multiple counts of making false statements on federal loan documents in violation of 18 U. S. C. §1001. Two of these counts charged that respondent had made false statements on HUD/FHA form 92800-5 by knowingly inflating the appraised value of the mortgaged property. The other false-statement counts charged that respondent had made misrepresentations on HUD/FHA form HUD-1, the settlement form used in closing the sales of the properties. Line 303 of this form requires disclosure of the closing costs to be paid or received by the borrower/buyer and the seller. The forms executed by respondent showed that the buyer was to pay some of the closing costs, whereas in fact he, the seller, had arranged to pay all of them. To prove the materiality of these false statements, the Government offered the testimony of several persons charged with administering FHA/HUD programs, who explained why the requested information was important.
At the close of the evidence, the United States District Court for the District of Montana instructed the jury that, to convict respondent, the Government was required to prove, inter alia, that the alleged false statements were material to the activities and decisions of HUD. But, the court further instructed, “[t]he issue of materiality ... is not submitted to you for your decision but rather is a matter for the decision of the court. You are instructed that the statements charged in the indictment are material statements.” App. 24, 29. The jury convicted respondent of the §1001 charges.
A panel of the Court of Appeals for the Ninth Circuit reversed these convictions because Circuit precedent dictated that materiality in a §1001 prosecution be decided by the jury. 997 F. 2d 1267 (1993). On rehearing en banc, the Court of Appeals stood by this precedent. It held that taking the question of materiality from the jury denied respondent a right guaranteed by the Fifth and Sixth Amendments to the United States Constitution. 28 F. 3d 943 (1994). We granted certiorari. 513 U. S. 1071 (1995).
II
Section 1001 of Title 18 provides:
“Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both.”
It is uncontested that conviction under this provision requires that the statements be “material” to the Government inquiry, and that “materiality” is an element of the offense that the Government must prove. The parties also agree on the definition of “materiality”: The statement must have “a natural tendency to influence, or [be] capable of influencing, the decision of the decisionmaking body to which it was addressed.” Kungys v. United States, 485 U. S. 759, 770 (1988) (internal quotation marks omitted). The question for our resolution is whether respondent was entitled to have this element of the crime determined by the jury.
The Fifth Amendment to the United States Constitution guarantees that no one will be deprived of liberty without “due process of law”; and the Sixth, that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” We have held that these provisions require criminal convictions to rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt. Sullivan v. Louisiana, 508 U. S. 275, 277-278 (1993). The right to have a jury make the ultimate determination of guilt has an impressive pedigree. Blackstone described “trial by jury” as requiring that “the truth of every accusation, whether preferred in the shape of indictment, information, or appeal, should afterwards be confirmed by the unanimous suffrage of twelve of [the defendant’s] equals and neighbors ....” 4 W. Blackstone, Commentaries on the Laws of England 343 (1769) (emphasis added). Justice Story wrote that the “trial by jury” guaranteed by the Constitution was “generally understood to mean ... a trial by a jury of twelve men, impartially selected, who must unanimously concur in the guilt of the accused before a legal conviction can be had” 2 J. Story, Commentaries on the Constitution of the United States 541, n. 2 (4th ed. 1873) (emphasis added and deleted). This right was designed “to guard against a spirit of oppression and tyranny on the part of rulers,” and “was from very early times insisted on by our ancestors in the parent country, as the great bulwark of their civil and political- liberties.” Id., at 540-541. See also Duncan v. Louisiana, 391 U. S. 145, 151-154 (1968) (tracing the history of trial by jury).
Ill
Thus far, the resolution of the question before us seems simple. The Constitution gives a criminal defendant the right to demand that a jury find him guilty of all the elements of the crime with which he is charged; one of the elements in the present case is materiality; respondent therefore had a right to have the jury decide materiality. To escape the force of this logic, the Government offers essentially three arguments. Having conceded the minor premise — that materiality is an element of the offense — the Government argues first, that the major premise is flawed; second, that (essentially) a page of history is worth a volume of logic, and uniform practice simply excludes the element of materiality from the syllogism; and third, that stare decisis requires the judgment here to be reversed.
A
As to the first, the Government’s position is that “materiality,” whether as a matter of logic or history, is a “legal” question, and that although we have sometimes spoken of “requiring the jury to decide ‘all the elements of a criminal offense,’ e. g., Estelle v. McGuire, [502 U. S. 62, 69] (1991); see Victor v. Nebraska, [511 U. S. 1, 5] (1994); Patterson v. New York, 432 U. S. 197, 210 (1977), the principle actually applies to only the factual components of the essential elements.” Brief for United States 33 (emphasis added). The Government claims that this understanding of the jury’s role dates back to Sparf v. United States, 156 U. S. 51 (1895), and is reaffirmed by recent decisions of this Court.
By limiting the jury’s constitutionally prescribed role to “the factual components of the essential elements” the Government surely does not mean to concede that the jury must pass upon all elements that contain some factual component, for that test is amply met here. Deciding whether a statement is “material” requires the determination of at least two subsidiary questions of purely historical fact: (a) “what statement was made?” and (b) “what decision was the agency trying to make?” The ultimate question: (c) “whether the statement was material to the decision,” requires applying the legal standard of materiality (quoted above) to these historical facts. What the Government apparently argues is that the Constitution requires only that (a) and (b) be determined by the jury, and that (c) may be determined by the judge. We see two difficulties with this. First, the application-of-legal-standard-to-fact sort of question posed by (c), commonly called a “mixed question of law and fact,” has typically been resolved by juries. See J. Thayer, Preliminary Treatise on Evidence at Common Law 194, 249-250 (1898). Indeed, our cases have recognized in other contexts that the materiality inquiry, involving as it does “delicate assessments of the inferences a ‘reasonable [decisionmaker]’ would draw from a given set of facts and the significance of those inferences to him,... [is] peculiarly on[e] for the trier of fact.” TSC Industries, Inc. v. Northway, Inc., 426 U. S. 438, 450 (1976) (securities fraud); McLanahan v. Universal Ins. Co., 1 Pet. 170, 188-189, 191 (1828) (materiality of false statements in insurance applications).
The second difficulty with the Government’s position is that it has absolutely no historical support. If it were true, the lawbooks would be full of cases, regarding materiality and innumerable other “mixed-law-and-fact” issues, in which the criminal jury was required to come forth with “findings of fact” pertaining to each of the essential elements, leaving it to the judge to apply the law to those facts and render the ultimate verdict of “guilty” or “not guilty.” We know of no such case. Juries at the time of the framing could not be forced to produce mere “factual findings,” but were entitled to deliver a general verdict pronouncing the defendant’s guilt or innocence. Morgan, A Brief History of Special Verdicts and Special Interrogatories, 32 Yale L. J. 575, 591 (1922). See also G. Clementson, Special Verdicts and Special Findings by Juries 49 (1905); Alschuler & Deiss, A Brief History of the Criminal Jury in the United States, 61 U. Chi. L. Rev. 867, 912-913 (1994). Justice Chase’s defense to one of the charges in his 1805 impeachment trial was that “he well knows, that it is the right of juries in criminal cases, to give a general verdict of acquittal, which cannot be set aside on account of its being contrary to law, and that hence results the power of juries, to decide on the law as well as on the facts, in all criminal cases. This power he holds to be a sacred part of our legal privileges . . . .” IS. Smith & T. Lloyd, Trial of Samuel Chase 34 (1805).
Sparf, supra, the case on which the Government relies, had nothing to do with the issue before us here. The question there was whether the jury could be deprived of the power to determine, not only historical facts, not only mixed questions of fact and law, but pure questions of law in a criminal case. As the foregoing quotation from Justice Chase suggests, many thought the jury had such power. See generally Alschuler & Deiss, supra, at 902-916. We decided that it did not. In criminal cases, as in civil, we held, the judge must be permitted to instruct the jury on the law and to insist that the jury follow his instructions. 156 U. S., at 105-106. But our decision in no way undermined the historical and constitutionally guaranteed right of criminal defendants to demand that the jury decide guilt or innocence on every issue, which includes application of the law to the facts. To the contrary, Justice Harlan, writing for the Court, explained the many judicial assertions of the jury’s right to determine both law and fact as expressions of “the principle, that when the question is compounded of law and fact, a general verdict, ex necessitate, disposes of the case in hand, both as to law and fact.” Id., at 90 (emphasis in original). He gave as an example the 1807 treason trial of Aaron Burr in which Chief Justice Marshall charged the jury that “ ‘levying war is an act compounded of law and fact; of which the jury, aided by the court must judge. . . . [And] hav[ing] now heard the opinion of the court on the law of the case[,3 [t]hey will apply that law to the facts, and will find a verdict of guilty or not guilty as their own consciences may direct.’ ” Id., at 67 (quoting 2 Burr’s Trial 548, 550 (D. Robertson ed. 1875)) (emphasis in original). Other expressions of the same principle abound. See United States v. Battiste, 24 F. Cas. 1042, 1043 (No. 14,545) (CC Mass. 1835) (Story, J., sitting as Circuit Justice) (the jury’s general verdict is “necessarily compounded of [both] law and fact”). As Thayer wrote at the end of the 19th century: “From the beginning ... it was perceived that any general verdict, such as . . . not guilty, involved a conclusion of law, and that the jury did, in a sense, in such cases answer a question of law.” Thayer, supra, at 253.
The more modern authorities the Government cites also do not support its concept of the criminal jury as mere fact-finder. Although each contains language discussing the jury’s role as factfinder, see Sullivan v. Louisiana, 508 U. S. 275 (1993); Court of Ulster Cty. v. Allen, 442 U. S. 140, 156 (1979); Patterson v. New York, 432 U. S. 197, 206 (1977); In re Winship, 397 U. S. 358, 364 (1970), each also confirms that the jury’s constitutional responsibility is not merely to determine the facts, but to apply the law to those facts and draw the ultimate conclusion of guilt or innocence. The point is put with unmistakable clarity in Allen, which involved the constitutionality of statutory inferences and presumptions. Such devices, Allen said, can help
“the trier of fact to determine the existence of an element of the crime — that is, an ‘ultimate’ or ‘elemental’ fact — from the existence of one or more ‘evidentiary’ or ‘basic’ facts .... Nonetheless, in criminal cases, the ultimate test of any device’s constitutional validity in a given case remains constant: the device must not undermine the factfinder’s responsibility at trial, based on evidence adduced by the State, to find the ultimate facts beyond a reasonable doubt.” Allen, supra, at 156.
See also Sullivan, supra, at 277 (“The right [to jury trial] includes, of course, as its most important element, the right to have the jury, rather than the judge, reach the requisite finding of ‘guilty’”); Patterson, supra, at 204; Winship, supra, at 361, 363.
B
The Government next argues that, even if the jury is generally entitled to pass on all elements of a crime, there is a historical exception for materiality determinations in perjury prosecutions. We do not doubt that historical practice is relevant to what the Constitution means by such concepts as trial by jury, see Murray’s Lessee v. Hoboken Land & Improvement Co., 18 How. 272, 276-277 (1856); Holland v. Illinois, 493 U. S. 474, 481 (1990), and it is precisely historical practice that we have relied on in concluding that the jury must find all the elements. The existence of a unique historical exception to this principle — and an exception that reduces the power of the jury precisely when it is most important, i. e., in a prosecution not for harming another individual, but for offending against the Government itself— would be so extraordinary that the evidence for it would have to be convincing indeed. It is not so.
The practice of having courts determine the materiality of false statements in perjury prosecutions is neither as old, nor as uniform, as the Government suggests. In England, no pre-Revolution cases appear to have addressed the question, and the judges reached differing results when the issue finally arose in the mid-19th century. Compare Queen v. Lavey, 3 Car. & K. 26, 30, 175 Eng. Rep. 448, 450 (Q. B. 1850) (materiality is a jury question), Queen v. Goddard, 2 F. & F. 361, 175 Eng. Rep. 1096 (1861) (same), with Queen v. Courtney, 5 Ir. C. L. 434, 439 (Ct. Crim. App. 1856) (dictum) (materiality is a question for the judge); Queen v. Gibbon, Le. & Ca. 109, 113-114, 169 Eng. Rep. 1324, 1326 (1861) (same). It was not until 1911,120 years after the adoption of our Bill of Rights, that the rule the Government argues for was finally adopted in England — not by judicial decision but by Act of Parliament. See Perjury Act of 1911, § 1(6), 1 & 2 Geo. V, ch. 6.
Much more importantly, there was also no clear practice of having the judge determine the materiality question in this country at or near the time the Bill of Rights was adopted. The Government cites Power v. Price, 16 Wend. 450 (N. Y. 1836), as “[t]he earliest reported case on the question” whether “materiality in perjury prosecutions is a question for the court rather than the jury,” claiming that there “New York’s highest court held that a trial judge had correctly reserved the question of materiality to itself.” Brief for United States 18. Power held nothing even close to this. Power was not a perjury case; indeed, it was not even a criminal prosecution. It was a civil action in which Price sued Power for the slander of imputing to him the crime of perjury. The Court of Appeals held that Price did not need to prove the materiality of the alleged false statement in order to make out a prima facie case; but that Power could raise immateriality as an affirmative defense negating intent to impute perjury. 16 Wend., at 455-456. It then said that the trial court “was clearly right in instructing the jury that the testimony given on the former trial was proved to be material,” since “it merely decided a question of law, arising upon the proof of facts as to which there was no dispute or contrariety of testimony.” Id., at 456. But the courts’ power to resolve mixed-law-and-fact questions in civil cases is not at issue here; civil and criminal juries’ required roles are obviously not identical, or else there could be no directed verdicts for civil plaintiffs. The other early case relied upon by the Government, Steinman v. McWilliams, 6 Pa. 170, 177-178 (1847), another slander case, is inapt for the same reason. The earliest American case involving the point that we have been able to find places the Government itself in opposition to its position here. In United States v. Cowing, 25 F. Cas. 680, 681 (No. 14,880) (CC DC 1835), the United States argued that materiality in a perjury prosecution was a matter for the jury’s consideration, citing an unpublished decision of the General Court of Virginia. The federal court, however, did not address the issue.
State and federal cases appear not to have addressed the question until the latter part of the 19th century, at which time they do not display anything like the “virtual unanimity” claimed by the Government. Brief for United States 18. Some of the opinions cited by the Government, asserting that materiality was a question of “law” for the judge, appear to have involved either demurrers to the indictment or appeals from convictions in which the case for materiality was so weak that no reasonable juror could credit it — so that even on our view of the matter the case should not have gone to the jury. (The prosecution’s failure to provide minimal evidence of materiality, like its failure to provide minimal evidence of any other element, of course raises a question of “law” that warrants dismissal.) See, e. g., United States v. Shinn, 14 F. 447, 452 (CC Ore. 1882); United States v. Singleton, 54 F. 488, 489 (SD Ala. 1892); United States v. Bedgood, 49 F. 54, 60 (SD Ala. 1891); Nelson v. State, 32 Ark. Rep. 192, 195 (1877). And some of the other cited cases involve the convicted defendant’s claim that materiality should not have been decided by the jury, so that even if the issue was not one of the prosecution’s failure to make a threshold case, it did not arise in a context in which the defendant’s right to jury trial was at issue. See, e. g., Cothran v. State, 39 Miss. 541, 547 (1860); State v. Williams, 30 Mo. 364, 367 (1860); State v. Lewis, 10 Kan. 157, 160 (1872); People v. Lem You, 97 Cal. 224, 228-230, 32 P. 11, 12 (1893); Thompson v. People, 26 Colo. 496, 504, 59 P. 51, 54-55 (1899); Barnes v. State, 15 Ohio C. C. 14, 25-26 (1897).
Even assuming, however, that all the Government’s last-half-of-the-19th-century cases fully stand for the proposition that the defendant has no right to jury determination of materiality, there are cases that support the other view. See Commonwealth v. Grant, 116 Mass. 17, 20 (1874); Lawrence v. State, 2 Tex. Crim. 479, 483-484 (1877); State v. Spencer, 45 La. Ann. 1, 11-12, 12 So. 135, 138 (1893); Young v. People, 134 Ill. 37, 42, 24 N. E. 1070, 1071 (1890) (approving the treatment of materiality as “a mixed question of law and fact, and thus one for the jury”). At most there had developed a division of authority on the point, as the treatise writers of the period amply demonstrate. Bishop in 1872 took the position that “[p]ractically,... the whole subject is to be passed upon by the jury, under instructions from the judge, as involving, like most other cases, mixed questions of law and of fact.” 2 J. Bishop, Commentaries on Law of Criminal Procedure § 935, p. 508 (2d ed.). May’s 1881 treatise reported that “[w]hether materiality is a question of law for the court or of fact for a jury, is a point upon which the authorities are about equally divided.” J. May, Law of Crimes § 188, p. 205. Greenleaf, writing in 1883, sided with Bishop (“It seems that the materiality of the matter assigned is a question for the jury”), 3 S. Greenleaf, Law of Evidence § 195, p. 189, n. (b) (14th ed.) — but two editions later, in 1899, said that the question was one for the judge, 3 S. Greenleaf, Law of Evidence § 195, p. 196, n. 2 (16th ed.).
In sum, we find nothing like a consistent historical tradition supporting the proposition that the element of materiality in perjury prosecutions is to be decided by the judge. Since that proposition is contrary to the uniform general understanding (and we think the only understanding consistent with principle) that the Fifth and Sixth Amendments require conviction by a jury of all elements of the crime, we must reject those cases that have embraced it. Though uniform postratification practice can shed light upon the meaning of an ambiguous constitutional provision, the practice here is not uniform, and the core meaning of the constitutional guarantees is unambiguous.
C
The Government’s final argument is that the principle of stare decisis requires that we deny respondent’s constitutional claim, citing our decision in Sinclair v. United States, 279 U. S. 263 (1929). That case is not controlling in the strictest sense, since it involved the assertion of a Sixth Amendment right to have the jury determine, not “materiality” under § 1001, but rather “pertinency” under that provision of Title 2 making it criminal contempt of Congress to refuse to answer a “question pertinent to [a] question under [congressional] inquiry,” Rev. Stat. § 102, 2 U. S. C. § 192. The two questions are similar, however, and the essential argument made by respondent here was made by appellant in that case, who sought reversal of his conviction because of the trial court’s failure to submit the question of pertinency to the jury: “[I]t has been said over and over again, that every essential ingredient of the crime must be proven to the satisfaction of the jury beyond a reasonable doubt.” Brief for Appellant in Sinclair v. United States, O. T. 1928, No. 555, p. 109; 279 U. S., at 277 (argument for appellant). Though we did not address the constitutional argument explicitly, we held that the question of pertinency was “rightly decided by the court as one of law.” Id., at 298. And tying the case even closer to the present one was our dictum that pertinency “is not essentially different from . . . materiality of false testimony,” which “when an element in the crime of perjury, is one for the court.” Ibid. Thus, while Sinclair is not strictly controlling, it is fair to say that we cannot hold for respondent today while still adhering to the reasoning and the holding of that case.
But the reasoning of Sinclair has already been repudiated in a number of respects. The opinion rested upon the assumption that “pertinency” is a pure question of law — that is, it does “not depend upon the probative value of evidence.” Ibid. We contradicted that assumption in Deutch v. United States, 367 U. S. 456 (1961), reversing a conviction under § 192 because “the Government at the trial failed to carry its burden of proving the pertinence of the questions.” Id., at 469. Though it had introduced documentary and testimonial evidence “to show the subject of the subcommittee’s inquiry,” it had failed to provide evidence to support the conclusion that the petitioner’s false statement was pertinent to that subject.
Our holding in Sinclair rested also upon the assertion that “[i]t would be incongruous and contrary to well-established principles to leave the determination of [the] matter [of perti-nency] to a jury,” 279 U. S., at 299, citing ICC v. Brimson, 154 U. S. 447, 489 (1894), and Horning v. District of Columbia, 254 U. S. 135 (1920). Both the cases cited to support that assertion have since been repudiated. Brimson’s holding that no right to jury trial attaches to criminal contempt proceedings was overruled in Bloom v. Illinois, 391 U. S. 194, 198-200 (1968). Horning’s holding that it was harmless error, if error at all, for a trial judge effectively to order the jury to convict, see 254 U. S., at 138, has been proved an unfortunate anomaly in light of subsequent cases. See Quercia v. United States, 289 U. S. 466, 468, 472 (1933); Bihn v. United States, 328 U. S. 633, 637-639 (1946).
Other reasoning in Sinclair, not yet repudiated, we repudiate now. It said that the question of pertinency “may be likened to those concerning relevancy at the trial of issues in court,” which “is uniformly held [to be] a question of law” for the court. 279 U. S., at 298. But how relevancy is treated for purposes of determining the admissibility of evidence says nothing about how relevancy should be treated when (like “pertinence” or “materiality”) it is made an element of a criminal offense. It is commonplace for the same mixed question of law and fact to be assigned to the court for one purpose, and to the jury for another. The question of probable cause to conduct a search, for example, is resolved by the judge when it arises in the context of a motion to suppress evidence obtained in the search; but by the jury when it is one of the elements of the crime of depriving a person of constitutional rights under color of law, see 18 U. S. C. §§241-242. Cf. United States v. McQueeney, 674 F. 2d 109, 114 (CA1 1982); United States v. Barker, 546 F. 2d 940, 947 (CADC 1976).
That leaves as the sole prop for Sinclair its reliance upon the unexamined proposition, never before endorsed by this Court, that materiality in perjury cases (which is analogous to pertinence in contempt cases) is a question of law for the judge. But just as there is nothing to support Sinclair except that proposition, there is, as we have seen, nothing to support that proposition except Sinclair. While this perfect circularity has a certain esthetic appeal, it has no logic. We do not minimize the role that stare decisis plays in our jurisprudence. See Patterson v. McLean Credit Union, 491 U. S. 164, 172 (1989). That role is somewhat reduced, however, in the case of a procedural rule such as this, which does not serve as a guide to lawful behavior. See Payne v. Tennessee, 501 U. S. 808, 828 (1991). It is reduced all the more when the rule is not only procedural but rests upon an interpretation of the Constitution. See ibid. And we think stare decisis cannot possibly be controlling when, in addition to those factors, the decision in question has been proved manifestly erroneous, and its underpinnings eroded, by subsequent decisions of this Court. Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U. S. 477, 480-481 (1989); Andrews v. Louisville & Nashville R. Co., 406 U. S. 320 (1972).
The Government also claims stare decisis benefit from our decision in Kungys v. United States, 485 U. S. 759 (1988), which held that, in appellate review of a District Court (non-jury) denaturalization proceeding, the appellate court’s newly asserted standard of materiality could be applied to the facts by the appellate court itself, rather than requiring remand to the District Court for that application. Id., at 772. But as we have observed, the characterization of a mixed question of law and fact for one purpose does not govern its characterization for all purposes. It is hard to imagine questions more diverse than, on the one hand, whether an appellate court must remand to a district court for a determination of materiality in a denaturalization proceeding (Kungys) and, on the other hand, whether the Constitution requires the finding of the element of materiality in a criminal prosecution to be made by the jury (the present case). It can be argued that Kungys itself did not heed this advice, since it relied upon both our prior decision in Sinclair, see 485 U. S., at 772, and a decision of the United States Court of Appeals for the Sixth Circuit holding that materiality in a § 1001 prosecution is a question of “ ‘law’ ” for the court, ibid. (quoting United States v. Abadi, 706 F. 2d 178, 180, cert. denied, 464 U. S. 821 (1983)). But the result in Kungys could be thought to follow a fortiori from the quite different cases of Sinclair and Abadi, whereas nonentitlement under the Sixth Amendment to a jury determination cannot possibly be thought to follow a fortiori from Kungys. In any event, Kungys assuredly did not involve an adjudication to which the Sixth Amendment right to jury trial attaches, see Luria v. United States, 231 U. S. 9 (1913), and hence had no reason to explore the constitutional ramifications of Sinclair and Abadi, as we do today. Whatever support it gave to the validity of those decisions was obiter dicta, and may properly be disregarded.
* * *
The Constitution gives a criminal defendant the right to have a jury determine, beyond a reasonable doubt, his guilt of every element of the crime with which he is charged. The trial judge’s refusal to allow the jury to pass on the “materiality” of Gaudin’s false statements infringed that right. The judgment of the Court of Appeals is affirmed.
It is so ordered.
The “beyond a reasonable doubt” point is not directly at issue in the present case, since it is unclear what standard of proof the District Court applied in making its determination of materiality, and since the Ninth Circuit’s reversal of the District Court’s judgment did not rest upon the standard used but upon the failure to submit the question to the jury. It is worth noting, however, that some courts which regard materiality as a “legal” question for the judge do not require the higher burden of proof. See, e. g., United States v. Gribben, 984 F. 2d 47, 51 (CA2 1993); United States v. Chandler, 752 F. 2d 1148, 1151 (CA6 1985).
We held in Williams v. Florida, 399 U. S. 78 (1970), that the 12-person requirement to which Story referred is not an indispensable component of the right to trial by jury. But in so doing we emphasized that the jury’s determination of ultimate guilt is indispensable. The “essential feature of a jury,” we said, is “the interposition between the accused and his accuser of the commonsense judgment of a group of laymen . . . [in] that group’s determination of guilt or innocence.” Id., at 100. See also Apo- daca v. Oregon, 406 U. S. 404 (1972) (plurality opinion) (applying similar analysis to conclude that jury unanimity is not constitutionally required).
Question: Did the the decision of the court overrule one or more of the Court's own precedents?
A. Yes
B. No
Answer:
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songer_district
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G
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What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
Sven TVETER, an individual, doing business as SGT Enterprises, Defendant-Appellant, v. AB TURN-O-MATIC, a Swedish corporation, and Scandus, Inc., a California Corporation, Plaintiffs-Appellees.
No. 77-2299.
United States Court of Appeals, Ninth Circuit.
Dec. 4, 1980.
Jack M. Wiseman, San Jose, Cal., argued, for defendant-appellant.
George C. Limbach, Limbach, Limbach & Sutton, William Rochester, San Francisco, Cal., for plaintiffs-appellees.
Before BROWNING, Chief Judge, WALLACE, Circuit Judge, and CURTIS, District Judge.
Honorable Jesse W. Curtis, Senior Judge, United States District Court for the Central District of California, sitting by designation.
BROWNING, Chief Judge:
Appellant Tveter produces and distributes “Take-A-Turn,” a device for dispensing numbered tickets to persons awaiting service. Appellee AB Turn — 0—Matic produces “Turn-O-Matic,” a similar device performing the same function. The “Turn-O-Matic” device is distributed in the United States by appellee Scandus, Inc. It was first on the market. The district court held that appellant had infringed appellees’ patent and trademark rights, and that appellant had unfairly competed with appellees by simulating the appearance of the “Turn-O-Matic” and “palming off” appellant’s goods as those of appellees.
We reverse in part and affirm in part, concluding that the “Turn-O-Matic” device is unpatentable for obviousness, but that appellant violated appellees’ trademark rights and engaged in unfair competition in the marketing of “Take-A-Turn.”
I
Appellees’ “Turn-O-Matic” is a commercial embodiment of Ehrlund U.S. Patent No. 3,885,724, issued May 27, 1975, for a “Device for Tearing Off Pieces of a Certain Length from a Strip.” Appellant contends the Ehrlund patent was invalid under 35 U.S.C. § 103, which does not permit a patent to be issued
if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.
The district court made findings on the factual issues identified in Graham v. John Deere Co., 383 U.S. 1, 17, 86 S.Ct. 684, 693, 15 L.Ed.2d 545 (1966), as relevant to the determination of obviousness under section 103: (1) the scope and content of the prior art; (2) the differences between the prior art and the claims at issue; and (3) the level of ordinary skill in the pertinent art.
The district court concluded that the device disclosed by the Ehrlund patent would not have been obvious to one skilled in the art and was therefore patentable-a conclusion of law. Sakraida v. Ag Pro, Inc., 425 U.S. 273, 280, 96 S.Ct. 1532, 1536, 47 L.Ed.2d 784 (1976).
In defending the court’s findings and conclusion, appellees argue that because of the statutory presumption of validity, 35 U.S.C. § 282, appellant bore “the heavy burden of persuasion by ‘clear and convincing’ proof of the alleged obviousness of the patented invention.”
The presumption of non-obviousness over the prior art rests upon the assumption that the patent examiner compared the claims with the prior art. The examiner did not have before him Ingram No. 1,704,-044, Burr & Davis No. 843,579, Osborn Nos. 3,173,601 and 3,229,876, Williams No. 3,098,-594, Beloud No. 2,361,528, Kingsbury No. 1,983,463, and Suk No. 1,575,081. As indicated below, these prior patents contain disclosures closer to Ehrlund’s device than those found in the patents considered by the examiner. This circumstance dissipated the presumption of validity. The burden of proof with respect to non-obviousness remained with appellees as claimants under the patent. Photo Electronics Corp. v. England, 581 F.2d 772, 775 (9th Cir. 1978); Deere & Co. v. Sperry Band Corp., 513 F.2d 1131, 1132 (9th Cir. 1975); Hewlett Packard Co. v. Tel-Design Inc., 460 F.2d 625, 628 (9th Cir. 1972).
The district court’s findings as to the content of the prior art are not in question. The court treated all of the prior patents relied upon by appellant as pertinent prior art.
The district court’s findings as to the differences between the prior art and the patented device consist primarily of listings of one or more respects in which a particular device disclosed in a particular prior art patent, separately considered, differed from the device disclosed in the Ehrlund patent. The differences are largely semantic-often relating more to the label attached to a particular element than to its function.2 In any event, the fact that each prior patented device differed in one or more respects from the Ehrlund device establishes only that the latter was not “identically disclosed or described” in previous patents, thus satisfying section 102 of Title 35. This is not enough to satisfy the requirement of section 103 that a patentable device disclose a non-obvious advance over the whole of the pertinent prior art.
Nor is the non-obviousness requirement satisfied simply because the article sought to be patented differs from the pertinent prior art taken as a whole. “[T]he mere existence of differences between the prior art and an invention does not establish the invention’s nonobviousness. The gap between the prior art and [the invention must be sufficiently] great as to render the system nonobvious to one reasonably skilled in the art.” Dann v. Johnston, 425 U.S. 219, 230, 96 S.Ct. 1393, 1399, 47 L.Ed.2d 692 (1976).
The district court found that the “skill of the average man in this art includes mechanical knowledge, knowledge of materials, and properties of materials, a mechanical ability to see how things fit together, and probably exposure to earlier model dispensers.” (Emphasis added). The emphasized phrase suggests a misapprehension of the law. There can be no doubt that the test for patentable invention is whether the innovation would have been obvious to a person of ordinary skill charged with complete knowledge of all pertinent prior developments, however much universal knowledge might exceed the knowledge actually possessed by the ordinary workman in the art. Walker v. General Motors Corp., 362 F.2d 56, 60 n.3 (9th Cir. 1966). Since such compendious knowledge is at best unlikely, in the usual case the inquiry must be hypothetical.
The district court’s findings recite testimony by the alleged inventor and by two experts that the patented device would not have been obvious either to them or to a person of average skill in the art even had they known of the prior art cited by appellant. Such testimony is of little value. “Obviousness” is not a simple factual conclusion drawn from the subsidiary findings of fact as a matter of ineluctable logic. “Obviousness” is a question of law, Sakraida v. Ag Pro, Inc., supra, 425 U.S. at 280, 96 S.Ct. at 1536, a legal concept embodying the constitutional standard of invention.
An innovation is not necessarily patentable because it results in greater convenience and utility. To be patentable, an innovation must embody “invention”; and “invention” excludes adjustments, alterations, and improvements that could be expected to result from the exercise of the skill and ingenuity of a mechanic charged with knowledge of all that is disclosed in prior art. This is the exclusion expressed in section 103’s requirement that the innovation must not be “obvious” to such a person. Sakraida v. Ag Pro, Inc., supra, 425 U.S. at 279, 96 S.Ct. at 1536.
The level of innovation required for patentability is especially high where the device is a combination of old elements, as here. Such a “mechanical combination must utilize a new principle or achieve a new result to cause it to rise to the status of invention.” SSP Agricultural Equipment, Inc. v. Orchard-Rite Ltd., 592 F.2d 1096, 1101 (9th Cir. 1979). “The conjunction or concert of known elements must contribute something; only when the whole in some way exceeds the sum of its parts is the accumulation of old devices patentable.” Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 340 U.S. 147, 152, 71 S.Ct. 127, 130, 95 L.Ed. 162 (1950). There must be “unusual or surprising consequences from the unification of the elements”; the old elements must perform an “additional or different function in the combination than they perform out of it.” Id. As we have repeatedly said, this is a “severe test.” See, e. g., Regimbal v. Scymansky, 444 F.2d 333, 339 (9th Cir. 1971); Santa Anita Manufacturing Corp. v. Lugash, 369 F.2d 964, 967 (9th Cir. 1966); Bentley v. Sunset House Distributing Corp., 359 F.2d 140, 144 (9th Cir. 1966). “Mechanical patents covering a combination of old elements must be scrutinized with care, since it is unlikely that such combinations will amount to patentable invention.” SSP Agricultural Equipment, Inc. v. Orchard-Rite Ltd., supra, 592 F.2d at 1101.
The Ehrlund “Turn-O-Matic” contains a roll of paper tickets numbered consecutively. The tickets are divided by a punched or perforated line across most of the width of the strip, leaving an uncut margin on both sides. The perforated or punched line is curved or angled toward the user at midpoint. As a ticket is pulled, it passes over a projecting flange having the same width as the flap or tongue. Downward pressure on the tape brings the uncut, unperforated margins of the tape in contact with cutting edges at each side of the flange, separating the ticket. The flap or tongue of the succeeding ticket, held level by the flange, projects from the dispenser for the next user to grasp.
Appellees’ claim of inventive difference in the Ehrlund device “is the guidance structure that cooperates without moving parts with the forwardly directed ticket tongue or flap to dispense intended tickets in a one-hand, one-step pulling operation in which the end ticket is separated from the roll leaving the ticket tongue of the succeeding ticket protruding from the dispenser ready to pull the next ticket.” Ap-pellees’ Brief, page 16.
Devices for severing and dispensing sheet material in predetermined lengths are old. Such devices commonly disclose means for guiding the material over a cutting edge for separation. Several employ a one-hand, one-step operation and have no moving parts.
In the final analysis, appellees’ argument for patentability over the prior art rests upon the interaction between the projecting flange and a ticket strip having flaps or tongues pointed in the feeding direction of the strip. Brief for Appellees, page 31. This development is not inventive over Burr & Davis No. 843,579 (1907), in light of Be-loud No. 2,361,528 (1944), or over the so-called “Baggie” patents, Osborn Nos. 3,173,-601 (1965) and 3,229,876 (1966) and Williamson No. 3,098,594 (1963).
Burr & Davis No. 843,579 (“Means for Holding and Detaching Ribbon Strip Labels”) discloses a rolled ribbon, divided into individual labels by perforated lines, wound inside the machine. The perforated cloth strip is pulled out and down over a frame or flange causing the perforations to tear, beginning in the center of the perforation, until a single label is separated. The outer casing or cover of the device has an inward curve over the flange that exposes a tongue-shaped portion of the succeeding label resting on the flange. By pulling this exposed tongue out and down over the flange, the next user may detach a label with a single motion. Burr & Davis cuts from the center rather than at the sides, and the next ticket, though exposed, does not protrude. But cutting at the sides and protrusion are found in Beloud No. 2,361,-528, a dispenser described as
leaving a portion of the next section of the material visible and accessible, in order to allow the operator to withdraw the material to the desired position which will permit a section to be separated from the main body of the material and to repeat the operation at will.
Under the “Baggie” patents, a rolled sheet of bags or plastic, divided by perforations, is drawn from a container across a cutting edge having a vertically projecting section at the center. When the perforated line is pulled over this projection or flange, the perforations tear and the forward motion of the next bag is arrested by the flange. Continued pulling completes the separation. The patent description specifies that after each bag is removed its successor protrudes:
During the act of severance, some small distortion of the sheet material takes place whereby the severed portions thereof on opposite sides of the arresting tab extend outwardly and the corner extremities are supported upon the angular edges of the guide tabs and thus restrained against dropping within the container and out of reach. In this manner the material of the roll (or otherwise packaged material) remains available for convenient grasping whereby withdrawal and severance of the next successive length may be accomplished.
Appellant argues that the Baggie device requires the user to lift the next bag over the projecting flange before it can be removed. This problem could be solved by curving or angling the line of perforations between bags to produce one or more tabs or tongues. Appellant recognizes that “[a] major difference between this prior art and the claims of the Turn-O-Matic patent is the construction of the ticket strip recited in the Turn-O-Matic claim.”
Because the description of the ticket strip is found in the preamble rather than in the body of the claims of the Ehrlund patent, the parties debate whether it is an element of the combination claimed by Ehrlund. It is unnecessary to resolve the issue. Based on the record before us, the essentials of the strip’s construction are in any event old in the art. Suk No. 1,575,081 (1926) claims:
A record strip comprising a signal [sic] oblong length of flexible fibrous material having equally spaced portions thereof scored transversely to provide a series of detachable sections, the scoring between adjacent sections extending along an irregular shaped line so that each section upon detachment will have at one end a projecting tongue.
Appellees contend the Ehrlund device meets the not “obvious” standard because the combination of old elements is “synergistic,” i. e., “result[s] in an effect greater than the sum of the several effects taken separately.” Anderson’s Black Rock v. Pavement Co., 396 U.S. 57, 61, 90 S.Ct. 305, 308, 24 L.Ed.2d 258 (1976). Appellees cite the following exchange with their expert witness:
Q. In your opinion, does the device of the patent produce a synergistic result?
A. Yes, it does, indeed. As I have already described it, it permits several things to happen at the same time. That is it permits a ticket, a single ticket, to be dispensed with one hand without moving parts other than the ticket strip itself in the casing, and in such a way that the next ticket is not touched by the person who pulls off the previous ticket, or anyone else for that matter.”
This description accurately mirrors Borden’s 1940 patent (No. 2,221,213) for a simple cellophane tape dispenser, cited as prior art by the patent examiner.
The Ehrlund combination is an improvement over previous devices in this field, “perhaps producing a more striking result,” Sakraida v. Ag Pro, Inc., supra, 425 U.S. at 282, 96 S.Ct. at 1537. But it does not reflect the application of a new principle or the achievement of a surprising or unexpected result required to satisfy the severe test for patentability of a new combination of elements old in the art.
The projecting flange temporarily arrests the movement of the tape, separates the tongue from the tape, and guides the tongue horizontally toward the user as in Burr & Davis, the cutting edge severs the tape at the sides as in Beloud, the tongue of the succeeding ticket serves as a handle for the next user to grasp as in Suk, the elements combine to permit a single segment of the tape to be dispensed with a one-step pulling operation, without moving parts, as in Burr & Davis and the Baggie structure.
As we said in Kamei-Autokomfort v. Eurasian Automotive Products, 553 F.2d 603, at 609 (9th Cir. 1977), quoting our earlier decision in Rex Chainbelt Inc. v. Harco Products, Inc., 512 F.2d 993, 1000 (9th Cir. 1975): “What we have here is: ‘an improved product but not an innovatively different one . . . [W]e see the development and refinement of an old concept .. . but not an inventive or new approach to the problem.’ ”
The commercial success of the Ehrlund device “cannot fill the gap.” Exer-Genie, Inc. v. McDonald, 453 F.2d 132 (9th Cir. 1971). See SSP Agricultural Equipment, Inc. v. Orchard-Rite, Ltd., supra, 592 F.2d at 1101.
II
Trademark Infringement and Unfair Competition
The district court’s holding that appellant’s use of the name Take-A-Turn infringed appellees’ registered Turn-O-Matic trademark and that appellant had engaged in unfair competition by “palming” off appellant’s dispenser as that produced by ap-pellee are factually and legally unassailable.
Appellant was a distributor of appellees’ Turn-O-Matic ticket dispenser in an assigned territory for over seven years. He became dissatisfied with the relationship. When appellee introduced its new dispenser based upon the Ehrlund patent, appellant set about to copy it. In less than a month he had obtained quotations for the manufacture of a like dispenser from a producer of plastic products. He continued to distribute appellees’ Turn-O-Matic until his dispenser became available. About a year later appellant began distributing his dispenser under the name Take-A-Turn. Appellant’s dispenser is virtually identical with appellees’ Turn-O-Matic in operation, and is almost indistinguishable in appearance, even to the distinctive red color and the location and type-style of the trade name. Appellant’s advertising brochure for Take-A-Turn was copied from appellees’ Turn-O-Matic brochure. Appellant employed the same stock number he had previously used in the sale of Turn-O-Matic dispenser and parts. He sold the Take-A-Turn dispenser in the same territory in which he had previously sold the Turn-O-Matic, and to the same customers. Customers ordered Turn-O-Matic by name but were delivered Take-A-Turn.
Appellees’ evidence fully supported the district court’s findings that appellant’s Take-A-Turn trademark was likely to and did cause confusion, mistake, and deception as to the origin of the dispenser, that the appearance of appellees’ dispenser, copied by appellant, had acquired a secondary meaning identifying appellee as its source, and that appellant deliberately intended to pass his goods off as those of appellee. As a matter of hornbook law, these facts established both trademark infringement and unfair competition.
Appellant argues that “Turn-O-Matic” is descriptive of the use of appellees’ dispenser and is therefore a “weak” mark. Appellees respond that the mark has become “incontestable” under 15 U.S.C. § 1065, and therefore cannot be challenged on the ground that it is descriptive. Appellant answers that he is not challenging the validity of appellees’ mark but is asserting that because of the weakness of the mark there is no likelihood of confusion. The short answer is that even if this factor had the probative tendency appellant suggests, it was overwhelmed by appellees’ evidence that confusion was likely, intended, and occurred.
Appellant argues that because the name “SGT Enterprises” (under which Tveter conducted business) was printed on appellant’s dispenser there could have been no confusion as to source. Although proper labeling will usually preclude confusion, see American Roiex Watch Corporation v. Ri-coh Time Corp., 491 F.2d 877, 879 (2d Cir. 1974); Bose Corp. v. Linear Design Labs, Inc., 467 F.2d 304, 310 (2d Cir. 1972), the overwhelming evidence in this instance is that confusion did occur. Appellant cites West Point Manufacturing Co. v. Detroit Stamping Co., 222 F.2d 581 (6th Cir. 1955), but in that case the court found the labeling was in fact sufficient “to avoid confusing the public as to the producer or the source of the product”. Id. at 596. The court recognized that “when the imitation is likely to deceive prospective customers who care about source . .. the imitator is guilty of unfair competition.” Id.
Appellant was known in the trade as a distributor of appellees’ product. Under such circumstances, the addition of his own label “is an aggravation and not a justification.” Menendez v. Holt, 128 U.S. 514, 521, 9 S.Ct. 143, 144, 32 L.Ed. 526 (1888); see A. T. Cross Co. v. Jonathan Bradley Pens, Inc., 470 F.2d 689, 692 (2d Cir. 1972).
There was evidence that appellees used the mark “Turn-O-Matic” on their earlier dispenser together with the words “Patent Pending” when no patent application on this dispenser was in fact pending. Appellant argues that this misuse bars judicial enforcement of appellees’ trademark rights. But “misconduct in the abstract, unrelated to the claim to which it is asserted as a defense, does not constitute unclean hands.” Republic Molding Corp. v. B. W. Photo Utilities, 319 F.2d 347, 349 (9th Cir. 1963). “What is material is not that plaintiff’s hands are dirty, but that he dirtied them in acquiring the rights he now asserts, or that the manner of dirtying renders inequitable the assertion of such rights against the defendant.” Id. No relationship is suggested between appellees’ asserted misuse and the acquisition of appellees’ trademark rights; no other reason, arising out of the misuse, is advanced that would make it inequitable to enforce those rights.
Appellant argues that since appellees’ dispenser was not patentable, appellant had a right to copy it in light of Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964); and Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669 (1964). Under the rule of these decisions, however, copying may constitute evidence which, when accompanied by proof of confusion as to source or deliberate palming off, as in this case, may support a cause of action for unfair competition upon which appropriate relief may be founded. Compco Corp., supra, 376 U.S. at 238, 84 S.Ct. at 782.
Ill
Remedy
The judgment and the injunction issued pursuant to the judgment must be modified in light of our decision that the Ehrlund United States Patent 3,885,724 is invalid; that the trademark “Turn-O-Matic” is valid and infringed by the mark “Take-A-Turn;” that the configuration of appellees’ dispenser has acquired a secondary meaning reflective of its source, and that appellant has engaged in unfair competition by passing off appellant’s dispenser as originating from the same source as appellees’ dispenser. These adjustments are best left initially to the district court, but it may be helpful to comment upon two matters.
First, it is clear from the decisions in Sears, Roebuck & Co. v. Stiffel Co., supra, and Compco Corp. v. Day-Brite Lighting, Inc., supra, that an injunction against copying the configuration of appellees’ dispenser cannot be based upon California unfair competition law. This does not, however, preclude an injunction under state law that will prevent the palming off of appellant’s product as that of appellees, nor an injunction requiring that appellant’s product “be labeled or that other precautionary steps be taken to prevent customers from being misled as to the source.” Sears, Roebuck & Co., supra, 376 U.S. at 232, 84 S.Ct. at 789. See generally, Cal.Civ. Code § 3369; Tomlin v. Walt Disney Productions, 18 Cal. App.3d 226, 231-235, 96 Cal.Rptr. 118, 120-123 (Ct.App.1971); Components for Research, Inc. v. Isolation Products, Inc., 241 Cal.App.2d 726, 730-731, 50 Cal.Rptr. 829, 832 (Ct.App.1966).
The more difficult question is whether Sears and Compco preclude an injunction based upon § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a) against copying the exterior design insofar as it incorporates nonfunctional features and has acquired a secondary meaning. See Truck Equipment Service Co. v. Freuhauf Corp., 536 F.2d 1210 (8th Cir. 1976); American Rolex Watch Corp. v. Ricoh Time Corp., supra, 491 F.2d at 879. The district court should reconsider this question free of the distracting assumption that an injunction against copying appellees’ device was in any event justified because of infringement of the Ehrlund patent. Even if such an injunction would not be barred by Sears and Compco, it could not be so broadly drawn as to preclude appellant from using a circular casing to enclose the circular roll of tickets, a common and essentially utilitarian feature of tape dispenser designs. See Application of Honeywell, Inc., 532 F.2d 180, 182-83 (Cust. & Pat.App.1976).
Second, the provision of the injunction requiring appellant to deliver up for im-poundment and destruction devices and materials infringing the Ehrlund patent or the “Turn-O-Matic” trademark will require reconsideration and modification for the same reasons. In addition, however, appellant contends this provision exceeds the pretrial stipulation of the parties that “[o]nly the remedy of injunction is sought.” Appellant objects on similar grounds to the requirement that appellant notify future customers that he does not sell products under the marks “Turn-O-Matic” and “Take-A-Turn.” But orders for impoundment or destruction and for issuing remedial notices are no less injunctive because they impose affirmative requirements to act. Neither provision imposes liability “for damages, costs, and attorney’s fees” in contravention of the parties’ agreement.
U.S. Letters Patent No. 3,885,724 is declared invalid. The judgment and injunction are vacated and the cause remanded for further proceedings consistent with this opinion.
. See note 6, infra.
. Burr & Davis No. 843,579 (“Means For Holding and Detaching Ribbon Strip Labels”) (1907); Ingram No. 1,704,044 (“Dispensing and Severing Device for Rolled Strip Material”) (1929); Beloud No. 2,361,528 (“Device to Sever Paper Sales Tax Slips”) (1944); Williamson No. 3,098,594 (“Container For Shipping, Storing and Dispensing Sheet Material in Predetermined Lengths”) (1963); Obsorn No. 3,173,601 (“Dispensing Sheet Material in Predetermined Lengths”) (1965); Osborn No. 3,229,876 (“Dispensing Sheet Material in Predetermined Lengths”) (1966).
. Burr & Davis No. 843,579; Ingram No. 1,704,-044; Beloud No. 2,361,528.
. Burr & Davis No. 843,579; Williamson No. 3,098,594; Osborn No. 3,173,601; Osborn No. 3,229,876.
. None of these references was cited by the examiner, who relied instead upon four less pertinent patents. Borden No. 2,221,213 (1940) discloses a dispenser permitting the user to tear off a piece of any length desired from a roll of adhesive tape. Burcz No. 3,007,619 (1961) discloses a similar dispenser for thick tapes that are difficult to tear, such as plastic electricians’ tape. Kunsch No. 3,088,640 (1963) is a variation of the standard aluminum foil box, having several large teeth on the cutting edge so that foil may be either torn off or perforated, or both, at any intervals desired. German Application Disclosure No. 1,218,492 (German Federal Republic 1966) discloses a device for separating punched data processing tape and at the same time marking the direction in which the tape is traveling.
. The district court found that Burr & Davis No. 843,579 “does not disclose a flange for temporarily arresting movement of the ticket tongue that is directed in the feeding of the strip as specified in” the Ehrlund patent. Whether or not any portion of the projecting separation edge of the Burr & Davis device is called a “flange,” the Burr & Davis patent discloses a guiding means that arrests the tape, allowing separation. Similar semantic distinction clouded the district court findings as to Beloud No. 2,361,528 and the “Baggie” patents, all of which disclose arresting mechanisms.
. Claim 1 of the Ehrlund patent, for example, reads:
A device for tearing off pieces of the same predetermined length from a roll of fed flexible strip, said strip having punched lines forming tongues equally spaced along said strip with their spacing equal to said predetermined length and directed in the feeding direction for said strip, whereby the portion of each tongue which is firmly connected to the remainder of the strip is perpendicular to the longitudional direction of the strip, said device comprising a casing for said strip roll, said casing having side walls and an open top, a cover pivotally connected to said casing and closing said top, said cover having an outwardly extending portion, another portion integral with the first-mentioned portion and extending in a downwardly direction relatively to the cover, said casing having a portion extending substantially parallel to the first-mentioned portion but spaced therefrom to form a gap for the passage of the strip out of the casing, a flange for temporarily arresting movement of said tongue integram with the third-mentioned portion and extending close to the second-mentioned portion but spaced therefrom to form a gap for the continuing passage of the remainder of the strip, and tear-off portions on either side of said flange connecting the base of said flange to the side walls of the casing arranged for the cut-off to the remainder of the strip.
(Emphasis added.)
. Marston v. J. C. Penney Co., 353 F.2d 976, 986 (4th Cir. 1965); Stradar v. Watson, 244 F.2d 737, 741 (D.C.Cir.1957); Kropa v. Robie, 187 F.2d 150, 38 CCPA 858 (1951). Appellant comes close to arguing that the tape is part of the claimed combination for the purpose of determining validity but not for the purpose of determining infringement, a position forced upon them by the fact that appellees did not manufacture or distribute the tape itself.
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_genresp1
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
SANCHO v. SERRALLES.
No. 3409.
Circuit Court of Appeals, First Circuit.
Aug. 2, 1939.
William Cattron Rigby, of Washington, D. C. (B. Fernandez Garcia, of San Juan, P. R., and Nathan R. Margold, of Washington, D. C., on the brief), for appellant.
David A. Buckley, Jr., of Washington, D. C. (Harvey L. Rabbitt, Arthur L. Quinn, and H. Russell Bishop, all of Washington, D. C., on the brief), for appellee.
Before WILSON, Circuit Judge and PETERS and MAHONEY, District Judges.
MAHONEY, District Judge.
This is an appeal by the appellant from a judgment entered April 20, 1938, by the Supreme Court of Puerto Rico, in which was granted the petition of the appellee that a writ of mandamus issue against the Treasurer of Puerto Rico. The facts are these:
On December 31, 1919, the taxpayer, Succession J. Serralles, paid the amount of $30,407.08 in satisfaction of its income tax for' the taxable year of 1917-18. The Board of Review and Equalization subsequently reduced this amount to $14,840.20, and refunded to the taxpayer an overpayment of $15,566.88. Upon a reconsideration at the request of the taxpayer by the Board of Review and Equalization, this tax was finally fixed at $10,700.96, and the taxpayer was informed by the Treasurer in writing on September 22, 1924, that the balance of $4,139.24 would be refunded when the necessary requirements of law were complied with.
The taxpayer paid under protest the sum of $31,466.04, as its income tax for the year 1918-19. This amount was paid in two instalments, one on May 19, 1920 and the other on September 15, 1920. It was subsequently determined by the Board of Review and Equalization that there was an overpayment by the taxpayer in the sum of $6,077, which the Treasurer agreed on September 22, 1924, would be refunded upon the taxpayer’s compliance with the necessary requirements of law.
Also the amount of income tax for the year 1919-20 was considered by the Board of Review and Equalization, and it found there had been an overpayment of $44,118.-17. On April 9, 1924 the Treasurer wrote that this amount would be refunded upon receipt by him of the necessary forms. Subsequently, credits in the amount of $7,-317.90 and $22,595.08 were given to the taxpayer on income taxes for the year 1923-24, which reduced the overpayment for 1919-20 to the amount of $14,151.19. These overpayments, namely, $4,139.24 for the year 1917-18, $6,077 for the year 1918— 19, and $14,151.19 for the year 1919-20 were finally determined on December 18, 1924, and were left with the Treasurer by agreement to be used by the taxpayer as a credit against future taxes as they should be assessed.
The taxpayer, on February 26, 1926, after the amount of $24,367.43 had been agreed upon as the amount due to the taxpayer, requested that the agreement be put into effect and that it be allowed a credit out of the funds on hand against a special income tax for the year 1924. But the Treasurer, at the request of the Auditor of Puerto Rico that no credits be allowed the taxpayer because it owed the amount of $82,346.34 plus interest to date of payment to cover final balance for uncollected income taxes for the years 1918-1919 and 1920, refused this request. The Treasurer under date of March 1, 1926 notified the taxpayer of its refusal by letter. The People of Puerto Rico in 1926 filed suit to recover the said amount of $82,346.34, in which suit final judgment was rendered against it in October, 1933.
On April 2, 1929, the taxpayer requested the computation and refund of its excess payments for the years 1917-18, 1918— 19 and 1919-20 in accordance with the final award of the Board of Review and Equalization. This request was refused by the Treasurer on the ground that a suit was pending between the People of Puerto Rico and the taxpayer concerning income taxes for this same period and that he must await its outcome. On April 11, 1929, the taxpayer filed a petition for a writ of mandamus against the Treasurer and the Auditor for the immediate computation and refund of the overpayments. This suit was dismissed on February 2, 1932, for lack of prosecution.
The Treasurer, on April 18, 1934, sent the required forms to be filled out by the taxpayer, for the three refunds totaling $24,367.43. The taxpayer refused to fill out and file these forms because it demanded that interest be paid on the amounts.
On October 18, 1934, the Treasurer informed the appellee that from that date it had the above amounts at its disposal and that they would be refunded as soon as the forms were returned.
The taxpayer, on October 17, 1934, filed a petition in mandamus requesting that the Treasurer be ordered to credit its income tax for the year 1933 in the amount of $34,931.73 against the balance in favor of the taxpayer in the amount of $24,367.43 plus interest in the amount of $17,596.46, which represented interest at 6 percent from the date of payment to April 18, 1934. The taxpayer further demanded the award of legal interest on this total sum which amounted to $41,963.89 from April 18, 1934 to its final payment or credit. It also requested in the alternative the immediate refund of the sum of $41,963.89.
The District Court gave judgment for the amount of $24,367.43 plus interest at 6 percent from the date of the illegal collection, to October 18, 1934, the date on which the Treasurer had informed the appellee that it had the amount of $24,367.-43 at its disposal to be refunded as soon as the forms were returned.
The Supreme Court of Puerto Rico, on rehearing, rendered a final judgment ordering the Treasurer of Puerto Rico to set off the amount of $34,951.73 plus interest at 12 percent from September 15, to October 12, 1934, which was due from the taxpayer against the sum of $24,367.-43 plus interest at 6 percent from February 26, 1926 to April 18, 1934, the date on which the Treasurer had advised the taxpayer that the principal amount was held by the Treasurer at the disposal of the taxpayer.
The appellant admits that the petitioner is entitled to the principal amount of $24,367.43 which is the three refunds allowed in 1924. The appeal before this court has to do with the payment of interest on this amount. It is clear, as the Supreme Court of Puerto Rico states, that the statute in force at the time a refund or credit is allowed governs the matter of interest, and in the ordinary case the refund stated would have carried.no interest under the Puerto Rican Income Tax Law of 1924 (Laws Puerto Rico 1925, No. 74). However, under the Income Tax Law of Puerto Rico, the Act of August 6, 1925, Section 79, it is recited that:
“Upon the allowance of a credit or refund of any income or excess-profits tax, erroneously or illegally assessed or collected, or of any pecuniary penalty collected without authority or of any sum which was excessive or in any manner wrongfully collected, interest shall be allowed and paid on the amount of such credit or refund at the rate of 6 per centum per annum from the date such tax, pecuniary penalty, or sum was paid to the date of the allowance of the refund, or in case of a credit, to the due date of the amount against which the credit is taken. * »
The Treasurer had no legal right to withhold the refund as a credit on February 26, 1925, in accordance with the agreement of the parties. The Fajardo Sugar Company of Porto Rico v. Holcomb, Auditor, 1 Cir., 16 F.2d 92. This action of the Treasurer on that date changed the identity of the sum of $24,367.43. It had ceased to be a “1924 refund” and it became a sum which was excessive or wrongfully collected. The status quo which had been established between the Treasurer and the taxpayer up to 1926, by which the latter could have withdrawn in the form of a credit any amount owing to it without objection by the Treasurer, was destroyed by the action of the Treasurer in 1926, when at the request of the auditor he denied the right of the taxpayer to obtain this sum or to use it as a credit for current taxes. This is the sum which is wrongfully collected, and at that date the Puerto Rican Income Tax Act of 1924, Section 79, was in effect. Under that section the Treasurer was bound to' pay interest from the date of the illegal collection or withholding until the date of the allowance of the refund. American Potash Co. v. United States, Ct.Cl., 8 F.Supp. 717.
Lapse of time is not laches. As said by the Supreme Court of the United States in Southern Pacific Co. v. Bogert, 250 U.S. 483, 488, 39 S.Ct. 533, 536, 63 L.Ed. 1099:
“The essence of laches is not merely lapse of time. It is essential that there be also acquiescence in the alleged wrong or lack of diligence in seeking a remedy.”
The wrong here was the retention of the money of the taxpayer in 1926 in violation of the agreement between the Treasurer and the taxpayer. Speaking of a similar situation, where the excessive collection of a tax was retained by the Government, the Supreme Court said:
“Retention of 'the money was against morality and conscience. * * * The unjust detention is immoral and amounts in law to a fraud on the taxpayer’s rights.” Bull v. United States, 295 U.S. 247, 260, 261, 55 S.Ct. 695, 700, 79 L.Ed. 1421.
It is urged that the well established rule requiring deference to the interpretation of a local statute by a local Supreme Court unless clearly wrong is not applicable here, because the decision is not an interpretation of a local statute.
The decision is, of course, a construction of a local statute, The Puerto Rican Income Tax Law of 1924. If the taxpayer is to find relief he must find it within the provisions of that Act and suit being brought under that Act and the court finding that the taxpayer is entitled to relief— there has necessarily been an interpretation of the Act, to wit: That the facts proved by the taxpayer entitle him to relief under the provisions of the Act.
Under the facts and the law, it is clear that the taxpayer’s right to legal interest on the amount improperly withheld from him was substantially clear. The proper remedy by which the taxpayer could enforce its legal rights was mandamus. Blair v. United States ex rel. Union Pacific R. Co., 55 App.D.C. 359, 6 F.2d 484, with cases cited.
The judgment of the Supreme Court of Puerto Rico is affirmed.
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
sc_adminaction_is
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether administrative action occurred in the context of the case prior to the onset of litigation. The activity may involve an administrative official as well as that of an agency. To determine whether administration action occurred in the context of the case, consider the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
UNITED STATES ex rel. JOHNSON v. SHAUGHNESSY, ACTING DISTRICT DIRECTOR OF IMMIGRATION AND NATURALIZATION.
No. 506.
Argued April 19-20, 1949.
Decided May 9, 1949.
Gunther Jacobson argued the cause and filed a brief for petitioner.
Patricia H. Collins argued the cause for respondent. With her on the brief were Solicitor General Perlman, Assistant Attorney General Campbell, Robert S. Erdahl and Philip R. Monahan.
Jack Wasserman, Gaspare Cusumano and Thomas M. Cooley, II, filed a brief for the Association of Immigration and Nationality Lawyers, as amicus curiae, urging reversal.
Mr. Justice Black
delivered the opinion of the Court.
The American Foreign Service at Stockholm issued to petitioner an immigration visa to come to the United States as a Swedish quota immigrant. On the ground that she was a mental defective, authorities of the Immigration and Naturalization Service declined to admit her into this country and ordered her detention at Ellis Island pending deportation to Sweden. She filed this habeas corpus proceeding contending that she was not a mental defective and challenging in several respects the legality of the exclusion order. The District Court discharged the writ and ordered petitioner remanded to the immigration authorities. 82 F. Supp. 36. The Court of Appeals affirmed, one judge dissenting. 170 F. 2d 1009. Certiorari was granted because important questions were raised concerning administration of the immigration laws.
Section 3 of the Immigration Act of 1917 excludes from admission into this country certain classes of aliens deemed undesirable. Among those excluded are persons “who are found to be and are certified by the examining surgeon as being mentally . . . defective . . . 39 Stat. 874, 875, 8 U. S. C. § 136 (d). Section 16 of the Act provides that mental examinations of arriving aliens shall be made by not less than two United States Public Health Service medical officers especially trained in the diagnosis of insanity and mental defects. The same section authorizes an appeal to a special board of medical officers of the Public Health Service for any alien who is certified by the two medical officers as a mental defective. Finally § 17 of the Act as amended, 8 U. S. C. § 153, provides that boards of special inquiry shall be appointed by the Immigration and Naturalization Service, subject to approval of the Attorney General. These boards of special inquiry are granted “authority to determine whether an alien who has been duly held shall be allowed to land or shall be deported.” It was a board of special inquiry of this kind that ordered petitioner excluded from the United States.
First. Two medical officers of the Public Health Service signed a certificate that petitioner was a mental defective. On appeal a board of three Public Health medical officers affirmed the finding of this certificate. Later when her case was under consideration by a board of special inquiry of the Immigration and Naturalization Service, petitioner asked for time to produce additional evidence to show that she was not a mental defective. The board refused to hear such evidence holding that it was bound by § 17 of the Immigration Act to accept as final the medical certification that she was a mental defective. Petitioner contends that this holding was error which invalidates the exclusion order. We hold that the Court of Appeals correctly rejected this contention.
Section 17 provides, with an exception not here relevant, that “the decision of a board of special inquiry shall be based upon the certificate of the examining medical officer and . . . shall be final as to the rejection of aliens affected with . . . any mental . . . disability which would bring such aliens within any of the classes excluded from admission to the United States under section three of this Act.” We agree with the following statement of the Court of Appeals. “A certificate by the medical board if its action conformed to the statute and regulations and its decision was made after a fair hearing was plainly intended to be conclusive.” 170 F. 2d 1009, 1012. This conclusion is particularly compelling in the light of the legislative history referred to in that court’s opinion. We therefore turn to the medical certificates to consider the contention that they were not issued as the result of the kind of examinations required by the statute and regulations, and that the certificates themselves failed to conform to those requirements.
Second. Petitioner attacks the validity of both the initial medical certificate and that of the appellate medical board, contending that they provide an inadequate basis for excluding her from the United States. The importance of these medical certificates is underscored by our holding that Congress has made the findings and conclusions in the certificates final on the question of whether an alien is so mentally defective that admission into the country must be denied. Congress has taken note of the crucial importance of this medical determination by prescribing certain minimum procedural requirements that the Public Health Service must follow, such as special qualifications of examining doctors, the minimum number of doctors that must examine the applying alien, and the right of an alien to have an initial adverse certificate reviewed by a special board of doctors. In order that further safeguards might be provided, Congress authorized the Surgeon General of the Public Health Service to prescribe additional regulations governing the procedure to be observed in the exercise of that Service’s exclusive authority over medical questions.
Pursuant to this statutory authority the Surgeon General issued regulations which detail the manner in which medical examinations shall be held and the type of certificates by which examining doctors and boards shall report their findings and conclusions. As shown by the dissenting opinion below, serious challenges have been made to the sufficiency of the certificate of the medical appeal board as well as to the initial medical certificate in which two doctors certified petitioner to be a mental defective. The shortcomings of the initial certificate, however, probably could have been rendered harmless by a proper examination and certificate by the medical board of appellate review. Since our conclusion is that the appellate review failed to meet the requisite standards prescribed by statute and regulations, we need not consider the challenges directed against the original certificate standing alone.
Regulations of the Public Health Service provide the way in which medical appeal boards shall be convened and detail a procedure for the boards to follow. The regulations impose a duty on such boards “to re-examine an alien”; they further provide that “re-examination shall include ... a medical examination by the board”; that the “findings and conclusions of the board shall be based on its medical examination of the alien”; and that “The board shall report its findings and conclusions to the Immigration Service . ...” The report of the medical appeal board here shows only that it “considered the appeal . . . and after taking into consideration the certificate of Mar. 11, 1948 and the testimony given by Dr. Carlton Simon, reports that it concurs with the above dated certificate.” The report of this medical board therefore wholly failed to show any compliance with the requirement of § 34.13 (g) that the board base its “findings and conclusions ... on its medical examination of the alien . . . .” We think the record makes clear that the appeal board made no such medical examination as was required by the regulations.
The report itself shows that the appellate board based its conclusion on two considerations: (1) the initial certificate of the two public health doctors; (2) testimony given by Dr. Carlton Simon. But the appellate board could not rest its finding that petitioner was a mental defective on the original certificate without denying petitioner the independent review and re-examination which Congress and the Surgeon General had prescribed. Nor could the appellate board relieve itself of its duty to make an independent re-examination by relying on the testimony of Dr. Simon. Moreover, Dr. Simon testified that petitioner was not a mental defective. His testimony was that she was “normal.” It hardly seems necessary to add that the statement of the appellate board that it had “considered the appeal,” cannot be treated as a certification that petitioner had been given an independent medical examination. We therefore hold that the appellate board's certificate is an inadequate basis on which to rest the exclusion order of the board of special inquiry.
The Government contends, however, that additional data in the record shows that the board did re-examine the petitioner. We may assume without deciding that the defects in the appellate board's report could be cured by additional record data, but we find no such data in the record sufficient to cure the defect. The data on which the Government relies is contained in a stenographic report of evidence given by petitioner and Dr. Simon, petitioner’s witness. Petitioner’s evidence, like that of Dr. Simon, was an emphatic denial of any condition which could justify her classification as a mental defective. The stenographic report thus falls far short of showing that the medical appeal board made an independent medical examination of petitioner’s mental qualities. That report tends to confirm the fact that the board’s conclusions were rested only on the report of the initial examination by the two Public Health Service doctors and on a report of the physician of the ship on which petitioner came to this country. This makes necessary a short statement concerning this report by the ship’s doctor and the circumstances under which the record discloses that report was made.
Apparently the second day after petitioner had commenced her voyage to America the ship’s doctor visited her. He found her weak and dizzy. She stated that “she could not stand the sea” and would not go to the dining room. The doctor’s impression after his first visit was that she was seasick. The next day, according to the doctor’s report, she admitted hallucinations, stating that at night she heard cries and saw faces, said she had given the consul “wrong information,” and thought this sinful. At this time the ship’s doctor wrote down his “impression of an incipient psychosis” and transferred her to the isolation ward of the ship’s hospital. The next day according to the doctor, petitioner stated that she had been treated for insanity at her home in Sweden for a six-month period two years before. On the last day of the sea trip, the ship’s doctor reported that she had cleared up “remarkably,” that she had no recollection of “a lot of strange things she had said before,” was sleeping well, denied having any hallucinations, and looked “considerably better.”
In her evidence before the medical board petitioner stated that she spoke “terribly bad English”; that prior to boarding the ship she had been to a number of parties and was very tired when she came aboard; that after coming aboard and during the voyage she had taken bromides and sleeping tablets; and that in her condition she just slept and said “yes” to every question the doctor asked.
From the foregoing it appears that the data relied on by the Government was totally inadequate to show that the appellate medical board “re-examined” petitioner. The sum total of that data is testimony given by petitioner and her medical specialist to the effect that petitioner was mentally normal, plus petitioner’s admissions that while seasick and under the influence of drugs she had said things that prompted the ship’s doctor at one time to suspect “incipient psychosis.”
So far as the medical findings and evidence here show, the daily reports made by the ship’s doctor while petitioner was a passenger constitute the only affirmative evidence that petitioner is or was a mental defective. The Public Health regulations plainly prohibit the issuance of exclusion orders resting on nothing but a single episode reported by a non-Public-Health doctor. For Congress has provided that before aliens suspected of mental defects are excluded, findings and conclusions shall be made by Public Health doctors based on their own examinations made in compliance with procedural safeguards defined or authorized by Congress. Medical certificates barring aliens are even then to be issued “only if the presence of such . . . defect is clearly established.” 42 Code Fed. Reg. § 34.4 (1947 Supp.) . And such certificates “shall in no case be issued with respect to an alien having only mental shortcomings due to ignorance, or suffering only from a mental condition attributable to remedial physical causes, or from a psychosis of a temporary nature caused by a toxin, drug, or disease.” 42 Code Fed. Reg. § 34.7 (1947 Supp.). So far as appears from the appellate certificate here, the board made no examination to determine whether the ship episode, as reported by the physician, was the result of petitioner’s ignorance of English plus temporary debility or was the result of a mental defect justifying exclusion. Even the report of the ship physician contained no finding on this point, and it is not amiss to add that the verified petition for habeas corpus contains an undenied allegation that the ship’s doctor has now stated that “in his opinion the alien is not mentally defective.”
Our holding that the appellate board’s medical certificate and additional data are inadequate to support the exclusion order makes it unnecessary to decide other questions relating to applicability of the Administrative Procedure Act to hearings before the board of special inquiry. 60 Stat. 237, 239, 5 U. S. C. §§ 1001, 1004.
The judgment is reversed and the cause is remanded to the District Court for entry of an order affording petitioner a proper hearing and medical examination before the appropriate public health authorities.
Reversed and remanded.
Mr. Justice Reed, with whom The Chief Justice and Mr. Justice Burton join, dissenting.
This Court affirms the decision that a proper medical finding of a physical defect which excludes an alien from entrance into the United States is final and not subject to further inquiry. With the Court’s ruling on this point, I agree.
(1) The reversal of the dismissal of the writ of habeas corpus is founded on the Court’s premise that the report of the reviewing board of medical officers “shows that the appellate board based its conclusion on two considerations: (1) the initial certificate of the two public health doctors; (2) testimony given by Dr. Carlton Simon [a psychiatrist chosen by the alien].” The Court then concludes that “the appellate board could not rest its finding that petitioner was a mental defective on the original certificate without denying petitioner the independent review and re-examination which Congress and the Surgeon General had prescribed.” That is to say, the report, as the Court phrases it, “makes clear that the appeal board made no such medical examination as was requirecLby the regulations.” My reading of the opinion is that the Court thinks the record affirmatively shows a failure to comply with the statute and regulation § 34.13 (g) and (h) as to findings and examination.
There is a suggestion that a medical appeal board must certify that the alien had been examined I assume, however, that if the Court intended to require specific certification by the medical board of the steps leading to its findings and conclusions it would have made such a holding definitive.
I disagree with the Court’s interpretation of the report. A strong presumption exists that public officials perform their duty. If the report had added the phrase, “in accordance with the regulations,” after the word “considered,” there could be no doubt as to the sufficiency of the report. The presumption of regularity until rebutted requires courts to adopt such an interpretation. The statement of the board of medical officers that it “has considered the appeal” means to me that the board has proceeded conformably to the statute and regulations.
(2) There is a graver error in the Court’s holding, however, which may interfere with sound administrative procedure. Although petitioner was represented by counsel, no objection to the form of the report was made during the administrative process. This case heretofore has centered around the issue of finality disposed of by the Court. Even in the several hearings of her effort to get relief by habeas corpus, petitioner has never asserted, in this or any other court, that she was not examined by the physicians of the medical review board. This is made plain by the Court’s statement of the generalized objections on other grounds to the report of the medical review board, see opinion at note 2, and from the affidavits and objections appearing in the record. The dissenting judge, 170 F. 2d 1009, 1013, did not refer to the failure to examine petitioner. He spoke only of the failure of the Board of Special Inquiry and the medical board to require adequate and revealing certificates and reports. Even the petition for certiorari does not present the question. The brief does not discuss it.
The administrative remedy must be exhausted by fair effort to correct administrative errors before resort to habeas corpus or other judicial remedies. To permit occasional reversal of administrative orders on points not brought to the attention of the agency hampers administrative routine and, if adopted as a rule of law, would disorganize administrative procedure. Afterthought cannot take the place of required objection. This is not a case where rules of practice and procedure defeat the ends of justice. There is nothing in this record to indicate that disabilities of petitioner, or difficulties of procedure or practice, the emergence of a new rule of law or any other change of circumstance has affected the course of petitioner's pleas. She has had advantage of every method of relief known to the law but has not seen fit to bring forward the ground upon which this Court reverses.
It is obvious that had objection been made to the form of the report of the Board of Medical Officers at the hearing before the Board of Special Inquiry, April 6, 1948, a prompt elaboration of the report could have been obtained or, if no examination such as is required by the regulations had already been made, it could have been done promptly. Proper administrative procedure requires that objection to certificates be made at the earliest opportunity which in this case was during the administrative hearing before the Board of Special Inquiry. A litigant’s unexplained failure to raise an issue does not justify capricious judicial intervention on behalf of an individual.
I would affirm the judgment below.
39 Stat. 885, as amended, 8 U. S. C. § 152.
During the hearings before the Board of Special Inquiry counsel for petitioner stated to this board “that from an examination of the record it appears that the only positive finding of mental defectiveness appears in the record of the ship’s surgeon Counsel insisted that petitioner was suffering from no “mental disturbance whatsoever.” In her behalf he asked for an opportunity to produce further medical testimony. In response to this request the board’s chairman asked counsel whether petitioner would be able to bear the expenses of her continued detention should the board grant her request for an opportunity to produce further medical testimony. Counsel replied that he believed she could. The board immediately thereafter closed the hearing, made its findings and ordered her excluded.
The dissenting opinion stated: “I would reverse the order and direct that the writ be sustained because of inadequacy of the original certificate of the examining surgeons and total failure of the reviewing Board of Medical Officers to comply with the regulations.” 170 F. 2d 1009,1014.
“(c) Re-examination shall include:
“ (1) A medical examination by the board ;
“(2) A review of all records submitted;
“(3) Use of any laboratory or diagnostic methods or tests deemed advisable; and
“(4) Consideration of .statements regarding the alien’s physical or mental condition made by a reputable physician after his examination of the alien.
“(e) An alien being re-examined may introduce as witnesses before the board such physicians or medical experts as the board may in its discretion permit, at his own cost and expense, . . . .” 42 Code Fed. Reg. §34.13 (1947 Supp.).
The report reads as follows:
“Pursuant to the request of the District Director of Immigration and the order of the Medical Officer in Charge, the following Board of Medical Officers of the U. S. Public Health Service, has considered the appeal regarding subject-named alien May Gunborg Johnson and after taking into consideration the certificate of Mar. 11, 1948 and the testimony given by Dr. Carlton Simon, reports that it concurs with the above dated certificate.”
39 Stat. 885, as amended, 8 U. S. C. § 152:
“Sec. 16. The physical and mental examination of all arriving aliens shall be made by medical officers of the United States Public Health Service who shall conduct all medical examinations and shall certify, for the information of the immigration officers and the boards of special inquiry hereinafter provided for, any and all physical and mental defects or diseases observed by said medical officers in any such alien; .... Any alien certified for insanity or mental defect may appeal to the board of medical officers of the United States Public Health Service, which shall be convened by the Surgeon General of the United States Public Health Service, and said alien may introduce before such board one expert medical witness at his own cost and expense. . . .”
42 C. F. R. §34.13 (1947 Supp.). ‘‘Re-examination; convening of boards; expert witnesses; reports, (a) The Surgeon General, or when authorized, a medical officer in charge, shall convene a board of medical officers to re-examine an alien
“(2) Upon an appeal by the alien from a certificate of insanity or mental defect, issued at a port of entry.
“(c) Re-examination shall include:
“(1) A medical examination by the board;
“(2) A review of all records submitted;
“(3) Use of any laboratory or diagnostic methods or tests deemed advisable; and
“(4) Consideration of statements regarding the alien’s physical or mental condition made by a reputable physician after his examination of the alien.
“(g) The findings and conclusions of the board shall be based on its medical examination of the alien and on the evidence presented to it and made a part of the record of its proceedings.
“(h) The board shall report its findings and conclusions to the Immigration Service, and shall also give prompt notice thereof to the alien if the re-examination has been held upon his appeal. The board’s report to the Immigration Service shall specifically affirm, modify, or reject the findings and conclusions of prior examining medical officers.”
It will be noted that the evidence presented to the board was made a part of the report to the Board of Special Inquiry as required by the regulation.
“It hardly seems necessary to add that the statement of the appellate board that it had ‘considered the appeal,’ cannot be treated as a certification that petitioner had been given an independent medical examination.”
Lewis v. United States, 279 U. S. 63, 73: “It is the settled general rule that all necessary prerequisites to the validity of official action are presumed to have been complied with, and that where the contrary is asserted it must be affirmatively shown.”
Stearns Co. v. United States, 291 U. S. 54, 63, and authorities cited; United States v. Chemical Foundation, 272 U. S. 1, 14.
We refused to review an issue not raised before an administrative body in Unemployment Commission v. Aragon, 329 U. S. 143, 155: “A reviewing court usurps the agency’s function when it sets aside the administrative determination upon a ground not theretofore presented and deprives the Commission of an opportunity to consider the matter, make its ruling, and state the reasons for its action.” Tri-State Broadcasting Co. v. F. C. C., 107 F. 2d 956, 958. Cf. Myers v. Bethlehem Corp., 303 U. S. 41, 51, note 9; Blair v. Oesterlein Co., 275 U. S. 220.
The Administrative Procedure Act contemplates presentation before the administrative agency of every issue that may be made the subject of judicial review by habeas corpus or appellate process. 60 Stat. 237, §§7 (c), 8 (b) (2), 10 (b), (c) and (e). The rule against raising questions on judicial review that were not raised in administrative proceedings has general application, see Caldarone v. Zoning Board of Review, 74 R. I. 196, 199, 60 A. 2d 158, 159; Reisberg v. Board of Standards and Appeals, 81 N. Y. S. 2d 511, 513; General Transp. Co. v. United States, 65 F. Supp. 981, 984.
Cf. Hormel v. Helvering, 312 U. S. 552, 557.
Question: Did administrative action occur in the context of the case?
A. No
B. Yes
Answer:
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songer_civproc1
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0
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited federal rule of civil procedure in the headnotes to this case. Answer "0" if no federal rules of civil procedure are cited. For ties, code the first rule cited.
JACOBS v. MERCHANTS FIRE ASSUR. CORPORATION OF NEW YORK.
No. 8754.
Circuit Court of Appeals, Fifth Circuit.
Nov. 15, 1938.
McCORD, Circuit Judge, dissenting.
A. C. Wheeler, E. D. Kenyon, and Chas. J. Thurmond, all of Gainesville, Ga., for appellant.
Grover Middlebrooks, of Atlanta, Ga., •and Wm. P. Whelchel, of Gainesville, Ga., for appellee.
Before SIBLEY, HUTCHESON, and McCORD, Circuit Judges.
SIBLEY, Circuit Judge.
In Georgia by statute a contract of fire insurance must be in writing, Ga.Code, § 56-801, and this is 'apparently true of other contracts of insurance. Sec. 56-213. The contract must be wholly in writing and not partly in parol. Athens Mutual Ins. Co. v. Evans, 132 Ga. 703, 64 S.E. 993; Newark Fire Ins. Co. v. Smith, 176 Ga. 91, 167 S.E. 79, 85 A.L.R. 1330. Thewritirig must express the essentials of the contract. Knight & Son v. Superior Fire-Ins. Co., 5 Cir., 80 F.2d 311. An insurance contract which does not say what risks are ‘ insured against is certainly insufficient.
In this case, Jacobs sued at law on a written policy for damage to a stock of automobiles injured in a tornado in an agreed' amount of $5,988. The defense was that the policy did not cover damage by tornado. The policy introduced was on a form-appropriate to insure a single automobile- and stated: “C. ' This insurance is against only such and so many of the perils named in the schedule below as are indicated by a specific premium in writing set opposite-thereto.” The schedule listed seven perils, the first being “fire, lightning, and transportation as defined in Par. F, page' 2.”, and the fifth was “Tornado, Cyclone,. Windstorm * * * as defined in Par.. I, page 2.”, and the sixth “Collision or upset as defined in Par. J, page 2.” No premium was set down opposite any of these-perils, nor was the blank for the total premium filled out. The words “See form attached” were, however, written in the-schedule. The form attached is a long one headed “Automobile Dealers Open Policy”,, which has the effect to make the policy applicable to a dealer’s floating stock of automobiles, and requires monthly statements-of the cash value of cars on hand, on which basis monthly premiums are to be-charged against an initial deposit of $100,. till it is exhausted, and then paid additionally each month. It is stated that the annual rate is 2.21%, which we understand’ to mean $2.21 per $100 insured. There is-no statement in this form of what perils, this rate covers. It thus plainly appears, that a premium -was charged for some perils or perils, and the evidence is that during the .currency of the policy a total of $272! was paid in monthly premiums on bills rendered by the insurer. Nevertheless the policy and attached form fail to disclose what risks are insured against, its provision being that none is covered unless there is a written designation of the premium for it in the schedule. A rider was added, however, which states that “in consideration of additional premiums to be computed at the annual rate of $1.20 per $100 of values reported each month this policy is extended to cover the peril of collision or upset.” This rider plainly makes an additional insurance on the 6th item of the schedule of risks for an additional premium, but it in no wise settles what risks were at first insured. Jacobs testified that he asked for a 100% coverage, meaning all risks, and the agent who issued the policy testified that he figured only the fire and theft risks besides collision, but he admits that he did not say so to Jacobs and never at any time gave him any itemization of the premium charges which would show what risks were charged for. Jacobs by amendment of his petition contended that he had called for insurance including tornado risks and thought he had it, and that the insurer knew this and prepared the policy and collected the premiums with that knowledge and should be estopped to deny that the policy covered that risk; also that the policy if ambiguous as to what it covered should be construed in his favor and be held to cover all the risks it mentioned. The judge granted an involuntary, non-suit.
We agree that no right to recover at law was proven. The policy was not ambiguous. It distinctly says that no risks are covered save those for which a particular premium is listed. The rider for insurance against collision and upset at a premium rate of $1.20 is the only risk thus identified. Remembering that the written policy must state the whole contract and parol evidence cannot add to it, there is no process of construction of its terms by which a court could say that tornado insurance rather than some other was provided for. It cannot be concluded that all risks were covered, for that is in the teeth of the provision that none are covered save those with an itemized premium set down. But it is evident that some risk was intended to be insured against in the original policy, for a rate of $2.21 was charged and collected .for it. It is plainly a case in which the writing is incomplete and so fails to fully express what the agreement was. In a law case the failure cannot be remedied by parol evidence of the agreement for insurance; but where through fraud, accident or mistake the writing fails to express the true agreement a reformation may be had in equity. Niagara Fire Ins. Co. v. Jordan, 134 Ga. 667, 68 S.E. 611, 20 Ann.Cas. 363; Overland Southern Motor Co. v. Maryland Casualty Co., 147 Ga. 63, 92 S.E. 931. This is the relief that must be sought in this case if the true agreement was for tornado insurance.
Estoppel is not a substitute for reformation. In Springfield Fire & Marine Ins. Co. v. Price, 132 Ga. 687, 64 S.E. 1074, reformation was held unnecessary to prevent the defeat of an insurance contract by a condition for fee simple ownership, the initial breach of which was known to the insurer when the policy was issued and the premium was collected, estoppel being held effective against asserting the condition. But this is a very different thing from the creating by estoppel proved in parol a contract which is required to be in writing. Giving full effect to the doctrine that Georgia law must be applied to a Georgia insurance, we must hold that Jacobs must seek relief in equity by reformation rather than by urging estoppel in a law suit.
The judgment of non-suit is affirmed, without prejudice.
McCORD, Circuit Judge, dissents.
Question: What is the most frequently cited federal rule of civil procedure in the headnotes to this case? Answer with a number.
Answer:
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