task
stringclasses 260
values | output
stringlengths 2
5
| instruction
stringlengths 576
44.2k
|
|---|---|---|
sc_authoritydecision
|
C
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence.
BARTKUS v. ILLINOIS.
No. 39.
Argued November 19, 1957.
Decided January 6, 1958.
Walter T. Fisher, acting under appointment by the Court, 352 U. S. 958, argued the cause and filed a brief for petitioner.
William C. Wines, Assistant Attorney General of Illinois, argued the cause for respondent. With him on the brief were Latham Castle, Attorney General, and Theodore G. Maher as, Assistant Attorney General.
Per Curiam.
The judgment is affirmed by an equally divided Court.
Mr. Justice Brennan took no part in the consideration or decision of this case.
Question: What is the basis of the Supreme Court's decision?
A. judicial review (national level)
B. judicial review (state level)
C. Supreme Court supervision of lower federal or state courts or original jurisdiction
D. statutory construction
E. interpretation of administrative regulation or rule, or executive order
F. diversity jurisdiction
G. federal common law
Answer:
|
songer_respond1_3_2
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
UNITED STATES of America v. Edward William LANCER, Appellant.
No. 73-1795.
United States Court of Appeals, Third Circuit.
Argued Dec. 13, 1973.
Reargued Sept. 13, 1974.
Decided Jan. 30, 1975.
Forman, Circuit Judge, dissented and filed opinion which was partly concurred in by Seitz, Chief Judge.
Robert E. J. Curran, U. S. Atty., Walter S. Batty, Jr., Chief, App. Section, Asst. U. S. Atty., Alan M. Lieberman, Thomas E. Mellon, Jr., Asst. U. S. Attys., Philadelphia, Pa., for appellee.
David Kanner, Kanner, Stein & Barol, Philadelphia, Pa., for appellant.
Argued Dec. 13, 1973.
Before FORMAN, HUNTER and GARTH, Circuit Judges.
Reargued Sept. 13, 1974.
Before SEITZ, Chief Judge, and FOR-MAN, VAN DUSEN, ALDISERT, ADAMS, GIBBONS, ROSENN, HUNTER, WEIS and GARTH, Circuit Judges.
OPINION OF THE COURT
GARTH, Circuit Judge:
This appeal requires us to examine the validity and interrelationship of sentences imposed upon the petitioner under 18 U.S.C. §§ 3651, 3653 and 4208. We are obliged to decide among other issues: whether the petitioner’s sentence was properly imposed on July 28, 1965, and therefore, whether he was validly on probation at a time when an order for his arrest charging probation violation was issued on October 9, 1970. We must also determine whether the district court erred in sentencing the_ petitioner under the provisions of 18 U.S.C. § 420&(b) & (c) after it had revoked his probation in March of 1967; and, finally, we must determine whether the district court, once having revoked probation, could thereafter reimpose a probationary term. As originally presented, it appeared that we would only be required to determine two issues: the first involved the maximum sentence that could be imposed for a violation of 18 U.S.C. § 641 where the indictment alleged no value and a plea to the indictment was taken without proof of value; the second involved imposition of sentences of probation on two separate indictments totalling in excess of five years. After argument before a panel of this court, on our own motion, we ordered rehearing en banc to consider these issues and others discussed below.
For the reasons set forth herein, we hold, inter alia, that Lancer was still within the valid four year, ten month, probationary term imposed under Indictment 22119 when the October 9, 1970 warrant issued. Therefore, petitioner is not entitled to a withdrawal of the warrant and to discharge of the detainer. This holding, in many but not all respects accords with the analysis of the district court. Nevertheless, we are obliged to remand to the district court to correct certain of the sentences imposed and to compute the remaining probationary term which Lancer must serve.
I. Facts
On June 1, 1965, petitioner, Edward William Lancer, pleaded guilty in the District Court for the Eastern District of Pennsylvania to Indictment 22119 charging him, in one count, with having received 364 money orders stolen from post offices in Pennsylvania and New Jersey in violation of 18 U.S.C. § 641. On July 28, 1965, the petitioner pleaded guilty to Indictment 22173, a two-count indictment charging the forging and uttering of a bank money order in violation of 18 U.S.C. § 500 (forging a postal money order). On that same date, he also entered guilty pleas to six other indictments variously charging him with offenses under 18 U.S.C. §§ 641, 500, and 1708 (theft or receipt of stolen mail matter). The latter six indictments, along with Indictment 22173, were transferred from six different states to the Eastern District of Pennsylvania under Fed.R. Crim.P. 20. After taking guilty pleas to all indictments, the district court imposed the following sentences:
Under Indictment 22119:
Ten (10) years, the first two months of which are to be served in a jail-type institution. The execution of the balance of the sentence is suspended and the defendant placed upon probation for a period of Four (4) Years and Ten (10) months, under the provisions of § 3651, Title 18, U.S.Code.
Under Indictment 22173:
[imposition of sentence is suspended on Count 1, and the defendant placed upon probation for a period of Five (5) years on said count, the probation period is to begin at the expiration of that imposed in Criminal No. 22119. On Count 2, the imposition of sentence is suspended.
On each of the other six indictments, the imposition of sentence was also suspended with no probation imposed.
The record reveals that Lancer’s probation under Indictment 22119 actually commenced in May 1966. The November 7, 1966 petition charging Lancer with violation of probation (lying, forging fraudulent checks, absconding from supervision, etc.) led to a hearing before the district court on March 29, 1967.® The order of the district court, entered on March 29th revoked Lancer’s probation and ordered imprisonment for a period of
“... NINE (9) YEARS and TEN (10) MONTHS, said sentence of imprisonment being imposed under the provisions of Title 18 U.S.Code § 4208(b) for a study as described in § 4208(c); the results of such study to be furnished to the Court within three months.....”
On completion of the study, Lancer was returned to court on August 3, 1967 for final sentence, and was placed on probation for nine years and ten months, with the imposition of prison sentence suspended. By order dated April 9, 1968, (apparently in response to the United States Attorney’s motion, supra n.ll), the district court suspended imposition of prison sentence but, this time, placed petitioner on probation for “four (4) years and ten (10) months.”
In January, 1968, Lancer was again charged with violation of probation (absconding). After a court hearing on June 10, 1968, probation was continued.
The order authorizing Lancer’s arrest for his last violation of probation was entered on October 9, 1970. As related in note 1, supra, a detainer based upon that order was placed against Lancer at Leavenworth prison on April 26, 1972. The instant action has been precipitated in large part by reason of this detainer.
Lancer’s pro se motion to vacate sentence referred to all eight indictments, although the significant indictment for purposes of this appeal is Indictment 22119. The district court in denying Lancer’s motion held that: (a) the indictment was valid; (b) the ten year maximum sentence, permitted under 18 U.S.C. § 641 where value exceeds $100, could properly be imposed after a plea of guilty, because the district court could judicially notice that the value of 364 blank, stolen money orders exceeded the $100 penalty “hurdle”; (c) 18 U.S.C. § 3651 does not preclude consecutive five year probationary terms on separate indictments; and, (d) after revocation of probation, a study may be ordered and probation again imposed. This appeal followed.
II. Petitioner’s Theory
Essentially, Lancer’s theory, by which he seeks discharge of all restraints (in the form of sentences to be served and detainers), particularly, the October 1970 detainer, proceeds as follows:
1. His original sentence of ten years under Indictment 22119 was illegal and excessive, in that the maximum sentence which could have been imposed under 18 U.S.C. § 641 (in the absence of an allegation of value in excess of $100) was one year;
2. His original probationary term of four years and ten months under Indictment 22119 has expired;
3. It is illegal to impose consecutive terms of probation in excess of five years; and
4. The probationary term imposed by the district court as a result of the March 29, 1967 hearing was unauthorized by 18 U.S.C. § 4208.
Hence, Lancer claims that he was not legally on probation when the order of October 9, 1970 issued, charging a violation of probation, and all subsequent acts which depend upon that order must necessarily be void.
III. The 1965 Sentence (18 U.S.C. § 641)
Our analysis starts with an examination of Indictment 22119 charging petitioner with a violation of 18 U.S.C. § 641. Section 641 provides for two levels of penalties depending on the value of the property converted. If the value of the stolen property is $100 or more, an offender, “shall be fined not more than $10,000 or imprisoned not more than ten years, or both.” However, if the value of the property is less than $100, an offender cannot be fined “more than $1,000 or imprisoned more than one year, or both.” Indictment 22119 alleges no value for the 364 converted money orders and no proof of value was offered at the time petitioner entered his guilty pleas.
In United States v. Ciongoli, 358 F.2d 439 (3d Cir. 1966), we were called upon to consider a motion to dismiss an indictment brought under 18 U.S.C. § 641. The indictment in that case alleged a value in excess of $100 attributable to 51 stolen money orders. The argument was made that, inasmuch as the money orders were blank, their value had to be less than $100. Despite the government’s offer to prove value in excess of $100, the district court dismissed the indictment. We reversed, stating (at 358 F.2d 441);
“... The essential wrong which the statute proscribes is the misappropriation of government property, knowing that it has been stolen. Thus, no particular value of the stolen property need be alleged or proved to sustain a conviction, though in such a case only the lesser punishment can be imposed....” United States v. Marpes, 198 F.2d 186 (3d Cir. 1952) (emphasis added).
In United States v. Marpes, supra, the defendant had been charged under two indictments alleging violations of 18 U.S.C. § 659. One indictment specified a value in excess of $100. The other, as in the instant case, was silent as to value. As to the latter Marpes indictment, the court stated;
“... The sentence of one year’s imprisonment imposed under Indictment No. 13295 was necessarily based upon a value of $100 or less, since the indictment did not allege value....” 198 F.2d 189.
The cases, cited by the government in an effort to sustain the sentence imposed upon Lancer, are inapposite, as in each of them, the indictments allege a value in excess of $100, an ingredient missing in the Lancer Indictment.
We agree with Lancer that, under Indictment 22119, his sentence could not exceed a prison term of more than one year. We hold, therefore, that it was error for the district court to impose a ten year sentence even though nine years and ten months of that sentence were suspended. The district court did not err, however, in following its ten year sentence with a probationary term of four years and ten months. As previously noted (note 18 supra), the probationary term need not be limited to the maximum prison sentence (in this case one year) prescribed by statute.
Lancer’s entire sentence of July 28, 1965, is not voided by our holding that the district court imposed an excessive prison term. The district court could validly have imposed a one year term and that period remains as Lancer’s sentence under Indictment 22119. United States v. Pridgeon, 153 U.S. 48, 14 S.Ct. 746, 38 L.Ed. 631 (1894). We leave to the district court, on remand, the task of correcting Lancer’s sentence in accordance with our holding.
IV. The 1967 Revocation of Probation (18 U.S.C. §§ 3653, 3651, 4208)
(A). § 3653
18 U.S.C. § 3653 (see note 3 supra) specifies the action which may be taken by the district court after the probationer has been arrested for violation of probation. Under the terms of the statute, the district court could revoke Lancer’s probation (as it did) and require him either to serve the sentence imposed or any lesser sentence.
In the present case, the July 28, 1965 sentence is the “sentence imposed” within the meaning of § 3653. We have already determined that the July 28, 1965 sentence was excessive when entered (see III supra), but not void. Hence, when Lancer’s probation was revoked under § 3653, the maximum time which he could have been required to serve was limited to the time remaining under a one year (and not a ten year) sentence. Lancer had served two months in jail and, as we construe the record, had apparently been credited with four months of pre-sentence custody by the district court. Accordingly, as of March 29, 1967, Lancer had served six months in jail and could have been required to serve no more than another six months. The district court apparently acted under the first alternative of § 3653 in requiring Lancer to “serve the sentence imposed”. Translating what the district court intended to do in its order of March 29, 1967, into what it could validly do, the district court in effect committed Lancer for the unserved portion of a valid one year sentence (i.e., six months). It chose to do so under the terms of § 4208(b) and (c) (see discussion following) seeking such guidance as a study could furnish, prior to imposing final sentence.
Although the district court may have erred in its determination as to the term to which Lancer could be sentenced in both its July 1965 order and in its March 1967 order, nevertheless, it committed no error in the manner in which it applied the provisions of § 3653. The district court did in fact require service of the unserved portion of the original sentence which, we hold today, is limited to one year. This is precisely what § 3653, by its terms, authorizes.
(B). § 4208
While Lancer does not challenge the manner in which the district court applied § 3653 in its order of March 29, 1967, he does assert that the district court could not impose probation under 18 U.S.C. § 4208 once his probation was revoked. To answer this argument, two preliminary questions must be considered.
(1) Are the study provisions of § 4208(b) and (c) available where the sentence of the probationer does not exceed one year?
(2) Are these provisions available for use in conjunction with the revocation of probation under § 3653?
In answering these questions, we initially look to the relevant legislative history. 18 U.S.C. § 4208 was enacted in 1958 to provide additional information, services, and sentencing procedures to enable the sentencing judge to impose equitable and flexible sentences in keeping with the needs of the offender and public safety. It was designed to afford greater discretion to the district court judge, as well as to give the court (in § 4208(b) and (c)) discretionary access to the evaluative services of the Bureau of Prisons before being required to impose a final sentence.
§ 4208(a) provides the judge with alternative procedures in sentencing convicted offenders to imprisonment. Under this provision, one option open to the court is to fix the maximum term and leave parole eligibility at one-third of this maximum period. Alternatively, the parole eligibility date can be left to the Board of Parole, or it can be specified at less than one-third the maximum sentence imposed.
Still another technique (designed for flexibility in sentencing) was incorporated into the statute in the form of the study provisions found in § 4208(b) and (c). The House Committee Report described these sections in this fashion:
“Sub-Section (b) would make it possible for the court, when confronted with the necessity of making a sentence determination in a particularly difficult case, to commit the defendant (technically under the statutory maximum term) to the Attorney General for a complete study over a period of three to six months. At the completion of this period the court would be authorized to modify the sentence if the study’s findings and the judgment of the court indicate such action.... This provision would extend the court’s authority to modify a sentence to a period up to six months, thereby making feasible • detailed studies of selected defendants before a final sentence must be formulated.
After receiving from the Director of the Bureau of Prisons a summary of this study, the court in fixing the final penalty may affirm the original sentence or impose a modified sentence under any applicable provision of law.. Inasmuch as the origina[l] [sic] sentence of the court represents the maximum authorized by statute, any later modification by the court would constitute a reduction in sentence.... A number of judges have advised the Committee that this extension [up to six months] would be most helpful in enabling them to give more deliberate consideration to exceptional cases.
Sub-Section (c). prescribes that the Director of the Bureau of Prisons make the prisoner studies needed for parole eligibility and release determinations by the Board of Parole...,”
In its order of March 29, 1967, the district court acted under § 4208(b) and (c) rather than under § 4208(a). When the statutory language of Sub-section (b) is contrasted with that of Sub-section (a) (see note 4 supra) it is significant that two limitations found in Sub-section (a) are missing from Sub-section (b). Subsection (a) is prefaced by the words “Upon entering a judgment of conviction..” No such language appears in Sub-section (b).
Similarly, Sub-section (a) purports to be limited to cases in which “. the defendant [is] sentenced to imprisonment for a term exceeding one year..” Again, such language is conspicuously absent from Sub-section (b). These differences in statutory language, as well as the legislative history of § 4208, are relevant to our determination that the district court did not err in utilizing § 4208 in its March 29, 1967 order.
One Year Term
The fact that Sub-section (b) is silent with respect to the length of sentence required before a study can be ordered is consistent with our view that the purpose for the study provisions bears little relationship to the term for which the defendant can be sentenced. The purpose of Sub-section (b) was to assist the court in “making a sentence determination in a particularly difficult case.” There is no basis for assuming that difficult sentencing decisions occur only when the permissible sentence exceeds one year. Complicated factors, which a study by the Bureau of Prisons is designed to sort out, are just as likely to be present when the offense committed carries a maximum sentence of less than one year. Here, Lancer had pleaded guilty to eight separate indictments and had suffered incarceration on other, unrelated charges during the time his probation under Indictment 22119 should have been running. Whatever factors influenced the district court in its initial sentence of Lancer on, July 28, 1965 might or might not have been operative by March 29, 1967. The learned district judge, in an effort to determine the appropriate sentence in light of the intervening incarceration and the violation of probation, employed § 4208 for the precise purposes for which it was enacted. We find no logic in a construction of the statute which would prohibit the district court from utilizing the study provisions of § 4208(b) and (c) where the term of the offender is less than one year. We therefore hold that the “one year” limitation of § 4208(a) was not intended by Congress to bar use of § 4208(b) and (c) after probation has been revoked on an offense carrying a maximum penalty not exceeding one year imprisonment.
Interrelationship of §§ 3653 and 4208
It is argued that, after probation has been revoked, the district court is without authority to sentence pursuant to § 4208. This argument focusing on the first words of § 4208(a) (“Upon entering a judgment of conviction...”), characterizes this clause as a “time” limitation which restricts the use of § 4208 to the time of initial sentencing. We do not agree.
In the first instance, 18 U.S.C. § 4208(b), the section with which we are here concerned, makes no reference to and is not prefaced by, the arguably limiting language of Sub-section (a). The words “Upon entering a judgment of conviction... ” are not to be found in either § 4208(b) or (c).
Additionally, if we were to adopt the “time” characterization urged upon us, it would necessarily bring § 4208 into conflict with § 3653 — a result which we do not believe was ever intended. This inconsistency can best be shown by an illustration. An offender, placed on probation in 1972 with imposition of sentence suspended, violates probation in 1974. If § 4208 is not available for re-sentencing purposes in 1974, because 1974 is not the “time” when the (1972) “Judgment of Conviction” was entered, the “third alternative” of § 3653 (see note 26 supra) would be meaningless. Under § 3653, the court after revoking probation may (if imposition of sentence was suspended) “... impose any sentence which might originally have been imposed.” If sentence could have originally been imposed under § 4208, as it unquestionably could, then § 4208 is available for use upon revocation of probation under § 3653’s third alternative, and the “time” limitation argument urged against its use, must fall. If available under one alternative under § 3653, we see no logic in concluding that § 4208 is not equally available under the other resentencing provisions of § 3653.
Substantiating our conclusion that the prefatory language of § 4208(a) (“Upon entering a judgment of conviction.”) imposes no time restriction or other limitation on the use of § 4208(b) and (c), is Fed.R.Crim.P. 35 which permits a reduction in sentence within 120 days after sentence is imposed. If we were to adopt the construction urged upon us that § 4208 can be utilized only “Upon entering a judgment of conviction.” then there could be no modification of a sentence, (originally imposed under another statute (e.g. § 3651)), to a sentence pursuant to § 4208. We know of no such restriction required either by the express terms of the statutes in question or by reason and, hence, we are of the view that § 4208 was properly utilized by the district court in its March 29, 1967 order. (See n. 37 infra).
Reimposition of Probation
Our answers to the two preliminary questions result in our approving the use of § 4208(b) and (c) in the March 29, 1967 order. The ultimate question then remains whether § 4208 authorizes the reimposition of probation after probation has once been revoked. There is little precedent to guide us in this area. We do have, however, the views expressed by Mr. Barkin, Legal Counsel to the Bureau of Prisons who has written:
******
“It seems to me that the language of the statute makes it quite clear that once having revoked probation, the court must then impose a sentence. It may not revoke and thereupon reinstate the defendant to probation. The logic of this provision seems apparent. Since a court does not have to revoke even if the defendant violates the conditions of probation, but rather revoke only when it concludes the defendant should no longer remain at liberty in the community, it would be most incongruous if it immediately reinstated the defendant without anything new and material before it.
******
Whether a probation violator, who has been committed under the provisions of § 4208(b), can thereafter be reinstated to probation in view of the provisions of § 3653, as far as I know, has never been decided by a competent court. Again, ‘shooting from the hip,’ I take the view that probation is available to the Court under these circumstances. The rationale behind the preclusion of reinstatement after revocation as set forth in § 3653, is not applicable to this situation because here the court has new, and possibly significant information before it when the case comes before it for final disposition. It would seem most incongruous if the court would be unable to reinstate a defendant to probation if the new facts available to it clearly indicate this to be the proper course to take. In addition, in applying § 4208(b) in the first place the court clearly indicated that it was uncertain and wanted more information before making its final determination.”
******
Mr. Barkin’s analysis accords with the one case we have found in which a sentencing judge revoked probation and then utilized § 4208 for the purpose of obtaining information to aid the court in determining the sentence to be imposed. Smith v. United States, 297 F.Supp. 131 (N.D.Mo.1968). We recognize that in the instant case probation followed the use of § 4208(b) and (c) while in Smith imprisonment followed the revocation of probation. Nevertheless, the procedure employed by the district court in Smith in order to obtain information helpful to sentencing is the very procedure utilized by the district court here. We cannot distinguish the actions taken by the Smith court from those taken by the district court judge in the instant case. Both courts were seeking information for assistance in sentencing; both courts looked to § 4208(b) and (c) for that assistance; and both courts utilized information furnished in formulating the final action which they took. We do not believe that the fact that the Smith court imposed imprisonment after completion of the § 4208 study while the district court here imposed probation should affect the availability of § 4208.
In Smith a term of five years was imposed. The district court in this case, after utilizing the information received, determined that a term of “no years” should be imposed. We find little logic in an interpretation which would require us to hold that § 4208 might be available after revocation of probation if as little as one day’s imprisonment results but not if “no imprisonment” results.
An argument has been made that an examination of § 3651 (which provides for the imposition of probation) and § 3653 (which provides for revocation of probation) reveals a distinction between the terms “probation” and “sentence”. This distinction, it is argued, prevents the district court, once it revokes probation, from reimposing probation because the only discretion left in the district court at that point is to determine whether the probation violator should serve the original sentence imposed or a lesser sentence. If, as it is argued, “probation” is not a “sentence” within the meaning of § 3653, then the district court cannot reimpose “probation” because § 3653 requires service of the “sentence imposed” (Le., a prison term).
We recognize that in various statutory contexts a distinction is drawn between “probation” and “sentence”, despite the punitive features of probation. Whether or not that distinction would prevent a district court from reimposing probation immediately after it had revoked probation we need not decide in the factual context of this case. Here, the distinguished district judge after revoking probation committed Lancer to the custody of the Attorney General to serve the “sentence” originally imposed (nine years, ten months) (see p. 723 supra). The district court’s use of § 4208(b) and (c) resulted in Lancer’s imprisonment for at least three months during the course of the study. It was only after the initial § 4208(b) custody period had ended, and the study furnished to the district court, that probation was again ordered. Imposition of probation at the completion of the study is one alternative specifically contemplated by § 4208(b), which provides that:
“ • •. After receiving such reports and recommendations, the court may in its discretion: (1) Place the prisoner on probation as authorized by section 3651 of this title or (2) affirm the sentence of imprisonment originally imposed, or reduce the sentence of imprisonment, and commit the offender under any applicable provision of law. The term of the sentence shall run from date of original commitment under this section.” (emphasis supplied).
******
Thus while we recognize that under existing law, probation may not be regarded as a “sentence” for all purposes we need only decide here that the proper use of § 4208 in conjunction with §§ 3653 and 3651, permits the reimposition of probation after its revocation. Further we perceive no practical difference between revocation of probation, followed by reimposition of probation, and continuation of probation in the first instance. It is not contended, for example, that the district court was without power to continue Lancer on probation, as it did in its order of June 10, 1968. Had the March 29th order been framed as a “continuation of probation” rather than a “revocation of probation” there could be little argument as to its validity. We do not think that a mechanistic argument seeking to distinguish between the two orders on the basis of the semantic differences between them justifies reaching a- different result in the case of each order. To argue that a district judge is authorized to continue an accused probation violator on probation but is without power to revoke probation (so that the violation can be fully entered in the probationer’s record) and then reimpose probation is to exalt form over substance.
We hold, therefore, that the provisions of § 4208(b) and (c) may be utilized in conjunction with revocation of probation proceedings under § 3653. If so employed, the district court after it has received the § 4208(c) study, may again impose probation, even though it had previously revoked probation. Accordingly, the district court here did not err in employing § 4208(b) and (c) in its March 29, 1967 order, and exercising its discretion in reimposing probation at the conclusion of the study. It did err, however, in imposing a greater probationary term than is permissible. The permissible term of probation that could have been imposed at that time was restricted to a maximum of five years less- the number of months theretofore served on probation by Lancer under Indictment 22119.
V. Service of Probation Term
Lancer also challenges the consecutive terms of probation imposed on July 28, 1965. He claims first, that his original four year, ten months probationary term under Indictment 22119 had expired by October 9, 1970 (the date the order was entered authorizing the warrant for his last violation of probation). Second, he claims that § 3651 authorizes no more than five years probation and that, therefore, the second five year probationary term imposed under Indictment 22173 was void and incapable of supporting the warrant ordered on October 9, 1970, and resulting detainer. We find no merit in either argument.
(A). Probation Served Under Indictment 22119
Lancer’s contention that his probation time under Indictment 22119 had been fully served by October 9, 1970 results from a mechanical computation of the gross time interval between the date of sentence (July 28, 1965) and the date of the order authorizing a warrant for his arrest (October 9, 1970). This gross interval (using 30-day months) totals five (5) years, two (2) months and eleven (11) days. It fails, however, to take into account time spent in custody, which we have calculated at approximately six (6) months and five (5) days.
Subtracting only “jail-time” served (six (6) months and five (5) days) from the gross time interval of five (5) years, two (2) months and eleven (11) days reveals that Lancer could not have served more than four (4) years, eight (8) months and seven (7) days on probation under this Indictment. Inasmuch as Lancer was required to. serve four (4) years, ten (10) months on probation under Indictment 22119, it is evident that he has not completed his initial probationary term.
The above calculation has deliberately excluded: other periods of incarceration spent under unrelated charges (see I supra ), time when Lancer was in violation of probation, or time spent during custody transfers following such violations. We have made this initial calculation by taking into consideration only the most evident deductions from the time Lancer claims to have spent on probation; that is, jail time served under this very Indictment. When other required deductions are made by the district court on remand, it will become apparent that Lancer still has a substantial period of time to serve on probation under Indictment 22119. Even calculating on the basis of the incomplete record before us, it is apparent that Lancer falls far short of having completed his probationary term under this Indictment.
Lancer was sentenced on July 28, 1965. He served two (2) months in jail; was released on September 28,1965; and was then taken to Ohio to face unrelated charges. On May 2, 1966 he began his four (4) year, ten (10) months probationary term in this district. A petition dated November 7, 1966 reveals that at least by that date Lancer was in violation of probation. (Up to this time, Lancer had spent six (6) months and five (5) days on probation). From November 7, 1966 until March 29, 1967, petitioner was in custody for probation violation. On March 29, 1967 the court revoked probation and committed Lancer for the § 4208(b) study. He was not returned to court for final sentencing until August 3, 1967. Hence, from November 7, 1966 to August 3, 1967 Lancer cannot be credited with having served probationary time.
On August 3, 1967 Lancer was to have resumed probationary status. The probation report, however, reveals that unrelated detainers had been placed against him which required the Philadelphia police to take him into custody. After having posted bail with respect to these detainers, he again absconded, and on January 10, 1968 was accordingly charged with probation violation. From that date until June 10, 1968, Lancer was in probation violation (or custody travel as a result of probation violation). Hence, we cannot credit any additional probationary time served from August 3, 1967 to June 10, 1968. The probation record reveals that after Lancer was continued on probation on June 10, 1968 he was returned to Iowa to serve a one year sentence, and was not released from confinement there until February 4, 1969.
From February 4, 1969 until February 20, 1970 (one (1) year and sixteen (16) days) he was again under probationary supervision under Indictment 22119 in this district. Adding this one (1) year, sixteen (16) days to his prior allowable probationary service (May 2, 1966 to November 7, 1966) of six (6) months, five (5) days, reveals that Lancer has served no more than one (1) year, six (6) months and twenty-one (21) days of his prescribed four (4) year, ten (10) months term.
(B). Probationary Terms Exceeding Five Years
Having determined from our review of the record that Lancer has yet to complete service of his probationary term
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant?
A. cabinet level department
B. courts or legislative
C. agency whose first word is "federal"
D. other agency, beginning with "A" thru "E"
E. other agency, beginning with "F" thru "N"
F. other agency, beginning with "O" thru "R"
G. other agency, beginning with "S" thru "Z"
H. Distric of Columbia
I. other, not listed, not able to classify
Answer:
|
songer_typeiss
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
UNITED STATES of America, Plaintiff-Appellee, v. Amos A. HOPKINS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Larry PETERMAN, Defendant-Appellant.
Nos. 81-1271, 82-1100.
United States Court of Appeals, Tenth Circuit.
July 10, 1984.
Submission to Panel in No. 82-1100 Vacated July 10, 1984.
Mary E. Bane, of Oyler, Smith & Bane, Oklahoma City, Okl., for defendant-appellant in 81-1271.
Jerome H. Mooney, Mooney & Smith, Salt Lake City, Utah, Michael P. Carnes, Dallas, Tex., James H. Barrett, Cheyenne, Wyo., for defendant-appellant in 82-1100.
David L. Russell, U.S. Atty., John R. Osgood, Asst. U.S. Atty., Oklahoma City, Okl., for plaintiff-appellee in 81-1271.
Richard A. Stacy, U.S. Atty., Francis Leland Pico, Asst. U.S. Atty., Cheyenne, Wyo., for plaintiff-appellee in 82-1100.
Before SETH, Chief Judge, HOLLOWAY, McWilliams, barrett, mckay, LOGAN and SEYMOUR, Circuit Judges.
SETH, Chief Judge.
These two cases were consolidated for en banc consideration on the briefs on motion by the court.
In United States v. Hopkins, 81-1271, the defendant was tried and convicted on a multiple count indictment charging mail fraud (18 U.S.C. §§ 2 and 1341) and conspiracy to use the mails to defraud. The only issue considered by the court en banc was whether adequate instructions had been given on the defense of good faith. The panel opinion appears at 716 F.2d 739 (10th Cir.).
In United States v. Peterman, 82-1100, the basic defense to the mail fraud charge was good faith. The defendant requested an instruction on the point and it was refused. The case was originally submitted to a panel of this court but no opinion was filed. As mentioned, it was consolidated with United States v. Hopkins for en banc consideration of the instruction on the good faith defense.
We have stated in several cases that “good faith” is a defense to charges of using the mails to defraud. This was so held in Steiger v. United States, 373 F.2d 133 (10th Cir.), wherein we said:
“Good faith is a complete defense to a charge of using the mails to defraud in violation of § 1341, supra, and a defendant is entitled to proper instructions on the theory of his defense, if, as here, there is evidence to support such theory.”
In Steiger, the charges were brought under 18 U.S.C. § 1341. See also United States v. Roylance, 690 F.2d 164 (10th Cir.), United States v. Westbo, 576 F.2d 285 (10th Cir.), and Sparrow v. United States, 402 F.2d 826 (10th Cir.). Thus if the defense of good faith has been interposed the defendant is entitled to an instruction directly on the issue provided there is sufficient evidence to support the theory and such an instruction is requested.
Whether there is “sufficient” evidence to support the theory is determined as in any other trial where the question arises as to whether a particular matter should be submitted to a jury. In mail fraud cases there is sufficient evidence when the jury could reasonably find from such evidence that the defendant in good faith believed that the plan would succeed, that the promises made would be kept and the representations carried out. This is best stated again in Steiger v. United States, 373 F.2d 133 (10th Cir.):
“Each defendant interposed the defense of ‘good faith.’ There was evidence from which the jury could have found that each defendant in good faith believed that the referral plan was practical and would succeed, however visionary in retrospect it may seem to be, and that the promises given would be kept and the representations made would be fulfilled.”
That the plan, with the benefit of hindsight at time of the trial, may seem to have been somewhat visionary or not completely practical makes no difference if the defendant actually believed the plan would succeed, that the representations would be carried out and the promises were true. In Hawley v. United States, 133 F.2d 966 (10th Cir.), we also referred to “visionary plans” but of course not part of a plan to defraud. Thus the approved instructions there covered promises made in good faith and “not as a part of a deliberate plan or scheme to defraud.” The “good faith” in Hawley included the above requirements as to the representations , and promises as necessary ingredients with the actual belief in the plan. Requested instructions which were approved by the court and instructions given appear in the cited cases.
The determination by the jury as to whether a good faith defense has been established requires a consideration under proper instructions of elements which are all peculiarly within the province of the jury.
The “good faith” instruction is required to be given as a separate subject. Thus instructions on wilfulness, on aspects of intent, on untruth of representations or fraudulent statements are not sufficient for this purpose. There must be a full and clear submission of the good faith defense as such. United States v. Steiger, 373 F.2d 133 (10th Cir.). See also United States v. Beitscher, 467 F.2d 269 (10th Cir.); Mesch v. United States, 407 F.2d 1286 (10th Cir.).
Our holding as to the need for a good faith instruction in the above cases is intended to apply to both substantive and conspiracy counts for mail or wire fraud.
In United States v. Westbo, 576 F.2d 285 (10th Cir.), we considered a requested instruction which was directed to intent and was so evaluated. The case does not constitute a holding on the issue here decided; however, to the extent it may be considered to be contrary to this opinion, it is overruled.
81- 1271 — United States v. Hopkins:
The opinion in United States v. Hopkins, our No. 81-1271, which was originally entered, and which appears at 716 F.2d 739 (10th Cir.), is withdrawn.
In our initial consideration of the record in Hopkins it was determined that there was sufficient evidence to support an instruction on defendant’s theory of good faith. The defendant requested instructions which were proper. The instructions given did not submit the issue of good faith. The judgment of the trial court in United States v. Hopkins, 81-1271, as to Counts I through XI, must be and is set aside, and the case is remanded for a new trial as to such counts. IT IS SO ORDERED. However, as to Count XIV for conspiracy there was insufficient evidence to support the judgment as to that count, and on remand it must be dismissed, and IT IS SO ORDERED.
82- 1100 — United States v. Peterman:
In Peterman, the charge was brought under 28 U.S.C. § 1291. We must and do hold that there was sufficient evidence to require the submission of the good faith defense to the jury. As in Hopkins, herein considered, an adequate instruction as to the good faith defense was requested but not given, and the judgment must be set aside and the case remanded for a new trial. IT IS SO ORDERED.
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_origin
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
UNITED STATES of America, Plaintiff, v. Richard Kenneth BEYE, Appellant.
No. 24418.
United States Court of Appeals, Ninth Circuit.
July 8, 1971.
Ely, Circuit Judge, dissented and filed opinion.
William N. Fielden (argued), La Jol-la, Cal., for appellant.
Shelby Gott, Asst. U. S. Atty. (argued), Harry D. Steward, U. S. Atty., San Diego, Cal., for appellee.
Before MERRILL and ELY, Circuit Judges, and CROCKER, District Judge
Honorable M. D. Crocker, United States District Judge for the Eastern District of California, sitting by designation.
PER CURIAM:
Beye appeals from his conviction for knowingly concealing or facilitating the transportation of marijuana in violation of 21 U.S.C. § 176a and for knowingly concealing or facilitating the transportation of illegally imported amphetamine tablets and barbiturate capsules in violation of 18 U.S.C. § 545.
Appellant relies primarily upon the argument that he was the victim of an unlawful search and seizure. We find no merit in this contention. The discovery of the drugs occurred at an immigration checkpoint in the course of a lawful search for aliens. See, e. g., Fumagalli v. United States, 429 F.2d 1011 (9th Cir. 1970).
Appellant also asserts as error the court’s refusal to permit him to call as a witness one who had been indicted with him as codefendant but as to whom a mistrial had been declared. The court had been advised that this proposed witness would assert his privilege against self-incrimination if questioned about the offense. A hearing out of the presence of the jury served to satisfy the court that such would indeed be the result were the witness called to the stand. Appellant contends, however, that he was entitled to require the witness to take the stand and invoke his privilege in the presence of the jury. Bowles v. United States, 439 F.2d 536 (D.C.Cir.1970), holds to the contrary and we agree.
Other points asserted by appellant we find to be without merit.
Judgment affirmed.
. Although (as Judge Ely mentions in his dissent, footnote 1), the drugs were found secreted in a part of the car that had been searched when it crossed the border, there was evidence from which it could be deduced that the drugs had originally been hidden beneath the car in an area that had not been searched.
Question: What type of court made the original decision?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Special DC court
H. Other
I. Not ascertained
Answer:
|
sc_casesourcestate
|
45
|
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.
PENNSYLVANIA v. RITCHIE
No. 85-1347.
Argued December 3, 1986
Decided February 24, 1987
Powell, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III-B, III-C, and IV, in which Rehnquist, C. J., and White, Blackmun, and O’Connor, JJ., joined, and an opinion with respect to Part III-A, in which Rehnquist, C. J., and White and O’Connor, JJ., joined. Blackmun, J., filed an opinion concurring in part and concurring in the judgment, post, p. 61. Brennan, J., filed a dissenting opinion, in which Marshall, J., joined, post, p. 66. Stevens, J., filed a dissenting opinion, in which Brennan, Marshall, and Scalia, JJ., joined, post, p. 72.
Edward Marcus Clark argued the cause for petitioner. With him on the briefs was Robert L. Eberhardt.
John H. Corbett, Jr., by invitation of the Court, 478 U. S. 1019, argued the cause and filed a brief as amicus curiae in support of the judgment below. With him on the brief was Lester G. Nauhaus
Briefs of amici curiae urging reversal were filed for the State of California et al. by John K. Van de Kamp, Attorney General, Steve White, Chief Assistant Attorney General, Arnold Overoye, Assistant Attorney General, Joel Carey, Supervising Deputy Attorney General, and Karen Ziskind, Deputy Attorney General, and by the Attorneys General for their respective States as follows: Duane Woodard of Colorado, Joseph Lieberman of Connecticut, Corinne Watanabe, Acting Attorney General of Hawaii, Neil F. Hartigan of Illinois, Linley E. Pearson of Indiana, David Armstrong of. Kentucky, William J. Guste, Jr., of Louisiana, James E. Tierney of Maine, Hubert H. Humphrey III of Minnesota, Edwin L. Pittman of Mississippi, Michael Greely oí Montana, Stephen E. Merrill of New Hampshire, Lacy H. Thornburg of North Carolina,- Mike Turpén of Oklahoma, LeRoy S. Zimmerman of Pennsylvania, Mike Cody of Tennessee, David L. Wilkinson of Utah, Jeffrey L. Amestoy of Vermont, William A. Broadus of Virginia, Kenneth 0. Eikenberry of Washington, Charlie Brown of West Virginia, and Archie G. McClintock of Wyoming; for the County of Allegheny, Pennsylvania, on behalf of Allegheny County Children and Youth Services by George M. Janocsko and Robert L. Mc-Tieman; for the Appellate Committee of the District Attorneys Association of California by Ira Reiner, Harry B. Sondheim, and Arnold T. Guminski; for the Pennsylvania Coalition Against Rape et al. by Nancy D. Wasser; and for the Sunny von Bulow National Victim Advocacy Center, Inc., et al. by Frank Gamble Carrington, Jr., David Crump, and Ann M. Haralambie.
Justice Powell
announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III-B, III-C, and IV, and an opinion with respect to Part III-A, in which The Chief Justice, Justice White, and Justice O’Connor join.
The question presented in this case is whether and to what extent a State’s interest in the confidentiality of its investigative files concerning child abuse must yield to a criminal defendant’s Sixth and Fourteenth Amendment right to discover favorable evidence.
I
As part of its efforts to combat child abuse, the Commonwealth of Pennsylvania has established Children and Youth Services (CYS), a protective service" agency charged with investigating cases of suspected mistreatment and neglect. In 1979, respondent George Ritchie was charged with rape, involuntary deviate sexual intercourse, incest, and corruption of a minor. The victim of the alleged attacks was his 13-year-old daughter, who claimed that she had been assaulted by Ritchie two or three times per week during the previous four years. The girl reported the incidents to the police, and the matter then was referred to the CYS.
During pretrial discovery, Ritchie served CYS with a subpoena, seeking access to the records concerning the daughter. Ritchie requested disclosure of the file related to the immediate charges, as well as certain records that he claimed were compiled in 1978, when CYS investigated a separate report by an unidentified source that Ritchie’s children were being abused. CYS refused to comply with the subpoena, claiming that the records were privileged under Pennsylvania law. The relevant statute provides that all reports and other information obtained in the course of a CYS investigation must be kept confidential, subject to 11 specific exceptions. One of those exceptions is that the agency may disclose the reports to a “court of competent jurisdiction pursuant to a court order.” Pa. Stat. Ann., Tit. 11, §2215(a)(5) (Purdon Supp. 1986).
Ritchie moved to have CYS sanctioned for failing to honor the subpoena, and the trial court held a hearing on the motion in chambers. Ritchie argued that he was entitled to the information because the file might contain the names of favorable witnesses, as well as other, unspecified exculpatory evidence. He also requested disclosure of a medical report that he believed was compiled during the 1978 CYS investigation. Although the trial judge acknowledged that he had not examined the entire CYS file, he accepted a CYS representative’s assertion that there was no medical report in the record. The judge then denied the motion and refused to order CYS to disclose the files. See App. 72a.
At trial, the main witness against Ritchie was his daughter. In an attempt to rebut her testimony, defense counsel cross-examined the girl at length, questioning her on all aspects of the alleged attacks and her reasons for not reporting the incidents sooner. Except for routine evidentiary rulings, the trial judge placed no limitation on the scope of cross-examination. At the close of trial Ritchie was convicted by a jury on all counts, and the judge sentenced him to 3 to 10 years in prison.
On appeal to the Pennsylvania Superior Court, Ritchie claimed, inter alia, that the failure to disclose the contents of the CYS file violated the Confrontation Clause of the Sixth Amendment, as applied to the States through the Due Process Clause of the Fourteenth Amendment. The court agreed that there had been a constitutional violation, and accordingly vacated the conviction and remanded for further proceedings. 324 Pa. Super. 557, 472 A. 2d 220 (1984). The Superior Court ruled, however, that the right of confrontation did not entitle Ritchie to the full disclosure that he sought. It held that on remand, the trial judge first was to examine the confidential material in camera, and release only the verbatim statements made by the daughter to the CYS counselor. But the full record then was to be made available to Ritchie’s lawyer, for the limited purpose of allowing him to argue the relevance of the statements.. The court stated that the prosecutor also should be allowed to argue that the failure to disclose the statements was harmless error. If the trial judge determined that the lack of information was prejudicial, Ritchie would be entitled to a new trial. Id., at 567-568, 472 A. 2d, at 226.
On appeal by the Commonwealth, the Supreme Court of Pennsylvania agreed that the conviction must be vacated and the case remanded to determine if a new trial is necessary. 509 Pa. 357, 502 A. 2d 148 (1985). But the court did not agree that the search for material evidence must be limited to the daughter’s verbatim statements. Rather, it concluded that Ritchie, through his lawyer, is entitled to review the entire file to search for any useful evidence. It stated: “When materials gathered become an arrow of inculpation, the person inculpated has a fundamental constitutional right to examine the provenance of the arrow and he who aims it.” Id., at 367, 502 A. 2d, at 153. The Pennsylvania Court concluded that by denying access to the file, the trial court order had violated both the Confrontation Clause and the Compulsory Process Clause. The court was unpersuaded by the Commonwealth’s argument that the trial judge already had examined the file and determined that it contained no relevant information. It ruled that the constitutional infirmity in the trial court’s order was that Ritchie was unlawfully denied the opportunity to have the records reviewed by “the eyes and the perspective of an advocate,” who may see relevance in places that a neutral judge would not. Ibid.
In light of the substantial and conflicting interests held by the Commonwealth and Ritchie, we granted certiorari. 476 U. S. 1139 (1986). We now affirm in part, reverse in part, and remand for proceedings not inconsistent with this opinion.
J-H HH
Before turning to the constitutional questions, we first must address Ritchie’s claim that the Court lacks jurisdiction, because the decision below is not a “final judgment or decree.” See 28 U. S. C. § 1257(3); Market Street R. Co. v. Railroad Comm’n of California, 324 U. S. 548, 551 (1945). Normally the finality doctrine contained in § 1257(3) is not satisfied if the state courts still must conduct further substantive proceedings before the rights of the parties as to the federal issues are resolved. Ibid.; Radio Station WOW, Inc. v. Johnson, 326 U. S. 120, 123-127 (1945). Ritchie argues that under this standard the case is not final, because there are several more proceedings scheduled in the Pennsylvania courts: at a minimum there will be an in camera review of the file, and the parties will present arguments on whether the lack of disclosure was prejudicial; after that, there could be a new trial on the merits. Ritchie claims that because the Sixth Amendment issue may become moot at either of these stages, we should decline review until these further proceedings are completed.
Although it is true that this Court is without jurisdiction to review an interlocutory judgment, it also is true that the principles of finality have not been construed rigidly. As we recognized in Cox Broadcasting Corp. v. Cohn, 420 U. S. 469 (1975), there are at least four categories of cases in which jurisdiction is proper even when there are further proceedings anticipated in the state court. One of these exceptions states that the Court may consider cases:
“[WJhere the federal claim has been finally decided, with further proceedings on the merits in the state courts to come, but in which later review of the federal issue cannot be had, whatever the ultimate outcome of the case.... [I]n these cases, if the party seeking interim review ultimately prevails on the merits, the federal issue will be mooted; if he were to lose on the merits, however, the governing state law would not permit him again to present his federal claims for review.” Id., at 481.
We find that the case before us satisfies this standard because the Sixth Amendment issue will not survive for this Court to review, regardless of the outcome of the proceedings on remand. If the trial court decides that the CYS files do not contain relevant information, or that the nondisclosure was harmless, the Commonwealth will have prevailed and will have no basis to seek review. In this situation Ritchie’s conviction will be reinstated, and the issue of whether defense counsel should have been given access will be moot. Should Ritchie appeal the trial court’s decision, the Commonwealth’s only method for preserving the constitutional issue would be by cross-claims. Thus the only way that this Court will be able to reach the Sixth Amendment issue is if Ritchie eventually files a petition for certiorari on the trial court’s adverse ruling, and the Commonwealth files a cross-petition. When a case is in this procedural posture, we have considered it sufficiently final to justify review. See, e. g., New York v. Quarles, 467 U. S. 649, 651, n. 1 (1984); South Dakota v. Neville, 459 U. S. 553, 558, n. 6 (1983).
Alternatively, if Ritchie is found to have been prejudiced by the withholding and is granted a new trial, the Commonwealth still will be unable to obtain a ruling from this Court. On retrial Ritchie either will be convicted, in which case the Commonwealth’s ability to obtain review again will rest on Ritchie’s willingness to appeal; or he will be acquitted, in which case the Commonwealth will be barred from seeking review by the Double Jeopardy Clause. See ibid.; California v. Stewart, 384 U. S. 436, 498, n. 71 (1966) (decided with Miranda v. Arizona, 384 U. S. 436 (1966)). Therefore, if this Court does not consider the constitutional claims now, there may well be no opportunity to do so in the future.
The Sixth Amendment issue has been finally decided by the highest court of Pennsylvania, and unless we review that decision, the harm that the Commonwealth seeks to avoid— the disclosure of the entire confidential file — will occur regardless of the result on remand. We thus cannot agree with the suggestion in Justice Stevens’ dissent that if we were to dismiss this case and it was resolved on other grounds after disclosure of the file, “the Commonwealth would not have been harmed.” Post, at 74. This hardly could be true, because of the acknowledged public interest in ensuring the confidentiality of CYS records. See n. 17, infra. Although this consideration is not dispositive, we have noted that “statutorily created finality requirements should, if possible, be construed so as not to cause crucial collateral claims to be lost and potentially irreparable injuries to be suffered.” Mathews v. Eldridge, 424 U. S. 319, 331, n. 11 (1976). We therefore reject Ritchie’s claim that the Court lacks jurisdiction, and turn to the merits of the case before us.
HH HH 1 — I
The Pennsylvania Supreme Court held that Ritchie, through his lawyer, has the right to examine the full contents of the CYS records. The court found that this right of access is required by both the Confrontation Clause and the Compulsory Process Clause. We discuss these constitutional provisions in turn.
A
The Confrontation Clause provides two types of protections for a criminal defendant: the right physically to face those who testify against him, and the right to conduct cross-examination. Delaware v. Fensterer, 474 U. S. 15, 18-19 (1985) (per curiam). Ritchie does not allege a violation of the former right. He was not excluded from any part of the trial, nor did the prosecutor improperly introduce out-of-court statements as substantive evidence, thereby depriving Ritchie of the right to “confront” the declarant. See Ohio v. Roberts, 448 U. S. 56 (1980). Cf. United States v. Inadi, 475 U. S. 387 (1986). Instead, Ritchie claims that by denying him access to the information necessary to prepare his defense, the trial court interfered with his right of cross-examination.
Ritchie argues that he could not effectively question his daughter because, without the CYS material, he did not know which types of questions would best expose the weaknesses in her testimony. Had the files been disclosed, Ritchie argues that he might have been able to show that the daughter made statements to the CYS counselor that were inconsistent with her trial statements, or perhaps to reveal that the girl acted with an improper motive. Of course, the right to cross-examine includes the opportunity to show that a witness is biased, or that the testimony is exaggerated or unbelievable. United States v. Abel, 469 U. S. 45, 50 (1984); Davis v. Alaska, 415 U. S. 308, 316 (1974). Because this type of evidence can make the difference between conviction and acquittal, see Napue v. Illinois, 360 U. S. 264, 269 (1959), Ritchie argues that the failure to disclose information that might have made cross-examination more effective undermines the Confrontation Clause’s purpose of increasing the accuracy of the truth-finding process at trial. See United States v. Inadi, supra, at 396.
The Pennsylvania Supreme Court accepted this argument, relying in part on our decision in Davis v. Alaska, supra. In Davis the trial judge prohibited defense counsel from questioning a witness about the latter’s juvenile criminal record, because a state statute made this information presumptively confidential. We found that this restriction on cross-examination violated the Confrontation Clause, despite Alaska’s legitimate interest in protecting the identity of juvenile offenders. 415 U. S., at 318-320. The Pennsylvania Supreme Court apparently interpreted our decision in Davis to mean that a statutory privilege cannot be maintained when a defendant asserts a need, prior to trial, for the protected information that might be used at trial to impeach or otherwise undermine a witness’ testimony. See 509 Pa., at 365-367, 502 A. 2d, at 152-153.
If we were to accept this broad interpretation of Davis, the effect would be to transform the Confrontation Clause into a constitutionally compelled rule of pretrial discovery. Nothing in the case law supports such a view. The opinions of this Court show that the right to confrontation is a trial right, designed to prevent improper restrictions on the types of questions that defense counsel may ask during cross-examination. See California v. Green, 399 U. S. 149, 157 (1970) (“[I]t is this literal right to ‘confront’ the witness at the time of trial that forms the core of the values furthered by the Confrontation Clause”); Barber v. Page, 390 U. S. 719, 725 (1968) (“The right to confrontation is basically a trial right”). The ability to question adverse witnesses, however, does not include the power to require the pretrial disclosure of any and all information that might be useful in contradicting unfavorable testimony. Normally the right to confront one’s accusers is satisfied if defense counsel receives wide latitude at trial to question witnesses. Delaware v. Fensterer, 474 U. S., at 20. In short, the Confrontation Clause only guarantees “an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” Id., at 20 (emphasis in original). See also Ohio v. Roberts, supra, at 73, n. 12 (except in “extraordinary cases, no inquiry into ‘effectiveness’ [of cross-examination] is required”).
We reaffirmed this interpretation of the Confrontation Clause last Term in Delaware v. Fensterer, supra. In that case, the defendant was convicted in part on the testimony of the State’s expert witness, who could not remember which scientific test he had used to form his opinion. Although this inability to recall frustrated defense counsel’s efforts to discredit the testimony, we held that there had been no Sixth Amendment violation. The Court found that the right of confrontation was not implicated, “for the trial court did not limit the scope or nature of defense counsel’s cross-examination in any way.” 474 U. S., at 19. Fensterer was in full accord with our earlier decisions that have upheld a Confrontation Clause infringement claim on this issue only when there was a specific statutory or court-imposed restriction at trial on the scope of questioning.
The lower court’s reliance on Davis v. Alaska therefore is misplaced. There the state court had prohibited defense counsel from questioning the witness about his criminal record, even though that evidence might have affected the witness’ credibility. The constitutional error in that case was not that Alaska made this information confidential; it was that the defendant was denied the right “to expose to the jury the facts from which jurors... could appropriately draw inferences relating to the reliability of the witness.” 415 U. S., at 318. Similarly, in this case the Confrontation Clause was not violated by the withholding of the CYS file; it only would have been impermissible for the judge to have prevented Ritchie’s lawyer from cross-examining the daughter. Because defense counsel was able to cross-examine all of the trial witnesses fully, we find that the Pennsylvania Supreme Court erred in holding that the failure to disclose the CYS file violated the Confrontation Clause.
B
The Pennsylvania Supreme Court also suggested that the failure to disclose the CYS file violated the Sixth Amendment’s guarantee of compulsory process. Ritchie asserts that the trial court’s ruling prevented him from learning the names of the “witnesses in his favor,” as well as other evidence that might be contained in the file. Although the basis for the Pennsylvania Supreme Court’s ruling on this point is unclear, it apparently concluded that the right of compulsory process includes the right to have the State’s assistance in uncovering arguably useful information, without regard to the existence of a state-created restriction — here, the confidentiality of the files.
1
This Court has had little occasion to discuss the contours of the Compulsory Process Clause. The first and most celebrated analysis came from a Virginia federal court in 1807, during the treason and misdemeanor trials of Aaron Burr. Chief Justice Marshall, who presided as trial judge, ruled that Burr’s compulsory process rights entitled him to serve a subpoena on President Jefferson, requesting the production of allegedly incriminating evidence. United States v. Burr, 25 F. Cas. 30, 35 (No. 14,692d) (CC Va. 1807). Despite the implications of the Burr decision for federal criminal procedure, the Compulsory Process Clause rarely was a factor in this Court’s decisions during the next 160 years. More recently, however, the Court has articulated some of the specific rights secured by this part of the Sixth Amendment. Our cases establish, at a minimum, that criminal defendants have the right to the government’s assistance in compelling the attendance of favorable witnesses at trial and the right to put before a jury evidence that might influence the determination of guilt.
This Court has never squarely held that the Compulsory Process Clause guarantees the right to discover the identity of witnesses, or to require the government to produce exculpatory evidence. But cf. United States v. Nixon, 418 U. S. 683, 709, 711 (1974) (suggesting that the Clause may require the production of evidence). Instead, the Court traditionally has evaluated claims such as those raised by Ritchie under the broader protections of the Due Process Clause of the Fourteenth Amendment. See United States v. Bagley, 473 U. S. 667 (1985); Brady v. Maryland, 373 U. S. 83 (1963). See also Wardius v. Oregon, 412 U. S. 470 (1973). Because the applicability of the Sixth Amendment to this type of case is unsettled, and because our Fourteenth Amendment precedents addressing the fundamental fairness of trials establish a clear framework for review, we adopt a due process analysis for purposes of this case. Although we conclude that compulsory process provides no greater protections in this area than those afforded by due process, we need not decide today whether and how the guarantees of the Compulsory Process Clause differ from those of the Fourteenth Amendment. It is enough to conclude that on these facts, Ritchie’s claims more properly are considered by reference to due process.
2
It is well settled that the government has the-obligation to turn over evidence in its possession that is both favorable to the accused and material to guilt or punishment. United States v. Agurs, 427 U. S. 97 (1976); Brady v. Maryland, supra, at 87. Although courts have used different terminologies to define “materiality,” a majority of this Court has agreed, “[ejvidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” United States v. Bagley, 473 U. S., at 682 (opinion of Blackmun, J.); see id., at 685 (opinion of White, J.).
At this stage, of course, it is impossible to say whether any information in the CYS records may be relevant to Ritchie’s claim of innocence, because neither the prosecution nor defense counsel has seen the information, and the trial judge acknowledged that he had not reviewed the full file. The Commonwealth, however, argues that no materiality inquiry is required, because a statute renders the contents of the file privileged. Requiring disclosure here, it is argued, would override the Commonwealth’s compelling interest in confidentiality on the mere speculation that the file “might” have been useful to the defense.
Although we recognize that the public interest in protecting this type of sensitive information is strong, we do not agree that this interest necessarily prevents disclosure in all circumstances. This is not a case where a state statute grants CYS the absolute authority to shield its files from all eyes. Cf. 42 Pa. Cons. Stat. §5945.1(b) (1982) (unqualified statutory privilege for communications between sexual assault counselors and victims). Rather, the Pennsylvania law provides that the information shall be disclosed in certain circumstances, including when CYS is directed to do so by court order. Pa. Stat. Ann., Title 11, §2215(a)(5) (Purdon Supp. 1986). Given that the Pennsylvania Legislature contemplated some use of CYS records in judicial proceedings, we cannot conclude that the statute prevents all disclosure in criminal prosecutions. In the absence of any apparent state policy to the contrary, we therefore have no reason to believe that relevant information would not be disclosed when a court of competent jurisdiction determines that the information is “material” to the defense of the accused.
We therefore affirm the decision of the Pennsylvania Supreme Court to the extent it orders a remand for further proceedings. Ritchie is entitled to have the CYS file reviewed by the trial court to determine whether it contains information that probably would have changed the outcome of his trial. If it does, he must be given a new trial. If the records maintained by CYS contain no such information, or if the nondisclosure was harmless beyond a reasonable doubt, the lower court will be free to reinstate the prior conviction.
c
This ruling does not end our analysis, because the Pennsylvania Supreme Court did more than simply remand. It also held that defense counsel must be allowed to examine all of the confidential information, both relevant and irrelevant, and present arguments in favor of disclosure. The court apparently concluded that whenever a defendant alleges that protected evidence might be material, the appropriate method of assessing this claim is to grant full access to the disputed information, regardless of the State’s interest in confidentiality. We cannot agree.
A defendant’s right to discover exculpatory evidence does not include the unsupervised authority to search through the Commonwealth’s files. See United States v. Bagley, supra, at 675; United States v. Agurs, supra, at 111. Although the eye of an advocate may be helpful to a defendant in ferreting out information, Dennis v. United States, 384 U. S. 855, 875 (1966), this Court has never held — even in the absence of a statute restricting disclosure — that a defendant alone may make the determination as to the materiality of the information. Settled practice is to the contrary. In the typical case where a defendant makes only a general request for exculpatory material under Brady v. Maryland, 373 U. S. 83 (1963), it is the State that decides which information must be disclosed. Unless defense counsel becomes aware that other exculpatory evidence was withheld and brings it to the court’s attention, the prosecutor’s decision on disclosure is final. Defense counsel has no constitutional right to conduct his own search of the State’s files to argue relevance. See Weatherford v. Bursey, 429 U. S. 545, 559 (1977) (“There is no general constitutional right to discovery in a criminal case, and Brady did not create one”).
We find that Ritchie’s interest (as well as that of the Commonwealth) in ensuring a fair trial can be protected fully by requiring that the CYS files be submitted only to the trial court for in camera review. Although this rule denies Ritchie the benefits of an “advocate’s eye,” we note that the trial court’s discretion is not unbounded. If a defendant is aware of specific information contained in the file (e. g., the medical report), he is free to request it directly from the court, and argue in favor of its materiality. Moreover, the duty to disclose is ongoing; information that may be deemed immaterial upon original examination may become important as the proceedings progress, and the court would be obligated to release information material to the fairness of the trial.
To allow full disclosure to defense counsel in this type of case would sacrifice unnecessarily the Commonwealth’s compelling interest in protecting its child-abuse information. If the CYS records were made available to defendants, even through counsel, it could have a seriously adverse effect on Pennsylvania’s efforts to uncover and treat abuse. Child abuse is one of the most difficult crimes to detect and prosecute, in large part because there often are no witnesses except the victim. A child’s feelings of vulnerability and guilt and his or her unwillingness to come forward are particularly acute when the abuser is a parent. It therefore is essential that the child have a state-designated person to whom he may turn, and to do so with the assurance of confidentiality. Relatives and neighbors who suspect abuse also will be more willing to come forward if they know that their identities will be protected. Recognizing this, the Commonwealth — like all other States — has made a commendable effort to assure victims and witnesses that they may speak to the CYS counselors without fear of general disclosure. The Commonwealth’s purpose would be frustrated if this confidential material had to be disclosed upon demand to a defendant charged with criminal child abuse, simply because a trial court may not recognize exculpatory evidence. Neither precedent nor common sense requires such a result.
> I — I
We agree that Ritchie is entitled to know whether the CYS file contains information that may have changed the outcome of his trial had it been disclosed. Thus we agree that a remand is necessary. We disagree with the decision of the Pennsylvania Supreme Court to the extent that it allows defense counsel access to the CYS file. An in camera review by the trial court will serve Ritchie’s interest without destroying the Commonwealth’s need to protect the confidentiality of those involved in child-abuse investigations. The judgment of the Pennsylvania Supreme Court is affirmed in part and reversed in part, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
Although the 1978 investigation took place during the period that the daughter claimed she was being molested, it is undisputed that the daughter did not tell CYS about the assaults at that time. No criminal charges were filed as a result of this earlier investigation.
The statute provides in part:
“(a) Except as provided in section 14 [Pa. Stat. Ann., Tit. 11, §2214 (Purdon Supp. 1986)], reports made pursuant to this act including but not limited to report summaries of child abuse... and written reports... as well as any other information obtained, reports written or photographs or X-rays taken concerning alleged instances of child abuse in the possession of the department, a county children and youth social service agency or a child protective service shall be confidential and shall only be made available to:
“(5) A court of competent jurisdiction pursuant to a court order.” Pa. Stat. Ann., Tit. 11, § 2215(a) (Purdon Supp. 1986).
At the time of trial the statute only provided five exceptions to the general rule of confidentiality, including the exception for court-ordered disclosure. The statute was amended in 1982 to increase the number of exceptions. For example, the records now may be revealed to law enforcement officials for use in criminal investigations. § 2215(a)(9). But, the identity of a person who reported the abuse or who cooperated in the investigation may not be released if the disclosure would be detrimental to that person’s safety. § 2215(c).
The trial judge stated that he did not read “50 pages or more of an extensive record.” App. 72a. The judge had no knowledge of the case before the pretrial hearing. See id,., at 68a.
There is no suggestion that the Commonwealth’s prosecutor was given access to the file at any point in the proceedings, or that he was aware of its contents.
The Sixth Amendment of the United States Constitution protects both the right of confrontation and the right of compulsory process:
“In all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him; [and] to have compulsory process for obtaining witnesses in his favor.”
Both Clauses are made obligatory on the States by the Fourteenth Amendment. Pointer v. Texas, 380 U. S. 400, 403-406 (1965) (Confrontation Clause); Washington v. Texas, 388 U. S. 14, 17-19 (1967) (Compulsory Process Clause).
The court noted that the trial court should take “appropriate steps” to guard against improper dissemination of the confidential material, including, for example, “fashioning of appropriate protective orders, or conducting certain proceedings in camera.” 509 Pa., at 368, n. 16, 502 A. 2d, at 153, n. 16. These steps were to be taken, however, subject to “the right of [Ritchie], through his counsel, to gain access to the information.” Ibid.
As Justice Stevens’ dissent points out, post, at 74, there is a third possibility. If the trial court finds prejudicial error and orders a retrial, the Commonwealth may attempt to take an immediate appeal of this order. See Pa. Rule App. Proe. 311(a). Justice Stevens’ dissent suggests that because the Commonwealth can raise the Sixth Amendment issue again in this appeal, respect for the finality doctrine should lead us to dismiss. But even if we were persuaded that an immediate appeal would lie in this situation, it would not necessarily follow that the constitutional issue will survive. The appellate court could find that the failure to disclose was harmless, precluding further review by the Commonwealth. Alternatively, the appellate court could agree that the error was prejudicial, thus permitting the Commonwealth to claim that the Sixth Amendment does not compel disclosure. But as Justice Stevens’ dissent recognizes, the Pennsylvania courts already have considered and resolved this issue in their earlier proceedings; if the Commonwealth were to raise it again in a new set of appeals, the courts below would simply reject the claim under the law-of-the-case doctrine. Law-of-the-case principles are not a bar to this Court’s jurisdiction, of course, and thus Justice Stevens’ dissent apparently would require the Commonwealth to raise a fruitless Sixth Amendment claim in the trial court, the Superior Court, and the Pennsylvania Supreme Court still another time before we regrant certiorari on the question that is now before us.
The goals of finality would be frustrated, rather than furthered, by these wasteful and time-consuming procedures. Based on the unusual facts of this ease, the justifications for the finality doctrine — efficiency, judicial restraint, and federalism, see Radio Station WOW, Inc. v. Johnson, 326 U. S. 120, 124 (1945); post, at 72 — would be ill served by another round of litigation on an issue that has been authoritatively decided by the highest state court.
Nothing in our decision in United States v. Ryan, 402 U. S. 530 (1971), requires a different result. In that case the respondent was served with a subpoena requiring him to produce business records for a grand jury. The District Court denied a motion to quash, and respondent appealed. We concluded that the District Court order was not appealable. Id., at 532. We rejected the contention that immediate review was necessary to avoid the harm of disclosing otherwise protected material, noting that parties who face such an order have the option of making the decision “final” simply by refusing to comply with the subpoena.
Although there are similarities between this case and Ryan, the analogy is incomplete. In Ryan the Court was concerned about the “necessity for expedition in the administration of the criminal law,” id., at 533, an interest that would be undermined if all pretrial orders were immediately ap-pealable. Ryan also rests on an implicit assumption that unless a party resisting discovery is willing to risk being held in contempt, the significance of his claim is insufficient to justify interrupting the ongoing proceedings
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_treat
|
D
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
LOEHR et al. v. UNITED STATES.
No. 508.
Circuit Court of Appeals, Tenth Circuit.
Dec. 21, 1931.
J. W. Ward, of Wichita, Kan., for appellants.
Dan B. Cowie, Asst. U. S. Atty., of Topeka, Kan.
Before COTTERAL and PHILLIPS, Circuit Judges, and POLLOCK, District Judge.
Rebearing granted February 26, 1933.
POLLOCK, District Judge.
Appellants, who were defendants below, and one John Loehr were indicted on four counts of an indictment charging them jointly with violations of the Volstead Act (27 USCA § 1 et seq.). Count 1, with the manufacture of liquor; count 2, with possession of equipment designed for manufacture of liquor; count 3, possession of liquor; count 4, maintaining a nuisance.
John Loehr pleaded guilty to all counts. Warner was convicted on aE counts, and Tony Loehr was convicted on counts two and four. Defendants below appeal.
At the conclusion of the governments evidence Tony Loehr moved his discharge on the ground there was no competent evidence tending to show his guEt. This mo tion was overruled and excepted to. The enforcement officers testified they found a stiE in operation on the premises; at the time they found no one on the premises except Warner, who said he was employed by John Loehr to plow com. When found his hat and coat were in the stElhouse. The question presented by both defendants is the sufficiency of the evidence to sustain the conviction.
WhEe Tony Loehr is a son of John Loehr, yet he did not Eve with his father, and he and a fellow by the name of Fred Neises had been absent from Sedgwick county on a trip to Mexico, Tex., etc., for several weeks, and having just returned home rode out home with his father and mother when the officers arrested them as they drove in home. There is no possible evidence of his having in his possession equipment to manufacture Equor or of his maintaining a nuisance. His father did, but he pleaded guEty and was punished.
To our minds the evidence against this defendant is altogether insufficient. There is hardly enough to create even a suspicion of his guilt. On his trial he was clothed with the presumption of innocence unless and until the government established his guilt beyond a reasonable doubt, and this by competent evidence, not by mere suspicion. A person may not be guessed guilty of a criminal offense as the jury must have done in this case. The case was very poorly defended. The record was not weE saved to protect the rights of defendant, but in such a ease a reviewing court, having the record with aE the evidence before it cannot shut its eyes and aEow a mere suspicion or guess to prevaE where competent evidence is lacking to sustain a conviction for crime. Reynolds v. United States (C. C. A.) 48 F.(2d) 762.
Coming now to the defendant Warner, said by the officers to have run away from the bam in which the stiE was located, when they approached: His hat and coat were in the building in another place. There was a cot there on which he had lain. The evidence was that he had been employed by John Loehr to plow com and had worked there but a few days plowing com at a wage of $3 per day. Defendant testified he did not run away when the officers came but simply got up from where he had been sleeping and went out when he heard a ear drive up. He further testified while he knew the stiE was there he had nothing to do with it or the making of the whisky. The accusations are that this defendant manufactured whisky, was in the possession of materials designed for the purpose of manufacturing whisky, with the possession of whisky, and the maintenance of a common nuisance. These are the charges against him. The property where the stiE was located was not his property. He is not shown to have done any act at the still. A11 that is shown to have been done by him is just as consonant with his innocence as his guEt. The fact he knew John Loehr had a still on his property, made and sold whisky, would not prevent him from being employed on the premises for an altogether different work or purpose. Again, are the suspicions aroused against him enough on which to eonviet of á felony beyond a reasonable doubt? The presumption of his innocence weighs more in the face of the known or proven facts in this case than the conjectures and the suspicions shown." The evidence of guilt is entirely lacking. He may have been guEty; he may not be. It is not within the province of a jury to return a verdict of guEty unless the evidence shows guilt beyond a reasonable doubt. WhEe this is a question for the jury, if there is proper and competent evidence of his guilt here such evidence was not given.
As before stated, defendant was defended and his rights poorly guarded. There is no question in this case on which error can be properly assigned save the one, there is no competent evidence to show his guEt. ’ This is a question of law and may be examined by the court to prevent a miscarriage of justice in a felony ease. Edwards v. United States (C. C. A.) 266 F. 848, and many other cases on this question there cited.
It foEows, the judgment of conviction must be reversed as to both defendants for want of evidence to support the same, and a new trial ordered.
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:
|
sc_decisiontype
|
D
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the type of decision made by the court among the following: Consider "opinion of the court (orally argued)" if the court decided the case by a signed opinion and the case was orally argued. For the 1791-1945 terms, the case need not be orally argued, but a justice must be listed as delivering the opinion of the Court. Consider "per curiam (no oral argument)" if the court decided the case with an opinion but without hearing oral arguments. For the 1791-1945 terms, the Court (or reporter) need not use the term "per curiam" but rather "The Court [said],""By the Court," or "By direction of the Court." Consider "decrees" in the infrequent type of decisions where the justices will typically appoint a special master to take testimony and render a report, the bulk of which generally becomes the Court's decision. This type of decision usually arises under the Court's original jurisdiction and involves state boundary disputes. Consider "equally divided vote" for cases decided by an equally divided vote, for example when a justice fails to participate in a case or when the Court has a vacancy. Consider "per curiam (orally argued)" if no individual justice's name appears as author of the Court's opinion and the case was orally argued. Consider "judgment of the Court (orally argued)" for formally decided cases (decided the case by a signed opinion) where less than a majority of the participating justices agree with the opinion produced by the justice assigned to write the Court's opinion.
STANDARD INDUSTRIES, INC. v. TIGRETT INDUSTRIES, INC., et al.
No. 445.
Argued March 2, 1970
Decided April 20, 1970
I. Walton Bader argued the cause for petitioner. With him on the briefs was Maximilian Bader.
Ralph W. Kalish argued the cause and filed a brief for respondents.
Lawrence G. Wallace argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Griswold, Assistant Attorney General McLaren, and Richard H. Stern.
Sidney Neuman argued the cause for the American Patent Law Association as amicus curiae. On the brief were Frank L. Neuhauser, John F. Witherspoon, Robert E. LeBlanc, William L. Mathis, and Henry Shur.
Per Curiam.
The judgments are affirmed by an equally divided Court.
Question: What type of decision did the court make?
A. opinion of the court (orally argued)
B. per curiam (no oral argument)
C. decrees
D. equally divided vote
E. per curiam (orally argued)
F. judgment of the Court (orally argued)
G. seriatim
Answer:
|
songer_constit
|
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 constitutionality of a law or administrative action, and if so, whether the resolution of the issue by the court favored the appellant.
GOVERNMENT OF the VIRGIN ISLANDS, Appellant, v. BURMINGHAM, Andrew, Appellee.
No. 85-3159.
United States Court of Appeals, Third Circuit.
Argued Dec. 3, 1985.
Decided April 17, 1986.
J’Ada M. Finch-Sheen, Atty. Gen., Jacqueline A. Drew, (Argued), Charlotte Ama-lie, St. Thomas, U.S. Virgin Islands, for appellant.
John J. Mahon, (Argued), Charlotte Ama-lie, St. Thomas, U.S. Virgin Islands, for appellee.
Before HUNTER, GARTH, and BECKER, Circuit Judges.
OPINION OF THE COURT
GARTH, Circuit Judge:
On this appeal, the Government as appellant argues that Andrew Burmingham, who had been charged with various criminal offenses under the Virgin Islands Code, had not been deprived of his right to a speedy trial, even though the Information charging him was filed in the Territorial Court on December 1, 1980 and some eighteen months later no trial had yet been had. The Territorial Court denied Burmingham’s motion to dismiss the Information under the Speedy Trial Act, 18 U.S.C. § 3161 et seq. and Federal Rule of Criminal Procedure 48(b). After a nonjury trial held in May, 1982, Burmingham was convicted on all four counts of the Information. On appeal to the district court this decision was reversed. We now vacate the order of the district court.
I.
Appellee Andrew Burmingham was involved in a fight with one Selvin Joseph, in which Burmingham attacked Joseph with a machete. The only witness to this fight, aside from the two participants, was Ruth Joseph, formerly the girlfriend of Burming-ham and now Selvin Joseph’s wife. Both men were wounded and required hospital treatment. Burmingham was arrested on November 26, 1980. On December 1, 1980, the Government filed an Information in the Territorial Court. Burmingham was charged with three counts of third degree assault and one count of unlawful possession of a deadly weapon during the commission of a crime of violence, all in violation of Virgin Islands statutes. He was arraigned on December 9, and the case was subsequently set for trial on March 30, 1981.
On March 11, 1981, Burmingham moved for dismissal of the Information under the Speedy Trial Act, 18 U.S.C. § 3161, et seq. and Fed.R.Crim.P. 48(b). The Territorial Court took Burmingham’s motion for dismissal under advisement, along with other similar motions, in order to seek an in banc answer of that court to the question of whether the Speedy Trial Act was applicable to criminal proceedings in the Territorial Court. However, the Territorial Court never considered the question in banc.
Some thirteen months later, on April 16, 1982, the Territorial Court denied Burming-ham’s motion to dismiss the charges. Ironically, it was Burmingham’s assertion of this purported statutory speedy trial claim that stretched the delay so that it exceeded eight months. LaFave & Israel, Criminal Procedure § 18.2, at 405 (quoting Joseph, Speedy Trial Rights in Application, 48 Fordham L.Rev. 611, 623 n. 71 (1980)).
In denying Burmingham’s motion, the Territorial Court followed Government of the Virgin Islands v. Albert John Quetel, 18 V.I. 145 (Terr.Ct.1982), which held the Speedy Trial Act inapplicable to Territorial Court proceedings. The Territorial Court went on to hold that dismissal pursuant to Rule 48(b) was not warranted. Applying the constitutional speedy trial analysis of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the court concluded that:
Although there has been excessive delay in bringing the defendant to trial, and the reason for the delay is chargeable mostly to the court, these factors are substantially outweighed by the fact that the delay was both necessary and justifiable, by the defendant’s failure to assert his right to a speedy trial, and particularly by the fact that the defendant has not been prejudiced by the delay.
Following the denial of his speedy trial motion, on May 14, 1982, Burmingham was tried in a bench trial and was convicted on all four counts.
On appeal to the district court, Burming-ham for the first time raised a Sixth Amendment claim, while also pressing his Rule 48(b) and Speedy Trial Act claims. The district court applied the test of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, to Burmingham’s constitutional claim. Unlike the Territorial Court, the district court concluded that Burmingham had been denied his right to a speedy trial. By its order of February 27, 1985, the district court vacated the judgment and conviction entered by the Territorial Court, and dismissed the Information filed against Burmingham.
II.
The Government contends that Burming-ham, by. not raising his Sixth Amendment claim at the trial level, has forfeited his right to do so now. This argument is supported by the in banc holding of this court that “it will not entertain arguments on appeal based on objections not timely raised below.” United States v. Gibbs, 739 F.2d 838 (3d Cir.1984).
In Gibbs, this court held that a constitutional objection taken after both parties had rested at trial, and which raised issues different from the evidentiary (statutory) objection taken during trial, was not sufficient to preserve the later raised constitutional issue. Gibbs had objected to certain co-conspirator evidence at trial, referring to Federal Rule of Evidence 801(d)(2)(E) as the basis for his objection. No constitutional (Sixth Amendment) objection had ever been raised before the parties had rested. After testimony had closed and the parties had rested, and the court had refused to reconsider its evidentary ruling, Gibbs for the first time made a general Sixth Amendment motion to strike the evidence. Gibbs had contended that the Government had the burden of proving the unavailability of a witness in order to adduce hearsay testimony from a co-conspirator. This challenge too was denied by the district court.
On appeal to this court, we noted that issues different from the Rule 801 objection were raised by the Confrontation Clause objection. We also observed that the Government had not been given the opportunity to meet the objection — primarily, we observed that the Government could not at that stage satisfy the issue of witness availability. We did not reach the merits of Gibbs’ argument, holding instead that the issue had not been preserved for appeal.
To the extent that both Gibbs and Burm-ingham first raised statutory objections and only thereafter raised constitutional objections, it would appear, at least on the surface, that no distinction could be drawn between the two cases. In such a situation, Gibbs obviously would control and we would be compelled to hold that Burming-ham, by failing to raise his constitutional objection before the Territorial Court, came within the Gibbs doctrine and had not preserved a constitutional issue for review in this court.
However, there are two significant differences between Gibbs and Burmingham. First, whereas in Gibbs the constitutional objection could have been taken at the same time as the evidentiary objection (thereby affording the Government time to respond to the claimed deficiency in proof), here Burmingham, at the time he made his motion under the Speedy Trial Act and Rule 48(b), could not legitimately have raised a constitutional claim that his speedy trial right had been violated. Burmingham’s motion before the Territorial Court was made less than five months after his arrest and indictment. A delay of that length is not sufficiently prejudicial to trigger a constitutional inquiry. See La Fave & Israel, Criminal Procedure § 18.2, at 405. Our research has disclosed no case which we find persuasive that has held a delay of less than five months to constitute a violation of the constitutional right to a speedy trial.
Second, while concededly Burmingham did not, and we believe could not, have raised a constitutional challenge before the Territorial Court, his contention that the indictment should be dismissed under Rule 48(b) led the Territorial Court to engage in the same analysis to resolve that issue as it would have been obliged to engage in had the constitutional claim been presented to it. The Territorial Court in Burming-ham did in fact employ the same analysis in a statutory context that it would have employed in the constitutional context. Thus, the Government was not, and could not have been, prejudiced by the failure of Burmingham to specifically delineate the constitutional claim under which he subsequently proceeded. This was not the case in Gibbs, where the statutory analysis differed substantially from the Sixth Amendment, thus resulting in prejudice to the Government. We are satisfied, therefore, that Gibbs does not control the preservation issue raised by the Government in this case.
Accordingly, we proceed to the merits of the Government’s argument that Burming-ham’s Sixth Amendment right to a speedy trial was not violated.
m.
In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Supreme Court adopted a balancing test to determine whether a delay in bringing a defendant to trial infringed upon his right to a speedy trial. That test, recently reaffirmed in United States v. Loud Hawk, — U.S.-, 106 S.Ct. 648, 88 L.Ed.2d 640 (1986), requires that we consider four factors: the length of the delay; the reason for the delay; defendant’s assertion of the right; and prejudice to the defendant. Barker v. Wingo, 407 U.S. at 530, 92 S.Ct. at 2192.
Prejudice is the key factor here, and its absence is decisive in this case. The Supreme Court has identified three interests of defendants that may be prejudiced by denial of the right to a speedy trial: preventing oppressive pretrial incarceration; minimizing anxiety and concern of the accused; and limiting the possibility that the defense will be impaired. Barker v. Wingo, 407 U.S. at 532, 92 S.Ct. at 2193; see also Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973).
In United States v. Loud Hawk, — U.S. -, 106 S.Ct. 648, 88 L.Ed.2d 640 (1986), the Court laid particular emphasis on the first of the three interests, stating that “the Speedy Trial Clause’s core concern is impairment of liberty,” id. 106 S.Ct. at 654, and pointing out that in that case, “despite the seriousness of the charged offenses, the District Court chose not to subject respondents to any actual restraints pending the outcome of the appeal,” id. at 656-57. Similarly here, Burmingham was not incarcerated prior to his trial.
Nor is there evidence in the instant case of any unusual burden of anxiety. The district court, in its opinion holding that Burmingham had been denied his right to a speedy trial, referred to the anxiety of the accused as the only element of prejudice. Yet it recognized that Burmingham’s anxiety was no greater than that which “inevitably attend[s] a criminal prosecution.” A-7.
Finally, there was no suggestion here that Burmingham’s defense had been in any way impaired by the delay. Given that there were only two witnesses, and that those witnesses had good reason to remember the events in question, there is little likelihood of prejudice to Burmingham’s defense.
In the absence of prejudice, we might nevertheless be inclined to look more favorably on Burmingham’s claim if there were evidence that the government had “deliberately attempt[ed] to delay the trial in order to hamper the defense,” Barker, 407 U.S. at 531, 92 S.Ct. at 2192, or even if the delay were in any way attributable to the prosecution. Here, responsibility for the delay rests with the Territorial Court. The initial three month delay was due to a crowded docket in the Territorial Court, and the subsequent delay was due to that court’s attempt to reach a decision on the applicability of the Speedy Trial Act to the Territorial Court.
In Loud Hawk, the Supreme Court considered a delay similar in nature to that in the instant case. There, an interlocutory appeal by the government to the Court of Appeals for the Ninth Circuit, though expedited, consumed nearly two years. The Supreme Court noted that under Barker a delay from overcrowded courts should be weighed against the government, but less heavily than deliberate delay. The Court went on to observe that there had been “no showing of bad faith or dilatory purpose on the Government’s part” Loud Hawk, 106 S.Ct. at 656, and gave little weight to the resulting delay.
The delay in the instant case was justified by the Territorial Court’s desire to seek clarification of the law. Like the delay in Loud Hawk, it does not weigh strongly, if at all, against the government.
Absent impairment of the defense, pretrial incarceration, or any evidence of unusual psychological distress, and absent unjustifiable procrastination by the government, we do not believe that a delay of eighteen months between indictment and trial requires us to grant Burmingham’s speedy trial claim predicated on Barker v. Wingo.
Accordingly, the judgment of the district court will be vacated and the case remanded with instructions to the district court to reinstate the judgment and sentence of the Territorial Court.
. The district court did not address the issue of the applicability of the Speedy Trial Act, nor did Burmingham raise it on appeal before us. We therefore do not address that issue here.
. We observe that the Supreme Court has recently decided that the Confrontation Clause does not require a showing of unavailability as a condition to admission of the out-of-court statements of a non-testifying co-conspirator. United States v. Inadi, — U.S.-, 106 S.Ct. 1121, 89 L.Ed.2d 390 (1986).
. Rule 48(b) provides as follows:
Rule 48. Dismissal
******
(b) By Court. If there is unnecessary delay in presenting the charge to a grand jury or in filing an information against a defendant who has been held to answer to the district court, or if there is unnecessary delay in bringing a defendant to trial, the court may dismiss the indictment, information of complaint.
. In relevant part. Sixth Amendment provides as follows:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed____
U.S. Const, amend. VI.
. The government does not rest its argument on a failure by Burmingham to assert his right to a speedy trial.
. This case is thus distinguishable from United States v. Dreyer, 533 F.2d 112 (3d Cir.1976), in which we granted the speedy trial claim of Audrey Ellen Goldsmith. The time between indictment and trial in that case was two and a half years. Goldsmith provided evidence that she had experienced severe mental disturbance during that period.
. The Territorial Court could have granted relief to Burmingham under Rule 48(b) even though such relief was not constitutionally required. See, e.g., United States v. Rich, 589 F.2d 1025, 1034 (10th Cir.1978); United States v. Cartano, 420 F.2d 362, 363 (1st Cir.1969), cert. denied, 397 U.S. 1054, 90 S.Ct. 1398, 25 L.Ed.2d 671 (1970). However, it declined to do so. Instead, it applied the constitutional test of Barker v. Wingo. Under such a circumstance, our holding that the district court's constitutional analysis under the same test was flawed requires reinstatement of the Territorial Court’s judgment.
Question: Did the court's conclusion about the constitutionality of a law or administrative action favor the appellant?
A. Issue not discussed
B. The issue was discussed in the opinion and the resolution of the issue by the court favored the respondent
C. The issue was discussed in the opinion and the resolution of the issue by the court favored the appellant
D. The resolution of the issue had mixed results for the appellant and respondent
Answer:
|
songer_appel1_3_3
|
J
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed 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 v. LEHIGH PORTLAND CEMENT CO.
No. 6574.
United States Court of Appeals Fourth Circuit.
Argued June 4, 1953.
Decided July 21, 1953.
Norton J. Come, Attorney, N. L. R. B., Washington, D. C. (George J. Bott, General Counsel, David P. Findling, Associate General Counsel, A. Norman Somers, Assistant General Counsel, Washington, D. C. and Edmond F. Rovner, Attorney, N. L. R. B., New York City, on brief), for petitioner.
Robert H. Kleeb, Philadelphia, Pa. (Souser & Schumacher, Philadelphia, Pa., on the brief), for respondent.
Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.
SOPER, Circuit Judge.
The question in this case is whether the Lehigh Portland Cement Company was required by §§ 8(a) (1) and 8(a) (5) of the National Labor Relations Act as amended, 29 U.S.C.A. § 151 et seq., to bargain with the United Cement, Lime and Gypsum Workers International Union, the bargaining representative of 254 out of a total of 288 of its employees, in respect to the rental of 65 dwelling units owned and maintained by the company in the vicinity of the plant. The Labor Board held that the housing units were a mandatory subject of the bargaining provision of the Act, 101 N.L.R.B. 1010, and has petitioned this court to give effect to its order whereby it directed the company to cease and desist from refusing to bargain collectively with the union in respect to the rentals.
The company maintains a plant for the manufacture of cement at Fordwick, Virginia, an unincorporated community of less than 1,000 people. The company now owns 65 dwelling units located within a mile of the plant. This number remains out of a total of 150 units which were similarly located when it acquired the plant in 1916. Five of the 65 units are leased to non-employees of whom 3 were employed when their tenancy began; one is the mother of an employee who pays the rent, and one is the sublessor of an employee of the company; of the remaining 60 units 10 are rented to supervisory and clerical employees,who are outside the bargaining unit, and 50 are rented to employees who are members of the bargaining unit. The company pursues the policy of renting its houses to its employees and maintains the present allotment as between employees within and employees without the bargaining unit. Housing in the area is in short supply and consequently there is a demand for the company houses. There were 10 applications for them at the time of the hearing. Applications are not granted in the order in which they are filed or on the basis of the seniority of the applicants. The houses are maintained and kept in repair by the company. The rents in most instances are deducted from the wages of the employees and in other cases the rents are paid in cash at the company’s, office.
The rental of the houses which had not been raised for fourteen years prior to 1951 were uniformly low. The company gave notice in March, 1951 that the rents, would be raised as of May 1, 1951 and this announcement led to a protest on the part of the tenants and a request by them and by the union that the company first take up the matter with the union. The company, however, refused on the ground that the rent of the houses was not subject to collective bargaining, and the charges of refusal to bargain were then made which led to the instant pioceeding. The question of rentals has not entered into the bargaining between the company and the union during the nine years in which the union has been the accredited representative of the men.
A majority of the employees, 188 in number, do not live in company houses. Of these 131 own their own houses and 57 rent privately owned houses, located as follows: 37 own houses in the Fordwick area; 56 own houses in the nearby Craigs-vilie area, and 35 rent houses in the Craigs-ville area, all of which are within two miles of the plant; 11 employees own houses in Augusta Springs and 11 rent houses in Augusta Springs, which are located within three to six miles of the plant; 24 employees own houses in Goshen and 9 rent houses in Goshen located within three to six miles from the plant; two employees own homes in Swoope, which is fourteen miles from the plant, and one owns a house in Headwaters, which is twenty miles from the plant; one employee rents a house in Staunton, Virginia, and one rents a home in Waynesboro, Virginia, which are located twenty-three miles and thirty five miles respectively from the plant.
The position of the employer is that the amount of rent wdiich it charges lor its houses does not i elate to “rates of pay, wages, hours of employment, or other conditions of employment”, and hence it is not a matter as to which it is required to bargain with the union under § 9 of the statute. It points out that the statute does not purport to interfere with an employer’s freedom of contract and hence it is at liberty to deal with its property as it sees fit, unless in so doing it does something which affects the conditions of employment under which its employees work; and it contends that these conditions are not affected in this case because the company’s houses are not a necessary part of the business and employees are not required to occupy company houses in order to hold their places at the plant. Hence it is said that the present case is not covered by our decision in N. L. R. B. v. Hart Cotton Mills, Inc., 190 F.2d 964, where we said that if company houses are a necessary part of an employer’s enterprise or arc rented to its employees at such a rate as to constitute a substantial part of their pay, they are a proper subject of collective bargaining.
Tn that case, however, we did not lay down the general proposition that company houses are never the proper subject of collective bargaining unless they are a necessary part of the enterprise or their occupancy affects the workers’ pay. It is sufficient to bring them within the field of collective bargaining if their ownership and management materially affects the conditions of employment. We agree with the Board that such is the case at the company’s plant at Fordwick. That no increase in rent was made between 1937 and 1951 indicates that the rents have been below the prevailing rate; and this circumstance coupled with the convenience of living nearer to the place of work than the great majority of the employees has given the occupants of the company’s houses substantial advantages which undoubtedly affected their conditions of employment.
Obviously the company’s ownership and control contribute to this result. The extent of its influence has of course been curtailed by the reduction in tlie number of company houses from 150 to 65 during the period of the company’s ownership. Nevertheless it is still substantial; and it bears directly on the crucial question in the case, since the retention by the company of a sufficient number of dwellings to house 25 per cent of the employees near the plant in an area where houses are hard to get gives the company a means of affecting the living conditions of a large part of its working force through the power of granting or withholding the privilege and of fixing of terms upon which it may be exercised. Under the circumstances of thif case the matter is of sufficient importance as to require its submission to the process of collective bargaining. The order of the Board will be
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_r_fed
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
MATTEL, INC., a Delaware Corporation, Appellant, v. AZRAK-HAMWAY INTERNATIONAL, INC., d/b/a Remco Toys, a New York corporation, Ezra Hamway, Roland Paris, and Marvin Azrak, Appellees.
No. 518, Docket 83-7813.
United States Court of Appeals, Second Circuit.
Argued Nov. 14, 1983.
Decided Dec. 23, 1983.
A. Sidney Katz, Welsh & Katz, Chicago, Ill. (Eric C. Cohen, Pamela McKenna, Welsh & Katz, Chicago, Ill., Alexander R. Suss-man, Robert J. Mandel, Fried, Frank, Harris, Shriver & Jacobson, New York City, of counsel), for appellant.
Anthony F. LoCicero, Amster, Rothstein & Engelberg, New York City (Jesse Roth-stein, New York City, of counsel), for appel-lees.
Before OAKES, MESKILL and PIERCE, Circuit Judges.
PER CURIAM:
Mattel, Inc. (Mattel), the manufacturer of a popular series of 5⅕" action figure toy dolls sold under the registered trademark name of “Masters of the Universe,” brings an expedited appeal from a decision of the United States District Court for the Southern District of New York, Richard Owen, Judge. Judge Owen refused to issue a preliminary injunction against Azrak-Hamway International, Inc. (Remco), and certain Remco officials, to stop production and sale of Remco’s series of 52½" action figure toy dolls titled the “Warlords,” which were designed to compete with Mattel’s “Masters of the Universe” dolls. Mattel claims that by producing and selling the “Warlord” dolls, Remco infringes upon Mattel’s registered copyright in the “Masters of the Universe” dolls in violation of 17 U.S.C. §§ 106, 501 (Supp. V 1981), its federal trademark rights in violation of 15 U.S.C. §§ 1115(b), 1125(a) (1976), and its common law right under New York law to be protected against unfair competition.
The standard in the Second Circuit for injunctive relief, as set forth, e.g., in Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979), requires a showing of two things, first, irreparable harm and, second, “either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.” Judge Owen held that Mattel did not make a showing that either prong of the second requirement was met. We agree.
The “Masters of the Universe” dolls are a series of dolls with different heads, clothing, and names, but all sharing a common torso, which is a sculptor’s exaggerated rendering of a bodybuilder’s body with shortened legs. Likewise, the Remco series of dolls all share a body with overdeveloped musculature and legs proportionately shorter than the average human being’s. The Remco dolls all have names, heads, feet, hands, and clothing different from the Mattel dolls, with their names and costumes designed so that the dolls represent certain comic book figures. The Remco dolls’ bodies also have pectoral, abdominal, and other musculature that differs in minor though significant detail from that of the Mattel dolls. Remco obtained a license from DC Comics, Inc., to model its dolls after their comic book figures “Warlord,” “Arak,” and “Hercules unbound.” Both the Mattel and the Remco dolls are posed in a similar crouching position which may be likened to the fighting stance of a Neanderthal man or that of a latter-day professional wrestler approaching his opponent. As the district court found, any claim of uniqueness in the pose is “frivolous.”
The Copyright Claim
Mattel’s claim is that Remco copied the torso of its toy, which it considers the essential part of the doll. While it is true, of course, that it is possible to infringe while copying only a part of a work, see, e.g., Elsmere Music, Inc. v. National Broadcasting Co., 482 F.Supp. 741, 744 (S.D.N.Y.) (copying of four notes and two words out of an entire song may constitute infringement), aff'd, 623 F.2d 252 (2d Cir.1980), we agree with the district court that Mattel did not demonstrate substantial likelihood of success in proving infringement of its “Masters of the Universe” torso.
Mattel owns a registered copyright in its dolls. To prove infringement, it must either produce proof of direct copying or show that Remco had access to its dolls and that the protectable features of the Remco doll’s body are substantially similar to the Mattel doll’s body in the eyes of the average lay observer. E.g., Warner Brothers Inc. v. American Broadcasting Co., 654 F.2d 204, 207-08 (2d Cir.1981). Remco gave its sculptor a Mattel doll to show him what kind of doll it wanted, and to insure that Remco’s doll would not appear to be the physically weaker of the two toys. But the district court apparently credited the evidence of Remco’s expert on human anatomy that the Remco doll was not a direct copy of the Mattel doll, but rather was simply another artist’s rendering of the human form with an exaggerated musculature. The artist who sculpted the model for the Rem-co figure had body-building and comic magazines as well as other material from which he worked.
. Though the dolls’ bodies are very similar, nearly all of the similarity can be attributed to the fact that both are artist’s renderings of the same unprotectable idea — a superhuman muscleman crouching in what since Neanderthal times has been a traditional fighting pose. The rendering of such an idea is not in itself protectable; only the particularized expression of that idea, for example, the particular form created by the decision to accentuate certain muscle groups relative to others, can be protected. See, e.g., Ideal Toy Corp. v. Fab-Lu Ltd., 360 F.2d 1021 (2d Cir.1966). In this case a lay observer would recognize certain differences in the way the two sculptors have created images of strength by overemphasizing certain muscle groups. Thus, the district court reasonably found that the only parts of the dolls’ bodies that constitute the protectable expression of an idea are not substantially similar. See Ideal Toy Corp. v. Sayco Doll Corp., 302 F.2d 623, 627 (2d Cir.1962) (Clark, J., dissenting).
The Trademark Claims
To succeed on either the state unfair competition claim or the federal trademark claim, Mattel had to show that Remco copied certain nonfunctional design features of the Mattel dolls which had developed a secondary meaning in the eyes of consumers so that consumers were misled into believing that the two dolls came from the same source. E.g., American Footwear Corp. v. General Footwear Co., 609 F.2d 655 (2d Cir.1979). The court below correctly found that particular arrangement of musculature in the “Masters of the Universe” model has not developed such a secondary meaning in consumers’ eyes so that they falsely associate Remco’s dolls with Mattel. The dolls all have different names, clothes, and heads, and Mattel provided insufficient evidence that consumers were mistaking Remco dolls for Mattel dolls because of their similar bodies. In addition to offering direct evidence of actual confusion by customers, retailers, salesmen, or the like, what has become a usual way to demonstrate either consumer confusion or secondary meaning, in a case where the existence of secondary meaning or consumer confusion is not otherwise obvious, is for the proponent to undertake some form of survey of consumer attitudes under actual market conditions. See, e.g., Information Clearing House, Inc. v. Find Magazine, 492 F.Supp. 147, 160 (S.D.N.Y.1980). Here for preliminary injunction purposes Mattel took no such survey, and it provided little other evidence demonstrating consumer confusion.
Mattel also claims that Remco violated § 32(1)(a) of the Trademark Act of 1946, 15 U.S.C. § 1114(1)(a) (1976), by including the phrase “PLAY WITH ... MASTERS OF THE UNIVERSE ... AND OTHER 5½" ACTION FIGURES” on packages selling its Warlord dolls. That section makes it a violation to use any registered trademark without permission in connection with the sale of goods. Section 33(b)(4) of that Act, 15 U.S.C. § 1115(b)(4) (1976), however, allows a competitor to use another’s registered trademark to describe aspects of one’s own goods, even to indicate that one’s product is a legitimate copy of another’s product. See, e.g., Societe Comptoir de L’Industrie Cotonniere Etablissements Boussac v. Alexander’s Department Stores, Inc., 299 F.2d 33, 36 (2d Cir.1962). The district court had sufficient evidence before it to support its implicit conclusion at this stage of the proceedings that Remco’s purpose in using the “Masters of the Universe” trademark in selling its dolls was to describe to purchasers a use of its own product, and did not constitute a bad faith effort to deceive consumers into thinking they were buying a Mattel toy. Moreover, the phrase in question was located on the package in a place and manner that only the close reader would notice.
The Balance of Hardships
Mattel is, or was at the time of the district court hearing, already selling as many “Masters of the Universe” dolls as it can produce, and for inadequately explained reasons it delayed bringing this action until just before the start of the Christmas selling season. The district court therefore correctly concluded that an injunction would hurt Remco more than it would help Mattel, and that the balance of hardships does not tip decidedly in Mattel’s favor.
Remco has benefited from Mattel’s success in developing a market for 5½" action figure toy dolls. Mattel did not demonstrate, however, that Remco was trading on Mattel’s success in any illegal way. Having failed to satisfy either prong of the preliminary injunction standard, Jackson Dairy, 596 F.2d at 72, Mattel was correctly denied the relief it requested.
Judgment affirmed.
. This was not always the case, as then District Judge Feinberg pointed out in Zippo Mfg. Co. v. Rogers Imports, Inc., 216 F.Supp. 670, 682 & n. 87 (S.D.N.Y.1963).
. The fact that Mattel spent a great deal of money advertising its product, especially when coupled with commercial success, can also be a factor in determining whether the trademark has developed a secondary meaning. 3 R. Call-man, The Law of Unfair Competition, Trademarks and Monopolies § 77.3 at 349 (3d ed.1969), cited in Time Mechanisms, Inc. v. Qonaar Corp., 422 F.Supp. 905, 912 (D.N.J.1976). However, proof of an expensive and successful advertising campaign in itself is of course not enough to prove secondary meaning. American Footwear Corp., 609 F.2d at 663.
Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
|
songer_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.
LILES v. PEISER et al.
No. 10776.
United States Court of Appeals Sixth Circuit.
April 11, 1949.
W. Wright Mitchell, of Memphis, Tenn. (Robert M. Nelson and W. Wright Mitchell, both of Memphis, Tenn., on the brief), for appellant.
Charles M. Crump, Marx J. Borod and David Ballon, all of Memphis, Tenn. (Charles M. Crump, Rosenfield & Borod and David Ballon, all of Memphis, Tenn., on the brief), for appellees.
Before HICKS, Chief Judge, and MARTIN and MILLER, Circuit Judges.
MARTIN, Circuit Judge.
The Referee in Bankruptcy disallowed thé petition of appellant, doing business as Liles Electric Company, for reclamation of certain machinery, material and equipment, and for the enforcement of liens for labor and materials supplied the bankrupt Independent Tool and Machinery Co. The claim of appellant was reduced $1,377.37 by the Referee and allowed as an unsecured claim in the amount of $9,962.82.
The Referee filed no separate findings of fact and conclusions of law. He denied the petition of appellant by an order in which inadequate statements of fact were intertwined with the bare announcement of legal conclusions. He wrote no elucidating opinion and cited no interpretative decisions of the Tennessee courts, or any other authorities, but merely quoted in part section 7913 of the Tennessee Code. The District Judge confirmed the mixed findings and conclusions contained in the order of the Referee, denied petitioner’s prayer for review, and dismissed the petition.
The Independent Tool and Machinery Company (the bankrupt) conducted a manufacturing business at two leased locations in Memphis, Tennessee. One location, the Ragsdale property, with three buildings thereon, was at 814 Scott Street and was known as Plant No. 1. From December 31, 1946, to February 25, 1947, the date of bankruptcy, Independent had no lease in writing on the Ragsdale premises. The other premises, the Klyce property at 921 Rayner Street, leased by Independent consisted of two buildings. The first, known as Plant No. 2, was occupied by Independent under demise in writing dated April 1, 1946, and extending into 1951. A right of re-entry by lessor in event of lessee’s bankruptcy was reserved in this lease. The other building at 921 Rayner Street, known as Plant No. 3, was occupied by the bankrupt as sub-tenant of the American Plating Works under a month-to-month tenancy.
By agreements with the owners of' the ■leased premises, Independent was privileged to remove all electric wiring, switches, transformers, and the like, which it had placed on the property. The machinery installed and used by Independent on the leased premises belonged to it. Upon being notified by the City Inspection Department in December, 1945, that its plant on Scott Street was inadequate and would have to be rewired and put in shape, Inde-, pendent orally contracted with appellant to do the necessary work to that end. Liles, began performance forthwith. Also, he contracted orally to do certain work for Independent at its plants on Rayner Street. All contracts between Independent and Liles were oral except an ante-dated alleged conditional sales agreement and contract, to be hereinafter discussed.
The work on the No. 3 Plant on Rayner Street consisted in rewiring machines which had been moved there from the plant on Scott Street. This work was completed before December 6, 1946. On December 13th of that year, Independent paid Liles in full for all labor and materials furnished by him up to December 6, 1946. Liles continued his work at the Scott Street plant until two days before Independent’s voluntary bankruptcy. Work of no consequence was done by Liles in Plant No. 2 on the Klyce property.
Independent had executed a $100,000 promissory note, dated January 9, 1946, payable to the Union Planters National Bank and secured by chattel trust deed on its machinery and equipment. This note and security were later assigned to Arnold and Walter Klyce. The bankrupt being indebted to them in an amount in excess of $95,000, the Referee in Bankruptcy confirmed on April 21, 1947, a public sale to the Klyces of the dies, jigs and fixtures-located in Plant No. 1, certain machinery and equipment at Plant No. 3 listed on the trustee’s inventory, and the machinery and equipment in Plant No. 1, with the exception of certain items listed on that inventory. The consideration recited, in the Referee’s order was $95,000; and it was provided therein that the purchasers should pay in cash to the trustee sums equal in amount to any liens against the property which should be finally proved and allowed in the bankruptcy cause.
On the same date, April 21, 1947, appellant filed a petition for reclamation and for enforcement of alleged liens for labor and materials. He averred that, on September 2, 1946, he had entered into a contract with the bankrupt- to furnish labor and material to rewire its plants; that the property at 814 Scott Street was owned by Mrs. Banks and Mrs. Ragsdale, and the property at 921 Rayner Street was owned by Mrs. Elise Klyce and Mrs. Mary Klyce; and that he was informed that the bankrupt was oc-' cupying these properties under a month-to-month oral lease. The petitioner alleged further that, by the same conditional sales contract dated September 2, 1946, preserved in the form of an attached memorandum letter, he retained title to the materials furnished by him to the bankrupt. He asserted; moreover, a lien by virtue of section 7914 of the official Code of Tennessee, hereinafter quoted.
After praying for service, for an answer by the trustee, and for a show cause order, he prayed for the right to enter upon the premises and reclaim and take possession of all materials theretofore furnished by him and used in the work performed on the contract, for the purpose of “advertising and selling same” under the “Tennessee Conditional Sales Statute [Code, § 7286 et seq.]”, the proceeds to be applied “in the reduction of the costs and purchase price of. said materials.” He prayed further for the declaration and enforcement of a lien against all machinery and equipment listed in attached exhibits. - - Most of the machinery and equipment described was included in, the aforementioned property sold at public auction to the Klyces. In an amended petition, filed in May, 1947, he prayed that, pursuant to sections 7920 and 7921 of the Code of Tennessee, he be granted the same relief asked for in the original petition.
On May 24, 1947, the Trustee in Bankruptcy filed exceptions to appellant’s petition for. reclamation and for enforcement of his alleged lien. The trustee denied’ that the alleged contract of September 2, 1946, was a valid conditional sales contract; and averred that the document was not actually executed until within ten days prior to the filing of the petition in bankruptcy, that the purported contract was prepared, executed and ante-dated in a fraudulent effort by appellant to claim retention of title to materials already furnished, and that “the purported contract is invalid insofar as. it purports to retain title to materials furnished as security for labor and services performed.” The contract was further attacked as invalid in failing to describe accurately the property to which title is stated to be retained. The exceptions of the trustee, moreover, denied that appellant is entitled to a lien by virtue of section 7914 of the Code of Tennessee, or any other statute, or by virtue of the common law.
Upon the hearing before the Referee, Clement, president of the company, testified that the letter claimed to be a conditional sales contract' was executed, not upon the date appearing on its face — September 2, 1946 — but was in fact executed, to, the best of his recollection,' on February IS, 1947. The appellant admitted that the letter was ante-dated, and did not deny that it was executed shortly before the bankruptcy. The letter in question reads, as follows: “Mr. J. W. Clement: We propose to furnish the labor and materials to rewire plant located at 814 Scott Avenue, also No. 3 building, and Plant No. 2, located at 921 Rayner, as follows: Labor at rate of, electricians, three dollars per hour, helper, one dollar and a half; material, at the rate of cost plus forty per cent;- all wiring materials, including wire conduit, switches, motor controls and transformers, to remain the property of the Liles Electric Company until the work is completed, and fully paid for.” The letter was signed, ■“Liles Electric Company Glenn ■ Liles (Owner.)”; and was undersigned: “Accepted by Independent Tool and Machine Company. J. W. Clement, president.”
There can be no doubt that the Referee, confirmed by the District Judge, was correct in holding this ante-dated letter invalid as a conditional sales contract. Indeed, appellant does not press upon us that this was erroneous; but bases his appeal upon alleged error in the refusal of the District Court to apply in his behalf the mechanics’ and furnishers’ lien laws of Tennessee as he construes them.
.Ill his original petition, appellant based his right to a lien upon section 7914 of the official'Code of Tennessee, which provides: “There shall be a lien upon any lot of ground or tract of land upon which a house .or structure has been erected, demolished, altered, or repaired, or for fixtures or ma'chinery furnished or erected, or improvements made, by special contract with the owner or his agent, in favor of the contractor, mechanic, laborer, founder or machinist, who does the work or any part of the work, or furnishes the materials or any part of the materials, or puts thereon any fixtures,, machinery, or material, and in favor of all persons who do any portion of the work or furnish any portion of the materials for such building.” It should be noted that, in the preceding section, 7913, of the Tennessee Code, the word “owner” is thus defined: “ ‘Owner’ includes the owner in fee of real property, or of a less estate therein, a lessee for a term of years, a vendee in possession under a contract for the purchase of real property, and any person having any right, title or interest, legal or equitable, in real property, which may be sold under process.”
The appellant contends that machines, such as heavy transformers, switches, conduits, bolted down and installed, and wiring installed, “in leased property by a tenant,” are “chattels real and therefore an interest in real property within the meaning of Sections 7913, 7914, 7916 and 7917 of the Tennessee Code” and are under such statutes subject to “mechanics lien for labor performed thereon and material added thereto at tenant’s request.” •
The main authority upon which appellant depends is Burr v. Graves, 72 Tenn. 552, decided by the state Supreme Court in 1880. In that case, the complainants, who had erected a cotton-cleaning plant for a lessee upon land in lessee’s possession under an oral lease, filed their bill in chancery fifteen days before the expiration of one year of lessee’s term to enforce a mechanics’ lien “on the leasehold interest, building, machinery, and fixtures.” In affirming a decree of the chancellor in favor of complainants, the Supreme Court of Tennessee said, inter alia: “The complainants were, under the original contract, entitled to a lien as mechanics for the debt thereby created, on the leasehold interest in the land, the building, engines, machinery and fixtures furnished and erected, for twelve months from the completion of the work: Code, sec. 1981, [contained in sec. 7914 of the present Williams’ Code] ; Alley v. La-nier, 41 Tenn. 540. The lease, even if void as a letting for three years, because not in writing, was good for one year, and the bill was filed before the expiration of the year.”
It would seem from the. opinion that machinery was not regarded by the court as “fixtures”, and that the lien could be imposed upon the machinery only if considered to be an “improvement”. But, under section 7913 of the existing Code, which was not in existence in 1880, “improvement” is now defined as “any building, structure, erection, alteration, demolition, excavation, or any part thereof, including ornamental shrubbery, on real property for its permanent benefit.” [Emphasis supplied.] Upon the facts of the instant case, the movable machinery could not be deemed a “permanent benefit”.
When Burr v. Graves was decided, although the law in Tennessee was that a leasehold interest is subject to mechanics’ lien, (Alley & Bush v. Lanier, 41 Tenn. 540), the qualification to the rule had not been expressed, which now is found in section 7913, that the leasehold must be “for a term of years”, or one “which may be sold under process”. Construing Burr v. Graves most favorably to appellant’s position, that authority does not now support the argument that mechanics’ or furnishers’ liens embrace trade fixtures owned by lessee, situated upon property in possession of lessee under a month-to-month tenancy.
It is true that, in Steger, Assignees, v. Arctic Refrigerating Company, 89 Tenn. 453, 14 S.W. 1087, 11 L.R.A. 580, cited by appellant, the court quotes with approval the language of Judge Cooper in Burr v. Graves, supra, that the “lien is favored by the Legislature, and should not be hazarded by dangerous niceties in its enforcement”; and reaffirms the doctrine that liens created for the benefit of those who have furnished labor or material for the erection of buildings or machinery should be liberally construed in favor of the lienor. Liberal construction, however, should not be over-strained. The highest Tennessee court has said: “The liberal construction spoken of in our cases refers to the subject-matter, that is, the property to which the lien attaches and against which it may be enforced; the rule is not applied to draw in those excluded from the benefit of the statute. Thompson v. Baxter, 92 Tenn. [305], 307, 21 S.W. 668, 36 Am.St.Rep. 85;, [Chickasaw] Hotel Company v. [C. B. Barker] Construction Co., 135 Tenn. 305, 186 S.W. 115, L.R.A.1916F, 106. The Court cannot extend the benefit of the Statute to either persons or objects not embraced in its terms, and in determining the breadth and scope of the Act we must be guided by both the words and context.” Pillow v. Kelly, 155 Tenn. 597, 599, 296. S.W. 11, 12.
In Tuec Co. v. McKnight & Merz, 140 Tenn. 67, 69, 203 S.W. 238, holding a theater’s vacuum cleaning installation to be subject to mechanics’ lien, parts of the mechanism were permanently attached to the building and other parts were not but were loose and removable. The entire vacuum cleaning installation was held subject to the lien, it being “perfectly plain that a. vacuum cleaner, under modern conditions, is material used in the construction of the theater.” Halley v. Alloway, 78 Tenn. 523, was cited by the court as authority. In both the Steger case, supra, and the Tuec case, the improvements upon which the liens were held enforceable became a permanent part of the buildings in which they were placed. In the case at bar, the machinery upon which the lien is sought was not permanently attached to the building and was removable by the lessee at will. In Bank & Trust Co. v. Fred W. Wolf Co., 114 Tenn. 255, 265, 86 S.W. 310, 312, the Tennessee court thus quoted from its earlier opinion in Johnson v. Patterson, 81 Tenn. 626: “Modern authorities all agree that the most controlling test of the question whether property connected with real estate is to be deemed realty or a mere chattel, removable at the pleasure of the owner, is the intention and purpose of the erection.” In Hickman v. Booth, 131 Tenn. 32, 34, 173 S.W. 438, Mr. Justice (later Chief Justice) Green said: “In Tennessee only those chattels are fixtures which are so attached to the freehold that, from the intention of the parties and the uses to which they are put, they are presumed to be permanently annexed, or a removal thereof would cause serious injury to the freehold. {Citing authorities.] The usual test is said to be the intention with which a chattel is connected with realty. If it is intended to be removable at the pleasure of the owner, it is not a fixture.” Cf. Blue v. Gunn, 114 Tenn. 414, 425, 87 S.W. 408, 69 L.R.A. 892, 108 Am.St.Rep. 912, 4 Ann.Cas. 1157. By this test, the machinery involved in this case was certainly not a fixture.
The old case of Grewar v. Alloway, 3 Cooper Tenn.Ch. 584, adds no force to appellant’s argument. There, the issue was between the owner of a theater and the mechanic who had installed therein chairs, balusters, railings, rollers and pulleys for shifting scenery, and the like. The articles furnished were for permanent use in the building. The court used the following language to distinguish such a- case from one which involved trade fixtures owned by a lessee: “Such fixtures, like other trade fixtures, are, as between landlord and tenant, removable by the tenant, but, as between the owner and the mechanic, are subject to the mechanic’s lien law.” [Emphasis supplied.]
The following cases cited by appellee bear some weight against the contention of appellant; but, in our view of the case, are not crucial. Hart v. Appalachian Washed Coal Co., 139 Tenn. 204, 201 S.W. 515; Degraffenreid v. Scruggs, 23 Tenn. 451, 40 Am.Dec. 658; Allen v. Brown, 14 Tenn. App. 405, 408.
Of all the Tennessee decisions which have been considered, we find Truxall & Dummeyer v. Williams & McCallie, 83 Tenn. 427, 428, most apposite. In that case, a mechanic, employed by the owner of a portable engine, boiler and appurtenances to take the same from one place and erect them temporarily upon the land of another, was held not to be entitled under the then existing statutes of Tennessee to a lien, either upon the land or upon the machinery. In denying the right of the mechanic to a lien, the Supreme Court said : “But here is no ownership of a term, or any interest in the land whatever, to be subjected to complainant’s claim, but only a permission to occupy with portable machinery another’s land for the purpose of sawing his timber. The party owning the machinery could remove it at any time he chose. It is not a fixture erected by the owner for the beneficial use of his own land, as contemplated in the first section of the statute. It is only the temporary occupation of a party’s land by the personal property of the owner, the property having no permanent connection whatever with his freehold. The only legal question is, then, whether a mechanics’ lien exists on mere personalty, as such, of another while being temporarily used on a third party’s land, by the permission of the land owner. The statute has not given such a lien, and we are not authorized to say it exists.”
In the present controversy, likewise, we find that the statute has given no such lien as is claimed by appellant. There is no material difference between section 7914 and the operative Code section 2745 with which the Tennessee court was -concerned in the Truxpd case, supra. It is true that, in that case, there had been no lease 'of any kind, but merely a temporary permissive right to put and operate a mill and machinery on land for the phrpose of sawing timber, the owner of the land to receive one-half of the timber sawed; while, in the present case, the bankrupt was in possession of the property under a month-to-month tenancy. Inasmuch as this was not a lease for a term of years nor an interese which could be sold under process, the factual difference in the two cases does not distinguish them. The complainant here is not seeking a lien against a leasehold estate, but rather, as in the Truxall case, against machinery temporarily placed upon the leasehold.
In view of our conclusion that appellant has not established a valid lien under Tennessee law, it is unnecessary to discuss his secondary argument that the Tennessee mechanics’ and furnishers’ lien statutes give him priority over the lien of the chattel trust deed involved herein.
One issue remains. The District Judge sustained the Referee in Bankruptcy in reducing the unsecured claim of appellant by the sum of $1,377.37, constituting overtime improperly included in the claim. It was held that the cost of labor to be charged against the bankrupt in its cost plus contract with appellant had been' definitely fixed and was evidenced in writing by the contract letter of February 15, 1947, antedated September 2, 1946. The rate therein provided was three dollars per hour for electricians and one-dollar-and-a-half per hour for helpers. Appellant insists that it was erroneously refused the right to prove that union employees receive extra compensation for work in excess of forty hours in a single workweek and receive, also, extra compensation for work performed on Saturdays, Sundays and at night. Appellant refers to Faulkner v. Ramsey, 178 Tenn. 370, 158 S.W.2d 710, and Earle v. Illinois Cent. R. Co., 25 Tenn.App. 660, 167 S.W.2d 15.
From our reading of the record and consideration of the evidence we find nothing substantial to justify a conclusion that Independent liad knowledge that appellant was paying over-time to employees in excess of the contract rate and charging such payments to it. In the absence of such proof, we are of opinion that the specified contract for labor was binding on the parties ; and that it was - not erroneous to refuse to receive the proffered evidence as to custom. In Sweeney v. Thomason, 77 Tenn. 359, 363, 364, 42 Am.Rep. 676, the Tennessee court found no reason for holding, in relation to a contract for the supplying of brick, that the purchaser had agreed to pay anything more than was expressed in the plain' language of the contract, or that he understood the contract “to mean anything'different from the plain and natural import of the language.” We think that in the instant case, likewise, there should be no departure from the agreement evidenced in writing.
The order of the District Court from which this appeal was taken is affirmed.
“Section 7913. Definitions.— [Blaterial excerpts.] ‘Improvement’ means any building, structure, erection, alteration, demolition, excavation, or any part there of, including ornamental shrubbery, on real property for its permanent benefit. * * * [“Owner” as defined in this section has been quoted heretofore in the body of this opinion.] * * * ‘Real property’ includes real estate, lands, tenements and hereditaments, corporeal and incorporeal, and fixtures.”
Section 7914. [Heretofore .quoted in full in body of opinion.]
“Section 7916. Extent of liens.- — Sucb lien shall extend to, and only to, the owner’s right, title or interest in the real property and improvements, existing at the time of the visible commencement of operation or thereafter acquired. If any part of the real property or improvements subject to such lien be removed by the owner or any other person at any time before discharge thereof, such removal shall not affect the rights of the lienor either in respect of the real property and improvements, or the part so removed.”
“Section 7917. Comprehension and duration of lien. — The lien shall include the building, structure, fixture, or improvement as well as the lot or land, and continue for one year after the work is finished or materials are furnished, and until the final decision of any suit that may be brought within that time for its en- . forcement.”
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_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 v. BRAWER.
No. 10884.
United States Court of Appeals Third Circuit.
Sept. 22, 1953.
Alford Brawer, pro se.
Grover C. Richman, Jr., Newark, N. J., and John R. Everitt, South Amboy, N. J., for appellee.
Before MARIS, STALEY and HASTIE, Circuit Judges.
PER CURIAM.
This memorandum subsequent is explanatory of this court’s order entered on July 28, 1953 denying rehearing after we had affirmed petitioner’s conviction of a crime against the United States. We make this explanation because a communication from the petitioner, now a prisoner without counsel, reveals a misunderstanding of the factual and legal situation with which this court was confronted in connection with one matter of which he complains.
On his appeal Brawer urged that one of the jurors who tried him was biased, that circumstances indicating bias were brought to the attention of the trial judge and that no sufficient corrective action was taken. We disposed of this contention by saying that we were able to find nothing about any such occurrences in the record. But in seeking rehearing, appellant urged that he had reasonably relied upon this court to discover and review all that happened in the District Court relevant to any error alleged by him.
Actually this court in connection with this appeal ordered up the entire record of the proceedings in the District Court. We decided the appeal upon what was authoritatively certified to us as the complete record. Orderly procedure dictates that we thus restrict our review to the record.
If appellant has a continuing complaint that something prejudicial occurred during the course of his trial but was not recorded, then he must in some appropriate manner prove what happened. Procedurally this can be done in the District Court by filing a motion challenging the validity of his conviction and sentence as authorized by Section 2255 of Title 28 of the United States Code and by offering proof of any matters not of record properly alleged in support of such a motion. Such proof and the findings of the District Court predicated thereon would be reviewable in this court. Thus, if the appellant believes that any of his fundamental rights have been violated in the matter of the juror, there is a way open to him to establish the facts and to have his complaint adjudicated and reviewed upon the established facts.
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
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "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.
TOWN PARK HOTEL CORPORATION, Petitioner-Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
No. 71-1055.
United States Court of Appeals, Sixth Circuit.
Aug. 10, 1971.
Wayne C. Marsh, Memphis, Tenn., for petitioner-appellant; Charles M. Collins, Memphis, Tenn., on brief.
Jane Edmisten, Atty., Tax. Div., Dept. of Justice, Washington, D. C., for respondent-appellee; Johnnie M. Walters, Asst. Atty. Gen., Meyer Rothwacks and Thomas L. Stapleton, Attys., Tax Div., Dept. of Justice, Washington, D. C., on brief.
Before BROOKS, MILLER and KENT, Circuit Judges.
PER CURIAM.
The issue on appeal and before the Tax Court is whether the appellant realized a gain when it withdrew in 1964 a deposit which had been made by the state of Tennessee in a condemnation proceeding in Tennessee State court involving a taking of the plaintiff’s property. The amount deposited by the state and withdrawn by the taxpayer in the year 1964 was the sum of $722,476.00. The Commissioner determined a deficiency in the taxpayer’s federal income tax for the fiscal year ended June 30, 1965 in the amount of $112,223.74. He determined that the taxpayer had not reinvested the proceeds received on the condemnation of its property within the time limit as prescribed by section 1033(a)(3)(B) (i), I.R.C.1954, and therefore that the taxpayer was not entitled to treat the gain thereon as one entitled to nonrecognition treatment. The nonrecognition feature of section 1033(a)(3)(B) in effect at the time here involved was that any taxpayer whose property is involuntarily converted may limit the recognition for tax purposes of any gain realized by such conversion if he replaces such property with other property similar or related in use within a period of one year “after the close of the first taxable year in which any part of the gain upon the conversion is realized.”
In this ease it is conceded that the taxpayer did not reinvest the proceeds derived from the withdrawal of the condemnation deposit within the one-year period. Its insistence is that the gain was not realized during the year that the deposit was withdrawn but was realized when the amount of compensation that it was to receive as a result of the condemnation was finally determined in a later year in the condemnation proceeding and title to the property was vested by the court in the condemning authority.
In upholding the findings and conclusions of the Commissioner, the Tax Court applied the “claim of right” doctrine first enunciated by the Supreme Court in North American Oil Consolidated v. Burnet, 286 U.S. 417, 424, 52 S.Ct. 613, 615, 76 L.Ed. 1197 (1932). In that case the doctrine was stated by Mr. Justice Brandeis as follows:
If a taxpayer receives earnings under a claim of right and without restriction as to its disposition, he has received income which he is required to return, even though it may still be claimed that he is not entitled to retain the money, and even though he may still be adjudged liable to restore its equivalent.
The Tax Court analyzed the condemnation procedure in Tennessee (Tenn.Code Ann. [1969 Cum.Supp.] Sections 23-1526 through 23-1541), and was of the opinion that when a deposit is made by the condemning authority under the Tennessee procedure the taxpayer upon withdrawing the deposit obtained the unrestricted use of the funds under a claim of right. The Court was of the view that when the deposit was made in the present taxpayer’s case and an order of condemnation entered, the property was thereby appropriated to the use of the state and what remained in the taxpayer was the bare legal title to the property.
Having reviewed the record and the applicable authorities, we are of the opinion that the Tax Court was correct in applying the claim of right doctrine as enunciated in North American Oil Consolidated v. Burnet, swpra. It follows that it was correct in its ultimate determination and finding that the taxpayer was not entitled to the benefit of the nonrecognition provisions of the Act in effect during the times here involved.
It is therefore ordered and adjudged that the decision of the Tax Court entered on September 14, 1970 be and the same is hereby affirmed on the basis of its memorandum opinion as reported in 29 T.C.M. 1150.
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:
|
sc_issue_1
|
35
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue of the Court's decision. Determine the issue of the case on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis.
UNITED STATES v. IBARRA
No. 90-1713.
Decided October 15, 1991
Per Curiam.
The United States District Court for the District of Wyoming ordered that certain evidence which the Government proposed to use in respondent’s pending criminal trial be suppressed. The Government appealed the order to the Court of Appeals for the Tenth Circuit, but that court dismissed the Government’s appeal. It held that the 30-day period in which to file an appeal began to run on the date of the District Court’s original suppression order, rather than on the date the District Court denied the Government’s motion for reconsideration. 920 F. 2d 702 (1990). We grant the Government’s petition for certiorari and vacate the judgment of the Court of Appeals.
h—
Respondent was indicted for possession of cocaine with intent to distribute. The circumstances leading to the indictment are largely uncontested. Law enforcement officers stopped respondent’s car for a suspected operating violation. The officers questioned respondent and asked for permission to search the car. Respondent granted the request and a brief search was conducted but no cocaine was identified or seized. However, noting that neither respondent nor his passenger had a valid operator’s license, the officers impounded the car and transported respondent and his passenger to a Western Union office. The officers then went to the towing service lot and searched the car a second time. They found cocaine in the trunk. Respondent filed a pretrial motion to suppress the evidence found in the second search. Among the theories on which the Government originally contested the motion was that the second search had been conducted pursuant to respondent’s continuing consent. However, before the District Court ruled on the suppression motion, the Government abandoned the continuing consent theory in papers filed with the court, citing a lack of legal support for its position. On November 15, 1989, after an evidentiary hearing, the District Court granted the motion to suppress and noted in its order the Government’s abandonment of the continuing consent theory. 725 F. Supp. 1195, 1200 (Wyo. 1989). On December 13,1989, the Government filed with the District Court a “Motion for Reconsideration of Suppression Order.” The sole basis for the Government’s motion was its reassertion of the continuing consent theory. On January 3, 1990, the District Court denied the motion. The Government noticed its appeal on January 30, 1990, less than 30 days after the denial of the motion for reconsideration but 76 days after the initial suppression order.
A divided panel of the Tenth Circuit dismissed the appeal as untimely, holding that the Government’s motion to reconsider did not “toll” the 30-day period to appeal which began to run on the date of the initial order. In the course of its opinion, the Court of Appeals rejected the Government’s argument that this Court’s decisions in United States v. Healy, 376 U. S. 75 (1964), and United States v. Dieter, 429 U. S. 6 (1976) (per curiam), controlled the decision.
In United States v. Healy, supra, we said:
“The question, therefore, is simply whether in a criminal case a timely petition for rehearing by the Government filed within the permissible time for appeal renders the judgment not final for purposes of appeal until the Court disposes of the petition — in other words whether in such circumstances the 30-day period . . . begins to run from the date of entry of judgment or the denial of the petition for rehearing.” 376 U. S., at 77-78.
The Court answered this question by saying that under the “well-established rule in civil cases,” id., at 78, the 30-day period begins with the denial of the petition for rehearing and by further observing that this Court’s consistent practice had been to treat petitions for rehearing as having the same effect in criminal cases. Id., at 78-79. More than 12 years later, we decided United States v. Dieter, supra (per curiam). There, too, the Court of Appeals for the Tenth Circuit dismissed as untimely the Government’s appeal from a District Court’s order dismissing an indictment. Although the Government’s notice of appeal had been filed within 30 days of a District Court order denying its “Motion to Set Aside Order of Dismissal,” it was not filed within 30 days after the order of dismissal itself. The Court of Appeals held that our decision in Healy, supra, governed only in cases of claimed errors of law, whereas the basis of the Government’s motion for reconsideration in Dieter was mistake or inadvertence.
We vacated and remanded the decision of the Court of Appeals, saying that it “misconceived the basis of our decision in Healy. We noted there that the consistent practice in civil and criminal cases alike has been to treat timely petitions for rehearing as rendering the original judgment non-final for purposes of appeal for as long as the petition is pending.” 429 U. S., at 8. We pointed out the presumed benefits of this rule — district courts are given the opportunity to correct their own alleged errors, and allowing them to do so prevents unnecessary burdens being placed on the courts of appeals. We concluded that “the Court of Appeals’ law/ fact distinction — assuming such a distinction can be clearly drawn for these purposes — finds no support in Healy.” Ibid.
The Court of Appeals in the present case nonetheless determined that the 30-day period was not affected by the Government’s motion to reconsider. It instead created a special rule for motions that seek reconsideration of previously disavowed theories because it concluded that suspending the time to appeal upon such motions does not further the goals described in Dieter. Because such motions do not serve to permit the district court to reconsider matters initially overlooked, the Court of Appeals thought that delaying the appellate process pending resolution of such motions is unlikely to contribute to judicial efficiency. 920 F. 2d, at 706. It also noted that Government motions to reconsider a position conceded during appellate litigation are viewed with disfavor when filed before an appellate tribunal. Ibid. (citing United States v. Smith, 781 F. 2d 184 (CA10 1986)).
II
We think the Court of Appeals has misread our decisions in Healy, supra, and Dieter, supra. The first of these decisions established that a motion for rehearing in a criminal case, like a motion for rehearing in a civil case, renders an otherwise final decision of a district court not final until it decides the petition for rehearing. In Dieter, we rejected an effort to carve out exceptions to this general rule in the case of petitions for rehearing which do not assert an alleged error of law. We think that the Court of Appeals' present effort to carve out a different exception to the general rule laid down in Healy must likewise be rejected.
It may be that motions to reconsider based on previously abandoned grounds are not apt to fare well either in the district court or on appeal to the court of appeals. But if such a judgment as to the merits were allowed to play a part in deciding the time in which a denial of the motion may be appealed, it is difficult to see why a similar merits analysis should not be undertaken for all motions for reconsideration. The result would be, as the dissenting judge below pointed out, to "graf[t] a merits inquiry onto what should be a bright-line jurisdictional inquiry." 920 F. 2d, at 710 (Baldock, J., dissenting).
Undoubtedly some motions for reconsideration are so totally lacking in merit that the virtues of the rule established in Healy are not realized by delaying the 30-day period. If it were possible to pick them out in advance, it would be better if litigants pursuing such motions were made to go sooner, rather than later, on their fruitless way to the appellate court. But there is no certain way of deciding in advance which motions for reconsideration have the requisite degree of merit, and which do not. Given this, it is far better that all such motions be subsumed under one general rule — the rule laid down in Healy. Without a clear general rule litigants would be required to guess at their peril the date on which the time to appeal commences to run. Prudent attorneys would be encouraged to file notices of appeal from orders of the district court, even though the latter court is in the course of considering a motion for rehearing of the order. Cf. United States v. Ladson, 774 F. 2d 436, 438-439, n. 3 (CA11 1985). Less prudent attorneys would find themselves litigating in the courts of appeals whether a motion for reconsideration filed in the district court had sufficient potential merit to justify the litigant’s delay in pursuing appellate review. Neither development would be desirable.
The Court of Appeals’ opinion can be read to hold that because the Government did not initially urge the argument which it made in its motion for reconsideration, that motion was not a “true” motion for reconsideration which would extend the time for appeal. But this method of analysis, too, would break down into subcategories the more general category of “motions for reconsideration” described in our previous opinions. Here, the Government’s motion before the District Court sought to “ ‘reconsider [a] question decided in the case’ in order to effect an ‘alteration of the rights adjudicated.’” Dieter, 429 U. S., at 8-9 (quoting Department of Banking of Neb. v. Pink, 317 U. S. 264, 266 (1942)). That is sufficient under Healy and Dieter.
The petition for certiorari is granted, respondent’s motion to proceed in forma pauperis is granted, the judgment of the Court of Appeals is vacated, and the case is remanded to that court for further proceedings.
It is so ordered.
Federal Rule of Appellate Procedure 4(b) provides, inter alia:
“When an appeal by the government is authorized by statute, the notice of appeal shall be filed in the district court within 30 days after the entry of (i) the judgment or order appealed from or (ii) a notice of appeal by any defendant.”
Statutory authorization for the United States to appeal a suppression order is found at 18 U. S. C. §3731:
“An appeal by the United States shall lie to a court of appeals from a decision or order of a district courts [sic] suppressing or excluding evidence.
“The appeal in all such cases shall be taken within thirty days after the decision, judgment or order has been rendered and shall be diligently prosecuted.”
The Court of Appeals’ decision discusses the issue as a matter of whether the motion for reconsideration “tolled” the 30-day period that, by assumption, began to run with the District Court’s first decision. We believe the issue is better described as whether the 30-day period began to run on the date of the first order or on the date of the order denying the motion for reconsideration, rather than as a matter of tolling. Principles of equitable tolling usually dictate that when a time bar has been suspended and then begins to run again upon a later event, the time remaining on the clock is calculated by subtracting from the full limitations period whatever time ran before the clock was stopped. See Cada v. Baxter Healthcare Corp., 920 F. 2d 446 (CA7 1990) (discussing principles of equitable tolling). Thus, in the present case for example, a motion to reconsider filed after 20 days, if it tolled the 30-day period to appeal, would leave at most only 10 days to appeal once the reconsideration motion was decided. However, we previously made clear that would-be appellants are entitled to the full 30 days after a motion to reconsider has been decided. United States v. Dieter, 429 U. S. 6, 7-8 (1976) (per curiam) (“[T]he 30-day limitation period runs from the denial of a timely petition .. . rather than from the date of the order itself”).
Two other concerns that animate the Tenth Circuit’s decision are simply inapposite to the present case. First, there is no assertion that the Government’s abandonment and reassertion of the consensual search theory was done in bad faith. We thus have no occasion to consider whether instances of bad faith might require a different result'. See United States v. Healy, 376 U. S. 75, 80, n. 4 (1964). Second, only a single motion for reconsideration was filed. We thus also have no occasion to consider whether it is appropriate to refuse to extend the time to appeal in cases in which successive motions for reconsideration are submitted. See United States v. Marsh, 700 F. 2d 1322 (CA10 1983).
Question: What is the issue of the decision?
01. involuntary confession
02. habeas corpus
03. plea bargaining: the constitutionality of and/or the circumstances of its exercise
04. retroactivity (of newly announced or newly enacted constitutional or statutory rights)
05. search and seizure (other than as pertains to vehicles or Crime Control Act)
06. search and seizure, vehicles
07. search and seizure, Crime Control Act
08. contempt of court or congress
09. self-incrimination (other than as pertains to Miranda or immunity from prosecution)
10. Miranda warnings
11. self-incrimination, immunity from prosecution
12. right to counsel (cf. indigents appointment of counsel or inadequate representation)
13. cruel and unusual punishment, death penalty (cf. extra legal jury influence, death penalty)
14. cruel and unusual punishment, non-death penalty (cf. liability, civil rights acts)
15. line-up
16. discovery and inspection (in the context of criminal litigation only, otherwise Freedom of Information Act and related federal or state statutes or regulations)
17. double jeopardy
18. ex post facto (state)
19. extra-legal jury influences: miscellaneous
20. extra-legal jury influences: prejudicial statements or evidence
21. extra-legal jury influences: contact with jurors outside courtroom
22. extra-legal jury influences: jury instructions (not necessarily in criminal cases)
23. extra-legal jury influences: voir dire (not necessarily a criminal case)
24. extra-legal jury influences: prison garb or appearance
25. extra-legal jury influences: jurors and death penalty (cf. cruel and unusual punishment)
26. extra-legal jury influences: pretrial publicity
27. confrontation (right to confront accuser, call and cross-examine witnesses)
28. subconstitutional fair procedure: confession of error
29. subconstitutional fair procedure: conspiracy (cf. Federal Rules of Criminal Procedure: conspiracy)
30. subconstitutional fair procedure: entrapment
31. subconstitutional fair procedure: exhaustion of remedies
32. subconstitutional fair procedure: fugitive from justice
33. subconstitutional fair procedure: presentation, admissibility, or sufficiency of evidence (not necessarily a criminal case)
34. subconstitutional fair procedure: stay of execution
35. subconstitutional fair procedure: timeliness
36. subconstitutional fair procedure: miscellaneous
37. Federal Rules of Criminal Procedure
38. statutory construction of criminal laws: assault
39. statutory construction of criminal laws: bank robbery
40. statutory construction of criminal laws: conspiracy (cf. subconstitutional fair procedure: conspiracy)
41. statutory construction of criminal laws: escape from custody
42. statutory construction of criminal laws: false statements (cf. statutory construction of criminal laws: perjury)
43. statutory construction of criminal laws: financial (other than in fraud or internal revenue)
44. statutory construction of criminal laws: firearms
45. statutory construction of criminal laws: fraud
46. statutory construction of criminal laws: gambling
47. statutory construction of criminal laws: Hobbs Act; i.e., 18 USC 1951
48. statutory construction of criminal laws: immigration (cf. immigration and naturalization)
49. statutory construction of criminal laws: internal revenue (cf. Federal Taxation)
50. statutory construction of criminal laws: Mann Act and related statutes
51. statutory construction of criminal laws: narcotics includes regulation and prohibition of alcohol
52. statutory construction of criminal laws: obstruction of justice
53. statutory construction of criminal laws: perjury (other than as pertains to statutory construction of criminal laws: false statements)
54. statutory construction of criminal laws: Travel Act, 18 USC 1952
55. statutory construction of criminal laws: war crimes
56. statutory construction of criminal laws: sentencing guidelines
57. statutory construction of criminal laws: miscellaneous
58. jury trial (right to, as distinct from extra-legal jury influences)
59. speedy trial
60. miscellaneous criminal procedure (cf. due process, prisoners' rights, comity: criminal procedure)
Answer:
|
songer_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.
Emmeline LEWIS, for herself, all teachers employed in the San Jacinto Junior College, Harris County, Texas, etc., Plaintiff-Appellant, v. Thomas M. SPENCER, Individually and in his official capacity as President of the San Jacinto Junior College, Harris County, Texas, etc., et al., Defendants-Appellees.
No. 73-2992
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
Feb. 20, 1974.
Larry Watts, Houston, Tex., for plaintiff-appellant.
B. Jeff Crane, Jr., Houston, Tex., for defendants-appellees.
Before BELL, SIMPSON and MORGAN, Circuit Judges.
Rule 18, 5 Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I.
PER CURIAM:
Following the remand directed by our opinion in the former appeal of this matter, Lewis v. Spencer et al., 5 Cir. 1972, 468 F.2d 553, the district court held an evidentiary hearing and entered its opinion order finding adversely to the plaintiff-appellant’s contentions as to the factual issues directed to be fried by our remand. Those issues were (1) whether or not the action of the Board of Regents of San Jacinto Junior College in not renewing Ms. Lewis’ teaching contract was taken in retaliation for her exercise of First Amendment rights and her rights of freedom of association; and (2) whether the adoption of the policy without a recognition therein of plaintiff and her husband’s unique situation (viz, recently married and the only couple in the school to whom the policy was applicable) through such a device as a grandfather clause or prospective application, would make impermissible as applied an otherwise constitutionally valid policy.
The trial court’s hearing fully ventilated these issues and his findings of fact settled them, unless we determine that his findings were “clearly erroneous”. Rule 52(a), F.R.Civ.P.; United States v. National Association of Real Estate Boards, 1950, 339 U.S. 485, 495-496, 70 S.Ct. 711, 94 L.Ed. 1007. The task of demonstrating that the findings of a trial court are “clearly erroneous” is a heavy burden indeed. We are satisfied that the plaintiff-appellant has not met that burden on this appeal. Our view is rather that the trial court’s findings were required by the evidence presented, to the extent that we would seriously consider assigning a “clearly erroneous” label if contrary findings had been reached.
Affirmed.
. Reported as Lewis v. Spencer et al., S.D. Texas, 1973, - F.Supp. - decided June 6, 1973.
. Under a Board of Regents policy adopted in March of 1969 requiring that a husband and wife, both teachers, not teach in the same department.
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
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
UNITED STATES v. W. T. RAWLEIGH CO.
No. 546.
Circuit Court of Appeals, Tenth Circuit.
March 31, 1932.
Ralph L. Carr, U. S. Atty., and Charles 3E. Works, Asst. U. S. Atty., both of Denver, Colo., for appellant.
Before PHILLIPS and McDERMOTT, Circuit Judges, and KENNEDY, District Judge.
KENNEDY, District Judge.
This is a libel suit brought under the Food and Drugs Act, 21 USCA §§ 1 to 26 (.Act of Juno 30, M06, 34 Stats. 768). The libel was directed against certain misbranded drugs found in the possession of the appel-lee. An answer was filed in which various exceptions to the libel were set forth hv the appellee in the court below, among which was the following: “Because it does not appear in and from the averments contained in the said Libel that a notice and preliminary hearing by the Department of Agri-cnllure was afforded the claimant prior to-the institution of Ihe libel, pursuant to law in such cases made and provided.”
At the hearing the court sustained said exception, overruled all others, and entered an order dismissing the libel and for a return of the property seized under the warrant. From such order of the District Court the government appeals.
Section 2 of title 21 prohibits the introduction of food or drugs in interstate commerce which are adulterated or misbranded within the scope of tho act. Section 14 provides for tho seizure of such specified food or drugs. Section 11 provides for the examination of specimens of food and drugs in the Bureau of Chemistry for the purpose of determining whether such articles are adulterated or misbranded, and that the Secretary of Agriculture shall give notice to tho party from whom the sample was obtained in the event it is found that there is adulteration or misbranding; and further provides that any parties so notified shall be given an opportunity to be heard, upon which, if it appear that any of the provisions of the act have -been violated by such party, then the Secretary of Agriculture shall certify the facts to the proper United States district attorney for appropriate action in the premises. Section 12 provides that it shall he the duty of each district attorney to whom the Secretary of Agriculture shall report any violation, or to whom any health or food or drug officer or agent of any state, territory, or tho District of Columbia shall present satisfactory evidence of such violation, to cause appropriate proceedings to be commenced and prosecuted for the enforcement of the penalties in such case provided. Section 2 also provides that any one violating the act shall be guilty of a misdemeanor and subjected to certain fines or imprisonment; and section 14 contemplates proceeding against tho offending articles through libel.
It does not appear- from the record in this caso as to how the possession or knowledge of the specimens of alleged misbranded drugs came to the District Attorney upon which the libel is based.
By the order of the trial court sustaining the exception of the appellee upon the ground that no notice had been given or opportunity to be beard under the provisions of section 11 as heretofore referred to, it was held that the libel could not be sustained, which raises the question as to whether or not such notice is necessary from a, jurisdictional standpoint, ■and this is the sole point presented upon this appeal.
It appears that there had been a diversity of opinion upon this point among the District Courts and Circuit Courts of Appeals. The matter came to the attention of the Su* preme Court in the ease of United States v. Morgan, 222 U. S. 274, 32 S. Ct. 81, 56 L. Ed. 198, where some of the cases of the lower courts involving conflict of opinion are eited. In the Morgan Case the high court affirmatively holds that the notice indicated in section 11 is not jurisdictional. The gist of the decision is to the effect that, because under section 12 it is made the duty of the district attorney to institute appropriate proceedings for the enforcement of the penalties prescribed by the act when reports are made to him by the Secretary of Agriculture or by any health, food, or drug officer in any state or territory, which latter reports would manifestly not come through the Secretary of Agriculture, it should not be held that it was the intent of Congress that he should only prosecute where notice had been given in the event that the report had come from the Secretary of Agriculture, but could prosecute without notice where the report had come from the other sources indicated, and that for the reasons stated the preliminary notice could not be held as being a necessary preliminary step to prosecutions for violations of the act ejther by indictment or by libel. Additional reasons are indicated in the opinion which it will not be necessary here to further set forth. The proceeding in the eited ease was in the nature of a criminal prosecution by indictment, while in the case at bar it is by libel, yet we see no distinction to be made in the rule by virtue of these circumstances. We are of the opinion that this decision of the Supreme Court rules this case.
For the reasons stated, the order of the trial court will be reversed, and the case remanded for appropriate action not inconsistent with this opinion, and it will be so ordered.
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
|
songer_respond1_5_3
|
B
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)", specifically "other". Your task is to determine which specific state government agency best describes this litigant.
STATE OF NEW MEXICO, Plaintiff-Appellee, v. Donald T. REGAN, etc., Defendant-Appellant.
No. 83-1981.
United States Court of Appeals, Tenth Circuit.
Oct. 9, 1984.
Paul G. Bardacke, Atty. Gen. of the State of New Mexico (Charlotte Uram, Asst. Atty. Gen., Santa Fe, N.M., Norman S. Thayer and Ronald Segel of Sutin, Thayer & Browne, Albuquerque, N.M., with him on the briefs), for plaintiff-appellee.
John J. McCarthy, Dept, of Justice, Washington, D.C. (Glenn L. Archer, Jr., Asst. Atty. Gen., Michael I. Paup, Ernest J. Brown, David English Carmack, Washington, D.C., with him on the briefs), for defendant-appellant.
Before HOLLOWAY, SETH and BARRETT, Circuit Judges.
BARRETT, Circuit Judge.
This case involves the interplay of two federal statutes, the Mineral Lands Leasing Act of 1920, 30 U.S.C. §§ 181 et seq., and the Crude Oil Windfall Profits Tax Act of 1980, 26 I.R.C. §§ 4986 et seq. The Mineral Lands Leasing Act (Mineral Act) directs the Secretary of the Treasury to pay fifty percent (50%) of all mineral royalties received from federal lands to the states in which the leased federal lands are located. Pursuant to the Crude Oil Windfall Profits Tax Act (COWPTA), however, these same federal royalties are subject to a federal tax. The question is thus raised whether the United States should impose the windfall profits tax on federal royalties before or after it computes the 50% share of the royalties owed to the states.
Donald T. Regan, Secretary of the Treasury of the United States, has taken the position that the states’ shares must be calculated after deducting the windfall profits tax, and has in fact calculated the states’ shares by this method since the passage of COWPTA in 1980. Taking the contrary position, the State of New Mexico brought the present action against Regan in 1981 claiming that the Mineral Act requires payment to the states of 50% of federal royalties undiluted by the windfall profits tax. New Mexico consequently sought to recover 50% of the federal royalties used to pay the windfall profits tax, together with interest, an accounting, declaratory relief, and its attorney fees. The district court granted New Mexico’s motion for summary judgment, awarding completely the state’s requested relief.
Secretary Regan appeals from this decision, asserting that the court’s position is contrary to the intent of Congress in passing COWPTA and the Mineral Act. In addition, he argues that even if the court properly construed the applicable statutes, it erred in awarding the states prejudgment interest on the royalties withheld. Finally, Secretary Regan contends that because this is a suit against the United States to which it has not consented, the district court lacked jurisdiction to entertain New Mexico’s suit. We will begin with an analysis of the jurisdictional issue.
The District Court’s Jurisdiction
It is unclear from the district court’s opinion whether it considered New Mexico’s suit to be an action against the United States. The court did hold, however, that if such were the case the district court nonetheless possessed jurisdiction by virtue of 28 U.S.C. § 1331, 5 U.S.C. §§ 701 et seq. (the Administrative Procedure Act), 28 U.S.C. § 1361 (federal mandamus), and 28 U.S.C. § 2201 (declaratory judgment). According to the court, these statutes granted the United States’ consent to suit in the district court.
As an initial matter, we hold that New Mexico’s suit is indeed an action against the United States. Although Secretary Regan is the nominal defendant in the suit, sovereign immunity is determined not by the party named as the defendant, but by the issues presented and the effect of the judgment. Transwestern Pipeline Co. v. Kerr-McGee Corp., 492 F.2d 878, 884 (10th Cir.1974) cert, dismissed 419 U.S. 1097, 95 S.Ct. 691, 42 L.Ed.2d 689 (1975). If the relief sought against a federal officer in fact operates against the sovereign, then the action must be deemed as one against the sovereign. Hawaii v. Gordon, 373 U.S. 57, 58, 83 S.Ct. 1052, 1052-53, 10 L.Ed.2d 191 (1963).
New Mexico correctly points out that an exception to this general rule is recognized when a suit is brought against a governmental official challenging his or her ultra vires actions. See Larson v. Domestic & Foreign Corp., 337 U.S. 682, 689, 69 S.Ct. 1457, 1461, 93 L.Ed. 1628 (1949). Assuming arguendo that this exception could be properly invoked in the present case, the Supreme Court has rejected its application when “the relief requested cannot be granted by merely ordering the cessation of the conduct complained of but will require affirmative action by the sovereign or the disposition of unquestionably sovereign property.” Id. at 691 n. 11, 69 S.Ct. at 1462 n. 11 (citing North Carolina v. Temple, 134 U.S. 22, 10 S.Ct. 509, 33 L.Ed. 849 (1890)). See also Hawaii v. Gordon, supra. The relief sought by New Mexico would, in our view, require affirmative action by the sovereign or the disposition of sovereign property. New Mexico seeks to change in a significant manner the Secretary’s methods of calculating the windfall tax and state royalties; this change would clearly reduce amounts already collected in the Treasury pursuant to the windfall profits tax and require the payment of substantial sums to New Mexico. Thus, as a practical matter, the “essential nature and effect of the proceeding” is such “that the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration.” Land v. Dollar, 330 U.S. 731, 738, 67 S.Ct. 1009, 1012, 91 L.Ed. 1209 (1947). See also Du-gan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999, 1006, 10 L.Ed.2d 15 (1963); Mine Safety Co. v. Forrestal, 326 U.S. 371, 375, 66 S.Ct. 219, 221, 90 L.Ed. 140 (1945).
Having concluded that New Mexico’s suit is directed against the United States, we must determine whether the United States has consented to such suits in federal district court. See United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941). The district court, as has been mentioned, based its finding of jurisdiction upon 28 U.S.C. § 1331, and the waivers of sovereign immunity found in 5 U.S.C. § 702 (the Administrative Procedures Act), and 28 U.S.C. §§ 1361, 2201 (federal mandamus and declaratory judgment). While 28 U.S.C. § 1331 grants to the district court broad subject matter jurisdiction over all civil actions arising under the Constitution, laws, or treaties of the United States, that section does not include a general waiver of sovereign immunity by the United States. See B.K. Instrument, Inc. v. United States, 715 F.2d 713, 724 (2d Cir.1983). We must therefore look elsewhere in order to examine the extent to which the United States has consented to suit in district court.
Section 702 of the Administrative Procedure Act contains a limited waiver of the United States’ sovereign immunity. That section reads in pertinent part:
A person suffering legal wrong because of agency action ... is entitled to judicial review thereof. An action ... seeking relief other than money damages ... shall not be dismissed ... on the ground that it is against the United States.
Thus, § 702 has been construed as granting the United States’ consent to suit in cases involving agency action, subject however, to the proviso that the action is not one for “money damages.”
New Mexico contends, and the district court held, that the present action is not one for “money damages” and that § 702 thus provides the necessary consent to suit. In reaching this conclusion, the district court reasoned as follows:
The State of New Mexico has requested the specific relief of one-half of those royalties received from crude oil production from federal lands within New Mexico which were used by the United States to pay the windfall profits tax. The fact that the requested relief is for specific monies held by the Treasury does not mean that the requested relief is for money damages. Damages are a sum of money used as substitutionary relief. Such relief is given to the plaintiff to substitute for a suffered loss which may not have been originally a monetary loss. Dobbs, Handbook of the Law of Remedies, 135, (1973). Specific relief, on the other hand, is an attempt to give back to the plaintiff that which he actually lost, not a sum measured by the amount of the loss, but the loss itself. Dobbs, at 135____ This action seeks specific, declaratory and mandamus relief.
New Mexico v. Donald T. Regan, No. 81-452-M Civil, at 6 (D.N.M. June 8, 1983).
We must conclude, however, that the district court failed to ascertain the intent of Congress by engaging in its semantic discussion of the meaning of the word “damages.” Section 702 expressly states: “Nothing herein ... confers authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.” (Emphasis added.) The legislative history supporting § 702 states unequivocally that the provision is to be read in conjunction with other jurisdictional statutes waiving sovereign immunity, and, as an example, points out that the “Tucker Act impliedly forbids relief other than the remedy provided by [that] Act.” H.R. No. 94-1656, 94th Cong. 2d Sess. (1976), 5 U.S.Code Cong, and Admin.News, 6121, 6133. See also American Science & Engineering, Inc. v. Califano, 571 F.2d 58, 63 (1st Cir.1978).
The Tucker Act (codified at 28 U.S.C. §§ 1346, 1491) grants concurrent jurisdiction to the district court and the Claims Court (formerly the Court of Claims) over money claims against the United States not exceeding $10,000. For claims against the United States involving amounts greater than $10,000 founded upon the Constitution, Acts of Congress, executive regulations, or contracts, the Act vests exclusive jurisdiction with the Claims Court. Amalgamated Sugar Co. v. Bergland, 664 F.2d 818, 823 (10th Cir.1981); Laguna Hermosa Corp. v. Martin, 643 F.2d 1376, 1379 (9th Cir.1981); Chelsea Community Hospital v. Michigan Blue Cross, 630 F.2d 1131, 1136 (6th Cir.1980).
Several courts have noted that when the “prime objective” or “essential purpose” of the complaining party is to obtain money from the federal government (in an amount in excess of $10,000), the Claims Court’s exclusive jurisdiction is triggered. See Alamo Navajo School Board, Inc. v. Andrus 664 F.2d 229, 233 (10th Cir.1981) cert, denied, 456 U.S. 963, 102 S.Ct. 2041, 72 L.Ed.2d 487 (1982); B.K Instrument, Inc. v. United States, supra, 715 F.2d at 727; Bakersfield City Sch. Dist. of Kern Cty. v. Boyer, 610 F.2d 621, 628 (9th Cir.1979); Hoopa Valley Tribe v. United States, 596 F.2d 435-36 (Ct.Cl. 1979). Consequently, the Claims Court’s exclusive jurisdiction may not be avoided by framing a complaint in the district court as one seeking injunctive, declaratory, or mandatory relief when, in reality, the thrust of the suit is one seeking money from the United States. Amalgamated Sugar Co. v. Bergland, supra at 824; Chelsea Community Hospital v. Michigan Blue Cross, supra at 1136; Laguna Her-mosa Corp. v. Martin, supra at 1379; Hoopa Valley Tribe v. United States, supra at 436. Similarly, a plaintiff may not transform a claim for monetary relief into an equitable action simply by asking for an injunction that orders the payment of money. Jaffee v. United States, 592 F.2d 712, 715 (3d Cir.1979) cert, denied, 441 U.S. 961, 99 S.Ct. 2406, 60 L.Ed.2d 1066 (1979).
The district court concluded that the Claims Court could not assert jurisdiction over New Mexico’s suit because of the “equitable relief” requested by the state. We disagree. New Mexico’s claim for past royalties and prejudgment interest is clearly founded upon provisions of an “Act of Congress” (the Mineral Act), and exceeds the $10,000 jurisdictional limit of the Tucker Act. New Mexico’s primary purpose is to fix the government’s and not the Secretary’s liability; accordingly, we must conclude that the suit is essentially one designed to reach money which the government owns. See Mine Safety Co. v. Forrestal, supra 326 U.S. at 375, 66 S.Ct. at 221. This, then, is a claim for money cognizable under the Act. New Mexico’s additional requests for an accounting and declaratory relief are merely incidental and subordinate to the basic suit for money. Although such has not always been the case, the Claims Court may now grant equitable relief as an incident to the award of money in the interest of affording complete justice to the parties. 28 U.S.C. § 1491(a)(3) (1976) (as amended by Pub.L. No. 97-164, 96 Stat. 25). See Ellis v. United States, 610 F.2d 760, 762 (Ct.C1.1979).
New Mexico argues that the federal mandamus and declaratory judgment statutes (28 U.S.C. §§ 1361, 2201) provide the district court with an alternative basis of jurisdiction. While this argument, standing alone, has merit, we believe that allowing the district court to entertain these equitable claims would be improper in the context of this case. Having concluded that New Mexico’s claim is primarily one for money over which the Claims Court possesses exclusive jurisdiction, it would not be in the interest of justice or public policy to allow the district court to determine New Mexico’s incidental equitable claims. It is settled that the declaratory judgment statute does not itself confer jurisdiction on a federal court where none otherwise exists. Amalgamated Sugar Co. v. Bergland, supra at 822. In addition, several courts have specifically concluded that mandamus is not available in the district court when relief can be granted in the Claims Court. See, e.g., American Science & Engineering, Inc. v. Califano, supra at 64; Carter v. Seamans, 411 F.2d 767, 774 (5th Cir.1969) cert. denied, 397 U.S. 941, 90 S.Ct. 953, 25 L.Ed.2d 121 (1970). This court has similarly noted the general principle that mandamus should not be invoked if adequate alternative relief is available at law. United States v. West, 672 F.2d 796, 799 (10th Cir.1982) cert, denied, 457 U.S. 1133, 102 S.Ct. 2959, 73 L.Ed.2d 1350 (1982). Finally, as we have previously noted, the Claims Court does not lose jurisdiction when equitable claims are asserted in conjunction with primary claims for money against the United States. Similarly, the district court should not gain jurisdiction over what is fundamentally a Tucker Act claim simply because the complaint contains requests for equitable relief. See Portsmouth Redevelopment & Housing Authority v. Pierce, 706 F.2d 471, 474 (4th Cir.1983) cert, denied, — U.S. —, 104 S.Ct. 392, 78 L.Ed.2d 336 (1983).
We must conclude, therefore, that the trial court lacked jurisdiction to enter summary judgment in favor of New Mexico. We need not discuss the remaining issues raised by the appellant.
We direct that this case be transferred to the United States Claims Court for adjudication on the merits “in the interest of justice” rather than dismissing the suit. See Keller v. Merit Systems Protection Board, 679 F.2d 220, 223 (11th Cir.1982). Accord, Dr. John T. MacDonald Foundation v. Califano, 571 F.2d 328, 332 (5th Cir.1978) (en banc), cert. denied, 439 U.S. 893, 99 S.Ct. 250, 58 L.Ed.2d 238 (1978).
The case is transferred to the United States Claims Court pursuant to 28 U.S.C. § 1631.
. In our view it is doubtful that Secretary Re-gan's method of computing the states’ royalties could be deemed ultra vires. New Mexico’s challenge does not accurately rest upon the Secretary’s lack of delegated power to determine the state’s royalty, but rather that the Secretary’s decision was incorrect as a matter of law. The Supreme Court has rejected such arguments asserted in the attempt to avoid the shield of sovereign immunity, and has held that actions of an officer within his statutory authority are the actions of the sovereign. Larson v. Domestic & Foreign Corp., 337 U.S. 682, 693-95, 69 S.Ct. 1457, 1463-64, 93 L.Ed. 1628 (1949).
. In its complaint New Mexico noted that the Treasury had collected $3,255,000 in federal royalties from federal lands in New Mexico over a five-month period in 1980. Reducing the taxable royalties derived from public lands located in New Mexico by 50% for this five-month period alone would significantly decrease federal revenues, not to mention the dramatic national impact of such a change when considering its future application to all federal lands.
. We note that the legislative history behind § 702 supports a broader view of the term "damages" than that held by the district court. For example, House Report 94-1656 states:
The first of the additional sentences provides that claims challenging official action or non-action, and seeking relief other than money damages, should not be barred by sovereign immunity. The explicit exclusion of monetary relief makes it clear that sovereign immunity is abolished only in actions for specific relief (injunctions, declaratory judgment, mandatory relief, etc.).
H.R. No. 94-1656, 94th Cong. 2d Sess. (1976), 5 U.S.Code Cong, and Admin.News, 6121, 6131 (emphasis added).
There is nothing in the legislative history which supports the proposition that the use of the word "damages” was intended by Congress to exclude certain claims for money not falling within technical common law concepts of "damages.” Rather, the history supports the view that § 702 should be read with a practical eye, with the focus upon the effect of the claim— does it involve a claim for money, or does it seek only to effect action? It is solely the latter class of claims which fall within the consent to suit granted by § 702. A contrary view would seemingly run counter to the Tucker Act's express scheme for monetary claims against the United States (discussed infra in text at 1322).
. 28 U.S.C. § 1631 provides:
Whenever a civil action is filed in a court as defined in section 610 of this title [28 U.S.C. § 610] or an appeal, including a petition for review of administrative action, is noticed for or filed with such a court and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action or appeal to any other such court in which the action or appeal could have been brought at the time it was filed or noticed, and the action or appeal shall proceed as if it had been filed or noticed for the court to which it is transferred on the date upon which it was actually filed or noticed for the court from which it is transferred.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)", specifically "other". Which specific state government agency best describes this litigant?
A. state of ___ - state in its corporate capacity in criminal cases
B. state 0f ___ - state in its corporate capacity in civil cases
C. other state level activity
D. not ascertained
Answer:
|
songer_casetyp2_geniss
|
H
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
There are two main issues in this case. The first issue is economic activity and regulation - bankruptcy, antitrust, securities - bankruptcy - business reorganization (e.g., chapter 11). Your task is to determine the second issue in the case. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
UNITED STATES of America, Plaintiff-Appellee, v. The FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver for MBank Houston, N.A. and The Deposit Insurance Bridge Bank, N.A., Intervenors-Appellees, v. Suzan E. TAYLOR, d/b/a Exploration Services, Defendant-Appellant.
Nos. 89-2328, 89-2373.
United States Court of Appeals, Fifth Circuit.
Aug. 28, 1989.
Hayden Burns, Houston, Tex., for defendant-appellant.
Robert D. Daniel, Preston T. Towber, Hirsch & Westheimer, Houston, Tex., for FDIC & DIBB.
Paula C. Offenhauser, Asst. U.S. Atty., Henry K. Oncken, U.S. Atty., Houston, Tex., Margaret Hewing, Anthony J. Stein-meyer, U.S.D.J., Civ. Div., Federal Programs, Washington, D.C., for U.S.
Blake Tartt, Fulbright & Jaworski, Houston, Tex., for FDIC.
Jeff Joyce, Ann Ryan Robertson, Dallas, Tex., Blake Tartt, Tom Cunningham, Houston, Tex., for FDIC, Receiver and the Deposit Ins. Bridge Bank.
Before CLARK, Chief Judge, JOHNSON and SMITH, Circuit Judges.
CLARK, Chief Judge:
The United States of America filed this action on behalf of the Office of the Comptroller of the Currency (OCC). The United States brought the action to enjoin Susan E. Taylor d/b/a Exploration Services (Taylor) from filing an abstract of a state court judgment which would create a lien on property owned by MBank Houston, N.A. (MBank). The district court granted a preliminary injunction and ordered Taylor to release an abstract of judgment previously filed. We affirm.
I.
On February 27, 1989 Taylor obtained a $9.6 million judgment against MBank in a Texas state district court. The state court denied MBank’s requests for an order prohibiting Taylor from filing an abstract of the judgment. On March 1, 1989, prior to exhaustion of the appellate process, Taylor filed an abstract of the judgment with the Harris County Clerk. Under Texas law, the recorded abstract of judgment created a lien on all the real property of MBank located in Harris County, Texas. Tex. Prop.Code Ann. § 52.001 (Vernon 1984).
Also on March 1, 1989, the United States, on behalf of the OCC, filed this action in federal district court seeking a temporary restraining order and a preliminary injunction prohibiting Taylor from filing an abstract of judgment. The action was based on 12 U.S.C. § 91, which prohibits the issuance of an attachment, injunction, or execution against a national bank or its property prior to a final judgment. The district court signed a temporary restraining order, but not until nine minutes after Taylor had filed the abstract of her state court judgment.
On March 21, 1989, the district court granted a preliminary injunction and ordered Taylor to withdraw the abstract of judgment previously filed. In response to the order, Taylor filed a notice in the Harris County property records announcing involuntary withdrawal of the abstract of judgment subject to appeal. On April 18, 1989, the district court ordered Taylor to completely release the abstract of judgment or be held in contempt. Taylor appeals the preliminary injunction and the order requiring release of the abstract of judgment.
II.
Taylor initially argues that the United States lacks standing to bring this action because it has not pled a sufficient governmental interest at stake. However, by pleading and affidavit, the United States has asserted that the OCC has a supervisory and regulatory interest in enforcing the safeguards mandated by 12 U.S.C. § 91. This interest stems from the OCC’s obligation to ensure the safety and soundness of the national banking system for the benefit of depositors and the general public. See 12 U.S.C. § 1 et seq. The OCC’s interest provides sufficient standing for the United States to bring this action. United States v. Lemaire, 826 F.2d 387, 388 n. 1, 390 (5th Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 1223, 99 L.Ed.2d 423 (1988).
Taylor next argues that 12 U.S.C. § 91 does not prohibit the filing of an abstract of judgment. Section 91 reads as follows:
All transfers of the notes, bonds, bills of exchange, or other evidences of debt owing to any national banking association, or of deposits to its credit; all assignments of mortgages, sureties on real estate, or of judgments or decrees in its favor; all deposits of money, bullion, or other valuable thing for its use, or for the use of any of its shareholders or creditors; and all payments of money to either, made after the commission of an act of insolvency, or in contemplation thereof, made with a view to prevent the application of its assets in the manner prescribed by this chapter, or with a view to the preference of one creditor to another, except in payment of its circulating notes, shall be utterly null and void; and no attachment, injunction, or execution, shall be issued against such association or its property before final judgment in any suit, action, or proceeding, in any State, county, or municipal court.
12 U.S.C. § 91.
Taylor does not argue that her judgment is final. Prior to conclusion of the appellate process it is not. Lemaire, 826 F.2d at 390. Rather, Taylor asserts that section 91 applies only to seizures of assets and not to the perfection of a judgment lien by recording an abstract of judgment. Taylor relies on the fact that the last clause of section 91 expressly prohibits only attachments, injunctions, or executions, but does not mention abstracts of judgment. However, under Texas law an abstract of judgment is functionally equivalent to an attachment in that “[e]ach fixes a lien upon the title of the debtor subject to execution; which lien, in either event, is foreclosed through sale under execution.” Stewart v. Rockdale State Bank, 52 S.W.2d 915, 916 (Tex.Civ.App.1932), aff'd, 124 Tex. 431, 79 S.W.2d 116 (1935). See Tex.Civ.Prac. & Rem.Code Ann. § 61.061 (Vernon 1986) (attachment); Tex.Prop.Code Ann. § 52.001 (Vernon 1984) (abstract of judgment). An abstract of judgment is also similar to an injunction in that the lien created by an abstract of judgment prohibits a national bank from freely transferring its property. Third National Bank in Nashville v. Impac Ltd., Inc., 432 U.S. 312, 97 S.Ct. 2307, 2314 n. 18, 53 L.Ed.2d 368 (1977).
Furthermore, the Supreme Court has ruled that section 91 is not to be given a completely literal meaning. See Impac Ltd., 97 S.Ct. at 2312. We have not limited section 91 to the prohibitions expressly mentioned and have construed the statute to prohibit garnishment of a national bank’s property prior to a final judgment. Lemaire, 826 F.2d 387. A non-restrictive reading of section 91 is necessary to effectuate the statutory purpose, which is to “prevent creditors from obtaining preferential treatment by court action, including the securing of a judgment at the trial court level.” Lemaire, 826 F.2d at 390. In this case, the district court correctly found that by filing an abstract of judgment and obtaining a lien on MBank’s property, Taylor would secure preferential treatment over the other general creditors of MBank. Such action prior to a final judgment would violate 12 U.S.C. § 91.
Taylor asserts that if she is not allowed to file an abstract of judgment, other creditors with liens against MBank’s property will obtain a preference over her claims. However, 12 U.S.C. § 91 does not prohibit all liens against the property of a national bank, only those obtained prior to a final judgment. Even if the other creditor’s liens acquire precedence, that would not justify Taylor’s attempt to obtain preferential treatment for her lien prior to a final judgment — a form of preference prohibited by section 91.
Taylor next argues that the district court erred in granting a preliminary injunction without balancing the competing claims of injury and considering the public interest. Generally, in order to secure a preliminary injunction, the movant must prove 1) a substantial likelihood of success on the merits; 2) a substantial threat of irreparable injury if the injunction is not issued; 3) the threatened injury to the mov-ant outweighs any damage the injunction might cause to the opponent; and 4) the injunction will not disserve the public interest. Enterprise Int’l v. Corporación Estatal Petrolera, 762 F.2d 464, 471 (5th Cir.1985). However, if a statutory violation is involved and the statute by necessary and inescapable inference requires in-junctive relief, the movant is not required to prove the injury and public interest factors. Amoco Production Co. v. Village of Gambell, Alaska, 480 U.S. 531, 107 S.Ct. 1396, 1402-03, 94 L.Ed.2d 542 (1987); United States v. Hayes International Corp., 415 F.2d 1038, 1045 (5th Cir.1969). In this case the district court correctly concluded that the purpose of section 91 — to prevent a creditor from obtaining preferential treatment prior to a final judgment — requires injunctive relief once a statutory violation is shown. Accordingly, the district court did not err in granting the preliminary injunction without requiring specific proof on the injury and public interest factors.
Finally, Taylor argues that the district court erred in requiring Taylor to release her abstract of judgment. Taylor acknowledges that the district court has the equitable power to return the'parties to their last uncontested status. See Canal Authority v. Callaway, 489 F.2d 567, 576 (5th Cir.1974). Taylor argues, however, that the court erred in finding that the last uncontested status was the situation of the parties prior to the filing of Taylor’s abstract of judgment. The record shows that Taylor’s right to file an abstract of judgment was contested from the time the state court judgment was rendered. Taylor’s action in filing the abstract remains the core of the present controversy. The finding of the district court that the last uncontested status was prior to the act of filing is not clearly erroneous.
The district court’s judgment and order are
AFFIRMED.
. MBank was declared insolvent on March 28, 1989, and the Federal Deposit Insurance Corporation, as receiver for MBank, has intervened in this case in support of the United States.
Question: What is the second general issue in the case, other than economic activity and regulation - bankruptcy, antitrust, securities - bankruptcy - business reorganization (e.g., chapter 11)?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
|
sc_lcdisposition
|
B
|
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.
HONIG, SUPERINTENDENT OF PUBLIC INSTRUCTION OF CALIFORNIA, et al. v. STUDENTS OF THE CALIFORNIA SCHOOL FOR THE BLIND et al.
No. 84-436.
Decided April 1, 1985
Per Curiam.
Respondents, students of the California School for the Blind, brought this lawsuit in Federal District Court against petitioner state officials, claiming among other things that the school’s physical plant did not meet applicable seismic safety standards. Their complaint alleged rights of action under the Education for All Handicapped Children Act of 1975, 89 Stat. 773, 20 U. S. C. §§ 1232, 1401, 1405, 1406, 1411-1420, 1453, and § 504 of the Rehabilitation Act of 1973, 87 Stat. 394, as amended, 29 U. S. C. § 794. After a lengthy trial the District Court issued a “preliminary injunction” requiring the State to conduct additional tests of school grounds to aid in assessment of the school’s seismic safety. Petitioners appealed to the United States Court of Appeals for the Ninth Circuit pursuant to 28 U. S. C. § 1292(a)(1). That court affirmed the issuance of the preliminary injunction on the ground that the lower court had not abused its discretion. 736 F. 2d 538 (1984). The court expressly noted that it was not finally deciding the merits of the action, but only was assessing the District Court’s reasoning to determine whether it had appropriately applied the traditional calculus for granting or denying preliminary injunctions. Id., at 542-543, 546-547, 550.
Petitioners have petitioned this Court for a writ of cer-tiorari to review the judgment of the Ninth Circuit, but in the meantime the tests ordered by the District Court’s preliminary injunction have been completed. We therefore are confronted with a situation nearly identical to that addressed in University of Texas v. Camenisch, 451 U. S. 390 (1981), in which the petitioners had completely complied with the terms of a preliminary injunction by the time the case reached this Court. In Camenisch we concluded that “the question whether a preliminary injunction should have been issued here is moot, because the terms of the injunction . . . have been fully and irrevocably carried out.” Id., at 398. Because only that aspect of the lawsuit was moot, however, we merely vacated the judgment of the Court of Appeals, and remanded the case for further proceedings. Ibid. Here, as in Camenisch, the only question of law actually ruled on by the Court of Appeals was whether the District Court abused its discretion in applying the complicated calculus for determining whether the preliminary injunction should have issued, an issue now moot. No order of this Court could affect the parties’ rights with respect to the injunction we are called upon to review. Other claims for relief, however, still remain to be resolved by the District Court. We accordingly grant the petition for writ of certiorari, and vacate the judgment of the Court of Appeals, with instructions to remand the case to the District Court for further proceedings consistent with this opinion.
Justice Powell took no part in the consideration or decision of this case.
Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed?
A. stay, petition, or motion granted
B. affirmed
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. modify
K. remand
L. unusual disposition
Answer:
|
sc_decisiondirection
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases.
UNITED STATES v. YAZELL.
No. 10.
Argued October 13, 1965.
Decided January 17, 1966.
Solicitor General Marshall argued the cause for the United States. On the brief were former Solicitor General Cox, Assistant Attorney General Douglas, Louis F. Claiborne, Sherman L. Cohn and Edward Berlin.
J. V. Hammett argued the cause and filed a brief for respondent.
Mr. Justice Fortas
delivered the opinion of the Court.
This case presents an aspect of the continuing problem of the interaction of federal and state laws in our complex federal system. Specifically, the question presented is whether, in the circumstances of this case, the Federal Government, in its zealous pursuit of the balance due on a disaster loan made by the Small Business Administration, may obtain judgment against Ethel Mae Yazell of Lampasas, Texas. At the time the loan was made, Texas law provided that a married woman could not bind her separate property unless she had first obtained a court decree removing her disability to contract. Mrs. Yazell had not done so. At all relevant times she was a beneficiary of the peculiar institution of coverture which is now, with some exceptions, relegated to history’s legal museum.
The impact of the quaint doctrine of coverture upon the federal treasury is therefore of little consequence. Even the Texas law which gave rise to the difficulty was repealed in 1963. The amount in controversy in this extensive litigation, about $4,000, is important only to the Yazell family. But the implications of the controversy are by no means minor. Using Clearfield Trust Co. v. United States, 318 U. S. 363, as its base, the Government here seeks to occupy new ground in the inevitable conflict between federal interest and state law. The Government was rebuffed by the trial and appellate courts. We hold that in the circumstances of this case, the state rule governs, and, accordingly, we affirm the decision of the United States Court of Appeals for the Fifth Circuit, 334 F. 2d 454.
Reference in some detail to the facts of this case will illuminate the problem. Delbert L. Yazell operated in Lampasas, Texas, a small shop to sell children’s clothing. The shop was called Yazell’s Little Ages. Occasionally, his wife, Ethel Mae, assisted in the business. The business, under Texas law, was the community property of husband and wife, who, however, were barred by the cov-erture statute from forming a partnership. Dillard v. Smith, 146 Tex. 227, 230, 205 S. W. 2d 366, 367. A disastrous flood occurred in Lampasas on May 12, 1957. The stock of Yazell’s Little Ages was ruined. Its fixtures were seriously damaged.
The Small Business Administration had a regional office in Dallas, Texas. As of December 31, 1963, the agency had outstanding in Texas, generally under the supervision of its Dallas regional office, 1,363 business loans and 4,172 disaster loans, aggregating more than $60,000,000. Upon the occurrence of the Lampasas flood, the SBA opened a Disaster Loan Office in Lam-pasas, under the direction of the Dallas office.
On June 10, 1957, Mr. Yazell conferred with a representative of the SBA about a loan to enable him to cope with the disaster to his business. After a careful, detailed but commendably prompt investigation, the head of SBA’s Disaster Loan Office wrote Mr. Yazell on June 20, 1957, that authorization for a loan of $12,000 had been received. Yazell was informed that the loan would be made upon his compliance with certain requirements. He was told that a named law firm in Lampasas had been employed by the SBA to assist him in complying with the terms of the authorization.
Yazell and his wife “doing business as” Yazell’s Little Ages then signed a note in the amount of $12,000, payable to the order of SBA in Dallas at the rate of $120 per month including 3% interest. On the same day they also executed a chattel mortgage on their stock of merchandise and their store fixtures. By express reference to Article 4000 of the Revised Civil Statutes of Texas, the chattel mortgage exempted from its coverage retail sales made from the stock. The chattel mortgage was accompanied by a separate acknowledgment of Mrs. Yazell before a notary public, which was required by Texas law as a part of the institution of coverture. The notary attested, in the words of the applicable Texas statute, that “Ethel Mae Yazell, wife of Delbert L. Yazell . . . whose name is subscribed to the [chattel mortgage] . . . having been examined by me privily and apart from her husband . . . acknowledged such instrument to be her act and deed, and declared that she had willingly signed the same . . . .” See Tex. Rev. Civ. Stat. Ann. Art. 6608. See also Art. 1300, 4618 (Supp. 1964), 6605. These statutes all relate to conveyances of the marital homestead.
The note, chattel mortgage and accompanying documents were in due course sent to the Dallas office of SBA. Both the Lampasas law firm engaged by SBA to assist Yazell and the Acting Regional Counsel of SBA certified that “all action has been taken deemed desirable ... to assure the validity and legal enforceability of the Note.” Thereafter, the funds were made available to Yazell pursuant to the terms of the loan.
From the foregoing, it is clear (1) that the loan to Yazell was individually negotiated in painfully particularized detail, and (2) that it was negotiated with specific reference to Texas law including the peculiar acknowledgment set forth above. None of the prior cases decided by this Court in which the federal interest has been held to override state law resembles this case in these respects; the differences are intensely material to the resolution of the issue presented.
Next, it seems clear (1) that the SBA was aware and is chargeable with knowledge that the contract would be subject to the Texas law of coverture; (2) that both the SBA and the Yazells entered into the contract without any thought that the defense of coverture would be unavailable to Mrs. Yazell with respect to her separate property as provided by Texas law; and (3) that, in the circumstances, the United States is seeking the unconscionable advantage of recourse to assets for which it did not bargain. These points will be briefly elaborated before we reach the ultimate issue: whether, despite all of the foregoing, some “federal interest” requires us to give the United States this advantage.
It will be noted that the transaction was custom-tailored by officials of SBA located in Dallas and Lam-pasas, Texas, and undoubtedly familiar with Texas law. It was twice approved by Texas counsel who certified that “all action has been taken deemed desirable” even though no effort was made to cause Mrs. Yazell to have her incapacity removed under Texas law. In at least two decisions since 1949, federal courts had applied the Texas law of coverture in actions under federal statutes. At no time does it appear that the SBA made the slightest suggestion to the Yazells or their SBA-appointed counsel that it intended to enforce the contract against Mrs. Yazell’s separate property. The forms used, although specifically adapted to this transaction and to Texas law, made no reference to such an intent, and it is either probable or certain that no such intent existed. As stated above, the SBA now has more than 5,000 loans outstanding in Texas. The Solicitor General informed the Court that the SBA, in conformity with the general practice of government lending agencies, requires that the signature of the wife be obtained as a routine matter. If it had been intended that the result now sought by the Government would obtain, simple fairness as well as elementary craftsmanship would have dictated that in a Texas agreement the wife be advised, at least by formal notation, that she was, in the opinion of SBA, binding her separate property, despite Texas law to the contrary. Again, it must be emphasized that this was a custom-made, hand-tailored, specifically negotiated transaction. It was not a nationwide act of the Federal Government, emanating in a single form from a single source.
We now come to the basic issue which this case presents to this Court. Is there a “federal interest” in collecting the deficiency from Mrs. Yazell’s separate property which warrants overriding the Texas law of cover-ture? Undeniably there is always a federal interest to collect moneys which the Government lends. In this case, the federal interest is to put the Federal Government in position to levy execution against Mrs. Yazell’s separate property, if she has any, for the unpaid balance of the $12,000 disaster loan after the stock of merchandise and fixtures of the store have been sold, after any other community property has been sold, and after Mr. Yazell’s leviable assets have been exhausted. The desire of the Federal Government to collect on its loans is understandable. Perhaps even in the case of a disaster loan, the zeal of its representatives may be commended. But this serves merely to present the question — not to answer it. Every creditor has the same interest in this respect; every creditor wants to collect. The United States, as sovereign, has certain preferences and priorities, but neither Congress nor this Court has ever asserted that they are absolute. For example, no contention will or can be made that the United States may by judicial fiat collect its loan with total disregard of state laws such as homestead exemptions. Accordingly, generalities as to the paramountcy of the federal interest do not lead inevitably to the result the Government seeks. Our problem remains: whether in connection with an individualized, negotiated contract, the Federal Government may obtain a preferred right which is not provided by statute or specific agency regulation, which was not a part of its bargain, and which requires overriding a state law dealing with the intensely local interests of family property and the protection (whether or not it is up-to-date or even welcome) of married women.
The Government asserts that this overriding federal interest can be found in the unlimited right of the Federal Government to choose the persons with whom it will contract, citing Perkins v. Lukens Steel Co., 310 U. S. 113, which is remote from the issue at hand. Realistically, in terms of Yazell’s case, this has nothing to do with our problem: The loan was made to enable Yazell to reopen the store after the disaster of the flood. The SBA chose its contractors with knowledge of the limited office of Mrs. Yazell’s signature under Texas law. That knowledge did not deter them. If they had “chosen” Mrs. Yazell as their contractor in the sense that her separate property would be liable for the loan, presumably they would have said so, and they would have proceeded with the formalities necessary under Texas law to have her disability removed. In all reality, the assertion that this case involves the'right of the United States to choose its beneficiaries cannot determine the issue before us. This case is not a call to strike the shackles of an obsolete law from the hands of a beneficent Federal Government, nor is it a summons to do battle to vindicate the rights of women. It is much more mundane and commercial than either of these. The issue is whether the Federal Government may voluntarily and deliberately make a negotiated contract with knowledge of the limited capacity and liability of the persons with whom it contracts, and thereafter insist, in disregard of such limitation, upon collecting (a) despite state law to the contrary relating to family property rights and liabilities, and (b) in the absence of federal statute, regulation or even any contract provision indicating that the state law would be disregarded.
The institution of coverture is peculiar and obsolete. It was repealed in Texas after the events of this case. It exists, in modified form, in Michigan. But the Government’s brief tells us that there are 10 other States which limit in some degree the capacity of married women to contract. In some of these States, such as California, the limitations upon the wife’s capacity and responsibility are part of an ingenious, complex, and highly purposeful distribution of property rights between husband and wife, geared to the institution of community property and designed to strike a balance between efficient management of joint property and protection of the separate property of each spouse. It is an appropriate inference from the Government’s brief that its position is that the Federal Government, in order to collect on a negotiated debt, may override all such state arrangements despite the absence of congressional enactment or agency regulation or even any stipulation in the negotiated contract or any warning to the persons with whom it contracts.
We do not here consider the question of the constitutional power of the Congress to override state law in these circumstances by direct legislation or by appropriate authorization to an administrative agency coupled with suitable implementing action by the agency. We decide only that this Court, in the absence of specific congressional action, should not decree in this situation that implementation of federal interests requires overriding the particular state rule involved here. Both theory' and the precedents of this Court teach us solicitude for state interests, particularly in the field of family and family-property arrangements. They should be overridden by the federal courts only where clear and substantial interests of the National Government, which cannot be served consistently with respect for such state interests, will suffer major damage if the state law is applied.
Each State has its complex of family and family-property arrangements. There is presented in this case no reason for breaching them. We have no federal law relating to the protection of the separate property of married women. We should not here invent one and impose it upon the States, despite our personal distaste for coverture provisions such as those involved in this case. Nor should we establish a principle which might cast doubt upon the effectiveness in relevant types of federal suits of the laws of 11 other States relating to the contractual positions of married women, which, as the Government’s brief warns us, would be affected by our decision in the present case. Clearly, in the case of these SBA loans there is no “federal interest” which justifies invading the peculiarly local jurisdiction of these States, inN .disregard of their laws, and of the subtleties reflected by the differences in the laws of the various States which generally reflect important and carefully evolved state arrangements designed to serve multiple purposes.
The decisions of this Court do not compel or embrace the result sought by the Government. None of the cases in which this Court has devised and applied a federal principle of law superseding state law involved an issue arising from an individually negotiated contract. None of these cases permitted federal imposition and enforcement of liability on a person who, according to state law, was not competent to contract. None of these cases overrode state law in the peculiarly state province of family or family-property arrangements.
This Court’s decisions applying “federal law” to supersede state law typically relate to programs and actions which by their nature are and must be uniform in character throughout the Nation. The leading case, Clearfield Trust Co. v. United States, 318 U. S. 363, involved the remedial rights of the United States with respect to federal commercial paper. United States v. Allegheny County, 322 U. S. 174, was treated by the Court as involving the liability of property of the United States to local taxes. D’Oench, Duhme & Co. v. Federal Deposit Ins. Corp., 315 U. S. 447, involved the rights of the FDIC as an insurer-assignee of a bank as against the maker of a note given the bank on the secret understanding it would not be called for payment. The bank deposit insurance program is general and standardized. In all relevant aspects, the terms are explicitly dictated by federal law. The Court held that FDIC was entitled to a federal rule protecting it against misrepresentations as to the financial condition of the banks it insures, accomplished by secret arrangements inconsistent with the policy of the applicable federal statutes.
On the other hand, in the type of case most closely resembling the present problem, state law has invariably been observed. The leading case is Fink v. O’Neil, 106 U. S. 272. There the United States sought to levy execution against property defined by state law as homestead and exempted by the State from execution. This Court held that Revised Statutes § 916, now Rule 69 of the Federal Rules of Civil Procedure, governed, and that the United States’ remedies on judgments were limited to those generally provided by state law. These homestead exemptions vary widely. They result in a diversity of rules in the various States and in a limitation upon the power of the Federal Government to collect which is comparable to the coverture limitation. The purpose and theory of the two types of limitations are obviously related. Another illustration of acceptance of divergent and limiting state laws is afforded by Reconstruction Finance Corp. v. Beaver County, 328 U. S. 204. In that case this Court held that the state classification of property owned by the Reconstruction Finance Corporation as “real property” for tax purposes would prevail in determining whether the property was within the class of property as to which Congress had waived the federal exemption from local taxation.
Generally, in the cases applying state law to limit or condition the enforcement of a federal right, the Court has insisted that the state law is being “adopted” as the federal rule. Even so, it has carefully pointed out that this theory would make it possible to “adopt,” as the operative “federal” law, differing laws in the different States, depending upon the State where the relevant transaction takes place.
Although it is unnecessary to decide in the present case whether the Texas law of coverture should apply ex proprio vigore — on the theory that the contract here was made pursuant and subject to this provision of state law — or by “adoption” as a federal principle, it is clear that the state rule should govern. There is here no need for uniformity. There is no problem in complying with state law; in fact, SBA transactions in each State are specifically and in great detail adapted to state law. There is in this case no defensible reason to override state law unless, despite the contrary indications in Fink v. O’Neil and elsewhere as has been set forth, we are to take the position that the Federal Government is entitled to collect regardless of the limits of its contract and regardless of any state laws, however local and peculiarly domestic they may be.
The decision below is
Affirmed.
Tex. Rev. Civ. Stat. Ann. Art. 4626. This section, as amended by Acts 1963, 58th Leg., p. 1188, c. 472, § 6, now gives to Texas wives the capacity to contract. Under old Art. 4626 a married woman could have her disability removed.
See note 1, supra.
The Court of Appeals by a vote of two to one affirmed the decision of the District Court in favor of the wife, based upon the Texas’ law of coverture. The action was instituted by the United States to recover the balance due on a note of approximately $12,000, secured by a chattel mortgage. The note was signed by both husband and wife. The mortgage had been foreclosed, the pledged assets sold, and a deficiency judgment was rendered against the husband in this same action. No appeal was taken by the husband.
In the discussion which follows, as specifically indicated by reference to “SBA file,” we have occasionally referred to the official file of the Small Business Administration on the Yazell loan to supplement the record with facts which disclose the agency’s practice.
SBA file.
Brief of the United States, p. 12.
SBA file.
SBA file.
SBA file.
See note 1, supra.
United States v. Belt, 88 F. Supp. 510 (D. C. S. D. Tex.) (suit held barred by coverture); Texas Water Supply Corp. v. Reconstruction Finance Corp., 204 F. 2d 190 (C. A. 5th Cir.) (case held within an exception to coverture).
SBA file.
The Ninth Circuit, in Bumb v. United States, 276 F. 2d 729 (C. A. 9th Cir.), aptly observed in response to a claim by the Small Business Administration that the “need for uniformity” excused it from complying with a California “bulk sales” statute requiring notice of intent to mortgage:
“It is true that the Small Business Administration operates throughout the United States, but such fact raises no presumption of the desirability of a uniform federal rule with respect to the validity of chattel mortgages in pursuance of the lending program of the Small Business Administration. The largeness of the business of the Small Business Administration offers no excuse for failure to comply with reasonable requirements of local law, which are designed to protect local creditors against undisclosed action by their local debtors which impair the value of their claims. It must be assumed that the Small Business Administration maintains competent personnel familiar with the laws of the various states in which it conducts business, and who are advised of the steps required by local law in order to acquire a valid security interest within the various states.” Id., at 738.
Brief for the United States, p. 11.
Contrast Clearfield Trust Co. v. United States, 318 U. S. 363. Compare also United States v. Helz, 314 F. 2d 301 (C. A. 6th Cir.), arising under the National Housing Act, 48 Stat. 1246, 12 U. S. C. § 1702 et seq., which issues separate forms for each State but does not negotiate with individual applicants. See United States v. View Crest Garden Apts., Inc., 268 F. 2d 380 (C. A. 9th Cir.), cert. denied, 361 U. S. 884.
In this case, the Yazells’ general creditors collected about 20% of their claims.
For example, Congress has provided for preference in the case of debts owed the United States on tax delinquencies. See 26 U. S. C. §§ 6321, 6323 (1964 ed.); 11 U. S. C. §104 (a) (4) (1964 ed.). 31 U. S. C. § 191 (1964 ed.) also provides a priority for the United States in some situations involving ordinary debts. See Kennedy, The Relative Priority of the Federal Government: The Pernicious Career of the Inchoate and General Lien, 63 Yale L. J. 905 (1954).
See pp. 354-356, infra.
The Government relies upon Perkins, at p. 127, for the proposition that the United States has “the unrestricted power ... to determine those with whom it will deal.” Brief for the United States, p. 9. Perkins had nothing to do with the question of the power of the United States to override state law declaring the incapacity of persons to contract. The Court there held that private companies alleging their right as potential bidders for government contracts lacked standing to challenge a federal statute requiring federal procurement contracts to include a minimum wage stipulation. The Government quotes the decision out of context, omitting the following italicized words: the Court stated that “Like private individuals and businesses, the Government enjoys the unrestricted power . . . to determine those with whom it will deal, and to fix the terms and conditions upon which it will make needed purchases.” Mrs. Yazell would subscribe to that proposition — indeed, the brunt of her case is that the Government, in entering ordinary commercial contracts, should be treated “like private individuals and businesses.”
See note 1, supra.
It is worth noting that in the only situation where the United States’ power to choose its contractors might arise — where a married woman has separate property in respect of which she seeks or the Government offers a loan — the Texas law expressly provided for her power to contract and to bind her separate property. Tex. Rev. Civ. Stat. Ann. Art. 4614.
Mich. Stat. Ann. §§ 26.161, 26.181, 26.182, 26.183. See Koengeter v. Holzbaugh, 332 Mich. 280, 50 N. W. 2d 778; Weingarten, Creditors’ Rights, 10 Wayne L. Rev. 184 (1963).
Brief for the United States, p. 15, n. 10. The States are, in addition to Texas and Michigan: Alabama, Arizona, California, Florida, Georgia, Idaho, Indiana, Kentucky, Nevada, and North Carolina. With the exception of Michigan, see n. 22, supra, none of these States other than Texas has a coverture rule applicable to facts such as those presented by this case.
In California a wife has full capacity to contract. Cal. Civ. Code § 158. Her separate property is liable for her own debts, as are her earnings. Cal. Civ. Code §§ 167, 171. However, in connection with California’s community property law governing the management and control of community property, see Cal. Civ. Code (Supp. 1964) §§ 172, 172a, the community property is generally not subject to the debts of the wife. Cal. Civ. Code § 167. See also Ariz. Rev. Stat. Ann. § 25-214; Nev. Rev. Stat. § 123.230.
The Government's argument, if accepted by this Court, would cast doubt, in addition, on state laws preventing wives from conveying realty without the consent of their husbands — see, e. g., Ala. Code Tit. 34, §73; Fla. Stat. Ann. (Supp. 1964) §708.08; Ind. Ann. Stat. §38-102; Ky. Rev. Stat. §404.020 (executory sales contract) ; N. C. Gen. Stat. § 52-2 — or from acting as guarantors or sureties — see, e. g., Ga. Code Ann. § 53-503; Ky. Rev. Stat. § 404.010.
See, e. g., United States v. Bess, 357 U. S. 51, which held that the exemptions from execution to satisfy federal tax liens provided in § 3691 of the Internal Revenue Code of 1939 (now 26 U. S. C. § 6334) are exclusive of state exemptions.
See, e. g., United States v. Shimer, 367 U. S. 374 (Pennsylvania rule precluding mortgagee who buys mortgaged property at foreclosure from seeking deficiency judgment held inconsistent with scheme of Veterans Administration regulations under which mortgage issued).
On the contrary, in De Sylva v. Ballentine, 351 U. S. 570, the Court applied state law to define “children” although the issue arose in connection with the right to renew a copyright — a peculiarly federal area. Cf. Reconstruction Finance Corp. v. Beaver County, 328 U. S. 204; Commissioner v. Stern, 357 U. S. 39. We do not regard Wissner v. Wissner, 338 U. S. 655, as an exception. There California sought to apply its community property rule that a wife has a half interest in her husband’s life insurance if the premiums come out of community property (his earnings), in derogation of the federal statutory policy that soldiers have an absolute right to name the beneficiary of their National Service Life Insurance. The Court held that the California rule would directly have undercut congressional intent with respect to the Federal Government’s generalized, nationwide insurance program.
The Court held that a state tax rule under which movable machinery was part of the realty of a manufacturer for purposes of an ad valorem property tax could not be applied so as to subject a manufacturer renting the machinery from the United States to such an enhancement of the value of its realty. The Court held that the title to the machinery was in the United States, and was effective to protect the machinery from local taxes. But compare Reconstruction Finance Corp. v. Beaver County, 328 U. S. 204.
The statute involved in D’Oench, Duhme is now the Federal Deposit Insurance Act, 64 Stat. 873, 12 U. S. C. § 1811 et seq. (1964 ed.).
See also Custer v. McCutcheon, 283 U. S. 514. Rule 69 provides that procedure on execution shall be “in accordance with the practice and procedure of the state in which the district court is held . . . except that any statute of the United States governs to the extent that it is applicable.” With the one exception of federal tax cases, see n. 26, supra, state execution procedure seems to be applied without question, even in suits by the United States. See, e. g.. United States v. Harpootlian, 24 F. 2d 646 (C. A. 2d Cir.) (applying state law on the time within which examination can be had of a judgment debtor after an execution against him is returned unsatisfied, over an objection by the Government that this was an improper application of a statute of limitations to the sovereign); United States v. Miller, 229 F. 2d 839 (C. A. 3d Cir.) (Pennsylvania prohibition of garnishment of future debts of garnishee to debtor).
In Texas, the value of the homestead that is exempt from execution is $5,000, as of the time of its designation as a homestead and without reference to the value of any improvements, Tex. Rev. Civ. Stat. Ann. Art. 3833; Tex. Const. Art. 16, §§50, 51. In Tennessee and Maine, the homestead exemption is $1,000, Tenn. Const. Art. 11, §11; Me. Rev. Stat. Ann. Tit. 14, §§4551, 4552; in California, it is $15,000 for the head of a family, $7,500 for all others, Cal. Civ. Code §§ 1240, 1260 (Supp. 1964); cf. Cal. Const. Art. 17, § 1. If Mrs. Yazell’s separate property were a homestead under Texas law, she might have been able to defeat execution on the judgment that might have been entered against her in this suit to a far greater degree than some other debtor to the SBA could who happened to reside in Tennessee or Maine; and a Californian would do even better than Mrs. Yazell.
Other exemptions from execution vary similarly. For example, Texas, Maine and California provide for detailed personal exemptions. In Texas, a family is exempt not only as to its homestead, but also its furniture, cemetery lot, implements of husbandry, tools and books of a trade, family library and pictures, five cows and their calves, two mules, two horses, one wagon, one carriage, one gun, 20 hogs, 20 sheep, harness, provisions and forage for home consumption, current wages, clothing, 20 goats, 50 chickens, 30 turkeys, 30 ducks, 30 geese, 30 guineas, and one dog. A somewhat less extensive list is provided for persons who are not constituents of a family. Tex. Rev. Civ. Stat. Ann. Art. 3832, 3835. Cf. also Me. Rev. Stat. Ann. Tit. 14, §4401; Cal. Civ. Proc. Code §§690-690.52 (1955 ed. and Supp. 1964). Texas also has other special protections, including a provision applicable to ferrymen, saving to them their ferryboat and tackle, Tex. Rev. Civ. Stat. Ann. Art. 3836.
Rule 64, adopting state provisional remedies for security in advance of judgment, can lead to the same kind of diversity as does Rule 69. Cf. De Beers Consolidated, Mines, Ltd. v. United States, 325 U. S. 212. State provisional remedies vary greatly. See 7 Moore’s Fed. Prac. ¶ 64.04 [3].
“In our choice of the applicable federal rule we have occasionally selected state law.” Clearfield Trust Co. v. United States, 318 U. S. 363, 367. The Court observed in Clearfield that the difficulty of determining which state rule to apply could be a persuasive argument in favor of a federal rule. Ibid. No such difficulty exists here, of course.
In Royal Indemnity Co. v. United States, 313 U. S. 289, cited by the Government for the proposition that “the rights of the United States under contracts entered into as part of an authorized nationwide program are to be determined by federal and not by State law,” Brief for the United States, p. 7, the Court, while insisting that “the rule governing the interest to be recovered as damages for delayed payment of a contractual obligation to the United States is not controlled by state statute or local common law,” 313 U. S., at 296, nonetheless held that the statutory rate prevailing in the State where the obligation was undertaken and to be performed was a suitable one for adoption by the federal courts. Cf. also Board of Commissioners v. United States, 308 U. S. 343.
The Financial Assistance Manual of the Small Business Administration, SBA-500, is replete with admonitions to follow state law carefully. Thus §401.03 reads:
“Compliance with Applicable Laws. When the United States disburses its funds, it is exercising a constitutional function or power and its rights and duties are governed by Federal rather than local law. However, it is frequently necessary, in the obtaining of a marketable title or enforceable security interest in property, to follow local procedural requirements and statutes. Accordingly, care should be used in following or meeting all applicable requirements and statutes of the State in which the property is located, including the filing and refiling, recording and re-recording of any documents.”
See also, e. g., §§ 401.06, 402.04, 403.03, 404.01, 404.02, 406.02, 407.03, 407.04 (“State laws vary as to the dominion a lender must exercise over assigned accounts receivable. ... In drafting servicing provisions . . . counsel should carefully consider the applicable laws of the State . . . .”), 408.01, 410.08 (“In order to guard against this Agency’s liability for payment of insurance premiums under the standard mortgagee clause in any state the law of which . . . makes the mortgagee so liable, the regional director shall . . . .”), 706.01. Section 1008.03 authorizes a Regional Director of SBA, “In instances where a disaster area is distantly located from the Regional office and where speed and economy of administration make such procedure advisable,” to recommend to the General Counsel that “local counsel be appointed and that he be authorized to rely on such counsel for all legal matters and closing opinions.” See, in addition, 13 CFR (1965 Supp.) § 122.17.
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
songer_injunct
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on the validity of an injunction or the denial of an injunction or a stay of injunction favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
UNITED STATES of America, Plaintiff-Appellee, v. Lawrence Gaylord OLSON, Defendant-Appellant.
No. 71-1617.
United States Court of Appeals, Ninth Circuit.
Sept. 13, 1971.
Gerard J. Glass, San Francisco, Cal., for defendant-appellant.
James L. Browning, U. S. Atty., San Francisco, Cal., for plaintiff-appellee.
Before KOELSCH and CHOY, Circuit Judges, and POWELL, District Judge.
Honorable Charles L. Powell, Chief Judge, United States District Court for the Eastern District of Washington, sitting by designation.
CHOY, Circuit Judge:
Lawrence Olson appeals his conviction for refusal to submit to induction. We affirm.
On October 11, 1966, Olson enrolled in Shasta Junior College and subsequently received a II-S student deferment. In 1967, he transferred to Cabrillo Junior College, and the II-S was continued. At the completion of his second year in college, his first at Cabrillo, Olson had completed 58% units, which fell short of the 60 units required by Cabrillo for junior college graduation after two years.
In December, 1968, Olson’s Local Board found that he was not “satisfactorily pursuing a full-time course of instruction” within the meaning of 32 C.F.B. sec. 1625.25 and reclassified him I-A. One day after the expiration of the thirty-day appeal period, Olson asked for an appeal and a personal appearance before the Board. The Board granted the appeal, but refused a personal interview. The I-A was upheld on appeal, and Olson was ordered to report for induction. He failed to do so, and was reordered to report. He did so, but refused to take the symbolic step forward. Olson was then indicted and convicted.
The Local Board was correct in revoking Olson’s II-S and reclassifying him I-A. Olson enrolled in a two-year college in October, 1966, and in October, 1968, should have completed the full 60-credit program required to graduate. He did not. Olson had four years from 1966 to obtain his baccalaureate degree; the letter sent by Tahoe College in 1969, attesting that he was enrolled as a full-time third-year student at that institution and would graduate in 1971, confirmed that he could not do so.
The Selective Service System recognizes that the four-year requirement need not be rigidly applied when a student transfers from a junior or community college to a four-year school. Local Board Memorandum No. 43, issued by the Director of Selective Service, provides :
“When a registrant transfers from a junior college or community college to a degree granting institution, and loses credit through no fault of his own, he may have less than the percent of course completion required in Regulation) 1625.25(c). * * * The local board may, in its discretion, grant a II-S deferment for the first year after transfer. * * * ”
But this Memorandum does not help Olson. First, the II-S deferment is discretionary with the Local Board. It need not be given. Second, the Memorandum applies only when a registrant transfers from a junior to a four-year institution and loses credit in that transition. Olson lost his credits in his move from Shasta Junior College to Cabrillo Junior College, or during his enrollment at either school. Finally, Olson has not proved that he lost his credits through no fault of his own.
Whether a student is “satisfactorily pursuing a full-time course of instruction” is a question of fact. In resolving that question, the main source of information and evidence is generally the college administration. “When a college cannot certify that the registrant is expected to graduate on time, certainly a local board would have a basis in fact for terminating the [II-S] deferment.” Coleman v. Tolson, 435 F.2d 1062, 1064 (4th Cir., 1970). Olson could not graduate in time. The Local Board was correct in revoking his II-S. United States v. Brooks, 415 F.2d 502 (6th Cir., 1969).
There is no evidence in the record to indicate that the Board’s refusal to reopen Olson’s classification when it received the Tahoe College letter was punitive in nature. Since Olson had not presented a prima facie case warranting reopening his classification, the Board’s refusal to do so was not illegal.
Finally, Olson cites United States v. Karlock, 427 F.2d 156 (9th Cir., 1970), and urges that once the Board had waived the thirty-day appeal requirement and allowed his appeal, it was also obligated to grant him a personal appearance. We find Karlock distinguishable. Karlock brought a new classification request to his board’s attention; and once it had agreed to entertain that new classification request, it had an obligation to afford the registrant an opportunity for both local and appeals board review. Here, Olson was continuously contesting the validity of the revocation of his II-S. To extend Karlock to such a situation is unwarranted. The Board’s decision here to bestow one benefit does not require it to bestow another.
Affirmed.
. (a) In Class II-S shall be placed any registrant who has requested such deferment and who is satisfactorily pursuing a full-time course of instruction at a college, * !! * such deferment shall continue until such registrant * * * fails to pursue satisfactorily a full-time course of instruction. * * *
(b) A student shall be deemed to be “satisfactorily pursuing a full-time course of instruction” when, during his academic year, lie has earned, as a minimum, ei'edits toward his degree which, when added to any credits earned during prior academic years, represent a proportion of the total number required to earn his degree at least equal to the proportion which the number of academic years completed bears to the normal number of years established by the school to obtain such degree. For example, a student pursuing a four-year course should have earned 25% of the credits required for his baccalaureate degree at the end of his first academic year, 50% at the end of his second academic year, and 75% at the end of his third academic year.
. Nor dill the Tahoe College letter constitute a prima facie case warranting reopening Olson’s classification. 32 C.F.R. sec. 1625.4; Mulloy v. United States, 398 U.S. 410, 90 S.Ct. 1766, 26 L.Bd.2d 362 (1970). The letter confirmed the fact that Olson had not completed his second academic year according to the terms of the Regulations. Since Olson’s academic year terminated in October, 1968, United States v. Brandt, 435 F.2d 324 (9th Cir., 1970), a prima facie case would have to show that at that time Olson had completed 50% of the credits needed to graduate in 1970. The Tahoe College letter did not show that.
Question: Did the court's ruling on the validity of an injunction or the denial of an injunction or a stay of injunction favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_othcrim
|
A
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule for the defendant on grounds other than procedural grounds? For example, right to speedy trial, double jeopardy, confrontation, retroactivity, self defense." This includes the question of whether the defendant waived the right to raise some claim. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
UNITED STATES, Plaintiff-Appellee, v. Evan Raymond DALE, Defendant-Appellant.
No. 11427.
United States Court of Appeals Seventh Circuit.
May 26, 1955.
John J. Hoban, East St. Louis, 111., for appellant.
C. M. Raemer, U. S. Atty., East St. Louis, 111., and Edward G. Maag, Asst. U. S. Atty., East St. Louis, III., for appellee.
Before DUFFY, Chief Judge, and LINDLEY and SWAIM, Circuit Judges.
DUFFY, Chief Judge.
This is a petition by defendant to be enlarged upon bail pending an appeal to this Court from his conviction under the provisions of Title 18 U.S.C. § 1951, known as the Anti-Racketeering Act. Defendant was tried before a jury upon an indictment containing three counts.
In the first count defendant and another were charged with conspiracy to obstruct interstate commerce by extorting $1,030,000 “by calling and conjuring up strikes, causing labor disputes, work stoppages, and difficulties in connection with the construction of” the power plant being constructed at Joppa, Illinois, “under various pretexts and claims of right but not actually for the purpose of obtaining legitimate labor objectives * * This count charged the attempted extortion from Ebasco Services, Inc. and Electric Energy, Inc. and the officers and agents of both. Ebasco Services, Inc. was the contractor, and Electric Energy, Inc. was the owner of the power plant being erected which was to furnish electric power for an atomic energy plant in Kentucky.
The second count charged the defendant and another with attempting to extort $1,030,000 from the same victims as alleged in count one. The third count charged the defendant alone with obstructing interstate commerce by extortion by extorting $7,500 from Maxon Construction Company, a sub-contractor under Ebasco Services, Inc.
The jury found the defendant guilty on all three counts and the District Judge sentenced defendant Dale to imprisonment for 15 years on each count, said sentences to run concurrently, and he imposed a fine of $10,000.00. Judge Wham refused defendant’s petition to be enlarged upon bail pending appeal, referring to Dale as a “menace” because of his threats to his community and his disloyalty to his Union.
Defendant concedes that there is ample evidence in the record from which the jury could conclude that the defendant threatened economic loss in the form of labor trouble if defendant’s demands for money were not met. Testimony at the trial also showed that defendant Dale asserted to his victims that 15 years ago he had been a chauffeur for a gangster, Blackie Perazzo of Chicago, and that by reason of Perazzo’s murder, it had been necessary for Dale to leave Chicago. He also told his victims that 15 years previously he had exchanged his shovel for a blackjack and had been using it effectively ever since, and bragged about his control over 38,000 laborers in southern Illinois, Indiana and Kentucky. Dale asserted to his victims that if they did not perform business in the “customary manner” trouble usually developed, and that one contractor failed to do business in the “customary manner” and seven men were killed. Defendant boasted that he had been indicted for murder but that the State’s Attorney who had procured the indictment was defeated at the next election by the labor vote controlled by defendant. Dale asserted to his victims that the job never would be completed unless they did business in the “customary manner” and that an example of what would happen if they failed to do so was a job where there had been 87 work stoppages. Dale explained to his victims that to insure labor peace it was customary to pay him 1% of the contract price in cash.
Rule 46(a) (2) Federal Rules of Criminal Procedure, 18 U.S.C.A., provides: “Bail may be allowed pending appeal or certiorari only if it appears that the case involves a substantial question which should be determined by the appellate court. * * * ” Defendant contends a substantial question is involved because he claims that the Anti-Racketeering Act does not punish as extortion the obtaining of money or other valuable consideration by “fear” of mere economic reprisal. Secondly, defendant contends that there is not sufficient evidence in the record to support the charge that defendant was guilty of extortion by inspiring fear of physical violence. Defendant’s third point is that he was denied his constitutional rights because about a year prior to the time of the trial he was required to submit to inquisition before a Missouri grand jury at which time questions were directed to him with reference to certain labor practices at Joppa, Illinois.
We consider first defendant’s principal contention that a substantial question is here presented for review because “fear” of economic loss is insufficient to support a conviction under the Anti-Racketeering Statute. Defendant says: “This question appears never to have been directly decided in any court.” In making this claim defendant’s counsel is clearly in error. The most recent case is Bianchi v. United States of America, 8 Cir., 219 F.2d 182, certiorari denied 75 S.Ct. 604. That Court, after pointing out that the Anti-Racketeering Act does not curtail legitimate labor activities, and after setting forth the same contentions made by the defendants there as made by the defendant here, stated, 219 F.2d at page 189: “Defendants have cited no authority sustaining their position. We conclude that ‘fear’ as defined in the extortion section of the Anti-Racketeering Act should be given its ordinary meaning, and consequently ‘fear’ would include fear of economic loss.” The Court also pointed out that in Nick v. United States, 8 Cir., 122 F.2d 660, 138 A.L.R. 791, the only threat that Nick had made was to have his operators strike, and the only fear there involved was the fear of economic loss. Nevertheless, the Court there sustained the conviction under a statute where the wording was similar to the statute under which the defendant, in the instant case, was prosecuted.
Other cases where courts have held fear of economic loss and injury is sufficient under the extortion section of the Anti-Racketeering Act are United States v. Compagna, 2 Cir., 146 F.2d 524, and Hulahan v. United States, 8 Cir., 214 F.2d 441. We find no authority to the contrary. We do not think a substantial question is presented on this point.
Defendant seems to concede that if he had used threats which inspired fear of physical violence and extorted or attempted to extort money by reason thereof, such conduct would be within the scope of the Anti-Racketeering Act. At least one count of the indictment herein made such a charge and defendant was found guilty thereof. Defendant now says that there was not sufficient evidence in the record to support that charge. Although we do not have the record before us, defendant here admits that witnesses (which the jury was entitled to believe) testified to threats made by defendant as hereinbefore set forth. We think such threats would naturally and logically inspire fear of physical violence. As the sentences imposed where to run concurrently the burden was upon petitioner to show error as to each count. Ex parte Cohen, 9 Cir., 191 F.2d 300, certiorari denied Cohen v. United States, 342 U.S. 947, 72 S.Ct. 551, 96 L.Ed. 704. See also United States of America v. Wheeler, 7 Cir., 219 F.2d 773, 774; United States v. Kelley, 7 Cir., 186 F.2d 598, 602, certiorari denied 341 U.S. 954, 71 S.Ct. 1004, 95 L.Ed. 1375, and United States v. Perplies, 7 Cir., 165 F.2d 874, 877. The petitioner has not met this burden.
The remaining point relied on by defendant is that the trial court erred in denying defendant’s belated motion to dismiss the indictment. This motion was presented on the second day of the trial and claimed that defendant was subpoenaed and testified before a grand jury in the State of Missouri, and that at said time he did not have an attorney, nor was he advised of his privilege against self-incrimination. Although we think there is no merit to defendant’s contention, see Thompson v. United States, 7 Cir., 10 F.2d 781, certainly his objection to the indictment was not timely made. The indictment had been filed many months before the date of the trial. Defendant was represented by competent counsel. No showing is made that defendant claimed his privilege. His objection comes too late. United States v. Rosenberg, 2 Cir., 195 F.2d 583, certiorari denied 344 U.S. 838, 73 S.Ct. 20, 97 L.Ed. 687; Rule 12, Federal Rules of Criminal Procedure, 18 U.S.C.A.
The attitude of this Court has been extremely liberal for granting petitions for enlargement upon bail pending appeal. However, we consider this an exceptional case. First, we are convinced that no substantial question is presented which should be determined by this Court. Second, if defendant were released on bail there would be a temptation, at least, for defendant to absent himself. The government points out that the defendant is presently under six indictments in the Eastern District of Illinois charging 37 violations of the Anti-Racketeering Act; that he is under an indictment in the Eastern District of Missouri charging offenses under the same statute, and that he is also under indictment in the Southern District of Illinois on the charge of evading more than $150,000 in income tax. Undoubtedly the District Court considered these numerous charges might be a temptation for the accused to seek a more hospitable climate.
Applications for release upon bail pending appeal have been denied in similar cases. In Bianchi v. United States of America, 8 Cir., 219 F.2d 182, certiorari denied, 75 S.Ct. 604, the defendant’s motion for enlargement upon bail was denied by both the trial court and by the Court of Appeals for the Eighth Circuit. Thereafter, on May 5, 1954, Mr. Justice Clark of the Supreme Court likewise denied the application. Likewise in United States v. Callanan, D.C., 113 F.Supp. 766, defendant and four others were convicted of conspiracy under the Anti-Racketeering Act and of substantive offenses under that Act. Callanan was sentenced to imprisonment for 12 years under each count, and bail was denied him by the District Court pending appeal. Application was made by Callanan to the United States Court of Appeals for the Eighth Circuit which petition was there denied, 223 F.2d 171, following which Callanan applied to the Justices of the Supreme Court, but enlargement upon bail was denied him during the October Term, 1954.
Petition for enlargement upon bail is
Denied.
. Some of the Court opinions refer to this section as the “Hobbs Act”. The original Anti-Racketeering Act of 1934, 48 Stat. 979, was re-enacted with amendments in 1946, 60 Stat. 420.
Question: Did the court rule for the defendant on grounds other than procedural grounds? For example, right to speedy trial, double jeopardy, confrontation, retroactivity, self defense. This includes the question of whether the defendant waived the right to raise some claim.
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
songer_typeiss
|
D
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
THE WILLIAM C. ATWATER. THE PERTH AMBOY NO. 2. McLAIN LINE, Inc., v. FALL RIVER NAV. CO.
No. 102.
Circuit Court of Appeals, Second Circuit.
March 4, 1940.
On Petition for Rehearing March 26, 1940.
Before SWAN, AUGUSTUS N. HAND, and PATTERSON, Circuit Judges.
Bingham, Englar, Jones & Houston, of New York City (Leonard J. Matteson and Richard F. Shaw, both of New York City, of counsel), for appellant Fall River Nav. Co.
Hagen & Eidenbach, of New York City (Henry C. Eidenbach and John S. Bull, both of New York City, of counsel), for appellees Perth Amboy No. 2, Fred B. Dalzell and Tice Towing Line.
Carl F. Vander Clute, of New York City, for libelants-appellees McLain Line, Inc., Dwyer Lighterage Inc., Harold L. Valentine, Inc., and Bartle J. Daly, Jr.
AUGUSTUS N. HAND, Circuit Judge.
On February 17, 1937, the S. S. At-water was in collision with several of twenty-nine barges which were towed by the tug Perth Amboy No. 2. Damage resulted both to seven of the barges and to the Atwater. The collision occurred while the Atwater was at anchor in the main ship channel of the Upper Bay of New York Harbor, a short distance south of the Statue of Liberty. The owners of the damaged barges filed a libel against the Fall River Navigation Company which owned the Atwater and the tug Perth Am-boy No. 2 which had the barges in tow. The owner of the Atwater impleaded Fred B. Dalzell, the managing owner of the tug and her helper tugs, and Tice Towing Company, the operator. The Fall River Navigation Company likewise filed a libel against the Perth Amboy No. 2 and Fred B. Dalzell, the managing owner of the tug and her helper tugs, and Tice Towing Line, the operator. The owner of the Atwater was found by the trial court to be solely liable for the damages arising from the collision because she had negligently obstructed the navigation of the tow by anchoring in a navigable channel and had not maintained proper lights. The owner and operator of the tugs which were engaged in towing the barges were found to have exercised due care and to have been in no way responsible for the collision. Accordingly an interlocutory, decree was granted to the libellant in the first suit with the usual reference as to damages. The petition to implead the owner and operator of the tugs in the first suit and the libel in the second suit were dismissed. We hold that the damages should be divided between the Fall River Navigation Company and the Perth Amboy No. 2, her owner and operator.
Without any adequate excuse the Atwater anchored at a point about 500 feet from the westerly boundary of the main ship channel which is a “narrow channel”. Outbound vessels are accustomed to hold to the westerly side of the channel in compliance with the Narrow Channel Rule, 33 U.S.C. § 210, 33 U.S.C.A. § 210. The LaBretagne, 2 Cir., 179 F. 286; The Deutschland-Munargo, D.C., 14 F.Supp. 282, affirmed, 2 Cir., 90 F.2d 454. There can be no doubt that anything which substantially narrowed the channel would embarrass the navigation of such a tow as that of the Perth Amboy No. 2. She had 29 barges made up in seven tiers of four barges each with a single tail barge. The aggregate length of the tug, towing lines and barges was about 1,000 feet, and a northeasterly wind was blowing at about 25 miles an hour. The difficulties of the tug were increased by the position of the after anchor light on the Atwater which was obscured by a pilothouse that stood higher above the dock than the anchor light. Moreover, there were unscreened deck an'd house lights approximately on a plane with the forward anchor light so that the latter was not readily distinguishable as such from a long distance and was not so lighted that it could best be seen. 33 U.S.C. Sec. 171, 33 U.S.C.A. § 171. Several witnesses testified that the lights of the Atwater were confusing to those navigating the Perth Amboy No. 2 and led them to the belief that the. Atwater was moving down the channel instead of anchored in it. We think that the court below was right in holding that the ‘ Atwater was liable for damages arising from its violation of the statute which makes it unlawful to “anchor vessels * * * in navigable channels in such a manner as to prevent or obstruct the passage of other vessels or craft * * 33 U.S.C. Sec. 409, 33 U.S.C.A. § 409; United States v. St. Louis, etc., Transp Co., 184 U.S. 247, 22 S.Ct. 350, 46 L.Ed. 520; Otto Marmet Coal & Min. Co. v. Fieger-Austin Dredg. Co., 6 Cir., 259 F. 435; Strathleven Steamship Co. v. Baulch, 4 Cir., 244 F. 412; The Caldy, 4 Cir., 153 F. 837.
We cannot agree with the finding that the Atwater was solely at fault. When proceeding down the channel with his tow, the master of the Perth Amboy No. 2 seems to have been engaged in watching a Russian vessel he was passing, and not to have looked to see what was ahead of him. Because of inattention he saw no lights of the Atwater until he got within about 750 feet of her. The Russian vessel was about a quarter of a mile to the north, of the Atwater and we can see no reason why the master of the tug could not see the steamship long before he did. Even allowing for some temporary confusion caused by the lights on the Atwater and the erroneous belief that she was proceeding down the harbor instead of lying at anchor in the main channel, the master of the tug discovered his mistake within a second or two after he first saw the Atwater and could have navigated his vessel so as to avoid a collision had he seen the steamer in time. We can discover no excuse for not seeing the lights of the Atwater at all' until she was only 750 feet away. If the master had seen her a quarter of a mile away he probably would and certainly could have gone to the 'east of her instead of passing her on the west as a result of which the tow swung across her bow and was carried by the north wind, then blowing at 25 per hour, against the Atwater. If he had promptly seen the Atwater and passed to the east of her he would have had a clear channel of about 2,000 feet in width within which to navigate. We can see nothing to explain the unfortunate manoeuvre but the lack of a diligent lookout and the ignorance of the presence of the Atwater in the channel. It seems evident that the collision between the steamer and the barges would have been avoided if the tug had seen the Atwater soon enough to lay a course to the east where there was room to navigate, instead of a course in which the tow would be swung directly across her bow.
Counsel for the Atwater call our attention to the fact that the Tice Towing Line paid $10,100 in settlement of the claims of the owners of the barges and took an assignment of their claims to one Lacey, an employee of the Dalzell Towing Company, of which the respondent Fred B. Dalzell is the president and a stockholder. The payment was made under an agreement whereby the suit by, the barge owners was to be instituted in the name of the owners. It is contended on behalf of the Perth Amboy No. 2, her owner and operator, that damages in excess of the $10,100 may be recovered under the first libel if they can in fact be proved. We do not agree. The Tice Towing Line, one of the joint tort feasors, furnished the money for the settlement. Contribution is an equitable right and if allowable between joint tort feasors, as it is in admiralty, no more ought to be exacted than one-half of the amount actually paid in satisfaction of the original claims.. This is in accord with our decision in The Gulf Stream, 2 Cir., 64 F. 809. Am.Law Inst., Restatement, Restitution § 85, Comment a; Sutherland on Damages, 4th Ed. 1916, § 1287; Merchants Discount Corp. v. Federal Street Corp., Mass., 14 N.E.2d 155, 118 A.L.R. 412; Bonney v. Seely, 2 Wend., N.Y., 481, 483; Rider v. Coyne, 246 Mich. 365, 224 N.W. 332.
The interlocutory decree upon the libel by the owners of the barges is so modified as to divide damages in the amount of $10,100 and interest between the Fall River Navigation Company and the Perth Amboy No. 2, the owner Fred B. Dalzell and Tice Towing Line. The decree dismissing the libel by Fall River Navigation Company against Tug Perth Amboy No. 2, Fred B. Dalzell and Tice Towing Line is reversed and an interlocutory decree with the usual reference is granted to Fall River Navigation Company against Perth Amboy No. 2, Fred B. Dalzell and Tice Towing Line for half damages. No costs.
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_genresp2
|
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 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.
CHASE NAT. BANK OF NEW YORK et al. v. SAYLES et al.
(Circuit Court of Appeals, First Circuit.
March 29, 1926.)
No. 1882.
1. Courts <@=505 — Suit against executors and legatee to enforce assignment of interest in estate held within equity jurisdiction of federal court, though res was in possession of probate court.
Suit against executors and legatee to enforce assignment by legatee of interest in estate held within ■ equity jurisdiction of fed.eral court on, ground of diversity of citizenship, though res involved was already in possession of probate court having concurrent jurisdiction, the decree rendered being operative against executors personally.
2. Executors and administrators <@=75 — Gifts <@=>27— Relationship of executor to legatees is substantially that of trustee; legatee having equitable interest in property of estate which he may transfer by irrevocable gift.
The relationship of executor to legatees and creditors is substantially that of trustee, and legatee has such an equitable interest in the property of the estate that he may effectively transfer or assign the whole or a part thereof by irrevocable gift, which equity will uphold.
3. Wills <@=>723 — In equity, legatee has equitable interest in property of estate, though such interest may be subject to abatement.
In equity, legatee has, in addition to right in personam against executor, an equitable interest in property of estate to extent of his legacy, though such interest may be subject to abatement.
4. Gifts <@=>28(l) — Equitable interest in property may be assigned in whole or in part by gift, which is irrevocable, if intent to pass present interest and delivery so far as possible is shown.
Equitable-interests in property may be assigned in whole or in part by gift, and, if intent to pass, a present interest and such delivery as subject-matter permits is shown, gift is irrevocable.
5. Gifts <S=>27 — Though legatee’s right in estate may be only legal chose in action, he may make irrevocable gift thereof, which equity will uphold.
If legatee’s right to share in estate amounts to no more than a legal chose in action, he may nevertheless make a valid irrevocable gift of such right or interest, which equity will uphold.
6. Assignments <@=»58.
Assignment of part of a debt or demand is enforceable in equity against debtor, whether he accepts or assents to it or not.
7. Wills <S=»740(4)— Claimant of interest in estate under statutory compromise takes as legatee (Gen. Laws R. I. 1909, c. 3I2,'§ 23).
Right in estate arising from statutory compromise under Gen. Laws R. I. 1909, e. 312, § 23, is same as if will had originally made provision for claimant, who takes as a legatee.
Appeal from the District Court of the United States for the District of Rhode Island.
Action by the Chase National Bank of New York and another against Mary D. A. Sayles and others. From decree dismissing bill (6 F.[2d] 403), plaintiffs appeal.
Reversed and remanded.
This is a bill in equity, brought by the Chase National Bank of the City of New York, a national banking association having its principal place of business in New York City, and Frederick K. Ruppreeht, a resident and citizen of the state of Connecticut, against Charles 0. Read, James R. MaeCoIl, and Kenneth F. Wood, residents and citizens of the state of Rhode Island, individually and as executors of Frank A. Sayles, late of Pawtucket, in the state of Rhode Island, deceased, and Mary D. A. Sayles, a resident and citizen of Rhode Island. After stating the citizenship of the parties and that the matter in controversy exceeds $3,000, exclusive of interest and costs, the allegations of the bill are:
“Second. The said Frank A. Sayles died, domiciled in said Pawtucket, on March 9, A. D. 1920, leaving a last will with five codicils thereto, all of which, as modified by a certain agreement of compromise authorized and approved in and by a certain decree of the superior court for said county of Providence in said state of Rhode Island, entered on May 25, 1920, in a certain cause in equity numbered 5018 and entitled ‘Charles O. Read et al., Executors and Trustees, v. Mary D. A. Sayles et al.,’ were duly admitted to probate in the probate court of said Pawtucket.
“Third. Thereafter, on March 31, 1920, letters testamentary issued out of said probate court of Pawtucket to the defendants Charles O. Read, James R. MaeCoIl, and Kenneth F. Wood, the executors named in said will and codieüs, hereinafter called ‘said executors,’ and thereafter said executors duly accepted their appointment, and on April 2, 1920, first published in accordance with law the notice of their appointment as such executors in the Evening Times, a daily newspaper published in Pawtucket.
“Fourth. In and by said will and codicils of said Frank A. Sayles, as modified by said agreement of compromise, the defendant Mary D. A. Sayles was bequeathed the sum of four million dollars ($4,000,000), hereinafter called said ‘four million dollar legacy.’
“Fifth. Thereafter, on September 15, 1920, the defendant Mary D. A. Sayles executed and delivered to the plaintiff Frederick K. Ruppreeht a certain instrument in writing under seal, whereby she assigned and transferred to said Frederick K. Ruppreeht, his executors, administrators, and assigns, an interest in said legacy to the extent of fifteen hundred thousand dollars ($1,500,000), of which assignment said executors had immediate notice.
“Sixth. Prior to the time of the entry of the decree authorizing said agreement of compromise, all of the defendants had knowledge that the plaintiff Frederick K. Ruppreeht had and intended to assert a large claim against the said executors and the estate of the said Frank A. Sayles, and prior to September 15, 1920, when the defendant Mary D. A. Sayles executed and delivered to the plaintiff Frederick K. Ruppreeht the said instrument of assignment, the details of the said claim had been presented to the defendant executors, who had advised the defendant Mary D. A. Sayles thereof, and all of the defendants were aware that the said claim amounted to the sum of two million dollars ($2,000,000). Said assignment was made with the consent and approval of said executors, and, when the said assignment was made, the defendant Mary D. A. Sayles and the said executors intended that it should be accepted by the plaintiff Frederick K. Ruppreeht, and both she and the said executors were well aware that he intended to accept it, in full settlement of his said claim against said estate. Because of the said assignment to the plaintiff Frederick K. Ruppreeht by the said Mary D. A. Sayles, and in reliance thereon, the plaintiff Frederick K. Ruppreeht refrained from formally presenting the said claim for two million dollars ($2,-000,000) to the said executors, and refrained from filing the same as a claim against the estate of the said Frank A. Sayles within the time allowed by law for the presentation and filing of claims, and all of tbe defendants herein were well aware that the plaintiff Frederick K. Rupprecht failed to present and file, and refrained from formally presenting and filing, the said claim because, of said assignment to him by the said defendant Mary D. A. Sayles and in reliance thereon.
“Seventh. On July 6, 1921, in consideration of the sum of one million five hundred thousand dollars ($1,500,000) to him paid by the plaintiff the Chase National Bank, the plaintiff Frederick K. Rupprecht executed and delivered a certain instrument in writing under seal, whereby he sold, assigned, and transferred to the Chase National Bank, its successors and assigns, all his right, title, and interest to the extent of one million five hundred thousand dollars ($1,500,000) in and to said four million’ dollar legacy and all his right, title, and interest in and to said assignment dated September 15, 1920, and executed and delivered to him by the defendant Mary D. A. Sayles, as aforesaid, of which said assignment to said the Chase National Bank, said executors, and said Mary D. A. Sayles did thereafter receive due notice.
“Thereafter demand was duly made upon said executors on behalf of said Frederick K. Rupprecht and said the Chase National Bank for payment of the amount of said four million dollar legacy assigned by said Mary D. A. Sayles to said Frederick K. Rupprecht and thereafter assigned by said Frederick K. Rupprecht to said the Chase National Bank as aforesaid, namely, the sum of one million five hundred thousand dollars ($1,500,000), which demand was refused, and said executors have made no payment on account of said legacy, either to the plaintiff Frederick K. Rupprecht or to the plaintiff the Chase National Bank.
“After the time for filing claims against said estate had expired, the said Mary D. A. Sayles notified the said Frederick K. Ruppreeht and the said the Chase National Bank that she repudiated the said assignment to the said Rupprecht; on information and belief, the plaintiffs aver that such notice of repudiation was given by the said Mary D. A. Sayles at the instance and request of the said executors, and that, at the time when it was. given, all of the defendants herein were well aware that the time for filing claims against said estate had expired; and the plaintiffs aver that neither said the Chase National Bank nor said Frederick K. Ruppreeht had any notice prior to said assignment from said Frederick K. Rupprecht to said the Chase National Bank or prior to the expiration of said time for filing claims against said éstate either that the said Mary D. A. Sayles had any intention of attempting to repudiate her said assignment, or that said executors had any intention of declining to pay to the plaintiffs their interest in said four million dollar legacy.
“Eighth. On information and belief, the plaintiffs aver that said executors have paid to the defendant Mary D. A. Sayles a portion of said four million dollar legacy, to wit, the sum of two million five hundred thousand dollars ($2,500,000), and that at the time of making said payment both said executors and said Mary D. A. Sayles had due notice, as hereinbefore set forth, of said assignments to said Frederick K. Rupprecht and said the Chase National Bank respectively. And the plaintiffs fear that said executors will, unless restrained by order of this court, pay the balance of said four million dollar legacy, to wit, one million five hundred thousand dollars ($1,500,000), to said Mary D. A. Sayles.
“Ninth. On information and belief, the plaintiffs aver that, after all debts and other liabilities of said Frank A. Sayles and the expense of the administration of his estate are paid, there will remain in the hands of said executors sufficient property and funds to satisfy all general and specific legacies under said will, including the interest in said four million dollar legacy, assigned to’ said the Chase National Bank as aforesaid, to wit, the sum of- one million five hundred thousand dollars ($1,500,000), with lawful interest thereon, and that the administration of said estate has reached such a point that it is possible and proper for said executors to satisfy and pay all of said four million dollar legacy with lawful interest thereon.
“On information and belief, plaintiffs aver that the said executors have paid in full certain of the legacies bequeathed by the said Frank A. Sayles in his said last will and codicils thereto, and have failed to pay the said one million five hundred thousand dollars ($1,500,000) to the said the Chase National Bank, because, at their instance and request, the said Mary D. A. Sayles has notified plaintiffs herein that she repudiates her said assignment to the plaintiff Rupprecht as hereinabove averred and alleged.
“Tenth. On information and belief, plaintiffs aver that the defendant Mary I). A. Sayles does not own assets or property of the value of one million five hundred thousand' dollars ($1,500,000) other than assets or property which includes, or has been derived by her from the use of, the two million five hundred thousand dollars ($2,500,000) paid,to her on account of the said four million dollar legacy by the said executors as hereinabove averred; that she is without business experience or experience in investing funds, and that the disposition of said portion of said legacy so paid her is now subject solely to her personal inclination.”
The prayers were: (1) That the executors be restrained from making further payments out of the funds of the estate on account of the four million dollar legacy to the defendant Mary D. A. Sayles or her assigns or to any one other than the Chase National Bank, its successors and assigns; (2) that Mary D. A.‘ Sayles be enjoined from receiving from said executors any further payments on account of said legacy and that she be restrained from assigning or in any way incumbering or transferring her interest, if any, in and to such part of the legacy as now remains unpaid; (3) that the validity of said assignment now held by the plaintiff bank be determined; that it be determined whether the proper administration of the estate admits of present payment of said assignment; that, if it is determined that it does, the executors be required to pay said sum with lawful interest to the plaintiff bank; otherwise that the executors be directed to retain, subject to the order of the court, sufficient property and assets of the estate to pay said sum of $1,500,000, with lawful interest thereon, until such time as the administration of said estate will permit the payment of said sum, whereupon said executors be directed to pay said sum, with lawful interest, to the plaintiff bank; and that the defendant Mary-D. A. Sayles be required to take such action, in said probate court of Pawtucket or elsewhere, as will be necessary or convenient to facilitate such payment; (4) that said executors be required to make discovery of the property and assets in their hands as executors of the estate, and concerning the payments, if any, made by them on account of the' four million dollar legacy; (5) that the defendant Mary D. A. Sayles be required to account to the plaintiff bank with respect to any payments heretofore received by her from said executors on account of the legacy, and to pay to the plaintiff bank the sum of $1,500,-000, with lawful interest thereon; that she be enjoined from in any way incumbering or transferring the portion of said legacy received by her or any property or assets in which the same has been invested; and that pending the final hearing she be ordered to pay into court the sum of $1,500,000, together with a sum sufficient to cover interest thereon to the date of the order or decree herein requiring such payment, or that she be required to pay the same to a trustee to be appointed by the court, to be held subject to the order of the court; (6) that a preliminary injunction pendente lite be granted; and (7) that the plaintiffs may have such other and further relief as may be deemed just and equitable.
To this bill the defendants filed a motion to dismiss in the nature of a demurrer, setting out six grounds: (1) Because the court was without jurisdiction to hear and determine the suit; (2) -because the matter involv-. ed was a matter of probate subject to determination by the probate courts of Rhode Island; (3) because the controversy was one concerning a res which is already in the possession of another court of concurrent jurisdiction, to wit, the probate court of the city of Pawtucket; (4) because the plaintiffs seek to enforce the payment of a legacy by the executors of an estate, and it does not appear that the executors have filed in the office of the clerk of the probate court in which the will was probated a statement setting out the names of the legatees and the amounts to be paid and the property to be turned over to them respectively, or to be held by themselves as trustees, or that they have failed to comply with the statutes of Rhode Island relating to the filing of said statements; (5) because said bill of complaint does not state facts sufficient to entitle the plaintiffs or either of them to the relief prayed for or to any relief in equity; and (6) because it does not appear in and by said bill of complaint that any consideration was given' for said assignment alleged to have been made to the plaintiff Frederick K. Ruppreeht by the defendant Mary D. A. Sayles.
After hearing the motion, the District Judge filed a written opinion, in which he expressed the view that a total assignment of a pecuniary legacy by way of gift was enforceable in equity, but a partial assignment was not, unless made upon consideration, and entered a decree dismissing the bill, from which this appeal is prosecuted.
Eldon Bisbee, of New York City, and Charles F. Choate, Jr., of Boston, Mass. (Herbert M. Sherwood, Arthur M. Allen, Sidney Clifford, Roger T. Clapp, Sherwood, Heltzen & Clifford and Hinckley, Allen, Tillinghast & Phillips, all of Providence, R. I., on the brief), for appellants.
Robert B. Dresser and Claude R. Branch, both of Providence, R. I. (Samuel Williston, of Cambridge, Mass., and Edwards & Angell, of Providence, R. L, on the brief), for appellees.
Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.
BINGHAM, Circuit Judge
(after stating the facts, as above). The defendants have not briefed or argued the first four objections assigned in their motion to dismiss, and we do not purpose to consider them at length.
The jurisdiction of the court as a federal court is adequately stated, for the bill alleges diversity of citizenship, and that the amount in controversy exceeds, exclusive of interest and costs, the sum'of $3,000.
Then, again, if the validity of the assignment and the rights of the plaintiffs therein could be determined in the probate court of Rhode Island, that in no way affects the general chancery powers of this or of the District Court, the rights of citizens of different states being involved. Waterman v. Canal Louisiana Bank Co., 30 S. Ct. 10, 215 U. S. 33, 54 L. Ed. 80; Atwood v. Rhode Island Hospital Trust Co. (C. C. A.) 275 F. 513, 24 A. L. R. 156. The proceeding being of the nature stated, it in no way interferes with the due administration of the estate in the probate court, and any decree which may be entered will operate, so far as the exeeutors are concerned, against them personally. Allen v. United States (C. C. A.) 285 F. 678, 683, 684.
In support of the fifth and sixth grounds stated in the motion to dismiss, the defendants contend that, inasmuch as it appears in the bill of complaint that the exeeutors did not promise to pay the assignee, Rupprecht, or his assignee, the bank, there was no novation, and, as no consideration was paid for the assignment, and the assignment was not of the whole, but a part, of the legacy, this proceeding cannot be maintained. The reason asserted for this contention is that the right of a pecuniary legatee is not an equitable chose in action or an equitable right in property, but is a legal chose and a right of the same nature as that of a creditor against his debtor; that the legal title to such a chose cannot be parted with, and no equitable right or interest in or "to it passes by assignment without consideration, whether the assignment purports to be total or partial. In other words, their position is that the possessor of a legal title to property cannot part with an equitable title therein, except by way of a declaration of trust, or create therein an interest in the nature of an equitable lien, except by contract based upon consideration; that in this case there,was no declaration of trust, so no equitable property interest passed to the assignee, and that, no consideration having been paid, no equitable lien arose; that, had the assignment purported to have been of a total interest, the law would imply a power to sue in the name of the assignor and, if for consideration, the power would be irrevocable although no interest in the subject-matter passed; and that, if the assignment was partial and for consideration, although in such ease no authority at law would be implied to sue in the name of the assignor, equity would afford relief because of the consideration paid, but would not aid a volunteer. In its final analysis their contention amounts to this: That the interest of a pecuniary legatee is a legal chose in action; that it cannot be the subject of a gift by way of a total assignment, because no present interest in the subject-matter would pass and the power to sue would be revocable; that, if the gift was a partial assignment, no present interest in the subject-matter would pass, and, being without consideration, equity would not lend its aid.
The plaintiffs' contention is that the interest of a pecuniary legatee is an equitable interest in property; that the executors stand as trustees of the decedent's estate, at least as to the personalty, (1) to pay debts; (2) to carry out the specific legacies; (3) to pay the pecuniary legacies; and (4) to distribute the balance of the estate, if any, among the residuary legatees; or, if the relationship between an executor and a pecuniary legatee is not strictly that of trustee and cestui que trust, nevertheless the right is not a legal chose such as exists between debtor and creditor, but an equitable chose, which the legatee may part with, and that in either case he can pass a present equitable title or interest in the whole or in a part of such legacy by gift or by sale; that, inasmuch as the legatee may part with a present equitable interest, whether that interest be in property or in an equitable chose, if it is by way of gift, and the transaction is executed so far as the nature of the subject-matter permits, as it was by assignment under seal in this case, the gift cannot be revoked, any more than it could have been, had the subject of the gift been a mere chattel; that to establish a completed gift by way of assignment of a pecuniary legacy, whether of the whole or of a part, it is only necessary to show an intention on the part of the legatee to give the whole or a partial interest, and an execution of that intent by such delivery as the nature of the subject-ma,tter permits; that as the delivery of a deed of gift by the owner of chattels in the possession of a third party under a lease would be an adequate delivery in execution of the donor’s intention to make a completed gift (Corning v. Records, 46 A. 462, 69 N. H. 390, 76 Am. S't. Rep. 178), so here a delivery of a deed of assignment would be an adequate execution of the donor’s intent to constitute a completed gift of a part of the legatee’s interest in the legacy; that the essential feature of a gift is that its subject-matter be such that a present interest, legal or equitable, may be parted with by actual or symbolical delivery to the donee in execution of the donor’s intent to give; and that equity is not hampered as to remedy, as is the law, in the enforcement of a gift of a part any more than of a gift of the whole.
After an extended examination of the questions involved, we have reached the conclusion that the contention of the plaintiffs, as above stated, is correct. Without stating the early conception of the law as to the relationship of an executor to creditors and legatees, or wherein it differed from that of a strict trustee, we regard it now settled that it is substantially that of a trustee; that, while his powers in the management and disposition of the property of the estate in some respects, perhaps, may be broader than those of an ordinary trustee, and a person dealing with him in the disposition of its assets may safely assume that he is acting in the line of his duty, unless upon the face of the transaction the contrary appears or he has knowledge of the executor’s purpose to be guilty of a -breach of trust, nevertheless, in the main, the relationship is that of a trustee and cestui que trust, and the legatee has such an equitable interest in the property of the estate that he may transfer it.
In Jeremy, Eq. Jur. (1828) p. 103, it is said:
“The original and ordinary jurisdiction, in matters testamentary, belongs to the ecclesiastical courts, and it is by virtue of the probate, letters of administration, or letters of administration with the will annexed, that such appointee obtains complete power over the personal estate of the deceased person whom he thus represents. Prom the conscientious duty, however, which necessarily follows such appointments, this court construes a trust to arise in the executor or administrator for the persons who are entitled to the property or are beneficially interested therein, and, without infringing upon the jurisdiction of the ecclesiastical courts, it enforces execution thereof.”
In 1 Pomeroy, Eq. Jur. § 156, it is said:
“The theory of trusts, express and implied, having been established, it was easily extended to certain other analogous subjects, which were thus brought within the equitable jurisdiction. One of the most important of these was the administration of the estates of deceased persons. The relation subsisting between executors and administrators, on the one hand, and legatees, distributees, and creditors, on the other, has so many features and incidents of an express active trust, that it-has been completely embraced within the equitable jurisdiction in England, and also in the United States, where statutes have not interfered to take away or abridge the jurisdiction. * * * This jurisdiction at length became firmly established and practically exclusive on this ground of trusts: That the relation between the executor or administrator and the parties interested in the estate is virtually one of express trust, which equity has always the power to enforce.”
In Adair v. Shaw, 1 Sehoales & L. 243, 262, it is said:
“The only thing to be inquired in a court of equity is whether the property bound by the trust has come to the hands of the persons who were either bound to execute the trust, or to preserve the property for the persons entitled to it, and the whole jurisdiction of courts of equity in the administration of assets is founded on the principle that it is the duty of the court to enforce the execution of trusts, and that the executor or administrator, who has the property in his hands, is bound to apply that property in the payment of debts and legacies, and to apply the surplus according to the will, or, in the ease of intestacy, according to the statute of distributions. The sole ground on which courts of equity proceed in cases of this kind is the execution of trusts, and, if we advert to the eases on the subject, we shall find that trusts are enforced, not only against.those persons who rightfully are possessed of the trust property as trustees, but also against all persons who come into possession of the property bound by the trust with notice of the trust, and whoever so comes into possession is considered as bound, with respect to that specific property, to the execution of the trust.”
In Green’s Adm’r v. Creighton, 23 How. 90, 106 (16 L. Ed. 419), it is said:
“In the court of chancery, executors and administrators are considered as trustees, and that court exercises original jurisdiction over them, in favor of creditors, legatees, and heirs, in reference to the proper execution of their trusts.”
In Smith v. Ayer, 101 U. S. 320, 327 (25 L. Ed. 955), the court said:
“The executor, though holding the title to the personal assets, is not absolute owner of them. They are not liable for his debts, nor can he dispose of them by will. He holds them in trust to pay the debts of the deceased, and then to discharge his legacies, and, as in all other cases of trust, he is personally responsible for any breach of duty; and property thus held, acquired from him by third parties with knowledge of his trust and his disregard of its obligations, can be followed and recovered. The law exacts the most perfect good faith from all parties dealing with a trustee respecting trust property. Whoever takes it for an object other than the general purposes of the trust, or such as may reasonably be supposed to be within its scope, must look to the authority of the trustee, or he will act at his peril.”
See, also, Sherburne v. Goodwin, 44 N. H. 271, 279, 280; M’Leod v. Drummond, 14 Ves. 353, on appeal 17 Ves. 152; Griffith v. Frazier, 8 Cranch. 9, 24, 3 L. Ed. 471; Blood v. Kane, 29 N. E. 994, 130 N. Y. 514, 15 L. R. A. 490; Marvel v. Babbitt, 9 N. E. 566, 143 Mass. 226; Mechanics’ Savings Bank v. Waite, 22 N. E. 915, 150 Mass. 234; Davis et al. v. Newton, 6 Metc. (Mass.) 537, 541; Kent v. Dunham, 106 Mass. 586, 590, 591; Story’s Eq. Jur. §§ 581, 593.
These decisions disclose the idea that a legatee has, in equity, in addition to a right in personam against the executor, an equitable interest in the property of the estate to the extent of his legacy, even though his interest may be subject to abatement in ease the assets remaining after payment of the debts and expenses of administration may be less than enough to pay his legacy in full.
In New Jersey, as early as 1834, in the case of King v. Berry, 3 N. J. Eq. 44, the matter here under consideration was involved. In that ease the assignee of a pecuniary legacy brought a bill in equity against the executors of an estate for an accounting and payment to him of the legacy, and was allowed to recover. The Chancellor, speaking for the court, said:
“They [the assignors] were legatees under a will. Their rights were not common-law rights. * * * For a long series of years legacies have been suable in the Court of Chancery, and that court has now, if it has not always had, a concurrent jurisdiction with the spiritual court. That they may now be sued for in the common-law, courts, by the statute, does not alter their essential character. They do not change their nature to suit the law of the court, but the court changes its law, and accommodates itself to their peculiar character. When suits for legacies were first prosecuted in Courts of Chancery they were obliged to adopt the law of the spiritual forums; and so it has been with the courts of common law. 3 Ridg. P. C. 243.
“The character of the right, then, is not altered by making it cognizable, under certain circumstances, in the common-law courts. It remains essentially an equitable interest. It is not barred by the statute of limitation; at least such was the law, and such it is still, in England. * * *
“The claim to a legacy is essentially an equitable, and not a legal claim. That it is an assignable interest cannot be doubted, and the assignment, if it passes anything, must pass the whole right of the assignor.” And therefore “it was not necessary to make the assignors parties to this suit.”
In 1864 the conclusion reached in King v. Berry was affirmed in Executors of Luse v. Parke, 17 N. J. Eq. 415. In that case it appeared that a pecuniary legatee, whose legacy was to be paid to him when he reached 23, became 23 on April 11, 1862; that in 1860, when he was 21 years old, he assigned his legacy to the petitioner, Parke; that January 29, 1861, he again assigned the legacy to one Vliet, who gave notice to the executors; and that Vliet assigned it to Kennedy, one of the executors. The right.of the first assignee was upheld. It was there said:
“The defense is based on the idea that the legacy, like any other chose in action, is not assignable at law; that a mere equitable interest passed by the assignment, the legal title remaining in the assignor; and that, the money having been paid by the executors to the second assignee, without notice of the first assignment, they cannot be prejudiced by the secret equity of the first assignee. But the title to the legacy is not a common-law right. It was held by the Chancellor, in King v. Ex’rs of Berry, 3 N. J. Eq. 54, that a claim to a legacy is essentially an equitable, not a legal, claim, and that the assignment must pass the whole right of the assignor; that there does not remain in the assignor, after the assignment of a legacy, a distinct, subsisting right, capable of being assigned, but that the entire interest passes.”
J
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:
|
sc_lcdispositiondirection
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations
GENERAL BUILDING CONTRACTORS ASSOCIATION, INC. v. PENNSYLVANIA et al.
No. 81-280.
Argued March 3, 1982
Decided June 29, 1982
Rehnquist, J., delivered the opinion of the Court, in which Burger, C. J., and White, Blackmun, Powell, and O’Connor, JJ., joined, and in Parts III and IV of which Stevens, J., joined. O’Connor, J., filed a concurring opinion, in which Blackmun, J., joined, post, p. 403. Stevens, J., filed an opinion concurring in part and concurring in the judgment, post, p. 405. Marshall, J., filed a dissenting opinion, in which Brennan, J., joined, post, p. 407.
John J. McAleese, Jr., argued the cause for petitioners in Nos. 81-330, 81-331, 81-332, and 81-333. With him on the briefs for petitioners in Nos. 81-331 and 81-332 was Thomas J. McGoldrick. Bernard G. Segal, Martin Wald, and Nicholas N. Price filed briefs for petitioner in No. 81-330. Robert W. Kopp and David M. Pellow filed briefs for petitioner in No. 81-333.
John G. Kester argued the cause for petitioner in No. 81-280. With him on the briefs was John J. Buckley, Jr.
Harold I. Goodman argued the cause for respondents in all cases. With him on the brief for individual and class respondents were Jonathan M. Stein and Robert J. Reinstein. LeRoy S. Zimmerman, Attorney General of Pennsylvania, and Joel M. Ressler, Louis J. Rovelli, and Margaret Hunting, Assistant Attorneys General, filed a brief for respondent Commonwealth of Pennsylvania. Kenneth I. Jonson filed a brief for respondent Local 542, International Union of Operating Engineers.
Together with No. 81-330, United Engineers & Constructors, Inc. v. Pennsylvania et al.; No. 81-331, Contractors Association of Eastern Pennsylvania et al. v. Pennsylvania et al.; No. 81-332, Glasgow, Inc. v. Pennsylvania et al.; and No. 81-333, Bechtel Power Corp. v. Pennsylvania et al., also on certiorari to the same court.
Briefs of amici curiae urging reversal were filed by Robert E. Williams, Douglas S. McDowell, and Thomas R. Bagby for the Equal Employment Advisory Council; by Anthony J. Obadal and Alan D. Cirker for the National Constructors Association; and by Daniel J. Popeo, Paul D. Kamenar, and Nicholas E. Calió for the Washington Legal Foundation.
Thomas I. Atkins and Michael H. Sussman filed a brief for the National Association for the Advancement of Colored People as amicus curiae urging affirmance.
Justice Rehnquist
delivered the opinion of the Court.
Respondents, the Commonwealth of Pennsylvania and the representatives of a class of racial minorities who are skilled or seek work as operating engineers in the construction industry in Eastern Pennsylvania and Delaware, commenced this action under a variety of federal statutes protecting civil rights, including 42 U. S. C. § 1981. The complaint sought to redress racial discrimination in the operation of an exclusive hiring hall established in contracts between Local 542 of the International Union of Operating Engineers and construction industry employers doing business within the Union’s jurisdiction. Respondents also alleged discrimination in the operation of an apprenticeship program established by Local 542 and several construction trade associations. Named as defendants were Local 542, the trade associations, the organization charged with administering the trade’s apprenticeship program, and a class of approximately 1,400 construction industry employers. Petitioners, the defendant contractors and trade associations, seek review of a judgment granting an injunction against them. The questions we resolve are whether liability under 42 U. S. C. § 1981 requires proof of discriminatory intent and whether, absent such proof, liability can nevertheless be imposed vicariously on the employers and trade associations for the discriminatory conduct of the Union.
I — H
The hiring hall system that is the focus of this litigation originated in a collective-bargaining agreement negotiated in 1961 by Local 542 and four construction trade associations in the Philadelphia area, three of whom are petitioners in this Court. The agreement was concluded only after a 10-week strike prompted by the resistance of the trade associations to the Union’s demand for an exclusive hiring hall. Under the terms of the agreement, the Union was to maintain lists of operating engineers, or would-be engineers, classified according to the extent of their recent construction experience. Signatory employers were contractually obligated to hire operating engineers only from among those referred by the Union from its current lists. Workers affiliated with the Union were barred from seeking work with those employers except through Union referrals. Thus, the collective-bargaining agreement effectively channeled all employment opportunities through the hiring hall. Since 1961 this requirement has been a constant feature of contracts negotiated with Local 542 by the trade associations, as well as of contracts signed with the Union by employers who were not represented by one of those associations in collective bargaining.
Among the means of gaining access to the Union’s referral lists is an apprenticeship program established in 1965 by Local 542 and the trade associations. The program, which involves classroom and field training, is administered by the Joint Apprenticeship and Training Committee (JATC), a body of trustees half of whom are appointed by the Union and half by the trade associations. While enrolled in the program, apprentices are referred by the Union for unskilled construction work. Graduates of the program become journeymen operating engineers and are referred for heavy equipment jobs.
This action was filed in 1971 by the Commonwealth of Pennsylvania and 12 black plaintiffs representing a proposed class of minority group members residing within the jurisdiction of Local 542. The complaint charged that the Union and the JATC had violated numerous state and federal laws prohibiting employment discrimination, including Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. §2000e et seq. (1976 ed. and Supp. IV), and 42 U. S. C. § 1981. The complaint alleged that these defendants had engaged in a pattern and practice of racial discrimination, by systematically denying access to the Union’s referral lists, and by arbitrarily skewing referrals in favor of white workers, limiting most minority workers who did gain access to the hiring hall to jobs of short hours and low pay. The contractor employers and trade associations were also named as defendants, although the complaint did not allege a Title VII cause of action against them.
The District Court divided the trial into two stages. See Pennsylvania v. Local 542, Int’l Union of Operating Engineers, 469 F. Supp. 329, 348 (ED Pa. 1978). The first stage, from which petitioners appeal, addressed issues of liability; assessment of damages was deferred to a second stage. For purposes of the first phase of the proceedings, the court certified a plaintiff class of minority operating engineers and would-be engineers, as well as a defendant class consisting of all trade associations and employers who had been parties to labor contracts with Local 542. A single employer, petitioner Glasgow, Inc., was certified to represent the defendant subclass of approximately 1,400 contractor employers.
The District Court’s opinion in the liability phase of the trial is lengthy. For our purposes, however, the relevant findings and conclusions can be summarized briefly. First, the court found that the hiring hall system established by collective bargaining was neutral on its face. Id., at 342. Indeed, after May 1, 1971, the contracts contained a provision expressly prohibiting employment discrimination on the basis of race, religion, color, or national origin. Id., at 340, and n. 6. But the court found that Local 542, in administering the system, “practiced a pattern of intentional discrimination and that union practices in the overall operation of a hiring hall for operating engineers created substantial racial disparities.” Id., at 370. The court made similar findings regarding the JATC’s administration of the job-training program. Id., at 384. On the basis of these findings, the District Court held that Local 542 and the JATC had violated Title VII, both because they intentionally discriminated and because they enforced practices that resulted in a disparate racial impact. Id., at 397-399. The court also interpreted 42 U. S. C. § 1981 to permit imposition of liability “on roughly the same basis as a Title VII claim,” 469 F. Supp., at 401, and therefore concluded that the Union and the JATC had also violated §1981. Id., at 399-401.
Turning to petitioners’ liability under §1981, the court found that the plaintiffs had failed to prove “that the associations or contractors viewed simply as a class were actually aware of the union discrimination,” id., at 401, and had failed to show “intent to discriminate by the employers as a class,” id., at 412. Nevertheless, the court held the employers and the associations liable under § 1981 for the purpose of imposing an injunctive remedy “as a result of their contractual relationship to and use of a hiring hall system which in practice effectuated intentional discrimination, whether or not the employers and associations knew or should have known [of the Union’s conduct].” Id., at 401. The court reasoned that liability under § 1981 “requires no proof of purposeful conduct on the part of any of the defendants.” Id., at 407. Instead, it was sufficient that “(1) the employers delegated an important aspect of their hiring procedure to the union; [and that] (2) the union, in effectuating the delegation, intentionally discriminated or, alternatively, produced a discriminatory impact.” Id., at 412. “[Plaintiffs have shown that the requisite relationship exists among employers, associations, and union to render applicable the theory of respondeat superior, thus making employers and associations liable injunctively for the discriminatory acts of the union.” Id., at 413.
Following an appeal authorized by 28 U. S. C. § 1292(b), the Court of Appeals for the Third Circuit, sitting en banc, affirmed the judgment of liability against petitioners by an equally divided vote. 648 F. 2d 923 (1981). We granted certiorari, 454 U. S. 939 (1981), and we now reverse.
II
The District Court held that petitioners had violated 42 U. S. C. § 1981 notwithstanding its finding that, as a class, petitioners did not intentionally discriminate against minority workers and neither knew nor had reason to know of the Union’s discriminatory practices. The first question we address, therefore, is whether liability may be imposed under § 1981 without proof of intentional discrimination.
Title 42 U. S. C. § 1981 provides:
“All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.”
We have traced the evolution of this statute and its companion, 42 U. S. C. § 1982, on more than one occasion, see, e. g., McDonald v. Santa Fe Trail Transp. Co., 427 U. S. 273, 287-296 (1976); Runyon v. McCrary, 427 U. S. 160, 168-170 (1976); Jones v. Alfred H. Mayer Co., 392 U. S. 409, 422-437 (1968), and we will not repeat the narrative again except in broad outline.
The operative language of both laws apparently originated in § 1 of the Civil Rights Act of 1866, 14 Stat. 27, enacted by Congress shortly after ratification of the Thirteenth Amendment. “The legislative history of the 1866 Act clearly indicates that Congress intended to protect a limited category of rights, specifically defined in terms of racial equality.” Georgia v. Rachel, 384 U. S. 780, 791 (1966). The same Congress also passed the Joint Resolution that was later adopted as the Fourteenth Amendment. See Cong. Globe, 39th Cong., 1st Sess., 3148-3149, 3042 (1866). As we explained in Hurd v. Hodge, 334 U. S. 24, 32-33 (1948) (footnotes omitted):
“Frequent references to the Civil Rights Act are to be found in the record of the legislative debates on the adoption of the Amendment. It is clear that in many significant respects the statute and the Amendment were expressions of the same general congressional policy. Indeed, as the legislative debates reveal, one of the primary purposes of many members of Congress in supporting the adoption of the Fourteenth Amendment was to incorporate the guaranties of the Civil Rights Act of 1866 in the organic law of the land. Others supported the adoption of the Amendment in order to eliminate doubt as to the constitutional validity of the Civil Rights Act as applied to the States.”
Following ratification of the Fourteenth Amendment, Congress passed what has come to be known as the Enforcement Act of 1870,16 Stat. 140, pursuant to the power conferred by § 5 of the Amendment. Section 16 of that Act contains essentially the language that now appears in § 1981. Indeed, the present codification is derived from § 1977 of the Revised Statutes of 1874, which in turn codified verbatim § 16 of the 1870 Act. Section 16 differed from § 1 of the 1866 Act in at least two respects. First, where §1 of the 1866 Act extended its guarantees to “citizens, of every race and color,” §16 of the 1870 Act — and §1981 — protects “all persons.” See United States v. Wong Kim Ark, 169 U. S. 649, 675 (1898). Second, the 1870 Act omitted language contained in the 1866 Act, and eventually codified as § 1982, guaranteeing property rights equivalent to those enjoyed by white citizens. Thus, “[although the 1866 Act rested only on the Thirteenth Amendment... and, indeed, was enacted before the Fourteenth Amendment was formally proposed,... the 1870 Act was passed pursuant to the Fourteenth, and changes in wording may have reflected the language of the Fourteenth Amendment.” Tillman v. Wheaton-Haven Recreation Assn., 410 U. S. 431, 439-440, n. 11 (1973). See Runyon v. McCrary, supra, at 168-170, n. 8.
In determining whether §1981 reaches practices that merely result in a disproportionate impact on a particular class, or instead is limited to conduct motivated by a discriminatory purpose, we must be mindful of the “events and passions of the time” in which the law was forged. United States v. Price, 383 U. S. 787, 803 (1966). The Civil War had ended in April 1865. The First Session of the Thirty-ninth Congress met on December 4, 1865, some six months after the preceding Congress had sent to the States the Thirteenth Amendment and just two weeks before the Secretary of State certified the Amendment’s ratification. On January 5, 1866, Senator Trumbull introduced the bill that would become the 1866 Act.
The principal object of the legislation was to eradicate the Black Codes, laws enacted by Southern legislatures imposing a range of civil disabilities on freedmen. Most of these laws embodied express racial classifications and although others, such as those penalizing vagrancy, were facially neutral, Congress plainly perceived all of them as consciously conceived methods of resurrecting the incidents of slavery. Senator Trumbull summarized the paramount aims of his bill:
“Since the abolition of slavery, the Legislatures which have assembled in the insurrectionary States have passed laws relating to the freedmen, and in nearly all the States they have discriminated against them. They deny them certain rights, subject them to severe penalties, and still impose upon them the very restrictions which were imposed upon them in consequence of the existence of slavery, and before it was abolished. The purpose of the bill under consideration is to destroy all these discriminations, and to carry into effect the [Thirteenth] amendment.” Cong. Globe, 39th Cong., 1st Sess., 474 (1866).
Senator Trumbull emphasized: “This bill has nothing to do with the political rights or status of parties. It is confined exclusively to their civil rights, such rights as should appertain to every free man.” Id., at 476 (emphasis in original).
Of course, this Court has found in the legislative history of the 1866 Act evidence that Congress sought to accomplish more than the destruction of state-imposed civil disabilities and discriminatory punishments. We have held that both § 1981 and § 1982 “prohibit all racial discrimination, whether or not under color of law, with respect to the rights enumerated therein.” Jones v. Alfred H. Mayer Co., 392 U. S., at 436. See Johnson v. Railway Express Agency, Inc., 421 U. S. 454, 459-460 (1975); Runyon v. McCrary, 427 U. S., at 168. Nevertheless, the fact that the prohibitions of § 1981 encompass private as well as governmental action does not suggest that the statute reaches more than purposeful discrimination, whether public or private. Indeed, the relevant opinions are hostile to such an implication. Thus, although we held in Jones, supra, that § 1982 reaches private action, we explained that § 1 of the 1866 Act “was meant to prohibit all racially motivated deprivations of the rights enumerated in the statute.” 392 U. S., at 426 (emphasis on “racially motivated” added). Similarly, in Runyon v. McCrary, supra, we stated that § 1981 would be violated “if a private offeror refuses to extend to a Negro, solely because he is a Negro, the same opportunity to enter into contracts as he extends to white offerees.” 427 U. S., at 170-171.
The immediate evils with which the Thirty-ninth Congress was concerned simply did not include practices that were “neutral on their face, and even neutral in terms of intent,” Griggs v. Duke Power Co., 401 U. S. 424, 430 (1971), but that had the incidental effect of disadvantaging blacks to a greater degree than whites. Congress instead acted to protect the freedmen from intentional discrimination by those whose object was “to make their former slaves dependent serfs, victims of unjust laws, and debarred from all progress and elevation by organized social prejudices.” Cong. Globe, 39th Cong., 1st Sess., 1839 (1866) (Rep. Clarke). See Memphis v. Greene, 451 U. S. 100, 131-135 (1981) (WHITE, J., concurring in judgment). The supporters of the bill repeatedly emphasized that the legislation was designed to eradicate blatant deprivations of civil rights, clearly fashioned with the purpose of oppressing the former slaves. To infer that Congress sought to accomplish more than this would require stronger evidence in the legislative record than we have been able to discern.
Our conclusion that §1981 reaches only purposeful discrimination is supported by one final observation about its legislative history. As noted earlier, the origins of the law can be traced to both the Civil Rights Act of 1866 and the Enforcement Act of 1870. Both of these laws, in turn, were legislative cousins of the Fourteenth Amendment. The 1866 Act represented Congress’ first attempt to ensure equal rights for the freedmen following the formal abolition of slavery effected by the Thirteenth Amendment. As such, it constituted an initial blueprint of the Fourteenth Amendment, which Congress proposed in part as a means of “incorporating] the guaranties of the Civil Rights Act of 1866 in the organic law of the land.” Hurd v. Hodge, 334 U. S., at 32. The 1870 Act, which contained the language that now appears in § 1981, was enacted as a means of enforcing the recently ratified Fourteenth Amendment. In light of the close connection between these Acts and the Amendment, it would be incongruous to construe the principal object of their successor, § 1981, in a manner markedly different from that of the Amendment itself.
With respect to the latter, “official action will not be held unconstitutional solely because it results in a racially disproportionate impact,” Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252, 264-265 (1977). “[E]ven if a neutral law has a disproportionately adverse impact upon a racial minority, it is unconstitutional under the Equal Protection Clause only if that impact can be traced to a discriminatory purpose.” Personnel Administrator of Mass. v. Feeney, 442 U. S. 256, 272 (1979). See Washington v. Davis, 426 U. S. 229 (1976). The same Congress that proposed the Fourteenth Amendment also passed the Civil Rights Act of 1866, and the ratification of that Amendment paved the way for the Enforcement Act of 1870. These measures were all products of the same milieu and were directed against the same evils. Although Congress might have charted a different course in enacting the predecessors to §1981 than it did in proposing the Fourteenth Amendment, we have found no convincing evidence that it did so.
We conclude, therefore, that § 1981, like the Equal Protection Clause, can be violated only by purposeful discrimination.
Ill
The District Court held petitioners liable under § 1981 notwithstanding its finding that the plaintiffs had failed to prove intent to discriminate on the part of the employers and associations as a class. In light of our holding that § 1981 can be violated only by intentional discrimination, the District Court’s judgment can stand only if liability under § 1981 can properly rest on some ground other than the discriminatory motivation of the petitioners themselves. Both the District Court and respondents have relied on such grounds, but we find them unconvincing.
A
The District Court reasoned that liability could be vicariously imposed upon the employers and associations, based upon the intentional discrimination practiced by Local 542 in its operation of the hiring hall. The court’s theory was that petitioners had delegated to the “union hiring hall” the authority to select workers as “the agent for two principals— the union and the contractors, with their respective associations.” 469 F. Supp., at 411. Since the hiring hall came into existence only through the agreement of petitioners, and since the exclusive hiring hall was the means by which “the intentional discrimination of the union was able to work its way broadly into the common workforce of operating engineers,” id., at 412, the court concluded that “[t]he acts of the union therefore justify imposition of responsibility upon those employers participating in the original delegation,” ibid. The effect of this holding, as the court recognized, was to impose a “duty to see that discrimination does not take place in the selection of one’s workforce,” regardless of where the discrimination originates. Ibid.
As applied to the petitioner associations, the District Court’s theory is flawed on its own terms. The doctrine of respondeat superior, as traditionally conceived and as understood by the District Court, see id., at 411, enables the imposition of liability on a principal for the tortious acts of his agent and, in the more common case, on the master for the wrongful acts of his servant. See Restatement (Second) of Agency §§215-216, 219 (1958) (Restatement); W. Prosser, Law of Torts §§69-70 (4th ed. 1971) (Prosser); W. Seavey, Law of Agency §83 (1964) (Seavey). “Agency is the fiduciary relation which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act.” Restatement § 1. A master-servant relationship is a form of agency in which the master employs the servant as “an agent to perform service in his affairs” and “controls or has the right to control the physical conduct of the other in the performance of the service.” Id., §2. See 2 F. Harper & F. James, Law of Torts §26.6 (1956) (Harper & James). Local 542, in its operation of the hiring hall, simply performed no function as the agent or servant of the associations. The record demonstrates that the associations themselves do not hire operating engineers, and never have. Their primary purpose is to represent certain employers in contract negotiations with the Union. Even if the doctrine of respondeat superior were broadly applicable to suits based on § 1981, therefore, it would not support the imposition of liability on a defendant based on the acts of a party with whom it had no agency or employment relationship.
We have similar difficulty in accepting the application of traditional respondeat superior doctrine to the class of contractor employers. In the run of cases, the relationship between an employer and the union that represents its employees simply cannot be accurately characterized as one between principal and agent or master and servant. Indeed, such a conception is alien to the fundamental assumptions upon which the federal labor laws are structured.
At the core of agency is a “fiduciary relation” arising from the “consent by one person to another that the other shall act on his behalf and subject to his control.” Restatement § 1. Equally central to the master-servant relation is the master’s control over or right to control the physical activities of the servant. See id., §220; 2 Harper & James §26.3; Seavey § 84, p. 142. See also Logue v. United States, 412 U. S. 521, 527 (1973). The District Court found that the requirement of control was satisfied because “the employers retained power to oppose the union discrimination.” 469 F. Supp., at 411, n. 61. However, the “power to oppose” the Union, even when the opposition is grounded in the terms of the collective-bargaining agreement, is not tantamount to a “right to control” the Union. See Lummus Co. v. NLRB, 119 U. S. App. D. C. 229, 236, 339 F. 2d 728, 735 (1964). Indeed, a rule equating the two would convert every contractual relationship into an agency relationship, a result clearly unsupported by the common-law doctrines on which the District Court relied.
The District Court’s assumptions about the relation between the Union and the class of employers with whom it has contracted also runs counter to the premises on which the federal labor laws have been constructed. While authorizing collective bargaining and providing means of enforcing the resultant contracts, the National Labor Relations Act expressly prohibits employers from compromising the independence of labor unions. See 49 Stat. 452, as amended, 29 U. S. C. § 158(a); 61 Stat. 157, as amended, 29 U. S. C. § 186. The entire process of collective bargaining is structured and regulated on the assumption that “[t]he parties — even granting the modification of views that may come from a realization of economic interdependence — still proceed from contrary and to an extent antagonistic viewpoints and concepts of self-interest.” NLRB v. Insurance Agents, 361 U. S. 477, 488 (1960). See Vaca v. Sipes, 386 U. S. 171, 177 (1967). We have no reason to doubt the validity of that assumption in the instant case.
Respondents also suggest that petitioners can be held vicariously liable for the discriminatory conduct of the JATC. They argue that the JATC is properly viewed as an agent of both Local 542 and the associations, emphasizing that half of the trustees charged with administering the JATC are appointed by the associations and that the JATC is wholly funded by mandatory contributions from the employers. We note initially that the District Court premised petitioners’ liability not on the actions of the JATC, but on the discriminatory conduct of the Union. See 469 F. Supp., at 411-413. The record, therefore, contains no findings regarding the relationship between the JATC and petitioners, beyond those noted above, that might support application of respondeat superior.
The facts emphasized by respondents, standing alone, are inadequate. That the employers fund the activities of the JATC does not render the JATC the employers’ servant or agent any more than an independent contractor is rendered an agent simply because he is compensated by the principal for his services. The employers must also enjoy a right to control the activities of the JATC, and there is no record basis for believing that to be the case. Neither is a right of control inferable merely from the power of the associations to appoint half of the JATC’s trustees. It is entirely possible that the trustees, once appointed, owe a fiduciary duty to the JATC and the apprentices enrolled in its programs, rather than to the entities that appointed them. Cf. NLRB v. Amax Coal Co., 453 U. S. 322 (1981). On the assumption that respondeat superior applies to suits based on § 1981, there is no basis for holding either the employers or the associations liable under that doctrine without evidence that an agency relationship existed at the time the JATC committed the acts on which its own liability was premised.
B
The District Court also justified its result by concluding that § 1981 imposes a “nondelegable duty” on petitioners “to see that discrimination does not take place in the selection of [their] workforce.” 469 F. Supp., at 412. The concept of a nondelegable duty imposes upon the principal not merely an obligation to exercise care in his own activities, but to answer for the well-being of those persons to whom the duty runs. See Restatement § 214. The duty is not discharged by using care in delegating it to an independent contractor. Consequently, the doctrine creates an exception to the common-law rule that a principal normally will not be liable for the tortious conduct of an independent contractor. See 2 Harper & James §26.11, pp. 1405-1408; Prosser §70, p. 467, §71, p. 470. So understood, a nondelegable duty is an affirmative obligation to ensure the protection of the person to whom the duty runs.
In a sense, to characterize such a duty as “nondelegable” is merely to restate the duty. Thus, in this litigation the question is not whether the employers and associations are free to delegate their duty to abide by § 1981, for whatever duty the statute imposes, they are bound to adhere to it. The question is what duty does § 1981 impose. More precisely, does § 1981 impose a duty to refrain from intentionally denying blacks the right to contract on the same basis as whites or does it impose an affirmative obligation to ensure that blacks enjoy such a right? The language of the statute does not speak in terms of duties. It merely declares specific rights held by “[a]ll persons within the jurisdiction of the United States.” We are confident that the Thirty-ninth Congress meant to do no more than prohibit the employers and associations in these cases from intentionally depriving black workers of the rights enumerated in the statute, including the equal right to contract. It did not intend to make them the guarantors of the workers’ rights as against third parties who would infringe them. Cf. Furnco Construction Corp. v. Waters, 438 U. S. 567, 577-578 (1978) (Title VII); Rizzo v. Goode, 423 U. S. 362, 376-377 (1976) (42 U. S. C. § 1983).
Our earlier holding that § 1981 reaches only intentional discrimination virtually compels this conclusion. It would be anomalous to hold that § 1981 could be violated only by intentional discrimination and then to find this requirement satisfied by proof that the individual plaintiffs did not enjoy “the same right... to make and enforce contracts... as is enjoyed by white citizens” and that the defendants merely failed to ensure that the plaintiffs enjoyed employment opportunities equivalent to that of whites. Such a result would be particularly inappropriate in the case of the associations, who are not engaged in the construction business, do not employ operating engineers, and consequently did not delegate to the Union any hiring functions which they otherwise would have performed themselves. Neither the District Court nor respondents identify anything in the language or legislative history of the statute to support a contrary conclusion.
IV
In a separate portion of their brief, respondents urge several independent bases for the issuance of an injunction against the petitioners and the allocation to them of a portion of the costs of the remedial decree. Respondents first assert that the court had inherent equitable power to allocate remedial costs among all the named defendants. They also rely on the All Writs Act, 28 U. S. C. § 1651(a), as an independent basis for the injunctive portions of the District Court’s order running against petitioners. We shall deal with these contentions in turn.
The District Court in an opinion issued after judgment set forth the basis for its holding that “defendants held injunctively liable solely under a theory of vicarious responsibility are nevertheless liable for ‘a share’ of the costs under Rule 54(d).” Pennsylvania v. Local 542, Int’l Union of Operating Engineers, 507 F. Supp. 1146, 1152 (1980). The District Court framed the inquiry before it as whether a party held vicariously liable to an injunction, but not for damages, might nonetheless have a proportionate share of the costs assessed against it. While this may have been an entirely appropriate frame of reference for the District Court, following its holding that petitioners were vicariously liable and therefore subject to an injunction, it is obviously not the proper frame of reference for our discussion. For the reasons previously stated, we have concluded that petitioners were not properly subject to an injunction on any of the theories set forth by the District Court. The issue before us, therefore, is whether a party not subject to liability for violating the law may nonetheless be assessed a proportionate share of the costs of implementing a decree to assure nondiscriminatory practices on the part of another party which was properly enjoined.
We find respondent’s arguments based on the traditional equitable authority of courts to be unpersuasive. In Milliken v. Bradley, 433 U. S. 267 (1977), upon which respondents rely, and which we believe to be the case most closely in point, we expressly noted that the state petitioners had been found guilty of creating at least a portion of the constitutional violation
Question: What is the ideological direction of the decision reviewed by the Supreme Court?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
songer_juryinst
|
E
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court conclude that the jury instructions were improper?" 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".
Robert Lee MASON, Appellant, v. MATHIASEN TANKER INDUSTRIES, INCORPORATED, Appellee.
No. 8312.
United States Court of Appeals Fourth Circuit.
Argued April 12, 1961.
Decided Jan. 3, 1962.
Sidney H. Kelsey, Norfolk, Va., for appellant.
Harry E. McCoy, Norfolk, Va. (Sea-well, McCoy, Winston & Dalton, Norfolk, Va., on the brief), for appellee.
Before SOBELOFF, Chief Judge, and HAYNSWORTH and BOREMAN, Circuit Judges.
BOREMAN, Circuit Judge.
Plaintiff, Robert Lee Mason, was a seaman oiler on the tanker “Mission Capistrano,” owned by the United States Navy but operated under license by the defendant, Mathiasen Tanker Industries, Inc. On September 29, 1958, plaintiff fell while aboard and was injured. In his action to recover damages, he complains, (1) under the Jones Act, that his injuries were caused by the negligence of the employer-defendant and (2) by the unseaworthiness of the vessel.
During a trial which lasted several days, the jury heard much conflicting evidence on the issue of defendant’s liability for negligence and unseaworthiness. It was shown that Mason’s work required him to hourly oil the bearings on two blowers located on a platform near the top of the multilevel engineroom. Plaintiff’s witnesses testified that the blower bearings leaked oil and that there was, during a great part of every day, excessive oil on the deck of the blower platform and that plaintiff was required to wade through this oil in the performance of his regular duties. Defense witnesses either denied the presence of any oil on the blower platform or questioned the amount of oil there. Plaintiff claimed that his shoes became soaked with oil from the blower platform deck and this oil in his shoe soles caused him to slip while descending the steep steel stairs (called ladders aboard ship) connecting the several levels of the engineroom and to fall down an inclined ladder, equipped with handrails, landing on the steel evaporator flat which is one level below the floor of the main engineroom. There were no eye witnesses to the accident. It is undisputed, however, that plaintiff sustained serious injuries in the fall and that he had to be removed from the ship at sea to a hospital in Charleston, South Carolina, and from there transferred to the United States Public Health Service Hospital in Savannah, Georgia. He was hospitalized from the time of the injury until October 21, 1958, when he was discharged and certified as fit for duty within a week’s time. Mason returned to Norfolk, Virginia, and was there examined by a psychiatrist. He was again certified as fit for duty on November 3, 1958, by the Norfolk Marine Hospital where he was an out-patient. After filing this action on November 14, 1958, Mason returned to the Norfolk Marine Hospital for further out-patient treatment. He was again discharged as fit for duty on December 24, 1958.
A special verdict was returned by the jury as follows:
“VERDICT OF JURY
“1. Were the defendant, its officers or crew members (other than plaintiff) guilty of any negligence which was a proximate cause of the accident and injuries sustained by plaintiff on September 29,1958 ?
YES [x] NO [ ]
“2. Was the vessel MISSION CAPISTRANO unseaworthy as defined in the charge of the Court and was such unseaworthiness a proximate cause of the accident and injuries sustained by plaintiff on September 29, 1958?
YES [x] NO [ ]
“3. Was the plaintiff guilty of any contributory negligence which was a contributing proximate cause of the accident and injuries sustained by plaintiff on September 29, 1958?
YES [x] NO [ ]
“4. On the claim for damages, including any claim for loss of wages, if you conclude that plaintiff is entitled to recover, what amount is the plaintiff entitled to recover?
$2,000.00
“5. On the claim for maintenance, on what date did the plaintiff obtain his maximum recovery following his injuries on September 29, 1958, as defined in the charge of the Court?
December 24, 1958”
Plaintiff appeals from the jury’s determination of damages, claiming that the $2000 award is inadequate in view of the serious nature of his injuries, his loss of wages over an extended period of time (he claims that he was able to work less than three months during the period from the date of injury to the trial in January 1960) and his pain and suffering at the time of the accident. He contends that the alleged inadequate verdict was the result of errors committed during the course of the trial. We do not express any opinion on the adequacy of the award as found by the jury, but we conclude that the plaintiff is entitled to a new trial on the sole issue of damages. The jury determined the issue of liability against the defendant and the court entered judgment thereon. The defendant has not appealed.
Plaintiff first argues that the District Judge abused his discretion in permitting defendant’s counsel to ask him (Mason), on cross-examination, if he had ever been convicted of a felony in Virginia. The judge, who had been forewarned that defense counsel would ask such a question and that plaintiff’s counsel would object, prepared a written statement which he read to the jury after the question was asked and the plaintiff was required to answer. A portion of the record is reproduced below.
We find no abuse of discretion in permitting defense counsel to attack the credibility of the plaintiff by inquiring about an earlier felony conviction. Certainly, the credibility of the plaintiff was very much in issue because there were no eye witnesses and he was presenting his own version of the accident. The District Judge carefully pointed out to the jurors that a long period of years had elapsed since the conviction and that plaintiff had paid his debt to society for that violation of the law; the conviction was to be considered by the jury only as affecting the plaintiff’s credibility and was not to be used as a basis for penalizing him in the determination of damages. Goddard v. United States, 131 F.2d 220 (5th Cir. 1942), involved a criminal prosecution, but there a witness was questioned about a felony conviction some twelve years earlier. Appropriate in this case is the language of that court as follows:
“ * * * It is well settled that such evidence is admissible for purposes of impeachment, and whether the circumstance of the conviction was such that the fact ceased to have probative value was a question addressed to the sound discretion of the trial court. That discretion was not abused by the admission of this evidence.” 131 F.2d at 221.
Cf. Sinclair Refining Co. v. Southern Coast Corp., 195 F.2d 626 (5th Cir. 1952) ; Fire Ass’n of Philadelphia v. Weathered, 62 F.2d 78 (5th Cir. 1932). The fact that here the witness is a party to the litigation is immaterial. Where a party elects to make himself a witness he may be cross-examined as such. Simon v. United States, 123 F.2d 80, 85 (4th Cir.), cert. denied, 314 U.S. 694, 62 S.Ct. 412, 86 L.Ed. 555 (1941).
Plaintiff next contends that the court erred in submitting to the jury the issue of plaintiff’s contributory negligence. We have read the entire record of the trial and we fail to find any evidence of contributory negligence on the part of plaintiff. During the course of the trial in response to questions propounded by his own counsel, Mason testified that on several occasions, from ten months to many years earlier, he had fainted while on duty as oiler in a ship’s engineroom. Mason explained the reason he had fainted on each occasion: Once he had influenza; on another occasion while his ship was operating in the tropics he was overcome by the heat in the engineroom; a third fainting spell was caused by food poisoning; once he was “lightheaded” because of the “grippe.” Plaintiff also introduced into evidence two small bottles of pills which had been prescribed for him by the United States Public Health Service Hospital for a nervous condition six months prior to the accident and which were found in his locker aboard ship after the accident. Mason testified that he had not taken any of the pills for the past several months preceding the accident. There was no evidence to indicate that Mason was taking the pills or was subject to their effect in any way just prior to the accident. Mason was cross-examined at length concerning these matters but the defendant was unable to show any specific connec-
tion between the earlier fainting spells and the pills, and the accident. Mason steadfastly denied that he fainted at the time of the accident. It was, to some extent, apparent that the defendant, by insinuation, would have the jury infer that a fainting spell caused the plaintiff to fall.
The District Judge carefully instructed the jury that all evidence as to the pills should be disregarded. However, the court charged the jury concerning contributory negligence and the effects of such negligence on its verdict if it should find that the plaintiff’s own negligence contributed to his injury. There was no attempt to call to the jury’s attention any evidence which might tend to prove contributory negligence, and our inspection of the record has failed to reveal any such evidence which the court might properly have told the jury to consider. It was clear to the court that the evidence did not disclose any relationship between the pills and accident and the jury was told, in effect, that it could not find that plaintiff’s injury was in part caused by taking the medicine which had been prescribed for him. There was no evidence tending to show even the remotest connection between the earlier fainting spells experienced by the plaintiff and his fall down the ship’s ladder. Nor was there evidence to link the accident with Mason’s sickness some five months earlier, diagnosed as “anxiety reaction,” a symptom of which, according to testimony may be faintness. After treatment in March 1958, Mason was declared fit for duty, and there is no evidence to show that he knew or had reason to believe that he was subject to fainting spells as a result of the illness experienced in the spring before the accident.
No witness testified that plaintiff failed to grasp the handrail which was provided for anyone using the ladder, or that he failed, in any respect, to take proper precaution to insure his own safety. Juries cannot be permitted to speculate on what might or could have happened without supporting evidence. Here defendant had the burden to prove by a preponderance of the evidence Mason’s contributory negligence. United States v. Smith, 220 F.2d 548 (5th Cir. 1955). No direct evidence was introduced to meet this burden. It cannot be reasonably argued that the physical facts involved in the fall could be accepted as evidence of Mason’s failure to grasp the handrails or take other precautionary measures. It is a matter of common experience that a person can slip on a stairway, due to extremely slippery conditions, with such force that his hands would be loosened from the rail. No inference to the contrary could properly have been drawn by the jury from the evidence in this record. Counsel for the plaintiff requested the court to charge the jury that there was no showing of any connection between the fainting spells and the accident and no evidence whatever of any negligence on the part of the plaintiff which contributed to his injuries. Instead, the charge was given concerning contributory negligence and the jury was permitted to speculate that in some way the plaintiff’s own negligence may have caused him to fall. We believe this was error which may have affected the amount of the verdict.
Defendant contends that if a new trial is awarded there must be a relitigation of the liability issue as well as the issue of damages. No authority is cited to support this contention. Rule 59(a), Federal Rules of Civil Procedure, 28 U.S.C.A., expressly provides for the granting of a new trial “on all or part of the issues * * * in an action in which there has been a trial by jury * * It is well settled that, in admiralty cases, contributory negligence may minify plaintiff’s damages but a finding of such negligence does not automatically defeat plaintiff’s claim of liability against the defendant for injuries resulting from unseaworthiness or negligence. The issues of liability and damages are clearly separable although this court has indicated cognizance of the fact that the size of the verdict may, in itself, indicate a jury compromise of the liability issue and a finding for plaintiff based primarily on sympathy. Mason here appeals from the finding of contributory negligence resulting in a verdict of challenged adequacy and the defendant has not appealed from the adverse determination of the liability issue. There was ample evidence to support the jury’s finding of defendant’s liability and nothing to point the finger of suspicion to the verdict on that issue as a compromise. Where the issues are separable and error is found in the trial of only one, a new trial may be had as to that issue alone where no injustice will result therefrom. Indamer Corp. v. Crandon, 217 F.2d 391 (5th Cir. 1954); Yates v. Dann, 11 F.R.D. 386 (D.Del. 1951); 6 Moore, Federal Practice, para. 59.06, p. 3759 ff. (1953); cf. Gasoline Products Co. v. Champlin Refining Co., 288 U.S. 494, 51 S.Ct. 513, 75 L.Ed. 1188 (1931). Defendant’s liability having been determined, we are of the opinion that the plaintiff is entitled to a new trial on the sole issue of damages.
Reversed and remanded for new trial on damage issue alone.
. “(By Mr. McCoy) Mr. Mason, have you ever received a criminal conviction of a felony in Virginia?
“MB. KELSEY: If Your Honor please, this is very unfair. I want to make an objection to this.
“THE COURT: Now, let’s not make a speech. We have been over this before.
“MR. KELSEY: I raise my objection and ask the Court to instruct the jury about such a question.
“THE COURT: All right. Get your objection in first.
“MR. KELSEY: I object to the Court’s admitting any conviction of a felony in this case, the proposed or proffered offer to prove such a felony being almost twenty years ago, on the grounds that it has no probative value, it is immaterial and irrelevant in every way and, further, upon the objection and ground that his own watch officer has testified, and will testify in a deposition to be introduced in this case, that the man is an honest or truthful man, so far as he knows, and that something that happened twenty years ago has nothing whatsoever .to do with this case and I object to it.
“THE COURT: The objection is overruled. After you get the answer, though, I want to tell the jury something.
“MR. McCOY: I understand that. BY MR. McCOY:
“Q. I ask you the question, Mr. Mason, have you ever received a criminal conviction of a felony in Virginia?
“A. I have, and also—
“MR. KELSEY: Just a moment. You have, and that is all.
“THE COURT: Ladies and Gentlemen of the Jury, I would like to make a few comments with respect to that portion of this evidence. In a conference prior to the trial of this case, counsel for the defendant advised the Court and opposing counsel that they intended to introduce in the record the plaintiff’s prior conviction of a felony during the year 1939, I believe.
“Is that correct, Gentlemen?
“MR. McCOY: Yes, sir.
“MR. KELSEY: Yes, sir.
“THE COURT: It is a generally accepted rule that where a witness or a party litigant testifies in a case, evidence of a prior conviction of a felony involving moral turpitude may be considered by the jury in determining the credibility of the evidence of the party testifying. The Court has examined the conviction in question and it does involve a crime involving moral turpitude.
“MR. KELSEY: May we ask the Court to state what that conviction was?
“THE COURT: Yes, sir, if you want it. The conviction was for store breaking. It is solely for this purpose that this evidence is admissible. The person charged with a crime in 1939 has paid his debt to society and under no circumstances should you as jurors hold against him the fact that he may have erred or committed a crime approximately twenty years ago — in fact, now, I guess, almost twenty-one years ago — at a time when he was then approximately nineteen years old; you may, however, consider the fact of a prior conviction of a felony in determining the extent of the credibility of the plaintiff’s testimony as given by him from the witness stand. Of course, Ladies and Gentlemen, we are not concerned with the plaintiff’s credibility in 1939; what we want to ascertain is his worthiness of belief in the year 1960, that is, today as he testifies, and the fact that the conviction took place a little more than twenty years ago, at a time when the plaintiff was of a youthful age, may be considered by you in determining whether this prior conviction has any bearing upon Ms present credibility.
“Finally, may I say to you, if you ultimately conclude that this plaintiff is entitled to recover in this case, he should not be penalized one cent for the fact that he has previously been convicted for a crime in 1939.
“All right. You may proceed with the next question.”
. The testimony revealed that the tranquilizer drugs in the pills are known as “Reserpine” and “Belbarb.”
. It is explained that plaintiff’s counsel was aware of defendant’s knowledge of the fainting spells and the discovery of the pills; also, he had reason to believe that if the plaintiff failed to mention these facts on his direct examination, defense counsel would bring them out on cross-examination and thus create the false impression with the jury that the plaintiff was deliberately concealing information.
. See Schuerholz v. Roach, 58 F.2d 32 (4th Cir.), certiorari denied, 287 U.S. 623, 53 S.Ct. 78, 77 L.Ed. 541 (1932); Southern Ry. v. Madden, 224 F.2d 320 (4th Cir. 1955); Southern Ry. v. Madden, 235 F.2d 198 (4th Cir.), certiorari denied, 352 U.S. 953, 77 S.Ct. 328, 1 L.Ed.2d 244 (1956). See also as to separability of awards for compensatory and punitive damages Atlantic Coast Line R. R. v. Bennett, 251 F.2d 934 (4th Cir. 1958).
. On a retrial, proper evidence, if any, of plaintiff’s contributory negligence may be presented to the jury in mitigation of damages.
Question: Did the court conclude that the jury instructions were improper?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. 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.
Brenda MALLOY and Nereida Gutierrez, on their own behalf and as parents and next friends of Curtis Malloy, Timothy Malloy and William Gutierrez, their minor children, and Carolyn Marsh and Esperanza Rodriquez, et al. v. Thomas EICHLER, in his official capacity as the Secretary of the Delaware Department of Health and Social Services, and Phyllis Hazel, in her official capacity as Director of the Department’s Division of Economic Services, et al. Appeal of SECRETARY OF the DEPARTMENT OF HEALTH AND HUMAN SERVICES of the United States of America, in No. 88-3994. Maria ROSADO, Priscilla Golden, Angelica Saldana, Sharon Thomas, Norma Taylor, Nydia Cruz, each individually and on behalf of their respective plaintiff minor children and on behalf of all other persons in New Jersey similarly situated v. Otis R. BOWEN, Secretary of Health and Human Services, and Gregory S. Perselay, Acting Commissioner of the New Jersey Department of Human Services. Appeal of Otis R. BOWEN, Secretary of Health and Human Services, in No. 88-5149.
Nos. 88-3094, 88-5149.
United States Court of Appeals, Third Circuit.
Submitted Pursuant to Third Circuit Rule 12(6) July 18, 1988.
Decided Oct. 25, 1988.
Beverley Dennis, III, Chief Counsel, Region III, James C. Newman, Supervisory Asst. Regional Counsel, Javier A. Arrastia, Asst. Regional Counsel, Dept, of Health & Human Services, Philadelphia, Pa., William C. Carpenter, U.S. Atty., Kent A. Jordan, Asst. U.S. Atty., D. Del., Wilmington, Del., Samuel A. Alito, Jr., U.S. Atty., Cornelia E. Dude, Asst. U.S. Atty., D. N.J., Newark, N.J., for appellant.
Harris David, Legal Services of New Jersey, New Brunswick, N.J., Richard Foard, Michaelene Loughlin, Essex-Newark Legal Services ACLU of New Jersey, Newark, N.J., Jack Fitzgerald, Warren County Legal Services, Belvidere, N.J., for appellees.
Before HIGGINBOTHAM, BECKER and ROSENN, Circuit Judges.
OPINION OF THE COURT
A. LEON HIGGINBOTHAM, Jr., Circuit Judge.
This is a consolidated appeal from the judgments in two separate class actions, Malloy v. Eichler, 628 F.Supp. 582 (D.Del.1986), reprinted in Joint Appendix (hereinafter Jt.App.) at 6, and Rosado v. Bowen, 698 F.Supp. 1191 (D.N.J.1987), reprinted in Jt.App. at 56. Both plaintiff classes sought to enjoin the state and federal officials who administer the Medicaid program from using section 2640 of the Deficit Reduction Act of 1984 (“DEFRA”), 42 U.S.C. § 602(a)(38)) (Supp.1988) (hereinafter section 2640), an amendment to the AFDC statute, to determine eligibility for Medicaid coverage. The district courts granted these injunctions. We will affirm.
I.
In Malloy, plaintiffs filed a proposed class action against the Delaware state officials responsible for administering and for supervising the administration of the Medicaid program in Delaware [“Delaware state defendants”]. Plaintiffs asked the court to enjoin Delaware’s practice of terminating Medicaid benefits for Delaware children and their caretaker relatives who would have been eligible for AFDC but for section 2640 of DEFRA. The District Court granted the Delaware state defendants’ motion to add the Secretary as a necessary party defendant. The court then entered an order and a declaratory judgment holding that the Secretary’s “practice or policy of deeming the income of siblings or grandparents to individual Medicaid applicants or recipients pursuant to § 2640(a) of DEFRA... violates Medicaid law now codified at 42 U.S.C. § 1396a(a)(17) and the regulations promulgated thereunder.” Malloy v. Eichler, Judgment and Order Against the Federal Defendant, reprinted in Jt.App. at 48-50. Only the Secretary chose to appeal this judgment.
In Rosado, plaintiffs filed a proposed class action directly against the Secretary and against Geoffrey S. Perselay, the Acting Commissioner of the New Jersey Department of Human Services, as the officials responsible for administering the New Jersey AFDC and Medicaid programs. Unlike the plaintiffs in Malloy, plaintiffs in Rosado challenged the constitutionality of § 2640 of DEFRA as well as its application to Medicaid eligibility. The Supreme Court upheld the constitutionality of § 2640 in Bowen v. Gilliard, — U.S. -, 107 S.Ct. 3008, 97 L.Ed.2d 485 (1). Accordingly, the District Court granted summary judgment to the Secretary on that issue. Rosado, reprinted in Jt.App. at 66-69, 88-89. However, the Rosado court agreed with the Malloy court that one of the Medicaid eligibility provisions, 42 U.S.C. § 1396a(a)(17)(D), specifically prohibited the use in the Medicaid context of section 2640’s assumption that the income of any child in the family was available to the whole household as income. Malloy, reprinted in Jt.App. at 83-86.
II.
The Medicaid program was established under Title XIX of the Social Security Act, 42 U.S.C.A. §§ 1396-1396s (Supp. 1). It is a cooperative program whereby the federal and state governments share the costs of medical treatment for needy individuals. States are not obligated to participate, but, if a state chooses to do so, it must comply with the federal requirements for the program. In return, it receives substantial federal matching funds.
Participating states must provide assistance to all individuals specified as “categorically needy.” 42 U.S.C. § 1396a(a)(10)(A). This group includes, among others, AFDC recipients, under Title IV-A of the Social Security Act, 42 U.S.C.A. § 601 et seq. However, persons who would be eligible for AFDC except for an eligibility requirement used in the AFDC program that is specifically prohibited under Medicaid have historically been eligible for Medicaid. 42 C.F.R. § 435.113 (1982). Medicaid eligibility is thus closely linked to, but not perfectly coextensive with, AFDC assistance. How coextensive is what is at issue in this case.
III.
The Secretary argues that Congress’ amendment of the AFDC program to treat sibling income as available to all members of a family receiving AFDC should control family income determinations for Medicaid eligibility as well. Understanding the Secretary’s contentions thus requires an understanding of the AFDC eligibility requirements. Like Medicaid, AFDC is funded cooperatively by the federal and state governments, with states administering the program locally and complying with federal requirements in return for federal funding. AFDC is available to dependent children in households where one parent is absent or is physically or mentally incapacitated.
A family applies for AFDC as a family “filing unit.” To qualify for assistance, a filing unit must meet specified standards of financial need. 42 U.S.C.A. § 606(a)(1). Prior to DEFRA, a family could apply as a filing unit for assistance without including all of its members in the filing unit. At that time, families routinely excluded children with significant incomes from the AFDC filing unit to avoid reducing a family’s overall eligibility for benefits. This practice had a legal basis. The normal sources of outside income for children in these households is court-ordered child support or Social Security payments received by a child on behalf of a deceased parent. Prior to DEFRA, caretaker relatives could not legally spend Social Security income to satisfy the needs of anyone except the beneficiary child, see Jt.App. at 122, 125, and state law often required a caretaker relative to use child support only to the benefit of the supported child, Bowen v. Gilliard, — U.S. -, 107 S.Ct. 3008, 3016 n. 14, 97 L.Ed.2d 485(1). Permitting families to exclude children with dedicated income from filing units recognized these legal strictures. A minor parent living with her own parents was also permitted to apply with her children) as a filing unit, omitting details of her own parents’ — the child(ren)’s grandparents’ — financial needs and resources.
Among other changes in AFDC eligibility requirements, Section 2640 of DEFRA amended § 402(a)(38) of the Social Security Act, 42 U.S.C. § 602(a)(38) (Supp.1988) to provide, in pertinent part:
“A State plan for aid and services to needy families with children must—
“(38) provide that in making the determination under paragraph (7) with respect to a dependent child and applying paragraph (8), the State agency shall (except as otherwise provided in this part) include—
“(A) any parent of such child, and
“(B) any brother or sister of such child, such brother or sister meets the conditions described in clauses (1) and (2) of section 606(a) of this title, if such parent, brother, or sister living in the same home as the defendent child and any income of or available for such parent, brother, or sister shall be included in making such determination and applying such paragraph with respect to the family (notwithstanding section 405(j) of this title, in the case benefits provided under subchapter II of this chapter)____”
State AFDC officials now automatically treat Social Security benefits or child support benefits received on behalf of one child, as well any grandparent income in three-generation households including a minor parent, as available to the whole family. As a result, many families no longer receive AFDC. Under the Secretary’s regulations, families whose total income makes them ineligible for AFDC benefits are also no longer eligible for Medicaid coverage.
The Secretary argues that his official interpretation of section 2640 — that its inclusion of sibling and grandparent income in an applicant’s resources extends to Medicaid eligibility decisions — was issued pursuant to Congress’s broad delegation of authority to him to determine the amount of income available to Medicaid applicants. Appellant’s Brief at 9-13. However, in our review, we must determine whether the Secretary properly construed the scope of his statutory authority in making his decision. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136(1). An administrator’s statutory authority does not extend to promulgating regulations or interpretations inconsistent with the statutes that he or she is charged with enforcing. See, e.g., Immigration & Naturalization Service v. Cardoza-Fonseca, 480 U.S. 421, 107 S.Ct. 1207, 1217, 1223, 94 L.Ed.2d 434(1); Herweg v. Ray, 455 U.S. 265, 275, 102 S.Ct. 1059, 1066, 71 L.Ed.2d 137(1); Morton v. Ruiz, 415 U.S. 199, 237, 94 S.Ct. 1055, 1075, 39 L.Ed.2d 270 (1). The narrow issue in this case is whether the Secretary’s interpretation of section 2640 conflicts with the Medicaid statute. We hold that it does and that therefore the Secretary's interpretation exceeds the statutory authority delegated to him by Congress.
IY.
The Secretary argues that his interpretation of Medicaid eligibility is consistent with the intent of Congress. Specifically, he argues that his interpretation does not contradict 42 U.S.C. § 1396a(a)(17)(D) and, moreover, that it fulfills the requirements of 42 U.S.C. § 1396a(a)(17)(B). Accordingly, the Secretary argues that his construction of the Medicaid statute is entitled to “great deference.” Appellant’s Brief at 9.
The Secretary’s position has been uniformly rejected in the eighteen circuit and district courts which have considered it. See Georgia Department of Medical Assistance v. Bowen, 846 F.2d 708, 710 (11th Cir.1988) (collecting cases); see, e.g., Vance v. Hegstrom, 793 F.2d 1018, 1024 (9th Cir.1986) (“[i]n structuring a Medicaid filing unit by defining it in such a way as to include sibling income, the Secretary is doing... that which he is expressly precluded from doing by subsection (17)(D)”); Malloy v. Eichler, 628 F.Supp. 582, 598 (D.Del.1986) (“[t]he Secretary’s semantic contortions cannot transform this ‘deemed’ income into ‘available’ income nor can they protect a practice inconsistent with the mandate of subsection (17)(D)”); Rosado v. Bowen, reprinted in Jt.App. at 86 (“[t]he unambiguous language of § 1396a(a)(17)(D) specifically prohibits deeming a sibling’s income for determining Medicaid bene-fits____the impropriety of the Secretary’s interpretation is apparent”); Ward v. Wallace, 652 F.Supp. 301, 305 (M.D.Ala.1987), extended sub nom. Ward v. Hunt, 658 F.Supp. 441 (M.D.Ala.1987) (“[i]n his effort to support his interpretation on including sibling income, the Secretary makes interesting, but nonetheless tortured and merit-less, attempts to evade the Medicaid restrictions of subsections (17)(B) and (D)”). The Secretary argues that these eighteen prior decisions on this issue ignore relevant legislative history and “[t]he domino-like decisions of the other courts do not bear scrutiny.” Appellant’s Brief at 13.
The Secretary argues that the decisions in Rosado and Malloy are wrong as a matter of law, because his interpretation accords with the language of 42 U.S.C. § 1396a(a)(17)(B) and (D). He also argues that the absence of a mention of Medicaid in section 2640 creates a statutory ambiguity in section § 1396a, Appellant’s Reply Brief at 2; cf. 2-5, which can be clarified by consulting legislative history that, he argues, supports his interpretation of the statute. We are unpersuaded by both of these arguments. We hold that the language of 42 U.S.C. § 1396a(a)(17) is clear, unambiguous, and contrary to the Secretary’s interpretation. We also hold that the legislative history cited by the Secretary does not provide persuasive evidence that his interpretation effectuates Congressional intent, let alone the clear and manifest evidence of Congressional intent required to contravene clear statutory language.
V. The Relevance of Legislative History.
Where the language of the statute is clear, only “the most extraordinary showing of contrary intentions” justify altering the plain meaning of a statute. Garcia v. United States, 469 U.S. 70, 75, 105 S.Ct. 479, 482, 83 L.Ed.2d 472 (1984); reh’g. denied, 469 U.S. 1230, 105 S.Ct. 1235, 84 L.Ed.2d 371 985). See also TV A v. Hill, 437 U.S. 153, 187 n. 33, 98 S.Ct. 2279, 2298 n. 33, 57 L.Ed.2d 117 (1978) (in dealing with unambiguous statutory language, judicial interpretation should stop with the words of the statute except in “ ‘rare and exceptional circumstances” ’) (quoting Crooks v. Harrelson, 282 U.S. 55, 60, 51 S.Ct. 49, 50, 75 L.Ed. 156 (1930)); Vance v. Hegstrom, 793 F.2d 1018, 1023 (9th Cir.1986) (“[t]he plain meaning of the words chosen by Congress is controlling in the absence of a clearly expressed legislative intent”). As we discuss below, 42 U.S. C. § 1396a(a)(17)(D) is unambiguous and expressly precludes the Secretary’s interpretation. Accordingly, we will address the Secretary’s legislative history arguments only to demonstrate that the Secretary has not produced the extraordinarily clear evidence of a contrary legislative intent that is required to override clear statutory language.
A. The Language of the Statute is Plain and Unambiguous.
The plain language of the statute states the Secretary may set standards for Medicaid eligibility provided that these standards
(B) provide for taking into account only such income and resources as are, as determined in accordance with standards prescribed by the Secretary, available to the applicant or recipient and...
(D) do not take into account the financial responsibility of any individual for any applicant or recipient of assistance under the plan unless such applicant or recipient is such individual’s spouse or such individual’s child who is under age 21 or... is blind or permanently and totally disabled
42 U.S.C. § 1396a(a)(17). The House Committee explained the purpose behind these requirements:
Your committee believes it is proper to expect spouses to support each other and parents to be held accountable for the support of their minor children____ Such requirements for support may reasonably include the payment by such relative, if able, for medical care. Beyond such degree of relationship, however, requirements imposed are often destructive and harmful to the relationships among members of the family group.
H.R.Rep. No. 213, 89th Cong., 1st Sess. 68 (1965). Neither the plain language of the statute nor its legislative history suggests that this provision would nonetheless hold minor children accountable for the medical care of their half-siblings, or grandparents for their grandchildren’s care.
1. Sibling deeming.
The Secretary’s attempt to reconcile his interpretation with this statute is unconvincing. The Secretary argues that the effect of these provisions was fundamentally changed when Congress enacted section 602(a)(38). Appellant’s Brief at 22. As he puts it, “by mandatorily including siblings in the [AFDC] filing unit under § 602(a)(38), Congress made their income ‘available’ within the meaning of 42 U.S.C. § 1396a(a)(17)(B).” Id. at 9. The Secretary thus asserts that DEFRA should be read into the definition of “available” in the preceding statute: “Sibling income voluntarily contributed to the AFDC unit prior to 1984 would have been counted in determining... Medicaid eligibility. As a result of DEFRA, such voluntarism is no more, and this income must be counted for AFDC eligibility, and, the Secretary maintains, for a family unit’s derivative Medicaid eligibility.” Id. at 22.
A change in statutory language does not necessarily make money actually available to an applicant where it had not been before. If, as the Secretary argues, one child’s income is actually available to other family members for their medical care, it has become so as a result of assuming that that child’s resources are available to satisfy the needs of others; the family’s AFDC benefits and Medicaid coverage have been cut off as a result of counting the child’s Social Security benefits or child support check as family filing unit income. This attribution of one child’s income to the whole family has the effect of making that child financially accountable for the needs of his relatives — in violation of 42 U.S.C. § 1396a(a)(17)(D)’s requirement that relatives may be held accountable for the medical needs of others only within the spousal and parent-minor or -disabled child relationships.
2. Grandparent deeming.
Similar logic explains why grandparent deeming also conflicts with subsection (a)(17)(D) of the Medicaid statute. The Secretary has admitted that grandparent deeming from outside the assistance unit is contrary to (a)(17)(D) and so impermissible. Appellant’s Brief at 25-26. Since the plaintiff classes did not provide examples of Medicaid recipients or applicants denied Medicaid as a result of grandparent deeming, we will treat this as a party admission that grandparent deeming from outside the assistance unit is impermissible. However, grandparent deeming does occur under the Secretary’s interpretation of 42 U.S.C. § 602(a)(38), when a minor parent lives in the household with her own parents. Because she is a minor, her parent(s) must also apply for public assistance as part of the filing unit. The filing unit of minor parent and child thus includes the minor parent’s parent(s), the dependent child’s grandparent(s). The grandparent(s)’s income is considered available to the whole filing unit. To the extent that this renders the grandparents financially responsible for their own minor child, this method of determining eligibility is permissible under subsection (a)(17)(D). However, to the extent that the grandparents’ income is considered available to the entire filing unit, including the minor parent’s child, this methodology violates subsection (a)(17)(D). The grandparents are neither the spouse nor the parent of their own child’s child. As the Supreme Court recently stated in Schweiker v. Gray Panthers, 453 U.S. 34, 45, 101 S.Ct. 2633, 2636, 69 L.Ed.2d 460 (1981), “if there is to be content to subsection (17)(D)’s distinction between the responsibility of a spouse and that of a more distant relative, the subsection must envision that States can deem the income of the former but not of the latter.”
The plain meaning of the statute discussed above is particularly likely to express Congressional intent since Congress might have chosen to treat sibling income as part of a common pool in the AFDC context, but not with regard to Medicaid, because of the sharply different nature of the needs served by each program. Food, heat and shelter costs, the stuff of ADFC, are more communal goods than is medical care. A gallon of milk is cheaper per glass than a quart; up to a point, dollars spent on rent can shelter one child or several. Medical care, by contrast, is an individual good: a doctor’s visit, an injection of penicillin, can only cure one patient. Thus, given Congress’s clear expression of its intent that income should not be presumed available to others in the Medicaid context outside the parent-child and spousal relationships, and the significantly different nature of the goods and services involved, the Secretary’s argument that Congress’s expression of its intent in the AFDC context means that “the rules changed” for Medicaid is unconvincing.
B. The Secretary’s Arguments That the Statute is Ambiguous.
The Secretary’s argument that subsection (17)(D) is ambiguous rests on his misleadingly erroneous characterization of the relation of Medicaid eligibility as determined by or “derivative” of AFDC eligibility. Appellant’s Brief at 15-16, 22. Because, the Secretary argues, Medicaid eligibility is derivative of AFDC eligibility, “the lack of explicit reference to Medicaid and the general, long-established linkage between Medicaid and AFDC eligibility are sufficient to create the statutory obscurity or ambiguity denied by appellees in their repeated insistence on the alleged plain meaning of the statute as a sufficient guide to interpretation.” Appellant’s Reply Brief at 2, cf. 2-5. This argument rests on a confused appreciation both of the relationship between Medicaid and AFDC eligibility requirements and of the principles of statutory construction. We will address each of these problems in turn.
1. The Relationship Between AFDC and Medicaid Eligibility.
Medicaid eligibility is not “derivative” of, or perfectly coextensive with, AFDC eligibility — as the Secretary’s own regulation shows. The Secretary has promulgated a regulation stating that “[t]he agency must provide Medicaid to individuals who would be eligible for AFDC except for an eligibility requirement used for that program that is specifically prohibited under Title 19 [the title of the Social Security Act concerning Medicaid].” 42 C.F.R. 435.113 (1982). Since DEFRA, sibling deeming is such an eligibility requirement — permissible under AFDC law, explicitly forbidden by Title XIX. The very existence of the Secretary’s own regulation acknowledges that AFDC eligibility requirements do not define eligibility for Medicaid. Moreover, in December 1987, as part of the Omnibus Budget Reconciliation Act, Congress enacted legislation providing Medicaid coverage for pregnant women and some children. This legislation explicitly provides that AFDC eligibility requirements shall not apply to determine the eligibility for this program. In discussing this legislation, the House Budget Committee observed that
[The] AFDC [program features] policies [which] are referred to as stepparent, grandparent and sibling ‘deeming,’ respectively, because the income of these family members is conclusively presumed to be available to the child____ These AFDC stepparent, grandparent and sibling deeming rules do not apply, and have never applied, to determinations of eligibility for Medicaid, however. Medicaid law and regulation have long limited ‘deeming,’ or the attribution of financial responsibility of other family members, to two specific circumstances: spouses are responsible to their spouses, and parents are responsible to their minor children____ The two Federal Circuit Courts of Appeals and the 8 Federal District Courts that have ruled on this issue to date have all concluded, quite correctly, that [the Secretary] is in error.
H.R.Rep. No. 391, 100th Cong., 1st Sess. 446-47, reprinted in 1987 U.S.Code Cong. & Admin.News 2313-1, 2313-266, 2313-267. Whatever the value of these statements as evidence of the correctness of the other court decisions, the Committee’s observations, and the program that it interprets, do indicate that Medicaid eligibility requirements at least in some instances differ from those for AFDC.
2. The Meaning of Silence in Statutory Interpretation.
As noted above, based on his erroneous argument that AFDC eligibility requirements always determine those of Medicaid, the Secretary also argues that Congress’s failure to mention Medicaid in an amendment to the AFDC statute creates a statutory ambiguity. Congressional silence does not connote ambiguity in this case. The relevant maxim of statutory construction is expressio unius exclusio alterius, that is, “the expression of one thing is the exclusion of another,” and may imply an intent to exclude all others. Therefore, if Congress chose explicitly to amend the AFDC requirements, the appropriate inference is that it chose to amend only those, not others. Moreover, the position for which that the Secretary argues amounts to sub silentio repeal of subsection (17)(D)’s prohibition on deeming outside the spousal and parent-minor child relationships. We must assume that Congress was aware of subsection (17)(D) when it enacted the AFDC amendments, see Cannon v. University of Chicago, 441 U.S. 677, 696-97, 99 S.Ct. 1946, 1957-58, 60 L.Ed.2d 560 (1979), but chose not to repeal or amend it. Repeals by implication are not favored. The “intention of the legislature to repeal must be ‘clear and manifest’.” Watt v. Alaska, 451 U.S. 259, 267, 101 S.Ct. 1673, 1678, 68 L.Ed.2d 80 (1981) (citations omitted). As the survey of the legislative history, below will show, Congress has not manifested an intent to repeal or amend subsection 17(D). We find the Secretary’s argument that section 2640 is ambiguous because it does not mention Medicaid to be wholly without merit.
VI. The Legislative History Cited By the Secretary.
Since subsection (17)(D) is clear and unambiguous, we analyze the legislative history adduced by the Secretary solely for the “extraordinary evidence of contrary intentions” necessary to support an interpretation contrary to the plain language of the statute. The legislative history stressed by the Secretary consists principally of nonspecific references to Medicaid savings, several of them from the legislative histories of other statutes, and a general observation that Congress enacted DEFRA as part of an attempt to reduce the federal budget deficit. Contrary to the Secretary’s assertion that courts have ignored these references, several courts have considered them, but found them unpersuasive. See, e.g., Vance v. Hegstrom, 793 F.2d 1018, 1024-25 (9th Cir.1986); Olson v. Norman, 830 F.2d 811, 817-18 (8th Cir.1987); Malloy v. Eichler, 628 F.Supp. 582, 594-95, 596-97 (D.Del.1986); Rosado v. Bowen, Civ. No. 86-1716, Jt.App. at 83 (D.N.J. Oct. 22, 1987). So do we.
Even the Secretary’s “best” legislative argument rests on a strained interpretation of the statute involved. The Secretary invokes Congress’s 1984 amendments to the CSEA to “demonstrate that Congress assumed families losing AFDC eligibility due to the counting of sibling income would lose Medicaid as well. 42 U.S.C. § 606(h).” Appellant’s Brief, at 16 (emphasis added). Section 606(h) does provide a four month grace period of continued Medicaid coverage for former AFDC recipients who have also lost their eligibility for Medicaid due to child support collections. But the source of their loss in this case is the receipt of child support, which does not necessarily imply sibling deeming. It is only where the household consists of two or more children who are half-siblings, and only one absent parent is paying child support, that the collection of support for one child causes another child to lose AFDC benefits and, under the Secretary’s erroneous interpretation, Medicaid coverage. Where a family consists, as all families do at their inception, of the parent(s) and the first child, the receipt of that child’s support payments will automatically, if the amount of the support is large enough, move the household off both the AFDC and the Medicaid rolls — without involving sibling deeming. Similarly, in a family of two or more children where all the children are of one parentage, or where each child is receiving support, each child could begin to receive child support as a result of the federal collection program without any child’s income being imputed to her sibling. Congress could wish to alleviate the difficulties of these common situations without implying that the Secretary should amend the Medicaid statute sub silentio to permit sibling deeming.
The language of the House Conference Report that the Secretary quotes is consistent with the interpretation that we have outlined above. The report simply states that “[w]hen a family loses eligibility for AFDC as the result of child support collections, it also loses categorical eligibility for medicaid____ the States must continue to provide medicaid benefits for 4 calendar months____” H.R.Conf.Rep. No. 925, 98th Cong., 2d Sess. 55, reprinted in 1984 U.S. Code Cong. & Admin.News 2397, 2447, 2473. Nowhere does this language explicitly state that the consequence of receiving child support for one child is the loss of Medicaid coverage for others. Congress need not have had this problem in mind. As discussed above, the Medicaid statute specifically prohibits considering the income of a sibling available to an applicant, whereas it does not prohibit the consideration of a parent’s resources, represented by the support sent specifically for the child-applicant in question, in evaluating an applicant’s eligibility. Since a child therefore may lose Medicaid coverage when he or she receives child support from his or her own parent, but not when a half-sibling receives it from the parent that the two children do not share, Congress had no need either to discuss or to remedy this nonexistent problem.
The Secretary next points to vague and confusing references to Medicaid savings in estimates of the fiscal impact of AFDC legislation. Firstly, the Senate Finance Committee noted that the Administration is proposing “several changes” in AFDC. They predicted that “[s]ince Medicaid eligibility is linked to eligibility for AFDC, Medicaid savings are also anticipated.” Staff of Senate Comm, on Finance 98th Cong., 2d Sess., Staff Data and Materials for the Fiscal Year 1985, Finance Committee Report Under the Congressional Budget Act 61 (Comm.Print 1984). It is unclear which of the several proposals the Finance Committee intended. For example, one of the AFDC proposals would have made minor parents ineligible for AFDC unless they resided with their own parents), or unless their parents were dead or would jeopardize the health and safety of the minor or her children). The prior practice had permitted any minor parent to apply for AFDC on behalf of her child regardless of where she was living. The new practice would reduce the number of AFDC recipients, assuming that some minor parents continue to be unwilling to live with their own parents and so lose AFDC eligibility. Loss of AFDC eligibility means loss of Medicaid eligibility in many states, unless the AFDC loss is the consequence of an eligibility requirement like sibling deeming specifically forbidden under the Medicaid program. By contrast, requirements that parents support and provide medical care for their minor children (though not their grandchildren) are explicitly permissible under the Medicaid statute. 42 U.S.C. 1396a(a)(17)(D). Thus, this different provision, one of the several, would almost certainly produce Medicaid savings. Since the Senate Finance Committee did not specify which proposal it had in mind, or how exactly the savings would occur, this reference to savings is only ambiguous evidence that the Senate expected the change in the AFDC eligibility requirements to produce Medicaid savings.
The
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:
|
sc_respondentstate
|
30
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state associated with the respondent. If the respondent is a federal court or federal judge, note the "state" as the United States. The same holds for other federal employees or officials.
LOCAL NO. 8-6, OIL, CHEMICAL AND ATOMIC WORKERS INTERNATIONAL UNION, AFL-CIO, et al. v. MISSOURI.
No. 42.
Argued November 19, 1959.
Decided January 25, 1960.
Mozart G. Ratner argued the cause for, appellants. With him on the brief was Morris J. Levin.
Robert R. Welborn, Assistant Attorney General of Missouri, argued the ca.use for appellee. With him on the brief was- John M„ Dalton, Attorney General of Missouri.
I. J. Gfromfine, Bernard Cushman, Herman Sternstein and Justus R. Moll filed a brief for the Amalgamated Association of Street, Electric Railway and Motor Coach Employes of America, AFL-CIO, as amicus curiae, in support of appellants.
Briefs of amici curiae in support of appellee were filed by Richmond C. Coburn for the Chamber of Commerce of Metropolitan St. Louis; Myron K. Ellison for the Missouri State Chamber of Commerce et al.; Irvin Fane, Harry L, Browne and Howard F. Sachs for the Kansas City Power & Light Co.; and James M. Douglas and Edmonstone F. Thompson for the Laclede Gas Co.
Mr. Justice Stewart
delivered the opinion of the Court.
This is an appeal from a judgment of the Supreme Court of Missouri affirming a decree, which enjoined the appellants from continuing a strike against a St. Louis public utility. The judgment upheld the constitutionality of certain provisions of a Missouri law, commonly known as the King-Thomps'on Act, which authorizes the Governor on behalf of the State to take possession of and operate a public utility affected by a work stoppage when in his opinion “the public interest, health and welfare are jeopardized/' and “the exercise of such authority is necessary to insure the operation of such public utility.”
In the state courts and in this Court the appellants have contended that the Missouri law conflicts with federal legislation enacted under the Commerce Clause of the Federal Constitution, and that ifviolates the Due Process Clause of the Fourteenth Amendment. Because of doubt as to whether the controversy was moot, we postponed further consideration of the question of jurisdiction to the hearing of the case on the merits. 359 U. S. 982.
The appellants áre labor unions which represent employees of the Laclede Gas Company, a corporation engaged .in the business of selling natural gas in the St. Louis area. In the spring of 1956 the appellants notified Laclede of their desire to negotiate changes in the terms of the collective bargaining agreement which was to expire in that year! Extended negotiations were conducted, but no new agreement was reached, and upon expiration of the existing contract on June 30, 1956, the employees went out on strike.
Five days later the Governor of Missouri issued a proclamation stating that after investigation he believed that the public interest, health, and welfare were in jeopardy, and that seizure under authority of the state law was necessary to insure the company’s continued operation. In an executive order issued the same day the Governor took “possession” of Laclede “for the use and operation by the State of Missouri in the public interest.” A second executive order provided that all the “rules and regulations . . . governing the internal management and organization of the company, and its duties and responsibilities, shall remain in force and effect throughout the term of operation by the State of Missouri.”
After the seizure the appellants continued the strike in violation of the statute, and the State of Missouri filed suit for an injunction against them in the Circuit Court of St. Louis. At the end of a three-day hearing the trial court entered an order enjoining the appellants from continuing the strike, and in an amendment to the decree declared the entire King-Thompson Act constitutional and valid. On July 14, 1956, the day after the injunction issued, the strike was terminated. On August 1Ó, 1956, the appellants and Laclede signed a new labor agreement, and on October 31, 1956, the Governor ended the seizure.
On appeal the Supreme Court of Missouri, although noting that the injunction had “expired by its own terms,” nevertheless proceeded to consider the merits of certain of the appellants’ contentions. The court restricted its consideration, however, to those sections of the King-Thompson Act “directly involved” — “Section 295.180, relating to the power of seizure, and subparagraphs (1) and (6) of Section 295.200 RSMo, V.A.M.S., making unlawful a strike or concerted refusal to work after seizure and giving the state courts power to enforce the provisions of the Act by injunction or other means.” 317 S. W. 2d, at 316. In upholding the constitutionality of these sections of the Act, the court explicitly declined to pass on other provisions which the appellants sought to attack, stating: “The sections which we have considered are severable from and may stand independently of the remainder of the Act. Although the defendants argue strenuously to the contrary, no case is made in this record for determination of the constitutionality of section 295.090, pertaining to a written labor agreement of a minimum duration and section 295.200, subparagraphs 2, 3, 4 and 5, relating to monetary penalties and loss of seniority. We, therefore, refrain ffom expressing any opinion with reference thereto.” 317 S. W. 2d, at 323. Accordingly, the court “limited and modified” the judgment of the trial court so as to remove all possible intimation that any provisions of the Act had been held constitutional, other than those necessarily upheld in sustaining the validity of the injunction.
Because that injunction has long since “expired by its own terms,” we cannot escape the conclusion that there remain for this Court no “actual matters in controversy essential to the decision of the particular case before it.” United States v. Alaska S. S. Co., 253 U. S. 113, 116. Whatever the practice in the courts of Missouri, the duty of this Court “is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.” Mills v. Green, 159 U. S. 651, 653. See Bus Employees v. Wisconsin Board, 340 U. S. 416. To express an opinion upon the merits of the appellants’ contentions would be to ignore this basic limitation upon the duty and function of the Court, and to disregard principles of judicial administration long established and repeatedly followed.
In Harris v. Battle, 348 U. S. 803, these principles were given concrete application in a context so parallel as explicitly to control disposition of the primary issue here. That case originated as an action to enjoin the enforcement of a Virginia statute, markedly similar to the King-Thompson Act, under which the Governor had ordered that “possession” be taken of a transit company whose employees were on strike. Although. the labor dispute was subsequently settled and the seizure terminated, the trial court nevertheless proceeded to decide the merits of the case, holding that the seizure was constitutional. Harris v. Battle, 32 L. R. R. M. 83. The Virginia Supreme Court refused an appeal. Harris v. Battle, 195 Va. lxxxviii. In this Court it was urged that the controversy was not moot because of the continuing threat of state seizure in future labor disputes. It was argued that the State’s abandonment of alleged unconstitutional activity after its objective had been accomplished should not be permitted to forestall decision as to the .validity of the statute under which the State had purported to act. It was contended that the situation was akin to cases like Southern Pac. Terminal Co. v. Interstate Commerce Comm’n, 219 U. S. 498, 514-516. In finding that the controversy was moot, the Court necessarily rejected all these contentions. 348 U. S. 803. Upon the authority of that decision the same contentions must be rejected in the present case. See also Barker Co. v. Painters Union, 281 U. S. 462; Commercial Cable Co. v. Burleson, 250 U. S. 360.
However, as the appellants point out, the decision in Harris v. Battle is not completely dispositive here because, unlike the Virginia statute, the King-Thompson Act contains provisions which impose: (1) monetary penalties upon labor unions'which continue a strike after seizure; and (2) loss of seniority for employees participating in such a strike. The Missouri court found that these separable provisions of the Act were not involved in the present case, and it carefully refrained from passing on their validity. The court noted that liability for monetary penalties had been asserted in a separate lawsuit, 317 S. W. 2d, at 314, and the parties have informed us that the action is still pending in the state courts.
We cannot agree that the pendency of that litigation gives life to the present appeal. When that claim is litigated it will be subject to review, but it is not for us now ' to anticipate its outcome. “ ‘Constitutional questions are not to be dealt with abstractly’. : . . They will not be anticipated. but will be dealt with only as they are appropriately raised upon a record before us. . . . Nor will we assume in advance that a State will so'construe its law as to bring it into conflict with the federal Constitution or an act of Congress.” Allen-Bradley Local v. Wisconsin Board, 315 U. S. 740, at 746.
■ The guiding principle is well illustrated in American Book Co. v. Kansas,. 193 U. S. 49. There the Kansas Supreme Court had ousted the appellant from doing business in the State until it complied with provisions of the local law governing foreign corporations. Pending appeal the appellant satisfied the judgment by complying with the requirements of the statute; But meanwhile the State had brought another action against the appellant to void contracts it had made prior to the date of its compliance. Because of this pending litigation the. appellant argued that “‘there still exists a controversy, undeter-, mined and unsettled,’ involving the right of the State to enforce the statute against a corporation engaged in interstate commerce.” 193 U. S., at 51. What the Court said in rejecting that argument and dismissing the appeal as' moot is entirely "elevan t here. “ [T]hat suit is not before us. We have not now jurisdiction of it or its issues. Our power only extends over and is limited by the conditions of the case now before us.” 193 U. S., at 52. See Alejandrino v. Quezon, 271 U. S. 528.
The asserted threat to the seniority rights of Laclede employees is even more speculative. Almost four years have passed since the strike, and the appellants concede that no action has been taken to deprive any employees of their seniority. Moreover, the section of the Act which relates to seniority rights imposes no legal sanctions on the employees or their unions, but makes unlawful only the action of the utility company which rehires the employees without loss of seniority. In the unlikely event'that a . legal proceeding should now be brought against Laclede for having done so, there is no way to know what the outcome of such a proceeding in the Missouri courts might be.
The decision we are asked to review upheld only the validity of an injunction, an injunction that expired by its own terms more than three years ago. Any judgment of ours at this late date “would be wholly ineffectual for want of a subject matter on which it could operate. An affirmance would ostensibly require something to be done which had'already taken place. A reversal would ostensibly avoid an event which had already passed beyond recall. One tyould be as vain as the other. To adjudicate a cause which no longer exists is á proceeding which this Court uniformly has declined to entertain.” Brownlow v. Schwartz, 261 U. S. 216, 217-218.
The' judgment of the Supreme Court of Missouri is vacated, and the cause is remanded for such proceedings as by that court may be deemed appropriate.
Vacated and remanded.
The King-Thompson Act is Chapter 295 of the Revised Statutes of Missouri, 1949. The section of the statute which authorizes seizure by the Governor on behalf of the State is Mo. Rev. Stat., 1949, § 295.180.
All employees represented by the appellants, approximately 2,200, participated in the strike; approximately 300 supervisors and others not in the bargaining units represented by the appellants remained at work.
Missouri Rev. Stat., 1949, §295.200, par. 1, provides: “It shall be unlawful for any person, employee, or representative as defined in this chapter to call, incite, support or participate in any strike or concerted refusal to work for any utility or for the state after any plant, equipment or facility has been taken over by the state under this chapter, as means of enforcing any demands against the utility or against the state.”
Missouri Rev. Stat., 1949, § 295.200, par. 6, provides: “The courts of this state shall have power to enforce by injunction or other legal or equitable, remedies any provision of this chapter' or any rule or regulation prescribed by the governor hereunder.”
See notes R“'3 and 4, supra.
The court did reaffirm an earlier decision (State ex rel. State Board of Mediation v. Pigg, 362 Mo. 798; 244 S. W. 2d 75) upholding the constitutionality of provisions of the King-Thompson Act relating to the State Board of Mediation and public hearing panels, “[t]o the extent that those sections are a necessary predicate for the additional sections . . . with which we are now concerned . . . .” 317 S. W. 2d, at 315.
See, e. g., Singer Mfg. Co. v. Wright, 141 U. S. 696; California v. San Pablo & Tulare R. Co., 149 U. S. 308; Mills v. Green, 159 U. S. 651; American Book Co. v. Kansas, 193 U. S. 49; United States v. Hamburg-American Co., 239 U. S. 466; Commercial Cable Co. v. Burleson, 250 U. S. 360; United States v. Alaska S. S. Co., 253 U. S. 113; Brownlow v. Schwartz, 261 U. S. 216; Alejandrino v. Quezon, 271 U. S. 528; Barker Co. v. Painters Union, 281 U. S. 462.
See jurisdictional statement in Harris v. Battle, No. 111, O. T. 1954, pp. 12-13.
Ibid.
Ibid.
Missouri Rev. Stat., 1949, § 295.200, par. 3, provides: “Any labor organization or labor union which violates paragraph 1 of this section shall forfeit and pay to the state of Missouri for the use of the public school fund of the state, the sum of ten thousand dollars for each day any work stoppage resulting from any strike which it has called, incited, or supported, continues, to be recovered by civil action in the name of the state and against the labor organization or labor union in its commonly used name.”
Missouri Rev. Stat., 1949, §295.200, par. 2, provides: “It shall be unlawful for any public utility to employ any person or employee who has violated paragraph 1 of this section except that such person or employee may be employed only as a new employee.”
See pp. 366-367, supra. Since neither the statutory penalties nor possible loss of seniority turns on the validity of the injunction, this case is quite unlike Bus Employees v. Wisconsin Board, 340 U. S. 383, where the very judgment in controversy imposed financial liability. Nor did this case involve a “perpetual” injunction. See Bus Employees v. Wisconsin Board, 340 U. S. 416, n., at 417-418.
See note 12, supra. ■
The appellee asserts and the appellants do not deny that the statute imposes no penalty for violation of the seniority provisions.
Question: What state is associated with the respondent?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
26. Massachusetts
27. Michigan
28. Minnesota
29. Mississippi
30. Missouri
31. Montana
32. Nebraska
33. Nevada
34. New Hampshire
35. New Jersey
36. New Mexico
37. New York
38. North Carolina
39. North Dakota
40. Northern Mariana Islands
41. Ohio
42. Oklahoma
43. Oregon
44. Palau
45. Pennsylvania
46. Puerto Rico
47. Rhode Island
48. South Carolina
49. South Dakota
50. Tennessee
51. Texas
52. Utah
53. Vermont
54. Virgin Islands
55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer:
|
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.
I. C. SUTTON HANDLE FACTORY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 15942.
United States Court of Appeals Eighth Circuit.
June 11, 1958.
Rehearing Denied July 28, 1958.
Robert W. Cummins, Harrison, Ark., for petitioner.
Frederick U. Reel, Attorney, National Labor Relations Board, Washington, D. C. (Jerome D. Fenton, Gen. Counsel, Thomas J. McDermott, Assoc. Gen. Counsel, and Marcel Mallet-Prevost, Asst. Gen. Counsel, National Labor Relations Board, Washington, D. C., were with him on the brief), for respondent.
Before SANBORN, VOGEL and MATTHES, Circuit Judges.
SANBORN, Circuit Judge.
I. C. Sutton, Sr., doing business as I. C. Sutton Handle Factory, at Harrison, Arkansas, has petitioned this Court for the review and reversal of an order of the National Labor Relations Board, the practical effect of which is (1) to disable the petitioner from interfering in any way with the union affiliations and activities of his employees; (2) to require the reinstatement, with back pay, of Joe Hulsey, found by the Board to have been discriminatorily discharged; and (3) to post the usual notices.
The petitioner asserts that there was no adequate evidentiary basis for the Board’s findings and order. This the Board denies, and it asks that the order under review be enforced.
There is nothing unusual about this controversy. It falls within a familiar pattern, growing, as it does, out of things that were done and things that were said during a campaign started in the spring of 1956 by the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local Union 2746, to organize the employees of the petitioner, among whom Joe Hulsey was the most active union advocate and proponent.
A detailed discussion of the evidence, with which the parties are entirely familiar and which can be of little interest to others, is unnecessary. It is enough to say that there was substantial evidence before the Board from which, in our opinion, it reasonably could infer that the petitioner was opposed to the unionization of his employee; that his supervisors at the plant asked questions of, and made remarks to, the employees, during the campaign, which were calculated to discourage and deter them from becoming members of the union; and that, at the very height of the union campaign, Joe Hulsey, on October 24, 1956, the day after he had mailed to the union a number of applications by employees for membership in the union, was discharged.
It is obvious to us that the questions whether the petitioner had, by interrogation, threats or otherwise, in violation of Section 8(a) (1) of the National Labor Relations Act as amended (61 Stat. 136, 29 U.S.C.A. § 151 et seq.), interfered with the rights of his employees to do as they pleased about joining or not joining the union, and whether, in violation of Section 8(a) (3) and (1) of the Act, the petitioner had discharged Joe Hulsey because of his union activities, were questions of fact for the Board, and are not questions of law for this Court.
The contention of the petitioner is that because his testimony that Hulsey was discharged “for visiting and interfering with others’ work” was uneontradicted, the Board was precluded from finding that Hulsey’s discharge was motivated by his union activities. The record shows that Hulsey had been employed by the petitioner for more than three years, and that during that time no complaints had been made about his work. We are satisfied that, from the circumstances surrounding Hulsey’s discharge, the Board reasonably could infer that his separation from his employment just as the crucial stage in the campaign of the union to organize the petitioner’s plant had been reached, was the proximate result of his union activities. The Board, as the trier of the facts, was not compelled to accept at its face value the testimony of the petitioner, a highly interested witness, even though it was uncontradicted. See and compare Noland v. Buffalo Insurance Co., 8 Cir., 181 F.2d 735, 738 and cases cited. The law applicable to cases such as this has been repeatedly stated in the decisions of this Court and of Courts of Appeals of the other Circuits. This case differs in no controlling respects from National Labor Relations Board v. Minnesota Mining & Manufacturing Co., 8 Cir., 179 F.2d 323; Coca-Cola Bottling Co. of St. Louis v. National Labor Relations Board, 8 Cir., 195 F.2d 955, and National Labor Relations Board v. Cold Spring Granite Co., 8 Cir., 208 F.2d 163.
We find nothing in the record which would justify a reversal of the order under review or a refusal by this Court to enforce it.
The request of the Board for the enforcement of its order is granted.
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_appfed
|
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 "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
ARROW DRILLING COMPANY, Appellant, v. Richard T. BROOKS and Bituminous Casualty Corporation, Appellee.
No. 19299.
United States Court of Appeals Fifth Circuit.
May 25, 1962.
Otto Atchley, Victor Hlavinka, Atchley, Russell, Hutchinson & Waldrop, Texarkana, Tex., for appellant.
Franklin Jones, Sr., Marshall, Tex., L. L. Lockard, Shreveport, La., Larry Oubre, Dallas, Tex., Franklin Jones, Jr., Marshall, Tex. (Jones, Brian & Jones, Marshall, Tex., of counsel), for appellees.
Before TUTTLE, Chief Judge, and HUTCHESON and WISDOM, Circuit Judges.
PER CURIAM.
This is an appeal from a verdict and judgment for plaintiff in a suit for personal injuries received in Texas by appellee, as the employee of Griggs Casing Crews Co., Inc., a sub-contractor of appellant, the drilling contractor.
The grounds of negligence alleged were: (1) furnishing unsafe equipment used in the work performed by the Griggs crew; (2) employing a method of work which was unsafe; and (3) arranging the derrick and its appurtenances so as to cause a condition of danger and hazard.
In addition to these specific allegations of negligence, there was a general claim of negligence based upon res ipsa loquitur.
The defendant denied generally and pleaded contributory negligence and voluntary assumption of risk. In addition to these defenses, the defendant relied below and relies here upon two affirmative defenses styled First Defense-A and First Defense-B. These defenses in effect were a plea of res judicata based upon a judgment for compensation obtained by appellee in Louisiana and under its laws against Griggs Casing Crews, Inc. and its compensation carrier in Louisiana, and the claim that under Louisiana Workmen’s Compensation laws it was a statutory employer of appellee, liable solidarily with Griggs Casing Crews, Inc. for injuries suffered by plaintiff; and the compensation judgment was a bar to this suit against defendant.
The district judge, on a full hearing, struck these defenses on the ground that there was no final judgment in the Louisiana case. The cause was submitted to the jury, a verdict for plaintiff resulting; and defendant is here attacking the submission of the cause to the jury and the verdict as unsupported by the evidence, and, in addition, insisting: that defendant’s defenses A and B should have been sustained, and a verdict for defendant should have been directed on the defense of voluntary assumption of risk.
Appellee vigorously contests defendant’s claim on its special defenses A & B on the ground (1) that the district judge correctly held that the judgment in Louisiana disposing of plaintiff’s workmen’s compensation insurance was not shown to be a final judgment; and (2) that in no event could the Louisiana judgment for workmen’s compensation insurance deprive appellee-plaintiff of his right to bring a third party action for damages in Texas under the express authority of its compensation act. Appellee further insists that there was ample testimony to sustain the jury’s finding in favor of plaintiff-appellee on the assumed risk issue and the defendant’s motion for directed verdict was therefore properly denied.
The special defenses aside, we think it clear that the case was one for a jury verdict and that the defendant’s insistence that a verdict for defendant should have been directed on the ground that plaintiff, as matter of law, assumed the risk of injury is without sound basis. The issue was submitted to the jury on evidence which made it a jury issue, and the jury found for plaintiff.
As to the special defenses, based on the compensation award in Louisiana, we agree with appellee and the district judge that when the plea of estoppel and res judicata was disposed of by the judge, there was no final judgment in the cause, and the district judge was, therefore, right in rejecting the special defenses. We, therefore, find it unnecessary to inquire into and determine whether, as urged by defendant, if there had been a final judgment in the compensation suit, it would have been a bar to the Texas action.
The judgment is
Affirmed.
Question: What is the total number of appellants in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
|
songer_r_fed
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Myra Holladay SIMS and Florida Import and Compliance Association, Plaintiffs-Appellees, v. STATE OF FLORIDA, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Defendant-Appellant.
No. 86-3055.
United States Court of Appeals, Eleventh Circuit.
Dec. 2, 1987.
Eric J. Taylor, Asst. Atty. Gen., Dept, of Legal Affairs, Tallahassee, Fla., for defendant-appellant.
William C. Owen, Carlton, Fields, Ward, Emmanuel, George N. Meros, Tallahassee, Fla., amicus: Fla. Auto. Dealers Ass’n.
Susan Greco Tuttle, Moffitt, Hart & Miller, Tampa, Fla., amicus: Import Auto. Dealers of Florida, Inc.
Edward T. O’Donnell, Mershon, Sawyer, Johnston, Dunwody & Cole, Miami, Fla., amicus: Mercedes-Benz of North America, Inc.
Robert P. Smith, Jr., Tallahassee, Fla., for plaintiffs-appellees.
Before TJOFLAT and HATCHETT, Circuit Judges, and EATON, District Judge.
Honorable Joe Eaton, Senior U.S. District Judge for the Southern District of Florida, sitting by designation.
HATCHETT, Circuit Judge.
The State of Florida, and the Department of Highway Safety and Motor Vehicles, appeal from the district court’s declaration that Florida Statute § 320.02(9) is unconstitutional because it is preempted under the supremacy clause and violates the commerce clause of the United States Constitution. We affirm in part and remand.
FACTS
On April 30, 1985, Myra Holladay Sims imported from Europe an automobile popularly known as a “gray market” automobile. “Gray market” automobiles are imported automobiles which are not designed or manufactured to comply with United States emissions and safety standards. Florida Import and Compliance Association (FICA) is a trade association whose members are directly involved in the importation of gray market automobiles.
Two federal statutes govern the importation of foreign manufactured automobiles into the United States. The Clean Air Act, 42 U.S.C. § 7522, and the Safety Act, 15 U.S.C. § 1397, bar the importation of motor vehicles that do not comply with the applicable federal emissions and safety standards. Specifically, the Clean Air Act prohibits
the sale, or the offering for sale, or the introduction, or delivery for introduction, into commerce, or (in the case of any person, except as provided by regulation of the Administrator), the importation into the United States, of any new motor vehicle or new motor vehicle engine, manufactured after the effective date of regulations under this part which are applicable to such vehicle or engine unless such vehicle or engine is covered by a certificate of conformity issued (and in effect) under regulations prescribed [by this statute].
42 U.S.C. § 7522(a)(1). Also, under section 7522(b)(2), the statute provides that
[t]he Secretary of the Treasury and the Administrator [of the Environmental Protection Agency (EPA) ] may, by joint regulation provide for deferring final determination as to admission and authorizing the delivery of such a motor vehicle or engine offered for import to the owner or consignee thereof upon such terms and conditions (including the furnishing of a bond) as may appear to them appropriate to ensure that any such motor vehicle or engine will be brought into conformity with the standards, requirements, and limitations applicable to it under this part. The Secretary of the Treasury shall, if a motor vehicle or engine is finally refused admission under this paragraph, cause disposition thereof in accordance with the customs laws unless it is exported, under regulations prescribed by such Secretary, within ninety days of the date of notice of such refusal or such additional time as may be permitted pursuant to such regulations, except that disposition in accordance with the customs laws may not be made in such manner as may result, directly or indirectly, in the sale, to the ultimate customer, of a new motor vehicle or new motor vehicle engine that fails to comply with applicable standards of the Administrator under this part.
Similarly, the Safety Act provides that “[n]o person shall manufacture for sale, sell, offer for sale, or introduce or deliver for introduction in interstate commerce, or import into the United States, any motor vehicle [unless it is in conformity with applicable federal motor vehicle safety standards].” 15 U.S.C. § 1397(a)(1)(A). In addition, that statute provides as follows:
[T]he Secretary of the Treasury and the Secretary [of the National Highway Transportation Safety Administration, Department of Transportation (DOT)] may, by... regulations, provide for authorizing the importation of such motor vehicle or item of motor vehicle equipment into the United States upon such terms and conditions (including the furnishing of a bond) as may appear to them appropriate to ensure that any such motor vehicle or item of motor vehicle equipment will be brought into conformity with any applicable federal motor vehicle safety standard prescribed under this subchapter, or will be exported or abandoned to the United States.
15 U.S.C. § 1397(b)(3).
Despite general prohibitions against the importation of nonconforming motor vehicles into the United States, Congress, under the above provisions, authorized the importation of gray market vehicles upon the furnishing of a bond or other means of assuring that federal environmental and safety laws are not unlawfully circumvented. The EPA, the DOT, and the Treasury Department promulgated regulations governing the importation of gray market vehicles. See generally 19 C.F.R. §§ 12.73, 12.80; 40 C.F.R. Part 85, Subpart P and 49 C.F.R. Part 571. Under these regulations, a gray market vehicle is conditionally admitted into the United States for the limited purpose of enabling the importer to comply with federal emissions and safety laws. The importer must post an entry bond with the United States Customs Service (Customs) for an amount equal to the value of the vehicle plus the customs duty. See Automobile Importers Compliance Association, Handbook of Vehicle Importation, 21 (1984). In addition, the importer must sign a statement indicating that the motor vehicle “is not covered by a certificate of conformity with federal motor vehicle emission standards but will be brought into conformity with such standards.” 19 C.F.R. § 12.73(b)(5)(x) (1986). Finally, the importer must declare that the vehicle “was not manufactured in conformity [with] all applicable safety standards, but it has been or will be brought into conformity.” 19 C.F.R. § 12.80(b)(l)(iii). The entry bond serves as a means to enforce the importer’s obligation to comply with the requirements of federal emission and safety standards. Thus, Customs will not release the bond until it receives assurance from the EPA and the DOT that the importer has complied with the standards. See 19 C.F.R. §§ 12.73c and 12.80e.
When Sim’s automobile arrived at port in Jacksonville, Florida, she complied with all of the applicable federal regulations governing the importation of gray market automobiles, which included posting a bond in the requisite amount. Sims was exempt from conforming her automobile to the applicable federal emission standards and received a letter from the EPA releasing the EPA obligation on the bond. In complying with the Safety Act and the DOT regulations, Sims completed the requirements under 19 C.F.R. § 12.80(b)(l)(iii).
In 1984, the Florida legislature passed the following statute concerning automobile titling and registration:
Before a motor vehicle which has not been manufactured in accordance with the federal Clean Air Act and the federal Motor Vehicle Safety Act can be sold to a consumer and titled and registered in this state, the motor vehicle must be certified by the United States Customs Service or the United States Department of Transportation and the United States Environmental Protection Agency to be in compliance with these federal standards. A vehicle which is registered pursuant to this subsection shall not be titled as a new motor vehicle.
Act approved June 11, 1984, ch. 84-155, § 3, 1984 Fla.Laws 457, 458 (codified as amended at Fla.Stat. § 320.02(9) (1985)). This provision prevents the owner of a gray market vehicle from acquiring title and vehicle registration in Florida until the owner has obtained the required documentation from the federal government.
Subsequent to the passage of Fla.Stat. § 320.02(9), Sims unsuccessfully sought to title and register her automobile at the Florida Department of Highway Safety and Motor Vehicles (DMV). The DMV refused to title and register Sims’s automobile because she did not produce release letters from the DOT and Customs certifying compliance with federal standards. Sims had not received a bond release letter from the DOT because of the excessive number of forms the DOT had to review.
Following refusal to title and register the automobile, Sims and the FICA filed suit in United States District Court for the Northern District of Florida alleging that the state’s enforcement of section 320.02(9) violated the supremacy and commerce clauses of the United States Constitution: (1) the Clean Air Act and the Safety Act preempt the state’s authority to require compliance with federal emission and safety standards, and (2) enforcement of section 320.02(9) places an impermissible burden on foreign and interstate commerce. The district court concluded that the Clean Air Act and Safety Act preempt the state’s authority to enforce section 320.02(9) and that enforcement of the statute would violate the commerce clause. The district court declared section 320.02(9) unconstitutional and enjoined its enforcement. The state brings this appeal from the district court’s ruling.
On September 29, 1986, we heard oral arguments addressing whether Fla.Stat. § 320.02(9) violates the supremacy and commerce clauses of the United States Constitution. On February 18, 1987, we requested “all counsel of record” to submit supplemental briefs addressing (1) standing, (2) Florida’s sovereign immunity under the eleventh amendment, and (3) mootness. The parties complied with our request.
DISCUSSION
A. Standing
The state of Florida alleges that Sims and the FICA lack standing to challenge the constitutionality of Fla.Stat. § 320.02(9) because they have failed to show (1) a judicially cognizable injury traceable to the enforcement of the statute, and (2) the likelihood of redress if the Florida statute is declared preempted or in violation of the commerce clause. “[T]he question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.” Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). In order to satisfy the requirements of standing, a plaintiff must allege a personal injury fairly traceable to the challenged conduct and a likelihood of redress by the requested relief. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982).
Sims and the FICA allege that the state’s enforcement of Fla.Stat. § 320.02(9) violates the supremacy and commerce clauses of the United States Constitution because it prevents the owner of a “gray market” vehicle from acquiring title and registration in Florida prior to release of the entry bond and final admission of the vehicle into the United States.
We note that whether the appellees have sufficiently alleged standing is not determined by the likelihood that they will prove what has been alleged. The Supreme Court’s ruling in Warth, 422 U.S. at 501, 95 S.Ct. at 2206, requires the courts to “accept as true all material allegations of the complaint, and... construe the complaint in favor of the complaining party.” See Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99 S.Ct. 1601, 60 L.Ed.2d 66 (1979). In satisfying the initial requirement under the Article III doctrine relating to standing—an allegation of “a distinct and palpable injury,” Warth, 422 U.S. at 501, 95 S.Ct. at 2206. Sims and the FICA’s complaints allege that the state’s enforcement of section 320.02(9) unlawfully prevents the titling and registering of gray market vehicles in Florida. In assuming, as we must, the truth of the allegations, the state’s unlawful refusal to issue titles and registrations to owners of gray market vehicles constitutes a distinct, palpable, and personal injury to Sims and the FICA.
Also, Sims’s and the FICA’s complaints contain assertions sufficient to establish the second requirement necessary to show standing—the likelihood of redress by the requested relief. Absent the state’s enforcement of section 320.02(9), Sims and other owners of gray market vehicles would immediately have their vehicles titled and registered in Florida. Federal statutes do not prohibit the titling and registering of gray market vehicles prior to final admission; similarly, the DOT does not prohibit the operation of gray market vehicles on public highways prior to the issuance of a release letter Only the EPA, under Title 40 C.F.R. § 85.1507 (1985), requires that gray market vehicles “be stored and... not... operated on the public highways [prior to] final admission.” The state’s argument is that since Sims and other owners of gray market vehicles are prohibited by section 85.1507 from operating such vehicles on the state roads until final admission is granted, they have no reason to seek titling and the registration of these vehicles. Such a contention amounts to mere speculation as to the owner’s need for, or the reason for which the owner seeks titling and registration. Moreover, Fla.Stat. § 320.02(1) does not prohibit the registration of vehicles that are not operated on Florida roads. We cannot conclude that titling and registration of a gray market vehicle are necessary only for the operation or sale of the automobile. In this case, we also find that Sims and the FICA have sufficiently alleged a distinct, palpable, and personal injury in the state’s enforcement of Fla.Stat. § 320.02(1). “There is [a] casual connection between the asserted injury and the conduct being challenged.” Allen v. Wright, 468 U.S. 737, 770, 104 S.Ct. 3315, 3334, 82 L.Ed.2d 556 (1984) (noting Simmon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 41, 96 S.Ct. 1917, 1925, 48 L.Ed.2d 450 (1976)). We hold that this lawsuit presents a “case or controversy” as required by article III of the United States Constitution and does not constitute a “hypothetical case.” Sims and FICA have standing to bring this lawsuit.
B. Preemption
Sims and the FICA successfully challenged the constitutionality of Fla.Stat. § 320.02(9) in the district court. The district court held that the Clean Air Act and Safety Act preempt the state’s authority to require compliance with federal emission and safety standards. Federal preemption of state law is derived from the supremacy clause of article IV, clause 2 of the United States Constitution, which reads as follows:
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding.
The Supreme Court in Michigan Canners and Freezers Association, Inc. v. Agricultural Marketing and Bargaining Board, 467 U.S. 461, 104 S.Ct. 2518, 81 L.Ed.2d 399 (1984) stated the three ways in which federal law may preempt state law.
Federal law may preempt state law in any of three ways. First, in enacting the federal law, Congress may explicitly define the extent to which it intends to preempt state law. [Citation omitted.] Second, even in the absence of express preemptive language, Congress may indicate an intent to occupy an entire field of regulation, in which case the states must leave all regulatory activity in that area to the federal government. [Citations omitted.] Finally, if Congress has not displaced state regulation entirely, it may nonetheless preempt state law to the extent that the state law actually conflicts with federal law.
Michigan Canners, 467 U.S. at 469, 104 S.Ct. at 2523.
In Howard v. Uniroyal, Inc., 719 F.2d 1552, 1555 (11th Cir.1983), we “acknowledge[d] the well established principle that the touchstone of preemption analysis is congressional intent....” Additionally, “[t]he intent of Congress to pre-empt a state law may be either express or implied, and ‘is compelled whether Congress’ command is explicitly stated in the statute’s language or implicitly contained in its structure and purpose.’ ” Howard, 719 F.2d at 1556 (citing Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604 (1977)).
The Clean Air Act contains the following preemptive provision regarding state enforcement of federal emission standards:
No state or any political subdivision thereof shall adopt of attempt to enforce any standard relating to the control of emissions from new motor vehicles or new motor vehicles engines subject to [the vehicle emission standards of the Clean Air Act]. No state shall require certification, inspection, or any other approval relating to the control of emissions from any new motor vehicle or motor vehicle engine as condition precedent to the initial retail sale, titling (if any), or registration of such motor vehicle, motor vehicle engine, or equipment.
42 U.S.C. § 7543(a). The express language in section 7543(a) indicates Congress's intent to exclusively regulate the control of emissions from new motor vehicles prior to the initial sale. See Michigan Canners, 467 U.S. 461, 104 S.Ct. 2518.
The state contends that Fla.Stat. § 320.02(9) simply ensures that new automobiles coming onto Florida’s highways comply with the Clean Air Act; it does not establish new or conflicting emission standards. Although this contention may be based on proper and wholesome intentions, nevertheless, Congress specifically stated that “[n]o state... shall adopt or attempt to enforce any [federal or state] standard relating to the control of emissions from new motor vehicles” prior to the initial sale. 42 U.S.C. § 7543(a) (emphasis added). Thus, we agree with the district court’s ruling and hold that “[enforcement of the Clean Air Act before [the] first sale [of new motor vehicles] is the sole and exclusive prerogative of the federal government.”
The Safety Act likewise contains a preemptive provision which reads in part as follows:
Whenever a federal motor vehicle safety standard established under this subchap-ter is in effect, no state or political subdivision of a state shall have any authority either to establish, or to continue in effect, with respect to any motor vehicle or item of motor vehicle equipment any safety standard applicable to the same aspect of performance of such vehicle or item of equipment which is not identical to the federal standard.
15 U.S.C. § 1392(d). Unlike the preemptive provision contained in the Clean Air Act, 15 U.S.C. § 1392(d) precludes states from enforcement of safety standards only when such standards are not identical to federal standards.
The district court held that prior to the first sale ¡of a motor vehicle, “[t]he states are absolutely barred from acting in any manner whatsoever in” enforcing federal safety standards and that “the role of the states in enforcing the federal laws and regulations is confined solely to the period after the first sale of an automobile.” We disagree.
Section 1392(d) does not expressly preclude states from requiring proof of compliance with federal safety standards before obtaining title and registration for gray market automobiles. In Hillsborough County, Florida v. Automated Medical Laboratories, Inc., 471 U.S. 707, 714, 105 S.Ct. 2371, 2376, 85 L.Ed.2d 714, 722 (1985), the United States Supreme Court stated that “[t]he question whether the regulation of an entire field has been reserved by the federal government is, essentially, a question of ascertaining the intent underlying the federal scheme.” Congress enacted the Motor Vehicle Safety Act to establish uniform federal safety standards. See H.R. 1776, 89th Cong., 2d Sess. 17 (1966), U.S.Code Cong. & Admin.News 1966, p. 2709. Section 1392(d), as originally enacted, restricted federal enforcement of safety standards to the initial sale of new vehicles and permitted state enforcement of safety standards identical to corresponding federal standards after the first sale of new vehicles. S.Rep. No. 1301, 89th Cong., 2d Sess., reprinted in 1966 U.S.Cong. & Admin.News 2709, 2720.
Also, the District Court for the Middle District of Pennsylvania in Truck Safety Equipment Institute v. Kane, 466 F.Supp. 1242 (M.D.Pa.1979), held that state safety standards identical to federal standards were preempted because the intent of Congress was to preclude states from presale enforcement of federal safety standards. The court in Kane, however, noted that the standards derived under the Pennsylvania system required independent testing and the payment of fees to cover the cost of such testing. Kane, 466 F.Supp. at 1245-46. Unlike the Pennsylvania regulations examined in Kane, Fla.Stat. § 320.02(9) does not impose additional requirements on the importer of a gray market vehicle than those imposed by the applicable federal standards.
In 1982, the National Highway Traffic Safety Administration (NHTSA) issued an opinion in an attempt to interpret the extent to which section 1392(d) preempted state enforcement of federal safety standards. Federal Motor Vehicle Safety Standards: Interpretation Regarding Preemption and Presale State Enforcement of Safety Standards, 47 Fed.Reg. 884 (Advisory Letter) (1982). In its interpretation, the NHTSA stated:
[I]t is the position of the NHTSA that any state requirement which necessitates that manufacturers pay fees in order to obtain approval under a state standard identical to an FMVSS [Federal Motor Vehicle Safety Standard], and any imposition of requirements for approval which has the effect of prescribing the sale of equipment certified under the Act to a standard such as FMVSS 218 would be preempted by operation of the Act and of the agency’s action in adopting the federal standard in question.
47 Fed.Reg. at 885.
Recently, the Fifth Circuit in Direct Automobile Importers Association, Inc. v. Townsley, 804 F.2d 1408 (5th Cir.1986), examined a Texas statute similar in language to Fla.Stat. § 320.02(9) and stated:
H.B. 1805 places no burden on the manufacturer, which was clearly the concern behind the interpretation. H.B. 1805 does not involve the payment of any fees, nor does it have the effect of prescribing the sale of federally certified equipment. Indeed, H.B. 1805 does not require any certification except federal certification by federal authorities. As best we can tell, the original pre-1982 amendment provision was enacted to assure uniformity of standards for manufacturers so vehicles and equipment meeting the federal standards could be sold freely in any state. See remarks of Senator Magnu-son (one of the NHTSA’s sponsors), 112 Cong.Ree. S14230 (daily ed. June 14, 1966) (remarks of Senator Magnuson). The Texas statute H.B. 1805, does not impair this objective since it creates no independent state standard or certification of the automobiles.
Townsley, 804 F.2d at 1414. The same rationale holds true in this case regarding Fla.Stat. § 320.02(9). As noted above, Fla. Stat. § 320.02(9) neither imposes additional requirements or burdens on the manufacturer or importer, nor involves the payment of additional fees. Additionally, section 320.02(9) does not have the effect of prescribing the sale of federally certified equipment, or impairing the objective of Congress in establishing uniform federal safety standards to permit the free marketability of vehicles in all states.
In 1982, Congress amended section 1392(d) by adding the following sentence to the end of the provision: “Nothing in this section shall be construed as preventing any state from enforcing any safety standard which is identical to a federal safety standard.” 15 U.S.C. § 1392(d) (1982). The Senate issued a report on the amendment which reads in part as follows:
The committee intends that states are not preempted from enforcing safety standards identical to federal standards which they have adopted. States may not require [state] certification or approval of motor vehicles or motor vehicle equipment. However, state enforcement may be carried out according to applicable state laws. States may undertake independent testing, and also may require manufacturers to submit adequate test data concurrent with the first sale or thereafter.
S.Rep. No. 505, 97th Cong., 2d Sess. 6, reprinted in 1982 U.S.Code Cong. & Admin.News 3169, 3174.
In Georgia Automobile Importers Compliance Association, Inc. v. Bowers, 639 F.Supp. 352 (1986), the District Court for the Northern District of Georgia addressed the constitutionality of Georgia statutes O.C.G.A. §§ 40-2-25.1, 40-3-29.1, and 16-9-110 (1985) in light of 15 U.S.C. § 1392(d) (1982). In reviewing the legislative history of section 1392(d), the district court noted several statements made on the floor of the House of Representatives when the bill was passed indicating congressional intent. Representative Wirth stated that “[a] recent court case and NHTSA opinion have changed the scope of traditional state enforcement.” 128 Cong. Rec. H3438 (daily ed. June 14, 1982) (remarks of Rep. Wirth). Representative Moorhead considered the amendment to affirmatively declare states as having a role in enforcing federal safety standards. See 128 Cong.Rec. H3439 (daily ed. June 14, 1982) (remarks of Rep. Moorhead). In addition, Representative Dingell stated in regard to section 1392(d), as amended, that “states may undertake independent testing of vehicles or equipment and may require manufacturers to submit adequate data concurrently with the first sale within a state, or thereafter.” 128 Cong.Rec. H3440 (daily ed. June 14, 1982) (remarks of Rep. Dingell).
We agree with the court’s conclusion in Townsley that “the legislative history shows an intent to preempt state presale enforcement of federal standards where the sale of federally certified equipment is impaired by an independent state compliance system.” Townsley, 804 F.2d at 1415. Fla.Stat. § 320.02(9) does not create an impairment to the enforcement of federal safety standards or frustrate the intent of Congress in establishing uniformity of standards for manufacturers of vehicles; consequently, we hold that 15 U.S.C. § 1392(d) (1982) does not preempt Fla.Stat. § 320.02(9) (1985).
C. Commerce Clause
The district court concluded that since Fla.Stat. 320.02(9) prevents owners of gray market vehicles from titling and registering their vehicles prior to presenting proof of compliance with federal emission and safety standards, the marketability of gray market vehicles is limited and prevents their free introduction into the stream of commerce.
The commerce clause of the United States Constitution reads in part as follows: “The Congress shall have the power to regulate commerce with foreign nations, and among the several states_” U.S. Const. art I, § 8, cl. 3. In determining whether Fla.Stat. § 320.02(9) is violative of the commerce clause, we must (1) determine exactly what interest the statute purports to protect, (2) determine whether the statute burdens commerce, and if so, to what extent, and (3) balance the weight and nature of the interests protected by the statute against the extent to which it imposes a burden on commerce. See generally Kassel v. Consolidated Freightways Corp., 450 U.S. 662, 101 S.Ct. 1309, 67 L.Ed.2d 580 (1981).
In addressing the extent to which states may create laws affecting commerce, the Supreme Court has held that:
The commerce clause does not... invalidate all state restrictions on commerce. It has long been recognized that, ‘in the absence of conflicting legislation by Congress, there is a residuum of power in the state to make laws governing matters of local concern which nevertheless in some measure affect interstate commerce or even, to some extent, regulate it.’ [Citation omitted.] The extent of permissible state regulation is not always easy to measure. It may be said with confidence, however, that a state's power to regulate commerce is never greater than in matters traditionally of local concern. [Citation omitted.] For example, regulations that touch upon safety — especially highway safety — are those that ‘the Court has been most reluctant to invalidate.’ [Citations omitted.] Indeed, ‘if safety justifications are not illusory, the Court will not second guess legislative judgment about their importance in comparison with related burdens on interstate commerce.’ [Citation omitted.] Those who would challenge such bona fide safety regulations must overcome a ‘strong presumption of validity.’ [Citation omitted.]
Kassel, 450 U.S. at 669-70, 101 S.Ct. at 1315-16.
The objective of Fla.Stat. § 320.02(9) is to ensure that gray market vehicles comply with federal emission and safety standards before receiving titles and registration in Florida. Fla.Stat. § 320.02(9) advances a legitimate and local concern for the health and safety of the state’s citizens in that it attempts to prevent the sale and operation of vehicles in Florida that are not considered safe for persons and the environment under federal standards.
We must now determine the extent to which Fla.Stat. § 320.02(9) burdens commerce. Section 320.02(9) imposes restrictions on the importation of gray market vehicles into the United States. We agree with the district court that:
The statute prevents the titling and registration of vehicles which in turn limits the marketability of the cars. To force an importer to use a different port of entry, for example, Savannah, Georgia, or Mobile, Alabama, in order to receive registration and titles from the relevant state authorities without having to endure the trials and tribulations that Florida has erected in their path destroys the common market of commerce for the entire United States as established by the Constitution. It is precisely this type of state action that the Commerce Clause was designed to prevent; thus the statute is constitutionally infirm.
Accordingly, in weighing the local concerns of section 320.02(9) against the burden on commerce, we find that Fla.Stat. § 320.02(9) does violate the commerce clause. Although Fla.Stat. § 320.02(9) requires no greater compliance than compliance with applicable federal standards, Florida’s titling and registration statute imposes a burden on foreign and interstate commerce. The Florida Statute directs the stream of commerce in gray market vehicles from Florida to other states for those owners who have legitimate reasons for registering and titling their vehicles before being able to use them on the roads of Florida.
D. Immunity
Sims and the FICA filed suit in the district court against the State of Florida, Department of Highway Safety and Motor Vehicles, and the Attorney General seeking to enjoin the enforcement of Fla.Stat. § 320.02(9). Thereafter, Sims and the FICA filed a motion (which was not contested) to dismiss the Attorney General as a defendant in the case. The Director of the Division of Motor Vehicles, Florida Department of Highway Safety and Motor Vehicles, was never included as a party defendant. Thus, the only remaining party defendants in the present action are the State of Florida and one of its agencies— the Department of Highway Safety and Motor Vehicles. “It is clear... that in the absence of consent a suit in which the state or one of its agencies or departments is named as the defendant is prescribed by the eleventh amendment.” Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 908, 79 L.Ed.2d 67 (1984).
The state of Florida, in responding to the constitutional challenge to Fla.Stat. § 320.02(9), failed to plead the defense of sovereign immunity under the eleventh amendment and did not initially raise the issue on appeal. Nonetheless, “[T]he eleventh amendment defense sufficiently partakes of the nature of a jurisdictional bar so that it need not be raised in the trial court.” Edelman v. Jordan, 415 U.S. 651, 678, 94 S.Ct. 1347, 1363, 39 L.Ed.2d 662 (1974). Moreover, Florida’s constitution requires “specific, clear, and unambiguous language in a statute to constitute a waiver of sovereign immunity.” Manatee County v. Town of Longboat Key, 365 So.2d 143, 147 (Fla.1978). In
Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
|
songer_genapel1
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
FORTE v. UNITED STATES.
No. 6767.
United States Court of Appeals for the District of Columbia.
Decided April 5, 1937.
• J. William Tomlinson and James A. O’Shea, both of Washington, D. C., for appellant.
Leslie C. Garnett, U. S. Atty., and Roger Robb, Asst. U. S. Atty., both of Washington, D. C.
Before MARTIN, Chief Justice, and VAN ORSDEL, GRONER, and STEPHENS, Associate Justices.
STEPHENS, Associate Justice.
This is an appeal from a judgment of the District Court of the United States for the District of Columbia sentencing the appellant to imprisonment in a penitentiary. The case was tried to a jury. The appellant was charged with transporting a motor vehicle in interstate commerce, from the District of Columbia to Maryland, knowing it to have been stolen. The pertinent statute is the National Motor Vehicle Theft Act, 41 Stat. 324 (18 U.S.C.A. § 408). The text thereof is set forth in the margin. At the close of the case for the Government the appellant moved for a directed verdict in his own favor. During the argument of the motion, the United States Attorney advised the court that “the Government did not rely on the inference of guilt from possession of stolen property for a conviction in this case.” The trial judge overruled the motion. The appellant excepted and advised the judge that he would stand on the Government’s case, and requested the judge to instruct the jury to return a verdict of not guilty. This request the judge refused, and the appellant excepted. These rulings are assigned as error. The appellant contends that there was lacking, independent of his confession, substantial proof of 4he corpus delicti in that there was no evidence, independent of the confession, that he knew that the car was stolen. To the contrary the Government contends, apparently, that substantial proof of the whole of the corpus delicti, independent of the confession, is not as a matter of law requisite, and in any event that the scienter is not a part of the corpus delicti.
The evidence introduced for the Government was this: The car in question, a two seated Ford with District of Columbia tags, was stolen from in front of the residence of its owner in the District of Columbia on July 15, 1935. It was found by a police officer in the possession of the appellant in Baltimore on November 3, following. The appellant was driving it towards Washington; the officer apprehended him for speeding. When the car was thus discovered the rear seat and cushions had been removed, and the springs had been strengthened by adding leaves. The car smelled of alcohol. In it were gunny sacks and a robe. It bore New Jersey tags, and District of Columbia and Marjdand tags were found under the front seat, but the District of Columbia tags did not belong to it; and the original District of Columbia tags were not on it. The appellant had a District of Columbia driver’s permit, and a registration card issued to one Helen Kyle. The mileage of the car had increased since the date of the theft 6,-,500 miles. In a compartment in the back was $297 in cash. On his arrest the appellant said that this money had been given him in Washington to buy alcohol in Trenton, New Jersey, telling the arresting officer that the car and money were left at his home, which he said was in Washington, by one Monoi to make the trip. He said also on his arrest that he was coming from New Jersey. He told the arresting officer that he could have the money above mentioned if he would let him go. On the way back to Washington with another officer, the appellant admitted that he knew that the car he was using was a stolen car. To a third officer the appellant said that a man named Carroll brought the car to his house on Seventh Street in Washington and gave him money and the car to make the trip to New Jersey for alcohol. The appellant refused to tell where Carroll could be found, saying, “Never mind, I will take the rap for the car.” The appellant told this third officer that the cushions for the car were at his house on Seventh Street, S. W., Washington, D. C. The officer found the appellant’s mother there, but not the cushions. He never saw the appellant there. The cushions were returned to the owner of the car by the appellant’s attorney.
There is some division in the authorities in respect of the rule of proof in cases involving confessions. A distinguished American text writer, Mr. John H. Wig-more, is of the view that there should be no definite rule forbidding conviction of an accused in a criminal case upon his uncorroborated confession. He points out in respect of the English law:
“The proposed rule appeared in two variations; by the one, the corroborative evidence might be of any sort whatever; by the other, it must specifically relate to the ‘corpus delicti’, i. e., the fact of injury. The latter form tended to prevail; but in neither form did the rule obtain a general footing. So far as it can be supposed to obtain at all to-day in the English and Irish courts, it is apparently restricted to the case of homicide:...” [4 Wigmore, Evidence (2d Ed. 1923) § 2070, p. 406]
Further expressing his point of view as to the policy of such a rule, he states:
“The policy of any rule of the sort is questionable. No one doubts that the warning which it conveys is a proper one; but it is a warning which can be given with equal efficacy by counsel or (in a jurisdiction preserving the orthodox function of judges) by the judge in his charge on the facts. Common intelligence and caution, in the jurors’ minds, will sufficiently appreciate it, without a laying on of the rod in the shape of a rule of law. Moreover, the danger which' it is supposed to guard against is greatly exaggerated in common-thought. That danger lies wholly in a false confession of guilt. Such confessions, however, so far as handed down to us in the annals of our courts, have been exceedingly rare (ante, § 867). Such a rule might ordinarily, if not really needed, at least be merely superfluous. But this rule, and all such rules, are to-day constantly resorted to by unscrupulous counsel as mere verbal formulas with which to entrap the trial judge into an error of words in his charge to the jury. These capabilities of abuse make it a positive obstruction to the course of justice.” [4 Wigmore, Evidence (2d Ed. 1923) § 2070, p. 406]
Mr. Wigmore concedes, however, that except in a few jurisdictions, the courts in the United States have adopted a fixed rule that corroboration of a confession is necessary. *He believes them to have been “chiefly moved, in all probability, by Professor Greenleaf’s suggestion that ‘this opinion certainly best accords with the humanity of the criminal code and with the great degree of caution applied in receiving and weighing the evidence of confessions in other cases.’ ” 4 Wigmore, Evidence (2d Ed. 1923) § 2071, p. 407 In respect of variations of the rule in the United States, Mr. Wigmore states that “in most jurisdictions the stricter form of rule is taken, and the evidence must concern the ‘corpus delicti’:...”4 Wig-more, Evidence (2d Ed. 1923) § 2071, p. 408.
The conclusions reached by Mr. Wig-more on the one hand, and by Mr. Green-leaf and the greater number of the courts in the United States on the other, differ because they proceed from contrary premises. Mr. Wigmore’s premise is that there is little danger of false confessions of guilt. He predicates this upon the proposition above quoted that “so far as handed down to us in the annals of our courts, [false confessions] have been exceedingly rare.” To support this statement he comments that “No trustworthy figures of authenticated instances [of false confessions] exist; but they are concededly few.” 2 Wigmore, Evidence (2d Ed. 1923) § 867, pp. 227-228. He then reviews in footnote a number of “the most notable in English and American annals” including Perry’s Case, 14 How. St.Tr. 1312, 1660 — where one of two brothers confessed that he, his brother and his mother had murdered his master, and they were executed, and two years later the master returned home explaining that he had been kidnapped and sold to the Turks. The premise of the reasoning of Mr. Greenleaf and the great majority of the courts in the United States is that there is real danger of false confessions, coerced or psychopathic. For this premise there seems now, whatever may have been the state of the data in 1923, the date of Mr. Wigmore’s work, substantial foundation, not only in the annals of the courts in the sense of the reported decisions thereof, but also in dependable reports of criminological investigations. The comprehensive and detailed Report on Lawlessness in Law Enforcement of the National Commission on Law Observance and Enforcement (No. 11, June 25, 1931) concludes that the practice of forcing confessions is widespread throughout the country. &See.also on this subject Leon R. Yankwich, “The Lawless Enforcement of the Law,” (1935) 9 So. Calif.L.Rev. 14, and see Note (1930) 43 Harv.L.Rev.
We do not assume to say that third degree methods are practiced in this jurisdiction. Happily no such practice has reached the attention of this court since Ziang Sung Wan v. United States, 266 U. S. 1, 45 S.Ct. 1, 69 L.Ed. 131 (reversing Ziang Sung Wan v. United States, 53 App.D.C 250, 289 F 908), and Perrygo v. United States, 55 App.D.C. 80, 2 F.(2d) 181 Happily also according to the Report of the National Commission referred to there is little evidence of the use o t ir egree methods by Federal officials anywiere [p. 155], Moreover, there is no suggestion m the instant case that the statement of the appellant that he knew the car was stolen was not voluntary. But the case cannot be decided upon an ad, hoc basis. The question presented is of first impression here; and we feel bound upon a subject touching so materially liberty, and in many cases life itself, and especially in the criminal law where justice requires equality of treatment in respect of trial procedure and proof, to give weight to the findings of the National Commission, and to follow in adopting a rule for this jurisdiction the rule of the great majority of the courts in the United States — that there can be no conviction of an accused in a criminal case upon an uncorroborated confession, and the further rule, represented by what we think is the weight of authority and the better view in the Federal courts, that such corroboration is not sufficient if it tends merely to support the confession, without also embracing substantial evidence of the corpus delicti and the whole thereof. We do not rule that such corroborating evidence must, independent of the confession, establish the corpus delicti beyond a reasonable doubt. It is sufficient, according to the authorities we follow, if, there being, independent of the confession, substantial evidence of the corpus delicti and the whole thereof, this evidence and the confession are together convincing beyond a reason¡able doubt of'the commission of the crime 'and of the defendant’s connection therewith.
In support of the point of vicw we take we note the following: In Tingle v. United States (CCA) 38 R(2d) 573, the defend- ^ a wardlousemall) was charged -with conspjrjng with. others 'to manufacture, sell and possess intoxicating liquor and propgrty desi d and intended for use in such manufacture, He signed statements that hg had leasgd a • tkm of hig warehousc for a bre and was aware of the pur_ poses -for which it was to be used. The c t ru]ecj •
“But in conspiracy cases, the unlawful combination, confederacy, and agreement between two or more persons, that is, the conspiracy itself, is the gist of the action, and is the corpus delicti charged. It is, therefore, primarily essential to establish the existence of a confederation or agreement between two or more persons before a conviction for conspiracy to commit an offense against the United States can be sustained. This statement requires no citation of authorities. It is equally true that ‘extrajudicial confessions or admissions are not sufficient to authorize a conviction of crime, unless corroborated by independent evidence of the corpus delicti.’ Martin v. United States (C.C.A.8) 264 F. 950. This has been the consistent holding of this court, in harmony with uniform decisions in other jurisdictions. Naftzger v. United States (C.C.A.) 200 F. 494; Goff v. United States (C.C.A.) 257 F. 294; Turinetti v. United States (C.C.A.) 2 F.(2d) 15. It is necessary, then, to determine whether there is in the record before us any substantial independent evidence of the corpus delicti, that is, the conspiracy charged, tending to corroborate the extrajudicial statements and admissions of appellant.” [38 F.(2d) 573, at page 575]
Holding that the evidence in the case, outside the defendant’s statement, was insufficient to satisfy the rule stated, the court reversed a conviction. In Jordan v. United States (C.C.A.) 60 F.(2d) 4, certiorari denied 287 U.S. 633, 53 S.Ct. 84, 77 L.Ed. 549, where the defendant was charged with perjury by making a false affidavit before a notary, it was objected that there was no direct evidence that he actually took the oath before the notary, and it was contended therefore “that the evidence does not satisfy the rule that in a criminal case the corpus delicti is not proved by an extrajudicial admission of confession of the defendant^, but must be supported by independent evidence.” But the notary’s jurat itself had been introduced and it tended to show that the oath had been duly administered to the defendant in person as required by law. Recognizing the rule requiring evidence of the corpus delicti independent of the confession, the court said:
“The rule does not require that the independent evidence of corpus delicti shall be so full and complete as to establish unaided the commission of a crime. It is sufficient if the extrinsic circumstances, taken in connection with the defendant’s admission, satisfy the jury of the defendant’s guilt beyond a reasonable doubt. Bolland v. United States (C.C.A.) 238 F. 529, 530; Daeche v. United States (C.C.A.) 250 F. 566; Berryman v. United States (C.C.A.) 259 F. 208; Rosenfeld v. United States (C.C.A.) 202 F. 469; Mangum v. United States (C.C.A.) 289 F. 213.” [60 F. (2d) *4, at page 5]
In Mangum v. United States (C.C.A.) 289 F. 213, involving a count of assault to commit rape and a count for rape, there was a confession, and it was contended that it was not supported by independent evidence of the corpus delicti. Recognizing that there must be evidence of the corpus delicti independent of the confession the court said:
“Evidence aliunde, however, as to the corpus delicti, need' not be such as to alone establish the fact beyond a reasonable doubt. It is sufficient if, when considered in connection with the confession, it satisfies the jury beyond a reasonable doubt that the offense was in fact committed, and the plaintiff in error committed it. State v. Rogoway, 45 Or. 601, 78 P. 987, 81 P. 234 [2 Ann.Cas. 431]; Flower v. U. S., 116 F. 241, 53 C.C.A. 271; Rosenfeld v. U. S., 202 F. 469, 120 C.C.A. 599.” [289 F. at 216]
In Flower v. United States (C.C.A.) 116 F. 241, involving a charge of embezzlement and a confession, there was again raised the question of the sufficiency of the proof of the corpus delicti..The court there quoted, as a correct statement of the law, 6 Am. & Eng.Enc.Law (2d Ed.) p. 582:
“A conviction cannot be had on the extrajudicial confession of the defendant, unless corroborated by proof aliunde of the corpus delicti. Full, direct, and positive evidence, however, of the corpus delicti, is not indispensable. A confession will be sufficient if there be such extrinsic corroborative circumstances as will, when taken in connection with the confession, establish the prisoner’s guilt in the minds of the jury beyond'a reasonable doubt.” [116 F. 241, at page 247]
See also United States v. Boese (D.C.) 46 F. 917. Probably the most frequently quoted, and we think at times misquoted, case on the subject of corroboration of confessions is Daeche v. United States (C.C. A.) 250 F. 566, where the court spoke through Learned Hand, then District Judge. There the indictment was for a conspiracy maliciously to attack vessels in United States waters, with intent to despoil the owners of munitions, by attaching bombs to the sterns of the vessels in such wise, that they would explode and destroy the vessels or disable them. The defendant confessed his part in the plan, and the question whether or not there was sufficient evidence of the corpus delicti—the agreement to attack the ships—independent of the confession, was raised. Judge Hand expressed his personal agreement with the point of view of Mr. Wigmore discussed supra, but said that he nevertheless felt obliged to recognize the rule as contrary. He stated:
“It must be conceded that there has been a very general concordance of judicial opinion in the United States that some sort of corroboration of a confession is necessary to conviction, and this concordance has extended to federal courts as well as elsewhere. U. S. v. Williams, 1 Cliff. 5, 28 Fed.Cas. [636] No. 16707; U. S. v. Boese (D.C.) 46 F. 917; U. S. v. Mayfield (C.C.) 59 F. 118; Flower v. U. S., 116 F. 241, 53 C.C.A. 271; Naftzger v. U. S., 200 F. 494, 118 C.C.A. 598; Rosenfeld v. U. S., 202 F. 469, 120 C.C.A. 599. That the rule has in fact any substantial necessity in justice we are much disposed to doubt, and indeed it seems never to have become rooted in England.. Wigmore, § 2070. But we should not feel at liberty to disregard a principle so commonly accepted, merely because it seems to us that such evils as it correct-s could be much more flexibly treated by the judge at trial, and even though we should have the support of the Supreme Court of Massachusetts in an opposite opinion. Com. v. Killion, 194 Mass. 153, 80 N.E. 222, 10 Ann. Cas. 911. We start therefore, with the assumption that some corroboration is necessary, and the questions are to what extent must it go, and how shall the jury deal with it after it has been proved. The corroboration must touch the corpus delicti in the sense of the injury against whose occurrence the law is directed; in this case, an agreement to attack or set upon a vessel. Whether it must be enough to establish the fact independently and without the confession is not quite settled. Not only does this seem to have been supposed in some cases, but that the jury must be satisfied beyond a reasonable doubt of the corpus delicti without using the confessions, before they may consider the confessions at all. Gray v. Com., 101 Pa. 380, 47 Am.Rep. 733; State v. Laliyer, 4 Minn. 368 (Gil. 277); Lambright v. State, 34 Fla. 564, 16 So. 582; Pitts v. State, 43 Miss. 472. But such is not the more general rule, which we are free to follow, and under which any corroborating circumstances will serve which in the judge’s opinion go to fortify the truth of the confession. Independently they need not establish the truth of the corpus delicti at all, neither beyond a reasonable doubt nor by a preponderance of proof. U. S. v. Williams, supra; Flower v. U. S., supra; People v. Badgley, 16 Wend.(N.Y.) 53; People v. Jaehne, 103 N.Y. 182, 199, 8 N.E. 374; Ryan v. State, 100 Ala. 94, 14 So. 868; People v. Jones, 123 Cal. 65, 55 P. 698.” [250 F. 566, at pages 571, 572]
There are cases apparently contrary. Pearlman v. United States (C.C.A.) 10 F. (2d) 460, involved the same statute as does the instant case. The question there was “whether the proofs 'of the government measure up to the rule that there must be testimony tending to prove the corpus delicti independent of any confession of defendant.” Notwithstanding this implied recognition of the rule in terms of the statement of the question, the court found the law to be as expressed in a partial quotation of the remarks of Judge Learned Hand above. The Pearlman opinion states: “We find the general rule to be as stated by Judge Learned Hand, in. Daeche v. United States... :
“ ‘Any corroborating circumstances will serve which in the judge’s opinion go to 'fortify the truth of the confession. Independently they need not establish the truth of the corpus delicti at all, neither beyond a reasonable doubt nor by a preponderance of proof’.. [10 F. (2d) 460, at page 462]
That partial quotation from Judge Hand might well seem to indicate that the corroborating evidence need not touch the corpus delicti. But that sentence alone, we think, does not reflect the true meaning of Judge Hand’s opinion. In Forlini v. United States (C.C.A.) 12 F.(2d) 631, 634, in an opinion by Mantón, Circuit Judge, in which Judge Hand concurred, Daeche v. United States is referred to in a manner which, in our view, makes clear that it was intended to hold therein that in addition to a confession there must be “some independent proof of the corpus delicti.” The opinion in Pearlman v. United States is further confused by including the quotation set out supra from Mangum v. United States, which clearly requires some evidence of the corpus delicti aliunde the confession. On the¡ evidence in the Pearlman Case, which was slight indeed, independent of the confession, so far as the corpus delicti was concerned, the case may be said to hold that the evidence, independent of a confession, need not touch the corpus delicti at all. But if the case so holds, we are unwilling to follow it. In Wynkoop v. United States (C.C.A.) 22 F.(2d) 799, where the defendant, a prohibition agent, was indicted for converting to his own use liquor of which he had come into possession officially, and where there were admissions by the defendant, the court, partially quoting as did the court in the Pearl-man Case, Judge Hand’s opinion in Daeche v. United States, apparently intended to rule that any corroborating circumstances which fortify the truth of a confession will suffice for conviction, even if they do not, independently, touch the corpus delicti. But again we think this decision does not correctly reflect the views of Judge Hand in the Daeche Case, and we cannot follow it. In Bolland v. United States (C.C.A.) 238 F. 529, where the defendant was charged with knowingly receiving in pledge from a soldier property of the United States, and there was a confession, and a contention that the corpus delicti had not been established by evidence independent of the confession, the court apparently intended to rule that “All that can be required is that there should be corroborative evidence tending to prove the facts embraced in the confession;.. This was quoted from the opinion of the court in United States v. Williams, 1 Cliff. 5, 27, 28, Fed. Cas.No.16,707. That case is frequently cited, and is classified by Mr. Wigmore as supporting the proposition that 'the corroborating evidence need not touch the corpus delicti. In that case the facts were that the brig Albion Coop with a crew of seven sailed from Portland, Maine, on July 7, 1857, on a voyage to Cuba. Nothing was heard of those on board until September 2 following, when the bark Black ■Squall came upon an open small boat containing four of the crew, three of whom became the defendants in the case—the fourth dying before trial. In the small boat there were water, a quantity, of provisions, the compass and register of the brig, clothing of the first and second mates, and the master’s watch. The defendants first stated that the missing members of the crew, the captain and the two mates, had been washed overboard in a squall while the defendants were below, and that the brig being injured and unmanageable, the defendants and the fourth member took to the small boat to save their lives. But the defendants ultimately confessed that they had murdered the rest of the crew, and told in detail the manner and circumstances of the alleged crime. They were indicted for the murder of Quinton D. Smith. According to their confession they killed him, sewed his body in a sail with weights, and threw him overboard. The following was held sufficient corroboration of the confession: that Smith and the defendants sailed in the same vessel; that Smith had not been heard of since; that neither vessel nor Smith nor the other missing members of the crew ever arrived at destination or returned to the home port; that the small boat in which the defendants were found was the only one which the brig had; that the small boat carried water, compass and provisions—indicating preparation to leave the brig; the personal articles of the three missing members of the crew found in the small boat; the conflicting stories originally told by the defendants. Sustaining conviction of the defendants, the court said that of the two elements of the corpus delicti, the fact of death, and the criminal means thereof, only the first need be fully proved independent of the confession, that the confession might establish the second element provided it satisfactorily appeared that other evidence thereof did not exist. We think that this case, decided in 1858, does not represent the current rule upon the subject.
In the instant case the corpus delicti is transportation of the vehicle in interstate commerce from the District of Columbia to Maryland knowing that it was stolen. The contention of the Government that the scienter is not a necessary element of the corpus delicti cannot be sustained. There is nothing criminal under the statute about transporting a vehicle across a state line unless the person transporting it knows it to be stolen. The law is well settled that the corpus delicti includes not only the body or fact of the wrong, in the sense of the death in homicide or the loss of the chattel in larceny, but also the criminal means by. which the same came about. See 4 Wig-more, Evidence (2d Ed. 1923) § 2072, where the learned author, first expressing the personal view that the term corpus delicti ought to be taken to include only the first element, the fact of the injury or loss, and not the second, the criminality which is the source of the loss, nevertheless concedes that “by most judges the term is made to include the second element also.” Mr. Wigmore cites among other authorities Commonwealth v. Webster, Bemis’ Rep.(Mass.) 473, where Shaw, C. J., said: “In a charge of criminal homicide, it is necessary in the first place by full and substantial evidence to establish what is technically called the ‘corpus delicti’,—the actual offense committed; that is, that the person alleged to be dead is in fact so; that he came to his death by violence and under such circumstances as to exclude the supposition of a death by accident or suicide and warranting the conclusion that such death was inflicted by a human agent; leaving thfe question who that guilty agent is to after consideration.”
The corpus delicti does not properly include, as a third element, the agency of the accused as the criminal. This would make the term synonymous with the whole of the charge, and such a definition has been repudiated. See 4 Wigmore, Evidence (2d Ed. 1923) § 2072 (3.), and therein cited Messel v. State, 176 Ind. 214, 95 N.E. 565 (rape under age), and State v. Schyhart (Mo.Sup.) 199 S.W. 205 (killing cattle). It would require, in view of the corroboration rule, that the whole of the charge, including the criminal agency of the accused, be evidenced independently of the confession. It is to be noted, however, that in certain types of crimes involving scienter on the part of the accused it is not possible to separate, either conceptually or practically—that is in respect of the proof—• the scienter, as an element of the corpus delicti, and the agency of the accused. So in the crime of receiving stolen goods knowing them to be stolen, and in the crime at bar, it is not possible to separate, either conceptually or practically, the element of guilty knowledge in the transportation and the element of agency of the accused as the criminal. But this cannot operate to diminish the duty of the Government to present evidence of both elements of the corpus delicti independent of the confession.
Under the rules which we have laid down above we are unable to find warrant in the evidence presented in the instant case for denial of the motion for a directed verdict and refusal of the requested instruction of a verdict of not guilty. As stated above “the Government did not rely on the inference of guilt from possession of stolen property for a conviction in this case.” Why the Government made this waiver does not appear—conceivably because of Kasle v. United States (C.C.A.) 233 F. 878, 888-890. But with this inference out of the case we see no substantial evidence, independent of the appellant’s confession, of guilty knowledge on his part.1 ***** His offering the $297 to the officer if he would let him go is but a suspicious circumstance. It points to possible guilt of some offense, but not of any particular offense. The evidence that the original District of Columbia tags were not on the car and that there were District of Columbia tags in it but not belonging to it, and Maryland tags also in it, and New Jersey tags on it, are again suspicious circumstances pointing conceivably to some guilty use of the car; but they do not point to knowledge on the part of the appellant that it was stolen.
In accordance with the foregoing the judgment of the trial court is
Reversed.
Be it enacted by the Senate and Souse of Representatives 'of the United States of America, in Congress assembled, That this Act may be cited as the National Motor Vehicle Theft Act.
Sec. 2. That when used in this Act:
(a) The term “motor vehicle” shall include an automobile, automobile truck, automobile wagon, motor cycle, or any other self-propelled vehicle not designed for running on rails;
(b) The term “interstate or foreign commerce” as used in this Act shall include transportation from one State, Territory, or the District of Columbia, to another State, Territory, or the District of Columbia, or to a foreign country, or from a foreign country to any State, Territory, or the District of Columbia.
See. 3. Tbat whoever shall transport or cause to be transported in interstate or foreign commerce a motor vehicle, knowing the same to have been stolen, shall be punished by.a fine of not more than $5,000, or by imprisonment of not more than five years, or both.
Sec. 4. That whoever shall receive, conceal, store, barter, sell, or dispose of any motor vehicle, moving as, or which is a part of, or which constitutes interstate or foreign commerce, knowing the same to have been stolen, shall be punished by a fine of not more than $5,000,.or by imprisonment of not more than five years, or both.
Sec. 5. That any person violating this Act may be punished in any district in or through which such motor vehicle has been transported or removed by such offender.
References to these are given in 4 Wigmore, Evidence (2d Ed.1923) § 2071, p. 407, note 1.
References to these are given in 4 Wigmore, Evidence (2d Ed.1923) § 2071, p. 408, notes 3 and 4.
The reference to Greenleaf is to Section 217, the full text of which as it appears in the 15th edition, Yol. 1, is:
“Whether extrajudicial confessions uncorroborated. by anj- other proof of the corpus delicti are of themselves sufficient to found a conviction of the prisoner, has been gravely doubted. In the Roman law, such naked confessions amounted only to a semiplena probatio, upon which alone no judgment could be founded; and at most the party could only in proper cases be put to the torture. But if voluntarily made, in the presence of the injured party, or if reiterated at different times in Ms absence, and persisted in, tbey were received as plenary proof. In each of the English cases usually cited in favor of the sufficiency of this evidence, there was some corrobo- • rating circumstance. In the United States, the prisoner’s confession, when the corpus delicti is not otherwise proved, has been held insufficient for his conviction; and this opimon certainly best accords with the humanity of the criminal code, and with the great degree of caution applied in receiving and weighing the evidence of confessions in other cases, and it seems countenanced by approved writers on this branch of the law.”
The Report reached the. following “Conclusions as to the Existence of the Third Degree”:
There are difficulties in forming conclusions as to the prevalence of the third degree. Since the practice is illegal, there are bound to be professional denials of its existence from the police. On the other hand, the assertions of...., prisoners and their counsel are likely to be biased and exaggerated. The problem is one of police administration and therefore local. Conditions may differ in near-by localities, even in cities in the same State subject to the same laws. Conditions in a given locality may change with a change' of administration. (The only thorough-going investigation in any community would be one by persons clothed, as we were not, with the power by subpoena to compel the attendanee of witnesses.)
But, after making all deductions for-the inherent uncertainties of the subject matter, we regard the following propositions as established:
I. Existence
The third degree — the inflicting of pain, physical or mental, to extract confessions or statements — is widespread throughout the country.
II. Physical Brutality
Physical brutality is extensively practiced. The methods are various. They range from beating to harsher forms of torture. The commoner forms are beating with the fists or with some im- ■ plement, especially the rubber hose, that inflicts pain but is. not likely to leave permanent visible scars.
III. Protracted Questioning
The method most commonly employed is protracted questioning. By this we mean questioning — at times by relays of questioners-so protracted that the prisoner’s energies are spent and his powers of resistance overcome. At times such questioning is the only method used. At times the questioning is accompanied by blows or by throwing continuous straining light upon the face of the suspect
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_source
|
F
|
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.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 16175.
United States Court of Appeals Seventh Circuit.
March 26, 1969.
Lee C. Shaw, Walter P. Loomis, Jr., Chicago, 111., George G. Gallantz, New York City, for petitioner.
Marcel Mallet-Prevost, Asst. Gen. Counsel, Richard S. Rodin, Warren M. Davison, Attys., N.L.R.B., Washington, D. C., for respondent.
Before CASTLE, Chief Judge, MAJOR and HASTINGS, Senior Circuit Judges, and KILEY, SWYGERT, FAIRCHILD, CUMMINGS and KERNER, Circuit Judges,
KILEY, Circuit Judge.
The National Labor Relations Board found that State Farm Mutual Automobile Insurance Company violated Sections 8(a) (5) and (1) of the National Labor Relations Act by refusing to bargain with the Insurance Workers International Union, AFL-CIO, which had been certified to represent a unit of employees. The Board ordered the Company to bargain with the Union. The Company petitioned this court to review and set aside the Board’s order, and the Board cross-petitioned for enforcement of its order. A panel of this court, in an opinion (one judge dissenting) issued August 8, 1968, set aside the Board’s order. Subsequently, this court granted the Board’s petition for rehearing en banc. We now enforce the Board’s order.
Petitioner is a multi-state insurance company. All of its business decisions, such as job benefits, holidays, overtime, sick leave, recruitment and salary ranges are made at its home office in Blooming-ton, Illinois. Petitioner is divided into twenty-one regions across the country. The Northeastern Region, pertinent to this ease, comprises New York, New Jersey, and the New England states, and its headquarters is at Wayne, New Jersey. It is headed by a regional vice-president assisted by two deputy regional vice-presidents. The vice-president directs all operations in the region, including recruitment, interviewing job applicants, promotions, and salaries.
The Northeastern Region is divided into four divisions, including two automobile insurance divisions, one covering New York and the other New Jersey and New England. A division manager, who is responsible for overseeing the claim processing operations of the company, heads each division. He also makes salary and employment recommendations to the regional vice-president.
The New York automobile division is divided into four districts, each headed by a division claims superintendent, who is in charge of about five offices and supervises about thirty-five adjusters. The responsibilities of a divisional claims superintendent include: supervising the instruction of claims personnel under his jurisdiction; training the claims supervisory personnel; examining claims files; recommending company action concerning promotion, salary changes, hiring, and disciplinary action; interviewing and initially screening applicants for claims agent jobs; administering the over-all day to day claims handling within his jurisdiction; and visiting the claims field offices.
The proceedings before us began with a representation petition filed by the Union. The Company moved to dismiss the petition on the ground of inappropriateness of the unit. The Board rejected both the Union’s contention that the smallest appropriate unit was a single claims office, and the Company’s contention that the smallest appropriate unit was the Northeastern Region, or, alternatively, the New York State unit. The Board designated “the divisional unit of employees supervised by a divisional superintendent” as the smallest appropriate unit.
Thereafter the Board conducted representational elections in two claims districts in New York. In the unit before us, the Union won the election and was certified as the bargaining representative.
The Union then requested the Company to bargain. The Company refused on the ground that the unit found by the Board was inappropriate. The Union filed an unfair labor practice charge alleging an unlawful refusal to bargain. The General Counsel issued a complaint, and the Company’s response admitted the refusal to bargain, reasserting the inappropriateness of the unit. The Board granted the General Counsel’s “Motion for Summary Judgment and Judgment on the Pleadings,” over the Company’s objection that it was entitled to a further hearing on the appropriate unit and issued the order which is now before this court.
The Company contends that the order should be set aside because the unit determination is unreasonable and the Board’s refusal to hold the further hearing requested by the Company violated Section 10(b) of the National Labor Relations Act.
The Board has a wide discretion in designating appropriate units. It is not required by the Act to choose the most appropriate unit, but only to choose an appropriate unit within the range of several appropriate units in a given factual situation. The Board may look to various factors to determine what units are appropriate. The company organization, the numerical size of the unit, the geographical distribution of the employees in the unit, the type of work done by the employees in the unit, the responsibilities of the unit supervisor, the organizability of the unit, and the extent to which the unit has already been organized, are all revelant considerations and no one factor is determinative. NLRB v. Metropolitan Life Ins. Co., 380 U.S. 438, 85 S.Ct. 1061, 13 L.Ed.2d 951 (1965). Section 9(b) itself states that the unit shall be chosen “in order to assure to employees the fullest freedom in exercising the rights guaranteed by this Act.” Where the facts underlying a Board determination of an appropriate unit are not contested, the Board’s determination will not be overturned unless it is arbitrary or unreasonable. May Dept. Stores Co. v. NLRB, 326 U.S. 376, 66 S.Ct. 203, 90 L.Ed. 145 (1945); NLRB v. Krieger-Ragsdale & Co., 379 F.2d 517 (7th Cir. 1967), cert. denied, 389 U.S. 1041, 88 S.Ct. 780, 19 L.Ed.2d 831 (1968).
The unit chosen by the Board in this case contains about thirty-five employees who do similar work under similar conditions; geographically the unit, on the average, covers one-fourth of New York State; the Union has successfully organized one of the units; the leader of the unit chosen is the Company official who directly controls and supervises the day to day work of the employees; under the Company’s organization the next larger unit would, on the average, cover a multi-state area; the smallest unit under the Company’s organization which has a leader, the regional vice-president, with any formal control over employee policy would cover all of New York, New Jersey, and New England; and the smallest unit where there is substantial control over employee policy, the Bloomington Home Office, is nation-wide. Under these circumstances, the reasonableness of the Board’s determination is clear.
The fact that the next largest unit available under the Company’s organizational structure covers a multi-state area is of particular significance. In 1944 the Board adopted a policy of refusing to authorize an appropriate unit in the insurance industry which was less than state-wide, on the theory that this would promote the organization of employees by unions. Metropolitan Life Ins. Co., 56 N.L.R.B. 1635 (1944). The Board, however, subsequently abandoned this rule because
As a practical matter * * * such state-wide or company-wide organization has not materialized, and the result of the rule has been to arrest the organizational development of insurance agents to an extent certainly never contemplated by the Act, or for that matter by the Board that decided the Metropolitan Life case. Quaker City Life Ins. Co., 134 N.L.R.B. 960, 962 (1961).
Adoption of the Company’s position here would prevent the Board from choosing a less than state-wide unit for bargaining and would therefore “arrest the organizational development of insurance agents” in highly centralized insurance companies and would prevent the employees from enjoying “the fullest freedom in exercising the rights guaranteed by” the National Labor Relations Act, 29 U.S.C. 159(b). The Quaker City rationale also refutes the Company’s alternative contention that the most appropriate unit covers all of New York State.
Finally, the Board’s decision is consistent with other Board decisions that the courts have previously approved. NLRB v. Quaker City Life Ins. Co., 319 F.2d 690 (4th Cir. 1963); Singer Sewing Machine Co. v. NLRB, 329 F.2d 200, 12 A.L.R.3d 775 (4th Cir. 1964). In Quaker City the duties of the head of the unit chosen as appropriate by the Board were described by the court as follows:
The District Manager generally supervises the day to day operations of the office, operating under general rules set by the home office. He recommends the hiring, firing, and disciplining of the office employees and he may, under certain conditions, fire summarily. He trains the local employees, and, within limits set out by the company, makes recommendations as to promotions, increases and allowances.
That authority does not significantly differ from the authority of the divisional claims superintendent in the case before us, and in Quaker City the Board’s choice of an appropriate bargaining unit was approved. Moreover, in Quaker City the district manager had only six employees under him, while the supervisor in this case has approximately five times that number. The head of the unit in Singer also had substantially the same power as the divisional claims superintendent here, and in that case the Board’s unit determination was also approved.
The Company relies mainly on NLRB v. Frisch’s Big Boy Ill-Mar. Inc., 356 F.2d 895 (7th Cir. 1966), and on NLRB v. Purity Food Stores, Inc., 376 F.2d 497 (1st Cir.), cert. denied, 389 U.S. 959, 88 S.Ct. 337, 19 L.Ed.2d 368 (1967). In Frisch this court rejected the Board’s determination that a single retail store was an appropriate unit, where the Company had ten stores in Indianapolis, Indiana. The store managers there had considerably less authority than the district managers here. Yet the court recognized that an eleventh store located sixty miles away in Muncie, Indiana, might constitute, a separate bargaining unit.
In Purity the First Circuit rejected the Board’s determination that a single retail outlet constituted an appropriate unit where the Company operated a chain of seven outlets, all located within thirty miles of the Company’s central office. The court stated that Purity was “a small, compact, homogeneous, centralized and integrated operation” and that “the ‘independence’ of the stores * * * amounts to no more than a few miles of physical separation.” Neither of these cases is controlling or persuasive on the facts here.
The Board states that in each similar case since Quaker City it has relied primarily upon the “autonomous” character of the “single district office” and the “over-all immediate supervision” exercised by the district office manager. In each ease, on different facts, the district office head may possess varying degrees of autonomy depending upon the degree to which he may exercise significant managerial power over the employees he superintends. We think the Board could find sufficient autonomy and supervisory authority here to justify its choice of an appropriate unit.
The Board did not abuse its discretion in entering the order before us, and the order does not offend the Act’s limitation that designation of an appropriate unit must not be controlled by the extent to which the unit has already been organized. NLRB v. Quaker City Life Ins. Co., 319 F.2d 690 (4th Cir. 1963). We conclude that we should not set aside the Board’s order on the ground that the unit chosen was inappropriate.
In opposing the General Counsel’s motion for summary judgment, the Company moved for an order transferring the ease to a Trial Examiner for further hearing on the unit issue. The Board denied the motion, finding that no issue had been presented requiring a hearing. In the Board’s view, the factual issues concerning the appropriateness of the unit were resolved in the representation proceeding, and absent newly discovered or previously unavailable evidence, the issues need not be relitigated.
The Company insisted that since the Board, in the representation proceeding, chose as appropriate a unit advocated by neither party, the Company did not present evidence in its possession with respect to that unit. The Company claimed it was entitled to an opportunity to present this evidence in the unfair labor practice proceedings.
The Board denied the further hearing on two grounds: It stated that the evidence sought to be introduced was available at the representation proceeding, and the Company’s failure to produce it at that time precluded introduction of the evidence on the same issue in the unfair labor practice proceeding. The Board also concluded that the proffered evidence was merely cumulative to evidence heard in the representation proceeding. We agree with the Board. NLRB v. International Die Sinker’s Conference, 402 F.2d 407, 411 (7th Cir. 1968).
A representation proceeding is not adversary in the usual sense, but is designed primarily to enable the Board to fulfill its statutory function with respect to the certification of bargaining representatives. Part of the function is, of course, determination of an appropriate bargaining unit. When that determination is an issue in a lepresentation proceeding, all persons concerned have the duty to produce all information relevant to the issue. The Board’s determination is not confined to the units suggested by the parties, but it may choose any unit which it reasonably deems appropriate. Local 620, Allied Industrial Workers of America v. NLRB, 375 F.2d 707, 710-11 (6th Cir. 1967); S. D. Warren Co. v. NLRB, 353 F.2d 494, 499 (1st Cir. 1965).
The issue of an appropriate unit was the subject of an extensive hearing in the representation proceeding. There was substantial evidence introduced of the entire organizational structure of the Company. Having failed to produce relevant evidence it possessed in that proceeding, the Company had no right to another opportunity to present evidence at the expense of the exercise of the employees’ collective bargaining rights. Rockwell Mfg. Co., Kearney Div., v. NLRB, 330 F.2d 795, 797-798 (7th Cir. 1964).
The evidence proffered in the unfair labor practice hearing was intended to show that the unit chosen in the representation hearing was subject to change in the geographical area supervised by divisional claims superintendents. But in the representation proceeding it was specifically found that “The number of these superintendents in each division is subject to change according to the volume of business and geographic distribution of field claims offices in the division; * * * ” The Board, therefore, did not abuse its discretion in denying the motion for a further hearing, as no useful purpose would have been served by receiving the Company’s evidence. Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 157-158, 61 S.Ct. 908, 85 L.Ed. 1251 (1940).
Having concluded that none of the grounds urged by the Company for setting aside the order is valid, the Board’s order will be enforced.
MAJOR, Senior Circuit Judge, dissents, with which HASTINGS, Senior Circuit Judge, concurs.
I feel obliged to dissent from the majority opinion rendered on the Board’s petition for rehearing en banc which allows the Board’s petition for enforcement, thereby nullifying the August 8, 1968 panel decision of this court.
This dissent is directed squarely at the decision under review, with the findings and conclusions contained therein. I am not concerned with the many cases which stand for the well recognized proposition that our scope of review is limited and that the Board has a wide discretion in determining an appropriate bargaining unit. Such cases are not controlling here because the Board’s order, in my view, is based upon a fallacious premise and its decision is clearly erroneous, arbitrary and capricious.
Furthermore, I am not impressed with the Board’s two-fold argument in support of its unit determination, apparently embraced by the majority, (1) that it is in accordance with its policy, and (2) that owing to the circumstances of the case it would have great difficulty in determining a more appropriate unit. I realize the Board’s policy is entitled to serious consideration but I disagree with the idea that it can be utilized as a substitute for facts, which it appears the Board would have us do. Likewise, the fact that the Board might have difficulty in determining some other unit as appropriate furnishes no justification for its determination that the unit under consideration is appropriate.
In the beginning it is well to keep in mind what the Board characterizes as the descending supervisory chain: (1) the company’s home office at Blooming-ton, Illinois; (2) its regional office at Wayne, N. J.; (3) its division managers; (4) its divisional claims superintendents, and (5) its claims superintendents. The functions of each link of this chain are described in the Board’s decision as follows:
“National personnel policies are determined at the home office in Bloom-ington ; sick leave, group medical, life, and other insurance programs, vacations, credit unions, travel allowances, promotion procedures, and similar conditions and benefits of employment. These policies are effectively construed and implemented by the several regional offices. Against the background of policies and practices established by the home office, decisions as to the applicability of these policies and procedures to claim representatives are made by the regional supervisory authorities. Ultimately, most of the final decision-making authority in each Region is vested in the office of the Regional Vice-President. For instance, the Region makes annual reviews of the performance of each employee, for the purpose of determining whether he should be granted a salary increase (within a range predetermined by the home office). The Claim Superintendent will fill out a form to initiate such reviews, giving its comments and recommendations. The Divisional Superintendent will then make his recommendation in the portion of the form designed for his entry. Finally, the Division manager will add his recommendation, and the form will then be submitted to the office of the Regional Vice-President, where this official or his deputy will approve or disapprove the increase.” (Italics supplied.)
It states:
“Looking primarily to the autonomous character of the single district office petitioned for in Quaker City [134 N.L.R.B. 960], and the overall immediate supervision exercised by the district office manager, we concluded that a unit consisting of the employees in the district office was an appropriate bargaining unit. Since that case, we have found appropriate other single-office units which exhibited a similar degree of autonomy, and have also authorized groupings of single offices where considerations of geography or the employer’s administrative structure lent coherence to such multiple-office units.” (Italics supplied.)
Then follows the heart of the decision:
“The evidence of record in the case before us presents a significantly different picture of field operating procedure from that developed in the insurance agents cases cited above. It seems clear that the smallest component of the Employer’s business structure which may be said to be relatively autonomous in its operation is not the field claims office, but rather the divisional unit of employees supervised by a Divisional Superintendent. By virtue of the managerial authority reposed in the three Divisional Superintendents, who represent a supervisory focal point for their respective groups of 39, 32, and 29 claim representatives, these functionaries appear to exercise powers most closely analogous to those possessed by the district office managers in the earlier cases. A finding, therefore, that bargaining units could properly be demarcated by the supervisory jurisdiction of each Divisional Superintendent would be wholly in keeping with the principles applied in the insurance agents cases.” (Italics supplied.)
Thus, the Board concedes that the operating procedure in this case “presents a significantly different picture” from that of the insurance agents cases upon which it relies, but nevertheless concludes that its unit determination “would be wholly in keeping with the principles” applied in such cases.
Neither on brief nor in oral argument before this court did the Board criticize or take issue with a statement contained in our panel decision:
“The Board’s reasoning rests upon two premises: (1) the unit determination was ‘relatively autonomous in its operation,’ and (2) ‘the managerial authority reposed in the three Divisional Superintendents.’ It is significant to note that the Board did not find that the unit was autonomous but only that it was ‘relatively’ so, without explanation as to why the qualifying word. Perhaps the explanation can be found in the dictionary, which defines ‘autonomous’ as ‘having the right or power of self-government; undertaken or carried on without outside control; existing or capable of existing independently.’ Webster’s Seventh New Collegiate Dictionary.”
In my judgment, the record is devoid of any proof that the unit determined by the Board possessed autonomy, “relative autonomy” as found in its decision, or “substantial autonomy” as stated in its brief. On the contrary, the record clearly demonstrates that the unit determined was non-autonomous.
The Board in its decision states that “sick leave, group medical, life and other insurance programs, vacations, credit unions, travel allowances, promotion procedures, similar conditions and benefits of employment” are established in the home office and “are effectively construed and implemented by the several regional offices.” The Board further found that “decisions as to the applicability of these policies and procedures” are “vested in the office of the Regional Vice President.”
Further support for the view that the divisional claim superintendents were without managerial authority to resolve issues subject to collective bargaining is shown by a statement in the Board’s original brief:
“Most of the final decision-making authority in each Region ultimately resides in the office of the regional vice president. Thus, for example, the Region annually reviews each claims representative’s performance for the purpose of determining whether he should be granted a salary increase (within a range established by the home office in Bloomington). The claim superintendent initiates such reviews by filling out a prescribed form, in which he includes comments and recommendations. In turn, the divisional claim superintendent will add his recommendation in the portion of the form designated for such use. Finally, the division manager will add his recommendation, and the form will then be submitted to the office of the regional vice president or his deputy will make the final decision.” (Italics supplied.)
In short, the divisional claim superintendents were without authority to make any decisions on matters which might be involved in collective bargaining. On such matters they accepted recommendations from those below (claim superintendents) ; approved or disapproved and passed them on to those above (division managers), and received orders and directions from those above which they executed in an administrative but not in a managerial capacity.
There are numerous court decisions which support the view that the autonomous nature of the unit determined and the managerial authority of the divisional claim superintendents, admittedly the basis for the Board’s decision, should be rejected.
In N.L.R.B. v. Frisch’s Big Boy Ill-Mar, Inc., 356 F.2d 895, this court refused to enforce the Board’s order concerned with a single restaurant in an integrated chain because the unit designated was inappropriate. The main issue in the case was whether the unit determined was autonomous, as found by the Board. Relative to this issue we stated (page 896):
“The only factual contention made by petitioner [the Board] which requires notice is that each restaurant has ‘autonomy’ because each restaurant manager has certain powers. However, the undisputed facts appearing in the record show that a common labor policy affecting all employees is formulated and administered by the president, as chief executive, and certain other officers of the corporations. Reporting to him are three area supervisors each of whom has a share of the Indianapolis restaurants to cover. These area supervisors visit the restaurants frequently.” (Italics supplied.)
In deciding this issue we stated (page 897):
“It is evident to us that the decisions left to the managers do not involve any significant element of judgment as to employment relations. * * *
“It is obvious to us that none of the store managers will be deciding questions affecting the employees in the context of collective bargaining.” (Italics supplied.)
The majority opinion, in the attempt to distinguish this case on its facts, states, “The store managers there had considerably less authority than the district managers here.” With this statement I disagree but, in any event, the pertinent point is the court’s reasoning and conclusion, which read as though written for this case.
In N.L.R.B. v. Purity Food Stores, Inc., 376 F.2d 497, 501, the First Circuit cited with approval our opinion in Frisch’s and refused to enforce the Board’s order on the ground that its unit determination was inappropriate. The Board found a single supermarket to be an appropriate bargaining unit, based on the authority of the manager and the autonomy of the store. In rejecting the Board’s determination the court stated (page 500):
“The Board rested its conclusion basically on lack of store-wide bargaining history and on its view that the Peabody store was so economically independent of the other retail stores and possessed such ‘significant autonomy’ within the respondent’s over-all operation that separation of that store from the others for purposes of collective bargaining would not obstruct centralized control and effective operation of the chain. We cannot agree.” (Italics supplied.)
The Board in its brief, in support of the instant petition, states:
“ * * * individual cases in which the courts of appeals have set aside such determinations as arbitrary or capricious may be regarded either as proper reversals of administrative action, under all the circumstances, or as aberrational abuses of judicial power.”
In a footnote the Board states:
“For purposes of the instant petition for rehearing, it is irrelevant whether the Court’s decision in N.L.R.B. v. Frisch’s Big Boy Ill-Mar, Inc., 356 F.2d 895 (1966) is regarded as the former or the latter.”
While the Board does not state in which category it places this court, the implication is plain. Even so, our feelings are soothed by the opinion of the Fifth Circuit in N.L.R.B. v. Davis Cafeteria, Inc., 396 F.2d 18. In that case the court refused to enforce the Board’s order on the ground that the bargaining unit selected was inappropriate. Referring to Frisch’s and Purity, the court stated (page 20):
“In view of the elucidating opinions in the Purity Foods case, in N.L.R.B. v. Frisch’s Big Boy Ill-Mar, Inc., supra, * * * it would serve no precedental value for us to repeat what we have previously said, or what the First and Seventh Circuits have already so well said. In the circumstances of this case, labor policy is centrally determined, and where local managers do not have authority to decide questions which would be subjects of collective bargaining, the two respondent cafeterias do not constitute an appropriate bargaining unit.” (Italics supplied.)
Called to our attention subsequent to the instant hearing en banc is a decision of the Second Circuit in N.L.R.B. v. Solis Theatre Corp., and Interboro Circuit, Inc., 403 F.2d 381, decided November 14, 1968. In that case the court refused enforcement of the Board’s order on the ground that the Board improperly determined the bargaining unit. Concluding its statement of the facts, the court stated (page 383):
“It appears, therefore, that instead of being in a decision making position, the ‘manager’ has little or no authority on labor policy but is subject to detailed instructions from the central office.
“The Courts of Appeals have been reluctant to sanction bargaining units whose managers lack the authority to resolve issues which would be the subject of collective bargaining.”
Following this statement, the court cites with approval our opinion in Frisch’s, the First Circuit opinion in Purity, and the Fifth Circuit opinion in Dams.
I would deny enforcement of the Board’s order for reasons so clearly revealed in its decision.
. 29 U.S.C. §160
sjí $ 5}C 8}í }¡í The person so complained of shall have the right to file an answer to the original or amended complaint and to appear in person or otherwise and give testimony at the place and time fixed in the complaint. * * * * *
. In Singer the Board’s order was denied enforcement on other grounds.
Question: What forum heard this case immediately before the case came to the court of appeals?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Court of Customs & Patent Appeals
H. Court of Claims
I. Court of Military Appeals
J. Tax Court or Tax Board
K. Administrative law judge
L. U.S. Supreme Court (remand)
M. Special DC court (not the US District Court for DC)
N. Earlier appeals court panel
O. Other
P. Not ascertained
Answer:
|
songer_geniss
|
G
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
Maria S. RODRIGUEZ, Plaintiff, Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant, Appellee.
No. 80-1555.
United States Court of Appeals, First Circuit.
Argued Feb. 3, 1981.
Decided May 4, 1981.
Patricio Martinez-Lorenzo, Rio Piedras, P. R., for plaintiff, appellant.
Barry J. Reiber, Asst. Regional Atty., Dept, of Health and Human Services, New York City, with whom Raymond L. Acosta, U. S. Atty., San Juan, P. R., Frank V. Smith, III, Regional Atty., New York City, and William Kanter, Atty., Dept, of Justice, Washington, D. C., were on brief, for defendant, appellee.
Before CAMPBELL, BOWNES and BREYER, Circuit Judges.
BREYER, Circuit Judge.
Maria Rodriguez, the appellant, brought this action to obtain judicial review of a final decision by the Secretary of Health and Human Services that she did not qualify for widow’s disability benefits under the Social Security Act, 42 U.S.C. § 402(e) (1970). She attacks the Secretary’s determination that her asthma, arthritis and mental condition were not disabling, claiming that this determination is not supported by substantial evidence. The district court granted judgment in favor of the Secretary and dismissed the complaint. We affirm the district court’s decision.
I.
The Social Security Act provides disability benefits to a widow if (1) she is the widow of a wage earner who died fully insured, (2) she is between the ages of fifty and sixty, and (3) her physical or mental impairment or impairments (i) are expected to result in death or to last for a continuous period of not less than twelve months and (ii) are “of a level of severity which under regulations prescribed by the Secretary is deemed to be sufficient to preclude an individual from engaging in any gainful activity.” Id. § 423(d)(2)(B). The Act is thus more restrictive when applied to a widow than to a wage earner, for a wage earner may satisfy a lesser standard and also may rest his case in part upon such nonmedical factors as age, education, and work experience. A widow, however, must satisfy strict, medically-based regulations which the Secretary of Health and Human Services has promulgated in accordance with the statute’s direction. These regulations contain a “Listing of Impairments,” 20 C.F.R. ch. Ill, subpart P, app. 1 (1980), that describes, for each of the major body systems, those impairments that are considered sufficiently severe to constitute a disability under the Act. See id. § 404.1525 (Aug. 20, 1980). The regulations provide:
We will find that you are disabled and pay you benefits as a widow, widower, or surviving divorced wife if . .. [y]our impairments) has specific clinical findings that are the same as those for any impairment in the Listing of Impairments ... or are medically equivalent to those for any impairment shown there ....
Id. § 404.1578(a). They go on to state:
(a) How medical equivalence is determined. We will decide that your impairments) is medically equivalent to a listed impairment in Appendix 1 if the medical findings are at least equal in severity and duration to the listed findings. We will compare the symptoms, signs, and laboratory findings about your impairments), as shown in the medical evidence we have about your claim, with the medical criteria shown with the listed impairment. If your impairment is not listed, we will consider the listed impairment most like your impairment to decide whether your impairment is medically equal. If you have more than one impairment, and none of them meets or equals a listed impairment, we will review the symptoms, signs, and laboratory findings about your impairments to determine whether the combination of your impairments is medically equal to any listed impairment.
(b) Medical equivalence must be based on medical findings. We will always base our decision about whether your impairments) is medically equal to a listed impairment on medical evidence only. Any medical findings in the evidence must be supported by medically acceptable clinical and laboratory diagnostic techniques. We will also consider the medical opinion given by one or more physicians designated by the Secretary in deciding medical equivalence.
Id. § 404.1526(a)-(b). Plaintiff believes that her asthma, arthritis, and mental condition, when taken together, are equivalent to conditions described in the listings and thus warrant a finding of disability.
Plaintiff filed her application for benefits in October 1977. She described her disability as arthritis and asthma. She submitted a “certification” and a subsequent report from her doctor, Jose Colon Morales, a general practitioner. Dr. Colon wrote in the certification that she “has been under treatment for severe arthritis and this precludes her from working.” She also submitted a statement from Dr. C. J. Zamora Pamies, who specializes in psychiatry and neurology but also apparently practices general medicine. In a report dated October 3, 1977, based upon two examinations conducted in January and June of that year, he wrote that she “has chronic arthritis and bronchial asthma, conditions which disable her to work.” The Puerto Rico Disability Unit of the Social Security Administration sent Mrs. Rodriguez to Dr. Jose Ramirez Rivera, a specialist in internal medicine. He conducted what appear from the record to be more extensive tests than the other two doctors. They included x-rays of the chest, spine, right hand and left shoulder, measurements of pulmonary function, and other laboratory testing. He concluded that plaintiff suffered from “mild” bronchial asthma and a generalized bone arthritis which was “moderately severe” in her spine. The accompanying x-ray report disclosed “minimal” inflammation of the spine, evidence of arthritic changes in the shoulder and some deformity of one finger. In his detailed report, Dr. Ramirez included the SSA’s disability determination form upon which he noted that Mrs. Rodriguez could, during an eight-hour workday, sit for seven to eight hours, stand for five to six hours, and walk for three to four hours. In his view, she was able to lift or carry up to ten pounds frequently and up to twenty pounds occasionally. She could use her hands for grasping, pushing, and pulling, but not for fine manipulating. She could use her feet for repetitive movements. She was not able to squat or crawl, but she could bend and climb occasionally. On the basis of the reports of Dr. Colon, Dr. Zamora and Dr. Ramirez Rivera, the Disability Unit examiner concluded that plaintiff’s asthma and arthritis were not of sufficient severity to warrant a finding of disability.
Plaintiff asked for reconsideration. The Disability Unit then sent her to another doctor specializing in internal medicine, Dr. Jaime Ortiz Toro. He conducted another thorough examination with x-rays of the chest and laboratory reports. In a detailed report, he concluded: “[The mjain problem of this lady is her asthma, which is moderately controlled with present management. Her second problem, osteoarthritis, needs adequate management and physical therapy to have some improvement.” Dr. Ortiz’s “disability determination form” is less optimistic than that of Dr. Ramirez Rivera. It states that, during an eight-hour workday, Mrs. Rodriguez can sit for only three hours, stand for one hour and walk for one hour. She can lift up to twenty pounds or carry up to ten pounds only occasionally. She can use her hands for grasping, pushing, pulling and fine manipulating. She can use her feet. She can bend and reach above shoulder level occasionally, but she cannot squat, crawl, or climb. The Disability Unit examiner concluded on the basis of this new examination (and the prior examinations) that plaintiff had bronchial asthma, that she had no heart condition, and that her impairments were not severe enough to warrant a finding of disablement.
Plaintiff then sought a hearing before an administrative law judge. At the de novo hearing, which was held on June 26, 1978, plaintiff and her daughter testified. Plaintiff complained of arthritis, asthma, severe headaches, chest pains, and other ailments. After the hearing, the Disability Unit sent her to a psychiatrist, Dr. Mojica Sandoz, for a psychiatric evaluation. Dr. Mojica wrote that she was logical, lucid, and coherent, possessed adequate judgment and had no difficulty in establishing interpersonal relations. He found her depressed, with a tendency towards invalidism and “hypochondria-cal thinking.” Based upon his detailed findings, he diagnosed a chronic but moderate “depressive neurosis,” accompanied by “insecurity feelings, ... overpreoccupation about physical condition, anxiety and tension and no insight.” Noting that plaintiff “has never worked outside doing the usual household chores,” he concluded: “It will be very difficult for her to tolerate sustained work pressure and criticism, and to adjust at her age to a long-lasting competitive work condition. The working prognosis is considered poor.”
The Disability Unit then sent the medical reports of all five examining physicians to Dr. J. J. Ramirez Fuentes, a specialist in psychiatry, and asked his opinion as to whether plaintiffs asthma, arthritis and depressive neurosis were the medical equivalent of a listed impairment. Dr. Ramirez Fuentes emphasized those notations in the various reports characterizing her depressive neurosis as “moderate,” her asthma as “mild,” and her arthritis as “moderately severe.” He stated that, in his opinion, the severity of plaintiff’s problems, as revealed in the reports of the laboratories and examining doctors, and when considered either individually or in combination, did not rise to the level of severity required for a finding of “disability” under the SSA regulations.
The Administrative Law Judge concluded that Mrs. Rodriguez was not disabled. He based his conclusion upon the reports of the five examining doctors, upon the view of Dr. Ramirez Fuentes, the nonexamining medical adviser, upon the x-ray results showing no arthritic changes of the severity contemplated by the regulations, and upon his observation of plaintiff at the hearing. He found some of the plaintiff’s statements at the hearing inconsistent with others she had made and gave her testimony “low credibility.”
The SSA Appeals Council denied Mrs. Rodriguez’s request for review, and she then filed an action for review in the federal district court. In the meantime, the SSA had revised the Listing of Impairments governing the determination of widow’s disability claims. See 44 Fed.Reg. 18170 (March 27, 1979). Therefore, at the Secretary’s request, the court remanded the case to the agency to obtain an updated medical opinion about the effect of the new listings. The SSA then sent the medical documents to Dr. Edwin C. Mitchell, an orthopedic surgeon. After reviewing the x-ray results and examining physician reports, Dr. Mitchell concluded that plaintiff’s arthritis was not severe enough to warrant a finding of disability, either by itself or in combination with her psychological ailments. The Appeals Council, in a careful opinion, reviewed all the medical evidence, including the reports from the five examining doctors and the two medical advisers. On the basis of this evidence and the ALJ’s opinion, the Council affirmed the ALJ’s denial of benefits.
II.
The basic standards for review in this case are not in dispute. The Social Security Act specifically mandates that “[t]he findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive .... ” 42 U.S.C. § 405(g) (1970). In reviewing the record for substantial evidence, we are to keep in mind that “[ijssues of credibility and the drawing of permissible inference from evi-dentiary facts are the prime responsibility of the Secretary.” Rodriguez v. Celebrezze, 349 F.2d 494, 496 (1st Cir. 1965). The Secretary may (and, under his regulations, must) take medical evidence. But the resolution of conflicts in the evidence and the determination of the ultimate question of disability is for him, not for the doctors or for the courts. Richardson v. Perales, 402 U.S. 389,399, 91 S.Ct. 1420,1426,28 L.Ed.2d 842 (1971); Alvarado v. Weinberger, 511 F.2d 1046, 1049 (1st Cir. 1975) (per curiam). We must uphold the Secretary’s findings in this case if a reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate to support his conclusion. Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938); Lewis v. Califano, 574 F.2d 452, 455 (8th Cir. 1978); Sullivan v. Weinberger, 493 F.2d 855, 861 (5th Cir. 1974), cert. denied, 421 U.S. 967, 95 S.Ct. 1958, 44 L.Ed.2d 455 (1975).
Plaintiff disputes none of these points. Rather, she makes two related claims. First, citing this Circuit’s case of Browne v. Richardson, 468 F.2d 1003 (1st Cir. 1972), and analogous holdings in other circuits, she claims that evidence provided by doctors who have neither examined her nor testified at her hearing cannot, by itself, constitute substantial evidence. Second, she argues that the only evidence in the record that contradicts her claim that the combination of her asthma, arthritis and mental condition disables her consists of the reports of Dr. Ramirez Fuentes and Dr. Mitchell, neither of whom examined her or testified.
We reject plaintiff’s arguments because the Secretary’s conclusion in this case does not rest solely upon the reports of the nonexamining, nontestifying doctors. To the contrary, the record contains considerable evidence that would allow a reasonable person to conclude that plaintiff’s ailments are not, individually or in combination, equivalent to the disabling conditions contained in the Secretary’s listings. Such evidence includes x-ray reports, laboratory reports, pulmonary examination reports, and reports of both psychiatric and physical medical examinations. Indeed, the reports of the neutral examining physicians — Dr. Ortiz, Dr. Ramirez Rivera, and Dr. Mojica— are sufficiently detailed that they would appear sufficient to support the agency’s conclusion even without further evaluation. They reflect a more extensive examination than the contrary reports of Dr. Colon and Dr. Zamora; the first two clearly reflect an overall evaluation of plaintiff’s physical condition, and the psychiatrist’s report is sufficiently detailed to allow the agency to factor in plaintiff’s mental condition. Dr. Ramirez Fuentes and Dr. Mitchell were admittedly the only two doctors to express explicit opinions about the medical equivalence of plaintiff’s combined ailments. However, their opinions on this question (which is ultimately for the finder of fact to decide) are not the only evidence on the question. Indeed, even if the final two reports of Drs. Ramirez Fuentes and Mitchell are treated not as evidence at all, but as neutral advisory opinions designed to help the lay trier of fact decide the question of equivalence, the remaining evidence would seem adequate to support the agency’s findings.
There is no need, however, for the agency to treat these advisory reports as if they had no evidentiary weight. Although Browne suggests that such reports cannot by themselves constitute substantial evidence, it does not hold that they are to be treated as irrelevant. The weight to which they are entitled will vary with the circumstances, including the nature of the illness and the information provided the expert. Cf. Guzman Diaz v. Secretary of HEW, 613 F.2d 1194, 1199 n.7 (1st Cir. 1980) (whether testimony of nonexamining physician can constitute substantial evidence “will doubtlessly vary with the circumstances”). Obviously, the fact that the experts have neither examined nor testified lessens the probative power of their reports. But the facts that the experts received extensive documentation containing relevant information, that they were highly qualified, that they reviewed the record, that they confined themselves to expressing an opinion about “equivalency” on the basis of the clinical reports before them — all factors present here — militate in favor of according their reports some evidentiary value.
Of course, the agency might have called for still one more medical examination focusing on the combination of plaintiff’s physical and mental ailments, but its decision not to do so is reasonable. Plaintiff’s mental condition did not become an issue until after her hearing; neither she nor her own doctors (including a psychiatrist) had previously mentioned it. Apparently, the agency subsequently decided to send her to a psychiatrist, Dr. Mojica, who wrote a detailed report describing her condition. The value of still one more examination, after five doctors had already examined the plaintiff, is not obvious. Similarly, the agency’s decision not to ask Drs. Ramirez Fuentes and Mitchell to testify seems reasonable as there is no indication from the record that an opportunity to cross-examine them would have provided either additional evidence or enlightenment.
In sum, the record indicates that this is not a case in which the agency treated an applicant’s claim either grudgingly or summarily. It is not a case in which the agency ignored her evidence or failed to give it adequate weight. It is a case in which the agency investigated a matter thoroughly, weighing the opinions of at least seven doctors, and made certain that its conclusions rested upon clinical examinations as well as medical opinions. It is also a case that presents what is obviously a close question of fact and judgment. The agency’s determination of this question is reasonable and supported by substantial evidence in the record. The decision of the district court upholding the agency is, therefore,
Affirmed.
. A wage earner is considered disabled under the Act if unable to engage in “any substantial gainful activity.” 42 U.S.C. § 423(d)(1)(A) (1970) (emphasis added).
. Id. § 423(d)(2)(A).
. The regulations pertaining to widow’s disability cases have recently been rewritten and rearranged to “make them easier to read and understand.” 45 Fed.Reg. 55566, 55566 (Aug. 20, 1980). At least as applicable to the present case, no substantive changes were enacted. Although these revisions have not yet been codified in C.F.R., the respective C.F.R. section numbers have been identified. We will cite to these revisions as follows: 20 C.F.R. § - (Aug. 20, 1980).
. Dr. Colon issued his certification on October 3, 1977. The record does not reveal any underlying clinical support for his conclusion, nor does it indicate when, as of that date, he had last seen plaintiff. Prior to the issuance of his further report on October 17, 1977, Dr. Colon examined plaintiff and also obtained x-rays of the lower back region. In that later report, he diagnosed arthritis in several locations and concluded that recovery was “not expected.”
. Dr. Zamora conducted a third examination, without x-rays or laboratory testing, on October 13, 1977. He diagnosed arthritis in her spine and knees and bronchial asthma and reported “little improvement.”
. The examiner stated: “Claimant has asthma . and osteoarthritis. However the medical evidence shows no severe condition in her respiratory system. Laboratory findings are within normal limits. Although she has arthritis of back and extremities, the range of motion is not seriously impaired. There is [sic] no joint deformities or effusion in major extremities.” He concluded that “claimant’s impairment(s) does not meet or equal the level of severity described in the listing of impairments . .. . ”
. Dr. Mitchell stated that he could not “eliminate the possibility of minimal osteoarthritic changes in the spine, hands and shoulders” in the future. However, he found no evidence “of a degree of lumbar nerve root compression which would be so painful as to preclude all forms of work activity, nor which when considered in combination with the diagnoses by the psychiatrist would equal the Listings.”
. See, e. g., Veal v. Califano, 610 F.2d 495, 497-98 (8th Cir. 1979); Allen v. Weinberger, 552 F.2d 781, 786 (7th Cir. 1977); Martin v. Secretary of HEW, 492 F.2d 905, 907-908 (4th Cir. 1974).
. The agency is free to take account of the amount, and nature, of underlying clinical support, see notes 4 and 5 supra, in determining the weight to give to the statements of Dr. Colon and Dr. Zamora declaring plaintiff to be disabled. See 20 C.F.R. § 404.1527 (Aug. 20, 1980): “[A] statement by your physician that you are ‘disabled’ or ‘unable to work’ does not mean that we will determine that you are disabled. We have to review the medical findings and other evidence that support a physician’s statement that you are ‘disabled.’ ”
. The Secretary’s regulations do not require the agency or the courts to consider the reports of medical advisers as “evidence.” Rather, after stating that “medical findings in the evidence” must be supported by “medically acceptable clinical and laboratory diagnostic techniques,” 20 C.F.R. § 404.1526 (Aug. 20, 1980), the regulations state: “We will also consider the medical opinion given by one or more physicians ... in deciding medical equivalence.” Id. In a slightly different context, the Supreme Court has noted that a medical adviser is a “neutral” physician “used primarily in complex cases for explanation of medical problems in terms understandable to the layman-examiner.” Richardson v. Perales, 402 U.S. 389, 408, 91 S.Ct. 1420, 1430, 28 L.Ed.2d 842 (1971). This matter is of little importance, however, for the advisers’ opinions here can be considered as part, but not all, of the supporting evidence.
. Dr. Mitchell graduated from the George Washington School of Medicine and practiced orthopedic surgery for twenty-six years. Dr. Ramirez Fuentes attended medical school in Spain and has served as a practicing and consulting psychiatrist in both the private and public sectors.
. Moreover, had plaintiff sought to cross-examine these two advisers, she could have moved to reopen the hearing and requested subpoenas for their attendance. 20 C.F.R. § 404.926 (1980); see Richardson v. Perales, 402 U.S. 389, 404-05, 91 S.Ct. 1420, 1429, 28 L.Ed.2d 842 (1971). On this general subject, plaintiff commented at oral argument that, due to an oversight, she did not receive Dr. Mitchell’s report until the decision of the Appeals Council had issued. However, we need not address this point; plaintiff did not seek a supplemental hearing when she actually received the report, did not voice an objection during the district court proceedings, and has not raised the issue on appeal.
. The agency actually has considered the opinions of nine doctors, since the two Disability Unit examiners who initially evaluated and rejected plaintiff’s claim were both physicians.
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
|
sc_lcdisposition
|
C
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded.
INTERSTATE COMMERCE COMMISSION v. TEXAS et al.
No. 85-1222.
Argued December 10, 1986
Decided January 20, 1987
Stevens, J., delivered the opinion for a unanimous Court.
Richard G. Taranto argued the cause for petitioner in No. 85-1222. With him on the briefs were Solicitor General Fried, Deputy Solicitor General Cohen, Robert H. Klonoff, Robert S. Burk, Henri F. Rush, and H. Glenn Scammel. Michael E. Roper argued the cause for petitioners in No. 85-1267. With him on the briefs were Robert B. Batchelder and Hugh L. McCulley. ■
Fernando Rodriguez, Assistant Attorney General of Texas, argued the cause for respondents. With him on the brief were Mary F. Keller, Executive Assistant Attorney General, Larry J. Laurent, Special Assistant Attorney General, and Douglas Fraser, Assistant Attorney General.
Together with No. 85-1267, Missouri-Kansas-Texas Railroad Co. et al. v. Texas et al., also on certiorari to the same court.
Justice Stevens
delivered the opinion of the Court.
Trailer-on-flatcar (TOFC or “piggyback”) service, a form of mixed train and truck transportation, enables a carrier to transport a trailer and its contents over rail on a flatcar and then to haul the trailer on the highway. The goods need not be unloaded and reloaded when they move from the rail mode to the truck mode; the shipment remains within the trailer or container during the entire journey. Various forms of TOFC and container-on-flatcar (COFC) service have been offered to the public by railroads, motor carriers, and freight forwarders since the 1930’s. These cases concern the extent of the State of Texas’ jurisdiction over what is known as “Plan II TOFC/COFC service,” which has long been defined as follows:
“Plan II (All-Rail):
“Door-to-door service performed by the railroad, which moves its own trailers or containers on flatcars under open tariffs usually similar to those of truckers.” See American Trucking Assns., Inc. v. Atchison, T. & S. F. R. Co., 387 U. S. 397, 403 (1967).
The ICC’s statutory authority includes jurisdiction to grant exemptions from regulation as well as to regulate. In 1980, Congress enacted the Staggers Rail Act, 94 Stat. 1895, 49 U. S. C. §10101 et seq., which authorizes the ICC to exempt from state regulation “transportation that is provided by a rail carrier as a part of a continuous intermodal movement.” See § 10505(f). It is undisputed that the ICC may grant an exemption from regulation to interstate TOFC/ COFC transportation provided by a rail carrier. The question presented is whether the grant of authority to the ICC under § 10505(f) encompasses the motor freight portion of a Plan II TOFC/COFC shipment entirely within the State of Texas.
HH
In 1981, the Commission adopted a regulation exempting Plan II service from state regulation. The regulation unambiguously covers both the motor portion and the rail portion of Plan II service. In a separate case involving interstate Plan II shipments, the Court of Appeals for the Fifth Circuit upheld the regulation, specifically rejecting an argument that, the Commission had no authority to exempt the motor portion of the intermodal service. It held that “rail-owned truck TOFC/COFC service is ‘transportation that is provided by a rail carrier.’” American Trucking Assns., Inc. v. ICC, 656 F. 2d 1115, 1120 (1981).
On September 27, 1982, Missouri-Kansas-Texas Railroad Company, Missouri Pacific Railroad Company, and Southern Pacific Transportation Company (Railroads) petitioned the Railroad Commission of Texas (RCT) to apply the ICC’s exemption to their Texas intrastate TOFC/COFC traffic. App. 7-10. The RCT took the position that it retained the authority to regulate the motor carrier segment of intrastate transportation provided by an interstate rail carrier. The Staggers Rail Act provides that a state commission may regulate intrastate transportation provided by a rail carrier, but only to the extent that it conforms with the federal Act and only if the ICC determines that the State’s proposed regulatory standards and procedures are consistent with federal standards and procedures. The RCT granted a partial exemption which covered the rail but not the pre-rail and post-ex-rail truck service portions of the intrastate TOFC/COFC service. Id., at 11-12.
The Railroads petitioned the ICC under 49 U. S. C. § 11501(c) to review the RCT’s decision and to grant the full TOFC/COFC exemption. The ICC held that the State Commission’s assertion of regulatory jurisdiction over “incidental pre-rail and ex-rail over-the-road movements” of Plan II TOFC/COFC service was inconsistent with the federal standards contained in its 1981 regulation. The State of Texas sought review of the ICC’s order in the Court of Appeals for the Fifth Circuit. The Railroads intervened as respondents. That court reversed, holding that the truck portion of the intrastate movements at issue was not “transportation . . . provided by a rail carrier” within the meaning of § 10505(f) but rather was “transportation provided by a motor carrier” within the meaning of § 10521(b)(1). Texas v. United States, 770 F. 2d 452 (1985). The Court of Appeals distinguished American Trucking Assns., Inc. v. ICC, supra, as limited to TOFC/COFC shipments that at some point in their journey crossed a state boundary. When the service is purely intrastate, the Court of Appeals held, the motor portions of TOFC/ COFC service by railroad-owned trucks constitute transportation provided by a motor carrier under § 10521(b)(1) and for that reason are expressly reserved for state regulation. We granted the petitions for certiorari of the ICC and the Railroads, 476 U. S. 1157 (1986). We are persuaded that the Court of Appeals erred.
II
It is undisputed that the Commission’s power to grant these exemptions from state regulation is coextensive with its own authority to regulate, or not to regulate, these inter-modal movements by rail carriers. We therefore focus our review on the extent of the Commission’s jurisdiction over the trucking segment of intrastate TOFC/COFC activities. Since all of the railroads interested in this proceeding are engaged in interstate commerce, the Commission has authority over the intrastate transportation, as well as the interstate transportation, provided by such carriers. All of the elements of the Plan II TOFC/COFC service at issue are provided on equipment owned and operated by a rail carrier over which the ICC has jurisdiction. Thus, the plain language of § 10505(f) unambiguously supports the ICC’s position.
It is true, of course, that the text of § 10521(b)(1) can be read to support the contrary result because it is possible to regard the rail carrier as a “motor carrier” during the truck portion of the intermodal movement. We believe, however, that the correct, and certainly the more natural, reading of the statute is that all of the TOFC/COFC service provided by interstate rail carriers on equipment which they own is “transportation provided by a rail carrier” subject to the jurisdiction of the ICC.
The position urged by respondents encounters three serious difficulties. First, it is inconsistent with the agency’s historical treatment of Plan II TOFC/COFC service as “provided by a railroad.” In Ex parte 230, Substituted Service-Charges and Practices of For-Hire Carriers and Freight Forwarders (Piggyback Service), 322 I. C. C. 301, 304-305, 309-312 (1964), the Commission stated:
“Under plan II, the railroad holds out to provide a complete door-to-door service under a single bill of lading. Neither the shipper nor the consignee intervenes in any way in the overall transportation activities or does anything beyond tendering the shipment to the railroad at origin or at the shipper’s loading dock.” Id., at 311.
The Commission .recognized that the distinctive element of Plan II service was not the use of trailers or containers to offer door-to-door pickup and delivery service via rail and highway, but rather the identity of the carrier offering this service:
“[A]ll three — rail carrier, motor carrier, and freight forwarder — are even today providing, through the use of piggyback, services which in physical characteristics are substantially similar. Any one of the three can offer a transportation service which includes door-to-door pickup and delivery, movement of loaded trailers between a shipper’s premises and a rail yard, and line-haul transportation of the loaded trailers by rail. The railroad does this under its plan II TOFC tariff; the trucker does it under plan I, in which it is encouraged by the railroads . . . and the freight forwarder does it through use of plans III and IV rail tariffs.” Id., at 330.
In none of the plans was a rail carrier treated either as a hybrid, or as a motor carrier, during the truck segment of the intermodal movement. Presumably, in enacting § 10505, Congress was aware of the Commission’s consistent practice of regulating railroads as “rail carriers” even when they performed Plan II intermodal service.
Second, the State’s interpretation of § 10521(b)(1) would make that section authorize state regulation of TOFC/COFC services in areas where it has already been rejected. The term “intrastate transportation provided by a motor carrier” must refer either to the intrastate motor portion of any TOFC/COFC movement or to the entire intrastate movement when a portion of it is performed by truck service. If the term refers only to the motor portion, the State’s reading of the statute would preserve the State’s power to regulate the intrastate motor portion of an interstate Plan II TOFC/ COFC shipment. But Texas acknowledges that it has no such power. Alternatively, if the term refers to every intrastate shipment that includes a motor segment, the railroad must be regarded as a “motor carrier” even during the rail portion of the intermodal movement, and the RCT would retain the power to regulate the entire intrastate movement. Again, Texas does not claim that authority. We think it clear that the only way to square the words of the statute with those aspects of the ICC’s jurisdiction that the State does accept is to hold that the ICC’s authority over intrastate transportation provided by an interstate rail carrier encompasses the entire movement, even when it includes a truck segment under Plan II.
Third, the special statutory authority of the Commission to determine the proper interrelationship of different modes of transportation supports its interpretation of the Staggers Rail Act. The statute was a response to the concern that differing state and federal standards applying to the industry and excessive governmental regulation by both federal and state authorities had contributed to the financial difficulties of major railroads. In its statement of rail transportation policy, Congress unambiguously expressed its interest in allowing free competition, to the maximum extent possible, to govern the financial health of the railroad industry. The importance of that policy is confirmed by the fact that the statement of general transportation policy applicable to' all types of carriers, which generally prescribes the impartial regulation of all competing modes of transportation, is introduced by an exception providing that the special policy statement endorsing competition in railroad transportation shall prevail when transportation policy has an impact on rail carriers. Even if the question of the extent to which § 10521(b)(1) restricts the Commission’s power under § 10505 in these cases were in doubt, the statutory statement of policy priorities would lead us to agree with the ICC’s view that the ambiguity should be resolved in favor of competition, rather than partial state regulation of Plan II TOFC/COFC service.
The judgment of the Court of Appeals is reversed.
It is so ordered.
The petitions for certiorari include both TOFC and COFC service. Pet. for Cert. in No. 85-1222, p. I; Pet. for Cert. in No. 85-1267, p. i. A container, unlike a trailer, cannot itself be hauled on the highway by a tractor rig; it must first be placed on a suitable truck trailer. For the purposes of this opinion, however, there are no relevant differences between TOFC and COFC service.
“TOFC service is inherently bimodal in that its basic characteristic is the combination of the inherent advantages of rail and motor transportation: the railroad’s ability to provide efficient line-haul transportation of huge volumes of freight for great distances at high speed; and the motor carrier’s ability to provide door-to-door, and if necessary job- or farm-site, pickup and delivery.” Ex parte No. 230, Substituted Service-Charges and Practices of For-Hire Carriers and Freight Forwarders (Piggyback Service), 322 I. C. C. 301, 329 (1964).
See generally id., at 305-309 (describing growth of TOFC service).
See 49 CFR § 1039.13 (1986). See also Improvement of TOFC/COFC Regulation, 364 I. C. C. 731, aff’d, American Trucking Assns., Inc. v. ICC, 656 F. 2d 1115 (CA5 1981).
The exemption encompasses “[r]ailroad and truck transportation provided by a rail carrier as part of a continuous intermodal movement.” 49 CFR § 1039.13 (1986) (emphasis added). In some plans, the motor portion of an intermodal movement is performed by a trucking company, freight forwarder, or shipper. See American Trucking Assns., Inc. v. Atchison, T. & S. F. R. Co., 387 U. S. 397, 403 (1967). In such plans, the exemption applies only to the rail portion of the intermodal service.
See 49 U. S. C. § 11501. At the time it issued the decision at issue in this case, the Railroad Commission of Texas had provisional certification to regulate intrastate transportation provided by a rail carrier. The Commission no longer has this statutory authority to regulate intrastate rail rates, classification, rules, and practices of interstate carriers because it was denied certification by the ICC in Ex parte No. 388 (Sub-No. 31), State Intrastate Rail Rate Authority — Texas, 11. C. C. 2d 26 (1984), aff’d, Railroad Comm’n of Texas v. United States, 246 U. S. App. D. C. 352, 765 F. 2d 221 (1985).
See ICC No. 39627, Petition Under 49 U. S. C. 11501(c) by Missouri-Kansas-Texas Railroad Company, et al., for Review of an Order of the Railroad Commission of Texas, decided Jan. 19, 1984 (Service Date Jan. 23,1984); ICC, No. 39704, Petition of Road-Rail Transportation Company, Inc., Under 49 U. S. C. 11501(c) for Review of an Order of the Railroad Commission of Texas, decided Apr. 11, 1984 (Service Date Apr. 13, 1984).
Section 10505(f) provides:
“The Commission may exercise its authority under this section to exempt transportation that is provided by a rail carrier as a part of a continuous intermodal movement.”
Section 10521(b)(1) provides:
“(b) This subtitle does not—
“(1) except as provided in sections 10922(c)(2), 10935, and 11501(e) of this title, affect the power of a State to regulate intrastate transportation provided by a motor carrier.”
Sections 10922, 10935, and 11501(e) are not relevant to the issue.
The ICC found that the Railroad Commission of Texas’ refusal to apply the entire TOFC/COFC exemption violated federal standards and procedures binding upon the State Commission, and authorized the Railroads “to establish any rate, classification, rule, or practice pertaining to intrastate rail or motor transportation provided by a rail carrier as part of a continuous intermodal movement within the State of Texas, to the same extent and in the same manner that they establish rates, classifications, rules, or practices for similar interstate movements.” App. to Pet. for Cert, in No. 85-1222, pp. 21a-22a. The Court of Appeals stated:
“The thrust of the argument of the State of Texas is that the I. C. C. lacks jurisdiction over the trucking segment of the totally intrastate TOFC activities of the intrastate [sic] rail carriers. Without this jurisdiction, Texas maintains, the I. C. C. could not exempt the intrastate highway transportation from state regulation. We are constrained to agree.” Texas v. United States, 770 F. 2d 452, 453 (CA5 1985) (emphasis added).
This quotation reveals an incompleteness in the Court of Appeals’ reasoning. If the rail carriers were “intrastate rail carriers,” the ICC would not have had jurisdiction over either the rail or the motor portion of their intrastate movements. But this conclusion does not necessarily extend to the rail and motor portions of intrastate movements by all other rail carriers, specifically those that operate across state boundaries. In fact, the Railroads in this proceeding are all interstate rail carriers, and the ICC has consistently exercised jurisdiction over their intrastate, as well as their interstate, movements. See n. 14, infra. Nevertheless, the Court of Appeals did not err in its underlying conclusion that the ICC’s authority to grant an exemption from federal regulation coincides with its authority to grant an exemption from state regulation. In its argument in this case, the State of Texas also recognizes that the scope of the ICC’s authority over exemptions from state regulation is coextensive with its own jurisdiction either to impose federal regulation or to grant an exemption from federal regulation. Thus, although this case involves the ICC’s effort to grant exemptions from regulation, the same legal question would be presented if the ICC were trying to regulate the rates for an interstate rail carrier’s intrastate movements, and the carrier asserted that only the state commission had such power.
See 49 U. S. C. §§ 10501 and 11501. The Commission does not assert jurisdiction over wholly intrastate carriers; nor does it assert the authority to exempt such carriers from state regulation.
See n. 7, supra.
Our holding that the ICC’s jurisdiction under § 10505(f) includes the intrastate portions of Plan II TOFC/COFC service applies whether or not a State has been certified under 49 U. S. C. § 11501. Because the Railroad Commission of Texas is not now certified to regulate railroads, the statute independently places the truck portion of intra-Texas TOFC/COFC service within the jurisdiction of the ICC:
“Any intrastate transportation provided by a rail carrier in a State which may not exercise jurisdiction over an intrastate rate, classification, rule, or practice of that carrier due to a denial of certification under this subsection shall be deemed to be transportation subject to the jurisdiction of the Commission under [§ 10501 et seq.V’ 49 U. S. C. § 11501(b)(4)(B).
And of course the Fifth Circuit so held in American Trucking Assns., Inc. v. ICC, 656 F. 2d 1115 (1981). The reason why Texas does not have that power is that the statute plainly authorized the ICC either to regulate, or to exempt from regulation, such continuous interstate movements. We think it clear that the ICC’s authority over intrastate rail transportation by an interstate rail carrier encompasses the entire movement, even when it includes a truck segment. This conclusion was at least implicit in the Fifth Circuit’s opinion in American Trucking Assns., Inc. v. ICC, supra, at 1120:
“[R]ail-owned truck TOFC/COFC service is ‘transportation that is provided by a rail carrier.’ Had Congress intended to limit the Commission’s exemption authority to rail transportation, it could easily have done so by using that language. Instead, it chose the broad ‘transportation-that-is-provided-by-a-rail-earrier’ language and presumably did so with knowledge that it previously had defined ‘transportation’ to include the movement of passengers or property by motor vehicle.” (Citations omitted; footnotes omitted.)
The Court of Appeals based its conclusion that “transportation provided by a rail carrier” should be defined more narrowly for intrastate traffic than for interstate commerce on the “potential mischief” of exempting intrastate rail travel from regulation. The Court of Appeals focused on the hypothetical example of a small intrastate rail carrier that provides minimal rail service within a city and extensive truck service to convey goods to and from the city, and is exempt from state regulation. See 770 F. 2d, at 454-455. This scenario could only occur, however, if the ICC had authority to exempt such transportation from regulation. But because the hypothetical railroad is only an intrastate carrier, the ICC would not have any jurisdiction over it, and the speculative potential for mischief would not exist. In this case, by contrast, the Railroads are interstate carriers whose TOFC/COFC services include some segments entirely within Texas. See Guide to Piggyback Routes, Distribution 190, 196 (July 1982) (route diagrams for TOFC/COFC service). See also n. 9, supra.
“[W]e cannot accept arguments based upon arguable inference from nonspecific statutory language, limiting the Commission’s power to adopt rules which, essentially, reflect its judgment in light of current facts as to the proper interrelationship of several modes of transportation with respect to an important new development.” American Trucking Assns., Inc. v. Atchison, T. & S. F. R. Co., 387 U. S., at 410. The reading of the Act proposed by respondents impermissibly limits the ICC’s power to implement national transportation policy in the evolving area of intermodal transportation.
See H. R. Rep. No. 96-1035, pp. 38, 61, 128-130 (1980); H. R. Conf. Rep. No. 96-1430, p. 79 (1980).
Section 10101a “establishes a specific rail transportation policy to guide the Commission in its duties in regulation of the railroad industry.” H. R. Conf. Rep. No. 96-1430, supra, at 80. Section 10101a provides, in part:
“10101a. Rail transportation policy
“In regulating the railroad industry, it is the policy of the United States Government—
“(1) to allow, to the maximum extent possible, competition and the demand for services to establish reasonable rates for transportation by rail;
“(4) to ensure the development and continuation of a sound rail transportation system with effective competition among rail carriers and with other modes, to meet the needs of the public and the national defense;
“(5) to foster sound economic conditions in transportation and to ensure effective competition and coordination between rail carriers and other modes;
“(7) to reduce regulatory barriers to entry into and exit from the industry.”
Section 10101 provides in part:
“(a) Except where policy has an impact on rail carriers, in which case the principles of section 10101a of this title shall govern, to ensure the development, coordination, and preservation of a transportation system that meets the transportation needs of the United States, including the United States Postal Service and national defense, it is the policy of the United States Government to provide for the impartial regulation of the modes of transportation . . .
Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed?
A. stay, petition, or motion granted
B. affirmed
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. modify
K. remand
L. unusual disposition
Answer:
|
songer_respond1_3_2
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
UNITED STATES of America, Appellee, v. James Campy IRBY, Appellant.
No. 8485.
United States Court of Appeals Fourth Circuit.
Argued March 20, 1962.
Decided May 22, 1962.
A. Andrew Giangreco, Alexandria, Va., for appellant.
Plato Cacheris, Asst. U. S. Atty. (C. V. Spratley, Jr., U. S. Atty., on brief), for appellee.
Before SOPER, HAYNSWQRTH and J. SPENCER BELL, Circuit Judges.
SOPER, Circuit Judge.
James Campy Irby appeals from a judgment of the District Court rendered on October 6, 1961 whereby he was sentenced to a fine and imprisonment for violation of the Federal Narcotic Acts after he had been found guilty as charged in two counts of an indictment. The first count charged that on March 31, 1961, at the Washington National Airport, in violation of 21 U.S.C.A. § 174, Irby received, concealed and transported 11.7 ounces of heroin knowing that the drug had been imported into the United States contrary to law. The second count charged that on March 31, 1961, in violation of Section 4704(a) of the Internal Revenue Code, 26 U.S.C. § 4704(a), he had purchased, sold and distributed 11.7 ounces of heroin which was not in the original stamped package. On each count he was sentenced as a second offender to imprisonment for a period of 20 years and fined $1000, the sentences to run concurrently. Information furnished to the court pursuant to Section 7237 (c) of the Internal Revenue Code, 26 U.S.C. § 7237(c) showed that the 'defendant, on May 16, 1946, had pleaded guilty to the violation of 21 U.S.C.A. § 174, and had been sentenced to imprisonment for the period of 15 months to 4 years and fined $10.00.
Irby was arrested on March 31, 1961 at the Washington National Airport by Federal Narcotic Agents stationed in Washington, who acted without a warrant of arrest upon information furnished them by Federal Narcotic Agents stationed in New York. He was searched and 10 packets of heroin were found upon his person. This evidence was used against him at the trial. Reversal of the judgment is sought on the ground that the evidence was obtained through an illegal arrest and search of the person without a warrant of arrest and without probable cause. Prior to the trial the defendant moved the court to suppress the evidence on this account but the motion was over-ruled. The correctness of this ruling is the subject of this appeal.
Authority to make arrests without a warrant for violation of any law of the United States relating to narcotic drugs was conferred upon the agents of the Bureau of Narcotics, of the Department of the Treasury, by the Act of July 18, 1956. Chapter 629, § 104(a), 70 Stat. 570, codified as Section 7607 of the Internal Revenue Code, 26 U.S.C. § 7607. It provides that such agents may “make arrests without warrant for violations of any law of the United States relating to narcotic drugs * * * where the violation is committed in the presence of the person making the arrest or where such person has reasonable grounds to believe that the person to be arrested has committed or is committing such violation.” Hence, the question for decision on this appeal is whether the District Judge was justified in finding that the agents in this case, at the time of the arrest, had reasonable grounds to believe that he had committed or was committing a violation of the narcotic statutes. The evidence presented to the Judge on this point may be summarized as follows.
The Washington agents had knowledge of Irby’s prior conviction for violating the Narcotic Act in 1946, and they had had him under intermittent surveillance since 1958, and had seen him in contact with other violators of the narcotic statutes at various times, most recently within a month of the date of his arrest. In March 1961, prior to the arrest, narcotic agents stationed in New York received information about Irby from one Worth-ington Albert Alston who had previously sold narcotic drugs to an under cover Federal agent and had thereafter become a special employee of the Narcotics Bureau as an unpaid informer. The information related to Irbyjs activities in dealing with narcotics and specifically to a trip which Irby was to make from Washington to New York by air on March 31 in order to get narcotics and return with them to Washington. On March 30 the New York agents communicated with the Washington agents and told them of the planned journey and that Irby would leave the Washington airport on the morning of March 31 by plane of American Airlines due to arrive at New York at 11:48 A.M. As a result of this information the Washington agents were awaiting Irby at the airport and saw him purchase a round-trip ticket to New York on the flight predicted, under the assumed name of “C. Green”, and take the plane. The time of his return could not be determined as Irby had not made a return reservation. The Washington agents then telephoned this information to the office of the narcotics agents in New York. Agents from the New York office met the plane upon its arrival at the La-Guardia Airport in New York City and followed Irby to 461 Central Park West in New York City, which was known to them as a place where many violators and suspected violators of the narcotic laws were accustomed to meet. They saw him leave the place about 2 o’clock in the afternoon but lost him and then picked him up again at about 3:30 P.M. at the Airport and saw him board a plane for Washington, D. C. They telephoned this information to the Washington agents who met the plane upon its arrival in Washington and arrested Irby and found the drugs upon his person as above set out.
Evidence of these facts was presented to the District Judge at the hearing of the motion to suppress the evidence. In addition, he was shown the record of his court in a criminal case in which Alston had been indicted in December 1960 for making a false claim against the United States. This record showed that on motions of the United States and of Alston’s attorney filed in this case in January 1961 Alston was committed to the St. Elizabeth’s Hospital in the District of Columbia to be examined in respect to his mental competency on the ground that he was a pathological liar and an anti-social maladjusted person who was unable to adjust himself to prevailing social standards and had been discharged from the United States Army for unfitness and had inflicted a gun shot wound upon himself with suicidal intent. A report of the superintendent of the hospital, under date of March 15,1961, showed that after intensive study of the case by the psychiatric staff of the hospital, it was concluded that Alston was mentally competent to understand the proceedings against him and to assist properly in his own case. The record in the case also showed that when Alston was called for trial on September 11, 1961 he did not respond, and on October 19, 1961 his bail was forfeited.
It is the contention of the defendant that upon this testimony the District Judge should have granted the motion to suppress the evidence gained by the arrest on the ground that the information upon which the agents acted in making the arrest was unreliable and unworthy of belief because it was obtained solely from Alston who was known to be mentally sick as well as a pathological liar. Our examination of the testimony leads us to a different conclusion. It was known to the agents in Washington that Irby had a criminal record in the narcotic field and had been consorting with ■violators of the Narcotic Acts, and hence, when they received information of his impending trip to New York, it was proper and natural that they should investigate. It was known at the same time to the New York agents that Alston had contacts with the illicit trade and had been given informal employment as a special employee or informer to assist in the enforcement of the statutes. It was reasonable and proper, therefore, that they should pass on to the Washington agents the information acquired with respect to Irby’s trip and that they should cooperate in the investigation by following Irby when he arrived in the city. Moreover, it was ascertained before the arrest was made that the specific information given by Alston as to Irby’s trip to New York and return was entirely accurate since Irby did go by air to New York on the very flight reported and visit a place with an unsavory reputation as a hangout for narcotic violators, and did return to Washington the same day as had been foretold. In addition, he made the trip under an assumed name. Obviously, there was not only ample ground for the judge to conclude that the agents had reasonable grounds to believe that Irby was committing a violation of the law but it is difficult to see how any other decision could have been made. It is of little moment that Alston was shown to be a man of unstable character and credibility. It is from persons of this type rather than from the law-abiding that information as to the violation of the law is likely to be obtained, and in this instance the information was tested and found to be correct in important details before the arrest was made.
The case at bar in general outline is not unlike that considered in Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327, where a possessor of narcotic drugs was arrested and searched without a warrant by narcotic agents when he alighted from a railroad train, as had been foretold by a special employee or informer of the Bureau of Narcotics, whose previous reports had been found to be accurate and reliable. Quoting the provision of 26 U.S.C. § 7607, which authorizes narcotic agents to make arrests without warrant if they have reasonable grounds to believe that the person to be arrested has committed or is committing a violation of the Narcotic Laws, the court pointed out that “reasonable grounds” in the statute has the same meaning as “probable cause” in the Fourth Amendment, and sustained the arrest. It held that the agents had the right to rely upon the hearsay information furnished by the informer, who had been previously found to be reliable, especially as in pursuing the information furnished in the particular instance they spied a man, who corresponded in appearance to the informer’s description, alight from a train at the place the informer had foretold. Stating the rule to be applied in such cases the court said, page 313, 79 S.Ct. page 333:
“ ‘In dealing with probable cause, * * * as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’ Brinegar v. United States, supra, [338 U.S. 160] at 175 [69 S.Ct. 1302, at page 1310, 93 L. Ed. 1879], Probable cause exists where ‘the facts and circumstances within [the arresting officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed. Carroll v. United States, 267 U.S. 132, 162 [45 S.Ct. 280, 69 L.Ed. 543].”
In the case at bar there was no explicit testimony that the information previously furnished by the special employee had proved to be accurate, but the agents had used the man previously and obviously had enough faith in him to put his lead as to Irby to the test, and since his information proved correct in essential details, its reliability was established before the arrest was made.
The additional contention is made, seemingly based on Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663, that the arrest and search of Irby were illegal since the agents had ample time to secure a warrant of arrest but failed to do so. This contention cannot be sustained. Narcotic agents, as we have seen, are clothed by Section 7607 I.R.C. with general authority to make arrests without warrant upon probable cause. See Miller v. United States, 357 U.S. 301, 305, Note 4, 78 S.Ct. 1190, 2 L.Ed.2d 1332. The authority is similar to that conferred upon agents of the Federal Bureau of Investigation of the Department of Justice, and other government officers, by 18 U.S.C. §§ 3052 and 3053. The Fourth Amendment does not require arresting officers clothed with such authority to procure a warrant of arrest, even if it is practicable for them to do so, but they may act without a warrant if they have reasonable grounds to believe that a felony has been committed or is being committed.
Reliance on Trupiano is misplaced. In that case it was held that Federal agents who detected a man operating an illicit still were not justified in seizing contraband articles on the premises where the arrest was made without a search warrant which they had had ample opportunity to obtain. In the course of the opinion, however, it was said, 334 U.S. 699, 705, 68 S.Ct. 1229, 92 L.Ed. 1663, that the arrest of the operator of the still was valid and that the absence of a warrant of arrest, even though there was sufficient time to obtain one, did not destroy its validity. Subsequently, in United States v. Rabinowitz the limitation set forth in Trupiano on the right of arresting agents to seize contraband property in the course of a lawful arrest was withdrawn. It was stated, 339 U.S. 56, 60, 70 S.Ct. 430, 94 L.Ed. 653, that an arrest is valid even without a valid warrant if the arresting officers have reasonable grounds to believe that a felony is being committed in their presence, and it was further held that the validity of a search in connection with an arrest without a warrant is not dependent solely upon the practicability of procuring a warrant in advance. The court said, 339 U.S. 65, 70 S.Ct. 435:
“It is appropriate to note that the Constitution does not say that the right of the people to be secure in their persons should not be violated without a search warrant if it is practicable for the officers to procure one. The mandate of the Fourth Amendment is that the people shall be secure against unreasonable searches. It is not disputed that there may be reasonable searches, incident to an arrest, without a search warrant. Upon acceptance of this established rule that some authority to search follows from lawfully taking the person into custody, it becomes apparent that such searches turn upon the reasonableness under all the circumstances and not upon the practicability of procuring a search warrant, for the warrant is not required. To the extent that Trupiano v. United States, 334 U.S. 699 [68 S.Ct. 1229, 92 L.Ed. 1663], requires a search warrant solely upon the basis of the practicability of procuring it rather than upon the reasonableness of the search after a lawful arrest, that case is overruled. The relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable. That criterion in turn depends upon the facts and circumstances—the total atmosphere of the case. It is a sufficient precaution that law officers must justify their conduct before courts which have always been, and must be, jealous of the individual’s right of privacy within the broad sweep of the Fourth Amendment.”
The judgment of the District Court is affirmed.
Affirmed.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant?
A. cabinet level department
B. courts or legislative
C. agency whose first word is "federal"
D. other agency, beginning with "A" thru "E"
E. other agency, beginning with "F" thru "N"
F. other agency, beginning with "O" thru "R"
G. other agency, beginning with "S" thru "Z"
H. Distric of Columbia
I. other, not listed, not able to classify
Answer:
|
songer_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.
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INSTRUMENT CORPORATION OF AMERICA, Respondent.
No. 82-1408.
United States Court of Appeals, Fourth Circuit.
Argued Jan. 10, 1983.
Decided Aug. 4, 1983.
Lawrence S. Wescott, Baltimore, Md. (Peter E. Keith, Venable, Baetjer & Howard, Baltimore, Md., on brief), for respondent.
Frances H. O’Connell, Washington, D.C. (Allison W. Brown, Jr., William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Associate Gen. Counsel, Elliott Moore, Deputy Gen. Counsel, Washington, D.C., on brief), for petitioner.
Before RUSSELL and ERVIN, Circuit Judges, and FIELD, Senior Circuit Judge.
ERVIN, Circuit Judge:
In this case, the National Labor Relations Board seeks enforcement of its order directing Instrument Corporation of America (“ICA” or “the Company”) to cease and desist from practices prohibited under section 8(a)(1) and (3) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1) and (3), and to reinstate, with back pay, five former employees discharged allegedly for union organizing activities. An administrative law judge for the NLRB found that ICA wrongfully discharged Lynn Brown, Frank Ferrell, Fay Gray, Grace Harry, and Richard Schucker for engaging in protected activities. A panel of the NLRB affirmed, adopting the opinion of the ALJ. On the basis of substantial evidence in the record which sustains the ALJ’s findings, we now grant enforcement as to Brown, Ferrell, Gray, and Harry. However, we deny enforcement as to Schucker.
I.
Instrument Corporation of America manufactures electronic stencil cutters. The Company’s facility in Baltimore is divided into three departments — mechanical assembly, electrical assembly, and testing — each with its own supervisor. The physical layout of the facility fosters intermingling of all employees and supervisors: everyone works in a single room which also serves as a common lunch area, and the adjacent parking lot is used by employees and supervisors alike.
During the period relevant to this case the Company employed around twenty-five production and maintenance employees. Up until May 13, 1980, Lynn Brown and Frank Ferrell worked as mechanical assemblers. Fay Gray and Grace Harry were employed in the electrical assembly department. Richard Schucker was a tester until his dismissal on May 16, 1980.
In the fall of 1978, a group of ICA employees became disenchanted with management policies. Fay Gray suggested that the local chapter of the International Brotherhood of Electrical Workers (“IBEW”) be contacted. Soon thereafter, three employees called on Local 24 of the IBEW and obtained union authorization cards. The three were Frank Ferrell, Robert Drummond, and Paul Bosnick, Jr., the son of ICA’s manufacturing manager. Bosnick later told his father that he, Ferrell and Drummond had visited Local 24.
IBEW Local 24 conducted an organizing drive at ICA during the last few months of 1978 and managed to secure enough authorization cards to file a petition for representation with the NLRB on January 15, 1979. Pursuant to a stipulation with the Company, an election was set for March 23, 1979.
During the nine-week campaign that followed, employees Lynn Brown, Ferrell, Gray, Harry, and Schucker attended several union rallies at which plant supervisors were also present. These meetings were held after hours; employees desisted from campaign activities — including the distribution of union literature and the wearing of partisan buttons — during the work day.
Opposition to the union was personally led by the president of the Company, J. David Bryan. He wrote several open letters to employees warning of the drawbacks of unions. He held a grievance session for employees at which Lynn Brown, Ferrell, Gray, and Schucker voiced dissatisfaction over company policies. In management meetings Bryan instructed supervisors to speak out against the union with employees and to report back to him with information on the campaign. No evidence demonstrates, however, that Bryan specifically solicited the names of union partisans from supervisors.
Three witnesses for the NLRB testified at the proceedings below that Bryan threatened to “farm out” the Company’s contracts rather than “answer to a union.” This statement was alleged to have been made at a management meeting attended by supervisors Mary Brown and Daisy Wenk. Mary Brown reported the comment to Lynn Brown, and Wenk relayed it to Fay Gray. The testimony of Mary Brown, Lynn Brown, and Gray pertaining to Bryan’s threat is contradicted by Paul Bosnick, ICA’s manufacturing manager, who was present at the meeting where the statement was allegedly made, and Bryan himself. Both men claim no such comment was made.
In the March 23 election, the IBEW was defeated by two votes, 14 — 12. Following the election, employee Frank Ferrell requested a meeting with Bryan to discuss wage policies. At the meeting, Ferrell and Lynn Brown registered complaints over prevailing practices at the Company. Three other employees were also present at the meeting who are still employed by the Company.
Eleven months later in February, 1980, ICA suffered a severe economic setback when the purchaser of 90% of the Company’s product, Gestetner Co., demanded modification of the supply contract between them. Bryan agreed to a suspension of shipments of stencil cutters for the months of March through May, followed by normal shipments in July and August, followed by reduced shipments for the duration of the year. From December 31, 1979 to April 31, 1980, ICA’s accounts receivable fell by 70%, and its cash on hand dipped by 37%. Faced with these difficulties, Bryan claims to have met with manufacturing manager Paul Bosnick in March, 1980 for the purpose of paring the workforce by 15%. Although at least one employee had been told that layoffs, if ever required, would fall according to seniority, those ultimately dismissed— Mary Brown, Lynn Brown, Ferrell, Gray, and Harry — reflected tenures of varying length at the Company. President Bryan offered economic reasons for the selection of each laid off employee; the NLRB argues, of course, that it was the pro-union sympathies of the individuals tapped that motivated their dismissal.
The layoffs claimed to have been decided upon in March were not implemented right away. Bryan maintains this is because he hoped to find alternative purchasers during an impending trip to Brazil and Venezuela that would avoid the necessity of layoffs.
In April, while Bryan was away in South America, a new union organizing drive was begun. Employees Ferrell and Schucker obtained authorization cards from Local 24 which they distributed in the plant parking lot to their fellow workers before and after hours and during lunch. On April 28, the union filed a new petition for representation.
Bryan returned to Baltimore on May 7, his quest for new business having proved fruitless. On May 8, he learned of the new petition for representation. On May 12, Bryan, who had entered the hospital for surgery, directed the permanent layoffs of Mary Brown, Lynn Brown, Ferrell, Gray, and Harry. The five were dismissed on May 13.
That same day, Richard Schucker walked off his job at lunchtime, failing to return until 5:00 P.M. Schucker, who had been employed at ICA for one year and eight months, had a history of absenteeism. He even received a notice of dismissal in January, 1980, on account of his spotty attendance, but his job was saved when a supervisor resigned that month. Although Schucker’s hours were more flexible than the assembly line workers’ at ICA, he was expected to put in forty hours a week, which he had not met since January, 1980. Prior to leaving the plant on May 13, Schucker indicated to his supervisor, Robert Sikora, that he intended to take some vacation time that week. However, he did not tell Sikora that he planned to take off that afternoon. When Schucker reappeared at 5:00 P.M., Sikora demanded an explanation and apparently agreed to count Schucker’s afternoon recess as vacation time. President Bryan felt differently, however, for when he learned three days later of Schucker’s conduct, he ordered that Schucker immediately be fired. Sikora carried out this order on May 16. Schucker had been a vocal union sympathizer, and so he asked Sikora whether his dismissal was prompted by his union activities. Sikora replied it was not.
According to Bryan, the policy at ICA was that all layoffs were permanent, so that if business improved the Company could choose between hiring new employees at base wage rates or rehiring laid off employees at their former wage levels. In the months following the May layoffs, several new employees signed on at ICA; hone of the five discharged employees were invited to return. A summer spurt in business led the Company to subcontract work with employees at premium overtime wages.
On June 6,1980, the second union election again brought defeat for the IBEW, this time by a margin of 10-7. Seven challenged votes were lodged, including five registered by the employees laid off in May. Due apparently to his ill health, Bryan did not play an active role in the campaign leading up to June 6.
Shortly after the dismissals at issue, the union filed unfair labor practice charges with the National Director of the NLRB. Eventually, an administrative law judge found that the dismissals of Lynn Brown, Ferrell, Gray, Harry, and Schucker were largely motivated by anti-union animus, not valid business justifications. This is the ruling we are asked to review.
II.
In opposing the NLRB’s petition for enforcement of its order, ICA contends that the administrative law judge misallocated the burdens of proof, forcing the Company to prove it would have discharged the employees even in the absence of protected conduct, rather than requiring the Board to show that union activity was a “but for” cause of the dismissals.
A close reading of the ALJ’s opinion discloses no misassignments of proof. In this circuit, “the burden is on the General Counsel throughout to show that a discriminatory motive retaliative against the exercise of protected activity was a factor for the discharge.”. NLRB v. Kiawah Island Co., Ltd., 650 F.2d 485, 490 (4th Cir. 1981). See also Neptune Water Meter Co. v. NLRB, 551 F.2d 568, 569 (4th Cir.1977). This burden requires General Counsel to do more than present evidence of union membership or concerted activities where the employer offers a valid reason for employee dismissals. Kiawah Island, 650 F.2d at 491. When confronted with evidence of a legitimate business motive, General Counsel must prove by a preponderance of the evidence that union antipathy did actually play a part in the decision to discharge employees. Id. In deciding the factual question of motive, it is not enough for the Board simply to declare that the reasons offered by the employer were pretextual; the Board must advert to tangible evidence demonstrating why the good motive was not the sole reason for the discharge. Id. It goes without saying that because the task of proving an employer’s motive is difficult, the Board may rely on circumstantial evidence presented by General Counsel in establishing that anti-union animus figured in the employer’s actions, provided that the circumstantial evidence is substantial and the inferences drawn therefrom reasonable.
We believe that the ALJ correctly applied these rules of law in finding that ICA acted, at least in part, out of anti-union animus in discharging Brown, Ferrell, Gray, and Harry. Nowhere does it appear in the decision of the ALJ that General Counsel was relieved of the ultimate burden of proving that a discriminatory motive was a factor for the discharges. And, since the question of motive is one of fact, we are limited on review to an inquiry into whether substantial evidence exists to support the ALJ’s findings. As discussed below, we are satisfied that, taking the evidence as a whole, the ALJ (and the Board) could reasonably conclude that anti-union hostility played a part in the terminations of Brown, Ferrell, Gray and Harry.
III.
On review of this petition for enforcement, we must decide whether, based on the entire record before us, substantial evidence sustains the Board’s conclusion that the dismissals of Lynn Brown, Ferrell, Gray, Harry, and Schucker were partly or wholly motivated by the purpose of discouraging union activities at ICA. Jeffrey Manufacturing Division, etc. v. NLRB, 654 F.2d 944, 948 (4th Cir.1981). The question of motive is one of fact, and the Board’s determination will not be overturned if its conclusions drawn from credibility findings and inferences from the evidence are reasonable. NLRB v. Comgeneral Corp., 684 F.2d 367, 369 (6th Cir.1982). Where the Board’s conclusions are reasonable, it does not matter that we might have reached a different result had we been the factfinders. Jeffrey Manufacturing Co., 654 F.2d at 948. Of course, as we have stated before, the mere fact that a union partisan was discharged during a union campaign does not make out a violation of section 8(a)(3) if a supportable cause for the dismissal appears. Id. Furthermore, mere speculation as to the Company’s real motives “register[s] no weight on the substantial evidence scale.” TRW, Inc. v. NLRB, 654 F.2d 307, 312 (5th Cir.1981).
Having examined the record, we are satisfied that with regard to Lynn Brown, Ferrell, Gray, and Harry the evidence supports the Board’s conclusion that ICA acted at least in part out of malice toward the union, and that the business justification advanced by the Company was pretextual or, at best, was not the sole reason for the layoffs. The dismissals came only days after Bryan learned of a petition for union representation on May 8, 1980. All of the employees discharged on May 13 had demonstrated varying degrees of discontent with management and sympathy with the union. Lynn Brown, Ferrell, Gray, and Harry were each vocal with their grievances throughout 1979. All four employees dismissed on May 13 had unblemished work records. This contrasts with cases cited by ICA such as NLRB v. Appletree Chevrolet, Inc., 608 F.2d 988, 992 (4th Cir. 1979) (no violation of section 8(a)(3) where employer terminated four union sympathizers with poor work records), NLRB v. Kiawah Island Co., Ltd., 650 F.2d 485, 491 (4th Cir.1981) (company justified in firing employee responsible for poor sanitation results; no violation of section 8(a)(3)), Burlington Industries, Inc. v. NLRB, 680 F.2d 974, 976-77 (4th Cir.1982) (no violation of section 8(a)(3) where previously warned employee committed repeated infractions of company rules), and NLRB v. Burns Motor Freight, Inc., 635 F.2d 312, 314 (4th Cir. 1980) (truck driver laid off after receiving speeding citations; enforcement of section 8(a)(3) order denied). Nor did the layoffs fall according to seniority. Although no direct evidence appears that ICA management knew the names of union partisans, ample circumstantial evidence permits that inference. Only about twenty-five persons comprised the work force at ICA during 1979 and 1980. According to the credited testimony of Mary 'Brown, supervisors were ordered to report to management on union activities during the 1979 campaign. Lynn Brown, Ferrell, Gray, and Harry made no secret of their displeasure with management, even in Bryan’s presence. The smallness and openness of the plant further made it unlikely that union allegiances would remain secret. ICA’s official policy of considering all layoffs to be permanent nevertheless held out the possibility that experienced senior people would be rehired, yet not one of the four employees laid off on May 13 was called back when positions came open as the economic picture brightened. This is additional evidence of improper motive.
In the proceedings below the Company countered this evidence of unfair labor practice with assertions of business necessity. The Company did suffer significant economic injury in the winter of 1980. Reasons were offered for the particular selection of each employee discharged. The Company points out that Mary Brown, who was dismissed along with the four complainants on May 13, was a supervisor ineligible to vote in a union election, while Lynn Brown, who did not vote for the union in 1979, was also terminated. The Company also notes that several employees who evidently voted for the union in 1979 were kept on the work force. One known union activist, Robert Drummond, was even promoted to supervisor.
We are unable to say that the Board unreasonably- found this evidence insufficient to prove the dismissals would have occurred even in the absence of pro-union activities. See Jeffrey Manufacturing, 654 F.2d at 948. As noted in the opinion of the ALJ, the work force was small and the elimination of four likely votes for the union in the impending June election could have made the crucial difference where the Company’s margin of victory in 1979 was only two votes. The ALJ further noted the potential chilling effect of these dismissals on others inclined to favor the union. Further undermining the Company’s exeuse is the ALJ’s express finding that Bryan testified falsely that the dismissals were decided upon two months before being carried out. This finding is supported by a letter introduced by General Counsel dated June 19, 1980 from ICA’s counsel to the Regional Director of the NLRB in which Bryan is described as selecting the individuals for dismissal between May 7 and May 9, after the second election petition was filed.
Nor is the finding of anti-union animus defeated by evidence that some union activists were not fired. “[A] discriminatory motive, otherwise established, is not disproved by an employer’s proof that it did not weed out all union adherents.” Nachman Corporation v. NLRB, 337 F.2d 421, 424 (7th Cir.1964). The fact that Bryan did not fire some of the principal activists could simply mean he felt their skills too valuable to lose.
In short we find substantial evidence adduced by General Counsel to support the Board’s conclusion that management knew the identities of union sympathizers, and that the May 13 layoffs were provoked at least in part by that knowledge rather than by proper business motives alone. On the weight of the evidence, the Board reasonably could have concluded that the Company acted out of malice toward the union, and that its business justification was not the sole reason for the discharges.
IV.
The case of Richard Schucker stands in a wholly different light. Schucker had long been a problem employee when he was fired on May 16. Like his fellow complainants, Schucker took a prominent role in union activities, and knowledge of those activities may be imputed to the Company. However, he had also been the subject of a notice of dismissal in January, 1980 for chronic truancy from work; his job was saved only by the unexpected departure of a supervisor who left the department shorthanded. Throughout the next four months, Schucker’s work attendance remained spotty; his final termination on May 16 followed closely on the heels of a five hour absence from the plant on the afternoon of May 13. The Board has not, in our view, shown that Schucker’s union activities played any part in the decision to terminate him. As we stated in Neptune Water Meter Co. v. NLRB, 551 F.2d 568, 570 (4th Cir.1977):
The rule is that if the employee has behaved badly it won’t help him to adhere to the Union, and his employer’s anti-union animus is not of controlling importance.
Accordingly, we deny enforcement of that part of the NLRB’s order reinstating Schucker.
V.
In light of the foregoing review, we grant enforcement of the Board’s order reinstating Lynn Brown, Frank Ferrell, Fay Gray, and Grace Harry, but deny enforcement as to Richard Sehucker.
ENFORCEMENT GRANTED IN PART AND DENIED IN PART.
. Section 8(a)(1) makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title.” 29 U.S.C. § 158(a)(1) (1976). Section 157 provides in part that “employees shall have the right to self-organization, to form, join or assist labor organizations ... and to engage in other concerted activities for ... other mutual aid or protection....” 29 U.S.C. § 157 (1976).
Section 8(a)(3) makes it an unfair labor practice for an employer “to encourage or discourage membership in any labor organization” by “discrimination in regard to hire or tenure of employment or any term or condition of employment” 29 U.S.C. § 158(a)(3) (1976).
. Mary Brown is the mother-in-law of Lynn Brown. Mary Brown was laid off on May 13, 1980, along with her daughter-in-law, Frank Ferrell, Fay Gray, and Grace Harry. Mary Brown was the only supervisor to be terminated and her dismissal is not at issue in this enforcement proceeding since supervisors are not covered by the National Labor Relations Act. Mary Brown did testify against the Company in the hearing below.
. The Company somewhat recovered its position in the ensuing months.
. According to Bryan, Mary Brown was laid off because Bryan and Bosnick felt other supervisors less highly paid could cover her duties. Ferrell and Lynn Brown performed functions that could be accomplished by lower paid workers. Gray and Harry each performed one specialized function which it was felt could be handled by more versatile employees.
. ICA’s argument that it could not be assigned the burden of proving it would have discharged the employees even if they had not sided with the union is nullified by the recent pronouncement in NLRB v. Transportation Management Corp., - U.S. -, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983). In Transportation Management, the Supreme Court ended two years of controversy engendered by the case of NLRB v. Wright Une, 662 F.2d 899 (1st Cir. 1981), cert. denied, 455 U.S. 989, 102 S.Ct. 1612, 71 L.Ed.2d 848 (1982), ruling unanimously that once General Counsel proves by a preponderance of the evidence that a discharge was based in whole or in part on anti-union animus, the employer will be held to have violated section 8(a)(1) and (3) of the National Labor Relations Act unless the employer can prove as an affirmative defense by a preponderance of the evidence that the worker would have been fired even if he or she had not been involved with the union. This holding is consistent with our long-standing rule, discussed in the text infra, that to establish a violation of section 8(a)(3), General Counsel has the burden “throughout to show that a discriminatory motive retaliative against the exercise of protected activity was a factor for the discharge.” NLRB v. Kiawah Island Co., Ltd., 650 F.2d 485, 490 (4th Cir. 1981). In this case, substantial evidence indicates that the General Counsel met its burden of proving that anti-union animus was a factor in the dismissals and that ICA failed to show the same action would have taken place even in the absence of the protected activity.
. We acknowledge our precedents applying different language to the inquiry into motive. We have often held that where the employer asserts proper business justification for employee layoffs, the Board must find “an affirmative and persuasive reason why the employer rejected the good cause and chose a bad one and ... present a substantial basis of believable evidence pointing toward the unlawful one.” American Manufacturing Association, Inc. v. NLRB, 594 F.2d 30, 36 (4th Cir.1979), quoting Firestone Tire & Rubber Co. v. NLRB, 583 F.2d 1268, 1273 (4th Cir.1978). See also McLean Trucking Co. v. NLRB, 626 F.2d 1168, 1169-70 (4th Cir.1980); NLRB v. Appletree Chevrolet, Inc., 608 F.2d 988, 993 (4th Cir.1979). Admittedly, some superficial discrepancy appears between this analysis and our long-standing rule that anti-union animus need only be shown to have been a factor in employee layoffs. But as we wrote in Kiawah Island,
[a]ny apparent tension between the Neptune language and that of Appletree is eased when the basic proof structure under the NLRA is considered. An appellate court must affirm the Board-determined unfair labor practices when they are supported by substantial evidence. ... In determining whether there is substantial evidence to support a Board finding that bad motive was a “factor” in an employment discharge, we, of course, must look to all the evidence, including the employer’s evidence of proper motivation. Should the Board have failed to identify and weigh the latter evidence, it will have failed its mission as a fact-finder.
650 F.2d at 491 (citations omitted). We note also that the language of American Manufacturing Association and Appletree, while useful in the evaluation of employer justifications that smack of sham or pretext, is less apt where the evidence genuinely appears to make out the co-existence of a lawful motivation and an unlawful one. See Neptune Water Meter Co., 551 F.2d at 569. We decline to consider the impact of NLRB v. Transportation Management, - U.S. --, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983), see n. 5 supra, on American Manufacturing Association and Appletree.
. The Company argues that events occurring more than six months prior to the filing of the employees’ complaint with the NLRB in 1980 cannot be considered in assessing ICA’s knowledge of union sympathizers. See 29 U.S.C. § 160(b) (1974). We reject this position. In Local 1424, IAM v. NLRB, 362 U.S. 411, 416-417, 80 S.Ct. 822, 826-827, 4 L.Ed.2d 832 (1960), the Supreme Court held that “where the occurrences within the six-month limitations period in and of themselves may constitute, as a substantive matter, unfair labor practices ..., earlier events may be utilized to shed light on the true character of matters occurring within the limitations period.” Here, the dismissals came well within the six-month limitations period under circumstances suggesting a violation of section 8(a)(3). The events of 1979 were admissible to shed light on ICA’s motive for discharging the five employees. See Darlington Manufacturing Company v. NLRB, 397 F.2d 760, 769 (4th Cir. 1968), cert. denied, 393 U.S. 1023, 89 S.Ct. 632, 21 L.Ed.2d 567 (1969).
. The Company does not dispute that it had knowledge of Ferrell’s union activity, since Paul Bosnick, Jr. told his father that Ferrell had helped obtain union authorization cards in 1979.
. However, Lynn Brown did not vote for the union in 1979.
. The pertinent parts of the letter, which was acknowledged by Bryan, are as follows:
It became obvious to Mr. Bryan after the meeting on February 25 [with Gestetner] that the Company faced a drastic cutback in production unless something was done to increase sales. However, he delayed laying off anyone or taking any other action until he had an opportunity to determine if additional orders would be obtained elsewhere....
[Before] entering the hospital on the following Monday [after his return from South America], it was necessary for Mr. Bryan to decide between May 7 and May 9 on the size of the layoff and to determine who would be laid off....
[After his return from South America,] Mr. Bryan took the only action open to him, deciding between May 7 and May 9 on the number and identity of employees to be laid off.
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:
|
sc_casesource
|
028
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state.
STEWART, DIRECTOR, ARIZONA DEPARTMENT OF CORRECTIONS v. SMITH
No. 01-339.
Decided June 28, 2002
Per Curiam.
At issue in this case is whether, when an Arizona Superior Court denied respondent’s successive petition for state post-conviction relief because respondent had failed to comply with Arizona Rule of Criminal Procedure 32.2(a)(3) (West 2000), the state court’s ruling was independent of federal law. The Court of Appeals for the Ninth Circuit thought not. We granted certiorari and certified to the Arizona Supreme Court a question concerning the proper interpretation of Rule 32.2(a)(3). We have received a response and now reverse the Ninth Circuit’s decision.
I
Respondent, Robert Douglas Smith, was convicted in Arizona in 1982 of first-degree murder, kidnaping, and sexual assault. He was sentenced to death on the murder count and to consecutive 21-year prison terms on the other counts. After a series of unsuccessful petitions for state postconviction relief, respondent filed a federal petition for a writ of habeas corpus under 28 U. S. C. §§2241 and 2254 in the United States District Court for the District of Arizona. The petition alleged, among other things, that respondent’s Sixth Amendment right to counsel had been violated because his trial counsel had provided ineffective assistance during the sentencing phase of his trial.
Respondent had previously brought this ineffective-assistance claim in a 1995 petition for state postconviction relief pursuant to Ariz. Rule Crim. Proc. 32. The Pima County Superior Court denied the claim, finding it waived under Rule 32.2(a)(3) because respondent had failed to raise it in two previous Rule 32 petitions. The state court rejected respondent’s contention that his procedural default was excused because his appellate and Rule 32 attorneys suffered from a conflict of interest between their responsibility toward respondent and their allegiance to the Public Defender’s office, of which respondent’s trial counsel was also a member.
The District Court relied on the Pima County Superior Court’s procedural ruling on respondent’s ineffective-assistance-of-trial-counsel claim to bar federal habeas relief. Like the state court, the District Court rejected respondent’s argument that his appellate and Rule 32 counsel suffered from a conflict of interest which excused his procedural default. The Court of Appeals for the Ninth Circuit reversed, finding that although the state court’s procedural default ruling was regularly followed and therefore adequate, see 241 F. 3d 1191, 1195, n. 2 (2001) (citing Johnson v. Mississippi, 486 U. S. 578, 587 (1988)), the ruling required consideration of the merits of respondent’s claim and was therefore not independent of federal law, see 241 F. 3d, at 1196-1197. Rule 32.2(a)(3) applies different standards for waiver depending on whether the claim asserted in a Rule 32 petition is of “sufficient constitutional magnitude.” If it is, the rule requires that the waiver be “knowin[g], voluntar[y] and intelligent],” not merely omitted from previous petitions. Ariz. Rule Crim. Proc. 32.2(a)(3), comment (West 2000). The Ninth Circuit opined that, at the time the state court ruled on respondent’s ineffective-assistance claim, the determination of whether a claim is of sufficient magnitude required consideration of the merits of the claim. See 241 F. 3d, at 1197 (citing State v. French, 198 Ariz. 119, 121, 7 P. 3d 128, 130 (App. 2000); State v. Curtis, 185 Ariz. 112, 115, 912 P. 2d 1341, 1344 (App. 1995)). The Ninth Circuit concluded that, under Ake v. Oklahoma, 470 U. S. 68, 75 (1985), the state court’s ruling did not bar federal review of the merits of respondent’s claim. See 241 F. 3d, at 1196— 1197. We granted certiorari to review the Ninth Circuit’s decision. 534 U. S. 157 (2001) (per curiam).
II
Because we were uncertain about the proper interpretation of Rule 32.2(a)(3), we certified the following question to the Arizona Supreme Court:
“At the time of respondent’s third Rule 32 petition in 1995, did the question whether an asserted claim was of ‘sufficient constitutional magnitude’ to require a knowing, voluntary, and intelligent waiver for purposes of Rule 32.2(a)(3), see Ariz. Rule Crim. Proc. 32.2(a)(3), comment (West 2000), depend upon the merits of the particular claim, see State v. French, 198 Ariz. 119, 121— 122, 7 P. 3d 128, 130-131 (App. 2000); State v. Curtis, 185 Ariz. App. 112, 115, 912 P. 2d 1341, 1344 (1995), or merely upon the particular right alleged to have been violated, see State v. Espinosa, 200 Ariz. 503, 505, 29 P. 3d 278, 280 (App. 2001)?” 534 U. S., at 159.
We received the following reply:
“We hold that at the time of respondent’s third Rule 32 petition in 1995, the question whether an asserted claim was of ‘sufficient constitutional magnitude’ to require a knowing, voluntary and intelligent waiver for purposes of Rule 32.2(a)(3), see Comment to 32.2(a)(3), depended not upon the merits of the particular claim, but rather merely upon the particular right alleged to have been violated.” Stewart v. Smith, 202 Ariz. 446, 447, 46 P. 3d 1067, 1068 (2002) (en banc).
The Arizona Supreme Court’s reply makes clear that Rule 32.2(a)(3) does not require courts to evaluate the merits of a particular claim, but only to categorize the claim. According to the Arizona Supreme Court, courts must evaluate whether “at its core, [a] claim implicates a significant right that requires a knowing, voluntary, and intelligent waiver.” Id., at 450, 46 P. 3d, at 1071. Courts need not decide the merits of the claim, i. e., whether the right was actually violated. They need only identify what type of claim it is, and there is no indication that this identification is based on an interpretation of what federal law requires. See Delaware v. Prouse, 440 U. S. 648, 652-653 (1979).
Our cases make clear that “when resolution of [a] state procedural law question depends on a federal constitutional ruling, the state-law prong of the court’s holding is not independent of federal law, and our [direct review] jurisdiction is not precluded.” Ake, supra, at 75. Even assuming that the same standard governs the scope of a district court’s power to grant federal habeas relief as governs this Court’s jurisdiction to review a state-court judgment on direct review, see Coleman v. Thompson, 501 U. S. 722, 729-732, 741 (1991), Rule 32.2(a)(3) determinations are independent of federal law because they do not depend upon a federal constitutional ruling on the merits. The District Court properly refused to review respondent’s ineffective-assistance-of-trial-counsel claim. The Ninth Circuit erred in holding otherwise.
Even though Rule 32.2(a)(3) does not require a federal constitutional ruling on the merits, if the state court’s decision rested primarily on a ruling on the merits nevertheless, its decision would not be independent of federal law. The Ninth Circuit interpreted the state court’s order rejecting respondent’s ineffective-assistance-of-trial-counsel claim as possibly resting on a ruling on the merits of the claim. The record, however, reveals no such ruling.
The state court did not even reach the merits of respondent’s ineffective-assistance-of-trial-counsel claim, finding it waived because respondent had failed to raise it in prior petitions for postconviction relief. As an excuse, respondent asserted that his prior appellate and Rule 32 counsel, who were members of the Arizona Public Defender’s office, had refused to file the claim because his trial counsel was also a member of the Public Defender’s office. The state court did not find this excuse sufficient to overcome respondent’s procedural default. See App. H to Pet. for Cert. The state court explained that, because deputies in the Public Defender’s office represent their clients and not their office, respondent’s appellate lawyers would never have allowed “a colorable claim for ineffective assistance of counsel” to go unstated. Id., at 2. The Ninth Circuit read the reference to a “colorable claim” as a conclusion that respondent’s claim that his trial counsel had rendered ineffective assistance lacked merit, that is, as a comment on the merits of respondent’s underlying claim. 241 F. 3d, at 1197. In context, however, it is clear that the reference to “colorable claim” was used only as a rhetorical device for emphasizing the lack of any conflict of interest that might excuse respondent’s waiver.
Because the state court’s determination that respondent waived his ineffective-assistance-of-counsel claim under Ariz. Rule Crim. Proc. 32.2(a)(3) did not require an examination of the merits of that claim, it was independent of federal law. We voice no opinion on whether respondent has provided valid cause to overcome his procedural default in state court. The Ninth Circuit’s judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.
So ordered.
Question: What is the court whose decision the Supreme Court reviewed?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
006. U.S. Court of Veterans Appeals
007. U.S. Customs Court
008. U.S. Court of Appeals, Federal Circuit
009. U.S. Tax Court
010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
012. U.S. Consular Courts
013. U.S. Commerce Court
014. Territorial Supreme Court
015. Territorial Appellate Court
016. Territorial Trial Court
017. Emergency Court of Appeals
018. Supreme Court of the District of Columbia
019. Bankruptcy Court
020. U.S. Court of Appeals, First Circuit
021. U.S. Court of Appeals, Second Circuit
022. U.S. Court of Appeals, Third Circuit
023. U.S. Court of Appeals, Fourth Circuit
024. U.S. Court of Appeals, Fifth Circuit
025. U.S. Court of Appeals, Sixth Circuit
026. U.S. Court of Appeals, Seventh Circuit
027. U.S. Court of Appeals, Eighth Circuit
028. U.S. Court of Appeals, Ninth Circuit
029. U.S. Court of Appeals, Tenth Circuit
030. U.S. Court of Appeals, Eleventh Circuit
031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction)
032. Alabama Middle U.S. District Court
033. Alabama Northern U.S. District Court
034. Alabama Southern U.S. District Court
035. Alaska U.S. District Court
036. Arizona U.S. District Court
037. Arkansas Eastern U.S. District Court
038. Arkansas Western U.S. District Court
039. California Central U.S. District Court
040. California Eastern U.S. District Court
041. California Northern U.S. District Court
042. California Southern U.S. District Court
043. Colorado U.S. District Court
044. Connecticut U.S. District Court
045. Delaware U.S. District Court
046. District Of Columbia U.S. District Court
047. Florida Middle U.S. District Court
048. Florida Northern U.S. District Court
049. Florida Southern U.S. District Court
050. Georgia Middle U.S. District Court
051. Georgia Northern U.S. District Court
052. Georgia Southern U.S. District Court
053. Guam U.S. District Court
054. Hawaii U.S. District Court
055. Idaho U.S. District Court
056. Illinois Central U.S. District Court
057. Illinois Northern U.S. District Court
058. Illinois Southern U.S. District Court
059. Indiana Northern U.S. District Court
060. Indiana Southern U.S. District Court
061. Iowa Northern U.S. District Court
062. Iowa Southern U.S. District Court
063. Kansas U.S. District Court
064. Kentucky Eastern U.S. District Court
065. Kentucky Western U.S. District Court
066. Louisiana Eastern U.S. District Court
067. Louisiana Middle U.S. District Court
068. Louisiana Western U.S. District Court
069. Maine U.S. District Court
070. Maryland U.S. District Court
071. Massachusetts U.S. District Court
072. Michigan Eastern U.S. District Court
073. Michigan Western U.S. District Court
074. Minnesota U.S. District Court
075. Mississippi Northern U.S. District Court
076. Mississippi Southern U.S. District Court
077. Missouri Eastern U.S. District Court
078. Missouri Western U.S. District Court
079. Montana U.S. District Court
080. Nebraska U.S. District Court
081. Nevada U.S. District Court
082. New Hampshire U.S. District Court
083. New Jersey U.S. District Court
084. New Mexico U.S. District Court
085. New York Eastern U.S. District Court
086. New York Northern U.S. District Court
087. New York Southern U.S. District Court
088. New York Western U.S. District Court
089. North Carolina Eastern U.S. District Court
090. North Carolina Middle U.S. District Court
091. North Carolina Western U.S. District Court
092. North Dakota U.S. District Court
093. Northern Mariana Islands U.S. District Court
094. Ohio Northern U.S. District Court
095. Ohio Southern U.S. District Court
096. Oklahoma Eastern U.S. District Court
097. Oklahoma Northern U.S. District Court
098. Oklahoma Western U.S. District Court
099. Oregon U.S. District Court
100. Pennsylvania Eastern U.S. District Court
101. Pennsylvania Middle U.S. District Court
102. Pennsylvania Western U.S. District Court
103. Puerto Rico U.S. District Court
104. Rhode Island U.S. District Court
105. South Carolina U.S. District Court
106. South Dakota U.S. District Court
107. Tennessee Eastern U.S. District Court
108. Tennessee Middle U.S. District Court
109. Tennessee Western U.S. District Court
110. Texas Eastern U.S. District Court
111. Texas Northern U.S. District Court
112. Texas Southern U.S. District Court
113. Texas Western U.S. District Court
114. Utah U.S. District Court
115. Vermont U.S. District Court
116. Virgin Islands U.S. District Court
117. Virginia Eastern U.S. District Court
118. Virginia Western U.S. District Court
119. Washington Eastern U.S. District Court
120. Washington Western U.S. District Court
121. West Virginia Northern U.S. District Court
122. West Virginia Southern U.S. District Court
123. Wisconsin Eastern U.S. District Court
124. Wisconsin Western U.S. District Court
125. Wyoming U.S. District Court
126. Louisiana U.S. District Court
127. Washington U.S. District Court
128. West Virginia U.S. District Court
129. Illinois Eastern U.S. District Court
130. South Carolina Eastern U.S. District Court
131. South Carolina Western U.S. District Court
132. Alabama U.S. District Court
133. U.S. District Court for the Canal Zone
134. Georgia U.S. District Court
135. Illinois U.S. District Court
136. Indiana U.S. District Court
137. Iowa U.S. District Court
138. Michigan U.S. District Court
139. Mississippi U.S. District Court
140. Missouri U.S. District Court
141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court)
142. New Jersey Western U.S. District Court (West Jersey U.S. District Court)
143. New York U.S. District Court
144. North Carolina U.S. District Court
145. Ohio U.S. District Court
146. Pennsylvania U.S. District Court
147. Tennessee U.S. District Court
148. Texas U.S. District Court
149. Virginia U.S. District Court
150. Norfolk U.S. District Court
151. Wisconsin U.S. District Court
152. Kentucky U.S. Distrcrict Court
153. New Jersey U.S. District Court
154. California U.S. District Court
155. Florida U.S. District Court
156. Arkansas U.S. District Court
157. District of Orleans U.S. District Court
158. State Supreme Court
159. State Appellate Court
160. State Trial Court
161. Eastern Circuit (of the United States)
162. Middle Circuit (of the United States)
163. Southern Circuit (of the United States)
164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas
166. California U.S. Circuit for (all) District(s) of California
167. Connecticut U.S. Circuit for the District of Connecticut
168. Delaware U.S. Circuit for the District of Delaware
169. Florida U.S. Circuit for (all) District(s) of Florida
170. Georgia U.S. Circuit for (all) District(s) of Georgia
171. Illinois U.S. Circuit for (all) District(s) of Illinois
172. Indiana U.S. Circuit for (all) District(s) of Indiana
173. Iowa U.S. Circuit for (all) District(s) of Iowa
174. Kansas U.S. Circuit for the District of Kansas
175. Kentucky U.S. Circuit for (all) District(s) of Kentucky
176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
177. Maine U.S. Circuit for the District of Maine
178. Maryland U.S. Circuit for the District of Maryland
179. Massachusetts U.S. Circuit for the District of Massachusetts
180. Michigan U.S. Circuit for (all) District(s) of Michigan
181. Minnesota U.S. Circuit for the District of Minnesota
182. Mississippi U.S. Circuit for (all) District(s) of Mississippi
183. Missouri U.S. Circuit for (all) District(s) of Missouri
184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
Answer:
|
sc_issue_2
|
12
|
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.
JORDAN, DISTRICT DIRECTOR OF IMMIGRATION & NATURALIZATION, v. De GEORGE.
No. 348.
Argued March 5, 1951.
Decided May 7, 1951.
John F. Davis argued the cause for petitioner. With him on the brief were Solicitor General Perlman, Assistant Attorney General Mclnerney, L. Paul Winings and Charles Gordon.
Thomas F. Dolan argued the cause for respondent. With him on the brief was Sherlock J. Hartnett.
Mr. Chief Justice Vinson
delivered the opinion of the Court.
This case presents only one question: whether conspiracy to defraud the United States of taxes on distilled spirits is a “crime involving moral turpitude” within the meaning of § 19 (a) of the Immigration Act of 1917.
Respondent, a native and citizen of Italy, has lived continuously in the United States since he entered this country in 1921. In 1937, respondent was indicted under 18 U. S. C. § 88 for conspiring with seven other defendants to violate twelve sections of the Internal Revenue Code. The indictment specifically charged him with possessing whiskey and alcohol “with intent to sell it in fraud of law and evade the tax thereon.” He was further accused of removing and concealing liquor “with intent to defraud the United States of the tax thereon.” After pleading guilty, respondent was sentenced to imprisonment in a federal penitentiary for a term of one year and one day.
Respondent served his sentence under this conviction, and was released from custody. Less than a year later, he returned to his former activities and in December 1939, he was indicted again with eight other defendants for violating the same federal statutes. He was charged with conspiring to “unlawfully, knowingly, and willfully defraud the United States of tax on distilled spirits.” After being tried and found guilty in 1941, he was sentenced to imprisonment for two years.
While serving his sentence under this second conviction, deportation proceedings were commenced against the respondent under § 19 (a) of the Immigration Act which provides:
. . any alien . . . who is hereafter sentenced more than once to such a term of imprisonment [one year or more] because of conviction in this country of any crime involving moral turpitude, committed at any time after entry . . . shall, upon the warrant of the Attornéy General, be taken into custody and deported. ...”
After continued hearings and consideration of the case by the Commissioner of Immigration and Naturalization and by the Board of Immigration Appeals, respondent was ordered to be deported in January 1946, on the ground that he had twice been convicted and sentenced to terms of one year or more of crimes involving moral turpitude. Deportation was deferred from time to time at respondent’s request until 1949, when the District Director of Immigration and Naturalization moved to execute the warrant of deportation.
Respondent then sought habeas corpus in the District Court, claiming that the deportation order was invalid because the crimes of which he had been convicted did not involve moral turpitude. The District Court held a hearing, and dismissed the petition. The Court of Appeals reversed the order of the District Court and ordered that the respondent be discharged. 183 F. 2d 768 (1950). The Court of Appeals stated that “crimes involving moral turpitude,” as those words were used in the Immigration Act, “were intended to include only crimes of violence, or crimes which are commonly thought of as involving baseness, vileness or depravity. Such a classification does not include the crime of evading the payment of tax on liquor, nor of conspiring to evade that tax.” 183 F. 2d at 772. We granted certiorari to review the decision, 340 U. S. 890 (1950), as conflicting with decisions of the courts of appeals in other circuits.
This Court has interpreted the provision of the statute before us “to authorize deportation only where an alien having committed a crime involving moral turpitude and having been convicted and sentenced, once again commits a crime of that nature and is convicted and sentenced for it.” Fong Haw Tan v. Phelan, 333 U. S. 6, 9-10 (1948). Respondent has on two separate occasions been convicted of the same crime, conspiracy to defraud the United States of taxes on distilled spirits. Therefore, our inquiry in this case is narrowed to determining whether this particular offense involves moral turpitude. Whether or not certain other offenses involve moral turpitude is irrelevant and beside the point.
The term “moral turpitude” has deep roots in the law. The presence of moral turpitude has been used as a test in a variety of situations, including legislation governing the disbarment of attorneys and the revocation of medical licenses. Moral turpitude also has found judicial employment as a criterion in disqualifying and impeaching witnesses, in determining the measure of contribution between joint tort-feasors, and in deciding whether certain language is slanderous.
In deciding the case before the Court, we look to the manner in which the term “moral turpitude” has been applied by judicial decision. Without exception, federal and state courts have held that a crime in which fraud is an ingredient involves moral turpitude. In the construction of the specific section of the Statute before us, a court of appeals has stated that fraud has ordinarily been the test to determine whether crimes not of the gravest character involve moral turpitude. United States ex rel. Berlandi v. Reimer, 113 F. 2d 429 (1940).
In every deportation case where fraud has been proved, federal courts have held that the crime in issue involved moral turpitude. This has been true in a variety of situations involving fraudulent conduct: obtaining goods under fraudulent pretenses, Bermann v. Reimer, 123 F. 2d 331 (1941); conspiracy to defraud by deceit and falsehood, Mercer v. Lence, 96 F. 2d 122 (1938); forgery with intent to defraud, United States ex rel. Popoff v. Reimer, 79 F. 2d 513 (1935); using the mails to defraud, Ponzi v. Ward, 7 F. Supp. 736 (1934); execution of chattel mortgage with intent to defraud, United States ex rel. Millard v. Tuttle, 46 F. 2d 342 (1930); concealing assets in bankruptcy, United States ex rel. Medich v. Burmaster, 24 F. 2d 57 (1928); issuing checks with intent to defraud, United States ex rel. Portada v. Day, 16 F. 2d 328 (1926). In the state courts, crimes involving fraud have universally been held to involve moral turpitude.
Moreover, there have been two other decisions by courts of appeals prior to the decision now under review on the question of whether the particular offense before us in this case involves moral turpitude within the meaning of § 19 (a) of the Immigration Act. In United States ex rel. Berlandi v. Reimer, 113 F. 2d 429 (1940), and Maita v. Haff, 116 F. 2d 337 (1940), courts of appeals specifically decided that the crime of conspiracy to violate the internal revenue laws by possessing and concealing distilled spirits with intent to defraud the United States of taxes involves moral turpitude. Furthermore, in Guarneri v. Kessler, 98 F. 2d 580 (1938), a court of appeals held that the crime of smuggling alcohol into the United States with intent to defraud the United States involves moral turpitude.
In view of these decisions, it can be concluded that fraud has consistently been regarded as such a contaminating component in any crime that American courts have, without exception, included such crimes within the scope of moral turpitude. It is therefore clear, under an unbroken course of judicial decisions, that the crime of conspiring to defraud the United States is a “crime involving moral turpitude.”
But it has been suggested that the phrase “crime involving moral turpitude” lacks sufficiently definite standards to justify this deportation proceeding and that the statute before us is therefore unconstitutional for vagueness. Under this view, no crime, however grave, could be regarded as falling within the meaning of the term “moral turpitude.” The question of vagueness was not raised by the parties nor argued before this Court.
It is significant that the phrase has been part of the immigration laws for more than sixty years. As discussed above, the phrase “crime involving moral turpitude” has also been used for many years as a criterion in a variety of other statutes. No case has been decided holding that the phrase is vague, nor are we able to find any trace of judicial expression which hints that the phrase is so meaningless as to be a deprivation of due process.
Furthermore, this Court has itself construed the phrase “crime involving moral turpitude.” In United States ex rel. Volpe v. Smith, Director of Immigration, 289 U. S. 422 (1933), the Court interpreted the same section of the Immigration Statute now before us. There, an alien had been convicted of counterfeiting government obligations with intent to defraud, and one question of the case was whether the crime of counterfeiting involved moral turpitude. This question was raised by the parties and discussed in the briefs. The Court treated the question without hesitation, stating that the crime of counterfeiting obligations of the United States was “plainly a crime involving moral turpitude.” 289 U. S. at 423. (Emphasis supplied.)
The essential purpose of the “void for vagueness” doctrine is to warn individuals of the criminal consequences of their conduct. Williams v. United States, 341 U. S. 97, decided April 23, 1951; Screws v. United States, 325 U. S. 91, 103-104 (1945). This Court has repeatedly stated that criminal statutes which fail to give due notice that an act has been made criminal before it is done are unconstitutional deprivations of due process of law. Lanzetta v. New Jersey, 306 U. S. 451 (1939); United States v. Cohen Grocery Co., 255 U. S. 81 (1921). It should be emphasized that this statute does not declare certain conduct to be criminal. Its function is to apprise aliens of the consequences which follow after conviction and sentence of the requisite two crimes.
Despite the fact that this is not a criminal statute, we shall nevertheless examine the application of the vagueness doctrine to this case. We do this in view of the grave nature of deportation. The Court has stated that “deportation is a drastic measure and at times the equivalent of banishment or exile .... It is the forfeiture for misconduct of a residence in this country. Such a forfeiture is a penalty.” Fong Haw Tan v. Phelan, supra, at 10. We shall, therefore, test this statute under the established criteria of the “void for vagueness” doctrine.
We have several times held that difficulty in determining whether certain marginal offenses are within the meaning of the language under attack as vague does not automatically render a statute unconstitutional for indefiniteness. United States v. Wurzbach, 280 U. S. 396, 399 (1930). Impossible standards of specificity are not required. United States v. Petrillo, 332 U. S. 1 (1947). The test is whether the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. Connally v. General Construction Co., 269 U. S. 385 (1926).
We conclude that this test has been satisfied here. Whatever else the phrase “crime involving moral turpitude” may mean in peripheral cases, the decided cases make it plain that crimes in which fraud was an ingredient have always been regarded as involving moral turpitude. We have recently stated that doubt as to the adequacy of a standard in less obvious cases does not render that standard unconstitutional for vagueness. See Williams v. United States, supra. But there is no such doubt present in this case. Fraud is the touchstone by which this case should be judged. The phrase “crime involving moral turpitude” has without exception been construed to embrace fraudulent conduct. We therefore decide that Congress sufficiently forewarned respondent that the statutory consequence of twice conspiring to defraud the United States is deportation.
Reversed.
39 Stat. 889, as amended, 8 U. S. C. § 155 (a).
Less than three years after entering the United States, respondent was convicted for transporting liquor and sentenced to a term in the reformatory. In 1931, he was convicted and fined for transferring license plates.
35 Stat. 1096, now 18 U. S. C. § 371:
“If two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be fined not more than $10,000, or imprisoned not more than two years, or both.”
These charges were based upon 26 U. S. C. (1934 ed.) §§ 1155 (f), 1440 and 1441.
The record establishes that respondent was a large-scale violator engaged in a sizable business. The second indictment alone charged him with possessing 4,675 gallons of alcohol and an undetermined quantity of distilled spirits. At the rate of $2.25 a gallon then in effect, the tax on the alcohol alone would have been over $10,000.
39 Stat. 889, as amended, 8 U. S. C. § 155 (a).
Section 19(a) further provides: . . The provision of this section respecting the deportation of aliens convicted of a crime involving moral turpitude shall not apply to one who has been pardoned, nor shall such deportation be made or directed if the court, or judge thereof, sentencing such alien for such crime shall, at the time of imposing judgment or passing sentence or within thirty days thereafter, due notice having first been given to representatives of the State, make a recommendation to the Attorney General that such alien shall not be deported in pursuance of this chapter . . . .” 39 Stat. 889, as amended, 8 U. S. C. § 155 (a). The record does not indicate that respondent has been pardoned, nor that the sentencing judge recommended that he not be deported, nor that respondent requested that such recommendation be made.
In re Kirby, 10 S. D. 322, 73 N. W. 92, 39 L. R. A. 856 (1897). Bartos v. United States District Court, 19 F. 2d 722 (1927); see Bradway, Moral Turpitude as the Criterion of Offenses that Justify Disbarment, 24 Cal. L. Rev. 9-27.
Fort v. Brinkley, 87 Ark. 400, 404, 112 S. W. 1084, 1085 (1908). “It seems clearly dedueible from the above cited authorities that the words ‘moral turpitude’ had a positive and fixed meaning at common law . . . .”
3 Wigmore, Evidence (3d ed.), 540; cases are collected at 40 A. L. R. 1049, and 71 A. L. R. 219.
Fidelity & Cas. Co. v. Christenson, 183 Minn. 182, 236 N. W. 618 (1931).
Baxter v. Mohr, 37 Misc. 833, 76 N. Y. S. 982 (1902).
State decisions have held that the following crimes involve moral turpitude: passing a check with intent to defraud, Bancroft v. Board of Governors of Registered Dentists of Oklahoma, 202 Okla. 108, 210 P. 2d 666 (1949); using the mails to defraud, Neibling v. Terry, 352 Mo. 396, 177 S. W. 2d 502 (1944), In re Comyns, 132 Wash. 391, 232 P. 269 (1925); obtaining money and property by false and fraudulent pretenses, In re Needham, 364 Ill. 65, 4 N. E. 2d 19 (1936); possessing counterfeit money with intent to defraud, Fort v. Brinkley, 87 Ark. 400, 112 S. W. 1084 (1908). One state court has specifically held that the wilful evasion of federal income taxes constitutes moral turpitude. Louisiana State Bar Assn. v. Steiner, 204 La. 1073, 16 So. 2d 843 (1944).
The term “moral turpitude” first appeared in the Act of March 3, 1891, 26 Stat. 1084, which directed the exclusion of “persons who have been convicted of a felony or other infamous crime or misdemeanor involving moral turpitude.” Similar language was reenacted in the Statutes of 1903 and 1907. § 2, Act of March 3, 1903, 32 Stat. 1213; § 2, Act of Feb. 20, 1907, 34 Stat. 898. It has been suggested that the fact that this phrase has been used in the Immigration Laws for over sixty years has no weight in upholding its constitutionality. Of course, the mere existence of a statute for over sixty years does not provide immunity from constitutional attack. We have recently held an equally ancient statute unconstitutional for vagueness. Winters v. New York, 333 U. S. 507 (1948). There, a statute, which employed vague terminology wholly lacking in common law background or interpretation, was aimed at limiting rights of free speech. Even in the Winters case, however, several dissenting members of this Court were of the view that the venerability of the statute was an element to be considered in deciding the question of vagueness.
The phrase “crime involving moral turpitude” presents no greater uncertainty or difficulty than language found in many other statutes repeatedly sanctioned by the Court. The Sherman Act provides the most obvious example, “restraint of trade” as construed to mean “unreasonable or undue restraint of trade,” Nash v. United States, 229 U. S. 373 (1913). Compare other statutory language which has survived attack under the vagueness doctrine in this Court: “in excess of the number of employees needed by such licensee to perform actual services,” United States v. Petrillo, 332 U. S. 1 (1947); “any offensive, derisive or annoying word,” Chaplinsky v. New Hampshire, 315 U. S. 568 (1942); “connected with or related to the national defense,” Gorin v. United States, 312 U. S. 19 (1941); “psychopathic personality,” Minnesota v. Probate Court, 309 U. S. 270 (1940); “wilfully overvalues any security,” Kay v. United States, 303 U. S. 1 (1938); “fair and open competition,” Old Dearborn Co. v. Seagram Corp., 299 U. S. 183 (1936); “reasonable variations shall be permitted,” United States v. Shreveport Grain & Elevator Co., 287 U. S. 77 (1932); “unreasonable waste of natural gas,” Bandini Petro leum Co. v. Superior Court, 284 U. S. 8 (1931); “political purposes," United States v. Wurzbach, 280 U. S. 396 (1930); “range usually occupied by any cattle grower,” Omaechevarria v. Idaho, 246 U. S. 343 (1918).
Question: What is the issue of the decision?
01. voting
02. Voting Rights Act of 1965, plus amendments
03. ballot access (of candidates and political parties)
04. desegregation (other than as pertains to school desegregation, employment discrimination, and affirmative action)
05. desegregation, schools
06. employment discrimination: on basis of race, age, religion, illegitimacy, national origin, or working conditions.
07. affirmative action
08. slavery or indenture
09. sit-in demonstrations (protests against racial discrimination in places of public accommodation)
10. reapportionment: other than plans governed by the Voting Rights Act
11. debtors' rights
12. deportation (cf. immigration and naturalization)
13. employability of aliens (cf. immigration and naturalization)
14. sex discrimination (excluding sex discrimination in employment)
15. sex discrimination in employment (cf. sex discrimination)
16. Indians (other than pertains to state jurisdiction over)
17. Indians, state jurisdiction over
18. juveniles (cf. rights of illegitimates)
19. poverty law, constitutional
20. poverty law, statutory: welfare benefits, typically under some Social Security Act provision.
21. illegitimates, rights of (cf. juveniles): typically inheritance and survivor's benefits, and paternity suits
22. handicapped, rights of: under Rehabilitation, Americans with Disabilities Act, and related statutes
23. residency requirements: durational, plus discrimination against nonresidents
24. military: draftee, or person subject to induction
25. military: active duty
26. military: veteran
27. immigration and naturalization: permanent residence
28. immigration and naturalization: citizenship
29. immigration and naturalization: loss of citizenship, denaturalization
30. immigration and naturalization: access to public education
31. immigration and naturalization: welfare benefits
32. immigration and naturalization: miscellaneous
33. indigents: appointment of counsel (cf. right to counsel)
34. indigents: inadequate representation by counsel (cf. right to counsel)
35. indigents: payment of fine
36. indigents: costs or filing fees
37. indigents: U.S. Supreme Court docketing fee
38. indigents: transcript
39. indigents: assistance of psychiatrist
40. indigents: miscellaneous
41. liability, civil rights acts (cf. liability, governmental and liability, nongovernmental; cruel and unusual punishment, non-death penalty)
42. miscellaneous civil rights (cf. comity: civil rights)
Answer:
|
songer_source
|
F
|
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.
AMERICAN MEDICAL ASSOCIATION, Petitioner, v. FEDERAL TRADE COMMISSION, Respondent. CONNECTICUT STATE MEDICAL SOCIETY and New Haven County Medical Association, Inc., Petitioners, v. FEDERAL TRADE COMMISSION, Respondent.
Nos. 995, 1050, Dockets 79-4214, 79-4226.
United States Court of Appeals, Second Circuit.
Argued May 2, 1980.
Decided Oct. 7, 1980.
Newton N. Minow, Chicago, 111. (Sidley & Austin, Chicago, 111., Jack R. Bierig, Chicago, 111., on brief; Bernard D. Hirsh, B. J. Anderson, Chicago, 111., of counsel), for petitioner, American Medical Ass’n.
Linda L. Randell, New Haven, Conn. (Wiggin & Dana, New Haven, Conn. William J. Doyle, New Haven, Conn., on brief), for petitioners Connecticut State Medical Soc. and New Haven County Medical Ass’n., Inc.
Howard E. Shapiro, Deputy Gen. Counsel, F. T. C., Washington, D. C. (Michael N. Sohn, Gen. Counsel; March Coleman, L. Barry Costilo, David M. Fitzgerald, Linda A. Heary, Brenda M. Hull, Leslie R. Mel-man, Washington, D. C., on brief), for respondent, Federal Trade Commission.
Before MANSFIELD and TIMBERS, Circuit Judges, and BONSAL, District Judge.
Of the United States District Court for the Southern District of New York, sitting by designation.
BONSAL, District Judge:
The American Medical Association (“AMA”), the Connecticut State Medical Society (“CSMS”), and the New Haven County Medical Association, Inc. (“NHCMA”) petition for review of a Cease and Desist Order issued by the Federal Trade Commission (“FTC”) against AMA on October 12, 1979 (FTC Dkt. No. 9064). The Order requires AMA to cease and desist from promulgating, implementing, and enforcing restraints on advertising, solicitation, and contract practices by physicians and on the contractual arrangements between physicians and non-physicians. The FTC found that ethical standards issued by AMA were in violation of Section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45(a)(1). The FTC cross-petitions for enforcement of its Order.
THE FACTS
AMA is an Illinois not-for-profit corporation first incorporated in 1897. Its membership is comprised of physicians, osteopaths and medical students, but most of its members are practicing physicians. As of December 31, 1974, 52.6% of the licensed physicians in the United States were members of AMA. AMA’s legislative body is its House of Delegates. Enactments of the House of Delegates become the official policy of AMA. In 1957 the House of Delegates approved the “Principles of Medical Ethics” consisting of a preamble and ten paragraphs. Interpretation of the “Principles of Medical Ethics” is made by AMA’s Judicial Council, a committee of the House of Delegates, and the decisions of the Judicial Council are set forth in the AMA publication, Opinions and Reports. The Judicial Council also is responsible for reviewing adjudications of state societies.
CSMS is the state medical society in Connecticut. A number of state medical societies originally formed AMA and membership in a state medical society is a condition to membership in AMA. 82% of Connecticut physicians are members of CSMS.
NHCMA is a local medical association. 71% of New Haven physicians are members of NHCMA. A New Haven physician must be a member of NHCMA in order to become a member of CSMS.
On December 19, 1975, the FTC filed a complaint against AMA, CSMS, and NHCMA charging them with restricting the ability of their members to advertise for and solicit patients and with interfering with the ability of their members to engage in contractual relationships with non-physicians. CSMS and NHCMA were included in the complaint on the ground that the state societies and local associations follow the lead of AMA and because the FTC believed that there was a conspiracy between AMA and the state societies and local associations to restrict competition among physicians through ethical limitations on advertising, solicitation and contractual relationships. Such restriction, in the view of the FTC, violated Section 5 of the Federal Trade Commission Act.
The FTC held hearings between September 7,1977 and May 5, 1978. On November 13, 1978, the administrative law judge, Ernest G. Barnes, issued his Initial Decision finding that the ethical practices complained of violated Section 5 of the Federal Trade Commission Act. On appeal of the administrative law judge’s decision to the FTC, the Commission affirmed and issued its Opinion and Final Order on October 12, 1979 (FTC Dkt. No. 9064) (“FTC Opinion”). The Final Order requires AMA to cease and desist from promulgating, implementing and enforcing restraints on advertising, solicitation and contract practices by physicians and on the contractual arrangements between physicians and non-physicians. Exception is made with respect to “false or deceptive” practices, and the Order provides that nothing contained therein prohibits AMA from
“formulating, adopting, disseminating to its constituent and component medical organizations and to its members, and enforcing reasonable ethical guidelines governing the conduct of its members with respect to representations, including unsubstantiated representations, that would be false or deceptive within the meaning of Section 5 of the Federal Trade Commission Act, or with respect to uninvited, in-person solicitation of actual or potential patients, who, because of their particular circumstances, are vulnerable to undue influence.”
The Order also requires AMA to disassociate itself from any state or local society that violates the terms of the Order.
PRELIMINARY ISSUES
Two preliminary issues have been raised by the petitioners: (1) that the FTC lacks jurisdiction over the petitioners, and (2) that Chairman Michael Pertschuk should have been disqualified because he had demonstrated through his public statements that he had prejudged key issues in the proceeding.
Jurisdiction over Petitioners
Petitioners contend that as nonprofit corporations, they are not subject to the jurisdiction of the FTC as set forth in Section 4 of the Federal Trade Commission Act, 15 U.S.C. § 44, which defines “corporation” to include any entity “organized to carry on business for its own profit or that of its members.” The record satisfies us that the petitioners serve both the business and non-business interests of their member physicians. As long ago as 1902, AMA amended its Articles of Incorporation to provide that one of its objectives was to “safeguard the material interests of the medical profession.” The administrative law judge found that AMA actively lobbies for legislation that it believes may be for the profit of its members. He also found that AMA, in a variety of ways, including advice on insurance plans, renders business advice to its members.
The business aspects of the activities of the petitioners fall within the scope of the Federal Trade Commission Act even if they are considered secondary to the charitable and social aspects of their work. See Goldfarb v. Virginia State Bar, 421 U.S. 773, 788, 95 S.Ct. 2004, 2013-14, 44 L.Ed.2d 572 (1975); FTC v. National Commission on Egg Nutrition, 517 F.2d 485, 488 (7th Cir. 1975), cert. denied, 426 U.S. 919, 96 S.Ct. 2623, 49 L.Ed.2d 372 (1976).
Petitioners’ reliance upon Community Blood Bank of Kansas City Area, Inc. v. FTC, 405 F.2d 1011 (8th Cir. 1969), is misplaced. That case involved a blood bank run as a charitable organization. However, the court recognized that “Congress did not intend to provide a blanket exclusion of all non-profit corporations .... ” Id. at 1017.
The FTC fully considered the facts bearing on whether the petitioners’ activities included their business aspects. See FTC v. Ernstthal, 607 F.2d 488, 490 (D.C.Cir.1979). In addition, the Cease and Desist Order involves only advertising, solicitation and contractual relationships. We therefore conclude that the evidence in the record sustains the jurisdiction of the FTC. Disqualification of Chairman Pertschuk
During the FTC proceeding, the petitioners moved to disqualify Chairman Pertschuk on the ground that he had prejudged the merits of this proceeding before it came before the Commission. In support of this contention, petitioners cite a speech made by Chairman Pertschuk before the American Enterprise Institute’s Occupational Li-censure Conference on February 22, 1979 concerning the misuse of licensing procedures to restrain competition. However, no mention of this case was made, nor was there any reference to physicians as a group.
Chairman Pertschuk prepared a statement for presentation to the Subcommittee on Health and Scientific Research, of the United States Senate, on October 10, 1977, which was never presented because of the cancellation of the hearings. This statement discussed the medical profession in the context of a multitude of issues in the field of health care. The lone reference to this proceeding was that a complaint had been filed challenging portions of the Code of Ethics of AMA that “may” unduly restrain dissemination of information about physicians’ services. He stated that “[sjince these matters are currently in litigation, I hope you will understand why it would not be appropriate for me to comment further about them.”
Petitioners also refer to a speech made by Chairman Pertschuk before the Consumer Assembly on January 19, 1978 with respect to food and health care costs. He mentioned the trial of this case as one of the many activities being undertaken by the FTC in the medical care field.
We do not find that Chairman Pertschuk’s statements on these occasions, considered in their entirety, Kennecott Copper Corp. v. FTC, 467 F.2d 67, 80 (10th Cir. 1972), cert. denied, 416 U.S. 909, 94 S.Ct. 1617, 40 L.Ed.2d 114 (1974), approach the appearance of impropriety, the test applied in Cinderella Career and Finishing Schools, Inc. v. FTC, 425 F.2d 583, 590-91 (D.C.Cir. 1970). Nor do we find that Chairman Pertschuk prejudged the facts and the law in this case before hearing it. Gilligan, Will & Co. v. SEC, 267 F.2d 461, 468 (2d Cir.), cert. denied, 361 U.S. 896, 80 S.Ct. 200, 4 L.Ed.2d 152 (1959). At most, the public statements brought to our attention by the petitioners indicate that the chairman was informing the Congress and the public as to FTC’s activities and policies in general, FTC v. Cement Institute, 333 U.S. 683, 700-01, 68 S.Ct. 793, 803, 92 L.Ed. 1010 (1948), including those in the medical field. We do not find these statements to be grounds for disqualification.
LIABILITY
At the time the FTC filed its complaint in this action on December 19, 1975, AMA’s authoritative interpretation of the ethical restraints that are the subject of this action were contained in the 1971 edition of Opinions and Reports. Both the administrative law judge and the Commission detailed numerous examples of applications of the ethical restraints evidencing an anticompetitive purpose and effect. These included restrictions upon the dissemination of price information, bans upon advertisement of individual physicians’ services and alternative forms of medical care, and restraints upon particular forms of advertising. The Commission concluded that this evidence “is susceptible to no interpretation other than that ethical principles of the medical profession have prevented doctors and medical organizations from disseminating information on the prices and services they offer, severely inhibiting competition among health care providers.” FTC Opinion, at 29. The Commission further found that AMA’s contract practice restrictions had the purpose and effect of restraining competition by group health plans, hospitals, and similar organizations, and restricted physicians from developing business structures of their own choice. Id. at 41-43. Based upon our own review of the record, we conclude that these findings are supported by substantial evidence. See 15 U.S.C. § 45(c).
Petitioners contend that the ethical guidelines are merely to assist the state societies and the local associations; in other words, that they are advisory only. They point out that no formal action has been taken by AMA in these matters since 1955 in the appeal of Ben E. Landess where Dr. Landess was charged with “the indirect solicitation and procurement of patients by advertising.” Dr. Landess was the Medical Director of the Jamaica Medical Group, which had a contract with the Health Insurance Plan of Greater New York, Inc. (“H.I. P.”), which offers a form of prepaid medical coverage in the State of New York. H.I.P. advertises directly to the public. The Judicial Council of AMA adopted the report of the Queens County Medical Society that no action be taken against Dr. Landess. The Judicial Council went on to say that since the quality of its advertising is not in issue and “since Dr. Landess had nothing to do with the preparation or distribution of the advertising, it is our opinion contrary to that of the state and county medical societies that the conduct of Dr. Landess does not violate the ethic relating to solicitation and advertising.” Joint App. at 425.
In any event, the issue here is not whether AMA has specific power or authority over the state societies and local associations or, if it has, whether it exercises it. The issue is whether these groups have acted in concert to effectuate restraints on advertising and solicitation in violation of the Federal Trade Commission Act. It is this concerted activity for a common purpose that constitutes the violation. FTC v. Cement Institute, 333 U.S. at 709, 68 S.Ct. at 807. See National Society of Professional Engineers v. United States, 435 U.S. 679, 692-96, 98 S.Ct. 1355, 1365-68, 55 L.Ed.2d 637 (1978).
The record satisfies us that AMA intended and expected that the state and local medical groups would enforce the limitations on advertising and solicitation and, indeed, advised them as to how to do it. In other words, AMA limitations “provided the impetus” for the actions taken, and individual physicians “could be expected to comply in order to assure that they did not discredit themselves by departing from professional norms, and perhaps betraying their professional oaths.” Goldfarb v. Virginia State Bar, 421 U.S. at 791 n.21, 95 S.Ct. at 2015.
REMEDY
The Final Order of the Commission consists of six Parts, the first two being the Cease and Desist Orders, and the third and fourth being the notice and disaffiliation provisions. The Final Order is directed only to AMA, and not to CSMS or NHCMA.
Part I of the Order directs AMA to cease and desist from (A) restricting the advertising of services, facilities, or prices by physicians or organizations with which physicians are affiliated; (B) restricting the operation of any organization that offers physicians’ services to the public, by means of representations concerning the ethical propriety of medical service arrangements that limit the patients’ choice of a physician; and (C) inducing any physician or nongovernmental medical organization to take any of the prohibited restrictive actions. Part I expressly excludes from its prohibitions the dissemination by AMA of reasonable ethical guidelines concerning false and deceptive advertising and solicitation.
Part II of the Order directs AMA to cease and desist from (A) restricting or interfering with the consideration offered or provided physicians in return for the sale or distribution of their professional services; (B) restricting any organization that offers physicians’ services by means of representations concerning the ethical propriety of medical service arrangements that limit the patients’ choice of a physician; (C) restricting participation by non-physicians in the ownership or management of such organizations; and (D) inducing physicians or any organization from taking any of the actions prohibited by Part II.
Part III of the Order requires AMA in any proceeding involving violations of its ethical standards to provide (A) reasonable notice, (B) a hearing, and (C) written findings and conclusions.
Part IV of the Order requires AMA to (A) give written notice of the Order to its members and affiliate societies; (B) provide all new members and affiliate societies with a copy of the Order for a period of ten years; (C) remove from all of its publications and policy statements any provisions inconsistent with the Order; (D) require that all affiliate organizations, as a condition of affiliation, agree to adhere to the Order; and (E) disaffiliate for one year any constituent organization that engages in any act or practice prohibited by the Order. Post-Complaint Activities of AMA
Petitioners contend that the revisions of the ethical standards contained in the 1977 Opinions and Reports obviate any need to enter the Order herein. However, this does not constitute grounds for denying enforcement of an FTC order, see, e. g., Fedders Corp. v. FTC, 529 F.2d 1398, 1403 (2d Cir.), cert. denied, 429 U.S. 818, 97 S.Ct. 63, 50 L.Ed.2d 79 (1976), especially since the publication of the revisions occurred “only after the filing of the FTC complaint.” Great Atlantic & Pacific Tea Co. v. FTC, 557 F.2d 971, 988 (2d Cir. 1977) (emphasis in the original), rev’d on other grounds, 440 U.S. 69, 99 S.Ct. 925, 59 L.Ed.2d 153 (1979). In any event, the Commission can properly find, as it did here, that the revisions were insufficient.
Additionally, it is not clear that the 1977 revisions rescinded prior ethical standards. AMA has never announced to its members or affiliate societies that the 1971 ethical standards are no longer in effect. Moreover, nothing in the 1977 version of the Opinions and Reports indicates that it was intended to disavow prior standards. Rather, it refers with approval to the “long standing policy of the Judicial Council on advertising and solicitation by physicians.”. By referring to the established policies, AMA indicated that its positions may not have changed and that the restraints, “if abandoned at all, may be resumed.” FTC Opinion, at 57. See SCM Corp. v. FTC, 565 F.2d 807, 813 (2d Cir. 1977). Finally, it is well established law that it is within the discretion of the FTC to determine whether an order is “necessary to cope with the unfair practices found.” FTC v. Colgate-Palmolive Co., 380 U.S. 374, 392, 85 S.Ct. 1035, 1046, 13 L.Ed.2d 904 (1965). We have determined that the FTC considered the changes and rationally assessed their significance in concluding that a cease and desist order was warranted. See SCM Corp. v. FTC, 565 F.2d at 812. See also FTC v. National Lead Co., 352 U.S. 419, 429, 77 5. Ct. 502, 509, 1 L.Ed.2d 438 (1957).
On July 22, 1980, AMA’s House of Delegates adopted a new version of the Principles of Medical Ethics. The most notable change is the removal of the ban on “solicitation” previously found in Section 5 of the Principles. The 1980 Principles instead require a physician to deal “honestly,” to expose doctors “deficient in character or competence,” and “to respect the rights ... of other health professionals.”
The elimination of the ban on solicitation which appeared in the 1957 version of the Principles reflects a significant and commendable effort to comply with the terms of the FTC order here under review. AMA does not, however, concede any legal obligation to make such changes, since it still denies any involvement in the unlawful restraints found by the FTC.
The language of the 1980 Principles is general and imprecise in nature. Moreover, the various written interpretations of the 1957 Principles previously promulgated by AMA remain in effect. In the absence of any interpretation of the 1980 Principles in AMA’s Opinions and Reports, we cannot find that the FTC’s claims are moot.
First Amendment
Petitioners contend that Part II of the Cease and Desist Order constitutes a prior restraint upon speech and impermissibly interferes with the right to freedom of association under the First Amendment. We disagree. The FTC determined that various restrictions which AMA imposed upon contract practices of physicians violated the FTC Act. These included ethical restraints upon so-called “closed panel” arrangements, upon the consideration paid physicians by health care organizations, and upon physicians’ arrangements with non-physicians. By its terms, the Order applies solely to “ethical” restraints, and thus does not affect any speech or other First Amendment rights except insofar as it applies to statements officially condemning contract practices. “Just as an injunction against price fixing abridges the freedom of businessmen to talk to one another about prices, so too the injunction in this case must restrict [AMA’s] range of expression on the ethics of [contract practices of physicians].” National Society of Professional Engineers v. United States, 435 U.S. 679, 697, 98 S.Ct. 1355, 1367, 55 L.Ed.2d 637 (1978). Cf. California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 513, 92 S.Ct. 609, 613, 30 L.Ed.2d 642 (1972) (right to freedom of association does not include the right to violate the law).
Overbreadth and Vagueness
Petitioners assert that the proviso at the end of Part I, which permits AMA to adopt “reasonable ethical guidelines governing the conduct of its members with respect to representations, including unsubstantiated representations, that would be false or deceptive within the meaning of Section 5 of the Federal Trade Commission Act,” is overbroad and vague. The proviso was inserted in the Final Order at the request of AMA because of the Commission’s “conviction that the AMA has a valuable and unique role to play with respect to deceptive advertising and oppressive forms of solicitation by physicians.” FTC Opinion, at 58. AMA asks that it be granted more leeway in determining what kinds of claims are deceptive and misleading without the chilling effect that the threat of fines and penalties could have on its regulation of false and deceptive advertising. The Commission recognizes the “ ‘special role’ of organized medicine ... [that] necessarily confers on AMA a measure of discretion to develop ‘principles of conduct.’ ” FTC Brief at 109, quoting Bates v. State Bar of Arizona, 433 U.S. 350, 384, 97 S.Ct. 2691, 2709, 53 L.Ed.2d 810 (1977). In view of the foregoing, we will amend the proviso by inserting the words “respondent reasonably believes” so that the concluding paragraph of Part I will read as follows:
“Nothing contained in this Part shall prohibit respondent from formulating, adopting, disseminating to its constituent and component medical organizations and to its members, and enforcing reasonable ethical guidelines governing the conduct of its members with respect to representations, including unsubstantiated representations, that respondent reasonably believes would be false or deceptive within the meaning of Section 5 of the Federal Trade Commission Act, or with respect to uninvited, in-person solicitation of actual or potential patients, who, because of their particular circumstances, are vul(modifinerable to undue influence.” cation emphasized)
Additionally, petitioners contend that Part II-A of the Order requires AMA to cease and desist from “advising on the ethical propriety of, or interfering with the consideration offered or provided to any physician in return for the sale, purchase or distribution of his or her professional services.” AMA points out that this provision is so broad as to impinge upon valid activity such as professional peer review of the fee practices of physicians. In apparent recognition of this and mindful of Judge Wisdom’s caveat that an FTC order “should not be drawn so broadly that it will cover legitimate practices,” Cotherman v. FTC, 417 F.2d 587, 596 (5th Cir. 1969), the Commission requests us to modify clause II-A of the Order to add the words “in any contract with any entity that offers physicians’ services to the public” following the word “physician.” This modification clarifies the meaning of the Order, especially in light of the administrative record herein. See, e. g., Trans World Accounts, Inc. v. FTC, 594 F.2d 212, 215 n.2 (9th Cir. 1979); National Commission on Egg Nutrition v. FTC, 570 F.2d 157 at 163 (7th Cir). However, in view of AMA’s contention in its reply brief that the Order is still overbroad, we will further modify the Order by adding the words “except for professional peer review of fee practices of physicians.” Thus, the clause, as modified, will read:
“Restricting, regulating, impeding, advising on the ethical propriety of, or interfering with the consideration offered or provided to any physician in any contract with any entity that offers physicians’ services to the public, in return for the sale, purchase, or distribution of his or her professional services, except for professional peer review of fee practices of physicians . ... ” (modifications emphasized)
The Disaffiliation Provision
Part IV of the Order requires AMA to disaffiliate for one year any state or local medical society that engages in acts or practices that would violate the Order if engaged in by AMA, and requires as a condition to affiliation that the state and local societies agree to adhere to the provision of the Order. Petitioners contend that this violates due process. However, this provision finds support in National Society of Professional Engineers v. United States, 435 U.S. at 697, 98 S.Ct. at 1367. The Order does not violate AMA’s right to due process since it bears a reasonable relationship to the unlawful practices found to exist. See, e. g., Jacob Siegel Co. v. FTC, 327 U.S. 608, 613, 66 S.Ct. 758, 760, 90 L.Ed. 888 (1946). See also United States v. International Boxing Club of New York, Inc., 171 F.Supp. 841, 842 (S.D.N.Y.1957), aff’d 358 U.S. 242, 245, 79 S.Ct. 245, 247, 3 L.Ed.2d 270 (1959). The Commission “must be allowed effectively to close all roads to the prohibited goal, so that its orders may not be bypassed with impunity,” FTC v. Ruberoid Co., 343 U.S. 470, 473, 72 S.Ct. 800, 803, 96 L.Ed. 1081 (1952), by the state and local medical societies.
The Final Order of the FTC is MODIFIED as indicated herein. As so modified, the Order is ENFORCED.
. PRINCIPLES OF MEDICAL ETHICS
PREAMBLE
These principles are intended to aid physicians individually and collectively in maintaining a high level of ethical conduct. They are not laws but standards by which a physician may determine the propriety of his conduct in his relationship with patients, with colleagues, with members of allied professions, and with the public.
SECTION 1
The principle objective of the medical profession is to render service to humanity with full respect for the dignity of man. Physicians should merit the confidence of patients entrusted to their care, rendering to each a full measure of service and devotion.
SECTION 2
Physicians should strive continually to improve medical knowledge and skill, and should make available to their patients and colleagues the benefits of their professional attainments.
SECTION 3
A physician should practice a method of healing founded on a scientific basis; and he should not voluntarily associate professionally with anyone who violates this principle.
SECTION 4
The medical profession should safeguard the public and itself against physicians deficient in moral character or professional competence. Physicians should observe all laws, uphold the dignity and honor of the profession and accept its self-imposed disciplines. They should expose, without hesitation, illegal or unethical conduct of fellow members of the profession.
SECTION 5
A physician may choose whom he will serve. In an emergency, however, he should render service to the best of his ability. Having undertaken the care of a patient, he may not neglect him; and unless he has been discharged he may discontinue his services only after giving adequate notice. He should not solicit patients.
SECTION 6
A physician should not dispose of his services under terms or conditions which tend to interfere with or impair the free and complete exercise of his medical judgment and skill or tend to cause a deterioration of the quality of medical care.
SECTION 7
In the practice of medicine a physician should limit the source of his professional income to medical services actually rendered by him, or under his supervision, to his patients. His fee should be commensurate with the services rendered and the patient’s ability to pay. He should neither pay nor receive a commission for referral of patients. Drugs, remedies or appliances may be dispensed or supplied by the physician provided it is in the best interests of the patient.
SECTION 8
A physician should seek consultation upon request; in doubtful or difficult cases; or whenever it appears that the quality of medical service may be enhanced thereby.
SECTION 9
A physician may not reveal the confidences entrusted to him in the course of medical attendance, or the deficiencies he may observe in the character of patients, unless he is required to do so by law or unless it becomes necessary in order to protect the welfare of the individual or of the community.
SECTION 10
The honored ideals of the medical profession imply that the responsibilities of the physician extend not only to the individual, but also to society where these responsibilities deserve his interest and participation in activities which have the purpose of improving both the health and the well-being of the individual and the community.
. The Order herein does not require, at least directly, that CSMS or NHCMA petitioners cease and desist from doing anything. However, both petitioners contend that they are proper parties to this proceeding since they were named as respondents in the agency action below, adverse findings were made against them by the FTC, and they are affected by the Final Order. The FTC does not oppose their participation in this proceeding, and suggests that they may be treated as intervenors. At the same time, CSMS and NHCMA do not appear to be seeking relief independent from that sought by AMA. In view of these factors, we assume without deciding that CSMS and NHCMA are proper parties to this petition for review.
. There appears to be no dispute that the practices complained of affect interstate commerce.
. Neither Cinderella nor Texaco, Inc. v. FTC, 336 F.2d 754, 760 (D.C.Cir.1964), are of assistanee to petitioners, since in both of those cases a commissioner made statements as to specific facts yet to be resolved in the respective proceedings. Indeed, the Texaco court specifically noted that since it could “not expect a Trade Commissioner to be neutral on anti-monopoly policies,” such an adjudicator could be permitted to hear a case, even “after he had expressed an opinion as to whether certain types of conduct were prohibited by law.” 336 F.2d at 760. As we have noted in a somewhat different context, “it is not improper for members of regulatory commissions to form views about law and policy on the basis of their prior adjudications of similar issues which may influence them in deciding later cases.” Rombough v. FAA, 594 F.2d 893, 900 (2d Cir. 1979).
. Sixteen months after the complaint was filed, AMA revised its Opinions and Reports. Petitioners contend that any violations that may have existed earlier were corrected by the 1977 version. We do not believe the FTC was required to amend its complaint at that point. However, AMA’s post-complaint revision properly may be considered on the issue of the remedy provided in the Final Order. See United States v. Parke, Davis & Co., 362 U.S. 29, 47, 80 S.Ct. 503, 513, 4 L.Ed.2d 505 (1960); United States v. Oregon Medical Society, 343 U.S. 326, 332, 72 S.Ct. 690, 695, 96 L.Ed. 978 (1952).
. For example, the ban on “solicitation” in the “Principles of Medical Ethics” was left unchanged, and the definition of that term incorporates many of the catchwords of earlier restraints. One instance of this is the retained condemnation of “self-laudatory” advertisements, even if fully accurate. In addition, the list of “accepted local media” fails to include newspapers, radio, or television. Publication of fees is mentioned only in connection with “reputable directories.”
. The record is mixed with regard to the impression of the average physician regarding the effect of the 1977 edition of Opinions and Reports on earlier versions. One witness testified that it was well accepted in the medical community that publication of a new edition rescinds previous editions. Other evidence, however, indicated that pre-1977 standards are still viewed as binding by physicians.
. In view of our finding of other substantial evidence to support the remedial order, we need not address the question whether the administrative law judge properly rendered an adverse finding against AMA for failure to comply with a subpoena duces tecum.
. AMA in its reply brief urges comparison with the FTC’s actions regarding veterinary organizations, in which the agency withdrew proposed rules concerning veterinary advertising as a result of voluntary reforms on the part of those organizations. Federal Trade Commission, News Summary (April 11, 1980). However, we feel that this example cogently illustrates the limits of our review in cases of this nature: It is up to the FTC to take recognition of genuine, voluntary reform by withdrawing formal proceedings when within its discretion it sees fit to do so.
. The relevant provisions of the Order require AMA to cease and desist from:
A. Restricting, regulating, impeding, advising on the ethical propriety of, or interfering with the consideration offered or provided to any physician in return for the sale, purchase or distribution of his or her professional services;
B. Restricting, interfering with, or impeding the growth, development or operations of any entity that offers physicians’ services to the public, by means of any statement or other representation concerning the ethical propriety of medical service arrangements that limit the patient’s choice of a physician;
C. Restricting, interfering with, or impeding the growth, development or operations of any entity that offers physicians’ services to the public, by means of any statement or other representation concerning the ethical propriety of participation by non-physicians in the ownership or management of said organization; and
D. Inducing, urging, encouraging, or assisting any physician, or any medical association, group of physicians, hospital, insurance carrier or any other non-governmental organization to take any of the actions prohibited by this Part.
. In addition, we refer petitioners to the opinion of the FTC herein, in which they are provided certain guidelines, to wit, where ads merely state the price of routine and standardized services, there is little need for further ethical restrictions to prevent deception; where restrictions are justified, they should be reasonably related to goal of preventing deception; and across-the-board bans to broad categories of representations, or general restrictions applicable to any representation made through a specific medium, are highly suspect. FTC Opinion, at 59.
. AMA cannot claim, as it attempts to do, that the disaffiliation provisions of the Order contravene Fed.R.Civ.P. 65(d), since that rule is inapplicable to agency orders. Moreover, there are no specific contempt proceedings that AMA’s constituent societies need be protected from since they are not bound by any FTC order. See Vuitton et Fils S.A. v. Carousel Handbags, 592 F.2d 126 (2d Cir. 1979).
Question: What forum heard this case immediately before the case came to the court of appeals?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Court of Customs & Patent Appeals
H. Court of Claims
I. Court of Military Appeals
J. Tax Court or Tax Board
K. Administrative law judge
L. U.S. Supreme Court (remand)
M. Special DC court (not the US District Court for DC)
N. Earlier appeals court panel
O. Other
P. Not ascertained
Answer:
|
songer_casetyp1_2-3-3
|
G
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "civil rights - other civil rights".
Marta CARBONELL, Plaintiff-Appellant, v. LOUISIANA DEPT. OF HEALTH & HUMAN RESOURCES, Secretary of the Louisiana Dept. of Health & Human Resources, et al., Defendants-Appellees.
No. 85-3088
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
Oct. 3, 1985.
Marta Carbonell, pro se.
Antonio L. Carbonell, New Orleans, La., for plaintiff-appellant.
Jesse James Marks, Asst. Atty. Gen., Dept, of Justice, New Orleans, La., for defendants-appellees.
Before POLITZ, GARWOOD and JOLLY, Circuit Judges.
POLITZ, Circuit Judge:
Marta Carbonell appeals the dismissal, after a bench trial, of her complaint invoking Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. §§ 1981 and 1983. The parties agreed to a trial before a magistrate with direct appeal to this court, 28 U.S.C. § 636. Finding no merit in any claim presented, we affirm the dismissal for the reasons we set forth.
Facts
Carbonell is a native of Cuba. She was employed by the state of Louisiana in various capacities. Her last assignment was with the Louisiana Department of Health and Human Resources (DHHR) as a Clinical Social Worker V, in the New Orleans Substance Abuse Clinic. As the second highest employee in that clinic, Carbonell was the chief social worker and supervised the Spanish-speaking program, day and evening supervisors and Spanish personnel. It is apparent that personal friction existed between Carbonell and her immediate supervisor, Adrienne Mouledoux, the district administrator.
Beginning in 1976 Carbonell filed various complaints with the Equal Employment Opportunity Commission (EEOC). The first complaint was against Mouledoux and raised claims of discrimination based on national origin. Subsequent complaints charged retaliatory acts allegedly triggered by the EEOC filings. Matters worsened until Calvin Bankston, head of the DHHR Bureau of Substance Abuse, determined to solve his department’s serious personnel problem by separating the protagonists. He reassigned Carbonell from the New Orleans Substance Abuse Clinic to a newly designated Substance Abuse Clinic in neighboring St. Bernard Parish. Carbonell was assigned to the new clinic as its administrative head and was told to report for duty on August 21, 1979. Carbonell declined, considering this transfer discriminatory, retaliatory, and tantamount to an assignment to “Outer Mongolia,” a characterization not likely shared by the thousands of residents of St. Bernard Parish.
In lieu of reporting to St. Bernard on August 21, 1979, Carbonell visited the EEOC office, filed a complaint, and then went to the New Orleans clinic. She was instructed to declare in writing whether she would accept her new assignment. By day’s end on August 21, Carbonell delivered a letter to Mouledoux stating that she was “herewith declining the assignment and taking the proper legal action.”
On August 22, 1979, Carbonell called Bankston and told him of her refusal to obey his transfer order. Bankston placed Carbonell on a three-day suspension without pay for insubordination and orally ordered her to report to the St. Bernard clinic on August 27. On August 24, Carbonell was given a written confirmation of the suspension and directed in writing to report to St. Bernard on August 27.
Carbonell responded to the suspension by amending her EEOC charge to include a claim that the transfer was in retaliation for her EEOC filing. Instead of reporting to St. Bernard on August 27, Carbonell opted to again report to the New Orleans clinic. Early that morning her husband delivered a letter to Mouledoux’s home, addressed to Bankston, in which Carbonell repeated her charge that the transfer was arbitrary, illegal, abusive, and in retaliation for filing EEOC complaints. She again declined to report to St. Bernard and stated that at 10:30 a.m. she would be at the New Orleans clinic.
When Carbonell arrived at the New Orleans clinic on August 22 she was met by Bankston who urged her to consider the seriousness of her refusal to accept the reassignment. Bankston again ordered her to report to St. Bernard. Carbonell refused. Later that day she was given a letter of removal which she promptly appealed to the Louisiana Civil Service Commission (CSC).
The CSC appointed a referee who conducted public hearings on August 11-13, 1980; April 20-24, 1981; May 26-29, 1981; and June 8-9, 1981. The CSC affirmed the DHHR removal. On appeal, the Louisiana Court of Appeal for the First Circuit affirmed the CSC decision. Carbonell v. Dept. of Health & Human Resources, 444 So.2d 151 (La.App.1983).
After her dismissal, Carbonell again amended her EEOC complaint to charge that the dismissal was retaliatory. The EEOC declined to press the matter and issued the statutory right-to-sue letter. Carbonell filed the instant suit claiming, as above noted, Title VII, § 1981, and § 1983 violations.
A bench trial before the magistrate lasted a week. At the outset of his memorandum opinion the magistrate stated:
If this Court were to make findings of fact based upon the evidence presented and testimony offered at trial, they would be identical to those facts set forth by the First Circuit Court of Appeal in its decision. This Court hereby adopts the findings of the state appeals court as its own. Carbonell v. Dept. of Health and Human Resources, No. 83-0186 [444 So.2d 151] (La.Ct.App. 1st Cir., Dec. 22, 1983).
After making these factual findings by reference and adoption, the magistrate proceeded to dismiss all claims. The Title VII claims against all individual defendants were dismissed because they were not the employer and Title VII was not applicable to them. The Title VII complaint against DHHR was dismissed on grounds of res judicata. The § 1981 claim was dismissed for failure of any evidence of intent to discriminate against Carbonell on the basis of national origin. Finally, as to the § 1983 claim, the magistrate found that Carbonell was inappropriately attempting to appeal a decision of the Louisiana court to the federal court, a matter over which the court lacked jurisdiction.
Analysis
Carbonell urges, with subcategorizations, more than a score of assignments of error. Most are totally without merit. We combine the remainder for review.
A. Section 1981 Claim
As an appellate tribunal, we are constrained by Fed.R.Civ.P. 52(a) to accept all findings of fact made by the trier of fact, in this instance the magistrate, unless shown to be clearly erroneous. There has been no such showing. Nor could any such showing be made. The facts as found by the magistrate, through his adoption of the state court findings, are fully supported by the record. This claim borders on the frivolous.
B. Section 1983 Claim
Stripped to its essentials, Carbonell’s § 1983 complaint would have the district court sit in review of the decision of the Louisiana First Circuit Court of Appeal. The district court lacks jurisdiction to conduct that exercise. As we held in Kimball v. The Florida Bar, 632 F.2d 1283, 1284 (5th Cir.1980):
Stripped to its essentials, Kimball’s petition for declaratory and injunctive relief asks the federal district court to reverse a final, definitive state court order. As we stated in Lampkin-Asam v. Supreme Court of Florida, 601 F.2d 760 (5th Cir.1979): “This Court has held on numerous occasions that federal district courts do not have jurisdiction under 42 U.S.C. § 1983 or any other theory to reverse or modify the judgments of state courts.” We echo that it “is axiomatic that a federal district court, as a court of original jurisdiction, lacks appellate jurisdiction to review, modify, or nullify a final order of a state court. 28 U.S.C. § 1257(3).” Id. The proper forum for the relief Kimball now seeks was the United States Supreme Court.
It is hornbook law that § 1983 does not create a federal cause of action but, rather, a remedy for the vindication of other federal statutory or constitutional rights. That those rights have been adjudicated in a state court under concurrent § 1983 jurisdiction or under a state cause of action is of no moment: once a determination has been made by a state court relative to the existence or non-existence of a federal right, and any possible infringement of that right, the only avenue of review is to the United States Supreme Court via 28 U.S.C. § 1257(3). As a panel of this court observed:
A federal district court, as a court of limited original jurisdiction, lacks power to review, modify or nullify a final order of a state court. Nor can a party, aggrieved by a judicial decision of a state’s highest court, invest a lower federal court with such jurisdiction by clothing his or her grievance in the garb of § 1983 and alleging that the decision of the state court deprived him or her of constitutionally protected rights or inter-ests____ A party seeking relief from such an allegedly unconstitutional action by a state court may seek review in only one federal court — the United States Supreme Court.
Dasher v. Supreme Court of Texas, 650 F.2d 711, 714-15 (5th Cir.1981), rev’d on other grounds, 658 F.2d 1045 (5th Cir.1981) (on reh’g), reh’g opinion disapproved, District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482 n. 16 (1983). See also Brown v. Chastain, 416 F.2d 1012 (5th Cir.1969); Gresham Park Community Organization v. Howell, 652 F.2d 1227 (5th Cir.1981).
We recognize that Carbonell has not faulted the Louisiana court, as such, but she asserts the same claims previously asserted in the state system. She maintains that the DHHR violated her Title VII fair employment rights. The underlying federal right now advanced is identical to that adjudged by the Louisiana court. Thus, whether the dismissal of the § 1983 claim for lack of jurisdiction should be upheld hinges on whether the complaint seeks an exercise of appellate or original jurisdiction. Despite the fact that the proceedings before the Louisiana Civil Service Commission and the subsequent state-court appeal were based largely on state administrative and statutory law, the Supreme Court’s opinion in District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983), teaches that the nature of the underlying claim, not the nature or basis of the desired relief, directs the answer to the appellate versus original jurisdiction inquiry. When a plaintiff presents federal claims that “are inextricably intertwined with the state court’s denial in a judicial proceeding of a particular plaintiff’s [state-law claim], then the District Court is in essence being called upon to review the state-court decision. This the District Court may not do.” Feld-man, 460 U.S. at 482 n. 16, 103 S.Ct. at 1315 n. 16, 75 L.Ed.2d at 223 n. 16. Feld-man directs the inquiry away from a mechanical classification of the relief requested or the cause of action, toward a realistic consideration of the nature of the underlying claim.
The instant case is guided by Feldman. We are presented with a § 1983 claim challenging an adverse state-court judgment on the theory that the state administrative action therein upheld violated the plaintiff’s constitutional rights. This necessarily invites appellate review of the determinations of federal rights by the Louisiana court of appeal. That review is beyond the jurisdictional pale of the federal district court. The magistrate properly concluded that the court had no subject-matter jurisdiction over this § 1983 claim as postulated.
C. Title VII Claim
It cannot be gainsaid that the dismissal of the Title VII claims against the non-employer individual defendants was appropriate. Only the claim against the DHHR need be reviewed. The magistrate concluded that review of this claim against the DHHR was precluded by operation of the doctrine of res judicata, 28 U.S.C. § 1738, a defense which was not pled.
This approach is fraught with difficulty for under Rule 8(c), Federal Rules of Civil Procedure, the defense of res judicata must be affirmatively pled. Generally this rule is strictly read and applied, but in this circuit we have recognized two limited instances in which the trial or appellate court may raise the issue sua sponte. An example of one exception is United Home Rentals, Inc. v. Texas Real Estate Commission, 716 F.2d 324, 330 (5th Cir.1983), where after observing that res judicata is an affirmative defense which must be specially pleaded we observed:
[The] failure to assert res judicata as a defense does not determine the issue, however, since in the interest of judicial economy res judicata may properly be raised by a district court sua sponte, particularly where both actions are brought in the courts of the same district. See Boone v. Kurtz, 617 F.2d 435, 436 (5th Cir.1980) (affirming district court sua sponte dismissal on res judica-ta grounds) ____ On occasion, appellate courts have raised the issue for the first time on appeal. See Robertson v. Interstate Securities Co., 435 F.2d 784, 787 n. 4 (8th Cir.1971)____ In these cases, however, the appellate court considered applying res judicata as a means to affirm the district court decision below.
The other exception involves the situation in which all relevant data and legal records are before the court and the demands of comity, continuity in the law, and essential justice mandate judicial invocation of the principles of res judicata. This exception is illustrated by our decision in American Furniture Co. v. International Accommodations Supply, 721 F.2d 478 (5th Cir.1981).
We are not persuaded that the case now before us qualifies under either exception; we therefore decline to use 28 U.S.C. § 1738 as a bar to consideration of the Title VII claim.
The evidence of record provides an ample basis for affirming the dismissal of Carbonell’s Title VII claim. Reaching and reviewing the magistrate’s adoptive findings in light of this evidence, we find no clearly erroneous factual finding. The scenario which we must accept under the directive of Fed.R.Civ.P. 52(a) demonstrates that Carbonell was discharged for rank insubordination. She repeatedly refused direct orders of reassignment. She reserved to herself the right to determine the clinic in which she would work. Working in the parish of St. Bernard somehow offended her sensibilities. She insisted on having her way notwithstanding the urgings and orders of her superiors. We find no support in the accepted findings of fact; indeed we find no support in the record for the claim that retaliatory actions were taken because of her national origin or because she filed various EEOC charges. We find and conclude that Carbonell has failed to establish the discrimination charged. Her Title VII complaint is without merit.
Finally, we consider Carbonell’s argument that the recent decision by the Supreme Court in Cleveland Board of Education v. Loudermill, 470 U.S.-, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985), declares her dismissal constitutionally infirm and that the decision by the Louisiana Civil Service Commission and Louisiana Court of Appeal must be accordingly reversed. This challenge founders on the same legal shoals as the § 1988 claim discussed supra. Lower federal courts do not review on appeal the constitutionality of state court decisions. That prerogative belongs exclusively to the Supreme Court. 28 U.S.C. § 1257(3); Kimball v. The Florida Bar. Whatever Loudermill portends for future litigation, it does not impact on the result of this proceeding.
The magistrate dismissed all claims. We AFFIRM his judgment.
Question: What is the specific issue in the case within the general category of "civil rights - other civil rights"?
A. alien petitions - (includes disputes over attempts at deportation)
B. indian rights and law
C. juveniles
D. poverty law, rights of indigents (civil)
E. rights of handicapped (includes employment)
F. age discrimination (includes employment)
G. discrimination based on religion or nationality
H. discrimination based on sexual preference federal government (other than categories above)
I. other 14th amendment and civil rights act cases
J. 290 challenge to hiring, firing, promotion decision of federal government (other than categories above)
K. other civil rights
Answer:
|
songer_applfrom
|
A
|
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).
The FIRST NATIONAL BANK OF CROWN POINT, a national banking association, and the Commercial Bank of Crown Point, a State of Indiana banking corporation, Plaintiffs-Appellants, v. William B. CAMP, Comptroller of the Currency of the United States of America, and Mercantile National Bank of Indiana, a national banking association, Defendants-Appellees.
No. 71-1463.
United States Court of Appeals, Seventh Circuit.
Argued May 17, 1972.
Decided July 7, 1972.
William Carroll, Crown Point, Ind., Fred G. Donnersberger, Hammond, Ind., for plaintiffs-appellants.
L. Patrick Gray, III, Asst. Atty. Gen., William D. Appier, Walter H. Fleischer, Joseph B. Scott, Attys., Dept. of Justice, Washington, D. C., William C. Lee, U. S. Atty., Fort Wayne, Ind., Timothy P. Galvin, Sr., and Patrick J. Galvin, Hammond, Ind., for defendants-appellees.
Before SWYGERT, Chief Judge, and KILEY and SPRECHER, Circuit Judges.
SPRECHER, Circuit Judge.
On June 23, 1970, the Comptroller of the Currency of the United States approved an application by the Mercantile National Bank of Indiana for permission to construct a branch bank in an unincorporated area adjacent to the city of Crown Point, Indiana. The appellants in this case, the First National Bank of Crown Point and the Commercial Bank of Crown Point, raised objections to Mercantile’s application at the Comptroller’s informal hearing on the matter and renewed their objections in an administrative review procedure before the district court. The district court granted summary judgment for the codefendants, Mercantile Bank and the United States Comptroller, and the case is before us on appeal from that decision. We affirm.
The National Bank Act, 12 U.S.C. § 36(c), provides that banks may, with the approval of the Comptroller of the Currency, establish branch offices at any location authorized by state law. The Indiana statutory provision applicable to branch bank locations in Lake County, the county in which Mercantile seeks to locate its branch, is Burns’ Ind. Stat. § 18-1707. That section provides in part:
In all counties having a population of less than five hundred thousand (500,000) inhabitants, according to the last preceding decennial United States census, or in counties having three (3) or more cities of the second class, except as hereinafter otherwise provided, any bank or trust company may open or establish a branch bank in any city or town within the limits of the county in which the principal office of such bank or trust company is located, if there is no bank or trust company located in such city or town.
Appellants argue that the area in which the proposed bank was to be located was not a “city or town” within the meaning of section 1707 and that, if it was a “city or town,” it was by prior de facto annexation part of the city of Crown Point, and, therefore, an objectionable site for a branch bank because both appellant banks maintain their home offices in Crown Point.
I.
In support of their contention that the district court erred in finding that the proposed site was a “town” within the meaning of the Indiana statute, appellants note that Mercantile’s 1967 application for a branch banking site in the same area was denied because the Comptroller found that at that time the area “involved did not possess sufficient viability to be considered a city or town. . . .” Appellants argue that the Comptroller’s conclusion that the area had developed sufficiently since that time to be a “town” within the meaning of the statute was arbitrary and capricious. We disagree.
A review of the record discloses that substantial development had occurred during the four-year period between 1967 when the first application was denied and 1970 when this application was filed. In 1967, there existed only one 27-unit single-family residential development; a proposal to build a courthouse in Lake County was stalled at the time by litigation which rendered its future uncertain. By 1970, however, the litigation had been successfully concluded, the state legislature had enacted legislation necessary for the project, and a $15 million bond issue to finance the project had been sold. Furthermore, the number of residential units had increased from 27 units to 147 single-family units, with additional construction planned on land recently purchased in the area. Although the appellants challenge the propriety of the Comptroller’s consideration of plans for future growth, the Comptroller was not restricted to the physical facts as they existed at the time of the application, but could take into consideration planned development of the area which would affect its character in the foreseeable future. First Citizens Bank & Trust Co. v. Camp, 409 F.2d 1086, 1093 (4th Cir.1969). Thus, taking into account the projected development in the additional 53 square miles encompassed by the 1970 service area and the development expected to be drawn by the location of the new Lake County courthouse complex within that area, we believe the Comptroller’s conclusion that the area in which the Mercantile wished to establish its branch bank was a “town” within the meaning of the Indiana statute was supported by substantial evidence.
II.
Appellants urge that under Indiana statutes in effect at the time of the 1970 application, the proposed site was in fact a part of the city of Crown Point by virtue of a prior de facto annexation. Although they concede that there was no formal annexation in compliance with Burns Ind.Stat. § 48-701 et seq., they advance several theories in support of their de facto annexation argument.
Appellants refer the court to a contract dated July 2, 1965, between the city of Crown Point and the owners of the property now referred to as Wirtz Crown Heights. By this contract, the developers of Wirtz Crown Heights agreed to develop the property according to the “Subdivision Control and Zoning Ordinances of the City of Crown Point” and to seek approval from the Crown Point Plan Commission for all developments in exchange for city water and sewer services. The contract contained a provision under which any rights to object to annexation of the area to the city of Crown Point were waived by the developers. It is argued that this contract represents an alternative method of annexation, expressly countenanced by Burns Ind.Stat. § 53-734, which could be used in place of the strict annexation procedure established by Burns Ind.Stat. § 48-701. Section 53-734, while giving Indiana cities the power to regulate contiguous unincorporated areas within a two-mile radius of the corporate limits, does, not, we believe, represent an alternative to the annexation provisions of section 48-701. Section 48-701 is unequivocal in restricting the boundaries of cities and towns to those defined by formal ordinance. Although section 48-701 permits cities to contract with unincorporated areas for municipal services in lieu of annexation, the provision specifies limited periods of time during which any contract may continue in force, and, through a provision permitting the contracting parties to provide that annexation is not to be effected during the term of the contract, specifically delineates between the two procedures. We think it is clear, therefore, that neither section 53-734 nor the contractual provisions of 48-701 provide an alternative to the formal annexation procedures of sections 48-701 et seq. This decision is supported by the opinion of the Indiana Supreme Court in Pittsburgh, C.C. & St. L. Ry. v. City of Anderson, 176 Ind. 16, 18, 95 N.E. 363 (1911), in which the court states:
The municipal authorities can in no case alter the boundaries unless the power so to do is conferred upon them by the Legislature; such power, when conferred, must be exercised under the circumstances and in the manner prescribed.
Next the appellants argue that Mercantile, by voluntarily seeking to comply with the planning and zoning boards of Crown Point, even though the contract mentioned above had expired and no longer required such compliance, acquiesced to control by the city of Crown Point, and, having done so, could not challenge the validity of the annexation. In support of this theory the appellants cite DePauw Plate-Glass Co. v. City of Alexandria, 152 Ind. 443, 52 N.E. 608 (1899), which held that persons living in annexed territory may, by acquiescence and participation in the benefits conferred by the city, be precluded from disputing the validity of the annexation proceedings. That case, however, is completely inapposite to the instant controversy. De Pauw Plate-Glass involved a taxpayer whose land was erroneously omitted from a legal description of land taken in accord with valid statutory annexation procedures. After accepting the benefits of annexation for three years the taxpayer sought to recover certain taxes which it had paid to the city. Here, as we have stated, there never was an annexation. Surely a voluntary attempt to construct a building consistent with a plan which had formerly been mandatory under the contract but which was no longer in effect does not of itself confer upon the appellants or the city of Crown Point the right to restrict Mercantile’s use of its property.
Appellants also argue that Burns Ind. Stat. §§ 26-411 and 26-413, have the effect of extending the boundaries of Crown Point to include the area in question. These sections provide in substance that a court can hold valid court sessions in courthouse facilities located “outside of the corporate limits of a county seat city” and that any business so transacted “shall be deemed to have been transacted and held at and within such county seat city.” These provisions do not support the appellants’ conclusion; indeed they contradict it. It is precisely because the area in which the new courthouse complex was to be located was not a part of Crown Point that the statutes were enacted. As the court below observed, “[T]hey [the statutes] do not purport to do more than they say . ” and they certainly do not provide an alternative to statutory annexation.
III.
Appellants’ final argument is that the district court erred in disposing of this case on a motion for summary judgment. The district court viewed the action as an appeal from an administrative agency determination and applied the standards set forth in the Administrative Procedure Act, 5 U.S.C. §§ 701-706.
It is clear that Congress, having expressly conferred the power to resolve branch banking questions on the Comptroller, intended for the courts to confine their involvement in such questions to a review of his actions. It follows from that conclusion that summary judgment was proper in this proceeding. Ramapo Bank v. Camp, 425 F.2d 333, 347-348 (3d Cir.1970); Ohio Bank & Savings Co. v. Tri-County National Bank, 411 F.2d 801 (6th Cir.1969); Warren Bank v. Camp, 396 F.2d 52, 55-56 (6th Cir.1968). See United States v. Carlo Bianchi & Co., 373 U.S. 709, 714-715, 83 S.Ct. 1409, 10 L.Ed.2d 652 (1963). The question to be resolved in reviewing administrative action is limited to whether the “action of the administrator was ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ ” Warren Bank, supra, 396 F.2d at 56; 5 U.S.C. § 706(2) (A). It would not have been proper, as the appellants argue, for the district court to have held a de novo hearing into the questions resolved in the administrative proceeding. The district judge’s inquiry was limited to determining whether there was substantial basis in the record considered as a whole for the administrator’s conclusions.
We conclude, therefore, that the record demonstrates a substantial factual basis for the findings of the Comptroller and that those findings were not made arbitrarily or capriciously. The order of the district court is affirmed.
Affirmed.
. 12 U.S.C. § 36(c) states:
A national banking association may, with the approval of the Comptroller of the Currency, establish and operate new branches : (1) Within the limits of the city, town or village in which said association is situated, if such establishment and operation are at the time expressly authorized to State banks by the law of the State in question; and (2) at any point within the State in which said association is situated, if such establishment and operation are at the time authorized to State banks by the statute law of the State in question by language specifically granting such authority affirmatively and not merely by implication or recognition, and subject to the restrictions as to location imposed by the law of the State on State banks.
. The Comptroller based his finding that the area was a “town” in part on his belief that the courthouse would “ [provide a nucleus for the generation of new service, business, and commercial establishments.”
.. In reaching his conclusion, the Comptroller not only considered the evidence of a general population shift from the industrial cities of Hammond and Gary in northern Lake County to residential developments in and around Crown Point, but also had specific evidence of both proposed developments and developments already under construction within the proposed service area.
. At the time the Comptroller and district court were asked to interpret the word “town” as used in section 1707, there was no existing Indiana authority interpreting the provision. However, in Pendleton Banking Co. v. Department of Financial Institutions, Ind., 274 N.E.2d 705 (1971), the Indiana Supreme Court dealt specifically with that subject, holding that the word “town” includes “a compact area having a number of persons living in close proximity to one another with some degree of business being transacted within the area.” 274 N.E.2d at 708. The court noted that each case would require a factual determination as to whether the area could be considered a town, but that a positive determination was not dependent upon the existence of any number of people or certain facilities. U.
. A similar contract is said to have covered the Fountain Ridge Addition but a copy of that contract is not a part of this record.
. Burns Ind.Stat. § 53-734 provides in part:
A city plan commission shall adopt a master plan for the development of the city and of such contiguous unincorporated area outside the corporate limits of the city as, in the judgment of the commission, bears reasonable relation to the development of the city as it shall designate. Except as limited by the political subdivision boundaries of other cities or states, or by the boundaries of unincorporated areas subject to the jurisdiction of other city plan commissions, such designated contiguous unincorporated area may include all or any part of the area within two miles from the corporate limits of the city. . . .
. The section provides :
The common council shall have power, by ordinance, to declare and define the entire corporate boundaries of such city, and such ordinances, properly certified, shall be conclusive evidence, in any court or proceeding, of the boundaries of such city. .
. The paragraph states, in relevant part: The mayor and the proper administrative board with the ratification and approval of the common council shall also have the power, in lieu of annexing any such contiguous territory or in cases not involving any proposed annexation of territory, to enter into contracts with the owners or lessees of designated property in the vicinity of the city, whether within or without county in which the city is located, providing for the payment or contribution of money to the city to be used for such municipal or public purposes as may be specified in such contract. .
. The relevant portion of Burns Ind.Stat. § 48-701 states:
Such contracts may be entered into for such period of time, not exceeding fifteen [15] continuous years under any one [1] such contract, with first and second class cities, and not exceeding four [4] continuous years under any one [1] such contract with third, fourth and fifth class cities. .
. Burns Ind.Stat. § 48-701:
[I]f the contract so provides, during the effective term of any such contract the designated property of such contracting owners or lessees shall not be subject to annexation by the contracting city.
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_geniss
|
G
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
KALASANCKAS v. HINES, Director of United States Veterans’ Bureau.
No. 5045.
Court of Appeals of District of Columbia.
Argued Jan. 7, 1930.
Decided Feb. 4, 1930.
Hallook P. Long and Daniel L. Grant-ham, both of Washington, D. C., for appellant.
Leo A. Rover and J. T. Brady, both of Washington, D. C., for appellee.
Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.
VAN ORSDEL, Associate Justice.
This appeal is from a judgment of the Supreme Court of the District of Columbia denying appellant a writ of mandamus to compel the Director of the United States Veterans’ Bureau to award him compensation for total- disabilities alleged to result from the “permanent loss of the use of both feet,” as provided in paragraph (3) of section 202, of the World War Veterans’ Act of 1924, 43 Stat. 618 (38 USCA § 473).
It appears that there was issued to appellant a policy of war risk insurance in the amount of $10,000, payable upon his death or total permanent disability. The Veterans’ Bureau ruled that the policy had matured because of appellant’s total permanent disability, on April 20, 1918, and paid him disability benefits thereunder until December 19, 1921, refunding to him all premiums collected thereunder since the date of its maturity. Thereafter the Veterans’ Bureau discontinued the payment of disability benefits and 'required appellant to reinstate his war risk insurance policy, and later to convert it into a government life insurance policy, deducting amounts due as premiums monthly from his compensation, up to and including the month of April, 1929.
Appellant, failing to get relief from this ruling in the Bureau, filed suit in the Supreme Court of the District of Columbia on the original war risk insurance policy, claiming that it had matured on April 20, 1918, by reason of the loss of the use of both feet. Issue was joined thereon, and the' court entered a special finding to the effect that plaintiff had suffered the loss of the use of both feet on April 20, 1918, which, under the statute, constituted total permanent disability. A judgment was thereupon entered on February 4, 1929, for all disability benefits due under the original policy not theretofore paid, and for all premiums collected since the date of the maturity of said policy not theretofore refunded. Appellee Director, in compliance with the judgment, paid the disability benefits thereunder, but refused to refund to appellant the amounts deducted as premiums, and continued to deduct these amounts from the amount allowed appellant as compensation up until the filing of the petition in the present ease. This ease therefore grows out of the failure of the Bureau to rerate appellant for compensation in compliance with the judgment of the court.
The case is resolved to the question of whether or not the finding of fact by the Supreme Court of the District to the effect that appellant has injuries which constitute “the permanent loss of the use of both feet from and after the 20th day of April, 1918,” is res adjudicata and conclusive upon the Director in the determination of the issues of fact arising in a claim by the plaintiff for compensation under the War Veterans’ Act of 1924.
We are of opinion that the findings of fact made by the court, however persuasive, are not conclusively binding upon the Director in the matter of rerating for compensation. Section 205 of the Act (38 USCA § 494) provides that the Bureau, on- its own motion, “may at any time review an award and, in accordance with the facts found upon such review, may end, diminish, or increase the compensation previously awarded.” Authority is given the Bureau under paragraph (4), § 202, of the Act (38 USCA § 477), to establish a “schedule of ratings of reductions in earning capacity from injuries or combinations of injuries shall be adopted and applied by the bureau,” under which ratings may be as high as 100 per cent. “The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations.” The Bureau, in finally adjudicating appellant’s ease, rated his disability at 70 per cent., and fixed his compensation accordingly. Section 5 of the Act (38 USCA § 426) provides that the decision reached in a ease of this sort by the Bureau on questions of fact shall be conclusive.
While it is true that the trial court found as a fact that plaintiff had suffered the loss' of the use of both feet, the court was there determining an insurance case arising under a different article of the statute from the ease here under consideration; and the question before the court was whether or not plaintiff was permanently and totally disabled, either by the loss of the use of his feet or for any other reason, at a time when his insurance contract was in force. The Director here'is exercising his discretion and judgment in rating for compensation purposes a rating based upon plaintiff’s individual impairment in earning capacity. The Director may well have found that, though there is a substantial loss of the use of both feet, plaintiff still possesses considerable earning capacity, which could be taken into consideration in determining the percentage of incapacity.
In Silberschein v. United States, 266 U. S. 221, 45 S. Ct. 69; 71, 69 L. Ed. 256, the court, in respect of the binding effect of a finding by a tribunal outside of the Veterans’ Bureau, said: “These are all matters bearing, at most, upon the soundness of the Director’s determination upon a matter properly submitted to- his judgment, and fall far short of establishing its arbitrary character.” In other words, the finding of the court in the present ease does not reduce the discretionary power of the Director, in fixing compensation, to a mere ministerial duty.”
From this review o-f the provisions of the act it is apparent that the judgment of the court in the insurance ease is not conclusive or res adjudicata upon the Bureau in establishing a rerating for compensation purposes. The findings of the Bureau are not made final and conclusive under the statute, but are subject to review and change by the Bureau “on its own motion,” whenever the Director may deem it advisable. It follows that the broad discretionary power thus conferred cannot be controlled by mandamus.
The judgment is affirmed, with costs.
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_initiate
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
Regis Ann GOULD, as Parent Guardian and next of friend of Aaron Russell Gould and Adrienne Marie Gould, Regis Ann Gould, as Special Administrator of the Estate of Gary Francis Gould; Regis Ann Gould, Plaintiffs-Appellants, v. U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES; Public Health Service, Defendants-Appellees.
No. 88-3091.
United States Court of Appeals, Fourth Circuit.
Argued Feb. 5, 1990.
Decided June 8, 1990.
As Amended June 18, 1990.
Joseph Cornelius Ruddy, Jr., Hyattsville, Md., for plaintiffs-appellants.
Lowell V. Sturgill, Jr., U.S. Dept, of Justice, Washington, D.C., for defendants-ap-pellees.
Breckinridge L. Willcox, U.S. Atty., Juliet A. Eurich, Asst. U.S. Atty., Baltimore, Md., Sally K. Trebbe, Office of the Gen. Counsel, Dept, of Health and Human Services, on brief, Washington, D.C., for defendants-appellees.
Before ERVIN, Chief Judge, and RUSSELL, WIDENER, HALL, PHILLIPS, MURNAGHAN, SPROUSE, CHAPMAN, WILKINSON, and WILKINS, Circuit Judges, sitting en banc.
CHAPMAN, Circuit Judge:
Regis Ann Gould filed this action individually, and in the dual capacity as special administrator of the estate of her late husband, Gary Francis Gould, and as a parent guardian and next friend of her minor children, Aaron Russell Gould and Adrienne Marie Gould, seeking damages for the alleged wrongful death of Gary Francis Gould resulting from alleged medical malpractice. The district court granted the defendants’ motion for summary judgment and found that the claim was time barred under 28 U.S.C. § 2401(b). Appellant asserts that her claim was timely because such claim did not accrue until she learned that one of the treating physicians was a federal employee. We find that the cause of action accrued when the plaintiffs learned of both the existence and the cause of the decedent’s injury, and we affirm.
I
On August 27, 1980, the decedent, Gary Francis Gould, began experiencing headache, fever, nausea, stiff neck and other symptoms of illness. These conditions persisted and on the morning of August 30, 1980, he went to the South County Family Health Care Corporation in Anne Arundel County, Maryland, and was treated by James Kevin O’Rourke, M.D., a commissioned officer of the United States Public Health Service assigned to the National Health Service Corps and working at the health center. The Commissioned Corps of the Public Health Service is established and administered pursuant to the Public Health Service Act, 42 U.S.C. §§ 204 et seq. The National Health Service Corps is established pursuant to 42 U.S.C. § 254d. The purpose of the Corps is to provide health care providers in areas designated as health manpower shortage areas, and the Public Health Service is an agency in the Department of Health and Human Services.
After being treated by Dr. O’Rourke, Mr. Gould returned home, but his condition deteriorated. He called Dr. O’Rourke again, and on the afternoon of August 30, 1980, he was admitted to the Anne Arundel General Hospital where Dr. Barry R. Nathan-son, M.D., a civilian employee of the United States Public Health Service in the National Health Service Corps, consulted with Dr. O’Rourke about Mr. Gould’s condition. Each of these doctors was a federal employee assigned to the South County Family Health Care Corporation in a health manpower shortage area.
Numerous tests were performed with negative results and it was thought that the symptoms were from a viral syndrome. However, when a rash developed on September 3, Dr. O’Rourke suspected Rocky Mountain Spotted Fever, and a consultation with an infectious disease specialist confirmed this diagnosis. Antibiotic therapy was immediately begun, but Mr. Gould died at the hospital on September 4, 1980. During the course of treatment, particularly prior to the diagnosis of Rocky Mountain Spotted Fever, members of the Gould family complained about the deterioration in Gould’s condition and were advised that the condition was a virus.
In a letter of August 8, 1983, plaintiffs’ counsel requested information from the Department of Public Health regarding the “exact work status” of Dr. O’Rourke. The Department of Health and Human Services (HHS) was promptly notified of this request and responded to the inquiry. ' On September 2,1983, a HHS attorney notified plaintiffs’ attorney by telephone of Dr. O’Rourke’s status as a federal employee at the time he treated the decedent. The following day, plaintiffs’ counsel was advised by HHS that Dr. Nathanson was also a federal employee at the time of such treatment. Plaintiffs' attorney received written confirmation of Dr. O’Rourke’s employment status on September 26, 1983, and a similar notice of Dr. Nathanson’s status on December 16, 1983.
The plaintiffs took no action against the United States at this time, but on September 2, 1983, within hours of the expiration of the claim under Maryland’s three-year statute of limitations, plaintiffs initiated a claim against the individual physicians before the Health Claims . Arbitration Board alleging negligent care and treatment of the decedent. On December 16, 1985, the action before the Health Claims Arbitration Board was dismissed upon a finding that the doctors were employed by the United States Public Health Service and the alleged wrongdoing fell within the scope of their employment, and they were not subject to suit in a state court or forum pursuant to 28 U.S.C. § 1346(b).
In early August 1985, prior to dismissal of the claim before the Health Claims Arbitration Board, an administrative tort claim was presented to the Department of Health and Human Services, Division of Public Health Service, alleging negligence by .National Health Service Corp physicians in failing to expeditiously diagnose and treat Gary F. Gould for Rocky Mountain Spotted Fever. This claim was denied in August 1986 on the ground that it was barred by the statute of limitations applicable to claims prosecuted under the Federal Tort Claims Act, 28 U.S.C. § 2401(b).
In February 1987, plaintiffs initiated the present action in the United States District Court for the District of Maryland. The defendants raised the bar of the two-year limitation provision contained in 28 U.S.C. § 2401(b). Plaintiffs countered that she had neither direct nor implicit knowledge of the status of the physicians as federal employees, and that the statute of limitations should be tolled until plaintiffs were made aware of the fact that the physicians were federal employees, because the exercise of due diligence would not have revealed this fact. The district court rejected this argument and found that the statutory period had expired, and that the court lacked jurisdiction as a matter of law. We agree and affirm.
II
It is well established that the United States Government, as sovereign, is immune from suit unless it consents to be sued. The terms of its consent to be sued in any court define that court’s jurisdiction to entertain the suit. United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941). Congress created a limited waiver of sovereign immunity in the FTCA. 28 U.S.C. §§ 2671-2680. This waiver permits suit only on terms and conditions strictly prescribed by Congress. Honda v. Clark, 386 U.S. 484, 501, 87 S.Ct. 1188, 1197, 18 L.Ed.2d 244 (1967).
Although the FTCA gives limited consent to suits against the federal government for torts committed by its employees while acting within the scope of their official duties, the Act specifically requires an initial presentation of a claim to the appropriate federal agency within two years of the accrual of the cause of action and a final denial by that agency as a jurisdictional prerequisite to suit under the Act. 28 U.S.C. §§ 2401(b), 2675(a); Kielwien v. United States, 540 F.2d 676, 679 (4th Cir.), cert. denied, 429 U.S. 979, 97 S.Ct. 491, 50 L.Ed.2d 588 (1976); West v. United States, 592 F.2d 487, 492 (8th Cir.1979).
The applicable statute of limitation within the framework of the FTCA provides: “A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues_” 28 U.S.C. § 2401(b). This time limitation is jurisdictional and nonwaivable. Kielwien, 540 F.2d at 679.
Statutes of limitation, which “are found and approved in all systems of enlightened jurisprudence,” Wood v. Carpenter, 101 U.S. 135, 139, 25 L.Ed. 807 (1879), represent a legislative determination that “even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and that the right to be free of stale claims in time comes to prevail over the right to prosecute them.” Order of Railroad Telegraphers v. Railway Express Agency, 321 U.S. 342, 349, 64 S.Ct. 582, 586, 88 L.Ed. 788 (1944). While affording plaintiffs what legislatures deem reasonable time to present claims, statutes of limitation give defendants and courts a degree of protection from having to confront controversies in which the search for truth may be thwarted by the loss of evidence, whether by the death or disappearance of witnesses, fading memories, loss of physical evidence, or the like. United States v. Manon, 404 U.S. 307, 322 n. 14, 92 S.Ct. 455, 464 n. 14, 30 L.Ed.2d 468 (1971); Burnett v. New York Central Railroad Co., 380 U.S. 424, 428, 85 S.Ct. 1050, 1054, 13 L.Ed.2d 941 (1965).
Section 2401(b) represents a deliberate balance struck by Congress whereby a limited waiver of sovereign immunity is conditioned upon the prompt presentation of tort claims against the government. The Supreme Court, in recognizing this balance, has instructed the judiciary to abstain from extending or narrowing § 2401(b) beyond that which Congress intended and thereby defeating its obvious purpose. United States v. Kubrick, 444 U.S. 111, 117, 100 S.Ct. 352, 356, 62 L.Ed.2d 259 (1979).
Applying these principles, federal courts with few exceptions have dismissed complaints where a plaintiff failed to file a claim with the appropriate federal agency within the two-year limitations period, even in cases where the plaintiff’s failure to submit a claim in a timely manner was the result of the plaintiffs ignorance of the defendant’s status as a federal employee. Flickinger v. United States, 523 F.Supp. 1372, 1375 (W.D.Pa.1981). Courts have held that despite the harsh impact of this rule on plaintiffs, Wilkinson v. United States, 677 F.2d 998, 1001 (4th Cir.), cert. denied, 459 U.S. 906, 103 S.Ct. 209, 74 L.Ed.2d 167 (1982), and “strong equitable considerations notwithstanding, the two-year limitation period of 28 U.S.C. § 2401(b) cannot be tolled or waived.” Lien v. Beehner, 453 F.Supp. 604, 606 (N.D.N.Y.1978). See also United Missouri Bank South v. United States, 423 F.Supp. 571, 577 (W.D.Mo.1976) (limitation provision of FTCA not to be extended by implication or by equitable considerations).
Although FTCA liability is determined “in accordance with the law of the place where the act or omission occurred,” 28 U.S.C. § 1346(b), federal law determines when a claim accrues. Stoleson v. United States, 629 F.2d 1265, 1268 (7th Cir.1980); Portis v. United States, 483 F.2d 670, 672 n. 4 (4th Cir.1973); Sexton v. United States, 832 F.2d 629, 633 n. 4 (D.C.Cir.1987); Wehrman v. United States, 830 F.2d 1480, 1482-83 (8th Cir.1987). In United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979), the Supreme Court reiterated that the general rule under the FTCA “has been that a tort claim accrues at the time of the plaintiff’s injury, “although in medical malpractice cases it is thought to extend “until the plaintiff has discovered both his injury and its cause.” Id. at 120, 100 S.Ct. at 358.
The clear import of Kubrick is that a claim accrues within the meaning of § 2401(b) when the plaintiff knows or, in the exercise of due diligence, should have known both the existence and the cause of his injury. “This decision signifies a retreat from the expansive view of ‘accrual’ previously adopted by a number of the circuits, including the Fourth Circuit.” Dessi v. United States, 489 F.Supp. 722, 724 (E.D.Va.1980). Under Kubrick, the court concluded in Dessi,
nothing more than knowledge of injury and causation is required for the cause of action to accrue. The action accrues even if the claimant believes that his injury was unavoidable and did not indicate negligent treatment. It is the plaintiff’s burden, once he knows of his injury and its cause, to determine within the limitations period whether or not to file suit.
Id. at 725. See also Gilbert v. United States, 720 F.2d 372, 374 (4th Cir.1983) (“The Supreme Court has determined that a cause of action accrues within the meaning of [28 U.S.C.] § 2401(b) when a prospective plaintiff knows of both the existence of his injury and its cause.”); Dearing v. United States, 835 F.2d 226, 228 (9th Cir.1987) (“A medical malpractice claim does not accrue under the FTCA until the plaintiff discovers, or reasonably should have discovered, his injury and its causes.”); Wehrman, 830 F.2d at 1483 (same).
The question presented by this case is when did the plaintiffs’ claim “accrue” within the meaning of the FTCA? Did the cause of action accrue when plaintiffs learned both of the existence and cause of the decedent’s injury, or did it only accrue when plaintiffs also learned the legal identity of the alleged tort-feasors as federal employees? We hold that plaintiffs’ claim accrued, in accordance with Kubrick, on September 4, 1980, upon the death of Gary Francis Gould. Plaintiffs at this time were aware of the existence of the injury and its cause, including the identity and conduct of attending physicians. This sufficiently armed plaintiffs with the “critical facts” to investigate the claim and present it within the two-year statute of limitations.
The plaintiffs argue that in addition to knowledge of the injury and its cause, Kubrick implies that a claim does not accrue until a plaintiff learns the legal identity of the alleged tort-feasor as a federal employee. The statute of limitation should be tolled, plaintiffs continue, when pertinent information such as knowledge of the injury or the legal identity of the tort-feasor is in the control of the putative defendant, unavailable to the plaintiff or at least difficult to obtain. Significantly, the legal identity of the tort-feasor was presumed in Kubrick. Nowhere in Kubrick is any reference to the legal identity of the tort-fea-sor.
This rule has been considered and rejected in this Circuit. In Baker v. United States, 341 F.Supp. 494 (D.Md.1972), aff'd per curiam, No. 72-1708 (4th Cir. Nov. 30, 1972), it was held that an automobile negligence action filed in state court within the three-year Maryland limitation period but more than two years after the accident was forever barred pursuant to 28 U.S.C. § 2401(b). A defendant driver, who was acting within the scope of his government employment at the time of the accident, initially handled the claim through his insurance company and his own attorney. Some five years after the accident the defendant brought the claim to the attention of government officials, after which the government promptly removed the claim to federal court where the United States was substituted as the party defendant. The plaintiff did not discover until after the statute of limitations had run that the driver who allegedly caused the accident was a federal employee acting within the scope of his employment. “All cases cited or found,” the district court concluded, “have held that the [FTCA] two-year limitation period applies, and that such suits cannot be remanded to the state court to proceed against the government employee individually.” Baker, 341 F.Supp. at 495-96 (citations omitted). The court further stated:
That result in the instant case seems unfair, since no one realized until too late that Smith was in the course of his employment by the government at the time of the accident. However, no facts which would ordinarily amount to an es-toppel against Smith, his insurer or the government have been shown. Other courts have applied the statute strictly against plaintiffs in circumstances which seem to be more favorable to the plaintiff than those in the cases at bar. See, e.g., Mann v. United States, [399 F.2d 672 (9th Cir.1968)]. If this case is appealed, I would be happy to be reversed. But under the statute and the authorities, I must dismiss the suits.
Id. at 496. We affirmed this judgment of the district court. ■
In Wilkinson v. United States, 677 F.2d 998 (4th Cir.), cert. denied, 459 U.S. 906, 103 S.Ct. 209, 74 L.Ed.2d 167 (1982), a rented car driven by a sailor on business for the Navy collided with the plaintiffs automobile. At the time of the collision, the plaintiff knew that the other driver was employed by the Navy. There was no indication, however, that the plaintiff was aware that the driver was actually on government business. We rejected the plaintiffs assertion that the cause of action did not accrue until he learned that the sailor was acting within the scope of his employment at the time of the accident and thus was covered by the FTCA. Id. at 1000. Speaking for the majority, Judge Murnaghan emphasized that the government employee and government officials responded to the plaintiffs claim in a reasonable, timely and fair manner. Moreover, attorneys for the government in Wilkinson, like those in the case before us, “were not shown to have known that the accident had even occurred until a date more than two years after the accrual of the claim.... No less established is the fact that the Government has not behaved in any unfair way, and that, as between it and [plaintiff], the latter, or, more realistically, his counsel, brought about the consequences resulting from counsel’s inaction.” Id. at 1000-01. The same observations, it seems, could be made in the case at bar.
In Henderson v. United States, 785 F.2d 121 (4th Cir.1986), a substitute U.S. mail carrier collided with the plaintiffs automobile. Although the plaintiff had reason to know that the vehicle which struck her may have been a government vehicle, she argued that her cause of action did not accrue until she ascertained that the driver was a federal employee. In rejecting the argument, we held that there was sufficient information available to the plaintiff to put her on notice that the other driver was an agent of the federal government.
The rule which plaintiffs now propose would establish an exception that would change all precedents as to when a medical malpractice action accrues, and would be against the clear admonition in Kubrick that courts should carefully construe the statute of limitation for the FTCA so as not to extend the limited waiver of sovereign immunity beyond that which Congress intended. Id. 444 U.S. at 117-18, 100 S.Ct. at 356-57. Such a holding would greatly expand the rule that was unsuccessfully proposed by the dissent in Wilkinson, because it would place no burden upon a plaintiff or a plaintiffs attorney to exercise reasonable care, to investigate or to take any action to determine the employment status of an alleged tort-feasor.
The well-established rule is that once a prospective plaintiff learns of his injury, he is on notice that there may have been an invasion of his legal rights and that he should investigate whether another may be liable to him. Zeleznik v. United States, 770 F.2d 20, 22 (3d Cir.1985), cert. denied, 475 U.S. 1108, 106 S.Ct. 1513, 89 L.Ed.2d 913 (1986).
While Wilkinson and Henderson, unlike Baker, arguably differ from the present facts because there was no indication that the defendants in the case sub judice were federal employees, Wilkinson and Henderson indicate that plaintiffs have an affirmative duty to inquire as to the legal identity of the defendant. There is no evidence that Mrs. Gould sought to ascertain or was denied access to information concerning the employment status of the treating physicians prior to the expiration of the limitations period. Neither is there evidence that the treating physicians “held themselves out as agents and employees of the private health facility” so as to mislead or deceive the plaintiffs or otherwise hide their legal identity as federal employees. Kubrick, Baker, Wilkinson and Henderson stand for the proposition that a cause of action accrues once the existence of an injury and its cause are known. The statute of limitations under the FTCA commences to run from the date of accrual and does not wait until a plaintiff is aware that an alleged tort-feasor is a federal employee.
The Second Circuit held in Kelley v. United States, 568 F.2d 259, 262 (2d Cir.), cert. denied, 439 U.S. 830, 99 S.Ct. 106, 58 L.Ed.2d 124 (1978), that when the government intentionally delays in order to invoke the statute of limitations, the statute is tolled. In the case at bar, however, there is no evidence that the government stalled the discovery process or otherwise blocked plaintiffs from obtaining information within the limitations period. Indeed, the evidence is to the contrary. While it is true that the employment status of the attending physicians was not made known to plaintiffs at the time treatment was given, it is also true that plaintiffs made no inquiry as to the physicians’ employment status until August 1983. When asked, the government responded promptly to plaintiffs’ request for this information. Unfortunately, such requests were not made until the statute of limitations had expired. The district court correctly observed: “With the death and its cause discovered on September 4, 1980, due diligence is not present when an initial inquiry about who employed the tort-feasors is made 35 months later and then instituting the administrative tort claim two years after the inquiry.”
The facts indicate that plaintiffs failed to exercise due diligence. Indeed, there is nothing in the record to suggest that prior to August 1983 plaintiffs’ counsel made any effort to investigate the legally significant facts which plaintiffs contend would have been undiscoverable even if due diligence had been exercised. This argument, it seems, impliedly concedes that plaintiffs failed to exercise due diligence in investigating the elements of their claim. Plaintiffs have failed to meet their burden and duty of exercising due diligence.
The government is under no obligation to notify every prospective plaintiff of its identity and involvement through its employees in all potential legal actions. Van Lieu v. United States, 542 F.Supp. 862, 866 (N.D.N.Y.1982). The burden is on the plaintiff to discover the employment status of the tort-feasor and to bring suit within the applicable limitations period. See Des-si, 489 F.Supp. at 725 (“It is the plaintiff’s burden, once he knows of his injury and its cause, to determine within the limitations period whether or not to file suit.”); Zelez-nik, 770 F.2d at 23 (once a party learns of his injury he is put on notice of a potential claim and “the burden is upon him to determine within the limitations period whether any party may be liable to him”).
It will not suffice for plaintiffs to assert baldly that “even due diligence would not have discovered the fact that the physicians” were federal employees. The burden is on plaintiffs to show that due diligence was exercised and that critical information, reasonable investigation notwithstanding, was undiscoverable. No evidence was offered to support the assertion that “critical facts” were undiscoverable. Indeed, the government’s prompt response to plaintiffs’ request for information contradicts this contention. No impediment, other than plaintiffs’ inaction, shielded the physicians’ legal identity. In summary, there is neither allegation nor evidence that the government delayed, misled or otherwise obstructed plaintiffs in determining the attending physicians’ employment status.
Plaintiffs’ construction of the limitations statute would obviate the necessity of due diligence, even when the injury and its cause are known and a minimum inquiry would have led plaintiffs to discover in a timely manner the employment status of the treating physicians. This approach would remove incentives for the timely investigation and prompt presentation of claims and would enable a plaintiff to maintain a FTCA action against the government years after plaintiff’s injury and its cause are well known if, for any reason, it escaped the plaintiff’s attention — even absent reasonable investigation — that the alleged tort-feasor was a government agent acting within the scope of his employment. An open-ended rule would vitiate the very purpose of the statute of limitations.
The plaintiffs further contend that their claim should not be barred by the statute of limitations because they were “blamelessly ignorant” of the federal government’s involvement, and such involvement could not have been presumed, implied or discovered, even after the exercise of due diligence. The Eighth Circuit, in Wollman v. Gross, 637 F.2d 544, 548-49 (8th Cir. 1980), cert. denied, 454 U.S. 893, 102 S.Ct. 389, 70 L.Ed.2d 207 (1981), rejected the suggestion that the doctrine of “blameless ignorance” extends the date of “accrual” until the moment when the plaintiff becomes aware of the defendant’s status as a federal employee. The purpose of the statute of limitations is to require the reasonably diligent presentation of tort claims. This may require a plaintiff to obtain legal counsel promptly and together with counsel discover the critical facts and all of their possible legal ramifications so as to enable the plaintiff to bring suit within a reasonable time. Id. at 549. As stated by the Supreme Court in Kubrick:
A plaintiff such as Kubrick, armed with the facts about the harm done to him, can protect himself by seeking advice in the medical and legal community. To excuse him from promptly doing so by postponing the accrual of his claim would undermine the purpose of the limitations statute, which is to require the reasonably diligent presentation of tort claims against the Government.
Kubrick, 444 U.S. at 123, 100 S.Ct. at 360. See id. at 128, 100 S.Ct. at 362 (Stevens, J., dissenting) (“A plaintiff who remains ignorant through lack of diligence cannot be characterized as ‘blameless.’ ”); Sexton, 832 F.2d at 633.
When the facts of a case become so grave as to alert a reasonable person that there may have been negligence in a patient’s treatment, the statute of limitations begins to run against the claimant’s cause of action. See West, 592 F.2d at 492-93, quoting Hulver v. United States, 562 F.2d 1132, 1134 (8th Cir.1977), cert. denied, 435 U.S. 951, 98 S.Ct. 1576, 55 L.Ed.2d 800 (1978). In the case at bar the plaintiffs were immediately aware of the failure to properly diagnose and treat and knew that Drs. O’Rourke and Nathanson were the decedent’s attending physicians. With this information of the physicians’ errors followed by the patient's death, a reasonable person would have been alerted at the time of the death that such death may have been the result of medical negligence.
We are not unmindful that a strict adherence to the requirements of the statute of limitations provision under the FTCA often works a substantial hardship on plaintiffs and may have a harsh impact on a party innocent of any impropriety. Statutes of limitations often make it impossible to enforce what are otherwise valid claims. Although we recognize the hardship resulting to the plaintiffs in this case, we have no choice but to apply the law as written. To accept plaintiffs’ arguments would be rewriting the FTCA to allow broad, open-ended exceptions to §§ 2675(a) and 2401(b). Flickinger, 523 F.Supp. at 1376-77. “Although exceptions to the applicability of the limitations period might occasionally be desirable, we are not free to enlarge that consent to be sued which the Government, through Congress, has undertaken so carefully to limit.” Mann v. United States, 399 F.2d 672, 673 (9th Cir.1968). See also Wollman, 637 F.2d at 549. As the Supreme Court has instructed, it is clearly the prerogative of Congress, not the judiciary, to reform the terms and scope of waiver of sovereign immunity beyond that which Congress intended. Kubrick, 444 U.S. at 117-19, 100 S.Ct. at 356-358.
“It goes without saying,” as the Kubrick Court observed, “that statutes of limitations often make it impossible to enforce what were otherwise perfectly valid claims.” Kubrick, 444 U.S. at 125, 100 S.Ct. at 361. Yet, they serve important, well-established purposes affirmed throughout our jurisprudence. We are bound to give them effect until such time as the creator of such provisions, the legislative branch, exercises its prerogative to amend the statute.
AFFIRMED.
. In his August 8, 1983, letter, plaintiffs’ attorney invited the Department to respond to his request by contacting him or his staff by telephone. The notes from office telephone conversations, identified in the record as defendants’ exhibit 11, show that HHS personnel attempted to contact the attorney by telephone as early as August 18, 1983. HHS personnel spoke with the attorney's secretary, but the attorney was apparently on vacation and unavailable until September.
. The suggestion is made by plaintiffs that the term "cause” means both the cause of the injury from a medical point of view and the legal identity of the alleged tort-feasors. Such a reading of the word "cause,” in this context, is not to be found in our legal precedents. Quoting Dyniewicz v. United States, 742 F.2d 484, 486 (9th Cir.1984), the Third Circuit rejected this broad interpretation of “cause”: "Discovery of the cause of one’s injury, however, does not mean knowing who is responsible for it. The 'cause’ is known when the immediate physical cause of the injury is discovered.” Zeleznik v. United States, 770 F.2d 20, 23 (3d Cir.1985).
. As in the case at bar, the plaintiff was unaware that the defendant driver was a federal employee, neither was there evidence apparent to others involved in the accident to put them on notice that the defendant was a federal employee acting within the scope of his employment.
. The plaintiff in Wilkinson arguably presented a more appealing case than the one before us today in that the case was initiated in a state court prior to expiration of the FTCA statute of limitations. Once the plaintiff was aware of the legal significance of the defendant driver’s status as a federal employee, plaintiff sought to remove the suit to federal court. Nevertheless, we barred the federal action because it was filed in federal court shortly after the FTCA statute had run.
Plaintiffs in the case at bar, however, apparently made no attempt to investigate or file their claim until two years and eleven months after plaintiffs knew of the injury and its cause. Plaintiffs did not file an administrative claim with the HHS until nearly five years after Mr. Gould’s death and nearly two years after receiving confirmation of the attending physicians’ work status. It was six and a half years after the injury before suit was initiated in federal court. Such delays by the plaintiffs surely put defendants at a disadvantage in defending the suit against them.
. We, of course, have no occasion to address the law where the injury is fully revealed but the tortfeasor is unknown and not readily identifiable.
. Several courts have held in automobile accident cases involving federal employees that the strict two-year statute of limitations should not bar claims in federal courts when a state court action or an administrative claim was initiated before the two-year period expired, thereby giving the government notice of such a claim within the limitations period. See e.g., McGowan v. Williams, 623 F.2d 1239 (7th Cir.1980); Cham-bly v. Lindy, 601 F.Supp. 959 (N.D.Ind.1985); Harris v. Burris Chemical, 490 F.Supp. 968 (N.D. Ga.1980). Such exceptions are not universally recognized in the federal courts. Moreover, an exception of this nature would not apply in this case since the plaintiffs did not initiate their first action until more than two years after the death of Mr. Gould.
. In oral argument, plaintiffs’ counsel excused plaintiffs’ failure to exercise due diligence prior to August 1983 by suggesting that Mrs. Gould was reluctant to relive this tragic episode through litigation, and it was not until the Spring or Summer of 1983 that Mrs. Gould felt sufficiently fortified to press forward with her claim. While one is sympathetic to her plight, this is not a legally recognized justification for sleeping on one’s claim. As the court acknowledged in Sexton v. United States, 832 F.2d 629, 636 (D.C.Cir.1987):
[A]ny statute of limitations that puts inquiry burdens on a plaintiff, as this one clearly does, see Kubrick, 444 U.S. at 123 & n. 10, 100 S.Ct. at 360 n. 10, entails a degree of ghoulish behavior. Patients or survivors, whose instinct may well be to shut off from their minds the grim experience through which they have passed, are required instead to follow up on their leads. For persons of any sensitivity this must be a difficult or even repugnant process. Yet, to protect defendants from stale claims, legislatures put potential plaintiffs to the hard choice of proceeding with such inquiries or risking loss of possible claims.
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_respond2_1_4
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". Your task is to determine what subcategory of business best describes this litigant.
Abraham BENJAMINS, as Personal Representative of the Estate of Hilde Ben-jamins, Deceased, Plaintiff-Appellant, v. BRITISH EUROPEAN AIRWAYS, Hawker Siddeley Aviation, Ltd., and Hawker Siddeley Group, Ltd., Defendants-Appel-lees.
No. 111, Docket 77-7201.
United States Court of Appeals, Second Circuit.
Argued Oct. 21, 1977.
Decided March 6, 1978.
Van Graafeiland, Circuit Judge, filed dissenting opinion.
Ronald L. M. Goldman, Marina del Rey, Cal. (Ronald L. M. Goldman & Associates, Marina del Rey, Cal., on brief), for plaintiff-appellant.
George N. Tompkins, Jr., New York City (Condon & Forsyth, Ronald E. Pace and Michael J. Holland, New York City, on brief), for defendant-appellee British European Airways.
James J. Finnerty, Jr., New York City (Mendes & Mount, New York City, on brief), for defendant-appellee Hawker Siddeley Aviation, Ltd.
Before LUMBARD, FEINBERG and VAN GRAAFEILAND, Circuit Judges.
LUMBARD, Circuit Judge:
This appeal, arising out of the death of Hilde Benjamins in the air crash disaster at Staines, England, on June 18, 1972, once again presents us with the much-discussed question whether the Warsaw Convention creates a cause of action. The District Court for the Eastern District dismissed the complaint herein, believing itself bound by our prior decisions to answer that question in the negative. We reverse.
I
On June 18, 1972, a Trident 1 Jet Aircraft — designed and manufactured by Hawker Siddeley Aviation, Ltd. [“HSA”], and owned and operated by British European Airways [“BEA”] — took off for Brussels from London’s Heathrow Airport. Soon thereafter, the plane stalled and crashed into a field, killing all 112 passengers, including Hilde Benjamins. Hilde Benjamins was survived by her husband Abraham; both were Dutch citizens permanently residing in California. BEA and HSA are British corporations with their principal places of business in the United Kingdom. The ticket on which Hilde Benjamins was travelling had been purchased in Los Ange-les, and clearly provided “international transportation” within the meaning of Article 1 of the Convention. Therefore, since the United States and the United Kingdom are both High Contracting Parties, the Convention is applicable to this proceeding.
This suit for wrongful death and baggage loss was brought in April of 1974 in the Eastern District of New York by Abraham Benjamins, as representative of his widow’s estate, on behalf of himself and the children of the marriage. Benjamins’ action was consolidated with a number of others arising out of the same incident, and assigned to Judge Weinstein. In re Air Crash Disaster at Staines, England, MDL No. 147 (J.P. M.D.L.). The major allegations in the complaint invoked Articles 17 and 18 of the Convention. These read, in relevant part, as follows:
Article 17. The carrier shall be liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking. Article 18(1). The carrier shall be liable for damage sustained in the event of the destruction or loss of, or of damage to, any checked baggage or any goods, if the occurrence which caused the damage so sustained took place during the transportation by air.
Dismissed once for lack of subject matter jurisdiction — only diversity was originally alleged — the complaint was amended to invoke 28 U.S.C. §§ 1331 and 1350 as well. After both sides had submitted briefs, Judge Weinstein ruled that this suit did not “arise” under a treaty of the United States, as § 1331 requires; he relied on Second Circuit precedent indicating that the Convention does not create a cause of action, but only establishes conditions for a cause of action created by domestic law. This appeal followed.
II
The first question we address is whether any court in this country has jurisdiction in the “international or treaty sense.” Smith v. Canadian Pacific Airways, Ltd., 452 F.2d 798, 800 (2d Cir. 1971). Only then may we consider “the power of a particular United States court, under federal statutes and practice, to hear a Warsaw Convention case — jurisdiction in the domestic law sense.” Id.
Jurisdiction in the treaty sense is determined by Article 28(1) of the Convention, which provides that
[a]n action for damages must be brought, at the option of the plaintiff, in the territory of one of the High Contracting Parties, either before the court of the domicile of the carrier or of his principal place of business, or where he has a place of business through which the contract has been made, or before the court at the place of destination.
The third alternative of Article 28(1) is satisfied in this case: the ticket which constituted the contract of carriage was purchased in Los Angeles, through BEA. The fourth alternative appears also to fit, as decedent’s round-trip ticket provided for an ultimate destination in the United States.
Nonetheless, courts in the United States, and particularly the federal courts, are not the only possible forum for Abraham Benjamins. The courts of England are open to his suit — permitted by the first and second alternatives of Article 28(1) — as are the state courts of California. Plaintiff’s burden is not met by a showing that Article 28(1) permits some court of this country to hear his complaint; he must further show that some jurisdictional statute permits a federal court to do so.
Ill
The two bases for federal jurisdiction pleaded in Benjamins’ amended complaint are the Alien Tort Claims Act, 28 U.S.C. § 1350, and a general federal question “arising under” a treaty.
The Alien Tort Claims Act does not provide a basis for jurisdiction over this action. Without having to discuss the question of whether the wrongful death action against a carrier is essentially one in tort or in contract, we are satisfied that Benjamins’ complaint alleges a violation of neither the law of nations nor any treaty of the United States.
The Convention itself does not seek to outlaw accidents, crashes and other events causing death, injury or property loss. Rather, it sets forth the terms under which victims of such events may recover their damages. Airlines do not “violate” the Convention when they crash — even if their negligence was “wilful” — but only when they fail to compensate victims who are adjudged to be appropriate recipients of damages. The fact that a claimant must bring an action to recover does not constitute a violation by the carrier of its obligations.
Nor do the acts alleged violate the law of nations under the standards we set in IIT v. Vencap, Ltd., 519 F.2d 1001, 1015 (2d Cir. 1975) : “a violation ... of those standards, rules or customs (a) affecting the relationship between states or between an individual and a foreign state, and (b) used by those states for their common good and/or in dealings inter se.” See Dreyfus v. Von Finck, 534 F.2d 24, 30-31 (2d Cir. 1976) . This law does not include a prohibition of air crashes.
IV
Accordingly, we must determine whether any of the causes of action pleaded by Benjamins “arise under” the Warsaw Convention. It is true that in the past we have said that the Warsaw Convention does not create a cause of action. We believe, however, that a re-examination of the question requires a different answer.
A
At the time the United States adhered to the Convention, it seemed obvious to all that the Convention created causes of action for wrongful death or personal injury (Article 17), and for damage to baggage (Article 18). One court went so far as to say, “If the Convention did not create a cause of action in Art. 17, it is difficult to understand just what Art. 17 did do.” Salamon v. Koninklijke Luchtvaart Maatschappij, N.V., 107 N.Y.S.2d 768, 773 (Sup. Ct.1951), aff’d mem., 281 App.Div. 965, 120 N.Y.S.2d 917 (1st Dept. 1953).
The view that the Convention does not create a cause of action is, in large part, attributable to two cases we decided in the 1950s, Komlos v. Compagnie Nationale Air France, 209 F.2d 436 (2d Cir. 1953), rev’g on other grounds, 111 F.Supp. 393 (S.D.N.Y. 1952), cert. denied, 348 U.S. 820, 75 S.Ct. 31, 99 L.Ed. 646 (1954), and Noel v. Linea Aeropostal Venezolana, 247 F.2d 677 (2d Cir.), cert. denied, 355 U.S. 907, 78 S.Ct. 334, 2 L.Ed.2d 262 (1957):
The Second Circuit had spoken twice, the Supreme Court had denied certiorari, and in all subsequent American Warsaw cases it was either assumed or decided that the claim must be founded on some law other than the Convention itself.
Lowenfeld & Mendelsohn, The United States and the Warsaw Convention, 80 Harv.L.Rev. 497, 519 (1967).
The analysis on which this structure of holding rests is to be found in Judge Lei-bell’s opinion for the district court in Kom-los. In determining whether a cause of action had been assigned to an insurer or remained the property of an estate, Judge Leibell held that the action envisioned by Article 17 was one created by domestic law, except in cases where the forum provided no analogous action. Ill F.Supp. at 401-02.
Judge Leibell relied heavily on a letter sent by Secretary of State Cordell Hull to President Roosevelt on March 31, 1934, recommending adherence to the Convention. In the course of a lengthy discussion of the benefits of adherence, Hull wrote:
The effect of article 17 (ch. Ill) of the Convention is to create a presumption of liability against the aerial carrier on the mere happening of an accident occasioning injury or death of a passenger subject to certain defenses allowed under the Convention to the aerial carrier.
[1934] U.S.Av.Rep. 240, 243. This was seen by Judge Leibell as clear evidence that the Convention created only presumptions, not new causes of action.
In reversing Judge Leibell on another issue, we did not refer to the portion of his opinion discussed above, or, indeed, even mention the Warsaw Convention. 209 F.2d at 438-40. Nonetheless, in Noel, we followed our opinion in Komios, which, we said, had “impliedly agreed” with Judge Leibell. 247 F.2d at 679. Though most of our opinion in Noel was devoted to disapproving Judge Leibell’s suggestion that Article 17 might create a cause of action for wrongful death where domestic law did not, it is apparent that — however founded— Noel, as the law of this circuit, stands for the proposition that the Convention does not create a cause of action. See, e. g., Husserl v. Swiss Air Transport Co., 388 F.Supp. 1238, 1251-52 (S.D.N.Y.1975).
Recently, an inconsistency has developed between this rule and another line of Warsaw cases we have decided. For example, in Reed v. Wiser, 555 F.2d 1079 (2d Cir.), cert. denied, 434 U.S. 922, 98 S.Ct. 399, 54 L.Ed.2d 279 (1977), we indicated — without addressing the question in the instant case — that “the Convention was intended to act as an international uniform law,” id. at 1083, and that the substantive law of the Convention was binding on the forum, id. at 1092. The time has come to examine the question whether our view of the Convention as an internationally binding body of uniform air law permits us any longer to deny that a cause of action may be founded on the Convention itself, rather than on any domestic law.
B
1. The minutes and documents of the meetings, held in 1925 and 1929, which led to the adoption of the Convention do not specifically indicate whether the parties contemplated that an action for damages under the Convention would arise under the terms of the treaty or those of domestic law. What is made quite clear is the extent to which the delegates were concerned with creating a uniform law to govern air crashes, with absolutely no reference to any national law (except for the questions of standing to sue for wrongful death, effects of contributory negligence and procedural matters; see Articles 21, 24(2), 28(2)).
The delegates were concerned lest major air crash cases be brought before courts of nations whose courts were not (according to current Western standards) well organized, nor whose substantive law (according to the same standards) progressive. To avoid the “prospect of a junglelike chaos,” Reed v. Wiser, supra, 555 F.2d at 1092, the Convention laid down rules that were to be universally applicable. While it is not literally inconsistent with this universal applicability to insist that a would-be plaintiff first find an appropriate cause of action in the domestic law of a signatory authorized by Article 28 to hear his claim, it is inconsistent with its spirit. This inconsistency is an argument against the rule of Noel and Komlos, for the Convention is to be so construed as to further its purposes to the greatest extent possible, even if that entails rejecting a literal reading. Eck v. United Arab Airlines, Inc., 360 F.2d 804, 812 (2d Cir. 1966).
2. Other articles of the Convention throw some light on the question whether Articles 17 and 18 create causes of action. Article 30(3) provides that in the case of transportation by several carriers constituting one undivided transportation,
[a]s regards baggage or goods, the passenger or consignor shall have a right of action against the first carrier, and the passenger or consignee who is entitled to delivery shall have a right of action against the last carrier, and further, each may take action against the carrier who performed the transportation during which the destruction, loss, damage, or delay took place. .
The most reasonable interpretation of this section is that Articles 18 and 30(3) create a cause of action against the appropriate carrier when more than one carrier is involved. See Seth v. British Overseas Airways Corp., 329 F.2d 302, 305 (1st Cir.), cert. denied, 379 U.S. 858, 85 S.Ct. 114, 13 L.Ed.2d 61 (1964): “Thus the Convention not only imposes liability on an air carrier for the loss of checked baggage but also gives a passenger whose baggage is lost a right of action to enforce that liability. Seth’s action, therefore, seems clearly to be one arising under a treaty of the United States.” There is no reason to believe that the Convention’s effect is any different when only one carrier is involved.
Article 24 has been cited by proponents of both views of the Convention. In the French version — the only official version— the Article reads:
(1) Dans les cas prévus aux articles 18 et 19 toute action en responsabilité, á quelque titre que ce soit, ne peut étre exercée que dans les conditions et limites prévues par la présente Convention.
(2) Dans les cas prévus á l’article 17, s’ap-pliquent également les dispositions de l’alinéa précédent .
The unofficial translation reads:
(1) In the cases covered by articles 18 and 19 any action for damages, however founded, can only be brought subject to the conditions and limits set out in this convention.
(2) In the cases covered by article 17 the provisions of the preceding paragraph shall also apply. .
The crucial phrases, of course, are “however founded” (“a quelque titre que ce soit”), and “conditions” (“conditions”). There is no internal evidence to indicate whether “however founded” was intended to refer to a number of possible domestic law sources or to a number of possible factual bases for the envisioned action.
As to “conditions,” that term in English does imply that the source of the action must be sought elsewhere than the Convention, which supplies only conditions and limits. Nonetheless, there is some evidence for the view that the French has not been so translated here as to provide the best interpretation of the delegates’ meaning, and that “basis” or “terms” would be a closer translation in this context of “conditions.” Calkins, supra, 26 J. Air L. & Comm, at 225-26. The arguments as to Article 24 are not conclusive either way.
3. More compelling is the evidence of how other signatories of the Convention have interpreted its provisions. The clearest picture is found in other common-law jurisdictions. In the statute enacting the original 1929 Convention in the United Kingdom, it was provided that
[a]ny liability imposed by Article seventeen of the said [Warsaw Convention] on a carrier in respect of the death of a passenger shall be in substitution for any liability of the carrier in respect of the death of that passenger either under any statute or at common law . ...
Carriage by Air Act, 1932, 22 & 23 Geo. 5, c. 36, § 1(4). When the Convention was reenacted as amended at the Hague in 1955, Carriage by Air Act, 1962, 9 & 10 Eliz. 2, c. 27, this language was omitted, but there is no indication that any change of substantive law was intended. No case law since 1962 has demonstrated that the source of carrier liability lies anywhere but in the Convention. See also Carriage by Air Act, 1939, 3 Geo. 6, c. 12 (Canada).
V
The fact that a proposition of law has been accepted for some twenty years is evidently a sign that circumspection is needed in seeking to overturn that proposition. We recognize that our holdings in Komlos and Noel have become the rule not of this circuit alone, but of others as well. See, e. g., Maugnie v. Compagnie Nationale Air France, 549 F.2d 1256, 1258 (9th Cir.), cert. denied, 431 U.S. 974, 97 S.Ct. 2939, 53 L.Ed.2d 1072 (1977). Nonetheless, we are convinced that — in light of both the paucity of analysis that accompanied the creation of the rule and the strong arguments in favor of the opposite rule — the Komlos/Noel rule ought no longer to be followed.
We do not believe that the passing remark of Secretary Hull in a lengthy letter was intended to state the total of what Article 17 might provide; we do not see what there was about our decision in Kom-los that constituted implicit agreement with Judge Leibell, and compelled the result in Noel; we do not find technical and disputable interpretations of the language of other articles of the Convention conclusive in determining this important question of policy.
We do, on the other hand, believe that the desirability of uniformity in international air law can best be recognized by holding that the Convention, otherwise universally applicable, is also the universal source of a right of action. We do see that uniformity of development can better be achieved by making federal as well as state courts accessible to Convention litigation. We do find the opinions of our sister signatories to be entitled to considerable weight.
One factor which makes federal jurisdiction peculiarly appropriate in large air crash cases was not present at. the time Komlos and Noel were decided. Section 1407 of 28 U.S.C., enacted by Pub.L.No.90-296, 90th Cong., 2d Sess., 82 Stat. 109 (April 29,1968), created the Judicial Panel on Mul-tidistrict Litigation, and authorized the creation of the procedures found in the Manual for Complex Litigation. These procedures, such as consolidation and assignment to one expert judge, can — by reducing expenses and expediting dispositions — benefit all parties to air disaster actions, in which the plaintiff/victims may come from many different parts of the country. Obviously, these procedures are unavailable among the courts of the several states.
Finally, we do not anticipate any large increase in the volume of federal litigation as a result of our holding. Most cases will fall under 28 U.S.C. § 1332, as they do today; only when plaintiffs and defendants are all aliens, but the United States is a nation with treaty jurisdiction, will it be necessary to invoke 28 U.S.C. § 1331.
VI
Accordingly, we reverse Judge Wein-stein’s order of dismissal. We leave it to his discretion to determine, in a manner consistent with our opinion, which of Benja-mins’ causes of action he may decide and which, if any, he may not; in particular, we leave to him the question whether to take-pendent jurisdiction over the claims against HSA.
Reversed and remanded for further proceedings consistent with our opinion.
. Convention for the Unification of Certain Rules Relating to International Transportation by Air, 49 Stat. 3000, T.S. No. 876 (concluded Oct. 12, 1929; adhered to by United States June 27, 1934) [hereinafter referred to as “Convention”; “Article(s) ......” means Article(s) ......of the Convention].
. Judge Weinstein cited Husserl v. Swiss Air Transport Co., 485 F.2d 1240 (2d Cir. 1973), aff’g 351 F.Supp. 702 (S.D.N.Y.1972); Noel v. Linea Aeropostal Venezolana, 247 F.2d 677 (2d Cir.), cert. denied, 355 U.S. 907, 78 S.Ct. 334, 2 L.Ed.2d 262 (1957); and Komlos v. Compagnie Nationale Air France, 111 F.Supp. 393 (S.D.N. Y.1952), rev’d on other grounds, 209 F.2d 436 (2d Cir. 1953), cert. denied, 348 U.S. 820, 75 S.Ct. 31, 99 L.Ed. 646 (1954). He indicated, however, that he thought the matter not free from doubt, and commended the question to our careful attention.
. Jurisdiction over HSA is alleged under principles of pendent jurisdiction.
. Personal jurisdiction is not an issue in this case, as each defendant has submitted to the in personam jurisdiction of the court.
. Smith v. Canadian Pacific Airways, Ltd., supra, indicates that venue is no concern of Article 28(1), 452 F.2d at 800-01. It answers only the question “whether suit may be brought at all in the courts of the United States,” whether state or federal and regardless of location. Id. at 800 n. 3.
. The District Courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.
. But see Wyman v. Pan American Airways, 181 Misc. 963, 43 N.Y.S.2d 420 (Sup.Ct.1943), aff’d, 267 App.Div. 947, 48 N.Y.S.2d 459 (1st Dept.), aff'd, 293 N.Y. 878, 59 N.E.2d 785, cert. denied, 324 U.S. 882, 65 S.Ct. 1029, 89 L.Ed. 1432 (1944).
. Some commentators, at least, have attributed this to its being taken for granted that the Convention itself supplied the cause of action. E. g., Lowenfeld & Mendelsohn, supra, 80 Harv. L.Rev. at 517. A stronger statement comes from the Chairman of the United States Delegation to the Hague Conference to Amend the Warsaw Convention, G. Nathan Calkins:
[T]he author is convinced that the draftsmen of the Convention intended to create a right-of-action based on the contract of carriage; that the draftsmen did in fact carry this intention out in the Convention as signed; that it is self-executing; and therefore the supreme law of the land today.
Calkins, The Cause of Action Under the Warsaw Convention, 26 J. Air L. & Comm. 217, 218 (1959).
. We note that, after Noel, not even the total lack of an appropriate cause of action at domestic law would permit an action to be founded on the Convention itself.
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". What subcategory of business best describes this litigant?
A. auto
B. chemical
C. drug
D. food processing
E. oil refining
F. textile
G. electronic
H. alcohol or tobacco
I. other
J. unclear
Answer:
|
sc_adminaction_is
|
A
|
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 GAS PIPE LINE CO. v. IDEAL CEMENT CO. et al.
No. 61.
Argued December 13, 1961.
Decided March 19, 1962.
E. Dixie Beggs argued the cause and filed briefs for appellant.
James Lawrence White argued the cause for Ideal Cement Co., appellee. With him on the briefs were Marion R. Vickers, Stephen H. Hart and John Fleming Kelly. S. P. Gaillard, Jr. filed a brief for Scott Paper Co., appellee.
Charles S. Rhyne, by special leave of Court, 368 U. S. 805, argued the cause for the City of Mobile, Alabama, as amicus curiae, urging reversal. With him on the brief was Hersel H. E. Plaine.
Per Curiam.
This is an appeal from the Court of Appeals’ reversal of a summary judgment entered for the appellant in the United States District Court for the Southern District of Alabama. The suit, based on diversity of citizenship, sought contractual reimbursement of taxes paid to the City of Mobile relative to sales of natural gas to the appellees. They defended on the ground that the contracts contemplated reimbursement only of valid tax payments, and that the License Code of the City of Mobile, § 1, par. 193 (1955), under which the tax was exacted and paid, was invalid under the Commerce Clause of the United States Constitution. The Court of Appeals sustained this contention, by interpreting both the primary and enforcement provisions of the License Code and its surrounding state legislation as operating not to tax a separable local portion of interstate commerce but as a means of licensing appellant’s right of entry into the City from without the State. 282 F. 2d 574, 580. We postponed determination of our jurisdiction to consideration of the merits, 366 U. S. 916, and now find that the case is properly here under 28 U. S. C. § 1254 (2).
The interpretation of state law by the Court of Appeals, in an opinion by its Alabama member, was rendered in advance of construction of the License Code by the courts of the State, which alone, of course, can define its authoritative meaning. We ought not, certainly on this record, either accept the Court of Appeals’ construction or, on an independent consideration, reject what the Alabama Supreme Court may later definitively approve. The availability of appropriate declaratory-judgment proceedings under Ala. Code, Tit. 7, §§ 156-168 (1940), avoids this unsatisfactory dilemma. Wise judicial administration in this case counsels that decision of the federal question be deferred until the potentially controlling state-law issue is authoritatively put to rest. See Leiter Minerals, Inc., v. United States, 352 U. S. 220, 228-229. Accordingly, the judgment of the Court of Appeals is vacated to permit a construction of the License Code of the City of Mobile, so far as relevant to this litigation, to be sought with every expedition in the state courts.
It is so ordered.
Mr. Justice Whittaker took no part in the disposition of this case.
Mr. Justice Douglas.
This case should be disposed of here; the long-drawn-out litigation foisted on the parties by the Court is needless. No matter how the local ordinance is construed the tax is constitutional.
Congress under the Natural Gas Act, as amended, would have the authority to prevent interstate pipelines from delivering any gas for industrial use. Federal Power Comm’n v. Transcontinental Gas Pipe Line Corp., 365 U. S. 1. Yet once the interstate movement commences, the line between permissible and impermissible local regulation is no longer a puzzle.
United is an interstate pipeline company that brings natural gas into Alabama and supplies it in the City of Mobile to a distributor, Mobile Gas. United delivers gas to Mobile Gas at three stations not for resale, but for delivery to appellees under contracts between appellant and appellees. The gas, when delivered to Mobile Gas, is at a lower pressure than when it enters the State. When Mobile Gas delivers it to the industrial customers here involved, the gas is at a still lower pressure. The case is therefore on all fours with East Ohio Gas Co. v. Tax Comm’n, 283 U. S. 465. In speaking of the delivery of gas at a reduced pressure within Ohio by an interstate carrier, the Court said that the gas was then
“divided into the many thousand relatively tiny streams that enter the small service lines connecting such mains with the pipes on the consumers’ premises. So segregated the gas in such service lines and pipes remains in readiness or moves forward to serve as needed. The treatment and division of the large compressed volume of gas is like the breaking of an original package, after shipment in interstate commerce, in order that its contents may be treated, prepared for sale and sold at retail. ... It follows that the furnishing of gas to consumers in Ohio municipalities by means of distribution plants to supply the gas suitably for the service for which it is intended is not interstate commerce but a business of purely local concern exclusively within the jurisdiction of the State.” Id., at 471.
Here too the package is broken on delivery of the gas intrastate to Mobile Gas, the distributor, at a reduced pressure.
It matters not that the City of Mobile calls the tax levied here a “license tax.” In Interstate Pipe Line Co. v. Stone, 337 U. S. 662, Mississippi levied a “privilege” tax on the gross receipts of a pipeline that was bringing oil from Mississippi fields to loading racks in that State, where the oil was pumped into railroad cars for shipment out of state.
Mr. Justice Rutledge, speaking for himself and three others, said:
“Since all the activities upon which the tax is imposed are carried on in Mississippi, there is no due process objection to the tax. The tax does not discriminate against interstate commerce in favor of competing intrastate commerce of like character. The nature of the subject of taxation makes apportionment unnecessary; there is no attempt to tax interstate activity carried on outside Mississippi’s borders. No other state can repeat the tax. For these reasons the commerce clause does not invalidate this tax.” Id., at 667-668.
Mr. Justice Burton, who also joined in the judgment, approved the tax for the following reason: “I concur in the judgment solely on the ground that the tax imposed by the State of Mississippi was a tax on the privilege of operating a pipe line for transporting oil in Mississippi in intrastate commerce and that, as such, it was a valid tax.” Id., at 668.
In Southern Natural Gas Corp. v. Alabama, 301 U. S. 148, an interstate pipeline company made deliveries in Alabama to three distributors and one industrial user. These activities were held to be local, on which a nondiscriminatory franchise tax could be levied. In Panhandle Eastern Pipe Line Co. v. Public Service Comm’n, 332 U. S. 507, 514, direct sales by interstate pipelines to local consumers (as distinguished from deliveries to local distributing companies for resale) were held to be subject to state regulation. Speaking of the Natural Gas Act, we said:
"Congress, it is true, occupied a field. But it was meticulous to take in only territory which this Court had held the states could not reach. That area did not include direct consumer sales, whether for industrial or other uses. Those sales had been regulated by the states and the regulation had been repeatedly sustained. In no instance reaching this Court had it been stricken down.” Id., at 519.
The “license tax” in the present case, if it be such, is only a tax on a wholly intrastate activity, to wit — the delivery of gas to the local distributor for delivery to local consumers.
This conclusion is more in the tradition of our cases than was Panhandle Eastern Pipe Line Co. v. Public Service Comm’n, 341 U. S. 329, where a State was allowed to exact from an interstate pipeline company a certificate of public convenience and necessity to make direct deliveries of gas to industrial consumers. The Court said that “the sale and distribution of gas to local consumers” was a transaction “essentially local” and was “subject to state regulation without infringement of the Commerce Clause.” Id., at 333. The sales there proposed were to be made directly from the pipeline to the industrial users. Here the gas first goes to the local distributor, which in turn reduces the pressure and makes delivery to the industrial customers. The local nature of the transaction is more apparent and less complicated than it was in the Panhandle case.
I would reverse the judgment below and hold the tax valid.
The practice of remitting parties who sue in court to an administrative remedy (see, e. g., Pennsylvania R. Co. v. United States, 363 U. S. 202) or of remitting those who sue in a federal court to a state court (Clay v. Sun Insurance Office, 363 U. S. 207; Clark, Federal Procedural Reform and States’ Rights, 40 Tex. L. Rev. 211) places a financial burden on litigants, which can be afforded only by those who can take the cost as a tax deduction or get reimbursement through increased rates. For a case where the parties at the end of 14 years were still litigating a $7,000 (approx.) claim after starting in one court, being shunted to an agency, and then ending in a different court, see Pennsylvania R. Co. v. United States, supra.
In Gardner, The Administrative Process, Legal Institutions Today and Tomorrow (1959), pp. 139-140, it was said:
“Anyone who considers judicial review of agency action must allow about a year if he has access to direct review by a court of appeals and about two years if he must file in a district court and then carry the controversy to the court of appeals. If a certiorari question should develop which would warrant Supreme Court review, another year should be added. If the result of the review should be to require further agency proceedings, yet another year or so must be added. Except for the litigant who advantages by delay, not many administrative issues warrant an investment of time such as this. In probably a majority of the circumstances, it would be sounder business practice to adjust at once to the agency decision and go on from there, rather than to endure several years of uncertainty in order to try to improve the result.
“The matter of expense is closely related to that of delay. It is not possible to be precise, and surely it is not polite to mention money. Yet none can discuss realistically judicial review unless he recognizes that an issue of average complexity cannot adequately be carried to the courts except at a cost which will range upward from $5,000.” See also Landis, Report on Regulatory Agencies to the President-Elect (1960), pp. 5-13.
The cost of printing records for this Court is now $3.80 a page.
Question: Did administrative action occur in the context of the case?
A. No
B. Yes
Answer:
|
songer_district
|
A
|
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".
NORTON CO. v. COMMISSIONER OF INTERNAL REVENUE.
No. 2534.
Circuit Court of Appeals, First Circuit.
June 10, 1931.
James W. Mudge, of Boston, Mass. (Ropes, Gray, Boyden & Perkins, of Boston, Mass., on the brief), for petitioner.
J. Louis Monarch, Sp. Asst, to Atty. Gen. (G. A. Youngquist, Asst. Atty. Gen., Andrew D. Sharpe and John MacC. Hudson, Sp. Assts. to Atty. Gen., and C. M. Charest, Gen. Counsel, and De Witt M. Evans, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C., on the brief), for Commissioner of Internal Revenue.
Robert N. Miller and Ward Loveless, both of Washington, D. C., amici curiae.
Before BINGHAM, ANDERSON, and WILSON, Circuit Judges.
ANDERSON, Circuit Judge.
This petition for a review of an adverse decision of the Board of Tax Appeals (19 B. T. A. 1234) involves petitioner’s income and profits tax for 1919 of $82,779.78. The controlling issue of law is whether the Commissioner was precluded from reducing the taxpayer’s amortization allowance, made on April 8, 1924, under section 234 (a) (8) of the Revenue Act of 1918 (40 Stat. 1057, 1077), by making another allowance in 1927.
The facts, conclusive on us, as in effect found by the Board of Tax Appeals, are as follows:
(1) The petitioner, which is a Massachusetts corporation with principal office at Worcester, claimed a deduction for amortization in the amount of $1,296,133.68 under the' provisions of section 234 (a) (8) of the Revenue Act of 1918 in connection with amended tax returns for the years 1918 and 1919 filed with the Commissioner on or about December 15,1921, and supported its claims by submission to the Bureau of a detailed and comprehensive report of an appraisal company and-subsequently further supported its claim by submission to the Bureau of a brief dated May 29, 1922, and a letter addressed to the Bureau engineer assigned to the field investigation of the petitioner’s amortization claim, to which letter there were attached sundry schedules containing supplemental information requested by the engineer together with additional data.
(2) Under date of January 5, 1923, the Bureau engineer assigned to the field investigation of petitioner’s amortization elaim submitted his report upon the elaim recommending an amortization allowance of $1,002,977.-30 in lieu of the amount claimed hy the petitioner ($1,296,133.68) and of such allowance of $1,002,977.30 allocating $981,647.89 to the year 1918 and $21,615.74 to the year 1919. The said report was signed by H. F. Coombs, as “Engineer,” by W. T. Jennings as “Reviewing Engineer,” and by S. T. De La Mater as “Chief of Section.”
(3) Under date of June 15,1923, the petitioner submitted to the Bureau a brief: “Re Revision of income, war and excess-profits tax returns for the calendar years 1918 and 1922, inclusive.” In this brief petitioner referred to the engineer’s report of January 5, 1923 (described in the preceding paragraph), as a report in which—
“ ® * * The Bureau of Internal Revenue, Amortization Section, stated the final results of an examination of the company’s elaim for amortization by an engineer from the Amortization Section, * * * ”
■ — and thereupon readjusted all of its computations affected by the amortization allowance to accord with the amortization allowance contained in said report of the Bureau engineer.
(4) Under date of February 29,1924, the Internal Revenue agent assigned to conduct a field examination of petitioner made his report to the Commissioner, and in such report recommended the same allowance for amortization as that previously allowed by the Amortization Section of the Bureau.
(5) Under date of April 8,1924, the Bureau addressed to the petitioner'a letter as follows:
“Treasury Department,
“Office of Commissioner of Internal Revenue,
“Washington, April 8, 1924.
“IT :CR: E W W C-App.
“Norton Company, Worcester, Massachusetts.
“Sirs: Reference is made to your request dated June 15, 1923, that your profits taxes for the years 1918 and 1919 be computed under the provisions of Sections 327 and 328 of the Revenue Act of 1918.
“Before consideration can be given your ■ application there must be a final determination of your net income; therefore it will be) necessary for you to advise this office within ten days from the date of this letter of your acquiescence in the determination of your net income as shown in schedules attached or exceptions, if any, which you make thereto.
“Respectfully,
“J. G. Bright, Deputy Commissioner.
“Enclosure: Statement Schedules 1 to 17, incl.”
To this letter were attached schedules embodying the detailed determination of net income for the years 1918 and 1919, and in these schedules amortization was allowed in the amounts recommended by the engineers of the Amortization Section.
(6) Under date of April 16,1924, the petitioner submitted to the Bureau its statement of exceptions to determination of net income and invested capital for the years 1918 and 1919, as shown in the Bureau letter of April 8,1924, referred to in item 5 preceding; this statement, however, including no exception with respect to the amortization deduction allowed by the Bureau in the said letter of April 8,1924.
(7) Under date of May 23, 1924, the petitioner submitted to the Bureau a letter in reply to the Bureau’s letter of April 8,1924; such reply being as follows:
“May 23, 1924.
“Commissioner of Internal Revenue, Washington, D. C.
“Sir: I, Aldus C. Higgins, Treasurer of the Norton Company, a corporation having its principal office at New Bond Street, Worcester, Massachusetts, do hereby agree to and acquiesce in the determination of the net income of the Norton Company for the calendar years 1918 and 1919, as set forth in Treasury Department letter of April 8,1924, symbols IT:CR:E WWC-App, except for the reservations contained in our brief dated April 16,1924, in the amounts therein stated, as follows:
“Calendar Tear 1918.
“1. Deduction is claimed of depreciation upon patente and contract.
“2. Depletion is claimed on Bauxits Mined.
“Calendar Year 1919.
“1. Deduction is claimed of depreciation upon patents and contracts.
“2. Loss is claimed on account of liquidation of the General Electro-Chemical Company.
“Respectfully submitted,
“Aldus C. Higgins.”
(8) At this time, namely, not later than May 23, 1924, the petitioner had submitted to the Bureau all the information and data which it cared to introduce or which the Bureau’s representatives had requested, as bearing upon or affecting its amortization allowance, and it was the understanding of the petitioner’s officers at that time that the amortization allowance made (as set forth in the Bureau’s letter of April 8, 1924, see item 5 hereof) was final and complete; and the petitioner evidenced its belief that the amortization .allowance thus determined was final and complete by removing from its idle amortizable equipment tags which had previously been placed upon such equipment for the purpose of identifying it as equipment acquired subsequent to April 5, 1917, and as therefore subject to amortization.
(9) Subsequent to May 23, 1924, the petitioner negotiated further with the Bureau in respect of the exceptions taken by it as described in item 6 of this statement of facts, but in such negotiations no reference whatever was made, either by the petitioner or by the representatives of the respondent, to the amortization allowance, and none of the exceptions thus considered affected or were affected by the allowance for amortization of war facilities under section 234 (a) (8) of the statute.
(10) In the autumn of 1926, approximately two and one-half years after the letters of April 8, 1924, from the Bureau, and í\Iay 23, 1924, from the petitioner the respondent transmitted to the petitioner its first intimation that the amortization settlement, as evidenced by the said 1924 letters, was to be reopened, and the Bureau based its 'desire to reopen that settlement and redetermine amortization expressly upon the existence of the then “present rulings of the General Counsel,” and the necessity for consideration by the Bureau of “additional data,” further intimating that failure on the part of the petitioner to co-operate would result in an “arbitrary disallowance of a very large portion of the previous amortization allowance.” Following this letter of the Bureau, representatives of the petitioner conferred in person with the ehief of the amortization section, on November 16', 1926, for the purpose of learning why the Bureau proposed to reopen the amortization matter, and were given, as the reason, that “the original computation had not been made in accordance with the present methods of the Department”, and that the Bureau therefore “wanted additional information,” and were further told that unless the petitioner furnished such additional information “an arbitrary computation would have to be made which would probably not be favorable to the Company.”
(11) The petitioner did not at any time, either before or after March 3, 1924, request the Commissioner or the Bureau to re-examine the petitioner’s return with respect to amortization and to redetermine its amortization allowance. The petitioner did submit, under date of December 15; 1926, a “Revised Claim for Amortization,” made up on a basis then indicated by the Bureau’s representatives as in conformity with their then rulings, but that document was submitted in part because of the consistent practice of the petitioner to co-operate with the Bureau and in part because of the insistence of the Bureau’s representatives as described in item 10 hereof, and their intimation that, unless the material was submitted an arbitrary and unfavorable adjustment would be made.
The petitioner’s representatives were under the impression that the Bureau was within its rights in demanding the submission of revised amortization data and in reopening the examination of amortization and in submitting the additional data submitted on December 15, 1926, the petitioner’s representatives had no intention of waiving any of the petitioner’s legal rights, and did not waive such rights. In the letter from the petitioner’s representatives to the Commissioner transmitting the above described “revised claim for amortization,” there was contained the following paragraph:
“The report of the amortization engineer on the original claim for amortization was made under date of January 5, 1923. This report was subsequently incorporated in the computations of the income-tax unit in its determination of the taxable net income for the calendar years 1918 and 1919. It is now nearly four years since that date, and the taxpayer had every reason -to believe that a final determination of its amortization allowance had been made.”
(12) Under date of November 4, 1926, the petitioner, by letter, requested the Commissioner to expedite the consideration of its income tax returns for the years 1917 to 1920, inclusive. Petitioner was advised on November 8, 1926, that a conference would be arranged at an early date, not later than November 18, 1926, due to the imminence of the expiration of the statute of limitations, and, in order to allow sufficient time for the proper consideration of the amortization question, waivers extending the statute of limitations should be submitted. A conference was held shortly thereafter in "Washington, with an engineer of the Amortization Section, as a result of which the petitioner filed its revised amortization claim of December 15, 1926.
(13) Further investigation of petitioner’s claim for amortization was made by Engineer Griffith, who submitted a report thereof dated July 8, 1927. The last determination of petitioner’s claim for amortization was made by respondent on December 26, 1927, when the deficiency letter upon which this petition is based was mailed.
(14) On page 3 of the report of Engineer William F. R. Griffith, dated July 8, 1927, referred to in finding of fact numbered 13, pursuant to which report of the Commissioner’s last determination of amortization, contained in the deficiency letter of December 26,1927, was made, there appears the following explanation of the occasion for the report:
Engineer Coombs made a field investigation of this claim in October, 1922, and submitted his report on January 5, 1923. In his report amortization was disallowed on a number of facilities and a number of the facilities were found to have been sold or discarded. Amortization has been allowed on the balance of the facilities practically as claimed.
Since Engineer Coombs’ report was submitted, S. .M. 4225 has been promulgated, which states as follows:
Both excess capacity and lowered replacement cost can be given consideration on the same facilities only in the case of individual items when the post-war cost of a similar facility of the proper size is definitely established.”
The case was returned to the Engineering Division from the Consolidated Return Division in April, 1926, for reconsideration of the amortization allowance.
The question presented involves the following statutes: Revenue Act of 1918, c. 18, 46 Stat. 1057, 1077:
“See. 234. (a) That in computing the net income of a corporation subject to the tax imposed by section 236 there shall be allowed [as deductions]: * * *
“(8) In the ease of buildings, machinery, equipment, or other facilities, constructed, erected, installed, or acquired, on or after April 6, 1917, for the production of articles contributing to the prosecution of the present war, and in the case of vessels constructed or acquired on or after such date for the transportation of articles or men contributing to the prosecution of the present war, there shall be allowed a reasonable deduction for the amortization of such part of the cost of such facilities or vessels as has been borne by the taxpayer, but not again including any amount otherwise allowed under this title or previous Acts of Congress as a deduction in computing net income. At any time within three years after the termination of the present war the Commissioner may, and at the request of the taxpayer shall, reexamine the return, and if he then finds as a result of an appraisal or from other evidence that the deduction originally allowed was incorrect, the taxes imposed by this title and by Title III for the year or years affected shall be redetermined and the amount of tax due upon such redetermination, if any, shall be paid upon notice and demand by the collector, or the amount of tax overpaid, if any, shall be credited or refunded to the taxpayer in accordance with the provisions of section 252.”
The Revenue Act of 1921, c. 136, 42 Stat. 227, 254, contains, for present purposes, the same provision, substituting March 3, 1924, for the phrase “within three years after the termination of the present war.” Section 234 (a) (8). By section 278 (b) of the Revenue Acts of 1924 (chapter 237, 43 Stat. 366) and of 1926 (chapter 26-, 44 Stat. 9) it is provided :
“Sec. 278 * * * '(b) Any deficiency attributable to a change in a deduction tentatively allowed under paragraph (9) of subdivision (a) of section 214, or paragraph (8) of subdivision (a) of section 234, of the Revenue Act of 1918 or the Revenue Act of 1921, may be assessed, or a proceeding in court for the collection of such tax may be begun without assessment, at any time.” 26 USCA § 1659.
These statutes make March 3, 1924, the /‘dead line,” both for applications by the taxpayer for amortization allowances, and for the Commissioner to begin the determination of such allowances, but do not prevent the Commissioner from thereafter completing a determination begun before March 3, 1924. Counsel on both sides are agreed on this construction of the statutes.
The Commissioner contends that petitioner’s claim for amortization was in process of audit continuously from 1921 to 1927; that the only conclusive determination thereof was that made in 1927. The petitioner contends that there was final or conclusive determination of the amortization allowance on or before April 8,1924, and that the Commissioner was without authority thereafter to institute a redetermination.
Exhibit 22 (a), put in the record by the Commissioner, sets forth the organization of the Bureau of Internal Revenue under Office Order No. 715, dated February 21, 1923. Under the title “Organization of the Income Tax Unit,” it provides, under section 12:
“The Head of the Special Audit Division will supervise and be responsible for the operation of the following sub-division and sections: * * *
“E. The Amortization Section, which will initiate the audit of all claims under section 214 (a) (9) of the War Revenue Act of 1918, for amortization of investments in war facilities, and determine in all eases of claims for amortization the allowable deductions on this account.”
The facts found (paragraph 2, supra) show that this Amortization Section made its report under date of January 5, 1923, duly signed by the engineers and by the Chief of Section. This report reduced the taxpayer’s claimed allowance for amortization by nearly $309,000. The taxpayer accepted this reduction, and readjusted all its computations in accordance therewith, and applied, under date of June 15, 1923', for special relief under sections 327 and 328 of the Revenue Act of 1918. These sections (40 Stat. 1093) provide for special relief, where, owing to abnormal conditions affecting the' capital and income of the taxpayer, a tax, determined without reference to these sections, would be grossly disproportionate to the taxes imposed on comparable representative corporations. As indicated in the respondent’s letter of April 8, 1924, final determination of the taxpayer’s net income is necessary before consideration can be given to the special relief provided under these sections. They operate only on the rate — not on the net income. The necessary implication of this letter of April 8, 1924, is that the Commissioner had finally determined the amortization allowance; that nothing remained in abeyance except the formal assent of the taxpayer to that allowance, as well as to other items involving the amount of the net income, as shown in the schedules attached to the letter. The taxpayer’s reply, on May 23, 1924, accepted the Commissioner’s audit, with certain reservations; but these reservations have no connection with the allowance for amortization. The facts found show that only the named reservations remained undetermined; that on their determination the audit would be ripe for considering special relief under sections 327 and 328, supra.
Owing to a change in the rulings of the general counsel of the Internal Revenue office, nearly two and a half years later, the Commissioner notified the taxpayer that the amortization allowance was to be reopened. While the taxpayer co-operated with the Commissioner, it waived no legal rights. A change in the policy of the Tax Bureau cannot affect rights already settled.
The nature of amortization proceedings grounded good reason for the special limitation contained in the legislation therefor.
The value of the extra or special equipment of a manufacturing plant with facilities for producing war supplies could only, be determined after a reasonable time afteri the war. On the other hand, to prolong the investigation of the cost and amount of such facilities, that must be entirely or largely charged off as either useless or of greatly decreased value, would necessarily involve much confusion, divert the executives’ attention from the regular administration of their business, and be, in general, an expensive and wasteful process, both for the Tax Bureau and for the taxpayer.
Significance attaches to the fact that there is no statutory provision for a' waiver of this special limitation provision. The taxpayer cannot apply, even with the assent of the Commissioner, after March 3, 1924; the Commissioner may not begin a determination of an amortization allowance after March 3, 1924; only an uncompleted return, begun before March 3, 1924, may be completed thereafter.
We think that the Board’s ruling in this case that, “so long as any part of the petitioner’s audit was in abeyance, the entire audit was in abeyance,” is plainly inconsistent with the purpose of Congress in providing for a special limitation upon amortization determinations. In effect, the ruling of the Board would nullify this special time limit; for other items of a tax audit may be indefinitely extended, beyond the four or five years’ limit, by agreement betwefen the Commissioner and the taxpayer. T© tie up amortization allowances with every other item entering into a tax audit would plainly make the special limitation nugatory.
It should also be noted that, while the statutes of 1924 and 1926, supra, expressly-provided for tentative allowances, the letter of April 8, 1924, neither contained the word “tentative,” nor were the surrounding facts consistent with any purpose to make such allowance tentative. On the contrary, all the proceedings in the Internal Revenue office necessarily implied that, on the taxpayer’s acceptance of the substantially reduced allowance of the taxpayer’s claim by the amortization section of the Tax Bureau, that part of the basis of the petitioner’s ultimate tax should be regarded as finally settled. To repeat, the taxpayer accepted the Bureau’s findings, and the Commissioner conclusively indicated that this matter was closed.
To sustain the ruling of the Board that the amortization remained open until December 27,1927, over nine years after the Armistice, and over three and a half years after the “close of the war,” would be to nullify the plain intent of Congress. It would require plain language to justify leaving, for this unduly prolonged period, over a million dollars’ worth of manufacturing facilities subject to repeated appraisal. It is inconsistent with repeated, cited, rulings of the solicitor of the Internal Revenue Bureau.
The case of Ohio Falls, etc., Works v. Commissioner, 16 B. T. A. 1038 [affirmed June 13, 1931, 50 F.(2d) 660 (C. C. A. (6th)] is clearly contrary to the decision of the Board in the present ease. If the Board was right in that case, it was wrong in this case.
We are constrained to the conclusion that the Commissioner’s attempt to reopen the amortization allowance in 1926 or 1927 was ultra vires; that, under the circumstances here disclosed, the amortization allowance had been conclusively determined on or before April 8,1924.
The order or decision of the Board of Tax Appeals is reversed, and the ease is remanded to that Board for further proceedings not inconsistent with this opinion.
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_execord
|
C
|
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 executive order or administrative regulation by the court favor the appellant?" This does include whether or not an executive order was lawful. 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".
COASTAL STATES ENERGY COMPANY, Plaintiff-Appellant, v. Donald P. HODEL, Secretary of the United States Department of the Interior; Robert F. Burford, Director of the Bureau of Land Management, United States Department of the Interior; Robert Lopez, Chief, Minerals Section, Utah State Office of the Bureau of Land Management, United States Department of the Interior; and the United States Department of the Interior, Defendants-Appellees. Sierra Pacific Power Company; Utah Mining Association; State of Utah; Unelco, Inc., Amicus Curiae.
No. 86-1301.
United States Court of Appeals, Tenth Circuit.
April 9, 1987.
Rehearing Denied July 8, 1987.
Lawrence E. Stevens (Patrick J. Garver and Patricia J. Winmill of Parsons, Behle & Latimer, Salt Lake City, Utah; and Brian E. McGee of Parcel & Mauro, Denver, Colo., with him on the briefs), for plaintiff-appellant.
Peter Stirba, Asst. U.S. Atty. (Brent D. Ward, U.S. Atty., with him on the brief), Salt Lake City, Utah, for defendants-appellees.
John Madariaga and Margaret A. Manes, Reno, Nev., for amicus curiae Sierra Pacific Power Co.
David L. Wilkinson, Dallin W. Jensen and Michael M. Quealy, Salt Lake City, Utah, for amicus curiae State of Utah.
K.L. Mclff of Jackson, Mclff & Mower, Richfield, Utah, for amicus curiae Unelco, Inc.
James T. Jensen, Price, Utah, for amicus curiae Utah Mining Ass’n.
Before LOGAN, MOORE and McWILLIAMS, Circuit Judges.
McWILLIAMS, Circuit Judge.
This dispute concerns a readjustment by the Secretary of the Interior of the terms and conditions of two coal leases between the United States and Coastal States Energy Company, the latter a Texas corporation which operates an underground coal mine, known as the SUFCo Mine, in Sevier County, Utah. On administrative appeal, the Interior Board of Land Appeals (IBLA) upheld, in the main, the readjustments made by the Bureau of Land Management (BLM), holding that the readjustments were timely made and were themselves lawful. Coastal States Energy Co., 70 IBLA 386 (1983). Thereafter Coastal filed a petition for review in the United States District Court for the District of Utah. After discovery, Coastal and the Secretary filed motions for summary judgment. The district court granted summary judgment for the Secretary on all of Coastal’s claims except the third claim. Subsequently, additional evidentiary matter bearing on the third claim was given the district court. Then, after further hearing, the district court granted the Secretary summary judgment on Coastal’s third claim. The district court’s opinion entering summary judgment in favor of the Secretary on all of Coastal’s claims appears as Coastal States Energy Co. v. Watt, 629 F.Supp. 9 (D.Utah 1985). On appeal, we affirm with one exception. The instant case is a companion case to FMC Wyoming Corporation v. Hodel, 816 F.2d 496 (10th Cir.1987).
Coastal, as the successor in interest, holds two leases issued by the Secretary under the Mineral Lands Leasing Act of 1920 (MLLA), 41 Stat. 437 (1920), amended by 30 U.S.C. § 201 et. seq. (1976), permitting underground coal mining in Sevier County, Utah. The first lease, designated as the SL lease, was entered into on September 11, 1941. The second lease, designated the U lease, was executed on March 1, 1962. MLLA (1920) provided that coal leases issued by the Secretary would be for an indeterminate term, but subject to the right of the Secretary to readjust the terms of the lease at the end of each 20-year period following the date of issuance of the lease. 41 Stat. 437, § 7 (1920). In accord with the provisions of MLLA (1920), both of Coastal’s leases provided for readjustment of terms and conditions at the end of each 20-year period following the date of issuance of the lease.
Coastal’s SL lease had its first 20-year anniversary date on September 11, 1961. At that time the SL lease was readjusted by the Secretary, the readjustment including raising the royalty rate from ten cents to fifteen cents per ton of coal mined.
The second 20-year anniversary date for the SL lease was September 11, 1981. On July 9, 1981, 63 days before the September 11, 1981, anniversary date, BLM sent notice to Coastal of its intent to readjust the terms and conditions of the SL lease. The readjusted terms and conditions of the SL lease were sent Coastal on September 28, 1981. Coastal objected to the readjusted terms and conditions. The BLM, on March 18, 1982, dismissed these objections, and, as above indicated, on February 9, 1983, the IBLA, on administrative appeal, upheld in major and pertinent part the decision of BLM. Coastal States Energy Co., 70 IBLA 386 (1983).
Coastal’s U lease had its first 20-year anniversary date on March 1, 1982. On October 9, 1981, over five months before the March 1, 1982, anniversary date, the Secretary gave notice to Coastal of his intent to readjust the terms and conditions of the U lease. On December 24, 1981, slightly more than two months before the March 1, 1982, anniversary date, BLM sent the readjusted terms and conditions to Coastal. Coastal’s objections to the readjustments to the U lease were dismissed by the BLM in its decision of March 18, 1982, and BLM’s action in regard to the U lease changes was upheld with one minor exception by the IBLA in its decision of February 9, 1983. 70 IBLA 386. Coastal then sought judicial review of the IBLA’s decision of February 9, 1983, as such relates to both leases.
I. Timeliness of the Readjustment
Section 7 of MLLA (1920) provides that a coal lease issued pursuant to the Act shall be for an indeterminate period, but upon the condition that “at the end of each 20-year period” succeeding the original date of the lease the Secretary may readjust the terms and conditions of the original lease. Coastal’s two leases contain language tracking the statutory language. In the companion case of FMC Wyoming Corp. v. Hodel, 816 F.2d 496 (10th Cir.1987), we found that notice of intent to readjust the terms and conditions of a coal lease sent on or before the anniversary date preserves the Department’s right to readjust the terms within a reasonable time thereafter. Having carefully considered Coastal’s arguments to the contrary, we again conclude that the readjustment of Coastal’s leases was timely as the Interior duly notified Coastal of its intent to readjust the lease prior to the anniversary dates of the lease.
II. Lawfulness of the Readjusted Terms and Conditions
The BLM readjusted the terms and conditions of Coastal’s two leases in several particulars, including the royalty rate increase to 8% of the value of the coal mined, the deletion of the credit against royalty payments for rental payments, the substitution of monthly royalty payments for quarterly payments, increased bond requirements, and change of the readjustment intervals from 20 to 10 years. Coastal puts in issue the lawfulness of all these readjustments, with particular emphasis, of course, on the royalty increase.
Our starting point in this discussion is MLLA (1920), which was the statutory authority under which the present leases were issued by the Secretary. Section 7 of that Act provided as follows:
Leases shall be for an indeterminate period ... upon the further condition that at the end of each 20-year period succeeding the date of the lease such readjustment of terms and conditions may be made as the Secretary of the Interior may determine, unless otherwise provided by law at the expiration of such periods.
Both of Coastal’s leases incorporated the language of this statute.
As we stated in FMC Wyoming Corp., supra, section 7 of the Act, inter alia, clearly advises the lessee coal company that at the end of 20 years the Secretary is empowered to readjust the terms and conditions of the coal lease as he, or she, may determine. This is, of course, a very broad authority which Congress saw fit to grant to the Secretary, an authority which is only subject to the proviso “unless otherwise provided by law at the expiration of such [twenty-year] periods.” So, at the end of 20 years, the Secretary may readjust as he, or she, determines, unless the statutory law in effect on the 20-year anniversary date provides, for example, that a particular term be included in the lease. As we found in FMC Wyoming Corp., supra, the passage of FCLAA (1976) established such statutory law, setting forth the minimum provisions for federal coal leases. Such being the case, the Secretary in readjusting the terms and conditions of Coastal’s leases was required to act in conformity with FCLAA (1976).
Although, as indicated, the Secretary readjusted several significant terms and conditions of the SL and U leases on their 20-year anniversary dates, primary focus is on the increased royalty rate. On the anniversary date of each lease Coastal was paying, and for the prior 20 years had been paying, a royalty rate of fifteen cents per ton of coal mined. Although MLLA (1920) empowered the Secretary to originally determine and fix the royalty rate, it also provided that such rate should not be less than five cents per ton. FCLAA (1976), in effect, reaffirmed the authority of the Secretary to determine and fix the royalty rates of coal leases, but also provided that such rate must be “not less than twelve and one-half per centum of the value of the coal ..., except that the Secretary may determine a lesser amount in the case of coal recovered by underground mining operations.” Acting pursuant to this statute, the Department published a regulation which reads as follows:
A lease shall require payment of a royalty rate of not less than 8 per centum of the value of the coal removed from an underground mine, except that an authorized office may determine a lesser amount, but in no case less than 5 percent if conditions warrant.
43 C.F.R. § 3473.3-2(a)(3) (1979).
The BLM interpreted the foregoing regulation as meaning that on the anniversary dates of Coastal’s underground coal leases the Minerals Management Service had no authority to recommend a royalty rate less than 8% of the value of the coal mined, and in its decision said so in just so many words. BLM went on to add that if Coastal felt the 8% rate to be excessive, its only avenue of relief was to file an application for temporary royalty rate reduction under section 39 of MLLA. See 30 U.S.C. § 209 (1982).
The IBLA, upholding, on appeal, the ruling of the BLM that under the applicable regulations Coastal’s royalty rate must be initially readjusted to 8% of the-value of the removed coal, rather than a lesser figure, quoted the following language with approval:
Departmental regulation 43 CFR 3473.-3-2 provides two ways of granting underground coal lessees relief from the statutory I2V2 percent royalty. Subsections (a)(1) and (a)(3) implement 30 U.S.C. § 207(a) (1976) and provide that a rate as low as 5 percent may be determined at lease issuance____ Alternatively, the Department may establish a royalty rate in the lease and provide relief after lease issuance upon application of the lessee under subsection (d), which implements 30 U.S.C. § 209 (1976). Appellant has not persuaded us that it is unreasonable to establish an 8 percent royalty rate in the lease now, since the rate may temporarily be reduced later if conditions warrant. If a lower rate is put into the lease now and economic conditions change favorably during the term of the lease, there will be no opportunity for upward adjustment of the royalty figure until the lease is again ripe for readjustment. The method chosen by BLM thus assures the United States a fairer return over the life of the lease, provides appellant some relief from the statutory Í2V2 percent rate, yet affords appellant an opportunity for further royalty relief when it is really needed. We previously have affirmed BLM decisions denying special royalty relief at lease readjustment, requiring lessees to seek such relief under 43 CFR 3473.3-2(d). Lone Star Steel Co., 65 IBLA 147 (1982); Garland Coal and Mining Co., 49 IBLA 400 (1980).
Coastal States Energy Co., 70 IBLA 386, 393 (1983) (quoting Blackhawk Coal Co., 68 IBLA 96, 99 (1982)).
As mentioned at the outset, the district court on review of the decision of IBLA initially denied the Secretary’s motion for summary judgment on Coastal’s third cause of action, which concerned the imposition of the 8% royalty rate on coal recovered in underground mines. Subsequently, after a more complete rule making record was presented to the district court, the district court granted the Secretary’s motion for summary judgment on the third cause of action and upheld the readjusted royalty rate of 8%. In its opinion, the district court carefully analyzed the matter and concluded that initially fixing Coastal’s royalty rate at 8% was proper and noted that there was a procedure whereby Coastal could later seek review and relief if it could justify a lesser rate. See 629 F.Supp. 9 at 29-33 (D.Utah 1985). We are in general accord with the district court’s handling of this matter with one conceivably important exception.
The exception concerns the authority of the Minerals Management Service, in the instant case, to consider on the anniversary date of Coastal’s underground mine leases a royalty rate less than 8% of the value of the coal mined. The regulation in the first instance requires that the royalty rate shall not be less than 8% of the value of the coal mined, but the same regulation in the next breath goes on to state that, notwithstanding the 8% figure, “an authorized officer may determine a lesser amount, but in no case less than 5% if conditions warrant.” BLM, IBLA, and the district court have all held that, notwithstanding the rather clear language of the regulation, the royalty rate on the anniversary date of a coal lease must be readjusted to 8%. Agency interpretation of its own regulations is to be accorded considered judicial deference, but, at the same time, the courts should require agency action to conform to its own rules and regulations.
As applied to the instant case, Coastal suggests that, assuming the applicability of FCLAA (1976), under the regulation any mandatory minimum royalty rate is 5%, not 8%, of the value of the coal mined. We reject that suggestion. However, we agree with Coastal that it is error for the BLM to automatically fix the readjusted royalty rate for all underground coal at 8%. Such completely ignores the ensuing proviso in the same regulation that a lesser amount, but not less than 5%, may be set, “if conditions warrant.”
Subsequent to IBLA’s decision in the instant case, the IBLA recently held that Minerals Management Service, now succeeded by BLM, has the authority to set a royalty rate for underground coal at less than 8% in readjusting an existing coal lease. In Utah Power & Light, 80 IBLA 180 (1984), the BLM “admitted” that the regulations do allow a royalty rate of less than 8% to be placed on a readjusted undermine coal lease “if conditions warrant.” IBLA agreed with BLM and remanded the case there before it to the BLM for further consideration. This particular pronouncement of IBLA is in accord with our reading of the regulations.
As indicated, the readjusted royalty rate was not the only issue raised by Coastal in its petition for review, although it was perhaps the principal one. However, having concluded that FCLAA (1976) has application to the Secretary’s readjustment of the terms and conditions of Coastal’s two leases, it follows that Coastal’s other claims concerning terms mandated by FCLAA were also properly rejected. In sum, FCLAA (1976) applies to pre-FCLAA leases on their post-FCLAA anniversary date under which the leases were issued. See FMC Wyoming Corp., supra. Such was the intent behind FCLAA (1976) and such intent is in accord with MLLA (1920). Other action by the Secretary in readjusting Coastal’s leases not mandated by FCLAA (1976) is, in our view, a reasonable exercise of the Secretary’s broad authority to readjust.
Judgment affirmed, except for that part of the judgment which upheld the IBLA’s decision that on the anniversary dates of Coastal’s two leases the royalty rate had to be set at 8% of the value of the coal mined, and that a lesser figure could not even be considered. That part of the judgment only is reversed, and that particular matter only shall, by order of the district court, be remanded to IBLA with direction that further proceedings be in accord with this opinion.
. Coastal's third claim raised several issues challenging the validity of the Department’s 8% royalty readjustment regulation.
. Coastal’s SL lease reserved in the lessor "[t]he right to readjust and fix royalties payable hereunder and other terms and conditions at the end of 20 years from the date hereof and thereafter at the end of each succeeding 20 year period during the continuance of this lease unless otherwise provided by law at the time of expiration of any such period." The U lease contained similar language modifying only the "right to readjust” to read "the right reasonably to readjust."
. The original royalty rate for the SL lease was 15$ per ton. However during the first 20 years, this rate was reduced to 10$ per ton as a result of economic hardship.
. Coastal received a standard notice-informing Coastal that its leases would be readjusted to the minimum royalty rate prescribed in Interior's regulations. The notice also stated that the readjusted terms would be sent within two years of the date of the notice.
. Coastal also contends that the Interior’s own regulations require a final readjustment prior to the anniversary date. We do not agree. A fair reading of 43 C.F.R. § 3451.1 indicates only notice is required before the readjustment date. This reading comports with the Secretary’s interpretation of the regulation. See Lonestar Steel Co., 65 IBLA 147 (1982). An agency’s interpretation of its own regulation is of controlling weight unless plainly erroneous or inconsistent with the regulation. U.S. v. Larionoff, 431 U.S. 864, 97 S.Ct. 2150, 53 L.Ed.2d 48 (1977).
Nor do we find the regulations governing the timing of readjustments to be arbitrary or capricious. As found by the district court, the challenged regulations were published by the Secretary and comments were received. However not one comment suggested the readjustment must be final prior to the readjustment date. Coastal States Energy Co. v. Watt, 629 F.Supp. 9, 17-19 (D.Utah 1985). Further the Secretary justified its requirement of notice as assuring "timely and competent administration of leases by the self-imposition of the sanction of waiver’’ thus "guarantying] accountability.” 44 Fed. Reg. 42601-02 (1970). The scope of review under the arbitrary and capricious standard is narrow and this court may not substitute its judgment for that of the agency. Motor Vehicle Manufacturer’s Ass’n. v. State Farm Mutual Automobile Insurance, 463 U.S. 29, 43, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983). In short we find no basis for Coastal’s contention.
. We do not interpret the language in MLLA (1920), which was incorporated verbatim in the two leases here involved, as only meaning that the Secretary on an anniversary date may readjust unless the law in effect at the time of readjustment has taken that right away. It no doubt covers that possibility. But in our view it also permits Congress to allow the Secretary to continue to have the right to readjust, but at the same time circumscribe that right by enacting, for example, a revised minimum royalty rate. The power to do the greater includes the power to do the lesser.
. Section 39 allows the Secretary to reduce or waive a royalty rate whenever he or she judges it necessary in order to promote development or allow the lessee to successfully operate. This power has existed since 1946 and was not altered by FCLAA (1976). See 60 Stat. 957 (1946); 30 U.S.C. § 209 (1982).
. In other decisions, however, the IBLA has reaffirmed the position taken in Coastal. See, e.g., Kanawha & Hocking Coal & Coke Co., 93 IBLA 179 (1986); Consolidation Coal Co., Chevron Coal Development Co., 86 IBLA 60 (1985).
. FCLAA did not specifically address the following terms which Coastal contends are unreasonable: the increased bonding requirement; the change from monthly to quarterly rental payments and, the deletion of a right to credit rental payments against royalty payments. As noted in Rosebud, under MLLA (1920) and the lease language, the Secretary possesses a "very broad power to make changes considered to be in accordance with the proper administration of the lands.” Rosebud Coal Sales Co., Inc. v. Andrus, 667 F.2d 949, 951 (10th Cir.1982). Coastal contends this power is limited by its lease language to "reasonable” changes. As discussed, under the MLLA (1920) and the leases themselves, the Secretary’s power is limited where the terms are "provided by law." As to those terms not so provided, Coastal has merely asserted that they are unreasonable without providing any basis for its claim. We do not agree and hence affirm the readjustment of these leases.
. We do not reach the issue of whether failure to notify the attorney general of the readjustment as required by 30 U.S.C. § 184(/ )(2) (1982) rendered the readjusted lease unlawful. We agree with the district court that the issue was waived as Coastal did not present it in the administrative proceedings below. In spite of Coastal’s claim that the action violated the specific language of the statute, we find no exceptional circumstances justifying judicial review of this issue. Hormel v. Helvering, 312 U.S. 552, 557, 61 S.Ct. 719, 721, 85 L.Ed. 1037 (1941); see also, Sunray Mid-Continent Oil Co. v. FPC, 364 U.S. 137, 157, 80 S.Ct. 1392, 1403, 4 L.Ed.2d 1623 (1960); U.S. v. L.A. Tucker Truck Lines, 344 U.S. 33, 73 S.Ct. 67, 97 L.Ed. 54 (1952).
Question: Did the interpretation of executive order or administrative regulation by the court favor the appellant? This does include whether or not an executive order was lawful.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_respond1_3_2
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Ray CROWDER, Defendant-Appellant.
No. 15584.
United States Court of Appeals Sixth Circuit.
Sept. 30, 1965.
Edwin C. Price, Jr. (Court appointed), Cincinnati, Ohio, for appellant.
George I. Cline, U. S. Atty., Lexington, Ky. (James F. Cook, Asst. U. S. Atty., Lexington, Ky., on the brief), for appel-lee.
Before PHILLIPS and EDWARDS, Circuit Judges, and BOYD, District Judge.
Marion S. Boyd, Chief Judge, United States District Court for the Western District of Tennessee, sitting by designation.
HARRY PHILLIPS, Circuit Judge.
Defendant-appellant, Kenneth Ray Crowder, along with Glennis Ronald Tucker and Albert Ray Green, was indicted for robbery of the Acme Federal Savings and Loan Association of Coving-ton, Kentucky, herein called Acme. Tucker and Green entered pleas of guilty. Appellant plead not guilty and was tried and convicted by a jury. His sentence was fixed at fifteen years.
This appeal presents two principal questions: (1) The sufficiency of the evidence-to sustain the verdict; and (2) the refusal of the district court to grant a motion for a new trial on grounds of newly discovered evidence.
(1) The Sufficiency of the Evidence
Appellant relied upon an alibi as his principal defense, contending that he was asleep at home at the time of the robbery. He was supported in this contention by his wife and by the testimony of Tucker and Green.
The uncontradicted evidence established that appellant rented an apartment at the “Ida Spence Homes” in Covington; Tucker stayed at appellant’s apartment part of the time; on the night of February 28, 1963, Tucker and appellant went to Cincinnati, picked up Green and did a considerable amount of drinking during the rest of the night; these three defendants were involved in an automobile accident about 10:05 a. m., March 1, 1963; one of the vehicles involved in the accident was a white Buick; the accident took place about a quarter of a block from Acme; on the same day at about two or three minutes after 12:00 noon, Acme was robbed; two men definitely identified as Tucker and Green entered Acme and committed the robbery; approximately forty-five minutes later a white 1955 Buick which was identified as the get-away car was found parked near the Ida Spence Homes; shortly afterwards it was learned that the occupants of the car had entered the apartment of appellant; the police then went to this apartment and found the three men upstairs lying across beds, fully clothed, with their eyes closed, asleep or pretending to be asleep ; and a search produced the major part of the money and the billfolds which were taken from victims in Acme at the time of the hold-up.
Tucker and Green testified on behalf of the defendant to the effect that the three had returned to Crowder’s apartment after the 10:05 a. m. accident; that Crowder went to sleep; that Green then decided to go home and asked Tucker to drive him; that Green and Tucker then left the apartment but on the way they stopped in the vicinity of Acme and had another drink; while there the subject of bank robbery came up and the decision was made to rob Acme, primarily because they had a wreck in the area and. it “seemed the logical place to do it;” that they bought caps and sunglasses for a disguise; that they had purchased the pistol used in the robbery about a week and a half before; that there was no advance planning; that they were the only two parties involved; that after the robbery they returned to appellant’s apartment because it was closer than Green’s house; that the caps, sunglasses and pistol were thrown away behind the Ida Spence Homes; that the proceeds of the robbery were divided between the two and that appellant did not receive any of the stolen money; that Tucker placed part of his share of the money under the mattress of a baby bed and the rest in a pocket of a jacket belonging to appellant which Tucker sometimes wore; and that appellant was not involved in any way in the robbery.
Appellant testifed that he returned home after the accident, went upstairs and went to sleep and did not leave until taken by the police. He stated that the only time that he was awake the other two were in the apartment and he did not ask them what they were doing. His wife testified that Crowder arrived home sometime between five or six and nine or ten o’clock and was at home at the time of the robbery.
The government’s evidence showed-that the defendants ate, bought gasoline and had an automobile accident in the Acme area; and that Tucker and Green entered Acme, and Green held four persons as hostages in the back room. Each of the four hostages testified that Green informed them that the get-away car would be outside at 12:08.
Billfolds were taken from three of these hostages which were found later at appellant’s apartment. A deaf mute who entered Acme immediately after the robbery and gave a description of the car indicated that a third man was in the car at the time the other two left the scene of the robbery. -A construction worker saw a white 1955 Buick outside Acme and testified that a man was sitting under the wheel although he could not identify him. A tenant living next door to appellant testified that appellant and Tucker, with a third person, passed by her window about one o’clock. The stolen money and the three wallets were found in appellant’s apartment. The money was in three locations, with the larger sum being found on Green, the one who handled the gun, and two approximately equal amounts were found under the mattress of the baby bed and in appellant’s jacket pocket, which was hanging in the closet.
The conflicts in the testimony presented questions of credibility- to be determined by the jury, whose province it is to weigh the evidence, resolve conflicts therein, and draw reasonable inferences therefrom. “The verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it.” Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680. Applying this rule, we find that there is sufficient evidence to support the verdict.
(2) Motion for a New Trial on Grounds of Newly Discovered Evidence
Appellant filed notice of appeal from his conviction on July 8, 1963. On December 1, 1964, this court remanded the case to the district court for the sole purpose of considering a motion for a new trial based upon newly discovered evidence. This motion was grounded upon an affidavit signed by Glennis Roland Tucker stating that Crowder did not participate in the crime but that one Dwight Courtney was the third participant.
The district court on February 18, 1965, denied the motion for a new trial without an evidentiary hearing, saying that:
“The record in this case has been re-examined in the light of the defendant’s motion. The so-called new evidence is nothing more than the statement of a co-defendant who was present at the time of trial and who testified in behalf of the defendant, Crowder. Glennis Ronald Tucker, who signs the affidavit on which the motion for a new trial is based and who himself has plead guilty to the offense charged, testified that on the day of the robbery he was in company with the defendant, Kenneth Ray Crowder, and had been in Crow-der’s home after a night of drinking with his other co-defendant, Green. He stated that he left Crowder’s house at approximately 11:15 or 11:30, committed the robbery with his co-defendant, Green, and returned to Crowder’s house where the three defendants and the money were found by the officers. He testified that there was only one other person with him in the commission of the crime, that is, his co-defendant, Green. Now, according to his affidavit, there were three persons involved in the robbery, one of whom he says was Dwight Courtney. Notwithstanding these conflicting statements, it is established, by Tucker that he and his associates in the bank robbery were at the home of the defendant, Crowder, immediately before and immediately after the robbery. The jury saw these witnesses testify and heard the witnesses for the United States and it is brought out in detail all the surrounding facts and circumstances.
“It is my judgment that the verdict should not be set aside on the ground of newly discovered evidence unless the evidence is of such a character that there is a strong probability of a different verdict in the event of a new trial * * *
******
“Tucker testified in the case on June 27, 1963 but he did not make the affidavit on which the motion is based-until July 30,1964.”
Appellant contends that the denial of the new trial motion was an abuse of discretion on the part of the district court or alternatively that the order should be vacated and remanded for an evidentiary hearing.
The granting or refusal of a motion for a new trial upon the ground of newly discovered evidence rests in the sound discretion of the trial court and a new trial will not be granted unless such evidence would probably bring about a different result. In the absence of a clear showing of abuse of discretion in determining the probable effect of the newly discovered evidence in changing the result of the trial, the action of the district judge in overruling the motion for a new trial will not be disturbed on appeal. United States v. Lewis, 338 F.2d 137 (C.A.6), cert. denied, 380 U.S. 978, 85 S.Ct. 1342, 14 L.Ed.2d 272, and cases therein cited.
In this case the district judge heard Tucker’s testimony before the jury to the effect that only two persons were involved in the robbery and that appellant did not participate. The jury refused to believe this testimony. This same witness now has undertaken by affidavit to change his story and say that three persons were involved in the robbery, but that appellant was not the third person. We find no abuse of discretion on the part of the district judge in denying the motion for a new trial.
Appellant alternatively says that he should be granted an evidentiary hearing on his motion for a new trial.
In Lyles v. United States, 272 F.2d 910, 912 (C.A.5) the court said:
“Ordinarily the district court may in its discretion determine a motion for new trial upon affidavits without more. Ewing v. United States, 1942, 77 U.S.App.D.C. 14, 135 F.2d 633, 638. There are, however, exceptional cases in which an oral hearing should be granted. * * * ”
In Gordon v. United States, 178 F.2d 896 (C.A.6), cert. denied, 339 U.S. 935, 70 S.Ct. 664, 94 L.Ed. 1353, the new trial motion was denied after being considered only on affidavits.
Appellant contends that Dwight Courtney, the person identified by Tucker’s affidavit as having been the third party involved in the robbery, is now being held in the Federal Prison at Chillicothe, Ohio, and that the case should be remanded to the district court for a hearing on the motion for a new trial in order that Courtney may be introduced as a witness. This too presents a matter within the discretion of the district judge.
Under -the facts and circumstances of this case we find no abuse of discretion on the part of the district court in denying without an evidentiary liearing the motion for a new trial.
The judgment of the district court is affirmed.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant?
A. cabinet level department
B. courts or legislative
C. agency whose first word is "federal"
D. other agency, beginning with "A" thru "E"
E. other agency, beginning with "F" thru "N"
F. other agency, beginning with "O" thru "R"
G. other agency, beginning with "S" thru "Z"
H. Distric of Columbia
I. other, not listed, not able to classify
Answer:
|
songer_respond1_3_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 respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other, not listed, not able to classify". Your task is to determine which specific federal government agency best describes this litigant.
UNITED STATES of America, Plaintiff-Appellee-Cross-Appellant, v. ALL, RIGHT, TITLE AND INTEREST IN REAL PROPERTY AND APPURTENANCES THERETO KNOWN AS 785 ST. NICHOLAS AVE. AND 789 ST. NICHOLAS AVE. and a Leasehold Interest Therein Known as the Franchise Restaurant and 1208 Clay Ave. Bronx, New York; All Bank Accounts in the Names of or Controlled in Whole or in Part by Norma and/or Lloyd Beckford at Dollar Dry Dock Bank, 101 E. 170th St. Bronx, NY, Including Account Numbers 34010316949-0, 340103316947-0, 340103314974 & 34180001716-2 and Bank of Nova Scotia, 1 Liberty Plaza, New York, NY Including Account Number 1483, Defendants-In-Rem-Appellants, and Norma Beckford and Lloyd Beckford, Claimants-Appellants-Cross-Appellees.
Nos. 162, 270, Dockets 92-6077, 92-6079.
United States Court of Appeals, Second Circuit.
Argued Oct. 1, 1992.
Decided Jan. 6, 1993.
Murray Appleman, New York City, for claimants-appellants-cross-appellees and defendants-in-rem-appellants.
Bart G. Van DeWeghe, Asst. U.S. Atty., S.D.N.Y., New York City (Ping C. Moy, Asst. U.S. Atty., and Otto G. Obermaier, U.S. Atty., S.D.N.Y., of counsel), for plaintiff-appellee-cross-appellant.
Before: MESKILL, Chief Judge, OAKES and CARDAMONE, Circuit Judges.
CARDAMONE, Circuit Judge:
This appeal involves real property and bank accounts in New York City that the United States seeks to have forfeited to it because the property allegedly was used to facilitate drug-trafficking or represented the proceeds of such trafficking. In an Ode written 2000 years ago the poet Horace enjoined the Romans to: “Carpe diem” — “Seize today, and trust as little As thou mayst tomorrow’s light.” The Complete Works of Horace 143 (Casper J. Kraemer, Jr. ed., Modern Library 1936). But the poet’s admonition to “use today, forget tomorrow” was not an invitation to lawlessness. From the record before us it appears rather that claimants in this in rem proceeding conducted their activities heedless of the consequences that might follow. In so doing they subjected their property to the government’s awesome forfeiture power to seize it. It remains our task to ensure that the purported forfeiture accords claimants their rights under the law.
Claimants-appellants Norma and Lloyd Beckford, wife and husband, appeal from a judgment entered on January 22, 1992 in the United States District Court for the Southern District of New York (Stanton, J.) that forfeited their right, title, and interest in four New York City buildings upon a finding they had used their property to facilitate drug trafficking in violation of 21 U.S.C. § 881(a)(7) (1988). Two bank accounts in claimants’ names at the Dollar Dry Dock Bank in the same city were found not to be subject to forfeiture under § 881(a)(6) because the district court ruled the government had failed to establish probable cause showing that the accounts contained proceeds traceable to drug transactions. The government cross-appeals from that portion of the judgment dismissing its forfeiture claim against the two bank accounts. We affirm the portion of the judgment and final order of forfeiture dealing with the real property and vacate the portion dealing with the two bank accounts and remand for further proceedings.
BACKGROUND
Real Property
The facts supporting the real property and bank accounts in the civil in rem proceeding need to be stated. The Beckfords owned three adjacent buildings at 785-87-89 St. Nicholas Avenue in Manhattan in which they leased apartments for residential purposes and ground-floor store fronts for commercial purposes. Appellants also owned and operated the Franchise Restaurant on the ground floor at 789 St. Nicholas Avenue and an apartment building at 1208 Clay Avenue in the Bronx. They and their son lived in separate apartments in the Clay Avenue building, the remaining units being let to other residential tenants.
Evidence introduced before the district court demonstrated an astonishing number of drug transactions occurring in, near, and related to these properties. Many directly involved the claimants. Between 1987 and 1990 the New York City Police Department made 66 narcotics-related arrests inside or in front of 789 St. Nicholas Avenue and found drugs on the property on numerous occasions. Twenty-nine of these arrests resulted in convictions. Some of the arrests occurred after marijuana had been purchased by individuals who were in the Franchise Restaurant, often in close proximity to one of the claimants.
Several of the drug-related arrests involved the claimants, their children, or their employees. For example, on August 22, 1987 Norma Beckford was arrested inside the Franchise Restaurant for possession of marijuana; on March 21, 1988 she and her husband were arrested following a sale of marijuana by an employee in the same restaurant to an undercover officer. Searches of the premises subsequent to those arrests revealed a .357 magnum revolver, large amounts of cash, and a quantity of marijuana. The Beckford’s son and daughter were convicted on more than one occasion in 1989 for the criminal sale and possession of marijuana as a result of their activity near 789 St. Nicholas Avenue. As could be anticipated with this amount of lawlessness occurring on the property, violence followed. One drug-related homicide took place at the restaurant in Lloyd Beck-ford’s presence. Another murder victim, one Victor Mora, was found by a police officer a block away from the Franchise Restaurant; before he died, Mora identified the restaurant as the place where he had been shot.
In addition, large numbers of arrests were made inside and in front of 785 and 787 St. Nicholas Avenue. In the two-year period between 1988 and 1990 31 drug-related arrests were made at 785 St. Nicholas Avenue and eight similar arrests were made at 787 St. Nicholas. Further, searches executed pursuant to a search warrant at the claimants’ and their son’s apartments at 1208 Clay Avenue building on December 7, 1990 revealed weapons, drugs, drug paraphernalia, and large amounts of cash.
Based on this and other, more detailed evidence, the district court found the government had established the requisite probable cause to believe the subject real properties were being used to facilitate drug trafficking and were therefore subject to forfeiture pursuant to § 881(a)(7). Despite abundant evidence of drug trafficking, including their own drug-related arrests on the property, the Beckfords insisted they had no direct knowledge that their properties were being used as marijuana distribution locations. They further asserted that they had taken all reasonable precautions to prevent others from trafficking in drugs on their property, for instance, by erecting gates at certain entrances. Upon weighing the proof submitted, the trial court ruled that forfeiture of the properties was warranted.
Bank Accounts
The government also sought to have forfeited two Dollar Dry Dock Bank accounts because it believes the balances in each of them represent drug-trafficking proceeds. The accounts contain about $79,000. Although claimants possessed bank books reflecting ownership of several accounts at that bank, only account numbers 34-01-0316949-9 and 34-01-0316947-3 remain open. These two accounts constitute the res that is the subject of the government's cross-appeal. Prosecutors obtained information about those accounts primarily from bank books seized at 1208 Clay Avenue during the December 7, 1990 search. Bank records for three predecessor accounts had been seized during the search following Norma Beckford’s August 22, 1987 arrest at the restaurant.
The government had originally sought forfeiture of another account at the Bank of Nova Scotia in New York, but later dropped this action. The government additionally calls attention to a separate, very sizable account in the claimants’ names at a Jamaican bank, which Norma Beckford testified contained proceeds from a farm and fishing business her family operates in that country. Since the government has not instituted forfeiture proceedings against this account and provided no evidence linking it to the funds in the Dollar Dry Dock account, it is extraneous evidence, irrelevant to the present proceedings. Hence, we do not consider the Jamaican account.
The government built its civil in rem case against the two Dollar Dry Dock accounts based on substantial deposits made into them and their predecessors. Between June 11, 1985 and July 31, 1987 claimants deposited $56,000 into an account numbered 34-01-0304268-8, which had a $46,-599 balance on July 31, 1987 but became inactive following the seizure of its bank book during Norma Beckford’s August 1987 arrest. Claimants then made an initial deposit into account number 34-01-0316949-9 — one of the subject accounts before us — on December 8, 1987 in the amount of $46,779.36. This deposit appears to represent the closing balance of account 34-01-0304268-8. Between December 8, 1987 and December 6, 1990 $26,-000 of deposits arid withdrawals were made, leaving the subject account with an ending balance of $47,836.19.
■ The second account involves a similar scenario. From January 15, 1987 to June 19, 1987 claimants deposited $30,000 into an account numbered 34-01-0289271-1, which had a $30,226 balance on June 19, 1987. Activity ceased in that account too after police seized the bank book following Norma Beckford’s arrest. The second subject account — 34-01-0316947-3 — was opened on December 8, 1987 with an initial deposit of $30,571.53 that appears to be the successor to account 34-01-0289271-1. Following deposits and withdrawals totaling about $19,000, on December 6, 1990 account 34-01-0316947-3 contained a final balance of $31,045.94. Records from a third bank book police also seized in connection with Norma Beckford’s arrest revealed that claimants had deposited over $19,000 into an account numbered 34-01-0314000-3 between February 1986 and August 1987. What became of those funds remains unexplained.
Besides introducing the various seized bank books into evidence, the government also offered a number of claimants’ tax returns in an effort to show a low level of legitimate income in relation to the high deposits made into the above accounts. Although claimants’ 1985 returns showed a taxable income of only $2,021 — a fact the government strongly emphasizes — the 1985 returns also reflected $25,692 in gross receipts from the restaurant, for a net profit of $13,257, and a total of $28,214 in rental income. The latter income was offset by deductions attributed to losses in the operation of the rental properties. In 1986 the Beckfords reported a taxable income of $17,229 resulting from gross receipts of $28,527, with a net profit of $14,226 from the restaurant, and total rental income of $41,904, again offset by substantial deductions. The Franchise Restaurant netted claimants $101,522 in gross receipts in 1987 and $51,547 in profit, and their joint return showed a taxable income of $69,657. The government stressed that growth in the restaurant’s income corresponded with the August 22, 1987 seizure of 798 bags of marijuana in its kitchen.
In response — and to emphasize the legitimacy of their income — claimants introduced their 1988 tax return demonstrating gross receipts of $160,545 from the Franchise Restaurant and a taxable income of $75,643, and also produced their 1989 tax returns reflecting gross receipts of $55,481 from the restaurant and a taxable income of $45,139. When questioned at trial, the Beckfords stated that the bank accounts contained proceeds from their legitimate business and rental properties and that their tax returns revealed all their income. Although the government contended that the income reported from the Franchise Restaurant might have constituted drug sale proceeds rather than restaurant income, little evidence was introduced to support this theory.
Based on this proof, the district court found the government had not sufficiently established that the money in the bank accounts could be traced to drug trafficking and dismissed the government’s forfeiture claims under § 881(a)(6). On cross-appeal, the government challenges the district court’s failure to find probable cause with respect to these accounts. It also asserts the trial court made a ruling during the early course of the trial finding probable cause, which shifted the burden to the claimants to demonstrate the legitimacy of the money in the Dollar Dry Dock accounts, and generated an issue that the trial court failed to consider or rule upon.
DISCUSSION
I Forfeiture
A. Origins
Before discussing the forfeiture of the real property and bank accounts in this case, we examine briefly the origins of the concept of forfeiting property to the sovereign. Liability of a “thing,” an inanimate object or an animal that did a wrongful act, springs from ancient law. “When an ox gores a man or woman to death, the ox must be stoned, and its flesh shall not be eaten. The owner of the ox, however, shall go unpunished.” Exodus 21:28.
Roman law followed this principle, except that where an animal caused damage its owner was subject to compensate the injured person or noxally to surrender the animal to the injured party. “Noxa” was used in the civil law to designate the offense and punishment for such damages by a slave or an animal. The civil law did not apply this rule to inanimate objects as did the common law, which held that when the object that did the act—a gun, for example—was tainted and must be surrendered. See Barry Nicholas, An Introduction to Roman Law 224 (1962). Justice Holmes in his classic book on the general theory of law, The Common Law, posits that vengeance on the immediate offender (the inanimate thing) was the object of early Greek and Roman law, not indemnity from the owner. Oliver W. Holmes, Jr., The Common Law 34 (1938).
In examining the English common law prior to the Revolution, we find the object that does the injury is called a “deodand,” which Blackstone defines as the accursed thing. He explains that this notion had its roots in religion, as expiation for sudden death, so that, for instance, if a cart runs over a person, the cart is forfeited as a deodand. If one man kills another with a sword, the sword is forfeited as an accursed thing. As a result, in Blackstone’s time, in all indictments for homicide the instrument that caused death and its value are found by the grand jury so that the king may claim the deodand. Added to this religious origin as a reason for forfeiture to the sovereign of the deodand is the view that the misfortune brought about by the object was due in part to the negligence of the owner and that a forfeiture of his property properly punishes him. 1 William Blackstone, Commentaries *290-91. The true reason for permitting forfeiture, according to Blackstone, was that it is part of the price a citizen must pay for breaking the social contract by violating the law. Id. at *289.
As a consequence, it appears to have been the law from the very earliest times that an inanimate object that is the instrumentality by which the law is violated is forfeited as an act of vengeance against the object. Its owner suffers the loss of the property on a negligence theory or as part of the price an owner must pay for permitting personal or real property to be an occasion for violating the law. Such is now the rule in American jurisprudence. See Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 682-83, 94 S.Ct. 2080, 2091-92, 40 L.Ed.2d 452 (1974).
B. Statutory Civil Forfeiture
With this historical background, we turn to the statutory law that governs forfeiture today. The Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. §§ 801-896 (1988), provides for civil forfeitures in Part E—“Administrative and Enforcement Provisions,” §§ 871-886. The drug-related asset forfeiture scheme embodied in § 881 establishes a two-step process for the forfeiture of property to the sovereign United States. Under § 881(a)(7) that process applies to forfeiture of:
[a]ll real property ... which is used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, a violation of this title punishable by more than one year’s imprisonment, except that no property shall be forfeited ... by reason of any act or omission established by that owner to have been committed or omitted without the knowledge or consent of that owner.
Forfeiture may be had under § 881(a)(6) of “[a]ll moneys, negotiable instruments, securities, or other things of value furnished or intended to be furnished by any person in exchange for a controlled substance [as well as] all proceeds traceable to such an exchange.” (emphasis added).
The government has three options when it institutes a civil forfeiture in rem proceeding: (1) file a complaint pursuant to the Supplemental Rules for Certain Admiralty and Maritime Claims, which triggers the issuance of a summons and warrant by a court clerk without requiring a certification of exigent circumstances; (2) request the issuance of a seizure warrant in the manner provided for in Fed.R.Crim.P. 41 that requires a finding of probable cause ex parte by a judicial officer; or (3) “when the Attorney General has probable cause to believe the property is subject to civil forfeiture,” seize it following applicable customs law as set forth in § 881(d). See United States v. 4492 S. Livonia Road, 889 F.2d 1258, 1262-67 (2d Cir.1989).
The third option was followed in the case at hand. Under § 881(d) those procedures used under the United States Customs Laws, as spelled out at 19 U.S.C. § 1615 (1988), are incorporated in the forfeiture proceedings. Section 1615 describes the burden of proof and requires that the agency seeking forfeiture must first demonstrate probable cause supporting the action. The initial step in the forfeiture process under §§ 881(a)(6) and (7) accordingly requires the government establish probable cause that connects the property with drug trafficking. There need not be a substantial connection between the drug activities and the property in question, but only a nexus between them. See United States v. 38 Whalers Cove Drive, 954 F.2d 29, 33 (2d Cir.), cert. denied, — U.S. -, 113 S.Ct. 55, 121 L.Ed.2d 24 (1992); United States v. Whites Hill Road, 916 F.2d 808, 811-12 (2d Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 972, 112 L.Ed.2d 1058 (1991); United States v. Banco Cafetero Panama, 797 F.2d 1154, 1160 (2d Cir.1986). When forfeiture is of a bank account, the government must persuade the factfinder that there is probable cause to believe the funds represent proceeds traceable to a drug transaction. E.g., United States v. One 1987 Mercedes 560 SEL, 919 F.2d 327, 331-32 (5th Cir.1990).
To establish probable cause neither the real property nor bank proceeds need to be linked to any one particular transaction, Banco Cafetero, 797 F.2d at 1160, but the government must establish “reasonable grounds” — that is to say, rising above “mere suspicion” — that the property is subject to forfeiture. Id.; 4492 S. Livonia Road, 889 F.2d at 1267. The failure to account for large amounts of cash may be considered a factor in establishing probable cause that money represents the proceeds of drug transactions. See Whites Hill Road, 916 F.2d at 813; United States v. $2,500 in U.S. Currency, 689 F.2d 10, 16 (2d Cir.1982), cert. denied, 465 U.S. 1099, 104 S.Ct. 1591, 80 L.Ed.2d 123 (1984).
Once the government has demonstrated probable cause, the second step in the forfeiture proceeding shifts the burden of proof to the claimant to demonstrate by a preponderance of the evidence that the factual predicates necessary to show probable cause have not been met or to show claimants lack of knowledge or consent to the drug-related activities. See 19 U.S.C. § 1615; Whites Hill Road, 916 F.2d at 812; United States v. 15 Black Ledge Drive, 897 F.2d 97, 102 (2d Cir.1990); 4492 S. Livonia Road, 889 F.2d at 1267. In the case of a bank account, the claimant bears the burden of proving that the account does not contain proceeds traceable to drug transactions, but rather represents legitimate income. See Banco Cafetero, 797 F.2d at 1161. Once probable cause has been shown, the ultimate burden of proof on whether factual predicates have been met or whether there is a lack of knowledge or consent is shouldered by the claimant. We turn now to apply this analysis to the district court’s decision respecting the Beckford’s real property and their Dollar Dry Dock accounts.
II Two-Step Process Applied to Instant Case
A. Real Property
We need not tarry long in explaining that the district court properly forfeited to the United States the real properties at 785-87-89 St. Nicholas Avenue and 1208 Clay Avenue. Due to the extraordinary volume of drug transactions occurring on, nearby, or directly related to the premises, the trial court correctly found probable cause existed to demonstrate that the properties had been used to facilitate drug trafficking. Further, it did not err in discrediting claimants’ improbable testimony that they had no knowledge of drug-trafficking on their properties and had not consented to it, particularly given their own arrests on the site and their presence during arrests for various drug transactions that took place inside the Franchise Restaurant.
Claimants essentially contend that there was insufficient evidence to support the probable cause finding and that any drug trafficking on their premises was beyond their power to control because law-enforcement agencies had abandoned the drug-ridden neighborhood where their property was located, thereby giving drug-traffickers free reign there. We are unable to accept either argument. First, less evidence than was produced in the instant case has sufficed to establish the probable cause required for forfeiture of property. See, e.g., 15 Black Ledge Drive, 897 F.2d at 101; 38 Whalers Cove Drive, 954 F.2d at 32-34 (two cocaine sales totalling $250 sufficient to demonstrate probable cause for forfeiture of $68,000 interest in condominium); United States v. One 1986 Mercedes Benz, 846 F.2d 2, 5 (2d Cir.1988) (noting that transportation of minute quantity of drugs may suffice to merit forfeiture of vehicle).
Second, regardless of the drug-ridden culture that flourished in their neighborhood, claimants have failed to prove by a preponderance of the evidence that they took all the precautions reasonably within their power to prevent drug sales from occurring on their property. Once a claimant acquires knowledge that his or her property is being used for drug-related purposes, that individual must take reasonable steps to prevent this illicit use of the premises in order to show a lack of consent to such use. See United States v. 141st Street Corp., 911 F.2d 870, 879 (2d Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 1017, 112 L.Ed.2d 1099 (1991); United States v. 418 57th St., 922 F.2d 129, 132 (2d Cir.1990). Claimants here made no such showing.
Moreover, claimants were not ignorant of the drug sales on their property. Nothing in the record suggests their involvement in or presence near drug sales had diminished or that they took reasonable steps to prevent others from using their property to peddle narcotics. That similar activity may well have pervaded the neighborhood does not excuse them. The legal standard we employ implicitly takes account of the hurdles property owners may face in drug-infested neighborhoods by requiring only that property owners take reasonable steps under the circumstances to prevent their property from facilitating drug transactions. See id. Thus, the district court properly forfeited claimants' real property to the United States.
B. Bank Accounts
The trial court’s decision with respect to the bank accounts is more problematic. The record is not clear as to which of the two stages of a forfeiture proceeding it had reached. As the trial began on December 17, 1991 the trial judge announced, “Based on the facts stipulated [ ] and on the materials submitted with the plaintiffs motion for summary judgment, I have determined that the probable cause requirement has been met by the govern-ment_ That shifts the burden to [claimants] .... ” As a result of this ruling, claimants proceeded to present their case. Although the district court stated its finding “considered only those activities taking place within the building,” it had not limited its probable cause finding to claimants’ real property and, more particularly, did not state that its probable cause finding excluded the bank accounts. The government’s attorney declared at oral argument on appeal that he would have presented further proof that would have established probable cause with respect to the bank accounts had he not believed that a finding of probable cause had already been made at the commencement of the trial.
When the two-day trial ended on December 18, the trial court stated, “I find that the government has not established by any sufficient showing the fact or the inference that the money in the bank accounts was traceable to the exchanges of controlled substances in violation of the relevant chapter, and forfeiture of those sums will not be ordered.” It is at least debatable whether this finding was contrary to the finding it made the day before. Again, the trial court failed to state whether the first or probable cause step was not established by the government’s proof or whether the trial court was persuaded that claimant had carried its burden of proof at the second step of the proceeding.
The government urges us to make a probable cause finding based on a comparison between the income reported on claimants’ 1985-86 tax returns and their bank deposits in the context of the extensive drug-trafficking that occurred on claimants’ property. We decline that invitation and believe instead that this part of the case must be remanded. A factual determination of this sort is more properly decided by the district court in the first instance. Once the government has had the opportunity to present its proof more fully — and assuming it succeeds in demonstrating probable cause — the claimants must of course then be permitted to present evidence to prove that the source of the funds in the two subject bank accounts came from independent, non-drug-related sources. See One 1987 Mercedes 560 SEL, 919 F.2d at 331.
We emphasize that on remand circumstantial evidence may form the basis of a probable cause finding in forfeiture proceedings and that the funds need not be linked to specific drug transactions in order for the government to meet the probable cause standard. See Banco Cafetero, 797 F.2d at 1160. Particularly in cases involving bank accounts, money or other fungible assets, the only proof demonstrating probable cause is likely to be circumstantial, revealing unexplained wealth in conjunction with evidence of drug trafficking. See, e.g., Whites Hill Road, 916 F.2d at 813 (probable cause established where claimant convicted of selling heroin possessed large sums of unaccounted-for cash and purchased properties in cash); $2,500 in U.S. Currency, 689 F.2d at 16 (probable cause to forfeit cash established where no apparent explanation existed for large amount of cash on hand by claimant convicted on drug charges); cf. One 1987 Mercedes 560 SEL, 919 F.2d at 332 (claimant failed to meet burden of showing legitimacy where no explanation was given for purchase of $75,-000 worth of assets during eight-month period other than his testimony that proceeds represented fruits of legitimate construction work and where claimant introduced no work orders, accounts ledgers or checks deposited supporting his claim).
Most important, while probable cause determinations under § 881 are made by the trial court’s exercise of its judgment in light of all the circumstances, see One 1987 Mercedes 560 SEL, 919 F.2d at 331, it nonetheless remains the law that the connection between an individual’s private assets and drug transactions is not one to be lightly made; the connection must be supported by proof amounting to more than “mere suspicion.” See Banco Cafetero, 797 F.2d at 1160.
CONCLUSION
Due to the seemingly inconsistent probable cause findings in the present record, remand is appropriate. There is a good likelihood additional evidence with respect to claimants’ bank accounts will enhance whatever findings the district court eventually makes.
Accordingly, insofar as the judgment of the district court directed a forfeiture to the United States of claimants’ real property, it is affirmed. Insofar as the district court’s judgment found a lack of probable cause with respect to claimants’ bank accounts, it is reversed and remanded for further proceedings consistent with this opinion.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other, not listed, not able to classify". Which specific federal government agency best describes this litigant?
A. United States - in corporate capacity (i.e., as representative of "the people") - in criminal cases
B. United States - in corporate capacity - civil cases
C. special wartime agency
D. Other unlisted federal agency (includes the President of the US)
E. Unclear or nature not ascertainable
Answer:
|
songer_alj
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the court support the decision of an administrative law judge? 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".
CEFALU v. UNITED STATES.
Circuit Court of Appeals, Tenth Circuit.
January 24, 1930.
No. 119.
Robert D. Charlton, of Denver, Colo. (Lewis DeR. Mowry, of Denver, Colo., on. the brief), for appellant.
Ralph L. Carr, U. S. Atty., of Denver, Colo. (Charles E. Works, Asst. U. S. Atty., of Denver, Colo., on the brief), for the United States.
Before LEWIS, COTTERAL, and Mc-DERMOTT, Circuit Judges.
COTTERAL, Circuit Judge.
An information was filed against appellant, his wife, and Frank Mazza, charging them with five violations of the National Prohibition Act (27 USCA),' at Denver, Colo., in 1928. Mazza was acquitted. Mrs. Cefalu was convicted on all counts- Appellant was acquitted on counts 2 and 3 charging sales, and convicted on count 1 for possession of whisky on August 15, count 4 for a sale of whisky on August 8, and count 5 for maintaining a nuisance on September 11. He assigns error in the denial of a motion to direct a verdiet for insufficiency of the evidence and in giving and refusing instructions to the jury.
The wife of appellant testified that she and Mazza were engaged in the sale of whisky, that they hid their supplies in the country, and did not make the sales at the Cefalu home in Denver. Federal Prohibition Agents testified that they bought whisky from her there on several occasions, but that appellant was present only on August 8; that on that day when she had gone to another room, appellant came from the same room wearing a bath robe, in his bare feet, sat on a piano bench, talked with the officers, and was present when she returned with the whisky and made the sale of it to them. Sales were testified to'by them at the home on July 25 and August 4, and by their account when they were there on August 15, they saw Mrs. Cefalu go from the front part of the house to the kitchen carrying two bottles, break one of them on the sink, and the other contained a small quantity of whisky. The testimony of the appellant is he had nothing to do with the transactions, he did not know of them, or know there was whisky in the house, his wife rented the house, he supported her, paying her bills, and he was absent most of the time engaged in selling macaroni and olive oil to Italians, chiefly in Nebraska. Mrs. Cefalu corroborated his testimony.
This summary, incomplete as it is in many details, suffices for the purpose of determining whether' appellant was entitled to a directed verdict in his favor on the fourth count, charging a sale on August 8th. It seems to us, as it did to the trial judge, it was a question of fact whether appellant was a party to that sale, and it is inconceivable he could have been present as he was at his home and conducted himself as he did there under the circumstances when the sale was made, without having clear knowledge the illicit business was being carried on there and without having a responsible part in it. Otherwise, the transaction called for some expression of surprise or protest from him, but he was acquiescent. There was such apparent understanding and approval of it as to connect him with it, in the way of aiding and counseling his wife, and this was the theory on which the case was submitted to the jury. Section 550, Title 18 U. S. Code (18 USCA § 550). The jury so found, and we think it cannot he said the finding was without support. The cases cited to show the mere presence at-the scene of an offense under different circumstances is not sufficient for conviction, present a different question. The ruling on the motion to direct a verdict on count 4 was therefore correct.
As to count 1, charging possession, on August 15th, and count 5, charging a nuisance, on September 11th, there was no1 sufficient evidence to connect appellant with the transactions and warrant submission of them to the jury as to him, and the motion to direct a verdict on those two counts should have been sustained.
The complaint leveled at the charge to the jury is without force, as there was no exception to it. Examining it, however, we find it fairly submitted the issues to the jury and it discloses no prejudicial error. A request tendered and refused was to the effect that the proof, in order to convict, must show appellant actively and knowingly participated in the liquor transactions. This we hold was a requirement that was too broad.in terms. Another portion of the same request was that the mere presence of the appellant when the liquor transactions occurred was not sufficient to establish his guilt, but the court so charged the jury.
No other questions are entitled to consideration. The judgment of conviction on count 4 is affirmed. The judgments of conviction on counts 1 and 5 are reversed, and the cause is remanded to the District Court with direction to grant the appellant a new trial on those two counts.
Question: Did the court support the decision of an administrative law judge?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_r_stid
|
29
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your task is to identify the state of the first listed state or local government agency that is a respondent.
Jack RAINSBERGER, Appellant, v. Ralph LAMB, Sheriff, Clark County, Nevada, Appellee.
No. 18162.
United States Court of Appeals Ninth Circuit.
Jan. 28, 1963.
Samuel S. Lionel, Las Vegas, Nev., for appellant.
John F. Mendoza, Dist. Atty., Charles L. Garner, William S. Barker, Deputy Dist. Attys., Las Vegas, Nev., for appellee.
Before HAMLEY, MAGRUDER and DUNIWAY, Circuit Judges.
MAGRUDER, Circuit Judge.
This is a habeas corpus case. It started as a criminal charge of murder lodged against appellant in the Eighth Judicial District Court in and for the County of Clark, State of Nevada. At the time of the hearing the applicable statute read that “ * * * if such person shall be convicted on confession in open court, the court shall proceed, by examination of witnesses, to determine the degree of the crime and give sentence accordingly.” N.R.S. 200.030, subsection 2. Notwithstanding the burden which this law placed upon the district judge, appellant having pleaded guilty to the charge of murder, after the hearing the judge determined that appellant was guilty of murder in the first degree and sentenced him to death in the gas chamber.
The district judge remonstrated with the legislature that no judge should by himself have the responsibility of sentencing a man to death. The legislature obliged him by amending the relevant statute so as to read: “ * * * If any person is convicted of murder on his confession in open court without a jury, or upon a plea of guilty without specification of a degree, the supreme court shall appoint two district judges from judicial districts other than the district in which the confession or plea is-madg^who shall, with the district judge before whom such confession or plea was made, or his successor in office, by examination of witnesses, determine the degree of the crime and give sentence accordingly. Such determination shall' be by unanimous vote of the three district judges.” N.R.S. 200.030, subsection 3.
Having a death sentence staring him in the face, appellant appealed to the Supreme Court of Nevada on a point of evidence. That court reversed the judgment of the district court of Clark County, Nevada, and sent the ease back for a hearing before a court of three judges “to determine the degree of the crime and give sentence accordingly.” ‘ Rainsberger v. Nevada, 76 Nev. 158, 350 P.2d 995, 998 (1960).
When the case was again in the Eighth Judicial District Court for Clark County pursuant to the mandate, appellant insisted that the amended law was an ex post facto law, contrary to his constitutional rights. Without waiting for a determination by the three-judge court, appellant rushed in with a petition for a writ of habeas corpus filed in the district court of Clark County contending that the new statute had repealed the old one, and that whereas three judges were now to determine the degree of his guilt and sentence him accordingly, the single judge is thus relieved from the burden which had previously rested upon him, and hence that the amendment changed to his detriment the position of appellant. See Kring v. Missouri, 107 U.S. 221, 2 S.Ct. 443, 27 L.Ed. 506 (1882).
The petition was denied by the district court of Clark County, Nevada. On appeal to the Supreme Court of Nevada, this denial was affirmed. Application of Rainsberger, 77 Nev. 399, 365 P.2d 489 (1961). The court pointed out that the writ of habeas corpus was not available under the local procedure to attack the present respondent, namely, the sheriff of Clark County, who lawfully held respondent under a warrant of arrest for a nonbailable offense. If the three-judge court should determine in the future that the crime was murder in the first degree and sentence appellant to death, habeas corpus no doubt would be the appropriate remedy to test the ex post facto nature of the amended statute, as against the warden of the state penitentiary, who then would be holding the accused. See Eureka County Bank Habeas Corpus Cases, 35 Nev. 80, 126 P. 655 (1912).
Appellant thereafter applied to the United States Supreme Court for a writ of certiorari, which was denied without opinion. Rainsberger v. Leypoldt, Sheriff, 368 U.S. 516, 82 S.Ct. 530, 7 L.Ed.2d 522 (1962), rehearing denied 369 U.S. 832, 82 S.Ct. 849, 7 L.Ed.2d 797 (1962). Appellant then filed in the federal district court below the present writ of habeas corpus, alleging that he had exhausted his state remedies.
We think that the district court properly denied the petition on the ground that appellant had failed to exhaust his remedies under state law as required by 28 U.S.C. § 2254. Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953), has no application to this case. The Nevada Supreme Court has never passed upon the federal ex post facto question. That court has merely decided that habeas corpus as a matter of local law would not lie under these circumstances. If and when the Supreme Court of Nevada has before it an appeal from the determination of murder in the first degree by a three-judge court, at that time, and not before, the Supreme Court of Nevada will have to pass upon the federal question raised here.
Personally I would be.willing to assume without deciding that appellant has exhausted his remedies under the state law, but see Woods v. Nierstheimer, 328 U.S. 211, 66 S.Ct. 996, 90 L.Ed. 1177 (1946), after which I would decide the case on the merits, since it seems clear to me that no constitutional rights have been violated. But my two colleagues do not agree to this disposition of this appeal, and not being in disagreement with them I have written the opinion their way.
A judgment will be entered affirming the judgment of the District Court.
Question: What is the state of the first listed state or local government agency that is a respondent?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
|
songer_respond1_1_4
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". Your task is to determine what subcategory of business best describes this litigant.
J. B. BICKFORD and Max E. Rogers, Co-Agents of the Successors-in-Interest to the Assets for the Magic-Vac Corporation, formerly a corporation of Oklahoma, Plaintiffs-Appellants, v. JOHN E. MITCHELL COMPANY, a corporation of Missouri, Defendant-Appellee.
No. 77-1444.
United States Court of Appeals, Tenth Circuit.
Argued Nov. 15, 1978.
Decided March 26, 1979.
Jerry J. Dunlap of Dunlap, Codding & McCarthy, Oklahoma City, Okl., for plaintiffs-appellants.
William Bedard of Storey, Armstrong, Steger & Martin, Dallas, Tex. (Burck Bailey of Fellers, Snider, Blankenship & Bailey, Oklahoma City, Okl., on the brief), for defendant-appellee.
Before HOLLOWAY and DOYLE, Circuit Judges, and STANLEY, Senior District Judge .
Of the District of Kansas, sitting by designation.
STANLEY, Senior District Judge.
This appeal involves the interpretation of patent and royalty rights under a written contract between the plaintiffs-appellants, successors in interest of Magic-Vac Corporation and the defendant-appellee, John E. Mitchell Company.
The plaintiffs alleged that they were entitled to (1) the payment of additional royalties under the contract in the amount of $45,658.23, and (2) the reconveyance of certain patent rights and the Magic-Vac trademark which had been assigned to the Mitchell Company under the contract. The court, sitting without a jury, awarded plaintiffs $8,639.55 in additional royalties; determined that plaintiffs were not entitled to reconveyance of the patent rights, and that the trademark had reverted to plaintiffs on Mitchell’s termination of the contract. The court also denied plaintiffs’ claim for attorney’s fees.
The background facts will be set out in some detail.
F. E. Farley, one of the plaintiffs in this action, was the president and negotiator for Magic-Vac Corporation at the time the contract of sale was entered into. Magic-Vac was then manufacturing central unit vacuuming systems for home and professional use. The company was in some financial difficulty and these difficulties led to the sale of the assets of Magic-Vac to the Mitchell Company which also was engaged in the manufacture of vacuum cleaning units.
By the terms of the contract of sale the Magic-Vac stockholders were to be paid a five percent royalty on “each Magic-Vac cleaner and component parts sold by Mitchell” and “repair and replacement parts”.
At the same time that the corporation was sold, Farley signed on his own behalf another contract with the Mitchell Company. This was a personal employment contract whereby Farley was to receive $500 per month minimum salary plus a one percent commission on all items sold by him. Farley therefore received royalties as a 39 percent stockholder of Magic-Vac plus a one percent commission on sales.
Mitchell Company computed the royalties and Farley’s commission on the same gross sales figure from April 1962 until November 1963. It then became apparent to the Mitchell Company officers that the items on which the royalties were to be paid were not coextensive with the items on which Farley’s commission was based. The discrepancy arose because the Magic-Vac division of the Mitchell Company also manufactured and sold Handy-Wash and Handy-Mart, neither being a product acquired from Magic-Vac. Handy-Wash was a car washing unit installed in service stations. Handy-Mart was a large commercial refrigerator unit used for storage of convenience items such as sandwiches and beverages.
In an effort to avoid burdensome record keeping necessary to keep the two sales totals separate, Mitchell Company simply took 85 percent of the gross sales of the Magic-Vac division and paid the 5 percent royalty based on the resulting amount. This figure was arrived at by examining the ratio of “royalty sales” to Farley’s total sales over a period of several months. It was determined by the Mitchell Company that 85 percent of the total sales was a fair and accurate percentage on which to base the royalty payments.
The Mitchell Company implemented this method and used it from November 1963 until October 1970. From this latter date until November 1972, the date the contract was terminated by Mitchell, the royalty was based on a sales figure which additionally excluded plastic pipe, flexible hoses and attachments such as brushes and crevice tools.
The trial court sustained the use of the 85 percent rule, rejecting plaintiffs’ argument that they were entitled to a royalty on all sales made by the Magic-Vac division. The court based its determination on its interpretation of the 1962 contract — that royalties were to be paid on “Magic-Vac cleaner and component parts” and “repair and replacement parts”, but not on Handy-Wash and Handy-Mart. The trial court further found that the Mitchell Company acted in complete good faith in implementing the 85 percent formula, and that plaintiffs had consented to its use by accepting the benefits of the formula since 1963.
However, the second reduction in the royalty base, the exclusion of flexible hoses, attachment tools, and plastic pipe, was determined to be unfair and these items were reinstated. The reinstatement of these items formed the basis for the $8,639.55 royalty payment awarded plaintiffs and the judgment in their favor has not been appealed by Mitchell.
The deposition of Farley was offered in evidence by the plaintiffs at the trial and was admitted after representation by counsel that he was then physically unable to appear. After judgment was entered and after the findings and conclusions were filed the plaintiffs moved for a new trial or alternatively to re-open the case to permit Farley to testify. Denial of the motion is assigned as error.
Rule 59(a)(2), Fed.R.Civ.P., provides in part that
On a motion for a new trial in an action tried without a jury, the court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment.
Motions of this nature are addressed to the sound discretion of the trial court and a denial will be disturbed only when clearly erroneous. Kizziar v. Dollar, 268 F.2d 914 (10th Cir. 1959), cert. denied, 361 U.S. 914, 80 S.Ct. 258, 4 L.Ed.2d 184.
Plaintiffs did not move for a continuance or request leave to present additional evidence by further deposing Farley. In light of the plaintiffs’ failure to utilize these available alternatives, the court was well within its discretion in denying plaintiffs’ motions. See Muhammad Temple of Islam v. City of Shreveport, La., 387 F.Supp. 1129 (W.D.La.1974), aff’d, 517 F.2d 922 (5th Cir. 1975).
The second issue raised is whether the trial court committed reversible error in holding that the two patent applications conveyed to Mitchell were of no value and that Mitchell was therefore not obligated to reconvey these to the plaintiffs. By the terms of the contract two patent applications were assigned to Mitchell — patent application No. 48,663 in the name of Rex S. Hayes, filed October 19, 1960, and patent application No. 120,873 filed June 15, 1961 in the name of Rex S. Hayes. Plaintiffs offered evidence in the form of testimony by Mr. Bickford, a C.P.A. and one of the plaintiffs in this action, that the patents were worth approximately $180,000. This figure was based on the average of two computations made by Mr. Bickford. The first involved computations of the royalties received by plaintiffs over the previous five years which was projected over the remaining life of the patent, amounting to $200,-000. The second figure offered by Mr. Bickford was $160,000 which resulted from the method of valuation used by the IRS. According to Mr. Bickford’s testimony this method involved the use of the life of the patent on which royalties were paid, 1966 through 1972, which was then discounted by 17 percent and projected over the remaining life of the patent.
In an effort to rebut this testimony concerning the value of the patents in question, Mitchell requested that one of its attorneys, Mr. Edmund C. Rogers, who had not yet participated in the trial, be excused as counsel in the case and called as an expert witness. Mr. Rogers’ testimony was allowed over plaintiffs’ objections, and this is also assigned as error.
Rule 601 of the Federal Rules of Evidence provides that every person is competent to be a witness except as otherwise provided in the rules. Attorneys appearing as witnesses on behalf of their clients have been required to withdraw as counsel to avoid ethical improprieties, as was done in this ease. The question of competency, however, is one within the discretion of the trial court and will not be disturbed on appeal unless clearly erroneous. United States v. Brown, 417 F.2d 1068 (5th Cir. 1969) cert. denied, 397 U.S. 998, 90 S.Ct. 1140, 25 L.Ed.2d 407. We find no error in permitting Mr. Rogers to testify in light of the facts that (1) he had not previously participated in the trial; (2) he withdrew from the case before he was allowed to take the witness stand; and (3) the trial was to the court and not to a jury.
Mr. Rogers testified that the patent application numbered 48,663 was filed in 1960 for Magic-Vac Corporation. A “continuation-in-part” to this application was filed some time in 1961. This application, numbered 120,873, together with number 48,663 were the patent applications conveyed by the 1962 contract between Magic-Vac and Mitchell. Mr. Rogers testified that his firm had taken over prosecution of this patent application after it had been filed; that it had been rejected by the Patent Office several times; and that each time it was rejected it was redrafted more narrowly in the hope that it might be accepted by the Patent Office. Patent application number 48,663 was abandoned in favor of number 120,873. This latter application was finally rejected by the Patent Office in November 1964.
Six months after the 1962 contract had been entered into, a third patent application was drawn up in the names of Rex. S. Hayes and F. E. Farley. According to Mr. Rogers, patent number 3,240,000 issued directly to the Mitchell Company and was never owned by Magic-Vac. He testified that the principles covered by this patent were not involved in the two patent applications assigned to Mitchell by Magic-Vac in 1962.
Plaintiffs have appealed on the basis that the findings of fact by the trial court were clearly erroneous under Rule 52(a), Fed.R. Civ.P. They carry a heavy burden, especially in light of the fact that the findings by the trial court were based primarily on oral testimony and the trial court had the opportunity to view the demeanor and pass upon the credibility of the witnesses. United States v. Denver & R.G.W.R.R., 547 F.2d 1101 (10th Cir. 1977); Snodgrass v. Nelson, 503 F.2d 94 (8th Cir. 1974).
The court below made the following findings regarding the patent rights at issue.
15. Application Serial No. 48,663 became abandoned by the attorneys for plaintiffs’ predecessor about the time of The Contract, because its substance was included within the later application No. 120,873. Despite severe reduction of the coverage claimed, in the effort to obtain allowance, Serial No. 120,873 was finally rejected by the United States Patent Office as unpatentable, a patent was refused thereon, and the application was abandoned on November 13, 1964.
16. While The Contract expressed its intention as to enable defendant to enjoy rights “to the exclusion of all others,” and to give defendant “the exclusive rights and conveyance of ownership as set forth in Paragraphs 1 and 2 of this agreement,” there never were any such exclusive rights obtained in either of the patent applications mentioned, and all chance of exclusive rights therein disappeared when Application No. 120,873 was abandoned. Hence, it is found that thereafter, Application Nos. 48,663 and 120,873 were worthless. The fact that plaintiffs’ predecessor was in such dire financial condition, in effect “broke,” at the time The Contract was entered into is further evidence that Nos. 48,663 and 120,873 were of no value.
17. After The Contract was entered into, a new application for patent was filed November 3, 1963, in the joint names of Rex S. Hayes and F. E. Farley for an improvement over the alleged invention of application No. 120,873. It is not an “invention of Rex S. Hayes” as defined by The Contract. It finally issued into Patent No. 3,240,000 on March 14, 1966.
18. It is found that Patent No. 3,240,-000 was never owned by plaintiffs’ predecessor, its application having been assigned directly to the Mitchell Company in October, 1962, by Hayes and Farley and not by plaintiffs’ predecessor. It issued to defendant.
19. Patent No. 3,240,000 differs structurally from the disclosure of Serial No. 120,873 in that it has a Fram-Type Cylindrical Filter located above a so-called drop-spacer-separator (numbered “40” in the patent) and the drop-spacer-separator in turn is located above the cone portion of the cyclone separator. This combination and sequential arrangement is not present in the earlier Hayes applications.
29. A Primary factor in determining damage to plaintiffs from failure to assign the patent is whether any other potential user of the patents or either of them existed. There is no adequate proof, that there was anyone who would use them, or either of them, or the trademark Magic-Vac, or what payment, if any, would have been made for them, or any of them.
A careful examination of the record reveals that the findings of fact made by the trial court are supported by the evidence, and that the judgment on this issue is fully supported by the facts. Filger v. Plax Corp., 261 F.2d 369 (6th Cir. 1958).
The last assignment of error is the trial court’s denial of plaintiffs’ motion for attorney’s fees, made pursuant to 12 Okl.Stat. § 936, which provides:
In any civil action to recover on an open account, a statement of account, account stated, note, bill, negotiable instrument, or contract relating to the purchase or sale of goods, wares, or merchandise, or for labor or services, unless otherwise provided by law or the contract which is the subject of the action, the prevailing party shall be allowed a reasonable attorney fee to be set by the Court, to be taxed and collected as costs.
This court has approved the allowance of attorney’s fees under the Oklahoma statute when the claim falls within one of the categories enumerated in section 936. See e. g., Kilpatrick Bros., Inc., v. International Bus. Mach. Corp., 464 F.2d 1080 (10th Cir. 1972); Pecan & Agricultural Equip., Inc. v. Lockwood Corp., Nos. 76-1965 and 76-1966 (10th Cir. 1978).
The trial court held that the plaintiffs’ claims were based upon alleged deficiencies in the payment of royalties and alleged failure to reconvey patent and trademark rights and thus did not fall within the statutory framework of the Oklahoma statute authorizing the allowance of attorney’s fees.
The allowance of attorney’s fees in a diversity case, as this is, is a question of state law. Pecan & Agricultural Equip., Inc. v. Lockwood Corp., supra. Determination of matters of state law by the trial court sitting in the state will not be disturbed on appeal unless clearly erroneous. Manufacturer’s Nat’l. Bank of Detroit v. Hartmeister, 411 F.2d 173 (10th Cir. 1969). Based upon our examination of the entire record, we are in agreement with the trial court’s resolution of the dispute and its holding that the plaintiffs’ claims were not, as urged by the plaintiffs, actions to recover on an open account or on a contract relating to the purchase or sale of goods, wares, or merchandise, but were predicated on claims of alleged deficiencies in the payment of royalties and alleged failure to reconvey patent and trademark rights.
We find no plain error either in the findings of fact or the conclusions of law. The judgment 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 "manufacturing". What subcategory of business best describes this litigant?
A. auto
B. chemical
C. drug
D. food processing
E. oil refining
F. textile
G. electronic
H. alcohol or tobacco
I. other
J. unclear
Answer:
|
songer_respond1_1_4
|
H
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". Your task is to determine what subcategory of business best describes this litigant.
ANHEUSER-BUSCH, Inc. v. DU BOIS BREWING CO.
No. 9527.
United States Court of Appeals Third Circuit.
Argued Jan. 21, 1949.
Decided May 12, 1949.
Rehearing Denied July 27, 1949.
GOODRICH, Circuit Judge, dissenting.
Elder W. Marshall, Pittsburgh, Pa. (John C. Bane, Jr., Sherman T. Rock, and Reed. Smith, Shaw & McClay, Pittsburgh, Pa., Leo R. Brockbank, Du Bois, Pa., on the brief), for appellant.
Wallace H. Martin, New York City (Alter, Wright & Barron, Pittsburgh, Pa., attorneys for plaintiff-appellee, Minturn De S. Verdi, Walter J. Halliday, and Marion L. Severn, New York City, Alexander J. Barron, and James Milholland, Pittsburgh, Pa., Nims, Verdi & Martin, New York City, and Shepley, Kroeger, Fisse & Ingamells, St. Louis, Mo., on the brief), for appellee.
Before GOODRICH, McLAUGHLIN, and O’CONNELL, Circuit Judges.
O’CONNELL, Circuit Judge.
We are called upon to decide whether or not the district court erred in granting plaintiff (“Anheuser”) a permanent injunction against the use of the words “Budweiser” and “Bud” by defendant (“DuBois”) in connection with beer or any similar or related product. The claim of Anheuser is grounded upon its assertion of a common law trade name. The parties are in federal court by reason of diversity only, and Pennsylvania law controls.
Two principal issues are presented: (1) Has Anheuser established its common law right to the name of “Budweiser” as its exclusive trade name? and (2) if so, is An-heuser entitled to an injunction under the circumstances disclosed by this record ?
Certain facts are not in dispute. The name “Budweiser” traces its origin to Bud-weis, also known as Budejovice, a Bohemian town with some reputation for the beer brewed there. In 1876, one Conrad, a St. Louis beverage dealer, first applied the name to a beer brewed in the United States.
Conrad obtained a registered trade-mark for “Budweiser” in 1878. About 4% years later, the Anheuser-Busch Brewing Association- (“the Association”), manufacturer of this beer for Conrad, was given permission by him to sell with his trade-mark such “Budweiser” beer as the Association had on hand.
In 1886, Conrad registered a second trademark for “Budweiser.” Twenty-five days later, the Association (predecessor of An-heuser) also applied for a registered trademark involving a representation of the words “Original Budweiser." The Patent Office rejected the application on the basis of Conrad’s 1878 registration. The Association replied that “there is nothing in common between the parties in the manner in which they use the words ‘Original Budweiser’ to which words no one can have an exclusive right.” The Examiner then declared that “The words ‘Original Budweiser> * * * are public property and cannot of themselves constitute a trade-mark.” The Association eventually was granted registration of a trade-mark readily distinguishable in arrangement from Conrad’s.
In 1891, Conrad sold out to the Association. Between 1891 and 1898, the Association sold 785,970 barrels of “Budweiser” beer, with sales continuing to grow thereafter, . so that in 1905 alone the Association sold the equivalent of 444,265 barrels; in 1945 Anheuser, its successor corporation, sold the equivalent of more than 3,000,000 barrels.
In the period prior to 1905, the word “Budweiser” was also used by a number of other persons to' designate their beer. These may be divided into two groups: (1) Importers selling European beer, who, except during the effective period of the 18th Amendment, continued to sell such beer in the United States until shortly before trial of the instant case, and (2) persons selling domestic beer, who, with one minor exception, were dissuaded, by legal action or ¿otherwise, from continuing to use the name.
In June of 1905, Du Bois, owner of a brewery which (until 1945) never has sold more than 90,000 barrels of beer annually, began selling some of its beer under the name “DuBois Budweiser.” The labels on the bottles were and still are vastly different from those of the Association and Anheu-ser. The record amply supports the finding of the court below, however, that DuBois began marketing “DuBois Budweiser” with full knowledge of the extensive use of the word “Budweiser” by the Association. Several months later, DuBois applied for a registered trade-mark, in which application DuBois laid claim to the word “Budweiser” for beer, ale, and porter. The Association successfully opposed that application.
After also making timely demand that DuBois discontinue using the name, the Association (predecessor of Anheuser) took the controversy to court in September, 1908, by filing a bill of complaint in the federal court for the Western District of Pennsylvania. The bill sought a permanent injunction against the use of the word “Budweiser” by DuBois. DuBois filed an answer in due course. In August, 1909, the Association moved for, and was granted, a discontinuance, to which DuBois agreed. With that, the controversy remained dormant until the filing of the instant complaint in April, 1940. It is not inapposite to note that Anheuser and the Association brought nine other suits in protection of the name “Budweiser” between 1920 and 1939, besides inducing others, without court action, to refrain from using “Budweiser” and “Bud,” but that no communication with Du-Bois, formal or otherwise, was had on this subject during that entire period; and that Anheuser and its predecessor Association advertised widely and sold “Budweiser” malt syrup, yeast, and near-beer between 1918 and 1932. "
The first issue which arises from these facts is clear-cut. DuBois says the term “Budweiser” has always been descriptive ■of the type of beer which has been brewed in the town of Budweis, and that this descriptive name was and is available to anybody who wishes to make beer of the type which originally came from that community ; in short, that “Budweiser” is, like “Pilsener,” a word not subject to exclusive appropriation. Anheuser, on the other hand, says that “Budweiser” is not now, and never has been, used as the name of a •type of beer. As the background outlined .above indicates, both the Association (predecessor of Anheuser) and DuBois have •taken inconsistent positions in the past, the Association when pressing for the 1886 -registration and DuBois when seeking registration in 1905. The trial judge agreed with Anheuser, in a finding which we think is not completely harmonious with other facts he found.
This much, however, does seem beyond •dispute: (1) Bohemian beer never contains raw cereal, which is an ingredient of the .beer of both Anheuser and DuBois, and (2) •■the town of Budweis was not shown by •either litigant to have even manufactured, -much less to have been noted for, products such as near-beer which the parties mar'keted during the 20’s under the “Budweiser” label. Actually, the conclusion is not strained that both Anheuser and DuBois have adopted a name which they deemed advantageous for consumer acceptance of the commodities they were offering for .sale, just as they would have sought a Scotch name for tweeds or a French for -wines.
Much argument has been directed to' this •question, whether “Budweiser” is a descriptive word in the sense that nobody can .appropriate it to his exclusive use, as was the situation with “Shredded Wheat,” Kellogg Co. v. National Biscuit Co., 1938, 305 U.S. 111, 59 S.Ct. 109, 83 L.Ed. 73; or -whether "Budweiser” is a geographical ■term which may and did acquire a secondary smeaning as the product of a particular 'manufacturer, as the Supreme Court of Pennsylvania found “Dundee” to be in Hartman v. Cohn, 1944, 350 Pa. 41, 38 A.2d 22. As the majority of this court views the facts, the resolving of this interesting question is unnecessary, because Anheuser would be denied injunctive relief here even if “Budweiser” does have a secondary meaning as the product of Anheuser. Consequently, we limit ourselves to the observation that, on the whole, we believe the “Dundee” rationale is that which a Pennsylvania court would apply to this record, on the ground that the record does not sustain the DuBois contention that “Budweiser” in either common parlance or even brewing circles was denominative of a beer which can be prepared and aged only with specific ingredients and according to an undeviable formula. See cases collected at Annotation, 150 A.L.R. 1067.
This brings us to the question whether Anheuser is here entitled to injunctive relief, if it be assumed arguendo that the word “Budweiser” did acquire a secondary meaning as a product of Anheuser. A preliminary problem is whether we refer to Pennsylvania or federal authorities. This court has said that whether an equitable remedy, as contrasted with a judgment at law, is to be granted is a matter for the federal court to decide for itself. See Black & Yates v. Mahogany Ass’n., 3 Cir., 1942, 129 F.2d 227, 233, 148 A.L.R. 841, certiorari denied, Mahogany Ass’n v. Black & Yates, 1942, 317 U.S. 672, 63 S.Ct. 76, 87 L.Ed. 539, and Campbell Soup Co. v. Wentz, 3 Cir., 1948, 172 F.2d 80. On the other hand, the state doctrine of laches was upheld by our decision in Overfield v. Pennroad Corp., 3 Cir., 1944, 146 F.2d 889, an approach which finds support in Guaranty Trust Co. v. York, 1945, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079, 160 A.L.R. 1231. See Annotation, 148 A.L.R. 139. The problem here, however, is largely academic, as we believe the Pennsylvania and federal decisions are in full accord.
Under both federal and Pennsylvania law, it is settled that mere laches on the part of a holder of trade-mark rights would be sufficient to deny him an accounting, but would not necessarily prevent him from obtaining injunctive relief against one guilty of fraudulent infringement of the trademark. See Klepser v. Furry, 1927, 289 Pa. 152, 159, 137 A. 175, 177, and McLean v. Fleming, 1877, 96 U.S. 245, 257-258, 24 L.Ed. 828.
The questions, then, are (a) whether “laches” is the most appropriate term which may properly be applied to the inactivity of the Association and Anheuser toward DuBois, and (b) whether DuBois was proved to be guilty of fraudulent conduct. To prevail, Anheuser needs an affirmative answer to both questions. The majority of this court holds against Anheuser on both.
(1) As to the assiduity of Anheuser: Between 1909 and 1940, without a single manifestation to DuBois of disapproval, and with full knowledge of the use of the word “Budweiser” by DuBois, Anheuser (and the Association) permitted DuBois to continue marketing DuBois Budweiser products. More than that, during the same period Anheuser and the Association did take aggressive action against others employing the term “Budweiser” for their commodities. This court is unanimous in believing that the excuses which Anheuser has given for failure to proceed against DuBois for so long a period of time are patently flimsy and may be rejected in toto. Anheuser (successor to the Association) plainly is guilty of at least inexcusable laches.
The point on which the members of this court disagree is whether the failure of An-heuser to act constituted only laches, or whether the defect is more fundamental and grave. The majority of this court is of the opinion that the conduct of Anheuser falls into the latter category.
We may start consideration of this issue with acceptance of the doctrine that a fraudulent infringer cannot expect tender mercy of a court of equity, so that mere delay by the injured party in bringing suit would not bar injunctive relief. This doctrine, however, has its limits; for example, had there been a lapse of a hundred years or more, we think it highly dubious that any court of equity would grant injunctive relief against even a fraudulent infringer. A parallel line of reasoning is. to be found in statutes of limitations, pre*scriptions and adverse possession rules, ancE the like. If one deliberately trespassing on the land of another and openly claiming it to be his own property can gain title to that land over a specified period of time, we know of no compelling reason why DuBois, known by Anheuser (and the Association) to be openly claiming ownership of the word in defiance of the exclusive right asserted by Anheuser, may not likewise acquire an. immunity to legal process by Anheuser on that score. Certainly we have found no. case in which injunctive relief was granted after an inexcusable delay for a comparable period of time. See French Republic v. Saratoga Vichy Spring Co., 1903, 191 U.S. 427, 24 S.Ct. 145, 48 L.Ed. 247. In our view, this is not merely a matter of laches ; Anheuser has been grossly remiss.
Moreover, we need not rest our decision upon the time factor alone. In two concrete ways Anheuser (and its predecessor Association) has demonstrated that to characterize its behavior as lax would be unduly charitable ; the filing of the 1908 complaint against DuBois and the voluntary dismissal shortly thereafter, and the defense of its trademark right against other alleged infringers during the ensuing years. The ability of DuBois to controvert the rights asserted by Anheuser, of course, would be impaired w ith the passage of time and death of some of the key witnesses of DuBois. The conclusion is irresistible that the Association feared the outcome of its 1908 suit, and that the long delay prior to the filing of the instant complaint amounted to at least an acquiescence in use of the word by DuBois, which Anheuser should be estopped to deny at this late hour, if it was not an actual abandonment of the exclusive right as far as DuBois was concerned.
In Procter & Gamble Co. v. J. L. Prescott Co., 3 Cir., 1939, 102 F.2d 773, at page 781, certiorari denied, J. L. Prescott Co. v. Procter & Gamble Co., 308 U.S. 557, 60 S.Ct. 80, 84 L.Ed. 468, this court expressly approved of a statement in Valvoline Oil Co. v. Havoline Oil Co., D.C.S.D. N.Y.1913, 211 F. 189, 195, which we deem particularly apropos to the case at bar: “But it cannot be equitable for a well-informed merchant with knowledge of a claimed invasion of right, to wait to see how successful his competitor will be and then destroy with the aid of a court decree, much that the competitor has striven for .and accomplished — especially in a case where the most that can be said is that the •trade-mark infringement is a genuinely ■debatable question.” This same principle -was recognized by the Supreme Court of Pennsylvania in Consolidated Home Specialties Co. v. Plotkin, 1947, 358 Pa. 14, 30, 55 A.2d 404, 412, when it said, “If the owner of a tradename acquiesces so long in the •use of that name or in a name strikingly similar thereto that the public has in general become aware of the other’s appropriation of that name and is therefore not deceived, such owner may in a proper case be treated as having abandoned his onetime property right in that name.” See also Prince’s Metallic Paint Co. v. Prince Mfg. Co., 3 Cir., 1893, 57 F. 938, 943-944.
We have said that Anheuser should he estopped from asserting its claim to exclusive use of the word “Budweiser.” Any doubt whether mere prolonged inaction of the Association and Anheuser would of itself be sufficient to warrant the invoking of this principle is dispelled by the filing and voluntary discontinuance of the 1908 suit against DuBois. If the Association did not want to lull DuBois into a false sense of security, the Association should have followed up the discontinuance of the suit with some unambiguous action asserting its claim against DuBois.
We are aware that estoppel of Anheuser depends upon a change of position by DuBois in reliance upon the misleading representation. We think the record does show such change. It is true that the barrel capacity of DuBois has not been enlarged ; and obviously DuBois would have a stronger equity if it could show that its total production had been increased. Cf. Procter & Gamble, supra. What is equally clear, however, is that DuBois did spend an appreciable amount of money in advertising its products, and that DuBois Budweiser had a noticeable though minority share of the DuBois output. Within its localized areas of distribution, DuBois assuredly has acquired over the period of years a good will in the name “DuBois Budweiser” which ought not to he eliminated at the instance of a complainant which had led DuBois reasonably to believe that use of the name would not be impugned.
.(2) As to alleged fraud of DuBois: The court below announced as a conclusion of law that “From the beginning, defendant’s use of the words ‘Budweiser’ and ‘Bud’ has been with knowledge of the rights of plaintiff and of plaintiff’s predecessors, and with the fraudulent purpose and intent of confusing and deceiving the public and of enabling the defendant’s product to be passed off as and for the product of plaintiff.” Were this conclusion based upon findings of fact not clearly erroneous, this phase of the case at bar would pose no problem on appeal. Upon examination of the record and findings of fact and opinion of the court below, however, serious doubts appear. Close analysis of this conclusion is desirable.
(a) As we have already stated, DuBois unquestionably did know of the Budweiser marketed by the Association when DuBois Budweiser was introduced in 1905. Mere knowledge, of course, does not constitute fraud, particularly when the name is being used by a number of other concerns and when the Association (predecessor to Anheuser) has declared in a public proceeding that “no one can have an exclusive right” to the word.
(b) The “fraudulent purpose and intent of confusing and deceiving the public” has not been proved.' In the opinion of the court below is included the remark that “one may be pardoned for more than a strong suspicion that the extensive advertising and quality of the Anheuser-Busch ‘Budweiser’ were not ignored in naming it [DuBois Budweiser].” On the other hand, it is clear that others were using the name as well; that DuBois made no attempt .to copy the Association labels; that, in answer to the 1908 bill of complaint, DuBois asserted that the name was in common usage and could not be exclusively appropriated, just as the Association had maintained in 1886; and that the lower court accepted as true the testimony that the president of Du-Bois had visited Germany and there become familiar with the beer of Budweis. From the. foregoing, we would not assert categorically that DuBois remained blissfully ignorant of the possibility that unwary purchasers might buy its product rather than that of the Association; but awareness ol the business possibilities of a name is not persuasive proof that the choice of the name was with fraudulent intent; i. e., a conscious effort to woo the unsuspecting disciples of the Association products. Although .the district judge had “more than a suspicion,” he apparently was not prepared,, nor are we, to state with assurance that there was fraud in the inception.
(c) The question of fraud therefore resolves itself into the sales campaign and methods of the DuBois agents. In general, the representations of DuBoiscan be classified as (a) “puffing” to which the law attaches no penalty and on which the district court did not rely, and (b) the statement that a customer ordering “Budweiser” could be served the DuBois product. As to the latter, if DuBois reasonably believed it had the right to use the word — and we have found not only that all actions of DuBois have been in conformance with such belief, but also that the Association and Anheuser generously contributed to its reasonableness — such advice is not fraudulent. A different situation would have been presented here if Anheuser had been able to-produce convincing evidence that DuBoisrepresented that DuBois Budweiser could: be served when Anheuser Budweiser was-ordered. The record certainly establishes, that the retailers who were offered the DuBois product knew or were told that it was not the “Budweiser” of Anheuser. Actually, the lower court here has spelled out “fraud” from the fact that the consuming-public has experienced some confusion, because of the identity of the name. If tendency to mistake by the public were of itself to constitute fraud, however, fraud! would be present in every case and injunc-tive relief would never be denied because ef laches.
We conclude, therefore, that much more persuasive evidence than was here adduced would be necessary before we should be prepared not only to overlook a course of action of more than thirty years but also to grant injunctive relief.
A number of other issues have been raised by this appeal, but discussion of only one of them is here necessary. As we have indicated, there is ample support in the record for the finding of the district judge that the bottles and labels of DuBois were and are clearly distinguishable from those of Anheuser. This raises the question whether the identity of the trade name would be a sufficient basis for injunctive relief after the lapse of more than thirty years. If federal law be the criterion, this issue appears set at rest by Saxlehner v. Eisner & Mendelson Co., 1900, 179 U.S. 19, 21 S.Ct. 7, 45 L.Ed. 60, and French Republic v. Saratoga Vichy Spring Co., supra. In the Saxlehner case, the Supreme Court of the United States did grant an injunction against confusingly similar labels but refused to enjoin the use of the name, when the original user had been guilty of twenty years of inaction and the copying of the labels demonstrated an attempt by the infringer to pass off his product as that of the original user. In the French Republic case, the court likewise refused to enjoin the infringer from using the word “Vichy” because the original user had delayed taking action for thirty years and because the labels were dissimilar. Comparing the prolonged delay, the distinctive labels, and the fragile evidence of fraud in the case at bar with the facts of the Saxlehner and French Republic cases, we think the same result would be demanded if federal law were controlling. Although Pennsylvania courts appear not to have passed upon this particular question, the language hereinbefore quoted from Consolidated Home Specialties Co. v. Plotkin, supra, indicates that, as usual in the law of unfair competition, Pennsylvania would adhere to the federal view. See Gum, Inc. v. Gumakers of America, 3 Cir., 1943, 136 F.2d 957, 960.
Accordingly, we believe that a court of equity should refrain from interfering with the status quo. The parties should be left in the same situation as they were on April 20, 1940, the date of filing of the instant complaint. Anheuser has permitted DuBois to conduct a localized operation over so long a period of time that it would be inequitable to compel DuBois to surrender use of the name at this time. By the same token, DuBois, having confined the sale of its DuBois Budweiser product to localized territory, should not expect to extend its use of that name to other areas with legal impunity.
For the reasons stated, the decree of the lower court will be reversed.
The lower court did not order an accounting because of a prolonged delay by Anbeüser which we discuss in a later portion of this opinion. Anheuser did not appeal from that determination. The opinion of the district court is reported at D.C.W.D.Pa.1947, 73 F.Supp. 338.
At the outset of the trial in the court below, Anheuser declared that its cause of action would not be based upon its trade-marks registered under federal legislation.
In the proceedings, the Patent office objected to registration of the trade-mark requested by Conrad, “Budweiser Lager Beer,” because a decision of the Commissioner “precludes descriptive matter from being embraced as essentially a part of a registrable trade-mark." Conrad thereafter amended his claim to exclude the word “Lager.” Then the application was granted.
The Anheuser-Busch Brewing Association is the predecessor corporation to Anheuser. Although for accuracy this opinion will frequently refer to the Association rather than to Anheuser, it is important to note that, in legal effect, the actions of the Association are those of Anheuser for the purposes of the case at bar.
For example, the district judge found that the purpose of Conrad was that the beer “should be similar in quality, color, flavor, and taste to the ‘Budioeiser’ beer .then being made in Bohemia.” (Emphasis added.) 73 F.Supp. at page 343. Also, the trial judge tended to treat “geographic” as being synonomous with “descriptive” in discussing the term.
The excuses are: (1) That DuBois did not object in 1909 to discontinuance of the suit, (2) that one of the officers of the Association was ill, and (3) that an era of alcoholic prohibition was im-miment and became a reality. We emphasize that none of these factors prevented Anheuser and the Association from taking .vigorous and timely action against other users of the word “B'ud-weiser” during that period. As to the discontinuance of the suit, we might add that few defendants so relish the trial of a suit against them as to oppose a voluntary dismissal of such suit.
A trade-mark is not a right in gross, or at large, like a patent or copyright.. It is but a means for facilitating the protection of one’s good-will. United Drug Co. v. Theodore Rectanus Co., 1918, 248 U.S. 90, 97-98, 39 S.Ct. 48, 63 L.Ed. 141.
In this connection, we note that the 1908 complaint asserted rights under a 1907 trade-mark registration of highly dubious validity, and that the complaint inaccurately intimated that Conrad had •coined the term “Budweiser”.
While it is true that fraud was not .present in the Procter & Gamble case, we note that the infringer did apparently have knowledge of the prior claim in the Valvoline case.
The advertising expenses were $29,-783.93 between 1909 and 1919, and $244,-.836.94 between 1933 and 1945. What »1>art of these sums may be allocated to DuBois Budweiser is not disclosed by the record.
It has been suggested that DuBois Budweiser attained more success in barrel than in bottle sales, perhaps because it would be easier to pass it off as Anheuser Budweiser. The sales records of DuBois do not bear out this contention. Until 1941, the sales figures fluctuated without a discernible pattern other than that increase in bottled DuBois Budweiser sales was accompanied by decrease in barrel DuBois Budweiser sales, and vice versa. During World War II, both barrel and bottled DuBois Bud weiser sales measurably increased.
Into this category fall such remarks as that DuBois Budweiser was the “original”, that the right to use the name had been won in the courts, and that the two beers were comparable in quality.
We believe no weight can be attached to the fact that the DuBois product was invoiced occasionally as “Budweiser” or “Bud.” Such shorthand methods of identification never were intended by Du-Bois or construed by the purchasers to mean that DuBois was asserting a right to the word “Bud” or that the product of Anheuser was being supplied.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". What subcategory of business best describes this litigant?
A. auto
B. chemical
C. drug
D. food processing
E. oil refining
F. textile
G. electronic
H. alcohol or tobacco
I. other
J. unclear
Answer:
|
songer_casetyp1_7-3-3
|
J
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - commercial disputes".
AD-VANTAGE TELEPHONE DIRECTORY CONSULTANTS, INC., Plaintiff-Appellee, Cross-Appellant, v. GTE DIRECTORIES CORPORATION, Defendant-Appellant, Cross-Appellee.
No. 85-3970.
United States Court of Appeals, Eleventh Circuit.
Aug. 27, 1987.
As Amended Sept. 4, 1987.
James J. Kenny, Kenny, Nachwalter & Seymour, Miami, Fla., for defendant-appellant, cross-appellee.
Jawdet I. Rubaii, Atty., Clearwater, Fla., John R. Ferguson, Swidler & Berlin, Washington, D.C., for plaintiff-appellee, cross-appellant.
Before HILL and HATCHETT, Circuit Judges, and HENDERSON, Senior Circuit Judge.
HILL, Circuit Judge:
This case is another poignant illustration of the fact that when business relationships turn sour, the ailing party is apt to turn to the Sherman Act for relief.
THE FACTS
Appellant, GTE Directories Corp., (GTEDC) is a wholly owned subsidiary of the GTE Corporation. GTEDC enters into contracts with telephone operating companies, including those companies owned by GTE, to publish the telephone company’s directory. This lawsuit concerns the directories published by virtue of GTEDC’s lawful contract to be the official publisher of the General Telephone Company of Florida’s directories for Tampa, Clearwater and St. Petersburg, Florida. GTEDC sells advertising space in these directories; this advertising space is the familiar “yellow pages,” containing advertising of businesses with products and services to sell in the community covered by each particular directory.
According to the uncontradicted testimony of John D. O’Neill, former vice president of GTEDC, prior to 1975 Yellow Pages advertising had been coordinated by American Telephone & Telegraph Company (ATT). In May of 1975 ATT, decided to abandon this role, and their coordinating efforts were taken on by the newly formed National Yellow Pages Service Association (NYPSA), which was founded as a self-regulating organization of the publishers of telephone directories. One of the first issues which the NYPSA tackled was the coordination of national advertising. Because each publisher dealt with directories published in specific communities, a national company wishing to place advertisements in many different directories from many different publishers. To ameliorate the logistical problems this situation caused, the NYPSA created the position of Authorized Selling Representative (ASR). According to the NYPSA bylaws and guidelines, an ASR was authorized to sell advertising to any national advertiser on behalf of any publisher within NYPSA. Thus, a national advertiser, such as Greyhound Bus Lines, could purchase an advertisement in the directory of every major metropolitan area in the United States and receive only one bill from the ASR with whom it was dealing. It is the responsibility of the ASR to coordinate the advertising, i.e., to contact each publisher about placing an ad. The publisher pays a 25% commission to the ASR for each advertisement placed in its directory.
According to the guidelines published by NYPSA, in order to qualify as “national yellow pages advertising,” an advertising package must involve two or more publishers, and be designed to place ads in 20 or more directories in at least three states, with 30% of the advertising revenue generated in states outside the primary state. However, the guidelines go on to say, “this minimum standard does not preclude any member [publisher] from accepting as a yellow pages service ad any advertising program having fewer publishers, fewer directories, or fewer states, than the minimum standard.”
The guidelines provide that each publisher will recognize an ASR’s national sales, and will pay a commission on those sales. Under the NYPSA guidelines, the publisher in whose directory a national ad is placed bills the ASR for the advertising space, and the ASR is ultimately responsible for payment. The ASR collects from its advertiser clients. Each publisher has the right not to deal with an ASR who fails to pay its bills promptly, or otherwise cannot establish itself as a good credit risk. Many of the publishers of telephone directories are themselves qualified ASR’s. At the time the events involved in this litigation took place, GTEDC had a separate department qualified as an ASR for national yellow pages advertising.
Mr. Joel Blumberg is the central figure in this litigation. He was a sales person for GTEDC until 1975 when he started his own business as a “yellow pages consultant” in the Tampa Bay area. In 1979, after NYPSA authorized nonpublisher ASR’s to sell national yellow pages advertising, Blumberg’s company, Ad-Vantage Telephone Directory Consultants, Inc. (“Ad-Vantage”) became an ASR.
Once in business as an ASR, Mr. Blum-berg decided to “discount” yellow pages advertising. He accomplished this by charging his clients less than the publisher’s established rate for a yellow pages advertisement. However, Ad-Vantage was still required to pay the publisher full price for the ad. Presumably, the difference between what Ad-Vantage had to pay a publisher and the amount paid by its clients to Ad-Vantage came out of Ad-Vantage’s commissions.
GTEDC was apparently concerned about discounting, allegedly because ASR’s who failed to charge their clients the authorized rate for yellow pages advertising seemed unable to pay their publisher’s bills on time and also provide “full and comprehensive service” to their clients. This concern was expressed in the first issue of “NYPSA News” a newsletter published by GTEDC in May of 1982.
Evidently one of the “discounting ASR’s” who did have some problems paying its bills was Mr. Blumberg’s company, Ad-Vantage Inc. Mr. Blumberg’s own testimony indicated that, at least in the early part of 1982, the company was having to finance some of its clients’ accounts by paying the publishers before it received payment from its advertisers.
According to its version of the facts, GTEDC suffered chronic collection problems with Ad-Vantage over a period of two years. The extent of Mr. Blumberg’s failure to keep Ad-Vantage’s account with GTEDC “current” was hotly disputed at trial. However, it was undisputed that several checks sent to GTEDC by Ad-Vantage had bounced. After extensive contacts with Mr. Blumberg regarding Advantage's alleged indebtedness to GTEDC, a senior attorney in charge of collections at GTEDC sent a letter directly to the advertisers for whom Ad-Vantage had placed advertisements in the GTEDC directories. The letters, dated May 6, 1982, explained that certain difficulties had arisen between GTEDC and Ad-Vantage; that GTEDC would bill each advertiser directly for its advertising submitted through Ad-Vantage; and that future advertising orders submitted by Ad-Vantage must be accompanied by advance payment, or a guarantee of payment by the advertiser.
Mr. Blumberg was advised of this direct mailing by letter dated May 10,1982. This letter advised Mr. Blumberg that according to GTEDC’s records, his company still owed GTEDC $38,424.06, and that another $122,335 would be due promptly. The letter informed Mr. Blumberg that “when you are able to bring your account to a current status with GTE Directories Corp., we will once again be willing to accept your orders in the normal course of business.”
Ad-Vantage claimed that as a result of GTEDC’s direct contact with its clients, it lost several major accounts, and ultimately went out of business (to be immediately reborn under the name of National Yellow Pages Directories Services). Accordingly, Ad-Vantage sued GTEDC in federal district court, claiming, inter alia, that GTEDC’s action violated the Sherman Act and the Florida anti-trust statute, and constituted breach of contract, and tortious interference with business relations under Florida law. GTEDC counter-claimed for $208,000 which it claimed Ad-Vantage still owed on past due accounts.
The case went to trial before a jury, and the jury returned a verdict in favor of the plaintiff, Ad-Vantage, but only on the antitrust claims brought under the Florida Anti-trust Act, and the tortious interference with business relations claim. GTEDC prevailed on its counter-claim. The jury awarded Ad-Vantage $1.5 million in compensatory damages on the Florida anti-trust claim, and $500,000 in punitive damages on the interference with business relations claim. The antitrust award was trebled, pursuant to Florida law, for a total award of $4,500,000. The court then struck the $500,000 punitive damage claim as duplicative in light of the punitive nature of the treble damages awarded on the antitrust claim.
On appeal, GTEDC claims that the district court erred in not directing a verdict or entering judgment notwithstanding the verdict on the monopolization claims, on grounds that Ad-Vantage failed to offer evidence of a relevant market; that the district court should have directed a verdict or granted J.N.O.V. on the business tort claim because GTEDC’s actions were justified under Florida law; that the district court erroneously instructed the jury as to Florida law on tortious interference with business relations; and that a directed verdict or J.N.O.V. should have been entered for GTEDC because Ad-Vantage's evidence on the issue of damages was insufficient. Ad-Vantage cross-appeals, claiming that the district court erred by not adding the $500,000 in punitive damages to the treble damages awarded on the anti-trust claim. It also argues that should this court reverse any part of the verdict in favor of Ad-Vantage, it must also reverse the judgment for GTEDC.
I. THE ANTI-TRUST CLAIMS
We turn first to GTEDC’s arguments regarding the district court’s failure to direct a verdict on Ad-Vantage’s anti-trust claims. The crux of its argument is that Ad-Vantage failed to prove a relevant market within which a jury could correctly evaluate the effect of GTEDC’s actions upon its competition.
Initially, we must note that the jury rendered a verdict for the defendant, GTEDC, on the federal anti-trust claims. GTEDC was found liable only for violating Florida anti-trust law, and only that portion of the Florida Anti-Trust Act of 1980 which tracks Section 2 of the Sherman Act, 15 U.S.C. § 2. Fla.Stat. § 542.19 provides:
Monopolization; attempts, combinations, or conspiracies to monopolize.— It is unlawful for any person to monopolize, attempt to monopolize, or combine or conspire with any other person or persons to monopolize any part of trade or commerce in this state.
The Florida Anti-Trust Act further provides, in section 542.32, that:
In construing this chapter, due consideration and great weight [shall] be given to the interpretations of the federal courts relating to comparable federal anti-trust statutes____
In applying this provision, the Florida courts held that the Florida legislature has, in effect, adopted as the law of Florida the body of anti-trust law developed by the federal courts under the Sherman Act. St. Petersburg Yacht Charters, Inc. v. Morgan Yacht, Inc., 457 So.2d 1028 (Fla.App.1984). Thus, in analyzing this case, we may, and indeed must, apply the federal precedent developed under Section 2 of the Sherman Act.
Section 2 (and the comparable Florida statute) present two potential antitrust offenses: monopolization and attempt to monopolize. To prove monopolization, the Section 2 plaintiff must demonstrate possession of monopoly power in the relevant market, and the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident. United States v. Grinnel Corp., 384 U.S. 563, 570-71, 86 S.Ct. 1698, 1703-04, 16 L.Ed.2d 778 (1966); Dimmitt Agricultural Industries, Inc. v. CPC International Inc., 679 F.2d 516 (5th Cir.1983), cert. denied, 460 U.S. 1082, 103 S.Ct. 1770, 76 L.Ed.2d 344 (1982). To prove an attempt to monopolize a plaintiff must demonstrate that the defendant had a specific intent to accomplish the illegal result, i.e., monopolization, and that there existed a dangerous probability that the attempt would be successful. Spectrofuge Corp. v. Beckman, 575 F.2d 256, 276 (5th Cir.1978), cert. denied, 440 U.S. 939, 99 S.Ct. 1289, 59 L.Ed.2d 499 (1979). In this circuit a Section 2 plaintiff attempting to prove either completed monopolization or an attempt to monopolize must “provide the jury with sufficient evidence to permit it to define the relevant geographic and product market.” In re Municipal Bond Reporting Anti-Trust Litigation, 672 F.2d 436, 441 (5th Cir.1982); Dimmitt, 679 F.2d at 525. In proving an attempt to monopolize, the relevant market must be demonstrated in order to show that there was a dangerous probability of monopolization in a relevant market. Thus, both aspects of a Section 2 violation require proof of a relevant market.
As in most anti-trust litigation, the relevant market was a subject of hot dispute in this case, and the confusion was exacerbated by appellee’s chameleon-like ability to shift the focus of its market analysis between national and local advertising. The relevant market is a question of fact for the jury. See Dimmitt, 679 F.2d at 527; Mesirow v. Pepperidge Farm, Inc., 703 F.2d 339, 345 (9th Cir.1983), cert. denied, 464 U.S. 820, 104 S.Ct. 83, 78 L.Ed.2d 93. In its motion for a directed verdict, and again in its motion for J.N.O.V., GTEDC maintained that Ad-Vantage failed to demonstrate a relevant market.
In evaluating this claim, we are mindful of the Supreme Court’s recent admonition that, “a trial judge must direct a verdict only if, ‘under the governing law, there can be but one reasonable conclusion as to the verdict... if reasonable minds could differ as to the import of the evidence, however, a verdict should not be directed.’ ” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). After carefully evaluating all of the arguments made by both parties, and after examining all of the evidence presented on this issue with painstaking thoroughness, we conclude, for the reasons given below, that the district court ought to have granted a directed verdict or J.N.O.V. in favor of GTEDC on the anti-trust claims.
We begin by examining Ad-Vantage’s claim that “yellow pages advertising” is a relevant product market. The relevant market is made up of those “commodities reasonably interchangable by consumers for the same purposes.” United States v. DuPont & Co., 351 U.S. 377, 395, 76 S.Ct. 994, 1007, 100 L.Ed. 1264 (1955). Ad-Vantage offered sufficient testimony to allow the jury to conclude that advertising in telephone directories is unique. In other words, other forms of advertising, such as advertising in newspapers, consumer magazines, or business publications, was not seen by businesses as a suitable substitute for yellow pages advertising. In addition, the increase in price of yellow pages was not commensurate with increases in the pricing of other forms of advertising. However, we note (for reasons which will become important later in our analysis) that all of Ad-Vantage’s evidence dealing with the uniqueness of yellow pages advertising related only to advertising in the “official” yellow pages, i.e., advertising published in telephone directories published under contract with the telephone company operating in a specific geographic area.
Determining the product market is only the first step. The relevant product market must also be accompanied by proof of the relevant geographic market. This is the “area of effective competition” within which the parties operate. Standard Oil Co. v. United States, 337 U.S. 293, 299, 69 S.Ct. 1051, 1055, 93 L.Ed. 1371 (1949). Initially, all of Ad-Vantage’s anti-trust claims rested upon the fact that GTEDC and AdVantage were both Authorized Selling Representatives of national advertising. Evidence offered at trial indicated that competition for national ad campaigns did take place between GTEDC’s national sales force (its own ASR) and Ad-Vantage. As an ASR, GTEDC’s national sales force solicited advertising not only for its own telephone directories, but also advertising to be placed in the directories published by other members of the NYPSA. When acting as an ASR, the national sales force for GTEDC earned a commission on the ads placed with other publishers, the same as a nonpublisher ASR would earn.
Ad-Vantage originally claimed that GTEDC’s actions as an ASR were aimed at destroying competition in two relevant geographic submarkets. The first submarket consisted of the sale and purchase of yellow pages advertising space by businesses qualifying as national accounts situated or headquartered in any community or section of the United States. The second submark-et consisted of the sale of national advertising in specific yellow pages directories, published in and for a specific community, such as the directories that GTEDC published for Tampa, St. Petersburg, Clear-water, etc.
The problem with these market definitions soon became evident at trial. AdVantage could muster no proof that GTEDC, as an ASR, had obtained any significant degree of market power in the area of national yellow pages advertising. In other words, while GTEDC as an ASR competed with Ad-Vantage as an ASR for the sale of national advertising, Ad-Vantage could offer no proof that GTEDC had monopolized national advertising or had attempted to monopolize national advertising, either in the nationwide market or as appearing in any given directory. We need reiterate at this point that “national advertising,” according to the NYPSA guidelines, meant advertising programs ordering ads to appear in 20 or more different directories, published by two or more different publishers, placed in at least three different states, with 30% of the advertising revenue outside the primary state.
With its national advertising theory rapidly collapsing, Ad-Vantage moved to amend its complaint to conform to the evidence produced at trial. The amendment was allowed, primarily because GTEDC failed to show that it would be prejudiced. Thus, the final market asserted by Ad-Vantage, on which the jury received instructions, was as follows:
Ad-Vantage claims that the relevant market or submarket in this case is the purchase and sale of advertising space in a specific yellow pages directory covering a specific geographic area, for example, Tampa, Clearwater and St. Petersburg. It includes buyers and sellers such as GTEDC directories corporation and authorized selling representatives, wherever located, desiring to purchase advertising space from the publisher, such as GTE directories corporation, of the Yellow Pages directory for any specific geographic area.
The purpose of this amendment was to shift the focus from national advertising to local advertising within the telephone directories produced by GTEDC for the Tampa Bay communities. This was accomplished by switching from sale of “national advertising” to “sale of advertising space.” The conclusion that this definition shifted the market focus to local advertising is supported by the fact that the jury found GTEDC liable for violating only the Florida antitrust laws. The only distinction between the Sherman Act and the Florida law is that the Florida law does not require an effect on interstate commerce. St. Petersburg Yacht Charters, 457 So.2d at 1032. “National” advertising clearly effects interstate commerce; it is designed to promote it.
A local advertisement differs markedly from a national ad. A local ad is bought by a local business and appears only in the directory or directories which serve the same geographic area as the one in which that business operates. For example, a “Mom and Pop” grocery store located in St. Petersburg would buy an advertisement in the St. Petersburg directory. It would have no reason to advertise in all of the major metropolitan areas of the United States. Uncontradicted testimony by NYP-SA officials at the trial established that most local advertising is placed by direct contract with the publisher of the local directory.
The NYPSA guidelines do establish that, should a publisher desire, it may accept orders for local advertising from an Authorized Selling Representative and treat such advertising as if it were a national ad. That is, a publisher who receives an order for a local ad from an ASR may accept it and may pay the ASR who obtained the ad a commission. However, it is clear that it is the individual publisher’s prerogative to decide whether or not it will pay a commission to ASRs for placements of local advertising. On the other hand, each publisher is bound by the NYPSA guidelines and bylaws to honor an ASR’s placement of a national ad; in that case it must pay the commission.
Counsel for Ad-Vantage explicitly recognized GTEDC’s exclusive right to control the sale of local advertising within its publications up until the time that it successfully amended its complaint at trial. In its original amended complaint, Ad-Vantage related that, “coincident with its exclusive publication rights, GTEDC is authorized by the local telephone companies as the exclusive agent for the solicitation of yellow pages advertising from local accounts, i.e., advertisers not qualified as “national accounts,” in each locality for which it publishes a directory____” Further, in his opening argument, counsel for Ad-Vantage stated, “GTEDC has the exclusive right to sell what is called local clients.” He stated further, “GTEDC, notwithstanding the creation of NYPSA, notwithstanding the creation of ASRs, still reserves to itself the exclusive right to sell all local advertising. Ad-Vantage, Mr. Blumberg, cannot sell advertising to advertisers who do not qualify as national accounts, and he can’t give them a price break.”
The evidence precipitating Ad-Vantage’s change of heart with respect to local advertising came in the form of testimony by two yellow pages advertisers, Peter J. Blank of Home Federal Bank, and Alfred C. Grecco, of Apsco Appliance and TV Centers, for whom Ad-Vantage placed local advertisements with GTEDC. Ad-Vantage apparently received a commission from GTEDC for placement of these ads. In addition, testimony by a GTEDC official indicated that because GTEDC took orders for more than a million ads a year, it could not stop to make sure that all of them were national rather than local ads. It was simply uneconomical to police the ads placed by ASRs.
Based on the above evidence, Ad-Vantage reasoned that there was really no difference between national accounts and local accounts. Thus, it could be said that Ad-Vantage “competed” with the GTEDC's local sales force for the sale of local advertising. GTEDC published the only directories carrying official yellow pages advertising, and local accounts made up 90% of the advertising in the Tampa GTEDC directory. Thus, counsel for Ad-Vantage argued, GTEDC had a 90% share of the relevant market according to this logic.
On motion for directed verdict, counsel for GTEDC rationally pointed out that AdVantage’s new theory of the case meant that GTEDC was being accused of monopolizing its own telephone book. GTEDC’s 90% “market share” was nothing more than a reflection of the fact that it had a lawful contract with the telephone company to produce the telephone directory and solicit local advertising for that directory.
In response, counsel for Ad-Vantage added the final gloss to its market theory. Faced with a 90% lawful monopoly, it argued that the publication of the telephone directory was a separate activity from the sale of yellow pages within that directory. In other words, it argued that the lawful power to publish the exclusive directory for a specific geographic area did not give GTEDC the right to be the exclusive seller of advertising space within the directory which it published.
Based on this theory, the court instructed the jury:
GTE Directories Corporation, by virtue of its contract with General Telephone Company of Florida, possesses a lawful monopoly over the product it produces, the official Yellow Pages Directory for the City of Tampa and other communities. That GTE Directories Corporation possesses the power to publish its directories and to set rates for advertising space in those directories is not to be considered by you as evidence of monopoly power, monopolization or an attempt to monopolize.
On the other hand, that lawful monopoly to publish the official yellow pages and to set rates for advertising space in the yellow pages may not be exercised to the end that another activity is monopolized or attempted to be monopolized.
The district court never defined what “another activity” might be in the context of this case. Based on these instructions explaining Ad-Vantage’s final version of its market theory, as argued by its counsel in closing arguments, the jury found GTEDC liable for monopolization and attempted monopolization under Florida law.
We must admit that this market theory has a certain superficial appeal. It seems analogous to a typical wholesale/resale monopolization case. In fact, for Ad-Vantage’s theory to work, the appropriateness of that analogy is crucial. GTEDC must be viewed as a wholesaler or manufacturer of advertising “space.” Ad-Vantage must play the role of retailer of this space. AdVantage sells the space to consumers of yellow pages advertising. While GTEDC’s contract with the telephone companies enables it to manufacture the space, it cannot use its manufacturing power as leverage to control another level of activity, i.e., the retail sale of this space. Unless this analogy is justified by the commercial realty existent here, Ad-Vantage’s claims must fall, because it is not a lawful competitor of GTEDC for local advertising; the relevant market is the area of effective competition.
A Section 2 claim can be supported by limiting the market definition to a single level of distribution where a vertically integrated manufacturer uses his dominant position at one level of competitive activity (manufacturing) to eliminate competition at another level (retailing). See e.g., Spectrofuge, 575 F.2d 256 at 282; Eastman Kodak v. Southern Photo Materials Co., 273 U.S. 359, 47 S.Ct. 400, 71 L.Ed. 684 (1927); Poster Exchange, Inc. v. National Screen Service Corp., 431 F.2d 334, 339 (5th Cir.1970), cert. denied, 401 U.S. 912, 91 S.Ct. 880, 27 L.Ed.2d 811 (1971). Becker v. Egypt News Company, Inc., 713 F.2d 363 (8th Cir.1983). In these cases, the monopolist is seen as imposing a vertical restraint on intrabrand competition. See also Paschall v. Kansas City Star, 727 F.2d 692, 698 (8th Cir.1984), cert. denied, 469 U.S. 872, 105 S.Ct. 222, 83 L.Ed.2d 152 (legitimate business reasons for vertical integration will negate antitrust liability in the absence of “dirty tricks.”)
However, the superficial similarity between this case and the vertical restraint cases cited above fails when the commercial reality of GTEDC’s local advertising sales is carefully examined. To the extent that the sale of yellow pages advertising is an activity separable from the publishing of that advertising the sales made by non-GTEDC ASR’s are in the nature of an agency and not retail sales.
The wholesale/resale analogy falls for several reasons. First, there is no “resale.” Yellow pages is not a product that is produced and distributed. The blank yellow pages do not exist prior to the sale of an advertisement, somehow awaiting distribution on a resale market. Each advertisement, that is, the space for the ad, is “created” when the advertisement is sold to the advertiser. A GTEDC official testified that publishers will make the yellow pages as large as is necessary to accommodate all of the advertisements placed in it. ASRs do not maintain an inventory of ad space to be sold. An ASR cannot purchase a page in the yellow pages and then distribute it to advertisers as it sees fit.
Thus, the market structure at issue here is quite different from the wholesale/retail schemes used to support Section 2 claims in the cases cited by Ad-Vantage. In Poster Exchange, 431 F.2d 334, the defendant was a manufacturer who made a bona fide sale of its products to its distributors, who then sold the products to the consumers. In Heatransfer Corp. v. Volkswagenwerk, 553 F.2d 964 (5th Cir.1977), cert. denied, 420 U.S. 929, 98 S.Ct. 1282, 55 L.Ed.2d 792 (1978), the defendant was accused of using its power over one product, the manufacture of Volkswagens, to control the sale of airconditioning units for those Volks-wagens, when four different companies were producing air conditioning units for use in Volkswagen cars. In Becker v. Egypt News, 713 F.2d at 363, the defendant was accused of using its power in the wholesale market to control the retail market for the Daily Racing Form. However, the daily racing form was a commodity, produced and sold to the retailer, who assumed all the risks of distribution.
The failure of the wholesale-resale analogy is further illustrated by comparison to Sherman Act Section 1 resale price maintenance cases. In a typical price maintenance case, a manufacturer produces a product, and sells it to a retailer. The manufacturer then attempts, in some way, to control the price that its retailer can charge for the product. Retail price maintenance is considered per se illegal under the Sherman Act. Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373, 31 S.Ct. 376, 55 L.Ed. 502 (1911); California Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S. 97, 100 S.Ct. 937, 63 L.Ed.2d 233 (1980). It applies where the risks of distribution are borne by otherwise independent firms in competition with each other. Green v. General Foods Corp., 517 F.2d 635 (5th Cir.1975), cert. denied, 424 U.S. 992, 96 S.Ct. 1409, 47 L.Ed.2d 348 (1976).
In some cases, however, an activity which looks like resale price maintenance is held not to fall within that category because the relationship between the parties is not that of wholesaler-retailer. The pivotal case establishing this doctrine is Unit ed States v. General Electric Company, 272 U.S. 476, 47 S.Ct. 192, 71 L.Ed. 362 (1926), which held that a genuine agency or consignment relationship falls outside the per se rule of Dr. Miles. Thus, in General Electric the Supreme Court found that General Electric’s patent on the light bulb it manufactured resulted in a consignment rather than a wholesale/resale relationship with its “distributors.” Similarly, in Hardwick v. Nu-Way Oil Co., 589 F.2d 806 (5th Cir.1979), we found that where service station operators, “were little more than salaried conduits to enable Nu-Way Oil to make retail sales directly to the consumer,” resale price maintenance was not at issue. See also Green v. General Foods, 517 F.2d at 635 (per se prohibition on resale price maintenance prohibits such where the risks of the distribution process are bom largely by numerous otherwise independent individuals or firms in competition with each other for sale of a product). The implicit assumption behind all these cases is there can be no antitrust violation without a competitor, and agents do not compete with those whom they represent.
We find a recent case from the Seventh Circuit to be particularly instructive in analyzing the Yellow Pages market. In Illinois Corporate Travel, Inc. v. American Airlines, 806 F.2d 722 (7th Cir.1986), McTravel sued American Airlines for American’s refusal to allow McTravel to write tickets good for travel on American. American admitted that it refused to allow McTravel to sell tickets on American because McTravel would not agree by contract to refrain from advertising discounts. McTravel wanted to let people know that it would rebate part of its usual 10% commission from American to the consumer should a traveler book his or her flights through McTravel.
American’s policy was functionally a price restriction. However, the district court declined to issue a preliminary injunction based on a resale price maintenance claim because it concluded that McTravel and other travel service companies are agents of the airline companies. The court of appeals affirmed the district court’s decision, concluding that “travel service operators cannot resell air travel.” This decision was based on the following findings. An air carrier establishes the price for its tickets and announces that price to the public; it determines the numbers of flights and the destinations of each; a traveler has a choice between dealing directly with the airline or through a travel agent, but the travel agent must obtain the airline’s clearance to make a reservation. The travel agent does not purchase an inventory of seats. Travelers receive the service they have paid for directly from the airline; and, although a travel agent may lose his commission when a ticket is not used, the risk of unfilled seats remains at all times with the airlines. Id. 806 F.2d at 725.
We find this analogous to the relationship between an ASR and a yellow pages publisher. The publisher lawfully establishes the price for its advertising and announces it to the public. It determines when it is going to publish directories, and has the ultimate say on how many advertisements it will accept. An advertiser may deal directly with the publisher, or may use an Authorized Selling Representative. However, should it use an ASR, the ASR must submit a request for advertising to the publisher, analogous to a reservation in the forthcoming publication. The ASR does not purchase an inventory of yellow pages space. The service which the advertiser has paid for is performed by the publisher, not the ASR. Further, should the advertisement fail to appear as requested in the appropriate directory, the publisher is under an obligation to refund the advertiser’s money. Finally, should a publisher not receive enough advertisements to make a directory profitable, it must still publish the directory; the publisher retains the “risk” that not enough yellow pages advertisements will be “distributed” — not the ASRs.
The record in this case is replete with evidence that an Authorized Selling Representative functions as an agent, not a retailer. The NYPSA guidelines provide that, “in any case where a difference arises between an advertiser and the publisher, [the ASR] represents the publisher’s interest.” The application for ASR status states that, “the undersigned further understands that when selling National Yellow Pages advertising to national advertisers or their advertising agencies, or when negotiating disputes with such national advertisers or their advertising agencies, it is representing the publishers who are members of this association____” Finally, the executive director of the National Yellow Pages Association, Fred Smykla, testified that an ASR represents the publisher in all things that the publisher does, and is expected to act in the publisher’s best interests.
There is some evidence in the record to indicate that an ASR, when purchasing advertisements on behalf of an advertiser, is acting as the agent of the advertiser. For example, letters from GTEDC to Ad-Vantage’s client referred to Ad-Vantage as the advertiser’s agent. Also, should the advertiser fail to pay the ASR through whom it purchased yellow pages advertising, that ASR is still liable to the publisher for payment. However, this does not establish that a dual distribution system existed; it merely means that all advertising was purchased directly from the publisher, and that the advertisers who dealt through an ASR had an agent acting on their behalf. Either way, an ASR functions as an agent, not an “independent contractor,” and not, in any case, as a retailer of yellow pages advertising space. There was simply no evidence presented which would allow a reasonable jury to reach the latter conclusion, a conclusion essential to Ad-Vantage’s market theory. Thus, Ad-Vantage’s leveraging argument fails. There was no “second activity” monopolized by using GTEDC’s lawfully acquired market power to publish telephone directories as leverage.
Once the market structure is thus clarified, we can distinguish this case from the most relevant former fifth circuit precedent, Six Twenty-Nine Productions v. Rollins Telecasting, Inc., 365 F.2d 478 (1966). In that case, a television station with a lawful local monopoly decided to expand its in house advertising agency services. That is, in addition to selling air time, it began producing television advertisements and receiving additional remuneration
Question: What is the specific issue in the case within the general category of "economic activity and regulation - commercial disputes"?
A. contract disputes-general (private parties) (includes breach of contract, disputes over meaning of contracts, suits for specific performance, disputes over whether contract fulfilled, claims that money owed on contract) (Note: this category is not used when the dispute fits one of the more specific categories below)
B. disputes over government contracts
C. insurance disputes
D. debt collection, disputes over loans
E. consumer disputes with retail business or providers of services
F. breach of fiduciary duty; disputes over franchise agreements
G. contract disputes - was there a contract, was it a valid contract ?
H. commerce clause challenges to state or local government action
I. other contract disputes- (includes misrepresentation or deception in contract, disputes among contractors or contractors and subcontractors, indemnification claims)
J. private economic disputes (other than contract disputes)
Answer:
|
songer_attyfee
|
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 attorneys' fees 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".
REX CHAINBELT, INC., Plaintiff-Appellee, v. Claude S. BRINEGAR, Secretary, Department of Transportation, et al., Defendants-Appellants.
No. 74-1309.
United States Court of Appeals, Seventh Circuit.
Argued Feb. 11, 1975.
Decided March 10, 1975.
Thomas S. Moore, Atty., App. Section, Civ. Div., U. S. Dept, of Justice, Washington, D. C., for defendants-appellants.
Andrew O. Riteris, Edward W. Mentzer, Milwaukee, Wis., for plaintiff-appellee. ¡
Before PELL, Circuit Judge, TONE, Circuit Judge, and JAMESON, Senior District Judge.
Senior Judge William J. Jameson of the District of Montana is sitting by designation.
PER CURIAM.
The sole issue on this appeal is whether the judgment of the district court on remand is in accordance with the opinion of this court in Rex Chainbelt, Inc. v. Volpe, 486 F.2d 757 (7 Cir. 1973).
Rex Chainbelt, Inc., plaintiff-appellee, is engaged in the manufacture of concrete mixers which are designed to be mounted on truck chassis-cabs. Rex sells the mixers and normally installs the mixer on a chassis which is purchased by the customer from a manufacturer other than Rex.
In 1971 the National Highway Traffic Safety Administration (NHTSA) issued regulations under the authority of the National Traffic and Motor Vehicle Safety Act of 1966 dealing with motor vehicles manufactured in two or more stages. Regulation 49 C.F.R. § 568.6(b) required Rex, as the final stage manufacturer (49 C.F.R. § 568.3), to certify that the entire vehicle — chassis-cab and mixer — conformed to all applicable federal motor safety standards.
In Rex Chainbelt, Inc. v. Volpe, supra at 761-762, this court concluded that the “Secretary has power under the Act to require manufacturers not working through distributors and dealers to certify their vehicles or their equipment,” but that “to the extent that the regulations require Rex to make the sole certification of compliance of the entire vehicle they must be declared invalid.” On remand, the district court entered the following judgment:
“Ordered and adjudged that Section 568.6(b) of Part 568 of Title 49 of the Code of Federal Regulations is invalid because it contravenes the language of the National Motor Vehicle Safety Act of 1966 ... to the extent that said Section is interpreted to require that a final stage manufacturer, as a concrete mixer manufacturer or his dealer or distributor, certify the compliance of the chassis-cab and its components to motor vehicle safety standards in those instances where the final-stage manufacturer mounts the mixer on a chassis-cab which has been purchased by the mixer customer from a source other than the final-stage manufacturer.”
Strictly speaking, the judgment is in accordance with this court’s order on remand. It appears, however, that it can be clarified to satisfy all the parties to this litigation. At oral argument counsel for the respective parties agreed that this court’s holding in Rex Chainbelt, Inc. v. Volpe “should be interpreted to mean that the Act requires that in instances where the customer purchases a chassis-cab from its manufacturer and thereafter the mixer from the mixer manufacturer, the ‘entire vehicle’ must be certified via two certifications, with the chassis-cab manufacturer certifying its chassis-cab, and with the mixer manufacturer certifying its mixer and the effect of the mounting, if any, to thus obtain effective certification of the ‘entire vehicle.’ ”
We agree and remand to the district court to add to the judgment the clarifying provision acceptable to the parties.
Question: Did the court's ruling on attorneys' fees favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_initiate
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
UNITED STATES of America, Plaintiff, Appellee, v. Robert ALMONTE, Defendant, Appellant. UNITED STATES of America, Plaintiff, Appellee, v. Michael P. RICAPITO, Joseph F. Corrigan, Jr., Defendants, Appellants.
Nos. 77-1539, 77-1540.
United States Court of Appeals, First Circuit.
Argued Dec. 5, 1978.
Decided Feb. 21, 1979.
John J. Bevilacqua, Providence, R.I., for Robert Almonte, defendant, appellant.
Charles J. Rogers, Jr., Alton W. Wiley, Providence, R.I., and William M. Kunstler, New York City, with whom Jacob R. Evseroff, Brooklyn, N.Y., was on brief, for Michael P. Ricapito and Joseph F. Corrigan, Jr., defendants, appellants.
Edwin J. Gale, Sp. Atty., Dept, of Justice, Providence, R.I., with whom Paul F. Murray, U.S. Atty., Providence, R.I., and Gerald E. McDowell, Sp. Atty., Dept, of Justice, Washington, D.C., were on brief, for plaintiff, appellee.
Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.
COFFIN, Chief Judge.
Appellants were convicted of fraudulent possession and sale of counterfeit Federal Reserve Notes and of conspiracy. On appeal, some or all of the appellants challenge the sufficiency of the government’s affidavit supporting its application for a wiretap, alleged multiplicity in the conspiracy count, the trial court’s refusal to reread large amounts of testimony to the jury, and raise the spectre of prejudicial influences on jurors. We affirm.
The facts of this case, read in the light most favorable to the government, see United States v. Gabriner, 571 F.2d 48, 50 (1st Cir. 1978), can be briefly summarized as follows. On November 11, 1976, an undercover Secret Service Agent purchased $3000 in counterfeit $50 dollar bills from appellant Almonte at a tavern in Providence, Rhode Island. On November 18, the agent again met with Almonte and purchased another $7000 in counterfeit $50’s. At that time the agent met Almonte’s colleague, Hanrahan, who was sent outside the tavern to obtain the bills once the deal was firmed up. On December 23, the agent and another Secret Service man met Almonte at a Holiday Inn in Providence. Almonte took the agents to Hanrahan’s home near the tavern, entered the dwelling, and returned with $50,000 in counterfeit $50’s.
In order to determine the source of the counterfeit, the government sought and obtained a wiretap order authorizing interception of calls by Almonte and Hanrahan. Meanwhile, the undercover agent began negotiations for a $400,000 purchase of counterfeit. The wiretap soon showed that Almonte obtained his counterfeit from Corrigan and that Corrigan approved Almonte’s transactions. Specifically, on January 20, 1977, the agent arranged to purchase another $10,000 in counterfeit from Almonte. Almonte immediately called Corrigan to advise him of the deal. The sale took place on January 21, and, as arranged in a recorded phone conversation, Corrigan arrived shortly after the sale to meet Almonte.
On February 11, the agent ordered $300,-000 from Almonte. Almonte immediately called Corrigan, who approved the sale and stated that delivery would be in $100,000 lots. Almonte informed the agent the following morning. The agent expressed extreme displeasure at the staggered delivery, backing out of the deal. Almonte then conferred with Corrigan by phone. Corrigan told Almonte the delivery plans were firm, saying, “we’re not doing anything bigger than that.” That afternoon, Corrigan called Ricapito to advise him of the status of the group’s counterfeit dealings.
After further negotiations between Almonte and the agent, all of which were approved by Corrigan, a deal was struck' on February 20 for the purchase and sale of $150,000 two days later. On February 21, Almonte, Hanrahan, and Corrigan met at Corrigan’s home. That evening, Corrigan telephoned Ricapito to advise him that the two would probably have to meet the following day, assuming that the buyer’s final telephone confirmation was received in the morning.
As agreed, the agent called Almonte on the morning of February 22 to verify the planned purchase. They agreed to meet between 12:30 p. m. and 1:00 p. m. Almonte immediately called Corrigan to indicate that the sale was set. Corrigan told Almonte to have Hanrahan stay at home. Corrigan then called Ricapito to indicate that he would need an additional eleven packages of $10,000 and advised him that the deal was set for one o’clock. Almonte then called Hanrahan and told him to wait at home for Corrigan, who would bring the counterfeit. Hanrahan called Corrigan to confirm his instructions. Corrigan then called Ricapito at his office and arranged to meet there at 11:30 a. m. Ricapito indicated that he had not yet obtained the necessary counterfeit.
At 10:30 a. m., Corrigan left his home carrying a black briefcase and drove off. He was later seen leaving Ricapito’s office. Ricapito then left his office carrying the black briefcase. He took it to the home of his girl friend’s daughter. Ricapito then drove to his girl friend’s beauty shop and placed a brown briefcase in her locked car parked out front. Corrigan then arrived, obtained the keys to the locked car, took out the brown briefcase, and departed.
An hour later, the Secret Service purchased $150,000 in counterfeit from Almonte and Hanrahan at the latter’s residence.
Arrests and searches began. The brown briefcase was at Hanrahan’s home, empty. The black briefcase left with the daughter of Ricapito’s girl friend contained $13,000 in counterfeit and papers belonging to Ricapito. The counterfeit $50’s purchased on November 11 and November 18 were identical to those in the briefcase secreted by Ricapito. All of the.counterfeit $50’s showed the same cutting blade striations, indicating they were produced by the same counterfeiter. With the exception of the $13,000 found in Ricapito’s briefcase, all of the counterfeit bills were packaged in the same way.
Based upon this evidence, the jury returned a verdict of guilty on all counts against all defendants.
The Wiretap Application
Appellants Ricapito and Corrigan attack the decision of a district judge to issue an intercept order, arguing that the Secret Service affidavit supporting the application failed to provide “a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be dangerous.” 18 U.S.C. § 2518(1)(c). Appellants unsuccessfully moved to suppress the fruits of the wiretap before the trial court.
We think that the affidavit allows us to “decide [that] the facts set forth in the application were minimally adequate to support the determination made” that an intercept order should issue. United States v. Scibelli, 549 F.2d 222, 226 (1st Cir.), cert. denied, 431 U.S. 960, 97 S.Ct. 2687, 53 L.Ed.2d 278 (1977). A four month investigation of Almonte and Hanrahan preceded the wiretap application. More important, the affidavit recited Almonte’s indication that the counterfeit was coming from someone higher up in the chain of distribution and provided the further information that following each of his numerous arrests, starting in 1947, Almonte had refused to cooperate in identifying his suppliers. The location of Almonte’s home made physical surveillance to determine his source difficult if not impossible. The allegations setting forth the difficulty in "penetrating beyond the retail level in a counterfeit distribution scheme were nothing like the bare conclusory statements of past experience that we abjured in United States v. DeMuro, 540 F.2d 503, 510 (1st Cir. 1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 733, 50 L.Ed.2d 749 (1977). Rather, the affiant set forth that the Secret Service had failed to penetrate past the retail level of the very same counterfeiting ring producing the same bills in other cities. It was reasonable to believe that the secretive organization encountered in other cities was the same organization encountered in Providence, and normal investigative techniques were likely to produce the same failures. Finally, analysis of toll call records had failed to identify Almonte’s supplier — a predictable result because there was a central distributor located in Providence.
In sum, the affidavit sufficiently explained why this was an appropriate situation to use wiretaps to locate the source and ultimately the producer of contraband. We are not impressed by appellants’ argument that there was no difficulty in obtaining evidence against Almonte and Hanrahan. An investigation of a counterfeiting ring need not stop with the retailers. United States v. Staino, 358 F.Supp. 852 (E.D.Pa.1973). Finally, appellants’ objection to the use of wiretap evidence against persons not named in the application is frivolous. Conspirators whose conversations are to be intercepted need only be named if “known”. 18 U.S.C. § 2518(1)(b)(iv).
“Multiple” Conspiracies
Appellants Ricapito and Corrigan next argue that their conviction for conspiracy was fatally defective because there was no evidence to link them to the pre-wiretap sales of counterfeit. Appellants rely on Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946) in arguing further that the unclear and confused evidence of their later involvement was made more convincing by the impermissible implication of their involvement with the earlier sales.
We see the matter differently. As to Corrigan, there was overwhelming evidence from the wiretaps that he was the man controlling Almonte’s operation from the beginning. As to both Corrigan and Ricapito, there was sufficient evidence in the nature of the counterfeit, in its consistent packaging, and in the well coordinated and obviously experienced cooperation of the defendants as a distribution team on February 22, for a jury to find beyond a reasonable doubt that all of the sales were made through the medium of a classic chain conspiracy.
Finally, even if we were not convinced that the evidence showed the involvement of Ricapito and Corrigan from the beginning, we could say without hesitation that “[t]his was not a case involving ‘the dangers of transference of guilt from one to another across the line separating conspiracies, subconscious or otherwise . . . ” United States v. Rivera Diaz, 538 F.2d 461, 465 (1st Cir. 1976) (quoting Kotteakos v. United States, 328 U.S. 750, 774, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). The existence of a single conspiracy having been adequately proven, appellants’ further evidentiary arguments also fail.
Refusal to Reread Testimony
Appellants next argue that the trial court erred in failing to reread the trial transcript to the jury upon their request. After several hours of deliberation the jury asked to rehear all of the taped telephone conversations and the foreman further stated: “[W]e wanted to know February 22 the timing of all the — the timing of all the events that happened that day, February 22.” The trial court conferred with counsel, and all but Corrigan’s counsel objected to fulfilling the jury’s request. The court expressed its concern that setting forth the timing of events on February 22 would require culling the testimony of a large number of witnesses and would, in effect, make the court a fact finder. The court then acceded to the jury’s request to rehear the tapes but denied the request for a review of evidence about “timing”.
As an initial matter, we note that appellate counsel for Ricapito and Corrigan urge the application of a plain error standard since only Corrigan objected to the trial court’s refusal to read back testimony. We see no plain error. The decision to reread testimony rests in the sound discretion of the trial court. United States v. Pollack, 474 F.2d 828, 832 (2d Cir. 1974). In exercising that discretion, the court can and should take into consideration the reasonableness of the jury’s request and the difficulty of complying therewith. Id.; United States v. Price, 447 F.2d 23, 31 (2d Cir.), cert. denied, 404 U.S. 912, 92 S.Ct. 232, 30 L.Ed.2d 186 (1971). Complying with the request in this case would have required either reading back the testimony of seventeen witnesses or culling the evidence and thereby risking placing undue weight on the evidence reread. See United States v. Baxter, 492 F.2d 150, 175 (9th Cir. 1973), cert. denied, 416 U.S. 940, 94 S.Ct. 16, 38 L.Ed.2d 38 (1974). We see no error in asking the jury to sort out the facts for itself. Finally, we are unimpressed by appellants’ further argument that acceding to the jury’s specific and limited request for the tapes placed undue importance on that evidence. The trial court merely granted a reasonable and denied an unreasonable request.
Jury Impartiality
Appellant Almonte urges two grounds for reversal: first, that the trial court abused its discretion by refusing to excuse the foreman of the jury when he became aware of a contact between another juror and a witness called by the government; and, second, that the court erred by permitting the jury to interrupt their deliberations and return home for an evening when the foreman’s wife became ill. Finding no merit to either claim we affirm his conviction.
1. Refusal to excuse the foreman
During the course of the trial, the jury foreman asked to speak to the trial judge. The judge met in chambers with the foreman who informed him that juror Alba had told him that when she and another juror, Antonelli, had left the courthouse the day before, they had seen Ricapito’s girl friend, a government witness, wave heartily at Antonelli. Antonelli then remarked that she had recognized the witness when she took the stand as someone who had done her hair five years ago. Alba also told the foreman that the incident had upset her, and asked him to inform the court.
The court then told counsel of the occurrence, and at their suggestion, interviewed Alba in chambers. She confirmed what the foreman had said and stated that other than Antonelli, the foreman and herself, none of the jurors had been told about the incident. The court advised her not to discuss it with anyone. With agreement of all the parties, the court decided that any corrective action would be delayed until the taking of evidence had been concluded at trial. At that time, upon defense motion, the court excused jurors Antonelli and Alba, although “just out of an abundance of caution”, finding “no cause here to remove anybody”. He refused to excuse the foreman as also requested by the defense for “[a]ll the man did was deliver the message, he has no connection, no association with the incident whatsoever.”
As we stated in United States v. Doe, 513 F.2d 709, 711-12 & n. 3 (1st Cir. 1975), if the court finds that a communication between jurors and a third party has occurred, it must determine whether or not it was prejudicial and develop a record that affords “an adequate basis for review”. The district court, however, is endowed with considerable discretion in determining the scope and nature of the investigation needed to evaluate the effect of an impermissible jury contact, see e. g., United States v. Corbin, 590 F.2d 398, at 400-401 (1st Cir. 1979); United States v. Boscia, 573 F.2d 827, 831 (3d Cir.), cert. denied, 436 U.S. 911, 98 S.Ct. 2248, 56 L.Ed.2d 411 (1978); United States v. Parker, 549 F.2d 998, 1000 (5th Cir. 1978); United States v. Doe, supra, 513 F.2d at 712, and we find that the court here properly investigated and remedied the incident which was reported to it.
Appellant’s attempts to depict the waving incident as highly prejudicial and the foreman’s involvement in it as so “intimate” that his continued presence on the jury tainted its deliberations are unpersuasive. The district court’s comment that “the whole thing is a gross exaggeration from beginning to end” strikes us as accurate. No attempt was made by the witness to influence any juror; apparently she and Antonelli did not even speak, and their contact upon leaving the courthouse was completely inadvertent. Compare United States v. Lubrano, 529 F.2d 633, 638 (2d Cir. 1975) and Helmick v. Cupp, 437 F.2d 321, 322 (9th Cir. 1971) with United States v. Harry Barfield Co., 359 F.2d 120, 124 (5th Cir. 1966). The previous relationship between the two, that of hairdresser and customer, was far from a close one and had occurred some five years before the trial. The foreman did no more than calmly relay the incident second-hand to the court. Finally, counsel’s present assertion that “[i]t should have been incumbent on the prosecution' to show that [the foreman] remained unaffected by his involvement in the witness/juror communication”, is an about-face from his position below. The court offered to call in the foreman and ask, “Now that you have delivered the message, will that in any way affect your deliberations in this case at all?”, but counsel requested that he not do so, preferring that the foreman’s attention not be called to the incident again. Given the relatively minor nature of this incident and the foreman’s tangential . involvement in it, the court clearly did not abuse its discretion by refusing to remove him from the jury.
2. Interruption of the jury’s deliberations
Toward the end of the first day of the jury’s deliberations, the court was informed that the foreman’s wife was ill and upset and wanted him home. Although the jury had been sequestered, the court informed counsel that it believed the appropriate response was to allow the jurors to return to their homes for the night and to reconvene in the morning. The defendants objected, noting that an article appeared in the morning paper about counterfeiting in the area in which the defendants allegedly had been active, and moved for a mistrial. The court denied the motion and called in the jury. In response to the court’s questions, the foreman stated that if he were not permitted to return to his home that evening, his concern “would take my concentration away to some degree”, but that if he spent the night at home and returned to court the next day, he had no doubt that he would be able to devote his full concentration to the deliberations. The court then delivered a lengthy and forceful charge to the jury, cautioning them to discuss the case with no one, and to abstain from reading the newspapers either that night or in the morning and from watching television programs or listening to radio broadcasts that “in any way deal with law enforcement”. He further informed them they would be placed under oath in the morning and individually questioned about their adherence to his instructions, and dispersed the jury. The next morning, the court followed that procedure, questioning each juror under oath whether he had discussed the case, read, seen or heard anything about this case or anything involving “criminal laws or criminal prosecution or anything of that nature”. Each juror responded in the negative.
Appellant does note allege any specific prejudice resulting from allowing the jury to separate, nor does he point to any acts of misconduct by the dispersed jurors. Although he notes the supposed existence of a newspaper article on a related subject, there is no suggestion that any of the jurors disregarded the court’s instructions, and contrary to their responses under oath, saw or discussed it. See Cardarella v. United States, 375 F.2d 222, 227 (8th Cir. 1967). In effect, then, appellant urges us to adopt a rule, apparently consistent with the Seventh Circuit, see United States v. Panczko, 353 F.2d 676, 678 (7th Cir. 1965); United States v. D’Antonio, 342 F.2d 667, 670 (7th Cir. 1965), but in opposition to every other court of appeals that has addressed the issue, see, e. g., United States v. Piancone, 506 F.2d 748, 749-51 (3d Cir. 1974); Blackmon v. United States, 474 F.2d 1125, 1126 (6th Cir.), cert. denied, 414 U.S. 912, 94 S.Ct. 252, 38 L.Ed.2d 150 (1973); United States v. Harris, 458 F.2d 670, 674-75 (5th Cir.), cert. denied, 409 U.S. 888, 93 S.Ct. 195, 34 L.Ed.2d 145 (1972); United States v. Eskridge, 456 F.2d 1202, 1205 (9th Cir.), cert. denied, 408 U.S. 926, 92 S.Ct. 2507, 33 L.Ed.2d 338 (1972); United States v. Siragusa, 450 F.2d 592, 595 (2d Cir. 1971); United States v. Weiss, 431 F.2d 1402, 1407 (10th Cir. 1970); Cardarella v. United States, supra, 375 F.2d at 227, that a court must sequester a jury during its deliberations, particularly if the defendant objects to their separation. We decline to do so and thereby join with the majority of the authorities by holding that it lies within the trial judge’s discretion to decide whether or not to allow the jury members to disburse before they have completed their deliberations and reached a verdict. We see little to commend a rigid per se rule such as the appellant advocates, which in effect would vest control over the decision to sequester in the defendant rather than the trial court.
To the contrary:
“The problems of prejudicial publicity, possibility of harassment or approaches to jurors, the presence or absence of suitable quarters, and difficulties with local transportation to disperse the jury, emphasize factors which are particularly within the competence of the trial judge to evaluate.” United States v. Piancone, supra, 506 F.2d at 750.
There was no abuse of discretion here. After questioning the foreman, the court examined its options and determined, quite properly we believe, that it was better to allow the sequestered jurors to separate for the night than to compel the foreman, who stated that he could not concentrate fully until he returned home and attended his wife’s problems, to continue to deliberate. The court gave thorough cautionary instructions to the jurors and when they returned the next day, questioned each of them under oath about their compliance. Appellant has made no showing whatsoever of any harm occasioned by the separation of the jury, let alone “the gravely prejudicial effect” which he alleges.
Finally, appellant maintains that the “cumulative prejudicial effect” of these two incidents, the contact between a witness and a juror and the court’s refusal to sequester the jury during deliberations, both of which involved the foreman, deprived him of a fair and impartial jury. As we have found no prejudice resulting from either event, their combined effect was insignificant as well.
Affirmed.
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
|
sc_issuearea
|
E
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states.
LEAVITT, GOVERNOR OF UTAH, et al. v. JANE L. et al.
No. 95-1242.
Decided June 17, 1996
Per Curiam.
The State of Utah seeks review of a ruling by the Court of Appeals for the Tenth Circuit which declared invalid a provision of Utah law regulating abortions “[a]fter 20 weeks gestational age.” Utah Code Ann. §76-7-302(3) (1995). The court made that declaration, not on the ground that the provision violates federal law, but rather on the ground that the provision was not severable from another provision of the same statute, purporting to regulate abortions up to 20 weeks’ gestational age, which had been struck down as unconstitutional. The court’s severability ruling was based on its view that the Utah Legislature would not have wanted to regulate the later-term abortions unless it could regulate the earlier-term abortions as well. Whatever the validity of such speculation as a general matter, in the present case it is flatly contradicted by a provision in the very part of the Utah Code at issue, explicitly stating that each statutory provision was to be regarded as having been enacted independently of the others. Because we regard the Court of Appeals’ determination as to the Utah Legislature’s intent to be irreconcilable with that body’s own statement on the subject, we grant the petition for certiorari as to this aspect of the judgment of the Court of Appeals, and summarily reverse.
Utah law, as amended by legislation enacted in 1991, establishes two regimes of 'regulation for abortion, based on the term of the pregnancy. With respect to pregnancies 20 weeks old or less, § 302(2) permits abortions only under five enumerated circumstances, Utah Code Ann. §76-7-302(2) (1995). With respect to pregnancies of more than 20 weeks, §302(3) permits abortions under only three of the five circumstances specified in §302(2). § 76-7-302(3). In the present suit for declaratory and injunctive relief, the District Court for the District of Utah held § 302(2) to be unconstitutional, but § 302(3) to be both constitutional and severable— i. e., enforceable despite the invalidation of the other provision. Jane L. v. Bangerter, 809 F. Supp. 865, 870 (1992). Upon appeal by the plaintiffs with regard to the latter provision, the Court of Appeals for the Tenth Circuit held that it could not be enforced, regardless of its constitutionality, because it was not severable from the invalidated portion of the law. Jane L. v. Bangerter, 61 F. 3d 1493, 1499 (1995). The State argues that that conclusion is simply unsustainable in light of the Utah Legislature’s express indication to the contrary, and we agree.
Severability is of course a matter of state law. In Utah, as the Court of Appeals acknowledged, the matter “is determined first and foremost by answering the following question: Would the legislature have passed the statute without the unconstitutional section?” Id., at 1497 (citing Stewart v. Utah Public Service Comm’n, 885 P. 2d 759, 779 (Utah 1994)). A provision of the abortion part of the Utah Code, to which these two sections were added, answers that question. Section 317 provides:
“If any one or more provision, section, subsection, sentence, clause, phrase or word of this part or the application thereof to any person or circumstance is found to be unconstitutional, the same is hereby declared to be severable and the balance of this part shall remain effective notwithstanding such unconstitutionality. The legislature hereby declares that it would have passed this part, and each provision, section, subsection, sentence, clause, phrase or word thereof, irrespective of the fact that any one or more provision, section, subsection, sentence, clause, phrase, or word be declared unconstitutional.” Utah Code Ann. §76-7-317 (1995) (emphasis added).
In the face of this statement by the Utah Legislature of its own intent in enacting regulations of abortion, the Court of Appeals nonetheless concluded that §§302(2) and 302(3) were not severable because the Utah Legislature did not intend them to be so. The Court of Appeals' opinion not only did not regard the explicit language of §317 as determinative — it did not even use it as the point of departure for addressing the severability question. It understood Utah law as instructing courts to “subordinate severability clauses, which evince the legislature’s intent regarding the structure of the statute, to the legislature’s overarching substantive intentions.” 61 F. 3d, at 1499 (emphasis added). The court divined in the 1991 amendments a “substantive intent” to prohibit virtually all abortions, see id., at 1497-1498, and went on to conclude that since, in its view, severing § 302(2) from § 302(3) would frustrate this overarching purpose, both provisions had to stand or fall together, see id., at 1499. We believe that the Court of Appeals erred at both steps of this progression.
The dichotomy between “structural” and “substantive” intents is nowhere to be found in the Utah cases cited as authority by the Court of Appeals. Indeed, none of those cases even speaks in terms of “conflicts among legislative intentions,” id., at 1498. The cases do support the proposition that, “even where a savings clause exist[s], where the provisions of the statute are interrelated, it is not within the scope of th[e] court’s function to select the valid portions of the act and conjecture that they should stand independently of the portions which are invalid.” State v. Salt Lake City, 445 P. 2d 691, 696 (Utah 1968). See also Salt Lake City v. International Assn. of Firefighters, 563 P. 2d 786, 791 (Utah 1977); Carter v. Beaver County Service Area No. One, 399 P. 2d 440, 441 (Utah 1965). But those concerns are absent from this case, for two reasons. First, because there is no need to resort to “conjecture”: The legislature’s abortion laws include not merely the standard “saving” clause, but a provision that could not be clearer in its message that the legislature “would have passed [every aspect of the law] irrespective of the fact that any one or more provision ... be declared unconstitutional.” §76-7-317. And second, because the two sections at issue here are not “interrelated” in any relevant sense — i. e., in the sense of being so interdependent that the remainder of the statute cannot function effectively without the invalidated provision, or in the sense that the invalidated provision could be regarded as part of a legislative compromise, extracted in exchange for the inclusion of other provisions of the statute. Nothing like that appears here. The Court of Appeals described §302(3) as “modiftying]” §302(2), and concluded that, “[w]ith the nullification of the abortion ban in section 302(2), the statute was gutted, and section 302(3) was left purposeless without an abortion ban to modify.” 61 F. 34d, at 1498. But as examination of the provisions makes apparent, see n. 1, supra, §302(3) cannot possibly be said to “modify” §302(2) in the sense of being an adjunct to it, as an adjective “modifies” a noun. Rather, it can be said to “modify” § 302(2) only in the sense of altering its disposition — permitting, for post-20week abortions, some but not all of the justifications allowed (for earlier-term abortions) by § 302(2). It is impossible to see how this could lead to the conclusion that § 302(3) is left “purposeless” when §302(2) is declared inoperative. Of course §302(3) does incorporate by reference permissible justifications for abortion set forth in § 302(2), instead of repeating them verbatim, but this drafting device can hardly be thought to establish such “interdependence” that § 302(3) becomes “purposeless” when §302(2) is unenforceable. To the contrary, §302(3) sets out in straightforward and self-operative fashion the circumstances under which an abortion may be performed “[a]fter 20 weeks gestational age.”
But even if the Court of Appeals were correct in treating § 317 like an ordinary saving clause; even if it were right in believing that there existed the “interrelationship” between §§302(2) and 302(3) that would permit an ordinary saving clause to be disregarded; and even if it had not invented the notion of “structural-substantive” dichotomy; the reasoning by which it concluded that the “substantive” intent of the Utah Legislature was to forgo all regulation of abortion unless it could obtain total regulation is flawed. The court reasoned that, because the intent of the 1991 amendments was “to prohibit all abortions, regardless of when they occur during the pregnancy, except in the few specified circumstances,” 61 F. 3d, at 1497, and because §§ 302(2) and 302(3) “operated as a unified expression of [that] intent,” ibid., for the court to separate §302(2) from §302(3) based on the unconstitutionality of the former would “clearly undermin[e] the legislative purpose to ban most abortions,” id,., at 1498.
This mode of analysis, if carried out in every case, would operate to defeat every claim of severability. Every legislature that adopts, in a single enactment, provision A plus provision B intends (A+B); and that enactment, which reads (A+B), is invariably a “unified expression of that intent,” so that taking away A from (A+B), leaving only B, will invariably “clearly undermine the legislative purpose” to enact (A+B). But the fallacy in applying this reasoning to the sev-erability question is that it is not the severing that will take away A from (A+B) and thus foil the legislature’s intent; it is the invalidation of A (in this case, because of its unconstitutionality) which does so — an invalidation that occurs whether or not the two provisions are severed. The relevant question, in other words, is not whether the legislature would prefer (A+B) to B, because by reason of the invalidation of A that choice is no longer available. The relevant question is whether the legislature would prefer not to have B if it could not have A as well. Here, the Court of Appeals in effect said yes. It determined that a legislature bent on banning almost all abortions would prefer, if it could not have that desire, to ban no abortions at all rather than merely some. This notion is, at the very least, questionable when considered in isolation. But when it is put forward in the face of a statutory text that explicitly states the opposite, it is plainly error.
* * *
We have summarily set aside unsupportable judgments in cases involving only individual claims, see, e. g., Board of Ed. of Rogers v. McCluskey, 458 U. S. 966, 969-971 (1982); National Bank of North America v. Associates of Obstetrics & Female Surgery, Inc., 425 U. S. 460, 460-461 (1976). Much more is that appropriate when what is at issue is the total invalidation of a statewide law, see, e. g., Idaho Dept. of Employment v. Smith, 434 U. S. 100, 100-102 (1977). To be sure, we do not normally grant petitions for certiorari solely to review what purports to be an application of state law; but we have done so, see Steele v. General Mills, Inc., 329 U. S. 433, 438, 440-441 (1947); Wichita Royalty Co. v. City Nat. Bank of Wichita Falls, 306 U. S. 103, 107 (1939), and undoubtedly should do so where the alternative is allowing blatant federal-court nullification of state law. The dissent argues that “[t]he doctrine of judicial restraint” weighs against review, post, at 146, but it is an odd notion of judicial restraint that would compel us to cast a blind eye on overreaching by lower federal courts. The fact observed by the dissent, that the “underlying substantive issue in this case” is a controversial one, generating “a kind of ‘hydraulic pressure’ that motivates ad hoc decisionmaking,” ibid., provides a greater, not a lesser, justification for reversing state-law determinations that seem plainly wrong. In our view, these considerations combine to make this an “extraordinary cas[e]” worth our effort of summary review, post, at 147.
Finally, the dissent’s appeal to the supposed greater expertise of courts of appeals regarding state law is particularly weak (if not indeed counterindicative) where a Court of Appeals panel consisting of judges from Oklahoma, Colorado, and Kansas has reversed the District Court of Utah on a point of Utah law. If, as we have said, the courts of appeals owe no deference to district court adjudications of state law, see Salve Regina College v. Russell, 499 U. S. 225, 239-240 (1991), surely there is no basis for regarding panels of circuit judges as “better qualified” than we to pass on such questions, see post, at 146. Our general presumption that courts of appeals correctly decide questions of state law reflects a judgment as to the utility of reviewing them in most cases, see Salve Regina College, supra, at 235, n. 3, not a belief that the courts of appeals have some natural advantage in this domain, cf. Brockett v. Spokane Arcades, Inc., 472 U. S. 491, 500 (1985) (“[W]e surely have the authority to differ with the lower federal courts as to the meaning of a state statute”); Cole v. Richardson, 405 U. S. 676, 683-685 (1972). That general presumption is obviously inapplicable where the court of appeals’ state-law ruling is plainly wrong, a conclusion that the dissent does not even contest in this case.
The opinion of the Tenth Circuit in this case is not sustainable. Accordingly, we grant the petition as to the severability question, summarily reverse the judgment, and remand the case to the Court of Appeals for further proceedings.
It is so ordered.
The two subsections state:
“(2) An abortion may be performed in this state only under the following circumstances:
“(a) in the professional judgment of the pregnant woman’s attending physician, the abortion is necessary to save the pregnant woman’s life;
“(b) the pregnancy is the result of rape or rape of a child . . . that was reported to a law enforcement agency prior to the abortion;
“(e) the pregnancy is the result of incest... and the incident was reported to a law enforcement agency prior to the abortion;
“(d) in the professional judgment of the pregnant woman’s attending physician, to prevent grave damage to the pregnant woman’s medical health; or
“(e) in the professional judgment of the pregnant woman’s attending physician, to prevent the birth of a child that would be born with grave defects.
“(3) After 20 weeks gestational age, measured from the date of conception, an abortion may be performed only for those purposes and circumstances described in Subsections (2)(a), (d), and (e).” Utah Code Ann. §76-7-302 (1995).
In none of the Utah eases relied upon by the Court of Appeals was there a legislative statement of this sort. In both Salt Lake City v. International Assn. of Firefighters, 563 P. 2d 786 (1977), and Carter v. Beaver County Service Area No. One, 399 P. 2d 440 (1965), the saving clauses at issue simply declared: “If any provision of this act, or the application of any provision to any person or circumstance, is held invalid, the remainder of this act shall not be affected thereby.” See 1975 Utah Laws, ch. 102, §10; 1961 Utah Laws, ch. 34, §3. And in State v. Salt Lake City, 445 P. 2d 691, 696 (1968), the court treated the saving clause in the municipal ordinance under review as no different from the one discussed in Carter, upon which the court relied.
Compare International Assn. of Firefighters, supra, at 791 (“The [invalidated] provisions . .. are an integral part of the act. . . . The concept of binding arbitration is wholly interdependent with the other provisions of the act”); Carter, supra, at 441-442 (“[T]he separability clause ... is ineffective, because of the dependency of the remaining sections upon the provisions declared inoperative”) (emphases added).
The Court of Appeals also adverted to Utah Code Ann. § 76-7-317.2 (1995), which it interpreted as “making an exception to the general sever-ability clause specifically for section 302.” Jane L. v. Bangerter, 61 F. 3d, at 1499. Section 317.2 does nothing of the sort. It provides, simply, that “[i]f Section 76-7-302 as amended by Senate Bill 23,1991 Annual General Session, is ever held to be unconstitutional by the United States Supreme Court, Section 76-7-302, as enacted by Chapter 33, Laws of Utah 1974, is reenacted and immediately effective.” This provision does not speak to severability, but to the consequence of invalidation, presumably total invalidation. (For if the invalidation of § 302(2) alone triggered § 317.2, then all of § 302 would be replaced by the pre-existing, 1974 version. But the Court of Appeals did not decree § 302(1) as inoperative, nor did respondents seek that result.) Respondents make no effort to defend the ruling below on the basis of § 317.2.
The dissent says that our review in Wichita Royalty Co. “was plainly motivated by a concern to give effect to [the] new mandate” of Erie R. Co. v. Tompkins, 304 U. S. 64 (1938), that federal courts apply state substantive law in diversity eases. Post, at 147, It remains the case, however, that “the only question for our decision” was whether the Court of Appeals was correct in its interpretation of state law. 306 U. S., at 107 (emphasis added). As for Steele v. General Mills, Inc., 329 U. S. 433 (1947), there our review was prompted by concern that the judgment below “undermine[d] the transportation policy of Texas,” id., at 438. But unless we were wrong in Steele to regard this as “a question of such importance” as to justify review, ibid., the Tenth Circuit’s “undermin[ing] [of] the [abortion] policy of [Utah]” presents an issue equally worth our attention. If the dissent is correct that Steele was our last case of this sort, it indicates only that we have not since been faced with a federal court’s equivalently clear misinterpretation of a state law of equivalent significance.
Question: What is the issue area of the decision?
A. Criminal Procedure
B. Civil Rights
C. First Amendment
D. Due Process
E. Privacy
F. Attorneys
G. Unions
H. Economic Activity
I. Judicial Power
J. Federalism
K. Interstate Relations
L. Federal Taxation
M. Miscellaneous
N. Private Action
Answer:
|
sc_authoritydecision
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence.
FRAZEE v. ILLINOIS DEPARTMENT OF EMPLOYMENT SECURITY et al.
No. 87-1945.
Argued March 1, 1989
Decided March 29, 1989
White, J., delivered the opinion for a unanimous Court.
David A. French argued the cause for appellant. With him on the briefs was John W. Whitehead.
Robert J. Ruiz, Solicitor General of Illinois, argued the cause for appellees. With him on the brief were Neil F. Hartigan, Attorney General, and Diane Curry Grapsas and Marcy I. Singer, Assistant Attorneys General.
Briefs of amici curiae urging reversal were filed for the American Jewish Congress et al. by Amy Adelson, Lois C. Waldman, and Marc D. Stern; for the Anti-Defamation League of B’nai B’rith by Steven M. Freeman, Meyer Eisenberg, Jeffrey P. Sinensky, Jill L. Kahn, and Richard E. Shevitz; for the Council on Religious Freedom et al. by Lee Boothby, Samuel Rabinove, Richard T. Foltin, Robert W. Nixon, and Rolland Truman; and for Robert Roesser et al. by Bruce N. Cameron.
Justice White
delivered the opinion of the Court.
The Illinois Unemployment Insurance Act provides that “[a]n individual shall be ineligible for benefits if he has failed, without good cause, either to apply for available, suitable work when so directed ... or to accept suitable work when offered him . . . .” Ill. Rev. Stat., ch. 48, ¶433 (1986). In April 1984, William Frazee refused a temporary retail position offered him by Kelly Services because the job would have required him to work on Sunday. Frazee told Kelly that, as a Christian, he could not work on “the Lord’s day.” Frazee then applied to the Illinois Department of Employment Security for unemployment benefits claiming that there was good cause for his refusal to work on Sunday. His application was denied. Frazee appealed the denial of benefits to the Department of Employment Security’s Board of Review, which also denied his claim. The Board of Review stated: “When a refusal of work is based on religious convictions, the refusal must be based upon some tenets or dogma accepted by the individual of some church, sect, or denomination, and such a refusal based solely on an individual’s personal belief is personal and noncompelling and does not render the work unsuitable.” App. 18-19. The Board of Review concluded that Frazee had refused an offer of suitable work without good cause. The Circuit Court of the Tenth Judicial Circuit of Illinois, Peoria County, affirmed, finding that the agency’s decision was “not contrary to law nor against the manifest weight of the evidence,” thereby rejecting Frazee’s claim based on the Free Exercise Clause of the First Amendment. Id., at 23.
Frazee’s free exercise claim was again rejected by the Appellate Court of Illinois, Third District. 159 Ill. App. 3d 474, 512 N. E. 2d 789 (1987). The court characterized Frazee’s refusal to work as resting on his “personal professed religious belief,” and made it clear that it did “not question the sincerity of the plaintiff,” id., at 475, 477, 512 N. E. 2d, at 790, 791. It then engaged in a historical discussion of religious prohibitions against work on the Sabbath and, in particular, on Sunday. Nonetheless, the court distinguished Sherbert v. Verner, 374 U. S. 398 (1963); Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707 (1981); and Hobbie v. Unemployment Appeals Comm’n of Florida, 480 U. S. 136 (1987), from the facts of Frazee’s case. Unlike the claimants in Sherbert, Thomas, and Hobbie, Frazee was not a member of an established religious sect or church, nor did he claim that his refusal to work resulted from a “tenet, belief or teaching of an established religious body.” 159 Ill. App. 3d, at 477, 512 N. E. 2d, at 791. To the Illinois court, Frazee’s position that he was “a Christian” and as such felt it wrong to work on Sunday was not enough. For a Free Exercise Clause claim to succeed, said the Illinois Appellate Court, “the injunction against Sunday labor must be found in a tenet or dogma of an established religious sect. [Frazee] does not profess to be a member of any such sect.” Id., at 478-479, 512 N. E. 2d, at 792. The Illinois Supreme Court denied Frazee leave to appeal.
The mandatory appellate jurisdiction of this Court was invoked under 28 U. S. C. §1257(2), since the state court rejected a challenge to the constitutionality of Illinois’ statutory “good cause” requirement as applied in this case. We noted probable jurisdiction, 488 U. S. 814 (1988), and now reverse.
We have had more than one occasion before today to consider denials of unemployment compensation benefits to those who have refused work on the basis of their religious beliefs. In Sherbert v. Verner, supra, at 410, the Court held that a State could not “constitutionally apply the eligibility provisions [of its unemployment-compensation program] so as to constrain a worker to abandon his religious convictions respecting the day of rest.” Thomas v. Review Bd. of Indiana Employment Security Div., supra, also held that the State’s refusal to award unemployment compensation benefits to one who terminated his job because his religious beliefs forbade participation in the production of armaments violated the First Amendment right to free exercise. Just two years ago, in Hobbie v. Unemployment Appeals Comm’n of Florida, supra, Florida’s denial of unemployment compensation benefits to an employee discharged for her refusal to work on her Sabbath because of religious convictions adopted subsequent to employment was also declared to be a violation of the Free Exercise Clause. In each of these cases, the appellant was “forced to choose between fidelity to religious belief and . . . employment,” id., at 144, and we found “the forfeiture of unemployment benefits for choosing the former over the latter brings unlawful coercion to bear on the employee’s choice,” ibid. In each of these cases, we concluded that the denial of unemployment compensation benefits violated the Free Exercise Clause of the First Amendment of the Constitution, as applied to the States through the Fourteenth Amendment.
It is true, as the Illinois court noted, that each of the claimants in those cases was a member of a particular religious sect, but none of those decisions turned on that consideration or on any tenet of the sect involved that forbade the work the claimant refused to perform. Our judgments in those cases rested on the fact that each of the claimants had a sincere belief that religion required him or her to refrain from the work in question. Never did we suggest that unless a claimant belongs to a sect that forbids what his job requires, his belief, however sincere, must be deemed a purely personal preference rather than a religious belief. Indeed, in Thomas, there was disagreement among sect members as to whether their religion made it sinful to work in an armaments factory; but we considered this to be an irrelevant issue and hence rejected the State’s submission that unless the religion involved formally forbade work on armaments, Thomas’ belief did not qualify as a religious belief. Because Thomas unquestionably had a sincere belief that his religion prevented him from doing such work, he was entitled to invoke the protection of the Free Exercise Clause.
There is no doubt that “[o]nly beliefs rooted in religion are protected by the Free Exercise Clause,” Thomas, supra, at 713. Purely secular views do not suffice. United States v. Seeger, 380 U. S. 163 (1965); Wisconsin v. Yoder, 406 U. S. 205, 215-216 (1972). Nor do we underestimate the difficulty of distinguishing between religious and secular convictions and in determining whether a professed belief is sincerely held. States are clearly entitled to assure themselves that there is an ample predicate for invoking the Free Exercise Clause. We do not face problems about sincerity or about the religious nature of Frazee’s convictions, however. The courts below did not question his sincerity, and the State concedes it. Tr. of Oral Arg. 35. Furthermore, the Board of Review characterized Frazee’s views as “religious convictions,” App. 18, and the Illinois Appellate Court referred to his refusal to work on Sunday as based on a “personal professed religious belief,” 159 Ill. App. 3d, at 475, 512 N. E. 2d, at 790.
Frazee asserted that he was a Christian, but did not claim to be a member of a particular Christian sect. It is also true that there are assorted Christian denominations that do not profess to be compelled by their religion to refuse Sunday work, but this does not diminish Frazee’s protection flowing from the Free Exercise Clause. Thomas settled that much. Undoubtedly, membership in an organized religious denomination, especially one with a specific tenet forbidding members to work on Sunday, would simplify the problem of identifying sincerely held religious beliefs, but we reject the notion that to claim the protection of the Free Exercise Clause, one must be responding to the commands of a particular religious organization. Here, Frazee’s refusal was based on a sincerely held religious belief. Under our cases, he was entitled to invoke First Amendment protection.
The State does not appear to defend this aspect of the decision below. In its brief and at oral argument, the State conceded that the Free Exercise Clause does not demand adherence to a tenet or dogma of an established religious sect. Instead, the State proposes its own test for identifying a “religious” belief, asserts that Frazee has not met such a test, and asks that we affirm on this basis. We decline to address this submission; for as the case comes to us, Frazee’s conviction was recognized as religious but found to be inadequate because it was not claimed to represent a tenet of a religious organization of which he was a member. That ground for decision was clearly erroneous.
The State offers no justification for the burden that the denial of benefits places on Frazee’s right to exercise his religion. The Illinois Appellate Court ascribed great significance to America’s weekend way of life. The Illinois court asked: “What would Sunday be today if professional football, baseball, basketball, and tennis were barred. Today Sunday is not only a day for religion, but for recreation and labor. Today the supermarkets are open, service stations dispense fuel, utilities continue to serve the people and factories continue to belch smoke and tangible products,” concluding that “[i]f all Americans were to abstain from working on Sunday, chaos would result.” 159 Ill. App. 3d, at 478, 512 N. E. 2d, at 792. We are unpersuaded, however, that there will be a mass movement away from Sunday employ if William Frazee succeeds in his claim.
As was the case in Thomas where there was “no evidence in the record to indicate that the number of people who find themselves in the predicament of choosing between benefits and religious beliefs is large enough to create ‘widespread unemployment,’ or even to seriously affect unemployment,” 450 U. S., at 719, there is nothing before us in this case to suggest that Sunday shopping, or Sunday sporting, for that matter, will grind to a halt as a result of our decision today. And, as we have said in the past, there may exist state interests sufficiently compelling to override a legitimate claim to the free exercise of religion. No such interest has been presented here.
The judgment of the Appellate Court of Illinois for the Third District is therefore reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
From the very first report of the Illinois Division of Unemployment Insurance claims adjudicator, Frazee’s refusal of Sunday work has been described as “due to his religious convictions.” In his application for reconsideration of the referee’s determination, Frazee stated: “I refused the job which required me to work on Sunday based on Biblical principles, scripture Exodus 20: 8, 9, 10. Remember the Sabbath day by keeping it holy. Six days you shall labour and do all your work but the seventh day is a Sabbath to the Lord your God. On it you shall not do any work.”
We noted in Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707, 715 (1981), that an asserted belief might be “so bizarre, so clearly nonreligious in motivation, as not to be entitled to protection under the Free Exercise Clause.” But that avails the State nothing in this case. As the discussion of the Illinois Appellate Court itself indicates, claims by Christians that their religion forbids Sunday work cannot be deemed bizarre or incredible.
Question: What is the basis of the Supreme Court's decision?
A. judicial review (national level)
B. judicial review (state level)
C. Supreme Court supervision of lower federal or state courts or original jurisdiction
D. statutory construction
E. interpretation of administrative regulation or rule, or executive order
F. diversity jurisdiction
G. federal common law
Answer:
|
songer_initiate
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
UNITED STATES of America, Plaintiff-Appellee, v. Keith Lynn JENKINS, Defendant-Appellant.
No. 87-1797.
United States Court of Appeals, Tenth Circuit.
May 31, 1990.
Vicki Mandell-King, Asst. Federal Public Defender (Michael G. Katz, Federal Public Defender, with her on the brief), Denver, Colo., for defendant-appellant.
Wayne T. Dance, Asst. U.S. Atty. (Brent D. Ward, U.S. Atty., with him on the brief), Salt Lake City, Utah, for plaintiff-appellee.
Before HOLLOWAY, Chief Judge, SEYMOUR, Circuit Judge, and BROWN, District Judge.
The Honorable Wesley E. Brown, United States District Judge for the District of Kansas, sitting by designation.
SEYMOUR, Circuit Judge.
In a joint trial, Keith Lynn Jenkins was convicted of multiple counts of possession with intent to distribute and distribution of cocaine and marijuana, 21 U.S.C. § 841(a)(1) (1988) and 18 U.S.C. § 2 (1988); one count of conspiracy to possess and distribute controlled substances, 21 U.S.C. § 846 (1988); multiple violations of the Travel Act, 18 U.S.C. § 1952 (1988); one count of engaging in a continuing criminal enterprise, 21 U.S.C. § 848 (1988); several counts of distribution of a controlled substance to a person less than twenty-one years of age, 21 U.S.C. § 845 (1988); and four counts of income tax evasion, 26 U.S.C. § 7206(1) (1988). Criminal forfeiture orders were obtained against Jenkins’ property in the same proceeding under 21 U.S.C. § 853 (1988). We are not persuaded by the various issues Jenkins raises on appeal, and we therefore affirm his conviction on all counts.
I.
BACKGROUND
This case involves a large Utah-based cocaine and marijuana distribution network. Jenkins was originally named in a ninety-two count indictment which charged six defendants with conspiracy, multiple substantive drug violations, and a variety of associated crimes. The government filed a ninety-six count superseding indictment which added tax evasion charges against Jenkins. Among the numerous charges, count one alleged a single conspiracy by Jenkins and the other five defendants to possess and distribute controlled substances, and count two charged Jenkins with a managerial, supervisory or organizer’s role in concert with at least five other persons, as part of a continuing criminal enterprise. See 21 U.S.C. § 848.
Two of the six defendants pled guilty before trial, and the four remaining defendants began trial before one jury. Two weeks into trial, the attorney for defendant Michael Patrick Doran became sick and a mistrial was declared as to Doran. The substantive criminal counts and the criminal forfeiture actions against Jenkins, Craig William McLachlan, and James Arthur Mann went to the jury.
The evidence against Jenkins at trial consisted primarily of the testimony of lesser participants in the drug distribution system who testified in exchange for grants of immunity. Jenkins did not testify. The government’s proof established generally that from approximately 1980 through 1983, Jenkins regularly imported or obtained delivery in Utah of shipments of up to 150 pounds of marijuana, usually purchased from co-defendant Michael Doran in Arizona. Jenkins would distribute this marijuana to or through various smaller-scale wholesalers and retailers in the Salt Lake City and Utah County area. In addition, Jenkins would import or obtain delivery of cocaine, in quantities of one-quarter pound up to three kilograms. Jenkins often purchased and distributed this cocaine for resale in partnership with co-defendant Craig McLachlan, at least until an apparent “rift” developed between them in October 1981. Profits from these sales were invested into real estate, aircraft, businesses, money market funds, and bank accounts. These assets were the subject of the criminal forfeiture proceedings held jointly with the trial on the substantive criminal charges. Jenkins did not object to the unitary treatment of the substantive criminal counts and the forfeiture actions.
The jury found Jenkins guilty of the great majority of the counts against him. Forfeiture orders were entered against him contemporaneously with the return of the verdict on the criminal counts. Jenkins was sentenced to twenty years on the continuing criminal enterprise conviction, and the sentence on the conspiracy charge was vacated as a lesser included offense. The sentences imposed on the various substantive drug charges were to run concurrently, while a three-year tax evasion sentence was to run consecutively.
On appeal, Jenkins asserts insufficient evidence to convict on the continuing criminal enterprise count, a variance between the conspiracy charge and the proof of conspiracy at trial, improper introduction of prejudicial and irrelevant evidence and of other wrongful acts under Fed.R.Evid. 404(b), erroneous denial of a severance motion, improper use of a Fed.R.Crim.P. Rule 16(d)(2) sanction resulting in inability to use a prior inconsistent statement to impeach, failure to bifurcate the forfeiture proceedings from the guilt phase of Jenkins’ criminal trial, and grand jury abuse.
II.
A. Continuing Criminal Enterprise
Jenkins argues that the jury had insufficient evidence to convict him on the continuing criminal enterprise charge. Evidence is sufficient to support a criminal conviction if, viewing all the evidence most favorably to the prosecution, “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Apodaca, 843 F.2d 421, 425 (10th Cir.) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)), cert. denied, 488 U.S. 932, 109 S.Ct. 325, 102 L.Ed.2d 342 (1988).
Conviction on a continuing criminal enterprise charge requires (1) a felony violation of a drug law contained in the Controlled Substance Act, 21 U.S.C. §§ 801 et seq. (1988); (2) constituting part of a continuing series of such violations; (3) undertaken in concert with five or more other persons; (4) with respect to whom [the defendant] occupies a position of organizer, supervisor, or any other position of management; and (5) from which [the defendant] obtains substantial income or resources. See 21 U.S.C. § 848(c) (1988); see also United States v. Hall, 843 F.2d 408, 410 (10th Cir.1988). Jenkins maintains that it was he who took orders from most of the persons with whom he was involved, and that the evidence does not enable one to specify five persons over whom he exercised the requisite managerial, supervisory, or organizing authority. We disagree.
The statutory terms “organizer,” “manager,” and “supervisor” have nontechnical, “everyday meanings.” See Apodaca, 843 F.2d at 425-26; United States v. Dickey, 736 F.2d 571, 587 (10th Cir.1984), cert. denied, 469 U.S. 1188, 105 S.Ct. 957, 83 L.Ed.2d 964 (1985). Section 848’s use of the indefinite article when describing “a position of organizer” or “a supervisory position or any other position of management” contemplates that a given network may have many persons in authority. Thus, the defendant need not be the dominant organizer or manager of the enterprise; he need only occupy some managerial position with respect to five or more persons. See Apodaca, 843 F.2d at 426 (citing cases). Moreover, “[t]he defendant's relationships with the other persons need not have existed at the same time, the five persons involved need not have acted in concert at the same time or with each other, and the same type of relationship need not exist between the defendant and each of the five.” Id. While proof of a buyer-seller relationship alone is insufficient to establish a managerial role, id., additional evidence of formal or informal authority or responsibility respecting a purchaser’s conduct may suffice, see United States v. Jones, 801 F.2d 304, 309-10 (8th Cir.1986) (requisite role evidenced by setting terms and method of transaction, directing wholesale purchaser as to manner of sale, furnishing financial and legal help, and supplying directions and/or training to subordinate wholesalers); see also United States v. Ray, 731 F.2d 1361, 1367 (9th Cir.1984) (not necessary to show defendant is able to control those whom he or she organizes).
In the present case, the evidence reflects that Jenkins participated at different times as a partner, rival, or arguably even as a subordinate of persons with whom he did business. But simply because Jenkins was not the “king pin” does not mean that he did not have his share of minions. Cf. United States v. Becton, 751 F.2d 250, 255 (8th Cir.1984) (irrelevant that defendant is subject to supervision of superiors), cert. denied, 472 U.S. 1018, 105 S.Ct. 3480, 87 L.Ed.2d 615 (1985).
Kim Barker and Dale Lowder, for example, sometimes helped Jenkins store large quantities of marijuana at their home in exchange for a discount on the drug, see rec., vol. 13, at 45-54, and helped Jenkins obtain a drug delivery, see id. at 205-07. Jenkins regularly fronted them drugs, see id. at 65-78, 81-84, threatened their children when payment was late, see id. at 216, made Lowder quit-claim his house as security, see id. at 135-37, and directed when and how to make payment, see id. at 152. Finally, Jenkins told Lowder to whom not to sell. See id. at 210-11.
Curtis Slack helped broker several of Jenkins’ cocaine purchases in Florida. See rec., vol. 16, at 518-35, 553-67. Most importantly, Slack couriered the drug for Jenkins from Florida to Utah, see id. at 579-82, after following Jenkins’ instructions on how to package it, see id. at 560. Finally, Jenkins bailed Slack out of jail after his arrest for couriering the drugs. See id. at 596.
Brian Smith obtained marijuana from Jenkins on credit. He couriered Jenkins’ purchases of marijuana from Arizona to Utah, see rec., vol. 23, at 1680-83, and would then store the marijuana for Jenkins at his home. Guy Robertson acted as Jenkins’ agent in marijuana transactions in Jenkins’ absence. See rec., vol. 23, at 1533, 1599. Finally, Wendell and Sherry Olsen arranged for the storage of marijuana for Jenkins when he needed it, see id. at 1530, 1537, followed his advice concerning price-setting, see id. at 1603, and complied with Jenkins’ request to gain introductions for new sales contacts, see id. at 1546-47. Based on this evidence, a rational trier of fact could easily conclude beyond a reasonable doubt that Jenkins occupied a managerial position as defined in the cases at least as to these seven persons. See Apodaca, 843 F.2d at 427. We therefore affirm the conviction on the continuing criminal enterprise count.
B. Evidentiary Rulings
1. Testimony concerning McLachlan’s violence
Over the relevancy objection of Jenkins and other co-defendants, the district court admitted testimony of certain violent acts of co-defendant McLachlan. For example, there was testimony that Mc-Lachlan tried to strike an employee of his nightclub with a sledgehammer, and that he used the hammer to damage the side of his adversary’s car. The jury also heard evidence that McLachlan convinced the girlfriend of Curtis Slack to pose for sexually explicit photographs in return for legal help for her boyfriend, who had been arrested while transporting cocaine allegedly ordered by Jenkins. Finally, on two occasions testimony revealed that McLachlan had threatened individual employees of his club, once with a gun.
Jenkins argues that the probative value of this evidence as to McLachlan is substantially outweighed by the possibility of unfair prejudice to Jenkins. See Fed.R. Evid. 403. In considering this question, we first take note of the broad discretion given the trial court in a Rule 403 balancing analysis. See United States v. Cuch, 842 F.2d 1173, 1175 (10th Cir.1988). We also note that Jenkins raised no Rule 403 objections when the evidence was introduced below. Finally, the trial court twice gave cautionary instructions to the jury immediately after the testimony, admonishing jury members that the testimony had “nothing to do with Mr. Jenkins.” Rec., vol. 18, at 1045-46; see also id., vol. 19, at 1184.
We conclude that Jenkins was not unfairly prejudiced by the testimony. Little danger existed that the jury could have confused McLachlan with Jenkins or that the testimony concerning McLachlan would unfairly bias the jury against Jenkins. In fact, Jenkins was acquitted on nine of the fifty counts against him that went to the jury. Any danger of unfair prejudice was ameliorated by the limiting instructions. See United States v. Pinto, 838 F.2d 426, 434 (10th Cir.1988) (special limiting instruction enables jury to compartmentalize the evidence as to each of the defendants). Accordingly, we affirm the trial court’s evi-dentiary rulings concerning McLachlan’s activities.
2. Bad acts concerning Doran
The district court also admitted evidence of co-defendant Michael Patrick Do-ran’s prior drug activities under Fed.R. Evid. 404(b) as probative of Doran’s motive, intent, preparation, plan, knowledge, and identity regarding the drug conspiracy. Jenkins argues that admission of this Rule 404(b) evidence was not “necessary to bolster the government’s case against Doran,” Opening Brief at 26, and that the jury would unfairly attribute these acts to Jenkins, whom the government alleged was supervising Doran.
The validity of the introduction of this evidence against Doran has already been ruled upon by this court. See United States v. Doran, 882 F.2d 1511, 1523-25 (10th Cir.1989). We held that the evidence was properly admitted to show that Doran intended to enter into the conspiracy and knew the nature of it. Id. at 1524. We did not consider the issue of unfair prejudice against co-defendant Jenkins, however.
Immediately following the admission of the evidence, the trial court instructed the jury that “[t]his testimony is not to be considered by you as it relates to any of the charges ... against Jenkins_[Y]ou must not consider this evidence as it relates to the charges against any of the other three defendants in this case.” Rec., vol. 16, at 22. We believe that this cautionary instruction adequately safeguarded Jenkins from any prejudicial effect the Rule 404(b) testimony may have had. See Pinto, 838 F.2d at 434; see also United States v. Williams, 897 F.2d 1034, 1037-38 (10th Cir.1990) (presumption of effectiveness of cautionary instruction).
3. Denial of opportunity to impeach with a prior inconsistent statement
A major prosecution witness against Jenkins was Curtis Slack, who testified that he couriered large quantities of cocaine from Florida for Jenkins. During cross examination, Jenkins sought to introduce a document purportedly containing a statement Slack made to a lawyer to the effect that the cocaine he transported did not belong to Jenkins. The trial court denied Jenkins the opportunity to use the document or its contents because it had not been provided to the government under the magistrate’s reciprocal discovery order. See rec., vol. 2, doc. 235 at 1; see also Fed.R.Crim.P. 16(b).
Jenkins argues on appeal that the court abused its discretion by refusing to admit the document. The government responds that the court’s choice of sanction was well within its discretion. The relevant rule provides:
“Failure to Comply with a Request
If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule, the court may order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing evidence not disclosed, or it may enter such other order as it deems just under the circumstances.”
Fed.R.Crim.P. 16(d)(2) (emphasis added). Jenkins maintains that, given the importance of Slack’s testimony to several substantive charges and to the continuing criminal enterprise charge, the trial court should have continued the trial or permitted an inspection instead of refusing to admit the evidence. The record does not contain a copy of the document. Accordingly, we are unable to rule on this issue. See generally Moore v. Subaru of Amer-ica, 891 F.2d 1445, 1448 (10th Cir.1989) (deferral to trial court appropriate where record on appeal is insufficient to substantiate general allegations of error).
C. Severance
The district court denied Jenkins’ pretrial motion to sever, as well as his mid-trial motion for mistrial or severance arising out of the court’s admission of Mc-Lachlan’s violent acts. Jenkins maintains that these denials were an abuse of the trial court’s discretion, resulting in actual prejudice. See Williams, 897 F.2d at 1037 (defendant must show specific prejudice to warrant reversal of denial of severance motion); United. States v. Wright, 826 F.2d 938, 945 (10th Cir.1987) (reversal for denial of severance motion must be based on abuse of discretion resulting in actual prejudice); see also United States v. Hernandez, 829 F.2d 988, 990 (10th Cir.1987) (defendant’s burden to show abuse of discretion is “difficult;” “strong showing of prejudice” required), cert. denied, 485 U.S. 1013, 108 S.Ct. 1486, 99 L.Ed.2d 714 (1988).
Jenkins argues that he was prejudiced by the admission of evidence reflecting McLachlan’s violent nature due to its purported spillover effect. Our analysis above demonstrates that Jenkins was unable to show sufficient danger of prejudice arising from this testimony in a Fed.R. Evid. 403 context, particularly where the district court gave appropriate cautionary instructions. Our prior analysis is disposi-tive of the severance issue, since Jenkins’ burden in the severance context is the heavier one of a strong showing of actual prejudice. See Williams, 897 F.2d at 1037 (severance not warranted based on allegation of spillover effect upon co-conspirator defendant).
Moreover, the joint trial of Mann, Doran, Jenkins, and McLachlan substantially advanced the judicial-efficiency rationale behind the rules encouraging joinder of defendants. See Fed.R.Crim.P. 8(b). Jenkins and his co-defendants were jointly indicted and faced common conspiracy charges. See Wright, 826 F.2d at 945 (individual conspirators should be tried together); United States v. Rinke, 778 F.2d 581, 590 (10th Cir.1985) (persons jointly indicted should be tried together). Jenkins and Mc-Lachlan were also alleged to have worked together as partners, leading to six joint charges on substantive counts. Given Jenkins’ inability to show prejudice, as well as a substantial factual overlap in the charges against Jenkins and McLachlan, the trial court acted within its discretion in denying a severance.
D. Bifurcation
In a separate indictment, the government initiated extensive criminal forfeiture proceedings under 21 U.S.C. § 853 against property belonging to Jenkins. Evidence pertaining to the forfeiture issues was admitted during the guilt phase of Jenkins’ trial, and the jury returned its verdict the same day on both the criminal counts and the forfeiture of his property. Jenkins did not move below for separate jury consideration of the forfeiture issue after the guilt phase of the trial, but now asserts that it was plain error for the trial court not to require the jury to hear the case in two phases.
We have not addressed the question of when, if ever, a jury should be required to determine a defendant’s guilt before it is allowed to consider evidence and/or arguments pertaining to forfeiture. Other circuits have varying views. In United States v. Sandini, 816 F.2d 869 (3d Cir.1987), the district court held a partially bifurcated trial, in spite of the defendant’s request for a fully bifurcated proceeding. The court required all evidence relating to forfeiture to be presented to the jury during the guilt phase, and limited the forfeiture phase of the trial to arguments of counsel and jury instructions relating to that issue. The Third Circuit recognized that the trial court’s procedure presented the defendant with the Hobson’s choice of foregoing testifying to protect his property from forfeiture or waiving of his Fifth Amendment privilege not to testify at his criminal trial. The court observed that a defendant’s position is exacerbated by the rebuttable presumption in the forfeiture statute favoring the government, and the court pointed out that “the right of rebuttal may be illusory when made contingent on waiving the privilege not to testify during trial.” Id. at 874. Accordingly, the court exercised its supervisory power over the conduct of criminal trials to require complete bifurcation of in personam criminal forfeiture proceedings from the guilt phase of a criminal trial. Id.
In United, States v. Perholtz, 842 F.2d 343 (D.C.Cir.) (per curiam), cert. denied, 488 U.S. 821, 109 S.Ct. 65, 102 L.Ed.2d 42 (1988), the defendant’s pretrial request for separate proceedings on RICO forfeiture charges, see 18 U.S.C. § 1963(a) (1988), was denied. After concluding that a wholly unitary proceeding was consistent with due process, the court declined to adopt a judicially-crafted procedural rule requiring any bifurcation whatsoever, much less respecting the taking of evidence. Id. at 367-68.
The Ninth Circuit in United States v. Feldman, 853 F.2d 648 (9th Cir.1988), cert. denied, — U.S. —, 109 S.Ct. 1164, 103 L.Ed.2d 222 (1989), adopted a more fact-bound approach to the problem. After the jury returned a guilty verdict, but before it retired to deliberate on the special verdict required in forfeiture proceedings, the defendant there requested a separate eviden-tiary hearing on RICO forfeiture issues. The district court denied the request. On appeal, the court held that “[ujnder some circumstances a single procedure may be unfair, where for example the evidence is very complex, there are evidentiary difficulties, or testimonial privileges are clearly implicated.” Id. at 662. In other sitúa-tions, however, evidence of guilt may satisfy forfeiture requirements and a single procedure would not be prejudicial. The court noted that trial courts “should bifurcate forfeiture proceedings from ascertainment of guilt, requiring separate jury deliberations and allowing argument of counsel.” Id. Bifurcation on the taking of evidence was left to trial court discretion, although “[i]f the defendant can show ... that a hearing is required on the extent of his or her assets subject to forfeiture, the court should allow evidence on the issue.” Id.
We appreciate the unfair dilemma, described in Sandini, that a defendant faces when the jury hears evidence pertaining to forfeiture and criminal guilt in one sitting. The dilemma disappears, however, if the defendant does not intend to testify concerning the forfeiture. In such a case, it works no harm upon the defendant to emphasize the convenience and economy for the court, subpoenaed witnesses, and others involved by allowing evidence to be taken in a single proceeding. We hold, therefore, that the responsibility rests on the defendant and counsel to make the trial court aware of a desire to testify on the forfeiture issues. If no such request is made, the trial court and the government are entitled to assume that evidence concerning guilt and forfeiture may be heard together.
In the present case, Jenkins argues that had the proceedings been bifurcated he “may well have desired to take the stand in his own behalf.” Opening Brief at 40. In contrast to the defendants in Sandini, Perholtz, and Feldman, Jenkins did not express at trial an intention to testify, nor did he request bifurcated proceedings, or advert to the dilemma described in Sandini. Consequently, the trial court was entitled to assume that Jenkins did not desire to testify concerning forfeiture, and the failure to require the jury to determine Jenkins’ guilt before permitting it to hear evidence and/or arguments pertaining to forfeiture was not plain error.
Jenkins also argues that the reading of jury instructions on forfeiture together with the instructions as to guilt created a real danger that the jury may have confused the differing burdens of proof. Only a preponderance of the evidence is required to establish the rebut-table presumption in the forfeiture statute, while proof beyond a reasonable doubt is, of course, required to convict on the substantive criminal counts. While we agree with the Ninth Circuit in Feldman that the preferable procedure would have been to instruct the jury separately concerning forfeiture after return of the verdict on guilt, Jenkins failed to request any bifurcation of the guilt phase from the forfeiture phase of the trial. Because a cautionary instruction was given directly addressing the possibility of this type of confusion, the court did not commit plain error when it gave the instructions in a single reading. See United States v. Culpepper, 834 F.2d 879, 883 (10th Cir.1987) (plain errors are those that “seriously affect the fairness, integrity or public reputation of judicial proceedings”).
E. Grand Jury Abuse
Finally, Jenkins maintains that the trial court erred in not dismissing the indictment for grand jury abuse. After the government filed its superseding indictment, the grand jury heard additional testimony concerning Jenkins from several witnesses, including his mother. No subsequent superseding indictment was filed. Jenkins asserts that the government was attempting to obtain more evidence to strengthen its pending case against him, an improper use of the grand jury. See United States v. Gibbons, 607 F.2d 1320, 1328 (10th Cir.1979). He argues that the lower court erred in adopting the magistrate’s conclusion that the primary purpose of the testimony was to investigate new charges, with only an incidental effect on the pending prosecution.
We said in Gibbons that the grand jury process is abused when the prosecutor uses it “for the primary purpose of strengthening the Government’s case on a pending indictment or as a substitute for discovery, although this may be an incidental benefit.” Id. In two in camera hearings, the magistrate found that Jenkins had failed to demonstrate this type of abuse. Jenkins’ conclusory statements in his brief and our review of the record provide us with no reason to disturb that finding.
Moreover, Jenkins has not shown how the testimony before the grand jury amounted to prejudice. See Bank of Nova Scotia v. United States, 487 U.S. 250, 108 S.Ct. 2369, 101 L.Ed.2d 228 (1988) (dismissal of indictment for prosecutorial misconduct before grand jury subject to harmless error analysis). Jenkins does not argue that the grand jury testimony was employed against him in any fashion or that it had any effect whatsoever on the fairness of his trial based on the indictment issued before any of the purported abuse occurred. His claim of grand jury abuse must therefore fail.
Jenkins’ conviction is AFFIRMED.
. Doran was retried separately and convicted of seven counts upon a separate, superseding indictment. On appeal, Doran’s conviction on seven counts was affirmed as to five counts, and was reversed on Speedy Trial Act grounds as to the two remaining counts, which had originated in the initial indictment. See United States v. Doran, 882 F.2d 1511 (10th Cir.1989).
. The definition of a continuing criminal enterprise in the version of the statute in effect at the time these offenses occurred was found at 21 U.S.C. § 848(b). The identical definition occurs in the current version at 21 U.S.C. § 848(c).
. Jenkins complains for the first time in his Reply Brief that he was never specifically informed either in the indictment or the bill of particulars of the persons whose activities he allegedly organized, managed, or supervised. Although he requested that the government be required to supply the information, he did not appeal to the district court the denial of his motion by the magistrate.
Jenkins also tangentially argues for the first time in his Reply Brief that the jury could have disagreed on which five people satisfied the element of the continuing criminal enterprise count, thereby violating the requirement of unanimity in the jury verdict. See Fed.R.Crim.P. 31(a); Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972) (five justices agree on implicit Sixth Amendment right to unanimous verdict in federal criminal trials). Jenkins did not identify the unanimity issue in the Statement of Issues in his Opening Brief. Moreover, raising the issue only in the Reply Brief affords the government no opportunity to address it. Given the complexity of the question, we decline to consider it without adequate briefing from both sides. See Fed.R.App.P. 28(a)(2), (4) (requiring statement of issues in briefs and legal argument respecting the issues presented on appeal); United Transp. Union v. Dole, 797 F.2d 823, 827 (10th Cir.1986) (issue may be abandoned or waived by inadequate development in the briefs).
. Jenkins vigorously argues in his Opening Brief that the indictment charging his involvement in a single drug conspiracy varied from what Jenkins characterizes as proof of multiple conspiracies adduced at trial. In his Reply Brief, however, he acknowledges that the action of the court in vacating his conspiracy sentence as a lesser included offense of the continuing criminal enterprise charge makes the variance issue significant only if the continuing criminal enterprise conviction is reversed on appeal. Our affirmance of the CCE issue thus obviates the need to discuss the variance issue.
To the extent the factual contentions underlying the variance argument have relevance to other issues in our discussion, we will discuss them separately.
. Jenkins also argues that this evidence was character evidence under Fed.R.Evid. 404(b). We do not agree. The evidence was admitted not to prove action in conformity with a criminal character, but rather to show McLachlan’s involvement in Slack’s cocaine delivery in one instance, and to show the duration of McLach-lan’s involvement in overt acts underlying the cocaine conspiracy through relations with employees in his club in the other instances. See United States v. Rodrequez, 859 F.2d 1321, 1326-27 (8th Cir.1988) (violent acts of conspirator in drug ring related to birth and nature of conspiracy and not Rule 404(b) evidence), cert. denied, — U.S. —, 109 S.Ct. 1326, 103 L.Ed.2d 594 (1989). In any event, we question Jenkins’ standing to object to evidence admitted against a co-defendant where he suffers no prejudice as a result.
. Jenkins’ counsel represented in the Opening Brief at 31 that she would supplement the record upon receipt of the document from a co-defendant’s counsel. To our knowledge, the record was never supplemented. Even if we were to rule, the trial court appears to have properly exercised its discretion. Counsel for Jenkins was aware of the document at least some days prior to its attempted introduction, but never apprised the government of its existence until the moment its admission was sought to impeach. Such tactics run directly contrary to the spirit of the mutual discovery order. See Fed.R.Crim.P. 16(c) (requiring prompt notification of adversary’s counsel upon discovery of additional evidence or material previously requested or ordered).
. Jenkins maintains in his Reply Brief that the proof at trial revealed multiple, separate conspiracies as to which both McLachlan and Jenkins were not common members. Even if we were to accept that proposition, however, the evidence did show that Jenkins and McLachlan were partners in a single distribution system at least up to October, 1981, when the rift occurred between them.
. The court described the dilemma as follows:
"A criminal defendant has the right to decline to testify at trial. He also may insist that his property not be taken without due process of law_[T]he defendant’s right to retain property arguably not subject to forfeiture should not be compromised or defeated by his decision to stay off the witness stand during the guilt phase of the trial.”
816 F.2d at 873.
.21 U.S.C. § 853(d) provides a rebuttable presumption that property of a person is subject to forfeiture when the person is convicted of a felony under the Controlled Substance Act, and where the government shows by a preponderance of the evidence that the property was acquired during the period of the violation and that no other likely source for funds exists.
. The court in Perholtz concluded that the Supreme Court’s decision in McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971), vacated in part on other grounds, 408 U.S. 941-42, 92 S.Ct. 2873, 33 L.Ed.2d 765 (1972), foreclosed a due process challenge to a unitary proceeding in the criminal forfeiture context. See 842 F.2d at 367-68. In McGautha, a defendant in a capital case argued that the Ohio state court’s procedure determining guilt and punishment in a single trial with a single verdict offended the due process clause by compelling the defendant to exercise his rights of allocution during trial to avoid the death sentence. The Court found the unitary procedure consistent with due process, reasoning first that the prospect of losing the right of allocution before one’s sentence does not amount to sufficient compulsion to testify, id. at 217, and second that Ohio had no obligation to allow the defendant to speak concerning punishment free of adverse consequences on guilt. Id. at 220.
The court in Perholtz found this reasoning persuasive in the criminal forfeiture context, since " ‘forfeiture under RICO is an in personam penalty designed as part of the punishment for the criminal offense committed’ ’’. 842 F.2d at 367 (quoting United States v. Kravitz, 738 F.2d 102, 106 (3d Cir.1984), cert. denied, 470 U.S. 1052, 105 S.Ct. 1752, 84 L.Ed.2d 816 (1985)). The court in United States v. Sandini, 816 F.2d 869, 874 (3d Cir.1987), found it unnecessary to decide the constitutionality of a unitary proceeding involving the in personam criminal forfeiture statute for drug trafficking. The court did note, however, that both the self-incrimination clause and the prohibition against governmental deprivation of property without due process were implicated. Id. at 873. The Ninth Circuit in United States v. Feldman, 853 F.2d 648, 661 (9th Cir.1988), cert. denied, - U.S. -, 109 S.Ct. 1164, 103 L.Ed.2d 222 (1989), also declined to rule on the constitutionality, although it remarked cryptically that failure to bifurcate is "not necessarily unconstitutional.” Id. Jenkins does not argue that bifurcation is constitutionally required. Thus, as in Sandini and Feldman, our discussion here has no bearing on the constitutional issues a unitary proceeding may raise.
. The court in Feldman gave as an example a forfeiture action against a RICO enterprise, where a finding of guilt on criminal RICO charges satisfies all the elements necessary to forfeit the enterprise itself. See Feldman, 853 F.2d at 662; 18 U.S.C. § 1963(a) (1988).
. The District of Columbia Circuit in Perholtz flatly rejected the defendant’s request for bifurcation, even where he requested it below. See 842 F.2d at 367. Perholtz involved RICO forfeiture under 18 U.S.C. § 1963(a) (1988), while the present case involves criminal forfeiture under 21 U.S.C. § 853 (1988). Since no similar request was made here, we need not decide whether the result in Perholtz is inconsistent with our suggested approach in the drug distribution forfeiture context. To the extent that the holding in Perholtz applies to forfeitures generally, however, we question its complete disregard of the potential dilemma created in a unitary proceeding.
. Jenkins does not challenge the use of the preponderance standard in the ultimate determination of whether property is subject to forfeiture pursuant to 21 U.S.C. § 853 (1988). We note the existence of some disagreement on this issue, see, e.g., United States v. Hernandez-Escarsega, 886 F.2d 1560, 1576-77 & n. 10 (9th Cir.1989), but we need not address it here.
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_usc1sect
|
5313
|
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 31. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
UNITED STATES of America, Appellee, Cross-Appellant, v. Thomas MICKENS, Anthony Jacobs, Shelby Kearney, Defendants-Appellants, Bettina Jacobs Celifie, Defendant-Appellant, Cross-Appellee.
Nos. 157-161, Dockets 90-1061 to 90-1064 and 90-1097.
United States Court of Appeals, Second Circuit.
Argued Oct. 25, 1990.
Decided Feb. 26, 1991.
John L. Pollok, New York City (Michael H. Gold, Susan C. Wolfe, Hoffman & Pol-lok, New York City of counsel), for defendant-appellant Mickens.
Robert L. Ellis, New York City, for defendant-appellant Kearney.
Georgia J. Hinde, New York City (Vivian Shevitz, New York City of counsel), for defendant-appellant Jacobs.
Chris P. Termini, Melville, N.Y. (Scalzi & Nofi, of counsel), for defendant-appellant, cross-appellee Celifie.
Kirby A. Heller, Asst. U.S. Atty., E.D. N.Y. (Andrew J. Maloney, U.S. Atty., Matthew E. Fishbein, Susan Corkery, Asst. U.S. Attys., E.D.N.Y., of counsel), for ap-pellee, cross-appellant.
Before MESKILL and ALTIMARI, Circuit Judges, and METZNER, District Judge.
The Honorable Charles M. Metzner, District Judge of the United States District Court for the Southern District of New York, sitting by designation.
ALTIMARI, Circuit Judge:
Defendants-appellants Thomas Mickens, Anthony Jacobs, Shelby Kearney, and Bet-tina Jacobs Celifie appeal from judgments of conviction, entered in the United States District Court for the Eastern District of New York (Thomas C. Platt, Chief Judge).
Following a four-month jury trial, Mick-ens was convicted of conspiracy to distribute and to possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846 (1988); conspiracy to defraud the United States, in violation of 18 U.S.C. § 371 (1988); four counts of income tax evasion, in violation of 26 U.S.C. § 7201 (1988); one count of filing a perjurious income tax return, in violation of 26 U.S.C. § 7206(1) (1988); eight counts of money laundering, in violation of 18 U.S.C. § 1956(a)(l)(B)(i) & (ii) (1988); and, one count of structuring a financial transaction as part of a pattern of illegal activity, in violation of 31 U.S.C. § 5324(3) (1988). Shelby Kearney and Bet-tina Jacobs Celifie were each convicted of conspiracy to defraud the United States, in violation of 18 U.S.C. § 371, and one count of money laundering, in violation of 18 U.S.C. § 1956(a)(l)(B)(i). Celifie was also convicted of one count of structuring a financial transaction as part of a pattern of illegal activity, in violation of 31 U.S.C. § 5324(3). Anthony Jacobs pleaded guilty to conspiracy to distribute cocaine, in violation of 21 U.S.C. § 846; conspiracy to defraud the United States, in violation of 18 U.S.C. § 371; and, two counts of distributing cocaine, in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(C).
On appeal, defendants-appellants Mick-ens, Kearney, and Celifie contend that comments made by the district court during trial deprived them of their constitutional right to a fair trial. They also challenge the court’s denial of a motion to suppress certain evidence, its rulings on various evi-dentiary questions posed during the course of the trial, and its instructions to the jury regarding the elements of a section 1956 violation. Moreover, they question the constitutionality of the currency reporting requirements of 31 U.S.C. § 5313 (1988). Defendant-appellant Jacobs appeals from his sentence of imprisonment. He contends that, in calculating his offense level, the district court improperly attributed to him the entire quantity of narcotics for which Mickens was found responsible. The government cross-appeals from the district court’s decision to downwardly depart in sentencing defendant-appellant Celifie.
For the reasons set forth below, the judgments of the district court are affirmed in part, reversed in part, and remanded.
BACKGROUND
Between 1984 and 1988, defendant-appellant Thomas Mickens directed a lucrative cocaine distribution network in Queens, New York. At trial, two law enforcement officers testified about numerous undercover cocaine purchases from individuals identified as Mickens’ underlings. For example, on two separate occasions undercover officer Austin Fields purchased cocaine from defendant-appellant Anthony Jacobs, a reputed “lieutenant” in the Mickens organization. On another occasion, surveillance agents spotted Mickens in the vicinity of a narcotics transaction between undercover Officer Terance Miller and another Mick-ens’ associate, George Jenkins. Officer Miller also purchased cocaine directly from Mickens while both men were seated in an undercover police car.
In addition to the direct evidence of narcotics activity, the prosecution presented evidence of Mickens’ lavish spending. The testimony of several automobile salesmen and insurance agents connected Mickens to the purchase of eighteen automobiles, costing a total of approximately $556,000. Trial evidence also established that Mickens purchased some sixteen properties, including commercial property in Queens, a $730,-000 residence in Dix Hills, New York, a residence in Miami, Florida, and a condominium in California. Mickens’ former attorney testified that he assisted Mickens in purchasing several properties using cash and money orders. He also testified that he helped Mickens launder money by preparing contracts and closing documents that significantly understated the properties’ actual purchase prices.
Additional evidence of Mickens’ automobile and real estate purchases was obtained during a warrant-authorized search of the Dix Hills residence. The warrant permitting the search was obtained on the basis of observations made by FBI agent Nerisa Pilafian during a “protective sweep” of the premises in connection with Mickens’ arrest. Mickens moved before the district court to suppress the evidence obtained from the Dix Hills residence, claiming that Agent Pilafian’s protective sweep was not justified by the circumstances of the arrest. This motion was denied.
Many of Mickens’ automobile and real estate purchases were accomplished through the use of nominees, including defendants-appellants Kearney and Celifie. For example, trial evidence established that Kearney, who was Mickens’ girlfriend, acted on Mickens’ behalf in the purchases of property in Hempstead, New York and the residence in Dix Hills, New York. The prosecution also presented evidence that Bettina Jacobs Celifie acted as Mickens’ nominee in purchasing the California condominium, as well as a $133,350 yacht.
Following a four-month jury trial, defendant-appellant Mickens was convicted of, inter alia, conspiracy to distribute and to possess with intent to distribute cocaine, conspiracy to defraud the United States, income tax evasion, and money laundering. He was sentenced to an aggregate term of imprisonment of thirty-five years, a fine of $1,000,000, and a special assessment of $800. Defendants-appellants Kearney and Celifie were each convicted of conspiracy to defraud the United States and money laundering, and Celifie was also convicted of structuring a financial transaction as part of a pattern of illegal activity. Kearney was sentenced to concurrent five-year terms of imprisonment on each count, to be followed by two years’ supervised release, a fine of $200,000, and a $100 special assessment. Celifie was sentenced, pursuant to a downward departure, to concurrent eighteen-month terms of imprisonment on each count, to be followed by two years’ supervised release, and a $150 special assessment. Defendant-appellant Anthony Jacobs, who pleaded guilty to conspiracy to distribute cocaine, conspiracy to defraud the United States, and distributing cocaine, was sentenced to 327 months’ imprisonment, to be followed by a five-year term of supervised release, and a special assessment of $200. This appeal and cross-appeal followed.
DISCUSSION
I. The Unfair Trial Claim.
Defendants-appellants Mickens, Kearney and Celifie claim that the district court’s admonitions to counsel and questions of witnesses deprived them of a fair trial. Defendants-appellants claim that the court “poisoned the courtroom atmosphere and prevented a fair trial.” We disagree.
While many of the court’s remarks were unfortunate, their cumulative effect was not a deprivation of the right to a fair trial. A trial judge “ ‘need not sit like a “bump on a log” throughout the trial.’ ” United States v. Bejasa, 904 F.2d 137, 141 (2d Cir.) (quoting United States v. Pisani, 773 F.2d 397, 403 (2d Cir.1985)), cert. denied, — U.S. -, 111 S.Ct. 299, 112 L.Ed.2d 252 (1990). As this Court recently stated:
Judges, being human, are not immune to feelings of frustration at the occasional antics or inartfulness of attorneys or impatience at the evasiveness of witnesses. Such feelings may give vent to remarks which, judged in isolation from the totality of the record through the dispassionate looking glass of hindsight, “would better have been left unsaid.” Yet, analysis of such comments, taken out of context of the entire record, is not the proper basis for review. Rather, we must make “an examination of the entire record,” in order to determine whether the defendant received a fair trial.
Id. at 141 (quoting United States v. Robinson, 635 F.2d 981, 985 (2d Cir.1980), cert. denied, 451 U.S. 992, 101 S.Ct. 2333, 68 L.Ed.2d 852 (1981), and United States v. Mazzilli, 848 F.2d 384, 389 (2d Cir.1988)). Viewing the record in the present case in its entirety, it is clear that defendants-appellants received a fair trial. The district court’s occasional intemperate remarks did not substantially taint defendants-appellants’ trial. It must be noted that these remarks were provoked to some extent by one defense counsel’s despicable verbal assault on the court. That attorney’s conduct was so egregrious that, after verdict, the court advised counsel that it intended to file a complaint with the Grievance Committee of the Eastern District of New York. Moreover, any possible prejudice to defendants-appellants was cured by the court’s cautionary instruction. See United States v. Bejasa, 904 F.2d at 141; United States v. Gurary, 860 F.2d 521, 527 (2d Cir.1988), cert. denied, 490 U.S. 1035, 109 S.Ct. 1931, 104 L.Ed.2d 403 (1989).
II. The Motion To Suppress.
Defendant-appellant Mickens argues that the district court erred in denying his motion to suppress evidence obtained in the warrant-authorized search of the Dix Hills residence. He claims that the warrant was issued on the basis of information gathered during an improper “protective sweep” of the residence, conducted by FBI agent Nerisa Pilafian in the process of arresting Mickens. Again, we disagree.
Law enforcement officers may conduct a protective sweep of a residence during the course of an arrest if they possess “a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 1099-1100, 108 L.Ed.2d 276 (1990). This standard was satisfied in the present case. The arresting officers had reason to believe that defendant-appellant Kearney and her mother—both of whom resided in the house—were on the premises. Moreover, as the district court found, "agents had reason to believe that Mickens was a drug dealer who was known to be violent and who travelled with others.” Thus, Agent Pilafian had a reasonable basis to conduct the protective sweep of the Dix Hills residence. See United States v. Escobar, 805 F.2d 68, 71-72 (2d Cir.1986); United States v. Jackson, 778 F.2d 933, 937 (2d Cir.1985), cert. denied, 479 U.S. 910, 107 S.Ct. 308, 93 L.Ed.2d 282 (1986). Moreover, the scope of Agent Pilafian’s protective sweep did not extend beyond the “cursory inspection” deemed proper by the Supreme Court. Buie, 110 S.Ct. at 1099. Accordingly, the district court properly refused to suppress the evidence yielded by the warrant-authorized search of the Dix Hills residence.
III. The Evidentiary Rulings.
A. The admission of threat evidence.
Defendant-appellant Mickens challenges the district court’s decision to permit Mickens’ former attorney to testify that Mickens had made a hand gesture in the shape of a gun as the former attorney entered the courtroom to testify. Mickens argues that this testimony lacked probative value and that the former attorney’s testimony that Mickens had pointed at the court, not at the attorney, was unduly prejudicial. This challenge lacks merit.
Evidence, such as the former attorney’s testimony, offered under Fed.R.Evid. 404(b) may be admitted if the court: 1) determines that the evidence is offered for “a purpose other than to prove the defendant’s bad character or criminal propensity,” United States v. Colon, 880 F.2d 650, 656 (2d Cir.1989); 2) determines that the evidence is relevant under Fed.R.Evid. 401 & 402, and is more probative than unfairly prejudicial under Fed.R.Evid. 403, id. (quoting United States v. Ortiz, 857 F.2d 900, 903 (2d Cir.1988), cert. denied, 489 U.S. 1070, 109 S.Ct. 1352, 103 L.Ed.2d 820 (1989)); and 3) provides an appropriate limiting instruction to the jury, if one is requested, id. (citing Huddleston v. United States, 485 U.S. 681, 691-92, 108 S.Ct. 1496, 1502, 99 L.Ed.2d 771 (1988), and United States v. Ortiz, 857 F.2d at 903).
In the present case, the standards for admission of Rule 404(b) evidence were satisfied. The testimony about the hand gesture was not offered to prove Mickens’ bad character or criminal propensity, but rather to prove his consciousness of guilt. See United States v. Bein, 728 F.2d 107, 114 (2d Cir.), cert. denied, 469 U.S. 837, 105 S.Ct. 135, 83 L.Ed.2d 75 (1984). The testimony was relevant since an effort to intimidate a key prosecution witness was probative of Mickens’ state of mind. Mickens argues that, because the testimony was that the threat was not directed at his former attorney, but at the court, the evidence should have been excluded under Rule 403. However, the fact that Mickens’ hand gesture was directed at the court does not disprove that he attempted to threaten the witness. Indeed, Mickens’ former attorney testified that he felt intimidated by the gesture. Moreover, only a preliminary hearing on the details of the witness’ proposed testimony would have avoided the unanticipated statement that Mickens’ gesture was directed at the court. While, in retrospect, such a preliminary hearing may have been helpful, it is simply not required by Rule 404(b). See Huddleston, 485 U.S. at 686-89, 108 S.Ct. at 1499-1501. We also note that Mickens’ acquittal of two counts of distributing cocaine belies the argument that admission of the threat evidence was unduly prejudicial to Mickens. In sum, the district court’s decision to admit the testimony about Mickens’ apparent threat was not an abuse of discretion. See United States v. Qamar, 671 F.2d 732, 736 (2d Cir.1982); see also United States v. Jamil, 707 F.2d 638, 642 (2d Cir.1983).
B. The evidence of a prior narcotics conviction.
Mickens contends that the district court erred in admitting evidence, pursuant to Fed.R.Evid. 404(b), of Mickens’ prior involvement in narcotics activity, including his 1983 conviction for possessing and selling cocaine. Defendant-appellant Kearney also argues that the court improperly admitted evidence that she visited Mickens while he was serving his prison term for the 1983 conviction. We reject both challenges.
Applying the standards discussed above, we hold that this evidence was properly admitted under Rule 404(b). Mickens’ pri- or involvement in narcotics activity was relevant to the prosecution’s tax evasion and money laundering theory that narcotics sales provided the cash which Mickens spent so lavishly. In addition, Kearney’s visits to Mickens while he was incarcerated were relevant to the second element of the money laundering charge, i.e., that Kear-ney knew that the laundered funds derived from an unlawful source. The district court’s judgment that the probative value of this evidence was not substantially outweighed by its potential prejudicial effect was not an abuse of discretion. See United States v. Smith, 727 F.2d 214, 220 (2d Cir.1984); United States v. Birney, 686 F.2d 102, 106 (2d Cir.1982). Moreover, the court provided a limiting instruction to the jury, informing them of the appropriate use of this evidence. See United States v. Ortiz, 857 F.2d at 903.
C. The in-court identification.
Defendant-appellant Mickens contends that the court erred in permitting various automobile salesmen to identify him in court because those witnesses were previously shown unduly suggestive photo arrays. This contention is unpersuasive.
The pre-trial photo array procedure which Mickens challenges was not “unduly suggestive of the suspect’s guilt.” Dickerson v. Fogg, 692 F.2d 238, 244 (2d Cir.1982). Mickens’ arguments notwithstanding, the fact that his picture was the only photocopy in the array is insignificant. Cf. United States ex rel. Cannon v. Montanye, 486 F.2d 263, 267 (2d Cir.1973), cert. denied, 416 U.S. 962, 94 S.Ct. 1982, 40 L.Ed.2d 313 (1974); United States v. Fernandez, 456 F.2d 638, 641 (2d Cir.1972). Indeed, this difference was so minor that the district court did not notice that Mick-ens’ picture was a photocopy until the defense pointed it out. See United States v. Archibald, 734 F.2d 938, 940 (2d Cir.1984); see also Jarrett v. Headley, 802 F.2d 34, 41 (2d Cir.1986). Even if Mickens’ argument was accepted, it would be of little import since Mickens does not contest his involvement in the transactions in which he was identified. Mickens’ defense is not mistaken identity, but that the various purchases were not made using the proceeds of narcotics activity. Accordingly, it was not error to permit the automobile salesmen who had spotted Mickens in the array to identify him in court.
IV. The Jury Instruction Claim.
Defendants-appellants Mickens, Kearney and Celifie contend that the district court’s instructions to the jury regarding the elements of money laundering, 18 U.S.C. § 1956, constructively amended the indictment against them. We disagree.
To prove a violation of section 1956, the government must establish that a financial transaction “involves the proceeds of specified unlawful activity.” 18 U.S.C. § 1956(a)(1) (emphasis added). The government is further required to demonstrate that the defendant knew that “the property involved in [the] financial transaction represents the proceeds of some form of unlawful activity.” Id. (emphasis added). The indictment counts charging defendants-appellants with money laundering, in pertinent part, stated:
[Defendants-appellants] did knowingly and wilfully conduct and attempt to conduct a financial transaction which involved the proceeds of a specified unlawful activity, to wit: narcotics distribution, knowing that the property involved in such financial transaction, to wit: United States currency, represented the proceeds of some form of unlawful activity and knowing that the transaction was designed in whole or in part to conceal and disguise the nature, the source, the ownership and the control of the proceeds of a specified unlawful activity.
Paralleling the indictment, the district court instructed the jury, inter alia:
The first element of the offense which the government must prove beyond a reasonable doubt is that the defendant you are considering in the count you are considering conducted or attempted to conduct a financial transaction involving property constituting the proceeds of specified unlawful activity, specifically, narcotics distribution.
sk sfc * sjs *
The second element of the offense which the government must prove beyond a reasonable doubt is that the defendant you are considering in the count you are considering knew that the property involved in the financial transaction was the proceeds of some form of an unlawful activity.
This instruction accurately stated the applicable law and conformed to the terms of the indictment.
The defendants-appellants focus, however, on the court’s explanation of the second element of section 1956. In this regard, the court instructed:
I instruct you that this [second] element refers to a requirement that the defendant knew the property involved in the transaction represented proceeds from some form, though not necessarily which form, of activity that constitutes a felony under state or federal law.
I instruct you as a matter of law that narcotics distribution is a felony, as is, for example, gambling.
Again, this instruction adheres to the indictment. Moreover, since the challenged instruction pertained only to the second element of section 1956, it did not enlarge the prosecution’s theory regarding the first element, i.e., that the laundered money represented proceeds from narcotics activity. Accordingly, defendants-appellants’ contention that the indictment charging them with violating section 1956 was constructively amended must be rejected. See United States v. Weiss, 752 F.2d 777, 787-88 (2d Cir.), cert. denied, 474 U.S. 944, 106 S.Ct. 308, 88 L.Ed.2d 285 (1985).
V. The Constitutionality of 31 U.S.C. § 5313.
Defendants-appellants Mickens and Celifie moved before the district court for the dismissal of indictment counts alleging violation of 18 U.S.C. § 1956(a)(l)(B)(ii) and 31 U.S.C. § 5324 (1988), claiming that the domestic currency transaction report (“CTR”) requirements giving rise to those charges are unconstitutional. Specifically, Mickens and Celifie argued that the CTRs required under 31 U.S.C. § 5313(a) (1988) violate the fifth amendment privilege against self-incrimination. The district court denied this motion, and defendants-appellants now challenge that denial. We reject this challenge.
The fifth amendment privilege against self-incrimination protects against governmental compulsion of self-incriminating testimonial communication. See Fisher v. United States, 425 U.S. 391, 397, 96 S.Ct. 1569, 1574, 48 L.Ed.2d 39 (1976); Couch v. United States, 409 U.S. 322, 328, 93 S.Ct. 611, 615, 34 L.Ed.2d 548 (1973). Section 5313(a) and its implementing regulations, 31 C.F.R. § 103.22 (1990), require financial institutions to report certain transactions. See United States v. St. Michael’s Credit Union, 880 F.2d 579, 581-82 (1st Cir.1989). Individuals, including defendants-appellants, are not themselves compelled to report their transactions. See United States v. Hoyland, 914 F.2d 1125, 1130 (9th Cir.1990). Absent such compulsion, Mickens, Kearney, and Celifie may not complain that their fifth amendment rights were violated. See Couch v. United States, 409 U.S. at 328, 93 S.Ct. at 616 (“The Constitution explicitly prohibits compelling an accused to bear witness ‘against himself’; it necessarily does not proscribe incriminating statements elicited from another.”); see also Hoyland, 914 F.2d at 1130.
Moreover, even if 31 U.S.C. § 5313(a) were construed to compel reporting by defendants-appellants, we would find no fifth amendment violation. Reporting requirements have been considered vio-lative of the fifth amendment if they “would almost necessarily provide the basis for criminal proceedings against [the reporting individual] for the very activity that he was required to disclose.” United States v. Dichne, 612 F.2d 632, 640 (2d Cir.1979), cert. denied, 445 U.S. 928, 100 S.Ct. 1314, 63 L.Ed.2d 760 (1980); see Grosso v. United States, 390 U.S. 62, 67-68, 88 S.Ct. 709, 713, 19 L.Ed.2d 906 (1968); Marchetti v. United States, 390 U.S. 39, 55-57, 88 S.Ct. 697, 706-07, 19 L.Ed.2d 889 (1968). By contrast, section 5313(a) is a legitimate reporting requirement which targets transactions without regard to the purposes for which they are undertaken. See Dichne, 612 F.2d at 639-41. Section 5313(a) does not require the reporting of information that would necessarily be criminal. Like the foreign CTR requirements considered in Dichne, section 5313(a)’s reporting requirements do not violate the fifth amendment privilege against self-incrimination. See United States v. Kaatz, 705 F.2d 1237, 1242 (10th Cir.1983); United States v. Keller, 730 F.Supp. 151, 156 (N.D.Ill.1990); United States v. Kimball, 711 F.Supp. 1031, 1032-34 (D.Nev.1989); United States v. Scanio, 705 F.Supp. 768, 778-79 (W.D.N.Y.1988).
VI. Anthony Jacobs’ Sentence.
Defendant-appellant Anthony Jacobs, who pleaded guilty to conspiracy to distribute cocaine, conspiracy to defraud the United States, and distributing cocaine, challenges the sentence imposed on him by the district court. He contends that his sentence, which exceeds twenty-seven years’ imprisonment, resulted from misapplication of the Sentencing Guidelines. We agree and, accordingly, remand to Chief Judge Platt for resentencing.
The district court’s computation of Jacobs’ offense level followed a two-step analysis in which, (1) the court approximated that the Mickens conspiracy distributed in excess of fifty kilograms of cocaine, based on Mickens’ unexplained income of over $2,000,000 during the operation of the conspiracy; and,- (2) the court attributed the full approximated amount distributed by the conspiracy to Anthony Jacobs. This quantity was added to the 24.4 grams of cocaine that Jacobs admitted to selling, and resulted in an offense level of 36. Matching Jacobs’ Criminal History Category I with this offense level resulted in a sentence range of 262 to 327 months. The court sentenced Jacobs to the high end of that range.
The district court’s initial step in calculating Jacobs’ sentence was proper, as the commentary to the Guidelines reveals:
Where ... the amount [of drugs] seized does not reflect the scale of the offense, the sentencing judge shall approximate the quantity of the controlled substance. In making this determination the judge may consider, for example, the price generally obtained for the controlled substance, financial or other records....
U.S.S.G. § 2D1.4, application note 2. In theory, the court’s second step was also proper. Pursuant to Guidelines § 1B1.3, one convicted of a narcotics conspiracy may be sentenced on the basis of “conduct of others in furtherance of the execution of the jointly-undertaken criminal activity that was reasonably foreseeable by the defendant.” U.S.S.G. § 1B1.3, application note 1; see United States v. Schaper, 903 F.2d 891, 897-99 (2d Cir.1990); United States v. Candito, 892 F.2d 182, 185 (2d Cir.1989). However, as applied to Jacobs, attribution of the full approximated amount of cocaine distributed by the Mickens conspiracy was improper. See United States v. Cardenas, 917 F.2d 683, 687 (2d Cir.1990). As Jacobs contends, such attribution
unfairly [holds him] accountable for the narcotics equivalent of four years’ worth of unreported income of another, whose funds may have been accumulated at any prior time, and may have come from any source—including Mickens’ independent, personal transactions in the early 1980’s ..., or some other narcotics conspiracy in which Mr. Jacobs played no part, or even from some altogether different activity such as gambling.
Absent reliable evidence connecting Jacobs to the quantity of narcotics extrapolated from Mickens’ unreported income, Jacobs’ 327-month sentence is unsupportable. Moreover, ascribing “managerial” status to Jacobs without conducting a hearing— something which the probation department and prosecution originally agreed was necessary—was erroneous. See United States v. Lanese, 890 F.2d 1284, 1293 (2d Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 2207, 109 L.Ed.2d 533 (1990).
VII. Bettina Jacobs Celifie’s Sentence.
In sentencing defendant-appellant, cross-appellee Bettina Jacobs Celifie to a term of imprisonment of eighteen months, the district court downwardly departed twenty-three months from the applicable sentencing range. The government cross-appeals from that sentence, contending that the departure was improperly based on Celi-fie’s acceptance of responsibility and on the request for leniency made by the jury in announcing its guilty verdict. We agree and remand to Chief Judge Platt for resen-tencing.
A sentencing court may downwardly depart if it finds “an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines.” 18 U.S.C. § 3553(b) (1988). Whether a particular factor is a permissible ground for departure is a legal issue, which we review de novo. United States v. Joyner, 924 F.2d 454, 459 (2d Cir.1991); United States v. Barone, 913 F.2d 46, 50 (2d Cir.1990). “Departure authority, though not designed to prevent a sentencing judge from exercising ‘discretion, flexibility or independent judgment,’ is nonetheless a device for implementing the guideline system, not a means of casting it aside.” United States v. Joyner, at 460 (quoting United States v. Lara, 90S F.2d 599, 604 (2d Cir.1990)).
In the present case, the district court apparently believed that the two-point reduction awarded for Celifie’s acceptance of responsibility, U.S.S.G. § 3E1.1, did not adequately reflect the degree of her contrition. We do not foreclose the possibility that this rationale may, in an appropriate case, support a downward departure. However, in sentencing Celifie, the district court made no finding that the circumstances justified a departure for Ce-lifie beyond the two-point reduction she received under the guidelines.
Moreover, the court erred in relying on the jury’s recommendation of leniency for Celifie as a basis for downward departure. Sentencing decisions are solely the province of the judge. See United States v. Romo, 914 F.2d 889, 895 (7th Cir.1990); see also United States Sentencing Commission, Guidelines Manual, Introduction (Nov. 1990) (“Pursuant to the [Sentencing Reform] Act, the sentencing court must select a sentence from within the guideline range.”) (emphasis added). The jury’s sympathy for Celifie may reflect circumstances that the court could appropriately consider in granting a downward departure. However, reliance on the jury’s request for lenient sentencing treatment of Celifie, without more, is an insufficient basis to justify a downward departure.
CONCLUSION
We have examined each of defendants-appellants’ remaining arguments and find them to be without merit. In light of the foregoing, the district court’s judgment is affirmed in part, reversed in part, and remanded to Chief Judge Platt.
. Chief Judge Platt charged:
During the course of the trial, I have had to admonish or reprimand attorneys on both sides of the case because I did not believe that what one or more of them was doing was proper. You should draw no inference against an attorney or his or her client.... It is irrelevant whether you like a lawyer or whether you believe I like a lawyer. The issue before you is not which attorney is more likeable or the better attorney. The issue is whether or not the government has sustained its burden of proof.
The fact that the Court has asked one or more questions of a witness for clarification or admissibility of evidence purposes is not to be taken by you in any way as indicating that the Court has any opinion as to the guilt or lack thereof of a defendant in this case, and you are to draw no such inference therefrom. That determination is up to you, and you alone, based on all of the facts in this case and the applicable law in these instructions.
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 31? Answer with a number.
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.
INDEPENDENT COMMUNITY BANKERS ASSOCIATION OF SOUTH DAKOTA, INC., Petitioner, v. BOARD OF GOVERNORS OF the FEDERAL RESERVE SYSTEM, Respondent, Michigan National Corporation, Intervenor.
No. 86-5373.
United States Court of Appeals, Eighth Circuit.
Submitted May 11, 1987.
Decided Jan. 28, 1988.
R.G. Schmidt, Pierre, S.D., for petitioner.
James E. Scott, Washington, D.C., for respondent.
Before HEANEY and BOWMAN, Circuit Judges, and FLOYD R. GIBSON, Senior Circuit Judge.
HEANEY, Circuit Judge.
Independent Community Bankers Association of South Dakota, Inc. (ICBA) seeks review of an order of the Board of Governors of the Federal Reserve System (Board). This order approved the application of Michigan National Corporation (MNC) to establish and acquire the shares of a new national bank in Rapid City, South Dakota. We reverse the decision of the Board.
I
MNC is a bank holding company as defined in the Bank Holding Company Act of 1956, 12 U.S.C. §§ 1841-48, with some twenty subsidiary banks in Michigan and 6.1 billion dollars in domestic deposits. On June 9, 1986, it submitted an application to the Board to establish and acquire a national bank in Rapid City pursuant to 12 U.S.C. § 1842. In its application, MNC stated that it sought to acquire the bank in order to transfer its consumer credit card operations to South Dakota. In passing upon the application, the Board assumed that the transfer was motivated by MNC’s desire to take advantage of the fact that South Dakota had repealed its usury statute.
Central to the Board’s approval of the application was its interpretation of section 3(d) of the Bank Holding Company Act, 12 U.S.C. § 1842(d). The section, commonly known as the “Douglas Amendment”, allows the Board to approve an application by an out-of-state bank holding company to acquire a bank located outside of the state in which it principally conducts its operations. The Board may approve such an acquisition only if the law of the state in which the acquired bank is located specifically authorizes such acquisitions.
In 1980, South Dakota enacted legislation to provide the authorization required by the Douglas Amendment. The authorization, however, is not an unrestricted invitation to do business. New banks acquired by out-of-state bank holding companies are limited to one office. This office is to be located and operated in “a manner not likely to attract customers from the general public in the state to the substantial detriment of existing banks in the state.” S.D. Codified Laws Ann. § 51-16-41. In addition, an acquisition authorized by the statute must be approved by the South Dakota Banking Commission, “subject to such conditions as the commission deems necessary, and to the commission’s continuing authority to ascertain the bank holding company’s compliance with the [authorizing statute] and the conditions of approval.” S.D. Codified Laws Ann. § 51-16-42.
In an order dated September 15, 1986, the Board approved MNC’s application to acquire the new South Dakota bank. In doing so, the Board rejected objections raised by ICBA that the Douglas Amendment does not authorize states to permit out-of-state bank holding companies to acquire national banks. Alternatively, ICBA argued that even if the amendment authorizes states to permit such acquisitions, it does not allow them to condition permission on compliance with state regulation by the acquired bank. ICBA raises these arguments on appeal.
II
ICBA contends that the Douglas Amendment does not authorize a state to permit an out-of-state bank holding company to acquire a national bank. We disagree. In Independent Community Bankers Association of South Dakota, Inc. v. Board of Governors of the Federal Reserve System, 820 F.2d 428 (D.C.Cir.1987), a case involving an identical factual situation, the Court of Appeals for the District of Columbia examined the Douglas Amendment and its legislative history. It found that the amendment contains two operative provisions. The first absolutely prohibits the Board from approving the acquisition of any additional bank, state or national, located outside of the home state of the applicant bank holding company. Id. at 433. This provision reads:
[N]o application shall be approved under this section which will permit any bank holding company or any subsidiary thereof to acquire, directly or indirectly, any voting shares of, interest in, or all or substantially all of the assets of any additional bank located outside of the State in which the operations of such bank holding company's banking subsidiaries were principally conducted on July 1,1966, or the date on which such company became a bank holding company whichever is later[.]
12 U.S.C. § 1842(d).
The Court found that the remainder of the provision modifies the first part of the section. This provision states:
[U]nless the acquisition of such shares or assets of a State bank by an out-of-State bank holding company is specifically authorized by the statute laws of the State in which such bank is located, by language to that effect and not merely by implication.
Id.
ICBA argued to the Court of Appeals for the District of Columbia and argues to this Court that the latter clause provides an exception to the first that, by its terms, is applicable only to state banks and not to national banks. In contrast, the Board contends that authorization under the second clause completely suspends the operation of the first. That is, if a state permits interstate bank acquisitions of state chartered banks, the lifting of the first clause’s prohibition provides for similar treatment for national banks.
With respect to this issue the D.C. Circuit stated:
The plain meaning of the Amendment in its entirety supports the Board’s reading. By its terms, the first clause of the Amendment prohibits the interstate acquisition of both state and national banks. The second clause provides the carte blanche prohibition stands unless the state permits the interstate acquisition of “such shares or assets of a State bank.” The ordinary meaning of this language compels the conclusion that the entire prohibition lifts upon the state’s authorization of interstate acquisition of a “State bank” located within its borders. The “unless” clause describes the triggering event that lifts the general prohibition with respect to all banks — “any additional bank” — located in the state. The Douglas Amendment need not specifically mention “national bank” in order to have this effect. Nor need the state specifically authorize the acquisition of national banks. In fact, the Douglas Amendment renders superfluous a state statute’s authorization of interstate acquisitions of nationally chartered banks located in the state. Such state “authorization” would, in any event, be meaningless. Bank holding companies and nationally chartered banks are organized pursuant to federal law and the power of either to acquire or be acquired is governed by federal law.
Independent Community Bankers Association of South Dakota, Inc., 820 F.2d at 433-34 (emphasis in original).
In addition, the D.C. Circuit examined the legislative history of the Douglas Amendment and found that it, like the McFadden Act, 12 U.S.C. § 36, which served as a model, sought to ensure that national banks would be treated on a par with state banks with respect to acquisitions by out-of-state bank holding companies. Id. at 435.
We agree with the D.C. Circuit and hold that “the Douglas Amendment permits the approval of an out-of-state bank holding company’s acquisition of an in-state national bank if the state in which the national bank is located has authorized the interstate acquisition of local state chartered banks.” Id.
Ill
Alternatively, ICBA argues that even if South Dakota may permit acquisition of local banks (either state or national) by out-of-state bank holding companies, it may not condition the permission on compliance with state regulations limiting the banking activities of the acquired local bank. We agree.
The Board argues that South Dakota’s regulation of the activities of a bank acquired by an out-of-state bank holding company is permissible because Congress, through the Douglas Amendment, has either expressly incorporated the South Dakota restrictions into the federal law or has authorized them. Specifically, the Board contends that the authority given the states to lift the federal prohibition of interstate acquisitions found in the latter clause of the Douglas Amendment necessarily gives states the authority to enact statutes conditioning permission on restriction of the operations of the acquired banks.
In support of its position, the Board cites Northeast Bancorp, Inc. v. Board of Governors of the Federal Reserve System, 472 U.S. 159, 105 S.Ct. 2545, 86 L.Ed.2d 112 (1985). In Northeast, the Supreme Court considered a state Douglas Amendment statute authorizing local banks (state and national) to be acquired by out-of-state bank holding companies provided the out-of-state bank holding company is located within a defined region and provided the state in which the holding company is located has passed a reciprocal authorizing provision. The Court held that the Douglas Amendment contains implicit authority for states to permit acquisitions on a limited or conditional basis. As the Court stated, “Congress contemplated that some States might partially lift the ban on interstate banking without opening themselves up to interstate banking from everywhere in the nation.” Id. at 172, 105 S.Ct. at 2553, 86 L.Ed.2d at 124.
It is important to note, however, that Northeast did not involve the issue of a state’s ability to restrict the activities of an acquired bank once it has been given permission to do business in the state. In other words, although the Court determined that Congress intended to give states flexibility in determining whether to allow interstate acquisitions, it did not address the question of restrictions on the activities of acquired banks as a condition of permission to do business.
In contrast, in Lewis v. BT Investment Managers, Inc., 447 U.S. 27, 100 S.Ct. 2009, 64 L.Ed.2d 702 (1980), the Supreme Court struck down a Florida statute prohibiting out-of-state bank holding companies from engaging in certain non-bank activities. In so holding, the Court rejected the state’s argument that its statute was authorized by the Douglas Amendment. It stated:
We conclude that § 3(d) offers scant support for the portions of [the Florida statute] subject to challenge in this proceeding. Preliminary [sic] it is doubtful that § 3(d) authorizes state restrictions of any nature on bank holding company activities. The language of the statute establishes a general federal prohibition on the acquisition or expansion of banking subsidiaries across state lines. The only authority granted to the States is the authority to create exceptions to this general prohibition, that is, to permit expansion of banking across state lines where it otherwise would be federally prohibited. Furthermore, the structure of the Act reveals that § 3(d) applies only to holding company acquisitions of banks. Nonbanking activities are regulated separately in § 4, which does not contain a parallel provision.
Id. 447 U.S. at 47, 100 S.Ct. at 2021.
Additionally, the D.C. Circuit has expressly addressed the restrictions imposed by the South Dakota statute on the activities of banks acquired by out-of-state bank holding companies. The Court stated:
We can locate no grounds for declaring that the Douglas Amendment authorizes state regulation of the operations of national banks acquired pursuant to the state’s “Douglas Amendment” statutes. Neither the Douglas Amendment nor its legislative history speaks to this question, and no court has broached the issue. The Board’s notion of congressional authorization returns us to the nettlesome problem posed by the potential conflict between state-imposed conditions and federal banking law. If we find that Congress granted the states the authority to impose conditions on national banks, then the effect will be to nullify federal banking laws and to regulate an increasing number of national banks in a manner that is repugnant to federal policies. In other words, the Douglas Amendment would operate as an implied statutory repeal of many important federal banking laws. * * * “It is ... a cardinal principle of statutory construction that repeals by implication are not favored.” Generally, courts will not find repeals by implication unless legislative intent to repeal is “clear and manifest.” Neither the language of the Amendment nor its legislative history indicates an intention to abrogate extant federal banking law governing bank holding companies and their subsidiary nationally chartered banks. We therefore decline to hold that Congress created, through the Douglas Amendment, the specific authority for South Dakota to impose restrictions on national banks.
Independent Community Bankers Association of South Dakota, Inc., 820 F.2d at 438 (citations omitted).
We agree with the D.C. Circuit that the Douglas Amendment neither incorporates nor authorizes the South Dakota statute restricting the operations of acquired national banks. Thus, if the South Dakota statute is to survive scrutiny, it must be within the authority of the state to enact.
The Board contends that even in the absence of congressional authority, South Dakota may regulate the operations of acquired banks so long as the regulation is not contrary to federal law. We note that prior to passage of the Douglas Amendment, states enjoyed some power to regulate national banks. See Davis v. Elmira Savings Bank, 161 U.S. 275, 278, 16 S.Ct. 502, 503, 40 L.Ed. 700 (1896) (“It is certain that, insofar as not repugnant to acts of Congress, the contracts and dealings of national banks are left subject to the state law”); Independent Community Bankers of South Dakota, 820 F.2d at 438. Yet as the Supreme Court has stated:
National banks are instrumentalities of the Federal government, created for a public purpose, and as such necessarily subject to the paramount authority of the United States. It follows that an attempt by a state to define their duties or control the conduct of their affairs is absolutely void, wherever such attempted exercise of authority expressly conflicts with the laws of the United States, and either frustrates the purpose of the national legislation, or impairs the efficiency of these agencies of the Federal government to discharge the duties for the performance of which they were created.
Davis, 161 U.S. at 283, 16 S.Ct. at 503.
We agree with the D.C. Circuit that even in considering purely legal issues, courts should grant great deference to the reasonable interpretations of statutes by the agencies charged with administering those statutes. See Independent Community Bankers of South Dakota, Inc., 820 F.2d at 439, see also Board of Governors of the Federal Reserve System v. Investment Company Institute, 450 U.S. 46, 56-57, 101 S.Ct. 973, 981-82, 67 L.Ed.2d 36 (1981). This is particularly true if the interpretation involves a technical area that is highly specialized and requires coordinated management in all its phases. Investment Company Institute, 450 U.S. at 56 n. 21, 101 S.Ct. at 982 n. 21.
In finding that the proposed acquisition is authorized by state law the Board cited three sources for support. First, it found that the South Dakota Banking Commission concluded that the proposed acquisition met the requirements of the South Dakota statute. Second, it relied on its prior decision in First City Bancorporation of Texas, Inc., 71 Federal Reserve Bulletin 716 (1985). Finally, it cited a July 31, 1986 letter of the Comptroller stating, “to date, the South Dakota law has not required that national banks restrict their activities in a manner which is unsafe or unsound or otherwise in conflict with the purposes of the National Bank Act.” Each of these authorities presumes that the South Dakota authorizing statute is a valid exercise of state power. Indeed in a prior decision, the Board considered whether the South Dakota authorizing statute is consistent with the Commerce Clause and presumed it valid on its face. Citicorp, 67 Federal Reserve Bulletin 181 n. 4 (1981).
Thus, it, appears that in this case the Board presumed the limitations on the activities of the acquired bank are authorized by the Douglas Amendment and presumed they are consistent with the Commerce Clause. Cf. Iowa Independent Bankers v. Board of Governors of the Federal Reserve System, 511 F.2d 1288, 1293 n. 4 (D.C.Cir.1975) (“we feel constrained to register our substantial doubt that the Board can continue to presume conclusively the constitutional validity of state or federal laws in light of the Supreme Court’s opinion in Whitney National Bank in Jefferson Parish v. Bank of New Orleans & Trust Co., 379 U.S. 411, 85 S.Ct. 551, 13 L.Ed.2d 386 (1965)”).
More importantly, the Board’s finding, insofar as it is based on the constitutional validity of the South Dakota authorizing statute, is subject to de novo review by this Court. Thus, although this Court should grant great deference to the Board’s interpretation of national banking law, Board of Governors of the Federal Reserve System v. Investment Company Institute, 450 U.S. 46, 56-57, 101 S.Ct. 973, 981-82, 67 L.Ed.2d 36 (1981), that deference should not deter us from correcting the Board when its decision rests on an erroneous presumption concerning the resolution of an important constitutional issue.
The crux of this case is that South Dakota seeks to provide its citizens with the jobs and benefits a large national credit card operation can provide (attracted by the ability to export limitless credit card interest rates to other states) while protecting its local banks (both state and national) from the competition such national credit card banks could pose. In this regard, the Lewis case is instructive. In Lewis, the Court found that the statute at issue was “parochial” in the sense that it prevented “out-of-state firms with the kinds of resources and business interests that make them likely to attempt de novo entry” from competing in local markets. Lewis, 447 U.S. at 39, 100 S.Ct. at 2017. The Court went on to state:
With regard to the asserted interest in promoting local control over financial institutions, ... [i]n almost any Commerce Clause case it would be possible for a State to argue that it has an interest in bolstering local ownership, or wealth, or control of business enterprise. Yet these arguments are at odds with the general principle that the Commerce Clause prohibits a State from using its regulatory power to protect its own citizens from outside competition.
Lewis, 447 U.S. at 44, 100 S.Ct. at 2019 (citations omitted).
In short, the Court found that it did not have to determine whether the Florida statute at issue was invalid as a per se violation of the Commerce Clause because it “discriminates among affected businesses according to the extent of;their contacts with the local economy,” id., 447 U.S. at 42, 100 S.Ct. at 2018, or whether, under the more permissive test, the statute could not be justified because, “the disparate treatment of out-of-state bank holding companies cannot be justified as an incidental burden necessitated by legitimate local concerns.” Id. We likewise find that the South Dakota statute here at issue fails under either standard because the restrictions it imposes on an out-of-state bank holding company’s ability to compete in local markets are precisely the type of “parochial” regulations the Commerce Clause prohibits.
In addition, the legislative history of the Douglas Amendment leads to a conclusion consistent with the Commerce Clause analysis. In pointing out the analogy between his amendment and the McFadden Act, 12 U.S.C. § 36(c), Senator Douglas stated during the floor debate:
[WJhat our amendment aims to do is to is to carry over into the field of holding companies the same provisions which already apply for branch banking under the McFadden Act — namely, our amendment will permit out-of-State holding companies to acquire banks in other States only to the degree that State laws expressly permit them; and that is the provision of the McFadden Act.
102 Cong. Rec. 6860 (1956) (remarks of Senator Douglas).
Thus, both the McFadden Act and the Douglas Amendment represented a compromise between federal and state interests in banking regulation. Under the terms of the compromise, states would remain free to regulate local banks with respect to acquisition by holding companies and branch banking, but federal law would require all banks within the state to be in a position of competitive equality whether they have been acquired by a local or out-of-state bank holding company or whether the acquired bank is state or federal. Cf. First National Bank v. Walker Bank & Trust Co., 385 U.S. 252, 258, 87 S.Ct. 492, 496, 17 L.Ed.2d 343 (1966) (national banks subject to the same branching restrictions as state banks). Such competitive equality is consistent with the dictates of the Commerce Clause.
Thus, we hold, as the Supreme Court did in the context of section 7 of the Bank Holding Company Act, that the Douglas Amendment only permits States to enact authorizing statutes that fall within the boundaries of the Commerce Clause. See Lewis, 447 U.S. at 49, 100 S.Ct. at 2022. Since the South Dakota statute here at issue falls outside of the boundaries of the Commerce Clause, any interpretation of federal banking law by the Board or the Comptroller of the Currency allowing approval of an application pursuant to such a state statute is unreasonable. Accordingly, we reverse the decision of the Board approving MNC’s application and remand to the Board with directions to withhold approval until such time as the State of South Dakota may modify its authorizing statute so as to bring it into conformity with federal law.
. Under the Supreme Court’s decision in Marquette National Bank v. First of Omaha Serv. Corp., 439 U.S. 299, 99 S.Ct. 540, 58 L.Ed.2d 534 (1978), the interest rate a bank may charge on credit card loans is regulated by the law of the state in which the bank is located regardless of residence of the cardholder. Thus, by moving its credit card operations to South Dakota, the interest rate MNC may charge on its credit card loans will be essentially unregulated.
. The section states:
Notwithstanding any other provision of this section, no application * * * shall be approved under this section which will permit any bank holding company or any subsidiary thereof to acquire, directly or indirectly, any voting shares of, interest in, or all or substantially all of the assets of any additional bank located outside of the State in which the operations of such bank holding company’s banking subsidiaries were principally conducted on July 1, 1966, or the date on which such company became a bank holding company, whichever is later, unless the acquisition of such shares or assets of a State bank by a bank holding company is specifically authorized by the statute laws of the State in which such bank is located, by language to that effect and not merely by implication. For the purposes of this section, the State in which the operations of a bank holding company’s subsidiaries are principally conducted is that State in which total deposits of all such banking subsidiaries are largest.
12 U.S.C. § 1842(d).
.S.D. Codified Laws Ann. § 51-16-40 states:
Subject to the provisions of this chapter and to the approval of the banking commission, a bank holding company, as defined in the Bank Holding Company Act of 1956, as amended, 12 U.S.C. Sec. 1841, et seq., the principal place of business of whose banking subsidiaries is located outside the state,
(a) May acquire all or substantially all of the shares of a single new bank which is established under the laws of this state and which has minimum total capital of five million dollars and a single new national bank which is to be located in this state and which has minimum total capital of five million dollars, and;
(b) May acquire all or substantially all of the shares of a single existing bank which is established under the laws of this state.
The acquisition of any bank by a corporation that is not a bank holding company is subject to the approval of the state banking commission pursuant to § 51-16-42.
. The statute states in relevant part:
Any bank the shares of which are acquired under the authority of [the authorizing statute] shall be limited to a single banking office and such bank may not acquire, establish, share or maintain any additional banking office or remote service unit whether by merger, consolidation or otherwise. In the case of a new bank, the shares of which are acquired under the authority of [the authorizing statute] such single banking office shall be operated in a manner and at a location which is not likely to attract customers from the general public in the state to the substantial detriment of existing banks in the state.
MNC has indicated that it will comply with the dictates of the South Dakota statute. In response to a request for additional information by a senior examiner of the Federal Reserve Bank of Chicago, MNC stated:
The proposed Bank will be located at 430 Main Street, Rapid City, South Dakota, which as a location is not likely to attract the general public to the substantial detriment of existing banks. * * *
It is our intention to make it relatively inconvenient for customers to transact traditional banking services with the Bank. For instance, the teller windows for the banking organization will be located in the basement of the building. Recently, the South Dakota Banking Commission found in its approval for the acquisition by Michigan National Corporation of Independence One Bank, National Association, that the banking office of the Bank is not likely to attract the general public to such substantial detriment of the existing bank.
Designated Record at 92.
. On April 23, 1986, MNC submitted a proposal to the South Dakota Banking Commission. On June 16, 1986, the Commission issued a decision concluding that MNC’s proposal met the requirements for approval set forth in the relevant South Dakota statutes.
. In this appeal, ICBA challenges the Board’s construction of the Douglas Amendment as authorizing state statutes that condition the specific state permission required by the Douglas Amendment on compliance by acquired banks with state imposed restrictions on their activities. ICBA argues that such a construction is contrary to federal law. Since, as the Board recognizes, the immunity of the South Dakota authorizing statute from attack as violative of the dormant Commerce Clause of the United States Constitution in large part turns upon the authority given states to pass such statutes by the Douglas Amendment, we requested and received supplemental briefs from the parties on the issue.
. The Board suggests that statements in Lewis regarding § 3(d), 12 U.S.C. § 1842(d), are inap-posite because the case dealt with restrictions on the in-state non-banking activities of out-of-state bank holding companies which are expressly regulated by § 4 of the Act, 12 U.S.C. § 1843. While the case could have been decided on the ground that § 4 of the Act does not authorize the restrictions imposed by the state statute, we do not read it so narrowly. Rather, the case expresses alternative positions either one of which could provide a rationale for the decision in the case.
. In recognition of the Board’s expertise, Congress, under 12 U.S.C. § 1842(a), has given the Board exclusive original jurisdiction to pass upon a proposed acquisition of a bank (existing or newly formed) by a bank holding company. See, e.g., Whitney National Bank v. Bank of New Orleans and Trust Company, 379 U.S. 411, 85 S.Ct. 551, 13 L.Ed.2d 386 (1965). If the acquired or acquiring bank is to be a national banking institution, the Board must also notify the Comptroller and consider its views and recommendations. 12 U.S.C. § 1842(b). Finally, in addition to other considerations not here relevant, the Board may not approve the acquisition of a bank by an out-of-state bank holding company unless the acquisition is authorized by the law of the acquired bank’s state. 12 U.S.C. § 1842(d) (the Douglas Amendment).
. The Board also argues to this Court that it is entitled to give weight to prior rulings of the Comptroller of the Currency which have routinely approved the charter of national “credit card” banks under state statutes similar to South Dakota’s and have found that such statutes do not violate national banking law. See, e.g., First Kentucky National Corp., 70 Fed. Res. Bull. 434 (1984); Provident National Corp., 68 Fed. Res. Bull. 260 (1982); Citicorp, 67 Fed. Res. Bull. 181 (1981).
. Indeed, to hold otherwise could well lead to parochial state legislation even more onerous than that at issue in this case. For example, Delaware has enacted a statute similar to South Dakota's with the exception that it contains an additional requirement. The Delaware statute authorizes an acquisition only if:
The bank whose stock is to be acquired employs on the date of commencement of its banking business in this State or will employ within 1 year of such date not less than 100 persons in this State in its business and, if the stock of a second bank is acquired, that bank, together with its "affiliates" as that term is defined in subchapter V of this title, will employ within 1 year of its commencement of business in this State at least 200 persons within the State.”
In sum, there must be a limit to the restrictions a state may place on the activities of an acquired bank. As the Supreme Court stated:
[T]here [can be no] serious question that an individual state acting entirely on its own authority would run afoul of the dormant Commerce Clause if it sought to comprehensively regulate acquisitions of local banks by out-of-state holding companies.
Northeast Bancorp, 472 U.S. at 174, 105 S.Ct. at 2554, 86 L.Ed.2d at 125.
. Pursuant to 12 U.S.C. § 1848 the Court may, "affirm, set aside, or modify the order of the Board, and ... require the Board to take such action with regard to the matter under review as the court deems proper.”
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
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.
In the matter of the complaint of the UNITED STATES of America, Appellant, for exoneration from or limitation of liability as owner of the Coast Guard Vessel, CG 40427, v. STANDARD OIL COMPANY OF CALIFORNIA, Appellee. In the matter of the complaint of the UNITED STATES of America (etc.), Appellee, v. STANDARD OIL COMPANY OF CALIFORNIA, Appellant. In the matter of the complaint of STANDARD OIL COMPANY OF CALIFORNIA, Appellant, for exoneration from or limitation of liability as owner of the tugboat “Standard No. 4,” and the barge “S.O.C.O. No. 18.” v. UNITED STATES of America, Appellee.
Nos. 72-1040, 72-1120 and 72-1121.
United States Court of Appeals, Ninth Circuit.
April 18, 1974.
Allan J. Weiss (argued), Admiralty & Shipping Section, U. S. Dept, of Justice, San Francisco, Cal., for appellant-cross appellee.
Noble K. Gregory (argued), of Pillsbury, Madison & Sutro, San Francisco, Cal., for appellee-cross appellant.
Before KOELSCH, BROWNING and CHOY, Circuit Judges.
OPINION
CHOY, Circuit Judge:
Standard Oil Company of California (Standard) and the United States each filed petitions in the district court seeking exoneration from, or limitation of, liability for the results of a disastrous gasoline fire in San Francisco Bay. Jurisdiction in personam for these petitions was based on 46 U.S.C. §§ 181-195 (1970) providing for the limitation of a vessel owner’s liability, and the Admiralty Act, id. §§ 741-752 and Public Vessels Act, id. §§ 781-790 which afford the same remedies against the United States as against private carriers. Following a court trial on the Government’s petition, the district court, sitting in admiralty, issued a final decree determining both parties to be equally and mutually at fault in causing the fire. The United States appeals from this judgment, while Standard cross-appeals from a later decree denying it contribution from the United States for certain claims filed only against Standard. We affirm the district court’s determination of mutual liability, but reverse its decision denying Standard any right of contribution.
Facts
On the evening of September 26, 1966, Standard’s Barge No. 18 was loaded at the company’s refinery in Richmond, California with some 989,730 gallons of various grades of gasoline. Standard’s Tug No. 4 was then brought into position and secured to the stern saddle of the barge for departure from Richmond to Pier 64 in the Central Basin area of San Francisco Bay where the gasoline was to be off-loaded at the Standard storage area. Between 10:45 and 11:00 p. m. as the vessels arrived at Central Basin, Tug No. 4 had mechanical difficulty in reversing its engines which prevented it from navigating and stopping in the usual manner. This forced the master of the tug, Captain Autiere, to ground the barge on an abandoned launching ramp in the southwest corner of the basin. An angle iron and drift pins attached to pilings at the ramp punctured the No. 1 port tank of the barge, and gasoline began to leak into the waters of the bay. The tug failed in its attempts to extricate the barge.
Sometime beween 11:00 and 11:30 p. m. that evening, the radio operator on duty at the United States Coast Guard’s Captain of the Port office heard a message over the “tug circuit” about a gasoline spill in the bay. The “tug circuit” is a private radio communications circuit utilized by various tug and barge operators i*n San Francisco Bay. The Captain of the Port has equipment to monitor this circuit, as well as to communicate over it in case of emergency to control vessels. This circuit is in addition to the Coast Guard’s own radio circuit which the Captain of the Port uses to communicate with other Coast Guard stations in the bay area. The radio operator reported the information concerning the spill to the Coast Guard duty officer, who took no action at that time.
About ten minutes later, the Captain of the Port’s office received a telephone call reporting a gasoline leak from Standard’s Tug No. 4 in the Central Basin. After the San Francisco Fire Department was notified, Chief Petty Officer Day, the duty officer representing the Captain of the Port, ordered Coast Guard patrol boat CG 40427, which was docked at a nearby pier, to go into the area to investigate. CG 40427, a 40-foot steel-hulled utility vessel equipped with two water cooled diesel engines, was under the operational command of the Captain of the Port. Arriving in the Central Basin about 12:05 a. m., Coxswain Bush, who was in command of the vessel, noticed that the Fire Department was already at the scene on Pier 64 with a fire truck and firemen spraying the surface in order to break up the gasoline. The concentration of gasoline was extremely heavy by then, with pronounced fumes and vapor rising like a fog some three feet from the surface. This situation was reported by radio to Officer Day, who then ordered CG 40427 to proceed to the nearby Bethlehem Shipyards and stop the continuing of any burning operations. When this was accomplished, Day ordered the patrol boat to investigate the cause and magnitude of the spill. CG 40427 proceeded over the gasoline-covered surface alongside the tug and barge. Coxswain Bush went aboard the barge, determined the amount of gasoline lost from the No. 1 port tank — eventually some 25,000 gallons — and that all other tanks appeared intact. After reporting these facts to Day, he requested and was given permission to withdraw from the area.
Shortly, the Captain of the Port’s office began to have difficulty maintaining radio contact with CG 40427, although the tug circuit remained clear. At 12:34 a. m. Officer Day departed by automobile from his office to the Central Basin to make a personal inspection. He arrived about twenty minutes later and ordered CG 40427 to take him to the stricken barge. The patrol boat again traversed the gasoline-covered waters to the two stranded vessels. Day boarded the barge and discussed with the tanker-man the feasibility of transferring gasoline from the ruptured tank to the undamaged tanks. When informed that this could be done in about ten minutes, Officer Day boarded the tug and told Captain Autiere not to attempt to move the barge because of the danger of tearing open the other tanks. Returning to CG 40427, Officer Day ordered it to return to Pier 64.
As Officer Day was leaving the pier by automobile, he noticed that the recently-arrived Standard Tug No. 2 had passed a tow line to the immobilized tug to pull the barge off the ramp. Using his car radio, he ordered CG 40427 to stop Tug No. 2 and to proceed back to Tug No. 4 to obtain the tug captain’s name and license number for an oil pollution form. The patrol boat went alongside Tug No. 2 and ordered it not to pull the barge. The tug complied and moved about 75 to 100 yards out of the area. CG 40427 then returned to Tug No. 4 and tied up port side to its starboard quarter with engines left idling. The coxswain boarded the tug to obtain Au-tiere’s license number, but when the captain said he did not have his license there, Bush returned to CG 40427 to radio Day and ask if this information might be telephoned in the morning. Unable to reach Officer Day, Coxswain Bush was just about to step back from his vessel onto the tug when he heard the port engine of CG 40427 accelerate followed by a loud popping noise behind him which sounded like a firecracker. He turned, saw what appeared to be a flame near the port side of his boat where the engine was located, and saw smoke ■ coming from the engine’s compartment, then almost instantaneously a burst of flames. In the words of one of the onlooking crewmen aboard Tug No. 2, “then the whole works blew up.”
All three crew members of the Standard tug and barge, and two of the three Coast Guard sailors were killed as a result of the fire. Only Coxswain Bush, miraculously, escaped with slight injuries. In addition, there was extensive fire damage to the three vessels and assorted property damage to docks, rafts, floats, piers and other shore property.
Claims were filed against both Standard and the United States in their respective limitation proceedings by the estates of the deceased Standard employees. Claims against only Standard were filed by representatives of the two deceased members of the Coast Guard, Coxswain Bush, and others who sustained property damage. Standard and the United States each filed affirmative claims for losses in the other’s limitation proceeding, with Standard in addition seeking contribution or indemnification from the United States. The two limitation proceedings were originally consolidated for trial, but after Standard proposed a settlement with the individual death claimants, the actions were severed and the issue of the Government’s liability was tried to the court.
Government’s Contentions
The United States raises several assignments of error: (1) the district court erred in finding that Officer Day was negligent and that CG 40427 was a proximate cause of the fire; (2) the court erred in not finding that Captain Autiere’s disobedience of the Coast Guard order not to attempt to move the barge was a supervening proximate cause of the fire; (3) the district court’s conclusion that Officer Day was a “managing officer” whose privity or knowledge could impose unlimited liability on the United States is erroneous; (4) the court erred in its computation of damage awards for the estates of the decedents.
Negligence and Causation
The Government challenges as being clearly erroneous the following findings of fact:
“The court finds that the operation of the patrol boat in the area of gasoline vapors pursuant to the orders of the Captain of the Port was a violation of the standing orders of the Captain of the Port and was negligent. This is true whether the Captain of the Port’s standing orders or the normal duty of ordinary care is used as the standard of conduct.
“The court finds by a preponderance of the evidence that the fire was started by some operation of the patrol boat in the area of gasoline vapors, either as a result of the ingestion of gasoline vapors into the air intake system of the pork engine, causing a back fire, or by sparking of an exposed electrical contact in the electrical system of the patrol boat.”
As appellant recognizes, our standard for reviewing findings of fact made by the trial court sitting without a jury in admiralty, is whether these findings can be said to be clearly erroneous. United States v. Soriano, 366 F.2d 699 (9th Cir. 1966). “A finding is clearly erroneous when ‘although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed’. . . .” Mc-Allister v. United States, 348 U.S. 19, 20, 75 S.Ct. 6, 8, 99 L.Ed. 20 (1954). In making this determination, the prevailing party must be given the benefit of all inferences that may reasonably be drawn from the evidence. United States v. Alaska Steamship Co., 491 F.2d 1147 (9th Cir. 1974); Pacific Queen Fisheries v. Symes, 307 F.2d 700, 706 (9th Cir. 1962).
Appellant contends that Officer Day was not negligent in ordering CG 40427 back to the stranded tug and barge because this decision was made under the extenuating circumstances of an extreme emergency. We disagree. There was no imminent danger once Standard Tug No. 2 ceased its attempts to move the barge. By that time, the vessels had been incapacitated for almost two hours without incident. Short of actually rescuing the Standard crewmen, there was no valid purpose for the patrol boat again going into the area, since any further necessary information could have been obtained by other means, e. g. a relay over the tug circuit. Viewing the evidence in the light most favorable to thq prevailing party, Northern Fishing & Trading Co. v. Grabowski, 477 F.2d 1267, 1270 (9th Cir. 1973), we are not definitely and firmly convinced that the district court was mistaken in finding Officer Day to be negligent.
The Government also contends the finding that the patrol boat was a proximate cause of the fire is clearly erroneous because based upon mere conjecture or guess. While it is true that the actual cause of the disaster is unknown, this is often the case when damage results from a fire, simply because of the difficulties inherent in determining the real source. See Minerals & Chemicals Corp. v. S. S. National Trader, 445 F.2d 831 (2d Cir. 1971). However, it is unnecessary, as appellant urges, that the cause be proven by direct evidence. When direct proof of causation is lacking, “the causal connection can be shown by facts and circumstances which, in the light of ordinary experience, reasonably suggests that the [party’s] negligence in the manner charged operated proximately to produce the injury.” Johnson v. Griffiths S. S. Co., 150 F.2d 224, 226 (9th Cir. 1945); see Meadows & Walker Drilling Co. v. Phillips Petroleum Co., 417 F.2d 378, 382 (5th Cir. 1969). See also Michalic v. Cleveland Tankers Inc., 346 U.S. 325, 330, 81 S.Ct. 6, 5 L.Ed.2d 20 (1960). Our view of the record reveals substantial circumstantial evidence, not only in the testimony of Coxswain Bush, but also from other observers, which supports the district court’s finding that the patrol boat was a proximate cause of the fire.
Captain Autiere’s Conduct
The Government maintains that Captain Autiere’s failure immediately to stem the flow of gasoline from the ruptured tank by transferring it to the undamaged tanks, and his subsequent disobedience of the order not to attempt to move the barge, were negligent acts which constitute supervening proximate causes of the fire. This contention is without merit. By definition, in order to constitute a superseding cause, Captain Autiere’s acts must have intervened, or come into active operation, at a time later than some antecedent negligence on the part of the Government, thereby preventing liability for that antecedent negligence. United States v. Marshall, 230 F.2d 183, 190-191 (9th Cir. 1956). See generally W. Prosser, Law of Torts § 44 at 271 (4th ed. 1971); Restatement (Second) of Torts §§ 440-41 (1965). Here the dispatch of CG 40427, a boat ill-suited for operation in gasoline laden waters, into the danger area for the third time followed Au-tiere’s conduct.
Limitation of Liability
The United States seeks to limit its liability for damage claims to the amount of its interest in, or the value of CG 40427, because such damage occurred without its privity or knowledge as owner of the vessel. 46 U.S.C. § 183(a) (1970). Supporting this claim for limitation, the Government contends that any negligence of Chief Petty Officer Day, the non-commissioned officer standing duty watch as Captain of the Port, cannot be imputed to it since Day was “[a]eting merely as a representative of his commanding officer [with] duties no higher than that of an ordinary servant or employee . . . .” The district court determined, however, that “[t]he negligence of the United States . . . was that of the duty officer of the Captain of the Port, who for purposes of limitation of liability was a person whose knowledge of or privity to the negligence precludes the United States from entitlement to limitation.” Although stated as a conclusion of law by the district court, it is clear that this determination must be considered a finding of fact. Port of Pasco v. Pacific Inland Navigation Co., 324 F.2d 593, 599-600 (9th Cir. 1963); see Coryell v. Phipps, 317 U.S. 406, 411, 63 S.Ct. 291, 87 L.Ed. 363 (1943). As such, we find it to be amply supported by the record.
The same standards are applicable to the United States when it seeks limitation of liability because such was occasioned without its privity or knowledge, as would be the case if a private corporation were seeking the same benefit. See The Midland Victory (Petition of United States), 178 F.2d 243 (2d Cir. 1949); USNS POTOMAC (Petition of United States), 303 F.Supp. 1282, 1304 (E.D.N.C.1969). By necessity in both instances, the requisite privity or knowledge can be attributed to the owner only by the acts of its employees. The significant classification, therefore, is between those employees with sufficient managerial authority to bind the corporate, or in this case governmental owner, as distinguished from those employees having no general powers of superintendence over the whole or a particular part of the business. Compare States S. S. Co. v. United States, 259 F.2d 458 (9th Cir. 1958) with Petition of Kinsman Transit Co., 338 F.2d 708 (2d Cir. 1964). See generally Waterman Steamship Corp. v. Gay Cottons, 414 F. 2d 724, 730-731 at n. 14-15 (9th Cir. 1969); 3 Benedict on Admiralty § 490 (6th ed. 1940). In short, the inquiry must focus on whether the negligence is that of “managing officers” or, more properly, “supervisory employees.” The title or rank of these employees is, by itself, of limited value in determining on which side of the line a particular case falls. While this may be one factor, “the real test is not as to their being officers in a strict sense but as to the largeness of their authority.” Waterman Steamship Co., supra at 731, quoting In re P. Sanford Ross, 204 F. 248, 251 (2d Cir. 1913). We conclude that when he was acting as duty officer of the Captain of the Port, Officer Day had sufficient supervisory authority to charge the United States with privity or knowledge of his negligence.
As duty officer standing the watch, Officer Day had been delegated full responsibility and authority to manage the office of the Captain of the Port. In this capacity, the utility patrol boats were directly under his supervision and control. Insofar as the men aboard the CG 40427 were concerned, his orders were to be obeyed just as if they came from the Captain of the Port. Indeed, for all practical purposes, he was the Captain of the Port pro tern despite his rank in the Coast Guard. Under these circumstances we cannot say that the district court erred in its determination that his negligence was within the privity and knowledge of the United States as owner of the vessel. See States S. S. Co. v. United States, supra, 295 F.2d at 474; Great Atlantic & Pacific Tea Co. v. Brasileiro, 159 F.2d 661 (2d Cir. 1947).
The Damage Awards
The district court, after considering the age, life expectancy, number of survivors, earning capacity and personal living expenses of the four Standard employees at the time of their deaths, awarded damages to their representatives. These awards ranged in round figures from $163,000.00 to $211,000.00. The United States now for the first time maintains that the awards are an unwarranted windfall to the families of the deceased because the court failed to make greater allocations for personal living expenses, failed to deduct federal or state taxes, and failed to reduce the awards to their present value. The short answer to these contentions is that we will not reverse the trial court on issues that the record shows were never raised before it. Walker v. Continental Life & Accident Co., 445 F.2d 1072, 1075 (9th Cir. 1971); Union Pacific R. R. v. Johnson, 249 F.2d 674, 677 (9th Cir. 1967).
Standard’s Cross-Appeal
Standard cross-appeals from the district court’s order denying its contribution claim against the United States for any amounts paid or to be paid to the various property damage claimants. No contribution is sought for its payments in settlement with the representatives of the two deceased Coast Guard crewmen, or with Coxswain Bush. The district court’s denial of Standard’s claim, as between joint tortfeasors in this noncollision maritime action, was based upon the Supreme Court’s decision in Halcyon Lines v. Haenn Ship Ceiling and Refitting Co., 342 U.S. 282, 72 S.Ct. 277, 96 L.Ed. 318 (1952), and later interpretations of that decision by this court. This question is an open one in this circuit. Nickert v. Puget Sound Tug & Barge, 480 F.2d 1039, 1041 (9th Cir. 1973) (dictum). We conclude that Halcyon. does not warrant the denial of contribution in this case.
Halcyon involved an action by an injured employee of Haenn, a ship refitting company hired to make repairs on a vessel, against the owners of that vessel for negligence and unseaworthiness. Halcyon Lines, the ship’s owner, im-pleaded Haenn charging that it was con-tributorily negligent in causing the accident. Reversing the lower court’s decision which permitted a claim of contribution by Halcyon against Haenn, the Court expressly created an exception to the established admiralty doctrine of apportioning damages equally among mutual wrongdoers. Although the exception is stated broadly to include all non-collision maritime cases, the Court’s reasons for denying contribution in that case were narrow. That is, where Congress had expressly immunized Haenn, as an employer of harbor workers, from suits by its employees for tort liability, the Court found it inappropriate, in effect, to evade this congressional policy by permitting a right of contribution against Haenn. Since no prior Supreme Court decision required that contribution be granted in noncollision cases, the Court refused to grant such relief in that case. Halcyon, supra at 285-287. But see White Oak Transportation Co. v. Boston, Cape Cod & New York Canal Co., 258 U.S. 341, 42 S.Ct. 338, 66 L.Ed. 649 (1922).
We agree with the Fifth Circuit Court of Appeals that regardless of whether Halcyon is strictly limited to its facts denying contribution from a joint tortfeasor who is statutorily immune from suit, or whether its broad language concerning all noncollision maritime actions is considered dictum, the Halcyon doctrine is inapplicable here. Horton & Horton, Inc. v. T/S J. E. Dyer, 428 F.2d 1131, 1134 (5th Cir. 1970), cert. denied, 400 U.S. 993, 91 S.Ct. 461, 27 L.Ed.2d 441 (1971). In this case, those individuals who suffered property damage filed claims first only against Standard, probably because of the great likelihood that it would be held responsible for such losses. But, had any of these claimants foreseen that the United States similarly would be held liable, undoubtedly they would have made these claims against the Government, just as the representatives of the Standard crewmen did.
This situation is unlike that in Halcyon where the injured employee was precluded by statute from suing his employer. Here, the tort liability of the United States was not limited by statute; on the contrary, the Government’s immunity has been expressly waived for its negligence in this type of case. Under these circumstances, we see no reason for not requiring the United States to contribute toward the damages resulting from its negligent conduct. Therefore, in this noncollision admiralty case where damages are the result of mutual wrongdoing, we hold that contribution will lie where no statute precludes recovery from the joint tortfeasor against whom contribution is sought. In re Seaboard Shipping Corp., 449 F.2d 132, 138-139 (2d Cir. 1971), cert. denied sub nom. Seaboard Shipping Corp. v. Moran Inland Waterways Corp., 406 U.S. 949, 92 S.Ct. 2038, 32 L.Ed.2d 337 (1972); Horton & Horton, Inc., supra, Watz v. Zapata Off-Shore Co., 431 F.2d 100 (5th Cir. 1970).
No. 72-1040 is affirmed.
Nos. 72-1120 and 72-1121 are reversed and remanded.
. The Captain of the Port has promulgated an “Organization Book” containing orders for the operation and handling of boats by the Coast Guard, including the CG 40427. One such general order prescribed procedures for investigating oil and gasoline spills on the water and read:
“If dangerous cargo is involved, inform the OOD [officer on duty] of the danger and request him to warn the patrol craft and fireboat to stay well outside the perimeter of the spill area until it is dissipated and made safe.
“If dangerous cargo is involved, do not institute your investigation while fire preventive measures are underway. As soon as all preventive action is completed, start getting information and samples.”
. The prior decisions of this court did not require our determination of the question presented here, as to whether contribution is available in a situation in which no statute prevents recovery from a joint tortfeasor. In Amerocean Steamship Co. v. Copp, 245 F.2d 291, 294 (9th Cir. 1957) and Union Sulphur & Oil Corp. v. W. J. Jones & Son, 195 F.2d 93, 94-95 (9th Cir. 1952), we faced the same question presented by Halcyon (see text infra) of whether an indirect recovery should be permitted where a statute precluded a direct recovery. We there followed Halcyon and held that it could not. In Simpson Timber Co. v. Parks, 390 F.2d 353, 356 (9th Cir. 1957) and States S.S. Co. v. Rothschild International Stevedoring Co., 205 F.2d 253, 254-255 (9th Cir. 1953), the issues were not ones of contribution but of indemnification. Halcyon therefore was not involved, as was noted both in Rothschild, 205 F.2d at 255 and in Simpson Timber, 390 F.2d at 356, and any reference to this decision merely served the purpose of comparing the related doctrines of contribution and indemnification.
Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
sc_lcdisagreement
|
A
|
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.
HENDERSON v. UNITED STATES et al.
No. 25.
Argued April 3, 1950.
Decided June 5, 1950.
Belford V. Lawson, Jr. and Jawn Sandifer argued the cause for appellant. With them on the brief were Marjorie M. McKenzie, Sidney A. Jones, Jr., Earl B. Dickerson, Josiah F. Henry, Jr., Theodore M. Berry and George H. Windsor.
Attorney General McGrath and Solicitor General Perl-man argued the cause for the United States, appellee, urging reversal. With Mr. Perlman on the brief were Assistant Attorney General Bergson, Charles H. Weston and Philip Elman.
Allen Crenshaw argued the cause for the Interstate Commerce Commission, appellee, urging affirmance. With him on the brief was Daniel W. Knowlton.
Charles Clark argued the cause for the Southern Railway Co., appellee. With him on the brief were Sidney S. Alderman and Arthur J. Dixon.
By special leave of Court, The Honorable Sam Hobbs, a member of the Committee on the Judiciary of the House of Representatives, argued the cause and filed a brief, as amicus curiae, urging affirmance.
Briefs of amici curiae, supporting appellant, were filed by Robert J. Silberstein, Mozart G. Ratner and Ruth Weyand for the National Lawyers Guild; Phineas Indritz for the American Veterans Committee, Inc.; Arthur J. Goldberg for the Congress of Industrial Organizations; Will Maslow, Shad Polier and Joseph B. Robison for the American Jewish Congress; Robert L. Carter and Thurgood Marshall for the National Association for the Advancement of Colored People; and Joseph R. Booker, Richard E. Westbrooks, Lucia T. Thomas, William A. Booker, Georgia Jones Ellis, Earl B. Dickerson and Joseph E. Clayton, Jr. for the Civil Rights Committee of the National Bar Association.
Mr. Justice Burton
delivered the opinion of the Court.
The question here is whether the rules and practices of the Southern Railway Company, which divide each dining car so as to allot ten tables exclusively to white passengers and one table exclusively to Negro passengers, and which call for a curtain or partition between that table and the others, violate § 3 (1) of the Interstate Commerce Act. That section makes it unlawful for a railroad in interstate commerce “to subject any particular person, ... to any undue or unreasonable prejudice or disadvantage in any respect whatsoever: . . . .” 54 Stat. 902, 49 U. S. C. § 3 (1). We hold that those rules and practices do violate the Act.
This issue grows out of an incident which occurred May 17, 1942. On that date the appellant, Elmer W. Henderson, a Negro passenger, was traveling on a first-class ticket on the Southern Railway from Washington, D. C., to Atlanta, Georgia, en route to Birmingham, Alabama, in the course of his duties as an employee of the United States. The train left Washington at 2 p. m. At about 5:30 p. m., while the train was in Virginia, the first call to dinner was announced and he went promptly to the dining car. In accordance with the practice then in effect, the two end tables nearest the kitchen were conditionally reserved for Negroes. At each meal those tables were to be reserved initially for Negroes and, when occupied by Negroes, curtains were to be drawn between them and the rest of the car. If the other tables were occupied before any Negro passengers presented themselves at the diner then those two tables also were to be available for white passengers, and Negroes were not to be seated at them while in use by white passengers. When the appellant reached the diner, the end tables in question were partly occupied by white passengers but at least one seat at them was unoccupied. The dining-car steward declined to seat the appellant in the dining car but offered to serve him, without additional charge, at his Pullman seat. The appellant declined that offer and the steward agreed to send him word when space was available. No word was sent and the appellant was not served, although he twice returned to the diner before it was detached at 9 p. m.
In October, 1942, the appellant filed a complaint with the Interstate Commerce Commission alleging especially that the foregoing conduct violated § 3 (1) of the Interstate Commerce Act. Division 2 of the Commission found that he had been subjected to undue and unreasonable prejudice and disadvantage, but that the occurrence was a casual incident brought about by the bad judgment of an employee. The Commission declined to enter an order as to future practices. 258 I. C. C. 413. A three-judge United States District Court for the District of Maryland, however, held that the railroad’s general practice, as evidenced by its instructions of August 6, 1942, was in violation of § 3 (1). Accordingly, on February 18, 1946, it remanded the case for further proceedings. 63 F. Supp. 906. Effective March 1, 1946, the company announced its modified rules which are now in effect. They provide for the reservation of ten tables, of four seats each, exclusively and unconditionally for white passengers and one table, of four seats, exclusively and unconditionally for Negro passengers. Between this table and the others a curtain is drawn during each meal.
On remand, the full Commission, with two members dissenting and one not participating, found that the modified rules do not violate the Interstate Commerce Act and that no order for the future was necessary. 269 I. C. C. 73. The appellant promptly instituted the present proceeding before the District Court, constituted of the same three members as before, seeking to have the Commission’s order set aside and a cease and desist order issued. 28 U. S. C. §§ 41 (28), 43-48; 49 U. S. C. § 17 (9); see also, 28 U. S. C. (Supp. III) §§ 1336, 1398, 2284, 2321, 2325. With one member dissenting, the court sustained the modified rules on the ground that the accommodations are adequate to serve the average number of Negro passengers and are “proportionately fair.” 80 F. Supp. 32, 39. The case is here on direct appeal. 28 U. S. C. (Supp. Ill) §§ 1253, 2101 (b). In this Court, the United States filed a brief and argued orally in support of the appellant.
It is clear that appellant has standing to bring these proceedings. He is an aggrieved party, free to travel again on the Southern Railway. Having been subjected to practices of the railroad which the Commission and the court below found to violate the Interstate Commerce Act, he may challenge the railroad's current regulations on the ground that they permit the recurrence of comparable violations. Mitchell v. United, States, 313 U. S. 80, 92-93.
The material language in § 3 (1) of the Interstate Commerce Act has been in that statute since its adoption in 1887. 24 Stat. 380. From the beginning, the Interstate Commerce Commission has recognized the application of that language to discriminations between white and Negro passengers. Councill v. Western & Atlantic R. Co., 1 I. C. C. 339; Heard v. Georgia R. Co., 1 I. C. C. 428; Heard v. Georgia R. Co., 3 I. C. C. 111; Edwards v. Nashville, C. & St. L. R. Co., 121. C. C. 247; Cozart v. Southern R. Co., 161. C. C. 226; Gaines v. Seaboard Air Line R. Co., 16 I. C. C. 471; Crosby v. St. Louis-San Francisco R. Co., 112 I. C. C. 239. That section recently was so applied in Mitchell v. United States, supra.
The decision of this case is largely controlled by that in the Mitchell case. There a Negro passenger holding a first-class ticket was denied a Pullman seat, although such a seat was unoccupied and would have been available to him if he had been white. The railroad rules had allotted a limited amount of Pullman space, consisting of compartments and drawing rooms, to Negro passengers and, because that space was occupied, the complainant was excluded from the Pullman car and required to ride in a second-class coach. This Court held that the passenger thereby had been subjected to an unreasonable disadvantage in violation of § 3 (l).
The similarity between that case and this is inescapable. The appellant here was denied a seat in the dining car although at least one seat was vacant and would have been available to him, under the existing rules, if he had been white. The issue before us, as in the Mitchell case, is whether the railroad’s current rules and practices cause passengers to be subjected to undue or unreasonable prejudice or disadvantage in violation of § 3 (1). We find that they do.
The right to be free from unreasonable discriminations belongs, under § 3 (1), to each particular person. Where a dining car is available to passengers holding tickets entitling them to use it, each such passenger is equally entitled to its facilities in accordance with reasonable regulations. The denial of dining service to any such passenger by the rules before us subjects him to a prohibited disadvantage. Under the rules, only four Negro passengers may be served at one time and then only at the table reserved for Negroes. Other Negroes who present themselves are compelled to await a vacancy at that table, although there may be many vacancies elsewhere in the diner. The railroad thus refuses to extend to those passengers the use of its existing and unoccupied facilities. The rules impose a like deprivation upon white passengers whenever more than 40 of them seek to be served at the same time and the table reserved for Negroes is vacant.
We need not multiply instances in which these rules sanction unreasonable discriminations. The curtains, partitions and signs emphasize the artificiality of a difference in treatment which serves only to call attention to a racial classification of passengers holding identical tickets and using the same public dining facility. Cf. McLaurin v. Oklahoma State Regents, ante, p. 637, decided today. They violate § 3 (1).
Our attention has been directed to nothing which removes these racial allocations from the statutory condemnation of “undue or unreasonable prejudice or disadvantage . . . .” It is argued that the limited demand for dining-car facilities by Negro passengers justifies the regulations. But it is no answer to the particular passenger who is denied service at an unoccupied place in a dining car that, on the average, persons like him are served. As was pointed out in Mitchell v. United States, 313 U. S. 80, 97, “the comparative volume of traffic cannot justify the denial of a fundamental right of equality of treatment, a right specifically safeguarded by the provisions of the Interstate Commerce Act.” Cf. McCabe v. Atchison, T. & S. F. R. Co., 235 U. S. 151; Missouri ex rel. Gaines v. Canada, 305 U. S. 337.
That the regulations may impose on white passengers, in proportion to their numbers, disadvantages similar to those imposed on Negro passengers is not an answer to the requirements of §3(1). Discriminations that operate to the disadvantage of two groups are not the less to be condemned because their impact is broader than if only one were affected. Cf. Shelley v. Kraemer, 334 U. S. 1, 22.
Since § 3 (1) of the Interstate Commerce Act invalidates the rules and practices before us, we do not reach the constitutional or other issues suggested.
The judgment of the District Court is reversed and the cause is remanded to that court with directions to set aside the order of the Interstate Commerce Commission which dismissed the original complaint and to remand the case to that Commission for further proceedings in conformity with this opinion.
It is so ordered.
Mr. Justice Douglas concurs in the result.
Mr. Justice Clark took no part in the consideration or decision of this case.
No reliance is placed in this case upon any action by any state.
Rule of the Southern Railway Company issued July 3, 1941, and in effect May 17, 1942:
“dining car regulations
“Meals should be served to passengers of different races at separate times. If passengers of one race desire meals while passengers of a different race are being served in the dining car, such meals will be served in the room or seat occupied by the passenger without extra charge. If the dining ear is equipped with curtains so that it can be divided into separate compartments, meals may be served to passengers of different races at the same time in the compartments set aside for them.” 258 I. C. C. 413, 415, 63 F. Supp. 906, 910.
Joint Circular of the Southern Railway System issued August 6, 1942:
“Effective at once please be governed by the following with respect to the race separation curtains in dining cars:
“Before starting each meal pull the curtains to service position and place a ‘Reserved’ card on each of the two tables behind the curtains.
“These tables are not to be used by white passengers until all other seats in the car have been taken. Then if no colored passengers present themselves for meals, the curtain should be pushed back, cards removed and white passengers served at those tables.
“After the tables are occupied by white passengers, then should colored passengers present themselves they should be advised that they will be served just as soon as those compartments are vacated.
“ ‘Reserved’ cards are being supplied you.” 258 I. C. C. at p. 415, 63 F. Supp. at p. 910.
“(1) It shall be unlawful for any common carrier subject to the provisions of this part to make, give, or came any undue or unreasonable preference or advantage to any particular person, company, firm, corporation, association, locality, port, port district, gateway, transit point, region, district, territory, or any particular description of traffic, in any respect whatsoever; or to subject any particular person, company, firm, corporation, association, locality, port, port district, gateway, transit point, region, district, territory, or any particular description of traffic to any undue or unreasonable prejudice or disadvantage in any respect whatsoever: . . . .” (Emphasis supplied.) 54 Stat. 902, 49 U. S. C. §3 (1).
The appellant sought an order directing the railroad not only to cease and desist from the specific violations alleged but also to establish in the future, for the complainant and other Negro interstate passengers, equal and just dining-car facilities and such other service and facilities as the Commission might consider reasonable and just, and requiring the railroad to discontinue using curtains around tables reserved for Negroes.
The appellant sought damages, but the Commission found no pecuniary damages and that issue has not been pressed further.
“TRANSPORTATION DEPARTMENT CIRCULAR NO. 142. CANCELLING INSTRUCTIONS ON THIS SUBJECT DATED JULY 3, 1941, AND AUGUST 6, 1942.
“SUBJECT: SEGREGATION OF WHITE AND COLORED PASSENGERS IN DINING CARS.
“To: Passenger Conductors and Dining Car Stewards.
“Consistent with experience in respect to the ratio between the number of white and colored passengers who ordinarily apply for service in available diner space, equal but separate accommodations shall be provided for white and colored passengers by partitioning diners and the allotment of space, in accordance with the rules, as follows:
“(1) That one of the two tables at Station No. 1 located to the left side of the aisle facing the buffet, seating four persons, shall be reserved exclusively for colored passengers, and the other tables in the diner shall be reserved exclusively for white passengers.
“(2) Before starting each meal, draw the partition curtain separating the table in Station No. 1, described above, from the table on that side of the aisle in Station No. 2, the curtain to remain so drawn for the duration of the meal.
“(3) A ‘Reserved’ card shall be kept in place on the left-hand table in Station No. 1, described above, at all times during the meal except when such table is occupied as provided in these rules.
“ (4) These rules become effective March 1, 1946.
“R. K. McClain,
“Assistant Vice-President.”
2691. C. C. 73, 75,80 F. Supp. 32,35.
Counsel for the railway company, at a subsequent hearing, corrected the above rules “to the extent of using the word ‘negroes’ in the place of ‘colored persons.’ ” Also, the evidence shows, and the Commission has stated, that “White and Negro soldiers are served together, without distinction.” 258 I. C. C. 413, 415, 63 F. Supp. 906, 910. The rules, accordingly, are treated as applicable only to civilian passengers. The company further showed that it is now substituting a five-foot high wooden partition in place of the curtain. The steward’s office is being placed in the table space opposite that reserved for Negro passengers and a similar wooden partition is being erected between that office and the rest of the car.
The company was permitted to introduce two tabulations, covering about ten days each, showing the comparative numbers of meals served to white and Negro passengers on trips comparable to the one which the appellant had taken. These show that only about 4% of the total meals served were served to Negro passengers whereas four reserved seats exceed 9% of a total seating capacity of 44. On the other hand, the tabulations also show that at one meal 17 Negro passengers, and at each of 20 meals more than eight Negro passengers, were served. Similarly, the brief filed by the Commission states that, out of the 639 serving periods reported, on 15 occasions more than four times as many white passengers were served as there were seats reserved for them, and, on 541 occasions, there were two or more rounds of servings.
“The Western and Atlantic Railroad Company will be notified to cease and desist from subjecting colored persons to undue and unreasonable prejudice and disadvantage in violation of section 3 of the Act to regulate commerce, and from furnishing to colored persons purchasing first-class tickets on its road accommodations which are not equally safe and comfortable with those furnished other first-class passengers.” 11. C. C. at p. 347.
The rules also denied access by Negroes to the dining car and observation car. The principles there announced applied equally to those facilities.
That specific denial of service was condemned by the Commission and the District Court as a violation of §3 (1). Review of that condemnation is not sought here.
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_fedlaw
|
D
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant.
CHOCTAW NATION and Chickasaw Nation, Appellants, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, and Lee F. White, O. R. Smiley and Mamie Smiley, Appellees.
No. 9573.
United States Court of Appeals Tenth Circuit.
March 6, 1968.
Rehearing Denied April 8, 1968.
Lon Kile, Hugo, Okl., for appellants.
Streeter v. Flynn, Oklahoma City, Okl. (Reuel W. Little, Madill, Okl., on the brief), for appellee.
Before PICKETT, LEWIS and BREITENSTEIN, Circuit Judges.
BREITENSTEIN, Circuit Judge.
This is a companion case to Choctaw Nation v. Atchison, Topeka and Santa Fe Railway Company, 10 Cir., 396 F.2d 578. Reference is made to the decision in that ease for the pertinent treaties and statutes.
The land in question is a 32-acre reservoir tract reserved from allotment because of an easement obtained for reservoir purposes by a predecessor of the appellee railway company in 1903. The complaint alleges an abandonment in 1910 and a conveyance to the Choctaw Nation and the Chickasaw Nation by the railroad in 1946. The answer and cross-claim of the appellees Lee F. White, O. R. Smiley, and Mamie Smiley, abutting landowners, allege abandoment in 1946. The railroad filed a disclaimer. The district court sustained a motion of the other appellees to dismiss.
In Choctaw Nation v. The Atchison, Topeka and Santa Fe Railway Company, supra, we held that upon abandonment of the reservoir easement, title vested to the abutting landowners. The same principle applies here whether the abandonment occurred in 1910 or 1946. The conveyance to the two Nations was a nullity because the railroad had nothing to convey.
Affirmed.
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_respond2_2_3
|
H
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "private organization or association", specifically "business, trade, professional, or union (BTPU)". Your task is to determine what subcategory of private association best describes this litigant.
MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, Appellant, v. The BROTHERHOOD OF RAILROAD TRAINMEN et al., Appellees.
No. 21236.
United States Court of Appeals Fifth Circuit.
March 16, 1965.
Monroe E. Clinton, Denison, Tex., Ralph Elliott, Sherman, Tex., W. A. Thie, Dallas, Tex., for appellant.
William P. Fonville, Hart Willis, Jr., Dallas, Tex., for appellee.
Before MARIS RIVES and BROWN, Circuit Judges.
Of the Third Circuit, sitting by designation.
MARIS, Circuit Judge.
The plaintiff, Missouri-Kansas-Texas Railroad Company, on June 10, 1962 brought this action in the District Court for the Eastern District of Texas to enjoin a strike of its brakemen and switch-men called for June 11th by the defendant, the Brotherhood of Railroad Trainmen, on account of the alleged refusal or failure of the plaintiff to correct hazardous and unsafe conditions caused by the lack of maintenance. The conditions complained of were, inter alia, the growth of weeds and other vegetation to such heights and density as to obscure the ground; the accumulation of debris on the ground; the growth of trees and shrubbery to such height on the rights-of-way as to brush the sides of the engines and cars in passing; the deterioration of rails; and the existence of filthy and unsanitary conditions in locker and wash rooms. A temporary restraining order was issued enjoining the defendant Brotherhood, its officers, members and locals, -from calling or participating in the strike. The plaintiff then amended its complaint to allege that no demand had been made by defendants for any agreement, or for an amendment to the existing agreement, relating to hazardous or unsafe conditions and that on June 13, 1962 the plaintiff had submitted the controversy to the National Railroad Adjustment Board. The temporary restraining order was continued in force until October 26, 1963 when the district court dissolved it and dismissed the complaint, holding that under the provisions of the Norris-LaGuardia Act, 29 U.S.C.A. §§ 101 et seq., the court lacked jurisdiction to grant the injunctive relief prayed for. From the order dissolving the temporary restraining order and dismissing the complaint the plaintiff appealed.
The action of the district court was based upon its conclusion that the dispute between the parties was a “major dispute”, i. e., a dispute concerning the making or amendment of a collective agreement, which was within the jurisdiction of the National Mediation Board under the Railway Labor Act and not a “minor dispute”, i. e., a dispute growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules or working conditions, which under the Act would be within the jurisdiction of the National Railroad Adjustment Board. The significance of the distinction, so far as the present case is concerned, lies in the fact that, while the Norris-LaGuardia Act may well operate to deprive a district court of jurisdiction to grant injunctive relief in a “major” railway labor dispute as to which the procedure prescribed by the Railway Labor Act has been exhausted, it is settled that the Act does not deprive a district court of jurisdiction to enjoin a strike arising out of a “minor” dispute which is within the jurisdiction of the National Railroad Adjustment Board and which has been submitted to the Board. Brotherhood of Railroad Trainmen v. Chicago River & I. R. Co., 1957, 353 U.S. 30, 77 S.Ct. 635,1 L.Ed.2d 622; Brotherhood of Locomotive Engineers v. Missouri-Kansas-Texas R. Co., 1960, 363 U.S. 528, 80 S.Ct. 1326, 4 L.Ed. 2d 1379. Accordingly the question for our decision is whether the district court erred in concluding that the dispute between the parties in this case is a “major dispute” as to which the Norris-LaGuardia Act might apply and not a “minor dispute” as to which the court was empowered to grant injunctive relief to the plaintiff.
The distinction which the Railway Labor Act makes between the two kinds of disputes was outlined by the Supreme Court in Elgin, J. & E. R. Co. v. Burley, 1945, 325 U.S. 711, 722-723, 65 S.Ct. 1282, 1289-1290, 89 L.Ed. 1886, as follows :
“The difference between disputes over grievances and disputes concerning the making of collective agreements is traditional in railway labor affairs. * * *
“The statute first marks the distinction in Section 2, which states as among the Act’s five general purposes: ‘(4) to provide for the prompt and orderly settlement of all disputes concerning rates of pay, rules, or working conditions; (5) to provide for the prompt and orderly settlement of all disputes growing out of grievances or out of the interpretation or application of agreements covering rates of pay, rules, or working conditions.’ The two sorts of dispute are sharply distinguished * * * it is clear from the Act itself, from the history of railway labor disputes and from the legislative history of the various statutes which have dealt with them, that Congress has drawn major lines of difference between the two classes of controversy.
“The first relates to disputes over the formation of collective agreements or efforts to secure them. * * * They look to the acquisition of rights for the future, not to assertion of rights claimed to have vested in the past.
“The second class, however, contemplates the existence of a collective agreement already concluded or, at any rate, a situation in which no effort is made to bring about a formal change in terms or to create a new one. The dispute relates either to the meaning or proper application of a particular provision with reference to a specific situation or to an omitted case. In the latter event the claim is founded upon some incident of the employment relation * * * the claim is to rights accrued, not merely to have new ones created for the future.” [emphasis added]
See also Order of Railway Conductors v. Pitney, 1946, 326 U.S. 561, 66 S.Ct. 322, 90 L.Ed. 318.
We are satisfied that the dispute between the present parties is of the second class referred to by the Supreme Court in the Elgin case, i. e., a “minor dispute” growing out of grievances because of the alleged failure of the plaintiff to accord the members of the defendant Brotherhood the safe working conditions to which they are entitled. It is true that there is no express written provision in the existing collective agreement between the parties with respect to the working conditions of which the defendant complains. But the common law duty of the plaintiff to use reasonable care in furnishing its employees with a safe place to work is clear, Bailey v. Central Vermont R. Co., 1943, 319 U.S. 350, 352-353, 63 S.Ct. 1062, 87 L.Ed. 1444. The members of the defendant Brotherhood who are employees of the plaintiff are, therefore, entitled to compliance by the plaintiff with that existing obligation. If, however, the plaintiff has failed to perform that duty its employees are required by the Railway Labor Act to submit their grievances in that regard to the National Railroad Adjustment Board for adjustment. See Illinois Central R. Co. v. Brotherhood of Locomotive Firemen & Enginemen, 7 Cir. 1964, 332 F.2d 850. It follows that the district court erred in dismissing the complaint.
The judgment of the district court is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.
. On December 3, 1963 the district court granted the plaintiff’s motion for an injunction pending appeal and the defendants were enjoined from calling a strike for the reasons assigned in the complaint and conditions were imposed upon the plaintiff, l.e., removing debris, cutting all weeds, vegetation and trees within six feet of the end of ties, cleaning locker and wash rooms and repairing specified equipment.
. 45 U.S.C.A. §§ 151 et seq.
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "private organization or association", specifically "business, trade, professional, or union (BTPU)". What subcategory of private association best describes this litigant?
A. Business or trade association
B. utilities co-ops
C. Professional association - other than law or medicine
D. Legal professional association
E. Medical professional association
F. AFL-CIO union (private)
G. Other private union
H. Private Union - unable to determine whether in AFL-CIO
I. Public employee union- in AFL-CIO (include groups called professional organizations if their role includes bargaining over wages and work conditions)
J. Public Employee Union - not in AFL-CIO
K. Public Employee Union - unable to determine if in AFL-CIO
L. Union pension fund; other union funds (e.g., vacation funds)
M. Other
N. Unclear
Answer:
|
songer_respond1_3_2
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
UNITED STATES of America, Appellee, v. UPSHAW, Allen, Appellant.
No. 89-5600.
United States Court of Appeals, Third Circuit.
Submitted under Third Circuit Rule 12(6) on Jan. 17, 1990.
Decided Jan. 31, 1990.
Rehearing Denied Feb. 22, 1990.
Lawrence S. Lustberg, Asst. Federal Public Defender, Office of Federal Public Defender, Newark, N.J., for appellant.
Samuel A. Alito, Jr., U.S. Atty., Glenn J. Moramarco, Asst. U.S. Atty., and Edna Ball Axelrod, Chief, Appeals Div. U.S. Attorney’s Office, Newark, N.J., for appellee.
Before BECKER, GREENBERG and NYGAARD, Circuit Judges.
OPINION OF THE COURT
GREENBERG, Circuit Judge.
Allen Upshaw was convicted by a magistrate, exercising jurisdiction pursuant to 18 U.S.C. § 3401(a), of obstruction of the mails in violation of 18 U.S.C. § 1701. He appealed pursuant to 18 U.S.C. § 3402 but the district court affirmed his conviction in an opinion and order dated July 7, 1989. An appeal to this court followed.
The facts developed at trial are as follows. Upshaw was employed as a postal truck driver by the United States Post Office at its Edison, New Jersey, facility where his assignment was to shuttle mail between Edison and either the Menlo Park or Nixon inter stations. On December 17, 1987, postal officials, suspecting Upshaw was responsible for a number of recent losses of unregistered packages, placed a “test parcel”, containing a radio transmitter enabling the package to be electronically tracked, on the Menlo Park “skid” in the belief that Upshaw would be assigned to the Menlo Park route that day. Upshaw, however, was assigned the Nixon route on that day.
The test parcel was addressed to a fictitious person, whose name had been crossed out, but had a return address label of Lift-man Jewelers in the Menlo Park Mall. The parcel was marked “return to sender” with a finger pointing to the address of Liftman Jewelers. Notwithstanding Upshaw’s assignment, he picked the test parcel off the skid, continued to his truck, and placed the parcel in a white mail bucket which was quickly filled with letters, covering the parcel. This white bucket remained in Up-shaw’s truck as he made numerous mail deliveries between Edison and Nixon.
Upshaw signed out of work at 4:45 p.m. on the afternoon of December 17, and then reentered his postal vehicle, in violation of post office procedure, holding a brown paper bag. Upshaw then left the post office holding the bag and entered his car. Postal Inspector Hangarter followed Upshaw in an unmarked vehicle, receiving a strong transmittal signal indicating that Upshaw had the test parcel. Hangarter followed Upshaw to the parking lot of a nearby office building at which Upshaw stopped. Hangarter then showed Upshaw his badge, and informed him that he was under arrest. Upshaw, however, put his car in reverse and drove off the lot leaving Hangarter, who was unable to follow him, behind.
Approximately one hour later, Upshaw returned to the Edison post office where he was interviewed, in the presence of a union shop steward, by postal inspectors. Up-shaw informed the inspectors that the box for which they were looking was in a brown paper bag, and that he could take them to it. Thereupon Upshaw led the inspectors through a Foodtown warehouse, and then to a gully, at which point he ran off and escaped the pursuing inspectors. About one hour later Upshaw reappeared at the Edison post office and was again questioned by the postal authorities in the presence of the shop steward. Although Upshaw denied having removed the parcel he asked what would happen if it re-appeared in the mail stream.
Despite a search by postal authorities, the parcel was not found in the area of the Foodtown warehouse. It did, however, arrive at the Kilmer general mail facility on December 18, 1987, as reflected by a Kil-mer date-stamp imprinted on the parcel, and was received at Menlo Park the following day.
This appeal raises questions regarding the application of 18 U.S.C. § 1701 which reads:
[w]hoever knowingly and willfully obstructs or retards the passage of the mail, or any carrier or conveyance carrying the mail, shall be fined no more than $100 or imprisoned not more than six months, or both.
There are three elements comprising a violation of § 1701: (1) willfully and knowingly; (2) obstructing or retarding; and (3) the passage of the mail. See United States v. Schankowski, 782 F.2d 628, 631 (6th Cir.1986). Upshaw concedes that two of the three elements, that he had requisite intent and knowledge and that his alleged actions affected the passage of the mail, have been satisfied. His appeal is thus founded on the question of what constitutes “obstructing or retarding” for the purposes of the statute.
Upshaw argues that the majority of the courts addressing this question have held that a substantial delay of the mail is required. He cites in this regard, Lustiger v. United States, 386 F.2d 132, 139 (9th Cir. 1967), cert. denied, 390 U.S. 951, 88 S.Ct. 1042, 19 L.Ed.2d 1142 (1968); Cohen v. United States, 378 F.2d 751, 759 (9th Cir.), cert. denied, 389 U.S. 897, 88 S.Ct. 217, 19 L.Ed.2d 215 (1967); Canaday v. United States, 354 F.2d 849, 856 (8th Cir.1966); and United States v. Costello, 255 F.2d 876, 881 (2d Cir.1958). According to Up-shaw, the evidence at his trial did not establish that his conduct caused a substantial delay in the mails, and thus the government failed to establish that he had violated the statute. The district court rejected this argument and, as we agree, we affirm Upshaw’s conviction.
In the cases cited by Upshaw the courts did not find unlawful obstruction of the mail where there had been either no measurable delay or only an insubstantial delay of the mail as the result of an authorized “mail cover” or “mail watch.” See Lustiger v. United States, 386 F.2d at 139 (a “mail watch” which does not result in a substantial delay in the delivery of the mail is not a violation of 18 U.S.C. § 1703); Cohen v. United States, 378 F.2d at 760 (a “mail cover” of the type before the court, did not violate 18 U.S.C. §§ 1701-1703); Canaday v. United States, 354 F.2d at 856 (where there is no delay as the result of an authorized mail cover, evidence derived from the cover was not unlawfully obtained); United States v. Costello, 255 F.2d at 881 (a delay of mail for one delivery as the result of a “mail watch” did not violate § 1701). See also, United States v. Beckley, 335 F.2d 86, 90 (6th Cir.1964), cert. denied, 380 U.S. 922, 85 S.Ct. 921, 13 L.Ed.2d 807 (1965) (a delay in the mail caused by a lawful seizure of mail does not violate § 1701).
The courts have, however, come to a different result when considering a delay in the mail resulting from the unauthorized conduct of an individual as, in such cases, all that has been required is a measurable delay in the mail. Thus, in United States v. Johnson, 620 F.2d 413 (4th Cir.1980), the court held that a defendant, to whom a postcard had been delivered in error and who intentionally retained it for photocopying resulting in a one day delay in delivery to the addressee, violated § 1701. The court indicated that the defendant “had no right to intentionally or deliberately obstruct or delay [mail] delivery, however slight, to the correct addressee.” 620 F.2d at 415. Thus, as the delay in returning the postcard was neither inadvertent or merely negligent but was intentional, a conviction for violation of § 1701 was affirmed. In United States v. Austin, 492 F.Supp. 502, 504 (N.D.Ill.1980), the district court on an appeal from convictions before a magistrate rejected an argument that minor delays in the mail, even if wrongfully caused, do not constitute retardation for purposes of § 1701. Thus, the court held that while the reason for a delay could be balanced against the objective of § 1701, to preclude obstruction or retarding the mail, provided the delay was attributable to a legitimate motivation, there would be no balancing if the mail was delayed for improper reasons.
This distinction, based on whether the cause of the delay was authorized law enforcement activity on the one hand, or the unauthorized action of a private individual on the other, finds support in Supreme Court precedent. In United States v. Kirby, 74 U.S. (7 Wall.) 482, 19 L.Ed. 278 (1869), the Court held that a sheriff who was executing a warrant for the arrest for murder of a mail carrier did not unlawfully obstruct the mail as the public inconvenience which might follow from the temporary delay in the transmission of the mail when a carrier is arrested was less than that which would arise from extending an immunity from arrest to him.
On the basis of the foregoing authorities, we conclude that if there is a willful obstruction of the passage of the mail for some illegitimate reason there is a violation of § 1701 if the delay was measurable. Here, as the delay clearly was measurable, the order of July 7, 1989, will be affirmed.
. There is some question as to our standard of review in this case. Usually on an appeal from a criminal conviction our standard is whether the record, when viewed in the light most favorable to the government, contains substantial evidence to support the determination of guilt. See United States v. Furst, 886 F.2d 558, 565 (3d Cir.1989). Yet Upshaw's arguments are essentially legal in nature, involving a matter of statutory construction, suggesting plenary review. See United States v. Williams, 850 F.2d 142, 143 n. 2 (3d Cir.1988). Our result, however, is not dependent on which standard we follow as even exercising plenary review on all issues we would affirm the conviction.
. The cases cited by Upshaw all arose in the context of a defendant’s motion to suppress evidence obtained by the government. Nevertheless if the construction of § 1701 in that situation was helpful to him it would be entirely appropriate for him to rely on the cases in his very different situation.
. In United States v. Kirby an earlier obstruction statute was involved.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant?
A. cabinet level department
B. courts or legislative
C. agency whose first word is "federal"
D. other agency, beginning with "A" thru "E"
E. other agency, beginning with "F" thru "N"
F. other agency, beginning with "O" thru "R"
G. other agency, beginning with "S" thru "Z"
H. Distric of Columbia
I. other, not listed, not able to classify
Answer:
|
songer_initiate
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
In re John TALMAGE and Barbara Talmage, Debtors. COMPREHENSIVE ACCOUNTING CORPORATION, Plaintiff-Appellant, v. John TALMAGE and Barbara Talmage, Defendants-Appellees.
No. 84-3197.
United States Court of Appeals, Sixth Circuit.
Argued Jan. 22, 1985.
Decided March 27, 1985.
David R. Mayo, Benesch, Friedlander, Coplan & Aronoff, Cleveland, Ohio, Thomas A. Mass (argued), Cary S. Fleischer, Mass, Miller & Josephson, Chicago, 111., for plaintiff-appellant.
David Simon (argued), Dettelbach & Sicherman Co., L.P.A., Marvin A. Sicherman, Cleveland, Ohio, for defendants-appellees.
Before WELLFORD and MILBURN, Circuit Judges, and HILLMAN, District Judge.
Honorable Douglas W. Hillman, United States District Court for the Western District of Michigan, sitting by designation.
WELLFORD, Circuit Judge.
John and Barbara Talmage, husband and wife, herein referred to as “Talmage”, entered into a licensing agreement in 1978 with Comprehensive Accounting Corporation, herein referred to as “CAC”, which permitted Talmage to use CAC’s system of accounting and soliciting accounts. Under the agreement Talmage also became eligible to purchase client accounts that CAC developed. Indeed, Talmage purchased a number of these accounts from CAC, although it is not clear from the record whether Talmage obtained all of its clients through CAC’s marketing network. In each of the “Client Service Agreements” both Talmage and the client agreed to permit CAC “to assign or re-assign this Agreement to one of its Independent Associated Accounts” and “to substitute accounts if ... the accountant is otherwise in default of its obligations to [CAC].”
In February of 1983 Talmage filed for relief under Chapter 7 of the Bankruptcy Code at which time CAC alleges Talmage owed them $250,000. Talmage admits owing almost 1200,00o. Under the terms of the parties’ various agreements, CAC now wishes to prevent Talmage from continuing to serve any of CAC’s clients, and petitions to have Talmage turn over the client’s books and records, and the accountant work papers associated with the accounts involved.
The license agreement between CAC and Talmage included the following pertinent language:
Agreement Not To Compete. During the time Licensee [Talmage] is associated, and for a period of one (1) year after its status as a Licensee is terminated, whether by reason of lapse of time, default in its performance, or any other case or contingency Licensee or Associate will not, in any capacity directly or indirectly engage in the following activities:
1. Perform bookkeeping services for any client then currently serviced or for one year after it has ceased to be serviced by COMPREHENSIVE or another Licensee.
2. Make use of any trade secrets of COMPREHENSIVE for the mass solicitation of accounts or use of mass media as opposed to personal contact.
It is important to note, however, that nothing in the agreement prohibited Talmage from soliciting other accounts separate and apart from the CAC clients. CAC then provided Talmage with clients, although CAC permitted Talmage to develop its practice in addition to the CAC accounts transferred. Under the restrictive covenant, even after default, Talmage may develop an accounting practice as long as the clients it solicits are not CAC clients, which is contrary to the district judge’s conclusion that the covenant “would effectively remove John Talmage from practicing the accounting profession.”
Because Talmage procured extensive financing from CAC, Talmage was required under the terms of the financing agreement (not the license agreement) as additional security for the financing to have each client procured by Talmage sign a “Client Service Agreement” that essentially made the new Talmage client a CAC client. There is no indication that this requirement would have been imposed absent extensive financing from CAC to Talmage. The “Client Service Agreements” allowed CAC to assign the service contract to other accountants upon Talmage’s default, or upon termination.
Another provision in the finance agreement which is at issue gave CAC the right “to take possession of Talmage’s entire practice subsequent to Talmage’s default”:
Right to Repossess: Licensee recognizes that in the event of Licensee’s default it is essential that COMPREHENSIVE have the clear and unrestricted right to take possession of all the Licensee’s practice. This right inures to COMPREHENSIVE in the event of any defaults as set out in Article III Paragraph A above. COMPREHENSIVE will exert every effort to insure that all of these accounts successfully transfer to another Licensee or accountant and to realize the best possible price for each account.
Effectively, then, Talmage’s accounting practice, upon default, would become CAC’s, but Talmage would not be precluded from obtaining other non-CAC accounts or from working with other accounting firms. After a default, CAC must sell the accounts to another accountant and set off the sale price against the debts it is owed.
The facts in the case are not disputed. The parties stipulated that two legal issues were to be decided:
1. Whether Comprehensive has a valid security interest in the accounts; and
2. Whether restrictive covenants are enforceable that prohibit Debtors from soliciting or servicing accounts once they are transferred to Comprehensive.
The virtually uncontested eight page complaint of CAC was before the court plus an uncontested affidavit of Amos T. Finkle, CAC Vice President, describing the arrangement between the parties. Talmage would, and did, utilize CAC’s trademark, data processing center, its various accounting and bookkeeping procedures, the accounts assigned to it, as well as CAC’s alleged trade secrets. CAC was found to have a “valid and enforceable security interest in the accounts receivable, contract rights and work papers of Talmage, Inc.” (the corporate name under which Talmage operated). Initially CAC claimed a similar security interest in the books and records of clients possessed by Talmage, but this contention has been dropped, and CAC only claims such an interest in work papers with reference to such client accounts. Talmadge on brief disputed the court’s finding of a valid security interest in the “accounts,” but made no argument challenging the correctness of the conclusions that CAC had a valid security interest therein to the extent recognized by the district court.
There is some contention by CAC that both the bankruptcy judge and the district court made unfounded factual findings or drew conclusions from assumed facts not actually before them, especially with regard to trade secrets. The bankruptcy judge, however, merely concluded that “general knowledge gained by an employee during his employment” are not “worthy of protection” under Illinois law as “trade secrets,” and that CAC’s “method of providing services cannot be protected” even if characterized as a “trade secret.” The district court, without discussion, concluded that the “trade secret” rights asserted by CAC would not be enforced. We find the bankruptcy court’s reference to “employee general knowledge” inappropriate, however, because the agreements between the parties are not between employer and employee, but rather are between independent business entities, a licensor and licensee, an assignor and assignee.
Under Illinois law a different standard is applied in considering employer-employee rather than licensor-licensee agreements involving restrictive covenants. The important issue, therefore, is whether there is a valid restrictive covenant between these business entities since we conclude that Talmage is not treated as an employee by CAC, but rather as a licensee, a separate contractor. In this respect we differ with the bankruptcy court which referred to Illinois cases dealing with restrictive covenants between an employer and employee. See Revcor, Inc. v. Fame, Inc., 85 Ill. App.2d 350, 228 N.E.2d 742 (1967); Solar Textiles Co. v. Fortino, 46 Ill.App.2d 436, 196 N.E.2d 719 (1964); Snyder v. Hamilton, 39 Ill.App.2d 352, 189 N.E.2d 97 (1963), all of which we find inapposite. Similarly, the district court mischaracterized the covenant not to compete as a “restrictive employment covenant.” The bankruptcy court, misapplying an employer-employee relationship to this licensor-licensee arrangement between independent business entities, was in error therefore in reaching the legal conclusion that “no legitimate interests of Comprehensive [CAC] exist to support the restrictive covenant imposed.” See O’Sullivan v. Conrad, 44 Ill.App.3d 752, 3 Ill.Dec. 383, 358 N.E.2d 926 (1976), noting this distinction. Likewise, the district court erred in finding the covenant not to compete as “greater than necessary to protect the legitimate [employer] interests of Comprehensive [CAC].”
The factors considered in evaluating the validity and enforceability of a covenant not to compete between employer and employee under Illinois law are:
1) the injury to the public;
2) the possible undue hardship to the promisor;
3) whether the restraint is greater than necessary to protect the promisee’s interest; and
4) the reasonableness of time limitations and geographic scope of the covenant.
Tower Oil & Technology Co. v. Buckley, 99 Ill.App.3d 637, 54 Ill.Dec. 843, 848, 425 N.E.2d 1060, 1065 (1981). The type of covenant involved in this case, one ancilliary to a sale or license agreement, however, is scrutinized to determine whether the restriction is reasonable, or “necessary in its full extent for the protection” of the one party “and at the same time not ... oppressive” to the other party “or injurious to the interests of the general public.” O’Sullivan v. Conrad, 44 Ill.App.3d at 756, 3 Ill. Dec. at 386, 358 N.E.2d at 929. The determination to be made is a question of law. Barrington Trucking Co. v. Casey, 117 Ill.App.2d 151, 253 N.E.2d 36 (1969); O’Sullivan, supra; Tower Oil, supra.
The Tower Oil case involved a suit by a former employer against the former employee seeking to enforce a restrictive covenant in an employment contract. Like other cases involving this kind of relationship, the courts are more concerned about hardship to an individual employee such as Buckley, a lubricant salesman, in his ability to earn a living than they are to a separate business entity, in the instant case an accounting business, or even a professional accountant, in considering “undue hardship” imposed by the restriction. Yet in Tower Oil, the court recognized the “social utility” of a “post-employment” restrictive covenant to “protect the employer from the unwarranted erosion of confidential information.” 54 Ill.Dec. at 848, 425 N.E.2d at 1065. In Tower Oil, a three-year period of restriction without geographic limitation was found to be reasonable to protect the employer from “disadvantageous use of confidential information revealed to an employee.” 54 Ill.Dec. at 849, 425 N.E.2d at 1066. Tower Oil recognized also the propriety of “protection of an established clientele from takeover by a former employee as a legitimate interest.” Id. See also Donald McElroy, Inc. v. Delaney, 72 Ill. App.3d 285, 27 Ill.Dec. 892, 389 N.E.2d 1300 (1979); J.D. Marshall Int’l Inc. v. Fradkin, 87 Ill.App.3d 118, 42 Ill.Dec. 509, 409 N.E.2d 4 (1980).
Although Tower Oil dealt with an employer-employee situation and involved much more severe time limitations on a non-professional worker, the court held the restrictive covenant agreement to be reasonable. Covenants of greater length that the one year limitation here involved have been upheld in a number of other Illinois cases. See Donald McElroy, Inc., supra; Frank D. Hall & Co. v. Payseur, 78 Ill. App.3d 230, 33 Ill.Dec. 522, 396 N.E.2d 1246 (1979). Again, in Tower Oil there was the absence of a geographical limitation in the covenant, but, as in the instant situation, Tower Oil’s employee, Buckley, was not prevented from working in any particular geographical area. See also J.D. Marshall, supra. The circumstances in Tower Oil, in summary, created a greater hardship on the limited party than does the covenant not to compete executed by Talmage. Although it involved an employer-employee arrangement, which is viewed more narrowly and construed more strictly than the business license arrangement involved between CAC and Talmadge, it was deemed to be “reasonable and enforceable.” In this case we may also presume that the business entities involved entered into their agreements, including the covenant not to compete, “voluntarily after arm’s length negotiations.” See O’Sullivan v. Conrad, 44 Ill.App.3d at 757, 3 Ill.Dec. at 387, 358 N.E.2d at 930.
We perceive no serious injury to the public in respect to the terms of a one year covenant not to compete, although it is not limited in geographic scope, that is designed to protect the legitimate business interests of CAC, whether deemed confidential information, good will, trade secrets or established clientele lists. The federal appellate court, sitting in Illinois has recognized that courts in that state will enforce reasonable covenants not to compete to protect “good will of a firm’s business” or “confidentiality of information valuable to a firm’s business” or other “certain types of contractual relations entitled to protection____” American Hardware Mutual Ins. Co. v. Moran, 705 F.2d 219, 221-22 (7th Cir.1983). The determination of the reasonableness of the agreement is a question of law and is freely reviewable by this court. Roth Steel Products v. Sharon Steel Corp., 705 F.2d 134 (6th Cir.1983).
We also conclude that the restraint here involved, considering all the circumstances, including the posture of the parties, is not substantially greater than necessary to protect the legitimate interest of CAC in enforcement. We construe the covenant not to compete, as CAC itself argues that it should be construed, not for an indeterminate term but for a one year term on’y, and conclude that such time limitation is reasonable, as are the other constraints on Talmage for that period. The covenant was clearly ancillary to a license agreement and a sale, transfer or assignment of accounts, and is enforceable. In this respect, then, we reverse the decision of the district court that the covenant was not enforceable as to Talmage. We affirm the district court decision, however, that CAC has a valid and enforceable security interest in accounts receivable, contract rights and work papers of Talmage. In addition, we hold that Talmage should reasonably be called upon under the agreement with CAC to turn over copies of books and records pertaining to clients’ accounts that are in Talmage’s possession (or in the possession of Talmage, Inc.). The original books and records that may belong to clients, of course, would not be covered by the security interest, as conceded by CAC.
As previously noted, it is important to observe that this action does not, as held by the bankruptcy judge and the district court, effectively remove Talmage from the accounting profession, nor does it require supervision by either court of each of the accounts covered by the agreements as we have interpreted them.
This case is accordingly Remanded to the bankruptcy court for further proceedings consistent with this opinion.
. This debt was secured in part of a $21,000 second mortgage of the Talmadge residence and the lower courts agreed that the mortgage was valid.
. The appropriate part of the agreement reads:
Right to Solicit and Service Other Accounts: Licensee’s right to solicit and perform bookkeeping, accounting, and tax services for any and all persons shall be unaffected by this Agreement, except as provided for hereinafter. ...
. The particular part of the agreement provided:
[Talmage will] require all clients procured other than from COMPREHENSIVE [CAC] to sign a properly completed "Client Service Agreement,” a copy of which must be filed with COMPREHENSIVE. All such "Client Service Agreements” must be properly executed and attached to Licensee’s "Growth Report” which is filed monthly with COMPREHENSIVE. No credit will be given to Licensee for any referral until such a "Client Service Agreement” is filed with COMPREHENSIVE.
. Talmadge conceded that the complaint substantially set out undisputed facts, but its answer challenged CAC’s interpretation of these facts, particularly whether any trade secrets actually were involved.
. The agreement provided the following description of an "account”:
An account is a business which agreed to have its bookkeeping, accounting, consulting or tax work performed by a Licensee of Comprehensive in accordance with the Comprehensive system. It includes all of the books, records, work papers and any and all other documentation necessary to service that account____
. As the court in Tower Oil noted, “neither the existence nor misuse of a trade secret is required to enforce a restrictive covenant.” 54 Ill.Dec. at 850, 425 N.E.2d at 1067. Thus we need not determine whether CAC’s accounting methodology constitute trade secrets.
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_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.
Emil PERZINSKI, Plaintiff-Appellee, v. CHEVRON CHEMICAL COMPANY, Defendant-Appellant.
No. 73-1490.
United States Court of Appeals, Seventh Circuit.
Argued April 12, 1974.
Decided Sept. 19, 1974.
Rehearing Denied Nov. 15, 1974.
Brad way A. Liddle, Jr. and James F. Lorimer, Madison, Wis., for defendant-appellant.
Hiram D. Anderson, Jr., Stevens Point, Wis., for plaintiff-appellee.
Before CUMMINGS, PELL and STEVENS, Circuit Judges.
PELL, Circuit Judge.
Plaintiff-appellee Emil Perzinski brought this action to recover damages resulting from a reduction in yield of his 1968 potato crop. Perzinski claimed that the damage to his crop was caused by the application of Paraquat, a herbicide distributed by the defendant Chevron Chemical Company. The jury returned a verdict in favor of the plaintiff and Chevron appeals.
Although the issues raised by Chevron are multi-faceted, they are essentially three: (1) whether the district court erred in admitting certain evidence as admissions by Chevron; (2) whether the district court erred in finding Chevron negligent as a matter of law; and (3) whether the district court erred in failing to submit to the jury a special verdict question and an instruction concerning contributory negligence on Per-zinski’s part.
I
The district court admitted into evidence, over Chevron’s objection, testimony concerning three conversations between Chevron’s salesman, Robert Sosnovske, and Perzinski. During the first conversation, which allegedly occurred shortly after the application of Paraquat, Sosnovske told Perzinski that Chevron “would back up their recommendation of the product.” The second conversation, according to Perzinski, took place at what ordinarily would have been harvest time. Perzinski testified that, at that time Sosnovske told him, “Don’t worry. We’ll take care of you.” A third discussion occurred in Perzinski’s office at which time Sosnovske is said to have asked Perzinski what damages he was claiming and to have told Perzinski, in effect, to bill Chevron for them.
The district court admitted this evidence on the ground that these statements were admissions by Chevron and admissible under Wisconsin law.
Chevron relies on Wisconsin case law which, at the time of the trial, required that in order for the statement of an agent to be admissible as an admission by the principal, there had to be evidence indicating that the agent had authority to speak (as distinguished from authority to act) on the particular subject matter. Shoemaker v. Marc’s Big Boy, 51 Wis.2d 611, 617, 187 N.W.2d 815, 818 (1971); Rudzinski v. Warner Theatres, Inc., 16 Wis.2d 241, 245-246, 114 N.W.2d 466, 468-469 (1962). Chevron argues that the district court erred in finding that the evidence indicated that Sosnovske had authority to speak for Chevron on matters of liability.
This court, however, need not decide whether the district court ruled correctly on this issue under the Wisconsin case law cited. The Wisconsin Supreme Court adopted new rules of evidence while the instant case was on appeal. The new rules took effect on January 1, 1974 and apply “to actions and proceedings brought thereafter and also to actions and proceedings then pending.” In the Matter of Promulgation of Rules of Evidence for the State of Wisconsin, 59 Wis.2d Rl. (Emphasis added.) An action is still “pending,” according to the Wisconsin Supreme Court, until there is an “exhaustion of rights of appeal.” Larson v. Fetherston, 44 Wis.2d 712, 718, 172 N.W.2d 20, 23 (1969). Since the present case was on appeal, and, therefore, “pending,” when the new rules became effective, we deem it appropriate within the spirt of Rule 43(a) to apply these rules in determining whether the evidence in question was properly admitted.
The new rules provide, in pertinent part:
“(4) Statements which are not hearsay. A statement is not hearsay if:
# * * * *
“(b) Admission by party opponent. The statement is offered against a party and is:
* * «• * * *
“(4) a statement by his agent or servant concerning a matter within the scope of his agency or employment, made during the existence of the relationship . . . .” Wis. Rules of Evidence § 908.01(4) (b)4. (Emphasis added.)
The advisory committee’s notes specify that “[t]his provision is a change in Wisconsin law.” 59 Wis.2d R243. A party introducing the statement of an agent as the admission of the principal need not show that the agent had authority to speak for the principal; rather, the present rule only requires that the agent’s statement concern “a matter within the scope of his agency or employment.”
The evidence in the present case indicated that Sosnovske had been a salesman for Chevron for at least 13 years, at the time of the discussions with Per-zinski. Sosnovske had a degree in agronomy, and, as part of his job, he advised farmers on the use of various chemicals made by Chevron. Moreover, Sosnovske personally inspected Perzin-ski’s fields both before and after the application of Paraquat and was present during the actual application of the herbicide. Sosnovske also indicated that he filled out “product-complaint forms” when customers had complaints about the Chevron products and that he then sent the completed forms to Chevron.
Chevron, by the position it adopted in defending the present claim, is in effect stating that it is placing an experienced and knowledgeable salesman in the field to convince a prospective customer that a particular product would accomplish a particular result, yet repudiating from the protective corporate shield the statements of its agents without which the sale could not have been consummated. Here, the impact of the use of a product in the manner and for the very purpose for which it was sold could be disastrous, as the jury obviously found it to be. In our opinion, Sosnovske was acting within the scope of his authority in stating in effect that the company would stand in back of the product for the specialized purpose and use for which it was sold by him. We also note that other superior representatives of the company did participate in the selling process. The statements were, therefore, properly admitted as admissions of Chevron..
Chevron also contends that even if Sosnovske’s statements were admissions by the company, the statements were, nonetheless, privileged because they were made as part of settlement negotiations. The policy rationale which excludes an offer of settlement arises from the fact that the law favors settlements of controversies and if an offer of a dollar amount by way of compromise were to be taken as an admission of liability, voluntary efforts at settlement would be chilled. That, however, is not the situation we find in the language used by Sosnovske. Instead, he was in effect stating that the herbicide was sold to you on the basis that it would aid, not substantially destroy, your crop and the company is prepared to stand in back of the basis of the sale. The dollar amount was, of course, left open but that did not make the statements of the company’s position with regard to backing up its product an offer of compromise and settlement.
II
Chevron next argues that the district court erred in finding the defendant negligent as a matter of law.
The rule in the Seventh Circuit is that, in diversity cases, state law controls as to when a verdict can be directed. Etling v. Sander, 447 F.2d 593, 594 (7th Cir. 1971). In Wisconsin, “[a]n issue should be taken from the jury and a verdict directed against a party only when the evidence gives rise to no dispute or is so clear and convincing as reasonably to permit unbiased and impartial minds to come to but one conclusion.” Valiga v. National Food Co., 58 Wis.2d 232, 241, 206 N.W.2d 377, 382 (1973).
In the present case, there is no dispute that § 94.70(1) (b) of the Wisconsin Statutes forbids the distribution of any pesticide “about which claims are made, or directions for use are given, which differ in substance from the representations made in connection with its registration [with the Wisconsin Department of Agriculture].” A violation of this statute is negligence per se. Perry Creek Cranberry Corp. v. Hopkins Agr. Chem. Co., 29 Wis.2d 429, 438, 139 N.W.2d 96, 101 (1966).
Chevron also admits that the label which the company submitted to the Federal Department of Agriculture provided, in pertinent part:
“For best results, the application should be delayed to provide maximum weed and grass emergence but should be applied before 40 to 50 percent of the potatoes have emerged. An application made after 50 percent emergence may reduce yields.”
Having reviewed the entire record, we find that, viewing the evidence in the light most favorable to Chevron, the evidence was so clear and convincing that reasonable persons could reach but one conclusion, namely that the emergence of Perzinski’s potatoes in the affected fields was more than 50% at the time of the Paraquat application.
Moreover, the evidence indicated that a Chevron representative told Perzinski that Paraquat would only singe the potatoes a little and delay them about three days and that then the potatoes would be back to normal. There was no evidence that Chevron’s representative told Perzinski that there was a risk of reduced yield. The claim that the potatoes would only be “singed a little” was substantially different from the label warning that an application after 50% emergence might reduce yield. The district court, therefore, properly found that, as a matter of law, Chevron violated § 94.70(1) (b).
Chevron contends, however, that this determination is predicated on the representations in the federal label whereas § 94.70(1) (b) refers to representations in the label submitted to the state agency. (Perzinski was unable to introduce into evidence the state label and any accompanying data because the items had been destroyed by the state as a routine matter after three years.) We find Chevron’s argument unpersuasive.
The federal label represents the minimum information that could have been submitted to the Wisconsin agency and in its federal form was generally accepted by the state. Chevron admitted in oral argument that the company could not have supplied contrary information to the state and federal agencies. The label submitted to the state of Wisconsin, therefore, must have contained at least as much information regarding the hazards of applying Paraquat after 50% emergence as was contained in the federal label (i. e., Chevron could not tell the state that Paraquat would only singe potatoes if applied after 50% emergence when the company had already told the federal agency that, after 50% emergence, Paraquat might reduce yields). If Chevron submitted to Wisconsin a more detailed explanation of the problems of applying Paraquat after 50% emergence, this could only serve to increase, not decrease, the discrepancy between the label and the claims made to Perzinski.
Ill
The district court submitted to the jury three special verdict questions, one of which the court answered itself by finding Chevron negligent as a matter of law. Chevron argues that the district court erred in failing to give a special verdict question and instruction on the issue of whether Perzinski was con-tributorily negligent in failing to cultivate his fields.
A district court has considerable discretion as to the nature and scope of the issues to be submitted to the jury in the form of special verdict questions under Rule 49(a), Fed.R.Civ. P. Elston v. Morgan, 440 F.2d 47, 49 (7th Cir. 1971); Mickey v. Tremco Mfg. Co., 226 F.2d 956, 957 (7th Cir. 1955). Moreover, it is not error to refuse to submit a question or instruction where the issue is adequately covered by other questions or instructions. Gillam v. J. C. Penney Co., 341 F.2d 457, 461 (7th Cir. 1965); Mead v. Cochran, 184 F.2d 579, 482 (7th Cir. 1950).
In the present case, the issue of Per-zinski’s alleged contributory negligence, while not exhaustively so, was adequately covered by the district court in other instructions. The jury was told that “there may be more than one cause of a decreased crop yield.” The district court specifically instructed the jury that the award of damages was to be directly tied to the “natural consequence of the defendant’s negligence.” As the district judge noted, “Defendant was free to contend, and did contend, that some or all of the diminished yield was caused by factors other than the application of the Paraquat.”
We also note that there was no substantial dispute as to the dollar amount of the damages to the crop but that nevertheless the jury did, under the instructions, proceed to reduce in accordance with the comparative negligence rule followed in Wisconsin the amount of the verdict by a specific percentage. Since the dollar amount of the damages was not substantially disputed, and since the defenses of Chevron that their product was not the cause of the disaster would have eliminated any verdict, the percentage reduction in the verdict can only fairly be attributed to jury recognition that Perzinski’s failure to cultivate after the damage became obvious was, under the court's instructions on causation, a cause, even though minimal, of a decreased crop yield.
Chevron has prosecuted its appeal vigorously and the issues presented are close ones, perhaps needlessly so because the jury obviously found credibility to be with the plaintiff’s version of the case and the evidence was strong that the product in question applied pursuant to expert advice from qualified representatives of the manufacturer caused the crop failure in question. We are satisfied that justice was rendered and that a new trial is not indicated.
Accordingly, the judgment of the district court is
Affirmed.
. The plaintiff contends that any error in admitting these statements became moot when the district court found Chevron negligent as a matter of law. This contention is without merit. The statements in question were material to the issues of causation and damages as well as to the issue of negligence.
. Rule 43(a), Fed.R.Civ.P., provides inter alia, that evidence is admissible in a federal district court if it is admissible under federal statutes, or under the rules of evidence heretofore applied in federal courts in suits in equity, or under the rules of evidence in the courts of the state in which the federal court is held. The preference is for admissibility.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
sc_partywinning
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case.
SHENKER v. BALTIMORE & OHIO RAILROAD CO.
No. 414.
Argued April 17, 1963.
Decided June 10, 1963.
Charles Alan Wright argued the cause for petitioner. With him on the brief were 'John Ruffalo and James E. McLaughlin.
Alexander H. Hadden argued the cause and filed a brief for respondent.
Mr. Chief Justice Warren
delivered the opinion of the Court.
The petitioner brought an action under the Federal Employers’ Liability Act, 45 U. S; C. §§ 51-60, in the Federal District Court for the Western District of Pennsylvania to recover for injuries caused by the alleged negligence of the respondent Baltimore & Ohio Railroad (B&O) and the Pittsburgh & Lake Erie Railroad (P&LE). At the close of the evidence, the District Court directed a verdict in favor of the P&LE on the ground that the evidence failed to establish that the petitioner was-an employee of that company as required by § 1 of the Act (45 U. S. C. § 51). The case against the B&O, .however, was submitted to the jury which returned a verdict of $40,000 for the petitioner. The District Court denied a motion for judgment n. o. v. and entered judgment as found by the jury. On appeal, the Third Circuit Court of Appeals, one judge dissenting, reversed, holding that the petitioner failed to establish negligence on the part of the B&O. 303 F. 2d 596. A rehearing en banc was denied. We granted certiorari. 371 U. S. 908.
The petitioner was employed by the B&O at its Mahoningtown station in New Castle, Pennsylvania. The railroad complex at Mahoningtown consisted of four sets of tracks, two owned and operated by the B&O and two by the P&LE. On the B&O side, the B&O maintained a station and station facilities. Although, the P&LE maintained a station, it kept no employees, all necessary services for the two stations being provided by B&O employees. The B&O ticket agent issued tickets in the B&O station for the P&LE trains. The petitioner provided janitor work for both stations and assisted the loading and unloading of mail cars for the trains of both railroads. The petitioner was paid by the B&O and was under the sole supervision of the B&O ticket agent.
On the date of the accident, October 15, 1956, the petitioner handled, the mail for the P&LE train scheduled to depart Mahoningtown at 12:25 a. m. The petitioner loaded 20 to 25 bags of mail on a B&O wagon at the B&O station. He crossed the B&O and P&LE tracks to the P&LE platform and, when the P&LE train pulled up, brought the wagon alongside the mail car door. On this occasion, in spite of the efforts of the petitioner and the P&LE baggageman, one Beck, the sliding door on the P&LE car would not open more than 18 or 20 inches. According to the petitioner, Beck commented thai'he had reported the defective door to the P&LE which had yet to fix it and that they would have to. get the mail on and off as best they could. The petitioner, standing on the wagon, had no difficulty throwing the smaller bags in the restricted opening. The larger ones, however, weighing from 80 to 100 pounds, ¿required the petitioner “to twist around,” and “to keep pushing and forcing them” to get them in the opening. In the process of this unusual exertion, the petitioner felt something snap in his back. He- reported the injury immediately to the B&O ticket agent. Treatment of the injury eventually required the removal of a ruptured .intervertebral disc and resulted in the petitioner’s permanent disability. On the basis of this evidence, the jury found for the petitioner.
Before considering the merits of the decision below, the petitioner raises a procedural point,, claiming that he was denied a rehearing en banc in the Third Circuit Court of •Appeals in violation of his rights under 28 U. S. C. § 46 (c). At the time the petitioner filed his motion for rehearing en banc there were eight active judges serving on the Third Circuit. Four judges voted to grant the rehearing, two voted to deny, and two abstained. The rehearing was denied. The petitioner claims that to grant a rehearing en banc, the statute requires only a majority of those present. The Third Circuit requires an absolute majority pf the active members of the court. Section 46 (c) provides:
“Cases and controversies shall be heard and determined by a court or division of not more than three judges, unless a hearing or rehearing before the court in banc is ordered by a majority of the circuit judges of the circuit who are in active service. A court in banc'shall consist of all active circuit judges of the circuit.”
The Court had occasion to consider this section at length in Western Pac. R. Corp. v. Western Pac. R. Co., 345 U. S. 247. It there said:
“In our view, § 46 (c) is not addressed to litigants. It is addressed to the Court of Appeals. It is a grant of power. It vests in the court the power to order hearings en banc. It goes no further. It'neither forbids nor requires each active member of a Court of Appeals to entertain each petition for a hearing or rehearing en banc. The court is left free to devise its own administrative machinery to provide the means whereby a majority may order such a hearing.” Id., at 250.
The Court went on to say that the rights of the litigant go no further than the right to know the administrative machinery that will be followed and the right to suggest that the en banc procedure be set in motion in his case. The practice of the Third Circuit has been fully revealed by Judge Maris in Hearing and Rehearing Cases In Banc, 14 F. R. D. 91, which was referred to with approval by this Court in United States v. American-Foreign S. S. Corp., 363 U. S. 685, 688, n. 5. ’’Although every petition for rehearing is submitted to every member of the court, a judge is not required to enter a formal vote on the petition. Such a procedure is clearly within the scope of the court’s discretion as we spoke of it in Western Pacific. For this Court to hold otherwise would involve it unnecessarily in the internal administration of the Courts of Appeals.
Turning to the merits, there can be no question that the petitioner is an employee of the B&O as required by § 1 of the F. E. L. A. Although the B&O suggests that the petitioner may have been the employee of the P&LE within the meaning of the common law loaned-servant doctrine, Standard Oil Co. v. Anderson, 212 U. S. 215; Linstead v. Chesapeake &.Ohio R. Co., 276 U. S. 28, 32-34, there is no evidence in the record to support such a conclusion. In describing the loaned-servant doctrine, the Court in Anderson stated that when the nominal employer furnishes a third party “with men to do the work and places them under his exclusive control in the performance of it, [then] those men become pro hac vice the servants of him to whom they are furnished.” 212 U. S., at 221. The Court concluded that under the common law loaned-servant doctrine immediate control and supervision is critical in determining for whom the servants are performing services. In the present case, the undisputed facts show that the petitioner was at all times paid by the B&O and under the sole supervision of B&O employees. The intimations of the B&O that the petitioner might' have been given directions by the P&LE baggageman is at most an example of the minimum cooperation necessary to carry out a coordinated undertaking, and, as noted- in Anderson, cannot amount to control or supervision. 212 U. S., at 226. The whole tenor of the services the B&O provides for the P&LE speaks of an agreement by the B&O to manage and operate the P&LE station at Mahoningtown. On such evidence, the petitioner is clearly an employee of the B&O even under the common law loaned-servant doctrine, and we therefore need not consider the extent to which that doctrine applies to cases under the F. E. L. A. See Linstead v. Chesapeake Ohio R. Co., supra; compare Sinkler v. Missouri Pac. R. Co., 356 U. S. 326, 329-330.
The only remaining issue is the negligence, if any, of the respondent B&O. The trial judge instructed the jury that
. . a railroad is under a duty to exercise ordinary prudence, caution and care to inspect and to furnish its employees with cars on' which they work equipped with reasonably safe doors, even though the cars are owned by another railroad. A failure of the B&O Railroad to do so is negligence, providing that the railroad can foresee that one of its employees may be injured in performing his work in connection with that car and its equipment which are not reasonably safe.”
No exception was taken to this charge. In his opinion denying the B&O’s motion for judgment n. o. v., the trial judge relied on a series of court.of appeals decisions standing for the more broad proposition that a railroad has the nondelegable duty to provide its employees with a safe place to work even when they are required to go onto the premises of a third party over which the railroad has no control. See Kooker v. Pittsburgh & Lake Erie R. Co., 258 F. 2d 876; Chicago Great Western R. Co. v. Casura, 234 F. 2d 441; Beattie v. Elgin, J. & E. R. Co., 217 F. 2d 863. These decisions are in accord with the opinions of this Court in Bailey v. Central Vermont R. Co., 319 U. S. 350; Ellis v. Union Pac. R. Co., 329 U. S. 649; Harris v. Pennsylvania R. Co., 361 U. S. 15, reversing 168 Ohio St. 582, 156 N. E. 2d 822. The present case has been argued to us on the basis of these same decisions and the safe-plaee-to-work doctrine. The respondent admits the general statements of the doctrine in these cases. It bases its defense solely on the proposition that because the P&LE train had just pulled into the station, the B&O did not have sufficient opportunity to obtain actual or constructive notice of the defective mail ear door. The respondent relies on two lower court cases holding that where the defect in the premises of the third party arose within minutes or hours of the accident, there was insufficient time as a matter of .law for the railroad to be held to have notice. Kaminski v. Chicago R. & I. R. Co., 200 F. 2d 1; Wetherbee v. Elgin, J. & E. R. Co., 191 F. 2d 302, subsequent appeal reported in 204 F. 2d 755, cert. denied, 346 U. S. 867.
Whatever the validity of these last two cases, they do not have relevance here. We hold that the B&O had a duty to inspect P&LE cars before permitting its employees to work with them. The standard of care applicable to the use of cars belonging to a. foreign railroad was settled long before the accident in this case. In Baltimore & Potomac R. Co. v. Mackey, 157 U. S. 72, an employee of the -Baltimore & Potomac was killed when a defective brake did not hold on a freight car hauled by the Baltimore & Potomac, but belonging to another railroad. Relying on the language of an earlier New York decision, Gottlieb v. New York & Lake Erie R. Co., 100 N. Y. 462, 467, 3 N. E. 344, 345, the Court concluded that a railroad
“. . . is bound to inspect foreign cars just as it would inspect its own cars. It owes the duty of inspection as master .... When cars come to it which have defects visible or discoverable by ordinary inspection, it must either remedy such defects or refuse to take such cars; so much at least is due from it to its employés.” 157 U. S., at p. 90.
The Court did not have to look far for the “sound-reason and public policy” behind this principle. Relying on'the language of the lower court, the Court said:
“It would be most unreasonable and cruel to declare, that, while the faithful workman may obtain compensation from a company for defective arrangement of its own cars, he would be without redress against the same company if the damaged ear that occasioned the injury happened to belong to another company.” 157 U. S., at p. 89.
This decision was reaffirmed and extended a short time later in Texas & Pac. R. Co. v. Archibald, 170 U. S. 665. In that case, the Texas & Pacific accepted a car of the Cotton Belt Railway for loading at a cottonseed oil mill on a spur off the Texas & Pacific track. In the process of switching, an employee of the Texas & Pacific was seriously injured due to a defective coupling on the foreign car; The Texas & Pacific attempted to distinguish the Baltimore & Potomac case on the ground that the duty to inspect did not apply when a railroad accepted a foreign car only for loading rather than for hauling over its line in one of its trains. The Court dismissed the argument, summarily:
“The argument wants foundation in reason and is unsupported by any authority. In reason, because, as the. duty of the company to use reasonable diligence to furnish safe appliances is ever present, and applies to its entire business, it is beyond reason to attempt by a purely arbitrary distinction to take a particular part of the business of the company out of the operation of the general rule, and thereby to exempt it, as- to the business so separated, from any obligation to observe reasonable precautions to furnish appliances which are in good condition.” 170. U. S., at p. 670.
See generally, Annotation, 41 L. R. A. 101. The rules adopted in these two cases are unavoidably applicable to the present case. The B&O required the petitioner to work with cars belonging to the P&LE, taking no precautions whatsoever to protect him from possible defects in these cars, defects for which it would be liable should they appear in its own cars. As Texas & Pacific makes abundantly clear, there is no de minimis rule called into play on account of the brevity of the sojourn of the P&LE train in Mahoningtown station, since the length of the sojourn is irrelevant to the duty owed to the employee working with the car. Nor is it an answer to claim that the B&O lacked control or supervision over the P&LE car. Such arguments have never supported an exception to the employer’s duty to provide a safe place to work, Chicago Great Western R. Co. v. Casura, supra, p. 447; Beattie v. Elgin, J. & E. R. Co., supra, p. 865; Terminal R. Assn, of St. Louis v. Fitzjohn, 165 F. 2d 473, 476-477, and have no greater relevance here with respect to the duty to provide reasonably safe cars, see Annotation, 41 L. R. A. 101. The B&O may adequately protect itself by refusing to permit its employees to service the car. Since the instructions to the jury adequately reflect the holdings in these cases and since the B&O’s failure to inspect is uncontested, the jury verdict should have been affirmed.
Although recovery in this case is supported by the common law, it is also required by any reasonable construction of the Federal Employers’ Liability Act itself. As we stated in Sinkler v. Missouri Pac. R. Co., 356 U. S. 326, 330: “it was the conception of this legislation that the railroad was a- unitary enterprise, its economic resources obligated to bear the burden of all injuries befalling those engaged in the enterprise arising out of the fault of any-other member engaged in the common endeavor.” . If recovery were denied in this case, the railroads, by the simple expedient of doing each other’s work, could tie their employees up in legal technicalities over the proper railroad'to sue for injuries and perhaps remove from coverage of the Act a significant area of railroad activity. It would subject the employee once more to the stricter negligence standards of the common law. and such debilitating doctrines as assumption of risk. Cf. Texas & Pac. R. Co. v. Archibald, 170 U. S. 665, 673.
In our opinion the case was submitted to the jury under proper instructions, and there was a reasonable basis in the evidence for the verdict which the jury returned.
Reversed.
The testimony of" the B&O ticket agent on duty at the time of the petitioner’s injury stands undisputed in the record:
“Q. [By the Court] Did the P&LE have any boss there that night?
"A. No, sir, the P&LE didn’t have any employees whatsoever connected with that operation there.
“Q. Under whose supervision was Mr. Shenker?
“A. He was under the ticket' agent, Mr. Boyd.
“Q. On that turn when he got hurt?
“A. On that turn he was under my supervision.
“Q. During the four months you say he worked there, did any P&LE employee give directions or orders to" the plaintiff?
“A. No, sir.
“Q. From whom did he receive-direction' and orders, instructions?
“A. From me or Mr. Boyd would let me know what he wanted done and I would tell Mr. Shenker.
"Q. And you and Mr. Boyd were exclusively Baltimore & Ohio Railroad employees?
“A. Yes, sir.”
The Court in Texas & Pacific went on to hold that the railroad will not be held to its duty to inspect where the employee himself becomes aware of the defect yet continues to work with the car with knowledge of its defect. This exception to the rule was based on the belief that the employee assumes the risk of handling appliances which are known to be defective. * 170 U. S., at pp. 672-673. This exception, of course, is no longer relevant under the F..E. L. A., since § 4 of the Act expressly eliminates assumption of risk as a defense to negligence on the part of the employer. In its place, the railroad may raise contributory negligence on the part of the employee in mitigation of damages, a defense that was raised in this case and on which the jury was properly charged.
Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case?
A. Yes
B. No
Answer:
|
songer_appnatpr
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Gary L. COSTLOW, Appellant, v. UNITED STATES of America.
No. 76-1659.
United States Court of Appeals, Third Circuit.
Argued Jan. 14, 1977.
Decided March 22, 1977.
David W. Marston, U. S. Atty., Walter S. Batty, Jr., Asst. U. S. Atty., Chief, Appellate Section, Aram K. Jerrehian, Jr., Robert E. Slota, Murphy and Slota, Bryn Mawr, Pa., for appellant.
William J. McGettigan, Asst. U. S. Atty., Philadelphia, Pa., for the United States.
Before GIBBONS and GARTH, Circuit Judges, and COHEN, District Judge.
Mitchell H. Cohen, United States District Judge for the District of New Jersey, sitting by designation.
OPINION OF THE COURT
GIBBONS, Circuit Judge.
In this suit under the Federal Tort Claims Act plaintiff Gary L. Costlow appeals from an order granting the government’s motion for summary judgment. Since the case was inappropriate for summary judgment, we reverse.
Costlow sustained severe permanent injury from burns of the face, arms and upper torso in an automobile accident which occurred on the Schuylkill Expressway in Conshohocken, Pennsylvania. Costlow was a passenger in an automobile which was struck from behind when it slowed down to avoid an overturned truck obstructing the highway. The overturned truck was carrying United States mail. Contending that the truck had negligently been left on the expressway so as to obstruct the extremely busy expressway traffic for over four and a half hours, and that the obstruction resulted in his accident, Costlow timely filed an administrative claim for his injuries with the United States Postal Service. When the claim was denied he instituted this lawsuit. The complaint alleges:
3. On December 11, 1974, in a public highway known as Interstate Route 76, in Conshohocken, Pennsylvania, defendant, by its agents, acting within the course and scope of their employment, negligently operated a motor vehicle so that it overturned and blocked one lane of traffic, thereby causing other vehicles to stop.
4. Immediately thereafter, at said time and place, the defendant, by its agents acting within the course and scope of their employment, negligently maintained the overturned vehicle so that a dangerous condition was caused upon the highway.
The government answered:
Defendant specifically denies that it or any of its agents, servants, workmen or employees was involved in the accident in any manner. Rather, the vehicle complained of in Paragraphs 3 and 4 of the Complaint was a Star Route vehicle owned and operated by an independent contractor, Waite, Inc., its agents, servants, workman or employees.
Thus the Complaint alleged two theories of negligence, negligently operating the vehicle, and negligently maintaining it on the highway after it overturned. The government denied that its agents were involved in either of the alleged incidents.
Costlow, upon receiving the government’s answer, served two interrogatories. The first sought information about the relationship between the United States and Waite, Inc., and was obviously designed to lead to information which might establish that although the overturned truck was not owned by the Postal Service, it nevertheless exercised such control over the truck driver that he should be considered an agent of the United States. Such information would, of course, be relevant to Costlow’s first theory of negligence. The second interrogatory sought “the names, addresses, business addresses, employers and job classifications of all persons who were involved, or in any way concerned or connected with the overturned trailer of Waite, Inc. on December 11, 1974, or the handling, processing or removal of the same or its contents from Interstate 76.” Such information would be relevant to Costlow’s second theory of negligence, since he contends, and the government has admitted, that Postal Service employees came to the scene of the accident to remove and safeguard the mail contained in the overturned truck.
Without answering the interrogatories the government filed a motion for summary judgment, supported by the single affidavit of Robert H. Wieman, Director, Transportation Services Office, United States Postal Service. The Wieman affidavit identifies and annexes as an exhibit the contract between the Postal Service and Waite, Inc. for the carriage of mail between Philadelphia and Pittsburgh. It also says that Wieman received a report of the December 11, 1974 accident which states that the driver, Joseph Faulisi, was at the time of the accident employed by the contractor, Waite, Inc. Wieman’s affidavit says nothing about the Postal Service employees who came to the scene to remove and safeguard the mail. Thus Costlow’s second theory of negligence was not even put in issue by the government’s moving papers.
In response to the motion for summary judgment Costlow filed an affidavit. It states:
2. Plaintiff believes, and therefore avers, that the defendant had, or assumed the duty of removing the overturned mail truck of the alleged privaté contractor from the highway known as Interstate 76.
This allegation plainly reiterated Costlow’s second theory of negligence, as to which Wieman’s affidavit was silent. Costlow’s affidavit also states:
4. The plaintiff has initiated discovery to ascertain the identity of the persons involved in the administration of the contract which is attached to the defendant’s motion.
5. Until the requested discovery is completed, the plaintiff cannot truly appraise its position and prospective opposition to the application for judgment.
Thus, as to the first theory, to which Wieman’s affidavit spoke, Costlow responded in the manner expressly authorized by Fed.R. Civ.P. 56(f).
Without hearing argument, the district court on March 31, 1976 granted summary judgment. In its memorandum the court reasoned:
It is readily apparent [from the text of the government’s contract with Waite, Inc.] that the driver of the overturned vehicle was the employee of an independent contractor and not a person acting on behalf of a federal agency within the meaning of the Federal Tort Claims Act
Nor can we perceive any duty or obligation on the part of the government to remove the truck from the highway.
No mention is made in the memorandum of the government’s concession in an answer, filed subsequent to its motion for summary judgment, to Costlow’s interrogatory that a number of Postal Service employees were “concerned or connected with the overturned trailer ... or the handling, processing or removal of same or its contents from Interstate 76.”
Since the government’s moving papers never even addressed Costlow’s second theory of negligence, that Postal Employees dispatched to the scene negligently maintained the truck on the highway while removing or safeguarding the mail, and since the government’s answer to Costlow’s interrogatory concedes that Postal Employees were at the scene for that purpose, it was error to grant summary judgment on this issue. Thus the judgment appealed from must be reversed.
The government urges that even if summary judgment was improper on Cost-low’s second theory, summary judgment with respect to the negligence of the truck driver was proper. We cannot agree. The crucial issue is whether the Postal Service exercised such control over the mail truck and its driver, despite the contract, that the driver was actually an employee of the federal government within the meaning of the Federal Tort Claims Act rather than an employee of an independent contractor. The district court decided that issue solely by examining the written contract. Assuming, without deciding, that in the absence of any other evidence relating to control the contract would be dispositive, it cannot be said at this stage of the proceedings that there is no other evidence. Cases discussing the issue of control discuss it as a question of fact.
Costlow contends that despite the contract the Postal Service in fact exercised control over the activities of the driver. He responded to the government’s motion for summary judgment by saying that he needed additional discovery in order to justify his opposition. Rule 56(f) contemplates such a response, and we have said that where the facts are in possession of the moving party a continuance of a motion for summary judgment for purposes of discovery should be granted almost as a matter of course. Ward v. United States, 471 F.2d 667, 670-71 (3d Cir. 1972). We do not suggest that after discovery the status of Waite, Inc. and its driver will still be so uncertain as to preclude summary judgment. But by acting on the motion for summary judgment without argument, and without reference to what might be developed in discovery, which was being diligently pursued, the court erred.
The judgment appealed from will be reversed.
. 28 U.S.C. § 2671 et seq.
. Fed.R.Civ.P. 56(f) states:
(f) When Affidavits are Unavailable. Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or "may make such other order as is just.
. See, e. g., United States v. Orleans, 425 U.S. 807, 813-816, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976); Logue v. United States, 412 U.S. 521, 528, 93 S.Ct. 2215, 37 L.Ed.2d 121 (1973).
. See, e. g., Logue, supra, 412 U.S. at 532, n.8, 93 S.Ct. 2215; Witt v. United States, 462 F.2d 1261 (2d Cir. 1972); United States v. N. A. Dergerstrom, 408 F.2d 1130, 1132 (9th Cir. 1969); Close v. United States, 130 U.S.App.D.C. 125, 397 F.2d 686 (1968).
. See n.2 supra.
. See, e. g., Tunder v. United States, 522 F.2d 913, 915 (10th Cir. 1975); Fisher v. United States, 356 F.2d 706 (6th Cir.), cert. denied, 385 U.S. 819, 87 S.Ct. 41, 17 L.Ed.2d 57 (1966).
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_respond1_1_3
|
F
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
The BADA COMPANY, a California corporation, Plaintiff-Appellant, Cross-Appellee, v. MONTGOMERY WARD & CO., Incorporated, an Illinois corporation, Defendant-Appellee, Cross-Appellant. The BADA COMPANY, a California corporation, Plaintiff-Appellant, Cross-Appellee, v. FMC CORPORATION, a Delaware corporation; Weaver Manufacturing Co., a Division of Dura Corporation, a Michigan corporation; Big Four Industries, Incorporated, an Ohio corporation, Defendants-Appellees, Cross-Appellants.
Nos. 23436, 23433.
United States Court of Appeals, Ninth Circuit.
April 28, 1970.
Rehearing Denied in No. 23433 June 2, 1970.
C. Russell Hale (argued), of Christie, Parker & Hale, M. Roy Spielman, Pasadena, Cal., for appellant.
Lewis E. Lyon (argued), Charles G. Lyon, of Lyon & Lyon, Los Angeles, Cal., for appellee.
Before DUNIWAY, HUFSTEDLER and WRIGHT, Circuit Judges.
EUGENE A. WRIGHT, Circuit Judge:
Appellant is the owner of two patents relating to a system of balancing automobile wheels, and of the registered trademarks “Micro” and “Micro-Precision,” applicable to wheel weights and balancers used in the patented system. This action is for infringement of both patents and trademarks, and for unfair competition. The District Court found that the patents were invalid for obviousness, 35 U.S.C. § 103, but that if valid they had been infringed. It held the trademarks valid and infringed, and awarded damages. Defendants’ counterclaim, alleging patent and trademark misuse, was dismissed, and it has been abandoned in oral argument here.
I.
The record shows that plaintiff’s predecessor in title was the inventor of a method for balancing automobile tires covered by patent No. 3,002,388. The patented system involves four steps. First, the wheel is placed horizontally on a balancer equipped with a spirit level and allowed to tilt freely from side to side. The bubble in the spirit level indicates the location of the “light spot” on the wheel — the point of greatest imbalance and the one which tips up the highest when the wheel tilts. Second, four equal weights are placed on the rim of the wheel, two on each side of the light spot and immediately adjacent to it. The weights are of a size such that when all four are placed at the light spot, they are sufficient to correct the tilt of the wheel and just slightly to “overbalance” it. Third, the pairs of weights are moved away from the light spot equal distances along the rim, until the induced overbalance is precisely corrected and the angle of tilt, as shown by the spirit level, is zero. Fourth, one of the weights in each pair is fastened into position; the other is removed, and fastened into the corresponding position on the other (nether) side of the wheel.
The system is simple and easy to apply, and there is no dispute that its application solved what had been a problem in the industry — the development of a speedy method for wheel balancing that could be taught to relatively unskilled workers. Commercial success followed.
The District Court however found, and we agree, that each of the elements in the patented process was covered by the prior art. Thus the Booth patent, British No. 731,459, discloses a static balancer on which the wheel is placed horizontally and which utilizes a spirit level to indicate imbalance. The Booth patent, the Hume patent, No. 2,052,295, and the Morse patent, No. 2,136,633 all involve placing weights at the light spot and “fanning” them out until the wheel is precisely balanced. The Holl patent, No. 2,592,804, and the Lowe pajtent, No. 2,700,892, disclose the division of weights and the attachment of one in each pair to the opposite rim.
The patent in suit, then, is merely a combination of known prior art elements. We are enjoined to scrutinize such patents “with a care proportioned to the difficulty and improbability of finding invention in an assembly of old elements.” Great A. & P. Tea Co. v. Supermarket Equipment Corp., 340 U.S. 147, 152, 71 S.Ct. 127, 130, 95 L.Ed. 162 (1950). To be sure, the combination here filled a long-felt need and enjoyed commercial success. But that is not enough to show patentability. Anderson’s-Black Rock, Inc. v. Pavement Salvage Co., 396 U.S. 57, 90 S.Ct. 305, 24 L. Ed.2d 258 (1969); Carborundum Co. v. Wilbanks, 420 F.2d 43 (9th Cir., 1969). Nor is this a case where a joinder of known elements produced a wholly unanticipated result, cf. United States v. Adams, 383 U.S. 39, 86 S.Ct. 708, 15 L. Ed.2d 572 (1966). On the contrary, the spirit level indicated the light spot, as it had before; moving the weights brought the wheel into static balance, as it had before; and transferring one weight to the other rim achieved dynamic balance, as it had before. “Two and two have been added together, and still they make only four.” Great A. & P. Tea Co., supra, 340 U.S. at 152, 71 S.Ct. at 130.
Essentially the same is true of the device covered by appellant’s patent No. 3,055,221, an improvement to the prior art pivot point wheel balancer. Pivot point wheel balancers áre not different, in their essentials, from a teeter-totter of the old-fashioned type. The wheel to be balanced is placed on a support member, attached in its turn to a metal ball. When the balancer is in the “on” position, the ball pivots on a flat metal platform, tipping to one side or the other if the wheel is imbalanced. When the balancer is in the “off” position, ball and platform are disengaged.
This mechanism occasioned trouble if the operator carelessly loaded a wheel onto the balancer while the latter was in the “on” position. The sudden impact had a tendency to flatten the ball against the platform, impeding the free rotation of the ball and destroying the accuracy of the balance. The patented device consists of a spring and cam arrangement that automatically disengages ball and platform whenever a wheel is removed from the balancer. The effect is to prevent damage to the ball by making it impossible to leave the balancer accidentally in the “on” position.
It is conceded that the pivot point balancer was known to the prior art. We have examined the spring and cam arrangement added to the prior art balancer and we cannot escape the conclusion that it would have been obvious to one skilled in the art. The use of springs and cams to return mechanical devices to their initial positions is old. And we cannot say that more than ordinary skill and ingenuity are shown by the mere fact that the patented device employed the weight of the wheel being balanced to prevent an untimely return to the “off” position, rather than the pressure of the operator’s foot (as did the prior art Holl patent No. 2,592,804). When hoary devices like springs and cams are involved, it will be a rare case indeed when mere artful placement of them will be non-obvious. The improvement, we think, “is the work of the skilful mechanic, not that of the inventor.” Hotchkiss v. M. Greenwood & Co., 52 U.S. (11 How.) 248, 267, 13 L.Ed. 683 (1851).
We affirm the District Court’s conclusion that the patents were invalid.
II.
As to the trademarks, the question is whether the court below erred in finding that they were not merely descriptive of the articles involved.
The law is that a word which is in its primary meaning merely descriptive of the goods to which it is applied may not be appropriated as the exclusive trademark of a single seller, since one competitor will not be permitted to impoverish the language of commerce by preventing his fellows from fairly describing their own goods. Lanham Act § 2(e), 15 U.S.C. § 1052(e); Delaware & H. Canal Co. v. Clark, 80 U.S. (13 Wall.) 311, 20 L.Ed. 581 (1871); Rohr Aircraft Corp. v. Rubber Teck, Inc., 266 F.2d 613, 623 (9th Cir. 1959); Telechron, Inc. v. Telicon Corp., 198 F.2d 903 (3d Cir. 1952).
If, however, a mark which is merely descriptive in its primary meaning acquires over time a secondary and distinctive meaning which serves to identify the goods of a single merchant, then the law will afford protection against unfair appropriation of the benefits resulting from the mark’s secondary meaning. Lanham Act § 2(f), 15 U.S.C. § 1052(f); Armstrong Paint & Varnish Works v. Nu-Enamel Corp., 305 U.S. 315, 59 S.Ct. 191, 83 L.Ed. 195 (1938); Safeway Stores v. Safeway Properties, 307 F.2d 495 (2d Cir. 1962); Wilhartz v. Turco Products, 164 F.2d 731 (7th Cir. 1947).
Applying these principles to the instant case, we have no difficulty concluding that the mark “Micro,” as applied to wheel weights, is merely descriptive. Both in its advertising and in its brief here, plaintiff contends that its system allowed wheels to be balanced with weights of the smallest possible size. “Micro” appears in dictionaries and in common usage as a combining form meaning extremely small, or tiny. Plaintiff’s mark, therefore, is exactly analogous to other marks relating to the size of goods which have been held merely descriptive. George Ziegler Co. v. Tom Huston Peanut Co., 37 C.C.P.A. 947, 181 F.2d 237 (1950); Little Tavern Shops v. Davis, 116 F.2d 903 (4th Cir. 1941); Keller, Inc. v. Chicago Pneumatic Tool Co., 298 F. 52 (7th Cir. 1923).
Equally descriptive is the mark “Micro-Precision,” as applied to wheel balancers and weights. Certainly the element “Precision,” as applied to a balancer or balancing weight, conveys merely that the system of balancing is accurate and precise; the term is descriptive, and it has been so held. Precision Apparatus Co. v. Precision Meter Co., 6 Misc.2d 817, 165 N.Y.S.2d 853 (1956).
The addition of the element “Micro” only strengthens the meaning, and denotes that the system is more than ordinarily accurate and precise. It is true that “micro” in this sense appears in no dictionary, and were we grammarians we should perhaps flinch at its use. Be that as it may, we are required to consider standards of meaning not our own, but prevalent among prospective purchasers of the article. Blisscraft of Hollywood v. United Plastics Co., 294 F.2d 694, 699 (2d Cir. 1961). And, however barbarous the use, we have no doubt that in the jargon of the trade “micro” functions as little more than an inexact intensified for “precision.”
We think, therefore, that the District Court erred in holding the plaintiff's trademarks ■ non-descriptive. Since no showing as to secondary meaning has been made, the judgment as to the validity of the trademarks must be reversed.
Affirmed in part, reversed in part.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
|
songer_circuit
|
E
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
HESS OIL & CHEMICAL CORPORATION, Petitioner-Cross Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner. OIL, CHEMICAL AND ATOMIC WORKERS INTERNATIONAL UNION, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Hess Oil & Chemical Corporation, Intervenor.
Nos. 21928, 26681.
United States Court of Appeals Fifth Circuit.
Sept. 2, 1969.
W. D. Deakins, Jr., Charles L. Berry, Houston, Tex., for petitioner Hess Oil & Chemical Corp.; Vinson, Elkins, Weems & Searls, Houston, Tex., of counsel.
Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, William Wachter, Arthur A. Horowitz, Attys., N.L.R.B., Washington, D. C., for the N.L.R.B.
Chris Dixie, James P. Wolf, Houston, Tex., Jerry D. Anker, Cole & Groner, Washington, D. C., John Tadlock, James J. Cronin, Denver, Colo., for Oil, Chemical and Atomic Workers Intern. Union.
Before COLEMAN and SIMPSON, Circuit Judges, and MEHRTENS, District Judge.
COLEMAN, Circuit Judge:
These cases spring from a common source and will be decided by this consolidated opinion. The order of the National Labor Relations Board, 167 NLRB, No. 8 (1967) will be enforced. The petition for review in No. 26,681 will be denied.
I Prior Proceedings
Proceedings prior to this review may be summarized as follows:
1. Unfair labor practice charge filed against Hess Oil and Chemical Corporation April 2, 1963, alleging that the company violated the National Labor Relations Act by refusing to bargain with the union, in violation of §§ 8(a) (5) and (1), and by engaging in an illegal lockout of its employees at its Corpus Christi refinery;
2. Complaint filed May 15, 1963;
3. The trial examiner finds the company to be in violation of the Act on both counts of the charge and complaint, November 18, 1963;
Decision of the National Labor Relations Board, adopts the trial examiner’s findings, September 16, 1964 ; 4.
5. October 19, 1964, the Board and Hess Oil move this Court to stay further proceedings pending the United States Supreme Court decision in American Ship Building v. N.L.R.B., 380 U.S. 300, 85 S.Ct. 955, 13 L.Ed.2d 855. Stay granted, October 30, 1964;
6. The Board moves the Fifth Circuit for a second stay to allow the Board to consider the impact of American Ship Building. Motion granted, June 2, 1965;
7. The Board issues its Supplemental Decision and Order (August 17, 1967) reaffirming its previous finding on the failure to bargain question but setting aside that part of the earlier decision which held the company to have engaged in an illegal lockout;
8. Hess Oil petitions this Court for a review of the Board order and the Board cross petitions for enforcement. That ease was docketed and calendared here as No. 21,928;
9. June 10, 1968, the Oil, Chemical and Atomic Workers International Union filed a petition in the United States Court of Appeals for the District of Columbia Circuit to review that portion of the Board’s order concerning the lockout. Hess intervened and moved that the union’s petition be transferred to the Fifth Circuit. Motion granted August 19,1968. The case is docketed and calendared here as No. 26,681.
II Facts
On January 27, 1963, Hess Oil and Chemical Corporation purchased the properties of Delhi-Taylor Oil Refining Company, including a refinery at Corpus Christi, Texas. At that time, and for many years prior thereto, the production and maintenance employees at Delhi-Taylor’s Corpus Christi plant were represented, for collective bargaining purposes, by the Oil, Chemical and Atomic Workers International Union.
To prepare for negotiations with the union, H. W. McCollum, a vice-president of Hess, met March 8, 1963, with two officers of the union, W. I. Forrester and J. Elro Brown. At that time, McCol-lum announced that Hess had purchased the Delhi-Taylor refinery and wished to negotiate a new contract with the union. He expressly rejected assumption of the existing collective bargaining agreement between the union and Delhi-Taylor and insisted on an entirely new contract. That Hess had no obligation to assume the previously existing Delhi-Taylor contract is not disputed.
One of the major changes McCollum insisted upon was that the laboratory and warehouse employees at the refinery be excluded from the bargaining unit, as it had previously existed, although it was conceded that these employees appropriately belonged to this unit. McCollum contended that their exclusion was necessary because of certain changes Hess wished to make in the employment structure at Corpus Christi. For example, the laboratory employees, who were not covered by collective bargaining agreements at Hess’s other plants, would periodically be transferred from location to location. Therefore, to place them in a bargaining unit would restrict the company’s freedom to deploy them to other plants. As to the warehouse employees, McCollum stated that Hess intended to retain only one such employee, who would be engaged primarily in record keeping activities.
Another Hess proposal was that the employees at Delhi-Taylor be placed on probation from April 1 to June 1, and that their employment could be terminated during that period without the right to file grievance procedures. Hess, did, however, agree to adopt many of the provisions in the existing contract with Delhi-Taylor, such as vacation and sick leave benefits. Finally, McCollum told the union representatives that the union would have to accept Hess’s suggested contract terms in order for the refinery to remain in operation past April 1, the date it was to take possession from Delhi-Taylor.
Thereafter, the parties met eight times prior to April 1.- McCollum presented Hess’s proposals in writing and offered modifications in the company’s position, but steadfastly declined to change the proposed requirement that the warehouse and laboratory employees be excluded from the bargaining unit. The union rejected all company proposals and insisted, instead, that its contract with Delhi-Taylor be adopted without change for one year.
McCollum submitted a complete contract proposal March 25 which incorporated many of the existing contract provisions. This proposal was, the same day, rejected. Upon learning that the proposal had been rejected, McCollum called the union to determine what it really wanted. He was informed that Delhi-Taylor had refused to turn over certain information requested by the union and was withholding vacation and termination pay from the employees. Brown told McCollum that if he could “get those thieves off his back” [alluding to Delhi-Taylor] an agreement with Hess could probably be reached.
McCollum, eager not to shut the refinery down, met with Delhi-Taylor’s president in New York March 26 and volunteered to pay half of the vacation and termination pay (over $100,000) if Delhi-Taylor would agree to pay the remainder and furnish the information requested by the union. This was eventually accomplished. The union and Hess met twice after McCollum’s meeting with Delhi-Taylor’s president, and the information from Delhi-Taylor was supplied.
However, no contractual agreement was reached, so the Corpus Christi refinery ceased operations April 1. It remained closed until May 7. Hess then recalled most of the employees who had previously worked there.
Following the shut down of the refinery, the union filed charges with the Board, alleging that Hess violated § 8(a) (5) and (1) by refusing to bargain with it and by locking out its employees. The trial examiner found that the company had violated § 8(a) (5) and (1) by insisting on the exclusion of the laboratory and warehouse employees from the bargaining unit and by closing the plant.
The Board agreed with the trial examiner that the company’s insistence on the employee exclusion constituted a refusal to recognize the union as the bargaining agent of those employees and ordered it to bargain with the union as the exclusive representative of all employees in that unit, including the laboratory and warehouse employees, 148 NLRB 1080. The Board found, however, that the “record contains overwhelming evidence that Respondent [Hess] was desirous of entering into a contract with the Union and it engaged in good-faith bargaining to that end”. Furthermore, the Board findings rejected the contention that the company’s position on this issue “served to frustrate collective bargaining on other issues or that the company conditioned execution of an agreement with the Union upon the Union’s agreement to exclude the laboratory and warehouse employees.”
In this initial order the Board agreed with the trial examiner that the closing of the plant constituted an illegal lockout.
Faced with these results, Hess filed a petition to review the Board order. Subsequently, both the Board and Hess filed a motion to stay the proceedings until the Supreme Court should decide American Ship Building Company v. N.L.R.B., 380 U.S. 300, 85 S.Ct. 955, 13 L.Ed.2d 855 (1965). After that decision was rendered, the Board again moved for a stay to consider its impact on the instant ease. That stay was granted.
The Board filed a supplemental decision and order August 17, 1967, 167 NLRB No. 8. It reaffirmed its earlier finding that the company’s insistence on the exclusion of the warehouse and laboratory employees from the bargaining unit violated § 8(a) (5) and (1). It set aside, however, that portion of the original decision in which it had found that the lockout was illegal.
As previously stated, the company now petitions for review of the Board finding that the company committed an unfair labor practice by insisting upon the exclusion of the warehouse and laboratory employees from the bargaining unit. The union petitions for review of the Board finding that the lockout was not unlawful.
NO. 21,928 — HESS OIL AND CHEMICAL CORPORATION v. NATIONAL LABOR RELATIONS BOARD
Hess contends that it is not guilty of violating § 8(a) (5) and (1) as to the proposed exclusion of the laboratory and warehouse workers because that issue was a mandatory subject of bargaining and the proposal did not bring about the bargaining impasse between the company and the union. It is said that this is true although Hess concedes that a unit of production and maintenance employees at the Corpus Christi refinery, including warehousemen and laboratory employees, was an appropriate unit. We must reject this argument.
It runs as follows: If this issue was a mandatory subject of bargaining, Hess had a right to insist upon it to impasse. See N.L.R.B. v. American Compress Warehouse, Division of Frost-Whited Company, 5 Cir., 1965, 350 F.2d 365; cert. denied, 382 U.S. 982, 86 S.Ct. 558, 15 L.Ed.2d 472. On the other hand, if it were merely a voluntary subject of bargaining, it still had a right to bargain on the subject but could not insist upon it to impasse. See N.L.R.B. v. Floridan Hotel of Tampa, Inc., 5 Cir., 1963, 318 F.2d 545. That is to say, one party could not condition acceptance of the collective bargaining agreement upon the other party’s acceptance of a non-mandatory subject of bargaining, N.L.R.B. v. Wooster Division of Borg-Warner Corporation, 356 U.S. 342, 78 S.Ct. 718, 2 L.Ed.2d 823 (1958). Applying those well established rules to the instant case, the company argues, the following result is accomplished: If the exclusion of certain employees is a mandatory bargaining subject, the company could insist upon it to impasse, and by so doing there would be no failure to bargain. If, however, this is only a voluntary subject of bargaining, the Board specifically found that the company’s acceptance of the contract with the union was not dependent on the union’s acceptance of the exclusion of the warehouse and laboratory employees from the bargaining unit and that the company did not insist upon this subject to the point of impasse. Consequently, the company, under the Borg-Warner doctrine, still did not violate the Act. See, also, Oil, Chemical and Atomic Workers International Union, Local 3-89 v. N.L.R.B., D.C. Cir., 1968, 405 F.2d 1111, 1116.
The fatal flaw in this argument is that in the context now before us the issue was neither a mandatory nor a voluntary subject for bargaining.
Section 9(a) of the Act provides:
“Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for/ such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment.” [Emphasis added].
Pursuant to that section, it has been often held that an attempt [to impasse] to restrict bargaining to only certain members of an appropriate unit or to expand bargaining to include those beyond an appropriate unit is an unfair labor practice. In one instance, for example, the employer wanted to recognize the union as the bargaining agent only for union members. In rejecting the employer’s attempt the court held that
“the recognition required by 9(a) is not a bargaining matter as petitioner sought to make it. When it was disclosed to petitioner that Local 226 represented a majority of the employees in the appropriate unit, (this was at no time questioned by petitioner) the obligation was then fixed upon it to recognize the Local as the sole and exclusive bargaining agent, not only for the members of the Union, but for all employees. In place of complying with this statutory requirement, petitioner made it the subject of a long and extended bargaining process. Subsequent to the time when demand for recognition was made, petitioner, at all times, has been in default of its statutory obligation. Neither can the consequences of its refusal to grant complete recognition be dissipated by the fact — -if it be a fact— that it bargained with the Union on all other matters in dispute. In our view of the situation, there could be no genuine bargaining as contemplated by the Statute until complete recognition had been granted as the Act requires. Notwithstanding the fact that it agreed not to bargain with any other group or individual, its bargaining with Local 226, while limiting its recognition solely to members of the Union, made such bargaining abortive and of little, if any, effect.”
McQuay-Norris Manufacturing Company v. N.L.R.B., 7 Cir., 1940, 116 F.2d 748, 751. See, also, United Biscuit Company v. N.L.R.B., 7 Cir., 1942, 128 F.2d 771.
In Douds v. International Longshoremen’s Association, 2 Cir., 1957, 241 F.2d 278, the court pointed out that there was a clear distinction between “private bargaining over conditions of employment and administrative determination of the unit appropriate for bargaining”:
“The parties cannot bargain meaningfully about wages or hours or conditions of employment unless they know the unit of bargaining. That question is for the Board to decide on a petition under Section 9(c) of the Act, and its decision is conclusive on the parties (citation omitted), although the decision may subsequently be changed.”
241 F.2d at 282. The court further declared that the only process of changing the appropriate bargaining unit
“not permitted by the Act is one that denies the Board this ultimate control of the bargaining unit and disrupts the bargaining unit itself. This is precisely what occurs when, after the Board has decided what the appropriate bargaining unit is, one party over the objection of the other demands a change in that unit. Such a demand interferes with the required bargaining ‘with respect to. rates of pay, wages, hours, and conditions of employment’ in a manner excluded by the Act. It is thus a refusal to bargain in good faith * * *."
Id., 241 F.2d at 283.
Finally, in N.L.R.B. v. Southland Cork Company, 4 Cir., 1965, 342 F.2d 702, the Board had certified the union as the bargaining agent for all production and maintenance employees at the company’s plant, but the company insisted that the recognition clause in the contract be restricted to permanent employees. The court held that the company’s attempt to change the unit was a violation of § 8(a) (5) “since the Act required it to accord recognition to the union as representative of all the employees in the unit”, 342 F.2d at 706. See, also, United Aircraft Corporation (Hamilton Standard Division) v. N.L.R.B., 2 Cir., 1964, 333 F.2d 819; International Brotherhood of Electrical Workers, 116 N.L.R.B. 1792 (1958); enforced N.L.R.B. v. International Brotherhood of Electrical Workers, 5 Cir., 1959, 266 F.2d 349.
We hold that an issue concerning the construction of an appropriate unit so as to exclude certain members from that unit is not a subject for bargaining and an insistence upon it constitutes a violation of § 8(a) (5). The fact that the unit involved here was a contractual unit rather than one certified by the Board should not lead to a different result, since the duty to bargain depends on neither a Board election nor certification, N.L.R.B. v. Movie Star, Inc., 5 Cir., 1966, 361 F.2d 346.
NO. 26,681 — OIL, CHEMICAL AND ATOMIC WORKERS INTERNATIONAL UNION v. NATIONAL LABOR RELATIONS BOARD.
The trial examiner found that, after hard but good faith bargaining, negotiations between Hess and the union reached an impasse March 28, 1963, and that Hess’s lockout imposed April 1 was designed to bring economic pressure on the union to compel it to sign an agreement on Hess’s terms. In accordance with the law existing at the time, he determined that the lockout violated the Act. However, the Board, in reviewing the case, after the Supreme Court decision in American Ship Building Company v. N.L.R.B., supra, reached the opposite conclusion. The union now contends that because the Board here found that Hess violated § 8(a) (5) by insisting on the exclusion of the warehouse and laboratory employees from the bargaining unit, American Ship Building is not dispositive and the lockout was illegal.
In American Ship Building, the sole issue before the Court was whether an employer violates the Act, after a bargaining impasse has been reached, by temporarily shutting down his plant “for the sole purpose of bringing economic pressure to bear in support of his legitimate bargaining position”, 380 U.S. at 318, 85 S.Ct. at 967. It was held that a lockout for that purpose did not violate the Act.
As to the argument that an offensive lockout was a violation of § 8(a) (1), the Court found that such use was in no way “inconsistent with the right to bargain collectively or the right to strike,” 380 U.S. at 310, 85 S.Ct. at 963. And as to the allegation that a lockout for such purpose violated § 8(a) (3), the Court first noted that an § 8(a) (3) violation turned on employee motivation. The Court then proceeded to examine the employer’s motive:
“As this case well shows, use of the lockout does not carry with it any necessary implication that the employer acted to discourage union membership or otherwise discriminate against union membership as such. The purpose and effect of the lockout were only to bring pressure upon the union to modify its demands. Similarly, it does not appear that the natural tendency of the lockout is severely to discourage union membership while serving no significant employer interest. * * * It is true that the employees suffered economic disadvantage because of their union’s insistence on demands unacceptable to the employer, but this is also true of many steps which an employer may take during a bargaining conflict, and the existence of an arguable possibility that someone may feel himself discouraged in his union membership or discriminated against by reason of that membership cannot suffice to label them violations of § 8(a) (3) absent some unlawful intention. * * ”
380 U.S. at 312-313, 85 S.Ct. at 964.
In light of American Ship Building, it has been held that in the absence of any evidence that the employer was hostile to the union, or had attempted to interfere with the union’s rights to collective bargaining, or had used the lockout “in the service of designs inimical to the process of collective bargaining”, or that the layoff was intended to discipline employees for supporting the union, a lockout is not an unfair labor practice, Detroit Newspaper Publishers Association v. N.L.R.B., 6 Cir., 1965, 346 F.2d 527, 531.
In a case heavily relied upon by the Board in the instant case, the company sought agreement on a “pension insurance” matter, which was not a subject of mandatory bargaining. A lockout followed. The Board, however, found that the company had not insisted to the point of impasse on the union’s acceptance of the non-mandatory subject and then locked out its employees to accomplish that result. Rather, the Board found
“that the Company’s conduct during the negotiations evidenced a desire to arrive at a settlement on the terms for a new basic agreement, that the pension-insurance proposals were offered to facilitate settlement, and that the lockout, ‘after impasse was reached on issues other than the pension-insurance matter,’ was permissible economic pressure in support of a legitimate bargaining position under American Ship Bldg. Co. v. N.L.R.B., 380 U.S. 300, 85 S.Ct. 955, 13 L.Ed.2d 855 (1965).”
Oil, Chemical and Atomic Workers International Union, Local 3-89 v. N.L.R.B., D.C.Cir., 1968, 405 F.2d 1111, 1116. On review, the Court found substantial evidence to support the Board’s conclusion that the impasse was not a result of the company’s insistence on the non-mandatory bargaining subject and affirmed the Board’s decision, 405 F.2d at 1116.
It has been held, however, that a lockout is illegal where the evidence strongly supports the conclusion that the purpose of the lockout is to prevent the employees from freely determining their bargaining representative and to keep the employees’ present representative subservient to the employer, Tonkin Corporation of California v. N.L.R.B., 9 Cir., 1968, 392 F.2d 141. In addition, the Board has held a lockout to be illegal where the impasse which had been reached resulted from the employer’s refusal to negotiate in a lawful manner and not from a good faith disagreement over economic matters, American Stores Packing Company, Acme Markets, Inc., 158 N.L.R.B. 620 (1966).
The Board in this case made the following findings: (1) the insistence on the exclusion of the warehouse and laboratory workers from the bargaining unit did not frustrate collective bargaining on other issues and did not contribute to an impasse on the other issues; (2) there was no evidence that Hess conditioned the signing of a contract upon the union’s acceptance of Hess’s proposal for the bargaining unit exclusion; (3) the union’s rejection of Hess’s contract proposals was due neither “solely” nor “primarily” to Hess’s insistence on the exclusion of the warehouse and laboratory employees; (4) that Hess would have locked out its employees even had the bargaining unit issue been withdrawn from negotiations; and (5) that the lockout was not prompted by anti-union animus. These findings are unquestionably supported by substantial evidence.
In No. 21,928 the order(s) of the Board will be enforced.
In No. 26,681 the petition for review is denied.
. Supplementing 148 NLRB 1080 (1963).
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_usc1
|
0
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
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: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
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.
EMPIRE TRUST CO. et al. v. EQUITABLE OFFICE BLDG. CORPORATION.
No. 160, Docket No. 20853.
Circuit Court of Appeals, Second Circuit.
April 9, 1948.
Olin, Murphy & Redmond, of New York City (T. Fergus Redmond, of New York City, of counsel), for Empire Trust Co., appellant.
Wagner, Quillinan, Wagner & Tennant, of New York City (Sidney R. Nussenfeld, of New York City, of counsel), for Granger Committee for Debenture Holders, appellant.
Scribner & Miller, of New York City (Louis G. Bernstein, of New York City, of counsel), for Amott Debenture Holders’ Protective Committee, appellant.
Wickes, Riddell, Bloomer, Jacobi & McGuire, of New York City (Herman E. Riddell and Milton I. Newman, both of New York City, of counsel), for Equitable Office Building Corporation, appellee.
Henry S. Hooker, of New York,City (Irving L. Schanzer, of New York City, of counsel), for J. Donald Duncan, Trustee of Debtor, appellee.
Roger S. Foster, Sol., and Sidney H. Willner, Associate Sol., both of Philadelphia, Pa., George Zolotar, Sp. Counsel, of New York City, and Alexander Cohen, of Philadelphia, Pa., Atty., for Securities and Exchange Commission, appellee.
T. Roland Berner, of New York City, for stockholder appellees.
Before L. HAND, SWAN, and FRANK, Circuit Judges.
SWAN, Circuit Judge.
The Modified Plan of Reorganization provides for payment of the debentures in full with interest at the rate of 5% per annum to the date of consummation. The appellants contended below and reassert here that the debenture holders are entitled to interest at the rate of 6% per annum from June 1, 1941 (the maturity date by acceleration), on the principal of the debentures, and to interest at 5% per annum on 'the unpaid interest coupons attached to the debentures. Their appeals are from those portions of the orders of September 17, 1947, and October 24, 1947, which limited interest on the principal to 5% and denied any interest on the coupons. The district court wrote no opinion.
Little need be said as to the claim of 6% interest on the principal. Each debenture contains a promise to pay the principal on May 1, 1952, “and to pay interest thereon in like gold coin at the rate of five per centum (5%) per annum from May 1, 1917, on presentation and surrender * * * of the annexed coupons as they severally become due, on the first days of May and November in each year, until such principal shall be paid.” Interest was not paid on May 1, 1941, the debtor’s proceeding for reorganization under Chapter X of the Chandler Act, 11 U.S.C.A. § 501 et seq., having been filed April 10, 1941. Subsequently, pursuant to court order in the reorganization proceeding, the interest instalments due May 1 and November 1, 1941, were paid. The confirmed plan now before us provides for payment of 5% interest from November 1,1941. The appellants assert that the acceleration clause in Article VII of the Trust Indenture caused all debentures to become due on June 1, 1941, and that they are entitled to the statutory rate of 6% interest thereafter. Assuming without decision that the clause operated automatically, this would not render inapplicable the promise to pay interest at 5% per annum “until such principal shall be paid.” The contractual rate was to continue until p-ayni'cnt, not until the debentures matured, whether by lapse of time or acceleration. To support the conclusion that the contract rate must control it is sufficient to cite In re Realty Associates Securities Corp., 2 Cir., 163 F.2d 387, 389, certiorari denied sub nom. Manufacturers Trust Co. v. Realty Associates Securities Corp., 332 U.S. 836, 68 S.Ct. 218.
The claim of interest on overdue interest coupons is less simple. The interest coupon itself says nothing about interest after its maturity. But Article VII of the Trust Indenture, which deals with the trustee’s rights and powers after default, provides that the trustee may sell the collateral and, after deducting the expenses of sale and other charges, “the Trustee shall apply the residue of the proceeds, together with all cash held by it * * * to the payment, first, of all overdue coupons representing interest upon said debentures, in the order of their maturity, with interest thereon at the rate of five per cent, per annum, and then of the interest accrued on said debeiltures not represented by overdue coupons, and finally, of the principal of all said debentures, without preference or priority as between coupons of the same date or as between debentures; * * * ” If this provision be confined, as it literally is, to the payment of interest on overdue coupons only if the trustee has made a sale of the collateral, it would mean that the rights of a coupon holder who himself collects an overdue coupon from the obligor are different from his rights when the trustee collects for him. If he collects it himself he will either get 6% interest after' maturity, on the assumption that the law of New York treats an overdue coupon like a defaulted promissory note, or, on the contrary assumption, he will get only the face of the coupon since it contains no promise to pay interest after maturity; but if the trustee collects, the obligor must pay interest on overdue coupons, assuming that the law of New York recognizes such an obligation as valid. We cannot accept such an interpretation of the contract. As we said in Realty Associates Securities Corp., 2 Cir., 163 F.2d 387, 390, “It would introduce an inconsistency into the debtor’s obligations which the parties cannot reasonably be believed to have intended.” Consequently, we think the sale-of-collateral clause should be construed as equivalent to a covenant to pay interest at 5% per annum on overdue coupons. This presents the questions about which most of the argument has revolved, namely, whether such a covenant is valid under New York law, and, if it is, whether it can be recognized in a court of bankruptcy in view of Vanston Bondholders Protective Committee v. Green, 329 U.S. 156, 67 S.Ct. 237.
In Stewart v. Petree, 55 N.Y. 621, 623, the court stated that an agreement in advance for the payment of interest upon interest cannot be enforced, “for the reason that such an agreement is regarded in this State as against public policy.” Similar statements of the New York law may be found in many later cases. Thus in New-burger-Morris Co. v. Talcott, 219 N.Y. 505, 510, 114 N.E. 846, 847, 3 A.L.R. 287, Judge Cardozo said that “The rule is settled that a promise to pay interest upon interest is void if made at a time before simple interest has accrued,” citing Young v. Hill, 67 N.Y. 162, 23 Am.Rep. 99. And with respect to interest coupons, the same judge declared in Continental Securities Co. v. New York Central & H. R. R. Co., 217 N.Y. 119, 125, 111 N.E. 484, 486: “It makes no difference that the promise to pay interest is represented by coupons. Until detached and separately negotiated, a coupon is merely an incident of the bond without greater force than any other promise for the payment of interest,” citing Williamsburgh Savings Bank v. Town of Solon, 136 N.Y. 465, 481, 32 N.E. 1058, 1062. The Williamsburgh case, however, is not a precisely controlling authority because in that case there was no promise by the borrower to pay interest on the overdue coupons, while in the case at bar we have construed the sale-of-collateral clause of the Trust Indenture as equivalent to such a promise. No decision by a New York court which is exactly in point has been discovered, but the question whether a promise to pay interest on overdue coupons is valid under New York law has been carefully considered in several federal cases. In American Brake Shoe & Foundry Co. v. Interborough Rapid Transit Co., D.C.,S.D.N.Y., 11 F.Supp. 418, 419, 420, Judge Mack expressed the view that such a promise was unenforceable. Nevertheless he allowed interest to the coupon holders under the doctrine of Swift v. Tyson, 16 Pet. 1, 10 L.Ed. 865. Thereafter the question was presented in the same receivership to Judge Patterson, who was constrained by Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, to determine the New York rule and he reached a conclusion contrary to that expressed by Judge Mack. American Brake Shoe & Foundry Co. v. Inter-borough Rapid Transit Co., D.C., 26 F.Supp. 954. It is upon his decision that the appellants rely in contending that they are entitled to interest on the overdue coupons attached to their bonds.
Judge Patterson was of opinion that the New York cases which declared that a promise to pay interest on interest was against public policy were limited to agreements to pay technical compound interest and were not controlling where the agreement was for simple interest on overdue coupons. Great as is our respect for any judicial pronouncement of Judge Patterson we are compelled to differ with his view of the New York law on this subject.. As we read the cases, the courts of that state have used the terms “interest on interest” and “compound interest” interchangeably and have declared that either type of agreement made in advance is violative of public policy. Thus, in the Williamsburgh Savings Bank case, 136 N.Y. 465, 480, 32 N.E. 1058, 1062, the court said that the allowance of interest upon the coupons “results in an award of compound interest, which we have held not to be recoverable, except upon some new and independent agreement, made upon sufficient consideration.” Other cases involving true interest on interest situations are collected in Judge Nordbye’s able discussion of the New York law in In re Wisconsin Cent. Ry. Co., D.C.Minn., 63 F.Supp. 151, 154. See also Judge Clancy’s dictum in Transbel Inv. Co. v. Roth, D.C., S.D.N.Y., 36 F.Supp 396, 399, that interest on interest “differs from compound interest not in character or quality but only in quantity.” The Circuit Court of Appeals for the Sixth Circuit in In re American Fuel & Power Co., 151 F.2d 470, 476-478, after a thorough survey of the cases concluded that a promise to pay interest on overdue interest coupons is void under New York law. With this view we agree.
The Sixth Circuit case was affirmed sub nom. Vanston Bondholders Protective Committee v. Green, 329 U.S. 156, 67 S.Ct. 237, where the majority of the court held it unnecessary to pass upon the validity of the provision for the payment of interest on interest. The concurring opinion, however, accepted the finding of the Circuit Court of Appeals that in New.York the undertaking to .pay interest was void. Basing their argument on the majority opinion in the Vanston case, the appellees argue that even if the promise to pay interest on overdue coupons was valid under New York law it would not be recognized in bankruptcy. On the other hand, the appellants attempt to distinguish the Vanston case because there allowance of the interest on interest to the first mortagage bondholders would have reduced the amount subordinate creditors would receive in the reorganization, while in the case at bar it would merely reduce the sum payable to the debtor’s shareholders.- Whether the attempted distinction is sound we need not determine, since we have already decided that the promise to pay interest on interest created no valid obligation to holders of unnegotiated coupons.
The appellants’ further point that the plan of reorganization is unfair because it does not require the debtor to pay to the indenture trustee for debenture holders the interest coupons on mortgage bonds pledged as collateral, is without merit. Since the debenture holders are to be paid in full, they have no further interest with respect to the collateral.
The orders on appeal are affirmed.
In Knight v. Wertheim & Co., 2 Cir., 158 F.2d 838, 844 and Dana v Wertheim & Co., 2 Cir., 158 F.2d 982, this court determined the right of stockholders to present an amendment to an earlier plan of reorganization by way of an offer which would produce enough cash to pay off the debentures, principal and interest.
Mr. Justice Frankfurter, in his concurring opinion in the Vanston case, 329 U.S. at page 171, 67 S.Ct. at page 244, refers with apparent approval to Judge Mack’s view of New Fork law, as well as to Judge Cardozo’s dictum that “a promise to pay interest upon interest is void.”
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_usc2
|
18
|
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 18. Your task is to identify the second most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if fewer than two U.S. Code titles are cited. To choose the second title, the following rule was used: If two or more titles of USC or USCA are cited, choose the second most frequently cited title, even if there are other sections of the title already coded which are mentioned more frequently. If the title already coded is the only title cited in the headnotes, choose the section of that title which is cited the second greatest number of times.
UNITED STATES of America, Plaintiff-Appellee v. Helen Phyllis MILLER, Alfred A. Renzella, Ray Giancola, Alfons Bilello, and Angelo Vaccarro, Defendants-Appellants.
No. 14342.
United States Court of Appeals Sixth Circuit.
April 25, 1961.
Daniel W. Davies, Newport, Ky., for appellants.
Moss Noble, Asst. U. S. Atty., Lexington, Ky., Jean L. Auxier, U. S. Atty., and Moss Noble, Asst. U. S. Atty., Lexington, Ky., on brief, for appellee.
Before MILLER, Chief Judge, and SIMONS and MARTIN, Circuit Judges.
ORDER.
Appellants, Helen Phyllis Miller, and two male defendants, Alfons Bilello and Angelo Vaccarro, were each convicted on two counts for violation of United States Code, Title 18, Sec. 371 and also Title 18, Sec. 659 and were sentenced respectively for two years on each count, to run concurrently.
The Appellant Alfred A. Renzella was convicted of conspiracy and sentenced to 18 months imprisonment and Ray Gian-cola was convicted of conspiracy and sentenced to one year and one day in prison. All the convictions involved the violation of, or the conspiracy to violate, the code sections condemning as a crime buying, receiving, or having in possession goods which were moving as, or a part of, or which constituted an interstate shipment of, freight knowing the goods to have been stolen.
The conspiracy counts charged conspiracy to violate this code section.
After a review of the record setting forth the material evidence in the case, we think there was substantial evidence to support the conviction of the appellants of the offenses of which they were respectively found guilty by the verdict of the jury. We find, moreover, that no reversible error was committed by the trial Judge in his rulings on the admissibility of evidence, in his instructions to the jury as to the applicable law, or in any other ruling upon the trial of the case.
Therefore the judgment and sentence as to each of the five appellants is affirmed.
Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 18. 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_two_issues
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine whether there are two issues in the case. By issue we mean the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
RANKIN v. COX et al.
No. 9873.
Circuit Court of Appeals, Eighth Circuit.
April 17, 1934.
Glen H. Foe and Harold J. Requartte, both of Lincoln, Neb. (Maxwell V. Beghtol and Thomas S. Allen, both of Lincoln, Neb., on the brief), for appellant.
C. C. Fraizer, of Aurora, Neb. (Craft, Edgorton & Fraizer, of Aurora, Neb., on the brief), for appellees.
Before STONE and WOODROUGH, Circuit Judges, and OTIS, District Judge.
WOODROUGH, Circuit Judge.
Suits in equity (consolidated for trial) were brought by the trustee of Joshua Cox, bankrupt, to set aside two $2.0,000 real estate mortgages given by the bankrupt more than four months prior to bankruptcy, but recorded within the four-month period. It is clear that the mortgages were given for full present consideration passing to the bankrupt at the time and were not preferences voidable under section 60a and section 60b of tile Bankruptcy Act, as amended, 11 US CA § 96 (a, b). But the claim pressed upon the special master and the trial court and now insisted upon rests on the allegations of the trustee's petitions that the mortgages wer-e given “with the collusive agreement or understanding” that they “would be withheld from record * *; that the specific purpose of withholding them from record was to prevent the impairment of tho credit of said Joshua. Cox and to enable him, to borrow money upon the apparent ownership of: said lands free of encumbrance ® * *; that said mortgages were given to hinder, delay or defraud the creditors of said Joshua Cox and had. that effect and result. ® * * ” That the mortgages “constituted a secret lien upon the real estate for the purpose of preserving the credit of said Joshua Cox by concealing the fact that said Joshua Cox was in straitened financial condition and in fact insolvent.” , That “by reason of the fact that the mortgages did not appear of record but were, pursuant to said scheme and agreement, withheld from record * ® * many creditors whose claims have been duly filed and allowed in the bankruptcy proceeding, relied upon the records * * * and being misled by the fact that tho said mortgages were not recorded, extended credit to the said bankrupt between the respective dates of the delivery of said mortgages and the date of the filing thereof in the belief that he was the owner of the real estate * * * free and clear of encumbrance by” tho mortgages. “That the mortgages constitute fraudulent transfers,” voidable at the suit of the trustee.
The master in chancery reported in favor of sustaining the mortgage liens and the District Court affirmed, dismissing the suit. The trustee in bankruptcy appeals.
Under the Bankruptcy Act the trustee had the right to avoid any transfer by the bankrupt of his property which any creditor of such bankrupt might have avoided (section 70e of the Act, 11 1TSCA § 110 (e), including the right accorded creditors under the state law to avoid transfers made to hinder, delay, or defraud them. Section 36-401, Comp. St. Neb. 1929, Shreck v. Hanlon, 66 Neb. 451, 92 N. W. 626., and Id., 74 Neb. 264, 104 N. W. 193; Sheldon v. Parker, 66 Neb. 610 and 634, 92 N. W. 923, 95 N. W. 3015. It was conceded in the trial court that under the Nebraska statute, as construed by the Supreme Court, real estate mortgages are not required to be recorded except as against subsequent purchasers and incumbrancers. Stocker v. Church, 113 Neb. 639, 204 N. W. 398; Carey v. Donohue, 240 U. S. 430, 36 S. Ct. 386, 60 L. Ed. 726, L. R. A. 1917A, 295; Blair State Bank v. Stewart, 57 Neb. 58, 77 N. W. 370. And none of the bankrupt’s creditors represented by the trastee was a subsequent purchaser or incumbrancer.
Of the two mortgages attacked in these suits, one was given to the bankrupt’s nephew, Ralph E. C'ox, and the other to the bankrupt’s brother James.
We consider first the mortgage to the nephew. The bankrupt testified that there was ap express oral agreement that the mortgage should not be recorded. The nephew testified to the contrary that there was no such agreement or understanding. The nephew was to some extent corroborated by the witness Mr. Charles E. Stroman, who was present at conferences where the loan was discussed and stated .that there was nothing said in his presence about an agreement to refrain from recording or withholding the mortgage from record that he could recall. He thought there was nothing said about withholding from record. The import of the findings of the special master who saw and heard the witnesses is that the alleged agreement was not proven; and the trial court thought the evidence clearly preponderated against the trustee on the question of fraudulent agreement to withhold the recording of this mortgage. But the trustee insists that the proven circumstances under which this mortgage was given and withheld from record compel the conclusion that the lien was fraudulent and voidable at his instance, notwithstanding the conflict as to what was said at the time of the negotiation for and execution of the moi-tgage. We have, accordingly, examined the testimony and find as the facts which appear to us controlling:
That the bankrupt, Joshua Cox, was the owner of considerable real estate and engaged in farming on shares with his tenants on farm land and in feeding live stock. He was the president and active in the management of the American State Bank of York, Neb., for fifteen years before its failure in November, 1929; owning a majority of the stock and transacting all of his business through the bank. He also owned stock in the American State Bank Building Association and the American Trust Company, institutions closely affiliated with the hank of which he was president. His two nephews were associated with him in the American State Bank of York; Ralph E. Cox as cashier and a member of the board of directors and Prank H. Cox as assistant. His brother James, father of. Ralph E. and Prank H. Cox, was a stockholder in the bank, but not otherwise associated or interested in the bankrupt's enterprises. The bankrupt was also the president of and in control of a bank ■at Polk, Neb., in the adjoining county, in which neither his brother nor his nephews' had any direct interest. Although the bankrupt was at all times largely indebted to both secured and unsecured creditors, we adopt the finding of the trial court upon the conflicting testimony that the bankrupt was not insolvent at the time of the transactions involved. It appears that in May, 1929, the bankrupt requested his nephews to loan him $20,000 to enable him to fix up the reserve of his bank at Polk, the bank examiners having reported $38,000 of the paper of that bank to be bad or doubtful. There had been friction between the bankrupt and his nephews because of the bankrupt’s insistence upon putting paper from the Polk bank into the American State Bank of York, and the relations between the kinsmen were strained. The bankrupt disclosed the necessity he was under to put money into his Polk bank to prevent its failing and also represented that the failure of the Polk bank would bring a ran on the American State Bank, in which the bankrupt, his brother, and his two nephews had a common interest. The nephews had no ready money to loan but raised the $20,000 on Erank’s personal credit and resources and loaned the money to the bankrupt for the term of one year at 7 per cent., taking the mortgage in controversy as security. The understanding was that the bankrupt would shortly be able to and would sell some of his lands and repay the loan. Erank H. Cos testified that he had handled mortgages for the American State Bank for three or four years and that the bank had always filed them of record. He did not file this mortgage for more than four months after it was given, and 1ns only explanation was “that it was just negligence.” The explanation was disingenuous. The transaction was of g-reat importance to the nephews and the major incidents of it were forced sharply upon their consideration.
But it does not necessarily follow that the trial court was wrong in concluding that there was no understanding or agreement to withhold the mortgage from record. Although the bankrupt expected that it would not be recorded as appears from the fact that he made property statements for credit declaring that there were no recorded mortgages against the lands, and did so deliberately, in the confidence that the nephews would not record it, the evidence shows that the real reason why they did not rtxiord the mortgage was because, as experienced bankers, they feared that such recording would injure the American State Bank in which all of the parties to ihe transaction had a vitally important interest. The bankrupt, as president of the bank and an active business man, was prominent in Hit! community and the recording of a $20,000 mortgage on his land would inevitably stir up unfavorable discussion of the bank and its affairs. The evidence refutes any possible inference that the loan was made by the nephews out of personal consideration for the uncle. They made it solely to enable him to save liis Polk bank and thereby relieve and safeguard the American State Bank. We find no testimony in the record that brings home to the nephews any intent on their part to bolster up their uncle’s credit for liis personal advantage. Although it is proven that they had access to and inspected the uncle’s bank account at the American State Bank where lie transacted liis business, it is not shown that they knew of any transactions contemplated by their uncle in which he would require or use the appearance of credit afforded him by liis record ownership of the lands mortgaged to them.
It is trae, he did misuse the appearance of land ownership in himself and incurred obligations by making certain of the creditors believe that he owned the lands clear, but we, are not persuaded that such creditors or the bankruptcy trustee for them are entitled, under Nebraska law, to have the mortgages avoided.
It results in every case where a mortgage is given by the record owner of land and withheld from record that the debtor’s real condition is not what it seems to be on the records. Where he stays in possession, those who extend him credit in reliance on the appearance and on the record may lose, bnt the Nebraska recording laws do not purport to guarantee against all such loss. The laws do protect subsequent innocent purchasers or incumbrancers of the same lands, and regardless of the equities, accord to those who first file their instruments priority over late comers. So far as the letter of the statute is co r cerned, there is no other safeguard against frauds provided. Belief against abuse of the recording laws is entirely a creature of equity and equity assumes to relieve only against such abuses as amount to a fraud upon those in whose behalf it is asserted.
Where it can be shown that a mortgagee has withheld his mortgage from record under an agreement so to do and with the intent to enable the mortgagor to contract obligations on the faith of his seemingly clear ownership and so work a fraud upon creditors, there is a fraud to which the mortgagor and moitgagee are alike parties. There is a remedy in equity for the fraud to be accorded by avoiding the lien of the mortgage at the instance of any creditor so defrauded. Wo think the true rule is as stated by Judge Burton in Rogers v. Page (C. C. A.) 140 F. 506, page 606:
“ * * * The mere fact of an agreement to withhold (a real estate mortgage) from record is not of itself such evidence of a fraudulent purpose as to constitute fraud in law. It is, however, a circumstance constituting more or less cogent evidence of a want of good faith., according to the particular situation of the parties and the intent as indicated by all of the facts and circumstances of the particular case. 14 A. & Eng. Enc. Law, p. 526; Story, Eq. § 363; Bigelow on Fraud, p. 88 et seq.; Brown v. Easton (C. C.) 112 F. 592; Corwine v. Thompson N. Bank, 105 F. 196, 44 C. C. A. 442; Cadogan, v. Kennett, 2 Cowp. 432; Davis v. Schwartz, 155 U. S. 633, 639, 15 S. Ct. 237, 39 L. Ed. 289; Blennerhassett v. Sherman, 105 U. S. 100, 117, 26 L. Ed. 1080; Hafner v. Irwin, 23 N. C. 490; Hilliard v. Cagle et al., 46 Miss. 309.”
Tested by this rule, an understanding between the parties in this case that the mortgage would not be recorded would undoubtedly have been an important circumstance for consideration, but not determinative that the conduct of the nephews of the bankrupt was in fraud of the creditors represented by the trastee. As it does not appear that the nephews considered their uncle to be insolvent or that they had any reason to believe that he would engage in any transactions upon false pretenses as to his means, or that he would incur any obligations beyond his ability to fulfill; and as it is shown that the nephews loaned him their money in good faith upon the expectation that he would put his bank in Polk in a solid and solvent condition and that he would shortly sell some land and pay them back, with reason to expect benefit to their own bank and harm to no one, we are not persuaded that there was fraudulent withholding from record upon agreement in bad faith towards any of the creditors represented by the trustee in bankruptcy.
It is contended for the trustee that a withholding of the mortgage from record pursuant to understanding between the parties should be deemed conclusive evidence of fraud upon the bankrupt's subsequent creditors, and the following cases are cited: Hodiamont Rank v. Livingstone (C. C. A.) 35 F. (24) 18; McAtee v. Shade (C. C. A.) 185 F. 442; Dobson v. Snider (C. C.) 70 F. 10; National Bank of Athens v. Shackelford (C. C. A.) 208 F. 677; Id., 239 U. 5. 81, SS S. Ct. 17, 60 L. Ed. 158; In re Duggan (D. C.) 182 F. 252; In re Duggan (C. C. A.) 183 F. 405; Clayton v. Exchange Bank of Macon (C. C. A.) 121 F. 530; Mitchell v. Mitchell (D. C.) 147 F. 280; Fourth National Bank of Macon v. Willingham (C. C. A.) 213 F. 219; Crothers v. Soper et al. (C. C. A.) 10 F.(2d) 793; Davis v. Cassels (D. C.) 220 F. 058; Manders v. Wilson (C. C. A.) 235 F. 878; Jeggle v. Mansur (C. C. A.) 17F.(2d) 729; Rogers v. Page (C. C. A.) 140 F. 595; In re National Boat & Engine Co. (D. C.) 216 F. 208, 209; In re Lamie Chemical Co. (C. C. A.) 295 F. 24; Peterson v. Mettler (D. C.) 198 F. 938; Ash v. Honig (C. C. A.) 62 F.(24) 793. We find that none of the cited Nebra.ska cases sustains the doctrine. Careful consideration of each of the other cases convinces that each turned upon the particular facts presented in the case, and that none is in conflict with the rule as we have quoted it from the statement by Judge Lurton in Rogers v. Page, supra, except that National Bank v. Shackelford; Clayton v. Exchange Bank and In re Duggan, supra, were decided upon a statute of Georgia sufficiently different from the Nebraska statute to distinguish the cases. The other eases in which the mortgages were given without consideration or without present consideration, or where there were acts amounting to estoppel by the mortgagee, are not controlling here.
The decree sustaining the lien of the mortgage given by the bankrupt to his nephew was, therefore, not esroneous.
As to the other $20,000 mortgage in controversy, it appears that the brcther of the bankrupt to whom it was given died before the trial and the question is first presented whether the bankrupt was competent t0 testify to the relevant conversations and transactions between them under the Nebraska statute. The statute provides:
Section 20-1202, Compiled Statutes oi~ Nebraska, 1929:
"No person having a direct legal interest in the result of any civil action or proceeding, when the adverse party is the representative of a deceased person, shall be permitted to testify to any transaction or conversation had between the deceased person and the witness, unless the evidence of the deceased person shall have been taken and read in evidence by the adverse party in. regard to such transaction or conversation or unless such representative shall have introduced a witness who shall have testified in regard to such transaction or conversation, in which case the person having suck direct legal interest may be examined in regard to the facts testified to by such deceased person or such witness, but shall not be permitted to further testify in. regard to such, transaction or conversation. (Code § 329, B.. S. p. 449; 1888, p. 328; Ann. 1314; Comp. 6882; B.. S. 1913, 7894; C. S. 1922~ 8835.)"
The bankrupt's testimony was taken by the special master over objection to the competency of the witness under the statute, but the trial court excluded the testimony from consideration. Exceptions were saved and the question is presented by appropriate assignment.
We think the ruling of the trial court was in accordance with the principle of the Nebraska interpretation of the statute. Sorensen v. Sorensen, 56 Neb. 735, 77 N. W. 68; Tecumseh Nat. Bank v. McGee, 61 Neb. 709, 85 N. W. 949; which interpretation is controlling; USCA, title 28, § 631; In Thompson (D. C.) 205 F. 556; Remington on Bankruptcy, vol. 2, § § 560 and 2225. No case is cited to us from Nebraska deciding the exact question whether a bankrupt is competent to testify in a suit by his trustee against the representative of a deceased person concerning relevant transactions and conversations between the bankrupt and the deceased. But in the case of Housel v. Cremer, 13 Neb. 298, 14 N. W. 398, 399, the Supreme Court of Nebraska had for consideration an action in replevin brought against an assignee for the benefit of creditors. The lady who had made the assignment of her property for the benefit of her creditors had died and the plaintiff in the replevin suit undertook to testify to conversations and transactions had with her in her lifetime. The Supreme Court held he was incompetent to testify under the statute, saying:
"The th~'st of these (assignments of error) is that Housel, who offered himself as a witness in his own behalf, was not permitted to testify, the court holding him to cc disqualified by section 329 of the Code of Civil Procedure, which provides that `No person having a direct legal interest in the result of any civil cause or proceeding, shall be a competent witness therein when the adverse party is an executor, administrator, or legal representative of a deceased person/ etc. This ruling was correct. It is trae that Cremer was neither an executor nor administrator, but he was the assignee of Agnes M. McKelligon, and, within the contemplation of the statute, her ‘legal representative.’ He had, by the deed of assignment, been intrusted with the property in controversy for the purpose of selling it and paying off her debts. This done, if there should happen to be a surplus it would belong to her estate. * * * ”
Although the facts are not completely analogous, we think the principle announced is controlling upon us here. As declared by this court in Burton Coal Co. v. Franklin Coal Co., 67 F.(2d) 796, 801, “in the normal administration of a bankrupt estate, any surplus remaining in the custody of the trustee should go to the bankrupt.” We see no reason to doubt that the right of the bankrupt to all of his estate that may remain after bankruptcy administration is a right of a legal nature, and necessarily results in his having a direct legal interest in the bankrupt estate within the language of the Nebraska statute. Wheeling Structural Steel Co. v. Moss (C. C. A.) 62F.(2d) 37; In re Silk (C. C. A.) 55 F.(2d) 917; Berl v. Crutcher (C. C. A.) 60 F.(2d) 410, 441; Johnson v. Norris (C. C. A.) 190 F. 459, L. R. A. 1915B, 884. The bankrupt has also the right to make composition with his creditors (section 12 Bankruptcy Act, USCA, title 11, § 30) and upon confirmation of the composition, the bankruY>tcy proceeding must be dismissed (section 12e of: the Act (11 USCA § 30(e), leaving the bankrupt’s title to his estate unimpaired by the bankruptcy proceeding. This right also is in the nature of a legal interest in the estate.
The trial court cited in support of its conclusion cases in Nebraska holding that parties who are disqualified from testifying because of interest, cannot render themselves competent by transferring such interest after the death of the other party. Magemau & Company v. Bell, 13 Neb. 247, 13 N. W. 277; Riddell v. Riddell, 70 Neb. 472, 97 N. W. 609. BankruYitcy does operate to transfer the title and rights of the bankrupt to his trustee for the purposes of administration and these decisions lend support even though, as in this case, the bankruptcy was involuntary.
The trial court also called attention to the fact that in this ease the wife and daughters of the bankrupt had claims duly allowed aggregating a large percentage of all the allowed claims against the estate. It is held in Nebraska that the interest which a husband has in a cause of action belonging to the wife to recover real estate is a “direct legal interest” within the meaning of the statute, Holladay v. Rich, 93 Neb. 491, 140 N. W. 794; McEntarffer v. Payne, 107 Neb. 169, 185 N. W. 329; Brocker v. Day, 124 Neb. 316, 240 N. W. 490, and the existence of the claims of the wife and daughters illustrates the propriety of excluding the bankrupt’s testimony to accord with the spirit of the Nebraska statute.
The record indicates that the transaction in which James Cox loaned the bankrupt $20,000 and the bankrupt gave his brother the mortgage in controversy as security, was entirely between the two brothers, with apparently no witnesses. The mortgage was withheld from record until after the death of James C'ox and until occurrences developed strong likelihood that the Polk bank would fail. But we find in the record no circumstances indicative of fraudulent conduct or intent on the part of James Cox or his administrator towards the ci'editors represented by the trustee sufficient to require reversal of the decree of the trial court adjudging this mortgage valid as to the trustee in bankruptcy of Joshua Cox.
The decrees in both cases are, therefore, affirmed.
Section 36-101, Comp. St. of Nebraska, 1029:
“Every conveyance or assignment, in writing or otherwise, of any estate or interest in lands, or in goods or things in action, or of any rents or profits issuing therefrom, and every charge upon lands, goods or things in action, or upon the rents and profits thereof, made with the intent to hinder, delay or defraud creditors or persons, of their lawful rights, damages, forfeit ores, debts or demands, and every bond or other evidence of debt given, suit commenced, or decree or judgment suffered, with the like intent as against the persons so hindered, delayed or defrauded shall be void.”'
Section 76-218 Compiled Sta tutes of Nebraska, 1929:
“All deeds, mortgages and other instruments of writing which are required to be recorded shall take effect and be in force from and after the time of delivering tho same to the register of deeds for record, and not before, as to all creditors and subsequent purchasers in good faith without notice; and all such deeds, mortgages and other instruments shall be adjudged void as to all such creditors and subsequent purchasers without notice whose deeds, mortgages or other instruments shall be first recorded: Provided, such deeds, mortgages and instruments shall be valid between the parties.”
Question: Are there two issues in the case?
A. no
B. yes
Answer:
|
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.
ORANGE AND ROCKLAND UTILITIES, INC., Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Consolidated Edison Company of New York, Inc., Conoco, Inc., Tennessee Small General Service Customer Group, Alabama-Tennessee Natural Gas Co., Public Service Commission of the State of New York, Tejas Power Corporation, Berkshire Gas Company, et al., Peoples Gas Light & Coke Co., Long Island Lighting Company, Public Service Electric & Gas Company, Northern Illinois Gas Company, CNG Transmission Corporation, American Iron and Steel Institute, Intervenors.
No. 89-1129.
United States Court of Appeals, District of Columbia Circuit.
Argued March 30, 1990.
Decided June 12, 1990.
Robert A. Nelson for petitioner. Harry H. Voigt, M. Reamy Ancarrow, Diane B. Schratwieser, Washington, D.C., and Edward B. Myers were on the brief for petitioner.
Samuel Soopper, Atty., F.E.R.C., with whom Joseph S. Davies, Deputy Sol. F.E. R.C., was on the brief, for respondent. Dwight C. Alpern, Atty., F.E.R.C., also entered an appearance, for respondent.
Robert H. Benna, with whom David D. Withnell, Terence J. Collins, Washington, D.C., and Margaret B. Bollinger were on the brief, for Tennessee Gas Pipeline Co. Stephen E. Williams, Kevin J. Lipson, Charles C. Thebaud, Jr. and Mark G. Mag-nuson, Washington, D.C., were on the brief, for intervenors Tennessee Gas Pipeline Co. and CNG Transmission Corp. John E. Holtzinger, Jr., Washington, D.C., also entered an appearance for intervenor CNG Transmission Corp.
Harvey L. Reiter, Washington, D.C., and Barbara M. Gunther, Brooklyn, N.Y., were on the brief for intervenor, Consolidated Edison Co. of New York, Inc. William I. Harkaway, Washington, D.C., also entered an appearance for intervenor Consolidated Edison Co. of New York, Inc.
Bruce A. Connell, Houston, Tex., entered an appearance, for intervenor Conoco, Inc.
Michael J. Manning and James F. Moriarty, Washington, D.C., entered appearances, for intervenor Tennessee Small Gen. Service Customer Group.
Stanley M. Morley and Paul W. Diehl, Washington, D.C., entered appearances, for intervenor Alabama-Tennessee Natural Gas Co.
Richard A. Solomon and David D’Ales-sandro, Washington, D.C., entered appearances, for intervenor Public Service Com’n of the State of N.Y.
John W. Glendening, Jr., Barbara K. Heffernan and Bruce B. Glendening, Washington, D.C., entered appearances, for in-tervenor Berkshire Gas Co., et al.
Karen Lee and Thomas M. Patrick entered appearances, for intervenor Peoples Gas Light and Coke Co.
James F. Bowe, Jr. entered an appearance, for intervenor Long Island Lighting Co.
James R. Lacey entered an appearance, for intervenor Public Service Elec. & Gas Co.
David I. Bloom, Washington, D.C., entered an appearance, for intervenor Northern Illinois Gas Co.
Edward J. Grenier, Jr. and James M. Bushee, Washington, D.C., entered appearances, for intervenor American Iron and Steel Institute.
Richard E. Powers, Jr. and John M. Hopper, Jr., Washington, D.C., entered appearances, for intervenor Tejas Power Corp.
Before RUTH BADER GINSBURG, BUCKLEY and WILLIAMS, Circuit Judges.
Opinion for the Court filed by Circuit Judge STEPHEN F. WILLIAMS.
STEPHEN F. WILLIAMS, Circuit Judge:
Orange and Rockland Utilities, a customer of Tennessee Gas Pipeline Company, complains of two aspects of the Federal Energy Regulatory Commission’s treatment of Tennessee’s 1982 rate filing. See Order Affirming and Reversing Initial Decision, Tennessee Gas Pipeline Co. (“Order”), 45 FERC ¶ 61,031, pet. for reh’g denied in pertinent part (“Order on Rehearing”), 45 FERC ¶ 61,470 (1988). The first is the Commission’s insistence on a so-called “100% load factor rate” (effectively a rate based on fully allocated or average costs) for interruptible sales; the second, its approval of a higher commodity charge for a special class of gas transmission. We uphold the Commission as to the former and remand as to the latter.
Interruptible Sales Rate
Tennessee’s filing proposed to reduce the rate it charged for interruptible gas sales. The proposed rate would have equalled the commodity component of its rates for ordinary firm customers — its contract demand or “CD” customers. Under the “modified fixed variable” rate design approved for Tennessee, this charge would include all its gas costs, the variable costs of transportation and storage, and part of the fixed costs for the latter — return on equity and related income taxes. Thus interruptible purchasers would not have borne a share of that part of Tennessee’s fixed costs allocated to its demand charge.
The administrative law judge concluded that under the proposed reduced rate firm shippers would subsidize the interruptibles, and that Tennessee had shown no competitive need for the proposed rate (as against competition from alternative energy sources). Instead the AU reaffirmed the existing, previously approved 100% load factor rate, which matches what a firm customer would pay per unit of gas (in both commodity and demand charges) if it took 100% of its contract demand. See Initial Decision on Reserved Issue, Tennessee Gas Pipeline Co. (“ALJ Opinion”), 31 FERC ¶ 63,001 at 65,004-07 (1985). The Commission affirmed. Order, 45 FERC at 61,102-04.
For pipeline filings under § 4 of the Natural Gas Act, 15 U.S.C. § 717c, the burden of proof is on the pipeline when it proposes a rate increase. See Sea Robin Pipeline Co. v. FERC, 795 F.2d 182, 183 (D.C.Cir.1986); ANR Pipeline Co. v. FERC, 771 F.2d 507, 513 (D.C.Cir.1985). The Commission kept it there, even though the change proposed was a reduction, on the ground that it carried a possibility of shifting costs to firm customers. See 45 FERC at 61,103. The prospect of cost-shifting would seem to turn on projected volumes. If Tennessee’s proposal projected a high enough volume under the lower rate, interruptible service thereunder could make a greater contribution to fixed costs than under the 100% load factor rate, shifting costs away from the firm customers. It is not clear exactly how Tennessee handled the matter, but since no party has contested the allocation of the burden to Tennessee, we assume its validity-
In its petition for rehearing, Orange and Rockland rested primarily on what it viewed as the Commission’s failure to recognize the distinctions between the present case and prior Commission decisions applying a 100% load factor rate. That merely puts on the Commission a burden of explaining why it was extending the earlier decisions; it does not in itself make a case for the proposed alternative rate. Here we find that the Commission gave at least plausible explanations for extension of the prior cases. As neither Tennessee nor the customers seeking a lower interruptible rate undertook to show why the Commission’s approach was fundamentally wrong, we affirm.
Thus, Orange and Rockland points out that whereas in the- previous instances in which the Commission imposed the 100% load factor rate interruptible sales weren’t truly interruptible, see, e.g., Public Service Comm’n of the State of New York v. FERC, 813 F.2d 448, 453 (D.C.Cir.1987), here they are “interruptible in the extreme.” To this the Commission had two kinds of answers. First, it invoked its prior decision in Texas Eastern Transmission Corp., 37 FERC ¶ 61,260 at 61,697-61,705 (1986), reh’g denied, 41 FERC ¶ 61,015 at 61,028-30 (1987), aff'd sub nom. Texaco, Inc. v. FERC, 886 F.2d 749 (5th Cir.1989), which acknowledged that quality differences called for rate differences but noted that a 100% load factor rate is different from a standard CD rate: a firm customer would pay as little per unit only if it bought its full contract quantity. See Order, 45 FERC at 61,104. In essence it appeared to be saying that as the 100% load factor rate was a genuine advantage, it was unwilling to create further refinements for degrees of interruptibility.
More important, the Commission asserted that because interruptible service used the facilities for which the fixed costs were incurred, it properly bears some of those fixed costs. See id.; see also Order on Rehearing, 45 FERC at 62,471. In fact this does not seem necessarily so. In its regulation of interstate sales of electricity, the Commission takes the view that “those creating the critical need for power [i.e., the peak period users] are assigned the cost responsibility for all capacity-related costs.” Union Electric Co., 40 FERC ¶ 61,046 at 61,141 (emphasis in original), modified on reh’g, 41 FERC ¶ 61,343 (1987), rev’d on other grounds sub nom. Union Electric Co. v. FERC, 890 F.2d 1193 (D.C.Cir.1989). This view embodies the principle that regulators should allocate the costs of facilities to those whose demand causes them to be incurred, in order to provide users with correct incentives in their decisions about whether to invest in alternatives and about what quantities to take and when. See Union Electric Co., 890 F.2d at 1198-1201. If peak-period use determines the size of gas transmission facilities, as one would expect by analogy to electricity generation, then it is not clear why interruptible service — at least if it is genuinely interruptible — should bear any portion of the fixed costs. On the other hand, the Commission has for various reasons qualified its general policy of loading the fixed costs of electricity generation onto peak-period users, see discussion at 890 F.2d at 1198-1200, and similar ones may apply, perhaps even more forcefully, for gas pipelines.
In a policy statement issued after the decision under review here, however, the Commission appeared to adopt a view extremely sympathetic to peak-period pricing. Noting that regulations for unbundled transportation rates called for interruptible and off-peak rates that would “maximize throughput,” it observed that this principle should extend to the transportation portion of bundled sales rates as well. Policy Statement Providing Guidance with Respect to the Designing of Rates, 47 FERC ¶ 61,295 at 62,052 (1989). Although “maximize throughput” is surely hyperbole (a zero rate would do so, but would not cover variable costs), the policy statement appears to reflect an intention to apply to gas pipeline service something at least approximating the cost causation principles that it uses for electricity. But as neither Tennessee nor Orange and Rockland shouldered the burden of establishing the wisdom or necessity of those principles, we accept the Commission’s adherence to its former view.
Before the Commission, Tennessee and Orange and Rockland also asserted that the higher price seriously impaired the marketability of the interruptible gas. Although there was some vagueness in the ALJ’s response, which may mirror faults in Tennessee’s and petitioner’s own arguments, he did find that the 100% load factor rate was “competitive with the cost of alternative fuels in Tennessee’s market area.” 31 FERC at 65,006. Of course this is far from a finding that a lower rate would not increase sales — that would imply no price elasticity, which seems highly improbable. But neither Tennessee nor petitioner appears to have quantified the increase that would follow from the proposed reduction. Compare Ozark Gas Transmission System v. FERC, 897 F.2d 548 (D.C.Cir.1990); Natural Gas Pipeline Co., 27 FERC ¶ 61,235 (1984) (allowance of off-system sales at commodity rate based on demonstration of net benefit to system customers). Under the regulatory viewpoint then prevailing for gas sales rates, and not challenged by the parties at any fundamental level, the Commission weighed an uncertain gain in gas sales against a concern about wrongly shifting fixed costs to other customers. See id. On such a view, its decision to hold the line at the 100% load factor rate was not arbitrary.
Although the AU made no express finding on the effect of the lower rate on Tennessee’s competitive position with respect to other gas suppliers, again the prevailing policy left the Commission free to decide as it did, at least where the proponent of a change failed to make a strong record on the subject. For one thing, gas-against-gas competition raises special issues not present for competition against alternative fuels; increased gas usage may not be large enough to justify the reduced collective recovery of fixed costs by gas pipelines. Cf. Associated Gas Distributors v. FERC, 824 F.2d 981, 1019 (1987). And the Commission itself went on to observe that if Tennessee wished to develop a program for discounted interruptible sales, it could file for a certificate of convenience and necessity under § 7 of the Natural Gas Act, under which it could charge different rates for different customers. See Order on Rehearing, 45 FERC at 62,471. Although such a proposal would not have the procedural advantage of taking effect automatically on filing (subject to the Commission’s § 4 power to suspend for five months), the suggestion manifests a Commission recognition of the appropriateness of sales below the 100% load factor rate for purposes of meeting competition. It also provided Tennessee with a device for improving marketability with less impact on interruptible service’s contribution to fixed costs (because of the selectivity of the discounts), thereby assuaging the Commission’s then strong anxiety on the subject.
Rate for Transmission of Storage Gas
Tennessee’s storage service customers buy CD gas from Tennessee during the summer, store it with Tennessee at a point along the way, and then withdraw it during the winter. The gas travels the same distance as unstored gas. The arrangement benefits customers by enabling them to spread their purchases out over the year; they may as a result nominate a level of contract demand closer to the level of gas actually taken, thereby reducing their demand charges (effectively the charges made for claims on pipeline capacity). The pipeline presumably also benefits by being enabled to increase the total usage of its facilities.
At issue here is the way in which storage customers are charged for the transmission involved in the downstream leg of the journey, from storage to point of ultimate delivery. While the arithmetic is unclear to us, it appears undisputed that for this transmission, the storage customers pay a higher unit rate for transportation than do CD customers for firm service supplied in the peak period.
The record is particularly garbled as to the first possible element of the higher rate. The pipeline proposed to allocate the transmission costs of the downstream leg to the storage schedule rather than to the CD sales schedule, and the Commission agreed. This separation may appear a formality, with no real effect on the allocation of costs between storage and other customers. But the Commission itself appears to have believed that more was at stake, for in adopting Tennessee’s approach it rested on a substantive finding “that Tennessee’s pipeline and compressor facilities located downstream from storage were constructed in part to provide capacity for these storage services and that these are additional costs associated with moving gas from storage to the customer that are not associated with service to CD customers who do not use storage service.” Order, 45 FERC at 61,112.
It may be that the Commission approach leads to a kind of double charge for storage customers. Tennessee apparently eliminated any double counting as to its total revenues by subtracting from the CD schedule the costs added to storage service, see ALJ Opinion, 31 FERC at 65,017, but that would not necessarily solve the issue. If the storage customers’ initial CD charge covers transmission costs all the way to the point of ultimate delivery to them, as parts of the record suggest, see 45 FERC at 61,111 (noting Orange and Rockland argument that “deliveries out of storage actually represent the completion of CD sales”); 31 FERC at 65,018 (“the [storage] customer is entitled to final delivery, whether out of storage or not, by virtue of its purchase under the CD rate”), the storage customers would be paying twice for the downstream leg. Not quite twice, of course, because as CD customers they would (along with the other CD customers) receive some benefit from the CD rate reduction.
If this is in fact the case, the Commission has not justified it. The fact that the downstream transmission facilities were constructed “in part” for the storage customers does not explain why they should pay more than other customers, for whom the facilities were also constructed “in part.” It is no reason to impose a burden on one class to point to a characteristic shared by the other.
Tennessee also secured Commission approval of a specific method of allocating costs — on the basis of average peak-day deliveries rather than on the basis of average annual deliveries, as it does for transmission costs under the CD sales schedule. Again the arithmetic is obscure, but again it is clear that this causes or contributes to the higher unit rate that storage customers pay for downstream transmission. Here the Commission justification was simply that “storage withdrawal service is clearly rendered on a peak winter basis and warrants an allocation on the basis of peak (not annual) deliveries.” Order, 45 FERC at 61,112.
The theory seems to be customers whose usage is heavily or exclusively loaded in the peak periods should pay a higher average rate than ones whose usage is more evenly spread out. But there are two problems here. First, that result can readily be attained by adopting a differential between peak and off-peak charges, an approach that also has the effect of imposing incentives on all peak-period users that reflect the role of peak usage in cost incurrence. Second, even if for some (as yet undisclosed) reason the Commission is reluctant to use a peak-period differential, in this particular case it has imposed special burdens on the storage customers for a reason — low load factor (i.e., an unevenly distributed load) — that evidently applies to many of the regular CD customers. See ALJ Opinion, 31 FERC at 65,017-18.
We realize that it is hard for the Commission to write simply enough to make its views comprehensible to inexpert judges. But whether because we are inexpert or obtuse, or because the Commission has not expressed itself clearly enough, we are unable to detect reasoned decision-making on this issue. Accordingly, although we affirm as to the interruptible rate, we must remand the case to the Commission as to the treatment of storage costs.
So ordered.
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_respond1_7_2
|
B
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained").
Don Camby LOWTHER, PlaintiffAppellee, v. UNITED STATES of America et al., Defendants-Appellants.
No. 72-1807.
United States Court of Appeals, Tenth Circuit.
Argued and Submitted May 24, 1973.
Decided June 20, 1973.
James H. Harrod, Oklahoma, Okl., for plaintiff-appellee.
O. B. Johnston III, Asst. U. S. Atty. (William R. Burkett, U. S. Atty., on the brief), for defendants-appellants.
Before PICKETT, HILL and DOYLE, Circuit Judges.
WILLIAM E. DOYLE, Circuit Judge.
The government here appeals a judgment of the District Court for the Western District of Oklahoma in favor of plaintiff-appellee awarding him the sum of $892.50 representing the reasonable market value of certain weapons which the government had seized and forfeited. These consisted of two-9 mm German Lugers, a Winchester 30 caliber rifle, one-9 mm Luger-Drum Magazine and two boxes of miscellaneous rifle and sub-machine gun parts.
The events leading up to the seizure are important to an understanding of the problem presented to this court. On March 8, 1970, officers of the Alcohol, Tobacco and Firearms Division of the Internal Revenue Service in the process of executing a search warrant seized the weapons in question from the residence of plaintiff-appellee. He was subsequently arrested and charged in a criminal case for possession of firearms contrary to 26 U.S.C. §§ 5861(d) and 5871. The seizure by the government was pursuant to 26 U.S.C. § 5872 as having been used illegally.
On May 20, 1970, the plaintiff-appellee filed a petition to the Director of the Alcohol, Tobacco and Firearms Division of the Internal Revenue Service claiming the five items of property which had been seized and asking for remission or mitigation of forfeiture of the said items.
On October 8, 1970, appellee was tried in the criminal case and was acquitted on all nine counts. Notwithstanding this, on January 29, 1971, notice was given that the application for remission or mitigation had been denied. On January 7, 1971, apparently without the knowledge of the appellee, the weapons and parts had been destroyed by Alcohol, Tobacco and Firearms Division agents.
Subsequently, on February 23, 1971, plaintiff-appellee filed the present action in the United States District Court for the Western District of Oklahoma. This took the form of a request for review of the Director’s decision. However, at the trial it appeared that the five items had been destroyed and the trial court treated the case as an action for damages, disregarding the plaintiff’s prayer for return of the items. As noted, a money judgment was entered. The basis for the court’s decision was that plaintiff had been acquitted of illegal possession of firearms in a criminal prosecution and that this was in effect an adjudication of the legality of the property and the plaintiff’s right to possess the same. The court reasoned that since the plaintiff was entitled to the possession and was in lawful possession the seizure was necessarily invalid. A seizure to be valid must be pursued, according to the court, by showing that the possession of the items be contrary to Title 26 U.S.C., Chapter 53. Therefore, the court continued, the imposition of the forfeiture contrary to law constituted an unconstitutional deprivation of the plaintiff’s property.
The government asserts that the trial court lacked jurisdiction to grant relief because first, the administrative ruling on the petition for remission or mitigation was final and conclusive and not reviewable either directly or indirectly; secondly, it is contended that a court hearing was available to the appellee only by posting a cost bond within the time requirement of 26 U.S.C. § 7325. Failure to post the bond resulted in a waiver. The question is then whether by applying for remission of the penalty pursuant to 26 U.S.C. § 7327 rather than filing a bond pursuant to 26 U.S.C. § 7325 gave rise to a consent or tacit approval of the action of the Secretary or' his delegate in denying the application.
An important‘factor is that the property here is neither narcotics nor other contraband. On the contrary, it was determined by the trial court to have been innocently used and to have not been illegal per se. Furthermore, the appellee was adjudged by the jury in the criminal case to be not guilty. Thus, the government must justify a taking and forfeiture which was unrelated to any violation of the law and which concerned property which was validly in possession of the appellee. It boils down then to the government’s having destroyed appellee’s property without having any authority in law to do it. Consequently, the action of the Director of the Alcohol, Tobacco and Firearms Division constituted a disregard of the evidence and law in the case and was contrary to the due process clause of the Fifth Amendment.
Prior to the decision of the Supreme Court in United States v. United States Coin & Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971), there was confusion as to the authority of officers of the government to seize and forfeit property. There were early cases which have held that such authority was absolute. Some of the older cases, on the other hand, held that an acquittal in a criminal case was a bar to the forfeiture and still other cases held that the criminal case and the forfeiture proceedings were interrelated and that the forfeiture could not be validly carried out unless there had been a conviction in the criminal case. Coin & Currency brought about some degree of order. It held first, that the forfeiture is criminal in character; secondly, it recognized the necessity for the owner of the property to have been using it in a criminal activity. It said that the forfeiture penalty is to be imposed only upon those who are significantly involved in a criminal enterprise. See 401 U.S. at 722, 91 S. Ct. 1041. It also questioned whether the forfeiture is an in rem proceeding since it is interrelated with the wrongdoing of the owner.
Also, since Coin & Currency, doubts as to the unlimited discretion of the Secretary have been removed. He may not arbitrarily deny remission in disregard of the evidence and the law and at the same time escape judicial inquiry and scrutiny.
As shown above, the Supreme Court has said that if the situation is sufficiently extreme, there will be court intervention. The form of court intervention is not defined, but this is not entirely new. Even the early cases such as Coffey v. United States, 116 U.S. 436, 6 S.Ct. 437, 29 L.Ed. 684 (1886), have said that acquittal in the criminal case allows the defendant to assert this judgment as a defense in forfeiture proceedings.
This court has, in relatively recent times, recognized the vitality of Coffey. In the case of United States v. One 1956 Ford Fairlane Tudor Sedan, 272 F.2d 704 (10th Cir. 1959), the defendant was prosecuted for the transportation of sugar intended for use in the unlawful manufacture of distilled spirits. The result of this was a verdict of not guilty. Notwithstanding the verdict, forfeiture proceedings were undertaken against the vehicle and the sugar. This court, applying the Coffey case, held that the acquittal in the criminal case barred forfeiture action.
In the ease at bar the trial court did not specify a jurisdictional avenue. It simply ruled that the plaintiff was entitled to recover based on the taking of his property without due process of law. There is, however, a statutory remedy which is peculiarly adaptable to the present case and that is the Tucker Act which authorizes the district court to entertain an action against the United States founded upon the Constitution.
We do not regard as significant the fact that the trial court did not cite the Tucker Act since it acted in accordance with it when it ruled that it had jurisdiction to remedy a taking of property contrary to the Fifth Amendment. While the Tucker Act would not be the appropriate remedy in every case, the peculiar facts here presented giving rise as they do to a palpable taking of property without due process of law render it peculiarly appropriate.
In summary, then, we hold that the officers here acted contrary to law in seizing the property in question; that the Director acted contrary to law in disregarding the evidence and in acting without any tenable legal basis, since the property was innocent and was not being used illegally. Finally, we agree with the trial court that the appellee’s constitutional rights were violated; we hold that the taking without due process gave rise to a remedy under the Tucker Act.
It follows that the judgment should be and the same is hereby affirmed.
. The trial court’s conclusions are set forth as follows:
The acquittal of the Plaintiff on criminal charges involving possession of firearms in violation of 26 U.S.C., §§ 5861(d), 5871, is in effect an adjudication of the legality of the property and the Plaintiff’s right to possess the same. The Plaintiff is the actual and rightful owner of the items of personal property set forth in his Petition for Remission or Mitigation of Forfeiture and has complied with all the laws, both state and federal, pertaining thereto. The Defendant’s contention that the property was rightfully forfeited according to the provisions and procedures prescribed in 26 U.S.C. § 7325, is in error since it is paramount to the invoking of that statute that the items of property involved be in violation of Chapter 53, Title 26, United States Code. This Court has determined that the items of personal property as described in the Plaintiff’s Petition for Remission or Mitigation of Forfeiture were not held in violation of law, and as such the Order of the Internal Revenue Service to have the property destroyed was in violation of the Constitution, the laws of the United States, and as such deprives the Plaintiff of his property without due process of law. The imposition of forfeiture on the Plaintiff is penal in nature and causes an unconstitutional deprivation of personal property without just compensation.
Consequently, the Plaintiff is entitled to a judgment in his favor for the fair market value of the items of personal property as described in his Petition for Remission or Mitigation of Forfeiture that were seized and ordered destroyed by the Internal Revenue Service.
. Early cases of this court, e. g. United States v. Kemp, 186 F.2d 808 (10th Cir. 1951), United States v. One 1941 Plymouth Tudor Sedan, 153 F.2d 19 (10th Cir. 1946), which state that the Secretary has uncontrollable discretion are wholly inconsistent with Coin & Currency.
. Cf. Notes 3 A.L.R.2d 738; 27 A.L.R.2d 738.
. The Court recognized the broad scope of the forfeiture proceedings, but that it is nevertheless subject to limitations of the Constitution. The Court stated:
An express statutory provision permits the innocent owner to prove to the Secretary of the Treasury that the “forfeiture was incurred without willful negligence or without any intention on the part of the petitioner . . . to violate the law .... 19 U.S.C. § 1618. Upon this showing, the Secretary is authorized to return the seized property “upon such terms and conditions as he deems reasonable and just.” It is not to be presumed that the Secretary will not conscientiously fulfill this trust, and the coiirts have intervened when the innocent petitioner’s protests have gone unheeded. When the forfeiture statutes are viewed in their entirety, it is manifest that they are intended to impose a penalty only upon those who are significantly involved in a criminal enterprise.
401 U.S. at 721-722, 91 S.Ct. at 1044 (emphasis added) ■ (citations & footnote omitted).
. The opinion of Judge Breitenstein declared :
On the ground that the acquittal in the criminal case barred recovery in this case, the trial court directed a verdict in favor of the defendant.
We are unable to distinguish this case from Coffey v. United States, 116 U.S. 436, 6 S.Ct. 437, 29 L.Ed. 684, wherein it was held that the acquittal of Coffey on various liquor tax charges barred forfeiture proceedings.
iji SH # #
Any departure from Coffey and its “uncritical language” must come from the Supreme Court. We are bound by the rule therein announced.
272 F.2d 70-4-705.
. It provides that the district court has original jurisdiction, concurrent with the Court of Claims, of
[a]ny . . . civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of any executive department, or upon any express or implied contract with the United States, or for liquidated damages in cases not sounding in tort.
28 U.S.C. § 1346(a)(2).
. This remedy has been applied to forfeiture proceedings by federal courts on previous occasions. United States v. One 1961 Red Chevrolet Impala Sedan, 457 F.2d 1353 (5th Cir. 1972); Jaekel v. United States, 304 F.Supp. 993 (S.D. N.Y.1969). In JaeTcel the plaintiff’s vehicle was seized as a result of conduct of her daughter. Subsequently, it was sold and the proceeds were turned over to the bank to satisfy the mortgage. An action was brought by the plaintiff alleging that the forfeiture was void in that it deprived her of her property without due process of law. The United States District Court for the Southern District of New York (Judge Bonsai) held that the Tucker Act was a proper remedy.
In United States v. One 1961 Red Chevrolet Impala Sedan, the Fifth Circuit rejected the government’s contention that the plaintiff had not followed the proper remedy and ruled that the owner of the property invalidly forfeited had a remedy under the Tucker Act. The court did not, however, give effect to the remedy, but due to the fact that the owner had sought to get relief under Rule 60(b) in the forfeiture proceedings, affirmed the action without prejudice to the owner to institute a new suit under the Tucker Act.
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:
|
songer_jurisdiction
|
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 it had jurisdiction to hear this case?" 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 opinion discusses challenges to the jurisdiction of the court to hear several different issues and the court ruled that it had jurisdiction to hear some of the issues but did not have jurisdiction to hear other issues, answer "Mixed answer".
William E. BROCK, Secretary of Labor, United States Department of Labor, Plaintiff-Appellant, v. Joann SHIRK, individually and doing business as Oregon Meat Cutting School; Frank B. Shirk, individually and doing business as Oregon Meat Cutting School, Defendants-Appellees.
No. 86-4121.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Sept. 11, 1987.
Decided Dec. 8, 1987.
Claire Brady White, U.S. Dept, of Labor, Washington, D.C., for plaintiff-appellant.
Edward N. Fadeley, Fadeley & Fadeley, Eugene, Or., for defendants-appellees.
Before WRIGHT, WALLACE and PREGERSON, Circuit Judges.
PER CURIAM:
This is a case about willfulness, good faith and the Fair Labor Standards Act (“FLSA”). The Secretary of Labor appeals from the relief, inadequate in his view, that was granted in litigation against violators of FLSA.
The trial judge found that employers, then before the court as repeat offenders under FLSA, “knew or had reason to know that [their] employees were working overtime hours without compensation.” He also ruled that the employers’ acts and omissions were not “willful,” and were “in good faith.” He applied a two-year statute of limitation, denied liquidated damages, and refused to issue a prospective injunction. Applying controlling authority, we must reverse and remand.
I. FACTS
The dispositive facts are not contested. Appellees Frank and Joann Shirk operate the Oregon Meat Cutting School and two associated retail outlets. In an Oregon state court action in 1980, they were found guilty of violating the FLSA by failing to pay an employee time and one-half for overtime hours. After judgment was entered in that case, the Shirks installed a time clock in their Springfield work place. They told their employees that they were on “salary,” but required them to punch the time clock for pay purposes. The Shirks posted, and had their employees sign, written rules emphasizing that no overtime would be authorized. Employees actually worked more than their time cards showed.
Employees complained to the Department of Labor. Following an investigation of the Shirks’ enterprise, the Secretary of Labor filed suit against the Shirks in federal district court, alleging failure to pay overtime, failure to keep and maintain proper work records in violation, and use of child labor, in violation of 29 U.S.C. §§ 207(a), 211(c) and 212(c).
The Shirks alleged as affirmative defenses: (1) they acted at all times in good faith with reasonable grounds for believing they were not violating the FLSA; (2) they were ignorant of any child labor at their enterprise; (3) they were ignorant of any overtime violations, having relied on the employees’ incorrectly punched time cards; and (4) the employees’ actions (including submission of time cards they knew to be incorrect and acceptance of the Shirks’ no overtime policy) estopped this action under the FLSA.
The district court absolved the Shirks of the child labor charges. It found, however, that they knew or had reason to know that their employees were covered by the FLSA and were in fact working more than 40 hours per week. It concluded that the Shirks violated the overtime and reporting provisions of the FLSA, but denied the Secretary of Labor’s request for three years back pay, for liquidated damages, and for injunctive relief. The Secretary of Labor appealed.
ANALYSIS
II. “WILLFUL” VIOLATION OF SECTION 255
The Secretary challenges first the trial court’s determination that the employees’ claims were limited by a two-year statute of limitation. The Portal-to-Portal Act, 29 U.S.C. §§ 251 et seq., provides that:
Any action ... to enforce any cause of action for ... unpaid overtime compensation, or liquidated damages, under the Fair Labor Standards Act ... may be commenced within two years after the cause of action accrued, ... except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued. ...
29 U.S.C. § 255(a) (“section 255”). At issue here is the trial court’s finding that the Shirks’ acts or omissions were not “willful” for purposes of that provision.
The meaning of the term “willful” in section 255 is well settled in this Circuit. In Marshall v. Union Pacific Motor Freight Co., 650 F.2d 1085, 1092 (9th Cir.1981), this court explicitly adopted:
the following rule for determining willfulness under section 255: A violation is willful when the employer was, or should have been, cognizant of an appreciable possibility that the employees involved were covered by the statutory provisions.
See also EEOC v. First Citizens Bank of Billings, 758 F.2d 397 (9th Cir.) (applying the Union Pacific standard), cert. denied, 474 U.S. 902, 106 S.Ct. 228, 88 L.Ed.2d 228 (1985). We apply that standard here.
We review de novo interpretation of the statutory authorization of damages. First Citizens, supra, at 401. See also United States v. McConney, 728 F.2d 1195, 1202 (9th Cir.) (application of law to undisputed facts reviewed de novo), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). We try the matter anew, as if it had not been heard before and as if no decision had been previously rendered. Exner v. FBI, 612 F.2d 1202, 1209 (9th Cir.1980).
The trial court noted the applicability of First Citizens, but ruled that despite the Shirks’ knowledge that their employees were covered by the statutory provisions, and their knowledge or reason to know that their employees were working overtime without compensation, the Shirks did not necessarily willfully violate the FLSA. We conclude otherwise. On these facts, for purposes of Section 255, the Shirks necessarily, as a matter of law, “willfully” violated the FLSA. The three-year statute of limitation applies.
III. LIQUIDATED DAMAGES OR PREJUDGMENT INTEREST
The Secretary appeals also the district court’s denial of liquidated damages. Under 29 U.S.C. § 216(b), employers who violate the overtime compensation provisions of the FLSA are liable to their employees both for unpaid overtime compensation and for liquidated damages in an amount equal to the back pay liability:
Any employer who violates the provisions of section 206 or section 207 of this Title shall be liable to the employee or employees affected in the amount of their unpaid ... wages ... and in an additional equal amount as liquidated damages.
Section 216(b) is mandatory: violators “shall be liable” for liquidated damages. First Citizens, 758 F.2d at 403; 29 U.S.C. § 216(b).
That section is modified, however, by section 260, providing that the court may, in its sound discretion, refuse to award liquidated damages if the employer demonstrates that it acted reasonably and in good faith:
[I]f the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of the Fair Labor Standards Act ... the court may, in its sound discretion, award no liquidated damages or award any amount thereof not to exceed the amount specified in section 216 of this Title.
Under section 260, the district court may deny liquidated damages
if, and only if, the employer shows that he acted in good faith and that he had reasonable grounds for believing that he was not violating the Act.... [B]efore the district court’s discretion may be invoked, the employer has the plain and substantial burden of persuading the court by proof that his failure to obey the statute was both in good faith and predicated upon such reasonable grounds that it would be unfair to impose upon him more than a compensatory verdict.
Marshall v. Brunner, 668 F.2d 748, 753 (3rd Cir.1982) (emphasis in original) (citations and footnote omitted).
The district court’s determination that the Shirks satisfied their burden of demonstrating that they acted in good faith and on reasonable grounds requires the application of legal principles to established facts. We thus review the district court’s determination de novo. McConney, 728 F.2d at 1202.
To meet their statutory burden, the Shirks were required to demonstrate both that “the act or omission giving rise to [the violation] was in good faith and that [they] had reasonable grounds for believing that [their] act or omission was not a violation of the [FLSA].” 29 U.S.C. § 260 (emphasis added). This test has both subjective and objective components.
To satisfy the subjective “good faith” component, the Shirks were obligated to prove that they had “an honest intention to ascertain what [the FLSA] requires and to act in accordance with it.” First Citizens, 758 F.2d at 403; see also 29 C.F.R. 790.15 (“ ‘Good faith' requires that the employer have honesty of intention and no knowledge of circumstances which ought to put him upon inquiry.”). It is evident from a review of the district court’s findings that the Shirks failed to demonstrate their good faith in this case.
The district court found that the Shirks were repeat offenders who knew both that their employees were covered by the FLSA and that they were working overtime without compensation. These findings belie the Shirks’ claim that they believed in good faith that their failure to pay overtime did not constitute a violation of the FLSA. Their awareness that their employees were working without compensation precludes a finding that they had no knowledge of circumstances which ought to have put them on inquiry. Their knowledge that their employees were covered by the FLSA demonstrates that they lacked an honest intention to find out what the FLSA requires and to act in accordance with its provisions. We are persuaded, therefore, that the district court failed to apply the correct legal standard in making its section 260 determination of “good faith.”
To satisfy the objective component of the statutory test, the Shirks were required to prove that “[their] failure to obey the statute was ... predicated upon such reasonable grounds that it would be unfair to impose upon [them] more than a compensatory verdict.” Brunner, 668 F.2d at 753. The district court did not indicate that it considered, much less applied, any such standard when making its section 260 determination.
The district court found that the Shirks knew their employees were working overtime but that they “honestly believed” they could avoid liability under the FLSA by telling their employees that overtime would not be “authorized.” The district court then based its denial of liquidated damages on this finding of “honest belief.” Even assuming that the Shirks subjectively believed, in good faith, that they were not required to compensate their employees for “unauthorized” overtime, they failed utterly to satisfy their burden of proving that this belief was reasonable. The facts in this case simply cannot support a finding that the Shirks had objectively reasonable grounds for believing no violation was taking place.
The record before us permits only one proper conclusion: that the Shirks, as a matter of law, failed to satisfy their burden of demonstrating that they reasonably and in good faith believed that they were not violating the FLSA. Consequently, the district court had no discretion to mitigate the Shirks’ statutory liability for liquidated damages. Id. We reverse the district court’s decision on this issue and remand with instructions to award liquidated damages in accordance with the requirements of section 216(b).
IV. PROSPECTIVE INJUNCTION
Finally, the Secretary appeals the district court’s denial of injunctive relief. We review that decision for abuse of discretion or for application of an erroneous legal principle. Brock v. Big Bear Market #3, 825 F.2d 1381, 1383 (9th Cir.1987).
The district court based its decision to deny injunctive relief in this case largely on its finding that the defendants honestly believed they were not violating the FLSA. The court explained:
[The Shirks’] violation of FLSA was not willful and, despite the violations, I find they were acting in good faith. I find no reason to believe they are not presently complying with the Act or that they will fail to comply with it in the future. Therefore, I do not find it necessary to issue a prospective injunction against them at this time.
Though the question of whether the trial court thereby abused its discretion is a close one, examination of our cases indicates that the district court failed to give adequate weight to relevant factors in reaching its decision.
We have emphasized that prospective injunctions under FLSA serve a remedial not a punitive purpose:
The injunction subjects the defendants to no penalty, to no hardship. It requires the defendants to do what the Act requires anyway — to comply with the law.... [T]he manifest difficulty of the Government’s inspecting, investigating, and litigating every complaint of a violation weighs heavily in favor of enforcement by injunction — after the court has found an unquestionable violation of the Act.
Marshall v. Chala Enterprises, Inc., 645 F.2d 799, 804 (9th Cir.1981) (Chala) (emphasis in original) (quoting Mitchell v. Pidcock, 299 F.2d 281, 287 (5th Cir.1962)). We noted that “[i]n exercising its discretion, the district court must give substantial weight to the fact that the Secretary seeks to vindicate a public, not a private, right.” Id. Prospective injunctions place the cost of noncompliance on the employer and are essential to effectuate Congress’s policy of abolishing substandard labor conditions by preventing recurring violations. Id.; see also Big Bear, 825 F.2d at 1383. Thus, though the district court has discretion to deny injunctive relief in appropriate cases, this discretion is limited by consideration of the importance of prospective relief as a means of ensuring compliance with the provisions of the FLSA. Chala, 645 F.2d at 804.
In determining whether to award injunctive relief against an employer, the district judge should consider evidence of current compliance, any record of past violations, and the likelihood of future compliance. See Big Bear, 825 F.2d at 1383; Wirtz v. Atlas Manufacturing Co., 377 F.2d 112 (5th Cir.1967) (Wirtz). Current compliance alone is not a sufficient ground for denying injunctive relief. Big Bear, 825 F.2d at 1383; Chala, 645 F.2d at 804.
The most important factor the district court must weigh in deciding whether to grant such relief is the likelihood that the employer will comply with the Act in the future. Big Bear, 825 F.2d at 1383 (“a district court must weigh the finding of violations against factors that indicate a reasonable likelihood that the violations will not recur”); Wirtz, 377 F.2d at 116.
In determining likelihood of future compliance, the court should consider the employer’s previous conduct and the dependability of its promises for future compliance. Big Bear, 825 F.2d at 1383; Wirtz, 377 F.2d at 116. Our review of the record convinces us that the district court did not adequately consider these factors in reaching its decision.
First, the court failed to give adequate weight to the fact that the Shirks have been guilty of violating the FLSA on at least one prior occasion by failing to pay their employees overtime compensation. We stated in Big Bear that previous violations or bad faith are factors “weighing heavily in favor of granting a prospective injunction.” 825 F.2d at 1383. The district court observed that acts of past noncompliance are “relevant” to a determination of whether injunctive relief is appropriate. It did not, however, mention the Shirks’ past violation in reaching its decision.
Second, the court failed to consider adequately the dependability of the Shirks’ promise of future compliance. It stated that “the extent to which the defendant has made a promise of future compliance” is a “relevant factor” in determining whether to grant injunctive relief. This misstates the relevant test. Mere assurances of future compliance do not provide a sufficient basis for denying an injunction. Chala, 645 F.2d at 804. Instead, the inquiry must focus on the dependability of the promise made. Big Bear, 825 F.2d at 1383; Wirtz, 377 F.2d at 116.
The judge’s findings and other evidence in the record raise doubt as to the reliability of the Shirks’ promise. They were repeat offenders of the Act. The district court found that, in the case at bar, they had violated the recordkeeping and overtime provisions of the Act. It found that the Shirks had knowledge that their employees were working overtime without compensation, but that they believed they could avoid liability for overtime under the FLSA by instructing their employees that overtime would not be authorized. Mr. Shirk testified in his deposition that he continued the practice of having employees sign a form that stated that no overtime would be authorized. Yet, the district court specifically found it “hard to believe” that the Shirks “seriously preferred]” that their employees not work overtime given the amount and nature of the work they had to do.
It thus appears from the record that the Shirks may continue the same practices that led to their liability in this case: instructing their employees not to work overtime under circumstances in which it is likely that their employees will continue to work overtime rather than leave important tasks undone. We cannot find in the district court’s analysis adequate consideration of the factors weighing in favor of injunctive relief in this case. We therefore remand with instructions to reexamine this issue in light of our holdings in Big Bear and Chala.
V. CONCLUSION
We REVERSE and REMAND. The parties will bear their own costs on this appeal.
. The district court found it difficult to credit the Shirks’ assertion that they seriously intended that their employees stop working at the end of their shifts when important tasks (e.g., cleaning the store and packing and refrigerating perishable meat) remained to be done. Findings of fact and evidence in the record clearly indicate that despite the no overtime "rule," the Shirks expected their employees to complete the tasks assigned them even if that required that employees actually work more than forty hours per week.
. We recognize that other circuits have questioned that definition of willful, and that the Supreme Court will likely resolve the existing conflict among the circuits. See Brock v. Rich-land Shoe, 799 F.2d 80 (3d Cir.1986), cert. granted, — U.S. —, 108 S.Ct. 63, 98 L.Ed.2d 27 (1987). First Citizens is still the law of this circuit. It controls here.
. At oral argument, both counsel queried whether the employees were entitled to liquidated damages, prejudgment interest, or both. We have determined that liquidated damages are mandated by statute. Only one such "make whole” remedy is proper here. See Ford v. Alfaro, 785 F.2d 835, 842 (9th Cir.1986); Lindsey v. American Cast Iron Pipe Co., 810 F.2d 1094, 1102 (11th Cir.1987); Hodgson v. Wheaton Glass Co., 446 F.2d 527, 534 (3d Cir.1971).
. According to the Pretrial Order contained in the Excerpt of Record, an Oregon court entered a judgment against the Shirks in 1980 for violating the overtime provisions of the Act.
Question: Did the court determine that it had jurisdiction to hear this case?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_circuit
|
H
|
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.
FARMERS ELEVATOR MUTUAL INSURANCE CO., a corporation, Appellant, v. CARL J. AUSTAD & SONS, INC., a Corporation; Tri-State Insurance Company, a Corporation; L. P. Gas Transport Company, a Corporation, and Martha D. Tatro, Individually and as Trustee for the North Dakota Workmen’s Compensation Bureau, Appellees.
No. 17773.
United States Court of Appeals Eighth Circuit.
March 18, 1965.
William R. Reichert, Dickinson, N. D., made argument for the appellant and filed brief with Frederick Saefke, Jr., Bismarck,. N. D.
Patrick A. Conmy, Bismarck, N. D., made argument for appellee, Tri-State Ins. Co. and filed brief.
E. F. Engebretson, Bismarck, N. D.t made argument for appellees Carl J. Aus-tad & Sons, Inc., and L. P. Gas Transport Co. and filed brief.
Before VOGEL, MATTHES, and RIDGE, Circuit Judges.
MATTHES, Circuit Judge.
This declaratory judgment action was filed on August 19, 1963, in the United States District Court for the District of North Dakota. Farmers Elevator Mutual Insurance Co. (Farmers), an Iowa corporation, was plaintiff and is the appellant. The defendants and appellees are: Carl J. Austad & Sons, Inc. (Aus-tad) ‘r Tri-State Insurance Company (Tri-State); L. P. Gas Transport Company (Transport) and Martha D. Tatro, individually and as Trustee for the North Dakota Workmen’s Compensation Bureau.
The purpose of this action is to obtain a judicial determination of the following questions: (a) whether or not Tri-State must defend Scranton Equity Exchange (Scranton).In the wrongful death action brought by Martha D. Tatro in the District Court of Bowman County, North Dakota; (b) whether Tri-State has the primary coverage or liability upon Scranton in such case or on an equal basis with Farmers; (c) whether if Tri-State for any reason is not primarily liable that Transport should be required to defend Scranton in such action.
Diversity of citizenship and the amount involved establishes - jurisdiction of the subject matter. There arose, however, and still exists a venue question as to Transport. There is the additional contention that the Court’s decision on the merits is erroneous.
Before passing to the problems presented by the appeal, we deem it desirable to designate and more fully describe all parties having any connection with this litigation or the event which caused the death of Harry Tatro, the husband of Martha D. Tatro, out of which this action arose.
Scranton, not a party, is a cooperative which owned and operated a liquified petroleum bulk storage plant in Scranton, North Dakota. Farmers had issued a liability insurance policy to Scranton which covered Scranton’s bulk storage plant and was in effect when the incident occurred giving rise to the coverage question. Austad is a North Dakota corporation that was engaged in the transportation of petroleum .products by motor truck. TriState was authorized to do business in North Dakota and was a resident of that state for venue purposes. Tri-State had issued a policy of liability insurance to Austad which covered the motor equipment used for transporting petroleum products. Harry Tatro was an employee of Austad; Martha D. Tatro, a defendant and appellee, is the widow of Harry Tatro. The complaint alleged that Transport, a Wyoming or Montana corporation, had authority from the I.C.C. to transport petroleum products in other states; leased trucks and drivers from Austad and transported petroleum products in such leased equipment.
The operative facts, stipulated by the parties and so found by the District Court, are as follows. On June 8, 1961, a tractor and tank trailer combination unit, owned by Austad and -driven by Harry Tatro, stopped at the facilities and property of Scranton for the purpose of making a delivery of propane gas. Tatro drove such unit to the unloading area of the bulk plant and hooked up the hoses used on the truck to the truck outlets and to the inlets on the pipeline system maintained by the bulk plant; Tatro was in the process of opening a valve located on top of a storage tank when an explosion occurred, the effect of which was to knock him off the tank, set him afire and inflict injuries which proved fatal. The delivery was made at approximately-midnight at which time no employees, agents, or representatives of Scranton were present or participated in any manner in the subsequent unloading procedures. It was the custom under such circumstances for the driver of the truck making the delivery, to perform everything that was necessary for the unloading and later deliver the papers evidencing such unloading and the quantity unloaded to the manager of the plant, and insofar as the incident here involved is concerned, the driver was acting pursuant to such custom. Tatro’s widow, Martha D. Tatro, sought and received benefits under the North Dakota Workmen’s Compensation Act. Prior to the institution of the present action Martha D. Tatro, individually and as Trustee for the North Dakota Workmen’s Compensation Bureau, brought the wrongful death action against Scranton for damages resulting from the death of her husband, alleging that the death of Tatro was proximately caused by the negligence of Scranton in the construction and maintenance of its storage facilities.
Farmers, while conceding that it is the liability insurer of Scranton, tendered the defense of the Tatro action to Tri-State on the theory that Scranton was an additional insured under the Tri-State policy. This tender of defense was refused by Tri-State.
Early in this litigation, Transport raised the venue question. It filed a motion to dismiss, or in lieu thereof to quash the return of service of process on the ground that it had not been properly served, and that the venue was improper in that all defendants do not reside in the State of North Dakota. Two affidavits dated September 27,1963, were filed in support of the motion — one by Transport’s attorney to the effect that Transport was not doing business in North Dakota when this action was instituted.; that on January 8, 1962, a plan of dissolution was approved by the stockholders of Transport and in pursuance thereof all assets for the corporation were disposed of and the transfer of the assets was completed on January 4,1963; and since that date the corporation existed as a mere “corporate shell” and has had no officers or directors. The other affidavit by the Secretary of State of North Dakota was to the effect that Transport is not and never has been authorized or qualified to transact business in North Dakota according to the provisions of the North Dakota Business Corporation Act. Neither affidavit was controverted.
On January 27, 1964, the trial court entered an order granting Transport’s motion and dismissed the complaint and action against that defendant.
On February 13, 1964, the trial court filed a memorandum opinion on the merits finding that Tri-State’s policy did not provide coverage to Scranton for Tatro’s death and that Tri-State is under no obligation to defend the Martha D. Tatro action. The Court’s opinion is published at 238 F.Supp. 243. Appellant filed a petition for rehearing in which it complained in particular of the Court’s prior action in dismissing Transport from the case. The petition was denied on April 14, 1964, following which, appellant filed a timely notice of appeal.
Appellant’s first point challenges the Court’s dismissal of the action against Transport. The issue brings into prominence Title 28 U.S.C.A. § 1391, the venue statute which in pertinent part provides :
“(a) A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in the judicial district where all plaintiffs or all defendants reside.
*«•***•*
“(c) A corporation may be sued in any judicial district in which it is incorporated or licensed to do business or is doing business, and such judicial district shall be regarded as the residence of such corporation for venue purposes.”
As noted, appellant brought this action in the judicial district of North Dakota, the residence of all defendants with possible exception of Transport. The precise question is whether, for venue purposes, Transport is also a resident of that district. Concededly, Transport was not incorporated in North Dakota and according to the affidavit of the North Dakota Secretary of State had never been authorized to transact business in that state which we assume is tantamount to saying it had not been licensed to do business in North Dakota. The issue is thus narrowed to the third element of § 1391(c), that is, whether Transport was “doing business” in the district. The answer to this question depends upon the meaning of the phrase “in which it is * * * doing business.” Is this requirement satisfied by showing that Transport was doing business in the North Dakota District at the time when the cause of action arose, June 8, 1961, or must it be shown that Transport was doing business in North Dakota when this suit was brought on August 19, 1963?
Apparently the trial court was of the view that the nontrolling time which the “doing business” provision refers to is governed by citizenship determinations as in diversity actions. Thus, in its memorandum opinion dealing with the venue issue the Court stated:
“ * * * Apparently the plaintiff concedes that said defendant L. P. •Gas Transport Company was not doing business in this state at the time of the commencement of this action, but contends that it was so doing at the time the cause of action arose. A decision as to which date is the critical one for this purpose, therefore, should determine the motion. The law has been specifically stated by the Court of Appeals for the Eighth Judicial Circuit. ‘ * * * diversity of citizenship must exist not as of the time the cause of action arises, but as of the time the suit is instituted * * Russell v. New Amsterdam Casualty Company and Consumers Public Power District, 8 Cir., January 6, 1964 [325 F.2d 996]. See also Jansen v. Goos, 8 Cir., 302 F.2d 421 (1962).”
To be sure, the citizenship of the parties at the time of the institution of the action, is controlling in determining whether federal diversity jurisdiction exists. However, jurisdiction of the subject matter — the power and authority of the Court to act, 14 Am.Jur. Courts, § 160; 21 C.J.S. Courts § 15, is not equivalent in meaning to Venue, the place where the power to adjudicate is to be exercised, the place where the suit may be or should be heard, 56 Am.Jur. Venue, § 2; 92 C.J.S. Venue § 1. The terms “jurisdiction” and “venue” should not be confused, “for jurisdiction may not be conferred by consent or waiver upon a court which otherwise would have no jurisdiction of the subject matter of an action; but the venue of an action as fixed by statute may be changed by the consent of the parties and an objection that the plaintiff brought his suit in the wrong county may be waived by the failure of the defendant to make a timely objection.; in either such case the court may render a valid judgment.” 56 Am. Jur. Venue, § 2. Because of these fundamental differences, the tests to be applied in determining whether there is jurisdiction of the subject matter do not necessarily control the resolution of venue questions.
There seems to be a dearth of authority on the precise problem and our research indicates it may be a question of first impression in this circuit. Additionally, the courts that have spoken are not in full accord. Barron and Holtzoff, Vol. I, Sec. 80, Venue, 1964 Pocket Part, states: “It is not settled whether the relevant time for determining if the corporation was doing business in the state is the date when the claim arose or the date when suit was brought.” In Sunbury Wire Rope Mfg. Co. v. United States Steel Corp., 230 F.2d 511 (3 Cir. 1956) the Court stated in effect, without fortifying reasons, that the controlling time was the commencement of the action. That case, however, turned on consent and waiver and we do not regard the Court’s expression as to the time element of controlling importance.
The United States District Court of Maryland has been confronted with the identical situation on two occasions. L’Heureux v. Central American Airways Flying Service, Inc., 209 F.Supp. 713 (Md.1962); Nelson v. Victory Electric Works, Inc., 210 F.Supp. 954 (Md. 1962). In L’Heureux, Chief Judge Thomsen considered the venue law relating to corporate defendants as it existed before the enactment of the Judicial Code of 1948, of which 28 U.S.C.A. § 1391(c) is a part, as well as the purpose and effect of the Act. Of relevance here is Judge Thomsen’s conclusion that “A principal purpose of Congress in enacting sec. 1391(c) was to remove any possible advantage with respect to venue which a corporation might obtain by failing to observe the licensing requirements of a state in which it does business.” 209 F.Supp. at page 715. We agree and are likewise in accord with the view that the purpose of Congress can be fully achieved only if foreign corporations — those that qualify and those which do not — can be sued in the federal court hi actions arising out of business transacted in the state and district where the suit is filed. We believe and hold that Congress intended that the venue requirements of § 1391(c) are satisfied by showing that the defendant corporation was doing business in the district at the time the cause of action arose.
The rule contended for by Transport and applied by the District Court could give to a foreign corporation which was doing business in another state without having qualified in accordance with.the licensing requirements, an unfair advantage. By the expedient of retreating from and ceasing to do business in the judicial district where the cause of action arose out of business done by it, the corporation could insulate itself from litigation in that district and the aggreived party would be required, perhaps at great inconvenience, to seek redress in the judicial district where the corporation was incorporated. We therefore conclude that the District Court erred in dismissing Transport from the action.
Inasmuch as the Court ruled that August 19, 1963 (when this action was brought) is the critical date, it was not required to and did not determine whether Transport was doing business in North Dakota on June 8, 1961, when the cause of action arose which precipitated this lawsuit. The record gives strong indication that it was. Of course, even if Transport is found to be amenable to the Court’s jurisdiction, the judgment on the merits may be the same. We make no intimation in that regard. Our holding simply means that the Court should determine the venue question on the basis of whether Transport was doing business in North Dakota on June 8,1961. If it was, and if service of summons upon Transport was in compliance with the law, then there should be an adjudication of the obligations and liability of Transport in light of the issues presented.
We also suggest by way of caveat that under Rule 12(b) Fed.R.Civ.P. 28 U.S.C.A., a motion raising objections to venue must be filed within twenty days after service of the summons and complaint. Failure to comply with this requirement constitutes a waiver of Rule 12(h) Fed.R.Civ.P.; see Nelson v. Victory Electric Works, Inc., supra, 210 F. Supp. at p. 957. The record fails to disclose the date of service upon Transport, hence we are not in a position to determine whether the objections to venue were timely.
The order dismissing Transport and the judgment on the merits are vacated and the cause is remanded with directions to proceed in accordance with our views herein expressed.
. The Maryland Court, Judge Northrop, reached the same conclusion in the Nelson ease, supra, 210 F.Supp. 954 (1962). Compare R. J. Coulter Funeral Home v. National Burial Ins. Co., 192 F.Supp. 522 (E.D.Tenn.1960) and Sharp v. Commercial Solvents Corp., 232 F.Supp. 323 (N.D.Tex.1964) and see for a general discussion of the venue statute, 1 Moore, Federal Practice, Par. 0.142 [5-3] p. 1489 et seq. (2nd Ed. 1964.)
. Transport is designated as a Wyoming corporation in one part of the record and as a Montana corporation in another part. This uncertainty is not material.
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_casetyp1_7-2
|
D
|
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".
In the Matter of Willis R. GIFFORD and Jacqueline M. Gifford, Bankrupts-Appellees, Appeal of THORP FINANCE CORPORATION, Creditor-Appellant. United States of America, Intervenor-Appellee.
No. 81-1174.
United States Court of Appeals, Seventh Circuit.
Reargued May 26, 1982.
Decided Aug. 18, 1982.
Henry F. Field, Friedman & Koven, Chicago, 111., for creditor-appellant.
Michael J. Lund, Frisch, Dudek & Slattery, Ltd., Milwaukee, Wis., for bankruptsappellees.
John Morland, Washington, D. C., for intervenor-appellee.
Before CUMMINGS, Chief Judge, and PELL, BAUER, WOOD, CUDAHY, ESCH-BACH, POSNER and COFFEY, Circuit Judges en banc.
CUMMINGS, Chief Judge.
This is an appeal from an order of a three-judge bankruptcy court that relied on 11 U.S.C. § 522(f)(2)(A) to discharge Thorp Finance Corporation’s nonpossessory, non-purchase-money security interest in various household goods owned by Mr. and Mrs. Gifford. Thorp’s security interest attached to the household goods one month before Section 522(f) of the Bankruptcy Reform Act of 1978 was enacted, raising the issues of whether Section 522(f) applies to Thorp’s security interest and if so whether that application is constitutional.
We first heard arguments on September 21, 1981, and on January 21, 1982, a majority of the hearing panel decided that Section 522(f) did not apply to Thorp’s pre-enactment security interest because such application “would give rise to * * * serious constitutional questions under the Fifth Amendment.” 669 F.2d 468, 470 (7th Cir.). Following a rehearing of the appeal en banc, we now hold that Section 522(f) applies to Thorp’s security interest and that it is not unconstitutional under the Fifth Amendment.
I
On October 4, 1978, Thorp lent the Giffords approximately $3,000 and in return took a security interest in two television sets, a rug, a tape recorder, a washer and dryer, and several pieces of their furniture. The loan was not used to purchase any of the items of collateral, and Thorp did not take possession of the collateral. On June 9, 1980, the Giffords filed a petition in bankruptcy and then sought to avoid the security interest in their household goods and furniture under 11 U.S.C. § 522(f)(2)(A). Section 522(f) provides:
Notwithstanding any waiver of exemptions, the debtor may avoid the fixing of a lien on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled under [11 U.S.C. § 522(b)], if such lien is—
(1) a judicial lien; or
(2) a nonpossessory, nonpurchase-money security interest in any—
(A) household furnishings, household goods, wearing apparel, appliances, books, animals, crops, musical instruments, or jewelry that are held primarily for the personal, family, or household use of the debtor or a dependent of the debtor;
(B) implements, professional books, or tools, of the trade of the debtor or the trade of a dependent of the debtor; or
(C) professionally prescribed health aids for the debtor or a dependent of the debtor.
Sections 522(b) and 522(d)(3) allow the Giffords exemptions for the collateral that is subject to Thorp’s security interest, not to exceed $200 for any particular item. Thus Thorp’s lien “impairs an exemption to which the debtor[s] would have been entitled under [Section 522(b) ].” Because each item of collateral qualifies as a household furnishing, household good, or appliance, all the requirements for application of Section 522(f)(2)(A) are satisfied. Since no item of collateral is worth more than $200, if Section 522(f) is held to apply to Thorp’s pre-enactment security interest, the Giffords may avoid the security interest in its entirety.
Thorp contested avoidance of its lien before the bankruptcy court on the ground that application of Section 522(f) to pre-en7 actment liens would be unconstitutional. The bankruptcy court disagreed and held that Congress intended Section 522(f) to apply to pre-enactment liens and that there is no constitutional problem in doing so. 7 B.R. 814, 817-819 (Bkrtcy.). Thorp has appealed from that decision and we allowed the United States to intervene in the appeal as a respondent.
II
The first question is whether Section 522(f) was meant to apply to security interests that attached prior to its enactment. Section 522(f) was enacted as part of the Bankruptcy Reform Act of 1978 on November 6, 1978. Pub.L.No. 95-598, 92 Stat. 2578 (codified at 11 U.S.C. §§ 101 et seq.). Like the other substantive provisions of the 1978 Bankruptcy Act, however, Section 522(f) does not state when it — as opposed to the rest of the 1978 Act — is to apply. Rather, Congress placed all of its directions for the transition between the old and new bankruptcy laws in Title IV of the 1978 Act. Section 401 of Title IV provides that all former laws relating to bankruptcy are repealed. Section 402(a) states that “[ejxcept as otherwise provided in [Title IV], this Act shall take effect on October 1, 1979.” The combined effect of Sections 401 and 402(a) is to provide as substantive law only the 1978 Act for cases commenced on or after October 1, 1979. See generally 1 Collier on Bankruptcy KH 7-01, 7.02 (15th ed. 1982). Because Title IV provides no exceptions for Section 522(f), that Section must apply to cases filed on or after the effective date of October 1, 1979. Since the Giffords filed for bankruptcy on June 9, 1980, Section 522(f) is applicable to the security interest in their case.
The other Courts of Appeals that have considered whether Section 522(f) applies to pre-enactment security interests agree that it does. Rodrock v. Security Industrial Bank, 642 F.2d 1193, 1196-1197 (10th Cir. 1981) (Section 522(f)(2) applies to pre-enactment security interests), probable jurisdiction noted sub nom. United States v. Security Industrial Bank, 454 U.S. 1122, 102 S.Ct. 969, 71 L.Ed.2d 108 (1981); In re Ashe, 669 F.2d 105 (3d Cir. 1982) (applying Section 522(f)(1), which permits avoidance of certain judicial liens, to pre-enactment cognovit note); see also In re Webber, 674 F.2d 796, 801-802 (9th Cir. 1982) (Section 522(f)(2) applies to pre-effective date liens). At oral argument, counsel for the United States told us without contradiction that some sixty-five bankruptcy court opinions have also interpreted Section 522(f) to apply to pre-enactment liens. See, e.g., In re Morris, 12 B.R. 321 (Bkrtcy.N.D.Ill.1981); In re Giles, 9 B.R. 135 (Bkrtcy.E.D.Tenn. 1981); In re Pillow, 8 B.R. 404 (Bkrtcy.D. Utah 1981). It is unnecessary to repeat here the reasoning laid out in those opinions. See also 669 F.2d at 475-478 (Cummings, C.J., dissenting). Again according to counsel, only five bankruptcy court opinions disagree.
Thorp has presented one argument that the prior cases do not address, however. A preliminary draft of the transition provisions stated that the new Bankruptcy Act “shall apply in all cases or proceedings instituted after its effective date, regardless of the date of occurrence of any of-the operative facts determining legal rights, duties, or liabilities hereunder.” H.R. 31 [also H.R. 32], 94th Cong., 1st Sess. § 10-103(a) [§ ll-103(a)] (1975), reprinted in Bankruptcy Act Revision: Hearings on H.R. 31 and H.R. 32 Before the House Subcommittee on Civil and Constitutional Rights, 94th Cong., 1st Sess. App. 1 at 321 (1976). Thorp argues that because the above language was criticized by William Plumb in testimony before the House Subcommittee as an improper impairment of vested property rights and then deleted from the final version of the Act, Congress meant to preserve security interests that attached prior to enactment. See Bankruptcy Act Revision: Hearings on H.R. 31 and H.R. 32 Before the House Subcommittee on Civil and Constitutional Rights, 94th Cong., 1st Sess. 2034, 2066-2067 (1976). But Mr. Plumb was only one of many witnesses to testify before Congress and there is no indication that the language was omitted because of fear of unconstitutionality. We therefore attach little weight to his concerns and construe the statute as it was finally enacted, requiring whole application of the new Act to bankruptcies filed on or after October 1, 1979, with immaterial exceptions.
Ill
The question presented by this appeal, then, is whether application of Section 522(f) to avoid Thorp’s pre-enactment lien in the Giffords’ household goods violates the Fifth Amendment. Thorp argues primarily that Section 522(f) works an uncompensated taking of its property rights in the collateral, and alternatively, that Section 522(f) is a violation of substantive due process.
The two Courts of Appeals that have considered whether avoidance of a pre-enactment lien violates the Fifth Amendment have split on the issue. In Rodrock v. Security Industrial Bank, 642 F.2d 1193 (10th Cir. 1981), probable jurisdiction noted sub nom. United States v. Security Industrial Bank, 454 U.S. 1122, 102 S.Ct. 969, 71 L.Ed.2d 108, the Tenth Circuit held that “Congress may not under the bankruptcy power completely take for the benefit of a debtor rights in specific property previously acquired by a creditor.” 642 F.2d at 1198. The Rodrock Court did not state whether Section 522(f) effected a taking, deprived the creditor of property without due process, or was simply beyond Congress’ bankruptcy powers to enact. Instead, the Court relied completely upon the Supreme Court’s decision of Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555, 55 S.Ct. 854, 79 L.Ed. 1593, which invalidated relief provisions of the Frazier-Lemke Act of 1934.
To the contrary, the Third Circuit in In re Ashe, 669 F.2d 105 (3d Cir. 1982) held that application of Section 522(f) to pre-enactment judicial liens did not violate the Fifth Amendment. The Ashe Court stated, “Only if a taking for public use is found does the just compensation standard apply. Plainly Section 522(f)(1) is an economic regulation rather than a taking for public use.” 669 F.2d at 110. Since this instance of economic regulation had a rational basis, the Third Circuit held that Section 522(f) comports with the requirements of due process. Id. at 110-111.
The Ninth Circuit recently held that the Fifth Amendment did not prohibit application of Section 522(f) to security interests in household goods that attached during the eleven-month period between enactment and the effective date of the new Act. In re Webber, 674 F.2d 796 (9th Cir. 1982). Quoting a dictum in our former majority opinion, the two-judge majority noted, also in dictum, “We agree that a ‘property right is of value regardless of the worth of the object in which it is held, and is protected from governmental appropriation by the taking clause of the Fifth Amendment.’ ” Id. at 803 n. 16 (quoting 669 F.2d at 473). But the quoted language is only a truism-all property is protected by the taking clause to the extent that it applies — and the Ninth Circuit majority did not decide the constitutional question before us. Judge Sehroeder’s concurrence did not reveal her views on pre-enactment liens, and she wrote separately only to state that application of Section 522(f) to post-enactment, pre-effective date liens “does not present a substantial question, much less a close one.” Id. at 804.
As explained infra, we agree with the Third Circuit’s opinion in In re Ashe that Section 522(f) as applied to pre-enactment security interests does not violate either the due process or taking clauses of the Fifth Amendment.
IV
Section 522(f) quite clearly is valid under the due process clause. In the early years of this century, Congressional legislation was closely scrutinized by the courts under the rubric of “substantive due process.” See, e.g., Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937. But that approach has “long since been discarded” by the courts (Ferguson v. Skrupa, 372 U.S. 726, 730, 83 S.Ct. 1028, 1031, 10 L.Ed.2d 93), and it is now well established that economic regulation will be sustained against substantive due process challenges provided the regulation has a rational basis. See, e.g., Williamson v. Lee Optical Co., 348 U.S. 483, 487-488, 75 S.Ct. 461, 464, 99 L.Ed. 563; United States v. Carolene Products Co., 304 U.S. 144, 152, 58 S.Ct. 778, 783, 82 L.Ed. 1234; In re Ashe, supra, 669 F.2d at 110. Even when a question of retroactivity is involved, “legislative Acts adjusting the burdens and benefits of economic life come to the Court with a presumption of constitutionality, and * * * the burden is on the one complaining of a due process violation to establish that the legislature has acted in an arbitrary and irrational way.” Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15, 96 S.Ct. 2882, 2892, 49 L.Ed.2d 752; see also Brach v. Amoco Oil Co., 677 F.2d 1213 at 1224-25 (7th Cir. 1982). Indeed, under the bankruptcy clause of the Constitution, “Congress may prescribe any regulations concerning discharge in bankruptcy that are not so grossly unreasonable as to be incompatible with fundamental law * * Hanover National Bank v. Moyses, 186 U.S. 181, 192, 22 S.Ct. 857, 862, 46 L.Ed. 1113.
The basis for Section 522(f) is both rational and compatible with fundamental law. Section 522(f) was enacted as part of a larger program “to make [traditional bankruptcy protections] more effective for non-business debtors.” 123 Cong.Rec. 35444 (1974) (statement of Rep. Rodino). Since the previous major revision of the bankruptcy laws in 1938, consumer financing had burgeoned into a major industry, and consumer bankruptcies had come to account for nearly 90% of all bankruptcy cases filed. Id.; H.R.Rep.No. 595, 95th Cong., 1st Sess. 4, 116 (1977). The existing bankruptcy law, however, had been addressed primarily to the problems involved in business bankruptcies and had relied on state exemption laws to protect consumer debtors. The state exemptions were quickly outmoded as creditors “developed techniques that enablefd] them to avoid the effects of a debtor’s bankruptcy.” H.R.Rep.No. 595 at 116-117, U.S.Code Cong. & Admin.News 1978, p. 6077.
In particular, security interests in consumer property, which formerly had been difficult to establish, became widespread following adoption of Article Nine of the Uniform Commercial Code in the middle 1960’s. See Schwartz, Security Interests and Bankruptcy Priorities: A Review of Current Theories, 10 J. Legal Stud. 1, 4-6 (1981). The result was that consumer debtors often came out of the bankruptcy proceedings “little better off than they were before.” Id. at 117, U.S.Code Cong. & Admin.News 1978, p. 6077.
Finding that “there is a Federal interest in seeing that a debtor that goes through bankruptcy comes out with adequate possessions to begin his fresh start” (H.R. Rep.No. 595 at 126, U.S.Code Cong. & Admin.News 1978, p. 6087), Congress estab-' lished a framework to ensure that debtors would not be left completely destitute after bankruptcy. Congress began by providing a system of federal exemptions upon which a debtor might rely as an alternative to less favorable state exemptions. See 11 U.S.C. §§ 522(b), 522(d); H.R.Rep.No. 595 at 126-127. Congress was aware, however, that the existence of a right to exempt certain property from the bankrupt estate was not alone sufficient to provide a fresh start for the debtor. The Report of the Commission on Bankruptcy Laws of the United States advised Congress that valid exemptions often had been lost or denied under prior law, and recommended that neither waivers of exemptions nor nonpurchase-money security interests in household goods, wearing apparel, and health aids be enforceable. H.R.Doc.No. 137, 93d Cong., 1st Sess., Part I at 169, 170, 173 (1973). Congress enacted the Commission’s recommendations; Section 522(e) makes unenforceable a waiver of exemptions and, as noted above, Section 522(f)(2) allows the bankrupt to avoid a nonpossessory, nonpurchase-money lien in certain household and personal goods.
The House Report explained why it was necessary for the debtor to be able to avoid such liens:
Frequently, creditors lending money to a consumer debtor take a security interest in all of the debtor’s belongings, and obtain a waiver by the debtor of his exemptions. In most of these cases, the debtor is unaware of the consequences of the forms he signs. The creditor’s experience provides him with a substantial advantage. If the debtor encounters financial difficulty, creditors often use threats of repossession of all of the debtor’s household goods as a means of obtaining payment.
In fact, were the creditor to carry through on his threat and foreclose on the property, he would receive little, for household goods have little resale value. They are far more valuable to the creditor in the debtor’s hands, for they provide a credible basis for the threat, because the replacement costs of the goods are generally high. Thus, creditors rarely repossess, and debtors, ignorant of the creditors’ true intentions, are coerced into payments they simply cannot afford to make.
The exemption provision allows the debtor, after bankruptcy has been filed, and creditor collection techniques have been stayed, to undo the consequences of a contract of adhesion, signed in ignorance, by permitting the invalidation of nonpurchase money security interests in household goods. Such security interests have too often been used by overreaching creditors. The bill eliminates any unfair advantage creditors have.
H.R.Rep.No. 595 at 127 (footnote omitted), U.S.Code Cong. & Admin.News 1978, p. 6088. See also In re Pillow, 8 B.R. 404, 406 (Bkrtcy.D.Utah 1981). Under the rule in Long v. Bullard, 117 U.S. 617, 6 S.Ct. 917, 29 L.Ed. 1004, a lien even in exempt property survives the bankruptcy discharge. Since Congress specifically stated that it was adhering to this rule (H.R.Rep.No. 595 at 361), without the lien-avoidance provisions of Section 522(f), liens such as Thorp’s would remain enforceable after the close of the bankruptcy proceedings.
Section 522(f) is narrowly drawn to permit avoidance only of nonpossessory, nonpurchase-money security interests in the listed items and only to the extent that these items are exempted property under Section 522(b). Section 522(f) is thus neither an irrational nor arbitrary means of effectuating a legitimate Congressional purpose under the bankruptcy laws — giving debtors “ ‘a new opportunity in life and a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt.’ ” Perez v. Campbell, 402 U.S. 637, 648, 91 S.Ct. 1704, 1710, 29 L.Ed.2d 233 (quoting Local Loan Co. v. Hunt, 292 U.S. 234, 244, 54 S.Ct. 695, 699, 78 L.Ed. 1230). Thorp nevertheless argues that Section 522(f) will have the supposedly irrational effect of reducing nonpurchase-money credit extended to consumers such as the Giffords, as finance companies such as Thorp withdraw from the market. Indeed, all bankruptcy legislation makes borrowing by potential future bankrupts more difficult or expensive. See R. Posner, Economic Analysis of Law 293 (2d ed. 1977). “If Congress goes too far in undermining the security for extensions of credit when exercising plenary legislative power under the bankruptcy clause, the result may be that credit will be unavailable. But that is a matter of policy judgment for the legislative branch.” In re Ashe, supra, 669 F.2d at 111. We see no reason based on substantive due process to substitute our views “on the subject of Bankruptcies” (n. 6 supra) for those of Congress.
V
The remaining issue is whether avoidance of Thorp’s pre-enactment security interest is an uncompensated taking proscribed by the Fifth Amendment.
There is no “ ‘set formula’ for determining when ‘justice and fairness’ require that economic injuries caused by public action be compensated by the government, rather than remain disproportionately concentrated on a few persons.” Penn Central Transp. Co. v. New York City, 438 U.S. 104, 124, 98 S.Ct. 2646, 2659, 57 L.Ed.2d 631. Rather than employing some single test of fairness {e.g., Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of “Just Compensation” Law, 80 Harv.L.Rev. 1165 (1968)) or economic efficiency (e.g., Berger, A Policy Analysis of the Taking Problem, 49 N.Y.U.L.Rev. 165, 185-191 (1974)), a taking analysis is bound up with the particular facts of each case. Nevertheless,
[i]n engaging in these essentially ad hoc, factual inquiries, the [Supreme] Court’s decisions have identified several factors that have particular significance. The economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations are, of course, relevant considerations. See Goldblatt v. Hempstead, [369 U.S. 590,] 594 [82 S.Ct. 987, 990, 8 L.Ed.2d 130]. So, too, is the character of the governmental action. A “taking” may-more readily be found when the interference with property can be characterized as a physical invasion by government, see, e.g., United States v. Gausby, 328 U.S. 256 [66 S.Ct. 1062, 90 L.Ed. 1206] (1946), than when interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good.
Penn Central, supra, 438 U.S. at 124, 98 S.Ct. at 2659. Again, in Kaiser Aetna v. United States, 444 U.S. 164, 175, 100 S.Ct. 383, 390, 62 L.Ed.2d 332, the Supreme Court prescribed the two factual foci for a taking determination: “[1] the economic impact of the regulation, its interference with reasonable investment backed expectations and [2] the character of the governmental action * * Application of those factors to Thorp’s security interest in the Giffords’ household goods shows that the lien avoidance permitted by Section 522(f) does not contravene the taking clause.
The “Property” Interest Affected
First, the “investment backed expectations” interfered with are less than substantial. The cases that Thorp cites in which the Supreme Court found unconstitutional takings of liens are distinguishable because they involved much more substantial interests. Thorp’s nonpossessory, nonpurchasemoney security interest is far from “property” of the same importance as the farm mortgages taken in Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555, 55 S.Ct. 854, 79 L.Ed. 1593, or the material-men’s liens on ships taken in Armstrong v. United States, 364 U.S. 40, 80 S.Ct. 1563, 4 L.Ed.2d 1554. The types of liens in Rad-ford and Armstrong attach to property of the debtor that has directly benefited from the loan or work done. A farm, for example, is mortgaged to buy land, seed, fertilizer or tools. A materialman’s lien attaches to a ship because the materialman has supplied the ship with material or labor. In either case, if the underlying debt is unpaid the creditor has a direct property interest in the objects that were purchased or created with the loaned capital or effort.
In contrast to such purchase-money interests, Thorp’s expectations reside in the threat of foreclosure rather than in the collateral. Unlike the advances in Rad-ford and Armstrong, the borrowed money here was not lent to purchase or improve the household goods listed in the security agreement. The Thirteenth Amendment prohibition against slavery and involuntary servitude prevents a creditor from taking a property interest in the direct beneficiary of his loan, the consumer. Therefore, as here, the creditor must settle for a security interest unrelated to the debt, such as in home furnishings needed by the consumer for ordinary living, and the creditor’s “reasonable investment backed expectations” are reduced accordingly. As several bankruptcy courts have recognized:
(1) there is no direct relationship between the value of the household goods taken as collateral for the consumer loan and the amount of the loan as exists [, for example,] in a mortgage of real estate;
(2) the value of the household goods is often nominal whereas realty has a measurable value comparable to the amount of the loan secured; and (3) the lender making small consumer loans, unlike a mortgagee, does not view a security interest in household goods as a potential substitute for the debt. * * * [T]hese courts have concluded that, since the household goods given as security have little or no actual monetary value to the creditor, whatever property interest the creditor has in the collateral does not rise to the level of a mortgagee’s property rights in realty.
Matter of Ward, 14 B.R. 549, 561 (S.D.Ga. 1981), summarizing In re Pillow, 8 B.R. 404, 418-420 (Bkrtcy.D.Utah 1981); In re Goodrich, 7 B.R. 590 (Bkrtcy.S.D.Ohio 1980); In re Webber, 7 B.R. 580, 584-586 (Bkrtcy.D.Or.1980); In re Curry, 5 B.R. 282 (Bkrtcy.N. D.Ohio 1980); and In re Rutherford, 4 B.R. 510 (Bkrtcy.S.D.Ohio 1980).
Thorp contends that the market value of the collateral is irrelevant to whether its security interest should be characterized as “property” and whether the government must pay for an injury to the security interest. The intervenor United States, on the other hand, argues that Thorp’s lien is merely an incident to a contractual right to repayment of a debt. Of course, the academic difference between contract and property rights is that the federal government may freely impair only the former, and even among private persons, contract rights are freely avoidable at “market value” whereas the owner of a property right may demand any payment to release the right or refuse to part with the property at
any price. See Calabresi & Melamed, Property Rules, Liability Rules and Inalienability: One View of the Cathedral, 85 Harv.L. Rev. 1089 (1972). The “property” interest that Thorp asserts here is that it should be allowed to continue threatening to take possession of the household goods as a means of inducing the Giffords to repay the $3,000. The value of such a “property” interest is independent of the “contract” value of the lien, i.e., the actual market value of the household goods. By failing to request the United States to compensate for the alleged taking, Thorp in effect concedes that it has no interest in the latter amount. Moreover, Congress found during its legislative fact-gathering that creditors such as Thorp have no intention of repossessing the collateral.
The taking clause confuses Thorp’s dichotomy between contract and property, however, insofar as it would permit the government to take liens for a public purpose upon payment of only “just compensation.” Under the taking clause, the value of Thorp’s security interest can in no event be greater than its fair market or “just” value, which would be the market value of the collateral. See Cudahy Bros. Co. v. United States, 155 F.2d 905, 906-907 (7th Cir. 1946) (“just compensation includes all elements of value that inhere in the property, but it does not exceed market value fairly determined”); In re Pillow, 8 B.R. 404, 411 (Bkptcy.D.Utah 1981) (“Historically, lien rights have entitled their holders to the value of collateral and no more in bankruptcy”). There would be no justice in compensating Thorp based on some extortion value of the security interest. See Gordon, Unconscionability in Bankruptcy: The Federal Contribution to Commercial Decency, 66 Nw.U.L.Rev. 741, 765 (1972). Thorp knew or should have known at the time it entered into this security agreement that Congress was in the process of amending the bankruptcy laws to permit avoidance of such security interests. At best, assuming the courts would hold that Section 522(f) effects a taking, Thorp might have anticipated recovering as “just compensation” the value of the collateral. But since by all estimates the value of the collateral involved here is insignificant, Thorp’s “reasonable investment backed expectations” were insignificant also.
Even if the label “property interest” is not illusory, the impact of Section 522(f) upon Thorp’s lien is insubstantial. First, Section 522(f) allows avoidance of a lien only to the extent that the debtor has an exemption under Section 522(b), here for up to $200 per item. The lien is not avoidable beyond that amount, and accordingly Section 522(f) only minimally affects a creditor whose investment-backed expectations reside in truly valuable collateral. Second, Section 522(f) does not apply until there is a bankruptcy, by which time the creditor’s expectations of repayment are surely at a minimum. In this case, Thorp had some 20 months following enactment of Section 522(f) prior to the Giffords’ bankruptcy during which to watch the Giffords more closely, and in the case of their default to enforce the security interest or threaten to do so. Although we do not know the facts in the instant case, ordinarily we might suppose that a debtor misses payments and is dunned by his creditors prior to filing for bankruptcy. If that were the case here, this particular lending agreement would have allowed Thorp to demand immediate repayment of the outstanding indebtedness. Thorp might also have attempted to negotiate a different lien on non-exempt property of the Giffords. Cf. Texaco, Inc. v. Short, 454 U.S. 516, 530-31, 102 S.Ct. 781, 792-93, 70 L.Ed.2d 738 (1982) (Indiana Mineral Lapse Act does not effect a taking because plaintiff failed to take advantage of an opportunity to take action that would have prevented loss). Finally, Congress has not entirely destroyed Thorp’s expectation of repayment but instead has substituted for it the rights of an unsecured creditor, which need not be equal in value to the expectations allegedly taken. “While these rights may well not have constituted ‘just compensation’ if a ‘taking’ had occurred, the rights nevertheless undoubtedly mitigate whatever financial burdens the law has imposed on [Thorp] and, for that reason, are to be taken into account in considering the impact of the regulation.” Penn Central, supra, 438 U.S. at 137, 98 S.Ct. at 2666. Together, these elements indicate that Section 522(f) is a de minimis interference that does not rise to the level of a taking under the Fifth Amendment.
The Character of the Government Action
Regarding the character of the government action, Section 522(f) is a dual adjustment of benefits and burdens between the debtor and his creditors, and among a narrow class of secured creditors and the debt- or’s general creditors. The rationality of this adjustment of benefits and burdens between debtor and creditor was discussed in this opinion’s substantive due process section supra. We note that the adjustment among the different types of creditors is rational also. It seems unlikely that Thorp had a significantly greater expectation of repayment than the Giffords’ other unsecured creditors, such as unsecured retailers, landlords, and credit-card companies. It is even more unlikely that any difference in expectations should be allowed a veto over Congress’ plenary power to make bankruptcy law. A fair reordering such as this of the competing claims of creditors to available funds of a bankrupt should be immune to a taking challenge. See Sax, Takings, Private Property and Public Rights, 81 Yale L.J. 149, 161 (1971).
The government action here is not of the nature of a physical invasion since Section 522(f)(2) does not apply to lenders who have possession of the collateral pursuant to possessory security interests. Common sense suggests a distinction between interfering with a limited class of Uniform Commercial Code remedies for nonpayment of debt by a bankrupt, and such governmental actions as bolting cable television equipment onto the roof of a building, Loretto v. Teleprompter Manhattan CATV Corp.,-U.S. ——, 102 S.Ct. 3164, 73 L.Ed.2d 868, allowing the public to use a formerly private pond, Kaiser Aetna v. United States, 444 U.S. 164, 100 S.Ct. 383, 62 L.Ed.2d 332, or ousting a tenant from his leasehold, United States v. General Motors Corp., 323 U.S. 373, 65 S.Ct. 357, 89 L.Ed. 311; Devines v. Maier, 665 F.2d 138 (7th Cir. 1981). The former is impairment of an abstract incident to a contract right, while the latter are physical invasions of tangible property. The type of lien here is a property right in the broad sense that, except for the government’s right to condemn for a public purpose, its holder may in certain circumstances exclude others from enjoying particular resources. But such a lien is not a property right in the sense that its holder possesses anything more than a bare legal title, or ever anticipates taking possession of the underlying collateral except perhaps as needed to make its more profitable threats of repossession credible. Our conception of property has not become so liberal that we can no longer distinguish, at least in narrow instances such as these, between property interests that are manifested by possession and transferred by delivery, and property interests merely photocopied onto the backside of consumer loan agreements.
Nor does Section 522(f) inure to the government’s own benefit. Thus this case is again distinguishable from Armstrong, supra, where the government “took” materialmen’s liens that encumbered government-owned ships. As the Third Circuit has stated as to the takings dichotomy, Section 522(f) is ordinary “economic regulation rather than a taking for public use.” In re Ashe, supra, 669 F.2d at 110.
In deciding whether this character of action is a taking, we must remember that an affirmative
Question: What is the specific issue in the case within the general category of "economic activity and regulation"?
A. taxes, patents, copyright
B. torts
C. commercial disputes
D. bankruptcy, antitrust, securities
E. misc economic regulation and benefits
F. property disputes
G. other
Answer:
|
songer_casetyp1_1-3-1
|
J
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "criminal - federal offense".
UNITED STATES of America, Plaintiff-Appellee, v. Jimmie Richard ADAMS, William Francis Elliott, James Henry Morrell, Jr., Elba Pintado-Otero, Luciano Morra, William Hinton Hockaday, Larry Henton Hockaday, James W. McMullen, Jerry Gray Hockaday, Defendants-Appellants.
No. 85-3315.
United States Court of Appeals, Eleventh Circuit.
Sept. 15, 1986.
H.B. Edwards, III, Valdosta, Ga., for Adams.
John F. O’Donnell, Ft. Lauderdale, Fla., for Elliott.
Paul D. Lazarus, Ft. Lauderdale, Fla., for Morrell.
John Lipinski, Miami, Fla., for Otero.
Armando Garcia, Tallahassee, Fla., for Morra.
Clyde M. Taylor, Tallahassee, Fla., for W.H. Hockaday.
L. Sanford Selvey, II, Tallahassee, Fla., for L.H. Hockaday.
Clifford L. Davis, Tallahassee, Fla., for McMullen.
Judith Dougherty, Tallahassee, Fla., for J.G. Hockaday.
Barbara Schwartz, Asst. U.S. Atty., Tallahassee, Fla., for plaintiff-appellee.
Before RONEY, Chief Judge, CLARK, Circuit Judge, and GIBSON , Senior Circuit Judge.
Honorable Floyd R. Gibson, Senior U.S. Circuit Judge for the Eighth Circuit, sitting by designation.
FLOYD R. GIBSON, Senior Circuit Judge:
The appellants challenge their narcotic related convictions on several grounds, including improper jury contact, prosecutorial misconduct, and sufficiency of the evidence. For the reasons discussed below, we affirm their convictions.
The government secured an eight count indictment charging nineteen individuals with various narcotics crimes as a result of their participation in a marijuana smuggling operation. The case involves two separate importations of marijuana. The first occurred in September 1979 and involved the vessel “Christine.” The Christine sailed to the Caribbean where it met a large ship that was carrying several thousand pounds of marijuana. The Christine took on 6,000 pounds of marijuana and sailed for Florida. The vessel anchored about twelve miles off the shore of Stein-hatchee, Florida. A helicopter off-loaded the marijuana and transported it to a “stash site” near Greenville, Florida. The second importation occurred in October 1979 and involved a freighter that was anchored off the coast of northern Florida. The freighter had on board several thousand pounds of marijuana. The marijuana was off-loaded by helicopter and by small boats, and taken to the stash site. Twelve of the nineteen individuals named in the indictment were tried and convicted by a jury for their participation in these importations. Nine of those twelve defendants now appeal.
I. IMPROPER JURY CONTACT
All nine appellants take issue with the district court’s ruling on the “improper jury contact” issue. Before proceedings resumed in the morning of the day on which closing arguments were given, the trial judge was informed by the marshal that one of the jurors had requested to speak to the judge. Juror Adams was brought to the judge’s chambers where, in the presence of the judge, his court personnel, and the court reporter, Juror Adams disclosed that she had been contacted on the previous night by a woman who made reference to the trial and to one of the defendants, Joe Reams. After discussing the details with the judge, Adams stated that she had not mentioned the incident to the other jurors. The judge excused Adams and replaced her with an alternate pursuant to Fed.R.Crim.P. 24(c). Adams was instructed not to discuss the incident with anyone. To avoid her having any contact with the jury, the judge had Adams wait in his chambers until the jury returned to the courtroom, at which time Adams left the courthouse. When proceedings resumed, the judge informed the parties and their counsel, outside the presence of the jury, that he had excused and replaced “the Juror Lula Adams because of a matter that developed overnight that she brought to my attention.” No inquiry was made by the government or by the defendants. When the jury was brought into the courtroom, the judge repeated that Juror Adams was excused because of “something [that] developed overnight.”
After the jury returned its verdicts, the judge interviewed the jurors individually and without counsel present. The judge learned that Juror Adams had in fact mentioned the incident in the jury room minutes before she disclosed to the judge that she had been contacted. The judge learned that when Adams arrived at the courthouse that morning, she began discussing the incident with a few jurors, but was stopped by the jurors when she revealed that the woman who approached her mentioned the trial and defendant Joe Reams. The other jurors told Adams to see the judge immediately about the incident. Adams then left the jury room and requested to see the judge. Transcripts of these post-verdict interviews and the interview with Juror Adams were prepared and given to the parties.
After counsel had an opportunity to review these transcripts, the court again interviewed the jurors separately, but with the parties and their counsel present. Counsel were allowed to submit questions to the judge, who questioned the jurors. The interviews revealed that two of the twelve jurors did not know that a juror had been contacted. The other ten jurors were aware to various degrees that Adams had been contacted. Five jurors knew that she had been contacted, but were unaware that a name had been mentioned. The other five jurors knew that she had been contacted and that Reams’ name was mentioned. The alternate also knew of a contact, but was unaware of any names mentioned.
The court found that the jury’s deliberations were not biased by the improper contact. The jurors testified that after Adams left the jury room the incident was never again discussed. Each juror testified that the improper contact did not affect the deliberations and had no bearing whatsoever on the verdicts. The court noted that the jurors were candid and forthcoming in their responses to the questions. No juror hesitated or was reluctant in answering. The court concluded that the defendants were not prejudiced, and denied all motions for mistrial and new trial.
The appellants contend that they were deprived of their constitutional right to be present at all stages of the trial and their parallel right pursuant to Fed.R.Crim.P. 43 when the court interviewed Juror Adams and the other members of the jury outside their presence and the presence of counsel. The appellants also contend that the court erred in not examining each juror in the presence of counsel immediately upon discovering that Juror Adams had been contacted. Finally, they contend that the court erred in denying their motion for new trial because they were prejudiced by the improper contact.
We hold that the appellants’ constitutional right to be present at every stage of the criminal proceedings was not violated by the court’s interview of Juror Adams. “ ‘[T]he mere occurrence of an ex parte conversation between a trial judge and a juror does not constitute a deprivation of any constitutional right.’ ” United States v. Gagnon, 470 U.S. 522, 105 S.Ct. 1482, 1484, 84 L.Ed.2d 486 (1985) (quoting Rushen v. Spain, 464 U.S. 114, 125-26, 104 S.Ct. 453, 459-60, 78 L.Ed.2d 267 (1983) (Stevens, J., concurring in judgment)). See United States v. Watchmaker, 761 F.2d 1459, 1466 (11th Cir.1985) (where trial judge took great care in framing his comments, where transcripts were made available to counsel, and where post judgment motions provided opportunity to explore any possible prejudice, there was no due process violation), cert. denied, — U.S. —, —, 106 S.Ct. 879-80, 88 L.Ed.2d 917, 917 (1986). We also hold that although the better practice would have been to notify the parties and their counsel immediately upon learning that Adams had been improperly contacted, the failure to do so and the failure to examine immediately the other jurors in the presence of the parties and their counsel does not constitute reversible error in this case because in any event the other members of the jury were not prejudiced by the improper contact. The post-verdict interviews in the presence of the parties and their counsel sufficiently demonstrate this absence of prejudice. The district judge should be afforded a considerable measure of discretion in handling these inadvertent situations.
This court recently reviewed the relevant case law in United States v. Caldwell, 776 F.2d 989, 997-98 (11th Cir.1985), and concluded that the cases fall along a continuum. At one end, the cases focus on the certainty that some impropriety exists. At the other end of the continuum, the cases focus on the seriousness of the accusation of impropriety. “The more serious the potential jury contamination, especially where alleged extrinsic influence is involved, the heavier the burden to investigate.” Id. at 998 (citing United States v. Brantley, 733 F.2d 1429 (11th Cir.1984), cert. denied, 470 U.S. 1006, 105 S.Ct. 1362, 84 L.Ed.2d 383 (1985); United States v. Phillips, 664 F.2d 971 (5th Cir.1981), cert. denied, 459 U.S. 906, 103 S.Ct. 208, 74 L.Ed.2d 166 (1982); United States v. Forrest, 620 F.2d 446 (5th Cir.1980)). We are concerned here with the latter end of the continuum and are guided by United States v. Forrest, which is cited in both United States v. Brantley and United States v. Phillips.
Forrest involved a similar contact to that involved in the case at bar. Prior to closing arguments a juror in the Forrest case told the trial judge that she was approached by her niece in an effort to influence her to acquit the defendants. The discussion between the juror and the judge, however, took place in the judge’s chambers in the presence of counsel for both parties. The tainted juror assured the judge that the other jurors did not know of the contact. The court excused and replaced the juror, but did not examine the other jurors. The defendants were convicted. On appeal, the Fifth Circuit remanded for a hearing to determine whether the other members of the jury were prejudiced. The court of appeals held that the trial court’s investigation into the improper contact was inadequate, and that a tainted juror’s testimony that the other jurors knew nothing about the improper contact is an insufficient basis on which to conclude that the other jurors have not been contaminated. Forrest, 620 F.2d at 457-58. “Only the other jurors can enlighten [the court] properly on this subject.” Id. at 457.
The appellants contend that the Forrest examination of the other jurors in this case should have taken place before rather than after the verdicts were rendered. Although Forrest can be read to suggest that the examination of the jurors should take place if possible before the verdicts are rendered, failure to do so in this case is not reversible error because the post-verdict interviews in the presence of the parties and their counsel demonstrate that the jurors were not prejudiced. Such post-verdict interviews are constitutionally sufficient to decide allegations of juror impartiality. See Smith v. Phillips, 455 U.S. 209, 217-18, 102 S.Ct. 940, 946, 71 L.Ed.2d 78 (1982); Remmer v. United States, 347 U.S. 227, 230, 74 S.Ct. 450, 451, 98 L.Ed. 654 (1954). “The crucial issue is the degree and pervasiveness of the prejudicial influence.” United States v. Williams, 568 F.2d 464, 470 (5th Cir.1978). We have reviewed the transcript of the post-verdict interviews and conclude that the district court’s findings are not clearly erroneous. The jurors were not prejudiced by the improper contact. We hold, therefore, that the district court did not abuse its discretion in denying the motions for new trial on the basis of improper jury contact.
II. PROSECUTORIAL MISCONDUCT
The appellants contend that the following remarks made by the prosecutrix during the rebuttal portion of her closing arguments denied them a fair trial:
MS. SCHWARTZ (Prosecutrix): And as Bart Carver told you, dope dealers deal with dope dealers, and you have to know, you don’t find a swan in the sewer, and that’s what you get when — . [objection] [sustained]
Record XXXIII at 86.
MS. SCHWARTZ: I believe that the Government has proven the Defendants guilty — . [objection]
THE COURT: Continue. I got your point.
MRS. SCHWARTZ: I believe that the Government has proven, with the testimony and the evidence, that the Defendants are guilty beyond a reasonable doubt, [objection]
THE COURT: Continue.
Record XXXIII at 98-99. The appellants argue that the comment about “dope dealers” and “sewers” was inflamatory because it depicts the defendants as drug dealers emanating from the sewer. Their argument is without merit. The appellants have taken the prosecutrix’ statement out of context. The record clearly indicates that the prosecutrix was not referring to the defendants. Rather, she was referring to the government witnesses, whose credibility had been attacked by defense counsel on cross-examination and in closing arguments. The prosecutrix was merely reminding the jury that the government had conceded all along that its witnesses were drug dealers. Record XXXIII at 85. With respect to the remarks concerning the guilt of the defendants, the appellants contend that the prosecutrix’ expression of her personal opinion denied them a fair trial. We disagree. “When the prosecutor voices a personal opinion but indicates this belief is based on evidence in the record, the comment does not require a new trial.” United States v. Granville, 716 F.2d 819, 822 (11th Cir.1983), aff'd on rehearing, 736 F.2d 1480 (11th Cir.1984). A prosecutor may say, “ T believe the evidence has shown the defendant’s guilt, [but not,] I believe that the defendant is guilty.’ ” United States v. Morris, 568 F.2d 396, 402 (5th Cir.1978) (citations omitted). The prosecutrix’ statements in the case at bar are consistent with those allowed in Granville and Morris. We conclude, therefore, that the prosecutrix’ comments were within permissible bounds.
Appellant Pintado-Otero contends that the district court erred in denying her motion for a mistrial as a result of the following statement by a government witness:
I was told over the radio or telephone, I forget, when I was called to set up surveillance, that we had a group of Latins that were probably in town to do a dope deal and that they were making phone calls to known dopers in Miami or somewhere south.
Record XXI at 130. This statement was made despite the district court’s previous instruction to the government that its witnesses were not to testify that telephone calls were made to “known drug smugglers.” Pintado-Otero argues that the witness’ remark implies that Pintado-Otero, one of only two Latin defendants, was a narcotics dealer from Miami, making phone calls to her cohorts — “known dopers.” Pin-tado-Otero argues that the government produced no evidence, however, that she was involved in any prior narcotics transactions. Pintado-Otero concludes that consequently the remark was prejudicial.
We hold that the district court properly denied the motion for mistrial. When the evidence is withdrawn from the jury with an instruction to disregard it, “the error is cured unless the evidence is so highly prejudicial as to render the error incurable.” United States v. Benz, 740 F.2d 903, 916 (11th Cir.1984), cert. denied, — U.S. —, 106 S.Ct. 62, 88 L.Ed.2d 51 (1986). The testimony in this case was not so highly prejudicial as to render the error incurable. Indeed, any prejudice as a result of the remark was cured by the court’s immediate curative instruction, Record XXI at 145, and minimized by the fact that the remark was not repeated or referred to thereafter. See United States v. Hernandez, 750 F.2d 1256, 1259 (5th Cir.1985) (in reversing conviction the court emphasized that no instruction was given to disregard the testimony and the prosecutor attempted to exploit the prejudicial testimony in closing arguments).
III. IMPEACHMENT EVIDENCE
Appellants McMullen and the Hockadays were convicted of conspiracy to possess and possession of marijuana with the intent to distribute. Coconspirator and government witness M.L. Tucker implicated the defendants in these crimes. Through cross-examination defense counsel revealed that Tucker was serving time in prison for other crimes when he agreed to cooperate with federal officials in return for his early release from prison and immunity from prosecution for his involvement with the appellants in this case. Also on cross-examination, Tucker was asked whether his wife gave birth to their child while Tucker was in prison. Tucker responded that his child was born after he was released from prison. As part of the defendants’ case, appellant Jerry Hockaday attempted to introduce a hospital medical record through the testimony of the hospital records custodian. The medical record indicated that a woman gave birth to a child on September 9, 1982, while Tucker was in prison, and stated that Tucker was the father. Defense counsel argued at trial that the medical record was relevant for two reasons: first, it demonstrated that Tucker lied on cross-examination about the date of his child’s birth; and second, it revealed that Tucker had an additional motive to obtain an early release from prison — to be with his child. The court sustained the government’s objection that this was impeachment evidence as to a collateral matter. The appellants contend that the court erred in refusing to admit the record into evidence.
We hold that the district court did not err in refusing to admit the medical record. The birth date of Tucker’s child is clearly a collateral matter on which Tucker cannot be impeached by extrinsic evidence. See United States v. Russell, 717 F.2d 518, 520 (11th Cir.1983). Further, although the importance of exposing a witness’ motivation to cooperate with the prosecution has been long recognized in this circuit, see generally Jenkins v. Wainwright, 763 F.2d 1390, 1392 (11th Cir.1985) (and cases cited therein), cert. denied, — U.S. —, 106 S.Ct. 2290, 90 L.Ed.2d 730 (1986), we believe the cross-examination of Tucker sufficiently demonstrated his motivation to cooperate with the prosecution so that the evidence sought to be admitted was merely cumulative.
IV. SUFFICIENCY OF THE EVIDENCE
Appellants Elliott, Otero, and Morra challenge the sufficiency of the evidence against them. We review the evidence against the appellants in the light most favorable to the government, drawing all reasonable inferences in favor of the jury’s verdict. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942).
£7] Appellant Elliott was convicted of conspiracy to possess marijuana and possession of marijuana with the intent to distribute. The government’s evidence against Elliott consists of the testimony of coconspirator and government witness, George Cottage. Cottage testified that he had known Lem North, one of the masterminds of the scheme to import marijuana, for several years. In September 1979, North invited Cottage to meet North in Valdosta, Georgia, for the purpose of “brokering” the marijuana from the first importation. Cottage invited appellants Elliott and Morrell along, explaining to them the purpose of the trip. Morrell drove. The trip was unsuccessful, however, and the three returned to Florida. In November 1979, after the second importation and upon Morrell’s request, Cottage accompanied Morrell and Elliott to Valdosta, Georgia, to meet Lem North again. Before they checked into their hotel rooms, Elliott, Morrell, and Cottage met with North. North offered them a sample (three fourths of a pound) of marijuana for their prospective customers. Morrell took the sample and he and Elliott went to their adjoining hotel rooms. When Cottage arrived the prospective buyers were already in the rooms. Shortly thereafter, the police entered the rooms and found Morrell, Elliott, and Cottage together with the prospective buyers and the sample of marijuana. The strong odor of marijuana burning was present in the room. The sample matched the marijuana found at the stash site.
Elliott argues that this evidence only demonstrates his “ ‘mere presence’ in a suspicious climate.” We disagree.
For Elliott to be convicted of conspiracy to possess marijuana with the intent to distribute, “the government was required to prove beyond a reasonable doubt the existence of a conspiracy, his knowing participation in it, and his criminal intent.” United States v. Cruz-Valdez, 773 F.2d 1541, 1544 (11th Cir.1985), cert. denied, — U.S. —, 106 S.Ct. 1272, 89 L.Ed.2d 580 (1986). For Elliott to be convicted of the possession charge, “the government’s burden was to prove beyond a reasonable doubt that he knowingly possessed the marijuana, either actually or constructively, and that he intended to distribute it.” Id. We agree with Elliott that “mere presence” is insufficient to establish guilt on these charges. As this court recently recognized in Cruz-Valdez, however, the evidence in these cases “establishes not mere presence but presence under a particular set of circumstances.” Id. at 1545. We hold that from the circumstances in this case the jury could find Elliott guilty beyond a reasonable doubt as charged. See United States v. Walker, 720 F.2d 1527, 1538 (11th Cir.1983) (the existence of a conspiracy may be proved by circumstantial evidence, including inferences from the conduct of the alleged participants), cert. denied, 465 U.S. 1108, 104 S.Ct. 1614, 80 L.Ed.2d 143 (1984). The evidence demonstrated that Elliott accompanied Morrell to Valdosta not once but on two separate occasions for the same purpose — to broker the imported marijuana. The logical inference to be drawn from this evidence is that Elliott and Morrell had agreed to broker the marijuana and were knowingly participating in that agreement. Elliott accompanied Morrell to North’s hotel room where Morrell, Elliott’s coconspirator, obtained a sample. Both Elliott and Morell then met their prospective buyers, who sampled the marijuana. We believe that the jury also could have reasonably inferred that Elliott together with Morrell possessed the marijuana with the intent to distribute.
Appellant Pintado-Otero was convicted of conspiracy to possess marijuana with the intent to distribute, possession of marijuana with the intent to distribute, and the unlawful carrying of a firearm during the commission of a felony. The evidence against Pintado-Otero consists of the testimony of a Florida Marine Patrol Officer, and of a coeonspirator and government witness, Myra Labrador. Labrador testified that she was hired to accompany a man while he drove a motor home that was heavily loaded with marijuana. Man-and-woman combinations were needed to give the appearance of a “couple” vacationing in a motor home. Labrador testified that several other “couples” were hired to transport the marijuana in the same way. Labrador stated that she was placed in the back of a motor home with several others and taken to what was later identified as the stash site. Labrador identified appellant Pintado-Otero as one of the people in the motor home. When they arrived at the stash site, the “couples” were assigned different motor homes. The motor home in which Pintado-Otero was riding was followed from the stash site by the Florida Marine Patrol Officer who testified that Pintado-Otero’s vehicle would not stop until it approached a roadblock. The officer directed the passengers, Pintado-Otero and her daughter, to step out of the vehicle. While he was directing the driver to step out, the officer noticed Pintado-Otero place her hand on her purse. The officer instructed Pintado-Otero not to move while he removed from Pintado-Otero’s purse an automatic pistol, which was loaded and ready to fire.
Pintado-Otero argues that her mere presence in a vehicle transporting marijuana that was only accessible from the rear of the vehicle is insufficient to prove that she conspired to possess and possessed marijuana with the intent to distribute. Because these convictions must fall, her argument continues, so must the firearm conviction. We disagree.
The circumstances of Pintado-Otero’s presence in the vehicle transporting a substantial quantity of marijuana demonstrate that she was part of a conspiracy to possess and possessed marijuana. Pintado-Otero was among those people taken to the stash site for the purpose of transporting large quantities of marijuana out of Florida in motor homes. Her presence was essential to the success of the ruse — to give the appearance of a couple vacationing in a motor home. She was arrested in a motor home heavily loaded down with marijuana. The strong odor of marijuana was present in the cab of the motor home. The logical inference to be drawn from this evidence is that a conspiracy to possess the marijuana with the intent to distribute existed and that Pintado-Otero knowingly participated in it. In these particular circumstances, Pintado-Otero had no more or no less control over the progression and destination of the motor home and its contents than did the driver. Consequently, they shared at least constructive possession of the marijuana. See United States v. Maspero, 496 F.2d 1354, 1359 (5th Cir.1974). We hold that the evidence is more than sufficient for the jury to have inferred beyond a reasonable doubt that Pintado-Otero engaged in a conspiracy to possess and possessed marijuana with the intent to distribute.
Appellant Morra was convicted of conspiracy to import marijuana, conspiracy to possess marijuana with the intent to distribute, two counts of importation, and two counts of possession. John Thomas, who piloted the Christine, which was involved in the first importation, testified for the government that he was hired by appellant Morra to import the marijuana from the Caribbean to Florida. Morra told Thomas and a man named Bart Carver that the load was 20,000 pounds. Carver secured a vessel, the Christine, and prepared it for the first importation. When it was ready, the Christine sailed for the Caribbean. The vessel developed mechanical problems, and Thomas contacted Morra and defendant Ronnie Fripp, who sent a mechanic. On Morra’s instructions, Thomas sailed the Christine to the rendezvous with another ship where the Christine took on the 6,000 pounds of marijuana. When the Christine returned to Florida and arrived off the coast of Steinhatchee, Morra communicated with Thomas from a plane that circled above the vessel. Carver corroborated Thomas’ testimony, adding that Morra and Fripp were partners and that Morra assured him that there would be additional loads. Patrick Harrell testified that he was hired to “sit on the stash site.” Harrell met Morra, who Harrell stated was at the stash site when the marijuana was unloaded by the helicopters. Harrell testified that Morra, Fripp, and North were the masterminds of the scheme to import marijuana.
Morra concedes that the jury could have found him guilty beyond a reasonable doubt of conspiracy to import and importation of marijuana with respect to the first load. He argues that the evidence is insufficient, however, to support his conviction for possession of marijuana with the intent to distribute with respect to the first load. Morra’s argument is without merit. The evidence places Morra at the stash site and shows that he, Fripp, and North were partners or the masterminds in the criminal venture, exercising control over the marijuana. The logical inference is that he along with Fripp and North possessed the marijuana with the intent to distribute. Morra also argues that the evidence is insufficient to connect him to the second importation. He contends that the government proved two conspiracies to import and two conspiracies to possess marijuana with the intent to distribute. Because he was not connected with the second importation, Morra argues that his conviction on the second importation charge, the second possession charge, and the charge of a continuing conspiracy to possess marijuana must be reversed. We disagree. The government’s theory at trial was that there was one continuing conspiracy to import marijuana and one continuing conspiracy to possess marijuana with the intent to distribute. Morra and Fripp conspired to smuggle marijuana into the United States by ship and helicopter and to use Joe Reams’ property as the stash site. The testimony of the witnesses demonstrated that Morra and Fripp were partners and that they and North financed the importations and distributions. We believe that this evidence is sufficient for the jury to have inferred beyond a reasonable doubt that Morra engaged in the continuing conspiracy to possess marijuana as well as the second importation and possession of marijuana.
V. CONCLUSION
In conclusion, we hold that the appellants were not prejudiced by the improper jury contact, that the comments by the prosecu-trix during closing argument were not improper, that the government witness’ testimony was not prejudicial, that the trial court did not err in refusing to admit the collateral evidence, and that the evidence is sufficient to support the appellants’ guilt beyond a reasonable doubt. Consequently we AFFIRM the appellants’ convictions.
. Appellants Adams, Elliott, Morrell, Pintado-Otero, the Hockadays, and McMullen were convicted of conspiracy to possess and possession of marijuana with the intent to distribute. See 21 U.S.C. §§ 841, 846; 18 U.S.C. § 2. Pintado-Otero was also convicted of unlawfully carrying a firearm during the commission of a felony. See 18 U.S.C. § 924(c). Appellant Morra was convicted of conspiracy to import marijuana and conspiracy to possess marijuana with the intent to distribute. He was also convicted on two counts of importation of marijuana, and on two counts of possession of marijuana with the intent to distribute. See 21 U.S.C. §§ 952, 960, 963, 841, and 846; 18 U.S.C. § 2.
. Honorable William Stafford, United States Chief District Judge for the Northern District of Florida.
. The relevant portion of the judge’s discussion with Juror Adams follows:
JUROR ADAMS: Well, this lady came to my house last night, I don’t know what time it was. ... She told me that she was trying to get a job at Dixie Packers, that’s where I work in Madison. Somebody told her ... where I lived at and I worked at Dixie Packers, and told her to come and talk to me about was they hiring at this present time at Dixie Packers. Well, I told her that I didn’t know because I hadn’t been to work in about two weeks and I didn’t know was they hiring. I said I was going to Tallahassee every day on trial, on jury duty. ... And she come in and she said, oh, well — I asked her where was she from. She told me she was from Greenville and she had been working — she was a store manager at some store, and the man that owned the store was selling it, and that she was trying to find her another job, and she was asking me was they hiring. And she said that the man — after I told her about I was going to Tallahassee, you know, that I didn’t know about was they hiring at the time or not, then she said "Well, maybe you know the man that owns the store because he’s on trial up there.” I said, "No, I don’t think I do.” And she said, "Well, his name is Joe Reeves (sic)." I said, "No, I haven’t heard of that name.” And she said, "Well they call him Joe Ball." And she said, "He owned the store that I worked at, that I was store manager, and he’s selling the store.” And he told her that they had him on trial for finding marijuana on his land and that he didn’t know nothing about it cause he had so many acres of land that he didn’t know that the marijuana was on his land, but they was trying to send him off for it. I said, "Well, I don’t know him, no, because I’m not on that trial." And I got off the subject____
And then when she was going out the door, she said, “Well, you listen when you go back up there," she said, “You listen for his name and maybe you’ll know him and then maybe you could help him, then I won't have to find me another job because I could still keep my job, because he said he didn’t do it, he didn’t know nothing about it.” And she left.
THE COURT: Did you recognize the lady?
JUROR ADAMS: No, I didn’t know her at all. ...
THE COURT: Did she — did you mention the jury service first?
JUROR ADAMS: Yeah, I did.
THE COURT: Uh-huh. And then that’s when she — ?
JUROR ADAMS: That’s when she said, "Well, maybe you know him, the man that owns the store, maybe you know him because he’s on trial up there," and she said, "Joe Reeves.” I said, no, no, I don’t know him.” She said, "Joe Ball, they call him Joe Ball.” I said, "No, I don’t think — " I said, “No, I’m not on that trial.”
THE COURT: Have you said anything to any other jurors?
JUROR ADAMS: No....
Record XXXII at 2-7.
. Appellants argue that testimony of a juror is inherently suspect in these circumstances. The Supreme Court rejected a similar argument in Smith v. Phillips, supra, and noted that "surely one who is trying as an honest man to live up to the sanctity of his oath is well qualified to say whether he has an unbiased mind in a certain matter.” 455 U.S. at 217 n. 7, 102 S.Ct. at 946 n. 7.
Question: What is the specific issue in the case within the general category of "criminal - federal offense"?
A. murder
B. rape
C. arson
D. aggravated assault
E. robbery
F. burglary
G. auto theft
H. larceny (over $50)
I. other violent crimes
J. narcotics
K. alcohol related crimes, prohibition
L. tax fraud
M. firearm violations
N. morals charges (e.g., gambling, prostitution, obscenity)
O. criminal violations of government regulations of business
P. other white collar crime (involving no force or threat of force; e.g., embezzlement, computer fraud,bribery)
Q. other crimes
R. federal offense, but specific crime not ascertained
Answer:
|
songer_origin
|
I
|
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.
Sidney PERSSION and Caroline Perssion, Husband and Wife, Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
No. 13253.
United States Court of Appeals Seventh Circuit.
Dec. 13, 1961.
Donald S. Eisenberg, Madison, Wis., for petitioner.
Louis F. Oberdorfer, Asst. Atty. Gen., Ronald C. Meteiver, Lee A. Jackson, Meyer Rothwacks, Attys., Dept, of Justice, Washington, D. C., for respondent.
Before SCHNACEENBERG, ENOCH and CASTLE, Circuit Judges.
ENOCH, Circuit Judge.
In this proceeding for review of a decision of the Tax Court of the United States, which determined a deficiency in income tax of $3,631.09 for the year 1953, there is only one disputed item.
Mr. and Mrs. Perssion filed a joint return in which they reported a capital gain of $16,000 on a sale of furniture, fixtures, etc., for $18,000. The Tax Court found only $2,000 allocable to this sale price.
The facts are briefly as follows: Mr. Perssion has been engaged in the business of owning and managing rental properties since the year 1924. In January, 1952, he purchased land and buildings at 1032-40 N. 12th Street, Milwaukee, Wisconsin, from Eva Pytel (including furniture, fixtures, etc., in the buildings) . He asserts that the total purchase price of $33,348.50 included the rooming and boarding house business which Mrs. Pytel had been operating at that location for about ten years. Mr. Perssion contends that the rooming and boarding house had acquired a very good reputation as a result of which the County of Milwaukee Welfare Department often sent indigent persons for temporary lodging at Mrs. Pytel’s. Mr. Perssion’s books reflect the following allocation at the time of the purchase:
Furniture and fixtures $ 2,000.00
Land 6,000.00
Buildings 25,348.50
Total $33,348.50
For the first six months, Mr. Perssion rented the premises to Mrs. Pytel at a monthly rental not disclosed to the Tax Court. In July, 1952, he made an oral agreement with Mr. and Mrs. George Lawrence who continued to operate the rooming and boarding house business. The Lawrences paid Mr. Perssion $800 per month, which he reported as rent in his income tax return for 1952, and they retained all income in excess of that amount. They had an option to lease the premises after a six-month trial period. They took up this option. Mr. Perssion describes the arrangement as one whereby the Lawrences bought the rooming house business, fixtures and furnishings for $18,000 to be paid to him at the rate of $500 per month, with an additional monthly rental of $300. There was an option to renew for an additional three-year period. The agreement was to be put in writing, but the parties did not reduce it to writing until a much later time. From January 1, 1953, through October, 1953, the Lawrences paid Mr. Perssion $800 per month.
Meanwhile in July, 1952, Mrs. Pytel, the original owner and operator of the property in question, rented an adjacent apartment building from Mr. Perssion who subsequently sold that building to Mrs. Pytel, and she began to operate a rooming and boarding house there in competition with the Lawrences. When the Lawrences’ business declined in the fall of 1953, Mr. Perssion reduced their monthly payments to $500, of which he allocated $300 to rent and $200 to the unpaid purchase price of the fixtures and furnishings. At the end of 1954, the monthly payments were reduced to $400, of which Mr. Perssion allocated $300 to rent and $100 to the unpaid balance. Mrs. Lawrence testified that she had thought the entire amount was monthly rental and that she did not understand that a part of the monthly payments were allocated to a purchase price until sometime in 1954 when she heard Mr. Perssion say something to that effect to her husband. Because of illness, Mr. Lawrence was unavailable as a witness in the Tax Court. He passed away after the trial.
On December 31, 1956, a written lease was executed covering the property here involved (and another parcel) for a term of 26 months beginning January 1, 1957, at a monthly rental of $300, with an option to renew for a four-year period at a monthly rental of $400.
Mr. Perssion’s books showed an account entitled “Mortgages Rec — Geo. Lawrence, 1032 N. 12th Street” in which the monthly payments allocated to the sale of the fixtures and furnishings were posted from 1953 through September 30, 1959. There was no evidence, however, that the Lawrences ever executed a mortgage to Mr. Perssion. The remainder of the monthly payments was recorded as rent during 1953 through 1955.
In connection with the lease executed December 31, 1956, the Lawrences also executed a note for $7,800, the amount of the unpaid balance of the $18,000 purchase price, which was to be paid in monthly installments of $200, beginning December 31, 1956. The note form has a space for insertion of interest, but the space is blank. Provision is made for interest after the due date, and there is a provision giving Mr. Perssion an option to cancel the lease in the event of default on the note.
In the return for 1953, the Perssions reported:
Gain on Sale of Furniture and Fixtures—
1030-40 N. 12th St. Sold January 2,1953, for $18,000.00
Purchased January 2, 1952, for 2,000.00
Net long-term capital gain on sale Percentage of gain on sale 88.89% $16,000.00
Amount received in 1953 $ 5,400.00
Percentage of gain 88.89%
Gain realized in 1953 4,799.52
Gain recognizable for 1953 (50%) 2,399.76
The Commissioner of Internal Revenue determined that only $2,000, the value of the furniture and fixtures on Mr. Perssion’s records, was allocable to the sales price and that the remaining $16,000 was allocable to proceeds from the lease; that $4,800 of the $5,400 received from the Lawrences in 1953, and allocated, by Mr. Perssion to payment on the fixtures and furniture, in fact represented rent covering the real estate which the Lawrences used in their operations; and that $600 represented proceeds from the sale of fixtures and furniture, as follows;
Sales price of furniture and fixtures $2,000
Cost of furniture and fixtures $2,000 Less: Reserve for depreciation 400 1,600
Net profit in installment basis $ 400
Gross profit ratio 20%
Gross proceeds of contract received in 1953 5,400
Less: Amount of gross rent income 4,800
Gross proceeds from the sale of furniture and fixtures $ 600
Long term capital gain realized in 1953 $ 120
Amount of long-term capital gain recognizable for 1953 (50%) $ 60
The Tax Court found that the lease-rent-sale transaction was designed to disguise rent from real estate as long term gain from a sale. The Tax Court properly considered the substance of the transaction as distinguished from its form in determining the nature of the transaction for tax purposes. Gregory v. Helvering, 293 U.S. 465, 55 S.Ct. 266, 79 L.Ed. 596 (1935); Ingle Coal Corp. v. C. I. R., 7 Cir., 1949, 174 F.2d 569, 571.
Although it is here contended on behalf of Mr. Perssion that an element of good will in a going concern was included in the sale of the furniture and fixtures, there was no allocation of the original purchase price to good will. Mrs. Pytel continued to operate the premises for about six months and then shortly thereafter renewed operation at a nearby location (which she purchased from Mr. Perssion) in competition with the Lawrences. The Lawrences acquired nothing in the nature of good will, such as a trade name, a right to sole operation in a particular area, or a staff with specialized knowledge. Grace Bros. v. C. I. R., 9 Cir., 1949, 173 F.2d 170, 176.
Mr. Perssion testified in the Tax Court that a fair monthly rental for this real estate in 1952 and subsequent years was $300. The Tax Court, however, also considered the fact that the Lawrences had paid a monthly rental of $800 in 1952.
It is the function of the Tax Court to weigh the evidence and to draw inferences therefrom. Wisconsin Memorial Park Co. v. C. I. R., 7 Cir., 1958, 255 F.2d 751. We cannot state from our study of this record that the Tax Court’s findings of fact in this case are clearly erroneous. The decision of the Tax Court must be affirmed.
Question: What type of court made the original decision?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Special DC court
H. Other
I. Not ascertained
Answer:
|
songer_respond1_3_2
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
UNITED STATES of America, Plaintiff-Appellee, v. William M. CARROLL, Defendant-Appellant.
No. 88-2260.
United States Court of Appeals, Sixth Circuit.
Argued July 31, 1989.
Decided Jan. 9, 1990.
David Debold, argued, Office of the U.S. Atty., Detroit, Mich., for plaintiff-appellee.
Jill L. Price, argued, Federal Public Defenders Office, Detroit, Mich., for defendant-appellant.
Before KRUPANSKY and RYAN, Circuit Judges, and WILHOIT, District Judge.
The Honorable Henry R. Wilhoit, Jr., United States District Judge for the Eastern District of Kentucky, sitting by designation.
RYAN, Circuit Judge.
This sentence guidelines appeal presents a meritorious assignment of error.
Because we conclude that the sentencing court erred as a matter of law in selecting the numerical value corresponding to the defendant’s “role” in the offense in this case, and as a result necessarily came to a mistaken mathematical conclusion about the appropriate sentence guidelines range, we vacate the sentence and remand the case for resentencing.
I.
Before turning to the four meritless and one meritorious issues in this appeal, we should like to say a word, in dicta to be sure, about the ever increasing volume of sentence guidelines appeals being filed in this circuit, and presumably in others.
This is one in an ever increasing number of such appeals in which the principal thrust of the appeal is to attempt to persuade this court to second guess the sentencing judge’s findings about the nature of the defendant’s role in the offense, or his attitude about his guilt, or his criminal justice history; and sometimes, as in this case, all three.
This appeal is unusual in that it presents a meritorious assignment of error. In most of these appeals the sentenced offender is the appellant and his sole appellate purpose is obvious: to obtain a more lenient sentence than was imposed by the district court. When the government is the appellant, as it is with increasing frequency, its purpose, ordinarily, is to obtain a more severe sentence.
The usual request in these appeals is that we substitute our own findings of fact for those of the sentencing court and then recompute the “correct” sentence guideline range by introducing into the convoluted arithmetical sentencing guidelines formula different numerical values for the defendant’s role in the offense, his attitude, and his criminal history than the sentencing court, and usually the probation department, thought to be appropriate. To characterize this use of the resources of the United States Court of Appeals as imprudent is a very considerable understatement.
As the burgeoning volume of these sentence guidelines appeals begins to bloat the dockets of all the courts of appeals, we are necessarily spending more and more time doing nothing more than responding to appellants’ pleas that we disagree with the factual determinations of sentencing judges and correct their mathematical computations. In the vast majority of these cases, although not this particular one, after careful and exhaustive examination of the sentencing court’s findings of facts and its arithmetical computations, our appellate scrutiny results in a conclusion, even where some minor mathematical mistake is identified, that the correct sentence range is exactly as determined by the sentencing court. Part of the price that is paid for this kind of appellate drill is the unwarranted consumption of considerable time and energy that should be devoted to study, research, decision making, and opinion writing in an accumulating backlog of cases involving hundreds of jurisprudentially significant questions of state, federal, and constitutional law — functions for which the United States court of appeals was created.
It is not too late for Congress to reconsider whether the time and resources the courts of appeals are devoting to reviewing these sentence guideline cases, particularly in view of the essentially clerical nature of the current review function, can be better spent without sacrificing a sentenced defendant’s entitlement to appropriate appellate review of the sentence imposed.
Meanwhile, we shall continue to undertake, as we have in this case, a detailed analysis of the correct application of the guidelines to the facts of individual cases in the hope that doing so will contribute to an early accumulation of a body of appellate precedent on the subject, looking to the day when most district court findings of fact and arithmetical computations in sentence guideline cases can be double checked without the full blown court of appeals briefing, oral argument, and opinion writing that should be reserved for jurisprudentially weightier matters.
II.
Appellant William M. Carroll attempted to escape from a federal correctional institute, pleaded guilty to doing so, was convicted and sentenced, and now appeals the district court’s interpretation of the sentencing guidelines and the measure of proof by which the court required the government to prove the facts relied upon to compute the correct sentencing guidelines range.
Appellant argues that the district court erred in the following matters:
—Not requiring the government to prove by clear and convincing evidence the facts upon which it urged the district court to rely in determining the correct sentencing guidelines’ values.
—Increasing appellant’s base offense level by two levels for being an “organizer or leader.”
—Increasing appellant’s criminal history score by two points for committing an offense while under a criminal justice sentence.
—Increasing appellant’s criminal history by two points for committing an offense within two years after release from custody.
—Denying appellant a two level reduction for acceptance of responsibility.
We agree with appellant that, as a matter of law, his base offense level could not be increased by two points on the theory that he was an organizer or leader under the “role in the offense” guideline. The remaining assignments of error are without merit, but because of the “role in the offense” miscalculation, the sentence is vacated and the matter is remanded to the district court for resentencing.
III.
Carroll was serving a fifteen-year sentence for manufacturing counterfeit currency when, in February 1988, he asked another inmate whether the inmate knew anyone on the outside who could help Carroll escape from the Federal Correctional Institute in Milan, Michigan. The inmate promptly alerted prison authorities who instructed the inmate to put Carroll in touch with an undercover FBI agent outside the prison who would pose as a helicopter pilot for hire.
Carroll telephoned the agent six times. He also wrote several letters in which he detailed his escape plans in “invisible ink” (lemon juice). Carroll planned to pay the agent and his helpers with $1,000,000 in counterfeit currency that he would then launder by purchasing cocaine from “a couple of Venezuelan brothers.” Carroll offered the agent an extra $250,000 if he could recruit one more assistant and indicated a willingness to pay an additional one million counterfeit dollars for the life of the “bastard who got me this 15 years.” In a later letter to the agent, Carroll identified that person, but told the agent to wait about six months so that the two could review details and defuse suspicion.
Carroll admitted that at the time scheduled for the escape, he was waiting for the helicopter in the designated place, was wearing predetermined clothing, and was signaling the pilot where to land.
Carroll was charged in a complaint with attempted escape, 18 U.S.C. § 751, and solicitation to commit murder, 18 U.S.C. § 13, relying, pursuant to the Assimilative Crimes Act, on Mich.Comp.Laws § 750.157b (1989). He pleaded guilty and was scheduled for sentencing on December 14, 1988. As required by local court rule, appellant filed written objections to the calculation of his sentencing guidelines and renewed those objections orally at the time of his sentence. He makes the same arguments on appeal that he made below.
At sentencing, Carroll did not dispute the initial determination that Guideline § 2Pl.l(a) assigns a base level of thirteen to his offense; nor did he seriously dispute the court’s finding that he initiated and planned the escape attempt. Rather, Carroll objected to the government’s argument that he deserved a two point base level increase, pursuant to § 3Bl.l(c), due to his “aggravating role” in the escape attempt. Carroll maintained that because he was the only criminally responsible person alleged to have been involved in the offense, he could not rationally be treated as an “organizer or manager” within the language and intent of the applicable guideline — regardless of whether he planned the escape — because the escape involved no other “participants” as defined in the guidelines. Carroll asserted that in this ease he only organized himself and the guideline does not permit enhancement in such a situation.
Carroll also objected to the government’s request to add two points to his criminal history score for having committed an offense while under a criminal justice sentence, and one point for commission of an offense within two years after release from custody. He argued that because a defendant cannot commit the offense of escape unless he is under a criminal justice sentence, the two point addition to the criminal history score mandated by § 4Al.l(d) is inappropriate in escape cases. Carroll further argued that the commission of his offense prior to his release from custody renders § 4Al.l(e) inapplicable.
Finally, Carroll argued that he was entitled to the two level “acceptance of responsibility” reduction.
The sentencing court accepted the government’s position on every guideline issue. The court began the sentencing computation by applying a base offense level of thirteen. U.S.S.G. § 2P1.1(a)(1). In apparent reliance on the agent’s affidavit that Carroll initiated the attempted escape, the district court increased the base by two levels due to Carroll’s aggravating role in the offense, pursuant to § 3B.l.(c), for a total offense level of fifteen. The court determined Carroll’s criminal history category to be Five, based on twelve criminal history points, and gave Carroll no credit, pursuant to § 3E1.1, for “acceptance of responsibility.” As a result of the various enhancements, the guidelines indicated that Carroll’s sentence should range from thirty-seven to forty-six months. The court imposed a sentence of forty months to run consecutive to Carroll’s previous counterfeiting sentence, followed by three years’ supervised release.
IV.
A.
Appellate review of sentences imposed under the guidelines is set forth at 18 U.S.C. § 3742 (1989), which provides in pertinent part:
(e) Consideration. — Upon review of the record, the court of appeals shall determine whether the sentence—
(1) was imposed in violation of law; (2) was imposed as a result of an incorrect application of the sentencing guidelines;
The court of appeals shall give due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless they are clearly erroneous and shall give due deference to the district court’s application of the guidelines to the facts.
(f) Decision and disposition. — If the court of appeals determines that the sentence—
(1) was imposed in violation of law or imposed as a result of an incorrect application of the sentencing guidelines, the court shall remand the case for further sentencing proceedings with such instructions as the court considers appropriate....
Under the “due deference” standard of 18 U.S.C. § 3742(e), the appellate review standard varies depending on whether an issue is factual, legal, or mixed. United States v. Ortiz, 878 F.2d 125 (3d Cir. 1989).
B.
Carroll first claims that the district court erred in not requiring the government to prove by clear and convincing evidence those facts upon which the court should rely in determining the sentence pursuant to the guidelines. We disagree.
As the Fourth Circuit recently noted in United States v. Urrego-Linares, 879 F.2d 1234 (4th Cir.), cert. denied, - U.S. -, 110 S.Ct. 346, 107 L.Ed.2d 334 (1989), other courts examining the standard of proof required by the guidelines “have generally agreed that a preponderance standard is the proper measure.” See, e.g., United States v. Lovell, 715 F.Supp. 854 (W.D. Tenn.1989); United States v. Dolan, 701 F.Supp. 138, 140 (E.D.Tenn.1988); United States v. Silverman, 692 F.Supp. 788, 791 (S.D.Ohio 1988). Moreover, although McMillan v. Pennsylvania, 477 U.S. 79, 91, 106 S.Ct. 2411, 2418, 91 L.Ed.2d 67 (1986), was a pre-guidelines ease, McMillan’s due process analysis applies with equal force to federal courts. See United States v. Lee, 818 F.2d 1052, 1057 (2d Cir.), cert. denied, 484 U.S. 956, 108 S.Ct. 350, 98 L.Ed.2d 376 (1987); United States v. Fernandez-Vidana, 857 F.2d 673, 675 (9th Cir.1988). In McMillan, the Supreme Court rejected a contention that a sentencing court must apply a clear and convincing standard to factual findings relevant to sentencing determinations. The McMillan Court concluded that Pennsylvania’s statutory requirement of proof by a preponderance satisfied due process, noting that “[sentencing courts have traditionally heard evidence and found facts without any prescribed burden of proof at all.” 477 U.S. at 91, 106 S.Ct. at 2419.
While the precise question whether the Constitution mandates proof of facts by at least a preponderance standard was not before the McMillan Court and is not before us, we certainly think the trial court’s application of that standard here suffices. We discern no reason to accept appellant’s claim that the advent of a new sentencing system requires application of a standard higher than that accepted in McMillan.
C.
We turn next to Carroll’s claim that the trial court erred by adding two points to the base level for his offense pursuant to § 3Bl.l(c). Carroll argues that guideline § 3B1.1 applies to organizers or leaders involved in “organizational crime” and that enhancement was improper in this case because he was the sole defendant alleged to have participated in this offense.
It is necessary for an adequate understanding of Carroll’s argument and a resolution of the issue to burden our opinion by setting forth, in full, the relevant guidelines and related commentary:
PART B — ROLE IN THE OFFENSE
Introductory Commentary
The Part provides adjustments to the offense level based upon the role the defendant played in committing the offense. When an offense is committed by more than one participant, § 3B.1 or 3B.2 (or neither) may apply. Section 3B1.3 may apply to offenses committed by any number of participants.
§ 3B1.1 Aggravating Role
Based on the defendant’s role in the offense, increase the offense level as follows:
(a) If the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, increase by 4 levels.
(b) If the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive, increase by 3 levels.
(c) If the defendant was an organizer, leader, manager, or supervisor in any criminal activity other than described in (a) or (b), increase by 2 levels.
Commentary
Application Notes:
1. A “participant” is a person who is criminally responsible for the commission of the offense, but need not have been convicted.
3. ... This adjustment does not apply to a defendant who merely suggests committing the offense.
§ 3B1.4 In any other case, no adjustment is made for role in the offense.
Commentary
Many offenses are committed by a sin-gie individual or by individuals of roughly equal culpability so that none 0† them will receive an adjustment under this Part.
The introductory commentary to the “Role in the Offense” enhancement provision states that § 3B1.1 may apply “when an offense is committed by more than one participant.” The commentary to the same section defines “participant” as any “person who is criminally responsible for commission of the offense” with which the defendant has been charged. Because Carroll only “organized” law enforcement authorities — persons who could not have been “criminally responsible” — it is undisputed that Carroll’s crime involved only one offender and, therefore, no criminal organization or enterprise.
The government maintains that enhancement was appropriate because the commentary referring to, and apparently requiring, “participants” is merely equivalent to legislative history that should be ignored when the plain language of the guideline is clear. See § IB 1.7, Comment.; McBarron v. S & T Industries, Inc., 771 F.2d 94, 97 (6th Cir. 1985). The government argues that although
the word “participants” is explicitly used in the two previous subsections, ... in the subsection in question, the term “any criminal activity other than described [in the two previous sections]” is substituted. Thus, no magic number of “participants” need be proven, by the plain language of the guideline. The Introductory Commentary does not state that the Aggravating Role adjustments (§ 3B1.1) apply only to offenses committed by more than one participant. It merely provides a general rule — an overview or “Introduction” to the entire chapter; it is not tailored to the specific and peculiar situation presented in this ease where the defendant unwittingly attempts to organize the non-culpable.
In further support of its reading of the guideline, the government asserts the following:
The purposes behind an “organizer or leader” adjustment include punishing more severely those who are more likely to profit and those who, by virtue of their willingness to lead, “present a greater danger to the public and/or are more likely to recidivate.” § 3B1.1, Commentary (Background). These purposes are just as applicable when the defendant unwittingly tries to organize and lead non-criminals. In short, this defendant should be subject to the same sentencing range as a defendant who, by luck, picks a fellow inmate who is willing to break the law and who hires a real pilot on the outside who will jump at the chance to make two million dollars in counterfeit currency that can be laundered through drug deals.
Our review of this guidelines construction issue is plenary. United States v. Ofchinick, 877 F.2d 251, 256 (3d Cir. 1989); 18 U.S.C. § 3742(f)(1).
We disagree with both the government’s reading of the guideline and its characterization of Carroll as a leader. With respect to the government’s argument that the “participants” requirement should be treated as superfluous legislative history creating an ambiguity in an otherwise clear statute, we note that, unlike traditional legislative history which is often written by legislative staff and not subject to congressional vote, the commentary here accompanies and is printed between the various guideline provisions in the Guidelines Manual, an official publication of the United States Sentencing Commission. Furthermore, the government’s authority for treating commentary as legislative history is actually found in the commentary to another guideline whose language indicates that the commentary has greater significance than the government recognizes. That introductory guideline and its commentary states:
§ 1B1.7 Significance of Commentary
The Commentary that accompanies the guideline sections may serve a number of purposes. First, it may interpret the guideline or explain how it is to be applied. Failure to follow such commentary could constitute an incorrect application of the guidelines, subjecting the sentence to possible reversal on appeal. See 18 U.S.C. § 3742.
Commentary
Portions of this document not labeled as guidelines or commentary also express the policy of the Commission or provide guidance as to the interpretation and application of the guidelines. These are to be construed as commentary and thus have the force of policy statements.
In stating that failure to follow certain commentary “could constitute an incorrect application of the guidelines, ” the Commission simply means that in seeking to understand the meaning of the guidelines courts likely will look to the commentary for guidance as an indication of the intent of those who wrote them. In such instances, the courts will treat the commentary much like legislative history or other legal material that helps determine the intent of the drafter.
It is disingenuous for the government to cite the commentary as support for its argument that we should ignore the commentary.
While we recognize and accept the government’s argument that one of the purposes of this enhancement section is to punish more severely those who, like Carroll, are “willing to lead,” the background to § 3B1.1, from which the government also selectively quotes, indicates that leadership of culpable individuals is necessary. The background explains that “[tjhis section provides a range of adjustments to increase the offense level based upon the size of a criminal organization (i.e., the number of participants in the offense) and the degree to which the defendant was responsible for committing the offense.” U.S.S.G. § 3B1.1, Comment, (backg’d.) (emphasis added). The government ignores the underscored conjunction and, therefore, the first half of the sentence. The government also fails to address those portions of the commentary to § 3B1.1 indicating the following:
This adjustment does not apply to a defendant who merely suggests committing the offense.
In relatively small'criminal enterprises that are not otherwise to be considered as extensive in scope or in planning or preparation, the distinction between organization and leadership, and that of management or supervision, is of less significance than in larger enterprises that tend to have clearly delineated divisions of responsibility. This is reflected in the inclusiveness of § SBl.l(c).
While Carroll may have suggested a prison escape, the government, unbeknownst to Carroll, had actually taken over and was actually organizing the operation. Just as the government cannot claim that a defendant conspired with a government agent because “proof of an agreement between a defendant and a government agent or informer will not support a conspiracy,” United States v. Pennell, 737 F.2d 521, 536 (6th Cir.1984), cert. denied, 469 U.S. 1158, 105 S.Ct. 906, 83 L.Ed.2d 921 (1985), the government cannot claim that Carroll was leading or organizing government agents. When read in context, the language of the guideline indicates that its drafters did not seek to provide “supervisory” enhancement in a case such as this. Rather, like conspiracy, this guideline requires that a defendant engage in criminal activity with at least one other criminally culpable person. To accept the government’s argument that § 3Bl.l(c) should be read exclusive of the commentary would permit enhancement where a single offender engaged in what could be considered an “otherwise extensive” criminal activity by the mere fact that the activity, involved use of the services of several innocent people. We hold that enhancement pursuant to § 3B1.1 requires the participation of at least two culpable individuals so that leadership of some criminal enterprise or organization, however minimal, can be claimed.
D.
Appellant next challenges the increase of his criminal history score by two points for the “commission of the instant offense while under any criminal justice sentence,” § 4Al.l(d), and by one point for the “commission of the instant offense less than two years after the release from imprisonment,” § 4Al.l.(e). Those sections provide in pertinent part:
CHAPTER FOUR — CRIMINAL HISTORY AND CRIMINAL LIVELIHOOD PART A — CRIMINAL HISTORY
§ 4A1.1 Criminal History Category
The total points from items (a) through (e) determine the criminal history category in the Sentencing Table in Chapter Five, Part A.
(a) Add 3 points for each prior sentence of imprisonment exceeding one year and one month:
(b) Add 2 points for each prior sentence of imprisonment of at least sixty days not counted in (a).
(c) Add 1 point for each prior sentence not included in (a) or (b), up to a total of 4 points for this item.
(d) Add 2 points if the defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status.
(e) Add 2 points if the defendant committed the instant offense less than two years after release from imprisonment on a sentence counted under (a) or (b). If 2 points are added for item (d), add only 1 point- for this item.
Carroll maintains that because he was charged with escape, the base offense level implicitly included punishment for an offense committed while under sentence since, by definition, one cannot escape unless one is under a criminal justice sentence. Carroll argues that the additional two point increase is a double punishment.
In calculating Carroll’s criminal history points, the probation department report relied on the language of the enhancing guideline and on the answer to Question 22 of the Sentencing Commission’s “Questions Most Frequently Asked About The Sentencing Guidelines,” issued on May 5, 1988. In that publication, the Commission stated that in drafting the guidelines the Commission intended that courts would impose two criminal history points for § 4Al.l(d) and one point for § 4Al.l(e) when sentencing escape offenders. The trial court adopted the probation department’s calculation of the criminal history score, noting reliance on the Sentencing Commission’s commentary.
In agreement with the Third and Tenth Circuits, we note that the language of Guideline § 4A1.1 does not support a different result. See United States v. Ofchinick, 877 F.2d 251 (3d Cir.1989) (defendant convicted of escape from custody may receive criminal history enhancement under Guideline §§ 4Al.l(d) and (e) for escaping while under a sentence of imprisonment and while still in confinement, even though being in custody is an element of the offense); United States v. Goldbaum, 879 F.2d 811 (10th Cir.1989) (affirming use of Guideline § 4Al.l(d) to add two points to criminal history score of defendant convicted of escape). But see United States v. Clark, 711 F.Supp. 736 (S.D.N.Y.1989) (such use constitutes double counting); United States v. Bell, 716 F.Supp. 1207 (Minn.1989) (same holding).
The language of § 4Al.l(d) indicates that that provision applies to all offenses committed while imprisoned. The commentary to the guidelines often cautions against double counting in particular areas, but fails to indicate that adding three points here would violate that principle. Because the language of the guidelines fails to support his argument, Carroll claims that it was never the Commission’s intent to enhance the base offense level for escape. But as the sentencing court recognized, the Sentencing Commission’s answer to this specific question disproves Carroll’s argument that the Commission intended, through the assignment of a base level of thirteen, to account for the fact that the offense was committed while under a sentence. Moreover, “[t]he structure of the Sentencing Guidelines suggests that the criminal history category is to be determined without regard to the nature of the crime for which the defendant is currently being sentenced.” Goldbaum, 879 F.2d at 813, citing United States v. Reyes-Ruiz, 868 F.2d 698, 700 (5th Cir.1989).
The better inference is that the Commission chose not to propose an even higher base level for escape offenses because it anticipated that a separate upward adjustment in the criminal history category would produce a similar result. The Goldbaum court stated:
[I]n the absence of any contrary intent we must apply the clear language of the guideline and presume that in formulating the base level specified for the crime of escape in Guideline § 2P1.1, the Sentencing Commission had in mind that under Guidelines §§ 4Al.l(d) and (e), points would be added to the particular defendant’s criminal history category thereby enhancing the sentence.
Carroll also maintains that the court made an interpretation error by adding one point under guideline § 4Al.l(e), which provides that one or two points shall be added to the criminal history category “if the defendant committed the instant offense less than two years after release from imprisonment.” Carroll argues that this guideline is inapplicable to his situation because he was obviously not released before he committed the offense.
This claim was recently rejected by the Fourth and Tenth Circuits. See United States v. Ofchinick, 877 F.2d 251, 256-57 (3d Cir.1989); United States v. Goldbaum, 879 F.2d 811 (10th Cir.1989). The Ofchin-ick court indicated:
Unquestionably the language of the guideline supports [appellant’s] interpretation. However, application note 5 to guideline § 4A1.1 indicates that guideline § 4Al.l.(e) “applies if the defendant committed the instant offense while still in confinement on such a sentence.” Guideline § 1B1.7 provides that the commentary, which includes the application notes, may be used to “interpret the guideline or explain how it is to be applied.” Thus, there is no question but that the computation of [appellant's criminal history category was consistent with the intent of the Sentencing Commission.
Thus, while we recognize the inconsistency between the guideline and the note, we do not see how we cannot follow the note, as the Sentencing Commission issued both the guidelines and the commentary in its official Guidelines Manual. This is not the usual case in which we are asked to accept legislative history such as committee reports, or even testimony of a witness before a committee, to determine the intent of Congress as a whole.
(Footnote omitted.)
Like the Fourth Circuit, we recognize that the commentary accompanying the Sentencing Guidelines Manual is unusually probative of the Commission’s intent on this issue. We also recognize that a recent amendment to this section, which took effect on November 1, 1989, supports our interpretation by adding “or while in imprisonment or escape status on such a sentence” to the end of the first sentence of the guideline. “Inasmuch as the amendment to the guideline is intended to clarify the existing guideline, we may give it substantial weight in determining the meaning of the existing guideline.” Ofchinick, 877 F.2d at 257 n. 9. We affirm the sentencing court’s application of the guidelines to determine Carroll’s criminal history category.
E.
Finally, Carroll contests the district court’s refusal to grant him a two level offense reduction for his “acceptance of responsibility” as permitted by § 3E1.1 of the guidelines. Carroll maintains that he should have received the two level reduction because he waived indictment and pleaded guilty within two weeks of his initial appearance on the complaint. The district court disagreed, concluding that Carroll had not “expressed any remorse” and was only “trying to be [as] persuasive as possible ... to pay the minimum to what he did to himself.”
This circuit recently discussed the standard for reviewing a district court’s “acceptance of responsibility” determination in United States v. Wilson, 878 F.2d 921 (6th Cir.1989). Quoting United States v. Thomas, 870 F.2d 174, 176 (5th Cir.1989), we explained:
Whether or not a defendant has accepted responsibility for his crime is a factual question. The district court’s determination of that question, like its findings with respect to manager status, and minimal participant status, enjoys the protection of the “clearly erroneous” standard. Because the trial court’s assessment of a defendant’s contrition will depend heavily on credibility assessments, the “clearly erroneous” standard will nearly always sustain the judgment of the district court in this area. Indeed, the guidelines specifically state that “[t]he sentencing judge is in a unique position to evaluate the defendant’s acceptance of responsibility. For this reason, the determination of the sentencing judge is entitled to great deference on review and should not be disturbed unless it is without foundation.”
(Citations omitted.)
A guilty plea does not automatically entitle a defendant to the acceptance of responsibility reduction. See § 3El.l.(c). Although a guilty plea may provide some evidence of a defendant’s acceptance of responsibility, that acceptance remains questionable where, as here, the plea may have been induced by factors of overwhelming evidence of guilt and desire to avoid the risk of conviction on other charges, such as solicitation to murder. Carroll’s continued insistence that the inmate-informant had initially approached him further supports the court’s conclusion that Carroll had not accepted full responsibility for the offense.
Finally, the factors that § 3El.l’s commentary lists as appropriate to consider in deciding whether to apply the “acceptance of responsibility” reduction hardly apply to Carroll. Carroll did not voluntarily withdraw from or terminate his criminal conduct prior to his apprehension or in some other way timely manifest through his conduct an acceptance of responsibility. Carroll merely entered a guilty plea in the face of almost certain conviction. The district court was in a much better position to observe Carroll’s demeanor, and whether we agree with its ruling is not the issue. The real question is whether the district court’s finding of fact in the matter is clearly erroneous. Plainly, it is not.
V.
For the reasons given, appellant’s sentence is VACATED and the matter is REMANDED for resentencing.
. Both parties agree that the burden of persuading the court that an aggravating factor applies remains with the government. The parties do not address, so neither do we, whether the government should also be required to disprove application of mitigating factors or whether the burden of persuading the court that a point reduction applies should shift to the defendant seeking the reduction. See United States v. Lovell, 715 F.Supp. 854 (W.D.Tenn.1989) (shifting burden of persuasion); United States v. Dolan, 701 F.Supp. 138, 140 (E.D.Tenn.1988) (burden remains on government at all times).
. The government might have arrested Carroll after he had spoken only to the informant. Obviously the government’s evidence would not have been nearly as compelling, but the crime would have been the same. Instead, the government organized and orchestrated its own scheme, introducing Carroll to an agent who was able to obtain the incriminating evidence that led to Carroll’s guilty plea by appearing to participate in the planned escape.
. Question 22 provides in pertinent part:
22. In a case involving escape from prison (or work release) as the instant offense, does the defendant receive two criminal history points for § 4Al.l(d) and one more for § 4Al.l(e>?
Yes, providing the prior sentence of imprisonment (or work release from confinement) is at least 60 days. The defendant receives two points pursuant to § 4Al.l(d) for committing the instant offense while under any criminal justice sentence. Another point is received for committing the offense less than two years after release from imprisonment on a sentence of at least 60 days (§ 4A 1.1(e)). As stated in Application Note #5, § 4Al.l(e) "also applies if the defendant committed the instant offense while still in confinement on such a sentence.”
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant?
A. cabinet level department
B. courts or legislative
C. agency whose first word is "federal"
D. other agency, beginning with "A" thru "E"
E. other agency, beginning with "F" thru "N"
F. other agency, beginning with "O" thru "R"
G. other agency, beginning with "S" thru "Z"
H. Distric of Columbia
I. other, not listed, not able to classify
Answer:
|
songer_appbus
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
MARCHANT v. MEAD-MORRISON MFG. CO.
(Circuit Court of Appeals, Second Circuit.
March 19, 1926.)
No. 266.
Removal of causes <&=»IG7(8) — Where motion to remand to state court Is granted, denial of motion for appointment of arbitrator is merely denial for lack of jurisdiction, and left merits of motion for state court.
Granting motion to remand proceeding to state court, being a decision against federal court’s jurisdiction, proper procedure was to send matter back to state court at once, and court’s denial of motion to dismiss petition for appointment of arbitrator could mean .no more than denial because of lack of jurisdiction, leaving motion for decision by state court on its merits.
Appeal from the District Court of the United States for the Southern District of New York.
In the matter of the application of Russell B. Marchant, as trustee in bankruptcy, for an order appointing an arbitrator, opposed by the Mead-Morrison Manufacturing Company. From so much of an order remanding proceeding to the Supreme Court of New York as denied its motion for an order dismissing bankruptcy trustee’s motion for an arbitrator and directing that arbitration proceed (7 F.[2d] 511)’, said Mead-Morrison Manufacturing Company appeals.
Affirmed.
Marchant, as trustee in bankruptcy, deemed himself successor to the rights of the corporation of which he is trustee, which corporation had a written contract with the Mead Company. This contract contained a clause providing, in the event of disputes, for the appointment of an arbitrator by each contracting party, and of a third arbitrator by the other two.
Marchant declared to Mead Company that a dispute existed, and named an arbitrator; Mead Company protested that no arbitrable dispute did exist, hut "also named an arbitrator. The persons named could not or did not agree on the third, whereupon Mar-chant by petition applied to the Supreme Court of New York for an order naming the third arbitrator; this in accordance with the Arbitration Law of New York. Laws 1920, e. 275 (Consol. Laws, e. 72).
Marchant and the corporation for which he is trustee are of New York; Mead Company is a corporation of Massachusetts; therefore Mead Company removed to the court below the said application for arbitrator, on the ground of diversity of citizenship. Removal being complete, Marchant moved to remand, and Mead Company moved “for an order dismissing the application of Marchant for an order appointing an arbitrator,” etc.
The motions were heard together, and resulted in an order consisting of several “ordering parts,” of which two appear in the following sequence:' (1) The proceeding “is remanded to the Supreme Court of New York”; and (2) the motion of Mead Company “for an order dismissing the application (of Marchant) for an arbitrator and directing that arbitration • proceed herein be and the same is denied.”
Thereupon Mead Company appealed to this court “from each and every part of said order of denial.”
Edward F. MeClennen and Arthur P. French, both of Boston, Mass., and Charles E. McMahon, of New York City, for appellant.
Charles M. Travis, of New York City (Leland B. Garretson, of New York City, of counsel), for appellee.
Before ROGERS, HOUGH, and MANTON, Circuit Judges.
HOUGH, Circuit Judge
(after stating the facts as above). The remanding order is admittedly not subject to review in this court. Judicial Code, § 28 (Comp. St. § 1010). It must follow that the case has gone back to the state court, and how it or any part of it can also be or remain in the courts of the United States is, to say the least, difficult to understand.
Argument is that, while the ease was in the court below, that court'improved the opportunity to deny Mead Company’s application to dismiss Maxchant’s petition; so that the cause went back to the state court with a motion denied, which Mead Company regards as vital to its interests. Wherefore this appeal is said to bring up only the propriety of that denial.
The procedural impossibilities resulting from the action of the court below, as construed by appellant, are too obvious to need explanation. The result is that a court which held itself to be without power — i. e., jurisdiction to entertain the cause at all — is said to have cotemporaneously decided a leading, if not controlling, element of the cause.
The matter is extremely technical, yet a technicality can resolve it. The motion to remand raised a question of jurisdiction; decision was against jurisdiction; therefore proper practice was to send the matter at once, and as it was, to the place where jurisdiction existed. The second, part of the order under review was improper, if understood as appellant wants it understood.
But it can be taken, and we understand it, to mean no more than that Mead Company’s motion was necessarily denied for the same reason that the cause was remanded, viz. lack of jurisdiction. So understood the order complained of is no more than one declining any jurisdiction in the premises. It is not well drawn, but is not open to the impossibilist construction necessarily assumed by appellant. Mead Company’s motion stands for decision in the state court on its merits.
In writing the foregoing we have assumed that the order in question is final, in respect of the second part thereof. That assumption is made for argument’s sake; it is not a finding.
Order affirmed; no costs.
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_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
FIRST NATIONAL BANK AND TRUST COMPANY OF VINITA, OKLAHOMA, a corporation, Additional Defendant on Cross-Complaint-Appellant, v. ATLAS CREDIT CORPORATION, a corporation, Defendant and Cross-Petitioner-Appellee. James B. WEEDIN and Meredith M. Weedin, Defendants-Appellants, v. ATLAS CREDIT CORPORATION, a corporation, Defendant and Cross-Petitioner-Appellee.
Nos. 47-68, 48-68.
United States Court of Appeals Tenth Circuit.
Nov. 18, 1969.
Rehearing Denied in No. 48-68 Dec. 30, 1969.
James R. Ryan, Tulsa, Okl. (George P. Pitcher, Vinita, Okl., with him on the brief) for appellant First National Bank & Trust Co. of Vinita, Okl.
Fred H. Miller, Norman, Okl., for ap-pellee Atlas Credit Corp.
Alvin L. Floyd, Tulsa, Okl., for appellant James B. Weedin.
Hicks Epton, Wewoka, Okl., for ap-pellee Atlas Credit Corp.
Before PHILLIPS, LEWIS and HICKEY, Circuit Judges.
HICKEY, Circuit Judge.
This appeal arose out of an action to foreclose a real estate mortgage upon ranch property in Craig County, Oklahoma. The mortgage was successfully foreclosed and the real estate mortgagee is no longer interested in the case.
Atlas Credit Corporation and its subsidiary, Atlas Subsidiaries of Missouri, Inc., were originally joined as defendants in the mortgage foreclosure action because they held junior liens on the real estate involved and claimed a security interest in the livestock grazed upon the real property in question. Atlas Credit Corporation has been assigned the interest of its subsidiary and will be referred xo as Atlas.
Atlas filed an answer counterclaiming foreclosure of its junior lien on the real estate and seeking recovery of the livestock given as additional security for money loaned by them to defendant debtors. Atlas joined the First National Bank and Trust Company of Vinita, Oklahoma (Bank) as an additional defendant who claimed a prior security interest in the livestock pledged to them. The Bank is the other party involved in the main issue of this appeal.
The issue between Atlas and the Bank relates to the priority of security interests which cover the same livestock and equipment.
Defendants Weedin, a dentist and his wife, officers and principal stockholders of the W. E. Ranch, Inc., who negotiated the loans here in question, appeal the denial of their discharge in bankruptcy. This issue relates to the trial court’s finding that certain representations to Atlas’ assignor were fraudulent and therefore the debt to Atlas was non-dis-chargeable in bankruptcy.
The court found in favor of Atlas on the priority question, and it is agreed that this question is based primarily on the interpretation of Title 12A, § 9-312 (5) Okl.Stat.Ann. (1961) (Uniform Commercial Code, § 9-312(5)).
The law of the state where the collateral is located at the time of the transaction is the governing law without regard to possible contacts in other jurisdictions. Uniform Commercial Code, § 9-102, Comment 3, (12A Okl.Stat.Ann. § 9-102).
The record discloses that the Bank loaned $38,422.34 to the debtors on October 22, 1963, and properly filed a financing statement covering specifically described livestock and “all other cattle now owned or later acquired.” Although there was evidence indicating otherwise, the trial court found and for the purpose of this appeal the parties agree that a security agreement was not executed nor received by the Bank at this time, but, on April 30, 1965, a security agreement was made and executed by the debtors. It is a note given by the debtors at this time upon which the Bank’s judgment is based.
On February 4, 1964, Atlas loaned the debtors $34,000.00 for which debtors executed a financing statement and a security agreement covering the debtor’s livestock and equipment then owned or thereafter acquired. The financing statement was filed February 11, 1964. The Bank had notice of this filing within a week thereafter.
The Bank records disclose a course of business transactions between the debtors and the Bank after October 22, 1963, wherein money in excess of the original $38,422.34 loaned was advanced and repaid until the total was calculated on April 30, 1965, and set forth in the security agreement then executed in the amount of $27,301.00.
The appellate courts of Oklahoma have not considered the issue here presented under the code so far as we can ascertain.
Because the Uniform Commercial Code is here involved and believing it is a step in the right direction away from the confused and archaic past of the law of commerce, we seek a uniform literal construction of the act.
We approach the issue pursuant to the reasoning of such cases as Shircliff v. Elliott, 384 F.2d 947 (6th Cir. 1967): “In reaching a result, this Court must apply the statute in a manner consonant with the literal meaning of its terms and in a manner to best effectuate its overriding purpose.” swpra at 950.
The trial court in the case at bar refused to accept the language of the code which directs that priorities between conflicting security interests in the same collateral shall be determined in the order of filing a financing statement if both are perfected by filing. Uniform Commercial Code, § 9-312(5). Perfection occurs when the security interest later attaches at the time the transaction takes place and the security agreement is executed. Thus the filing date, which determines priority, may precede the perfection date. See 2 Gilmore, Security Interests in Personal Property, § 34.4 at 909.
12A Okl.Stat.Ann. § 9-312(5) (Uniform Commercial Code § 9-312(5)) reads as follows:
“(5) In all cases not governed by other rules stated in this section (including cases of purchase money security interests which do not qualify for the special priorities set forth in subsections (3) and (4) of this section), priority between conflicting security interests in the same collateral shall be determined as follows:
“(a) in the order of filing if both are perfected by filing, regardless of which security interest attached first under Section 9-201(1) and whether it attached before or after filing;
“(b) in the order of perfection unless both are perfected by filing, regardless of which security interest attached first under Section 9-204(1) and, in the case of a filed security interest, whether it attached before or after filing; * * (Emphasis added).
The Oklahoma Code Comment following this section reads as follows:
“(5) This is a change of Oklahoma law. It creates a ‘Race of Diligence’.
Priority between conflicting security interests are:
“(a) In the order of filing if both are perfected by filing.
“(b) In the order of perfection unless both are perfected by filing. Example 2 in the Uniform Commercial Code Comment covers this situation. If one is perfected by taking possession the time of taking possession is the time used as to that one in determining which has priority.”
The Bank argues that the clear mandate of section 9-312(5) of the U.C.C., as explained in Example 1 in Comment 4 of the official comments, operates to give priority to the Bank. Example 1 reads as follows:
“Example 1. A files against X (debt- or) on February 1. B files against X on March 1. B makes a non-purchase money advance against certain collateral on April 1. A makes an advance against the same collateral on May 1. A has priority even though B’s advance was made earlier and was perfected when made. It makes no difference whether or not A knew of B’s interest when he made his advance.
“The problem stated in the example is peculiar to a notice filing system under which filing may be made before the security interest attaches (See Section 9-402). The Uniform Trust Receipts Act, which first introduced such a filing system, contained no hint of a solution and case law under it has been unpredictable. This Article follows several of the accounts receivable statutes in determining priority by order of filing. The justification for the rule lies in the necessity of protecting the filing system — that is, of allowing the secured party who has first filed to make subsequent advances without each time having, as a condition of protection, to check for filings later than his. * * * ”
Before going further into an analysis of the effect of the first-to-file priority rule of U.C.C. § 9-312(5) (a) on this case, we consider whether the facts allow analyzing it pursuant to the teaching of Example 1 to Comment 4 of the official comments to the U.C.C., supra (adopted in Oklahoma).
Atlas argues that this case does not fit within the single advance situation illustrated by Example 1 to Comment 4 because more than one loan was in fact made by the Bank.
Further, they argue that this was not a situation where future advances were contemplated in the initial security agreement as illustrated by Examples 4 and 5 to Comment 4 because the trial court found there was no security agreement executed at that time. Atlas urges upon this court that the situation presented is nothing more than a series of separate secured loans with no future advance clause providing that future advances of the Bank were to be secured by the collateral filed against on October 22, 1963.
Atlas then argues that, in accordance with this reasoning, it. is entitled to priority in line with the decision in Coin-O-Matic Service Co. v. Rhode Island Hospital Trust Co., 3 U.C.C.Rep. 1112 (R.I. Super.Ct.1966). In this case one Doroff purchased a car on credit and gave a security interest in it which was perfected by filing. The chattel paper on this transaction was assigned to the defendant. The security agreement contained no provision for future advances. A year later, Doroff became indebted to the plaintiff and gave it a security interest in the car which was also perfected by filing. Shortly thereafter, the defendant loaned Doroff $1,000 part of which was used to pay off the old debt and that security interest was cancelled.
The question, when Doroff went bankrupt, was whether defendant had a prior claim on the car because he had filed first even though the first security agreement had been cancelled. The court held that he did not because a new security interest is a separate transaction and requires a separate filing for perfection, unless the initial security interest has a clause securing future advances.
“That is to say, a single financing statement in connection with a security agreement when no provision is made for future advances is not an umbrella for future advances based upon new security agreements, notwithstanding the fact that involved is the same collateral.” 3 U.C.C.Rep. 1112 at 1120.
It seems clear that if, as the record shows the Bank intended, a security agreement had been executed at the time the 1963 financing statement was filed, we could not reverse the trial court without meeting the Coin-O-Matic case head on. What differentiates this case is the trial court’s finding that there was no security agreement executed in 1963. By accepting the trial court’s holding that no security interest attached until April 30,1965, we would conclude that only one transaction is involved. On the other hand, if we were to acknowledge normal business realities and accept Atlas’ theory that there must have been a series of separate secured loans by the Bank, then the record discloses that the security interests provided that they covered future advances by the Bank. The claimed security interest of October 22, 1963, is, of course, not in the record. The trial judge admitted into the record a copy of the form being used by the Bank at that time and it, as well as the April 30, 1965 agreement, clearly provides that future advances are to be covered thereby. Because of the disposition we make, we need only note in passing that under either of these possibilities, Coin-O-Matic is distinguishable.
In Coin-O-Matic, the intervening secured creditor obtained priority when the initial financing statement and security agreement were liquidated because the court held that the code contemplates that the security interest relates back to an unliquidated prior financing statement. This is the literal interpretation of § 9-312(5) (a).
However, it seems equally clear that the Bank, intending but somehow failing to get a security agreement when the October, 1963, loan was made, would fall heir to a windfall were we to hold that this case is controlled by Example 1 to Comment 4 under U.C.C. § 9-312(5). Under the trial court’s findings, the loan of $38,422.34 was unsecured and if these insolvency proceedings had come before the security agreement of April, 1965, was entered into, the Bank would have been an unsecured creditor. The facts of the case before us do not fit squarely under Example 1 in the Comment because that example discusses application of U.C.C. § 9-312(5) to a single advance by the secured party to the debtor after filing of a financing statement and subsequent to perfection of a second security interest. The record indicates that there were several advances and payments between the Bank and the debtors between October 22, 1963 and April 30, 1965. It is therefore clear that there was not simply a single advance as is contemplated in Example 1. Likewise, although the Bank perhaps intended to enter into a series of secured transactions protected by the October 22, 1963 filing (which would have then brought the case under Coin-O-Matic), the lower court’s finding precludes basing an affirmance solely upon that case.
We therefore conclude that we cannot base our conclusion upon either the application of the Example or the Coin-O-Matic case. This analysis, however, is not determinative of our ease.
Undoubtedly the trial court was chagrined by the fast and loose dealings between the debtors and the Bank and the duplicate dealings with Atlas and therefore felt the equities weighed in favor of Atlas.
The simple answer to this approach is that Atlas had an opportunity to protect itself by checking the files for financing statements and if it had, it would have learned the Bank had a potential interest in the cattle and their increase.
“Banks have traditionally loaned money to ranchers in return for a promissory note and a consensual lien in livestock held by the rancher. The problems involved in using livestock as collateral are numerous, but central among them is the problem of keeping account of the animals * * * Since the collateral cannot be held by the lender, the security agreement typically includes a promise by the borrower assuring that the livestock will not be sold or transferred without the written consent of the secured party. The security interest in the collateral is perfected by filing with the county clerk in the county of the debtor’s residence. In this manner, constructive notice that the livestock is subject to a mortgage is given within the county.” Comment, Commercial Law — Uniform Commercial Code — Security Interests in Livestock, 8 Natural Resources Journal 183.
12A Okl.Stat.Ann. § 9-208 (Uniform Commercial Code § 9-208) provides that a debtor may request information from the lender as to the amount due on the obligation and the collateral covered by the security agreement. If the secured party, without reasonable excuse, fails to comply with the request, he is liable for any loss caused to the debtor thereby and if the debtor has properly included in his request a good faith statement of the obligation or a list of the collateral or both, the secured party may claim a security interest only as shown in the statement against persons misled by his failure to comply. Thus, by its inadvertence Atlas permitted itself to be defrauded.
If notice filing under the code has any efficacy or future value in the commercial world, it must be honored in this case, giving priority to the Bank. The “first-to-file” rule of U.C.C. § 9-312(5) (a) must be recognized.
An analysis used by the court in Coin-O-Matic is appropriate for this case:
“It would seem to this court that without a consideration of the meaning of § 9-312(5) this case might properly be decided on what the parties themselves did , and what the parties themselves intended.” 3 U.C.C.Rep. at 1120.
Thus it is apparent to us that the conduct of the Bank and Atlas’ assignor brings this case within the first-to-file priority rule of that section and necessitates reversal of the trial court’s determination of priority.
We further hold that the record clearly demonstrates and the court properly found fraud on the part of Weedins. The trial court therefore was correct in its determination that the debt to Atlas was non-dischargeable in bankruptcy.
We therefore reverse the Atlas judgment on the issue of priority over the Bank and affirm the judgment in favor of Atlas as it relates to debtors Weedin.
Reversed in part; affirmed in part.
. At the outset we should note that the omission of a reference to “knowledge” in § 9-312 indicates to us that the presence or absence of knowledge of the Atlas Security Agreement is irrelevant. This view, not clarified in tbe official Uniform Commercial Code Comment, is made explicit by the Oklahoma Code Comment following the section.
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_casetyp1_1-3-1
|
L
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "criminal - federal offense".
UNITED STATES v. HERSKOVITZ et al.
No. 121, Docket 22880.
United States Court of Appeals, Second Circuit.
Argued Nov. 14, 1953.
Decided Jan. 25, 1954.
Curran, Mahoney, Cohn & Stim, New York City, Menahem Stim and Albert A. Blinder, New York City, of counsel, for appellants.
J. Edward Lumbard, U. S. Atty., New York City, Leonard Maran and James B. Kilsheimer, III, Asst. U. S. Attys., New York City, of counsel, for appellee.
Before SWAN, FRANK and MEDINA, Circuit Judges.
MEDINA, Circuit Judge.
Appellants Fred Herskovitz and Elias Berger, together with co-defendant Doris Sobel, were indicted in 10 counts for wil-fully aiding, assisting in and counseling, procuring and advising the preparation of false and fraudulent income tax returns, on or about the 15th day of March, 1950, in violation of Title 26, United States Code, § 3793(b). Each of the three defendants was named in three substantive counts, and the 10th count of the indictment charged the same defendants with conspiracy.
On June 18, 1953, after trial in the United States District Court for the Southern District of New York, defendant Herskovitz was convicted on three counts, defendant Berger on two counts, and defendant Sobel acquitted on all counts in which she was named, the conspiracy count as to all the defendants having been dismissed by the trial court at the conclusion of the government’s case. The Court sentenced Herskovitz to concurrent terms of 3 years on each of the 3 counts, and imposed a committed fine of $5,000 on each count; Berger was sentenced to concurrent terms of 1 year and 1 day on the 2 counts. From these judgments of conviction Herskovitz and Berger appeal.
The facts in the case are substantially these. From 1948 to 1950, appellant Herskovitz was a certified public accountant and appellant Berger was a public accountant. They had adjoining offices in suite 903 at 1457 Broadway, New York City. Herskovitz was Berger’s father-in-law and while each apparently had his own “regular clients,” the two were partners in the “business of making income tax returns” for “transient” taxpayers. During the “tax season” between the months of January and April, “transient” taxpayers would request assistance in the preparation of Federal and State income tax returns at the suite of offices just described. The scheme practiced by appellants to defraud the United States consisted of padding deductions on these returns so that every return, when filed, requested a refund from the government.
To carry out this scheme, appellants conducted what can best be described as a “refund factory.” The modus operandi was this: Upon the arrival of a taxpayer, the receptionist would request the individual’s statement of moneys withheld (W-2 Form) and would then inquire whether during the prior years, returns were filled out at the same office. If such was the case, the prior year’s file was obtained, and the taxpayer instructed to wait until an office was available for an interview. Ten taxpayers and one government agent testified about their interviews in appellants’ offices. Although Herskovitz would not admit how many taxpayers he interviewed, other than that it was less than 5,000 in 1950, taxpayers called as witnesses by the government testified that they endured long waiting periods before being interviewed, and that, when occasion demanded, they were given numbers to determine their turn. The evidence indicates that the “factory” did a thriving business.
When his turn was reached, the taxpayer was ushered into the inner offices for the interview. These interviews-were conducted in the main by the appellants, the defendant Doris Sobel, Herskovitz’s daughter, one Silverman, another of Herskovitz’s sons-in-law, and Allan Shoopak, an employee. When business improved, a basement office was also rented to interview taxpayers, and, to further accommodate these “transients,” the appellant Herskovitz during the tax season of 1950 had temporary offices at the Hotel Dixie and in Yonkers. These offices were staffed by the same personnel, augmented by temporary employees.
A mimeographed worksheet, listing every possible deduction that could be taken for a taxpayer, was used by the interviewer. The interview lasted no more than 10 or 15 minutes, and at its conclusion the tax was computed on the worksheet and the taxpayer advised of the amount of refund that he would receive. The taxpayers testified that the names of organizations listed under contributions, the deductions taken for charitable contributions, and the deductions taken for New York City Sales Tax, Miscellaneous Tax, doctors and dentists, medications, work-clothes, worktools, depreciation on car, repairs on car and trav-elling expenses were not given by them to the appellants, although this information appears on the worksheets. The taxpayers signed the worksheets, but did not. go over the figures which were written there by the appellants.
The taxpayer was also requested to sign a blank Federal Income Tax form (Form 1040) at the conclusion of the interview, and was charged a fee of $10. The worksheet was attached to the taxpayer’s file, together with the blank but signed Form 1040, and the prior year’s-return. It is significant that Form 1040’s (the “long forms”) were used so that deductions could be itemized even though the majority of these “transient” taxpayers earned less than $5,000 a year.
After the interview had been concluded, the information which appeared on the worksheets was copied in pencil on a Form 1040, and the pencilled figures, were then copied in ink on the Form 1040> which had been previously signed by the taxpayer. Shoopak, Davis, Reid and Greenberg, all employees of the appellants, testifying as government witnesses, stated that despite the requirement on the returns that the accountant’s name be affixed thereto, they were given no instructions to put their names or appellants’ names on the face of the return as the accountant who prepared it nor did such names appear on any of the returns.
The returns were then mailed, or delivered in person, according to Hersko-vitz’s instructions, to the mail room of the Bureau of Internal Revenue. All the returns filled out in appellants’ offices were filed with the Collector of Internal Revenue at 110 East 45th Street, New York City, irrespective of where the taxpayers lived or worked. In February or March, 1950, Shoopak was instructed by Herskovitz to take the tax returns to the fourth floor mail room and ask for “Mike.” He was further instructed to mention the name “Joe Grill” when he gave “Mike” the returns. Shoopak was also given a note by Herskovitz, which was received in evidence without objection. Written in Herskovitz's handwriting, the note contained the following words: “Mike, 5th floor mail room. Jos. Grill, 110 E. 45.” When Shoopak arrived at the mail room he handed the returns to “Mike.” Reid also delivered returns to the Collector’s offices at 110 East 45th Street, according to Herskovitz’s instructions. He was told by Herskovitz to deliver them to the mail room and to give them to “Mike.” On one occasion, Her-skovitz sent Reid to the Collector’s office to see “Joe Grill.” There was also evidence that a Joe Grill was a deputy collector and auditor of the Third Collection District; and Herskovitz admitted that he was acquainted with said Joe Grill and knew of his connection with the Third Collection District as deputy collector and auditor, although Herskovitz denied knowledge that Joe Grill worked in the mail room there.
There were received in evidence 21 personal income tax returns that had been prepared by appellants as a result of interviews with taxpayers. In every return received in evidence, a refund was requested. But the government audit of 17 of these returns, allowing only legitimate deductions, required a tax liability to be assessed in each case.
All°of the taxpayers’ worksheets, which were attached to appellants’ files, were received in evidence as defense exhibits. An examination of them discloses that not one worksheet has the name of any charitable organization written on it, except possibly the name of the church which a taxpayer attended. The names and amounts on the worksheets were not copied to the Form 1040 until some time after the interview took place, yet every return had at least several names of charitable organizations, as well as a breakdown of the lump sum amount for contributions which appeared on the worksheets. Many names and figures on the return were copied from previous year’s returns of the taxpayer.
The fraud practised by appellants is established beyond cavil. The income tax returns disclose excessive deductions for contributions, union dues, medical expenses, taxes, travelling expenses, workclothes, worktools, depreciation on automobiles and losses. Even dependency claims are falsified. These deductions amounted to from 20% to 50% of gross income. In some cases the amounts deducted for sales taxes were so excessive as to show expenditures greater than the entire gross income of the taxpayer for the year. Travelling expenses were taken as a deduction for a switchboard operator, a tailor, a shipping clerk and a baker. Despite the fact that the taxpayer did not use his car for business purposes the returns prepared by appellants included large deductions for depreciation and repairs.
While- Herskovitz testified that the figures on the worksheets and returns, in the instances handled by him personally, were given to him by the taxpayers in each case, the jury believed the testimony of the taxpayers that these figures had not been supplied by them.
The principal contention of appellants is that, since the conspiracy-count was dismissed at the close of the government’s case, it was error for the trial court to refuse to strike from the record or to direct the jury to disregard certain testimony of the witnesses Eeid, Maddalone, Yankauer, Levine, Bright and Sitkoff received over objection on the representation of government counsel that such testimony was admissible in support of the conspiracy charge.
With respect to much of this testimony it is far from clear that the motions were made in such terms as to make it plain to the trial court that counsel for appellants was making the same points which are now argued before us; but we need not examine that question closely, for it is clear that the testimony offered and received in support of the conspiracy charge was admissible on the substantive charges as well, and that the trial judge committed no error in his rulings.
The substantive counts all referred to the 1949 income tax returns, prepared in early 1950. Some of the challenged testimony, however, dealt also with 1947 and 1948 income tax returns, and included evidence with respect to these returns as well as conversations between each of the appellants and taxpayers during interviews in preparation of these returns. The challenged testimony also dealt with the operations of the office, and included references to “Mike” and “Joe Grill.”
This evidence established a consistent pattern of criminal conduct relevant on the issue of appellants’ guilty knowledge, intent and purpose. It was independently receivable in support of the substantive counts. None of this evidence was rendered incompetent by the dismissal of the conspiracy count. See Nye & Nissen v. United States, 1948, 336 U.S. 613, 618, 69 S.Ct. 766, 93 L.Ed. 919; U. S. v. Rossi, 2 Cir., 1950, 182 F.2d 292, 293; U. S. v. Walker, 2 Cir., 1949, 176 F.2d 564, 566, certiorari denied 338 U.S. 891, 70 S.Ct. 239, 94 L.Ed. 547; U. S. v. Kelley, 2 Cir., 1939, 105 F.2d 912, 916.
When the testimony was first offered, there was no occasion for the trial judge to rule that such evidence was inadmissible on the substantive counts, nor did he do so. And even if he had so ruled, there was nothing to prevent him from changing his mind later, after the conspiracy count was dismissed. That the trial judge has a right to change a ruling during the course of a trial is, of course, not open to doubt. Nye & Nissen v. United States, supra.
Thus the effect of the denial of the motions to strike and to direct the jury to disregard was a ruling that the evidence was relevant to the issues arising out of the substantive counts, and that it should remain in the case for the consideration of the jury.
This leaves only the further question, on this phase of the case, of whether it was error for the trial judge not to instruct the jury specifically with respect to this testimony, which had been received over objection. But no request was made for any such further instructions.
After all the progress away from technicalities it would be a sorry state of affairs if we reversed this case merely because the trial judge did not explain to the jury that the evidence which was originally offered to support the conspiracy charge was not to be disregarded because the conspiracy charge had been dismissed, but rather should be considered on the question of intent as part of the evidence of what was going on in the appellants’ office.
Nor, despite the dismissal of the conspiracy charge, was there any necessity for the trial judge specifically to indicate which part of this evidence was applicable to which defendant. Not only did defendants not make any request for such an instruction but, after the trial judge had charged the jury, there was no request for any amplification thereof, he having said:
“No single defendant can be convicted for the commission of any of these crimes on evidence which is applicable solely to another defendant or defendants.”
It is true that it would not have been error had the trial judge expatiated upon the details of the testimony of these various witnesses and explained to the jury that such evidence had a material bearing on the counts of the indictment remaining for their consideration, with specific identification of the conversations or other evidence admissible only against one or the other of these defendants. However, the rulings as made were in fact more favorable than defendants were entitled to receive. The probability is that the jury, if they gave any consideration to the evidence in question, thought such evidence had gone out of the case when the conspiracy count was dismissed. The jury were not present when the motions were made, and they could have recalled no more than the colloquies which took place at the time such evidence was received in support of the conspiracy count, the fact that the conspiracy count had been dismissed and the instructions relative to the substantive counts, there being no reference whatever in such instructions to the alleged objectable testimony. A full explanation of the nature and relevance of this evidence would have served to emphasize it, and the possible damage to either or both of these defendants may well furnish the explanation for the failure of counsel to present the questions squarely by appropriate requests to charge. At any rate, under the circumstances of this particular case, there is little force in the argument that any prejudice resulted from the rulings as made.
The other alleged errors merit no extended discussion. The cross-examination of Herskovitz as to “Joe Grill” and the cheek (Exhibit 53) was proper to impeach Herskovitz’s credibility. The defendants’ Request to Charge No. 33, to limit the applicability of the cheek, was covered in substance by the court’s general language above quoted. There is no duty on the trial court to be more specific. See Blumenthal v. United States, 1947, 332 U.S. 539, 68 S.Ct. 248, 92 L.Ed. 154.
If defendants desired to suppress Exhibit 45 as having been obtained by an illegal search and seizure, they should have so moved before the trial. Even at the trial they did not object on this ground to Bright’s testimony or to the exhibit. It is too late to raise the point now.
Finally, it is by no means clear that the taxpayers were accomplices of the appellants. Nor does the failure of the trial court to follow the specific language of defendants’ Requests to Charge Nos. 13, 14 and 15 constitute reversible error. See U. S. v. Block, 2 Cir., 1937, 88 F.2d 618, 621; U. S. v. Becker, 2 Cir., 1933, 62 F.2d 1007, 1009.
Affirmed.
Question: What is the specific issue in the case within the general category of "criminal - federal offense"?
A. murder
B. rape
C. arson
D. aggravated assault
E. robbery
F. burglary
G. auto theft
H. larceny (over $50)
I. other violent crimes
J. narcotics
K. alcohol related crimes, prohibition
L. tax fraud
M. firearm violations
N. morals charges (e.g., gambling, prostitution, obscenity)
O. criminal violations of government regulations of business
P. other white collar crime (involving no force or threat of force; e.g., embezzlement, computer fraud,bribery)
Q. other crimes
R. federal offense, but specific crime not ascertained
Answer:
|
sc_respondent
|
027
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the respondent of the case. The respondent is the party being sued or tried and is also known as the appellee. Characterize the respondent as the Court's opinion identifies them.
Identify the respondent by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the respondent is actually single entitiy or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single respondent, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name.
FOWLER v. WILKINSON, WARDEN.
No. 620.
Argued April 30, 1957.
Decided June 3, 1957.
Leon S. Epstein argued the cause for petitioner. With him on the brief was R. Monroe Schwartz.
Ralph S. Spritzer argued the cause for respondent. With him on the brief were Solicitor General Rankin, Assistant Attorney General Olney, Beatrice Rosenberg and James W. Booth.
Mr. Justice Clark
delivered the opinion of the Court.
The factual background and the question presented in this case are the same as in Jackson v. Taylor, ante, p. 569, decided today. The case reaches us from the Court of Appeals for the Fifth Circuit, 234 F. 2d 615, which had reversed the District Court. We granted certiorari, 352 U. S. 940.
There are additional reasons to those in Jackson v. Taylor advanced for reversal in this case. Fowler contends that the 20-year sentence is arbitrarily severe, even though within the statutory maximum, citing United States v. Voorhees, 4 U. S. C. M. A. 509, 16 C. M. R. 83 (1954). But as we said in Burns v. Wilson, 346 U. S. 137 (1953), this Court exerts “no supervisory power over the courts which enforce [military law]; the rights of men in the armed forces must perforce be conditioned to meet certain overriding demands of discipline and duty, and the civil courts are not the agencies which must determine the precise balance to be struck in this adjustment. The Framers expressly entrusted that task to Congress.” Id., at 140. If there is injustice in the sentence imposed it is for the Executive to correct, for since the board of review has authority to act, we have no jurisdiction to interfere with the exercise of its discretion. That power is placed by the Congress in the hands of those entrusted with the administration of military justice, or if clemency is in order, the Executive. It may be that the board’s judgment was harsh or that the military’s highest court should have intervened as it did in the Voorhees case, but we have no jurisdiction in that regard. As long ago as 1902 this Court recognized that it was a “salutary rule that the sentences of courts martial, when affirmed by the military tribunal of last resort, cannot be revised by the civil courts save only when void because of an absolute want of power, and not merely voidable because of the defective exercise of power possessed.” Carter v. McClaughry, 183 U. S. 365, 401.
We note that petitioner’s reliance on Voorhees’ case is misplaced when he cites it as apposite to the problem here presented. While the Court of Military Appeals held there that the board should have ordered a rehearing, the rehearing was to include a reconsideration of the finding of guilt as well as the sentence. Though, as Judge Lati-mer indicates in his opinion, the board of review had the power to approve the sentence, dismissal from the service, such approval was found by that court to be an abuse of the discretion placed in the board under the particular circumstances of the case. We, of course, do not sit to pass on the exercise of discretion by the military authorities. Judge Latimer further indicated the Court of Military Appeals’ recognition of the power of the board of review to affirm such parts, or amount of a sentence, as it finds correct in fact and law. The case, then, instead of supporting petitioner’s position, indicates authority for the power of the board to modify the sentence. See United States v. Bigger, 2 U. S. C. M. A. 297, 8 C. M. R. 97 (1953).
The argument that the adjustment of the sentence by the board deprives the petitioner of two appeals likewise is without merit. He contends that if the resentencing were done by a court-martial he would have a review of that resentencing by the convening authority as well as the board of review. But Congress did not intend any such result. The accused has already had his day before the court-martial and the convening authority. It is not for us to say that the procedure established by Congress is unwise. There are no constitutional questions before us. We have determined that the board of review had jurisdiction to modify the sentence. Our inquiry cannot be extended beyond that question.
For these reasons, and those stated in Jackson v. Taylor, ante, p. 569, the judgment is
Affirmed.
The Chief Justice, Mr. Justice Black, Mr. Justice Douglas, and Mr. Justice Brennan dissent for the reasons stated in the dissenting opinion of Mr. Justice Brennan in No. 619, Jackson v. Taylor, ante, p. 581.
Question: Who is the respondent of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
|
songer_appel1_7_2
|
B
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed 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 ex rel. Caswell LATHAN, Jr., Petitioner-Appellant, v. John DEEGAN, Superintendent of Auburn Correctional Facility, Auburn, New York, Respondent-Appellee.
No. 211, Docket 71-1547.
United States Court of Appeals, Second Circuit.
Argued Oct. 14, 1971.
Decided Nov. 1, 1971.
John F. Lang, New York City (Allan J. Berdon, New York City, of counsel), for appellant.
Brenda Soloff, Asst. Atty. Gen. of N. Y. (Louis J. Lefkowitz, Atty. Gen., and Samuel A. Hirshowitz, First Asst. Atty. Gen., on the brief), for appellee.
Before FRIENDLY, Chief Judge, CLARK, Associate Justice, and KAUFMAN, Circuit Judge.
United States Supreme Court, retired, sitting by designation.
IRVING R. KAUFMAN, Circuit Judge:
After more than twelve years of legal maneuvering, Caswell Lathan, Jr. asks this court to reverse the denial of his petition for a writ of habeas corpus based on allegedly involuntary admissions used against him at trial.
Lathan was charged with first degree murder for the July 23, 1959, slaying of Gertrude Stransky. He was tried and convicted in the Bronx County Court before Judge Schulz and a jury. Although this conviction was sustained on direct appeal to the Appellate Division and the New York Court of Appeals, People v. Lathan, 15 A.D.2d 906 (1st Dept.), aff’d. 12 N.Y.2d 822, 236 N.Y.S.2d 345, 187 N.E.2d 359 (1962), remittitur amended, 13 N.Y.2d 670, 241 N.Y.S.2d 164, 191 N.E.2d 668 (1963), the Supreme Court of the United States remanded the ease to the New York Court of Appeals for further proceedings consistent with this opinion in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). Lathan v. New York, 378 U.S. 566, 84 S.Ct. 1923, 12 L.Ed.2d 1038 (1964). Jackson declared unconstitutional the New York procedure which required defendants to challenge the voluntariness of confessions before the trial jury.
In accordance with an order of the New York Court of Appeals, the Bronx County Supreme Court held a Huntley hearing to determine the voluntariness of the confession. People v. Lathan, 15 N.Y.2d 723, 256 N.Y.S.2d 935, 205 N.E.2d 200 (1965). Justice Spector, who presided over the hearing, heard testimony from Lathan and thirteen witnesses for the State. The hearing was anything but perfunctory and a lengthy opinion was filed more than a month after the hearing commenced. Justice Spector, after making detailed findings of fact, concluded that Lathan’s confession was voluntary and thus properly admitted at this trial. This order was affirmed by the Appellate Division, People v. Lathan, 30 A.D.2d 1053, 294 N.Y.S.2d 676 (1st Dept.1968), the Court of Appeals denied leave to appeal and the United States Supreme Court denied certiorari, Lathan v. New York, 397 U.S. 941, 90 S.Ct. 954, 25 L.Ed.2d 122 (1970). Having thus exhausted his state court remedies, Lathan sought habeas corpus relief pursuant to 28 U.S.C. § 2254 in the District Court for the Southern District of New York. Judge Palmieri denied the petition without a hearing, concluding on the basis of the facts found after the full state Huntley hearing that the confession was voluntary as a matter of federal constitutional law.
We affirm the order denying the petition for habeas corpus relief.
I.
A brief statement of the alleged crime and the confession elicited are necessary to an understanding and disposition of Lathan’s claims. Gertrude Stransky was killed in her Bronx apartment on July 23, 1959, by repeated stabbings. In addition, two rings, other jewelry and some cash belonging to her were stolen. The police uncovered fingerprints in the apartment, and a knife, the suspected murder weapon, was found in an automobile parked nearby.
Lathan, eighteen years old and on furlough from the Army at the time, was apprehended while burglarizing a Yonkers apartment and was taken to a Yonkers police precinct on August 9. After a short interrogation, Lathan signed a confession to the Yonkers burglary charge. He was arraigned without counsel on August 10 and transferred to the Westchester County Jail.
On August 11 two military police, aware only of Lathan’s Yonkers burglary arrest, visited him to ascertain his military status. They testified at the Huntley hearing and Justice Spector found, contrary to Lathan’s claim, that they did not promise Lathan that the military would provide assistance.
Meanwhile, the Stransky investigation zeroed in on Lathan. In an hour long session with four detectives, also on August 11, Lathan denied any knowledge of the Stransky homicide. He insisted also that he had not been in the area of the Bronx apartment house on July 23.
The man who was to prove to be La-than’s chief antagonist, Detective Tobias Stegman of the New York City Police Department, visited Lathan the next day. Instead of disclosing his identity, however, Stegman, dressed in civilian clothes, introduced himself as a lieutenant-colonel in the army and showed La-than his Army identification card. Close scrutiny of the card would have disclosed that Stegman was a member of the Army Reserves. Stegman spoke with Lathan of his Army experiences and stated “the Army and I want to help you.”
The coincidental visit of the military police may have helped create the illusion in Lathan’s mind that the Army was trying to help him. In any event, Lathan began talking about his adventures since leaving his Army post, including a walk to the Bronx on the night of July 23. Lathan revealed that he ascended to the roof of a building to which he had once delivered newspapers and admitted entering an apartment through a window. Stegman then stated to La-than that he knew that a homicide had taken place in that apartment and that Lathan’s fingerprints had been found there. Lathan refused to go beyond his admission that he had entered the apartment in question. After conferring with his associates who had remained outside the interrogation room, Stegman unsuccessfully questioned Lathan again. The total time involved in these sessions was less than two hours.
Stegman returned to question Lathan the following day in the Westchester County District Attorney’s Office. After an initial fruitless interrogation, Stegman met with his associates and then returned and confronted Lathan with the murder weapon and a photograph of the victim. Lathan remained firm in his denial that he killed Mrs. Stransky. At this point, Assistant District Attorney Farrell and Chief of Detectives Walsh, entered the room. Walsh now made an unsuccessful attempt to secure a confession from La-than, while Stegman maintained his silence. Walsh and Farrell left after approximately ten minutes, and Lathan was again alone with Stegman. Becoming fully aware that the evidence against him was overwhelming and that his further denials would accomplish nothing, Lathan launched into his detailed confession. At the Huntley hearing, Lathan contended for the first time that he was motivated to confess only after a promise by Stegman that Lathan would be placed in a mental hospital if he admitted committing the homicide. No mention of this alleged promise was made by Lathan when he testified at his original trial, and Stegman’s denial constitutes additional evidence supporting Justice Spector’s finding that Lathan’s testimony was fabricated.
With the “cat out of the bag,” Lathan scarcely resisted when he was taken to a room in which Farrell, Walsh, Stegman, a stenographer and several other officers were present and repeated his confession. At this time it was Farrell who conducted the questioning, and Lathan’s responses traced the same path as his previous statements to Stegman.
II.
Lathan contends that his admissions to Stegman and the question- and-answer- confession given to Farrell were made involuntarily and their introduction rendered his trial constitutionally defective. Manifestly, if Lathan’s statements were secured today without notifying him of his right to counsel and of his right to remain silent, they would be inadmissible. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Miranda, however, has not been applied retroactively to invalidate confessions introduced at trials commencing prior to June 13, 1966. Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). Instead, these factors may be considered in the totality of circumstances surrounding the confession in determining its voluntariness. See Clewis v. Texas, 386 U.S. 707, 708-709, 87 S.Ct. 1338, 18 L.Ed.2d 423 (1967); Davis v. North Carolina, 384 U.S. 737, 740-741, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966). Only when accompanied by other circumstances tending to indicate that the will of the defendant was overborne will the absence of counsel or the failure to advise of his fifth amendment right, render the confession involuntary and inadmissible in a pre-Miranda case. See, e. g., Clewis, supra (extremely low intelligence of defendant); Haynes v. Washington, 373 U.S. 503, 83 S.Ct. 1336 10 L.Ed.2d 513 (1963) (prolonged incommunicado detention); United States ex rel. Everett v. Murphy, 329 F.2d 68 (2d Cir.), cert, denied, 377 U.S. 967, 84 S.Ct. 1648, 12 L.Ed.2d 737 (1964) (extensive questioning, false promise of police assistance). But none of these factors was found to be present in this ease.
Lathan presents several overlapping theories to support his contention that, since Stegman palmed himself off as an Army officer, the confession was rendered inadmissible. Lathan would have us read Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959) as holding that any confession following police deception is involuntary. The holding in that case is not nearly so broad. In Spano, a rookie patrolman who was also a close friend of the defendant stated that his job in the Police Department and the welfare of his pregnant wife and three children would be in jeopardy if Spano did not confess. Moreover, Spano already had been indicted for the crime under investigation when he was denied access to his retained attorney and questioned continuously for eight hours by a battery of some fifteen interrogators. No such factors are presented here. Stegman’s representations with respect to the Army were not of such a character as to overbear Lathan’s will so that he was unable to resist pressure, nor was there the slightest indication that he was fatigued. Stegman merely set the scene —whether or not Lathan believed he was an army officer — for Lathan to unburden himself. The confession was, in fact, induced by Stegman’s demonstration that he had hard evidence linking Lathan to the homicide and not, as alleged, by Stegman’s feigned friendliness. It is inconceivable that a person of reasonable intelligence would confess merely to please an acquaintance of one day, which in substance is Lathan’s claim.
Nor do the circumstances under which Lathan’s confession was secured come within the proscription of United States ex rel. Everett v. Murphy, supra. In Everett the relator was arrested illegally and detained incommunicado during extensive questioning. His confession followed an outright fabrication of a crucial fact by the interrogator. Although the victim already had died, Everett was advised that the victim was only slightly injured and that the police would help reduce the charges against him if Everett would cooperate by confessing. A mere deception by an interrogator, ipso facto, does not invalidate a confession absent other compelling circumstances. In Everett, we focused on the promise of police assistance to reduce the charges as rendering the confession involuntary, stating that the “deception of Everett as to Finoechiaro’s survival of the attack might be ignored if it stood alone.” Id., 329 F.2d at 70. See also United States ex rel. Caminito v. Murphy, 222 F.2d 698, 700-701 (2d Cir. 1955).
Another imperfect arrow in La-than’s quiver is his argument that Stegman may have violated criminal statutes when he posed as an officer in the United States Army and, therefore, that his confession was inadmissible. But the short answer to this is that Stegman was a member of the Army Reserves and legitimately possessed his Army identification card. Thus, it is by no means apparent that Stegman’s alleged conduct violated any of the cited statutes. Finally, assuming arguendo that Stegman did violate one of the statutes, it does not follow that the subsequent confession would be tainted and that such violation would have the consequences for which Lathan contends. It would not aid Lathan if we were to apply a per se exclusionary rule to fruits of the illegality as we do in cases of fourth amendment violations. See, e. g. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). It is clear to us, as it was to Justice Spector and Judge Palmieri, that La-than’s confession was not a “fruit” of Stegman’s alleged deception.
Other arguments urged by Lathan, which are premised on “facts” found at the Huntley to be untrue, need not concern us. See 28 U.S.C. § 2254(d).
The order of the District Court is affirmed.
. Lathan was sentenced to life imprisonment on June 24, 1960, after a jury recommendation of mercy.
. The New York procedure required the court to exclude a confession only if it determined that under no circumstances could it be deemed voluntary. If a “fair question” of voluntariness was presented, the trial jury would hear the evidence and decide the question of voluntariness itself. The Supreme Court found this procedure defective because, inter alia, a jury might find it difficult to exclude from consideration a confession appearing to be true, regardless of its voluntariness. Jackson, 378 U.S. at 381, 84 S.Ct. 1774.
. This hearing was held in conformity with the procedure dictated in People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965).
. Judge Palmieri also denied Lathan’s request for a certificate of probable cause, but on June 3, 1971, this court granted Lathan’s motions for a certificate of probable cause, leave to proceed in forma paup-eris and assignment of counsel.
. Since Lathan makes no claim that the state hearing was less than full and fair, we presume the state factual findings to be correct. 28 U.S.C. § 2254(d) provides in relevant part:
* * * a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for- the writ and the State or an officer or agent thereof were parties, evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct. * * *
. At no time between the arrest of Lathan on the burglary charge and his confession to the murder charge four days later was Lathan advised that he had a right to remain silent and that any statements he made could be used against him.
. The apartment Lathan entered was that of Mrs. Stransky, but Lathan did not admit it at this time.
. Lathan described how he entered a bedroom and saw a naked woman, told her to be quiet and she would not be hurt, punched her in the face to quiet her and stabbed her to death.
. The length of incarceration here appears deceptive, since for two of the days Lath-an was in custody there was no reference to the Stransky homicide. Moreover, no session lasted more than an hour and the total length of all the sessions was less than eight hours. Claims of physical deprivation made for the first time by Lathan at the Huntley hearing were rejected by Justice Spector.
. Judge Palmieri found that Lathan was not in fact deceived by Stegman. Judge Palmieri noted that at the trial Lathan admitted that he suspected Stegman was not an Army officer when Stegman questioned him about the homicide.
. Lathan was not one who would be easily taken in. Justice Spector found him to be “keen, imaginative, sharp, elusive and very articulate * * * ”
. The confession eventually was used against Everett to secure a first degree murder conviction.
. 18 U.S.C. § 912 provides:
Whoever falsely assumes or pretends to be an officer or employee acting under the authority of the United States or any department, agency or officer thereof, and acts as such, or in such pretended character demands or obtains any money, paper, document, or thing of value, shall be fined not more than $1,000 or imprisoned not more than three years, or both.
18 U.S.C. makes it a misdemeanor to possess an army identification card except as authorized by law.
. Lathan guides us to Reed v. United States, 252 F. 21 (2d Cir. 1918), which upheld the convictions of persons prosecuted for masquerading as military officers for the purpose of arresting deserters for reward. But we find no indication in Reed that the arrests and subsequent courts-martial of those apprehended by the impersonators were affected.
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:
|
songer_genapel2
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant.
GOVERNMENT OF the VIRGIN ISLANDS, Appellee, v. Claude RICHARDS, Appellant.
No. 13657.
United States Court of Appeals Third Circuit.
Argued Jan. 31, 1962.
Decided Feb. 26, 1962.
R. H. Amphlett Leader, Frederiksted, St. Croix, V. I., for appellant.
Leon P. Miller, U. S. Atty., Charlotte Amalie, St. Thomas, V. I., for appellee.
Before ALDRICH, GANEY and .SMITH, Circuit Judges.
Sitting by assignment.
PER CURIAM.
Under the narrow scope of a writ of review, 5 V.I.C. §§ 1421-1423, the •evidence is not before us. The only possible question open to petitioner (assuming that certain procedural points are decided in his favor) is whether he could be found guilty of disturbing the peace “by fighting with John Richards” although he had been found not guilty of “commit [ting] an assault and battery on the person of John Richards” on the same occasion. It seems manifest that there may be a spontaneous or voluntary fight in which neither party is genuinely an aggressor. In such instance the peace would be disturbed even though no assault and battery occurred.
The order of the District Court denying the petition is affirmed.
Question: What is the nature of the second listed appellant whose detailed code is not identical to the code for the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_applfrom
|
C
|
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).
James Edward CARTER, Appellant, v. Marvin MANDEL, Governor, Robert J. Lally, Secretary of Public Safety and Correctional Service, J. Brown Hardy, Acting Director of Patuxent Institution and etc., Appellees. James Edward CARTER, Appellant, v. J. Brown HARDY, Acting Director, Patuxent, Appellee. Charles Anegus ALLEN, James Edward Carter, Inmates, Patuxent Institution, on behalf of themselves and all others similarly situated, and Robert T. Morgan, Appellants, v. Robert J. LALLY, Secretary, Maryland Department of Public Safety and Correctional Services, Mark A. Levine, Commissioner, Maryland Division of Correction, J. Brown Hardy, Acting Director, Patuxent Institution, Franklin Goldstein, Chairman, Board of Patuxent Institution, Jonas Rappeport, M. D., Associate Member, Board of Patuxent Institution, Rev. Marcus G. Wood, Associate Member, Board of Patuxent Institution, and Peter Lejins, M. D., Associate Member, Board of Patuxent Institution, Jerome D. Fran, Robert A. Gordon, Edward A. Tomlinson, Monor B. Crager, Robert B. Levinson, Olive Quinn, John M. Pettibone, Leonard A. Briscoe, Jasper R. Clay, Jr., Russell J. White, and Robert Cahill, Members of Patuxent’s Board of Directors, Appellees.
No. 77-1530.
United States Court of Appeals, Fourth Circuit.
Argued Feb. 6, 1978.
Decided March 21, 1978.
Charles F. Morgan, Baltimore, Md. (Michael A. Millemann, The Legal Service Clinic; Richard G. Fishman, Baltimore Legal Aid Bureau, Inc., Baltimore, Md., on brief), for appellants.
Henry J. Frankel, Asst. Atty. Gen., Baltimore, Md. (Francis B. Burch, Atty. Gen. of Md., and Clarence W. Sharp, Asst. Atty. Gen., Baltimore, Md., on brief), for appellees.
Before HAYNSWORTH, Chief Judge, and BUTZNER and HALL, Circuit Judges.
PER CURIAM:
This action was brought to challenge the adequacy of the legal assistance available to Maryland prisoners. The state has not established prison law libraries, but it operates a public defender program. The district court’s opinion carefully analyzes the prisoners’ needs and the public and private assistance that is available. See, Hall v. State of Maryland, 433 F.Supp. 756 (D.Md. 1977).
Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), decided after this case was tried, holds that failure to provide prisoners with adequate law libraries or assistance from legally trained persons violates their constitutional right of access to the courts. With one exception, the district court correctly anticipated the Supreme Court’s ruling. Bounds indicates that the constitutional right of access to the courts extends to federal civil rights claims. 430 U.S. at 827, 828, n.17, 97 S.Ct. 1491. Because the district court concluded that Maryland has no constitutional obligation to provide assistance in federal civil rights cases, 433 F.Supp. at 779-80, that aspect of the case must be remanded for reconsideration in light of Bounds.
The district court found that the legal assistance provided for all other types of litigation was constitutionally sufficient. With respect to these, we affirm. Although litigation is not static and the future may require changes, the record establishes that Maryland has commendably recognized its constitutional obligation to provide legal assistance for its prisoners.
Affirmed in part.
Vacated in part and Remanded.
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:
|
sc_casesourcestate
|
17
|
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.
SARNO et al. V. ILLINOIS CRIME INVESTIGATING COMMISSION
No. 70-7.
Argued January 11, 1972
Decided May 22, 1972
Frank G. Whalen argued the cause and filed a brief for petitioners.
Joel M. Flaum, First Assistant Attorney General of Illinois, argued the cause for respondent. With him on the brief were William J. Soott, Attorney General, and Jayne A. Carr, Assistant Attorney General.
Melvin L. Wulf filed a brief for the American Civil Liberties Union as amicus curiae urging reversal.
Per Curiam.
Petitioners were ordered to testify before the Illinois Crime Investigating Commission under a grant of immunity conferred pursuant to Ill. Rev. Stat., c. 38, § 203— 14 (1969). The occasion for granting the writ in this case was to consider whether Illinois must demonstrate to petitioners, prior to an adjudication for contempt for refusal to answer the Commission’s questions, that immunity as broad in scope as the protection of the privilege against self-incrimination is available and applicable to them. 401 U. S. 935 (1971). The writ was granted in light of petitioners’ claim that the statute did not provide complete transactional immunity. On the same day that the writ was granted, probable jurisdiction was noted in Zicarelli v. New Jersey State Commission of Investigation, 401 U. S. 933 (1971), to resolve the question whether a State can compel testimony from an unwilling witness, who invokes the privilege against self-incrimination, by granting immunity from use and derivative use of the compelled testimony, or whether transactional immunity is required.
We held today in Kastigar- v. United States, ante, p. 441, and in Zicarelli v. New Jersey State Commission of Investigation, ante, p. 472, that testimony may be compelled from an unwilling witness over a claim of the privilege against self-incrimination by a grant of use and derivative use immunity. The premise of petitioners’ arguments is that transactional immunity is required. They say that Illinois failed to demonstrate satisfactorily that transactional immunity was provided, but they do not contend that the Illinois immunity statute affords pro-téetion less comprehensive than use and derivative use immunity. Respondent asserts that the statute affords complete transactional immunity, reflecting a long-standing Illinois policy of providing immunity greater than that required by the United States Constitution. Since neither party contends that the scope of the immunity provided by the Illinois statute falls below the constitutional requirement set forth in Kastigar, we conclude that any uncertainty regarding the scope of protection in excess of the constitutional requirement should best be left to the courts of Illinois. Accordingly, the writ of certiorari is dismissed as improvidently granted.
It is so ordered.
Mr. Justice Brennan and Mr. Justice Rehnquist took no part in the consideration or decision of this case.
Mr. Justice Douglas dissents for the reasons stated in his dissenting opinion in Kastigar v. United States, ante, p. 462.
Mr. Justice Marshall dissents for the reasons stated in his dissenting opinion in Kastigar v. United States, ante, p. 467.
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_respond1_1_2
|
B
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "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".
Carl W. HINES et al., Plaintiffs-Appellants, v. ELKHART GENERAL HOSPITAL et al., Defendants-Appellees.
No. 79-1211.
United States Court of Appeals, Seventh Circuit.
Aug. 3, 1979.
Randall J. Nye, Hammond, Ind., for plaintiffs-appellants.
Thomas J. Hall, South Bend, Ind., for defendants-appellees.
Before FAIRCHILD, Chief Judge, CUMMINGS, Circuit Judge, and CAMPBELL, Senior District Judge.
Senior District Judge William J. Campbell of the Northern District of Illinois is sitting by designation.
WILLIAM J. CAMPBELL, Senior District Judge.
Plaintiffs-Appellants instituted this action in the district court for the Northern District of Indiana on July 3, 1978. The complaint, which invoked jurisdiction on the basis of diversity of citizenship, 28 U.S.C. § 1332, asserted an action to recover damages for the wrongful death of Paula J. Hines, whose death was occasioned by the alleged medical malpractice of defendantsappellees. Defendants responded to the action by moving to dismiss the complaint because plaintiffs failed to comply with the provisions of the Indiana Medical Malpractice Act of 1975 (Act), I.C. 16-9.5-9-1 et seq. The district court dismissed the complaint without prejudice, concluding that the Act applied in federal diversity actions, and upholding the Act against plaintiffs’ numerous constitutional challenges. 465 F.Supp. 421. We affirm the district court’s holding that the Act applies in diversity actions in the federal district courts of Indiana. We find it unnecessary in the circumstances of this case to consider plaintiffs’ constitutional challenges to the Act.
The salient features of the Act are set forth in the district court’s opinion, and we need not repeat them here. It is sufficient to note that plaintiffs failed to comply with the provision of the Act requiring a claimant to file his or her complaint with a medical review panel and to obtain the panel’s opinion on the claim prior to instituting a court action. As in the court below plaintiffs contend here that they were not required to comply with the Act because the Act is not applicable to actions filed in the federal district courts of Indiana.
We dispense with plaintiffs’ first argument that by its very terms the Act is inapplicable to actions in federal court under diversity by agreeing with Judge Sharp’s characterization of this argument as “totally devoid of merit.” 465 F.Supp. at 424. The fact that the Indiana legislature employed two phrases in the Act to refer to courts does not mean that the Act is inapplicable to diversity cases in the federal courts of Indiana. If anything is clear and well established from the decision in Erie v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), and its progeny, it is the principle that the law to be applied by a federal court in a diversity case is the law of the State, and for that reason “a federal court adjudicating a State-created right solely because of the diversity of citizenship of the parties is only another court of the State . . . .” Guaranty Trust Co. v. York, 326 U.S. 99, 108, 65 S.Ct. 1464, 1469, 89 L.Ed. 2079 (1945). We find nothing in the provisions of the Act itself which prevents the Act’s application in the Indiana federal courts exercising jurisdiction under diversity of citizenship.
Plaintiffs also argue that the Act is inapplicable in federal diversity actions because the Act would infringe upon the federal interest in preserving the essential character of the federal courts, particularly the role of the jury. In support of this argument plaintiffs rely on Wheeler v. Shoemaker, 78 F.R.D. 218 (D.C.R.I.1978) and Byrd v. Blue Ridge Rural Electric Co-op, 356 U.S. 525, 78 S.Ct. 893, 2 L.Ed.2d 953 (1958). We believe plaintiffs’ reliance on these decisions is misplaced.
In Byrd the Supreme Court had under consideration a South Carolina court practice which required a judge, and not a jury, to make a factual determination with respect to an affirmative defense. The Court was faced with the question of whether this state court practice was applicable under Erie to federal actions in South Carolina based on diversity. In holding that the practice was not applicable, the Court noted that the state court rule was not “bound up with the definition of rights and obligations of the parties,” and that there was no suggestion that the rule was “an integral part of the special relationships created by the statute.” 356 U.S. at 536, 78 S.Ct. at 900. After again stressing that the state rule was not bound up with rights and obligations, the Court further held that the application of the state court rule in federal diversity actions could not prevail over the federal policy favoring jury resolution of disputed fact questions. 356 U.S. at 538, 78 S.Ct. 893.
The provisions of the Act in this case are significantly different from the state court practice held inapplicable to federal courts in Byrd. We conclude that application of the Act in the federal district courts of Indiana neither detracts from the independence of the federal judicial system nor disrupts the federal system of allocating functions between judge and jury.
It cannot be disputed that the Act’s requirement of the submission of a claim to the medical review panel for its opinion prior to the institution of a judicial action is an integral part of the rights and obligations established by the Act. This procedure is clearly not a mere form or mode for enforcing rights or obligations, but rather the procedure is bound up with those rights and obligations. Moreover, the Act does not deprive a claimant of a trial by jury; rather, the Act specifically preserves that right. The Supreme Court in Byrd found that application of the state court rule involved in that case to diversity actions would disrupt the traditional federal system of allocating functions between judge and jury. No such result obtains by the application of the Act in this case to diversity cases presenting a claim for medical malpractice in the federal courts of Indiana. Consequently, we. cannot conclude that application of the Act will have the deleterious effects on the federal judicial system which the plaintiffs assert.
The concern in Guaranty Trust Co. v. York, supra, for the proper distribution of judicial power between State and federal courts led to the establishment of the “outcome-determination” policy, which the Court formulated as follows: “[I]n all cases where a federal court is exercising jurisdiction solely because of the diversity of citizenship of the parties, the outcome of the litigation in the federal court should be substantially the same, so far as legal rules determine the outcome of the litigation, as it would be if tried in a State court.” 326 U.S. at 109, 65 S.Ct. at 1470. This policy is to be understood in connection with “the twin aims of the Erie rule: discouragement of forum shopping and avoidance of inequitable administration of the laws.” Hanna v. Plumer, 380 U.S. 460, 468, 85 S.Ct. 1136, 1142, 14 L.Ed.2d 8 (1965). Our holding that the Act is applicable to the Indiana federal district courts exercising jurisdiction on the basis of diversity of citizenship is consonant with the promotion of these objectives.
Plaintiffs also contend that the Act violates the Seventh and Fourteenth Amendments of the United States Constitution as well as various provisions of the Indiana Constitution. For several reasons we do not reach the constitutional questions.
With respect to challenges to the Act under the Indiana Constitution, we have been advised by counsel that the precise issues raised by plaintiffs in this case are presently pending in two appeals to the Supreme Court of Indiana. In view of this circumstance, and in view of the obvious substantial public importance associated with the Act and its purposes, we believe it is appropriate to abstain from any adjudication of the Act’s viability under the Indiana Constitution. See: Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 79 S.Ct. 1070, 3 L.Ed.2d 1058 (1959); Colorado River Water Conservation District v. United States, 424 U.S. 800, 814, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976).
Plaintiffs’ contention that the Act violates the Seventh Amendment of the federal constitution is presented to us on the basis of an inadequate record. Plaintiffs do not attack the Act as facially unconstitutional on Seventh Amendment grounds, but rather argue that the Act’s requirement of pre-litigation submission of a claim to the medical review panel unconstitutionally impairs their right to a trial by jury because such a procedure involves additional delay and expense and increases their burden of proof. Although compliance with procedures of the Act may produce such results, plaintiffs’ argument is made in a factual vacuum. This case is before us on appeal from an order dismissing the complaint for failure to comply with the Act. In this posture no facts were developed in the district court, and there is no record of any unconstitutional effects caused by the application and operation of the Act. We are thus asked to strike down the Act on the basis of hypothetical and conjectural unconstitutional effects. We decline to make a constitutional adjudication in advance of demonstrated facts supporting the asserted unconstitutional results of the Act’s application. See: Thorpe v. Housing Authority, 393 U.S. 268, 284, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969); Maryland v. Wirtz, 392 U.S. 183, 200-201, 88 S.Ct. 2017, 20 L.Ed.2d 1020 (1968). For the same reason, we do not address plaintiffs’ contention that application of the limitation of damages provision of the Act to this case violates the equal protection clause of the Fourteenth Amendment.
For the foregoing reasons the judgment of the district court is affirmed.
AFFIRMED.
. I.C. 16-9.5-9-2 refers to “any court of this State”; I.C. 16-9.5-1-6 mentions “any court of law having requisite jurisdiction.”
. In Wheeler the district court found that reference of a medical malpractice case to a medical liability mediation panel established by state statute and appointed by the state court would be inconsistent with and would defeat the purpose of the congressional grant of diversity jurisdiction. 78 F.R.D. at 222-23. As Judge Sharp correctly noted, the statutory provisions under consideration in Wheeler vary drastically from the provisions of the Act involved in this case. The considerations which impelled the Wheeler district court to hold the Rhode Island Medical Malpractice Reform Act inapplicable to federal diversity actions in Rhode Island are not present in this case.
. The Court in Byrd also based its holding on the view that the “outcome-determinative” policy enunciated in Guaranty Trust Co. v. York, supra, was outweighed by a “strong federal policy against allowing state rules to disrupt the judge-jury relationship in the federal court.” 356 U.S. at 538, 78 S.Ct. at 901. The court also expressed its uncertainty that the outcome of the case would be substantially affected by whether the disputed factual question was decided by a judge or a jury. 356 U.S. at 539-40, 78 S.Ct. 893.
. See: I.C. 16-9.5-1-6.
. Johnson v. St. Vincent’s Hospital, No. 1078 S. 216; Mansur v. Carpenter, No 379 S. 79. With their brief in this court defendants-appellees filed a motion requesting us to certify to the Indiana Supreme Court questions pertaining to the constitutionality of the Act under the Indiana Constitution. Because of the pendency of the same questions before that court we deny the motion.
. We note moreover that plaintiffs also argue that the limitation of damages provision violates Art. I, § 23 of the Indiana Constitution. This issue, we are advised by counsel, is presently pending before the Indiana Supreme Court. See Note 5, supra.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer:
|
songer_genapel1
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
In re CARTLIDGE.
(Court of Appeals of District of Columbia.
Submitted May 10, 1026.
Decided June 1, 1926.)
No. 1842.
1. Patents <§=>120 — Patentee of coal-mining machine, having been allowed applications covering two driver methods, held not entitled to allowance of general application covering all possible arrangements for converting machine from one driver method to the other.
Patentee of coal-mining machine capable of being driven by a single chain or by two flexible elements, who has an allowed application covering each method, hold not entitled to allowance of divisional application in general terms, covering all possible arrangements whereby the machine might be converted from one driven by one method to' one driven by the other method.
2. Patents <§=>120.
Patentee is not entitled to general divisional patent covering any means that may be discovered of producing the result accomplished through original patent.
Appeal from Commissioner of Patents.
In the matter of the application of Prank Cartlidge for a patent. Prom a decision denying the application, applicant appeals.
Affirmed.
J. II. Boyden, of Washington, D. C., and L. A. Maxson, of Claremont, N. H., for appellant.
T. A. Hostetler, of Washington, D. C., for Commissioner of Patents.
Before MARTIN, Chief Justice, ROBB, Associate Justice, and SMITH, Judge of the United States Court of Customs Appeals.
ROBB, Associate Justice.
Appeal from a decision of the Patent Office rejecting the claims of an alleged divisional application relating to coalmining machines. The grounds' of the rejection were: First, that the claims are for substantially tbe same invention covered by appellant’s patent No. 1,538,684, of which this application is claimed to be a division; second, that the claims are unpatentable over the prior art; and, third, that they do not adequately define the invention.
Tho above patent, carrying 141 claims, was issued to appellant on May 19,1925. On the same day there was issued to him patent No. 1,538,685, carrying 81 claims, the application being a division of the original. The drawings of tho present application, filed later, are identical with those of the parent application. An examination of the present application discloses that the alleged invention consists in so arranging the machine that it may be driven by either a single driving chain or by two flexible elements. Tbe claims attempt to eovor broadly all possible arrangements whereby the machine may be converted from one driven by two flexible elements into one driven by a single chain, notwithstanding that appellant has an allowed application covering each of these elements. No mechanism for making the substitution is included. This, therefore, is an attempt through the use of general terms to cover any means that may be discovered of producing tbe result accomplished through tbe original patent. But this may not be done. Miller v. Eagle Mfg. Co., 151 U. S. 199, 14 S. Ct. 310, 38 L. Ed. 121; Heidbrink v. McKesson (C. C. A.) 290 F. 665.
For tbe reasons more fully stated by tho tribunals of the Patent Office, tbe decision is affirmed.
Affirmed.
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
sc_decisiontype
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the type of decision made by the court among the following: Consider "opinion of the court (orally argued)" if the court decided the case by a signed opinion and the case was orally argued. For the 1791-1945 terms, the case need not be orally argued, but a justice must be listed as delivering the opinion of the Court. Consider "per curiam (no oral argument)" if the court decided the case with an opinion but without hearing oral arguments. For the 1791-1945 terms, the Court (or reporter) need not use the term "per curiam" but rather "The Court [said],""By the Court," or "By direction of the Court." Consider "decrees" in the infrequent type of decisions where the justices will typically appoint a special master to take testimony and render a report, the bulk of which generally becomes the Court's decision. This type of decision usually arises under the Court's original jurisdiction and involves state boundary disputes. Consider "equally divided vote" for cases decided by an equally divided vote, for example when a justice fails to participate in a case or when the Court has a vacancy. Consider "per curiam (orally argued)" if no individual justice's name appears as author of the Court's opinion and the case was orally argued. Consider "judgment of the Court (orally argued)" for formally decided cases (decided the case by a signed opinion) where less than a majority of the participating justices agree with the opinion produced by the justice assigned to write the Court's opinion.
NATIONAL CABLE & TELECOMMUNICATIONS ASSOCIATION et al. v. BRAND X INTERNET SERVICES et al.
No. 04-277.
Argued March 29, 2005
Decided June 27, 2005
Paul T. Cappuccio argued the cause for petitioners in No. 04-277. With him on the briefs were Howard J. Symons, Tara M. Corvo, Paul Glist, John D. Seiver, David E. Mills, Daniel L. Brenner, Neal M. Goldberg, Michael S. Schooler, Edward J. Weiss, and Henk Brands.
Deputy Solicitor General Hungar argued the cause for federal petitioners in No. 04-281. With him on the briefs were Acting Solicitor General Clement, Assistant Attorney General Pate, Deputy Assistant Attorney General Del-rahim, James A. Feldman, Catherine G. O’Sullivan, Nancy C. Garrison, John A. Rogovin, Austin C. Schlick, Daniel M. Armstrong, Jacob M. Lewis, and Nandan M. Joshi.
Thomas C. Goldstein argued the cause for respondents in both eases. With him on the brief were Amy Howe, John W Butler, Earl W. Comstock, Alison B. Macdonald, Harvey L. Reiter, Matthew J. Verschelden, and Andrew Jay Schwartzman. William H. Sorrell, Attorney General of Vermont, David Borsykowsky, Assistant Attorney General, and Ellen S. LeVine filed a brief in both cases for respondents State of Vermont et al. Michael K. Kellogg, Sean A. Lev, and James G. Harralson filed a brief in both cases for respondents BellSouth et al. Andrew G. McBride, Eve Klindera Reed, William P. Barr, Michael E. Glover, Edward Shakin, and John P Frantz filed a brief in both cases for respondents Verizon Telephone Companies et al. Mark D. Schneider, Marc A. Goldman, and Jeffrey A. Rackow filed a brief in both cases for respondent MCI, Inc.
Together with No. 04-281, Federal Communications Commission et al. v. Brand X Internet Services et al., also on certiorari to the same court.
Briefs of amici curiae urging reversal in both cases were filed for the Telecommunications Industry Association by Colleen L. Boothby and Andrew M. Brown; and for the Washington Legal Foundation by Daniel J. Popeo and David Price.
Briefs of amici curiae urging affirmance in both cases were filed for the State of New Jersey, Board of Public Utilities, by Peter C. Harvey, Attorney General of New Jersey, Andrea M. Silkowitz, Assistant Attorney General, and Kenneth J. Sheehan, Deputy Attorney General; for AARP et al. by Stacy Canan and Michael Schuster; for the American Civil Liberties Union et al. by Steven R. Shapiro, Christopher A Hansen, Jennifer Stisa Granick, and Marjorie Heins; and for the National Association of Regulatory Utility Commissioners by James Bradford Ramsay.
Justice Thomas
delivered the opinion of the Court.
Title II of the Communications Act of 1934, 48 Stat. 1064, as amended, 47 U. S. C. § 151 et seq., subjects all providers of “telecommunications servicie]” to mandatory common-carrier regulation, § 153(44). In the order under review, the Federal Communications Commission concluded that cable companies that sell broadband Internet service do not provide “telecommunications servic[ej” as the Communications Act defines that term, and hence are exempt from mandatory common-carrier regulation under Title II. We must decide whether that conclusion is a lawful construction of the Communications Act under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984), and the Administrative Procedure Act, 5 U. S. C. § 551 et seq. We hold that it is.
I
The traditional means by which consumers in the United States access the network of interconnected computers that make up the Internet is through “dial-up” connections provided over local telephone facilities. See 345 F. 3d 1120, 1123-1124 (CA9 2003) (cases below); In re Inquiry Concerning High-Speed Access to the Internet Over Cable and Other Facilities, 17 FCC Red. 4798, 4802-4803, ¶ 9 (2002) (hereinafter Declaratory Ruling). Using these connections, consumers access the Internet by making calls with computer modems through the telephone wires owned by local phone companies. See Verizon Communications Inc. v. FCC, 535 U. S. 467, 489-490 (2002) (describing the physical structure of a local telephone exchange). Internet service providers (ISPs), in turn, link those calls to the Internet network, not only by providing a physical connection, but also by offering consumers the ability to translate raw Internet data into information they may both view on their personal computers and transmit to other computers connected to the Internet. See In re Federal-State Joint Board on Universal Service, 13 FCC Red. 11501, 11531, ¶63 (1998) (hereinafter Universal Service Report or Report); P. Huber, M. Kellogg, & J. Thorne, Federal Telecommunications Law 988 (2d ed. 1999) (hereinafter Huber); 345 F. 3d, at 1123-1124. Technological limitations of local telephone wires, however, retard the speed at which data from the Internet may be transmitted through end users’ dial-up connections. Dial-up connections are therefore known as “narrowband,” or slower speed, connections.
“Broadband” Internet service, by contrast, transmits data at much higher speeds. There are two principal kinds of broadband Internet service: cable modem service and Digital Subscriber Line (DSL) service. Cable modem service transmits data between the Internet and users’ computers via the network of television cable lines owned by cable companies. See id., at 1124. DSL service provides high-speed access using the local telephone wires owned by local telephone companies. See WorldCom, Inc. v. FCC, 246 F. 3d 690, 692 (CADC 2001) (describing DSL technology). Cable companies and telephone companies can either provide Internet access directly to consumers, thus acting as ISPs themselves, or can lease their transmission facilities to independent ISPs that then use the facilities to provide consumers with Internet access. Other ways of transmitting high-speed Internet data into homes, including terrestrial- and satellite-based wireless networks, are also emerging. Declaratory Ruling 4802, ¶ 6.
II
At issue in these cases is the proper regulatory classification under the Communications Act of broadband cable Internet service. The Act, as amended by the Telecommunications Act of 1996, 110 Stat. 56, defines two categories of regulated entities relevant to these cases: telecommunications carriers and information-service providers. The Act regulates telecommunications carriers, but not information-service providers, as common carriers. Telecommunications carriers, for example, must charge just and reasonable, nondiscriminatory rates to their customers, 47 U. S. C. §§201-209, design their systems so that other carriers can interconnect with their communications networks, § 251(a)(1), and contribute to the federal “universal service” fund, § 254(d). These provisions are mandatory, but the Commission must forbear from applying them if it determines that the public interest requires it. §§ 160(a), (b). Information-service providers, by contrast, are not subject to mandatory common-carrier regulation under Title II, though the Commission has jurisdiction to impose additional regulatory obligations under its Title I ancillary jurisdiction to regulate interstate and foreign communications, see §§ 151-161.
These two statutory classifications originated in the late 1970’s, as the Commission developed rules to regulate data-processing services offered over telephone wires. That regime, the “Computer II” rules, distinguished between “basic” service (like telephone service) and “enhanced” service (computer-processing service offered over telephone lines). In re Amendment of Section 64-702 of the Commission’s Rules and Regulations (Second Computer Inquiry), 77 F.C.C. 2d 384, 417-423, ¶¶86-101 (1980) (hereinafter. Computer II Order). The Computer II rules defined both basic and enhanced services by reference to how the consumer perceives the service being offered.
In particular, the Commission defined “basic service” as “a pure transmission capability over a communications path that is virtually transparent in terms of its interaction with customer supplied information.” Id., at 420, ¶96. By “pure” or “transparent” transmission, the Commission meant a communications path that enabled the consumer to transmit an ordinary-language message to another point, with no computer processing or storage of the information, other than the processing or storage needed to convert the message into electronic form and then back into ordinary language for purposes of transmitting it over the network— such as via a telephone or a facsimile. Id., at 419-420, ¶¶ 94-95. Basic service was subject to common-carrier regulation. Id., at 428, ¶ 114.
“[Ejnhanced service,” however, was service in which “computer processing applications [were] used to act on the content, code, protocol, and other aspects of the subscriber’s information,” such as voice and data storage services, id., at 420-421, ¶ 97, as well as “protocol conversion” (i. e., ability to communicate between networks that employ different data-transmission formats), id., at 421-422, ¶99. By contrast to basic service, the Commission decided not to subject providers of enhanced service, even enhanced service offered via transmission wires, to Title II common-carrier regulation. Id., at 428-432, ¶¶ 115-123. The Commission explained that it was unwise to subject enhanced service to common-carrier regulation given the “fast-moving, competitive market” in which they were offered. Id., at 434, ¶ 129.
The definitions of the terms “telecommunications service” and “information service” established by the 1996 Act are similar to the Computer II basic- and enhanced-service classifications. “Telecommunications service” — the analog to basic service — is “the offering of telecommunications for a fee directly to the public... regardless of the facilities used.” 47 U. S. C. § 153(46). “Telecommunications” is “the transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received.” § 153(43). “Telecommunications carrier[s]” — those subjected to mandatory Title II common-carrier regulation — are defined as “provider^] of telecommunications services.” §153(44). And “information service” — the analog to enhanced service — is “the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications....” § 153(20).
In September 2000, the Commission initiated a rulemaking proceeding to, among other things, apply these classifications to cable companies that offer broadband Internet service directly to consumers. In March 2002, that rulemaking culminated in the Declaratory Ruling under review in these cases. In the Declaratory Ruling, the Commission con-eluded that broadband Internet service provided by cable companies is an “information service” but not a “telecommunications service” under the Act, and therefore not subject to mandatory Title II common-carrier regulation. In support of this conclusion, the Commission relied heavily on its Universal Service Report See Declaratory Ruling 4821-4822, ¶¶ 36-37 (citing Universal Service Report). The Universal Service Report classified “non-facilities-based” ISPs— those that do not own the transmission facilities they use to connect the end user to the Internet — solely as information-service providers. See Universal Service Report 11533, ¶67. Unlike those ISPs, cable companies own the cable lines they use to provide Internet access. Nevertheless, in the Declaratory Ruling, the Commission found no basis in the statutory definitions for treating cable companies differently from non-facilities-based ISPs: Both offer “a single, integrated service that enables the subscriber to utilize Internet access service... and to realize the benefits of a comprehensive service offering.” Declaratory Ruling 4823, ¶38. Because Internet access provides a capability for manipulating and storing information, the Commission concluded that it was an information service. Ibid.
The integrated nature of Internet access and the high-speed wire used to provide Internet access led the Commission to conclude that cable companies providing Internet access are not telecommunications providers. This conclusion, the Commission reasoned, followed from the logic of the Universal.Service Report. The Report had concluded that, though Internet service “involves data transport elements” because “an Internet access provider must enable the movement of information between customers’ own computers and distant computers with which those customers seek to interact,” it also “offers end users information-service capabilities inextricably intertwined with data transport.” Universal Service Report 11539-11540, ¶ 80. ISPs, therefore, were not “offering... telecommunications... directly to the public,” § 153(46), and so were not properly classified as telecommunications carriers, see id., at 11540, ¶ 81. In other words, the Commission reasoned that consumers use their cable modems not to transmit information “transparently,” such as by using a telephone, but instead to obtain Internet access.
The Commission applied this same reasoning to cable companies offering broadband Internet access. Its logic was that, like non-facilities-based ISPs, cable companies do not “offe[r] telecommunications service to the end user, but rather... merely us[e] telecommunications to provide end users with cable modem service.” Declaratory Ruling 4824, ¶ 41. Though the Commission declined to apply mandatory Title II common-carrier regulation to cable companies, it invited comment on whether under its Title I jurisdiction it should require cable companies to offer other ISPs access to their facilities on common-carrier terms. Id., at 4839, ¶ 72. Numerous parties petitioned for judicial review, challenging the Commission’s conclusion that cable modem service was not telecommunications service. By judicial lottery, the Court of Appeals for the Ninth Circuit was selected as the venue for the challenge.
The Court of Appeals granted the petitions in part, vacated the Declaratory Ruling in part, and remanded to the Commission for further proceedings. In particular, the Court of Appeals vacated the ruling to the extent it concluded that cable modem service was not “telecommunications service” under the Communications Act. It held that the Commission could not permissibly construe the Communications Act to exempt cable companies providing Internet service from Title II regulation. See 345 F. 3d, at 1132. Rather than analyzing the permissibility of that construction under the deferential framework of Chevron, 467 U. S. 837, however, the Court of Appeals grounded its holding in the stare decisis effect of AT&T Corp. v. Portland, 216 F. 3d 871 (CA9 2000). See 345 F. 3d, at 1128-1132. Portland held that cable modem service was a “telecommunications service,” though the court in that case was not reviewing an administrative proceeding and the Commission was not a party to the case. See 216 F. 3d, at 877-880. Nevertheless, Portland’s holding, the Court of Appeals reasoned, overrode the contrary interpretation reached by the Commission in the Declaratory Ruling. See 345 F. 3d, at 1130-1131.
We granted certiorari to settle the important questions of federal law that these cases present. 543 U. S. 1018 (2004).
Ill
We first consider whether we should apply Chevron’s framework to the Commission’s interpretation of the term “telecommunications service.” We conclude that we should. We also conclude that the Court of Appeals should have done the same, instead of following the contrary construction it adopted in Portland.
A
In Chevron, this Court held that ambiguities in statutes within an agency’s jurisdiction to administer are delegations of authority to the agency to fill the statutory gap in reasonable fashion. Filling these gaps, the Court explained, involves difficult policy choices that agencies are better equipped to make than courts. 467 U. S., at 865-866. If a statute is ambiguous, and if the implementing agency’s construction is reasonable, Chevron requires a federal court to accept the agency’s construction of the statute, even if the agency’s reading differs from what the court believes is the best statutory interpretation. Id., at 843-844, and n. 11.
The Chevron framework governs our review of the Commission’s construction. Congress has delegated to the Commission the authority to “execute and enforce” the Communications Act, §151, and to “prescribe such rules and regulations as may be necessary in the public interest to carry out the provisions” of the Act, § 201(b); AT&T Corp. v. Iowa Utilities Bd., 525 U. S. 366, 377-378 (1999). These provisions give the Commission the authority to promulgate binding legal rules; the Commission issued the order under review in the exercise of that authority; and no one questions that the order is within the Commission’s jurisdiction. See Household Credit Services, Inc. v. Pfennig, 541 U. S. 232, 238-239 (2004); United States v. Mead Corp., 533 U. S. 218, 231-234 (2001); Christensen v. Harris County, 529 U. S. 576, 586-588 (2000). Hence, as we have in the past, we apply the Chevron framework to the Commission’s interpretation of the Communications Act. See National Cable & Telecommunications Assn., Inc. v. Gulf Power Co., 534 U. S. 327, 333-339 (2002); Verizon, 535 U. S., at 501-502.
Some of the respondents dispute this conclusion, on the ground that the Commission’s interpretation is inconsistent with its past practice. We reject this argument. Agency inconsistency is not a basis for declining to analyze the agency’s interpretation under the Chevron framework. Unexplained inconsistency is, at most, a reason for holding an interpretation to be an arbitrary and capricious change from agency practice under the Administrative Procedure Act. See Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 46-57 (1983). For if the agency adequately explains the reasons for a reversal of policy, “change is not invalidating, since the whole point of Chevron is to leave the discretion provided by the ambiguities of a statute with the implementing agency.” Smiley v. Citibank (South Dakota), N. A., 517 U. S. 735, 742 (1996); see also Rust v. Sullivan, 500 U. S. 173, 186-187 (1991); Barnhart v. Walton, 535 U. S. 212, 226 (2002) (Scalia, J., concurring in part and concurring in judgment). “An initial agency interpretation is not instantly carved in stone. On the contrary, the agency... must consider varying interpretations and the wisdom of its policy on a continuing basis,” Chevron, supra, at 863-864, for example, in response to changed factual circumstances, or a change in administrations, see State Farm, supra, at 59 (Rehnquist, J., concurring in part and dissenting in part). That is no doubt why in Chevron itself, this Court deferred to an agency interpretation that was a recent reversal of agency policy. See 467 U. S., at 857-858. We therefore have no difficulty concluding that Chevron applies.
B
The Court of Appeals declined to apply Chevron because it thought the Commission’s interpretation of the Communications Act foreclosed by the conflicting construction of the Act it had adopted in Portland. See 345 F. 3d, at 1127-1132. It based that holding on the assumption that Portland’s construction overrode the Commission’s, regardless of whether Portland had held the statute to be unambiguous. 345 F. 3d, at 1131. That reasoning was incorrect.
A court’s prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion. This principle follows from Chevron itself. Chevron established a “presumption that Congress, when it left ambiguity in a statute meant for implementation by an agency, understood that the ambiguity would be resolved, first and foremost, by the agency, and desired the agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows.” Smiley, supra, at 740-741. Yet allowing a judicial precedent to foreclose an agency from interpreting an ambiguous statute, as the Court of Appeals assumed it could, would allow a court’s interpretation to override an agency’s. Chevron’s premise is that it is for agencies, not courts, to fill statutory gaps. See 467 U. S., at 843-844, and n. 11. The better rule is to hold judicial interpretations contained in precedents to the same demanding Chevron step one standard that applies if the court is reviewing the agency’s construction on a blank slate: Only a judicial precedent holding that the statute unambiguously forecloses the agency’s interpretation, and therefore contains no gap for the agency to fill, displaces a conflicting agency construction.
A contrary rule would produce anomalous results. It would mean that whether an agency’s interpretation of an ambiguous statute is entitled to Chevron deference would turn on the order in which the interpretations issue: If the court’s construction came first, its construction would prevail, whereas if the agency’s came first, the agency’s construction would command Chevron deference. Yet whether Congress has delegated to an agency the authority to interpret a statute does not depend on the order in which the judicial and administrative constructions occur. The Court of Appeals’ rule, moreover, would “lead to the ossification of large portions of our statutory law,” Mead, 533 U. S., at 247 (Scalia, J., dissenting), by precluding agencies from revising unwise judicial constructions of ambiguous statutes. Neither Chevron nor the doctrine of stare decisis requires these haphazard results.
The dissent answers that allowing an agency to override what a court believes to be the best interpretation of a statute makes “judicial decisions subject to reversal by executive officers.” Post, at 1016 (opinion of Scalia, J.). It does not. Since Chevron teaches that a court’s opinion as to the best reading of an ambiguous statute an agency is charged with administering is not authoritative, the agency’s decision to construe that statute differently from a court does not say that the court’s holding was legally wrong. Instead, the agency may, consistent with the court’s holding, choose a different construction, since the agency remains the authoritative interpreter (within the limits of reason) of such statutes. In all other respects, the court’s prior ruling remains binding law (for example, as to agency interpretations to which Chevron is inapplicable). The precedent has not been “reversed” by the agency, any more than a federal court’s interpretation of a State’s law can be said to have been “reversed” by a state court that adopts a conflicting (yet authoritative) interpretation of state law.
The Court of Appeals derived a contrary rule from a mistaken reading of this Court’s decisions. It read Neal v. United States, 516 U. S. 284 (1996), to establish that a prior judicial construction of a statute categorically controls an agency’s contrary construction. 345 F. 3d, at 1131-1132; see also post, at 1016, n. 11 (Scalia, J., dissenting). Neal established no such proposition. Neal declined to defer to a construction adopted by the United States Sentencing Commission that conflicted with one the Court previously had adopted in Chapman v. United States, 500 U. S. 453 (1991). Neal, supra, at 290-295. Chapman, however, had held the relevant statute to be unambiguous. See 500 U. S., at 463 (declining to apply the rule of lenity given the statute’s clear language). Thus, Neal established only that a precedent holding a statute to be unambiguous forecloses a contrary agency construction. That limited holding accorded with this Court’s prior decisions, which had held that a court’s interpretation of a statute trumps an agency’s under the doctrine of stare decisis only if the prior court holding “determined a statute’s clear meaning.” Maislin Industries, U S., Inc. v. Primary Steel, Inc., 497 U. S. 116, 131 (1990) (emphasis added); see also Lechmere, Inc. v. NLRB, 502 U. S. 527, 536-537 (1992). Those decisions allow a court’s prior interpretation of a statute to override an agency’s interpretation only if the relevant court decision held the statute unambiguous.
Against this background, the Court of Appeals erred in refusing to apply Chevron to the Commission’s interpretation of the definition of “telecommunications service,” 47 U. S. C. § 153(46). Its prior decision in Portland held only that the best reading of § 153(46) was that cable modem service was a “telecommunications service,” not that it was the only permissible reading of the statute. See 216 F. 3d, at 877-880. Nothing in Portland held that the Communications Act unambiguously required treating cable Internet providers as telecommunications carriers. Instead, the court noted that it was “not presented with a case involving potential deference to an administrative agency’s statutory construction pursuant to the Chevron doctrine,” id., at 876; and the court invoked no other rule of construction (such as the rule of lenity) requiring it to conclude that the statute was unambiguous to reach its judgment. Before a judicial construction of a statute, whether contained in a precedent or not, may trump an agency’s, the court must hold that the statute unambiguously requires the court’s construction. Portland did not do so.
As the dissent points out, it is not logically necessary for us to reach the question whether the Court of Appeals misapplied Chevron for us to decide whether the Commission acted lawfully. See post, at 1019-1020 (opinion of Scalia, J.). Nevertheless, it is no “great mystery” why we are reaching the point here. Post, at 1019. There is genuine confusion in the lower courts over the interaction between the Chevron doctrine and stare decisis principles, as the petitioners informed us at the certiorari stage of this litigation. See Pet. for Cert, of Federal Communications Commission et al. in No. 04-281, pp. 19-23; Pet. for Cert. of National Cable & Telecomm. Assn, et al. in No. 04-277, pp. 22-29. The point has been briefed. See Brief for Federal Petitioners 38-44; Brief for Cable-Industry Petitioners 30-36. And not reaching the point could undermine the purpose of our grant of certiorari: to settle authoritatively whether the Commission’s Declaratory Ruling is lawful. Were we to uphold the Declaratory Ruling without reaching the Chevron point, the Court of Appeals could once again strike down the Commission’s rule based on its Portland decision. Portland (at least arguably) could compel the Court of Appeals once again to reverse the Commission despite our decision, since our conclusion that it is reasonable to read the Communications Act to classify cable modem service solely as an “information service” leaves untouched Portland's holding that the Commission’s interpretation is not the best reading of the statute. We have before decided similar questions that were not, strictly speaking, necessary to our disposition. See, e. g., Agostini v. Felton, 521 U. S. 203, 237 (1997) (requiring the Courts of Appeals to adhere to our directly controlling precedents, even those that rest on reasons rejected in other decisions); Roper v. Simmons, 543 U. S. 551, 628-629 (2005) (Scalia, J., dissenting) (criticizing this Court for not reaching the question whether the Missouri Supreme Court erred by failing to follow directly controlling Supreme Court precedent, though that conclusion was not necessary to the Court’s decision). It is prudent for us to do so once again today.
IV
We next address whether the Commission’s construction of the definition of “telecommunications service,” 47 U. S. C. §153(46), is a permissible reading of the Communications Act under the Chevron framework. Chevron established a familiar two-step procedure for evaluating whether an agency’s interpretation of a statute is lawful. At the first step, we ask whether the statute’s plain terms “directly ad-dres[s] the precise question at issue.” 467 U. S., at 843. If the statute is ambiguous on the point, we defer at step two to the agency’s interpretation so long as the construction is “a reasonable policy choice for the agency to make.” Id., at 845. The Commission’s interpretation is permissible at both steps.
A
We first set forth our understanding of the interpretation of the Communications Act that the Commission embraced. The issue before the Commission was whether cable companies providing cable modem service are providing a “telecommunications service” in addition to an “information service.”
The Commission first concluded that cable modem service is an “information service,” a conclusion unchallenged here. The Act defines “information service” as “the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications____” § 158(20). Cable modem service is an information service, the Commission reasoned, because it provides consumers with a comprehensive capability for manipulating information using the Internet via high-speed telecommunications. That service enables users, for example, to browse the World Wide Web, to transfer files from file archives available on the Internet via the “File Transfer Protocol,” and to access e-mail and Usenet newsgroups. Declaratory Ruling 4821, ¶ 37; Universal Service Report 11537, ¶ 76. Like other forms of Internet service, cable modem service also gives users access to the Domain Name System (DNS). DNS, among other things, matches the Web page addresses that end users type into their browsers (or “click” on) with the Internet Protocol (IP) addresses of the servers containing the Web pages the users wish to aecess. Declaratory Ruling 4821-4822, ¶ 37. All of these features, the Commission concluded, were part of the information service that cable companies provide consumers. Id., at 4821-4823, ¶¶ 36-38; see also Universal Service Report 11536-11539, ¶¶ 75-79.
At the same time, the Commission concluded that cable modem service was not “telecommunications service.” “Telecommunications service” is “the offering of telecommunications for a fee directly to the public.” 47 U. S. C. § 153(46). “Telecommunications,” in turn, is defined as “the transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received.” § 153(48). The Commission conceded that, like all information-service providers, cable companies use “telecommunications” to provide consumers with Internet service; cable companies provide such service via the high-speed wire that transmits signals to and from an end user’s computer. Declaratory Ruling 4823, ¶ 40. For the Commission, however, the question whether cable broadband Internet providers “offer” telecommunications involved more than whether telecommunications was one necessary component of cable modem service. Instead, whether that service also includes a telecommunications “offering” “turn[ed] on the nature of the functions the end user is offered,” id., at 4822, ¶ 38 (emphasis added), for the statutory definition of “telecommunications service” does not “res[t] on the particular types of facilities used,” id., at 4821, ¶ 35; see § 153(46) (definition of “telecommunications service” applies “regardless of the facilities used”).
Seen from the consumer’s point of view, the Commission concluded, cable modem service is not a telecommunications offering because the consumer uses the high-speed wire always in connection with the information-processing capabilities provided by Internet access, and because the transmission is a necessary component of Internet access: “As provided to the end user the telecommunications is part and parcel of cable modem service and is integral to its other capabilities.” Declaratory Ruling 4823, ¶ 39. The wire is used, in other words, to access the World Wide Web, newsgroups, and so forth, rather than “transparently” to transmit and receive ordinary-language messages without computer processing or storage of the message. See supra, at 976 (noting the Computer II notion of “transparent” transmission). The integrated character of this offering led the Commission to conclude that cable modem service is not a “stand-alone,” transparent offering of telecommunications. Declaratory Ruling 4823-4825, ¶¶ 41-43.
B
This construction passes Chevron's first step. Respondents argue that it does not, on the ground that cable companies providing Internet service necessarily “offe[r]” the underlying telecommunications used to transmit that service. The word “offering” as used in § 153(46), however, does not unambiguously require that result. Instead, “offering” can reasonably be read to mean a “stand-alone” offering of telecommunications, i. e., an offered service that, from the user’s perspective, transmits messages unadulterated by computer processing. That conclusion follows not only from the ordinary meaning of the word “offering,” but also from the regulatory history of the Communications Act.
1
Cable companies in the broadband Internet service business “offe[r]” consumers an information service in the form of Internet access and they do so “via telecommunications,” § 153(20), but it does not inexorably follow as a matter of ordinary language that they also “offe[r]” consumers the high-speed data transmission (telecommunications) that is an input used to provide this service, § 153(46). We have held that where a statute’s plain terms admit of two or more reasonable ordinary usages, the Commission’s choice of one of them is entitled to deference. See Verizon, 535 U. S., at 498 (deferring to the Commission’s interpretation of the term “cost” by reference to an alternative linguistic usage defined by what “[a] merchant who is asked about ‘the cost of providing the goods’ ” might “reasonably” say); National Railroad Passenger Corporation v. Boston & Maine Corp., 503 U. S. 407, 418 (1992) (agency construction entitled to deference where there were “alternative dictionary definitions of the word” at issue). The term “offe[r]” as used in the definition of telecommunications service, §153(46), is ambiguous in this way.
It is common usage to describe what a company “offers” to a consumer as what the consumer perceives to be the integrated finished product, even to the exclusion of discrete components that compose the product, as the dissent concedes. See post, at 1006-1007 (opinion of Scalia, J.). One might well say that a car dealership “offers” cars, but does not “offer” the integrated major inputs that make purchasing the ear valuable, such as the engine or the chassis. It would, in fact, be odd to describe a car dealership as “offering” consumers the car’s components in addition to the car itself. Even if it is linguistically permissible to say that the car dealership “offers” engines when it offers cars, that shows, at most, that the term “offer,” when applied to a commercial transaction, is ambiguous about whether it describes only the offered finished product, or the product’s discrete components as well. It does not show that no other usage is permitted.
The question, then, is whether the transmission component of cable modem service is sufficiently integrated with the finished service to make it reasonable to describe the two as a single
Question: What type of decision did the court make?
A. opinion of the court (orally argued)
B. per curiam (no oral argument)
C. decrees
D. equally divided vote
E. per curiam (orally argued)
F. judgment of the Court (orally argued)
G. seriatim
Answer:
|
songer_usc1
|
26
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
DISTRICT DIRECTOR OF INTERNAL REVENUE, Appellant, v. LONG BEACH JUNIOR CHAMBER OF COMMERCE, Appellee.
No. 18704.
United States Court of Appeals Ninth Circuit.
Feb. 7, 1964.
Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, Harry Baum and Gilbert E. Andrews, Attys., Dept, of Justice, Washington, D. C., Francis C. Whelan, U. S. Atty., Loyal E. Keir, Asst. U. S. Atty., Chief, Tax Section, and Richard G. Sherman, Asst. U. S. Atty., Los An-geles, Cal., for appellant.
Riedman & Dalessi, and James W. Ed-son, Long Beach, Cal., for appellee.
Before ORR, JERTBERG and BROWNING, Circuit Judges.
ORR, Circuit Judge:
The trial court found that the Long Beach Junior Chamber of Commerce was a “civic or community membership association” within the meaning of section 4233(a) (3) of the Internal Revenue Code of 1954, and thus was entitled to the admissions tax exemption provided in that section. The government here challenges that finding.
As set forth in its Constitution and ByLaws, the purpose of the Long Beach Junior Chamber of Commerce is:
“to provide the younger business and professional men of the City of Long Beach a medium for training in citizenship and Chamber of Commerce work, to promote and publicize the civic, industrial, recreational, and educational activities of the community, to secure and disseminate accurate information relating thereto, to oppose legislation unfavorable thereto, and to promote and support legislation favorable thereto.
“The organization shall be nonpartisan in all respects and shall not at any time endorse any candidate or individual for public office; and it shall be the policy of this organization to refrain from endorsing or opposing any and all definitely partisan measures.”
The activities of the taxpayer have included the following: “Boys Junior Olympics”, an annual boys track meet; “Wings Over the World”, an activity designed to publicize aviation; a Christmas Tree Lighting Contest; “Operation Phone Santa”, where members of the organization take calls from children to Santa Claus; “My True Security”, an essay contest; good citizenship awards; the “Miss Welcome to Long Beach Contest”, where a girl to welcome beauty contestants to Long Beach for the Miss Universe Contest is selected; “Christmas Cheer Clearing House”, where food and gifts are gathered and distributed to needy families during the Christmas season ; social surveys in the area requested by the City of Long Beach and other governmental agencies; programs to combat juvenile delinquency such as having the Wink Martindale Television Show held at the Long Beach Municipal Auditorium for several weeks, and publicizing same in Long Beach schools; and sponsorship of shows in which Duke Ellington, Fred Waring, Spade Cooley, and others appeared. No profit, commission, or bonus has inured to the benefit of any member of the Long Beach Junior Chamber of Commerce from these activities.
The statute in question here reads:
Ҥ 4231. Imposition of tax
“There is hereby imposed:
“(1) General.—
“(A) Single admission.—
“A tax of 1 cent for each 10 cents or major fraction thereof of the amount in excess of $1 paid for admission to any place.
******
Ҥ 4233. Exemptions
“(a) Allowance._
“No tax shall be imposed under section 4231 in respect of:
******
„ _ . . , ,. (3) Certain musical or dramatic performances.
^ “Any admissions to musical or dramatic performances conducted by a civic or community membership association if no part of the net earnings thereof inures to the benefit of any stockholders or members of such association.”
The performance on which the government claims that the admissions tax was described as follows in the trial court’s proper was findings of fact.
“On January 29, and 30, and February 1, 2 and 3 of 1959 the plaintiff sponsored at the Long Beach California Municipal Auditorium an American version of the Oberam-mergau Passion Play. The perform-anee was presented by a professional theatrical group, Consolidated Concerts Corporation, 30 Rockefeller Plaza, New York, New York, for a consideration of $7,500. The net proceeds, if any, after payment of this consideration and other necessary expenses would go to the Long Beach Junior Chamber of Commerce ‘Youth Activities Fund’.”
The government contends that “the term ‘civic or community membership association’ as used in Section 4233 (a) (3) has reference only to those nonprofit membership associations which are organized and operated primarily for the purpose of conducting musical or dramatic performances for the cultural benefit of the members of the association, such as civic music associations whose members pay annual dues for the right to attend a senf f cor|ce.rtjs; “ requires a rather tortuous twisting of the plain meaning of the statute’s words to reach result contended for by the gov. ernment, and our conclusion is that it says no such thing. The term “civic or community” contemplates an association formed for purposes beneficial to the cornmunity as a whole; one in which members of the community cooperate for cornmunity ends. Taxpayer’s purposes and prior activities indicate that it is precisely the type of association described in the statute.
The several exemptions from the admissions tax for non-profit musical and dramatic productions contained in section 4233 indicate that Congress intended to encourage such productions by eliminating the economic burden of the admissions tax on them. In view of this policy, there is no reason to engraft onto the statute a limitation denying the exemption to a civic or community membership association formed for general purposes which also engages in musical or dramatic productions. The “primary purpose” test urged by the government would deny the exemption to those associations which are most public in nature and limit its benefits to those associations whose activities are more oriented toward benefiting their members, an<^ no^ community as a whole,
We find nothing in the legislative his-tory which would justify ignoring the clear and unambiguous language of the section, even assuming we would be free to do so.
Affirmed.
. See Erie Endowment v. United States, 316 F.2d 151 (3d Cir. 1963); United States v. Pickwick Electric Membership Corp., 158 F.2d 272 (6th Cir. 1946); and Debs Memorial Radio Fund v. Commissioner, 148 F.2d 948 (2d Cir. 1945), all construing the phrase “civic leagues or organizations” which appears in § 501 (c) (4) of the Internal Revenue Code of 1954.
. Int.Rev.Code of 1954, § 4233(a) (1) (A) (iv), (a) (3), (a) (7).
. Compare United States v. Public Util. Comm. of Calif., 345 U.S. 295, 315, 73 S.Ct. 706, 97 L.Ed. 1020 (1953), and Gilbert v. Commissioner, 241 F.2d 491 (9th Cir. 1957), with Harrison v. Northern Trust Co., 317 U.S. 476, 479, 63 S.Ct. 361, 87 L.Ed. 407 (1943), and United States v. American Trucking Ass’n, 310 U.S. 534, 543-544, 60 S.Ct. 1059, 84 L.Ed. 1345 (1940).
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_jurisdiction
|
A
|
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 it had jurisdiction to hear this case?" 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 opinion discusses challenges to the jurisdiction of the court to hear several different issues and the court ruled that it had jurisdiction to hear some of the issues but did not have jurisdiction to hear other issues, answer "Mixed answer".
Mary BERRY and Normil Berry v. Peter CURRERI, Appellant.
No. 86-3592.
United States Court of Appeals, Third Circuit.
Argued Dec. 9, 1987.
Decided Jan. 26, 1988.
Diane Trace Warlick (argued), Law Offices of R. Eric Moore, Christiansted, St. Croix, Virgin Islands, for appellant, Peter Curreri.
Henry V. Carr, III (argued), Murnan and Carr, St. Thomas, Virgin Islands, for appel-lees, Mary Berry and Normil Berry.
Before GIBBONS, Chief Judge, and STAPLETON and MANSMANN, Circuit Judges.
OPINION OF THE COURT
GIBBONS, Chief Judge:
Peter Curreri, a physician practicing as a gynecologist in the Virgin Islands, appeals from a judgment in favor of Mary Berry and Normil Berry in their medical malpractice case against him, and from the denial of his post-trial motions for judgment notwithstanding the verdict, for a new trial, and for a remittitur. We conclude that a new trial should have been granted, and thus we will reverse.
I.
Mary Berry consulted Dr. Curreri in 1980 with respect to a gynecological problem, and was advised by him that she should undergo a total abdominal hysterectomy. That surgery was performed by Dr. Curr-eri at Knud Hansen Memorial Hospital, St. Thomas, Virgin Islands, on September 2, 1980. Within three or four days after the surgery, Mary Berry developed severe abdominal pain. Around September 11, a quantity of fecal matter burst through her vagina. She also developed an elevated temperature. Dr. Curreri diagnosed her condition as a recto-vaginal fistula. She was released from the hospital on September 15, 1980. Thereafter she was admitted to Pavis Hospital in Santurce, Puerto Rico, where her condition was accurately diagnosed as a small bowel fistula. The fistula was surgically located and repaired.
Pursuant to the Virgin Islands Health Care Providers Malpractice Act, 27 V.I.C. § 166i, Mary Berry and her husband timely filed with the Medical Malpractice Action Review Committee in the Office of the Commissioner of Health (the Committee) a proposed complaint in which she sought full damages and in which Mr. Berry sought damages for loss of consortium. The allegations of negligence against Dr. Curreri in the proposed complaint are as follows:
24. The defendant was negligent in failing to possess and employ the skills, training and knowledge which he proffered to possess or in negligently failing to exercise such skills, training and knowledge on behalf of the plaintiff Mary Berry.
25. The defendant was negligent in his diagnosis of the plaintiff Mary Berry’s condition and should have known or had reason to know, that the discharge from the plaintiffs vagina was from a small bowel rather than a recto-vaginal fistula.
26. The defendant was negligent in that he failed and neglected to provide proper treatment and care of the plaintiff Mary Berry’s medical condition.
27. The defendant was negligent in that he released plaintiff Mary Berry from the hospital in direct contravention of the medical indications she evidenced at the time.
28. The defendant’s failure and neglect to use due, reasonable or proper skill and care in performing his services on behalf of plaintiff Mary Berry was so gross as to evidence a willful and wanton disregard for the plaintiff Mary Berry’s health, welfare and safety.
Nowhere in the proposed complaint is any reference made to any negligence on Dr. Curreri’s part in diagnosing the need for an abdominal hysterectomy, or in performing that surgery. The quoted allegations refer solely to the diagnosis and treatment of the post-operative complications from that surgery.
Pursuant to 27 V.I.C. § 166i, the Committee selected Dr. Maximo Ruiz, a St. Croix gynecologist, to render the expert medical opinion on the complaint. He reviewed the proposed complaint and medical records obtained from Knud Hansen Memorial Hospital and Pavia Hospital, and after reciting Mary Berry’s course of treatment, opined:
I have to conclude:
1. that this patient had an excellent medical care, and there is no evidence that this case has been neglected during her stay in K.H.M.H. judging by the daily well documented progress notes, order of medication, consultation requested and answered on time, the follow-up of the attending physician and surgical consultant, the summary discharge explained in detail, the course of the patient in hospital, including daily contact of Dr. Curreri with the patient attending surgeon in Puerto Rico regarding the patient’s condition, even though the patient choose [sic] to go to another surgeon, but unfortunately a very unhappy post surgical complication occurred, but a very good end result.
2. Let me emphasize that there are some potential hazards in this kind of surgical procedure due to well recognized complications, the most commonly encountered risks are infection and bleeding; more serious risks are possibility of near-by organs injury such as bladder, urether, and bowel.
3. The treatment of small or large bowel vaginal fistula is surgical with some variations in the repair depending on the size of what segment of the bowel is involved, condition and lengths of time in which fistula has been developed, so it is important to establish a radiologic diagnosis if possible. The management priority when the patient is debilitated with malnutrition states, the patient should be first medical to correct these abnormalities, otherwise it will be a poor surgical risk.
4. Some entero recto-vaginal fistula may follow pelvic abscess, particularly if the bowel adheres to the vaginal cuff and forms part of the inflamatory process of the wall of the abscess.
The quoted part of Dr. Ruiz’s report to the committee makes no mention of the diagnosis or need for the abdominal hysterectomy or of the manner in which the surgery was performed.
Under the Health Care Providers Malpractice Act, the conclusion of the Committee’s expert is not binding on the plaintiff. The Berrys therefore filed in the District Court of the Virgin Islands a complaint identical to the proposed complaint filed with the Committee. Dr. Curreri answered, and the case was eventually listed for made a motion in limine to preclude the Berrys from introducing evidence that the hysterectomy was unnecessary or performed improperly. In making that motion Dr. Curreri relied on 27 V.I.C. § 166i(b), which in relevant part provides:
No action against a health care provider may be commenced in court before the claimant’s proposed complaint has been filed with the Committee and the Committee has received the expert opinion as required by this section....
The district court denied the motion in limine, and evidence eventually was admitted on the diagnosis of need for a hysterectomy and on the manner of performance of the surgery. In ruling on the motion in limine the district court did not read the proposed complaint as alleging improper diagnosis. Instead, the court concluded that the expert, Dr. Ruiz, must have so read it, since he addressed the propriety of the diagnosis in his report. Although the court’s ruling from the bench was not specific, apparently the court’s reference was to the recital of Mary Berry’s course of treatment:
After reviewing the entire document submitted to me: This 32 year P4 was admitted in K.H.M.H. on September 1, 1980 for elective surgery because of fibroid uterus and adenomyosis, associated symptoms of dysmenorrhea, dyspareunia and low backache. Patient underwent TAH and prophylactic appendectomy on September 2, 1980. The surgical and pathologic report confirmed the admitting diagnosis.
The Berrys contend that this recital is an expression of an expert opinion that the diagnosis and surgery were proper, and that the district court was therefore justified in concluding that these claims had been submitted to the Committee.
We disagree. Section 166i(b) provides, conjunctively, that a complaint must be filed with the Committee and that the Committee must obtain an expert opinion. The purpose of the Committee “[is] to arrange for expert review of all malpractice claims before actions based upon such claims are commenced in court.” 27 V.I.C. § 166i(a). It is plain, therefore, that the complaint must set forth a specific claim or claims of malpractice, and that an expert opinion must be obtained on each claim. Here the complaint did not allege malpractice in diagnosing the need for a hysterectomy, or in the performance of that surgery. Thus there was no occasion for Dr. Ruiz to address such a claim. Moreover, the language in which he described the diagnosis and surgery clearly is no more than that, describing, accurately, the contents of medical records, without endorsing their contents.
As noted above, evidence was submitted respecting Dr. Curreri’s diagnosis and treatment. Moreover, the court explicitly submitted to the jury claims of misdiagnosis and of negligent surgery. If, therefore, section 166i(b) limits the subject matter jurisdiction of the district court to consider medical malpractice claims, a new trial must be awarded. The Berrys do not dispute that the statute means what it says, and the cases construing it have treated the Committee filing requirement as jurisdictional. Saludes v. Ramos, 19 V.I. 544, 547 (D.V.I.1983), vacated and remanded on other grounds, 744 F.2d 992 (3d Cir.1984); Quinones v. Charles Harwood Memorial Hospital, 573 F.Supp. 1101, 1103 (D.V.I.1983). A strict reading of the language “[n]o action against a health care provider may be commenced in a court before the claimant’s proposed complaint has been filed with the Committee” is, moreover, entirely consistent with the overall legislative intention animating the Malpractice Act. A principal feature of that act is that the Government of the Virgin Islands procures a group insurance policy for all Virgin Islands health care providers, the premiums of which are paid, in part, by public funds. 27 V.I.C. § 166e. The act limits the amount of an attorney’s contingent fee. 27 V.I.C. § 166f. It also limits the amount of recovery. 27 V.I.C. § 166b. The Committee review process is designed to eliminate claims lacking merit and encourage prompt settlement of meritorious claims. In this context, reading section 166i(b) as anything less than a limitation on the subject matter jurisdiction of the district court would be inconsistent with the overall statutory objectives.
II.
Dr. Curreri challenges the district court’s rulings in several other respects, all of which bear upon the amount of the judgment. The jury verdict awarded Mary Berry $300,000 and Normil Berry $25,000. A judgment was entered “[t]hat plaintiffs Mary Berry and Normil Berry recover from defendant Peter Curreri the sum of $300,000 and $25,000, respectively, together with costs, including reasonable attorneys fees.” Dr. Curreri’s challenges are predicated on 27 V.I.C. § 166b which in relevant part provides:
The total amount recoverable for any injury of a patient may not exceed two hundred and fifty thousand dollars ($250,000) plus actual expenses up to the time of trial not paid or payable or reimbursed from any other source for reasonable and necessary medical care, custodial care and/or rehabilitation services for each anticipated year of need; and lost earnings.
Dr. Curreri contends: (1) that the $300,000 judgment in favor of Mrs. Berry exceeds the statutory maximum; (2) that in applying the statutory maximum the amount awarded to Mr. Bferry for loss of consortium must be included; and (3) the statutory maximum includes any award of attorneys fees. In support of the third contention Dr. Curreri points to the fact that the Health Care Providers Malpractice Act deals specifically with attorneys fees, by imposing limits on the percentage of the recovery an attorney may charge as a contingency fee. 27 V.I.C. § 166f.
The Berrys respond: (1) that the $300,-000 award to Mrs. Berry is based on a general verdict which may include a permissible award, above $250,000 for lost wages; (2) that 27 V.I.C. § 166b does not modify 5 V.I.C. § 541(b) which vests discretion in the district court to award fees to the prevailing party; and (3) that the $250,-000 limitation of recovery in 27 V.I.C. § 166b is in any event unconstitutional.
Since we have held in Part I that a new trial is required, Dr. Curreri’s challenges to the amount of the judgment are, for purposes of the instant appeal, moot. Moreover, although the judgment provides for a fee award to the prevailing party, the amount of siich an award has not been quantified. Nevertheless, because we are remanding for a new trial, and some of the issues raised by Dr. Curreri may arise in the course of that trial, it is appropriate to give guidance on them.
The Berrys are certainly correct that lost earnings may be recovered in addition to any damages to which the $250,-000 limit in section 166b applies. Since, however, the $250,000 limit is an essential feature of the legislative scheme for stabilizing the cost of malpractice insurance, care must be taken to be sure that a general verdict does not include an amount of damage prohibited by that section. Thus in any medical malpractice case in which the plaintiff seeks to recover lost earnings and other damages, the court should not submit the case to the jury in a manner which results in a general verdict. Special verdict interrogatories should separate the claim for lost earnings from the claim for other damages.
As to Mr. Berry’s claim for loss of consortium, the plain language of section 166b suggests that it is included in the $250,000 limit on recovery. Mr. Berry’s claim is wholely derivative. It stands or falls on the malpractice claim of Mrs. Berry. The Berrys have not called to our attention any authority or legislative history suggesting otherwise.
The attorneys fee question has been addressed by this court in a closely analogous context. In Baptiste v. Government of the Virgin Islands, 529 F.2d 100, 102-03 (3d Cir.1976), the court pronounced dicta to the effect that the $25,000 limit in the Virgin Islands Tort Claims Act, 33 V.I.C. § 3911(c), applied to a judgment for costs, including attorneys fees awarded to the prevailing party. The Berrys point out that the language in section 166b differs from that in the Tort Claims Act, and thus that the legislature may have intended a different result. On the other hand, a construction of the statute which permitted the shifting of fees to a losing health care provider in excess of the maximum recovery specified in section 166b would appear to be inconsistent with the legislature’s overall objective of stabilizing the cost of malpractice insurance; a cost which is borne in significant amount by the Government of the Virgin Islands.
The entire cost of the Tort Claims Act is borne by that Government, which made a legislative decision to limit its exposure in any judgment to $25,000. The Government’s interest in the Health Providers Malpractice Act is not identical, but it is sufficiently similar that the Baptiste interpretation should apply to it as well as the Tort Claims Act. That interpretation of section 166b is suggested, as well, by the inclusion in the Health Care Providers Malpractice Act of limitations on contingent fees as percentages “of the plaintiffs’ recovery.” 27 V.I.C. § 166f.
The Berrys’ constitutional objection to section 166b is that by placing a maximum on the amount of damages which a jury may award in a personal injury action the Virgin Islands Legislature violated the civil jury trial provision of the Seventh Amendment. In support of the Seventh Amendment argument, the Berrys point to Boyd v. Bulala, 647 F.Supp. 781, 788-89 (D.W.Va.1986), which holds that a Virginia statute imposing a damage limitation on jury verdicts in medical malpractice eases in a trial in a federal court violates the Seventh Amendment. The Boyd court relied on Byrd v. Blue Ridge Rural Electric Corp., 356 U.S. 525, 537, 78 S.Ct. 893, 900, 901, 2 L.Ed.2d 953 (1958), and Dimick v. Schiedt, 293 U.S. 474, 486, 55 S.Ct. 296, 301, 79 L.Ed. 603 (1935), both of which refer to the factfinding role of juries in federal courts. This contention was never made to, and thus not addressed by, the district court. It is advanced here as a ground for affirming the judgment despite its inconsistency with section 166b. Since we are setting aside the judgment on other grounds there is no reason for addressing a legal contention which was not made in the trial court and which cannot affect the outcome of the appeal. Our decision not to consider the Seventh Amendment contention should not be construed as any endorsement, even tacitly, of the view of the Boyd court on that issue.
III.
Dr. Curreri has also objected to the district court’s instruction in several respects. Since we have granted a new trial which will be limited to the malpractice claims presented to the Committee, the instructions on retrial will be different. There is no reason, therefore, to address these objections on this appeal.
IV.
The submission to the jury of claims of malpractice never presented to the Committee violated 27 V.I.C. § 166i(b), and this error requires a new trial. The judgment appealed from will therefore be reversed and the case remanded to the trial court for proceedings consistent with this opinion.
Question: Did the court determine that it had jurisdiction to hear this case?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_applfrom
|
A
|
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).
AMARILLO BRANCH OF the NATIONAL ASSOCIATION FOR the ADVANCEMENT OF COLORED PEOPLE et al., Plaintiffs-Appellants, v. AMARILLO INDEPENDENT SCHOOL DISTRICT, Defendant-Appellee.
No. 71-1353.
United States Court of Appeals, Fifth Circuit.
June 9, 1971.
Walter P. Wolfram, Amarillo, Tex., for plaintiffs-appellants.
R. A. Wilson, Underwood, Wilson, Sutton, Heare & Berry, Amarillo, Tex., for defendant-appellee.
Before GEWIN, GOLDBERG and DYER, Circuit Judges.
BY THE COURT:
The finding of the District Court that the rebuilding of Amarillo High School at the proposed location in Southwest Amarillo, rather than at the original downtown location (where the school was destroyed by fire), does not serve to perpetuate or re-establish the dual system is clearly supported by the record. Swann v. Charlotte-Mecklenburg Board of Education, April 20, 1971, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554.
Affirmed.
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
|
songer_genapel1
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
FULLER v. HOFFERBERT.
No. 11602.
United States Court of Appeals Sixth Circuit.
May 29, 1953.
H. Vincent E. Mitchell, Cleveland, Ohio, McAfee, Grossman, Taplin, Hanning, Newcomer & Hazlett, Cleveland, Ohio, on brief, for appellant.
Alonzo W. Watson, Washington, D. C., Charles S. Lyon, Ellis N. Slack and Helen Goodner, Washington, D. C., John J. Kane, Jr., Cleveland, Ohio, on brief, for appellee.
Before ALLEN, McALLISTER, and MILLER, Circuit Judges.
McAllister, circuit judge.
Norman C. Fuller brought suit for refund of income tax paid for the year 1944, basing his claim upon Title 26 U.S.C.A. § 116(a) (1) and (3), and § 119(c) (3). He contends that during the taxable year of 1944, he was a bona fide resident of Soviet Russia and that, under the provisions of the statute above mentioned and the Treasury Regulations promulgated thereunder, he was entitled to a refund of the amount of income tax, which he claims was erroneously and illegally assessed and collected from him by the Collector of Internal Revenue. On a trial in the district court, his claim for refund was denied, and from such judgment, he appeals.
There is no dispute that the salary which appellant received during the year 1944 was, under section 119(c) (3) above mentioned, paid to him for personal services performed without the United States.
The sole issue in the case is whether, within the intendment of the statute and regulations, Fuller was a bona fide resident of Soviet Russia during the taxable year in question.
In determining this issue, it is necessary to consider the circumstances surrounding Fuller’s journey to Russia; the services he performed there; and the nature of his stay in that country, as evidence of his intentions as to residence in Russia.
Fuller was an engineer who commenced his employment with the firm oí E. B. Badger & Sons Company, of Boston, in 1939. After having been associated with that company in various engineering projects for approximately four years, he was, in the spring of 1943, offered an assignment in Soviet Russia. It appears that the Badger Company, through a lend-lease agreement between the American government and the Soviet Russian government, was designated as the consulting engineering company in the erection of a number of oil refineries for the Russian government. In carrying out its commitments, the Badger Company proposed to Fuller that he go to Russia for an indefinite stay as one of its engineers in charge of supervising the engineering services in constructing and placing in operation the new refineries. At that time, the Badger Company informed Fuller that there were at least four refining units that it had already contracted for, with a number of future units being contemplated. Fuller was, at that time, a young man twenty-seven years old, married, and had a home in Toledo, Ohio. The proposal of the Badger Company to send him to Russia in the midst of the war appealed to him for a number of reasons. There was the chance to better his situation, financially, because of the higher salary offered. There was also the challenge to him as an engineer to engage in carrying out large projects in a great undeveloped country; the opportunity for long term employment; the reputation and prestige that would result to him in his profession from having had such experiences and service; and the spirit of adventure, which probably exceeded the other considerations.
It. was planned by the Badger Company that A. Gilbert Formel, one of Fuller’s friends, and at present chief engineer for a construction company in'the East, would be associated in the Russian expedition, and would be Fuller’s immediate superior. Both Formel and Fuller were specialists and experts in the Houdry Catalytic Cracking Process, and Fuller’s title was Houdry case engineer. During the spring of 1943, Fuller, who was then working for the Badger Company at Marcus Hook, Pennsylvania, on his trips home to Toledo, had stopped off on several occasions at Sandusky, Ohio, where Mr.' Formel was working, to talk over the possibilities of the Russian assignment. They had discussed Russia with a couple of engineers who had already been in that country, and, as a result, were enthusiastic about the prospects for an engineer in that part of the world, and thought along the same lines with regard to its being an opportunity of great promise for them, professionally and financially. At that time, the relations between the American government and the Russian government were very friendly.
From June 1943 until late in the autumn, Fuller and Formel were in New York making arrangements for visas, passports, inoculations, and similar matters, and in November 1943, they left for Russia. Fuller’s route lay through the Gulf of Mexico, Central and South America, Africa, The Sudan, Egypt, Persia, Stalingrad, and Moscow, where he arrived about the middle of December, 1943. The disastrous German defeat at Stalingrad had occurred earlier • that year. After registering with the American Embassy, Fuller was sent to the village of Guriev, which, although described throughout the case as a village, contained approximately 55,000 inhabitants. Guriev is 1,500 miles distant from Moscow and is located at the mouth of the Ural River on the northern shore of the Caspian Sea. A place of extremes of temperature, ranging from 140° Fahrenheit in the summer to 40° below in the winter, and of primitive living conditions, it was a test for the adventurous.
Fuller’s work as an engineer in Russia was to assist the Russian engineers and superintendents in whatever' manner he could with regard to the engineering project. The design of the materials, as well as their fabrication, was American, and it was the job of Fuller to interpret the plans and specifications; to help the Russians in scheduling their work; and to give them suggestions and recommendations in constructing the refinery.
When Fuller and Formel first arrived in Guriev, they were put up temporarily by the Russian government in a house from which the N. K. V. D., the State Police, had evicted the people whose home it had been. Under the agreement with the Badger Company, the Russian government was obligated to provide satisfactory living quarters and furnishings for Fuller and Formel. But what appeared satisfactory to the Russians fell far below the standards which the Americans expected, and it required continual demands and arguments on their part to secure the quarters to which they felt they were entitled. After several weeks of such repeated discussions and arguments, the Russians agreed to construct, and did construct, according to the plans and under the supervision of Fuller and Formel, three cottages for the use of the American engineers and for the storage of their materials and equipment. Each cottage was about 50 feet wide by 100 feet long, with cavity brick walls with dirt insulation, wood pole joists, and wooden roof with roofing paper and tar on top. The cottages were substantially built and were divided into two parts, with one apartment in front and one in the rear, each apartment having a living room, bedroom, bathroom and toilet, and kitchen. They were heated by means of a hot water boiler situated in a building which was erected in the rear of the three cottages. Each cottage had hot water radiator heat from this central heating plant. Around an area of about five acres of land upon which the cottages were built was erected a fence.
The Russians were able to supply only a few old benches and chairs to furnish the cottages. Fuller appears to have shown considerable ingenuity in securing lumber from the Russian authorities and making, with work tools, the necessary chairs and benches to furnish the cottages. In addition, he made clothes racks, shelves, lamps, and other conveniences, with the rather unusual result that when Fuller finally left the country, the Russians had commenced to imitate the construction of Fuller’s lawn chairs on a production line basis.
During his stay in Russia which lasted approximately twenty months, Fuller, after commencing the study of the Russian language in New York, resumed it in Gu-riev with the official interpreter for the oil commissariat with which the American engineers were connected, and continued to spend an hour or two a day for a considerable time in the study of the language until he had acquired such a fair working knowledge that he could carry on conversations on ordinary matters related to daily living with the Russians, as well as to engage in a considerable amount of friendly sociable intercourse with them.
Fuller and Formel found that they were largely dependent upon themselves in their games and amusements. The only sports the Russians engaged in were soccer and boxing. Fuller constructed a ping-pong table and basketball boards. In arranging to play horseshoes, he found he could not procure any suitable horseshoes in the locality because of the fact that the Russian ponies are so small that the shoes with which they are shod are only about five inches in diameter. Fuller, accordingly, carved a horseshoe out of wood in the desired size, and from this model, one of the local blacksmiths made a number of horseshoes. Fuller afterward interested the Russians in these various sports and succeeded in teaching and training a number of them to play the American games, including basketball, baseball, and football, until some good players were developed in these sports.
In order to have a variety of food, Fuller planted a garden within the small so-called compound, and secured seed corn, pop corn seed, tomato seed, and whatever other seeds could be found in the locality. In addition to raising these garden products, he also set out a flower garden. Formel, who was a witness, told of Fuller’s interest in and supervision of cooking, and of his attempt to make the food more palatable by undertaking to translate into the Russian language an American cook book. He found, however, that there were many words in the cook book for which there was no translation, and ended up by giving numbers to the various American cooking materials, and placing the numbers on the various cans and containers, so that the Russian girl who helped in the cooking could put a spoonful of a certain number into a mixture for a recipe. He even undertook to cook the pastry himself, and made the pies for their dinners.
Fuller and Formel had the use of a jeep, and whenever they had the time, they were free to drive anywhere in the country they desired without permit or supervision, the only restricting factors being sufficient food and gasoline for such journeys. Thus, they had a unique chance to see more of the people, and the different parts of the country. In studying the situation in Russia, Fuller found that there was a definite atmosphere of fear and oppression among the ordinary workers and the poorer people in Guriev, and that the rank and file of them lived in continual fear of the secret police, and avoided association with foreigners. However, he and Formel became friends with the so-called “higher level” government officials, and often conversed with, and visited the Russian engineers, the members of their staffs', and the military officers, and their families. They were frequently invited to entertainments and dinners by the Russians, and, in turn, invited the various officials' and their wives to their place for dinner. , They often' accepted invitations to the theatre, some of the dramatic companies on tour staying for four months at a time in the village; and they attended traveling circuses, ballets, and other entertainments which seemed to be available most of the time. They were invited to banqrtets, one, a rather lavish affair in honor of a colonel who, for his work in Guriev, had won the highest award for construction speed and excellence in the entire Soviet Union; and they were afterward invited, with a small, select group of1 officials, to the home of the colonel for further festivity. During their stay, they became fast friends with a number of Russian officials and their families, as a result of their entering into the life of this remote town on the Caspian Sea. During all of this time, Fuller Was studying the Russian people, their language, their land, their economic system, their banking arrangements, and their general conduct of business, and manifested a deep interest not only in his work and environment, but in the adventure of living in a new and strange land.
When Fuller first contemplated going to Russia for the Badger Company, it was his intention to have his wife go with him, but he was told by the company that, while he could not take his wife at that time, if war conditions changed for the better, the company would then see what it could do to make such an arrangement. His marriage had always been happy, and he continued, all during the year of 1944 and until the midsummer of 1945, to try to have his wife allowed to come over. He thought she would like the experience of living a while in Russia, and considered that the house in Guriev would be “an ideal setup” for both of them. In the thought that she might be allowed to come, they sold their house in Toledo in April, 1945. He had his wife take up the matter of securing a visa with the State Department, but they met with one frustration after another. Throughout his whole stay in Russia, Fuller testified, he had intended to remain there indefinitely and to have his wife join him there. Toward the end of his stay, Fuller and his wife decided that he would remain, while his wife resolved, in case she could not join him, to live in America and to follow the necessary training to become a nurse during the war period; and they were reconciled to remaining apart a couple of years longer. Fuller later found out that it was a company policy not to permit employees’ wives to go to Russia, and when it appeared that she probably could not join him in Russia, Mrs. Fuller sent him cablegrams on several occasions in which she encouraged him to stay on, for financial and economic reasons. At that time — in the middle, and even in the latter part of 1945 — the Badger Company still had a number of engineering projects in Russia at Krasnovodsk, Orsk, and Kuibeshev. As late as June, 1945, Fuller was still uncertain as to whether it would be possible for him to bring his wife to Russia. But, by the time Fuller had seen Badger’s chief representative in Russia in Moscow later in the summer of 1945, this official had already arranged with the Embassy for an exit visa for Fuller’s return to America. Even then, he planned to seek other engineering work in Iran, and as late as July, 1945, sent his wife a cablegram telling her that his work in Russia was finished, and that travel arrangements were being made for his return, although that was not his decision. In the cablegram, he also told her that he was considering future work in Russia in employment other than with the Badger Company, or in Sumatra. Fuller testified that during the year 1944, he intended to remain in Russia as long as the Badger Company had work for him to do, and that he definitely considered that such work would last through the year 1944, which it did, and, in fact, for a much longer period.
Thereafter, Mrs. Fuller, because of the repeated frustrations and separation from her husband, began to suffer from nervousness, and decided, in order to recover, to go to Tucson, Arizona, for some months; and it was because of this circumstance, according to Fuller’s testimony, that he decided, during the middle of 1945, that he should come back home to her. He returned to America in October, 1945, after an absence of two years.
Fuller’s testimony is substantiated by Formel in all important respects, and, in fact, is not attacked or questioned by the government. Was he, then, a bona fide resident of Russia during the taxable year of 1944, within the intendment of the statute exempting him from payment of income tax during that period? In this regard, we proceed to consider what is residence, and what is “bona fide residence,” within the meaning of the statute.
Because “domicile” and “residence” are usually in the same place, they are frequently used as if they had the same meaning. “Domicile,” however, means living in a locality with intent to make it a fixed and permanent home, while “residence” simply requires bodily presence as an inhabitant in a given place. Commissioner of Internal Revenue v. Swent, 4 Cir., 155 F.2d 513.
In the case before us, the income tax regulations governing the interpretation of section 116, the principal provision of the statute with which we are concerned, set forth that in order to determine who is a bona fide resident of a foreign country, reference should be made to Treasury Regulation 111, Sections 29.211-2 through 29.211-5, relating to what constitutes residence or non-residence in the United States of America by an alien individual. Thus, the test of an American’s residence in a foreign country for the purpose of exempting from tax, income derived from his economic pursuits while in such country as a resident, is the test of residence applied to an alien who comes to the United States for a business purpose. That test is set forth in Section 29.211-2, as follows: “An alien actually present in the United States who is not a mere transient or sojourner is a resident of the United States for purposes of the income tax. Whether he is a transient is determined by his intentions with regard to the length and nature of his stay. A mere floating intention, indefinite as to time, to return to another country is not sufficient to constitute him a transient. If he lives in the United States and has no definite intention as to his stay, he is a resident. One who comes to the United States for a definite purpose which in its nature may be promptly accomplished is a transient; but if his purpose is of such a nature that an extended stay may be necessary for its accomplishment, and 1o that end the alien makes his home temporarily in the United States, he becomes a resident, though it may be his intention at all times to return to his domicile abroad when the purpose for which he came has been consummated or abandoned.”
In Swenson v. Thomas, 5 Cir., 164 F.2d 783, 784, the court had occasion to comment upon the foregoing regulation, and observed : “It excludes ‘a mere transient or sojourner’, and correctly. A transient means literally ‘one going across’, or passing through. ‘Sojourner’ is built around the French word ‘jour’, meaning a day, and signifies a mere temporary presence or visit.” In the Swenson case, the court quoted the regulation, substituting in place of “the United States”, the foreign country in which the taxpayer was a resident during the period in controversy. Following this clarifying method in the instant case, it could be said that the regulation provides: “If the taxpayer lives in Russia and has no definite intention as to his stay, he is a resident. One who comes to Russia for a definite purpose which in its nature may he promptly accomplished is a transient; but if his purpose is of such a nature that an extended stay may be necessary for its accomplishment, and, to that end, the taxpayer makes his home temporarily in Russia, he becomes a resident there, though it be his intention at all times to return to his domicile in the United States when the purpose for which he came has been consummated or abandoned.”
When it is considered that it required Fuller several months to prepare for the expedition to Russia; that the contract he entered into with the Badger Company provided that the term of his employment would be indefinite; that it was represented to him that the company had contracted for engineering service to be rendered for the erection of four refineries, with several more in contemplation, which would require, and did require engineering services for more than two years; that the service in Russia resulted in greatly increased salary for him, as well as prestige in his profession; that he made efforts to have his wife allowed to go with him and was still planning, after a year and a half of residence in Russia, to have her join him; that he helped to supervise the building of substantial houses for his use during his service in Guriev; that he entered into the life and activities of the community, learning the language, forming friendships, undertaking a serious study of the institutions of the country, and identifying himself with the daily life of the people; that he intended to remain in Russia even longer than his term of service, and thereafter to work as an engineer in Iran or Sumatra— all of these circumstances, which have been set forth in detail make it clear that there was no doubt that his work was of such a nature as to require service in Russia for an indefinite period, and, at least, throughout the year 1944; and that he had intended from the beginning to reside in Russia not only during that period but for a much longer time.
We see little force in the government’s argument that, since the taxpayer was happily married, that his wife could not be in Russia with him, and that he was unwilling to remain away from her for any length of time, her presence was an essential element in the establishment of a “true home.” In the first place, this statement is contrary to the undisputed evidence as to his unwillingness to remain away from his wife for any length of time. What has been set forth in great detail as to the intentions and views of the husband and wife as to his remaining in Russia is repeated throughout the record without qualification or uncertainty. Moreover, there is nothing in the statute or the regulation that remotely suggests that exemption from income tax depends upon whether a taxpayer has established a “true home” in a foreign country for the taxable year. The regulation refers only to one who “makes his home temporarily” in a foreign country.
In Seeley v. Commissioner, 2 Cir., 186 F.2d 541, 544, where a similar question arose, the court, in holding that a taxpayer was a resident in a foreign country entitled to exemption from income tax,, stated that “his purpose, assuming that it had been ‘definite,’ was not one which was sure to be ‘promptly accomplished’; on the contrary it was of ‘such a nature that an extended stay may’ (might) ‘be necessary for its accomplishment, and to that end’ he made ‘his home temporarily’ in London. * * * if his wife had gone along with him there could have been no fair question that together London would have been their ‘temporary home.’ The only reason why she did not go was ‘because of * * * travel restrictions * * *.’ Certainly it would not further the general purpose of the statute to induce Americans to take jobs abroad, if those were granted tax exemption who could take their wives, but those were not, who could not. * * * A man, who settles down to an indefinitely continued performance of such duties, for the time being at least, has a ‘home.’ ”
The fact that, on his application-for passport extension, Fuller gave his. home address as Toledo, Ohio, and his foreign address as “c/o United States Military Mission, Moscow,” is irrelevant and in noway derogates from the fact that he was-a bona fide resident of Russia during the. taxable year of 1944. Moreover, the government’s claim that Fuller’s stay in Russia was subject to such legal and contractual restrictions as to preclude any view that he was a bona fide resident of Russia,, we find to be without merit. The circumstance that Fuller was subject to the draft and that his deferment was subject to renewal every six months had nothing to do with his intention as to residence when he went to Russia to help carry out lend-lease agreements with the consent of his government and where his purpose in going was of such a nature that an extended stay might, and, in this case, would be necessary for its accomplishment. In Swenson v. Thomas, supra, the taxpayer had been employed for service in a foreign country for three years but the contract was terminable "by either party on thirty days’ notice. Yet it was held in that case that the taxpayer had established that he was a bona fide resident of a foreign country during this period and exempt from income tax. The fact that Fuller’s passport also was subject to renewal every six months in no way invalidates his claim of bona fide residence during the taxable period, under either the •statute or the regulation.
Downs v. Commissioner, 9 Cir., 166 F.2d 504, 505, cited by the government in support of its contention, appears rather, by implication, to sustain appellant. There the •court was concerned with the claim for exemption from income tax on the part of a citizen who had served in England under ■contract with an aircraft corporation. The corporation had a contract with the United States government whereby it agreed to organize, equip, and operate an aircraft depot in Great Britain during the war; and the taxpayer was one of the corporation’s workers employed in connection with the project. The contract of employment provided it was to be performed under the regulations and requirements of the corporation, as well as those of the United States government, “and all civil or military laws and regulations in effect from time to time at the place or places of duty * * *.” Employees were prohibited from divulging information connected with the war activities, and were to go and come, when and as directed by the employer, and to journey by any method of transportation chosen by the employer. In remarking upon the character of this employment, the court observed: “It will be seen that persons employed under the contract, and who performed services under it, were admi#ied to the foreign country for specific work directly related to the United States Government’s war efforts, and that they were handle'd, controlled and restricted much the same as military personnel.” (Emphasis supplied.) The court held that the salaries of such employees were not exempt from income tax under the statute and regulation, and, in discussing the regulation, made this significant declaration: “Section 29.211-2 unquestionably is drawn with the understanding that unless the United States citizen abroad ‘makes his home temporarily’ in the foreign country, that is, as we see it, identifies himself in some degree with its customs and lives under and within such customs, he is not a resident of the foreign country in which he is staying temporarily.” The foregoing could be somewhat expanded, in a general sense, by saying that such a citizen makes his home temporarily in a foreign country, where he enters into the life of the community, takes part in the activities of the people, engages in social intercourse with the citizens, cultivates friendships with them, and identifies himself with their daily lives, their entertainments, their amusements, while intending to continue to live in their country for an indefinite period.
We may here take note of a claim that the legislative history of the tax law discloses support for the government’s position in this case. During the course of the hearings on the amendment, the chairman of the committee having the matter under consideration remarked that he might be able to shorten the testimony of one of the witnesses by stating that “the complete elimination of Section 116(a) [the provision with which we are concerned in this case] was not really intended, that it was not the primary purpose in the case of the bona fide, non-resident American citizen who established a home and maintains his establishment and is taking on corresponding obligations of the home in any foreign country, but there is some need for treatment of this section, so that the technicians, American citizens who are merely temporarily away from home could be properly reached and dealt with for taxation purposes.” We cannot see, adopting the most favorable view of the government’s argument, that the foregoing discloses an intention that would subject the appellant in this case to income tax during his residence in Russia. In any event, it is not every fragment of a discussion in which a member of Congress participates,, informally, with a witness in a hearing before a committee, that is considered a guide or an aid in the construction of a statute. A senator or a representative might often conclude that a remark which he made at the inception of the consideration of a new statute during a hearing was improvident in the light of subsequent reflection. Certainly, such remarks and observations are not aids in construction, and the foregoing quoted statement, made to a witness during a hearing on an amendment, cannot be considered by a court called upon to construe a statute, as having the same dignity and force as the language of the statute itself. We have before us a statute and a regulation which clearly elucidates its meaning.
Under the regulation, Fuller could not be called a mere transient or sojourner in a foreign country during the taxable year of 1944. Under its provisions, he was clearly a bona fide resident of Russia during the taxable year and is exempt from payment of income tax during that period. See Myers v. Commissioner of Internal Revenue, 4 Cir., 180 F.2d 969.
In accordance with the foregoing, the judgment is reversed, the assessment expunged, and the case remanded with directions to enter a judgment for the taxpayer in the amount claimed.
. Title 26, U.S.O.A. § 316 (1945 Edition), provides:
“Exclusions from gross income
“In addition to the items specified * * *, the following items shall not be included in gross income and shall be exempt from taxation under this chapter:
“(a) Earned income from sources without the United States.
“(3) Foreign resident for entire taxable gear. In the case of an individual citizen of the United States, who establishes to the satisfaction of the Commissioner that he is a bona fide resident of a foreign country or countries during the entire taxable year, amounts received from sources without the United States (except amounts paid by the United States or any agency thereof) if such amounts constituíe earned income as defined in paragraph (3); but such individuals shall not be allowed .as a deduction from Ms gross income any deductions properly al-locable to or chargeable against amounts excluded from gross income under this subsection. * * * “(3) Definition of earned income. For the purposes of this subsection, ‘earned income’ means wages, salaries, professional fees, and other amounts received as compensation for personal services actually rendered, but does not include that part of the compensation derived by the taxpayer for personal services rendered by him to a corporation which represents a distribution of earnings or profits rather than a reasonable allowance as compensation for the personal services actually rendered. * * * ”
Title 26, U.S.C.A. § 119, provides-
*******
“(c) dross income from sources without United States. The following items of gross income shall be treated as income from sources without the United States:
* * * * * *
“(3) Compensation for labor or personal services performed without the United States; * *
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.