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What follows is an opinion from a United States Court of Appeals. Your task is to determine the nature of the proceeding in the court of appeals for the case, that is, the legal history of the case, indicating whether there had been prior appellate court proceeding on the same case prior to the decision currently coded. Assume that the case had been decided by the panel for the first time if there was no indication to the contrary in the opinion. The opinion usually, but not always, explicitly indicates when a decision was made "en banc" (though the spelling of "en banc" varies). However, if more than 3 judges were listed as participating in the decision, code the decision as enbanc even if there was no explicit description of the proceeding as en banc.
NIAGARA FIRE INS. CO. OF NEW YORK, N. Y., v. RALEIGH HARDWARE CO., Inc., and nine other cases.
Nos. 3326-3335.
Circuit Court of Appeals, Fourth Circuit.
Jan. 10, 1933.
Stanley C. Morris, of Charleston, W. Va. (Steptoe & Johnson, ¡lames, M. Guiher, and J. Homer Davis, 2d, all of Clarksburg, W. Va., on the brief), for appellants.
James H. McGinnis and Ben H. Ash-worth, both of Beekley, W. Va. (David D. Ashworth, of Beekley, W. Va., on the brief), for appellee.
Before PARKER, NORTH’COTT, and SOPER, Circuit Judges.
PARKER, Circuit Judge.
These are appeals in ten actions at law instituted to recover on fire insurance policies and heard together in the court below. The plaintiff was the Raleigh Hardware Company and the defendants were insurance companies that had issued policies on the store building of plaintiff, which was destroyed by fire on April 9, 1931. ' In each ease there was verdict and judgment for the plaintiff, and the defendants have appealed. The appeals present four points: (1) Whether the court below erred in holding as a matter of law that plaintiff was not barred of recovery for failure to file proofs of loss within the time limited by the policies; (2) whether the court erred in instructing the jury that it might return a verdict for the full amount of the policies if it found that there was a total loss within the meaning of the valued policy statute of West Virginia; (3) whether there was prejudicial error in the admission and rejection of testimony; and (4) whether there was error in refusing to set aside the verdict and grant a new trial.
The policies, which are in the form prescribed by the statute of West Virginia (Acts of 1923, ch. 18, § 68), require that “the insured shall, within sixty days after the fire, unless such time is extended in writing by this Company, render to this Company a proof of loss, signed and sworn to by the insured, stating,” ete. A subsequent clause provides that, “No suit or action on this policy, for the recovery of any claim, shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with, nor unless commenced within twelve months next after the fire.” The fire occurred, as stated above, on April 9th. The proofs of loss were not filed until June 13th, more than sixty days thereafter. There is uneontradicted evidence, however, that the fire continued to bum in the basement of the building for a week or more after it began. And, following prompt notice by plaintiff that the fixe had occurred, the companies sent adjusters, who as late as the latter part of May were negotiating with plaintiff in an attempt to arrive at an adjustment of the loss.
We agree with plaintiff that under no interpretation of the policy would the sixty-day period for furnishing proofs of loss begin to run until after the fire had sufficiently abated to allow a full inspection of the property for the purpose of determining the extent of the loss. National Wall Paper Co. v. Associated Manufacturers’ Mutual Fire Ins. Co., 175 N. Y. 226, 67 N. E. 440; Slocum v. Saratoga & Washington Fire Ins. Co., 149 App. Div. 867, 869, 134 N. Y. S. 72. Such inspection was of particular importance in this ease; for a close view of the basement, where the fire was burning, and of the foundations of the walls left standing was necessary to determine whether the loss was total within the meaning of the valued policy law of West Virginia. The evidence- as to the length of time the fire was burning was sufficient to warrant the eobclusion that the proofs of loss were furnished within the time limited by the policy; but this would he a question for the jury. The faitee to submit it to the jury is immaterial, however, in the view that we take of the West Virginia law which we shall presently discuss.
And wo agree, also, that the defendants would he held to have waived the condition requiring that proofs of loss be furnished within sixty days, if failure to comply with such condition resulted in a forfeiture under the laws of West Virginia. They entered into neg'otiations with plaintiff looking to an adjustment of the loss. In the course of the negotiations they were furnished by plaintiff with plans and specifications of the burned building and other information usually contained in proofs of loss. By their investigation of the fire and through their dealings with plaintiff, they secured all the information which the proofs were designed to furnish; and the negotiations for an adjustment were, in the absence of notice to the contrary, sufficient ground for plaintiff’s assuming that no further or moro formal proofs of loss were necessary. Plaintiff’s delay in furnishing the proofs of loss was in a very real sense, therefore, tho result of the conduct of the defendants, and it would he unconscionable to allow defendants to take advantage of tho delay. If the provision of the policy requiring proofs of loss within sixty days were a condition of recovery, defendants would be held to have waived it by their conduct, or, what is the same thing, would he estopped to assert it. Concordia Ins. Co. v. School District, 282 U. S. 545, 550, 51 S. Ct. 275, 75 L. Ed. 528; Id. (C. C. A. 10th) 40 F.(2d) 379; Firemen’s Ins. Co. v. Brooks (C. C. A. 6th) 32 F.(2d) 451, 65 A. L. R. 909; Continental Ins. Co. v. Fortner (C. C. A. 6th) 25 F.(2d) 398; Lusk v. American Cent. Ins. Co., 80 W. Va. 39, 91 S. E. 1078; American Ins. Co. v. Dannehower, 89 Ark. 111, 115 S. W. 950; Helvetia Swiss F. Ins. Co. v. Edward P. Allis Co., 11 Colo. App. 264, 53 P. 242; Teasdale v. City of New York Ins. Co., 163 Iowa, 596, 145 N. W. 284, Ann. Cas. 1916A, 591 and note; 26 C. J. 403; 14 R. C. L. 1348.
But the determination of the question as to whether tho proofs of loss were furnished in accordance with the terms of the policy does not depend upon the question of waiver or nice inquiries into the duration of the fire; for under tho law of West Virginia failure to file proofs of loss within the sixty days limited by the policy merely delays and does not bar action. Raleigh Hardware Co. v. Williams, 106 W. Va. 85, 144 S. E. 879, 880; Smith Ins. Agency v. Hamilton Fire Ins. Co., 69 W. Va. 129, 71 S. E. 194; Rheims v. Standard Fire Ins. Co., 39 W. Va. 672, 20 S. E. 670. The provision of the statutory form relating to proofs of loss was construed in the recent case of Raleigh Hardware Co. v. Williams, supra; and in the light of what was said in that ease there can be no question as to tho rule applicable in West Virginia. The court, speaking through Judge Maxwell, said: “It is not provided in the policy that it shall be void, if proofs are not filed within the stipulated period; but there is a general provision that no suit shall be brought on tho policy unless all the requirements of the policy have been complied with, and unless such suit he instituted within twelve months next after tho fire. The only effect of noncompliance with the requirement for proof of loss is to postpone the right of action of the insured. ‘Although a policy of fire insurance requires that proof of loss shall he furnished within 60 days after the fire oceurs, unless the time he extended hy .the company, but there is no provision therein forfeiting the poliey for failure to comply with this requirement, the effect of such provision is to postpone right of action until such proof be furnished, hut not to wholly destroy all right of recovery’thereon.’ Smith Insurance Agency v. Hamilton Fire Insurance Co., 69 W. Va. 129, 71 S. E. 194, pt. 6, syl. Proofs of loss merely fix the time when a loss becomes payable and when an action, may be maintained to enforce a liability. Rheims v. Standard Fire Insurance Co., 39 W. Va. 672, 20 S. E. 670. See, also, Munson v. German Insurance Co., 55 W. Va. 423, 47 S. E. 160, and Adkins v. Globe Fire Insurance Co., 45 W. Va. 384, 32 S. E. 194. These cases go no further in this phase than to hold that the filing of proofs of loss is a condition precedent- to action on the poliey. This holding is in conformity with general authority.”
It is true that in matters of general insurance law, we are not bound by state decisions. Fountain & Herrington v. Mutual Life Ins. Co. (C. C. A. 4th) 55 F.(2d) 120; Washburn & Moen Mfg. Co. v. Reliance Marine Ins. Co., 179 U. S. 1, 21 S. Ct. 1, 45 L. Ed. 49; Swift v. Tyson, 16 Pet. 1, 10 L. Ed. 865. But this is not a question of general insurance law. It is a question of the interpretation of language embodied in a statute of West Virginia; for the policies of insurance, by express provision of the statute, embody language which the statute prescribes. An interpretation of the language of the policies, therefore, is an interpretation of the language of-the statute itself; and it is well settled that we are bound by the interpretation which the courts of a state place upon the language of its statutes. Elmendorf v. Taylor, 10 Wheat. 152, 6 L. Ed. 289; Burgess v. Seligman, 107 U. S. 20, 2 S. Ct. 10, 27 L. Ed. 359; Savings Bank of Richmond v. National Bank of Goldsboro (C. C. A. 4th) 3 F.(2d) 970, 39 A. L. R. 1374.
The duty of the federal courts to follow state decisions in the interpretation of stata statutes is too well settled to admit of serious discussion. The rule has been followed, not only with respect to statutes dealing with loeal matters, but also- with respect to those affecting general commercial law, such as the Negotiable Instrument Law, which was dealt with in the case of Savings Bank of Richmond v. National Bank of Goldsboro, supra. And the rule is followed as to state statutes dealing with insurance. Iowa Life Ins. Co. v. Lewis, 187 U. S. 335, 355, 23 S. Ct. 126, 47 L. Ed. 204; Concordia Ins. Co. v. School District, supra, 282 U. S. 545, 552, 51 S. Ct. 275, 75 L. Ed. 528; Union Indemnity Co. v. Dodd (C. C. A. 4th) 21 F.(2d) 709, 55 A. L. R. 735; Parr v. Ins. Co. (D. C.) 44 F.(2d) 567; and see Sun Ins. Office v. Scott, 284 U. S. 177, 182, 52 S. Ct. 72, 76 L. Ed. 229. Defendants point to decisions in which federal courts have followed the general law instead .of loeal decisions in construing policies, in states where the form of poliey is prescribed by loeal statute. See Niagara Fire Ins. Co. v. Pospisil (C. C. A. 8th) 52 F.(2d) 709, 79 A. L. R. 404, and Bank of South Jacksonville v. Hartford Fire Ins. Co. (D. C.) 1 F.(2d) 43. In none of these, however, was there express decision of the point which is raised here, viz., whether a decision by a state court on the meaning- of a provision of a statutory form of poliey must be followed as an interpretation of the statute. As indicated above, we think that this question must be answered in the affirmative. When the Legislature of a state prescribes the language which a poliey must contain, judicial interpretation of that language is in effect judicial interpretation of the statute itself, and becomes a part of the statute. Not to follow such interpretation by the Supreme Court of the state, therefore, would be to ignore the statute and to enforce a contract different in terms'from that which the Legislature of the state has prescribed.
We come then to the second question, i. e., whether the court erred in instructing the jui-y that it might return a verdict for the full amount of the policies upon a finding that there was a total loss within the meaning of the valued poliey statute of West Virginia. Defendants do not controvert the fact that there is evidence to show a total loss within the meaning of that statute, but they contend that the statute was repealed by implication by the enactment of the uniform policy law of 1923 and was not re-enacted until the adoption of the Code of West Virginia in 1931.
The valued poliey statute was enacted by the Legislature of West Virginia in 1899. Its apparent purpose was to avoid litigation over the amount of damages sustained by an) insured and to prevent the evils arising from overinsurance. It was carried forward in the Code of 1923 as section 40a of chapter 34, and is as follows: “§ 40a. Liability of fire insurance company in case of total or partial loss.—All fire insurance companies doing business in this state shall be liable, in ease of total loss by fire or otherwise, as stated in the policy' on any real estate insured, for the whole amount of insurance stated in the policy of insurance upon said real estate; and in case of partial loss by fire or otherwise, as aforesaid, of the real estate insured, the basis upon which said loss shall be computed, shall be the amount stated in the policy of insurance effected upon said real estate, and the insured shall have the right to enforce his claim for said loss in any court having jurisdiction. (Acts 1899, e. 33.)”
The statute upon which defendants rely as repealing this provision is section 68 of chapter 18 of tho Acts of 1923, which prescribes the uniform fire insurance policy for use in the state. The provision of the statutory policy upon which they rely is as follows : “ * * ' Does insure ......and legal representatives, to tho extent of the actual cash value (ascertained with proper deductions for depreciation) of the property at the time of loss or damage, but not exceeding the amount which it would cost to repair or replace the same with material of like kind and quality within a reasonable time after such loss or damage.”
Even if there were nothing before us except the valued policy statute and the uniform policy statute of 1923, we would not think that the former had been repealed by the latter. It is elementary that statutes are to be construed together when possible, and that repeals by implication are not favored. 25 R. C. L. 918, 939; Beck v. Cox, 77 W. Va. 442, 87 S. E. 492. The valued policy statute has relation to a specific matter; insurance on real estate. The language of the uniform policy has relation to insurance generally. Both will be given effect if the general language of the uniform policy he construed as applying generally, and the valued policy statute be construed as creating an exception to its general application. The rule is well settled that “where there are two statutes upon the same subject, the earlier being special and the later general, the presumption is, in the absence of an express repeal, or an absolute incompatibility, that the special is intended to remain in force as an exception to the general.” Washington v. Miller, 235 U. S. 422, 428, 35 S. Ct. 119, 59 L. Ed. 295; Rodgers v. U. S., 185 U. S. 83, 87-89, 22 S. Ct. 582, 584, 46 L. Ed. 816; Townsend v. Little, 109 U. S. 504, 512, 3 S. Ct. 357, 27 L. Ed. 1012.
The rule stated in Sedgwick on the Construction of Statutory and Constitutional Law, p. 98, quoted with approval in Rodgers v. U. S., supra, is as follows: “The reason and philosophy of tho rule is, that when the mind of the legislator has been turned to tho details of a subject, and he has acted upon it, a subsequent statute in general terms or treating the subject in a general manner, and not expressly contradicting the original act, shall not be considered as intended to affect the more particular or positive previous provisions, unless it is absolutely necessary to give tho latter act such a construction, in order that its words shall have any meaning at all.”
But in addition to this well-settled rule of interpretation, we have the decisions in West Virginia, the opinion of the Code revisers and the opinion of the Legislature all supporting the conclusion to which it leads. Eight years after the valued policy statute was enacted, the Legislature of West Virginia, by section 68 of chapter 77 of the Laws of 1907, provided that no fire insurance policy should he issued on property within the state except in the form used by fire insurance companies incorporated under tho laws of the state of New York, with such changes and additions as the Insurance Commissioner might deem proper. This New York standard form used the same language as is used in the form incorporated in the statute by the aet of 1923; and in Hinkle v. North River Insurance Company, 76 W. Va. 681, 75 S. E. 54, the position was taken that the effect of the aet of 3967 in adopting a form of insurance policy containing this language was to effect a repeal by implication of the valued policy law. The Supreme Court of Appeals of West Virginia, however, took the opposite view, holding that the Legislature by adopting a general form of fire insurance policy did not intend to repeal the valued policy act which dealt with a special matter. The same reasoning applies to the act of 1923. There can be no difference, so far as a question of this nature is concerned, between setting- forth a form of policy in a statute and providing by statute that policies shall boissued in a certain well-known form.
This was tho view taken by the revisers of tho Code of 3931, and it was evidently the-view taken by tho Legislature in adopting the-Code with both, the valued policy statute and' the uniform policy statute included therein. The revisers, in a note to the valued policy-section of the 393L Code (33-4-9), said: “Revisers’ Note—The portion of this section coming between the semicolons is a redraft. In Hinkle v. North River Insurance Co., 76 W. Va. 681 [75 S. E. 54], the court decided that this section was not repealed by § 68, e. 77, Acts 1967 (Code 1923, e. 34, § 68), although the latter section prescribed the New York. form of policy limiting the liability to the actual cash value of the property insured. Said § 68 was amended and reenacted by Acts 1923, e. 18, § 68, by way of incorporating a literal form of the policy, bu,t since the amended section seems to'do no more by way of literal incorporation than the original section did by way of reference, it is believed that § 40a, e. 34, Code 1923, was not affected by the amendment made in 1923 and it is therefore retained.”
We have considered the eases from other jurisdictions to which our attention is called by defendants; but we feel bound by the decision in the' case of Hinkle v. North River Ins. Co. And, even if the question were an open one, we do not think that under the authorities which we have cited we would be justified in holding that there had been a repeal by implication of the valued policy statute.
We can deal briefly with the third point. The following question was asked the witness J. 0, Freeman:. “In your opinion, would a reasonably prudent man use any portion of these walls, either the brick and tile walls or the basement walls, in rebuilding a building of like kind and character?” He answered : “I would tear out what is there and rebuild it of new material all the way through if it were mine.” The record shows that a motion was .made to strike out the answer, but does not show the ground of the motion. It is suggested here that the question was objectionable because, it did not include as an hypothesis that the reasonably prudent man be uninsured,’'and that the answer was not responsive because ¡fche witnéss answered as to what he would do and did not confine his answer to the conduct of the reasonably prudent man. But before defendants ¿an rely upon these points here, they must have made ¡them in the court below, not by. general objection or motion to strike out, but in a man-_ ner specifically calling the attention of the trial judge to the point made. But the exception, if properly taken, would not justify the granting of a new trial. The testimony objected to, when considered with the other testimony of the witness and a great mass of other testirb'ony bearing upon the question of total loss, could not have misled the jury or affected the' hesult of the case in any way.
Another group of exceptions relates to the examination of one Cooper. He had made an estimate of damage and cost of replacement, and on cross-examination, being asked what valuation he plaeed on the damage to a certain party wall, plaeed it at $6,-000. Defendants then offered in evidence a report of arbitrators signed by the witness, in which the damage of an adjoining owner in this party wall had been fixed at a very much smaller amount. The court excluded the report of the arbitrators on the ground that it would unnecessarily incumber the record, but ruled that defendants might cross-examine the witness with regard thereto. The witness was then questioned as to his valuation of the party wall, and admitted that he had valued it in the arbitration at $3,615. On redirect examination he testified that, in the arbitration, he had included only the wall to the line of the adjoining owner, and that the $6,000' valuation included its entire length. Defendants then asked to cross-examine the witness further on this matter, and the court refused to permit it.
We do not think that either of these rulings constitutes reversible error. When the court permitted cross-examination on the arbitrators’ report and the witness admitted the valuations plaeed on the wall therein, there was no reason for incumbering the record with the report. The matter of further cross-examination was a matter resting in the sound discretion of the trial judge, and while we think that, under the circumstances, he might well have permitted further cross-examination, we are not prepared to hold that he was guilty of an abuse of discretion in not doing so. In addition to this, any contradictory statement with relation to the value of the party wall was a matter, going merely to the weight of the witness’ testimony; and, even if his entire testimony as to the value of the wall were disregarded, the remaining items to which he testified would exceed the total of the insurance policies by a considerable amount. We have considered the ease of Patriotic Ins. Co. v. Franciscus (C. C. A. 8th) 55 F.(2d) 844, but the situation in that ease was very different from the situation here.
We need not discuss the fourth point. Nothing is better settled in the federal practice than that the setting aside of a verdict and the granting of a new trial is a matter resting in the sound discretion of the trial judge, and that we will not interfere with this discretion in the absence of abuse. There was no abuse in this case. Parties cannot .obtain from an appellate court a review of the facts or a ruling on the weight of evidence by assigning error with respect to a ruling on a motion for a new trial.
There was no error, and the judgments below will be affirmed.
Affirmed.
Question: What is the nature of the proceeding in the court of appeals for this case?
A. decided by panel for first time (no indication of re-hearing or remand)
B. decided by panel after re-hearing (second time this case has been heard by this same panel)
C. decided by panel after remand from Supreme Court
D. decided by court en banc, after single panel decision
E. decided by court en banc, after multiple panel decisions
F. decided by court en banc, no prior panel decisions
G. decided by panel after remand to lower court
H. other
I. not ascertained
Answer:
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songer_treat
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B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
EUSTER, Eugene H.; Fieramosca, Samuel; Lopez, Daniel; Hasbany, David; and Fallon, Martin J. Jr., Appellants, v. EAGLE DOWNS RACING ASSOCIATION, a Pennsylvania Corporation; Pennsylvania Horse Racing Commission; Johnson, Andrew R., Chairman of Pennsylvania Horse Racing Commission; and A. Marlyn Moyer and William D. Gross, Commissioners of the Pennsylvania Horse Racing Commission, Appellees.
No. 81-2432.
United States Court of Appeals, Third Circuit.
Argued March 2, 1982.
Decided May 17, 1982.
Rehearing and Rehearing In Banc Denied June 24,1982.
James J. Rodgers (Argued), Richard P. Brown, Jr., Joseph B. G. Fay, Morgan, Lewis & Bockius, Philadelphia, Pa., for appellants.
David H. Allshouse (Argued), Deputy Atty. Gen., Leroy S. Zimmerman, Atty. Gen., Allen C. Warshaw, Deputy Atty. Gen., Chief, Civil Litigation, Harrisburg, Pa., for appellees.
Jon A. Baughman (Argued), Thomas B. Schmidt, III, Nancy J. Gellman, Richard M. Bernstein, Pepper, Hamilton & Scheetz, Philadelphia, Pa., for amicus curiae Jockeys’ Guild, Inc.
Before HUNTER, WEIS and HIGGIN-BOTHAM, Circuit Judges.
OPINION OF THE COURT
JAMES HUNTER, III, Circuit Judge.
This is an appeal from an order of the United States District Court for the Eastern District of Pennsylvania granting defendants’ motion for summary judgment. Plaintiffs-Appellants are owners and trainers of thoroughbred race horses in Pennsylvania. They brought this antitrust action against the Pennsylvania Horse Racing Commission (the “Commission”) and its members challenging the Commission’s rule which sets the fees to be paid to jockeys who ride at racetracks in the Commonwealth. Specifically, plaintiffs allege that the rule violates Section 1 of the Sherman Act, 15 U.S.C. § l. Defendants moved for summary judgment in the district court, pursuant to Fed.R.Civ.P. 56, on the ground that the “state action” exception to the antitrust laws enunciated in Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943) precludes Commission liability. The district court entered an order and judgment, supported by a memorandum opinion, granting the motion for summary judgment. We will affirm.
FACTS AND PROCEDURAL HISTORY
The Pennsylvania legislature enacted the Pennsylvania Horse Racing Act in 1967. 15 P.S. §§ 2651-2675 (1980). The Pennsylvania Horse Racing Commission was established pursuant to this Act and was given broad authority over horse racing and betting:
Pursuant to the provisions of this act, the State Horse Racing Commission shall have power to supervise generally all thoroughbred horse race meetings in this State at which pari-mutuel betting is conducted. The commission may adopt rules and regulations not inconsistent with this act to carry into effect its purposes and provisions and to prevent circumvention or evasion thereof.
15 P.S. § 2652(a) (1980). The present appeal focuses on one such rule, Rule of Racing 9.15 (“Rule 9.15”). Rule 9.15 contains a jockey fee scale which was initially promulgated by the Commission in 1968 and was amended in 1978 to increase the schedule of fee payments. Appendix at A — 22.
Shortly before this action was filed in the district court, the Pennsylvania Division of the Horseman’s Benevolent and Protective Association, which represents owners-trainers of racing horses at various tracks in Pennsylvania, and three other individuals filed a lawsuit in the Commonwealth Court of Pennsylvania challenging the authority of the Commission to promulgate a rule setting the fees to be paid to jockeys. The Commonwealth Court held that the Commission exceeded its legislative authority and could not regulate the amount of compensation paid to jockeys. Gilligan v. Pennsylvania Horse Racing Commission, 46 Pa. Commw.Ct. 595, 407 A.2d 466 (1979). After the Commonwealth Court’s decision, the district court rejected the defendants’ argument that the state action exemption of Parker applied, relying on the decision of the Commonwealth Court in the Gilligan case.
The Commission then appealed the Commonwealth Court’s decision to the Supreme Court of Pennsylvania. In September 1980, the Supreme Court reversed the Commonwealth Court, holding that the Commission was authorized by the legislature to promulgate a jockey fee schedule. Gilligan v. Pennsylvania Horse Racing Comm’n, 492 Pa. 90, 422 A.2d 487 (1980). In light of the decision of the Pennsylvania Supreme Court, holding unambiguously that the Commission had authority to set jockey’s fees, the district court held that the defendants were immune from antitrust liability under the Parker doctrine.
DISCUSSION
In Parker, the United States Supreme Court held that the Sherman Act was inapplicable to certain state action. A raisin packer sued the California State Agricultural Commission to enjoin enforcement of the State’s Agricultural Prorate Act. That Act authorized the State Director of Agriculture and the Agriculture Commission to adopt marketing programs regulating the sale of certain produce. The plaintiff attacked the program as violative of the Sherman Act. The Supreme Court held that state regulatory programs were immune from the proscriptions of the Sherman Act. The Court found no language or legislative history of the Sherman Act indicating congressional intent to proscribe the behavior of a sovereign state. The Court held that state regulatory programs could not violate the Sherman Act because the Act is directed against “individual and not state action.” Id. 317 U.S. at 352, 63 S.Ct. at 314.
The Parker doctrine was recently discussed and reaffirmed in California Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S. 97, 100 S.Ct. 937, 63 L.Ed.2d 233 (1980). In Midcal, the Supreme Court set forth the appropriate standards for the state action exception as follows:
First, the challenged restraint must be “one clearly articulated and affirmatively expressed as state policy”; second, the policy must be “actively supervised” by the State itself.
445 U.S. at 105, 100 S.Ct. at 943. If these two standards are satisfied, the challenged restraint is immunized from antitrust liability.
The Midcal requirements are satisfied in the case before us. The ruling of the district court is amply justified by the Pennsylvania Supreme Court’s decision in Gilligan. In Gilligan, the court held that the Commission was authorized by the Horse Racing Act to promulgate the jockey fee scale at issue in this case. The court stated explicitly that the Act reflected a “clear legislative policy” to vest the Commission with broad supervisory powers over the “previously unlawful activity of thoroughbred horse racing.” 422 A.2d at 489. The court stated:
A pervasive system of regulation and supervision of the otherwise criminal activity was thus contemplated by the Commission’s broad legislative mandate, and a general rule making power was clearly and unmistakably conferred.
422 A.2d at 490 (emphasis in original).
Furthermore, the court observed that the rulemaking powers of the Commission should be construed liberally in light of the broad supervisory task necessary to accomplish the express legislative purpose:
The breadth of the Commission’s powers is required for the prevention of corruption and the maintenance of high standards and public confidence in racing. The imposition of a jockey fee schedule is simply part of a comprehensive scheme of regulation consistent with — indeed, necessary to accomplish these legislative goals.
422 A.2d at 490-91 (emphasis added).
The Pennsylvania Supreme Court also attached importance to the fact that when the legislature amended the Horse Racing Act in 1976, including the section enumerating the powers of the Commission, there was no attempt by the legislature to curtail the Commission’s authority to set jockey fees, authority which it had been exercising since 1968. Thus, the court concluded that “the legislature’s acquiescence in the Commission’s exercise of its rule-making power to set jockeys’ fees manifests approval thereof.” 422 A.2d at 491.
In Princeton Community Phone Book, Inc. v. Bate, 582 F.2d 706, 717 (3d Cir.), cert. denied, 439 U.S. 966, 99 S.Ct. 454, 58 L.Ed.2d 424 (1978) we discussed the problem of discerning when state authority to restrain competition exists. We noted that: As the Gilligan decision demonstrates, the action complained of in this case was clearly contemplated by the legislation in question. Indeed, in this regard Gilligan could not have been more explicit.
[T]he state need not have contemplated the precise action complained of as long as it contemplated the kind of action to which objection was made.
It is also clear that the jockey fee scale is “actively supervised” by the Commonwealth, within the meaning of that term as set forth in Midcal. In Midcal, the Supreme Court struck down the California wine-pricing system because the state neither established the prices, reviewed their reasonableness, regulated the terms of the fair trade contracts, monitored market conditions, nor engaged in any “pointed reexamination” of the program in question. 445 U.S. at 105-06, 100 S.Ct. at 943. The Mid-cal Court stressed that the state simply authorized price-setting and enforced the prices established by private parties. The Court made clear its concern: “The national policy in favor of competition cannot be thwarted by casting such a gauzy cloak of state involvement over what is essentially a private price-fixing arrangement.” Id. 445 U.S. at 106, 100 S.Ct. at 943.
In the instant case, however, there is no question about the Commonwealth’s involvement in the challenged activity. The state Commission sets the jockey fees, pursuant to formal notice and hearing procedures. Appendix at 22. Furthermore, the Complaint does not allege a need for more state supervision; it alleges that the present supervision is biased in favor of the jockeys and that the Commission did not exercise sufficient independent judgment over the level of the fee scale. Complaint §§ 19 and 26. Appendix at A — 10, A — 11, A-12. The record does not support such an assertion. However, even if this averment were true, the promulgation of a jockey fee scale by means of Rule 9.15 differs from the scheme which the Supreme Court struck down in Midcal. In Midcal, private parties were authorized to set prices by themselves, without the further involvement of the state. Here, the regulation promulgated by the Commission itself contains the fees. There is no such abdication of price-fixing activity to private parties by the Horse Racing Commission. It is the state Commission itself which sets the fees.
The authorities relied upon by appellants are not persuasive in the present context. In many of these cases, the challenged restraint had not been clearly articulated as state policy. For example, in Cantor v. Detroit Edison Co. 428 U.S. 579, 96 S.Ct. 3110, 49 L.Ed.2d 1141 (1976), defendant Detroit Edison gave its customers light bulbs as part of their electric service, and thereby, plaintiffs argued, restrained trade in the sale of light bulbs. The Supreme Court held that Detroit Edison was not exempt from the antitrust laws under the state action doctrine. The plurality attached great significance to the fact that the defendant was a private party, not a state agency or official. 428 U.S. at 591, 96 S.Ct. at 3117. The plurality also ruled that the decision to provide light bulbs was primarily that of the defendant, and not of the Michigan Public Service Commission, and that the state had no regulatory interest in distributing light bulbs. Id. at 584 — 85, 96 S.Ct. at 3114 — 15. The Michigan statute gave the state Public Service Commission “complete power and jurisdiction to regulate all public utilities in the state,” but the statute did not say whether a utility should or should not engage in the challenged conduct, i.e., the free distribution of light bulbs, and did not otherwise manifest a regulatory interest in the light bulb market. Id. at 584-85, 96 S.Ct. at 3114-15. These facts are clearly distinguishable from the case before us. Here, the precise challenged restraint, setting the jockey fee scale, falls within a “general rule making power . . . clearly and unmistakably conferred” by the legislature and which the Commonwealth’s highest court has deemed “necessary to accomplish” the goals identified by the legislature in passing the Horse Racing Act. Gilligan, 422 A.2d at 490-91.
Stauffer v. Town of Grand Lake 1981-1 Trade Cases ¶64,029 (D.Colo.1980), also relied upon by appellants, is inapposite as well. In Stauffer, the court noted that while a zoning board had broad statutory authority to regulate land use “for the purpose of monitoring health, safety, morals or the general welfare of the community,” the Colorado legislature “did not foresee, contemplate or intend” that zoning officials would engage in the conduct complained of in that case: use of their zoning authorization to promote their own interests and economic benefit. Id. at 76,330. In the present case there is no allegation to the effect that the Commission defendants used their authorization to promote their own personal and economic interests.
Appellants also argue that there are factual disputes in this case which should have prevented the district court from entering summary judgment and that they should have been given an opportunity for discovery. Both claims are without merit.
First, the state action exemption cases clearly indicate that this issue involves a question of law, generally an issue of statutory construction. Thus, the question of whether a governmental entity is subject to Sherman Act liability has generally been resolved on a motion to dismiss or a summary judgment motion. See, e.g., Princeton Community Phone Book, 582 F.2d 706. In the present case, any factual disputes that exist are on matters which are irrelevant to the issue before us: the applicability of the Parker doctrine. Second, it is important to note that this case had been pending in the district court for over two years before the summary judgment motion was filed. Plaintiffs chose, however, not to take any discovery in over two years of litigation; rather, they chose to rest on the allegations of the complaint in responding to the summary judgment motion.
Finally, appellants argue that the decision in the Gilligan case lacks an adequate factual basis and that the Commission never properly explained how its fee schedule deters criminal influence on thoroughbred horse racing. The state action doctrine was developed to avoid this sort of inquiry by federal courts into state legislative wisdom. In Parker itself, for example, the Supreme Court did not inquire into the necessity for, or wisdom of, the California marketing programs regulating the sale of certain produce, holding simply that these programs were immune from attack under the antitrust laws. Again, in Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977), the Court held that the policy of restricting lawyer advertising was affirmatively expressed and actively supervised by the state and thus not subject to antitrust attack. However, the Court did not inquire into the wisdom of this policy. In Bates, the Court considered the necessity of the policy; but it did so only to determine whether the state had a compelling interest which could not be advanced by some other means which were less intrusive into the first amendment rights involved in that case. Id. at 363-79, 97 S.Ct. at 2698-2706.
The application of the Parker doctrine requires a federal court to make only the two determinations articulated in the Midcal decision: whether the scheme in question is a clearly articulated state policy and whether it is actively supervised. The district court would not be justified in looking into the wisdom or efficiency of using the regulation in question as a means of accomplishing the intended objectives.
CONCLUSION
19. For the foregoing reasons, the judgment of the district court will be affirmed.
. 15 U.S.C. § 1 states in relevant part:
Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal. Every person who shall make any contract or engage in any combination or conspiracy hereby declared to be illegal shall be deemed guilty of a felony. . . .
. Defendants also premised their summary judgment motion on the ground that the injunctive and monetary relief sought against the Commission and its members was barred by the Eleventh Amendment. Because the district court granted summary judgment on the basis of the Parker doctrine, it did not reach the question of whether the Eleventh Amendment barred the lawsuit. Neither do we.
. For a discussion of the historical background and origins of Parker, see Handler, “The Current Attack on the Parker v. Brown State Action Doctrine,” 76 Colum.L.Rev. (1976). See also P. Areeda & D. Turner, 1 Antitrust Law 67-69 (1978); L. Sullivan, Antitrust 732-34 (1977).
. The Supreme Court has repeatedly held that the highest court of a state is the ultimate interpreter of the state’s statutes and that a federal court is bound by its construction. Mullaney v. Wilbur, 421 U.S. 684, 691, 95 S.Ct. 1881, 1885, 44 L.Ed.2d 508 (1975); American Railway Express Co. v. Kentucky, 273 U.S. 269, 272, 47 S.Ct. 353, 354, 71 L.Ed. 639 (1927). State decisions are also controlling with respect to the interpretation of state administrative orders. Sutter Butte Canal Co. v. Railroad Comm’n, 279 U.S. 125, 139, 49 S.Ct. 325, 328, 73 L.Ed. 637 (1929). We are therefore bound by the Pennsylvania Supreme Court’s holding that the Horse Racing Commission was authorized by the legislature to fix jockey fees.
. The degree of articulation and expression by the legislature that is necessary was also stated in City of Lafayette v. Louisiana Power & Light Co., 532 F.2d 431, 434-35 (5th Cir. 1976), aff’d, 435 U.S. 389, 98 S.Ct. 1123, 55 L.Ed.2d 364 (1978):
[l]t is not necessary to point to an express statutory mandate for each act which is alleged to violate the antitrust laws. It will suffice if the challenged activity was clearly within the legislative intent. Thus, a trial judge may ascertain, from the authority given a governmental entity to act in a particular area, that the legislature contemplated the kind of action complained of.
Cited in Community Communications Co., Inc. v. City of Boulder, - U.S. -, 102 S.Ct. 835, 70 L.Ed.2d 810 (1982) (footnote omitted). In Lafayette, the Court considered an antitrust counterclaim against two Louisiana cities that allegedly pursued various anticompetitive activities in their operation of electric power companies. The Court agreed that Congress did not intend to exempt local governments per se from antitrust scrutiny. Justice Brennan noted that municipal decisions might express only “purely parochial interests” rather than state policy. 435 U.S. at 416, 98 S.Ct. 1138. That concern is not presented in the case of a state agency responsible for articulating statewide policy. See, e.g.. Metropolitan Edison Co. v. Public Service Comm’n, 127 Pa.Super.Ct. 11, 191 A. 678 (1937). For a general analysis of the Lafayette decision, see Areeda, “Antitrust Immunity For ‘State Action’ After Lafayette," 95 Harv.L.Rev. 435 (1981).
. The recent Supreme Court decision in Boulder is not controlling here. In Boulder, the Court held that an ordinance of the City of Boulder, a “home rule” municipality with extensive powers of self-government in local and municipal matters, which restricted the expansion of a cable television business for three months, was not exempt from antitrust scrutiny under the state action exemption of Parker. In this case, we are faced with the question of whether a state agency, not a municipality, is entitled to the Parker exemption when it acts within its authority under state law. Here, the Pennsylvania Supreme Court has expressly held that the action of the Horse Racing Commission in promulgating a fee schedule for jockeys is within the sovereign authority of the Commission under state law. The importance of such a distinction was implicitly recognized by the Court in Boulder in its discussion of the two situations in which the state action exemption applies:
Our precedents thus reveal that Boulder’s moratorium ordinance cannot be exempt from antitrust scrutiny unless it constitutes the action of the State of Colorado itself in its sovereign capacity, see Parker, or unless it constitutes municipal action in furtherance or implementation of clearly articulated and affirmatively expressed state policy, see City of Lafayette, Orrin W. Fox Co., and Midcal. -U.S. at-, 102 S.Ct. at 839-841 (emphasis added).
Thus, the Court in Boulder noted that the Parker exemption reflects Congress’ intention to embody in the Sherman Act the federalism principle that the States possess a significant measure of sovereignty under the federal Constitution. The Court noted that this principle is inherently limited in that “we are a nation of States, a principle that makes no accommodation for sovereign subdivisions of states.” - U.S. at-, 102 S.Ct. at 839 (emphasis in the original). Boulder is instructive in this case insofar as it supports the proposition that interpretation of legislative intent is a matter of state law and that federal antitrust courts should defer to state court interpretations of such questions. -U.S. at- nn.15 & 16, 102 S.Ct. at 841 nn. 15 & 16.
. Appellants also argue the existence of disputed issues of material fact respecting the motivation behind the Commission’s amendment of Rule 9.15 in 1978. Again, discovery on this issue would serve no purpose. The Supreme Court has never held that motivation is a factor in the “state action” analysis, apart from the standards outlined in Midcal. Furthermore, this theory was not alleged in the Complaint. Appendix at 5-20.
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_numappel
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of appellants in the case. If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v. STATE OF MISSISSIPPI, et al., Defendant-Appellant.
No. 87-4214.
United States Court of Appeals, Fifth Circuit.
Feb. 26, 1988.
John T. Kitchens, Sp. Asst. Atty. Gen., Edwin Lloyd Pittman, Atty. Gen., Amelia Y. Smith, Asst. Atty. Gen., Jackson, Miss., for defendant-appellant.
L. Lawrence Ashe, Jr., Kelly J. Koelker, Atlanta, Ga., amicus curiae.
Peggy R. Mastroianni, Washington, D.C., Jerome C. Rose, E.E.O.C., Mildred Byrd, Brenda Montgomery, G. William Davenport, Birmingham, Ala., Karen H. Baker, E.E.O.C., Washington, D.C., for plaintiff-appellee.
Before CLARK, Chief Judge, GEE and RUBIN, Circuit Judges.
GEE, Circuit Judge:
Conflict of Laws
The State of Mississippi appeals a finding by the district court, 654 F.Supp. 1168, that a compulsory retirement statute for game wardens violates federal anti-age discrimination law and thus is unenforceable. The state statute retires conservation officers of the Department of Wildlife Conservation at age 60 (as of July 1, 1986; age 62 from July 1, 1985 to June 30, 1986) and sets a maximum hiring age of 35. The Age Discrimination in Employment Act of 1967 (ADEA), on the other hand, provides that it is “unlawful for an employer to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual ... because of such individual’s age.” 29 U.S.C. § 623(a)(1). The ADEA does have an “escape clause” which allows employers some limited flexibility in using age as a factor in business decisions. It provides that it is not unlawful for “an employer ... to take any action otherwise prohibited under subsection[s] (a) [age as an employment criteria] ... where age is a bona fide occupational qualification reasonably necessary to the normal operation of a particular business_” 29 U.S.C. § 623(f)(1). Apart from this “escape clause,” the command of the ADEA against the use of age as a criterion to discriminate among employees collides with the policy preference of the Mississippi legislature. Because the Supreme Court has read the ADEA to preempt the field with respect to age discrimination, see EEOC v. Wyoming, 460 U.S. 226, 103 S.Ct. 1054, 75 L.Ed.2d 18 (1983), unless Mississippi can show — and the district court believed that it did not — that its policy preference reflected a bona fide occupational criterion, its statute is not valid. It is, however, Mississippi’s continued argument that age is a “bona fide occupational qualification reasonably necessary to the normal operation of a particular business” — that of conservation officer — that constitutes the essence of this appeal (emphasis added).
The Boundaries of “Reasonably Necessary” .
The Supreme Court has shaped decision-making guidelines for determining when age should be considered reasonably necessary as a job qualification. EEOC v. Wyoming, 460 U.S. 226, 103 S.Ct. 1054, 75 L.Ed.2d 18 (1983) provides the basic interpretation of the ADEA as it applies to state and local governments. In EEOC v. Wyoming, a Wyoming statute providing for the retirement of game wardens at age 55 (unless further employment was approved by the employer) was held to violate the ADEA. The extension of the ADEA was said not to “ ‘directly impair’ the State’s ability to ‘structure integral operations in areas of traditional governmental functions.’ ” 460 U.S. 226, 239, 103 S.Ct. 1054, 1062, 75 L.Ed.2d 18 (1983). Thus the Court maintained that Wyoming remained free to set its retirement policy if it could demonstrate a BFOQ. See id. at 240, 103 S.Ct. at 1062.
The extension of the ADEA to the states was intended, said the Court, to decrease the motivation to engage in age discrimination based “on stereotypes unsupported by objective fact.” Id. at 231, 103 S.Ct. at 1057 (emphasis added). The dissent in Wyoming, however, disagreed with the cost-benefit calculation, contending that the extension intruded too far into the governance of local affairs in that Congress “lacked the means to analyze the factors that bear on the decision, such as the diversity of occupational risks, climate, geography, and demography.” Id. at 264, 103 S.Ct. at 1075 (Burger C.J., Powell J., Rehnquist J. and O’Connor J., dissenting). The dissent noted that the “authority and responsibility for making employment decisions should be in the hands of local governments, subject only to those restrictions unmistakably contemplated by the Fourteenth Amendment.” Id. Responding to these concerns about federalism, Congress clarified its position: 1986 amendments to the ADEA permit States to “fail or refuse to hire or to discharge any individual because of such individual’s age ... with respect to the employment of ... a firefighter or as a law enforcement officer ... in effect under applicable State or local law on March 3, 1983 [for a seven-year period] and pursuant to a bona fide hiring or retirement plan_” 29 U.S.C. § 623(i)(l) & (2). Congress, however, voiced its continuing concern about stereotypes unsupported by objective fact by conditioning this deference to state decision-making on a requirement that the state plan not be “a subterfuge to evade the purposes of the chapter.” 29 U.S.C. § 623(i)(2).
Western Air Lines v. Criswell, 472 U.S. 400, 105 S.Ct. 2743, 86 L.Ed.2d 321 (1985), further refined the Supreme Court’s application of the ADEA to the states by offering standards by which to limit the boundary between federal and state powers. The case evaluated the content of jury instructions on a BFOQ defense against an airline that had an age-60 retirement for flight engineers. The Court noted that the legislative history of the ADEA indicated that the BFOQ “escape clause” was, meant to be “extremely narrow.” 472 U.S. at 412, 105 S.Ct. at 2751.
The Court crafted a two-pronged inquiry to set the width of the “extremely narrow” BFOQ exception. First, in order to establish a BFOQ defense to such an age-based qualification, it is relevant to ascertain whether “ ‘the job qualifications which the employer invokes to justify his discrimination [are] reasonably necessary to the essence of his business_” (472 U.S. at 413, 105 S.Ct. at 2751, quoting Tamiami). Second, since age qualifications must be more than merely convenient to the employer, he must demonstrate that he “is compelled to rely on age as a proxy for the [essential] job qualification validated in the first inquiry.” 472 U.S. at 414, 105 S.Ct. at 2751. This second prong can be satisfied by “establishing either (a) that it [the employer] had reasonable cause to believe that all or substantially all persons over the age qualification would be unable to perform safely the duties of the job, or (b) that it is highly impractical to deal with the older employees on an individualized basis.” Id. These two prongs are derived from and closely resemble similar guidelines set forth by our Court in Usery v. Tamiami Trail Tours, 531 F.2d 224 (5th Cir.1976), which focused on a company’s policy of refusing to hire persons over age-40 as inter-city bus drivers.
Each of the two prongs serves a different purpose in relating the specific circumstances of a case to the purposes of the ADEA. In Criswell, the Court explains the significance of the first prong which it drew from Tamiami. Proof is needed that a job qualification is “reasonably necessary” to the normal operation of the particular business because some qualifications may be “so peripheral to the central mission of the employer’s business that no age discrimination can be ‘reasonably neces-sary_’” See, Western Air Lines v. Criswell, 472 U.S. at 413, 105 S.Ct. at 2751. In this way, the “reasonably necessary” criterion serves as a basic check against qualifications so peripheral as to be, in light of the 1986 congressional amendments, non-essential to the job.
Employers are entitled to articulate the qualifications they consider essential to their businesses and to exercise substantial discretion in judging the reasonableness of safety-related job qualifications. Yet such decisions must be supported by objective fact in order to comply with the ADEA. As recognized by the 1986 congressional amendments to the ADEA, such employment decisions by a state are at the heart of federalism.
The second prong inquires whether age is a necessary proxy for the essential— in the cases of bus companies and airlines, safety-related — job qualification being sought. An employer must show either that all or substantially all persons over the age limit would be unable to perform the job safely and efficiently or that it was “impossible or highly impractical to deal with older employees on a individualized basis.” 472 U.S. at 414, 105 S.Ct. at 2752 (footnote omitted). The employer could establish that “some members of the discriminated-against class possess a trait precluding safe and efficient job performance that cannot be ascertained by means other than knowledge of the applicant’s membership in the class.” Id. Thus the first prong of the test inquires whether an essential job qualification is at stake, the second whether age is a necessary proxy for that qualification.
Legislative Discretion as to the Boundaries of “Reasonably Necessary”
Although we held, in Tamiami, that employers are entitled to substantial discretion in judging the reasonableness of qualifications, the Supreme Court has left undefined the boundaries of employers’ discretion — in this case a state legislature’s — in weighing the three considerations it has identified.
Eecent circuit court decisions have sought to fill in the remaining gap left by the Supreme Court’s analysis in balancing the competing values of antidiscrimination and federalism. In reversing a district court’s invalidation of a mandatory retirement age, the Eighth Circuit pointed out that the Missouri General Assembly had made a “legislative judgment that the age restrictions ... [were] in the best interest of the Patrol and the people the Patrol serve[d] throughout the state ... [and that the court] should accord some deference to the state legislative declaration.” Equal Employment Opportunity Commission v. Missouri State Highway Patrol, 748 F.2d 447, 450 (8th Cir.1984). The court cautioned, however, that while concern for federalism was a consideration, it did not “relieve the Patrol from the burden of showing that each of these restrictions is a BFOQ.” Id. In this circumscribed way, the court set an outside limit on discretion by the legislature as to what was reasonably necessary.
Equal Employment Opportunity Commission v. Commonwealth of Pennsylvania, 829 F.2d 392 (3rd Cir.1987) more precisely identified the burden that the employer was required to meet in demonstrating a BFOQ reasonably necessary for a job. The court held that Pennsylvania could not justify its mandatory retirement age for state troopers because it had not “developed, implemented and enforced” minimum standards of health and fitness that would justify the BFOQ. The court distinguished a recent case, EEOC v. New Jersey, 631 F.Supp. 1506 (D.N.J.1986), aff'd, 815 F.2d 694 (3rd Cir.1987), in which New Jersey’s mandatory requirement law for state police officers was upheld against an ADEA challenge 829 F.2d at 396. In that case, the district court found that all members of the New Jersey State Police, whatever their ages, were subject to minimum fitness standards and that all or substantially all officers over age 55 could not meet those standards. It is the finding of minimum standards that are “developed, implemented and enforced” that provides the threshold limiting an employer’s discretion in establishing a BFOQ defense. Not only would a finding of minimum standards limit an employer’s discretion, but also it would satisfy the Supreme Court’s concern to decrease stereotypes unsupported by objective fact and would ensure both that a good faith decision on required qualifications was made by a competent authority and that the use of age as a proxy was proper.
Despite this minimum standards limitation on an employer’s discretion to articulate what is reasonably necessary, a court must be especially cautious when dealing with legislatures for the “task is admittedly a most difficult and often impossible one, since legislatures are not known for providing clear guidance to those interpreting their works”. See Aguillard v. Edwards, 778 F.2d 225, 227 (5th Cir.1985) (dissent from denial of Petition for Rehearing En Banc) (scrutinizing legislative motivation for secular purpose in an establishment of religion case). For this reason, a court examining the discretion available to an employer must exercise special care when the employer is a legislature.
Mississippi’s Legislative Determination
It is likely that Mississippi’s age qualifications for game wardens would have passed muster had the Mississippi legislature “developed, implemented and enforced” minimum standards of health and fitness and shown that nearly all conservation officers over age sixty could not meet those standards or that individual determinations were impossible. Since the Supreme Court’s concerns would have been satisfied, our task would have been simply to defer to a decision by a competent authority. That did not take place, however; and because it did not, there is no essential job qualification in this case that age can stand as a proxy for.
The district court has made factual findings, which we do not find to be clearly erroneous, that: (a) no legislative history existed for the enactment, 654 F.Supp. at 1172; (b) “the mandatory retirement age for conservation officers was sold to the legislature ... without first instituting health and fitness policies within the Department,” id.; (c) “no standards [were] presented to the family physician to guide him in his determination that the candidate [was] healthy,” id. at 1174; (d) there were no physical fitness or health standards that were used for retention of supervisors, lake and area managers, and conservation officers in the Fisheries and Wildlife Department, id. at 1175. There being no such standards, age cannot serve as their proxy.
This being so, the district court correctly reasoned that Mississippi failed the first prong of the Criswell test. The court, however, went further in its analysis and examined “arguendo ” whether the Mississippi enactment would have passed the second prong of the Criswell test. Such an analysis was unnecessary, and we express no opinion on its validity. It will be time to consider such matter when and if Mississippi sets qualifications, such as health and fitness, that are circumscribed by minimum standards. In that event, proper deference, especially since the decision-maker is a legislature, must be afforded with respect to the social choices that it makes.
Because Mississippi failed to establish health and fitness qualifications reasonably necessary for the job of conservation officer and for which age may be a valid proxy, the BFOQ “escape clause” of the ADEA is not available. Miss.Code Ann. § 49-1-15 (Supp.1985) thus plainly violates the ADEA, and it is unenforceable. This district court order is therefore AFFIRMED.
_
. Miss.Code Ann. § 49-1-15 (Supp.1985).
. In Tamiami, Judge Brown had offered a "plain meaning" reading of "reasonably necessary”: “Typically statutory, the words ‘reasonably necessary to the normal operation of its business,' are not normally of the variety that suggest hand-wringing, earth-shaking, heartrending decisions of great moment.” Usery v. Tamiami Trail Tours, 531 F.2d 224, 226 (5th Cir.1976).
Question: What is the total number of appellants in the case? Answer with a number.
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".
ILLINOIS STATE JOURNAL-REGISTER, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 16979.
United States Court of Appeals Seventh Circuit.
June 10, 1969.
R. Theodore Clark, Jr., Richard D. Ostrow, Chicago, Ill., for petitioner, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, Ill., of counsel.
Marcel Mallet-Prevost, Asst. Gen. Counsel, Nancy M. Sherman, Atty., N. L. R. B., Washington, D. C., Arnold Ord-man. Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Michael F. Rosen-blum, Atty., N. L. R. B., for respondent.
Before HASTINGS, Senior Circuit Judge, KILEY and KERNER, Circuit Judges.
HASTINGS, Senior Circuit Judge.
Illinois State Journal-Register, Inc. (Company) petitions this court, pursuant to Section 10(f) of the National Labor Relations Act (Act), as amended, 29 U.S.C.A. § 160(f), to review and set aside an order of the National Labor Relations Board (Board), issued against the petitioning-Company on June 3, 1968. The Board found the Company had engaged in unfair labor practices within the meaning of Section 8(a) (1) and 8(a) (5) of the Act, as amended, 29 U.S.C.A. § 158(a) (1) and (a) (5), by refusing to bargain collectively with the International Mailers Union (Union), exclusive bargaining representative for the Company’s 14 city and country district circulation managers working out of Company’s Springfield, Illinois plant.
The Board, pursuant to Section 10(e) of the Act, as amended, 29 U.S.C.A. § 160(e), cross-petitions for enforcement of its order.
The record reveals that the Company is an Illinois corporation engaged in the business of publishing daily newspapers in Springfield, Illinois. It further shows that on August 30, 1967, the Union filed a petition with the Board seeking to represent for purposes of collective bargaining the Company’s city and country district managers.
Subsequent to a hearing ordered by the Thirteenth Regional Director of the Board to consider, inter alia, whether the district men whom the Union sought to represent were supervisory or managerial employees, the Regional Director issued a decision finding that such district managers were not supervisory or managerial employees and that they constituted a unit appropriate for the purposes of collective bargaining pursuant to Section 9(b) of the Act, as amended, 29 U.S.C.A. § 159(b). The Board denied the Company’s request for review of the Regional Director’s unit decision in case No. 38-RC-419.
Pursuant to the Regional Director’s direction, a representation election was conducted on January 17, 1968 in which a majority of the district managers designated the Union as their collective bargaining representative. On January 25,1968, the Union was so certified.
It is undisputed that subsequent to the certification the Union requested, and continues to request, the Company to bargain collectively and that the Company has refused, and continues to refuse, to bargain with the Union.
With the Company’s refusal to bargain, the Union filed a charge, and the Board’s General Counsel, by the officer-in-charge of Subregion 38, issued a complaint and notice of hearing on March 19, 1968 against the Company alleging violations of Section 8(a) (5) and 8(a) (1). In answer to the complaint, the Company admitted its refusal to bargain and alleged that the certification of the Union was invalid on the grounds that the district managers are not employees within the meaning of Section 2(3) of the Act, as amended, 29 U.S.C.A. § 152(3). Specifically, the Company’s answer contends that the 14 district managers are supervisors within the meaning of Section 2(11), as amended, 29 U.S.C.A. § 152(11). The Company contends, therefore, that its refusal to bargain is not violative of the Act since the certification of the Union was invalid as such district men do not constitute an appropriate bargaining unit.
Thereafter, on March 27, 1968, General Counsel filed with the Board a motion for summary judgment. The motion was premised upon the Board’s “rule against relitigation.” Under such procedure, the Board will not relitigate in a subsequent refusal-to-bargain proceeding matters which have been considered and disposed of in a prior related representation case. Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 61 S.Ct. 908, 85 L.Ed. 1251 (1941); N. L. R. B. v. National Survey Service, Inc., 7 Cir., 361 F.2d 199, 204 (1966).
By the motion, General Counsel asserted that since the Company admits its continuing refusal to bargain and that since the sole issue raised by the Company’s answer related to the question of the unit’s propriety, which had been previously determined in Case No. 38-RC-419, a hearing with respect to the alleged unfair labor practice was unnecessary under the rule against relitigation.
In substance, the Board granted the motion on the basis of the reasoning embraced in General Counsel’s motion for summary judgment.
In this case, the Company’s petition for review of the Board’s order in effect represents a petition for review of the Regional Director’s finding and decision that the 14 district managers are employees, rather than “supervisors and/or managerial employees”, and constitute a unit appropriate for the purposes of collective bargaining. This is true since the validity of the Board’s order hinges on the propriety of the Regional Director’s finding with respect to the issue of whether the district managers were employees within the meaning of the Act.
It is axiomatic that the Board is accorded wide discretion in establishing the correct limits of a bargaining unit and is not subject to reversal unless it is arbitrary and capricious in the exercise of its discretion. N. L. R. B. v. Waukesha Lime & Stone Co., 7 Cir., 343 F.2d 504, 507 (1965); N. L. R. B. v. Weyerhaeuser Company, 7 Cir., 276 F.2d 865, 869 (1960), and cases cited therein, cert. denied, 364 U.S. 879, 81 S.Ct. 168, 5 L.Ed.2d 102. The finding reached in the instant case with respect to the question of whether the district managers were employees and constituted an appropriate bargaining unit “must be sustained if it is supported by substantial evidence on the record considered as a whole.” Trailmobile Division, Pullman Incorporated v. N. L. R. B., 5 Cir., 379 F.2d 419, 422 (1967); N. L. R. B. v. Security Guard Service, Inc., 5 Cir., 384 F.2d 143 (1967).
After examining the record, we are satisfied that the evidence substantially supports the conclusion that the Company’s district managers are employees within the meaning of the Act and constitute an appropriate bargaining unit. Such a determination was reasonable and cannot be characterized as being arbitrary or capricious in nature. It necessarily follows that the Board’s petition for enforcement of its order should be granted.
The record shows that the Company’s circulation department has 14 district men or managers. Each manager is assigned to a geographical area known as a district; there are five country and nine city districts. Though the manager’s functions and responsibilities within his district are multifarious and the subject of some disagreement, it is undeniable that his paramount concern is with the newspaper carriers of which there are approximately sixty to seventy in each district.
With respect to the Company’s contention that the district men are managerial employees, we are in accord with the Regional Director’s analysis that “the discretion and initiative which these men [the district managers] are expected to exercise fall within relatively unimportant areas * * * ” and “ * * * make them sufficiently removed from managerial policy-making so they may not be considered employees who formulate, determine and effectuate managerial policy.”
Though the Board has established a policy of excluding “managerial employees” from bargaining units, it has not developed clear guidelines for determining whether particular individuals are “managerial employees.” In Retail Clerks International Ass’n, A.F.L.-C.I.O. v. N. L. R. B., 125 U.S.App.D.C. 63, 366 F.2d 642, 644-645 (1966), cert. denied, 386 U.S. 1017, 87 S.Ct. 1373, 18 L.Ed.2d 455, the court notes that there seem to be two fundamental tests for determining whether an employee is a managerial employee and therefore excludable under Board policy from bargaining units.
The first test is to determine whether an employee is so closely related to or aligned with management as to place the employee in a position of potential conflict of interest between his employer on the one hand and his fellow workers on the other. If an employee is found to be in such a position, he is not, under Board policy, entitled to be represented in the collective process.
The second managerial employee test is to determine whether the employee is formulating, determining and effectuating his employer’s policies or has discretion, independent of an employer’s established policy, in the performance of his duties. If an employer cloaks an individual with such authority or such discretion, that individual would be a managerial employee and would be deprived of the right of representation by a bargaining unit.
The alignment between the 14 district men in question and the upper management echelon of the Company is not of such degree or character as to place these employees in a position of potential conflict. The alignment test is essentially a narrow one in the sense that unless an employee is substantially involved in his employer’s labor policies his relationship with management is not one of a managerial employee. The rationale behind this is succinctly set forth in Westinghouse Electric Corporation v. N. L. R. B., 6 Cir., 398 F.2d 669, 670-671 (1968). In that case the court stated:
“The Board strictly adheres to its definition of a ‘confidential employee’ since a broader rule would, in the Board’s opinion, needlessly deprive many employees of their right under Section 7 of the Act to bargain collectively through representatives of their choosing. * * * The Board thus attempts to strike a balance between the right of employees to be represented in the collective bargaining process with the right of the employer to formulate, determine and effectuate its labor policies with the assistance of employees not represented by the union with which it deals.”
In the instant case, the record is devoid of substantial evidence showing that the 14 district men were concerned with or involved in the Company’s labor policies to such an extent that a potentially meaningful conflict of interest problem might arise. We find that the district men were not managerial employees under the first test.
Nor do we find upon consideration of the record as a whole that the district men were managerial employees within the meaning of the second test as set forth in Retail Clerks International Ass’n, A.F.L.-C.I.O. v. N. L. R. B., supra.
The record shows that the district men have similar duties within their respective districts. The paramount responsibilities of these men are: overseeing the distribution of the Company’s newspapers; working with the newspaper carriers, including the hiring and the training of the carriers; handling complaints which relate to delivery; adjusting and remitting sales receipts to the Company; participating in Company circulation campaigns, primarily by encouraging carriers to promote new subscriptions ; attending sales meetings; recommending discounts for delivery routes; organizing and determining delivery routes within their district; contracting news dealers on behalf of the Company; leasing space to serve as a substation within the district; and making various small purchases.
While the district man has various responsibilities, they are minor in nature and not tantamount to those of an employee who formulates, determines and effectuates his employer’s policies. The scope of his authority in the area of significant management policy is limited in nature and as the Regional Director aptly notes “the discretion and initiative which these man are expected to exercise fall within relatively unimportant areas.” The record contains evidence indicating that in the few areas where the district man appears to have some discretion in the performance of his job and to have some semblance of policy authority the Company effectively circumscribes such discretion and limits such authority.
The Company maintains that one indi-cia of the district manager’s discretion and authority rests in the fact that these men are “initiating discount policies.” The record reveals that the district man may recommend, instituting a discount on a particular delivery route, but it does not show they have the discretion or authority to make the ultimate determination, independent of Company consideration and approval, of whether a discount policy should be adopted.
A similar indication of the limited range of the district man’s discretion and influence on policy can be discerned by reviewing the extent to which he participates in circulation campaigns. While the district man may suggest and participate in setting up these campaigns, it does not appear he may independently initiate a major campaign. His primary function in such a campaign is seemingly confined to executing within his district those campaign plans formulated by his superiors. This amounts to encouraging his carriers “to promote and sell and canvass and get new subscriptions for our newspaper.”
A further manifestation of the limited discretion and authority can be discovered in the uncontroverted testimony of the Company’s assistant circulation director, Umberto A. Natale. He testified that the district man “can recommend that his district be redivided * * *” but that someone else, presumably someone at a higher level, determines whether the recommended subdivision would be provident.
In this case, the extent of the district man’s relation to and influence on major company policies is limited to making recommendations to the Company with respect to its policies and future plans. The Board has held that the power to make recommendations does not warrant precluding one from representation as a managerial employee. Puget Sound Power & Light Company, 117 NLRB 1825, 1827 (1957). The other areas in which the district man has apparent discretion and policy authority are relatively unimportant in scope or effectively circumscribed by Company policy or review.
As an additional proposition, the Company further contends the Board erred in holding that the 14 district men were not supervisors within the meaning of Section 2(11) of the Act, as amended, 29 U.S.C.A. § 152(11), which provides in relevant part:
“The term ‘supervisor’ means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees * * *.” (Emphasis supplied.)
Also relevant is Section 2(3) of the Act, as amended, 29 U.S.C.A. § 152(3), which reads in material part:
“The term ‘employee’ shall include any employee, * * *, unless this subchapter explicitly states otherwise, * * *, but shall not include any individual * * * having the status of an independent contractor, or any individual employed as a supervisor, * * (Emphasis supplied.)
The Company urges that the Board erred in deciding whether the 14 district men were supervisors within the meaning of Section 2(11) by referring to Section 2(3) of the Act to determine whether the individuals they supervised were employees. The Company asserts that relevant legislative history and the wording of Section 2(11) do not “invite reference” to the definition of the term employee in Section 2(3). Thus, the gravamen of the Company’s ingenious argument rests on the contention that “any individual who exercised supervisory authority on behalf of an employer, regardless of whether the individuals supervised were ‘employees’ within the meaning of Section 2(3)”, is a supervisor. To bolster its contention, the Company reasons that to hold that the term “employees” in Section 2(11) is to be defined by Section 2(3) would render the word “other” in Section 2(11) superfluous. We are not persuaded by the Company’s position on what appears to be a question of first impression.
With regard to the superfluousness argument, we agree with the view expressed in International Ladies’ Garment Workers’ Union, A.F.L.-C.I.O. v. N. L. R. B., 2 Cir., 339 F.2d 116, 121-122 (1964),that:
“The natural inference to be drawn from the language of section 2(11), especially if attention is paid to the words ‘other employees’, is that the employer referred to is the employer of those being supervised. * * *”
By looking to Section 2(3) for the definition of employee to determine whether an individual is a supervisor does not render the term “other” in Section 2(11) superfluous, but rather the term functions to limit the statutory definition of a supervisor to those individuals who are given by their employer supervisory authority over other employees of that same employer. To so view the function of the term “other” does not appear to thwart the Congressional intent behind Section 2(11) and related sections and is in accord with both judicial and Board precedent. Retail Clerks International Ass’n, A.F.L.-C.I.O. v. N. L. R. B., supra at 644, n. 2, of 366 F.2d; Eureka Newspapers, Inc., 154 NLRB 1181, 1185 (1965).
Study of the legislative history behind the 1947 Taft-Hartley enactment of Sections 2(3) and 2(11) sheds scant light on the specific issue of whether the term “other employees” in Section 2(11) is to be defined by reference to Section 2(3). The legislative history does not contain a statement of intent to bar such reference.
We are persuaded by the logic of the Board’s reasoning that it is difficult to imagine that Congress, in redefining and narrowing the scope of the term “employee” by excluding supervisors and independent contractors, did not intend for the Board and courts to look to the revised definition of the term “employee”, as set forth in Section 2(3), in construing the definition of “supervisor”, as defined in Section 2(11).
In view of this reasoning and the absence of precedent and clear legislative history to the contrary, we find that unless an individual is granted by his employer supervisory authority over fellow employees, as defined in Section 2(3), of that same employer, he is not a supervisor within the meaning of Section 2(11).
In the instant case, it would be anomalous to hold that these 14 district men are truly supervisors. The parties have stipulated the carriers and dealers are independent contractors. Since independent contractors are not employees within the meaning of the Act and are excluded from the coverage of the Act by Section 2(3), we affirm the Regional Director’s conclusion that “* * * these managers cannot be their supervisors within the meaning of the Act.”
Finally, we find no merit in the Company’s contention that the district men were supervisors with respect to the Company’s agents and solicitors. We find ample support in the record to sustain the Regional Director’s conclusion that the supervisory authority of the district men over these employees is “too sporadic and too routine” to warrant classifying them as supervisors. We have held that “ [p] erformance of isolated, infrequent duties of a supervisory nature does not transform a rank and file employee into a supervisor.” Plastic Workers Union Local 18, I. U., D. & T. W., A.F.L.-C.I.O. v. N. L. R. B., 7 Cir., 369 F.2d 226, 230 (1966).
The petition to set aside the order under review is denied and the cross-petition for enforcement is granted.
Review denied.
Enforcement granted.
. The decision and order of the Board are reported at 171 NLRB No. 130, 1968-1 COH NLRB ¶22,531.
. This case is not published,
. The recent well-reasoned decision of Pepsi-Cola Buffalo Bottling Company and Squirt-Vernors of Buffalo, Inc. v. National Labor Relations Board, 2 Cir., 409 F.2d 676, March 25, 1969, seemingly opens to question the validity and vitality of the rule against relitigation. In the instant case, neither party to the dispute sought to invoke argument with respect to the soundness of the principle of no re-litigation in response to our invitation to consider such a move.
. Among other points, the Company urges that the district men exercise “independent judgment” in adjusting customer complaints, pledging Company credit, and establishing delivery routes. The record shows that: the adjustments made are minor in amount, routine and under a general Company policy which attempts to hold the carrier responsible for losses he has caused; the pledges of credit are small in amount and routine in nature; and the establishment of delivery routes is subject to policy “suggestions” by the Company.
It is also of interest to note that while a district man has discretionary authority to terminate a news carrier, the circulation manager Merle Williamson could not recall a ease of a district man exercising such authority and stated that any termination decision is subject to being overruled “by someone higher up in the Circulation Department.”
. At the hearing before the Regional Director, the parties stipulated that the “carrier boys, news dealers, and motor route dealers * * * were independent contractors working under the jurisdiction of the district managers.” See joint appendix, p. 59.
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_counsel1
|
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 appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
TYRRELL v. UNITED STATES.
No. 12991.
United States Court of Appeals Ninth Circuit.
Sept. 17, 1951.
See also, 9 Cir., 191 F.2d 154.
Philander Brooks Beadle, Morton L. Silvers, San Francisco, Cal., for appellant.
Chauncey Tramutolo, U. S. Atty., Joseph Karesh, Asst. U. S. Atty., San Francisco, Cal., for appellee.
Before DENMAN, Chief Judge, and MATHEWS and STEPHENS, Circuit Judges.
PER CURIAM.
The issue here for bail is whether there is a substantial question of error in the failure of the local board to incorporate in the appeal record Tyrrell’s statement of the religious character of his unpaid services on a ranch owned and operated by Christ’s Church of the Golden Rule. The pertinent regulation is: “Sec, 1626.13(a) Immediately upon an appeal being taken to the appeal board by a person entitled to appeal, the local board shall prepare the Individual Appeal Record * * * in duplicate, attaching the original to the inside of the registrant’s Cover Sheet * * * and placing the duplicate copy in the local board files. The local board shall carefully check the registrant’s file to make certain that all steps required by the regulations have been taken and that the record is complete. If any facts considered by the local board do not appear in the written information in the file, the local board shall prepare and place the file a written summary of such facts.” (Emphasis supplied.)
We think that the failure of the local board to summarize in writing Tyrrell’s testimony regarding the religious character of his ranch work and to place it in the file to be used by the appeal board, presents a substantial question of error within the decisions of the Supreme Court in Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567; Cox v. United States, 332 U.S. 442, 68 S.Ct. 115, 92 L.Ed. 59, and of the Courts of Appeals in United States v. Zieber, 3 Cir., 161 F.2d 90; Niznik v. United States, 6 Cir., 173 F.2d 328; Smith v. United States, 4 Cir., 157 F.2d 176.
The motion for bail is granted and bail is set at $2,000.
MATHEWS, Circuit Judge, dissents.
Question: What is the nature of the counsel for the appellant?
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_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.
Grady HAMRICK, Appellant, v. AEROJET-GENERAL CORPORATION, INDUSTRIAL SYSTEMS DIVISION, an Ohio Corporation, Appellees.
No. 73-1053.
United States Court of Appeals, Fourth Circuit.
Submitted Oct. 13, 1975.
Decided Nov. 12, 1975.
Martin C. Bowles, Charleston, W. Va., and Bennett R. Burgess, St. Albans, W. Va., for appellant.
John S. Haight, Charleston, W. Va., for appellee.
Before HAYNSWORTH, Chief Judge, and RUSSELL and WIDENER, Circuit Judges.
PER CURIAM:
Plaintiff-appellant seeks reversal of the decision of the District Court denying him relief for personal injuries which he allegedly suffered as the result of defendant-appellee’s negligence. The complaint was filed in the Court of Common Pleas of Kanawha County, West Virginia, and was removed by the defendant to the United States District Court for the Southern District of West Virginia on the basis of diversity of citizenship. The trial court, sitting without jury, found that the defendant was not negligent, and that the plaintiff himself was guilty of contributory negligence and assumption of risk.
Defendant, Aerojet, was a general contractor which had undertaken a construction project for Union Carbide Corporation. The plaintiff was instructed by his employer, Dougherty Company, Inc., one of defendant’s subcontractors, to report to the Union Carbide construction site. Upon arrival, finding it necessary to ascend to the third floor of the project, he chose to utilize the “man-lift” instead of a staircase which was equally accessible. The “man-lift” is a conveyor belt which stands perpendicular to the ground, has footholds and handles which allow persons to secure themselves, and serves as a crude mode of elevator. Having mounted the lift, the plaintiff failed to realize that he had gone beyond floor level of the top floor, and was approaching the point at which the belt would make a 180 degree turn and begin its descent. As a consequence, he was forced to jump off the lift. Upon impact with the floor, appellant sustained serious damage to his ankle.
Appellant alleged in the District Court that Aerojet was negligent in several regards, most notably in that they failed to mark the floors adjacent to the path of the man-lift. In support of his claim, he cited West Virginia Code Chapter 21, Article 3, §§ 1-3, which requires that employers take certain precautionary measures to protect employees from injury from mechanical apparatus.
Although West Virginia treats the violation of such a statute as prima facie negligence if it is the proximate cause of injury, Tarr v. Keller Lumber and Construction Co., 106 W.Va. 99; 144 S.E. 881 (1928), the District Court properly noted that the Supreme Court of West Virginia has held the above-mentioned statutory provision to be applicable only to the employer-employee situation. See Chenoweth v. Settle Engineers, Inc., 151 W.Va. 830, 838, 156 S.E.2d 297, 302 (1967). There is no dispute as to the fact that appellant and Aerojet did not stand in the relationship of employer and employee. Additionally, the District Court reasoned that the statutory language indicated a legislative intent to make the safety requirements applicable to operational industrial facilities, not to those which are merely under construction. Since the statute speaks to owners of places of employment “now or hereafter constructed,” W.Va. Code, c. 21, art 3, § 1, we feel that such an interpretation is proper. Although not unambiguous, the West Virginia Supreme Court seemed to concur in this construction. See Chenoweth v. Settle Engineers, Inc., supra at 838, 156 S.E.2d at 302.
The trial judge thus examined the duty owed to the plaintiff in accordance with the common law of West Virginia. Appellant urges that through the doctrines of “reasonable convenience” or “mutual advantage” he was owed the duty of reasonable care, rather than the lesser duty of refraining from willful and wanton conduct. On the authority of Perkins v. Henry J. Kaiser Company, 236 F.Supp. 484, (S.D.W.Va.1964), aff’d, 339 F.2d 703, the District Judge found neither theory to be applicable to the instant case. “Mutual advantage” requires that the owner of the apparatus receive advantage from the permitted use by another of that particular piece of equipment. Id. at 487. It is clear from the record that plaintiff could have chosen just as easily to use the stairs for his two-story ascent, and that no benefit accrued to Aero as a result of his decision to use the “man-lift.” “Reasonable convenience” is pertinent where it is foreseeable that use of the mechanism would be reasonably necessary for the subcontractor to perform the functions owed his general contractor. Id.; See also Pettyjohn v. Basham, 126 Va. 72, 100 S.E. 813 (1919). The existence of the equally accessible stairway negates the applicability of this doctrine as well.
The trial court found that Aero violated no duty owed the plaintiff-appellant. Additionally, it was found that plaintiff was contributorily negligent in his failure to observe that the “man-lift” had reached the top floor.
We cannot say that these findings are clearly erroneous. See Rule 52, F.R.Civ.P. Nor do we find any error of law. Since the findings of an absence of defendant’s negligence and appellant’s contributory negligence adequately dispose of the instant case, we express no opinion as to the propriety of the trial court’s decision that appellant’s action also constituted assumption of risk.
Accordingly, the judgment of the District Court is affirmed.
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_direct1
|
D
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal 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.
Frank P. SALISBURY, Appellant, v. Arnold TIBBETTS and George Sanford, Appellees.
No. 5809.
United States Court of Appeals Tenth Circuit.
Aug. 15, 1958.
Edward W. Clyde, Salt Lake City, Utah (J. Grant Iverson, Salt Lake City, Utah, on the brief), for appellant.
Eli A. Weston, Boise, Idaho (Fabian, Clendenin, Moffat & Mabey, Salt Lake City, Utah, on the brief), for appellees.
Before PHILLIPS, PICKETT and LEWIS, Circuit Judges.
PHILLIPS, Circuit Judge.
Salisbury has appealed from a judgment decreeing that Tibbetts and Sanford were each entitled to acquire by purchase 600 shares of the voting stock of the Reliance National Life Insurance Company; ordering Salisbury to forthwith deposit with the clerk of the court such 1,200 shares of stock; ordering that Tibbetts and Sanford might purchase such stock upon the payment of the purchase price within 30 days from the delivery thereof to the clerk; and further decreeing that in the event of the failure of Salisbury to deposit such stock with the clerk, he should pay Tibbetts and Sanford $200,000, with interest from the date of judgment.
The controversy between the parties had its genesis in the circumstances which surrounded the promotion and organization of the Reliance Company. Salisbury, immediately prior to September, 1953, was employed by the Professional & Business Men’s Insurance Company as an agency supervisor and he was a member of the board of directors of the Professional Company. In September, 1953, he was discharged as agency supervisor. At the time of such discharge Sanford was employed by the Professional Company and was working under Salisbury’s supervision. Sanford testified that in a conversation he had shortly after such discharge, he suggested that they should organize a new life insurance company of their own and that Salisbury approved the idea. Sanford admitted there was no definite plan agreed upon, or any decision reached as to who would organize the company. Thereafter, at the request of Salisbury, Sanford contacted various insurance men in the western states in an effort to interest them in organizing a new insurance company, but with no definitive results.
Salisbury owned 550 shares of the Professional Company stock when he was discharged by that company, a portion of which he desired to sell. An arrangement was entered into between Salisbury and Sanford, whereby the latter was to sell a portion of such stock and from the proceeds realized from such sales, Salisbury was to receive $35 per share and Sanford was to retain any excess over that amount which he obtained. Sanford went to the State of Washington, where he enlisted the aid of Tib-betts in selling such stock. They sold a large portion of the stock within approximately a two-month period, at an average price of $70 per share, out of which they received $12,000. Other shares of such stock were sold through other agents, under a similar arrangement.
After further informal discussion among Salisbury, Sanford and other prospective promoters, a plan was evolved for the organization of an insurance company, with an organizational structure patterned after the Professional Company. However, no agreement was reached as to who should participate in the promotion and organization of the company.
In January, 1954, Salisbury established an office in Salt Lake City. He obtained legal counsel, arranged for reinsurance contracts with other insurance companies, and began the formation of an insurance company office staff. On January 26, 1954, Salisbury proceeded to effectuate the incorporation of the Reliance Company, with authority to issue two classes of stock, namely, 2,500 shares of voting common stock and 15,000 shares of non-voting preferred stock.
It was contemplated that the non-voting stock would be sold to the public and Salisbury obtained the necessary permits for the sale of the non-voting stock to the public in Utah, Nevada and Idaho.
On February 17, 1954, Sanford and Tibbetts arrived in Salt Lake City and went to Salisbury’s office. Salisbury showed them the Reliance Company’s offering circular and they became cognizant of its contents. The circular recited that of the authorized 2,500 shares of voting stock, 1,900 shares had been subscribed ; that 600 shares had been issued to Salisbury; 600 shares to Edith G. Amos, Salisbury’s sister; 100 shares to Ella S. Salisbury, Salisbury’s wife; 200 shares each to Robert H. Petersen, Mark A. Stokes and Ray Smith, and that 600 shares remained in the treasury.
Sanford testified that he objected to the distribution which had been made of the voting stock and inquired, “ * * * Where do I come in?” and Salisbury said, “Well, you don’t have to worry about that. The law required me to have all the voting stock sold or I couldn’t get a solicitation permit. Now, there is your solicitation permit. You don’t have to worry about that. Our agreement is on. We will go out and get this job done and get the stock sold, and when we get our charter and we hold our first board of directors meeting you will be put on as the officer according to our agreement, and on the board of directors and then you can buy your stock.” Sanford admitted, however, that there was no agreement as to the amount of stock that he and Tibbetts would be permitted to buy.
Sanford testified that shortly thereafter Salisbury learned that certain persons with whom he had been negotiating had decided not to join with him in developing the Reliance Company and that in the presence of Petersen and Tibbetts Salisbury stated: “Well, * * *, the four of us can do the job. The four of us will do the job and the four of us will own and run this company.” Tibbetts testified to substantially the same effect. Sanford further testified it was then “I knew that it was a four-way proposition, or I thought it would be a four-way proposition.” Here again, it will be observed, there was no agreement as to the amount of the voting stock each might acquire. Salisbury denied the testimony-of Sanford and Tibbetts, upon which they predicate their claim, that there was an agreement between them and Salisbury for the purchase by them of voting stock. Petersen testified that he never heard either Sanford or Tibbetts make any protest or objection to the amount of stock purchased by Salisbury or his family and in other respects Petersen fully corroborated Salisbury’s testimony.
Sanford and Tibbetts engaged in the sale of the non-voting stock. They received a commission of 12% per cent on all sales. Sanford testified that they sold '60 to 70 per cent of the non-voting stock. When the Reliance Company received $125,000 from the sale of non-voting stock, it became authorized to commence the writing of insurance.
On August 30, 1954, Sanford and Tib-betts met with Salisbury in his office in Salt Lake City. Sanford and Tibbetts demanded that Salisbury sell to each of them 600 shares of the voting stock. Salisbury refused, telling them that such a demand was ridiculous. The dispute became heated and Sanford and Tibbetts left Salisbury’s office. Tljey returned again and after further discussion Salisbury offered to sell each of them 100 shares of the voting stock at $10 per ■share. Sanford and Tibbetts accepted the offer. Sanford testified that Salisbury made it clear that so far as he was concerned, that was the most that either of them would receive. Sanford and Tibbetts gave promissory notes to Salisbury for the purchase price, plus some other debts that they owed Salisbury. The notes were later paid and Sanford and Tibbetts each received 100 shares of the voting stock.
Sanford and Tibbetts continued selling insurance for the Reliance Company. Further disagreements developed and in September, 1956, Salisbury discharged them as agents of the Reliance Company. They commenced the instant action February 15, 1957.
The trial court found that two oral agreements were entered into between the parties; one, to organize and incorporate an insurance company; and two, a later agreement that Salisbury would be president of the corporation; that Petersen, Sanford and Tibbetts would be on the board of directors; that “the division and ownership of the property was to be on a one-fourth basis with one-fourth interest in the voting and controlling stock of the company to be in each of the individuals present at the meeting: Tibbetts, Sanford, Salisbury and Petersen;” that contrary “to the terms of the agreement and in an effort to def"aud” Sanford and Tibbetts, Salisbury “obtained control of the majority of the voting stock” and refused to comply with the terms of the agreement. The trial court then concluded, as a matter of law, that Salisbury, “contrary to the provisions of said agreement, purchased approximately 1,900 shares * * * in his own or his family’s name, thereby establishing a constructive trust under which the Defendant [Salisbury] became trustee for the benefit of the Plaintiffs [Sanford and Tibbetts] for the one-fourth share each * * * ”; that one-fourth interest was to be 600 shares of the voting stock; and, accordingly, entered judgment as above stated.
We are of the opinion that the evidence and the inferences that may fairly be drawn therefrom, viewed in the light most favorable to Sanford and Tibbetts, do not support the finding of the trial court as to the second oral agreement with respect to the division of the voting stock among Sanford, Tibbetts, Petersen and Salisbury. Certainly, the evidence wholly failed to establish any understanding or agreement at any time as to any amount of the voting stock which Sanford and Tibbetts would be permitted to purchase. Therefore, one term essential to a definite and complete contract was lacking. A contract that is incomplete or indefinite in its material terms will not be specifically enforced in equity.
Salisbury provided all of the initial capital. He looked after all the details of the organization and incorporation of the Reliance Company; organized an office staff; arranged for reinsurance agreements; secured necessary selling permits; and took care of the initial expenses. It is true that the services of Sanford and Tibbetts in selling a portion of Salisbury’s stock in the Professional Company and a portion of the non-voting stock of the Reliance Company were important, but they were fully compensated for those services. Under the circumstances, it would seem exceedingly doubtful that Salisbury would surrender a controlling interest in the voting stock of the corporation to third persons.
A constructive trust must he established by evidence which is clear, definite, ' unequivocal, and satisfactory; which leaves no reasonable doubt as to the existence of the trust. The evidence on the present record, far from meeting those standards, is at best slight, contradictory, and loosely circumstantial, consisting of the uncorroborated testimony of two interested parties, indefinite as to substance, imaginative as to fact and precatory as to meaning.
A careful examination of the entire evidence leaves us with the definite and firm conviction that there is no substantial basis for the court’s finding that Sanford, Tibbetts and Petersen entered into an agreement on September 17, 1954, or at any time, whereby Sanford, Tibbetts and Petersen were each to receive 600 shares, or any number of shares of the voting stock, and that such finding is clearly erroneous.
Moreover, we are of the opinion that Sanford and Tibbetts are foreclosed as to their alleged claim against Salisbury by an accord and satisfaction, or a compromise of a disputed claim.
The general rule established by many of the adjudicated cases and followed in Utah is that a discharge by accord and satisfaction must rest upon a contract, express or implied, and the essentials to a valid contract generally must be present, that is, “(1) A proper subject matter, (2) competent parties, (3) an assent or meeting of the minds of the parties, and (4) a consideration.”
In Sullivan v. Beneficial Life Ins. Co., 91 Utah 405, 64 P.2d 351, 362, the court defined accord and satisfaction as follows:
“The definition of an ‘accord and satisfaction’ is: ‘An accord is an agreement whereby one of the parties undertakes to give or perform, and the other to accept in satisfaction of a claim, liquidated or in dispute and arising either from contract or from tort, something other than or different from what he is or considers himself entitled to. And a satisfaction is the execution of such agreement.’ ”
The evidence clearly established that Sanford and Tibbetts asserted that they were entitled to receive and demanded 1,200 shares of the voting stock. Salisbury denied that they were so entitled and stated that their demand was ridiculous. Even if we assume, although we have decided otherwise, that the inferences which the trial court drew from the conversations between the parties were permissible, there can be no doubt that such conversations fully warranted a good faith denial by Salisbury of the claims asserted by Sanford and Tibbetts. The evidence established a bona fide dispute between the parties. Salisbury made an unequivocal offer to settle the dispute by selling to Sanford and Tib-betts 100 shares each of the voting stock at $10 per share. Sanford and Tibbetts unequivocally accepted such offer. The compromise agreement was carried out and thereupon there was an accord and satisfaction.
Sanford and Tibbetts assert that the principles of accord and satisfaction are inapplicable where the relationship of the parties is trustee and beneficiary. They cite no authority in support of that proposition.
We express no opinion as to whether the contention would have validity if an express trust were present. We entertain no doubt that where one party asserts a claim predicated on facts, which, if true, would give rise to a constructive trust and the other party disputes the facts and denies the claim and a bona fide dispute is present, that the parties may enter into a valid and binding accord and satisfaction or compromise agreement.
A constructive trust must never be confused with a real or express trust, which, in itself, contains a fiduciary relationship. The constructive trust lacks the attributes of a true trust and is only a fiction imposed as an equitable device to prevent injustice. It, unlike the express or true trust, is not a fiduciary relationship, although the circumstances which give rise to it may or may not involve a fiduciary relation.
Such being the character of a constructive trust, we perceive no reason why a bona fide dispute with respect to a claim, which, if established, would give rise to a constructive trust, should not be settled and discharged by an agreement of accord and satisfaction.
The judgment is reversed and the cause remanded, with instructions to enter judgment in favor of Salisbury.
. Hereinafter called Reliance Company.
. Hereinafter called Professional Company.
. Van Dyke v. Norfolk Southern R. Co., 112 Va. 835, 72 S.E. 659, 664; Pomeroy, Specific Performance of Contracts, 3d Ed., § 159.
. Jacoby v. Shell Oil Co., 7 Cir., 196 F. 2d 855, 858; National Waste Co. v. Spring Packing Corp., 7 Cir., 200 F.2d 14, 16, certiorari denied 345 U.S. 909, 73 S.Ct. 649, 97 L.Ed. 1344 ; 89 C.J.S. Trusts § 158, pp. 1079-1083.
. Jacoby v. Shell Oil Co., supra; Marshall v. Amos, Okl., 300 P.2d 990; Collins v. Shive, Mo., 261 S.W.2d 58; 89 C.J.S. Trusts § 158, p. 3081. See also, Kitt v. Kitt, 4 Utah 2d 384, 294 P.2d 791, 792.
. See United States v. Neel, 10 Cir., 235 F.2d 395, 399; United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746; Wilcox Oil & Gas Co. v. Diffie, 10 Cir., 186 F.2d 683, 696.
. Badger & Co. v. Fidelity Building & Loan Association, 94 Utah 97, 75 P.2d 669, 676.
. See also, Nevada Half Moon Mining Co. v. Combined Metals Reduction Co., 10 Cir., 176 F.2d 73, 76.
. Healy v. Commissioner of Internal Revenue, 345 U.S. 278, 282-283, 73 S.Ct. 671, 97 L.Ed. 1007; Scott on Trusts, Vol. 3, § 462.1; 89 C.J.S. Trusts § 139 p. 1015.
. Gendler v. Sibley State Bank, D.C.Iowa, 62 F.Supp. 805; In re Farmers State Bank of Amherst, 67 S.D. 51, 289 N.W. 75, 126 A.L.R. 619; Restatement of the Law of Restitution, § 160, Comment (a); Scott on Trusts, Vol. 3, § 462.1, p. 2316; 89 C.J.S. Trusts § 139 pp. 1018-1019.
. See Scott on Trusts, Vol. 3, § 481.3.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
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songer_opinstat
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A
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What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam.
The FIDELITY AND CASUALTY COMPANY OF NEW YORK, a corporation, Appellant, v. BANK OF ALTENBURG, Appellee.
No. 15052.
United States Court of Appeals Eighth Circuit.
Oct. 27, 1954.
Gerald B. Rowan and Allen L. Oliver, Cape Girardeau, Mo. (Oliver & Oliver, Cape Girardeau, Mo., with them on the brief), for appellant.
Rush H. Limbaugh, Cape Girardeau, Mo. (Limbaugh & Limbaugh, Cape Girardeau, Mo., on the brief), for appellee.
Before GARDNER, Chief Judge, and THOMAS and COLLET, Circuit Judges.
COLLET, Circuit Judge.
This action is brought by the plaintiff, a small bank, to recover on a bond executed by defendant insuring it against losses caused by “false pretenses”. The loss resulted from a “check kiting” scheme conceived and carried out by one William J. Schneier. Usually there are two banking institutions involved in such a scheme. In this instance they were the plaintiff and the Brazeau Bank. Both were small banks in rural communities only a few miles apart. Both incurred losses in substantial amounts. The Brazeau Bank closed as a result. It was taken over by the Federal Deposit Insurance Corporation, which instituted an action on a bond substantially similar to the one involved herein for its loss. That case was determined by this court on appeal in Hartford Accident & Indemnity Co. v. Federal Deposit Ins. Corp., 8 Cir., 204 F.2d 933. The factual details in this case are amply stated in the trial court’s memorandum opinion, Bank of Altenburg v. Fidelity & Casualty Co., D.C., 118 F.Supp. 529, 530:
“This case is a sequel to Hartford Accident & Indemnity Co. v. Federal Deposit Ins. Corp., 8 Cir., 204 F.2d 933.
“William J. Schneier obtained money by false pretenses, from the Brazeau Bank, by depositing checks in his personal account in the Brazeau Bank, drawn on his partnership account in the name of H & F Truck Service in the plaintiff bank. Schneier, as an integral part of the fraud perpetrated on the Brazeau Bank, was drawing checks on his personal account in the Brazeau Bank and depositing them in the H & F Truck Service account in plaintiff bank, to cover checks deposited in the Brazeau Bank. Schneier was engaged in ‘check kiting’ and on a large scale.
“The plaintiff bank apparently first broke the chain when it refused payment on a check, drawn on it and deposited in the Brazeau Bank, for ‘insufficient funds.’ Thereafter, and within a period of days, each of the banks named returned all outstanding checks drawn by Schneier.
“Schneier’s relations with plaintiff bank extend from February to late December, 1950. The Brazeau Bank lost $18,490 and the loss forced it to close. Suit was brought and recovery had by the Brazeau Bank on a bond of the Hartford Accident & Indemnity Co., v. Federal Deposit Ins. Corp., 8 Cir., 204 F.2d 933, protecting against loss resulting from false pretense. In this case the Bank of Altenburg seeks recovery of $15,338.71, plus interest, damages and attorney’s fees, on the same basis. Jury was waived. We now have the case for ruling on its merits.
“The principal issue now turns on defendant’s claim that plaintiff did not rely on Sehneier’s representation that checks deposited in it would be paid on presentation and Schneier did not deceive the plaintiff, and that the transactions between plaintiff and Schneier were in fact granting of loans and plaintiff’s loss results from nonpayment of the loans.
“The terms in the policy relied on for recovery are:
“‘(B) Any loss of Property through robbery, larceny (whether common-law or statutory), burglary, theft, false pretenses, hold-up, misplacement, mysterious unexplainable disappearance, damage thereto or destruction thereof, whether effected with or without violence or with or without negligence on the part of any of the Employees, * * *.’
“The record shows that at the very time Schneier opened his account with plaintiff in February, 1950, he initiated his check kiting scheme and that it continued regularly thereafter until December 30, 1950. On December 26th Schneier deposited in the H & F Truck Service account in plaintiff bank a check in the sum of $6,963.14 drawn on the Brazeau Bank. On December 28th he made a deposit of a like check for $6,894.70. On December 30th he made a deposit of a like check for $6,930.42. On December 30, 1950, a check was presented to plaintiff bank drawn by Schneier on the H & F Truck Service account which had been deposited in the Brazeau Bank. There were not sufficient funds in the account to pay it and the check was returned to the Brazeau Bank. In due course (three, four or five days), clearing through a St. Louis bank, the three checks drawn on the Brazeau Bank described above were returned to plaintiff marked ‘insufficient funds’ by the Brazeau Bank. Prior to the return of these three checks plaintiff had permitted Schneier to check out most of the money purported to be represented by the three checks. Plaintiff was able to reduce its loss from a balance in the account and by other means, from $20,788.26 to $15,338.-71. After notice to defendant of such loss, payment on the bond was refused. This suit followed. There is no controversy as to the physical manner in which Schneier operated to obtain the funds from the two banks, or the amount of plaintiff’s loss on the three checks.
“Defendant charges, and plaintiff concedes, before recovery can be had in this suit, plaintiff must establish that the essential elements of obtaining money by false pretenses existed at the time it paid out funds on the three checks which caused its loss. One essential element of a case based on false pretense, and which is brought into issue, is that ‘the representation must be believed by the person allegedly defrauded and must be relied on and be the effective cause in inducing the party to whom it was made, to part with his property.’ (Defendant’s brief.) By brief, defendant reduces its defense to a charge that plaintiff ‘was in fact simply loaning Schneier the money represented by the checks for the three, four or five days it took them to clear through the St. Louis Clearing House.’
“The details of Schneier’s fraudulent operations are more fully developed in this case than in the Brazeau Bank case. To reach a conclusion as to whether plaintiff did or did not believe and rely upon Schneier’s representations that the three checks involved would be paid on presentation to the Brazeau Bank, we must view the case as the situation was presented to those in charge of plaintiff bank on the occasions and at the time under inquiry. Objectively, the issue before the court is not a simple one. This results in part from a record that reveals at once all the facts of Schneier’s transactions with the plaintiff, from the inception of his account until the fraud was stripped of all pretense, rather than as Schneier’s operations were presented from day to day to those in charge of plaintiff bank’s operations.
“The deposit slips and the records of the H & F Truck Service account in plaintiff bank shed light on the question as to how the situation developed to those in charge of plaintiff bank, at the time the deposits were made. From the inception of the account on February 14th until December 30th, the deposit slips are uniform in some particulars. Excepting one on April 20, 1950, for $22.50, all deposits are for large sums. They vary from $6,000 to $8,000. With the exception of two deposits they were always made up of one large check and a number of small items, and in some cases currency was included. The large check in each deposit was, according to the undisputed testimony, drawn on the Brazeau Bank. The large check in each deposit did not change significantly in the account throughout the whole period. They were for odd sums and varied between $6,000 and $7,000. The one included in the initial deposit was for $6,361.69, in a total deposit of $6,431.43. The last one was for $6,930.42, included in a total deposit of $7,064.11. The deposit slips show deposits made with substantial regularity, generally from two to three to four days apart.
“The ledger sheets are also material on the issue. They show the account, opening on February 14, 1950, was first overdrawn on April 14th in the sum of $4,026.80. This overdraft was taken up the following day by a deposit of $6,546.33, including a check on the Brazeau Bank for $6,352.25. Thereafter the overdrafts were as follows: On May 24, $122.34; May 26, $4.78; May 29, $97.76; June 12, $766.62; June 16, $1,101.95; June 19, $926.50; June 23, $1,140.02. There were no more overdrafts until October 13 when there was one for $5,398.32. On October 30 there was an overdraft of $103.07; November 3,, $521.93; November 6, $10.28; November 10, $264.19; November 13, $232.40; November 29, $46.88; December 15, $313.09; December 16, $827.55; December 18, $919.88. In every instance of overdraft it was taken up the day following by a substantial deposit which always included a check drawn by defendant on his personal account in the Brazeau Bank. The average daily balance was in excess of $3,400.
“The large checks included in Schneier’s deposits drawn on the Brazeau Bank eventually gave concern to the employees in charge of plaintiff bank. After the November board meeting Mr. Poppitz, the cashier, told Mr. Mueller, a member of the Board of Directors, of the large cheeks being deposited by Schneier. Mueller lived in the same village as Schneier and was acquainted with him. Poppitz asked Mueller to see Schneier ‘and find out why he was writing such big checks.’ Mueller talked to Schneier with the result:
“ ‘Mr. Schneier told me that he was buying a lot of poultry and eggs and livestock, that he was selling that here in St. Louis, collecting the money in his name, taking it to Brazeau and depositing it in his account, and then he would write a check to the H. & F. Truck Line to settle it, trucking and all/
“The regularity of the inclusion by Schneier in his deposits in plaintiff bank of large checks drawn by him on the Brazeau Bank raised a question, among those who were in charge of plaintiff bank, as to Schneier’s method of financial operations. The subject was discussed among the employees. Mr. Preusser, assistant cashier of plaintiff bank, testified to this. He summed up the conversations among the employees as follows:
“ ‘We discussed the matter, and whenever we discussed it, we always ended in the same conclusion, that the H. & F. Truck Service met their obligations, and just a few times it happened that they did not have enough there, and we called them by telephone and they brought a deposit so we could pay their checks.’
“On cross-examination he gave the following testimony:
“‘Q. * * * if you had not permitted the drawing against an account until a check had time to clear and be collected, then Mr. - the H. & F. Truck Service account in that sense, during all the period of 1950, would never have had a balance in it, would it? A. Could be.
******
“ ‘Q. It was obvious to you during your conversations with Mr. Poppitz and Mr. Meyr that what Mr. Schneier was doing was covering a check drawn against the H. & F. Truck Service account by a check drawn against his personal account in the Bank of Brazeau? A. That is the way it seemed.
“ ‘Q. Yes. And that is what you discussed with each other, is it not? A. Yes.’
“Under examination by the Court the witness testified:
“ ‘Q. You never did think he had enough money to cover those checks? A. No, mostly likely not.
“ ‘Q. Did you think then that he was using the funds of the two banks to finance his business with? A. Well, that is the way it seemed.'
“The above testimony was qualified on re-examination as follows:
“ <q_ * * * Now, did you say that that was obvious to you then or that it is obvious to you now? A. No, toward the last. It wasn’t about every one of the checks.’
“This testimony reflects the attitude and reasoning with respect to care and judgment of those in charge of plaintiff bank at the time the transactions were taking place that eventually led to plaintiff’s loss. We quote further:
“ ‘Q. * * * when you were discussing the matter with the other employes of the bank, did you ever take the account and compare the deposits of checks on the Bank of Brazeau with checks drawn on your bank and deposited with the Bank of Brazeau, how they seemed to correspond, did you ever do that? A. No, we did not do that.
******
“ ‘A. We noticed the big checks.
“ ‘Q. You noticed they were substantial, in like amounts ? A. That is right.
“ ‘Q. What conclusion did you draw from that? A. Well, we just did not know what he was doing.
“ ‘Q. * * * did you have any question whether he was transacting a legitimate business or not, so far as the two banks were concerned ?
******
“ ‘A. Well, we discussed that, too, and the conclusion we always got or the point we always arrived at was that he did meet his obligations.
“ ‘Q. That he did? A. That he did meet his obligations at the bank and did not overdraw.
“ ‘Q. As long as that was the situation, you would let the matter ride, is that right? A. That is right.’
“On October 28, 1950, the cashier of the Brazeau Bank wrote to plaintiff bank regarding the activities of Schneier. In this letter it was indicated that the Brazeau Bank was suspicious about the large checks which were coming through for deposit drawn on the H & F Truck Service and the large checks being drawn on Schneier’s personal account in the Brazeau Bank. This letter mentioned that these transactions happened about three times a week. The letter of the Brazeau Bank was not answered. Several weeks later a member of the board and another officer from plaintiff bank visited the Brazeau Bank. Only generalities were discussed. No examination was made of the personal account of Schneier.
“About December 15th Mr. Vogel, who was the partner of Schneier in the H & F Truck Service, showed Mueller the H & F Truck Service bank statement. The partner was without knowledge why Schneier was writing the large checks.
“Mr. Mueller again saw Schneier about December 15th. This time Schneier volunteered a statement about getting working capital in St. Louis. Again the discussion was general, surrounded with uncertainty.
“ ‘Questions by the Court:
“ ‘Q. * * * You say when you went to see Mr. Schneier, about December 15, 1950, is that correct? A. Yes.
“ ‘Q. That he said after the first of January he was going to get some working capital from St. Louis? A. Yes.
“ ‘Q. And he said he would not write any more big checks? A. That is right.
“ ‘Q. How did you associate the getting of capital with ceasing to write big checks? A. I just did not understand it. I did not know how he really was operating.
“ ‘Q. You did not put any significance in the connection of those two? A. No.’
“Mueller was asked if he had ever heard of the term ‘check kiting.’ It was a new word to him. T always figured the bank account, there is enough money there to cover it, alt your checks, and there is a balance over, there couldn’t be anything wrong with the bank account.’
“The assistant cashier’s lack of knowledge of kiting checks is typical of the other employees of the bank. He had never had any experience with the fraudulent process. It had never happened before in the experience of the Bank of Altenburg.
“A Judge, over the years, hears detailed various schemes used by cunning and resourceful criminals to defraud. This does not aid in understanding the viewpoint of the operators of small banks in isolated communities, such as the plaintiff bank and the Brazeau Bank. It will not do to use the norm of urban bankers, lawyers or businessmen. We must not forget the customers of these two banks are the neighbors of the directors and employees of the banks. Small town and isolated residents are just as inclined to suspect strangers as they are prone to trust their neighbors. There is. very little in the life of the individual, business or otherwise, that is not common knowledge in the small community. Belief in the integrity of their neighbors is seldom disappointed. How long plaintiff bank has operated we do not know, but until Schneier disrupted the quiet complacency of the community, apparently no one in it had ever heard of check kiting. The record reveals the employees of plaintiff bank first had a question about Schneier’s account and eventually the question became a suspicion, but to reach a conclusion that Schneier was engaged in a fraudulent enterprise was a thought they resisted as though it were the plague. That this attitude is real we think is evidenced by the bank’s action when at last they were compelled to face the reality of Schneier’s fraud. A number of checks given by Schneier for small sums, but in their total several hundred dollars, came to the bank for payment. Apparently they were in payment to small farmers for livestock that Schneier had purchased. These checks were paid with full knowledge on the part of the bank that the act of paying them was increasing the bank’s loss. When the Court asked the official, while on the stand, why the bank would do such a thing, his face took on a pained expression and without any hesitancy or apparent feeling of lack of business judgment, he replied that the bank did not want to disappoint the holders of the checks, or words to that effect. The naiveness of the operators of plaintiff bank, in their belief in the common honesty of a man they knew, would be refreshing did it not at the same time represent, in its use, such utter incompetence for the work of handling other people’s money. But defendant wrote the bond in issue with full knowledge of the bank’s location.
“There is direct evidence that the employees in charge of plaintiff bank, believed Schneier’s checks, constituting the loss in suit, would be honored on presentation to the Bank of Brazeau. There is circum-; stantial evidence of such belief in the payment of the amount of the checks, excepting a small sum, out of the bank’s funds before the checks cleared. Additional facts presented by this record support the contention of plaintiff that they relied upon Schneier’s representation that the checks would be paid on presentation to the Brazeau Bank. Plaintiff was dealing with Schneier as a resident of the community of long standing, a man of supposed honor and good reputation. Schneier was in a business of large operations involving substantial sums of money for the purchase of livestock and its transportation- to St. Louis. The plaintiff bank and the Brazeau Bank were competitors. Schneier’s account on paper was a valuable account with its daily balance in excess of $3,400 and neither bank was willing to reveal its records to the other bank or do anything to lose Schneier’s account except as a last resort. Schneier had always taken care of overdrafts promptly. The Brazeau Bank, with as much knowledge apparently as plaintiff bank, permitted itself to be used by Schneier with the same apparent lack of grasp of the true situation as did plaintiff, to its loss and destruction.
“We find plaintiff has carried the burden of proof by showing, by the greater weight of the credible evidence, that the losses sued for come within the provisions of the bond.
“The plaintiff bank was negligent in handling the Schneier account in that it failed to use that degree of care to protect itself from loss which an ordinarily prudent person would use under the same or like circumstances. Loss by false representation, incurred as the result of negligence, is not a defense.
“The deposit of the three checks sued on did not constitute a loan by the plaintiff bank to Schneier. When the loan theory of defense is rejected, we must find that the plaintiff either was the victim of Schneier’s false pretenses, or hold that plaintiff bank deliberately gave away' its funds in an amount equal to almost one-third of its capital. To hold plaintiff did not rely on Schneier’s representations, and did not believe the checks would be paid on presentation can lead to no other conclusion. The latter conclusion we cannot accept. It would be an act of such character as to be dishonest. We think plaintiff bank’s officers and employees were grossly negligent, but not dishonest.
“Other issues raised by the answer are determined by the law as declared by the Court of Appeals in the Brazeau Bank case.”
The defenses relied upon, which are preserved on this appeal are (1) “that the evidence does not establish the essential elements to make a case of obtaining money or property by false pretenses,” (2) that the case is controlled by the law of Missouri, that the offense of false pretense has been defined by Missouri Statute, and under that law the facts do not make out the Missouri statutory crime of obtaining money by false pretenses, (3) that the loss sustained by plaintiff was not covered by the bond because it was not a loss from plaintiff’s premises, and (4) that the loss resulted from a transaction in the nature of a loan which was specifically excluded from coverage in the bond.
Concerning the first assignment, it is asserted that two essential elements of the offense of obtaining money by false pretense are lacking — that there must be a representation of a past or existing (but not future) fact, and the representation must be believed by the person defrauded and must be relied upon and be the effective cause in inducing the party to whom it was made to part with his property. (We have stated those elements in the language used by defendant in its brief.)
Defendant says that Schneier’s representation to plaintiff bank was in effect that the checks he deposited with it drawn on the Brazeau Bank would be paid when presented to that bank. It says that was a representation of a promissory nature of a future, not an existing fact. But that is not the manner in which the plaintiff’s officials construed Schneier’s conduct in presenting the checks to it for deposit. The representation implied was that sufficient funds were on deposit to meet the checks. That was a representation of a present existing fact.
The second element said to be lacking, that the bank officers must have believed the implied representation of Schneier that the checks were good, either existed or was absent, dependent upon the facts developed at the trial. The charge that this element was not established amounts to an assertion that the evidence did not sustain the trial court’s conclusion to the contrary. The case was tried without a jury. The trial court developed this question in some detail in the memorandum opinion heretofore quoted. Our examination of the record discloses no justification for rejecting that finding. The further contention made in connection with the foregoing argument, that if plaintiff’s officials did not actually know the implied representation was false they should have known, was properly answered by the trial court that negligence of those officials is not, under the bond, a defense to a loss from false representations.
The second assignment that under the law of Missouri the established facts did not make out a case of false pretenses but at most only constituted the misdemeanor of uttering a check with knowledge that there were insufficient funds in the bank upon which it was drawn for its payment, is based upon the premise that the term “false pretenses” used in the bond must be given the same technical meaning in which the term is used in the Missouri statute defining that criminal offense. We do not explore that question further than the authorities cited by both parties. Those authorities are not decisive of the question either way. For present purposes we will assume that defendant’s statement of the law of Missouri is correct. We do not recommend that assumption when the correctness thereof is decisive. It is not decisive here, because the scheme practiced did fall within the Missouri statutory definition of false pretenses.
Defendant assumes that all that was involved in the false pretenses practiced was the presentation of a check and obtaining money or something of value therefor, knowing at the time that there were insufficient funds in the bank upon which it was drawn. Such conduct is characterized by § 561.460, RSMo 1949, V.A.M.S., as a misdemeanor and does not use the term false pretense in defining the offense. In that respect the definition of the misdemeanor differs from the definition of other offenses which do include in their definition the term false pretenses. Statutes defining offenses in which the term false pretenses is used are § 561.370 and § 561.-450 RSMo 1949, V.A.M.S. Section 561.-370 uses the following language:
“561.370. Obtaining money, goods, by false pretenses. — Every person who, with intent to cheat or defraud another, shall designedly, by color of any false token or writing or by any other false pretense, * * * obtain from any person any money, personal property, right in action or other valuable thing or effects whatsoever, * * * shall upon conviction thereof be punished in the same manner and to the same extent as for feloniously stealing the money, property or thing so obtained.”
The pertinent language of § 561.450 is:
“561.450. Confidence game or fraudulent checks — penalties.—Every person who, with the intent to cheat and defraud, shall obtain or attempt to obtain, from any other person, or persons, any money, property or valuable thing whatever by means or by use of any trick or deception, or false and fraudulent representation, or statement or pretense, or by any other means or instrument or device, commonly called ‘the confidence game,’ or by means or by use, of any false or bogus check or by means of a cheek drawn, with intent to cheat and defraud, on a bank in which the drawer of the check knows he has no funds or by means or by use, of any corporation stock or bonds or by any other written or printed or engraved instrument or spurious coin or metal, shall be deemed guilty of a felony and upon conviction thereof be punished by imprisonment in the state penitentiary for a term not exceeding seven years.” (Italics supplied.)
Check kiting, as practiced here, involves more than the mere use of a check with insufficient funds in the bank to meet it. It involves a series of acts which together constitute a scheme, a studied device, false pretenses
built upon a series of false representations designed to lull the banks involved into a feeling of confidence and security. The bad check is given. Money or credit is received from a bank other than the one on which the check is drawn. If credit is taken, that credit is usually drawn on immediately. The check kiter then deposits a check in the bank upon which the first check is drawn before the first check arrives there. The second check is drawn on the bank from which the first money or credit is received. Credit is taken for it and that credit covers the first check when it comes in and possibly additional credit. Then the process is carried on, back and forth, until the scheme is discovered. In this instance it went on from February, 1950, until late in December, 1950. The practice is a false pretense under § 561.370, if not a “trick” or “deception” involving a false and fradulent representation, or a “confidence game” under § 561.450. See State v. Whitledge, Mo., 269 S.W.2d 748, 751 The mere fact that the giving of a check with insufficient funds in the bank to meet it is one of the series of acts constituting the false pretense or the trick, device, or game, does not take the practice of “check kiting” out of the definition of the offenses defined by § 561.370 or § 561.450. Neither State v. Richman, 347 Mo. 595, 148 S.W.2d 796, nor State v. Griggs, Mo., 236 S.W.2d 588, relied on by the defendant, so holds. In each of those cases (which were criminal prosecutions) the act constituting the offense charged was the giving of a worthless check, in the Richman case a check with insufficient funds in the bank to meet it, in the Griggs case with no funds in the bank upon which it was drawn. No such scheme, device, game or false pretenses involved in check kiting was involved in those cases. We held in the Brazeau Bank case, Hartford Accident & Indemnity Co. v. Federal Deposit Ins. Corp., 8 Cir., 204 F.2d 933, 937:
“We think the District Court correctly concluded that the loss sustained by the Brazeau Bank was directly caused by false pretenses and was within the coverage of the bond.”
(See also Federal Deposit Ins. Corp. v. Hartford Ace. & Indem. Co., D.C., 106 F.Supp. 602.) While the question was not presented in the Brazeau Bank case in the way it is now presented, we adhere to the opinion there expressed and supplement our former expression by now further holding that the conduct practiced on plaintiff herein not only constituted false pretenses under the ordinary meaning of the term but also constituted false pretenses under the Missouri statutory definition of the criminal offense.
The third assignment is based upon the following premises. It is said that “Property”, as defined in the bond, refers to tangible property, that the insuring clause requires that a loss of such tangible property must occur through false pretenses and that the loss must be of tangible property from defendant’s premises as a result of false pretenses practiced on defendant’s premises. From those premises it is argued that the loss in this instance was not covered by the bond. The argument is both resourceful and ingenious. It was presented to the trial court in the Brazeau Bank case, Federal Deposit Ins. Corp. v. Hartford Acc. & Indem. Co., supra, and overruled, it was not presented to us on the appeal of that case. See Hartford Accident & Indemnity Co. v. Federal Deposit Ins. Corp., 8 Cir., 204 F.2d 933.
We are unable to agree with the argument that the bond contemplated reimbursement only in the event tangible or physical property was taken from the bank by means of false pretenses. The bond was to cover banking operations. The losses covered were very broad. The term “Property” was defined to include a multitude of types of assets of the bank, including “money, currency, coin * * * securities, evidences of debt, * * * certificates of deposit * * * rights, transfers, coupons, drafts, bills of exchange, acceptances, promissory notes, checks, money orders, * * * and all other instruments similar to or in the nature of the foregoing * * * and chattels which are not hereinbefore enumerated and for which the Insured is legally liable.” Applying the language used in the Brazeau Bank case, Hartford Accident & Indemnity Co. v. Federal Deposit Ins. Corp., supra, in construing another provision of a similar bond, “it is not conceivable to us that any disinterested banker, insurance underwriter, or lawyer would construe” this bond as not covering assets of the bank lost through a “check kiting” scheme practiced upon it.
The fourth and last assignment that the loss resulted from a transaction in the nature of a loan is based upon an exclusion clause of the bond that it did not cover: “Any loss the result of the complete or partial nonpayment of or default upon any loan made by or obtained frpm the Insured, whether procured in good faith or through trick, artifice, fraud or false pretenses, except *
The facts were developed in more detail in this case than in the Brazeau Bank case, but the essential elements of the scheme practiced in both cases were the same. In fact, as heretofore shown, the series of events and practices which resulted in the loss by the Brazeau Bank constituted the identical scheme, device and false pretenses which brought about the loss in this case. In the former case we said:
“ ‘Contracts of insurance, like other contracts, must be construed according to the terms which the parties have used, to be taken and understood, in the absence of ambiguity, in their plain, ordinary, and popular sense.’ Bergholm v. Peoria Life Ins. Co., 284 U.S. 489, 492, 52 S.Ct. 230, 231, 76 L.Ed. 416 ; State ex rel. Prudential Ins. Co. of America v. Shain, 344 Mo. 623, 627, 127 S.W.2d 675, 677.
“It is not conceivable to us that any disinterested banker, insurance underwriter, or lawyer would construe the word ‘loan’, as used in the exclusion clause of this indemnity bond, to cover the obligation [of Schneier] imposed by law to reimburse a bank for money or credit obtained through the use of worthless checks.”
The same reasoning applies here. Finding no reversible error, the judgment appealed from is affirmed.
. From the insuring clause: “ ‘Any loss of property * * * whether effected with or without violence or with or without negligence on the part of any of the Employees * * ”
. “561.460. Checks or drafts drawn when funds insufficient. Any person who, to procure any article or thing of value or for the payment of any past due debt or other obligation of whatsoever form or nature or who, for any other purpose shall make or draw or utter or deliver, with intent to defraud any check, draft or order, for the payment of money, upon any bank or other depositary, knowing at the time of such making, drawing, uttering or delivering, that the maker or drawer, has not sufficient funds in or credit with, such bank or other depositary, for the payment of such check, draft, or order, in full, upon its presentation, shall be guilty of misdemeanor, and punishable by imprisonment for not more than one year, or a fine of not more than one thousand dollars, or by both fine and imprisonment.”
. Decided July 12, 1954, reported August 24, 1954, subsequent to the filing of briefs in this case.
. It is interesting to note that in State v. Evelyn Hartman, Mo., 272 S.W.2d 276, the Griggs case was overruled in certain important respects. The Hartman case was transferred from Division Two to the Missouri Supreme Court en banc and there argued and submitted on October 7, 1954. The opinion in the Hartman case by Division Two has not, of course, under these circumstances, been reported. Having examined the Division opinion in the Hartman case, and reaching the conclusion that its outcome in the court en banc will not be decisive in this case, we do not await the final determination of the Hartman case.
Question: Is the opinion writer identified in the opinion, or was the opinion per curiam?
A. Signed, with reasons
B. Per curiam, with reasons
C. Not ascertained
Answer:
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songer_usc1
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28
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited 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.
Earle R. ROBINSON, Petitioner-Appellant, v. Louis BERMAN, Respondent-Appellee.
No. 78-1367.
United States Court of Appeals, First Circuit.
Submitted Jan. 5, 1979.
Decided March 23, 1979.
Willie J. Davis, Boston, Mass, by appointment of the Court, on brief for petitioner-appellant.
Robert S. Potters, Asst. Atty. Gen., Criminal Division, Francis X. Bellotti, Atty. Gen., and Stephen R. Delinsky, Asst. Atty. Gen., Chief, Criminal Bureau, Boston, Mass., on brief, for respondent-appellee.
Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.
BOWNES, Circuit Judge.
On November 10, 1975, petitioner-appellant, Earle R. Robinson, forced a fifteen year old male hitchhiker to commit fellatio at knifepoint and was sentenced to state prison for violating Mass.Gen.Laws ch. 265, § 22A, which prohibits “sexual intercourse or unnatural sexual intercourse with a child under sixteen ... by force and against his will or . . .by threat of bodily injury.” He brought a petition for a writ of habeas corpus under 28 U.S.C. § 2254, asserting that the statutory term “unnatural sexual intercourse” is unconstitutionally vague. The district court ruled that judicial decisions of the Massachusetts courts had put petitioner on notice that his conduct was illegal and granted a motion to dismiss. We affirm.
Several general principles govern our determination as to whether Mass.Gen. Laws ch. 265, § 22A is unconstitutionally vague. A state may not hold an individual “criminally responsible for conduct which he could not reasonably understand to be proscribed.” United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954). See also Rose v. Locke, 423 U.S. 48, 49, 96 S.Ct. 243, 46 L.Ed.2d 185 (1975). Criminal statutes must, therefore, be sufficiently specific to give fair notice of what conduct is forbidden. Id. at 49-50, 96 S.Ct. 243; Colten v. Kentucky, 407 U.S. 104, 110, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972). Unless a statute impinges upon the exercise of first amendment rights, it will usually be appraised “in light of the facts of the case at hand,” United States v. Mazurie, 419 U.S. 544, 550, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975), and will not be held void for vagueness if the person challenging it had sufficient warning that his own conduct was unlawful. Id. at 553. See also United States v. Powell, 423 U.S. 87, 92, 96 S.Ct. 316, 46 L.Ed.2d 228 (1975). A statute whose terms have a commonly understood meaning or have been clarified by judicial explanation or by application to particular conduct is not unconstitutionally vague. See Rose v. Locke, supra, 423 U.S. at 50 — 52, 96 S.Ct. 243.
We recently discussed and applied these principles in Balthazar v. Superior Court, 573 F.2d 698 (1st Cir. 1978). There, we held that Mass.Gen.Laws ch. 272, § 35, which proscribes “unnatural and lascivious acts,” was unconstitutionally vague as applied to a person who committed fellatio and oral-anal contact. Id. at 699. Although ruling that at the time Balthazar committed his acts, the statute lacked a well understood meaning and had not been sufficiently defined or applied to Balthazar’s conduct, we noted that subsequent Massachusetts decisions, e. g., Commonwealth v. Balthazar, 366 Mass. 298, 318 N.E.2d 478 (1974); Commonwealth v. Deschamps, 1 Mass.App. 1, 294 N.E.2d 426 (1972), had narrowed the statute and had applied it to fellatio. Balthazar v. Superior Court, supra, 573 F.2d at 702.
Robinson contends that our decision in Balthazar compels the conclusion that ch. 265, § 22A is unconstitutionally vague. He misreads our opinion. The term “unnatural sexual intercourse,” standing alone, could well be found to have no more commonly understood meaning than “unnatural and lascivious act,” the terms found constitutionally infirm in Balthazar. However, the Massachusetts Supreme Judicial Court had given a clear warning in 1974 that forced fellatio was illegal. Commonwealth v. Bal thazar, supra, 366 Mass. at 302, 318 N.E.2d at 481. See also Commonwealth v. Deschamps, supra, 1 Mass.App. 1, 294 N.E.2d 426. Petitioner is, therefore, in a poor position to argue that he had no notice that his 1975 conduct was prohibited.
Robinson protests, however, that the Balthazar case concerned ch. 272, § 35, a different statute from the one under which he was convicted. We think this is immaterial. The essence of the fair warning requirement embodied in the due process clause is that a person should not be punished for an act he could not know was criminal. We agree with the Massachusetts Supreme Judicial Court that a person who forces another to commit fellatio on him while on notice that it is an “unnatural and lascivious act” within the meaning of one criminal statute had no cause to complain that he had no notice his conduct violated another statute prohibiting “unnatural sexual intercourse.” Commonwealth v. Gallant, Mass.Adv.Sh. (1977) 2254, 2266, 2272, 369 N.E.2d 707, 713 (1977). The petitioner cites no authority to the contrary.
The petitioner, since he received a fifteen to eighteen year sentence, understandably expresses concern that the maximum life penalty under ch. 265, § 22A is much greater than the maximum five year penalty under ch. 272, § 35. Nonetheless, an argument premised on the unconstitutionality of a statute for vagueness does not address the issue of differing potential punishments. Unless prosecutorial abuse of discretion in charging petitioner under the harsher statute is alleged — and none is here — we see no due process violation. See generally Commonwealth v. Gallant, supra, Mass.Adv.Sh. at 2267 n.11, 369 N.E.2d at 713 n.11; Commonwealth v. Gonzales, Mass. App.Adv.Sh. (1977) 1211, 1214-15, 369 N.E.2d 1038, 1039 (1977).
Although the district court did not base its decision on procedural grounds, the Commonwealth argues on appeal that dismissal of the petition was warranted because (1) the record does not show that Robinson properly raised his claim in state court, as required by Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976), and (2) by failing to appeal to the highest state court, he failed to exhaust state remedies, as required by 28 U.S.C. § 2254(b). We address these contentions in order.
The Commonwealth failed to raise the first issue in the district court and, hence, will be barred from raising it here for the first time. With regard to the second issue, we have recognized a limited exception to the exhaustion requirement when the question raised by petitioner has recently been decided by the highest state court. Sarzen v. Gaughan, 489 F.2d 1076, 1082 (1st Cir. 1973); Belbin v. Picard, 454 F.2d 202, 204 (1st Cir. 1972); Walsh v. Picard, 446 F.2d 1209, 1210 n.2 (1st Cir. 1971), cert. denied, 407 U.S. 921, 92 S.Ct. 2465, 32 L.Ed.2d 807 (1972).
When the highest state court has addressed itself to the issues raised, and there are no intervening Supreme Court decisions on point, nor any indication that the state court intends to depart from its former decisions, the exhaustion doctrine does not require a petitioner to present his claims in state court.
Sarzen, supra, at 1082. In other words, a petitioner need not exhaust state remedies if it would be futile to do so.
Petitioner argues that he should not have to exhaust the state appellate procedure since the Massachusetts Supreme Judicial Court recently construed “unnatural sexual intercourse” under a separate statute, Mass. Gen.Laws ch. 265, § 23, as including fellatio, Commonwealth v. Gallant, supra, Mass. Adv.Sh. (1977) 2254, 369 N.E.2d 707, and there is no reason to believe it would not likewise construe the same language in ch. 265, § 22A, the statute under which Robinson was convicted.
In Gallant, the Massachusetts Supreme Judicial Court rejected an argument that Mass.Gen.Laws ch. 265, § 23, which prohibits “unnatural sexual intercourse” with a child under sixteen, was unconstitutionally vague as applied to a person who had a child commit fellatio. Id. at 2256, 369 N.E.2d at 709. The petitioner in this case was convicted under ch. 265, § 22A, a closely related statute which also prohibits “unnatural sexual intercourse” with a child under sixteen, but requires an additional showing of force or threat of bodily injury. The words “unnatural sexual intercourse” were inserted in both statutes by the same 1974 amendment redefining rape and related offenses, 1974 Mass.Acts, ch. 474, and were presumably intended to have the same meaning in both statutes. Commonwealth v. Mamay, Mass.App.Ct.Adv.Sh. (1977) 1216, 1218, 369 N.E.2d 1036, 1037; Commonwealth v. Gonzales, supra, Mass.App.Ct.Adv.Sh. at 1213, 369 N.E.2d at 1039.
Since the highest state court recently construed the identical language in a similar statute as extending to the behavior here complained of, we think that the narrow exception to the exhaustion requirement is aptly invoked. Because a prior decision by the Massachusetts Supreme Judicial Court had put petitioner on fair notice that his conduct was illegal, Commonwealth v. Balthazar, supra, 366 Mass. at 302, 318 N.E.2d at 481, no due process violation can be premised on his conviction under Mass.Gen.Laws ch. 265, § 22A.
The order of the district court denying the petition for a writ of habeas corpus is affirmed.
. In Balthazar, we noted that a precursor statute to Mass.Gen.Laws ch. 272, § 35 had been construed by the Massachusetts Supreme Judicial Court in Commonwealth v. Dill, 160 Mass. 536, 537, 36 N.E. 472, 473 (1894), to include “any mode of unnatural copulation,” but that the term “unnatural copulation” was itself vague. 573 F.2d at 700-01.
. In his petition for a writ of habeas corpus, the petitioner says that, prior to trial, the Superior Court reported the following question: “Should the Court allow the defendant’s motion to dismiss an indictment . . . under . General Laws, Chapter 265, Section 22A . where the evidence [before the grand jury] shows that the defendant compelled the victim to commit fellatio upon the defendant?” The Supreme Judicial Court ruled that the motion should be denied because the adequacy of the evidence before the grand jury could not be tested by a motion to dismiss; it refused to address the argument that the statute involved was unconstitutionally vague because the motion to dismiss did not pose that question. Commonwealth v. Robinson, Mass.Adv.Sh. (1977) 2273, 2276-77, 368 N.E.2d 1210, 1212. The habeas petition does not state and the record is silent as to whether the petitioner then made a motion to dismiss on vagueness grounds in the trial court.
. The district court granted a summary dismissal of the petition rendering the record sparse. Notwithstanding this, the Commonwealth’s sole grounds for moving to dismiss were that the petition failed to state a claim upon which relief may be granted and petitioner’s failure to exhaust. We are not inclined to read the first ground more broadly than a general allegation that petitioner was lawfully convicted under a constitutional statute. We do not read it so expansively as to encompass an allegation that petitioner failed to raise his constitutional claim in state courts.
. The 1974 amendment changed the language of the following Massachusetts provisions: ch. 265, § 22 (forcible rape), ch. 265, § 22A (forcible rape of a minor), ch. 265, § 23 (consensual intercourse with a minor), ch. 265, § 24 (assault with intent to rape), ch. 265, § 24B (assault on a minor with intent to rape), and ch. 277, § 39 (definitions for indictment). It protected both males and females from sexual assaults and assessed the same penalties for unlawful sexual intercourse and unnatural sexual intercourse.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
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songer_usc2sect
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607
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 42. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
ITT LAMP DIVISION of the INTERNATIONAL TELEPHONE AND TELEGRAPH CORPORATION, Plaintiff, Appellant, v. Stephen A. MINTER, Commissioner of the Massachusetts Department of Public Welfare, Defendant, Appellee. MAURICE CONCRETE PRODUCTS, INC., Plaintiff, Appellant, v. Stephen A. MINTER, Commissioner of the Massachusetts Department of Public Welfare, Defendant, Appellee.
Nos. 7720, 7749.
United States Court of Appeals, First Circuit.
Dec. 14, 1970.
See also D.C., 318 F.Supp. 364.
Jerome H. Somers, Boston, Mass., with whom Louis Chandler, Stoneman & Chandler, Boston, Mass., Matthew E. Murray, Andrew M. Kramer,. and Seyfarth, Shaw, Fairweather & Geraldson, Chicago, Ill., were on the brief, for appellants.
William E. Searson, III, Asst. Atty. Gen., with whom Robert H. Quinn, Atty. Gen., was on the brief, for appellee.
Before ALDRICH, Chief Judge, McENTREE and COFFIN, Circuit Judges.
COFFIN, Circuit Judge.
These two cases, combined for purposes of appeal, present the question whether the defendant Commissioner of the Massachusetts Department of Public Welfare is wrongfully intruding in a labor dispute by making available welfare benefits to strikers who otherwise qualify under Massachusetts statutes providing for General Welfare and Aid to Families with Dependent Children, Mass.G.L. cc. 117 and 118. Plaintiffs claim that such state action alters the relative economic strength of the parties, thus entering a field preempted by the national policy guaranteeing free collective bargaining, in violation of the Supremacy Clause of the Constitution. Plaintiffs’ motions for injunctive relief were denied, the district court finding no evidence of irreparable injury and no reasonable probability of success on the merits. Although the strike against ITT was subsequently settled, the issue, we know from our own experience, has earlier vainly sought appellate review in this circuit and is likely again to be raised, bringing it close to the “recurring question” category, where significant public rights are involved and court review ought not, if possible, be avoided. See So. Pac. Terminal Co. v. I.C.C., 219 U.S. 498, 515-516, 31 S.Ct. 279, 55 L.Ed. 310 (1911) and Marchand v. Director, U. S. Probation Office, 421 F.2d 331 (1st Cir.1970). In any event, however, the appeal of Maurice Concrete presents the identical question.
Plaintiffs have not contended in their brief that the district court erred in finding that there was “no evidence to show to what extent the receipt of welfare payments will affect the continuation of the strike” but have based their claim of irreparable injury on the alleged interference with collective bargaining constituted by the present and prospective payments of welfare benefits. Since at least one of the appeals presents a case where a substantial number of strikers might possibly have qualified for welfare, we prefer to accept plaintiffs’ assumption that the issue of irreparable harm merges into and becomes indistinguishable from the issue of probable success on the merits. That is to say that if indeed it is probable that the present and prospective provision of welfare to indigent strikers would be held to frustrate the collective bargaining process, it is equally probable that irreparable injury would be suffered.
We therefore move to the question whether plaintiffs have demonstrated sufficient probability of prevailing on the merits. Automatic Radio Mfg. Co. v. Ford Motor Co., 390 F.2d 113, 115-116 (1st Cir.), cert. denied, 391 U.S. 914, 88 S.Ct. 1807, 20 L.Ed.2d 653 (1968). So far as our research indicates, this is the first occasion on which a federal court has considered a confrontation between the national policy of free collective bargaining and the administration of a state’s welfare laws. For nearly four decades the preemptive sweep of this national policy has, from Allen-Bradley Local 1111, UEW v. Wisconsin Emp. Rel. Bd., 315 U.S. 740, 62 S.Ct. 820, 86 L.Ed. 1154 (1942) to Local 100, United Association of Journeymen & Apprentices v. Borden, 373 U.S. 690, 83 S.Ct. 1423, 10 L.Ed.2d 638 (1963), been interpreted by the Supreme Court in the context of real or potential conflict between federal and state tribunals in deciding issues arising out of activities protected or proscribed by sections 7 and 8 of the National Labor Relations Act, 29 U.S.C. §§ 157; 158, with occasional favorable consideration bestowed on state law invoked to prevent or compensate for acts of violence or for verbal excesses. All of the commentaries that have come to our attention have carried on the labor policy preemption debate in terms of these lines of cases with no mention of the problem posed by these appeals. While we do not know how long the challenged application of the Massachusetts Welfare Laws has existed, we know that New York has so administered its laws for eighteen years, Lascaris v. Wyman, 61 Misc.2d 212, 305 N.Y.S.2d 212, 216 (1969), and Illinois for twenty years, Strat-O-Seal Mfg. Co. v. Scott, 72 Ill.App.2d 480, 218 N.E.2d 227 (1966). This vacuum of case and comment on the issue at hand, while perhaps to be explained by the mooting of cases by strike settlements before the issue is reached, makes us pause before declaring probable the preemptive bar of federal labor policy as applied to the his-' toric state preserve of welfare.
The very novelty of the issue posed by the appeals places it outside of the focus of San Diego Building Trades v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1958), its ancestors and progeny. For Garmon, a deliberate effort by the Court to clarify standards relating to preemption in the labor-management field, was concerned with the specific subject matter of sections 7 and 8 of the National Labor Relations Act, 29 U.S.C. §§ 157, 158 — the protection of concerted activities and the proscription of unfair labor practices — both responsibilities having been vested in a single tribunal, the National Labor Relations Board. The bar against state action in Garmon, therefore, covers state regulation of conduct or activities which are clearly or arguably “within the compass” of sections 7 and 8 and therefore within the sole jurisdiction of the Board. Garmon, supra at 245, 79 S.Ct. 773. The administration of state welfare programs so as to render eligible individual strikers who otherwise qualify does not even arguably fall within the zone delineated in Garmon.
What we therefore confront is the question of applying the Supremacy Clause to a non -Garmon situation, where the asserted conflict is not an invasion by the state into an area of conduct regulated by a national instrumentality but a tangential frustration of the national policy objective of unfettered collective bargaining by state economic sustenance of some of the individuals who participate in federally protected, concerted activity. In such a situation, a balancing process seems called for under the general approach to preemption followed by the Supreme Court, in which both the degree of conflict and the relative importance of the federal and state interests are assessed. Note, Federal Preemption: Governmental Interests and the Role of the Supreme Court, Duke L.J. 484, 510, 511 (1966). Where Congress has not clearly manifested its purpose to exclude state action which takes the form of exercise of its historic police powers, such state action will not be invalidated under the Supremacy Clause, “in the absence of persuasive reasons”, Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248 (1963), or unless the administration of the state law “palpably infringes” upon the federal policy. Southern Pac. Co. v. Arizona ex rel. Sullivan, 325 U.S. 761, 766, 65 S.Ct. 1515, 89 L.Ed. 1915 (1945). See also Head v. New Mexico Bd. of Examiners, 374 U.S. 424, 83 S.Ct. 1759, 10 L.Ed.2d 983 (1963); Buck v. California, 343 U.S. 99, 72 S.Ct. 502, 96 L.Ed. 775 (1952).
On neither count — the issue of extent of conflict or the relative strength of the federal and state interests — would we feel confident in any a priori judgment. A court would first have to determine the quantum of impact on collective bargaining stemming from the granting of welfare benefits' to strikers. If this is found substantial a court would then have to weigh the impact on the state of declaring needy strikers and their families ineligible for welfare against the extent to which making them eligible stripped state government of its neutrality in a labor-management dispute.
Such weighing exércises could not be restricted to an ad hoe exploration of the microcosm of these particular disputes. A court must deal with “classes of situations” and not “judgments on the impact of * * * ' particular conflicts on the entire scheme of federal labor policy and administration”, Garmon, supra, 359 U.S. at 242, 79 S.Ct. at 778. Under such an approach, a court would be interested in how many states permit strikers to receive welfare; whether or not strikes tend to be of longer duration where welfare is received; any studies or expert testimony evaluating the impact of eligibility for benefits on the strikers’ resolve; a comparison between strike benefits and welfare benefits; the impact of the requirement that welfare recipients accept suitable employment; how many strikers actually do receive welfare benefits; and a host of other factors. In addition, the state’s legitimate interests must also be considered: its interests in minimizing hardship to families of strikers who have no other resources than the weekly pay check, its concern in avoiding conditions that could lead to violence, its interest in forestalling economic stagnation in local communities, etc.
This very catalogue of data relevant to a macrocosmie weighing, which a court, if called upon would have to undertake, indicates the preferable forum to be the Congress. Congress would be particularly appropriate in resolving this issue. The activity allegedly intruding into federal labor policy is not solely a state activity but rather a joint state-federal program. Congress has established the minimal requirements with which participating state welfare plans must comply. 42 U.S.C. § 602, et seq. We do not attribute heavy weight to Congressional silence, but we would doubt that, if striker eligibility for welfare had a significant impact on labor-management relations, Congress would be unaware of that impact. Moreover, if the issue proves to be finely balanced, after weighing all the evidence, it may be a sufficient justification for upholding the state action that Congress is always free to provide specifically for preemption. See Penn Dairies v. Milk Control Comm., 318 U.S. 261, 275, 63 S.Ct. 617, 87 L.Ed. 748 (1943).
In sum, wholly apart from the inadequacy of the evidence before the district court, we have substantial doubt that a significant frustration of federal collective bargaining policy is effected by the granting of welfare benefits to indigent strikers or that, even so, the state interest is so insubstantial compared to the federal interest that Congress must be supposed to have deprived the state of such power to serve that interest. We accordingly hold that the district court did not err in concluding that plaintiffs’ case did not have a sufficient probability of prevailing on the merits.
There remains for our consideration plaintiffs’ contention that the granting of welfare benefits to strikers violates the provisions of the Massachusetts Welfare Statutes and its federal counterpart, in that strikers, having voluntarily left their jobs, are persons who have “without good cause * * * refused a bona fide offer of employment. * * *” 42 U.S.C. § 607(b) (l). Plaintiffs tend in their argument to assume the very point in issue by equating a refusal to work with “fault” and absence of “good cause”. But this is no less circular or more persuasive than the contrary assumption of the defendant, accepted by the district court, that exercising one’s federally protected right to strike constitutes “good cause” to refuse employment. And the federal scheme, as plaintiffs’ reference to the Senate Finance Committee’s Report makes clear, allows the state, without of course deciding the merits of a particular controversy, to make the determination of what is covered by “good cause”, and what constitutes a “bona fide” offer of employment. Senate Committee on Finance, Rep.No. 165, 87th Cong., 1st Sess. p. 3 (1961), U.S.Code Cong. & Admin.News, pp. 1716, 1718.
The fact that the Massachusetts legislature has specifically made unemployment compensation unavailable to workers on strike, Mass.G.L. c. 151A, § 25, does not cast doubt on the Commissioner’s determination. We observe first that welfare programs, supplying unmet subsistence needs to families without time limitation, address a more basic social need than does unemployment compensation, which attempts to cushion the shock of seasonal, cyclical, or technological unemployment by making available time limited benefits to individual workers, varying in relation to their prior earnings and without reference to demonstrated need. Secondly, we would not lightly expand the legislature’s expressed negative in one piece of legislation to constitute an unexpressed proviso in another. Indeed silence on an issue where a legislature has shown its capacity to speak is all the more significant.
Plaintiffs’ further reference to the legislative history behind the federal enactment is not particularly helpful. The passages they quote do support the proposition, which the court accepts, that welfare programs were not designed to aid those who do not seek employment. But strikers who receive benefits fully conform to this legislative intention, since, as we noted above, all recipients, strikers included, must register and accept available alternate work under Mass.G.L. c. 117, § IB. Furthermore, the legislative history neither states, nor can be read to imply that strikers, as a group, are to be held ineligible for welfare benefits if they meet all qualifications set by the state.
In sum, therefore, we cannot say, as a matter of probability, that the Commissioner’s administrative determination of striker eligibility for welfare is precluded by the relevant state or federal statutes.
Affirmed.
. Brought separately by the ITT Lamp Division of the International Telephone and Telegraph Corporation and Maurice Concrete Products, Inc.
. The action of the court, though in response to a motion for temporary restraining order, was taken after a full presentation by both parties, Austin v. Altman, 332 F.2d 273, 275 (2d Cir. 1964), and had the effect of a denial of an injunction, see United States v. Cities Service Co., 410 F.2d 662, 663 n. 1 (1st Cir. 1969), and is therefore appealable.
. If plaintiffs’ approach is not correct, they, in any case, have surely not established irreparable injury. Our record is almost bereft of any indication of significant impact on either plaintiff. In the ITT case, apparently 175 or about 25% of 660 striking employees had applied for welfare. In the Maurice Concrete ease we have only the contrary assertions of counsel at argument that (1) a majority of 25 workers were receiving welfare and (2) only one worker was on welfare, and he because he was hit by a truck. There is no evidence of any relationship between the availability of welfare benefits to present or prospective striker recipients and the likelihood of prolongation of either strike.
. Of the same genus was our own case, General Electric Co. v. Callahan, 294 F.2d 60 (1st Cir. 1961), appeal dismissed, 369 U.S. 832, 82 S.Ct. 851, 7 L.Ed.2d 840 (1962), in which state legislation authorized a state tribunal to investigate a labor dispute and publicly report its findings as to the blameworthiness of the parties.
. United Construction Workers v. Laburnum, 347 U.S. 656, 74 S.Ct. 833, 98 L.Ed. 1025 (1954) ; International Union, UAW v. Russell, 356 U.S. 634, 78 S.Ct. 932, 2 L.E'd.2d 1030 (1958).
. Linn v. United Plant Guard Workers Local 114, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966).
. See, e. g., Labor Decisions of the Supreme Court at the October Term, 1957, 44 Va.L.Rev. 1057 (1958) ; Wellington, Labor and the Federal System, 26 U. of Chic.L.Rev. 542 (1959) ; Michelman, State Power to Govern Concerted Employee Activities, 74 Harv.L.Rev. 641 (1962) ; Meltzer, The Supreme Court, Congress and State Jurisdiction over Labor Relations, 59 Col.L.Rev. 6 (1959); Note, Preemption of State Labor Regulations Collaterally in Conflict with the National Labor Relations Act, 37 Geo. Wash.L.Rev. 132 (1968) ; Note, Federal Preemption in Labor Relations, 63 Northwestern L.Rev. 128 (1968).
. Garmon itself applies, within its area, the general approach, recognizing that on any issue of arguable conflict with sections 7 and 8, state action would nevertheless be tolerated where “the activity regulated [is] a merely peripheral concern of the Labor Management Relations Act”, 359 U.S. at 243, 79 S.Ct. at 779 “[o]r where the regulated conduct touche [s] interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, we could not infer that Congress had deprived the States of the power to act.” 359 U.S. at 244, 79 S.Ct. at 779.
. We note that there may arise non-Garmon labor relations situations where the conflict between federal and state interests and their relative importance would be so clear as to render such an extended empirical exploration unnecessary. The Massachusetts Supreme Judicial Court considered such to be the case in John Hancock Life Ins. Co. v. Com’r. of Insurance, 349 Mass. 390, 208 N.E.2d 516 (1965). In that decision the court invalidated a state statute protecting insurance policy holders by declaring a moratorium on the obligation to prepay premiums during a strike and a 31-day period following its termination. The court found, on the one hand, that this law “tips the balance in favor of the [striking] agents in any labor dispute” with an insurance company, 349 Mass, at 403, 208 N.E.2d at 525, by depriving the employer of assets and actuarial data vital to its business, and by effectively frustrating the employer’s right to replace workers who have struck. Moreover, the statute denies to nonstriking agents their right to refrain from concerted activities. On the other hand, the court noted that the “harm sought to be averted by this exercise of the police power does not clearly appear.” 349 Mass, at 404, 208 N.E.2d at 525.
. The complementary Massachusetts statute likewise renders a person ineligible if he “willfully fails without good cause, as determined by the [welfare] department, to maintain his registration for work * * * or to accept a referral to or offer of suitable employment”, Mass.G.L. c. 117, § 1B.
. The middle ground, qualifying for welfare on a case-by-case basis only those strikers who aro engaged in a “reasonable” strike, is almost unthinkable, necessarily requiring the Commissioner of Welfare to take sides in every labor dispute, an activity which we held impermissible in General Electric Co. v. Callahan, 294 F.2d 60 (1st Cir. 1961), appeal dismissed, 369 U.S. 832, 82 S.Ct. 851, 7 L.Ed.2d 840 (1962).
Question: What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 42? Answer with a number.
Answer:
|
songer_treat
|
C
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
UNITED STATES of America, Appellee, v. Wilton CHATMAN, Appellant.
No. 77-1297.
United States Court of Appeals, Fourth Circuit.
Argued Sept. 14, 1978.
Decided Oct. 17, 1978.
Kenneth L. Foran, Alexandria, Va., for appellant.
Daniel J. Hurson, Asst. U. S. Atty., Baltimore, Md. (Jervis S. Finney, U. S. Atty., Baltimore, Md., on brief), for appellee.
Before HAYNSWORTH, Chief Judge, and WINTER and PHILLIPS, Circuit Judges.
WINTER, Circuit Judge:
Wilton “Willie” Chatman, a prisoner in a Maryland institution under a Maryland conviction, wrote a letter to a district judge about a pending case in which he threatened to kill the judge. For sending the letter, he was convicted of obstruction of justice and of mailing a threatening communication in violation of 18 U.S.C. §§ 1503 and 876, respectively. The defendant declined the assistance of counsel at his trial and he attacks the validity of his conviction on the ground he was denied access to a prison library in order to prepare his defense. He also questions the sufficiency of the proof to sustain his conviction for mailing a threatening communication, because he asserts that, being already in prison, he could not have had any real intent to harm the district judge.
We see no merit in defendant’s contentions. But we are constrained to reverse his convictions and award him a new trial, nonetheless, because of information furnished us by the government about the presence of a superfluous alternate juror in the jury room during a large part of the jury’s deliberations.
I.
In October 1976, defendant was an inmate of the Maryland Penitentiary in Baltimore. He was without prospect of parole or release. The Honorable C. Stanley Blair was a United States District Judge for the District of Maryland to whom had been assigned a civil rights action dealing with overcrowded conditions at the penitentiary in which defendant was one of many plaintiffs.
On October 18,1976, Judge Blair received a letter from the defendant complaining about the manner in which Judge Blair was handling the case — essentially that relief with respect to overcrowding, inadequate diet, etc. was being unduly delayed. Defendant asserted in the letter that his patience was exhausted, that he had been subjected to inhuman conditions of confinement, and that he would “reimburse all persons” who played any part in the continuation of his durance vile. The letter continued, “the person I’m gonna begin with, is you!! YES, Judge Blair first opportunity I get, I’m going to KILL YOU, that’s what I said; quote; ‘I’M GOING TO KILL YOU.’ ” In closing, the letter added, “YOU GONNA PAY FOR THIS JUDGE BLAIR, I PROMISE YOU THAT .... I HAVE NOTHING TO LOSE.”
At trial the proof showed that .defendant’s fingerprint was on the letter and that the signature was his. Indeed, later in the trial defendant acknowledged that he had sent the letter.
When arraigned, and again later at a hearing on pretrial motions, defendant declined to have an attorney appointed to represent him and firmly articulated his desire to represent himself without the aid of counsel. He does not now claim that his waiver of counsel was involuntary or uninformed. But at trial he asserted that he could not proceed because he had not been permitted access to the penitentiary library to prepare his defense. Apparently he was denied access because he was in segregated confinement for having sent the threatening letter in violation of the institution’s rules and for two later assaults on prison guards. He moved the district court for a continuance of his trial until he had had library access and he moved for an order directing that he be given library access. Both motions were denied; the trial proceeded; and defendant was convicted on both charges.
II.
Unquestionably defendant had a right to represent himself without the aid of counsel if he elected to do so with knowledge of his rights and the consequences of his election. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Defendant made that election and he does not question that it was made voluntarily and with knowledge of his rights. But he argues, on the authority of Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), that, having refused the assistance of counsel, he had a right to access to legal matters to prepare his defense and the government had an obligation to provide such access.
We do not read Bounds to support that conclusion. Bounds was concerned with the rights to equal protection and to access to the courts of prisoners who sought to invoke post-conviction relief. It held that “the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law.” 430 U.S. at 828, .97 S.Ct. at 1498. Bounds, of course, has no direct application to defendant. He was accused of crime and had an absolute right to counsel, which he validly waived; he had no present thought of pursuing post-conviction relief. But, even so, we do not read Bounds to give an option to the prisoner as to the form in which he elects to obtain legal assistance. The option rests with the government which has the obligation to provide assistance as to the form which that assistance will take. Thus, to the extent that it may be said that Bounds has any application to the instant case, the United States satisfied its obligation under the sixth amendment when it offered defendant the assistance of counsel which he declined. We so hold. Cf. United States v. West, 557 F.2d 151 (8 Cir. 1977).
In arriving at this holding, we note the absence of any evident unfairness in the treatment that defendant received. It was not unreasonable to place him in segregated confinement, after an administrative hearing, for having sent the letter. Prison authorities could properly conclude that greater security was needed in the case of a prisoner who made a death threat, lest he escape and carry out his threat. And defendant was not singled out for the prohibition against use of the prison library. It is not disputed that at the Maryland Penitentiary this restriction is applied to all prisoners in segregated confinement.
III.
We see no merit in defendant’s argument that the proof of his intent was legally insufficient to support his conviction for mailing a threatening communication. The argument springs from the faulty premise that proof of intent to carry out the threat is required. The only proof of specific intent required to support a conviction under 18 U.S.C. § 876 is that the defendant knowingly deposits a threatening letter in the mails, not that he intended or was able to carry out the threat. See United States v. Sirhan, 504 F.2d 818, 819 (9 Cir. 1974); Petschl v. United States, 369 F.2d 769 (8 Cir. 1966). The specific intent to mail the letter in question in the instant case was amply proved.
IV.
With commendable candor, the government advised us in oral argument that when the jury retired to consider its verdict, a thirteenth juror (an alternate who had not been excused) retired with the regular jurors. The alternate remained in the jury room for the first forty-five minutes of the jury’s deliberations. The presence of the alternate was noticed when the jury returned to the courtroom to obtain a copy of the indictment which the jury had requested. At that time the alternate was excused, but there was neither objection to her having initially retired with the jury nor a motion for a mistrial. There was also no evidentiary inquiry to determine the extent, if at all, that the alternate had participated in the jury’s deliberations. After the alternate was excused, the jury returned its verdicts of guilty within fifteen minutes.
Reluctantly (because we think that the case against defendant was so strong and his defense so frivolous), we think that we must notice the presence of the alternate in the jury room during part of the jury’s deliberations as plain error, reverse the convictions and award defendant a new trial. United States v. Virginia Erection Corporation, 335 F.2d 868 (4 Cir. 1964), requires this result.
Virginia Erection was a criminal prosecution. The district court, with the apparent consent of counsel for the government and the defendants, permitted an alternate jur- or to retire with the jury when it began its deliberations, It appears that a regular juror gave evidence of being ill before the jury retired, and the district court was seeking to prevent another mistrial should that juror be unable to continue her service until a verdict was reached. The alternate was admonished not to participate in the deliberations unless a regular juror became ill or disqualified. In fact, the services of the alternate were never required.
Notwithstanding the consent of counsel an 1 the admonition to the alternate, we held that the guilty verdicts could not be perr ;+ted to stand. We found, first, that the personal consent of the defendants to the procedure followed was not obtained as required by Patton v. United States, 281 U.S. 276 (1930); second, that the presence of the alternate in the jury room while the entire complement of regular jurors was deliberating was in violation of F.R.Crim.P. 23(b) and 24(c); and, third, that the admonition to the alternate did not cure the error because her mere presence in the jury room, even if she remained mute, might have affected the verdict and did violate the privacy and secrecy of the jury.
As we read Virginia Erection, it establishes a per se rule of plain error. It has been followed in United States v. Beasley, 464 F.2d 468 (10 Cir. 1972), and impliedly approved in United States v. Hayutin, 398 F.2d 944 (2 Cir.), cert. denied, 393 U.S. 961, 89 S.Ct. 400, 21 L.Ed.2d 374 (1968); United States v. Nash, 414 F.2d 234 (2 Cir.), cert. denied, 396 U.S. 940, 90 S.Ct. 375, 24 L.Ed.2d 242 (1969); and Leser v. United States, 358 F.2d 313 (9 Cir.), cert. denied, 385 U.S. 802, 87 S.Ct. 10, 17 L.Ed.2d 49 (1966). In 2 C. Wright, Federal Practice and Procedure § 388 at 52 (1969), it is stated, “it is reversible error, even though defendant may have consented, to permit an alternate to stay with the jury after they have retired to deliberate.” Only the Fifth Circuit has taken a different course, see La-Tex Supply Co. v. Fruehauf Corp., 444 F.2d 1366 (5 Cir.), cert. denied, 404 U.S. 942, 92 S.Ct. 287, 30 L.Ed.2d 256 (1971); United States v. Allison, 481 F.2d 468 (5 Cir. 1973), aff’d after remand, 487 F.2d 339 (5 Cir. 1973), cert. denied, 416 U.S. 982, 94 S.Ct. 2383, 40 L.Ed.2d 759 (1974), but Virginia Erection is the law of this circuit and binding on this panel.
The instant case is indistinguishable from Virginia Erection. Here, no consent was given; and although there was neither objection nor motion for a mistrial, we read Virginia Erection to require neither. On its authority, we must reverse and grant a new trial.
REVERSED; NEW TRIAL GRANTED.
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_district
|
G
|
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".
Lee Clark PHILLIPS, Plaintiff-Appellant, v. SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY, Defendant-Appellee.
No. 79-4044.
United States Court of Appeals, Fifth Circuit. Unit B
July 13, 1981.
James L. Ford, Atlanta, Ga., for plaintiff-appellant.
Kilpatrick, Cody, Rogers, McClatchey & Regenstein, Thomas C. Shelton, Edmund M. Kneisel, Vincent L. Sgrosso, Atlanta, Ga., for defendant-appellee.
Before MILLER, Judge, FRANK M. JOHNSON, Jr. and HENDERSON, Circuit Judges.
Judge of the United States Court of Customs and Patent Appeals, sitting by designation.
MILLER, Judge:
This appeal is from the judgment of the district court in an Age Discrimination in Employment Act (“ADEA”) case following a jury verdict in favor of defendant-appellee (“Southern Bell”). The court ordered—
that the Plaintiff take nothing, that the action be dismissed on the merits, and that the defendant, SOUTHERN BELL TELEPHONE & TELEGRAPH CO., recover of the Plaintiff, LEE CLARK PHILLIPS, its costs of action.
We affirm.
BACKGROUND
Appellant Phillips instituted this action on April 21, 1975, alleging violations of the ADEA in terms of promotion and pay. Although claiming violations as early as January of 1972, it was not until July 31, 1974, that he filed a notice of intent to sue, required by the ADEA to be filed within one hundred and eighty days after an alleged violation.
Phillips was first employed by Southern Bell in 1931 and progressed through various nonsupervisory and supervisory positions until his promotion to the division or fourth level of management in 1960. During the 1960’s, he was first stationed in Atlanta as a division commercial supervisor, responsible for the commercial operations in the North Georgia division of Southern Bell and with four district managers reporting to him. In 1962, he became general commercial supervisor for the entire state, but in 1967 he was transferred to Macon as a division commercial manager — a position similar to the one he held during 1960-62. In 1969, he was transferred back to Atlanta where he headed the Business Information System having to do with the flow of information within Southern Bell and between it and its customers. While he was at the division level, he received “B” ratings, the lowest acceptable (“A plus,” “A,” “A minus” being the others). In 1971, an assistant vice president, James Land, advised Phillips that unless he immediately chose to retire, he would be demoted and would receive a salary cut. The vice president for Georgia operations, Jasper Dorsey, urged Phillips to retire immediately to avoid a salary cut that would affect his pension. Nevertheless, he was not forced to retire. In late 1971 Dorsey made the decision to demote Phillips to a district or third level position after he and Land tried to find another division level position for him.
Phillips protested the decision and had a detailed discussion about it with N. R. Johnson, Southern Bell’s Vice President for Personnel. During the discussion, he mentioned the possibility of age discrimination, but was assured that was not involved.
On February 1,1972, Phillips was demoted to a third level staff position under one D. B. Daves. His salary of $24,200 was not reduced, although this meant that he was paid considerably more than other district level employees. Daves first rated his performance unsatisfactory and found him “less than promotable.” In the fall of 1973, his rating was raised to “B” or “minimum satisfactory,” which enabled him to be transferred to a line district job, where his performance continued to improve. At his next annual salary review, his rating was raised from “B” to “A,” and on November 1, 1974, he was made district manager of the South Fulton District, where he continued until his retirement in 1979. In this position, he was not rated a “promotable” employee, but received the highest rating obtainable and regular salary increases.
OPINION
During the jury’s deliberations, it asked the court whether its understanding was correct — that an act of discrimination under the ADEA has to occur within the 180-day period (prior to filing notice of intent to sue). The court responded affirmatively. This was not error, as alleged by Phillips, but followed clear precedent established by this court. Templeton v. Western Union Telegraph Co., 607 F.2d 89 (5th Cir. 1979), and cases cited therein.
Appellant has not provided any evidence of any act by Southern Bell constituting what might be considered age discrimination affecting him during the 180-day period from February 1, 1974, to July 31, 1974 (the date of the notice of intent to sue). The act closest to that period that might be considered discriminatory was February 1, 1972, the date of Phillips’ demotion, which was long before the beginning of the 180-day period. Accordingly, what the Supreme Court said in United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 1889, 52 L.Ed.2d 571 (1977), in an analogous sex discrimination case under Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.), is on point:
A discriminatory act which is not made the basis for a timely charge is the legal equivalent of a discriminatory act which occurred before the statute was passed. It may constitute relevant background evidence in a proceeding in which the status of a current practice is at issue, but separately considered, it is merely an unfortunate event in history which has no present legal consequences.
See Delaware State College v. Ricks, - U.S. -, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980).
Phillips argues that the district court erred in its instruction to the jury because, he says, the issue is not “whether a discrete act of discrimination” took place within the 180-day period, but “whether there was evidence upon which the trier of fact could conclude that the defendant, appellee herein, did have and maintain during that period, a present policy of age discrimination against the plaintiff.” He points to the record showing that he “never received a raise, a bonus, or any increase in his earnings, until November 1, 1974, after he had notified Southern Bell that he was going to sue it for age discrimination.” However, Southern Bell has shown that Phillips’ salary was not reduced when he was demoted to the third or district level, so he was ineligible for a pay increase until the salary scale for “A” rated district managers exceeded $24,200; from that time until his retirement he received substantial increases in salary, as related earlier. Phillips points out that he was not eligible for promotion back to the fourth or division level during the 180-day period, but there is no evidence showing that any younger employee who had been demoted was treated more favorably or assigned better ratings than Phillips; nor is there any evidence that, during the 180-day period, there was any fourth level vacancy for which he was qualified.
We note that Phillips has not argued the point of equitable tolling of the 180-day period for filing a notice of intent to sue, which this court has said would be warranted where, for example, a defendant through misleading conduct has induced a plaintiff to delay filing suit until the limitations period has been run. Coke v. General Adjustment Bureau, Inc., 616 F.2d 785 (5th Cir.1980). No evidence of such conduct on the part of Southern Bell has brought to our attention.
In view of the foregoing, the judgment of the district court is AFFIRMED.
. 29 U.S.C. § 621 et seq.
. 29 U.S.C. § 626(d) provided in pertinent part:
No civil action may be commenced by any individual under this section until the individual has given the Secretary not less than sixty days’ notice of an intent to file such action. Such notice shall be filed—
(1) within one hundred and eighty days after the alleged unlawful practice occurred, or
(2) in a case to which section 633(b) of this title applies, within three hundred days after the alleged unlawful practice occurred or within thirty days after receipt by the individual of notice of termination of proceedings under State law, whichever is earlier.
This section was modified slightly by § 4(b)(1) of Pub.L. 95-256, 92 Stat. 190, 191 (1978). 29 U.S.C. § 633(b) provides in pertinent part:
In the case of an alleged unlawful practice occurring in a State which has a law prohibiting discrimination in employment because of age and establishing or authorizing a State authority to grant or seek relief from such discriminatory practice, no suit may be brought under section 626 of this title before the expiration of sixty days after proceedings have been commenced under the State law, unless such proceedings have been earlier terminated ....
. As part of a reorganization, some fourth level positions, including Phillips’ position, were eliminated.
. Phillips points to Southern Bell’s Management Development and Evaluation Plan of January 1974 which lists “superannuation” as one of several factors in rating an employee’s performance less than acceptable. The term is not defined in the plan, but a witness for plaintiff who was an employee in Southern Bell’s personnel department gave the following as an example:
We went to a new mechanized procedure in repair service where you now call 611, and the repair clerks were previously in test centers aÜ over the state of Georgia, and the new procedures were somewhat mechanized and required a higher level really of capability, and some of these people just could not do the work, and we had to remove them from the job and find jobs elsewhere, and we called that pretty much superannuation.
We do not regard such a factor so described as falling within the scope of the ADEA.
. Phillips’ salary increases were as follows:
11/1/74 to $25,900 (from $24,200)
1/1/75 to 27,300
12/1/75 to 28,700
12/1/76 to 31,500
12/1/77 to 34,500
4/1/78 to 37,100
4/1/79 to 40,900
. “Because Title VII shares with ADEA a common purpose, i. e., elimination of discrimination in the workplace, because the statutory schemes are similar, and because both statutes require an almost identical filing with the appropriate agency within 180 days after the alleged discriminatory act, both this circuit and the Supreme Court have considered cases arising under one statute to have value as precedent for cases arising under the other.” (Footnotes omitted.) Coke v. General Adjustment Bureau, Inc., 640 F.2d 584, 587 (5th Cir.1981).
. This issue was the subject of motions for summary judgment and directed verdict by Southern Bell which the district court denied. Denial of motion for directed verdict is the subject of Southern Bell’s cross-appeal here. Because we affirm the judgment of the district court, it is unnecessary to decide the propriety of the court’s denial of that motion. In its instructions to the jury, the district court appeared to bend over backwards to accommodate Phillips by stating that Phillips could make out a prima facie case by establishing, among other things, the Phillips had the ability to dó a job or jobs which Southern Bell had available or made available to younger persons and that Southern Bell gave salary increases to persons younger than he for the position he sought or provided statistical evidence of discriminatory intent.
. Phillips argues that the district court erred in refusing to allow into evidence various summary charts prepared from computer printouts of Southern Bell’s work force. However, Southern Bell properly points out that, while the data showed that among persons promoted and demoted, proportionately more younger than older employees were promoted and proportionately more older than younger employees were demoted, Phillips failed to show the percentages of third level employees, by age, who might have been candidates for promotion but were not promoted, or the percentages of fourth level employees, by age, who might have been subject to demotion but were not demoted. Thus, there was no error or abuse of discretion by the district court.
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_usc1sect
|
442
|
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".
BOST v. UNITED STATES.
No. 8768.
Circuit Court of Appeals, Ninth Circuit.
April 27, 1939.
James M. Hanley, of San Francisco, Cal., and Ray T. Coughlin, of Sacramento, Cal., for appellant.
Frank J. Hennessy, U. S. Atty., and Robert L. McWilliams and Sydney P. Murman, Asst. U. S. Attys., all of San Francisco, Cal.
Before GARRECHT, HANEY, and STEPHENS, Circuit Judges.
GARRECHT, Circuit Judge.
Ben A. Bost, the appellant, in an indictment consisting of five counts, filed March 30, 1937, was charged with violation of the Act of June 18, 1934, tried, found guilty on all five counts, sentenced to five years imprisonment under each count, sentences to run concurrently, and fined the sum of $5,000 under the first count. He appeals from said judgment.
April 6, 1934, the appellant presented one bar of gold bullion at the United States Mint in San Francisco for sale to the United States Government, together with an affidavit on Form TG-19, required by the regulations promulgated by the Treasury Department under the Gold Reserve Act of 1934. This affidavit recited the 'affiant, Ben A. Bost, of Nevada City,.Calif., to he the owner of the Lucky Gravel Claim, located in “Cougher Canypn,” Eldorado County, Calif.; that the source of the gold was in said claim, “mostly small nuggets”; that the gold was recovered from “200 cubic yards” of gravel or ore, in the period from October 1, 1933, to March 31, 1934; that the date' upon which the gold was first melted into crude metallic gold suitable for refining was April 5, 1934. The affidavit went on to state:
“The gold referred to herein was recovered by this depositor by mining or panning and no part thereof has been held hy this depositor or to the best of my knowledge, information and belief, by any other person at any time in noncompliance with the Act of March 9, 1933, any executive order or orders of the Secretary of the Treasury issued thereunder, or in noncompliance with any regulations prescribed under such order or license issued pursuant thereto, or in noncompliance with the Gold Reserve Act of 1934, or any regulations or license issued thereunder. No part of such gold has ever entered into monetary or industrial use.
“I make this affidavit for the purpose of inducing the purchase by a United States Mint or assay Office of gold described herein under and in accordance with the provisions of the Gold Reserve Act of 1934 .and the regulations issued thereunder.”
The appellant offered gold at the United States Mint in San Francisco for sale to the United States on four other occasions and in each instance accompanied the gold with a similar affidavit. The indictment was drawn in five counts, each offer and accompanying affidavit being treated in a separate count.
Acting under instructions of his superior to make an investigation of persons suspected of handling and dealing in stolen high grade gold ore, R. C. Lynn, a special .agent of the Bureau of Internal Revenue, made a search of the records of the United States Mint at San Francisco for the names of licensed gold buyers or former licensed gold buyers in Nevada County, Calif. Among the names was that of Ben A. Bost, upon whom Lynn called in Nevada City, Calif., August 8, 1936. Bost told Lynn the gold sold by him to the Mint in 1935 was produced from the Lucky Gravel mining claim of which he owned the mineral rights and that the mine was located approximately 40 miles north of Georgetown, Calif., possibly in Eldorado County, Calif.
Lynn next saw Bost on August 24, 1936, at which time he told Bost that he had made a search to find the Lucky Gravel mining claim, without success, and offer•ed to furnish transportation if Bost would show him the mine. Bost informed Lynn that he would be unable to do so for the reason that he had seen the mine on but one occasion, five or six years before, and -did not recall the route he had taken.
On September 18, 1936, Lynn again called upon Bost, this time accompanied "by William Malloy, a deputy collector of Internal Revenue. Lynn told Bost on this occasion that he was unsuccessful in his .-search for the mine, had not been able to find anyone who had ever heard of it, and wanted to question Bost further. He then placed Bost under path, and Bost related a story describing how he became financially interested in the Lucky Gravel, how he journeyed there at night, spent a day there and returned next morning to his home.
Lynn further testified that he had made extensive searches and inquiries throughout the vicinity described by Bost but failed to find the Lucky Gravel Claim or Cougar Canyon, or the asserted lessees of Bost, namely Swissler, Larsen and Hensen, and that he failed to find anyone who had heard of any of them.
Other witnesses were produced by the Government, residents of the neighborhood, who testified that they had never heard of Lucky Gravel claim, Cougar Canyon, or of Swissler, Larsen or Hensen. One witness said that he had heard of a Cougar Canyon when he was a boy, 48 or 50 years before, and again, about 2 years before the trial, when he was asked whether he knew of such a place, but he had never been there and had no more than a vague idea of where such a canyon might be located.
In addition, the County Assessor of Eldorado County was called as a witness and testified that he was familiar with the assessment rolls of the county; that such -records were kept under his supervision; that there had not been any tax assessment on any claim known as the Lucky Gravel claim in Eldorado County nor had there been any tax assessment in said county against any individual named Hans Hensen, G. A. Swissler or Larry Larsen or Ben Bos't. The County Surveyor of Eldorado County testified that in all his 40 years of residence in Eldorado County he had never heard of Cougar Canyon or any claim known as Lucky Gravel, or of miners named Hans Hensen, G. A. Swissler or Larry Larsen. The County Surveyor of Placer County, which adjoins Eldorado County testified in like vein.
There was testimony from other witnesses for the Government also indicating that the canyon, mine and miners were wholly fictitious.
- The defendant produced four character witnesses, each of whom testified that the defendant bore a good reputation in his community.
The defendant had lived in Nevada City, Calif., ever since his birth and operated a general assay office there from 1907 to March, 1934. He testified that a man named Swissler, whom he had known in 1886 in the town of Deadwood, Trinity County, Calif., and whom he had not seen since, called at his office in 1928, told him that he (Swissler) was prospecting and wanted Bost to advance him $250 to proceed with his work; that Swissler said he thought he would strike pay gravel; that Bost advanced the $250 and occasionally thereafter Swissler came in with small amounts of gold; that Swissler had not named the mine and Bost called it the “Lucky Gravel”; that Swissler told Bost it was located in Cougar Canyon, in Eldorado County. Bost further gave téstimony that Swissler called upon him late in October, 1930, and wanted more money and when Bost said that he wanted to see the mine, Swissler offered to show him; that they went by automobile to Rattlesnake Bar bridge, about 7 miles below Auburn on the Middle Fork of the American River; that they started from there at 6 :30 p. m. on burros, traveling from 30 to 40 miles over a trail; that they arrived at the mine at 3:30 a. m. and stayed all that day; that there was a 900 foot tunnel and a small stream of water on the claim; that the tunnel ran 800 feet through lava formation before striking gravel; that he examined the • tunnel ' and panned some of the gravel; that he rested all that afternoon and night; that Swissler and he left there at 5:30 'a. m. for Auburn, starting toward Georgetown on an abandoned road, meeting a camper on the way who took Bost into Auburn, while Swissler presumably returned to the mine; that Bost arrived in Auburn at approximately 1:30 p. m. Bost said that he became half owner of the mine when he paid Swissler $250 on the occasion of the first visit of Swissler to his office in 1928, and full owner on the visit to the claim in 1930 upon payment of $245. According to Bost’s testimony, Hensen was at the mine when Bost arrived; Hensen brought gold to Bost six times; Bost last saw him in Nevada City, September, 1935, at which time Hensen is alleged to .have told him the gravel had all been worked out and that more money would be needed to prospect further. Bost -also testified that he was sure the claim had not been recorded because he had named the claim and because Swissler. said he (Swissler) owned the ground.
Cross examination of the defendant disclosed that the mine was old and had theretofore been abandoned — “worked in early days;” that Swissler had given his receipt to Bost for the $250 payment in 1928, but it had been destroyed; that at one time Swissler brought in a lot of gold of 40 ounces; that Bost had no recollection of the number of deposits or shipments of gold turned over to Bost by Swissler between 1928 and 1930, because he kept no “record of those things.” In January, 1932, according to Bost, Swissler, Hensen and Larsen appeared at his office and stated that they wanted a lease on the Lucky Gravel claim, and a typewritten page was offered in evidence purporting to be such lease signed by Bost, Swissler, Hensen and Larsen, and granting 10% of the profits of the mine to Bost.
The appellant contends: “I. The indictment wholly fails to state any Federal offense by appellant. II. The evidence is insufficient to warrant or sustain appellant’s conviction under all five counts. III. The District Court committed various prejudicial errors in the admission and rejection of evidence at the trial of the case.”
The appellant urges, under the first contention, raised through the medium of a demurrer to the indictment, (a) that the indictment fails to set out with definiteness just where the affidavit of Bost was false; (b) that it does not allege that the type of gold deposited by Bost required the affidavit in question; and (c) that the indictment uses the words “material matter” rather than the statutory words “material fact.” All five counts of the indictment are couched in the same terms, save that each relates to a separate offer by Bost to sell gold to the mint, and, therefore,- need not be discussed separately. Points (a) and (b) are wholly lacking in merit and are answered by a reading of the indictment. As to point (c), this court has heretofore discussed and passed upon the problem, stating the law as follows: “The first paragraph of the count attempts to charge in the language of the statute, but states only that appellant wilfully falsified ‘a material matter.’ The words ‘a material fact’ are omitted. Obviously, it is the falsification and concealment of facts leading to the sale, and not of the whole of the ‘matter’ of the purchase under the statute, in which the government is engaged, which constitutes the offense. This deficiency in the first paragraph would be cured were there alleged elsewhere in the count facts inducing the purchase which were falsified or concealed. We are unable to discover their presence.” Hills v. United States, 9 Cir., 97 F.2d 710, 712.
The indictment here specifically alleges the facts as required by the Hills case, supra, in the following language: “That he was the owner of a mining claim called the ‘Lucky Gravel’ claim, and that the source of said gold so tendered and deposited was ‘Lucky Gravel claim, mostly small nuggets’, and that said gold had been recovered from said claim, which claim it was stated in said affidavit was located in Cougar Canyon, Eldorado County, California, whereas in truth and in fact as said defendant then and there well knew, he was not the owner of any mining claim in said County and State, known as or called the Lucky Gravel claim, and said gold had not been recovered from said alleged claim, which facts said defendant at all times well knew.”
We conclude, therefore, the indictment was sufficient in form and substance.
The appellant next argues the insufficiency of the evidence, contending that where the facts are as consistent with innocence as with guilt, the conviction cannot be sustained. But the facts here, if believed by the jury, are not as consistent' with innocence as with guilt, even if we should assume that this test of the evidence may be made by us which we do not do. The appellant brought gold to the United States Mint and, to induce purchase by the mint, made an affidavit as prescribed by the regulations. The agents of the Government were not obliged to believe the averments and attempted verification met with failure. Testimony was introduced tending to show that the Government agents made diligent search for the mining claim, but were unable to locate either the claim or the canyon in which it was supposed to be found and Bost was of no assistance. These facts, if believed, prove that Bost’s affidavit was false and he failed to substantiate it; his story was so inherently improbable as to be utterly unworthy of belief. The case was made out under 18 U.S.C.A. § 80, if the jury chose to disbelieve the defendant.
The final phase of the case relates to asserted errors in the admission of evidence, the first question thereunder concerning the introduction in evidence, over objection of defendant, of a map of Eldorado National Forest, and certain topographical maps of the vicinity. The maps were offered, as was explained by Government counsel, “for the purpose of showing that on none of them, notwithstanding the detail with which they were prepared, did Cougar Canyon appear, though many other canyons and other topographic features were shown.” The map of Eldorado National Forest was marked: “U. S. Department of Agriculture Forest Service,” and was introduced during the testimony of H. C. Sedelmeyer, a civil engineer with the United States Forest Service, who identified it as an official map. Harry D. Mc-Glasham, an assistant geological engineer for the United States identified official maps of tjie United States Geological Survey, covering Eldorado County, which were received in evidence as Exhibit 3. Counsel for defendant objected to the introduction of both exhibits on the ground of hearsay.
It is apparent from these printed maps, brought up as exhibits, that they are, to all intents and purposes, official maps of the departments of the United States Government which prepared them. The appellant in United States v. Romaine, 9 Cir., 255 F. 253, 254, 255, introduced in evidence certain hydrographic maps made by the United States Coast and Geodetic Survey, which the trial court ’disregarded. This court said, “We think the maps should be given full credence, and should be taken as absolutely establishing the truth of all that they purport to show. * * * the court might properly take judicial notice, of the accuracy of the official plats of the United States Coast and Geodetic Survey.”
These maps, being originally prepared by trained and competent employees of the United States Government in pursuance of their official duties, and in general use, are clearly within the same exception to the hearsay rule as Judge Parker had in mind in Long v. United States, 4 Cir., 59 F.2d 602, 603; “ * * * ft falls clearly within the principles under which exceptions to the hearsay rule are admitted; i. e., necessity and circumstantial guaranty of trustworthiness. Wigmore on Evidence, vol. 2, § 1420 et seq. and vol. 3, §§ 1630-1636. As to trustworthiness, it is made by an official of the government in the regular course of duty, who presumably has no motive to state anything but the truth, and it is made to be acted upon, and is acted upon, in matters of importance by officials of the government in the discharge of their duties.” Compare 22 C.J. § 1114, pp. 910-913; 22 C.J. § 1430, pp. 1085, 1086; Chesapeake & Delaware Canal Co. v. United States, 3 Cir., 240 F. 903, 901.
Next brought to our consideration are the assignments of error relating to .the admission of testimony in certain instances, over objection of defense counsel. These assignments afford no basis upon which this court may find error in the conduct of the trial below, being vague and indefinite, failing to place the instances, and not disclosing the name of the witness whose testimony is asserted to be objectionable. Furthermore, our study of the record convinces us the assignments are without merit.
The judgment is affirmed.
Section 35 of the Criminal Code of the •United States, 48 Stat. 996, 18 U.S.C.A. § 80 (quoted): “Whoever shall make or cause to be made or present or cause to be presented, for payment or approval, to or by any person or officer in the civil, military, or naval service of the United States, or any department thereof, * * * any claim upon or against the Government of the United States, or any department or officer thereof, * * * knowing such claim to be false, fictitious, or fraudulent; or whoever shall knowingly and willfully falsify or conceal or cover up by any trick, scheme, or .device a material fact, or, make .or cause to be made any false or fraudulent statements or representations, or make or use or cause to be made or used any false bill, receipt, voucher, roll, account, claim, certificate, affidavit, or’ deposition, knowing the same to contain any fraudulent or fictitious statement or entry in any matter within the jurisdiction of any department or agency of the United States '* * * shall be fined not more than $10,000 or imprisoned not more than ten years, or both.”
Gold Reserve Act of 1934, 48 Stat. 337, 340, 31 U.S.C.A. § 442: Sec. 3. “The Secretary of the Treasury shall, by regulations issued hereunder, with the approval of the President, prescribe the conditions under which gold may be acquired and held, transported, melted or treated, imported, exported, or earmarked: (a) for industrial,, professional, and artistic use; (b) by the Federal Reserve banks for the purpose of settling international balances; and, (c) for such other purposes as in his' judgment are not inconsistent with the purposes of this Act [section 441 of this section]. Gold in any form may be acquired, transported, melted or treated, imported, exported, or. earmarked or held in custody for foreign or domestic account (except on behalf of the United States) only to the extent permitted by, and subject to the conditions prescribed in, or pursuant to, such regulations. Such regulations may exempt from the provisions of this section, in whole or in part, gold situated in the Philippine Islands or other places beyond the limits of the continental United States.” ,
Provisional Regulations issued under the Gold Reserve Act of 1934 by the Secretary of the Treasury and approved by the President of the United States:
“Sec. 35. The mints, subject to the conditions specified in these regulations, and the general regulations governing the mints, are authorized to purchase:
“(a) Gold recovered from natural deposits in the United States or any place subject to the jurisdiction thereof, and which shall not have entered into monetary or industrial use; * * *
“Sec. 38. Gold recovered from natural deposits in the United States or any place subject to the jurisdiction thereof.—
“(1) The mints shall not’ purchase any gold under clause (a) of section 35 unless the deposit of such gold is accompanied by a properly executed affidavit as follows:
“An affidavit- on form TG-19 shall be filed with each delivery of gold by persons who have recovered such gold by mining or panning in the Unit.ed States or any place subject to the jurisdiction thereof: Provided, however, That such persons delivering gold in the form of nuggets or dust having an aggregate weight of not more than 5 ounces, which they have recovered from mining or panning in the United States or any place subject to the jurisdiction thereof, may accompany such delivery with full and complete information on form TG-19 without the requirement of an oath.”
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_casetyp1_1-3-2
|
F
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "criminal - state offense".
Kenneth Alvis PIERCE, Appellant, v. Ray H. PAGE, Warden, and the State of Oklahoma, Appellees.
No. 8609.
United States Court of Appeals Tenth Circuit.
June 24, 1966.
Rehearing Denied Aug. 1, 1966.
James R. Schmitt, Wichita, Kan., for appellant.
Charles L. Owens, Tulsa, Okl. (Charles Nesbitt, Atty. Gen. of Oklahoma, on brief), for appellees.
Before MURRAH, Chief Judge, and PHILLIPS and LEWIS, Circuit Judges.
PER CURIAM.
Petitioner Pierce appeals from an order dismissing his application for writ of habeas corpus. He was tried and convicted by a jury and sentenced to ten years in the Oklahoma State Penitentiary for burglary second degree after former conviction of a felony. The conviction and sentence were affirmed on appeal and two petitions for rehearing denied. Pierce v. State, Okl.Cr.App., 383 P.2d 699. After petition for writ of habeas corpus was denied in the state court, Pierce filed this application alleging that he was not afforded a constitutionally guaranteed fair trial.
Complaint is made of the exclusion from the evidence of six documents which petitioner contends went to the basic defense of insanity. He also complains of the instructions of the court on the penalty to be assessed and of numerous incidents during the trial which he says demonstrates that it was conducted in an air of prejudice and partiality. The federal trial court denied the writ without a hearing based upon a reading of the opinion of the Oklahoma Court of Criminal Appeals and a review of the case-made in that court.
It seems redundant to say again that habeas corpus is not available to review errors in criminal cases. “The function of the great writ * * * ‘is to test by way of an original civil proceeding, independent of the normal channels of review of criminal judgments, the very gravest allegations. State prisoners are entitled to relief on federal habeas corpus only upon proving that their detention violates the fundamental liberties of the person, safeguarded against state action by the Federal Constitution.’ ” See Hickock v. Crouse, 10 Cir., 334 F.2d 95, 100, cert. denied 379 U.S. 982, 85 S.Ct. 689, 13 L.Ed.2d 572, reh. denied 380 U.S. 928, 85 S.Ct. 908, 13 L.Ed.2d 817, quoting Townsend v. Sain, 372 U.S. 293, 311-312, 83 S.Ct. 745, 9 L.Ed.2d 770; see also Poulson v. Turner, 10 Cir., 359 F.2d 588.
It is strenuously argued on appeal, as in the trial court, that any one of the errors complained of is of sufficient gravity to deprive petitioner of his fundamental right to a fair trial, but in any event, when all of the errors are compounded, the deprivation of due process is manifest.
Our review of the proceedings in the state court and of the casemade convinces us that petitioner was not denied the rudimentary requirements of fair trial and federal habeas corpus is, therefore, unavailable.
The judgment is affirmed.
Question: What is the specific issue in the case within the general category of "criminal - state 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 state crimes
R. state offense, but specific crime 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.
The MORNING PIONEER, INC., Appellant, v. The BISMARCK TRIBUNE COMPANY, a corporation, Appellee and Cross Appellant.
Nos. 73-1036, 73-1049.
United States Court of Appeals, Eighth Circuit.
Submitted Sept. 11, 1973.
Decided March 12, 1974.
Bruce B. Bair, Mandan, N. D., for appellant.
Daniel J. Chapman, Bismarck, N. D., for appellee.
Before HEANEY, STEPHENSON and WEBSTER, Circuit Judges.
HEANEY, Circuit Judge.
This appeal arises out of a private antitrust suit between the publishers of two daily newspapers in southwestern North Dakota. The Morning Pioneer, Inc., publishes a morning paper, “The Morning Pioneer,” in Mandan. Seven' miles away in Bismarck, an evening paper, “The Bismarck Tribune,” is published by The Bismarck Tribune Company.
For several years, there was very little competition for circulation or advertising between the newspapers in their respective hometowns. Consequently, the Pioneer’s Bismarck circulation was very limited as was the Tribune’s Mandan circulation. The papers entered into agreements under which virtually all national and some local advertising was solicited jointly for publication in both papers, and the proceeds were distributed to reflect relative shares of the total circulation — seventy-five percent to the Tribune and twenty-five percent to the Pioneer. In 1963, the management of the Tribune shifted to an aggressive publisher, and a Bismarck family with a printing background — the Conrads— purchased the Pioneer. The previous noncompetitive atmosphere was replaced by aggressive competition. Each paper initiated measures to increase its circulation and advertising in the other’s hometown.
In August, 1969, the Pioneer brought this action, seeking damages and injunc-five relief. It alleged that the Tribune’s practice of selling its carrier-delivered newspapers for a lesser price in Mandan and elsewhere than in Bismarck constituted price discrimination in violation of § 2(a) of the Clayton Act as amended by the Robinson-Patman Act. It also complained that the Tribune engaged in practices constituting an “attempt to monopolize” as prohibited by § 2 of the Sherman Anti-Trust Act by: (1) attempting to purchase the Pioneer; (2) cancelling the joint advertising agreements; (3) hiring Pioneer employees; (4) granting certain advertisers rates more favorable than the published rates to encourage advertising in the Tribune rather than the Pioneer; (5) giving premiums to new subscribers; (6) selling the Tribune for a lesser price in Mandan than in Bismarck; and (7) blanketing Mandan homes with free copies of the Tribune on numerous occasions.
The District Court held that three periods of blanketing had been of sufficient intensity to constitute an “attempt to monopolize” in violation of the Sherman Act, but that the other practices, considered individually or collectively, did not constitute such an attempt. It further held that the Clayton Act had not been violated. It denied injunctive relief but awarded the Pioneer nominal single damages of one dollar (three dollars trebled) and attorney’s fees of $7,350, plus costs for the Sherman Act violation.
The Pioneer asserts on this appeal that the District Court erred in: (1) finding that the intensive blanketing during the three periods was the only Sherman Act violation; (2) awarding only nominal damages for this violation; (3) failing to find that the price difference violated the Clayton Act and not awarding damages for that violation. It asks this Court to assess substantial damages for the claimed violations or to remand to the District Court with instructions to it to determine damages for the violations, or to grant a new trial. No request for injunctive relief is made. The Tribune, on the other hand, asserts that the District Court erred in: (1) holding that the blanketing violated the Sherman Act; and (2) awarding excessive attorneys’ fees for the violation. It asks that the court be affirmed except insofar as it found a violation of the Sherman Act and granted attorneys’ fees to the Pioneer. It requests that these fees be disallowed or reduced.
THE SHERMAN ACT VIOLATIONS
To establish an “attempt to monopolize” in violation of § 2 of the Sherman Act, it is necessary to prove: (1) a specific intent to monopolize; (2) an overt act or acts; and (3) a dangerous probability of monopolization of a specific product market in a particular geographic market. See, Acme Precision Products, Inc. v. American Alloys Corp., 484 F.2d 1237, 1240 (8th Cir. 1973); Agrashell, Inc. v. Hammons Products Company, 479 F.2d 269, 284-286 (8th Cir.), cert. denied 414 U.S. 1022, 94 S.Ct. 445, 38 L.Ed.2d 313 (1973). See also, Hibner, Attempts to Monopolize: A Concept in Search of Analysis, 34 ABA Antitrust L.J. 165 (1967); Smith, Attempt to Monopolize: Its Elements and Their Definition, 27 Geo.Wash.L.Rev. 227 (1959).
The court properly found that each of the necessary elements was present here. The Tribune was the dominant daily newspaper in southwestern North Dakota. If it succeeded in driving the Pioneer out of business, a dangerous probability existed that it would achieve a monopolistic position in the daily newspaper market and would be able to exploit that position to the disadvantage of the people and businesses in the area. The fact that television and radio would continue to compete in the news and advertising field would not prevent the Tribune from exploiting its position as the only daily newspaper because electronic media is not wholly competitive with respect to some types of news and advertising. These include: in depth stories on local and national affairs; detailed stories on births, deaths, marriages and social engagements; stock market statistics; detailed sports stories; and price advertising, particularly in the grocery field.
The intent to monopolize was adequately shown by the Tribune’s distribution of thousands of free newspapers to Mandan housing units during April and May and September and October of 1963, and during January through March of 1965. Much of the blanketing during these periods was done on Wednesday, the heavy grocery ad days. It was sometimes accompanied by an appeal to Mandan grocery advertisers to place ads on those days. Because advertising constituted eighty percent of the Pioneer’s revenue and a significant portion of that revenue came from grocery advertising, the dangerous probability that the Pioneer would be driven out of business by a continuation of the practice is evident. Accord, Kansas City Star Company v. United States, 240 F.2d 643, 662 (8th Cir.), cert. denied, 354 U.S. 923, 77 S.Ct. 1381, 1 L.Ed.2d 1438 (1957). The blanketing condemned by the court clearly exceeded that permissible in furtherance of a legitimate attempt by the Tribune to enter the Mandan market and properly served as a basis for the court’s implicit finding of an intent to monopolize by the Tribune.
The Pioneer would have us go a step further and find that the District Court erred in failing to find that other acts also were illegal attempts to monopolize. We decline to do so. There is adequate evidence in the record to support the court’s findings that: the cancellation of the joint advertising agreement served to terminate an anti-competitive agreement; that the Tribune did not act improperly in hiring former employees of the Pioneer; that the premium giveaway programs engaged in by the Trib-r une were reasonable and done in accordance with accepted practices in the newspaper industry; and that no improper advertising rate discrimination occurred.
The Pioneer would also have us reverse the court’s implicit holding that the Tribune’s practice of charging a lower price in Mandan was not violative of the Sherman Act. We reject the invitation. That holding is supported by the evidence demonstrating that the pricing practice was one of over thirty years standing.
Finally, the Pioneer urges that the District Court erred by not viewing all of the acts of the Tribune together in determining whether there was an attempt to monopolize. The Pioneer is correct in asserting that the trier of fact must adopt that approach, see, Sanitary Milk Producers v. Bergjans Farm Dairy, Inc., 368 F.2d 679, 691 (8th Cir. 1966), but the Pioneer is mistaken in its assertion that the court failed to do so. After considering each act individually, the court stated that it was required to view “the evidence as a whole and * * * not tightly compartmentalize the various components, and wipe the slate clean after scrutiny of each.” It then stated:
* * * Nevertheless, I find that the conduct of the Bismarck Tribune, whether considered in its separate parts or as a whole, did not constitute an act in restraint of trade. I reiterate that both papers, following March of 1962, responded to the termination of a non-competitive agreement with aggressive, but reasonably competitive conduct, except for the blanketing per-viously discussed. 342 F.Supp. at 1142.
DAMAGES FOR THE SHERMAN ACT VIOLATION
Any person injured in his business or property by reason of another’s violation of the antitrust laws may recover treble damages from the wrongdoer. 15 U.S.C. § 15. But it is not enough for recovery of damages to prove that an antitrust law was violated by the defendant. Cf., Duff v. Kansas City Star Company, 299 F.2d 320, 323 (8th Cir. 1962). Rather, the rule is that damages may not be awarded to a litigant unless he also proves “with a fair degree of certainty, the fact of damage and the causal connection between the antitrust violation and the injury.” ABA Antitrust Section, Antitrust Developments: 1955-1968, at 282 (1968). See, Atlas Building Prod. Co. v. Diamond Block & Gravel Co., 269 F.2d 950, 957-958 (10th Cir. 1959), cert. denied, 363 U.S. 843, 80 S.Ct. 1608, 4 L.Ed.2d 1727 (1960). Cf., Perkins v. Standard Oil Co., 395 U.S. 642, 648, 89 S.Ct. 1871, 23 L.Ed.2d 599 (1969); Story Parchment Co. v. Paterson P. Paper Co., 282 U.S. 555, 51 S.Ct. 248, 75 L.Ed. 544 (1931).
The Pioneer’s claims for damages for the Sherman Act violation were premised on two factors — loss of advertising revenue and loss of circulation. The District Court found that Pioneer lost one-third of its grocery advertising during a five-week period in 1965, that this was the only advertising loss, and that it was caused by the illegal blanketing in 1965. It declined to award more than nominal damages for the loss because no evidence was introduced to show what the advertising revenue actually was or would have been absent the blanketing. We are satisfied that the court’s findings and conclusions with respect to the loss of advertising revenue are supported by substantial evidence. This is not an instance where the defendant’s actions prevented a precise computation of the damage. Rather, the fault lies in the plaintiff’s failure to introduce any evidence as to the value of its grocery advertisements, normal or actual, during the five-week period. The plaintiff’s witness merely related that the loss was one-third of the normal. To have awarded more than nominal damages under these circumstances would have been to engage in impermissible speculation and conjecture. See, e. g., Siegfried v. Kansas City Star Company, 298 F.2d 1, 5-8 (8th Cir.), cert. denied, 369 U.S. 819, 82 S.Ct. 831, 7 L.Ed. 2d 785 (1962).
The court properly declined to award damages for loss of circulation. While there was evidence in the record to support a finding that Pioneer lost three hundred paid subscribers between 1963 and 1964, the court’s finding that it was impossible to determine that the loss in subscription was caused by the Tribune’s wrongdoing was not clearly erroneous. The reduction, as the court indicated, could have been caused by one or more of the following facts: (1) the Pioneer was changed from an evening to a morning paper on May 19, 1963; (2) the arrangement between the Pioneer and the Tribune owners of not competing in the other’s hometown was also curtailed in 1963; (3) the Pioneer, especially its circulation department, was poorly managed; and (4) the Pioneer’s editorial policy was shifted to a more liberal position by the Conrads. The Pioneer made an attempt to prove that these factors did not cause the reduction, but its proof did not satisfy the District Court. We cannot say that the court erred in concluding that the proof of causation was inadequate.
THE CLAYTON ACT ISSUES
. The District Court found that for over thirty years, the Tribune, by carrier, was sold for a lower price in Man-dan than in Bismarck. It held that this practice did not violate § 2(a) of the Clayton Act for two reasons: (1) The Tribunes delivered in the two cities were not of “like grade and quality” as the Tribune had a lesser value to Mandan readers than Bismarck readers. (The court reasoned that the paper arrived later in Bismarck, contained little Mandan news, and less advertising of interest to Mandan readers.) (2) The effect of the price discrimination was not “substantially to lessen competition or tend to. create a monopoly.”
We need not decide whether the court erred in concluding that the Tribune did not violate § 2(a) of the Clayton Act .by its price discrimination practice. Even if we resolved all the Clayton Act liability contentions in the Pioneer’s favor — i. e., that newspapers are “commodities” subject to the Act, that the Tribunes delivered in Mandan and Bismarck were of “like grade and quality” and that the price discrimination had the prohibited effect on competition — a reversal and remand of this ease to the District Court would be unnecessary. This is true because the Pioneer failed to prove that it was injured by the Tribune’s price discrimination.
The basic injury alleged to have been caused by the price discrimination was a loss in the Pioneer’s Mandan circulation, and proof that this loss was caused by the price discrimination was properly found by the District Court to be wholly inadequate. We also note that the price discrimination complained of was terminated in October 1970, and there is no showing or contention that it is likely to be reinstituted.
ATTORNEYS’ FEES
The award of attorneys’ fees to successful plaintiffs is sanctioned by 15 U.S.C. § 15. Where no factual error is claimed, the amount assessed by the District Court must stand unless the party seeking review establishes that the court has abused its discretion. Armco Steel Corporation v. State of North Dakota, 376 F.2d 206, 212 (8th Cir. 1967). When the damages recovered are relatively small, as is the case here, it is not necessarily an abuse of discretion to grant attorneys’ fees in excess of the damage award. Advance Business Systems & Supply Co. v. SCM Corporation, 415 F.2d 55, 70 (4th Cir. 1969), cert. denied, 397 U.S. 920, 90 S.Ct. 928, 25 L. Ed.2d 101 (1970). In arriving at the fee, the court considered the proper factors, and we find no abuse of discretion here.
We deny the Pioneer’s request for attorneys’ fees on this appeal.
Each party will bear its own costs on this appeal.
Affirmed.
. The opinion of the District Court details the history of the newspapers’ ownership and competitive practices. 342 F.Supp. 1138, 1139-1140 (D.N.D.1972).
. At trial, the Pioneer limited its claim and proof of damages from price discrimination to that discrimination existing between Bismarck and Mandan.
. That section provides:
It shall be unlawful for any person engaged in commerce, in the course of such commerce, either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality, where either or any of the purchases involved in such discrimination are in commerce, where such commodities are sold for use, consumption, or resale within the United States * * * and where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them: * * *
15 U.S.C. §13(a) (1970).
. Section 2 of the Sherman Act, makes it unlawful to “attempt to monopolize * * * any part of the trade or commerce among the several states * * 15 U.S.C. § 2 (1970).
. See, United States v. Times Mirror Company, 274 F.Supp. 606, 618 (C.D.Cal.1967), aff’d mem., 390 U.S. 712, 88 S.Ct. 1411, 20 L.Ed.2d 252 (1968) ; Roberts, Antitrust Problems in the Newspaper Industry, 82 Harv.L.Rev. 319, 320-322 (1968). See also, United States v. Grinnell Corp., 384 U.S. 563, 572, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966), where the Supreme Court sanctioned the recognition of submarkets for antitrust purposes.
. The blanketing in April and May of 1963 began on the same day as the commencement of the publication of the Pioneer by its new owners, the Conrads. It continued daily for three weeks; and on each day, between 1,600 and 2,000 papers were distributed. The blanketing in September and October was continuous for one week; and for the balance of the two-month period, it was done each week on Wednesday. On most of these days, 1,500 copies of the Tribune were distributed. Finally, during January of 1965, blanketing took place on eight occasions and between 1,000 and 2,400 copies were distributed on each day. This was followed by blanketing of similar intensity on eight days in February and on seven days in March of 1965.
. We are convinced that the court misstated when it used the term “restraint of trade” here. We are satisfied that the court meant to use the term “attempt to monopolize,” as that was the question before the court,
. The court stated that the Pioneer’s circulation records were so questionable and unreliable that it would have been improper to find a loss in circulation by relying on them. While this fact precluded the court from estimating the Pioneer’s circulation after Marcli 31, 1966, it could have determined the paper’s circulation with the necessary degree of certainty prior to that date by relying on the reports of the Audit Bureau of Circulations (ABC).
The ABC report for the nine-month period ending March 31, 1963, shows an adjusted figure for “Carrier and Dealer” circulation of the Pioneer in Mandan to be approximately 2,250, while the same adjusted figure for the twelve-month period ending March 31, 1964, is about 1,925. In reaching these figures, we assumed that the adjustments made were attributable to the “Carrier and Dealer” category rather than the “Mail” category ns the latter appeared to have less variation during the years in question. This Mandan reduction of approximately three hundred continued through March 31, 1966, when the Pioneer’s last audited report by the ABC was prepared. After that date, the Pioneer terminated its affiliation with the ABC.
. The record reveals that during this period, the Mandan price was five cents per week less than the Bismarck price. The practice of charging less for carrier-delivered Tribunes in Mandan was curtailed on October 26, 1970, but a differential was continued in other communities. Except for the period of September 1966-September 1967, the price of the Tribune by carrier in Mandan was less than or equal to the price of the Pioneer by carrier in Mandan. The higher Pioneer price in the period of exception resulted from an increase in the Pioneer’s price, and the difference was five cents per week.
. The parties agree that “price discrimination” between different purchasers was proven. See Federal Trade Com. v. Anheuser-Busch, 363 U.S. 536, 549, 80 S.Ct. 1267, 4 L.Ed.2d 1385 (1960), where the Supreme Court held “a price discrimination within the meaning of [§ 2(a)] is merely a price difference.” They also agree, as they had stipulated at trial, that the interstate commerce requirements of the antitrust laws were met in this case. While we are satisfied that there was sufficient connection with interstate commerce under the Sherman Act, there is doubt as to whether third commerce requirements of § 2(a) of the Clayton Act, was met — i. e., that “either or any of the purchases involved in such discrimination [were] in commerce.” 15 U.S.C. § 13(a). See, e. g., Stickells, Federal Control of Business-Antitrust Laws § 126 (1972) ; Rowe, Discriminatory Sales of Commodities in Commerce: Jurisdictional Criteria Under the Robinson-Patman Act, 67 Yale L.J. 1155, 1166-1168 (1958). See also, Little-john v. Shell Oil Company, 483 F.2d 1140 (5th Cir.) (en banc), cert. denied, 414 U.S. 1116, 94 S.Ct. 849, 38 L.Ed.2d 743 (1973). Nonetheless, we decline to examine this question any further because it was not raised by the parties and its resolution either way would not affect our disposition of the appeal.
. The term “commodity” is not defined in the Act, but it is generally thought to include only tangible items of commerce and not services. See, Tri-State Broadcasting Co. v. United Press Internat’l, Inc., 369 F.2d 268, 270 n. 2 (5th Cir. 1966). See also, Stickells, Federal Control of Business-Antitrust Laws § 129, at 449-450 (1972) ; Rowe, Discriminatory Sales of Commodities in Commerce: Jurisdictional Criteria Under the Robinson-Patman Act, 67 Yale L.J., supra at 1163-1165. We recognize that the production of a newspaper requires and incorporates the services of a great number of people, but the fact remains that when finally published, the paper takes on a tangible form and it is bought and sold in the market place. As such, it is predominantly a tangible good and, thus, a “commodity” subject to the Act.
. In reaching its decision as to “like grade and quality,” the court appears to have applied the “market acceptance” standard. While that standard is not without support among the commentators, see, e. g., Cassa-dy & Grether, The Proper Interpretation of “like Grade and Quality” Within the Meaning of Section 2(a) of the Robinson-Patman Act, 30 S.Cal.L.Rev. 241 (1957), it was rejected by the Supreme Court in Federal Trade Com. v. Borden Co., 383 U.S. 637, 640-641, 86 S.Ct. 1092, 16 L.Ed.2d 153 (1966). There, the Court indicated the proper test is that of “physical comparison.”
. The court appears to have required that the Pioneer prove the Tribune’s price discrimination in fact had the prohibited effect on competition. Such a burden is not required under the statute. It is only necessary for the plaintiff to prove there is a “reasonable possibility” that the price discrimination may have the prohibited effect on competition. Federal Trade Com. v. Morton Salt Co., 334 U.S. 37, 47, 68 S.Ct. 822, 92 L.Ed. 1196 (1948). See, Utah Pie Co. v. Continental Baking Co., 386 U.S. 685, 701, 87 S.Ct. 1326, 18 L.Ed.2d 406 (1967) ; Atlas Building Prod. Co. v. Diamond Block & Gravel Co., 269 F.2d 950, 957 (10th Cir. 1959), cert. denied, 363 U.S. 843, 80 S.Ct. 1608, 4 L.Ed.2d 1727 (1960). But see, Federal Trade Com. v. Morton Salt Co., supra, 334 U.S. at 55-61, 68 S.Ct. 822 (Jackson & Frankfurter, J.J., dissenting) and Moog Industries v. Federal Trade Commission, 238 F.2d 43, 61 (8th Cir. 1956), where the standard of “reasonable probability” was advanced.
. The theory that the price discrimination caused the loss in the Pioneer’s Mandan circulation is weakened by the evidence showing that the Tribune’s Mandan circulation remained stable after it terminated the price differential in October of 1970. The ABC’s report for the twelve-month period ending March 31, 1970, reveals that the Tribune’s Mandan “Carrier and Dealer” circulation was then 1,811, while the ABC’s report for the twelve-month period ending March 31, 1971, shows the circulation increased to 1,895.
. The court indicated it was considering the following factors in determining the award of attorneys’ fees: (1) the fact that plaintiff’s counsel had not had the benefit of a prior judgment or decree in a case brought by the government; (2) the standing at the bar of counsel on both sides; (3) the time spent by plaintiff’s counsel; (4) the magnitude and complexity of the litigation; (5) the responsibility undertaken by counsel; (6) the amount recovered; and (7) the court’s knowledge of the quality of counsel’s work done on the case in and out of court. See generally, Comment, Attorneys’ Fees in Individual and Class Action Antitrust Litigation, 60 Calif.L.Rev. 1656 (1972).
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_procedur
|
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 rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
SIMUNOV v. UNITED STATES.
No. 10433.
Circuit Court of Appeals, Sixth Circuit.
June 5, 1947.
Benjamin C. Sfanczyk, of Detroit, Mich., for appellant.
John C. Lehr, of Detroit, Mich., for ap-pellee.
Before SIMONS, ALLEN and MARTIN, Circuit Judges.
PER CURIAM.
Upon appeal from an order denying a motion for the vacation or correction of a sentence, it appears that the appellant was convicted and sentenced for bank robbery under Title 12 U.S.C.A. Section 588b (a) and Section 588c. The indictment contained four counts charging the appellant with entering a bank with intent to commit a felony, stealing from the bank, putting the life of a bank officer in jeopardy by the use of a dangerous weapon and attempting to avoid apprehension by forcing a bank officer to accompany him without the consent of such officer.
Notwithstanding our numerous admonitions that sentences be specific both as to counts and as to the beginning and ending of the term of sentence, the district judge, now retired, imposed upon the appellant in respect to all of the counts of ihc indictment, a blanket sentence of 65 years, but added “25 years for kidnapping”, and the sentence was in such terms recorded by the clerk of the court in the short-hook. It is now settled that the statute dealing with the offense of bank robbery creates but a single offense with various degrees of aggravation permitting sentences of increasing severity. It is also clear that under the authority of Section 588c the court would have been empowered to impose a maximum penalty of 65 years because that section provides for a minimum and is silent as to the maximum of imprisonment that might, have been imposed. However, the observation that 25 years was for kidnapping imparts ambiguity to the sentence. On behalf of the appellant it is urged that having been sentenced to 25 years for kidnapping the court was without power to cumulate an additional 40 years under the first three counts of the indictment because they became merged with the fourth count. On behalf of the government it is contended that the court indicated an intention of sentencing the appellant to a term of 65 years but that 25 years were added to what the court had in mind because the defendant, was found guilty of the kidnapping, and the court so decided in overruling the motion for correction.
The latter argument is not persuasive because without the element of kidnapping the court could not have sentenced the defendant to a term of 40 years. More important, however, is the fact that the convict should know with certainty what his punishment is to be, and that a reviewing court should not be called upon to speculate as to what was in the mind of the sentencing judge at the time of the imposition of the penalty. It is imperative in maintaining respect for the judgments of courts that sentences in criminal cases should not be equivocal. This is more vital than the interests of a particular defendant in a criminal case.
The order of denial is reversed and the cause remanded to the district court for the correction of sentence by the imposition of a sentence upon the appellant of not more than 25 years.
It is so ordered.
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_genresp1
|
E
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
UNITED STATES ex rel. SAMMAN v. RAGEN, Warden.
No. 9494.
Circuit Court of Appeals, Seventh Circuit.
April 19, 1948.
Michael A. Romano and Milton M. Ruben, both of Chicago, Ill., for appellant.
George F. Barrett, Atty. Gen., and William C. Wines, Asst. Atty. Gen. (Raymond S. Sarnow and James C. Murray, Asst. Attys. Gen., of counsel), for appellee.
Before SPARKS, MAJOR, and KERNER, Circuit Judges.
SPARKS, Circuit Judge.
Appellant appeals from the denial of his ■application for discharge on writ of habeas ■corpus. He is held in the custody of the Warden of the Illinois State Penitentiary on account of violation of a parole from a 1931 sentence for armed robbery, and a second sentence for armed robbery following his conviction therefor in 1945.
The sole issue presented by the petition and appeal from the denial thereof is whether the fact that appellant had been adjudicated insane by a California court and committed to an, asylum in 1931 and never thereafter legally restored to sanity ipso facto renders the subsequent convictions and sentences by the Illinois courts null and void, entitling* appellant to release from the custody of the Warden. Appellant was represented by counsel in both criminal proceedings. It does not appear that the fact of his adjudication of insanity was called to the attention of the court at any time during the 1931 proceedings, and it was not called to its attention until after a plea of guilty and discharge of the jury in the 1945 trial, during the course of a hearing in mitigation in which appellant testified at length to the court as to his earlier history.
The transcript of appellant’s testimony on the hearing in mitigation in 1945 was introduced in evidence in the District Court hearing on habeas corpus. He was born in California and attended school there, including two years in college. During .the first World War he was in the United States Army, from 1916 to 1919. .After his discharge he returned to California and went to work as an automobile salesman for a short time, but was committed to a hospital for the insane about 1921. He testified as to the natiire of his illness, schizophrenia and psychoneurosis, for which he was given shock treatments. He was released at the end of a year but soon recommitted for a few months and again released, after which he was sentenced to San Quentin Penitentiary for eighteen months for forgery. A few months after his release from prison he was again committed for about nine months. In June 1931, he was arrested for another crime, found insane by a jury and committed to the Norwalk State Hospital in California. He remained there only about a month and a half and then came to Illinois. He testified that he committed the crime of armed robbery in Gales-burg and was sentenced to prison for that crime in November, 1931.
The record shows that he was received at the penitentiary November 24, 1931, and that in September, 1932, he was transferred to the Asylum for Insane Criminals upon due certificate of insanity which recited that he was undoubtedly insane when convicted. In November, 1943, he was transferred back to the penitentiary on order of the Department of Public Safety, reciting the recommendation of the Classification Board under the general direction of the State Criminologist and pursuant to the power vested in the Department of Public Safety. In September, 1944, he was paroled. In November he was arrested for armed robbery. On trial in January 1945, he first pleaded not guilty, but after the introduction of much of the State’s evidence, he decided to change his plea, whereupon his counsel told the court of the change, the jury was discharged, and the court heard him.
Appellant’s contention is that instead of the lengthy hearing by the court, it should have impaneled a jury to determine the question of his sanity, and that as soon as the court was put on notice of his adjudication of insanity, it was without jurisdiction over his person until a determination of such a jury that he was sane. The attack in this habeas corpus proceeding is directed principally to the conviction in 1945 where the question was raised, after plea and discharge of the jury, but before sentence. Appellant does not, however, concede the validity of the 1931 conviction.
The District Court denied a motion to dismiss the application for habeas corpus and held a full hearing on the merits of the petition. There was introduced in evidence the complete transcript of the hearing in mitigation after plea of guilty in the Cook County Court, and the court also heard the evidence of appellant himself, the attorney who represented him on the trial, a police officer, an F.B.I. agent, an attorney for the Veteran’s Administration, and the attorney who prosecuted appellant in the 1945 trial. From all of this evidence, the court concluded that appellant was sane, and that if he ever had been insane, he certainly had lucid intervals. He inferred from the evidence that appellant had tried to get a not guilty verdict in the case, but that when the overwhelming character of the State’s evidence became apparent to him and his counsel, he changed his plea to guilty, and not until after that plea did he bring forward the fact that he had been adjudged insane some fourteen years earlier.
Appellant contends that the question of his sanity at the time of the habeas corpus hearing was not in issue, but that the sole question was whether appellant who had been adjudged insane by a court of competent jurisdiction in 1931, could enter a plea of guilty to an indictment charging him with a crime until the issue of whether he was restored to sanity or continued insane was determined in some manner prescribed by Illinois statutes; that at common law, until the adjudication of insanity had been superseded by a judicial finding that the accused had been restored to sanity he was without legal capacity to plead to the indictment, and the court without jurisdiction to accept a plea of guilty and sentence him on such plea, hence the sentence of the court was void and the detention thereunder violates due process under the Fourteenth Amendment. Again, he states, “(Appellant’s) status, when he appeared in the Criminal Court of Cook County, was that of an insane person and by common law, which has never been abrogated by statute, he was under a legal disability, which prevented him from pleading to the indictment. When the Judge * * * was put on notice of Petitioner’s disability by reason of mental incompetence, he was without power to assume jurisdiction over the person of the Petitioner until the issue of the Petitioner’s sanity had been determined by a jury impaneled to try same.” He contends that the California adjudication is entitled to full faith and credit until superseded by decree of a court of competent jurisdiction.
We cannot agree with appellant as to the binding and conclusive effect of an adjudication of insanity. We have found no case, even at common law, holding that an adjudication of insanity in some other court, at some earlier time, could be set up by collateral proceeding where the earlier adjudication was not even called to the attention of the court. Nor do we find any case where such a prior adjudication was relied upon as conclusive proof of insanity either as of the time of the commission of the crime or of the trial thereof. In fact, the rule appears to be that a prior adjudication is only prima facie, and not conclusive evidence of criminal irresponsibility. See 7 A. L.R. Annotation, 568; 68 A.L.R. Annotation, 1310.
Illinois has, by statute, provided adequate means for safeguarding the rights of insane persons charged with crime. The portion of the statute here applicable provides:
“An insane person, without lucid intervals, shall not be found guilty of any crime or misdemeanor with which he may be charged: Provided, the act so charged as criminal shall have been committed in the condition of insanity. If, upon the trial of a person charged with crime, it shall appear from the evidence that the act was committed as charged, but that, at the time of committing the same, the person so charged was insane, the jury shall so find by their verdict, and by their verdict shall further find whether such person has or has not entirely and permanently recovered from such insanity; and in case the jury shall find such person has not entirely and permanently recovered from such insanity, the court shall commit such person to the Department of Public Welfare. * * *” Smith-Hurd Ann. St. Ch. 38, section 592.
This means that the sanity or insanity of a person charged with the commission of a crime shall be determined by a jury in the court where the cause is pending. People v. Howe, 375 Ill. 130, 30 N.E. 2d 733. Illinois courts have uniformly held that the duty and responsibility of raising the question rests upon the accused and his counsel. People v. Haupris, 396 Ill. 208, 71 N.E.2d 68; People v. Wagner, 390 Ill. 384, 61 N.E.2d 354; People v. Hart, 333 Ill. 169, 164 N.E. 156. This follows from the fact, stated in People v. Bacon, 293 Ill. 210, 127 N.E. 386, 388, that “It has long been the law in this State that every man is presumed to be sane until the contrary is shown. In order to entitle the accused to an acquittal on the ground of insanity, this legal presumption must be overcome by evidence tending to prove insanity which is sufficient to raise a reasonable doubt of the sanity of the accused at the time of the commission of the act for which he is sought to be held accountable.” The courts have also indicated that to rely on prior adjudication, it must be shown that the insanity was of a permanent or continuing type. People v. Varecha, 353 Ill. 52, 186 N.E. 607. People v. Maynard, 347 Ill. 422, 179 N.E. 833, 836. In the latter case the Illinois court said, “Whether the presumption arising out of an adjudication of insanity * * * has been overcome was a question of fact requiring evidence.”
From all of this it follows that, even though the conviction and sentence of appellant in 1931 did occur within a few months after his adjudication of insanity by a California court, that fact may not be availed of by collateral attack on the judgment. Accordingly, it cannot be held in this proceeding that appellant was not properly in the custody of appellee under the 1931 sentence, and it is therefore unnecessary for us to consider the somewhat different questions presented by the attack on the 1945 judgment and sentence. Further, under the circumstances of this case, and in the light of the cases of White v. Ragen, 324 U.S. 760, 65 S.Ct. 978, 89 L.Ed. 1348, and Marino v. Ragen, 332 U.S. 561, 68 S.Ct. 240, we have preferred to rest our decision on this ground rather than examine into the vexed question of whether or not appellant’s various applications for relief in the state courts exhausted his state remedies therein.
We are indebted to counsel appearing in appellant’s behalf on appointment by the District Court and this court for a very able and conscientious presentation of the difficult issues involved in this case.
Judgment affirmed.
Cf. Srygley v. Sanford, 5 Cir., 148 F. 2d 264; Byrd v. Pescor, D.C., 68 F.Supp. 889, and cases there cited for a criticism of the use of habeas corpus to raise the issue of insanity.
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_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).
UNITED STATES of America, for the Use and Benefit of CARTER EQUIPMENT COMPANY, INC., Plaintiff-Appellee, v. H. R. MORGAN, INC. and National Indemnity Company, Defendants-Appellants.
No. 75-2362.
United States Court of Appeals, Fifth Circuit.
June 16, 1977.
Thomas W. Tyner, Hattiesburg, Miss., for H. R. Morgan & Nat’l Indemnity.
Francis T. Zachary, Hattiesburg, Miss., for H. R.. Morgan.
Wm. H. Cox, Jr., Jackson, Miss., D. Gary Sutherland, Hattiesburg, Miss., for plaintiff-appellee.
ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC
(Opinion January 10, 1977, 5 Cir., 1977, 544 F.2d 1271).
Before COLEMAN, GODBOLD and HILL, Circuit Judges.
PER CURIAM:
The Petition for Rehearing is GRANTED. No member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is DENIED. The appellee, Carter Equipment Co., Inc. (Carter), suggests in its petition for rehearing that our decision disallowing the recovery of attorney’s fees in this Miller Act suit was erroneous. We agree and the following is to be substituted for the last paragraph of our prior opinion:
Finally, appellants insist that the district court erred in awarding attorney’s fees to Carter. The issue is whether a contractual provision for attorney’s fees between a subcontractor and its supplier is enforceable against the general contractor and its surety under the Miller Act. Carter asserts that since the equipment rentals provided for the recovery of attorney’s fees, this award is recoverable under the general terms of the payment bond, interpreted with a view toward the liberal purpose of the Miller Act.
The relevant statutory language provides that “[ejvery person who has furnished labor or material in the prosecution of the work provided for in such contract . who has not been paid in full therefor . shall have the right to sue on such payment bond . . . for the sum or sums justly due him”. 40 U.S.C.A. § 270b(a). It is important to note that the statute does not differentiate between the scope of coverage for the liabilities of subcontractors as opposed to the scope of coverage for the liabilities of general contractors. While the statute does impose some additional notice requirements on persons having no direct contractual relationship with the general contractor, insofar as financial coverage of the bond is concerned, a supplier of the subcontractor is equally as entitled to be “paid in full” for “the sums justly due him.”
The Supreme Court allowed the recovery of attorney’s fees in United States ex rel. Sherman v. Garter, 353 U.S. 210, 77 S.Ct. 793, 1 L.Ed.2d 776 (1957). A provision for the award of attorney’s fees was contained in a contract between the general contractor and the trustees of an employees’ welfare fund. The Supreme Court held that the attorney’s fees were “sums justly due” under the Miller Act. Since there appears to be no statutory basis for distinguishing between the recovery allowed to the supplier of a subcontractor and that of a person dealing directly with the general contractor, we conclude that attorney’s fees are a recoverable item under this Miller Act bond. At least two other circuits have reached this same conclusion. Travelers Indemnity Co. v. United States ex rel. Western Steel Co., 362 F.2d 896 (9th Cir. 1966); D & L Construction Co. v. Triangle Electric Supply Co., Inc., 332 F.2d 1009 (8th Cir. 1964).
There is some authority in this circuit which would support a contrary conclusion. The court in United States ex rel. Mississippi Road Supply Co. v. Morgan, 542 F.2d 262 (5th Cir. 1976), posited that “[e]ven under the more liberal rules of construction applicable in Miller Act eases, precedent indicates that the terms of this bond would not support an award of attorney’s fees.” Id. at 269. However, the Mississippi Road Supply court was concerned with a hybrid bond that was neither fish nor fowl. The court merely recited this circuit’s position with regard to Miller Act bonds as reflected in Transamerica Insurance Co. v. Red Top Metal Inc., 384 F.2d 752 (5th Cir. 1967). The Supreme Court subsequent to Red Top Metal disapproved of our practice of looking to state law for resolution of the attorney’s fee issue. F. D. Rich Co., Inc. v. United States ex rel. Industrial Lumber Co., Inc., 417 U.S. 116, 94 S.Ct. 2157, 40 L.Ed.2d 703 (1974). Of course, we are bound to apply the decision in F. D. Rich to the instant suit and upon application of purely federal law we conclude that the contractual provision for attorney’s fees in this case is enforceable under the Miller Act bond.
REVERSED and REMANDED.
. ATTORNEY’S FEES. Should it become necessary that Lessor employ an attorney to enforce any of the provosions (sic) of this Agreement, to take possession of the equipment covered hereby or any part thereof, or to recover any sum of money due hereunder, Lessor shall be entitled to recover such reasonable attorney’s fees and expenses as shall be incurred in connection therewith.
. The language relied upon provides:
“NOW THEREFORE, if the Principal shall promptly make payment to all persons supplying labor and material in the prosecution of the work provided for in said contract, . .
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_usc2
|
26
|
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 49. 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.
Ezra Taft BENSON, Secretary of Agriculture of the United States, and Commodity Credit Corporation, Appellants, v. UNITED STATES of America et al., Appellees. J. G. BOSWELL AND COMPANY et al., Appellants, v. UNITED STATES of America et al., Appellees.
Nos. 15359, 15360.
United States Court of Appeals District of Columbia Circuit.
Argued Feb. 24, 1960.
Decided June 10, 1960.
Petition for Rehearing Denied July 19, 1960.
Mr. Donald A. Campbell, Atty., Dept, of Agriculture, with whom Messrs. Oliver Gasch, U. S. Atty., and Neil Brooks, Asst. Gen. Counsel, Dept, of Agriculture, were on the brief, for appellants in No. 15,359.
Mr. Walter D. Matson, Washington, D. C., with whom Mr. James K. Knudson, Washington, D. C., was on the brief, for appellants in No. 15,360.
Mr. C. H. Johns, Jr., Associate General Counsel, Interstate Commerce Commission, for appellee Interstate Commerce Commission.
Mr. Frederick G. Pfrommer, San Francisco, Cal., of the bar of the Supreme Court of California, pro hac vice, by special leave of court, with whom Mr. John Guandolo, Washington, D. C., was on the brief, for appellees Railroad Companies. Messrs. Lawrence Cake and Raymond A. Negus also entered appearances for appellees Railroad Companies.
Mr. Samuel D. Slade, Chief, Appellate Section, Civil Division, Dept, of Justice, entered an appearance for appellee United States of America.
Before Mr. Justice Reed, retired, and Fahy, and Burger, Circuit Judges.
Sitting by designation pursuant to Sec. 294(a), Title 28 U.S.C.
Mr. Justice REED,
sitting by designation.
These are appeals from an order of the United States District Court for the District of Columbia granting a motion for summary judgment by the Interstate Commerce Commission and the intervening railroad carriers, and dismissing a complaint. Judge Sirica held that the action of the Commission in approving certain railroad tariffs on cotton as hereinafter described was based on substantial evidence, and reasonable. The complaint in the present proceeding was filed January 3, 1958, in the United States District Court for the Southern District of New York by Mr. Benson as Secretary of Agriculture under the authority of the Agricultural Adjustment Act of 1938. Many shippers of cotton from the Southwest United States to Gulf and Pacific ports, and Eastern states, joined as plaintiffs. Many carriers intervened as defendants. The case was later transferred for the convenience of the parties to the District Court for the District of Columbia.
The complaint sought to annul and set aside actions of the Interstate Commerce Commission in denying reparations in an administrative proceeding brought under 49 U.S.C.A. § 9 against numerous railroad companies that had carried baled cotton at rates alleged inapplicable because they were higher than those authorized.by the Commission. The District Court’s judgment left the ruling of the Commission intact.
The rates challenged in the reparations proceeding and here were the final result of a ruling by the Interstate Commerce Commission in proposed general increases of tariffs which became effective February 25, 1956. An additional six percent rate increase over several former percentage increases was there allowed because of actual increases in the cost of performing transportation services. All increases were directed to be made on the “basic freight rates and charges of the railroads.” The quoted words have been the standard direction for applying raises in the Increased Freight Rate Cases.
The heart of the controversy is the method that is to be applied in calculating the increases in the existing tariffs ■ for the cotton shipments. Freight charges on cotton have always been calculated upon the hundred pounds. Since cotton weighs lightly but bulks large, the shippers and carriers found it mutually profitable to compress cotton for transportation. The development of the powered compress in the nineteenth century made a contribution in simplifying the handling of cotton comparable to that made by Whitney’s invention of the gin to remove the seed from the lint in the eighteenth century, or the development of the mechanical picker in the twentieth century. To encourage compression the railroads many years ago introduced into their tariffs as an item an allowance for compression frequently limited to “not to exceed twenty-five cents per hundred pounds.” Compression ordinarily costs the shipper more than this allowance. The cost varies according to the charge at the particular compress. Tariffs were developed called compression-in-transit tariffs, abridged to “c.i.t.” Whatever their precise form, there was a freight rate or charge to the shipper of so much per hundred pounds for the carriage of the cotton, and an allowance to the shipper of not to exceed so many cents per cwt for compression, whether the cotton was compressed prior to or in the course of shipment.
As stated above, when subsequent increases of rates were approved, the Commission always directed that the increases were to be applied to “the basic freight rates and charges of the railroads.” The railroads carried out the order by adding the allowed percentage increase each time to their freight charge, continuing to deduct on their freight bills the unincreased compression allowance. The shippers urged that the allowance for compression should be deducted before the allowed percentage increase is calculated. Following is an example of the difference in result. This is drawn from an exhibit and brief for appellants J. G. Boswell and Company, et al., shippers of cotton. It is:
“a shipment of 100 bales of cotton from Bakersfield to the port of Long Beach, California. In making out this freight bill the railroad agent made the following entries:
(Freight Bill No. 005, as rendered)
Weight Rate Prepaid
53575 40 214.30
IC 15% 32.14
246.44
Less O85! CWT comp Allowance 42.86
203.58 Tax 6.11
209.69
The rate of 40 cents per 100 pounds is the gross c.i.t. rate from Bakersfield to Long Beach. The c.i.t. rate minus the stated compression allowance of 8 cents per 100 pounds was applicable to a shipment of cotton which “originated” at the Bakersfield compress. Since it was “compressed in transit at point of origin,” the railroad did not advance the compression charges to the compress company. It will be observed that the railroad agent added the 15-percent Ex Parte 175 surcharge before he deducted the 8 cents per 100 pounds compression allowance, but that the 3-percent transportation excise tax was computed after the deduction of the compression allowance. The shippers contend that the freight bill entries, in accordance with the above quoted governing rules in the general increase tariffs, should have been as follows:
(Freight Bill No. 005, as revised by shippers)
Weight Rate Prepaid
(c.i.t) 40
Less comp, allowance 08 /
53575 (net) 32 171.44
Ex Parte 175 surcharge 15%' 25.72
197.16
Tax 3% 5.91
203.07
On this shipment the Southern Pacific Company collected and retained for transportation services $203.58. The shippers contend the amount paid should have been $197.16 and that they were overcharged in this instance $6.42.
The validity of the claim for reparations turns on the meaning of the terms “basic freight rates and charges.” The shippers assert that the basic rate is the net amount paid by the shipper to the carrier after deduction of the carrier’s allowance to the shipper for compression. That is the c.i.t. rate, less the compression allowance times the weight. The railroads say the basic rate is the c.i.t. rate and the compression allowance is a charge against that basic rate. The method urged by the shippers has been called by the litigants the net rate method ; that urged by the railroads the gross rate method for calculating the allowed rate increase.
In the reparation cases, the Commission, which granted the increase, construed its language as the railroads interpret it. “We believe .that the defendants’ [the railroads] method of applying the general increases was proper and produced the legal rates.” “The c.i.t. rate is a specifically published freight rate to which the findings in the ex parte proceedings contemplated that the authorized increases would be applied.” Following each one of the Increased Freight Rate series of decisions, after the cost rises subsequent to World War II, the railroads have of necessity amended their tariffs to show the addi-
tional percentage allowed them by the then current increase. Under the Interstate Commerce Act, 49 U.S.C.A. § 15(7), the Commission had the duty in supervising the tariffs to satisfy itself of the “lawfulness” of such rate. The method of calculation here under attack was accepted by the Commission. In the Allenberg case, the Commission said, “The assailed rates * * * called c.i.t. rates, are the basic rates in effect on June 30, 1946, subject to subsequent general increases.” Revenue adjustments are normally superimposed on existing rate structures.
The Commission was conscious, at the time the rate increases were being considered, of this very problem of applying the general increases to cotton tariffs subject to a compression allowance. Their opinion in the rate increase proceeding involved here considers the question and decides on a method other than that pressed by appellants to alleviate any inequities. The method selected by the Commission was a rate increase hold-down setting an upper limit on the amount of increase possible by application of the percentage increase. Appellants do not attack the reasonableness of the overall rate and there is no indication, therefore, that the hold-down method of preventing inequality has proven inadequate.
This consideration and approval by the Commission lends impressive weight to the railroads’ contention that they followed the purpose and direction of the Commission in filing their tariffs. The Commission had power, legislative in character, to choose any reasonable method to calculate the proposed increase. In dealing with the interpretation by the Commission, courts accept its factual findings with reasonable support in the record. Even if not a fine question of fact, the meaning of “basic freight rates and charges” is one that depends upon the Commission’s intention in employing the term, seemingly devised by it for use in this very situation. Therefore courts will be slow to adopt any other meaning than the gloss put upon the phrase by the Commission, its author.
The Commission’s interpretation of the proper means of applying the rate increase was confirmed by it after the in-, crease was granted at the time the carriers submitted their revised tariffs to the Commission for approval. The purpose of the increases was to compensate the railroads for rising operating expenses. The new tariffs, after application of the increases showed the rate in terms of the charge per cwt subject to deduction for the unincreased carrier’s allowance for compression under the following note covering transit compression:
“Note 1. — When the shipper has paid the compression charges direct to the compress plant on a shipment of compressed cotton tendered at a compress, such compression charges not to exceed 25 cents per 100 lbs. may be deducted from the total freight charges computed on' the total weight at the CIT rate upon evidence of payment of such compression charges to the compress plant where the shipment was loaded.”
A tariff defined “CIT rate” as follows:
“The term ‘CIT rate’ refers to a commodity rate on cotton, in bales, which rate includes the cost of compression or any proportion thereof or which includes an allowance for the cost of compression.”
The increased tariffs took the “existing rates in cents per 100 lbs” and added to that figure the percentage of increase allowed. In Item No. 10 of such a tariff in Ex Parte 175, 284 I.C.C. 589, these directions appear:
“Item No. 10. — Application of Increased Rates and Charges — Section 1. All charges for line-haul transportation services, also charges for out-of-line, indirect or back-haul services, special freight train service, rental charges for use of special equipment or other line-haul services, as provided in tariffs making reference to this tariff, * * * are increased 15 percent, * * *.
“In determining the applicable charge, first ascertain without reference to this tariff the amount of the line-haul transportation charges, also charges for out-of-line, indirect or back-haul services, special freight train service, rental charges for use of special equipment or other line-haul services, and then increase the amount so ascertained 15 percent, * * * >>
It will be noted that Item 10 does not refer in any way to the compression charge. Thus they applied the percentage increases to the rate which had been used for the gross cost to the shipper for transportation. These tariffs were approved by the Commission.
The Commission deemed the compression charge a part of the line-haul rate but a non-carrier service. The line-haul rate is the charge for furnishing the line-haul transportation services, that is, those services or allowances that are considered a normal incident to the uninterrupted carriage of the goods from the origin to the destination. This is the transportation rate for carriage-and is to be distinguished from “accessorial” or “terminal” services, for which additional charges are made. The Commission is clearly empowered to determine what is embraced within the line-haul rate.
It is true, as pointed out by Commissioner Murphy, the single dissenter in the Allenberg case, 289 I.C.C. at 587, that when the shipper himself pays for compression before loading or ships c.i.t., he deducts the allowable compress charges from the gross rate, but that does not make the net result the basic freight rate or charge.
The Commission’s • interpretation of the words “basic rates and charges” is consonant with the Commission's purpose in granting the increase. Additional revenue was sought for the carriers. Only the tariff items that brought profit were increased, not the disbursement items.
“As a basis for their contention that only the net rate was increased by the general-increase tariffs, the complainants refer to the following statement in J. G. Boswell Co. v. Alabama G. S. R. Co., 276 I.C.C. 761, concerning such tariffs: ‘It is obvious that the tariffs contemplated only increases in rates and charges from which the carriers were to derive revenue.’ There is nothing in the later finding which requires application of the general increases to the net rate. This is true because the word ‘revenue’ as used in that finding is not synonymous with profit or net income. In other words, the defendants derive revenue from the gross rate as published in their rate tariff, and the disbursement of such revenue, through allowances or otherwise, can have no retroactive effect on the applicability of the general increases. The complainants also refer to decisions wherein a rate is defined as the net cost to the shipper of the transportation of his property. Such decisions were made concerning violations of the Elkins Act. Thus, while the net cost to the shipper is of primary importance in determining if a rebate has been given, it is of no moment in determining an applicable rate under section 6 of the act.”
It is suggested by the appellants that, as is shown in the freight bills set out above, at page 37 of 281 F.2d, the fact that the transportation tax is paid in these bills on the “net” sum is significant in showing that the “basic rate” is the “net” rate. Section 4271 of the Internal Revenue Code, 26 U.S.C.A. § 4271, puts the tax “upon the amount paid * * * for the transportation of property * * * by rail.” Federal Tax Regulations 1955, Part 143, § 13, applies the tax “to any payment, not specifically exempted, for the transportation of property.” But the basic freight rate is not determined by what the Government uses to calculate taxes. Nor is there any indication that the method used in the freight bills is a proper interpretation by the railroads making out the bills of the pertinent tax regulations. In any event, the definition of terms for purposes of taxation is irrelevant to the problem of defining the basic freight rate for purposes of the Interstate Commerce Act.
In view of our agreement with the District Judge’s determination as to the correctness of the railroads’ application of the rate increases, we do not reach the additional question presented below as to whether the Commission was correct in its view that § 16(3) of the Interstate Commerce Act barred the award of reparations on claims of the Commodities Credit Corporation relating to shipments delivered or tendered for delivery more than two years prior to the date of filing of the petition to intervene.
After the argument the court requested counsel to comment on the significance of a change in the method of stating tariff rates on cotton made by the carriers, effective in 1957. The effect is to state a rate for cotton by using the net rate. This eliminates the compression allowance as a factor in the basic freight rate. We think the change shows a simpler method for calculating the payments due the carriers, but we do not see that it affects the problem of what the Commission meant by the basic freight rate or charges.
The basic freight, we conclude, was, as the Commission ruled, the gross amount that was placed in the tariff for the line-haul transportation. The allowance was a charge against that rate. The Commission ruling upon that question is not only within its power to determine rate increases but seems to us to be a reasonable method of separating basic rates or line-haul rates from charges assumed by railroads that are, like compression, incidental to their services but beyond the carrier’s power to control as to cost or method of operation. Where the assailed rate is the result of the application of internally consistent definitions and general criteria and the overall result reached is not unreasonable, there is no basis for disturbing the Commission’s result.
Affirmed.
No. 15,360, J. G. Boswell and Co., et al. v. United States, is an appeal by the private shippers of cotton, affected by the increased rate orders, from the same order of dismissal. As the errors alleged are substantially the same, no separate opinion is necessary.
. Benson et al. v. United States, D.C.D.C. 1959, 175 F.Supp. 264.
. 52 Stat. 36, 7 U.S.C.A. § 1291; Administrative Procedure Act, 5 U.S.C.A. § 1009; Interstate Commerce Act, 49 U.S.C.A. § 17(9).
. Allenberg Cotton Co. v. Alabama Great Southern R. Co., 289 I.C.C. 71; 298 I.C.C. 577.
. Ex Parte No. 196, Increased Freight Rates 1956, 298 I.C.C. 279, 283.
. 298 I.C.C. at 347. In the orders there were limitations of a maximum of 9 cents per hundred pounds increase on cotton rates. This maximum is not involved in this controversy. Id., at 319. It was used to relieve any undue burden on the shippers. See Ex Parte 206, 299 I.C.C. at 444.
. No. 168 (1948), 272 I.C.C. 695, 717; 276 I.C.C. 9, 113; No. 175 (1951), 280 I.C.C. 179. 189; 281 I.C.C. 557. 639.
Recovery of the extra 20 cents in transportation excise tax (3 percent of the $6.42) is beyond the scope of this action.”
. Allenberg Cotton Co. v. Alabama Great Southern R. Co., 298 I.C.C. 577, 584. Cf. A. Levy & J. Zentner Co. v. Southern Pacific Co., 293 I.C.C. 279, for a determination involving a similar problem in the shipment of bananas.
. Allenberg Cotton Co. v. Alabama Great Southern R. Co., 289 I.C.C. 71, 77.
. This method was necessitated by the complications incident to the republication of new general tariffs. See The Fifteen Per Cent Case (1917) Ex Parte No. 57, 45 I.C.C. 303.
. 298 I.C.C. at 579. See also id., at 316-319. State of New York v. United States, 331 U.S. 284, 350, 67 S.Ct. 1207, 91 L.Ed. 1492.
. 298 I.C.C. at 317-319:
“These interests also assail the lawfulness of the proposed application of the percentage increase on compressed-in-transit (c.i.t) rates on cotton in carloads originating in California and Arizona. * * * The gist of the protest is that the percentage increases in these c.i.t. rates now proposed would be based on the full amount of the rates without regard for the fact that they include these allowances, which are not permanently retained by the carriers. The net result of the proposal is to increase these c.i.t. rates by amounts which are more than 7 percent of the revenues actually retained. * * *
* * * * *
“We believe that there is some merit to the contentions of these protestants, but the suggested remedy of requiring the carriers to eliminate the amounts which they assume for compression from the rates before applying the increases would not be practicable or reasonable for general application in this proceeding. A much more practical and reasonable solution would be to fix a maximum increase on cotton which would accord the same treatment to all cotton in bales, in carloads.”
. “When * * * the Commission declares a specific rate to be the reasonable and lawful rate for the future, it speaks as the legislature, and its pronouncement has the force of a statute.” Arizona Grocery Co. v. Atchison, T. & S. F. R. Co., 284 U.S. 370, 386, 52 S.Ct. 183, 185, 76 L.Ed. 348:
. Cf. Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456; Gray v. Powell, 314 U.S. 402, 411, 62 S.Ct. 326, 86 L.Ed. 301; Shields v. Utah Idaho Cent. R. Co., 305 U.S. 177, 180, 187, 59 S.Ct. 160, 83 L.Ed. 111; Levinson v. Spector Motor Service, 330 U.S. 649, 662, 672, 67 S.Ct. 931, 91 L.Ed. 1158.
. Pacific Southcoast Freight Bureau Circular No. 14-W, Agent J. P. Haynes, I.C.C. No. 1529, Effective December 22, 1951, Item 50.
. Id., Item 20.
. Supplement 2, Condensed Tariff of Increased Rates and Charges, No. X-175 A, I.C.C. Docket 30937.
. Allenberg Cotton Co. v. Alabama G. S. R. Co., 289 I.C.C. 71, 73, 75. See definition of CIT, supra, note 15.
. Whether as to particular situations a specific service is part of the line haul, or is accessorial or terminal is a frequently litigated issue. Cf. United States v. I.C.C., 352 U.S. 158, 77 S.Ct. 241, 1 L.Ed.2d 211; Secretary of Agriculture of United States v. United States, 347 U.S. 645, 74 S.Ct. 826, 98 L.Ed. 1015; United States ex rel. Arlington & F. Auto R. Co. v. Elgen, 1938, 68 App.D.C. 393, 98 F.2d 264.
. United States v. American Sheet & Tin Plate Co., 301 U.S. 402, 408, 57 S.Ct. 804, 81 L.Ed. 1186; United States v. Wabash R. Co., 321 U.S. 403, 408, 64 S.Ct. 752, 88 L.Ed. 827; United States v. United States Smelting, Refining & Min. Co., 339 U.S. 186, 189-190, 70 S.Ct. 537, 94 L.Ed. 750.
. Allenberg Cotton Co. v. Alabama G. S. R. Co., 298 I.C.C. at 583.
. Cf. Armour & Co. v. United States, Ct.Cl.1959, 169 F.Supp. 521.
Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 49. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_geniss
|
G
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
CORPORATION OF CHARLES TOWN v. LIGON et al.
No. 3440.
Circuit Court of Appeals, Fourth Circuit.
Oct. 20, 1933.
James M. Mason, Jr., of Charles Town, W. Va., and Harry H. Byrer, of Martinsburg, W. Va., for appellant.
Clarence E. Martin, of Martinsburg, W. Va. (Martin & Seibert, of Martinsburg, W. Va., on the brief), for -appellees.
Before PARKER and NORTHCOTT, Circuit Judges, and ERNEST P. COCHRAN, District Judge.
PARKER, Circuit Judge.
In 1926 .the town of Charles Town, W. Va*, hereafter referred to as defendant, entered into a contract with Ligón & Ligón, hereafter referred to as plaintiffs, for the construction of sewer lines and an outfall sewer and disposal plant. The contract embraced two projects, one covering the outfall sewer and disposal plant, referred to by the parties as project A, and the other covering the sewer lines, referred to as project B. Various changes yrere made by the town engineer in the work as .covered by the two pro j eets; but both were eventually completed, claims of the contractors for changes in and additions to the work were submitted to and passed upon by the engineer, and the balance due under his estimate was tendered by the town and accepted by the plaintiffs. It is admitted that in this estimate there was an error of $113.08, but defendant consented that judgment be entered against it for this amount and same is not involved in the appeal.
After accepting the amounts tendered by the town as the balance due under the estimate and award of the engineer, the plaintiffs instituted this action to recover on a quantum meruit additional compensation for the work done, claiming that the changes in the work weré so radical as to take it out of the contract and that for like reason they were not bound by the award of the engineer. The court below submitted the case to a jury; and as to most of the claims for additional compensation, the verdict was for the defendant. On three items, however, the jury found for plaintiffs, awarding $1,42.7.85 as additional compensation for constructing the outfall sewer, $1,200 as a return of liquidated damages for delay in project A, and $2,060 as a return of liquidated damages deducted for delay in project B. There was judgment on this verdict in favor of plaintiffs, and defendant has appealed, assigning as error the refusal of the court to direct a verdict in its favor on these items, as well as alleged error in various parts of the charge and in refusal to give requested instructions. As we are of opinion that defendant was entitled to a directed verdict, as to all the matters in dispute except the $1,200 item, we need consider only this feature of the case.
The conclusion that defendant was entitled to a directed verdict as to all matters in dispute except the $1,200 item is based on the fact that the engineer in charge of the work passed upon all disputed matters, and under the terms of the contract his award was made binding upon the parties. The position of plaintiffs is (1) that, because of departure from its terms, the contract is not binding upon them and the award of the engineer has no binding effect; and (2) that, so far as the matter of liquidated damages is concerned, this was not covered by the submission clause of the contract. We think, however, that there was no such departure from the contract as relieved the parties from its terms; that under the contract they were bound by the decisions of the engineer as to liquidated damages as well as to other matters; and that all matters covered by the verdict of the jury except the $1,200 item were concluded by his award.
The written contract, applicable to both projects, provided, among other things, that the engineer might make alterations in the line, grade, plan, form, dimensions, or materials of the work; that the contractors should bear all losses resulting on account of amount or character of the work, or because the nature of the land in or on which the work was to be done should be different from what was estimated or expected; that the contractors should do extra work when requested by the engineer, receiving cost plus 15 per cent, for such extra work; and that the decision of the engineer should be final upon all questions as to the amount and value of the extra work. It provided also that, for failure of the contractors to complete the work by the time stipulated, the town should deduct $10 per day as liquidated damages; that the engineer should make monthly estimates which should be paid by the town to the contractors, after deducting certain percentages authorized to be retained; that after the completion of the contract the engineer should make a final estimate of the amount due and the town should pay the entire sum so found less amounts previously paid and an authorized retainage; and that the acceptance by the contractors of the last payment thus made should operate to release the town from all claims of and liability to the contractors. The engineer was made arbitrator of all questions which might arise under the contract; and it was provided that his estimate and decision upon any question which might arise “touching the contract” should be a condition precedent to the right of the contractors to receive any money under same. The exact language of this provision is as follows:
“Art. 2. To prevent dispute and litigation, the engineer shall in all eases determine the amount, quality, acceptability and fitness of the several kinds of work and materials which are to be paid for under this contract, shall determine all questions in relation to said work and the construction thereof, and shall in all eases decide every question which may arise relative to the fulfillment of this contract on the part of the contractor. His estimate and decision shall be final and conclusive upon both parties to this contract, and in case any question shall arise between the parties hereto, touching this contract such estimate and decision shall be a condition precedent to the right of the contractor, to receive any money under the contract.”
Shortly after the contract was awarded* but before work under it had commenced, the engineer changed the course of the 2,800-foot outfall sewer line of project A for a distance of about 1,800 feet, so that instead of running ova* a meadow on a concrete cradle it ran around & hillside under the ground. This eliminated some of the concrete work upon which bids had been submitted, but changed the character of excavation only to the extent that, whereas the original bid contemplated approximately 1,900 feet of the 15-inch pipe placed at a depth of 0 to 3 feet, 1,100 feet at a depth of 3 to 5 feet, and 200 feet at a depth of 5 to 7 feet, the line as constructed involved the placing of only 1,477 feet at a depth of 3 feet or less, 936 feet at a depth of 3 to 5 feet, and 380 feet at a depth of 5 to 7 feet. On project B it was found necessary to place the sanitary sewer line at a depth greater than originally contemplated and to make certain other minor changes, and these were ordered by the engineer. Plaintiffs proceeded under the contract, and at the conclusion of the work filed claims with the engineer for additional work done and additional expense incurred because of the changes. The engineer rejected some of the items of the claim and allowed others. On project A, plaintiffs asked $1,425 additional compensation for excavation for the disposal plant and were awarded $1,389. For change in the course of the outfall sewer they asked $3,728 and were allowed $637. On various claims under project B $1,421.55 was allowed. All of these amounts were carried into the final estimate for which payment was made to and accepted by plaintiffs. With respect to the claim for change in the outfall sewer, which is the only one of the claims for extra compensation involved in this appeal, the engineer in passing upon the claim of plaintiffs, said:
“Item No. 2. The location of the 15-ineh outfall sewer through the Perry property was shifted from its location at the time that the bids were submitted. The shifting of the line caused the contractor to excavate a good deal more rock than he would have had to move had the line not been shifted. On the other hand by shifting the line the town saved about $400.00 in the cost of construction and damaged the property through which the line was constructed considerably less than if it had been left on the original location, as the original location contemplated for the line being out of the ground for a large part of the way. According to his strict interpretation of the specifications, the contractor has no basis for his claim for this item, as article 18 provides as follows:
“ ‘Art. 18. The engineer may make alterations in the line, grade, plan, form, dimensions or materials of the work, or any part thereof, either before or after the commencement of construction; if such alterations diminish the quantity of work to be done, they shall not warrant any claim for damages or for anticipated profits on the work that may be dispensed with; if they increase the amount of work such increase shall be paid for according to the quantity actually done and at the price stipulated for such work under this contract.’
“However, I feel that we made the work more difficult than was contemplated at the time the work was bid on, and that regardless of article 18, the town is morally bound. By examining carefully the contractor’s unit bids we find that he figured his excavation at $2.97 per cu. yd., and I recommend that he be allowed the difference in price between $2.97 per cu. yd. and $5.00 per cu. yd., for that excavation between 3 feet and 7 feet which would make a total allowance of $637.42.”
Upon failure of plaintiffs to complete the work as provided by contract by December 31, 1926, the engineer began deducting the liquidated damages provided by contract from the estimates, deducting $10 per day for delay in the estimate on each project, on the theory that there was a separate contract as to each. On project A, $590 was deducted in estimate No. 4, covering January and February, and $610 on estimate No. 5, covering March and April. On project B, deduction was made on account of liquidated damages totaling $2,060 in estimates 6 to 12, inclusive. On February 17,1927, plaintiffs in a letter to the engineer called attention to the fact that liquidated damages had been deducted from one of the current estimates and protested against the deduction, both on the ground that it was usual to postpone such matters until the end of the job and also on the ground that the progress of the work had been delayed by the defendant’s change in plans. The engineer in a letter of February 22d, in answer to the protesting letter of plaintiffs, called attention to the provisions of the contract regarding liquidated damages and to those requiring the engineer to arbitrate matters in dispute. He stated that, at the time of preparing the estimate, he liad heard of no reason why liquidated damages should not be retained and that the provisions of the contract had been carried out accordingly, but expressed willingness to rule on any question with regard to liquidated damages which might be raised. Plaintiffs in a letter to the engineer of February 23d, stated that later they would submit their claims with regard to the matter; but there is no evidence of their having done so, even at the time of presenting their claims in preparation for the final estimate, although the liquidated damages had been regularly deducted from current estimates, and although, as we have seen, the contract provided that a decision by the engineer should be a condition precedent to the right of the contractor to receive any money under the contract in case a question “touching” same should arise.
Check was issued to plaintiffs in accordance with final estimate of the engineer and accepted and cashed by them, but it appears that they wrote defendant at the time that they were not waiving any claim by so doing, but were accepting the check as payment on account in accordance with an understanding with defendant, and that if this did not accord with defendant’s understanding, they would return the cheek. After some intervening correspondence, with respect to the arbitration of certain matters in difference, defendant wrote plaintiffs on October 24, 1928, that it would not arbitrate further but would adhere to the provisions of the contract which designated the engineer as final arbiter. The plaintiffs retained the moneys which they had collected, and something over two years later instituted this action for the purpose of recovering additional compensation.
Upon these facts, we think that there is no ground for the contention that plaintiffs were absolved from tbe provisions of the contract. In the first place, there was no such radical change in the nature of the work as to take it from under the provisions of the contract. The changes made in the sewer lines in project B and the change of course in the outfall sewer in project A were changes of the character frequently made in construction contracts, and such changes were provided for in the terms of the contract itself, article 18 thereof providing for alteration in line, grade, plan, etc., and article 22 providing for extra work. They were not changes radically altering the nature and cost of the work, as in Henderson Bridge Co. v. McGrath, 134 U. S. 260, 10 S. Ct. 730, 33 L: Ed. 934, and Salt Lake City v. Smith (C. C. A. 8th) 104 F. 457; nor were they made under a separate and independent contract as in Teer v. George A. Fuller Co. (C. C. A. 4th) 30 F.(2d) 30. The project as originally contemplated was substantially carried out, the changes made not adding greatly to the cost or changing to any considerable extent the character of work to be done. The case clearly falls within the principle of such cases as Coal & Iron R. Co. v. Reherd (C. C. A. 4th) 204 F; 859, RajotteWinters, Inc., v. Whitney Co. (C. C. A. 9th) 2 F.(2d) 801, and City of Mobile v. Shea (C. C. A. 5th) 127 F. 521.
In the second place, the parties proceeded under the contract throughout; and plaintiffs, having accepted its benefits, are not in position to repudiate its terms. The most radical change of which they complain is the change in the course of the outfall sewer, which was made before work was begun. They did not refuse to proceed with the work, nor did they treat this change as in any sense the requirement of work outside the contract; but they proceeded under a promise that their claim for additional compensation would be “ironed out” when the job was completed, and accepted payment of current estimates under the terms of the contract. When the work was finished, they filed claims with the engineer asking additional compensation under the contract and obtained thereby an award on their claims of several thousand dollars, which they accepted. They cannot approbate and reprobate in the same breath. Having accepted benefits under the contract, they will not be heard to contend that it is not binding upon them. See 10 R. C. L. 694; 21 C. J. 1209' and eases there cited.
Since, therefore, the plaintiffs are bound by the terms of the contract, they are bound by the award of the engineer made pursuant to its terms. As we said in City of Lexington v. Pratt (C. C. A. 4th) 31 F.(2d) 820, 821, where, as in the ease at bar, the contract made the decision of the city- engineer binding as to questions which might arise thereunder: “The rule is well settled in the federal courts that, where parties to a construction contract' provide, as- in this case, that the estimates and decisions of an architect or engineer as to questions arising in the execution of the contract shall be final and conclusive, such estimates and decisions have the effect of the award of an arbitrator. In the absence of fraud or such gross mistakes as imply bad faith' or failure to exercise an honest judgment, they are conclusive and binding upon the parties. U. S. v. Gleason, 175 U. S. 588, 20 S. Ct. 228, 44 L. Ed. 284; Chicago, S. F. & C. R. Co. v. Price, 138 U. S. 185, 11 S. Ct. 290, 34 L. Ed. 917; Martinsburg & P. R. Co. v. March, 114 U. S. 549, 5 S. Ct. 1035, 29 L. Ed. 255; Omaha v. Hammond, 94 U. S. 98, 24 L. Ed. 70; Penn Bridge Co. v. Kershaw County (C. C. A. 4th) 226 F. 728; Cook v. Foley (C. C. A. 8th) 152 F. 41, 51; Elliott v. Missouri, K. & T. R. Co. (C. C. A. 8th) 74 F. 707; Ogden v. U. S. (C. C. A. 5th) 60 F. 725. And this is also the general rule. 9 C. J. 772 and eases cited; note 56 Am. St. Rep. 314 et seq.”
There was no evidence in the ease of fraud on the part of the engineer or of such gross mistakes as would imply bad faith or failure to exercise an honest judgment. And there is no room for serious controversy as to the binding effect of his award on the claim of additional compensation for the construction of the outfall sewer. This was a question with relation to the work, it was submitted to him by the plaintiffs themselves, and we know of no principle upon which they can be relieved of the binding effect of his decision.
And we think that the parties are bound also by the decision gf the engineer regarding liquidated damages. Whether or not there was delay in the completion of the work for which the town was entitled to liquidated damages, was certainly a question “in relation to the work” and a question which arose “relative to the fulfillment of the contract on the part of the contractor.” Not only did article 2 of the contract make his decision final and conclusive on such questions, but it provided also that such decision, on any question “touching” the contract, should be a condition precedent to the right of the contractor to receive money under- the contract. In other words, the contractor could not, under this, provision, be paid the current or final estimates until questions affecting his right to be paid for the work performed had been determined by the engineer. One of the questions affecting his right to be paid was whether damages for delay were not deductible under the terms of the contract from any sums payable.
It is to be borne in mind that under article 10 of the contract it was provided that, if the contractor should fail to complete satisfactorily the entire work on or before the date stipulated, the town should deduct from payments due him the sum of $10 per day as liquidated damages, and that, if he should complete the work in advance of that date, he should be paid additional compensation of $10 per day for the time saved. The contract thus fixed the amount to be deducted from the contract price or added to it, all depending upon the completion.of the work, which was essentially a question relative to the fulfillment of the contract which it was necessary to decide before the stipulated amount could be deducted from or added to payments made the contractor, as the contract provided should be done. Not only, therefore, does the submission of the question as to such matters fall within the express language used, as. a question touching the contract and relating to its fulfillment, but it appears also that such submission was within the clear intendment of the parties, as without a determination of such matters it would be impossible to make the deductions or additional payments contemplated by the contract.
The purpose of providing for arbitration by the engineer in construction contracts of this character is to avoid the expense and uncertainty of a very difficult sort of litigation. The engineer who supervises the work is better qualified than any judge or jury can possibly be to determine such questions as whether the contractor has fulfilled the contract, what is the value of extra work ordered, or what extensions of time are proper for the completion of the work. And for the same reason, he is better qualified than any one else to determine when the work under the contract should be completed 'and the provision as to damages for delay applied. It is well settled that questions as to damages arising from delay in the performance of such contracts or the right to liquidated damages on account of such delay may be referred to arbitration by a clause in the contracts themselves; and that in such ease the award of the arbitrator so named is binding upon the parties. Roberts, Johnson So Rand Shoe Co. v. Westinghouse Electric So Mfg. Co. (C. C. A. 8th) 143 F. 218; Weld v. First Nat. Bank of Englewood, 255 Ill. 43, 99 N. E. 72; Jonathan Clark So Sons Co. v. City of Pittsburgh, 217 Pa. 46, 66 A. 154, 156; Conneaut Lake Agr. Ass’n v. Pittsburg Surety Co., 225 Pa. 592, 74 A. 620; Ruch v. York City, 233 Pa. 36, 81 A. 891. As was well said by the Supreme Court of Pennsylvania in the Jonathan Clark So Sons Case, supra, which involved the binding effect of an award denying liquidated damages:
“Another complaint of the appellant is that the director had no authority to pass upon the claim of the city for $100 per day for delay in completing the work. One of the provisions of the contract was that the city might retain from the contractor, as liquidated damages for the noneompletion of the work within the time stipulated for its completion, the sum of $100 per day for each day’s delay. The arbitrator found that neither Jonathan Clark So Sons Company nor the Mercantile Trust Company had unduly delayed the construction of the reservoir, and that neither of the said parties should be charged the sum of $100 per day, nor any sum whatsoever, as liquidated damages for delay in completing the work. The delay may have been caused by the extra work required by the city;' but, be this as it may, this claim was disputed by the appellee, and its settlement came within the very broad powers conferred upon the director, authorizing him to pass upon ‘any question or dispute * * * respecting any matter pertaining to’ the contract.”
In some cases it has been held that, because of the wording of the arbitration clause involved, a submission of the question of damages arising from delay was not authorized. See Ruch v. York City, supra; Somerset Borough v. Ott, 207 Pa. 539, 56 A. 1079; Young v. Crescent Development Co., 240 N. Y. 244, 148 N. E. 510; Smith Fireproof Construction Co. v. Thompson-Starrett Co., 247 N. Y. 277, 160 N. E. 369. But for the reasons above stated, we think that the contract here clearly contemplated and required such submission.
And we,think it equally clear.that the right of the defendant to liquidated damages was passed upon by the engineer. As shown above, he determined the question in passing upon the estimates; and, upon protest by the plaintiffs, he notified them that he was acting under the contract in doing so and expressed his willingness to pass upon any questions which they might raise in regard thereto. So far as the record shows, they raised no such question either then or in filing their claim at the completion of the work in preparation for the passing of the final estimate, but accepted payment of the estimates, although deductions had been made from them on account of the liquidated damages, and raised no question with regal'd thereto when the engineer was determining the final amount to which they were entitled.
As to the $1,200' item, the right of defendant to deduct this depends upon whether as a matter of law $10 per day was deductible as to each project on account of delay or only $10 per day for delay in the entire work covered by the contract. Without deciding whether this is a matter which falls within the provisions of the arbitration clause, we think that the parties did not invoke the decision of the engineer with regard to it and that consequently the court below was not precluded from considering the claim of plaintiffs with regard thereto by reason of his award. We think, also, that the court correctly held that only $10 per day was properly deductible under the contract for delay in the entire work and not $10 for delay as to each project.
It follows that the court was in error in not directing a verdict for defendant on the $1,427.85 and $2,060 items covered by the judgment, and that only as it relates to the $1,200 item should the verdict and judgment against defendant be allowed to stand. The judgment below will accordingly be reversed and the case remanded for a new trial in accordance with this opinion, unless the plaintiffs shall remit in writing on the judgment in the District Court all of that judgment in excess of $1,200. If the plaintiffs shall make such remittitur within sixty days, the judgment of the District Court shall stand as affirmed. The costs of this appeal shall be taxed against the plaintiffs, the appellees herein.
Reversed nisi.
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_amicus
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine or not there was any amicus participation before the court of appeals.
In re LOWRY. C. I. T. CORPORATION v. MACHEN.
No. 2936.
Circuit Court of Appeals, Fourth Circuit.
April 8, 1930.
Fred E. Martin, of Norfolk, Va., for appellant.
H. M. Woodward, of Norfolk, Va., for appellee.
Before PARKER and N0RTHC0TT, Circuit Judges, and HAYES, District Judge.
NORTHCOTT, Circuit Judge.
One William Lowry filed a voluntary petition in bankruptcy in the District Court of the United States for the Eastern District of Virginia, on the 10th day of June, 1929, and he was, on the same day, duly adjudicated a bankrupt. In the schedules filed by him, he listed a Hudson automobile as subject to the lien of appellant company. Appellee was duly appointed and qualified as trustee for the bankrupt estate. In July, 1929, appellant filed a reclamation petition setting up its lien on the automobile. The trustee opposed the petition, and, after a hearing in August, 1929, the referee entered an order directing the trustee to surrender said Hudson automobile to appellant. On a petition for review, the •judge of the District Court, afteí a hearing, entered an order in September, 1929, setting aside the order of the referee and dismissing the reclamation petition. From which action this appeal was taken.
There is no dispute as to the facts, and the agreed statement of facts shows that the Hudson automobile in possession of the bankrupt at the time of his adjudication had been purchased by him from C. E. Wright & Co. as a used car. The ear when new had been purchased by one Calkins. At some time during the Calkins ownership, the original motor No. 475476, having become defective, was replaced by a motor which was numbered 497577, and was later turned back to the Wright Company on a trade, and sold to the bankrupt on January 18, 1929.
At the time of the latter sale, Wright & Co. made application to the Motor Vehicle Commissioner of Virginia for transfer of title to the bankrupt, and failed to make note of the change of the motor number on the original certificate of title. A title certificate (No. B 477639) showing motor No. 475476 instead of motor No. 497577, was issued to the bankrupt with the lien of appellant indorsed thereon. Wright & Co., in January, 1929, sold and transferred said lien to the appellant corporation.
The pertinent part of the Virginia Motor Vehicle Registration Act reads as follows: Section 2154 (39) j, See. 9:
“(b) Every application for a certificate of title shall contain a statement of the applicant’s title and of all liens or encumbrances upon said vehicle and the names and addresses of all persons having any interest therein and the nature of every such interest.
“(c) Every application for a certificate of title shall contain a brief description of the vehicle to be registered, including the name of the maker, the engine or serial number * * *
“(d) In the event the vehicle for which the registration of the certificate of title is applied is specially constructed, reconstructed or foreign vehicle, such fact shall be stated in the application.”
Section 2154 (39) L of Code of Virginia (1926) reads in part as follows:
“Said certificate of title when issued by the Motor Vehicle Commissioner showing a lien or encumbrance, shall be deemed adequate notice to the Commonwealth, creditors and purchasers that a lien against the motor vehicle exists, and the recording of such reservation of title, lien or encumbrance in the county or city where the purchaser or debtor resides or elsewhere, is not necessary and shall not be required. * * *
“Liens or encumbrances placed on motor vehicle * * * must be shown on said certificate of title * * * Said certificate of title of such motor vehicle shall be delivered to the person or corporation holding the first lien or encumbrance upon said motor vehicle and retained by him or them until the entire amount of his or their lien is fully paid by the owner of said vehicle.”
It would seem that where the lien of the vendor or his assignee is recorded in the Motor Vehicle Commissioner’s Office and on the face of the title certificate, the recording of the conditional sale contract shall not be necessary. And the conditional sale contract, though not recorded, is an essential and integral part of the whole transaction. The contract contained the correct motor and serial numbers of said automobile.
The title certificate B477639, issued to the bankrupt, and in possession of appellant at the time of the bankruptcy, showed on its face that the said automobile was a Hudson brougham, 1928 model; that the owner was William M. Lowry, 427 Wilson Road, Norfolk, Va.; that the said Lowry states on oath that the said motor vehicle is subject to the following lien: $530.28 on conditional sale contract, dated January 18,1929, in favor of C. I. T. Corporation, Norfolk, Va.
The conditional sale contract signed by the bankrupt shows on its face that a Hudson brougham, 1928 model, motor number 497577, serial number 784296, was sold to William M. Lowry, 427 Wilson Road, Norfolk, Va.; that there was a balance due of $530.28; that the contract was dated January 18, 1929, and that said chattel will be kept at 427 Wilson Road, Norfolk, Va.
The sole question in the case is whether the fact that an erroneous number was given in the title certificate as the engine number would invalidate the lien of appellant, and, in considering this question, we must bear in mind that the bankruptcy court is in effect a court of equity, and endeavors, where possible, to do equity. Seottsville Nat. Bank v. Gilmer, 37 E.(2d) 227, decided by this court, January 14, 1930. This being true, it seems to us inequitable to hold that a certificate of title, under the Virginia law, that had an erroneous engine number but that referred to a conditional sale contract that gave the correct engine and serial numbers, correctly described the automobile, the place where it could be found and the person who owned and had possession of it, would not be sufficient to maintain the lien as against the trustee in bankruptcy.
Under the circumstances here to' take that which in all equity and justice is the property of appellant for the benefit of general creditors would not be doing equity. The certificate of title, defective as it was, was sufficient to pass title to the bankrupt, and upon the bankrupt’s title and possession of the automobile the trustee bases his claim. The question at once arises that if the certificate was sufficient for the one purpose why then is it not sufficient for the purpose of maintaining the lien?
Certainly the statement of the lien in the certificate of title would be sufficient to put a purchaser for value upon notice as to the lien. MacCallum-Donahoe Finance Co. v. Warren et al,, 122 Wash. 176, 210 P. 368.
It has also been held that a wrong registration number inserted in an application for insurance did not invalidate the insurance where there was evidence identifying the car as the one intended to be insured, and when the car was the only one owned by the insured. White v. Home Mut. Ins. Ass’n, 189 Iowa, 1051, 179 N. W. 315. See, also, Moore v. North River Ins. Co., 111 Kan. 420, 207 P. 760; Northwestern Nat. Ins. Co. v. Chambers, 24 Ariz. 86, 206 P. 1081.
The same rule that applies to the description of an article in a chattel mortgage or conditional sale contract would apply here, and this court has held in Tilton v. H. W. Wade Mfg. Co. (C. C. A.) 2F.(2d) 358, 359, that a description not more specific or detailed than the one here was sufficient. “The general rule upon this subject as stated by the text-writers, and which seems to be sustained by the weight of decided eases, is, that a deed of trust or mortgage conveying chattels, when recorded, is constructive notice to third persons, if the description in the deed or mortgage is such as will enable them to identify the property, aided by the inquiries which the deed or mortgage itself indicates and directs.” Tilton v. H. W. Wade Mfg. Co., supra. See, also. Florence v. Morien, 98 Va. 26, 34 S. E. 890.
In National Cash Register Co. v. Marks, 13 F.(2d) 628, the opinion of the Circuit Court of Appeals of the Sixth Circuit is also- to the same effect.
Appellee relies upon a number of cases from other states on the question of the faulty description, but a study of these eases shows that point to have been settled under statutes different from the Virginia statute, which latter only requires a “brief description” of a vehicle, and we therefore do not think the cases relied upon are controlling here. Certainly the greater equity is to allow appellant’s claim, and the order of the court below is accordingly reversed, and this cause is remanded.
Reversed.
Question: Was there any amicus participation before the court of appeals?
A. no amicus participation on either side
B. 1 separate amicus brief was filed
C. 2 separate amicus briefs were filed
D. 3 separate amicus briefs were filed
E. 4 separate amicus briefs were filed
F. 5 separate amicus briefs were filed
G. 6 separate amicus briefs were filed
H. 7 separate amicus briefs were filed
I. 8 or more separate amicus briefs were filed
J. not ascertained
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.
Robert HARRIS, Plaintiff-Appellant, v. Frank J. PATE, Warden, Defendant-Appellee.
No. 18718.
United States Court of Appeals, Seventh Circuit.
March 12, 1971.
Hastings, Senior Circuit Judge, dissented and filed opinion.
Robert Harris, pro se.
William J. Scott, Chicago, Ill., Joel Flaum, Warren K. Smoot, Asst. Attys. Gen., Kerry R. Cordis, Asst. Atty. Gen., of counsel, for appellee.
Before HASTINGS, Senior Circuit Judge, and KERNER and STEVENS, Circuit Judges.
STEVENS, Circuit Judge.
This appeal raises three questions: (1) whether the complaint states a cause of action; (2) whether the district court properly refused to lend its assistance to plaintiff, a prison inmate, in obtaining affidavits in opposition to defendant’s motion for summary judgment; and (3) whether the court erred in refusing to grant plaintiff additional time which he required to obtain such affidavits before ruling on the motion. We think appellant’s first and third contentions have merit, but reject the second.
I.
Appellant is a prison inmate without funds to employ counsel. Accordingly, as we have consistently held, his complaint should be accorded a liberal construction. Sigafus v. Brown, 416 F.2d 105, 106 (7th Cir. 1969); United States ex rel. Campbell v. Pate, 401 F.2d 55, 57 (7th Cir. 1968).
Construing the complaint liberally, and accepting its allegations as true for the purpose of testing its sufficiency, it alleges that defendant’s interference with his mail and visiting rights prevented him from preparing an adequate defense to a state criminal charge to which, as a result, he pleaded guilty on December 8, 1969; and, further, that the continued interference with plaintiff’s access to outsiders has impeded his ability to prosecute an appeal in the state courts. This court has recognized that the judgment of prison administrators with regard to prison practices, including limitations on mail and visiting privileges, is entitled to deference. Cooper v. Pate, 382 F.2d 518, 521-522 (7th Cir. 1967). However, we have also held that a prisoner’s complaint based on interference with his access to the courts states a claim for relief under the Civil Rights Act. Sigafus v. Brown, 416 F.2d 105 (7th Cir. 1969); Spires v. Bottorff, 317 F.2d 273 (7th Cir. 1963). It may be that Harris will not be able to prove his allegations, but his pleading is sufficient.
II.
Plaintiff’s complaint was filed on April 8, 1970. On May 28, 1970, defendant filed a motion to dismiss or for summary judgment, with a supporting memorandum, exhibits, and affidavits executed by defendant and other prison officers. On June 18, 1970, plaintiff filed a “cross-motion to dismiss defendant’s motion,” in which he asserted that he had been unable to obtain affidavits to support his allegations because of his difficulty in communicating with outsiders. On July 2, 1970, plaintiff filed a second motion in response to the motion for summary judgment. This motion called attention to the fact that Harris is without legal counsel and reiterated his claim that he cannot effectively communicate with outsiders. It indicated that, after filing his cross-motion, Harris had unsuccessfully attempted to mail affidavit forms to a friend, Maggie Byndum, and to certain other persons. The forms which are appended to the motion and, therefore, a part of the record on appeal, call for affirmative or negative responses to various statements which tend to substantiate Harris’s allegations concerning interference with his mail, receipt of funds, and visitors privileges. The prayer of the motion was that the trial court grant Harris a continuance and allow time for the forms to be executed and returned for consideration on the motion for summary judgment. Additionally, the motion asked the court’s assistance to ensure that the forms are mailed to the persons designated by plaintiff. There is nothing in the record to indicate that defendant ever responded to this motion.
By an order dated July 10, 1970, the trial court denied plaintiff’s motion concerning the affidavit forms. On the same day the court granted defendant’s motion and dismissed the complaint.
On the record before us, we are satisfied that it was not an abuse of discretion for the court to decline to lend its assistance to plaintiff in trying to obtain affidavits in support of his allegations. Relevant portions of plaintiff’s motion papers were unsworn. With one exception, as far as we can .determine from the record, his proposed affiants were unidentified. The record demonstrates that plaintiff was, in fact, able to communicate with the court through the mails; accordingly, the court could consider the improbability of the unsworn charges that he was unable to communicate with others in exercising its discretion not to interfere with the institutional procedures for processing plaintiff’s mail. The district court did not err in denying this aspect of plaintiff’s second motion.
III.
The denial of plaintiff’s request for a continuance to enable him to obtain affidavits in opposition to defendant’s motion presents a different question. Rule 12(b) of the Federal Rules of Civil Procedure provides, in part:
“If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.”
The drafters of Rule 56 anticipated the possibility that an opposing party might require additional time in order to obtain counteraffidavits and expressly provided for the granting of a continuance upon a proper showing. Of course, in the first instance the decision to permit a continuance is within the sound discretion of the trial court. Given the circumstances of this case, however, the trial court’s refusal to grant a continuance was an abuse of its discretion. Plaintiff was not represented by counsel and, because of his incarceration, he was less able than an ordinary party to obtain affidavits effectively and expeditiously. Furthermore, the pleadings which he sought to support complained of special disabilities affecting his communication with outsiders. The failure to grant Harris’s motion deprived him of a “reasonable opportunity to present all material made pertinent to such a motion by Rule 56.” In effect, it deprived him of an adequate opportunity to be heard. Cf., Georgia Southern & F. Ry. Co. v. Atlantic Coast Line R. Co., 373 F.2d 493, 497-498 (5th Cir. 1967) cert. denied 389 U.S. 851, 88 S.Ct. 69, 19 L.Ed.2d 120.
The Federal Rules are explicit in their requirement that a party opposing a motion to dismiss for failure to state a claim for relief, accompanied by exhibits and affidavits, must be afforded a full opportunity to respond pursuant to Rule 56. The right to respond by affidavit or otherwise cannot be denied merely because the trial judge believes that plaintiff’s claim is insubstantial or frivolous. Cohen v. Cahill, 281 F.2d 879 (9th Cir. 1960); see, also, Bane v. Spencer, 393 F.2d 108 (1st Cir. 1968) (per curiam), cert. denied 400 U.S. 866, 91 S.Ct. 108, 27 L.Ed.2d 105. We hold that the denial of a continuance improperly deprived plaintiff of an important procedural right.
The judgment is reversed and the cause is remanded for further proceedings consistent with this opinion.
. Of course, defendant’s affaidavits and exhibits cannot be considered on this question.
. Plaintiff sought injunctive relief and damages against Warden Pate and other unnamed officials of the Joliet state prison, where he was incarcerated at the time. Harris purported to allege a conspiracy to deny him due process and equal protection of the law in violation of the Fourteenth Amendment and the Federal Civil Rights Act. He further alleged that the purpose of the conspiracy was to injure him legally and personally. The misconduct charged in the complaint can be summarized as follows: (1) at various times in 1968, 1969, and continuing to the time of the filing of the complaint in 1970, defendant interfered with or stopped Harris’s legal and personal mail and denied him the use of funds sent by friends; (2) on or after April 11, 1968, defendant stopped visitors and advised them not to assist Harris ; (3) at various times certain prison officers made the contents of Harris’s personal letters available to other inmates; (4) one Bernyce Paschal was permitted access to Harris’s legal and personal letters and allowed and encouraged to use information in those letters to injure and ridicule him; (5) defendant caused a false report concerning Harris to be prepared by the Behavioral Clinic of the Circuit Court of Cook County; and (6) defendant spread a false rumor that Harris was a police informer.
Certain letters which are part of the record on appeal suggest that Harris was attempting to obtain a transfer from Joliet to the Menard state prison while this action was pending in the district court. However, even if plaintiff is no longer incarcerated at Joliet, his claim for damages is not moot, nor is his claim for injunctive relief necessarily moot. Pierce v. LaVallee, 293 F.2d 233, 234 (2d Cir. 1961).
. In Sigafus we determined that a claim for damages was stated under 42 U.S.C. § 1983 when plaintiff alleged destruction by jail guards of legal papers necessary for his appeal of a state conviction. We do not deem plaintiff’s imperfect attempt to plead a conspiracy to preclude a determination that a § 1983 claim has been stated. See Jennings v. Nester, 217 F.2d 153, 154 (7th Cir. 1954) ; Huey v. Barloga, 277 F.Supp. 864, 873 (N.D.Ill.1967).
. We shall refer to only one defendant, Warden Pate. He is the only party identified by name in the complaint and, according to the record, the only party served. Plaintiff, however, consistently refers in his complaint to “defendants” and to a “conspiracy among defendants.” The other defendants are alleged to be prison officials at Joliet.
. While plaintiff’s cross-motion, like his complaint, lacks the precise attention to legal requirements that one would expect from a lawyer, it does clarify allegations in the complaint, including the identity of at least some of the prison officials who allegedly participated in the conspiracy and who presumably are the unnamed defendants. Furthermore, the cross-motion to some extent controverts defendant’s affidavits in their denial of interference with Harris’s mail, and his use of funds.
. The court’s reason for denying the motion was:
“ * * * this court will not interfere with the administration of internal affairs of a penal institution, unless there is an abuse of discretion in the administration of such affairs.”
. Fed.R.Civ.P. 56(f). The Advisory Committee Note accompanying the 1963 amendment to Rule 56 re-emphasizes the force of subdivision (f) :
“ * * * Where the evidentiary matter in support of the motion does not establish the absence of a genuine issue, summary judgment must be denied even if no opposing evidentiary matter is presented. And summary judgment may be inappropriate where the party opposing it shows under subdivision (£) that he cannot at the time present facts essential to justify his opposition.”
. Local rules for the Northern District of Illinois provide for oral argument on a motion only when requested and then in the court’s discretion. Local Rule 13(d). This rule may have the salutary effect of expediting the business of the court and conserving in-court time for more serious matters. However, its existence requires that the parties be afforded every reasonable opportunity to submit written argument and supporting material to the court prior to a decision.
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_genapel1
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
UNITED STATES of America v. Calvin L. RANDOLPH, Appellant.
No. 23222.
United States Court of Appeals, District of Columbia Circuit.
Argued April 27, 1970.
Decided Dec. 22, 1970.
Bazelon, Chief Judge, concurred in part and dissented in part and filed opinion.
Mr. Grant Stetter, Washington, D.C. (appointed by this court), for appellant.
Mr. John O’B. Clarke, Jr., Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., and John A. Terry, Asst. U. S. Atty., were on the brief, for appellee.
Before BAZELON, Chief Judge, and TAMM and MacKINNON, Circuit Judges.
MacKINNON, Circuit Judge:
The office of Lea’s Green Meadows, Inc. (Lea’s), a wholesale food enterprise, was held up and robbed at about 11 A. M. on November 8, 1968 by two men. Appellant Calvin Randolph was subsequently convicted by a jury on two counts and sentenced to a term of imprisonment for robbery and assault with a dangerous weapon. He appeals and we affirm.
I
At trial, the single contested issue was the identification of the accused and the Government presented an abundance of proof that Randolph was the robber in the dark raincoat who participated in the holdup using a sawed-off shotgun.
Otis Davis, a truck driver for Lea’s, testified that he had known Randolph for about one or two years, had seen him quite a few times, had been in games with him, they had loaned each other money, and he identified Randolph as the defendant. He further testified that between 10:30 A.M. and 11 A.M. on the day of the robbery he saw Randolph with Anthony McDonald (also later identified as one of the robbers) about two blocks away from Lea’s Green Meadows; that Randolph was wearing a dark green or black coat; that Randolph asked him where he was going and he told him he was going back to the plant (Lea’s Green Meadows), whereupon Randolph asked if he had any money and Davis said no and they parted going in opposite directions, Davis toward the plant.
Mr. Lea, the proprietor of Lea’s Green Meadows, testified he and others in his plant were held up at about 11 A.M. on November 8, 1968, that Randolph was one of the robbers, that the lighting was good in the plant at the time of the robbery, that Randolph first engaged him in conversation from a distance of about two feet before he held him up, that he had a good opportunity to view Randolph at that time and once or twice later in the holdup and that Randolph was not disguised. Later in the day of the robbery, Mr. Lea looked at several albums of pictures of possible suspects shown him by the Robbery Squad but did not identify any of the photographs and also did not identify any of the suspects he saw at Randolph’s apartment that same day. Within about a week of the crime, without any assistance, Lea identified a photograph of Randolph from nine or ten photographs shown to him at that time. He also made a lineup identification of Randolph and Me- ‘ Donald on December 10, 1968 and an in-eourt identification of Randolph at trial. Mr. Lea further testified that Randolph wore a (a) dark raincoat at the time of the robbery, that he held him up with a (b) sawed-off shotgun and carried away the proceeds of the robbery (over $500) in an (c) El Producto cigar box. These details assumed particular significance as the trial progressed.
Rogers, the shipping clerk at the plant, who was also held up corroborated Mr. Lea’s testimony of the circumstances of the robbery, the time of the holdup, the use by one robber of the sawed-off shotgun and that one of the robbers wore a black or dark green raincoat. Rogers, also without any assistance, from about 15 or 20 photographs shown him within the week after the robbery, made a photographic identification of Randolph (“[T]his is him.”) as being the robber in the dark raincoat who used the sawed-off shotgun (about two feet long) and made an in-court identification of Randolph. However, Rogers did not attend the lineup on December 10, 1968 when Mr. Lea testified he identified Randolph and McDonald.
Further significant evidence supporting the conclusion that Randolph was one of the robbers was adduced through the testimony of Officer Charles A. Mussomele (a 7-year veteran police officer) who testified that he knew Randolph previously, that on the day of the robbery at about 10:55 A.M. he was cruising in a police car about two blocks away from Lea’s Green Meadows when he saw two men walking very hurriedly on the side of the street; they appeared nervous as they kept looking around, their manner aroused his suspicions and he decided to stop them; he cruised to within about 14 feet of them and called to appellant “Calvin” [Randolph] by name to stop but both suspects ran away. He had observed Randolph carrying (a) something black under his arm (it looked about the way a black raincoat looks rolled up), and a (b) sawed-off shotgun under the light trench coat he was wearing at that time. Randolph was in the company of the other man who was carrying an (c) El Producto cigar box. Mussomele testified further that he chased the two men but was not able to apprehend them at that time. He made an in-court identification of Randolph and testified that the other man with him was about 21 years old, about 6 feet tall and had a mustache, goatee and light skin. The description fit that of McDonald.
There was thus ample evidence, both direct and circumstantial, that Randolph committed the offenses of which he stands convicted.
II
The principal issue on this appeal concerns the introduction in evidence of Lea’s identification of appellant at the lineup held on December 10, 1968. Specifically, appellant argues that he was not represented by counsel at the lineup and that the introduction of the identification at trial therefore violates the rules enunciated in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967).
On December 10, Lillian Havenner, a bookkeeper at Lea’s Green Meadows, and Lea viewed a lineup in which both appellant and McDonald appeared. At the time of the lineup, appellant had not been arrested for the instant robbery and consequently did not have counsel in this case. However, he had been arrested previously on another robbery charge and counsel had been appointed to represent him on that charge. Appellant had been ordered to appear in the December 10 lineup in connection with the second robbery charge and his counsel on the other charge had been notified of the lineup and invited to attend. This he did not do. A lawyer for the Legal Aid Agency, Mr. Christensen, was present at the lineup, however, and testified that he
was a general representative lawyer there to represent those defendants who were unrepresented by counsel for purposes of that line-up.
Appellant does not contest the fact that Mr. Christensen was present at the lineup but argues instead that Christensen was not representing him for purposes of the lineup. On this issue, the evidence was somewhat ambiguous. Christensen testified twice on the matter, first, at the pretrial hearing held on appellant’s motion to suppress Lea’s lineup identification and, secondly, at the trial which followed. At the pretrial hearing, his testimony was that he attended a great many lineups, that he had no independent recollection of the instant one and that such testimony as he could give was based exclusively on the notes he had contemporaneously written on the separate cards he used to record the circumstances surrounding each lineup. He further testified that he had attended 14 lineups on the night of December 10, that his notes reflected that appellant was present on the stage but that he interpreted his notes to indicate that he “did not conduct a line-up” with appellant and that he “never had [appellant] particularly in mind as the defendant [he] represented.” He did, however, represent other persons suspected of participation in the same robbery who were present in the lineup, and made no objection to the lineup itself.
At trial the next day, Christensen modified his pretrial suppression hearing testimony somewhat to indicate that, although his attention was focused on another person in the lineup, he was representing appellant in a “general” way. On his cross-examination, it was also elicited that among the notes he made of the lineups he attended on December 10th was one which had appellant’s name at the top of the card relating to lineup 19. He further testified that it was his general practice to place the name of the person whom he was representing at the top of the card on which he wrote his notes concerning the lineup in which that person was involved.
Both at the pretrial hearing and at trial, Christensen testified that his lineup notes indicated that Lea did identify McDonald at the lineup. There was no indication on his notes that Lea had identified appellant, however, and from the absence of such indication, Christensen concluded that Lea had not identified appellant. However, Lea and two detectives who were present at the lineup testified that Lea did identify appellant and the police records of the lineup, which were admitted in evidence, indicated that he had.
Based on the foregoing, we are of the opinion that it was not erroneous for the trial court to conclude that appellant was represented by counsel at the lineup and therefore it was not error for testimony to be admitted concerning Lea’s lineup identification of appellant. Since Christensen had no independent recollection of the circumstances surrounding the lineup, great weight must be placed on his contemporaneous notes which recorded certain facts. See generally Zassenhaus v. Evening Star Newspaper Co., 131 U.S.App.D.C. 384, 387 n.18, 404 F.2d 1361, 1364 n.18 (1968); United States v. Riccardi, 174 F.2d 883 (3d Cir.), cert. denied, 337 U.S. 941, 69 S.Ct. 1519, 93 L.Ed. 1746 (1949). The notes themselves were admitted into evidence without objection and, when Christensen’s testimony concerning his function at lineups is added to them, we think that it was permissible for the trial court to rely upon them and to conclude that he was representing appellant at the lineup.
The fact that Christensen’s notes do not indicate whether or not Lea identified appellant does not alter this conclusion. Obviously it would have been better if Christensen’s recollection of the circumstances surrounding the lineup were such that he could made a definite statement as to whether Lea did or did not identify appellant. See United States v. Wade, 388 U.S. 218, 230, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Clemons v. United States, 133 U.S.App.D.C. 27, 31, 408 F.2d 1230, 1234, cert. denied, 394 U.S. 964, 89 S.Ct. 1318, 22 L.Ed.2d 567 (1969). However, Christensen could have missed hearing Lea’s identification in the general atmosphere surrounding the lineup. Even if his testimony is taken as indicating that Lea did not identify appellant, this testimony would be for the jury to evaluate in determining how much weight should be given to the identification in reaching its ultimate conclusion. Cf. United States v. Williams, 137 U.S.App.D.C. 231, 232-233, 421 F.2d 1166, 1167-1168 (1970).
Assuming, however, that appellant was not represented by Christensen, and that the admission of Lea’s lineup identification was error, we conclude that the error was harmless.
To summarize the testimony, Randolph was observed, by a person who knew him, near Lea’s Green Meadows shortly before it was robbed and was observed, again by a person who knew him, minutes after the crime, about two blocks from the scene of the crime, carrying a sawed-off shotgun, in the company of a person who was carrying an El Producto cigar box, the same brand of cigar box which was taken in the robbery. Mr. Rogers, an employee at Lea’s identified Randolph from photographs as being one of the men who robbed him and was able also to identify Randolph in court even though he had not viewed the lineup. In addition, there was testimony of three witnesses that Randolph was wearing a dark raincoat at the time and one testified he was carrying what could have been such a raincoat; the same three witnesses testified that the man with Randolph at the time was McDonald or at least a man who met McDonald’s description. The five identifications of appellant (excluding Lea’s lineup and in-court identifications) were unequivocal. Finally, Lea had an excellent opportunity to observe appellant under good lighting conditions at the time of the crime and without any assistance selected appellant’s photograph from a group of photographs shortly after the robbery. We are of the opinion that his in-court identification of appellant had a source independent of the lineup and was therefore admissible on its own. United States v. Wade, supra, 388 U.S. at 240, 87 S.Ct. 1926; Clemons v. United States, supra, 133 U.S.App.D.C. at 34, 408 F.2d at 1237.
There was thus strong uncontroverted testimony (appellant did not testify) connecting appellant with the crime and the admission of Lea’s lineup identification was cumulative. If the admission of the lineup identification constituted error, based on our evaluation of its impact on the minds of the jury, we conclude that it did not contribute to their verdict and was thus harmless beyond a reasonable doubt. Harrington v. California, 395 U.S. 250, 254, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Gilbert v. California, supra, 388 U.S. at 274, 87 S.Ct. 1951; Chapman v. California, 386 U.S. 18 at 24, 87 S.Ct. 824, 17 L.Ed. 2d 705; Willard v. United States, 421 F.2d 59, 60 (9th Cir. 1969), cert. denied, 399 U.S. 914, 90 S.Ct. 2217, 26 L.Ed.2d 572 (1970); see Long v. United States, 137 U.S.App.D.C. 311, 316-317, 424 F.2d 799, 804-805 (1969); Taylor v. United States, 134 U.S.App.D.C. 246, 248-249, 414 F.2d 1142, 1144-1145 (1969); Solomon v. United States, 133 U.S.App.D.C. 103, 106, 408 F.2d 1306, 1309 (1969).
We have carefully examined appellant’s other contention and find no error.
Affirmed.
. There was conflicting testimony on this point. See pp. 731-732, infra.
. Mrs. Havenner worked in the back room in Lea’s Green Meadows and saw only one of the robbers. She testified at trial that the robber she saw had a pistol (not the sawed-off shotgun which the testimony of other witnesses indicated that appellant was carrying), that he wore a brown scarf over his face from his nose down and that one of the men she saw at appellant’s apartment shortly after the robbery “looked like the one [she] saw” during the robbery. At the suppression hearing, there was testimony that she identified a person other than appellant or McDonald at the lineup. She made no in-eourt identification and no testimony was elicited concerning her participation in the lineup.
. Appellant was exhibited to witnesses in the instant case pursuant to an “Adams” order issued by the Court of General Sessions. See Adams v. United States, 130 U.S.App.D.C. 203, 399 F.2d 574 (1968).
. Christensen was thus a “substitute” counsel. See United States v. Wade, 388 U.S. 218, 219, 237 n. 27, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Russell v. United States, 133 U.S.App.D.C. 77, 80, 408 F.2d 1280, 1283, cert. denied, 395 U.S. 928, 89 S.Ct. 1786, 23 L.Ed.2d 245 (1969). We have indicated that the right to counsel extends to pre-indictment lineups, such as the one here and have discussed substitute counsel in that context. Mason v. United States, 134 U.S.App.D.C. 280, 282, 414 F.2d 1176, 1178 (1969). See also, United States v. Kirby, 138 U.S.App.D.C. 340, 427 F.2d 610 (1970).
. Transcript, Vol. I, at 24:
Q. You have no independent recollection who the officer was?
A. I have no independent recollection of the line-up.
Q. No independent recollection of the line-up at all?
A. Correct.
Q. Everything you told us came from these notes?
A. That is correct.
. In Christensen’s terms, however, a “lineup * * * [is] when a witness comes in the line-up room and looks at the line-up men.” His testimony that he attended 14 lineups does not mean that he attended 14 separate arrays of suspects but merely that 14 separate witnesses looked at the lineups.
. Prom the pictures of the lineup, it does not appear to have been suggestive in any way and appellant does not contend here that it was.
. We express no view on the question of whether, in a different case, a substitute counsel’s inability to recall more of the circumstances surrounding a lineup than Mr. Christensen recalled here would meet the constitutional requirement of effective assistance of counsel. In such a case, the questions posed by Judge Bazelon may well be crucial. See page 734 infra. Here, however, the only issue raised concerning the events which took place at the lineup was whether Lea did or did not identify appellant. At its strongest, Mr. Christensen’s testimony indicates that he did not, thus presenting a jury question.
. Davis, Lea and Rogers indicated that appellant was wearing the coat and Mussomele said he had it rolled under his arm. Davis and Mussomele knew appellant previously.
. Davis as to his presence on the street two blocks away from Lea’s Green Meadows prior to the robbery; Rogers as to his photographic and in-court identifications; Lea as to his photographic identification; and Mussomele as to his identification two blocks away from Lea’s Green Meadows on the street after the robbery.
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_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.
WASHINGTON CAPITOLS BASKETBALL CLUB, INC., a District of Columbia corporation, Appellee, v. Richard F. BARRY, III, also known as Rick Barry; Lemat Corporation, a Delaware corporation and the general partner of a limited partnership doing business under the name of San Francisco Warriors; and San Francisco Warriors, a limited partnership, Appellants.
No. 24921.
United States Court of Appeals Ninth Circuit.
Nov. 28, 1969.
Robert M. Ruben (argued) and Robert A. Holtzman, of Loeb & Loeb, Los Ange-les, Cal., Morrison, Foerster, Holloway, Clinton & Clark, San Francisco, Cal., for appellants.
Frederick P. Furth (argued), San Francisco, Cal., for appellee.
Before HAMLEY, MERRILL and TRASK, Circuit Judges.
TRASK, Circuit Judge:
This is an appeal from an order of The United States District Court for the Northern District of California which granted a preliminary injunction to the plaintiff, Washington Capitols Basketball Club, Inc., (1) enjoining the defendant, Richard F. (Rick) Barry III from playing basketball for any professional team other than the Washington “Caps” and (2) enjoining the San Francisco Warriors and Lemat Corporation from attempting to enforce a five year playing contract signed on August 26, 1969 between Rick Barry and the Warriors.
Barry and the Warriors appeal to this court pursuant to 28 U.S.C. § 1292. Jurisdiction is based upon diversity of citizenship. 28 U.S.C. § 1332.
The basic controversy is whether Rick Barry will play professional basketball pending final determination of this action as a member of the Washington “Caps” of the American Basketball Association or the San Francisco Warriors of the National Basketball Association. The District Court on Sept. 26, 1969, on the basis of the facts and the law then presented, ruled in favor of the Washington “Caps”. 304 F.Supp. 1193. We affirm.
All parties agree that the playing ability of Rick Barry on a basketball court is such that he is a legally “unique” party to a player’s contract. After an outstanding collegiate career at The University of Miami, he signed and played with the Warriors during the 1965-66 basketball season and was named the league’s “Rookie of the Year”. On August 29, 1966, he signed a second contract with the Warriors for one year beginning October Í, 1966 and executed a National Basketball Association Uniform Player Contract containing a “reserve” or “option clause”. Such a clause gives the club the right to contract with the player for an additional year. This option was exercised on or about June 22, 1967 by the Warriors for the playing year 1967-1968.
In the meantime, on June 19, 1967, Barry signed an option agreement with Pat Boone and Kenneth Davidson giving the optionees or their assigns the right on or before October 2, 1967, to contract with him for three years beginning 1967-1968, or if he were to be enjoined, to begin at a later date and in the meantime reserved the right to play with the Warriors. On October 31, 1967, Barry signed the contract in question here with Oakland Basketball, Inc. a corporation, to play for Oakland for three years commencing on October 2, 1968.
This contract likewise contained a reserve clause for an additional year. In addition to his salary, Barry also received an annual bonus plus a 15% stock interest in the corporation which owned the Oakland franchise.
The dispute resulting from Barry’s action in signing the allegedly conflicting contracts caused the Warriors to file suit against him to determine their contract rights under their 1966 contract. They asserted claims for both damages and equitable relief by way of injunction. The Court of Appeal of California determined that the Warriors were entitled to enjoin Barry from playing for anyone else until September 30, 1968. The Court further held that the Warriors were not entitled to injunctive relief beyond that date and that they could not recover damages from Barry in addition to the equitable relief granted. Lemat Corporation v. Barry, Cal.App., 80 Cal.Rptr. 240 (1969). That decision settled all issues as between the Warriors and Barry arising out of the August 29, 1966 contract. Neither the Oakland Club nor its franchise owners were parties to that litigation. Barry did not play during the 1967-1968 playing season. However, he played for Oakland during the 1968-1969 season pursuant to the terms of the contract with Oakland signed on October 31, 1967. No question was apparently raised by the Warriors against either Barry or the Oaks as to the legality of this performance under the contract.
On August 28, 1969, the Oaks, having lost substantial sums of money during their two years’ existence,, entered into an agreement of sale with the Washington Capitols Basketball Club, Inc. in which Washington contracted to purchase all property and assets of the Oaks including the contracts of basketball players under contract to the Oaks. A specific amount of the purchase price was allocated to the contract between Oakland and Barry which was being assigned. Subsequently a Bill of Sale was executed by Oakland transferring the assets to Washington.
Although his Oakland contract would remain in effect until October 1, 1971, upon the day following the Oakland-Washington purchase agreement, Barry entered into a new contract to play professional basketball with the San Francisco Warriors for a term of five years beginning October 2, 1969 and ending October 1, 1974.
Promptly upon learning of Barry’s contract with the Warriors, the plaintiff, Washington Capitols Basketball Club, Inc., brought this action against Barry, Lemat Corporation and the Warriors. The action sought to enjoin Barry from playing basketball with any club other than the Caps during the remainder of the term of the contract which Washington had acquired. It further sought to enjoin the Warriors from asserting any contract with Barry or interfering with the performance of the Caps contract. It also sought damages both compensatory and punitive. A temporary restraining order was issued on September 15, 1969, the date the action was filed.
A hearing was held on September 23, 1969 on the application for a preliminary injunction. The Honorable Gerald S. Levin issued an opinion and judgment on September 26, 1969, granting the injunction against both Barry and the Warriors pending final determination. Barry and the Warriors appeal from that order. The court required a bond in the sum of $100,000 from the plaintiff to secure the payment of all costs and damages and that bond was filed on September 29, 1969. Because of the urgency involved, this court agreed to expedite the appeal and heard the matter on oral argument on October 28, 1969.
The grant of an order for a preliminary injunction is not a final determination of the case. It evidences the exercise of the discretion of the trial court to maintain the status quo between the litigants until final judgment may be rendered. Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738 (2 Cir. 1953).
“The decision to grant or to refuse a preliminary injunction lies within the District Court’s sound exercise of its discretion. In an appeal from the grant of a preliminary injunction, the question before this court is, did the District Court abuse its discretion in granting a preliminary injunction?” Ross Whitney Corp. v. Smith Kline & French Labs., 207 F.2d 190, 194 (9th Cir. 1953).
On an appeal from such an order it is the responsibility of this court to decide only the question as to whether or not the grant of the order was an abuse of discretion. An abuse of discretion has been defined as “a plain error, discretion exercised to an end not justified by the evidence, a judgment that is clearly against the logic and effect of the facts as are found.” Bowles v. Quon, 154 F.2d 72, 73 (9th Cir. 1946). We consider that the District Court did not abuse its discretion and that pending a decision on the merits the order granting a preliminary injunction should stand. The discussion which follows, however, and any conclusions drawn therefrom should be read as preliminary and “are not to be construed as foreclosing any findings and conclusions to the contrary based upon evidence which may be received at the trial on the merits.” Ross Whitney Corp. v. Smith Kline & French Labs., 207 F.2d 190, 199 (9th Cir. 1953).
THE STATUS QUO
The function of a preliminary injunction is to maintain the status quo ante litem pending a determination of the action on the merits. The status quo is the last, uncontested status preceding the commencement of the controversy. Tanner Motor Livery, Ltd. v. Avis, Inc., 316 F.2d 804, 808-809 (9th Cir. 1963), cert. denied, 375 U.S. 821, 84 S.Ct. 59, 11 L.Ed.2d 55 (1963). It is therefore necessary to examine what constituted the last, uncontested status of the parties.
The plaintiff, Washington Caps, purchased the Oakland Oaks by agreement dated August 28, 1969. The action by Washington against the Warriors was commenced September 15, 1969. The status quo on these dates appears to have been as follows:
1. All rights under the Warriors’ contract with Barry, dated August 29, 1966, had been litigated and the judgment of the court had been performed. Lemat Corporation v. Barry, swpra. Neither Barry nor the Warriors had further rights or obligations under it due each other after September 30, 1968.
2. The Oakland contract, which Washington acquired and upon which this action was brought, was signed October 31, 1967 for Barry to play for three years beginning October 2, 1968 with an option for one year more.
3. Barry had played one year — the playing season of 1968-1969 — under his contract with Oakland — without legal interruption. This contract, by its terms, was to commence October 2, 1968 and to continue until 1972.
4. Washington had acquired the Oakland franchise, assets and player contracts on August 28,1969.
5. Barry signed a contract with the Warriors on August 29, 1969 for five years commencing August 2, 1969 and had announced his intention to play with the Warriors during the 69-70 season.
Thus, at this point in time there were no continuing obligations by Barry to play for Warriors under the 1966 contract. Barry had played for Oakland during 1968-1969 or during the first year of the three year term of the 1967 Oakland contract with the remainder of the term having been assigned to Washington; and the Warriors and Barry had signed a contract on the day following the Washington sale, for Barry to play for Warriors for five years for a greatly increased salary, beginning in 1969 and in direct conflict with the remainder of the Washington contract period. This action was begun on September 15, 1969 or prior to the .date of the beginning of the 1969-1970 playing season.
We hold that, under these facts, the preliminary injunction served to maintain the status quo ante litem.
ALLEGED ILLEGALITY
The legality of the Oakland contract which is under attack by the Warriors must be determined by the substantive law of California, the place of making of the contract. Erie R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Hutchinson v. Hutchinson, 48 Cal.App.2d 12, 119 P.2d 214, 217 (1941).
As no illegality of the contract is disclosed by plaintiff’s complaint or the contract itself, illegality is an affirmative defense and defendants-appellants have the burden of pleading and proof. Eaton v. Brooks, 124 Cal.App.2d 10, 268 P.2d 58, 60 (1954).
The District Court did find that “ [defendants have not shown that the contract between Oaks and Barry, which was assigned by Oaks to Washington, is itself unconscionable, unenforcible or otherwise void.” 304 F.Supp. at 1197. We agree with this finding. Appellants have not cited to us, nor have we found, any constitutional provision or civil or criminal statute which this contract violates. Nor do we think the contract is contrary to public policy. Appellants rely upon the Restatement of Contracts, § 576, which reads: “A bargain, the making or performance of which involves breach of a contract of a third person is illegal.” The comment to this Restatement section, however, reveals that the section is inapplicable to the facts of this case. The comment states: “a. Since breach of contract is a legal wrong, a bargain that requires for its performance breach of a contract with another is opposed to public policy.” (Emphasis supplied.) Barry’s performance under his Oakland contract to begin October 2, 1968, did not require breach of his Warrior contract which expired September 30, 1968. The Warrior contract, entered into on August 29, 1966, had a duration of one year beginning October 1, 1966. On or before September 1, 1967, the Warriors had a right to tender to Barry a contract for the 1967-1968 season. They exercised this right and, as Barry failed to sign and return the proffered contract by October 1, the contract was “deemed renewed and extended for the period of one year.” Barry was not obligated to perform for the Warriors during that year but was obligated, by the original contract, to refrain from playing for any other team until the contract terminated on September 30, 1968. This interpretation of the contract has been upheld in Lemat Corp. v. Barry, supra, 80 Cal.Rptr. 240 (1969).
Barry signed his contract with Oakland while still under contract to the Warriors, who claim that this act was a breach of Barry’s contract to them. The Oakland contract, however, was a contract for future services “for a term of three (3) years commencing on October 2, 1968, or such earlier date as [Barry’s] services as a basketball player are not enjoined.” Performance and consideration therefor were to begin only upon the termination of the Warrior contract.
Neither Barry’s signing nor Oakland’s inducement of him to sign was an illegal act rendering the Oakland contract illegal. Associate Justice Hufstedler of the California Court of Appeal, now Judge Hufstedler of this Court, stated in Diodes, Inc. v. Franzen, 260 Cal.App.2d 244, 67 Cal.Rptr. 19, 25-26 (1968):
“Even though the relationship between an employer and his employee is an advantageous one, no actionable wrong is committed by a competitor who solicits his competitor’s employees or who hires away one or more of his competitor’s employees who are not under contract, so long as the inducement to leave is not accompanied by unlawful action.”
See also, Sarkes Tarzian, Inc. v. Audio Devices, Inc., 166 F.Supp. 250, 264 (S.D.Cal.1958), aff’d, 283 F.2d 695 (2 Cir. 1960), cert. denied, 365 U.S. 869, 81 S.Ct. 903, 5 L.Ed.2d 859 (1961). In each of these cases, the hired-away employee was not under contract to his employer. Barry was under contract to the Warriors at the time he signed with Oakland but his performance under the Oakland contract was not to begin until after his obligations to the Warriors ceased on October 1, 1968. This fact distinguishes cases in which courts have found an actionable wrong where an employee was encouraged to terminate his contract prior to its termination date. See, e. g., Buxbom v. Smith, 23 Cal.2d 535, 145 P.2d 305 (1944). '
As Judge Learned Hand said a long time ago:
“Nobody has ever thought, so far as we can find, that in the absence of some monopolistic purpose every one had not the right to offer better terms to another’s employé so long as the latter is free to leave.” Triangle Film Corp. v. Artcraft Pictures Corp., 250 F. 981, 982 (2d Cir. 1918).
The language of the Oakland contract and amendment thereto dated October 31, 1967 indicate that the drafters were aware of Barry’s contractual obligations to the Warriors. It may be presumed that they drafted the Oakland contract with the intent of making it legal and binding. Calif.Code Civ.Proc. § 1963, Subds. 1, 33; Sweeney v. KANS, Inc., 247 Cal.App.2d 475, 55 Cal.Rptr. 673, 676 (1966). Parties to a contract are deemed to have intended a lawful rather than an unlawful act. Duntley v. Tutt, 48 Cal.App.2d 367, 119 P.2d 804, 806 (1941).
We believe the trial court was correct on the record before it in ruling that this contract was not illegal under general contract principles and neither was it violative of the provisions of the Sherman Anti-Trust Act. 15 U.S.C. § 1. See Dallas Cowboys Football Club, Inc. v. Harris, 348 S.W.2d 37, 47 (Tex.Civ. App.1961).
UNCLEAN HANDS
Appellant’s unclean hands argument arises because Boone and Davidson persuaded Barry to give them an option to play for the 1967-1968 season during which Barry was already under contract with the Warriors. But the playing contract which Washington seeks to enforce is not a contract with Oakland Basketball, Inc., a corporation. It was for playing rights for the period after the Warriors’ rights had terminated. There is thus the very serious question whether any inequity exists in the performance of this contract even as against the Oakland corporation. When carried one step beyond to the Washington corporation, the attempted attainder is even more remote.
To add to the doubt surrounding the validity of applying the clean hands doctrine against Washington it must be remembered that both Warriors and Barry have had their day in court in this alleged wrongdoing. Lemat Corp. v. Barry, supra. The issues have been resolved and the judgment performed.
The application or rejection of the clean hands doctrine in a given case is equitable in nature and within the discretion of the trial court. Johnson v. Yellow Cab Transit Co., 321 U.S. 383, 64 S.Ct. 622, 88 L.Ed. 814 (1943); Houston Oilers, Inc. v. Neely, 361 F.2d 36 (10th Cir. 1966); cert. denied, 385 U.S. 840, 87 S.Ct. 92, 17 L.Ed.2d 74 (1966); Precision Instrument Mfg. Co. v. Automotive Maintenance Mach. Co., 324 U.S. 806, 65 S.Ct. 993, 89 L.Ed. 1381 (1945).
Moreover, the bad conduct must pertain to the subject matter involved and affect the equitable relations between the litigants.
As was said in. Fibreboard Paper Prod. Corp. v. East Bay Union, 227 Cal. App.2d 675, 39 Cal.Rptr. 64, 97 (1964).
“[I]t is not every wrongful act nor even every fraud which prevents a suitor in equity from obtaining relief. The misconduct which brings the clean hands doctrine into operation must relate directly to the transaction concerning which the complaint is made, i. e., it must pertain to the very subject matter involved and affect the equitable relations between the litigants. Accordingly, relief is not denied because the plaintiff may have acted improperly in the past or because such prior misconduct may indirectly affect the problem before the court. (Bradley Co. v. Bradley, 165 Cal. 237, 242, 131 P. 750; Germo Mfg. Co. of Missouri v. McClellan, 107 Cal. App. 532, 541-543, 290 P. 534; Carman v. Athearn, 77 Cal.App.2d 585, 598, 175 P.2d 926; Treager v. Friedman, 79 Cal.App.2d 151, 173, 179 P.2d 387; Sheppard v. Wilcox, 210 Cal. App.2d 53, 61-62, 26 Cal.Rptr. 412.) As was said in Moriarty v. Carlson, supra 184 Cal.App.2d 51, 7 Cal.Rptr. 282: ‘The misconduct must infect the cause of action before the court. * * * A party may have relief in connection with a transaction itself untainted although his original title may have been tainted by improper conduct. * * *’ (184 Cal.App.2d p. 57, 7 Cal.Rptr. p. 285.).”
The contract which Washington seeks to enforce is one which the Warriors assert was negotiated while Barry’s 1966 Warriors contract was still uncompleted. Washington did not participate in this activity. Neither did the Oakland Club as an entity. It was Boone and Davidson who later organized the Oakland corporation. The contract when finally completed on October 31, 1967 was after the option held by Boone and Davidson had expired according to its terms. It was also for performance at a date to commence after the date (October 2, 1968) upon which the California Court of Appeal decided the Warriors contract terminated, i. e., September 30, 1968.
With respect to the attempted invocation of the clean hands doctrine by Barry against Washington, it is interesting to note the lack of consistency in the Barry position. For the purpose of entering into a contract with Oakland for more money than he was then getting from the Warriors, his attorney wrote the Oakland president on October 29, 1968 saying:
“Since Rick became free to play for Oakland commencing October 1, 1968 •X- -X -X-”
In this action, brought for the purpose of restraining Barry from jumping back to the Warriors for still more money, he asserts as against Washington, Oakland’s transferee, that he was not free to play for Oakland commencing October 1, 1968, and thus Washington is possessed of unclean hands. Any misconduct arising out of an interference with the 1966 Warriors contract is remote, as the trial court points out, and affects the present litigation only indirectly. The hands of this appellee are not unclean. The rights between Barry and Warriors under the old contract have been litigated and performed. The rights as between Warriors and Boone and Davidson for damages are being litigated in another jurisdiction.
What we have said here disposes of questions with respect to the assignment of the contract from Oakland to Washington. The entire history of this sorry series of events indicates that irreparable injury is involved and equitable jurisdiction justified.
Finally, appellant argues that the oral representations alleged to have been made by Boone and Davidson about keeping the franchise in Oakland constitute a breach of the contract and are a bar to relief. The express terms of the contract are to the contrary and must take precedence over alleged prior oral agreements. See Cal.Civ.Code § 1698. Moreover, we have difficulty being persuaded that a professional athlete who has signed as many conflicting contracts as Barry, is naive enough to believe (1) that he takes no risk of being traded or sold, or (2) that the franchise might not be transferred or (3) that the embryonic club for which he was playing incurred no risk of becoming a financial failure.
The record here supports the action taken by the trial court and it is affirmed.
. Lemat Corporation is the sole general partner of the San Francisco Warriors, a limited partnership. The two entities will be referred to hereafter as “San Francisco Warriors” or “Warriors”.
. This “option clause” reads as follows:
“24. On or before September first next following the last playing season covered by this contract and renewals and extensions thereof, the Club may tender to the Player a contract for the next succeeding season by mailing the same to the Player at his address shown below, or if one is not shown, then at his address last known to the Club. If the Player fails, neglects, or omits to sign and return such contract to the Club so that the Club receives it on or before October first next succeeding, then this contract would be deemed renewed and extended for the period of one year upon the same terms and conditions in all respects as are providéd herein, except that the compensation payable to the Player would be the same provided in the contract tendered to the Player pursuant to the provisions hereof, which compensation would in no event be less than 75% of the compensation payable to the Player for the last playing season covered by this contract and renewals and extensions thereof.
The Club’s right to renew this contract, as herein provided, and the promise of the Player not to play otherwise than for the Club and its assignees, have been taken into consideration in determining the amount of compensation payable under paragraph two hereof.”
Question: 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_usc2sect
|
1718
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 46. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
NATIONAL CUSTOMS BROKERS & FORWARDERS ASSOCIATION OF AMERICA, INC., Petitioner, v. UNITED STATES of America and the Federal Maritime Commission, Respondents, ‘8900’ Lines, U.S. Atlantic-North Europe Conference, et al., Atlantic & Gulf/West Coast of South America Conference, et al., Pacific Coast/Australia-New Zealand Tariff Bureau, et al., Intervenors.
No. 87-1754.
United States Court of Appeals, District of Columbia Circuit.
Argued May 4, 1989.
Decided June 30, 1989.
Gerald H. Ullman, New York City, with whom Olga Boikess, Washington, D.C., was on the brief, for petitioner.
Gordon M. Shaw, Atty., Federal Maritime Com’n, with whom Robert D. Bour-goin, General Counsel, Federal Maritime Com’n, John J. Powers, III and Robert J. Wiggers, Attys., Dept, of Justice, Washington, D.C., were on the brief, for respondent.
Howard A. Levy, with whom Marc J. Fink, F. Conger Fawcett, David C. Nolan, Eliot J. Halperin, Washington, D.C., Nathan J. Bayer, and Kevin Keelan, New York City, were on the brief, for inter-venors.
William Karas, Washington, D.C., also entered an appearance for intervenor.
Before WALD, Chief Judge, RUTH BADER GINSBURG and BUCKLEY, Circuit Judges.
Opinion for the Court filed by Circuit Judge RUTH B. GINSBURG.
RUTH BADER GINSBURG, Circuit Judge.
The National Customs Brokers & Forwarders Association of America, Inc. (NCBFAA) seeks review of a Federal Maritime Commission (FMC or Commission) order dismissing the NCBFAA’s petition to initiate a rulemaking proceeding. Petitioner NCBFAA sought Commission repeal of certain regulations governing ocean freight forwarding; the challenged regulations, the NCBFAA contends, are not authorized by the Shipping Act of 1984, 46 U.S.C. App. sections 1701-1720 (Supp. Ill 1985) (1984 Act), or are otherwise unreasonable. The NCBFAA also proposed rules to check particular practices of ocean common carriers. We hold that the FMC reasonably interpreted the Shipping Act of 1984 to authorize the challenged regulations and adequately explained its denial of the NCBFAA’s rulemaking petition. Given the extraordinary deference due an agency when it declines to undertake a rulemak-ing, parties should hesitate to bring challenges unless they have far stronger grounds than those offered by petitioner in this case.
I. BACKGROUND
Ocean freight forwarders arrange for exportation and transportation of merchandise via ocean carriers. As defined in the Shipping Act of 1984, “ocean freight forwarder” means:
a person in the United States that
(A) dispatches shipments from the United States via common carriers and books or otherwise arranges space for those shipments on behalf of shippers; and
(B) processes the documentation or performs related activities incident to those shipments.
Id. section 1702(19). A forwarder secures cargo space with a shipping line (books the cargo), coordinates the movement of cargo to shipside, arranges for the payment of ocean freight charges, and prepares and processes the ocean bills of lading, export declarations, and other documentation. Forwarders often perform ac-cessorial services for the exporter, such as arranging insurance, trucking, and warehousing.
A forwarder receives compensation for its services both from its customer (the exporter or consignee) and from the ocean carrier. Customers pay a fee for accessorial services charged as a “markup” over the forwarder’s actual disbursements. Carriers pay forwarders “brokerage,” compensation in the form of a percentage of the ocean freight, but
only when the ocean freight forwarder has certified in writing that it holds a valid license and has performed the following services:
(A) Engaged, booked, secured, reserved, or contracted directly with the carrier or its agent for space aboard a vessel or confirmed the availability of that space.
(B) Prepared and processed the ocean bill of lading, dock receipt, or other similar document with respect to the shipment.
Id. Section 1718(d).
Section 19 of the Shipping Act of 1984, id. section 1718, contains specific limitations not only on the compensation of forwarders by carriers, but also on entry into the business of ocean freight forwarding. The forwarder is the only entity regulated by the FMC that is required to obtain a license before it can operate lawfully. To obtain a forwarder’s license, an applicant must demonstrate experience and character qualifications and furnish a bond to insure financial responsibility. Id. section 1718(a).
Comprehensive forwarder regulation had its inception in 1946 when the Supreme Court held in United States v. American Union Transport, Inc., 327 U.S. 437, 66 S.Ct. 644, 90 L.Ed. 772 (1946), that independent ocean freight forwarders were subject to the regulatory provisions of the Shipping Act of 1916, 46 U.S.C.App. sections 801-842 (1982) (1916 Act). Following extensive investigation in the late 1940s, regulations issued in 1950 governing forwarder billing practices and carrier payments to forwarders. In 1954, the Federal Maritime Board (FMB) launched a second industry-wide investigation, culminating in 1961 in the publication of additional regulations. Investigation of Practices, Operations, Actions & Agreements of Ocean Freight Forwarders, 6 F.M.B. 327 (1961) (Ocean Freight Forwarders). The 1961 regulations declared “disguised markups” and free or reduced-rate forwarder services to be “unreasonable practices” in violation of the 1916 Act. Id. at 359, 366-67.
That same year, 1961, Congress provided for the licensing of ocean freight forwarders and confined payment of forwarder compensation by carriers to licensed forwarders that had performed specified services on behalf of the carrier and had so certified. Pub.L. No. 87-254, 75 Stat. 522 (codified as amended at 46 U.S.C.App. section 801; 46 U.S.C. section 841b). Pursuant to statutory direction to prescribe ‘reasonable rules and regulations’ governing forwarders, 46 U.S.C. section 841b(c), the FMC promulgated comprehensive rules, including one that required a forwarder to itemize on its bill its actual expenditures on the shipper’s behalf, as well as the charges or fees assessed for its own services. These rules were affirmed in New York Foreign Freight Forwarders & Brokers Association v. FMC, 337 F.2d 289 (2d Cir.1964), cert. denied, 380 U.S. 910, 85 S.Ct. 893, 13 L.Ed.2d 797 (1965).
The FMC subsequently promulgated or considered further rules on which this case centers. In 1963, the Commission permitted carriers by water to perform forwarding services with respect to cargo they transport under their own bills of lading. 28 Fed.Reg. 4300, 4301 (1963). The legality of this rule remained unchallenged until now. In 1980, the FMC considered regulatory revisions designed to: (1) prohibit carriers from compelling forwarders to guarantee payment of freight before shippers had advanced funds for this purpose; (2) require carriers to compensate forwarders within thirty days of payment of ocean freight; and (3) permit forwarders to deduct their compensation when making freight payments for shipments under a prepaid bill of lading. 45 Fed.Reg. 17,029, 17,031-32, 17,040-41 (1980) (proposed rules). In 1981, after evaluating all comments received, the Commission determined not to promulgate these rules. 46 Fed.Reg. 24,565, 24,567-68, 24,574 (1981) (final rule).
Upon enactment of the Shipping Act of 1984, the FMC revised its rules to implement that legislation. These revisions included a prescription allowing a forwarder to provide a lump-sum invoice, but requiring the forwarder, upon request of its principal, to break out the items in the invoice. 49 Fed.Reg. 36,296, 36,297, 36,302 (1984) (final rules). The Commission rejected an alternative that would have deleted invoicing regulation entirely. 49 Fed.Reg. 18,-839, 18,841 (1984) (interim rules).
On April 3,1986, the NCBFAA requested a rulemaking to delete the regulations, currently codified in 46 C.F.R. Part 510 (1988), that: (1) require prior FMC approval of one licensee’s acquisition of another licensee, id. section 510.19(a)(5); (2) prohibit a forwarder’s provision of forwarding services free of charge or at a reduced fee, id. section 510.22Q; (3) require the forwarder to provide a detailed breakout of the components of its charges at the request of its shipper-customer, id. section 510.22(g); and (4) permit carriers to perform forwarding services, without a forwarder’s license, with respect to cargo carried under the carrier’s own bill of lading, id. section 510.4(c). The NCBFAA also sought two new regulations similar in content to rules proposed in 1980 and rejected by the Commission in 1981. First, to protect forwarders from payment defaults by carriers, the NCBFAA proposed that (1) when a forwarder pays the carrier freight charge due on behalf of the shipper, the forwarder may deduct its brokerage, and (2) when the shipper pays the carrier directly, or the freight is collected at destination, the carrier must pay brokerage within sixty days of the date of vessel sailing. Petition for Rulemaking at 5. Second, the NCBFAA proposed a rule that would stop a carrier from requiring a forwarder to assume liability for freight charges owed by the forwarder’s principal. Id. at 6-7.
The FMC refused to institute rulemaking proceedings, In re Petition for Rulemaking of the Nat’l Customs Brokers & Forwarders Ass’n of Am., 24 Shipping Reg. (P & F) 116 (F.M.C. Apr. 27, 1987) (Order Denying Petition), and thereafter rejected the NCBFAA’s petition for reconsideration, 24 Shipping Reg. (P & F) 581 (F.M.C. Oct. 16, 1987) (Order Rejecting Petition for Reconsideration). The NCBFAA seeks review of the Commission’s orders denying its petitions and asks this court to instruct the FMC to renew consideration of the rule-making request.
II. DISCUSSION
A. Standard of Review
While Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985), teaches that nonenforcement decisions are presumptively unreviewable, we recently clarified that refusals to institute rulemak-ing proceedings remain outside Chaney’s core and are subject to a judicial check. American Horse Protection Ass’n v. Lyng, 812 F.2d 1 (D.C.Cir.1987) (AHPA). At the same time, we underscored the extremely limited, highly deferential scope of that review. Id. at 4-5. We will overturn an agency’s decision not to initiate a rule-making only for compelling cause, such as plain error of law or a fundamental change in the factual premises previously considered by the agency. Id. at 5. Furthermore, under the instruction furnished in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-45, 104 S.Ct. 2778, 2781-83, 81 L.Ed.2d 694 (1984), to the extent that the intent of Congress is not clear, we must accept an agency’s reasonable interpretation of the substantive terms of a statute it is charged to administer.
Before turning to petitioner NCBFAA’s specific complaints, we note some salient differences between this case and the one on which the NCBFAA relied so heavily, AHPA. At issue in AHPA was “the practice [called soring] of deliberately injuring show horses to improve their performance in the ring.” 812 F.2d at 1. In the Horse Protection Act, 15 U.S.C. sections 1821-1824 (1982), “Congress sought to end this practice.” 812 F.2d at 2. The regulations originally promulgated by the Secretary of Agriculture proved inadequate to the task, yet the agency stood still, apparently believing “that the Act was a sort of compromise between industry proponents of sor-ing and persons who regarded the practice as barbarous.” Id. at 6. Stressing that the Act was not ambiguous — it “was clearly designed to end soring,” id. — we held that the Secretary must further consider the matter and then either institute a new rule-making or account satisfactorily for his decision not to do so. Id. at 7.
AHPA involved cruelty to certain animals and a clear congressional design to end it. In contrast, this case involves no similarly crystalline congressional objective and the interests at stake are “primarily economic.” See WWHT, Inc. v. FCC, 656 F.2d 807, 819 (D.C.Cir.1981). Such interests, “without more, do [ ] not present the unusual or compelling circumstances that are required in order to justify a judgment by this court overturning a decision of the Commission not to proceed with rulemak-ing.” Id.
B. Prior Approval of Acquisitions
Petitioner NCBFAA requested that the FMC delete 46 C.F.R. 510.19(a)(5), which requires prior Commission approval of the acquisition of one forwarder by another. The NCBFAA claims that, in 1984, Congress deliberately eliminated the FMC’s authority to approve “ ‘acquisitions in the maritime area’ ” so as to bring such agreements under ‘“normal antitrust oversight’” Brief of Petitioner National Customs Brokers & Forwarders Association of America, Inc. at 20 [hereinafter Brief of Petitioner] (quoting S.Rep. No. 3, 98th Cong., 1st Sess. 24 (1983)). Section 4(c) of the 1984 Act, as codified at 46 U.S.C.App. section 1703(c), states: “This chapter does not apply to an acquisition by any person, directly or indirectly, of any voting security or assets of any other person.”
The Commission recognizes that it does not have acquisition permission authority that displaces normal antitrust oversight by executive branch agencies. The regulation in question, according to the FMC, does not purport to exercise agreement approval authority in an antitrust law context, but is simply an accoutrement of the Commission’s licensing authority. See Order Denying Petition at 5, 24 Shipping Reg. (P & F) at 119. Acquisition of additional licensees appears in 46 C.F.R. section 510.-19(a) as the fifth item in a list of seven “changes in an existing licensee’s organization” requiring Commission approval; other listed items include: license transfer; change in individual proprietorship ownership; and addition of partners to a licensed partnership. The Commission maintains control over these changes in a licensee’s organization, the FMC states, simply and solely to insure that only qualified entities operate as forwarders: “The prior approval procedure... allows the Commission the opportunity to ensure that all regulatory requirements are met before a licensee begins operating under circumstances different from those under which it was licensed.” Order Denying Petition at 5, 24 Shipping Reg. (P & F) at 119.
We cannot say that the Commission’s licensing and ample rulemaking authority under sections 19 and 17 of the 1984 Act, 46 U.S.C.App. sections 1718, 1716, are of insufficient breadth to accommodate the regulation requiring FMC approval of acquisitions by licensed forwarders. The NCBFAA asserts that there is no risk of an unqualified entity when two forwarders, already licensed, merge, and that other FMC regulations adequately guard against commencement of forwarder operations without meeting regulatory requirements. Brief of Petitioner at 21. It is not our function, however, to judge whether the FMC’s regulations are necessary; so long as they are proper exercises of the Commission’s statutory authority, their maintenance may not be disturbed by this court.
C. Forwarders ’ Billing Practices
Petitioner NCBFAA asked the FMC to delete 46 C.F.R. section 510.22(g), which requires a forwarder to itemize its charges upon request, and 46 C.F.R. section 510.-22(i), which forbids free or reduced-rate services. The legal authority for these rules, the NCBFAA maintains, was section 16, First, of the 1916 Act, 46 U.S.C.App. section 815, which prohibited “any... person subject to this chapter” from discriminating among shippers. See Brief of Petitioner at 24. In 1984, Congress eliminated broad-scale prohibitions of the 1916 Act, including section 16, First. Now, under section 10(b)(6), (10)-(12) of the 1984 Act, 46 U.S.C.App. section 1709(b)(6), (10)-(12), the NCBFAA emphasizes, it is unlawful only for common carriers (no longer “any person”) to engage in discriminatory practices.
The Commission, however, relies on section 10(d)(1) of the 1984 Act, id. section 1709(d)(1), which states: “No common carrier, ocean freight forwarder, or marine terminal operator may fail to establish, observe, and enforce just and reasonable regulations and practices relating to or connected with receiving, handling, storing, or delivering property.” Section 10(d)(1) was derived from section 17 of the 1916 Act, 46 U.S.C.App. section 816. The NCBFAA counters that the FMC had long applied section 17 only to physical services performed at the terminal. Brief of Petitioner at 28-29. Although some forwarder activities, petitioner thus maintains, are subject to the Commission’s “reasonable practice” jurisdiction, those activities do not include fee arrangements for forwarding services preliminary to an actual shipment. Reply Brief of Petitioner National Customs Brokers & Forwarders Association of America, Inc. at 15-16 [hereinafter Reply Brief].
In American Union Transport, 327 U.S. 437, 66 S.Ct. 644, 90 L.Ed. 772, the Supreme Court recognized broad Commission authority to regulate forwarders, stating: “By the nature of their business, independent forwarders are intimately connected with” the activities listed under section 17, that is, “the receiving, handling, storing or delivering of property.” Id. at 449, 66 S.Ct. at 650. To confine “reasonable practice” jurisdiction to physical cargo handling services performed at the terminal, the FMC indicates, would be inconsistent with American Union Transport; such an interpretation, in large measure, would place freight forwarders outside the statute because forwarders (unlike carriers and terminal operators-the other entities covered by section 10(d)) traditionally do not operate at terminals. Brief of Respondents at 33. We are satisfied that the Commission has fairly and reasonably construed section 10(d)(l)’s scope and now turn to the specific regulations the NCBFAA challenges.
1. Disclosure of Forwarders'Markups
The FMC, in 1984, rejected arguments challenging the markup disclosure rule, and again retained the rule in 1987, noting its intention that the marketplace govern forwarder/customer relations to the maximum extent possible: “By providing the means to determine the level and reasonableness of forwarders’ charges, the marketplace can regulate the relationship between forwarders and their principals. Petitioner has not offered any new facts or arguments to warrant overruling this prior determination.” Order Denying Petition at 8, 24 Shipping Reg. (P & F) at 120. The NCBFAA complains that the Commission did not acknowledge that section 16, First, the statutory basis for the rule, had been repealed. Brief of Petitioner at 25-26 & n. 61. The Commission, however, hardly announced a novel position in recognizing that section 10(d)(1) of the 1984 Act, or section 17 of the 1916 Act, provides a basis for the markup disclosure requirement. See Ocean Freight Forwarders, 6 F.M.B. at 359, 366-67 (finding both “disguised markups” and free or reduced-rate forwarder services to be “unreasonable practices” in violation of section 17).
Petitioner complains next that the FMC did not cite evidence of arbitrary and unreasonable markups or explain why no similar disclosure requirement is imposed on other business with which an exporter deals; furthermore, the NCBFAA objects, the Commission did not address petitioner’s claims that industry customers, through ordinary business negotiations, are well able to determine the reasonableness of forwarding fees and that strong competition among forwarders protects exporters against overcharging. Brief of Petitioner at 26-27. In sum, petitioner asserts that the FMC has not said enough to assure a reviewing court that the Commission’s refusal to delete the disclosure rule was the product of reasoned decisionmaking. These arguments, however, show neither legal error nor removal of a significant factual predicate for the FMC’s prior ruling. See WWHT, 656 F.2d at 818-19 (discussing Geller v. FCC, 610 F.2d 973, 979 (D.C.Cir.1979)). To retain its rule, the FMC need not produce evidence showing that abuses are currently prevalent or that an unregulated market would fail to control such abuses. The Commission initiated regulation in response to abusive practices in an unregulated market; one would not expect the abuses to persist once checked by FMC rule. The Commission thus appropriately cited and adhered to its “prior determination.”
2. Free or Reduced-Rate Services
The Commission also adhered to the following proscription: “No licensee shall render... any freight forwarding service free of charge or at a reduced fee in consideration of receiving compensation from a common carrier or for any other reason.” 46 C.F.R. section 510.22(i). Here too, the NCBFAA points out that the agency initially adopted the prohibition pursuant to section 16, First, Brief of Petitioner at 27; furthermore, petitioner stresses, section 10(b)(2) of the 1984 Act, 46 U.S.C.App. section 1709(b)(2), prohibits rebates by common carriers but not by forwarders. Rejecting the NCBFAA’s claim that the rule lacks statutory authority under the 1984 Act, the FMC again relied on section 10(d)(1), which “prohibits a freight forwarder from failing to establish, observe, and enforce just and reasonable regulations and practices related to or connected with receiving, handling, storing, or delivering property.” Order Denying Petition at 9, 24 Shipping Reg. (P & F) at 120.
The FMC defends its rule as aimed primarily at forwarder practices abetting carrier discrimination among shippers through indirect rebates. Brief of Respondents at 38. To assist carrier discrimination banned by section 10(b), the Commission maintains, would constitute an “unreasonable practice" barred by section 10(d)(1). Id. at 39. But the FMC’s forwarder-directed rule goes further: it bars not only fees reduced “in consideration of receiving compensation from a common carrier,” but also those reduced “for any other reason.”
More broadly, therefore, the FMC urges that a forwarder’s discrimination in charges among its customers reflects a misallocation that constitutes an unreasonable practice in itself. Ocean Freight Forwarders, 6 F.M.B. at 366-67, relied on this alternative section 17 rationale, as well as the “indirect rebate” rationale, in declaring such discrimination unlawful. We uphold the FMC’s constant rule on the ground that the Commission, in the reasonable exercise of its rulemaking authority, may interpret section 10(d)(1) to prohibit forwarder discrimination in the charges billed to customers. See Volkswagenwerk Aktiengesellschaft v. FMC, 390 U.S. 261, 281-82, 88 S.Ct. 929, 940-41, 19 L.Ed.2d 1090 (1968) (holding that “a relatively large charge... unequally imposed” by an association of shipping industry employers on its members, for a fund to mitigate the impact upon stevedoring employees of technological unemployment, would violate section 17 unless “the charge levied is reasonably related to the service rendered”); California v. United States, 320 U.S. 577, 583, 64 S.Ct. 352, 355, 88 L.Ed. 322 (1944) (holding that the United States Maritime Commission could determine that “unreasonably long free time” and below-cost charges for wharf storage violated both sections 16 and 17).
D. Unlicensed Forwarding by Carriers
“No person may act an an ocean freight forwarder unless that person holds a license” from the FMC. 46 U.S.C.App. section 1718(a). This licensing provision includes only one express exception: “A person whose primary business is the sale of merchandise may forward shipments of the merchandise for its own account without a license.” Id. section 1718(c). The 1984 Act thus continued the licensing requirements of 46 U.S.C. section 841b. FMC regulations, however, permit a common carrier to perform forwarding services without a license on shipments carried under its own bill of lading and pursuant to its published tariff. The provision in question, 46 C.F.R. section 510.4(c), states:
Common Carrier. A common carrier, or agent thereof, may perform ocean freight forwarding services without a license only with respect to cargo carried under such carrier’s own bill of lading. Charges for such forwarding shall be assessed in conformance with the carrier’s published tariffs on file with the Commission.
Petitioner seeks the repeal of section 510.4(c), pointing in particular to the dramatic growth in operations by “non-vessel operating common carriers” (NVOCCs), and the attendant NVOCC competition with licensees in providing forwarding services. NVOCCs, typically, are small firms that do not own or operate transportation equipment, but instead lease facilities and services from other firms, and have a small workforce of primarily managerial and clerical employees. NVOCCs consolidate and load small shipments from multiple shippers into a single large reusable metal container obtained from a steamship company, and ship the container by vessel under a single bill of lading in the NVOCC’s name; NVOCCs charge rates within the margin between the steamship line’s (the vessel operator’s) rates applicable to loose, “break-bulk” shipments, and special lower rates applicable to consolidated container loads.
The Shipping Act of 1984 recognized the NVOCC as a legal entity with the status of “a shipper in its relationship with an ocean common carrier” but the status of a carrier in its relationship with exporter customers. 46 U.S.C.App. section 1702(17). An NVOCC assumes common carrier responsibilities for transportation even though it “does not operate the vessels by which the ocean transportation is provided.” Id. The NVOCC is compensated only by the shipper.
Petitioner asserts that incompetent and irresponsible NVOCCs have created severe problems. Brief of Petitioner at 31. An NVOCC operates as a carrier solely by virtue of filing a tariff with the FMC. There are no formal entry requirements. Yet section 510.4(c) allows NVOCCs to offer the full gamut of forwarding services, including preparing and processing export declarations, sight drafts, insurance documentation, and letter-of-credit documents, on cargoes carried under their own bills of lading. Id. at 14-15. In short, the NCBFAA charges that in allowing unlicensed operations by NVOCCs, the Commission has dishonored Congress’ “flat prohibition” against forwarding without a license. Id. at 33.
“Historically,” the FMC said in its response to the NCBFAA’s charge, “carriers have performed their own documentation and made arrangements to facilitate the movement of cargo to vessels.” Order Denying Petition at 3-4, 24 Shipping Reg. (P & F) at 118. The Commission further observed that its rule “provides the shipping public protection by requiring carriers to publish any charges for performance of these functions in their tariffs.” Id. at 4, 24 Shipping Reg. (P & F) at 118. The FMC discerned no legislative command “that carriers obtain a license in order to continue to perform these functions.” Id. On the contrary, Congress did not approve language in H.R. 5068, 86th Cong., 2d Sess. (1960), an early draft of the licensing provision enacted in 1961, that would have required every person including carriers, to be licensed to engage in the business of dispatching shipments on behalf of other persons. Id.
The 1984 Act defines “ocean freight forwarder” as “a person in the United States that... dispatches shipments from the United States via common carrier and books or otherwise arranges space for those shipments on behalf of shippers.” 46 U.S.C.App. section 1702(19). It defines “common carrier” as “a person holding itself out to the general public to provide transportation by water of... cargo.” Id. section 1702(6). The FMC maintains that a common carrier, by engaging in booking or space arrangement activity, does not thereby acquire dual status; it remains a common carrier, and does not become a freight forwarder as well. The Commission cites legislative history in support: “It is not intended that booking or space arrangement activity by an ocean common carrier or its steamship agent would make either an ‘ocean freight forwarder’ as well.” S.Rep. No. 3, supra, at 20, cited in Brief of Respondents at 19. In other words, a carrier does not become a forwarder merely by furnishing services to its own customers that a forwarder may provide. Brief of Respondents at 25-26; see Puerto Rico Ports Auth. v. FMC, 642 F.2d 471, 483-85 (D.C.Cir.1980) (holding that a common carrier that provided terminal services for cargo that it carried did not thereby become a terminal operator).
On the other hand, as petitioner points out, nothing in the text of the statute indicates that an entity cannot be both a carrier and an ocean freight forwarder, for both terms are defined functionally. Congress defined ‘forwarder’ simply by reference to the work forwarders perform. Petitioner infers from the passage quoted from S.Rep. No. 3, supra, that a carrier would be subject to licensing when it performs the usual forwarding activities in addition to booking or space activity. Reply Brief at 8. Petitioner’s argument, however, does not proceed far enough. It establishes no more than that the phrase “act as an ocean freight forwarder” in the licensing provision, 46 U.S.C. App. section 1718(a), is ambiguous with respect to carriers offering forwarding service only in conjunction with shipments carried under their own bills of lading. Again, therefore, we have no warrant to reject the FMC’s reasonable interpretation.
E. Proposed Rules Regarding Carrier Practices
“It is only in the rarest and most compelling of circumstances that this court has acted to overturn an agency judgment not to institute rulemaking.” WWHT, 656 F.2d at 818. This is not such a rare case. It contrasts with Farmworker Justice Fund, Inc. v. Brock, 811 F.2d 613, 633, vacated as moot, 817 F.2d 890 (D.C.Cir. 1987); American Horse Protection Association, Inc. v. Lyng, 681 F.Supp. 949, 958 (D.D.C.1988); and Public Citizen v. Heckler, 653 F.Supp. 1229, 1241 (D.D.C.1986), each involving grave health and safety problems for the intended beneficiaries of the statutory scheme, each presenting facts urgently warranting remedial rules. Here, there is no similar risk or need, the issue are economic in nature, they entail policy determinations on which agency rulemak-ing discretion is respected. See WWHT, 656 F.2d at 819. Petitioner’s arguments reveal no legal error on the Commission’s part or compelling change in a factual predicate for the FMC’s previous refusal to adopt the rules requested.
1. Prompt Payment of Brokerage
The FMC proposed rules in 1980 to require carriers to pay forwarders promptly, 45 Fed.Reg. 17,029, 17,032 (1980) (proposed rules), but ultimately rejected the proposal, 46 Fed.Reg. 24,565, 24,568 (1981) (final rule). In 1986, when the NCBFAA renewed the proposal, the Commission reiterated its opinion that “this is a matter that should be resolved commercially and not through governmental intervention.” Order Denying Petition at 11, 24 Shipping Reg. (P & F) at 121.
Petitioner claims that the FMC did not give a reasoned response to its 1986 request because:
The record made it clear that the FMC’s deferral to marketplace forces does not work. Forwarders are often small concerns with insufficient bargaining leverage to sway powerful carriers. Reliance on the courts is not practical given the small amount of many individual brokerage claims. The FMC is assigned responsibility under the Shipping Act to protect a forwarder from carrier conduct that subjects it to an undue or unreasonable prejudice or disadvantage. 46 U.S.C.App. 1709(b)(12).
Brief of Petitioner at 41. None of these contentions, however, reveals any fundamental change in the circumstances existing at the time of the FMC’s 1981 decision. Although petitioner alleges “it was evident from the unprecedented wave of carrier bankruptcies that the situation was far worse,” Reply Brief at 18, this allegation indicates at most a better case than the one earlier made. The current contentions largely underscore those previously advanced and are not so extraordinary as to justify our interference with the agency’s judgment.
2. Liability for Freight Charges
In 1980, the Commission proposed to forbid carriers from requiring forwarders to assume liability for freight bills, unless the freight charges have been advanced to the forwarder by the shipper, “to protect the forwarder as well as to place the obligation for payment of freight on the real party in interest, i.e., the shipper.” 45 Fed.Reg. 17, 031-32 (1980) (proposed rules). The FMC rejected this proposal in 46 Fed.Reg. 24,568 (1981) (final rule). In 1987, the FMC rejected the NCBFAA’s similar proposal as “neither necessary nor appropriate”; again, the Commission restated that “this appears to be a commercial matter best left to be resolved in the marketplace by the carrier, the forwarder, and the shipper.” Order Denying Petition at 12, 24 Shipping Reg. (P & F) at 121. “Petitioner has not adequately supported its claim that carriers have unreasonably refused to release prepaid bills of lading, nor has the Commission received any other specific complaints about this practice.” Id. Petitioner asserts that the FMC turned away its request without taking a “hard look” at the problem, Brief of Petitioner at 43, but the depth of the inquiry, under the circumstances presented, was within the domain of Commission discretion. See supra p. 95.
CONCLUSION
For the reasons stated, we affirm the FMC’s orders. The NCBFAA’s petition for review is therefore denied.
It is so ordered.
. The petition for reconsideration was not considered on its merits. The Commission, instead, rejected it under 46 C.F.R. section 502.261 (1988) because the petition did not, as that rule requires: (1) specify a change in fact or law since the initial order; (2) identify a substantive error in material fact in the initial order; or (3) address a matter upon which the petitioner had not previously had the opportunity to comment. Because the NCBFAA does not independently challenge the reconsideration rejection, this opinion focuses on the Commission's grounds for denying the rulemaking petition.
. Agreements covered by 46 U.S.C.App. section 1703 are subject to review by the Commission, id. sections 1704-1705, and if made effective, become exempt from the antitrust laws. Id. section 1706(a) (“The antitrust laws do not apply to... any agreement that has been filed under section 1704 of this Appendix and is effective under section 1704(d) or section 1705 of this Appendix-”). Section 1703(c) thus limits only the F
Question: What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 46? Answer with a number.
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.
John David HAY, Petitioner-Appellant, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent-Appellee.
No. 72-2712
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
Oct. 10, 1972.
John David Hay, pro se.
Crawford Martin, Atty. Gen., Howard Fender, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.
Before GEWIN, AINSWORTH and SIMPSON, 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.
The district court denied the appellant’s petition for a writ of habeas corpus on the grounds that he had failed to exhaust available state remedies. We vacate and remand.
Appellant Hay was convicted of burglary and sentenced to four years in the state penitentiary on September 19, 1967. This is the judgment of conviction which Hay is attacking in these proceedings.
In his habeas corpus petition the appellant alleges that he was illegally arrested without a warrant, that the police conducted illegal searches and seizures and that tainted evidence recovered as a result of the illegal searches and seizures was introduced at his trial.
The appellant presented these allegations, subsequent to his conviction, by motion for new trial filed in the sentencing court, and on direct appeal. The Texas Court of Criminal Appeals affirmed the appellant’s conviction on December 18, 1968. Hay v. State, Tex.Cr.App.1968, 436 S.W.2d 153.
It is well settled that a prisoner who petitions for federal habeas corpus relief need not further exhaust his state remedies if he has previously had his contentions ruled on by the state’s highest court on direct appeal. Thomas v. Beto, 5th Cir. 1972, 461 F.2d 244; McCluster v. Wainwright, 5th Cir. 1972, 453 F.2d 162; Bartz v. Wainwright, 5th Cir. 1971, 451 F.2d 663.
Accordingly, we conclude that the district court erred in dismissing the appellant’s petition on grounds of failure to exhaust state remedies. The judgment below is vacated and the case is remanded so that the district court may adjudicate Hay’s claims on their merits.
Vacated and remanded.
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_counsel1
|
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 appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
UNITED STATES of America, Appellee, v. Gregory MURDOCK, a/k/a Prentice Parker, Appellant.
No. 90-5178.
United States Court of Appeals, Eighth Circuit.
Submitted Nov. 12, 1990.
Decided March 20, 1991.
Rehearing and Rehearing En Banc Denied May 9, 1991.
Andrea George, Minneapolis, Minn., for appellant.
Christopher J. Bebel, Minneapolis, Minn., for appellee.
Before ARNOLD and MAGILL, Circuit Judges, and BATTEY, District Judge.
THE HONORABLE RICHARD H. BATTEY, United States District Judge for the District of South Dakota, sitting by designation.
MAGILL, Circuit Judge.
Gregory Murdock appeals his conviction for two counts of bank robbery, one count of armed bank robbery, and two counts of using a firearm during the commission of a bank robbery. Murdock claims that the identification procedures and evidence violated his fifth amendment rights; that the district court’s refusal to sever the counts forced him to incriminate himself; that his fourth amendment rights were violated when the police requested and received bags which Murdock kept at an acquaintance’s apartment; and that the police lacked reasonable articulable suspicion when they stopped his car. We reject these arguments and affirm the convictions. Murdock also claims that he received ineffective assistance of counsel. Because only an incomplete record has been developed on this issue, we dismiss this claim without prejudice.
I.
On September 20, 1989, Murdock was charged with two counts of bank robbery, two counts of armed bank robbery, and two counts of using a gun during the commission of a bank robbery. All four robberies took place between August 16, 1989, and September 6, 1989.
On August 16, 1989, an undisguised man entered the First Star Metrobank in Minneapolis, Minnesota, and demanded money from the senior teller, Thomas Faust. Faust described the robber as a light-skinned, clean-shaven, black man, 28 to 30 years old, with salt and pepper hair and a high hairline. The robber was wearing a black and white striped shirt with short sleeves. Faust testified that the robber was approximately one to two feet away from him and that he looked into the robber’s eyes at least three times. On the same day, only three hours after the Minneapolis First Star bank was robbed, the First Wisconsin National Bank of Milwaukee, located in Milwaukee, Wisconsin, was robbed. The teller identified Murdock as the robber when she was shown a stack of nine photographs.
On August 22, 1989, an undisguised man entered the First Minnesota Bank in St. Paul, Minnesota, and demanded money from a bank teller, Julia Asuncion. She described the robber as a slim, tall, black man with short hair and a thin mustache, who was wearing a dark, short-sleeved shirt of velour or sweatshirt-like material. Asuncion testified that the robber stood a couple of feet away from her and that she looked into the robber’s eyes at least two or three times. Three other First Minnesota employees witnessed the robbery: Diane Conney, Gary Chatlain and Todd Peterson. Neither Asuncion, Conney, nor Chatlain was able to identify Murdock in a lineup held on September 14, 1989. Peterson did not attend the lineup, but did identify Mur-dock in the courtroom during Murdock’s trial.
On August 28, 1989, an undisguised man entered the Twin City Federal Bank in Minneapolis, Minnesota, pointed a two-barreled derringer at the teller, Carol Dudley-Trask, and demanded money. Dudley-Trask described the robber as an unshaven black man, 25 to 30 years old, with a large, pointy nose, and a high forehead, who was wearing a blue dress shirt with a white collar. She testified that she looked at the robber three or four times. Nancy Tate, another teller, described the robber as a lean, clean-shaven black man, approximately 5' 8" to 5' 10" and weighing 147 to 160 pounds. The bank camera photographed the robbery as it happened, producing a picture that was admitted as evidence in Murdock’s trial. Neither Dudley-Trask nor Tate attended a lineup, but both positively identified Murdock in court.
On September 5, 1989, an undisguised individual entered Norwest Midland Bank in Minneapolis, pointed a two-barreled derringer at the teller, Mary Schaefer, and demanded money. Schaefer described the robber as a black man with a short, flat-top hair cut, 6' tall, weighing 150 to 175 pounds, and about 30 years old. Schaefer did not attend a lineup nor was she shown a photo array, but she did identify Murdock in court.
Later that day, Special Agent John Fos-sum of the Minnesota Bureau of Criminal Apprehension (BCA) saw a black male passenger in a brown Lincoln Continental counting a large sum of money. Fossum believed the money was drug-related and radioed a description of the ear to the Minneapolis Police Department when heavy traffic prevented him from following the car.
The next day, September 6, Officers Shoua Cha and Michael Simmons of the St. Paul Police Department saw the same Lincoln Continental that Fossum had reported. Cha recognized Murdock, who was riding in the Lincoln, as the robber in the photograph obtained during the Twin City Federal Bank robbery. He pulled the vehicle over and called for backup. When the backup arrived, the officers approached the car and questioned the occupants. The officers then arrested Murdock and Richardson, the driver of the car. During the post-arrest search, the officers discovered a two-barreled derringer on Murdock.
The police then went to the apartment of one of Murdock’s friends, Glenn King. Because Murdock had spent three nights at King’s apartment, Murdock had left some of his belongings there. Murdock had both a key to the apartment and a key to the security door of the apartment building. However, Murdock was not authorized to enter the apartment without King’s presence and permission. King testified that he gave Murdock a set of keys because he did not want to “run up and down to check the door.” King also testified that Mur-dock had only used the key to the apartment when he had King’s express, contemporaneous approval.
After the police arrested Murdock, several officers went to the Kings’ residence. Mrs. King invited the police into the apartment. The police requested and received permission from the Kings to take Mur-dock’s possessions. Mrs. King had washed Murdock’s clothing and stored it alongside their own clothing. Mr. King later testified that he and his wife consented to the police request because they did not believe they had a choice. He also testified that the police did not threaten either of them in any way, nor did police indicate that they would retaliate against the Kings if they did not comply. Among the possessions taken into custody was a blue dress shirt with a white collar. This shirt fit the description of the shirt worn by the robber in the August 28 robbery.
At trial, Murdock attempted to sever the counts claiming that he would be prejudiced by the cumulative effect of the evidence presented by the government. Furthermore, Murdock claimed that failure to sever would violate his fifth amendment rights. Murdock failed to make a specific allegation about how these rights would be violated. Murdock also attempted to suppress the evidence obtained by the police pursuant to his arrest and pursuant to their visit to the Kings’ apartment. All of these motions were denied.
Murdock was convicted of all but the August 22 robbery. The court sentenced him to a total of 420 months. Murdock filed a motion for a new trial under Rule 33 and a petition for habeas corpus relief under 28 U.S.C. § 2255. The court denied his motion for a new trial and dismissed the habeas petition as premature.
II.
On appeal, Murdock raises six issues. He claims that the overly suggestive identification procedures violated his due process rights; that the court’s refusal to sever the counts forced him to incriminate himself; that the court’s failure to scrutinize the reliability of the eyewitness identifications violated his due process rights; that he received ineffective assistance of counsel since his attorney failed to adequately investigate the underlying facts; that the police violated the fourth amendment when they took his clothing from the Kings’ apartment; and that the police violated the fourth amendment when they detained him without reasonable articulable suspicion.
A.
Murdock first claims that the government’s identification procedures violated his due process rights because they were impermissibly suggestive and unreliable. In addressing these claims we must apply the two-part test the Supreme Court adopted in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). See also Graham v. Solem, 728 F.2d 1533 (8th Cir.1984); United States v. Manko, 694 F.2d 1125 (8th Cir.1982). First, we must decide whether the challenged confrontation was impermissibly suggestive. If it was, we must then determine whether, under the totality of the circumstances, the suggestive procedures created “a very substantial likelihood of irreparable misidentification.” Manson, 432 U.S. at 116, 97 S.Ct. at 2254. In making this second determination, reviewing courts must consider: “the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the time between the crime and the confrontation.” Manson, 432 U.S. at 114, 97 S.Ct. at 2253 (citing Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 382-83, 34 L.Ed.2d 401 (1972)).
Murdock’s first identification claim arises out of the fact that three of the four witnesses who positively identified him did so for the first time in court. Murdock argues that this testimony was tainted by the fact that he was sitting at the defense table and was the only African-American in the room. Since this court does not require in-trial identifications to be preceded by pretrial lineups, see United States v. Wade, 740 F.2d 625, 628 (8th Cir.1984), the only issue is whether Murdock’s presence at the defense table, combined with his being the only African-American in the courtroom at the time of the identification, constituted impermissibly suggestive procedures. It is significant to note that Murdock did not request special seating or object to the ethnic composition of the courtroom at the time of the identification. Furthermore, the witnesses’ identifications were open to attack on cross-examination. Therefore, while the procedure may have been suggestive, it was not im-permissibly suggestive. Even if the procedure was impermissibly suggestive, under the totality of the circumstances, there was no substantial likelihood of misidentification. All four witnesses had a substantial amount of time to view the robber at the time of the crime; each was fairly attentive during the crime; each was very certain about Murdock’s identity; and each identification took place within a reasonable period after the crime. Therefore, even though some of the witnesses’ descriptions of the robber were not extremely detailed or accurate, their in-trial identifications were reliable under the totality of the circumstances. See Ford v. Armontrout, 916 F.2d 457 (8th Cir.1990) (impermissibly suggestive pretrial identification did not make in-court identification unreliable where victim had ample opportunity to view defendant, and where victim’s description of her assailants was accurate and where she did not hesitate in her identification of defendant).
Murdock also claims that his constitutional rights were violated when the police used impermissibly suggestive identification procedures when obtaining Faust’s identification. The police showed Faust a single photograph of an individual, taken during the robbery of Twin City Federal, and informed Faust that this man had robbed at least one other bank. Murdock correctly points out that single photograph arrays are considered impermissibly suggestive in the Eighth Circuit. Ruff v. Wyrick, 709 F.2d 1219, 1220 (8th Cir.1983). However, since we have already determined that Faust’s identification was reliable under the totality of the circumstances, Murdock’s constitutional rights were not violated by this procedure.
B.
Murdock next argues that the district court’s refusal to grant him a separate trial for the different robbery counts forced him to incriminate himself in violation of the fifth amendment. Murdock claims that by not severing the counts, he was required to present evidence of the Wisconsin robbery to defend himself against the Minneapolis First Star robbery. As a threshold matter, we note that the Eighth Circuit grants district courts wide discretion in ruling on motions for severance. See United States v. Mendoza, 876 F.2d 639 (8th Cir.1989). Consequently, we review the district court’s refusal to sever Murdock’s counts under an abuse of discretion standard. Since the separate counts of Murdock’s indictment covered robberies carried out over a short period of time and since all five robberies were performed using a similar modus operandi, it was not unreasonable for the district court to refuse to sever the counts. Furthermore, since Murdock had options available to him other than presenting evidence of the Wisconsin robbery charge, he was not forced to incriminate himself.
C.
Murdock raises a claim of prosecutorial misconduct based on an alleged pretrial “dress rehearsal" held by the prosecutor to ensure favorable testimony from the eyewitnesses. Murdock refers to a pretrial meeting held by the prosecutor and an FBI agent to interview potential witnesses. Murdock argues that since the witnesses were presented with evidence that was ultimately shown to them at trial, the prosecutor was required to inform him of the details of this meeting, including what was shown and what the witnesses’ initial reactions to the evidence were. See United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1984). Murdock claims that he could have used such information to impeach the eyewitnesses on cross-examination. However, Bagley does not require the prosecution to reveal such information. Under Bagley, constitutional error only occurs when information withheld by the prosecutor results in an unfair trial. Bagley, 473 U.S. at 678, 105 S.Ct. at 3381-82. In this case, Murdock attempted to impeach the eyewitnesses by asking them about the “dress rehearsal” on cross-examination. Therefore, since the jury heard about Murdock’s “dress rehearsal” theory and since Murdock did not show that he had an unfair trial, this claim fails.
D.
We refuse to address Murdock’s ineffective assistance of counsel claim since it is more properly raised in a petition for habeas corpus. See United States v. Schmidt, 922 F.2d 1365, 1369 (8th Cir.1991) (per curiam). Even though the district court dismissed this claim in Murdock’s Rule 33 motion, we still believe that it would be better for the district court to develop a more complete record on this issue and, therefore, we dismiss this claim without prejudice.
E.
Murdock further claims that the police violated the fourth amendment when they searched and seized his belongings which were kept at the apartment of acquaintances. The government argues that Murdock did not have a reasonable expectation of privacy in the Kings’ apartment and that therefore Murdock does not have standing to raise a fourth amendment claim. Furthermore, the government argues that no fourth amendment violation occurred because the police asked for and received consent from the Kings to search the apartment and to take the items they found.
However, even if we assume that Murdock had a reasonable expectation of privacy, the police obtained the Kings’ consent to take Murdock’s clothing. While Murdock’s control over his possessions in the Kings’ apartment may be questionable, there is no doubt that the Kings had, at a minimum, common authority over these possessions and that they were capable of giving consent to the police to take them into custody. See United States v. Matlock, 415 U.S. 164, 170-71, 94 S.Ct. 988, 992-93, 39 L.Ed.2d 242 (1974) (“consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared”).
P.
Finally, Murdock claims that the police violated the fourth amendment in their initial encounter with him because they seized him without reasonable suspicion. The government argues that the initial encounter was justified by probable cause and was therefore well within the bounds of the fourth amendment.
Shortly after the robbery of Norwest Midland Bank on September 5, Special Agent Fossum of the BCA saw Murdock riding in a Lincoln Continental. The car caught Fossum’s attention because of its erratic driving pattern. When Fossum approached the car, he saw Murdock counting a considerable amount of ten and twenty dollar bills. Fossum made note of the car’s vanity license plates (“DAVID 0”) and tried to follow the car. Because of the traffic, Fossum lost sight of the car. Fos-sum then reported the incident to the FBI, stating that he believed that the car had been used in the robbery of the Norwest Midland Bank. Approximately fourteen hours later, Officer Cha sighted the Lincoln Continental described by Fossum. In addition to Fossum’s description of the car, Officer Cha had a surveillance photo from the Norwest Midland Bank robbery. He compared the robber in the photo with the passenger in the Lincoln Continental and concluded that they were the same person. Based on this information, Officer Cha had probable cause to stop the Lincoln Continental and take Murdock into custody. See United States v. Marin-Gifuentes, 866 F.2d 988 (8th Cir.1989). Therefore, Mur-dock’s fourth amendment claim fails.
III.
For the foregoing reasons, Murdock’s conviction on all counts is affirmed.
. The Honorable Edward J. Devitt, Senior United States District Judge for the District of Minnesota.
. Ms. Asuncion testified that she thought Mur-dock "might be" the robber, but could not "positively say.”
Question: What is the nature of the counsel for the appellant?
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_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.
MITCHELL v. NELSON et al. (two cases). In re LOUCKES.
(Circuit Court of Appeals, Fourth Circuit.
January 11, 1927.)
Nos. 2532, 2543.
1. Chattel mortgages <©=>196 — In Maryland unrecorded chattel mortgages were void against subsequent creditor without notice, and he could acquire superior lien.
Under law of Maryland, where bankrupt’s creditor had no knowledge of prior chattel mortgages having legal status of unrecorded incumbrances because recorded in wrong counties, they w.ere void as to him, and he could by judgment and execution or by attachment acquire lien superior to mortgage liens, though he knew of mortgages when he began legal proceedings.
2. Chattel mortgages <©==153 — Holders of prior unrecorded' chattel mortgages and subsequent creditor without notice, who took mortgage with notice, held entitled to share ratably.
Where ■ bankrupt’s creditor, when he became such, had no knowledge of two prior chattel mortgages having status of unrecorded incumbrances because recorded in wrong counties, but learned thereof before he took chattel mortgage, held that, as all three mortgagees were simple contract creditors, they were, as between themselves, entitled to share ratably in proceeds of mortgaged property.
3. Bankruptcy <©=>440 — Adjudication awarding proceeds of property to prior unrecorded incumbrancers to exclusion of subsequent creditor without notice held reviewable by appeal, and not petition to revise.
Adjudication awarding proceeds on sale of property to holders of prior unrecorded chattel mortgages to exclusion of subsequent creditor without notice, who took chattel mortgage with notice, held reviewable by appeal, and not by petition to revise, where review proceedings were commenced by such creditor before amendatory Bankruptcy Act of 1926 (44 Stat. 662) became effective.
On Petition to Superintend and Revise, in Matter of Law, Proceedings of the District Court of the United States for the District of Maryland, at Baltimore, in Bankruptcy; Morris A. Soper, Judge.
Appeal from the District Court of the United States for the District of Maryland, at Baltimore, in bankruptcy'; Morris A. Soper, Judge.
In the matter of Frank I. Louekes, bankrupt, in which Norman T. Nelson was appointed trustee in bankruptcy. On petition of Guy K. Mitchell, executor of Annie W. Mitchell, deceased, to superintend and revise in matter of law, and on appeal from, proceedings of the District Court awarding proceeds of sale of propex*ty to West Baltimore Bank and another to the exclusion of petitioner.
Petition to revise dismissed. Decree reversed and remanded.
Charles S. Hayden, of Baltimore, Md., for petitioner and appellant.
Clarence A. Tucker, of Baltimore, Md. (Knapp, Tucker & Thomas, Jacob F. Mux*bach, and Wendell D. Allen, all of Baltimore, Md., on the brief), for respondents and appellees.
Before WADDILL, ROSE, and PARKER, Circuit Judges.
ROSE, Circuit Judge.
Upon a petition filed February 16,1925, Frank I. Louekes was on that date adjudicated a bankrupt. Among his assets were a crane and a steam shovel, both covered by a duly executed and recorded chattel mortgage to one Mitchell. This mortgage dated and recorded on September 18, 1924, secured a debt of $1,760.40 contracted between February 29 and May 14, 1924. On the 16th of March, 1923, the bankrupt had mortgaged the crane and other property to the West Baltimore Bank, and on the 28th. of February 1924, in like fashion he mortgaged the shovel to the Fidelity Trust Compaq ny. These last two mortgages were recorded in the wrong county and had the legal status of unrecorded incumbrances. When Mitchell became a creditor of the bankrupt, he was in entire ignorance of these instruments, but he-learned of their existence just before he took his own mortgage.
By agreement the crane and shovel were sold by the trustee in bankruptcy. Neither of them brought enough to satisfy the unrecorded mortgage upon it and the net proceeds of' both together did not equal the balance due-on that to Mitchell. The referee and the District Court held that the trustee in bankruptcy was not entitled to any of the money-coming from either of them because the mortgage to Mitchell had been made and recorded more than four months before the filing of the petition in bankruptcy. He was awarded the proceeds of .such property as was covered by either of the unrecorded mortgages but was not mentioned in that to Mitchell because, as he represented creditors who had trusted the bankrupt, without having any notice of the unrecorded instruments, his rights were not affected by them. It was, however, adjudged that the mortgagees in them should be preferred to Mitchell because when he took his mortgage, he knew of the existence of the other two. In substance, it was ruled that while the mortgage to Mitchell gave him nothing, it was effectual to take from the trustee money which would otherwise have gone to him.
It was thought that this somewhat peculiar result was required by the Maryland decisions and especially by the comparatively recent ease of Roberts v. Robinson, 141 Md. 37, 118 A. 198. In it a bankrupt had entered into an unrecorded agreement with Robinson. This agreement the court construed to be at once a conditional sale of cans with reservation of title to them and the creation of a lien upon whatever the bankrupt put into them. In either aspect, it was held to be altogether ineffectual as against the trustee in bankruptcy representing subsequent creditors. The proceeds of the sale of the cans and their contents amounting to some $9,000, would therefore have gone to him had there been nothing in the case other than this unrecorded agreement. It so happened, however, that after its execution, and with the knowledge of its existence, and before the bankruptcy, Roberts actually advanced some $8,500 to the bankrupt and took actual possession of the cans and their contents ás security therefor. As the loan was for present consideration, it was said it was good as against the trustee in bankruptcy, but that, as Roberts knew of the prior agreement when he made it, he would not be allowed to profit by what the law said was his fraudulent act. It was consequently ruled that, while his advance of $8,500 was to that amount effectual to defeat the claim of the trustee, it profited him nothing as against Robinson.
In point of fact, the Roberts advance of $8,500 was treated as having, so far as it went, made good against the world Robinson’s otherwise void lien, and the latter was held entitled to the proceeds of the canned goods in which, but for it, he would have had the rights of an unsecured creditor only. The sum of less than $500, which represented the difference between the value of the cans and their contents and the advance of Roberts, was all that was allotted to the trustee.
In the instant ease, not only has the trustee refrained from appealing, but he has expressly disclaimed all interest in the controversy. We intimate no opinion as to whether he was or was not well advised in so doing, or as to what we should have held his rights to have been had he here challenged the decree below. Under the circumstances our review is limited to the relative pretensions of Mitchell and of the holders of the unrecorded instruments. The position of Mitchell differs from that of Roberts in the case referred to, in that, when Roberts made his advance, he knew of Robinson’s prior equitable lien. When the bankrupt became indebted to the former, he knew nothing of these prior papers, and under the law of Maryland they were void as to him. Nelson v. Hagerstown Bank, 27 Md. 52; Carson v. Phelps, 40 Md. 73; Sixth Ward Building Association v. Willson, 41 Md. 506; Dyson v. Simmons, 48 Md. 209; Pfeaff v. Jones, 50 Md. 263; Stanhope v. Dodge, 52 Md. 485; Brown v. Maryland Mining & Manufac. Co., 55 Md. 547; Nally v. Long, 56 Md. 567; Hoffman v. Gosnell, 75 Md. 577, 24 A. 28; Textor v. Orr, 86 Md. 392, 38 A. 939; Davis v. Harlow, 130 Md. 165, 100 A. 102; Roberts v. Robinson, supra. By judgment and execution thereon, or by process of mesne attachment, if circumstances justified, he could have acquired a lien upon the property covered by the prior mortgages, superior to any which their holders could assert, although at the time he began legal proceedings he knew of them. Pfeaff v. Jones, supra; Brown v. Maryland M. & M. Co., supra.
Why, then, might he not secure by mortgage rights which the courts would have given him for the asking ? Because he could not get a mortgage unless the bankrupt gave him one, and that was something which both he and the bankrupt then knew the latter had no moral right to give. However ineffective the prior mortgages were as against Mitchell, they were binding on the conscience of the man who had executed and delivered them, and Mitchell could not profit by the bankrupt’s breach of faith. 2 Pomeroy’s Equity Jurisprudence, § 688. Does it follow that the decree below was right? We think not. Mitchell, it is true, took nothing by his mortgage, but we do not see that he lost anything by it. Before it was given him, the unrecorded mortgages were void as to him. As far as he was concerned their holders, like himself, were simple contract creditors, and, if he was the only other person entitled to share in the proceeds of the mortgaged property, as the trustee concedes he is, such proceeds would have been distributed among the mortgagees and Mitchell in proportion to their respective claims. We see no reason why the same rule should not now apply. To hold otherwise would be, not only to set aside the mortgage to Mitchell as we do, but to forfeit that to which, but for it, he was entitled.
It follows that Mitchell, to the extent of his claim, after crediting upon it whatever he has received from the property mortgaged to him and not covered by either of the prior mortgages, should participate ratably with the prior mortgagees in the net avails of the crane and the shovel. The sum going to him should be deducted proportionately from the net proceeds of the crane and the shovel respectively. The balance remaining of each should be paid to the holder of the unrecorded mortgage upon the article from which it was derived.
The proceedings to secure a review were begun before the going into effect of the amendatory Bankruptcy Act of 1926 (44 Stat. 662). Mitchell has brought his ease before us both by petition to superintend and revise and by appeal. The latter appears to us to be the proper remedy. It follows that the petition to superintend and revise, in case No. 2532 on our docket, will be dismissed, with costs, and in No. 2543 the decree below will be reversed, with costs, and the cause remanded for further proceedings in accordance with this opinion.
Case No. 2532, dismissed.
Case No. 2543, reversed.
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_state
|
54
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined".
TOBIN v. PENNSYLVANIA R. CO.
No. 7028.
United States Court of Appeals for the District of Columbia.
Decided Oct. 24, 1938.
Rossa F. Downing, Thomas F. Gowen, and Hilda M. Jackson, all of Washington, D. C., for appellant.
F. D. McKenney, J. S. Flannery, G. B. Craighill, and R. A. Bogley, all of Washington, D. C., for appellee.
Before GRONER, Chief Justice, and MILLER and VINSON, Associate Justices.
Writ of certiorari denied 59 S.Ct. 488, 83 L.Ed. —.
MILLER, Associate Justice.
Annie L. Tobin, appellant herein, declared against the Pennsylvania Railroad Company for an injury suffered by stepping into a space between the station platform and the platform of a car'on a train operated by appellee out of the Thirtieth Street Pennsylvania Station in Philadelphia. 'The theory of her case, as set out in two counts, is that appellee negligently constructed and maintained its station by permitting to exist a space which was unusual and unnecessary, and that appellee was guilty of negligence in creating and maintaining a dangerous condition without providing a “guard, sign, warning or suggestion of any kind” that such condition existed. The lower court directed a verdict for appellee upon the conclusion of appellant’s evidence, and this appeal is from the judgment on the directed verdict.
The law applicable to the case, so far as it concerns the standard of conduct required of the parties, is the law of the place of injury, hence, the law'of Pennsylvania; but the application of the standard must be made according to the law of the forum for that is a procedural matter. Consequently, the question whether there is sufficient evidence to take' the case to the jury must be determined according to the law of the District of Columbia.
The rule applicable in the District of Columbia on a motion for a directed verdict in an action founded upon negligence, is that the; evidence must be construed most favorably to the plaintiff; to this end he is entitled to the full effect of every legitimate inference therefrom; if upon the evidence, so considered, reasonable men might differ, the case should go to the jury; if, on the other hand, no reasonable man could reach a verdict in favor of the plaintiff, the motion should be granted; a mere scintilla of evidence is not sufficient; the question is not whether thére is any evidence, but whether there is any upon which a jury can-properly proceed to find a verdict for the party upon whom the onus of proof is imposed ; the burden being upon the- plaintiff to establish the negligence and injury alleged, if the evidence fails adequately to. support either element, the motion should be granted.
The evidence, most favorably construed in favor of appellant, was that she was a woman sixty-four years of age, in good health prior to the accident, weighing in the neighborhood of 175 pounds; she had ridden on a train only once before in her life and was unfamiliar with the Thirtieth Street Station of appellee railroad company in Philadelphia, where the accident occurred ; she was much excited by the experience ; she was accompanied on this occasion by four companions, two of whom preceded her onto the train; the floor of the platform station was on a level with the platform of the train, permitting passengers to step directly from the floor of the station to the floor of the car vestibule; the station was crowded at the time of the accident, the Democratic National Convention then being in session at Philadelphia; appellant’s view of the space between the station platform and the vestibule platform may have been obstructed by those who were preceding her onto the train; the space between the station platform and the train was from five to twelve inches in width; it was large enough to permit her foot to go into the aperture, though she was wearing a shoe ten inches in length, and it was large enough so that she fell clear to her hip, her other leg being outstretched on the station platform and the upper part of her body thrust forward into the vestibule of the car over her suitcase; she was seriously injured, probably permanently, as a result of the accident; the scene of the accident was in a subway, three flights of stairs down from the street level; there was no daylight, the only illumination being from a few electric lights near the ceiling; there were no lights along the place where the passengers entered the coaches; there was only one representative of the railroad company near at the time of the accident and he did not see it happen; several minutes elapsed before the representative of the railroad company saw appellant in the hole and helped her out; no warning of any kind was given by any representative of the railroad company. It should be noted also as regards the matter of warning that the following allegation appears in appellee’s plea filed by it as defendant in the lower court:
“ . . . defendant admits that there was no guard or sign calling attention to the space between said floor and platform, but denies that there was any duty on its part to provide a guard, sign, warning or suggestion with respect thereto and further says that the attention of plaintiff and of other passengers was directed to the existence of such space by defendant’s employees admonishing them to watch their step; . . . ”
This affirmative allegation suggests a recognition by appellee of a dangerous condition, and voluntary assumption of a duty to protect its passengers therefrom. The testimony of appellant’s witnesses challenged the allegation and the only evidence upon the point contradicted it flatly. See Altemus v. Talmadge, 61 App.D.C. 148, 151, 58 F.2d 874, 877, certiorari denied, 287 U.S. 614, 53 S.Ct. 16, 77 L.Ed. 533.
The standard of care applicable in cases arising out of alleged negligence of railroad companies has been stated by the Supreme Court of Pennsylvania in Palmer v. Warren Street Ry. Co., 206 Pa. 574, 581, 56 A. 49, 51, 52, 63 L.R.A. 507, as follows:
“ * * * More is required of a common carrier than mere reasonable precaution against injuries to passengers and care that its cars and appliances are to be measured by those ‘in known general use.’ While the law does not require the utmost degree of care which the human mind is capable of imagining, it does require that the highest degree of practical care and diligence shall be observed that is consistent with the mode of transportation adopted ; and cars and appliances are to be measured by those which have proved by experience to be the most efficacious in known use in the same business. The rule upon this subject, as laid down in Meier v. Pennsylvania R. Co., supra [64 Pa. 225, 3 Am.Rep. 581], and which should have been followed by the court in answering the point, is: ‘The utmost care and vigilance is required on the part of the carrier. This rule does not require the utmost degree of care which the human mind is capable of imagining; but it does require that the highest degree of practical care and diligence should be adopted that is consistent with the mode of transportation adopted. Railway passenger carriers are bound to use all reasonable precautions against injury of passengers; and these precautions are to be measured by those in known use in the same business, which have been proved by experience to be efficacious. The company is bound to use the best precautions in known practical use. That is the rule; the best precautions in known practical use to secure the safety of the passengers; but not every possible preventive which the highest scientific skill might suggest.’ ”
The rule as applied in the District of Columbia has been stated by this court in a number of cases; of which the following are examples: Capital Traction Co. v. Copland, 47 App.D.C. 152, 159:
“* * * Common carriers of passengers, like the defendant, are bound-to exercise extraordinary vigilance added by the highest skill for the purpose of protecting their passengers against injury resulting from defects in ways or instrumentalities used by the carriers. (Pennsylvania Co. v. Roy, 102 U.S. 451, 26 L.Ed. 141, 10 Am.Neg.Cas. 593.) They are bound to anticipate what passengers would naturally do under circumstances such as those in which tViP nlnintiff iri-prl ”
Great Falls & Old Dominion R. Co. v. Hill, 34 App.D.C. 304, 312, certiorari denied 216 U.S. 619, 30 S.Ct. 574, 54 L.Ed 640:
“ * * * It is the duty of a carrier, as stated in another instruction given at the request of plaintiff, to exercise the highest practicable degree of care for the safety of its passengers, not_ only in the matter of carriage, but also in respect of means for getting on and off its cars. Washington & G. R. Co. v. Harmon’s Adm’r (Washington & G. R. Co. v. Tobriner), 147 U.S. 571-580, 13 S.Ct. 557, 37 L.Ed. 284-288; Warner v. Baltimore & O. R. Co., 168 U.S. 339-348, 18 S.Ct. 68, 42 L.Ed. 491-497; * * *»
If the aperture into which appellant fell was larger than necessary; if the appellee should have maintained a guard at the point to warn passengers and failed to do so; if the station at that point was inadequately lighted; if a crowd of people present added to the situation an element of unusual danger; and if all these elements existed in combination, a jury composed of reasonable men could properly have found that appellee was negligent in that it failed to measure up to the standard of care required of it under the circumstances.
In its charge to the jury the lower court stated that no negligence, on the part of appellee had been shown and upon that ground granted appellees motion for a directed verdict, which motion was predicate,d not onl7 on the contention that no negligence on the part of appellee had been s,hown’ that the evidence showed that *e accident and injury resulted solely f.,rom, her own negligence. The refusal of the lower court * char£e on the Iatter point was proper. Under the circumstances °f the Presel7t case, the whole question of due <:are and conti lbutory negligence was one for the jury and we think that the evidence upon that question — most favorably construed in favor of appellant under the rule — was susceptible of different conelusions by reasonable men. In the case of Bloomer v. Snellenburg, 221 Pa. 25, 28, 69 A. 1124, 21 L.R.A.,N.S., 464, 466, the Pennsylvania Supreme Court said:
“* * * It may be that the plaintiff, while looking at the goods around her rather than at the floor at her feet in search of obstacles, was not using the caution which reasonably prudent persons would be expected to use under the circumstances, but that was a question of fact for the jury, and not of law for the court.”
r„ „ , , [9,10] Appellee contends that the question, whether the existence of a space between the station platform and passenger cars constitutes negligence on the part of the carrier, is a matter of law and not a question of fact for the jury, and cites a number of New York cases in support of that proposition. Appellant cites a number of cases from the courts of Illinois and Missouri to the contrary. Our attention has been called to no legislative enactment or decision which determines the question either for the District of Columbia or the State of Pennsylvania. The American Law Institute Restatement of the Law of Torts states the applicable rule as follows (§ 285): “The standard of conduct of a reasonable man . . . (b) may be applied to the facts of the case by the trial judge or the jury, if there be no such legislative enactment or judicial decision” and in the Comment which follows the Section quoted it is said:
“e. Function of trial court. If there is no legislative enactment covering the circumstances of a particular case and there is no decision of an appellate court which establishes whether particular conduct is or is not negligent, a trial judge may withdraw a case from a jury whenever the jury could not reasonably find the defendant’s conduct to be negligent.”
As this is a question of procedure it should be determined according to the law of the forum in any event, The. rule stated in the Restatement of the Law of Torts is almost identical in terms with the general rule oFthe District of Columbia concerning motions for directed verdicts. See Jackson v. Capital Transit Co., 69 App.D.C. 147, 99 F.2d 380. While it is true that there must be some lateral space between station platforms and cars, because of the oscillation of the cars, whether the size of such a space under all the circumstances of the present case constituted negligence on the part of appellee was a question upon which reasonable men could differ. In our opinion, therefore, this question was one which should have gone to the jury.
Appellant assigned as error the exclusion, by the lower court, of evidence concerning the propriety of providing a bridge or an apron across the space into which she fell. Objection to appellant’s questions on this point were sustained on the theory that it was improper for her to introduce such evidence unless she first proved the existence of a general practice of providing such bridges or aprons. The ruling of the lower court upon this question was correct. See Kilbride v. Carbon Dioxide & Magnesia Co., 201 Pa. 552, 556, 557, 51 A. 347, 348, 88 Am.St.Rep. 829.
Reversed.
Paxson v. Davis, 62 App.D.C. 146, 65 F.2d 492, certiorari denied, 290 U.S. 643, 54 S.Ct. 61, 78 L.Ed. 558; Rubenstein v. Williams, 61 App.D.C. 266, 61 F.2d 575; Restatement, Conflict of Laws (1934) §§ 378, 379, 595. See, also, Cuba R. Co. v. Crosby, 222 U.S. 473, 32 S.Ct. 132, 56 L.Ed. 274, 38 L.R.A., N.S., 40; Young v. Masci, 289 U.S. 253, 258, 53 S.Ct. 599, 77 L.Ed. 1158, 88 A.L.R. 170; Benton v. Safe Dep. Bank of Pottsville, 255 N.Y. 260, 265, 174 N.E. 648, 649.
Singer v. Messina, 312 Pa. 129, 167 A. 583, 89 A.L.R. 1271; Savannah, Florida & Western Ry. Co. v. Evans, 115 Ga. 315, 41 S.E. 631, 90 Am.St.Rep. 116; Restatement, Conflict of Laws (1934) § 585.
Restatement, Conflict of Laws (1934) §§ 380, 594, 595. Of. § 380(2).
See Jackson v. Capital Transit Co., 69 App.D.C. 147, 99 F.2d 380, and authorities there cited.
If the law of the forum makes it a condition of maintaining an action that the party bringing the action show himself free from fault, the condition must be fulfilled, although there is no such requirement in the state where the cause of action arose. Restatement, Conflict of Laws (1934) § 601. However, the law of the District of Columbia does not require either allegation or proof of absence of fault. That is a matter of defense. Atchison v. Wills, 21 App.D.C. 548. See Rule 8(c), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c.
Pennsylvania R. Co. v. Rogers, 3 Cir., 244 F. 76; Davis v. Olson, 8 Cir., 298 F. 921.
Mosheuvel v. District of Columbia, 191 U.S. 247, 24 S.Ct. 57, 48 L.Ed. 170; Walker v. Dante, 61 App.D.C. 175, 177, 58 F.2d 1076, 1078; Bloomer v. Snellenburg, 221 Pa. 25, 69 A. 1124, 21 L.R.A., N.S., 464.
Cf. Twersky v. Pennsylvania R. Co., 261 Pa. 6, 104 A. 63.
Singer v. Messina, 312 Pa. 129, 167 A. 583, 89 A.L.R. 1271; Rastede v. Chicago, St. P., M. & O. Ry. Co., 203 Iowa 430, 212 N.W. 751; Ferguson v. Harder, 141 Misc. 466, 252 N.Y.S. 783.
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
|
songer_treat
|
D
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
Charles E. HUBBARD, Petitioner-Appellee, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellant.
No. 88-1390.
United States Court of Appeals, Sixth Circuit.
Argued Feb. 7, 1988.
Decided April 12, 1989.
Geoffrey J. O’Conner argued, Garden City, N.Y., for petitioner-appellee.
Gary R. Allen, Acting Chief, U.S. Dept, of Justice, Appellate Section Tax Div., Janet S. Kimball argued, William S. Rose, Jr., Jane S. Kimball, David English Carmack, U.S. Dept, of Justice, Tax Div. Appellate Section, Joseph T. Chalhoub, Washington, D.C., for respondent-appellant.
Before KRUPANSKY and WELLFORD, Circuit Judges, and JOINER , Senior District Judge.
The Honorable Charles W. Joiner, United States District Judge for the Eastern District of Michigan, sitting by designation.
PER CURIAM.
During each of the years 1976, 1977, 1978, and 1979, Charles Hubbard filed federal income tax returns in which he held a partnership interest in a tax shelter. He claimed loss deductions and investment credits with respect to the shelter on each return. After the returns were filed with the Internal Revenue Service (IRS), they were audited by the District Director in Detroit, Michigan.
Section 6501(a) of the I.R.C. generally requires the IRS to assess any deficiency in tax within three years after the return for the year in question has been filed. The limitations period may be extended, however, by agreement. In connection with the audit of his 1976, 1977, 1978, and 1979 federal income tax returns, Hubbard executed Form 872-A agreements (Special Consents to Extend the Time for Assessment of Tax) for each of the returns in question. These forms, described as “open-ended” waivers, were effective to extend the statute of limitations indefinitely until revoked by either the taxpayer or the IRS. On each form, Hubbard listed his address as “950 N. Cass Lake Road, Suite 109, Pontiac, Michigan 48054.” The Form 872-A agreements were limited in scope, providing for an extension of the time for assessing only those tax deficiencies resulting from adjustments to items related to partnership income and loss.
The forms covering Hubbard’s 1976 and 1977 taxable years provided that any such additional taxes
may be assessed on or before the 90th (ninetieth) day after: (a) the Internal Revenue Service office considering the case receives Form 872-T, Notice of Termination of Special Consent to Extend the Time to Assess Tax, from the taxpayers); or (b) the Internal Revenue Service mails Form 872-T to the taxpayer(s); or (c) the Internal Revenue Service mails a Notice of Deficiency for such period(s). However, if a notice of Deficiency is sent to the taxpayer(s), the time for assessing the tax for the period(s) stated in the Notice of Deficiency will be further extended by the number of days the assessment was previously prohibited, plus 60 days.
The forms covering Hubbard’s 1978 and 1979 taxable years contained slightly revised language, and provided that any such additional taxes:
may be assessed on or before the 90th (ninetieth) day after: (a) the Internal Revenue Service office considering the case receives Form 872-T ... from the taxpayer(s), or (b) the Internal Revenue Service mails Form 872-T to the tax-paers(s); or (c) the Internal Revenue Service mails a Notice of Deficiency for such period(s), except that if a Notice of Deficiency is sent to the taxpayer(s), the time for assessing the tax for the period(s) stated in the Notice of Deficiency will end 60 days after the period during which the making of an assessment was prohibited.
Each of the forms also stated that “[t]his agreement ends on the earlier of the above expiration date or the assessment date of an increase in the above tax” and that “[t]his agreement will not reduce the period of time otherwise provided by law for making an assessment.” Neither Hubbard nor the IRS executed a Form 872-T termination notice with respect to any of the waivers in question.
On November 13, 1985, the IRS mailed a notice of deficiency of a total of more than $31,000 to the taxpayer covering his 1976 through 1979 returns. By inadvertence, the IRS sent the notice to the taxpayer’s Cass Lake Road address, the same address that had been listed on all of the Form 872-A agreements which Hubbard had executed. By November 1985, however, Hubbard had moved and had changed his address to “P.O. Box 809, Pontiac, Michigan 48056,” the address used on his 1983, 1984, and 1985 income tax returns, and “his last known address.”
The taxpayer never received the original of the November 1985 notice of deficiency. Accordingly, he failed to file a timely petition in the Tax Court contesting the deficiencies; the IRS then assessed the taxes and penalties imposed, and sought to collect them in April 1986. It was only then that Hubbard became aware that an assessment had been made and contacted the Detroit District Director’s office where he spoke with Agent Clink who informed him about the issuance of the November 1985 notice of deficiency.
Clink then forwarded a copy of the deficiency notice to the taxpayer’s correct post office box address, “his last known address.” Hubbard received this copy several days later, and on June 26, 1986, he filed a petition with the Tax Court requesting a redetermination of these tax deficiencies. At the same time, he moved to dismiss the suit for lack of jurisdiction, claiming that the November 1985 notice had been invalid.
The Commissioner subsequently agreed that there could be no subject matter jurisdiction because the November 1985 deficiency notice was not a valid notice of deficiency under I.R.C. § 6212(b)(1), having neither been mailed to Hubbard’s “last known address” nor actually received by him in time to file a timely petition to contest the deficiencies in the Tax Court.
After the case was dismissed, the Commissioner mailed a new notice of deficiency to Hubbard at his correct address, dated March 31, 1987. The taypayer then filed a timely petition with the Tax Court, contesting the deficiencies asserted in the March, 1987 notice of deficiency, and also claimed that the Tax Court’s recent decision in Roszkos v. Commissioner, 87 T.C. 1255 (1986), was controlling, and that the statute of limitations barred assessment by IRS of the deficiencies. Specifically, Hubbard claimed that the Form 872-A agreements had terminated in May 1986 when he first became aware of the purported November 1985 deficiency notice, and that the statute of limitations expired 90 days later, prior to the issuance of the March 31, 1987 notice of deficiency now in controversy.
The Commissioner opposed this motion, taking the position that when a notice of deficiency is mailed to the wrong address and is not actually received in time to permit the taxpayer to file a timely petition with the Tax Court, it is considered to be void and to impose no obligation on the taxpayer, regardless of whether or not he subsequently becomes aware of it. The Commissioner also argues that in executing the Form 872-A agreements, the parties must be deemed to have intended that only a valid notice of deficiency would operate to terminate the agreed upon period for assessment. Because the November 1985 notice of deficiency was not valid, the Commissioner concluded that the notice which had been mailed to the taxpayer’s correct address on March 81, 1987 was issued within the limitations period as extended by the Form 872-A agreements.
On November 23, 1987, the Tax Court issued a memorandum decision, Hubbard v. Commissioner, 54 T.C.M. (CCH) 1121 (1987), which agreed with Hubbard that the construction of the Form 872-A agreements was controlled by its decision in Roszkos. It therefore held that the November 1985 deficiency notice was effective to terminate the taxpayer’s open-ended consents or waivers, and that the limitations period expired 90 days thereafter. Accordingly, the Tax Court held that the limitations period had run by the time the IRS mailed the second, valid notice of deficiency in March 1987. The Tax Court entered a decision granting the taxpayer’s motion for summary judgment and determining that no deficiencies in his tax existed for the years 1976 through 1979. This decision is the subject of this appeal by the Commissioner.
The Tax Court’s interpretation of the Form 872-A agreements presents a question of law subject to de novo review by this court. See Policy v. Powell Pressed Steel Co., 770 F.2d 609, 612 (6th Cir.1985), cert. denied, 475 U.S. 1017, 106 S.Ct. 1202, 89 L.Ed.2d 315 (1986). The instant case is very similar to Roszkos v. Commissioner, 87 T.C. 1255 (1986), rev’d, 850 F.2d 514 (9th Cir.1988), cert. denied, — U.S. -, 109 S.Ct. 1121, 103 L.Ed.2d 183 (1989). The Court of Appeals for the Ninth Circuit, however, rejected the conclusion of the Tax Court in 1988.
In Roszkos, the court discussed the case of Mulvania v. Commissioner, 769 F.2d 1376 (9th Cir.1985), which addressed the question of whether the notice requirement of § 6212 was satisfied when a taxpayer learned of, but did not receive, a misaddressed notice of deficiency. The Mulvania court held that a misaddressed notice of deficiency, which is returned to the IRS undelivered, is “null and void.” The only exception was a situation in which the taxpayer acknowledges the notice by timely petitioning the Tax Court for redetermination of the deficiency, thereby rendering harmless the IRS's mailing error. Id. at 1379-81.
In Roszkos, and in the instant case, the IRS’s error in sending a misaddressed notice was not harmless because the taxpayers did not timely petition the Tax Court for redetermination of the deficiency asserted in that notice. There is nothing in either record to indicate that either taxpayer discovered, within 90 days, see I.R.C. § 6213, that notices of deficiency had been mailed to their former addresses. In Rosz-kos, the court held this lack of knowledge nullified the original notice. The Ninth Circuit concluded that “ ‘[RJegardless of the coincidence by which [the taxpayer] later came to know of its existence, the taxpayer’s actual knowledge did not transform the void notice into a valid one.’ ” Roszkos, 850 F.2d at 517 (quoting Mulvania, 769 F.2d at 1380-81).
The Ninth Circuit in Roszkos saw no reason to conclude that the Form 872-A reference to mailing a notice of deficiency was intended to include a misaddressed, undelivered, and unacknowledged letter which would not qualify as a notice of deficiency in any other context. Roszkos, 850 F.2d at 517-18.
We therefore hold that a notice of deficiency must comply with § 6212 in order to terminate a Form 872-A waiver. The [taxpayers’] contention that such a holding will deny them due process of law is both unfathomable and without merit. Because the notices mailed on December 31, 1981 did not comply with § 6212, the May 24,1982 assessment was invalid, the Form 872-A waiver did not terminate, and the statute of limitations for assessing the deficiency for the [taxpayers’] 1973 and 1974 tax years did not expire.
Id. at 518.
We agree with the rationale of the Ninth Circuit Court of Appeals in Roszkos. That court considered the basic function of a notice of deficiency — “to serve as a vehicle of notification” — and concluded that one “which does not satisfy the minimum statutory requirement for notice cannot reasonably be considered a notice of deficiency.” Id. at 517. The Form 872-A reference to mailing a notice of deficiency was intended to include only a notice that satisfies the statutory requirements and not “a misaddressed, undelivered, and unacknowledged letter which would not qualify as a notice of deficiency in any other context.” Id. at 518.
The Ninth Circuit held that since the mailing standard for a notice of deficiency is founded on the principle of actual notice and the reference to a notice of deficiency in Form 872-A was intended to adopt this standard, “a notice of deficiency must comply with § 6212 in order to terminate a Form 872-A waiver.” Id. We can find no principled basis for distinguishing Roszkos from the present case insofar as the notice of deficiency to terminate a Form 872-A consent should not depend on the fortuitous circumstance that the intended addressee may have learned of the mailing of a notice never received.
We accordingly REVERSE the decision of the Tax Court and REMAND for determination of the deficiency and interest.
Question: What is the disposition by the court of appeals of the decision of the court or agency below?
A. stay, petition, or motion granted
B. affirmed; or affirmed and petition denied
C. reversed (include reversed & vacated)
D. reversed and remanded (or just remanded)
E. vacated and remanded (also set aside & remanded; modified and remanded)
F. affirmed in part and reversed in part (or modified or affirmed and modified)
G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to another court
K. not ascertained
Answer:
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songer_casetyp1_7-2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation".
John H. NEWMAN and Claudia C. Newman, Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Appellee.
No. 551, Docket 89-4051.
United States Court of Appeals, Second Circuit.
Argued Dec. 11, 1989.
Decided Jan. 23, 1990.
R. Donald Turlington, New York City (Steven W. Laird, Stuart B. Katz, and Brown & Wood, New York City, on the brief) for appellants John H. Newman and Claudia C. Newman.
Pamela C. Berry, Atty., Dept, of Justice, Tax Div., Washington, D.C. (Shirley D. Peterson, Asst. Atty. Gen., Gary R. Allen and Ann B. Durney, Attorneys, on the brief) for appellee C.I.R.
Before TIMBERS, PIERCE and MINER, Circuit Judges.
TIMBERS, Circuit Judge:
Appellants John H. Newman and Claudia C. Newman (collectively “Newman”) appeal from a decision filed November 30, 1988, and entered January 17, 1989, in the United States Tax Court, Mary Ann Cohen, Judge, which determined a deficiency totaling $5,556 for the tax year 1982 in Newman’s federal income taxes. 56 T.C.M. (CCH) 748 (1988).
The appeal arises from an investment tax credit (“ITC”) that Newman claimed for his purchase of a tractor-trailer truck in 1982. The Commissioner of Internal Revenue (“Commissioner”) disallowed the credit. The Tax Court upheld the Commissioner’s determination, ruling that Newman leased the truck to a third party, Schultz Transit, Inc. (“Schultz Transit”), after he purchased it, and therefore was not entitled to claim the ITC. On appeal, Newman claims that the agreement in question was not a lease but an employment agreement between Newman as employer and Schultz Transit as independent contractor. The parties agree that the determination of tax liability turns on that question.
For the reasons which follow, we vacate the decision of the Tax Court and remand the case with instructions to enter a decision for appellants.
I.
We summarize only those facts and prior proceedings believed necessary to an understanding of the issues raised on appeal.
Schultz Transit is a corporation engaged in the trucking business. Prior to 1980, its business was limited to operating trucks it owned or leased. That year, it developed a plan that would allow it to expand operations without incurring the risks associated with ownership or leasing. The plan contemplated inviting investors to purchase trucks specified by Schultz Transit (Peter-bilt Model 362 cabover tractors and dual-axle Pine trailers). The investors would then agree to have Schultz Transit operate the trucks.
The plan called for Schultz Transit to collect the gross revenues for the trucks’ operation and subtract 21% of those revenues as compensation. That amount was to be subtracted whether or not the trucks turned a profit. In return, Schultz Transit was to operate the trucks to maximize profits in good faith, subject to its discretion to use them in a commercially reasonable manner. The investor-owners were to pay all operating expenses (fuel, maintenance and the like). Schultz Transit was to advance those costs and collect reimbursement from the gross revenues. If the revenues did not cover Schultz Transit’s compensation and the operating costs it laid out, the owners were to be personally liable for the deficit. The owners bore the risk of injury to third parties and their property. Schultz Transit bore the risk of injury to cargo carried on the trucks. The plan called for the owners to receive a monthly accounting of revenues and expenses.
Schultz Transit asked S-NY Management Corp. to draft the operating agreement and to act as managing agent for the investor-owners. S-NY was controlled by one Tom Beener (an attorney with whom the officers of Schultz Transit were familiar) and others. S-NY drafted the operating agreement and also drafted a management agreement. The parties to the latter were to be S-NY and the investor-owners. In exchange for managing the investments, the agreement called for S-NY to receive a fee. One significant feature of the management agreement was a pooling arrangement (eight investor-owners were necessary to make the plan operative), whereby gross revenues on the one hand and operating expenses on the other would be pooled and divided. Schultz Transit was not a party to that agreement.
Newman, an attorney (Claudia Newman is a party to this appeal only because she was a co-signer of the joint tax return), was attracted by S-NY’s private placement memorandum, dated October 14, 1982, which outlined the foregoing facts in greater detail. One of the elements of the agreement that he found attractive was that, according to S-NY, as an owner of a truck he would qualify for an ITC. While the law is clear that a non-corporate lessor of a truck would not be entitled to the credit under these circumstances, 26 U.S.C. § 46(e)(3) (1982), S-NY believed that the agreement between Newman and Schultz Transit would be one of owner-independent contractor, and therefore would allow Newman to claim the credit. The Tax Court found, and Newman concedes, that he was a full-time practicing attorney at all times relevant to this appeal, and that Schultz Transit exercised total day-to-day control of the truck throughout the life of the agreement.
Relying on the private placement memorandum, Newman signed the operating agreement with Schultz Transit and the corresponding management agreement with S-NY in December 1982. The term of the agreements was five years. Newman, however, was permitted to cancel them if he did not realize at least $5,037 in net profits in any three consecutive calendar months.
S-NY arranged financing on the truck, which cost about $80,000, through an unrelated party. The financing agreement, contained in a pre-printed form, referred to the parties as “lessor” and “lessee” and to the agreement as a “lease.” Schultz Transit was to pay the debt service out of Newman’s profits, and receive reimbursement for any shortfall.
The agreement did not result in the hoped-for profits. Newman, however, chose not to terminate the agreement immediately. He allowed a deficit totaling $7,500 to accrue until September 1985. At that point, he decided to exercise his option to terminate. Newman and Schultz Transit then decided to convert the agreement into a traditional lease. The debt Newman owed Schultz Transit was satisfied out of the lease fees.
Newman claimed an ITC on the truck, pursuant to the operating agreement, of $5,556 on his 1982 tax return. The Commissioner, believing that the credit was not applicable’ because of the nature of the agreement (i.e., a lease), issued a Notice of Deficiency. The Tax Court found that the Commissioner had correctly characterized the operating agreement as a lease, and confirmed the deficiency. Newman v. Commissioner, 56 T.C.M. (CCH) 748 (1988). This appeal followed.
The sole issue on appeal is whether the operating agreement is a lease or a contract between an employer and independent contractor. The parties concede that the issue of tax liability will turn on that determination.
II.
We turn first to the standard under which we review the decision of the Tax Court.
The Supreme Court has stated that “[t]he general characterization of a transaction for tax purposes is a question of law subject to review. The particular facts from which the characterization is to be made are not so subject.” Frank Lyon Co. v. United States, 435 U.S. 561, 581 n. 16 (1978). In other words, we review de novo the Tax Court’s ultimate determination, as a matter of law, that the agreement was a lease, and we review the factual findings underlying that determination under the “clearly erroneous” standard. Commissioner v. Duberstein, 363 U.S. 278, 291 (1960).
Since interpretation of the operating agreement is integral to the ultimate determination of liability, we reject the Commissioner’s contention that we may overturn the Tax Court’s interpretation only if it is clearly erroneous. We are led to that conclusion by the familiar principle that “ ‘the construction of written contracts ... is a question of law for the court and not one of fact for the jury.’ ” Meyers v. Selznick Co., 373 F.2d 218, 223 (2 Cir.1966) (Friendly, J.) (citation omitted); see also Eddy v. Prudence Bonds Corp., 165 F.2d 157, 163 (2 Cir.1947) (L. Hand, J.) (“appellate courts have untrammelled power to interpret written documents”), cert. denied, 333 U.S. 845 (1948).
III.
This brings us to a consideration of the merits.
(A)
The Tax Court correctly held that the form of the operating agreement was a contract between Newman as owner and Schultz Transit as independent contractor. Newman, supra, 56 T.C.M. at 757. The Tax Court went on to hold, however, that the form of the agreement should be disregarded and, further, that the agreement was in substance a lease. The Tax Court relied primarily on its findings that Schultz Transit exercised day-to-day control of the truck and that, while Newman would be responsible for losses, his risk was lessened by the pooling arrangement.
Like the Tax Court, we believe that, in reviewing a transaction for tax consequences, the substance of the agreement takes precedence over its form. Helverinq. v. Lazarus & Co., 308 U.S. 252, 255 (1939); DeMartino v. Commissioner, 862 F.2d 400, 406 (2 Cir.1988). That is only the beginning of the analysis. We have held in a tax-related context that “when a taxpayer chooses to conduct his business in a certain form, ‘the tax collector may not deprive him of the incidental tax benefits flowing therefrom, unless it first be found to be but a fiction or a sham.’ ” W. Braun Co. v. Commis sioner, 396 F.2d 264, 267 (2 Cir.1968) (citation omitted); see also Rosenfeld v. Commissioner, 706 F.2d 1277, 1282 (2 Cir.1983); Helvering v. Gregory, 69 F.2d 809, 810 (2 Cir.1934) (L. Hand, J.), aff'd, 293 U.S. 465 (1935).
While we exalt substance over form, we do not ignore the form. The touchstone in determining whether the form of an agreement should govern is the opinion of the Supreme Court in Frank Lyon, which held that agreements which were intended to have economic substance, as opposed to mere tax avoidance, should be given effect for tax purposes. 435 U.S. at 583-84. That opinion set forth several factors which are relevant to the present analysis.
The first factor inquires whether there is a legitimate non-tax business reason for the form; in other words, were the parties motivated at least in part by reasons unrelated to taxes? Id.; Bail Bonds by Marvin Nelson, Inc. v. Commissioner, 820 F.2d 1543, 1549 (9 Cir.1987); Estate of Baron v. Commissioner, 798 F.2d 65, 72 (2 Cir.1986); Rice’s Toyota World, Inc. v. Commissioner, 752 F.2d 89, 91-92 (4 Cir.1985).
Applying Frank Lyon, the Tax Court held that, since Newman failed to prove that he was motivated by non-tax reasons, it was not bound to follow the form of the operating agreement. 56 T.C.M. at 759. As indicated above, we need not determine whether the Tax Court’s finding was clearly erroneous in order to reject its legal conclusion. In Frank Lyon, the party equivalent to Schultz Transit was a bank that sought to build an office building. For various reasons unrelated to taxes, the bank chose not to enter into a conventional mortgage. Instead, it entered into a sale leaseback agreement with Frank Lyon Co., with the latter acting as owner/lessor. Lyon clearly was motivated, at least in part, by tax considerations. 435 U.S. at 571-72. In view of these facts, the Court held that, as long as one party is motivated by non-tax considerations, even if it is not the taxpayer, the form of the agreement will satisfy this factor. Id. at 576.
There is ample evidence that Schultz Transit’s motivation was unrelated to tax purposes. For example, Eugene Schultz, the president of Schultz Transit, testified at trial that
“we decided to — what was the best decision for our company.... if we went to a straight lease, we’d have to put it on our balance sheet, which, in effect, is the same thing as owning it ... [the operating agreement] was the best decision for us to do for financial reasons for our company.”
The Tax Court failed to address the other Frank Lyon factors. Normally, we would remand the case to the Tax Court so that it could make findings of fact on them, but we need not do so where, as here, “the record permits only one resolution of the factual issue.” Pullman-Standard v. Swint, 456 U.S. 273, 292 (1982).
The second Frank Lyon factor requires that the agreement have non-tax “economic substance”. 435 U.S. at 583. We have construed that factor to require a “change in the economic interests of the relevant parties.” Rosenfeld, supra, 706 F.2d at 1282. For Newman, the primary substance was his liability for operating costs and his burden of the risk of operating losses — features absent in leases. Schultz Transit, in turn, was assured of at least recovering costs as a result of the agreement; the absence of a lease guaranteed that it would not lose money.
The remaining factors were not expressly stated as such in Frank Lyon, but were relied upon by the Court in reaching its decision. The Court found it relevant that the parties were independent of each other. 435 U.S. at 580. There is no question that Schultz Transit and Newman dealt at arm’s length. We find especially persuasive the fact that the parties could not have colluded for tax purposes. Only one ITC was available for the truck. If the agreement was a lease, the ITC belonged to Schultz Transit; if it was an employment arrangement, the ITC belonged to Newman. In effect, Newman bargained for the right to the ITC by assuming the risk of operating losses.
The final Frank Lyon factor requires that the parties not disregard the form of the arrangement. Id. at 582-83. The Commissioner placed great emphasis on Eugene Schultz’s testimony that he thought of the agreement as a type of lease. That testimony, however, is not dispositive of the issue. Mr. Schultz explained that he regarded the agreement as a lease only because the Interstate Commerce Commission regards all operating agreements concerning trucks as leases, 49 C.F.R. § 1057.2(e) (1988), and that he was uncertain of the proper characterization for tax purposes. Mr. Schultz admitted that he carried out his part of the bargain in compliance with the form of the operating agreement.
In view of the foregoing, we conclude that the form of the operating agreement chosen by the parties — a contract between an employer and an independent trucking contractor — is valid for tax purposes.
(B)
Our reading of § 46(e)(3) of the Internal Revenue Code of 19.54 (“IRC 1954”) (codified in 26 U.S.C. § 46(e)(3) (1982)), further supports the conclusion stated above. Section 46(e)(3) in relevant part provides that the ITC would be allowed to a non-corporate lessor like Newman only if:
“(A) the property subject to the lease has been manufactured or produced by the lessor, or
(B) the term of the lease (taking into account options to renew) is less than 50 percent of the useful life of the property, and for the period consisting of the first 12 months after the date on which the property is transferred to the lessee the sum of the deductions with respect to such property which are allowable to the lessor solely by reason of section 162 (other than rents and reimbursed amounts with respect to such property) exceeds 15 percent of the rental income produced by- such property.”
By its terms, this provision applies directly only when the non-corporate party already has been determined to be a lessor. On the instant appeal, the issue is whether Newman is a lessor or an employer. He concedes that, if the operating agreement is a lease, § 46(e)(3) would preclude him from claiming the ITC.
Since the text of § 46(e)(3) offers no direct guidance on the question whether Newman is entitled to the ITC, we turn to the legislative history for an indication of the factors entitling lessors or lessees to the ITC. The factor common to the usual § 46(e)(3) inquiry and to this appeal is risk of loss.
The legislative history is not a model of clarity on the subject. The relevant portion of the Report of the House Ways and Means Committee states that the ITC should be available if it applies to “a normal business transaction of the lessor rather than a passive investment entered into for the purpose of sheltering other income.” H.R.Rep. No. 92-533, 92d Cong., 1st Sess. 29 (1971), reprinted in 1971 U.S. Code Cong. & Admin.News 1825, 1844. That statement can be read in one of two ways. First, it can apply only to those parties engaged in their normal business. Second, it can apply to parties who shoulder the burden of risk of loss, rather than to those who merely seek to shelter income passively.
We conclude that the better reasoned approach is to focus on the risk of loss, which, in this case, rested with Newman. McNamara v. Commissioner, 827 F.2d 168, 170 (7 Cir.1987) (stressing “entrepreneurial risk”) (citing Freesen v. Commissioner, 798 F.2d 195, 199 (7 Cir.1986) (per curiam)). But see Owen v. Commissioner, 881 F.2d 832, 834 (9 Cir.1989) (rejecting McNamara analysis), cert. denied, 110 S.Ct. 1113 (1990); Connor v. Commissioner, 847 F.2d 985, 987-89 (1 Cir.1988) (same). This, we believe, is the only way, as a practical matter, to allow non-corporate (i.e., individual) taxpayers like Newman to take advantage of the ITC provision. Such investors may hardly be asked to change careers merely to claim an ITC. Moreover, we are mindful that Congress created the ITC in order to “stimulate the economy by encouraging the modernization and expanded use of capital equipment and machinery.” Yellow Freight System, Inc. v. United States, 538 F.2d 790, 794 (8 Cir.1976). Many opportunities for investment might be lost if the Commissioner’s inquiry were to turn on whether the claimant is “in the business” rather than on whether the claimant is genuinely risking his capital.
The Tax Court discounted Newman’s risk due to the pooling arrangement. True, the pooling arrangement eased Newman’s risk somewhat, but it did so only in relation to the other investors. As between Newman and Schultz Transit, Newman continued to bear the full risk of operating losses. Cf. Meagher v. Commissioner, 36 T.C.M. (CCH) 1091, 1094 (1977) (pooling arrangement does not shift risk under § 46(e)(3)).
• The Tax Court also relied heavily on Amerco v. Commissioner, 82 T.C. 654 (1984). In Amerco, the taxpayer (the parent company of U-Haul) rented trucks to the public. The trucks were purchased by third parties and leased to the taxpayer, who claimed the ITC on the trucks as a “pass-through” lessee. Id. at 679-82. While Amerco is superficially similar to the instant case, several key elements are distinguishable. First, the taxpayer in Amerco, not the Commissioner, claimed that the agreement was a lease, and the Tax Court explicitly gave “great weight to the intent of the parties.” Id. at 684. Second, the lessee truck company, not the lessor owners, bore the risk that operating expenses would exceed gross revenues. Id. at 680-81.
Finally, we reject the Tax Court’s reliance on the ICC’s definition of all operating agreements as leases. 49 C.F.R. § 1057.2(e) (1988). There is no indication whatsoever that the ICC considered the tax implications of its choice of label. Its choice therefore is not entitled to deference in this context. We also reject the Tax Court’s reliance on the fact that the pre-printed loan forms used the term “lease” rather than “employment agreement”. “Purely formal appellations do not matter, whether they cut for or against the Commissioner.” Freesen, supra, 798 F.2d at 200.
IV.
To summarize:
We vacate the decision of the Tax Court denying Newman the ITC of $5,556. The Supreme Court’s holding in Frank Lyon requires us to defer to the decision of the parties to enter into an employer-independent contractor relationship. Moreover, we hold that the congressional intent behind IRC 1954 § 46(e)(3) was to foster the sort of investment activity in which Newman engaged.
Vacated and remanded with instructions to enter a recision for appellants.
Question: What is the specific issue in the case within the general category of "economic activity and regulation"?
A. taxes, patents, copyright
B. torts
C. commercial disputes
D. bankruptcy, antitrust, securities
E. misc economic regulation and benefits
F. property disputes
G. other
Answer:
|
songer_circuit
|
D
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
NORFOLK SOUTHERN BUS CORPORATION v. COMMISSIONER OF INTERNAL REVENUE.
No. 4531.
Circuit Court of Appeals, Fourth Circuit.
Nov. 6, 1939.
O. R. Folsom-Jones, of Washington, D. C. (S. Burnell Bragg and W. B. Rodman, both of Norfolk, Va., on the brief), for petitioner.
Berryman Green, Sp. Asst. to Atty. Gen. (Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key, Sp. Asst. to Atty. Gen., on the brief), for respondent.
PARKER, SOPER, and NORTHCOTT, Circuit Judges.
PARKER, Circuit Judge.
This is a petition to review a decision of the Board of Tax Appeals which denied to the petitioner, Norfolk Southern Bus Corporation, the right to file a consolidated tax return with the Norfolk-Southern Railroad Company under section 141 of the Revenue Act of 1934. It is admitted that all of the stock of petitioner is owned by the railroad company and that the principal business of that company is that of common carrier by railroad. The only question in the case is whether the principal business of petitioner is “that of a common carrier by railroad”. The nature of that business was thus correctly described by the Board in its findings:
“Prior to and during 1934 the railroad company had lines running from Norfolk, Virginia, east to Virginia Beach, north to Cape Henry, and back to Norfolk, referred to as the Virginia Beach ‘Loop’, and generally south from Norfolk, Virginia, to Elizabeth City, Edenton, Plymouth, Washington, and New Bern, and westerly from Washington to Raleigh and Charlotte, with connecting lines to Fayetteville, Durham, Ellerbe, and Asheboro, all in North Carolina, and several other branch lines serving this general territory.
“The Virginia Beach ‘Loop’ of the railroad served all villages and towns between Norfolk, Virginia Beach, and Cape Henry. Prior to 1924 the principal mode of travel in the locality was on the railroad line, the roads being in poor condition. In or about 1924 the State of Virginia started building concrete roads paralleling the ‘Loop’ railroad. The railroad, faced with a possible loss of passenger business to independently organized and operated bus companies, organized the petitioner bus company in 1926 for the purpose of transporting passengers by bus and freight by trucks over the new highways paralleling the railroad. On the Virginia Beach ‘Loop’ the busses supplemented the railroad passenger service and during the winter months were substituted for the railroad service. Trucks operated by petitioner provided pick-up and delivery freight service in this area. The same fares were charged and the same tickets used from Norfolk to Virginia Beach, Cape Henry, and return. Likewise the same fares were charged and the same tickets used when a person traveled from Virginia Beach to Norfolk, such fares being published with the State Corporation Commission and with the Interstate Commerce Commission and approved by them. The dispatching of both trains and busses was done by officers or employees of the railroad. Schedules were staggered and the ticket purchased entitled the purchaser to travel either by railroad or by bus. Passengers, after purchasing tickets, generally used the transportation, either bus or rail, which left first in point of time.
“In 1931 on the branch from Norfolk to Munden, Virginia, there was one round-trip passenger and one round-trip freight train a day. Bus service replaced the railroad passenger service in 1932 or 1933. Truck service was substituted for freight rail service, the freight train being run twice a week, except during the potato season in the month of June, when it was run daily. *
“Service by bus and truck was instituted, generally paralleling the railroad from Norfolk south into North Carolina. Because of the fact that there was no highway across Albemarle Sound, the busses ran west from Edenton to Windsor and south from Williamston to Washington, North Carolina. They also ran from Williamston east to Plymouth along the Atlantic Coast Line Railroad and then east to Columbia, paralleling a branch line of the Norfolk-Southern Railroad Co. to Columbia and from Williamston west to Raleigh, under a contract with the Carolina Coach Co., which owned the franchise. Approximately one year after the bus service was instituted between Norfolk and New Bern, which generally parallels the railroad, the railroad company took off one of its trains which had been making the round trip daily.
“Interline tickets purchased and used on Pennsylvania Railroad lines were accepted on the busses as well as on the trains which the railroad company ran over the same route as its bus lines. The Columbia branch of the railroad from Williamston to Columbia, North Carolina, maintained a passenger service from Plymouth to Columbia which was unproductive. This was replaced by bus service, so that by 1934 petitioner operated under franchises busses and some truck lines on public highways parallel to the railroad over a large portion of the territory served by the railroad, with the exception of a comparatively short distance from Edenton west to Windsor and south from Williamston to Washington and from Williamston east to Plymouth.
“In 1934 one of the receivers of the railroad was president of the bus company. The general superintendent of the electric lines of the railroad was vice president and general manager of the bus company. The assistant secretary of the railroad was secretary of the bus company. Both companies had the same treasurer and general auditor. All the directors of the bus company were officers of the railroad. All officers of the bus company were on the railroad pay roll and their salaries were paid in the first instance by the railroad. The employees, except the bus drivers and trainmen, were the same for both the railroad and the bus company and the dispatching of both trains and busses was done by officers or employees of the railroad. The railroad in the first instance paid the administrative expenses of the bus company and, inasmuch as the administrative staff served both the railroad and the bus company, this expense was allocated to the bus company in the amount of approximatley $1,000 per month.”
Upon request of petitioner for additional findings, the Board supplemented the findings quoted by the following:
“Petitioner contends that the findings do not show why it was formed, why it was set up as a separate corporation, who furnished the capital and who has actually operated the buses. Notwithstanding the fact that the Division feels sufficient findings have been made to disclose these facts, it is now specifically found as a fact that petitioner was organized and operated for the purpose of transporting passengers by bus and freight by truck; that the legal department of the Norfolk-Southern Railroad Company advised its officers it could not own and operate such buses and trucks except through a separately incorporated company; that the railroad company furnished the original capital and it, or its receivers, own all of its capital stock; and that the petitioner, in the manner set out in the findings heretofore made, operated said buses and trucks in conjunction with said railroad company,”
Petitioner contends that, 'although it is not a railroad carrier, its principal business is that of a carrier by railroad in that its business is an integral part of the railroad’s carrier service, and that the bus and truck service maintained by it are intended to and do preserve, supplement and feed such railroad service. In other words, petitioner contends that it is a bus company engaged in the railroad business. We think, however, that what the evidence shows is not a bus company engaged in the business of a railroad company, but a railroad company through its subsidiary engaged in the business of a bus company. Whatever the purpose behind petitioner’s organization and operation, the fact is inescapable that its principal business is not that of common carrier by railroad but of common carrier by bus or truck. That this business is conducted in close cooperation with the business of the railroad company does not change its essential character.
Petitioner relies upon the decision of Interstate Commerce Commission in Scott Bros., Inc., Collection and Delivery Service, I. C. C. No. MC-2744; but we find nothing in that decision which in any way supports petitioner’s contention. In that case Scott Brothers, Inc., sought a permit under the Motor Carrier Act of 1935 (Part II of the Interstate Commerce Act, 49 U.S.C.A. § 301 et seq.) authorizing it to engage in local collection and delivery service for the Pennsylvania and Long Island Railroad Companies in the City of New York and vicinity. The application was denied on the ground that the service in which applicant proposed to engage was railroad common carrier service subject to Part I of the Interstate Commerce Act, 49 U.S.C.A. § 1 et seq. The Commission distinguished such service from that of the sort here involved, quoting the definition of “common carrier by motor vehicle” from the Motor Carrier Act of 1935 followed by the following quotation from the decision of the Commission in Pick-Up and Delivery in Official Territory, 218 I. C. C. 441, viz.:
“In the foregoing language there is clearly expressed an intention to exclude the motor-vehicle operations of rail carriers from the definition of a common carrier by motor vehicle to the extent that these operations are subject to the provisions of the Interstate Commerce Act. In making this exception Congress may be presumed to have legislated with knowledge of the court decisions previously mentioned, holding that pick-up and delivery service is within the meaning of ‘transportation’ as defined in section 1(3) of the Interstate Commerce Act, as well as with knowledge of our own administrative findings to the effect that, while railroad terminal service by motor truck was subject to regulation under the Interstate Commerce Act, the use of motor trucks by railroads in line-haul service was not subject to that act. United States v. Bailey, 9 Pet. 238, 255 [9 L.Ed. 113]; National Lead Co. v. United States, 252 U.S. 140, 147 [40 S.Ct. 237, 64 L.Ed. 496].”
The Commission also quoted with approval the following passage from American Trucking Association v. United States, D.C., 17 F.Supp. 655, 657:
“And therefore we think that in the exception Congress intended to include under the provisions of part 2 intercity motor vehicle operations of railroads but at the same time to exclude, from that part, motor vehicle operations within terminal districts.”
As the principal business of petitioner was that of intercity motor vehicle operations and not local pick-up and delivery service, it is clear that it falls within Part II of the Interstate Commerce Act (the Motor Carrier Act of 1935) and not within Part I of the act covering railroad carrier service.
Petitioner contends that, in the light of its history, Section 141 of the Revenue Act of 1934, 26 U.S.C.A. § 141, should be construed to permit the filing of consolidated returns by a railroad company and a bus company occupying towards each other the relationship disclosed in this case. The language of the statute is unambiguous, however, and there Js no reason for resorting to the canons of interpretation to ascertain its meaning. These, as has been often said, are to be looked to for the purpose of resolving ambiguity, not for the purpose of creating it. If, however, we look to the history of the act, we find no intention on the part of Congress in conflict with the clear meaning of the language employed. Section 141 as originally drafted permitted the filing of consolidated returns by affiliated corporations, the report of the committee stating that, if consolidated returns were abolished, it “would be especially burdensome to many corporations such as railroads which are frequently obliged to maintain separate corporate structures in the several states in which they operate, although for all ordinary business and accounting purposes the subsidiaries form a single operating system”. In the course of the passage of the bill, Section 141 as reported was stricken out and the present section was substituted for it, the debates showing that the permission to file consolidated returns was retained to the limited extent permitted by the substituted section to provide for the case of railroads having separate corporate structures but forming a single operating system. There is no indication of any intention to accord the privilege to bus companies merely because they are affiliated with railroads and operated in connection with them.
For the reasons stated, the decision of the Board will be affirmed.
Affirmed.
The pertinent portion of Sec. 141, which is entitled “Consolidated Returns of Railroad Corporations”, is as follows:
“(d) Definition of ‘affiliated group.’ As used in this section an ‘affiliated group’ means one or more chains of corporations connected through stock ownership with a common parent corporation if—
“(1) At least 95 per centum of the stock of each of the corporations (except the common parent corporation) is- owned directly by one or more of the other corporations ; and
“(2) The common parent corporation owns directly at least 95 per centum of the stock of at least one of the other corporations; and
“(3) Each of the corporations is either (A) a corporation whose principal business is that of a common carrier by railroad or (B) a corporation the assets of which consist principally of stock in such corporations and which does not itself operate a business other than that of a common carrier by railroad. For the purpose of determining whether the principal business of a corporation is that of a common carrier by railroad, if a common carrier by railroad has leased its railroad properties and such properties are operated as such by another common carrier by railroad, the business of receiving rents for such railroad properties shall be considered as the business of a common carrier by railroad.” 26 U.S.C.A. § 141(d) (1-3).
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_constit
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the constitutionality of a law or administrative action, and if so, whether the resolution of the issue by the court favored the appellant.
UTE INDIAN TRIBE OF the UINTAH AND OURAY RESERVATION, a body politic and corporate of the United States of America, Plainitff-Appellant, v. Parley PROBST and Oranna B. Moosman, Administratrix of the Estate of Elizabeth C. Bumgarner Poowegup, Deceased, Defendants-Appellees. UTE INDIAN TRIBE OF the UINTAH AND OURAY RESERVATION, a body politic and corporate of the United States of America, Plaintiff-Appellee, v. Parley PROBST, Defendant-Appellant, and Oranna B. Moosman, Administratrix of the Estate of Elizabeth C. Bumgarner Poowegup, Deceased, Defendant-Appellee.
Nos. 125-69, 126-69.
United States Court of Appeals, Tenth Circuit.
April 20, 1970.
Rehearing Denied June 5, 1970.
John S. Boyden, Salt Lake City, Utah (Stephen G. Boyden, Salt Lake City, Utah, on the brief), for Ute Indian Tribe, appellant in No. 125-69 and appellee in No. 126-69.
Wayne L. Black, Salt Lake City, Utah (Robert D. Moore, Salt Lake City, Utah, on the brief), for Parley Probst, appellee in No. 125-69 and appellant in No. 126-69.
James J. Smedley, Heber, Utah (David Sam, Duchesne, Utah, on the brief), for Oranna B. Moosman, appellee in both Nos. 125-69 and 126-69.
Before MURRAH, Chief Judge, and BREITENSTEIN and HICKEY, Circuit Judges.
BREITENSTEIN, Circuit Judge.
We have here a three-way fight over Indian land. Plaintiff-appellant Ute Indian Tribe sued for certain equitable relief and for cancellation of a deed given by defendant-appellee Oranna Moosman as administratrix of the estate of Elizabeth Bumgarner Poowegup to defendant-appellant Parley Probst. Jurisdiction lies under 28 U.S.C. § 1362 because the matter in controversy arises under the Act of August 27, 1954, 25 U.S.C. § 677 et seq. The answer of Probst asserts the validity of the deed and counterclaims for damages. The administratrix denies that the Tribe has any right to the land and, by way of cross-claim against Probst, asserts that the deed to him is void. The district court held that the administratrix was entitled to the land. Both the Tribe and Probst appeal.
The Act provides for the division of the assets of the Tribe between the full-blood and mixed-blood groups, the termination of federal supervision over the latter, and the development of a program for such termination over the former. After the division of the assets between the two groups, the mixed-bloods were to devise a plan for the distribution of its assets among its members. 25 U.S.C. § 6771. If a majority of the mixed-blood group decided that partition of any land was impracticable and, if the Secretary of the Interior approved, the land could be sold and the proceeds divided among members of the group. 25 U.S.C. § 6771 (5). Before the termination of federal supervision, a mixed-blood could dispose of his interest in acquired tribal property only with the approval of the Secretary. See 25 U.S.C. § 677n and 25 CFR § 243.3 (1966 ed.). Federal supervision over tribal land terminated when a patent issued thereto. 25 CFR § 243.2(h). Until August 27, 1964, a patent conveying any tribal land to a mixed-blood had to provide that until that date members of the Tribe had the right of first refusal of an offer to sell. 25 U.S.C. § 677n and 25 CFR § 243.4.
In the division between the groups, the mixed-bloods received the 3,200 acres of land in question. They decided that partition was impracticable and that the land should be sold. It was appraised at $26,600. Secretarial approval is conceded.
Elizabeth, a mixed-blood, submitted the high bid of $26,016 for the land. She did not have the necessary money and interested Probst, a non-Indian, in the land. A written contract was prepared and executed on October 28, 1959, whereby Elizabeth sold to Probst for $35,000 and Probst went into immediate possession. The contract recognized that no patent had been issued and that Elizabeth would have to comply with the first-refusal provision of the statute. Elizabeth gave Probst a $35,000 mortgage on the land to assure compliance with the contract terms. The mortgage was duly recorded. Neither the contract nor the mortgage was submitted to the Secretary for his approval.
On August 11, 1960, the Secretary promulgated regulations as authorized by the Act. 25 U.S.C. § 677z. See 25 CFR §§ 243.1-243.12 (1966 ed.). A patent was issued to Elizabeth on September 20, 1960. It contained the first-refusal provisions required by the statute and regulations. On November 11, 1960, Elizabeth and Probst executed an amendment to the October 28, 1959, contract. It provided that certain escrowed funds be released to Elizabeth; that the required offering should not be made “until such time as the Party of the First Part [Probst] requests that the same be made”; and that if such offering was made at Probst’s request certain conditions for his protection should be included within the offer.
Elizabeth was killed in an accident on November 27, 1963, without making the offer and without conveying to Probst. Oranna was appointed administratrix of Elizabeth’s estate. Probst filed a creditor’s claim against the estate on the basis of the 1959 sale contract and mortgage. Pursuant to court order, the administratrix conveyed the land to Probst by a September 21,1964, deed which was recorded on October 5, 1964. The pending suit was brought by the Tribe on September 20, 1967.
The trial court held that Probst was guilty of fraud; that Elizabeth was not in pari delicto; that the first-refusal provisions “were as much or more for the protecton of the Indian owner as for the protection of the members of the Tribe”; that public policy favored the Indian owner; that the impossibility of reconstructing what would have occurred had there been an offering by Elizabeth and the increase in value of the property supported the award of the land to the administratrix; and that she was not barred by any statute of limitations, by laches, or by estoppel.
The construction and application of § 677n is decisive. The land was a tribal asset. It was real property as that term is used in the section because it was acquired by a mixed-blood. See definition of “real property” in 25 CFR § 243.2 (g). The patent to Elizabeth contained the first-refusal provision. Neither she nor her administratrix made the required offer. The question is the effect of such non-action.
The arguments of the parties lead us into many by-paths which need not be traveled. The Act was intended to distribute tribal property and terminate federal supervision over the mixed-bloods. See § 677 and House Report No. 2493, 2 U.S.Code Cong. & Admin.News ’54, pp. 3355-3359. We are aware of no legislative history which illuminates the intent of the first-refusal provisions. The reliance of the Tribe and the administratrix on the provision of § 677i that a contract made in violation of that section shall be null and void is misplaced. As we read that section it applies to undivided interests and not to real property which a mixed-blood has acquired by purchase. Our concern is whether the statute confers upon the Tribe the unconditional right to meet the price at which the selling mixed-blood offers land acquired from tribal assets.
Contrary to the trial court, we believe that Congress, by incorporating § 677n into the Act, had in mind primarily the protection of the Tribe and only secondarily, if at all, the protection of the selling mixed-blood. The first-refusal provision gave the Tribe, for a ten-year period, the opportunity to recover land which it had lost by the division of assets between the two groups. The language of § 677n means that Congress believed it preferable that tribal land acquired by a mixed-blood, who determined to sell before 1964, return to the Tribe if the Tribe wanted it and could match the offering price. This procedure does not assure a higher price to the mixed-blood, because the Tribe is required only to meet the offering price. Only in the event two or more members of the Tribe compete for acquisition of the land does bidding take place. 25 CFR § 243.7.
The statute must be construed and applied to effectuate the congressional intent. United States v. American Trucking Associations, Inc., 310 U.S. 534, 542, 60 S.Ct. 1059, 84 L.Ed. 1345; see also Federal Trade Commission v. Fred Meyer, Inc., 390 U.S. 341, 348-352, 88 S.Ct. 904, 19 L.Ed.2d 1222. We believe that when a mixed-blood determined within the ten-year period to dispose of his acquired interest, the Tribe had the right to have the property offered to it in accordance with the statute and regulations. Elizabeth determined to sell the land at or before the time when she entered into the first contract with Probst. She did not offer the land to the Tribe. Her administratrix in turn did not offer it, but instead waited until the expiration of the ten-year period and then gave Probst a deed. The Tribe was thus deprived of its statutory right. It makes no difference whether this result was intentional or unintentional or whether it was the upshot of a fraudulent scheme, good-faith ignorance, or ineptness. Whatever the reason, the inescapable fact is that the Tribe was not given the opportunity to reacquire the land.
Probst argues that the assertion of this right is barred by the Utah statute of limitations, Utah Code Ann. 1953, § 78-12-26(3), which provides that a fraud action must be brought within three years after the discovery by the aggrieved party of the fraudulent act. Holmberg v. Armbrecht, 327 U.S. 392, 395-397, 66 S.Ct. 582, 90 L.Ed. 743, holds that a suit in a federal court to enforce in equity a federally created right is not controlled by the forum statute of limitations. The Tribe seeks in federal court equitable relief from the denial of a federal statutory right. There is no applicable federal statute of limitations. Under Holmberg the state statute does not apply and the question is whether the Tribe is chargeable with laches.
The essence of the defense of laches is prejudice to a defendant through unconscionable delay by a plaintiff in the assertion of his claim. Costello v. United States, 365 U.S. 265, 282, 81 S.Ct. 534, 5 L.Ed.2d 551, and Potash Co. of America v. International Minerals & Chemical Corp., 10 Cir., 213 F.2d 153, 154. Unconscionable delay can occur only after a party discovers, or by the exercise of reasonable diligence could have discovered, the wrong of which he complains. Here the wrong was the denial to the Tribe of its right of first refusal. To sustain his claim of knowledge on the part of the Tribe, Probst relies on November 18, 1959, minutes of a tribal meeting stating that Elizabeth was contemplating the sale of the land, the recording of the mortgage, the payment by Probst of taxes on the land, a 1960 telephone call between the lawyers for the Tribe and Probst, a conversation after Elizabeth’s death among Probst, his lawyer, and a tribe official, and the records of the Bureau of Indian Affairs showing that Probst advanced the purchase price to Elizabeth. These facts, considered separately or together, do not show any action by Probst or Elizabeth to deny to the Tribe its statutory right of first refusal. The denial of that right first occurred in the November 11, 1960, amendment to the October 28, 1959, sale agreement. In that document Elizabeth agreed not to offer the land to the Tribe without a request from Probst. The Tribe did not have knowledge of the amendment until the summer of 1966. Even if the Tribe is charged with constructive notice of the recorded deed from the administratrix to Probst, we believe that the delay of less than three years in the institution of the suit was not unconscionable. In any event, Probst has shown no prejudice resulting from the delay. He has been in possession of the land since 1959 and has enjoyed the benefits of its use. In our opinion laches is no bar to the claim of the Tribe.
The question remains of what relief the court should fashion to remedy the wrong. When federally secured rights are invaded, federal courts must adjust their remedies to grant the appropriate relief. J. I. Case Co. v. Borak, 377 U.S. 426, 433, 84 S.Ct. 1555, 12 L.Ed.2d 423; see also Jones v. Alfred H. Mayer Co., 392 U.S. 409, 414, n. 13, 88 S.Ct. 2186, 20 L.Ed.2d 1189. It is impossible to reconstruct what would have occurred if Elizabeth had made the required offering. In addition, the ten-year period fixed by the statute has passed.
To do equity a decree should put the parties in the position where they would have been if the required offer had been made. From our review of the record we are convinced that this should be done without regard to all the charges and countercharges of fraud, misconduct, and bad faith. When everything else is put aside, the fact remains that Probst, Elizabeth, and the administratrix by their actions deprived the Tribe of a federally created right and that right must be vindicated by affording the Tribe an opportunity to acquire the land.
The administratrix points out that the offer required by § 677n must be made “to the members of the tribe” and argues that the Tribe itself may not be the purchaser of the land. We are not persuaded. Under the regulations, 25 CFR § 243.6, the superintendent was required to notify the Tribe of any offers to sell. As found by the trial court in an unchallenged finding of fact, the Tribe had on occasion purchased property offered by mixed-bloods between 1960 and 1964 and these purchases had been approved by the Secretary. Two letters from Assistant Secretaries of the Interior state that the offering required by the Act ran to the Tribe as well as to its members. Construction of an act by the agency charged with its administration should be followed unless there are compelling indications that it is wrong. Red Lion Broadcasting Co., Inc. v. Federal Communications Commission, 395 U.S. 367, 381, 89 S.Ct. 1794, 23 L.Ed.2d 371. Here there are no such indications. What the members of the Tribe can do individually they can do collectively as a tribe.
The administratrix argues that to permit the Tribe to purchase will deprive her of the advantage which might be secured through competitive bidding. The argument comes too late. If either she or Elizabeth desired competitive bidding, they each had time to make the offer which the statute requires; and they chose not to do so. In any event, the first-refusal provision is primarily for the benefit of the Tribe and its full-blood members and only incidently for the benefit of the selling mixed-blood. We see no reason why the Tribe should not have an opportunity to buy the land without putting it up for bidding.
A decree should be entered permitting the Tribe to purchase the land within a reasonable time by the payment to Probst of his purchase price, $35,000, plus interest thereon from October 28, 1959, to November 11, 1960. We cut off the interest on the latter date because then Probst and Elizabeth made the amendment to the contract which circumvented the statute. The payment by Probst of taxes on the land an^d the minor improvements which he made thereon are set off by the fact that he has had the use of the land for over ten years. The decree should make appropriate provisions for investiture of title to the land in the Tribe upon the payment by it of the required amount to Probst.
Reversed and remanded for further proceedings consistent with this opinion.
. Section 677n provides:
“Any member of the mixed-blood group may dispose of his interest in the tribal assets prior to termination of Federal supervision, ’ subject to the approval of the Secretary. In the event a member of the mixed-blood group determines to dispose of his interest in any of said real property at any time within ten years from August 27, 1954, he shall first offer it to the members of the tribe, and no sale of any interest, prior to termination of Federal supervision, shall be authorized without such offer to said members of the tribe in such form as may be approved by the Secretary. After termination of Federal supervision the requirement of such offer, in form to be approved by the Secretary, shall be a covenant to run with the land for said ten-year period, and shall be expressly provided in any patent or deed issued prior to the expiration of said period.”
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:
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songer_casetyp1_7-2
|
F
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation".
McGRATH, Attorney General, et al. v. ZANDER.
No. 10107.
United States Court of Appeals District of Columbia Circuit.
Argued April 15, 1949.
Decided Oct. 10, 1949.
Mr. J. Roger Wollenberg, Washington, D. C., pro hac vice, by special leave of Court, with whom Mr. James L. Morris-son, Attorney, Department of Justice, Washington, D. C., was on the brief, for appellants.
Mr. Joseph W. Bishop, Jr., Attorney,' Department of Justice, Washington, D. C., also entered an appearance for appellants.
Mr. Michael J. Keane, Jr., Washington, D. C., with whom Mr. Karl Michelet, Washington, D. C., was on the brief, for appellee.
Messrs. Donald Hiss and Clifton J. Stratton, Jr., Washington, D. C., filed a brief for Emily Pavenstedt Fritze and Ellen Biddle Stackelberg as amici curiae, urging affirmance.
Before CLARK and PROCTOR, Circuit Judges, and ARTHUR F. LEDERLE, District Judge, sitting by designation.
PROCTOR, Circuit Judge.
Appellee, a native born adult citizen of the United States, with home and domicile in New Orleans, went to Germany in June, 1939, for a visit, with her return passage booked for September 9, 1939. A train of fortuitous circumstances, starting with the sudden invasion of Poland, delayed and finally prevented her return. While so detained, she fell in love with and married Dieter Zander, a German citizen. According to German law the marriage “bestowed” upon her the citizenship of her husband. Yet, she rejected all theories of German citizenship as an incident of her marriage, which was planned with Zander upon the condition and understanding that their matrimonial domicile should be established permanently in New Orleans, where she had lived for many years, and that the marriage would in no way affect her status as an American citizen. Upon announcing their engagement Zander was drafted into the German Army, but while on a leave ox absence they were married. It was understood that she should return to New Orleans whenever possible, and the fortunes of war permitting—he would join hef there. During hostilities between Germany and the United States, Mrs. Zander was registered and treated as an alien by German authorities and kept under constant surveillance. She avoided all acts in aid of the German war effort, even resorting to connivance with a friendly German physician to simulate physical illness when examined for such work. She did nothing inconsistent with loyalty to the United States and did all things within her power to maintain American citizenship and alle^giance. In the spring of 1945, disguised as a refugee, she fled some two hundred miles to the American Army, to which she rendered service for many months. Finally, in May, 1946, with assistance of American officials, she returned to the United States. Finding that her Aunt, with whom she lived in New Orleans, had died, she settled in New Jersey with her cousin, a daughter of the Aunt, bringing all her belongings from the home in New Orleans.
While serving with the German Army in Africa, Zander was taken prisoner and sent to the United States. There he ingratiated himself with American authorities by assisting in indoctrinating his fellow prisoners with the principles of democracy. Finally in 1947 he was sent to Germany and discharged; whereupon he returned to the United States upon an immigration visa and joined his wife at her home in New Jersey, where they now live “as American citizens.” We infer, therefore, that he is permanently settled there and seeking American citizenship.
When Mrs. Zander, appellee, departed for Europe she held a remainder interest in a trust estate created by her grandfather, an American citizen. This interest matured while she was in Germany. The estate was held by a national bank in Kansas, as Trustee, subject to the supervision of a Kansas Court. None of the principal or income was ever paid to Mrs. Zander. In fact, while in Germany, she was dependent upon funds coming from German sources. The foregoing facts are gathered from a lengthy stipulation, upon which by agreement the case was heard by the trial court. The stipulation was also adopted by the Judge for his findings of fact.
The interest of appellee in said estate, $112,391.40 in cash, was seized and vested in the Alien Property Custodian under authority of the Trading With the Enemy Act, as amended, 50 U.S.C.A. War Appendix, § 1 et seq., hereafter sometimes referred to as the Act. The present controversy arises out of Mrs. Zander’s suit in the District Court to recover that fund.
The claim is laid in two alternative counts. The first rests upon Section 9(a) et seq., of the Act and the allegation that Mrs. Zander was not an “enemy or ally of enemy” within the meaning of Section 2(a), not being “resident within the territory” of Germany. The second rests upon the amendment of December 18, 1941, Section 32(a), and allegations that appellee had filed a claim with the Alien Property Custodian for return of the seized funds and although entitled thereto the claim had been refused.
Without passing upon the claim as stated in count one, the court entered judgment in Mrs. Zander’s favor upon count two, holding that her status as a citizen of the United States remained unaltered by her marriage to a German citizen. In reaching this conclusion the court assumed jurisdiction under Section 10(a) of the Administrative Procedure Act, 5 U.S.C.A. § 1009 (a), to review the proceedings before the Custodian, and treated the action taken by him as a final determination and refusal of the claim. Accordingly judgment was entered upon count two for return of the funds. This appeal followed.
In attacking the judgment appellants contend: (1) Section 9(a) of the Act provides the only judicial remedy for a return, all others being precluded by Section 7(c) ; (2) the claim before the Custodian, under Section 32(a), rested within his discretion, especially so in view of the statutory requirement for certain findings by the President, or his representative (the Custodian), including a determination that return is “in the interest of the United States”; (3) assuming authority in the court to review proceedings under Section 32(a), there yet was no final refusal of the claim, no determination thereof, and no findings thereunder,—at most only suspension of action to await anticipated legislation; (4) there was no exhaustion of the administrative remedy. For these reasons appellants insist that the court lacked jurisdiction to grant any relief itnder Section 32(a), upon which count two is based. We agree with these contentions.
Section 32(a) is an integral pan. of the Trading With the Enemy Act. Section 7(c) limits the means of reclaiming seized property to the “relief or remedy” provided by the Act itself. Section 9(a) provides the only judicial remedy for reclaiming vested property. Uebersee Finanz-Korporation v. Markham, 1946, 81 U.S. App.D.C. 284, 285, 158 F.2d 313, affirmed 1947, 332 U.S. 480, 68 S.Ct. 174, 92 L.Ed. 88; Cummings v. Hardee, 1939, 70 App.D.C. 18, 23, 102 F.2d 622. Yet, notwithstanding this positive limitation the District Court assumed authority to review the proceedings before the Custodian by virtue of the Administrative Procedure Act, 5 U.S.C.A. §§ 1001-1011. This, we think, was error. Section 10 of that Act, 5 U.S. C.A. 1009, excepts from review administrative rulings where “(1) statutes preclude judicial review or (2) agency action is by law committed to agency discretion.” Here both exceptions stand as bars. Section 7 (c) of the Trading With the Enemy Act precludes it. The discretionary nature of the action granted the Custodian by Section 32(a) precludes it. We gather also from the legislative history that judicial review was not intended by Congress. See Hearings before House Committee on the Judiciary (Sub-committee 1) on H.R. 3750, 79th Cong., 1st Sess., pp. 14, 35, 52; H.R.Rep. 1269, 79th Cong., 1st Sess.; S.Rep. 920, 79th Cong., 2d Sess. We may also add, without extending this opinion by any detailed reference to the record, that in our judgment there was no final determination or refusal of the claim by the Custodian, and no action that can properly be so construed. Hence, at all events, there was no exhaustion of the administrative remedy, an essential condition to judicial review. Myers v. Bethlehem Corp., 1938, 303 U.S. 41, 51, 58 S.Ct. 459, 82 L.Ed. 638; Aircraft & Diesel Corp v. Hirsch, 1947, 331 U.S. 752, 757, 67 S.Ct. 1493, 91 L.Ed. 1796.
It follows that we must hold the court was without jurisdiction to review the administrative proceedings or grant any relief under Section 32(a), upon which count two of the complaint is based. The judgment, as it now stands, must be vacated. However, this does not dispose of the matter, for we are of the opinion that the conceded facts stated in the stipulation and adopted as the court’s findings, establish a case entitling appellee to recover upon count one, grounded upon section 9 (a) of the Act. " That section authorizes suit in the District Court after filing of a notice of claim with the Custodian, where no application has been made to the President. In those circumstances this suit was filed. Count one is grounded upon the allegation that Mrs. Zander was not “an enemy or ally of enemy” of the United States. Although the allegation is denied, conceded facts leave only the legal question whether she was “resident within” Germany. Citizenship is not directly involved. True it is that mere presence within enemy territory of an enemy national during hostilities is usually a prohibitive factor against the discretionary power of return granted the President or his delegate by Section 32(a). However, a court is required to return under Section 9(a) if the claimant be not an “enemy or ally of enemy,” which as defined by Section 2 includes “Any individual * * * of any nationality, resident within the territory * * * of any nation with which the United States is at war * * The two sections 9(a) and 32(a) are independent and exclusive of each other. The latter, we think, was added to serve the limited purpose of affording speedy administrative relief (when found by the Executive in the interest of the United States) to certain classes technically banned under Section 9(a), such as nationals of countries overrun by the enemy who remained loyal to the Allied Cause. Although, with certain exceptions, citizenship and presence within the territory of an enemy country bar relief under the discretionary Executive authority granted by Section 32(a), they, of themselves, do not bar recovery under Section 9(a). Vowinckel v. First Federal Trust Co., 9 Cir., 1926, 10 F.2d 19; Stadtmuller v. Miller, 2 Cir., 1926, 11 F.2d 732, 734, 45 A.L.R. 895. The provisions of that section, as concern the courts’ jurisdiction, remain unaffected by Section 32(a). In dealing with the Trading With the Enemy Act we must, as the Supreme Court says, endeavor to give all of it the most harmonious, comprehensive meaning possible. Clark v. Uebersee Finanz-Korp., 1947, 332 U.S. 480, 488, 68 S.Ct. 174, 92 L.Ed. 88.
We recur then to the decisive question. Was appellee “resident within” Germany? If so, she became an enemy under Section 9(a) and would not be entitled to recover. The crucial term “resident within” has been interpreted in Josephberg v. Markham, 2 Cir., 1945, 152 F.2d 644, 648-649; Vowinckel v. First Federal Trust Co., supra, 10 F.2d at pages 20, 21; Stadtmuller v. Miller, supra, 11 F.2d at pages 737-739, 45 A.L.R. 895, and Sarthou v. Clark, D.C.S.D.Cal.1948, 78 F.Supp. 139, 142. This last case epitomizes the several rulings in these words: ll * * * ‘resident within the territory’ as employed in the Act connotes something different from and more than living within the specified areas. It is rather indicative of a settled and permanent place of abode, volitionally acquired and voluntarily assumed. It is a habitation having domiciliary properties.”
We agree with those- decisions. Adopting them as correctly interpreting the critical words before us, we find nothing in the facts to bring appellee within the statutory category of "resident within”' Germany, unless it be that marriage technically imposed upon her the residence or domicile of her husband. Otherwise the conclusion is irresistible that Mrs. Zander left the United States for a short stay in Germany with the definite intention of returning to her home in New Orleans, became an unwilling sojourner in Berlin, and was forced by the hard realities of war to remain there, contrary to her unfaltering desire and intention to get away and return to her home and domicile in the United States, as soon as she could do so. We are mindful of the rule that the domicile of a wife usually follows that of her husband. Yet, we think, in the unusual circumstances of this case, such a result could not fairly or justly be considered to have followed the marriage of appellee. The rule is not unyielding. It amounts to no more than a prima facie presumption. Commonwealth v. Rutherfoord, 1933, 160 Va. 524, 169 S.E. 909, 90 A.L.R. 348. As the Supreme Court long ago declared, a wife “may acquire a separate domicil whenever it is necessary or proper that she should do so. The right springs from the necessity for its exercise, and endures as long as the necessity continues.” Cheever v. Wilson, 1869, 9 Wall. 124, 19 L.Ed. 604. And the court adds, the law “is so well settled that it would be idle to discuss it.” See also Williams v. North Carolina, 1942, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279, 143 A.L.R. 1273, and Oxley v. Oxley, 1946, 81 U.S.App.D.C. 346, 159 F.2d 10.
Accepting the proposition that a married couple may by mutual understanding or individual action establish separate domiciles, we can see no just ground to question the legal propriety of Mr. and Mrs. Zander’s agreeing before marriage to keep their separate domiciles until the restraints and vicissitudes of war were ended, when with good fortune they could join each other at her home in America. See Commonwealth v. Rutherfoord, supra. We find nothing in the German law to conflict with these views. Even if that were so, we think that the law of this country should govern the case, involving, as it does, the construction and application of an Act of Congress concerning an American citizen in respect to property within the United States.
In planning her marriage to a German it was natural that this lady, with undiminished love and loyalty to her own land and a determination to return there as soon as possible, should seék to preserve unaffected her American citizenship and domicile. Indeed it was to the interest of the United States that she do so. Her citizenship was preserved by the Cable Act. Act of September 22, 1922, Sec. 3, 42 Stat. 1022. We think, under the conditions confronting her, it was entirely proper that she should insist upon maintaining her domicile in New Orleans, to which we see no legal barrier, in view of Mr. Zander’s consent, especially when backed by his own determination to make America his future home. And the good faith of this understanding is .proven by the persistency with which both pursued it to a final consummation.
We hold, therefore, that Mrs. Zander never lost her domicile in America; that she was never “resident within” Germany and not an “enemy” within the purview of Section 9(a). Accordingly we hold that she is entitled to recover under count one of the complaint. To hold otherwise would be, in the language of the Court in the Stadtmuller case, 11 F.2d at page 739, 45 A.L.R. 895, “to impute to Congress an intention which the act does not, in our opinion, warrant, and which is so repugnant to our ideas of justice and equity that we cannot believe that Congress ever intended such a result.”
We think it unnecessary to send the case back to the District Court to adjudicate, appellee’s rights trader Section 9(a), as suggested by appellants. The facts are conceded and without conflict. As stated in the stipulation they constitute the findings of the trial court. They admit of hut one conclusion. Nothing is left but a proper application of the law. Therefore, we remand the case with direction to vacate the present judgment on the second count and enter a judgment in favor of appellee for the sum claimed in the first count.
So ordered.
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:
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songer_applfrom
|
B
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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).
H. B. GOLDSMITH, next friend of Byron Lance Goldsmith, a minor, et al., Plaintiffs-Appellees, v. QUITMAN INDEPENDENT SCHOOL DISTRICT et al., Defendants-Appellants.
No. 72-1255
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
June 12, 1972.
Welby K. Parish, Gilmer, Tex., for defendants-appellants.
Ken T. Miller, Jr., Tyler, Tex., for plaintiffs-appellees.
Before THORNBERRY, COLEMAN and INGRAHAM, Circuit Judges.
Rule 18, 5th Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.
PER CURIAM:
This appeal involves the “Boy’s Dress and Hair Code” of the Quitman Independent School District. The District Court enjoined the enforcement of the Regulation.
The judgment of the District Court is vacated and the cause is remanded for further proceedings not inconsistent with Karr v. Schmidt, 5 Cir., 1972, 460 F.2d 609 (En Banc).
Vacated and remanded with direction.
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
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songer_source
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A
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the forum that heard this case immediately before the case came to the court of appeals.
George WILLIAMS, Jr., Appellant, v. UNITED STATES of America, Appellee.
No. 16793.
United States Court of Appeals District of Columbia Circuit.
Argued March 8, 1962.
Decided May 4, 1962.
Mr. Alvin Friedman, Washington, D. C., with whom Mr. Nestor S. Foley, Washington, D. C. (both appointed by this court), was on the brief for appellant.
Mr. William H. Collins, Jr., Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., Nathan J. Paulson, and Joseph A. Lowther, Asst. U. S. Attys., were on the brief, for appellee. Mr. Judah Best, Asst. U. S. Atty., also entered an appearance for appellee.
Before Edgerton, Danaher and Burger, Circuit Judges.
DANAHER, Circuit Judge.
A jury found appellant guilty of assault with a dangerous weapon, larceny and assault with intent to kill, but acquitted him on two other counts not now material. It is urged on this appeal that certain statements by the appellant to the police were improperly received in evidence against him because they had been made during a period of unreasonable delay before preliminary examination by the Commissioner. For like reason, appellant also contends that a statement to a store owner made by the accused after he had been taken to the scene of the crime should not have been admitted.
The burglar alarm at National Coin Company sounded during the early morning hours of March 6, 1961 just as Detective Perkoski was driving by. He testified that he saw the appellant come from behind a screen door at the premises and thereupon arrested him. The officer marched the prisoner to a call box from which he sent for the police patrol. Appellant thereupon attacked the officer, struck him in the eye and knocked him down. The prisoner seized the officer’s service revolver, pointed it at the prone officer, and said “Come on if you want it; come on and get it.”
Perceiving the approach of Sgt. Young, Detective Perkoski warned Young that the prisoner had Perkoski’s revolver, whereupon Williams commenced to run, pursued by Sgt. Young. Williams pointed the revolver at Sgt. Young and fired one shot. Young returned the fire, but Williams escaped.
Within a few minutes after service of a warrant for the arrest of Williams, he was brought to the Safe Squad at police headquarters about 10:30 A.M., March 6, 1961. Detective Hudlow warned Williams that anything he might say could be used against him. Without objection, it was testified that Williams told the detective, during the next thirty minutes, that he had gone to the National Coin Company’s place of business for the purpose of breaking in; while he was attempting to do so, a plate glass window was broken, the burglar alarm was sounded and he was apprehended as he attempted to leave the scene. Officer Hudlow testified further that Williams said he saw he had a chance to strike the officer, that he did so and thereupon seized the police revolver. Williams stated that he had been drinking and had no knowledge that he had fired at Sgt. Young, but he was sobered up as he realized that he had been shot at. He turned into a hallway in a house where his sister lived, ran out on a balcony, dropped to the ground, and then made his way to another house where he hid under the porch. He threw the gun away and went to the home of another sister.
The various police officer witnesses were not cross-examined.
Taking the stand in his own behalf, appellant denied all charges, denied that he had made any inculpatory statements to the police, and offered by way of alibi, that he had not been in the neighborhood as described by the police.
He testified that when he was placed under arrest he told the officers that they had the wrong man, but they took him to police headquarters. He testified that when confronted by Sgt. Young he said “No, Man, if I had the gun, why I want to try to shoot you when I can run just as good ?”; that the police “been beating on me”; that they had several confessions drawn up but that he would not put his name on a paper for something he did not do. Williams admitted to various prior criminal convictions for armed robbery, petty larceny and unlawful entry.
Vvffien Officer Hudlow was testifying as a rebuttal witness, it developed that Williams had been taken back to the premises of the National Coin Company and that he had there told the man in charge “I tried to break into your company last night.”
Trial counsel, asked if he had prayers to submit, replied in the negative. The Government requested an instruction on the “voluntariness” of the statement by the accused, but upon objection by defense counsel, the Government’s suggestion was withdrawn. Counsel took no exception to the charge as given, but after the verdict had been received, he moved for a judgment of acquittal n. o. v. For the first time it was urged that the jury’s verdict had been based upon “a supposed confession which was obtained from the jury [sic] while [the prisoner] was being illegally detained.”
The trial judge noted that the appellant’s statements had been taken at police headquarters within a brief period of time following the arrest. He pointed out that he had earlier called attention “to the fact that no objection whatever was made to this confession at the time that the testimony was put in during the trial. It only comes in now, and there was no motion of any kind to suppress the confession. Why is it made at this late date?” Counsel replied that as he saw the case, “The only damaging information in the case was this supposed confession.” The judge asked “What about the direct testimony of the police officers?” to which counsel replied “That was with a person who has not—who was not sufficiently described as far as that night is concerned.” The judge replied that “Perkoski arrested him, carried him down to the patrol box, held him there at the patrol box for awhile and then after he was knocked down, looked up; in his face was a pistol pointing down his gullet. Gracious sakes alive, I don’t know anybody who would be in a better position to identify him than Perkoski.” Then the judge ruled:
“Well, in any event, as I see it:
“1. The confession was made within an hour of arrest.
“2. No objection is made until after the verdict. And I will deny the motion.”
Had there been timely and adequate objection at the trial, we could agree with the argument advanced by counsel appointed by this court that the trial judge should have excluded the statement attributed to Williams when he was brought back to the store of the National Coin Company. By that time, the police already were possessed of ample evidence of probable cause upon which they could and should have brought Williams before the Commissioner. Instead, they took the appellant to the scene of the crime. The statement then made could be said to have been elicited during a period of unreasonable delay, and hence to have been erroneously received in evidence. Defense counsel, however, did not object on Mallory grounds, but on the ground that such testimony was outside the scope of “direct examination.”
As matters stand, we do not find sufficient prejudice to justify reversal for plain error in light of the record as a whole. There is ample evidence otherwise predicating the conviction. The direct testimony of the officers alone was sufficient entirely apart from any statements made by the accused shortly after his arrest.
Under all the circumstances, we find no adequate basis upon which to disturb the judgment of the trial court.
Affirmed.
. Trilling v. United States, 104 U.S.App.D.C. 159, 260 F.2d 677 (1958); Watson v. United States, 101 U.S.App.D.C. 350, 249 F.2d 106 (1957); Ginoza v. United States, 279 F.2d 616 (9 Cir. 1960).
. Ruffin v. United States, 106 U.S.App.D.C. 97, 269 F.2d 544, cert. denied, 361 U.S. 865, 80 S.Ct. 129, 4 L.Ed.2d 107 (1959); Gilliam v. United States, 103 U.S.App.D.C. 181, 257 F.2d 185 (1958), cert. denied, 359 U.S. 947, 79 S.Ct. 728, 3 L.Ed.2d 680 (1959); Blackshear v. United States, 102 U.S.App.D.C. 289, 252 F.2d 853 (1958), cert. denied, 359 U.S. 1004, 79 S.Ct. 1144, 3 L.Ed.2d 1033 (1959); Lawson v. United States, 101 U.S.App.D.C. 332, 248 F.2d 654 (1957), cert. denied, 355 U.S. 963, 78 S.Ct. 552, 2 L.Ed.2d 537 (1958).
. Johnson v. United States, 110 U.S.App.D.C. 187, 290 F.2d 378 (1961); Perry v. United States, 102 U.S.App.D.C. 315, 316 n. 2, 253 F.2d 337, 338 n. 2 (1957), cert. denied, 356 U.S. 941, 78 S.Ct. 785, 2 L.Ed.2d 816 (1958); Lawson v. United States, supra note 2; Mumforde v. United States, 76 U.S.App.D.C. 107, 110, 130 F.2d 411, 414, cert. denied, 317 U.S. 656, 63 S.Ct. 53, 87 L.Ed. 527 (1942); Thomas v. United States, 287 F.2d 527, 530 (5 Cir.), cert. denied, 366 U.S. 961, 81 S.Ct. 1923, 6 L.Ed.2d 1254 (1961).
. There was no objection to the statements when offered, see Thomas v. United States, 106 U.S.App.D.C. 5, 268 F.2d 581 (1959); Ruffin v. United States, supra note 2.
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_bank_r2
|
B
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine whether or not the second listed respondent is bankrupt. If there is no indication of whether or not the respondent is bankrupt, the respondent is presumed to be not bankrupt.
Patricia Ann LEVIN, Appellant, v. WEAR-EVER ALUMINUM, INC. and Edmond Kennedy, Jr.
No. 18796.
United States Court of Appeals, Third Circuit.
Argued May 4, 1970.
Decided June 1, 1970.
Robert M. Ross, Richter, Syken, Ross, Binder & O’Neill, Philadelphia, Pa., for appellant.
Richard M. Shusterman, White & Williams, Philadelphia, Pa., for appellee Wear-Ever Aluminum, Inc.
Before HASTIE, Chief Judge, and MARIS and FREEDMAN, Circuit Judges.
OPINION OF THE COURT
MARIS, Circuit Judge.
In this case the plaintiff, Patricia Ann Levin, brought suit against the defendants, Wear-Ever Aluminum, Inc., and Edmond Kennedy, Jr., in the District Court for the Eastern District of Pennsylvania to recover damages for injuries suffered by her in an automobile accident. Defendant Kennedy was the driver of the automobile which struck her and she alleged that defendant Wear-Ever Aluminum, Inc., was his employer or principal.
At the first trial of the case, defendant Wear-Ever Aluminum, Inc., made a motion at the close of the plaintiff’s case, and again at the close of all the evidence, for a directed verdict in its favor. Treating this as a motion to dismiss as to that defendant, the trial judge orally granted the motion and a notation to that effect was entered on the docket on April 29, 1968. However, no written order was filed. The trial proceeded as to the defendant Kennedy and the jury, being unable to agree upon a verdict, was discharged. Thereafter, following certain proceedings not here necessary to recite, the case came on for a second trial as to the defendant Kennedy at which trial the jury rendered a verdict of $35,000.00 in favor of the plaintiff and against that defendant on January 9, 1970. The present appeal by the plaintiff followed. See, 306 F.Supp. 511.
We have before us a motion by the plaintiff to remand the record to the district court for the entry of a final appealable judgment in favor of Wear-Ever Aluminum, Inc., in accordance with the oral decision dismissing the complaint as to it to which we have referred, and a counter motion by the defendant Wear-Ever Aluminum, Inc., to dismiss the present appeal. The appeal must be dismissed because the record does not disclose the existence and entry on the docket of the district court of a final appealable judgment terminating the litigation.
Rule 58, F.R.Civ.P., as amended effective July 1, 1963, provides:
“Subject to the provisions of Rule 54(b): (1) upon a general verdict of a jury, or upon a decision by the court that a party shall recover only a sum certain or costs or that all relief shall be denied, the clerk, unless the court otherwise orders, shall forthwith prepare, sign, and enter the judgment without awaiting any direction by the court; (2) upon a decision by the court granting other relief, or upon a special verdict or a general verdict accompanied by answers to interrogatories, the court shall promptly approve the form of the judgment, and the clerk shall thereupon enter it. Every judgment shall be set forth on a separate document. A judgment is effective only when so set forth and when entered as provided in Rule 79 (a). Entry of the judgment shall not be delayed for the taxing of costs. Attorneys shall not submit forms of judgment except upon direction of the court, and these directions shall not be given as a matter of course.”
Rule 79(a), F.R.Civ.P., in pertinent part provides:
“ * * * all appearances, orders, verdicts, and judgments shall be entered chronologically in the civil docket on the folio assigned to the action and shall be marked with its file number. These entries shall be brief but shall show * * * the substance of each order or judgment of the court * * *. The entry of an order or judgment shall show the date the entry is made. * * * ”
The decision noted on the docket on April 29, 1968 was not an appealable jixdgment. In the first place it terminated the litigation as to only one of the two defendants named in the complaint and did not contain a determination that there was no just reason for delay or an express direction for the entry of judgment as required by Rule 54(b), F.R.Civ.P., to make it final and appeal-able. And in the second place, it does not appear that the decision was committed to writing, let alone being set forth on a separate document which is, as we have seen, specifically required by Rule 58, F.R.Civ.P.
Nor was an appealable judgment prepared and entered upon the verdict which was rendered against defendant Kennedy on January 9, 1970. It appears that upon a memorandum prepared in part by counsel and in part by the courtroom deputy clerk, the deputy clerk wrote the following words: “Judgment accordingly” following the typed entry “Jurors returned Special Verdict by answering interrogatories: Verdict in favor of Plaintiff in the amount of $35,000.00 and against the defendant, Edmond Kennedy, Jr.” On the docket of the district court there appears under date of January 9, 1970 the following entry: “Minute order verdict in favor of Plff. in sum of $35,-000 against deft., filed.” No final appealable judgment conforming to the Federal Rules of Civil Procedure resulted from these proceedings for two reasons. The first is that no judgment set forth on a separate document as required by Rule 58, F.R.Civ.P., was prepared and signed. And the second is that no notation of a judgment was entered on the docket of the district court as required by Rules 58 and 79(a), F.R.Civ.P.
The provisions of Rule 58 that “Every judgment shall be set forth on a separate document” and “is effective only when so set forth and when entered as provided in Rule 79(a)” in the docket were designed to eliminate just such uncertainty as has arisen in this case as to whether and when a judgment has been rendered and entered which is effective to start the time running for appeal. See Advisory Committee Note to Rule 58, F.R.Civ.P., as amended January 21, 1963, 28 U.S.C.A., Rule 58, Cumulative Annual Pocket Part. These provisions are mandatory in all cases. Jenkins v. United States, 3 Cir. 1963, 325 F.2d 942; Pure Oil Company v. Boyne, 5 Cir. 1966, 370 F.2d 121; Home Federal Sav. & L. Ass’n of Chicago v. Republic Ins. Co., 7 Cir. 1968, 405 F.2d 18, 25. Accordingly, upon the return of the record following the dismissal of the present appeal it will be the duty of the clerk of the district court, by himself or a deputy clerk, to proceed forthwith, as directed by clause (1) of Rule 58 to prepare on a separate document, sign and enter on the docket of the court, a judgment dismissing the complaint as against defendant Wear-Ever Aluminum, Inc., and awarding the plaintiff the sum of $35,000.00 with interest and costs as against the defendant Edmond Kennedy, Jr., thus providing an effective judgment from which the parties may appeal if they desire to do so.
The present appeal will be dismissed.
. As to an appropriate form for such a judgment see Forms 31 and 32 in the Appendix of Forms to the Federal Rules of Civil Procedure.
Question: Is the second listed respondent bankrupt?
A. Yes
B. No
Answer:
|
songer_appsubst
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "sub-state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Florence SHAW, Administratrix of the Estate of Charles Edward Gilbert, Deceased, Appellant, v. Gary F. BOTENS, by his Guardian ad litem, Donald Botens, Defendant, and Nationwide Mutual Insurance Company, Garnishee-Appellee.
No. 17185.
United States Court of Appeals Third Circuit.
Argued Oct. 11, 1968.
Decided Nov. 19, 1968.
Milford J. Meyer, Meyer, Lasch, Hankin & Poul, Philadelphia, Pa. (Louis A. Fine, Honesdale, Pa., on the brief), for appellant.
Hugh J. McMenamin, Warren, Hill, Henkelman & McMenamin, Scranton, Pa. (Walter L. Hill, Jr., Scranton, Pa., on the brief), for appellee.
Before McLAUGHLIN, STALEY and VAN DUSEN, Circuit Judges.
OPINION OF THE COURT
VAN DUSEN, Circuit Judge.
This appeal seeks reversal of a District Court (1) judgment dated January 16, 1968, for plaintiff against the garnishee (Nationwide Mutual Insurance Company) in the amount of $731.09 (representing interest on $25,000. previously paid by the garnishee on account of plaintiff’s June 30, 1966, judgment against defendant of $33,485.08), and (2) order dated December 19, 1967, sustaining objections of the garnishee to most of plaintiff’s garnishment claim. Plaintiff contends that she was entitled to proceed in the garnishment action to recover $8,485.08, with interest thereon, in addition to the above $731.09.
After trial of this automobile accident persona] injury action, claiming damages under the Pennsylvania Wrongful Death and Survival Acts for the death of a passenger, the judgment of June 30, 1966, for plaintiff was entered. The garnishment proceedings were instituted on December 12, 1966. The background facts and the conclusion of the District Court are summarized in the able District Court opinion, Shaw v. Botens, 278 F.Supp. 226 (M.D.Pa.1968), where the following language appears;
“Pursuant to the insurance contract, defendant was represented by counsel of Nationwide’s choice who was entrusted with all phases of the case from investigation through the post trial motions. Defendant did not have private counsel. Plaintiff offered to settle for the policy limits of $25,000, but Nationwide refused. After denial of the post trial motions, Nationwide paid plaintiff the $25,000.
“Plaintiff then filed a praecipe for writ of execution against defendant. The writ directed the Marshal to attach the property of the defendant in the possession of Nationwide as garnishee. * * *
“Plaintiff contends that Nationwide breached its duty of fair representation by rejecting plaintiff’s offer of settlement thereby subjecting defendant to liability for the deficiency between the judgment and the policy limits; that a claim for the breach lies against an insurer; that the claim is assignable and that the attachment worked an assignment; and that the garnishment and interrogatories under Pennsylvania procedure constitute a pleading which states the cause of action of breach of duty of fair representation. Nationwide contends that there is no debt in the present posture of this lawsuit which is attachable through garnishment; and that in effect plaintiff is attempting to set herself up as a third party beneficiary under the insurance contract, which was not intended by either Nationwide or defendant.
“In Gray v. Nationwide Mut. Ins. Co., 1966, 422 Pa. 500, 223 A.2d 8, the Pennsylvania Supreme Court clearly held that an insured has a cause of action in assumpsit against an insurer which subjects the former to liability by virtue of a breach of the fiduciary duty of good faith representation. In Gray, there was an actual assignment to the injured party of the insured’s rights against the insurer, which the court held to be a proper assignment. The question presented here is whether under the doctrine of equitable assignment and by means of garnishment proceedings, plaintiff is permitted to pursue the same course without an actual assignment.
“Plaintiff has cited no Pennsylvania authorities for her contention and this court has found none. The question which is basic to all others is whether there existed, either actually or potentially, a right or debt of defendant capable of being enforced by plaintiff. This court believes the answer must be that the claim, if it exists, has not matured to the point where it is enforceable through garnishment proceedings.” (278 F.Supp. 227-28)
This is not a case where the plaintiff is making a mere general contention that the insurer has not acted in good faith and with due care, since the record contains, in affidavit form, the following detailed statement of the plaintiff’s principal claim in the execution proceeding:
“4. Upon institution of this action said Insurance Company retained Hugh J. McMenamin, Esquire, to represent both it and the defendant in the action and said attorney did in fact so represent both in the defense of this action;
“5. During the pendency of the primary action and prior to and during the trial thereof offers were made by plaintiff’s attorneys to Mr. Mc-Menamin to compromise and settle the same for an amount within the coverage of the said policy;
“6. At all times aforesaid Mr. McMenamin refused said offers and failed or refused to disclose the amount of insurance coverage under the said policy;
“7. On June 30, 1966, after the trial of the primary action, judgment was entered in favor of the plaintiff and against the defendant in the sum of $33,485.08;
“8. An attachment execution naming the said Insurance Company as garnishee has been issued on the said judgment and served upon it;
“9. By reason of the failure of garnishee to act in good faith in the defense and settlement of the primary action, the defendant therein has incurred a judgment which is in excess of the limits of coverage in the said policy and a cause of action has accrued to the defendant against the garnishee for the amount in which the judgment exceeds the policy coverage;
“10. Plaintiff’s attachment has effected an assignment of the said cause of action from defendant to plaintiff;”
The Pennsylvania Supreme Court has held that the failure of an insurer to comply with its obligation to act in good faith and with due care in representing the interests of the insured constitutes a breach of a contractual obligation “for which an action in assumpsit will lie.” See Gray v. Nationwide Mutual Insurance Company, 422 Pa. 500, 223 A.2d 8, 11 (1966). The Gray case held, further, that this contractual obligation was assignable by the insured to a plaintiff having secured a judgment in a personal injury action against the insured.
The Pennsylvania Procedural Rules provide that a writ of execution is available to attach a debt owed by the garnishee to the defendant. See Rules 3101(b) (1) and 3102, 12 P.S.Appendix. As stated in paragraph 6 of the comments to these execution rules, they “provide a method for the attachment of the debt itself” and “The scope of attachment is also enlarged to include tangible or intangible property of the defendant in the custody, possession or control of a garnishee.” Rule 3148(a) provides: “A judgment entered against the garnishee * * * shall (1) be in the form of a money judgment if the garnishee owes a debt to the defendant.”
The Pennsylvania Supreme Court has held that attachment works “an assignment to the plaintiff of the debt due to the defendant from the garnishee.” See In re Boyd’s Estate, 394 Pa. 225, 242-243, 146 A.2d 816, 825 (1958), and cases there cited. The Supreme Court of Pennsylvania has permitted attachment of amounts due under the terms of an insurance policy to a judgment debtor by the plaintiff who holds such judgment. See Boyle v. Franklin Fire Insurance Company, 7 W. & S. 76 (1844); Girard Fire & Marine Insurance Co. v. Field, 45 Pa. 129 (1863) ; Fritchie v. Miller’s Pa. Extract Co., 197 Pa. 401, 47 A. 351 (1900). In the Fritchie case, judgment was recovered by the representative of a minor child of a decedent against his employer. An attachment execution was issued against an insurance company which had insured the employer against all liability for damages on account of injuries suffered by its employees up to the amount of $1500. and which had contested its liability under the policy. The court used this language at page 404 of 197 Pa., 47 A. at page 351, in affirming judgment of liability against the insurance company garnishee:
“The only defense of the insurance company to the case at bar is, (1) that it has not consented to an assignment of any interests of the insured to the plaintiff, and (2) that the insured has not suffered any loss, and therefore cannot give to the plaintiff any better right against the insurer than it would have. The defense, however, is not an answer to the judgment against the insured, nor an obstruction to the issuance of an attachment execution, and a service of the same upon the insurer as garnishee. There is nothing in the policy which would justify a denial to the plaintiff of any rights secured to her, for the use of Maria Fritchie, or in the judgment entered by the court below; nor is there anything in the attachment execution and the service thereof upon the insurer as garnishee, which furnishes any just cause for complaint.”
The District Court’s conclusion that the claim had not matured sufficiently to make garnishment proceedings available because the insured defendant had not taken any steps to assert a claim and the garnishee insurance company had not conceded that it had violated its obligation to act in good faith and with due care in representing the interests of the insured does not appear to be consistent with the foregoing decision in the Fritchie case. The claim became definite and liquidated by the refusal of the insurer to settle prior to the entry of the June 30, 1966, judgment and the entry of that judgment in a definite amount, provided that plaintiff can establish its allegations that such insurer-garnishee failed “to act in good faith in the defense and settlement of the primary action” (par. 9, supra, at page 152).
Furthermore, the Pennsylvania appellate courts have consistently determined the validity of alleged claims against an insurer-garnishee in garnishment proceedings in which such a garnishee has contested (as does the garnishee in this case) its liability under the policy. See, e. g., Paul v. Dwyer, 410 Pa. 229, 188 A.2d 753 (1963); Dariano v. Blacksom, 389 Pa. 96, 132 A.2d 186 (1957) ; Vrabel v. Scholler, 369 Pa. 235, 85 A.2d 858 (1952).
In making the difficult determination of what ruling the Pennsylvania appellate courts would make in this situation (where there are no cases precisely in point), we agree with appellant that the use of garnishment proceedings in this case is consistent with this language in the Gray case, supra, at page 12 of 223 A.2d:
“If we permit the assignment in eases such as the one at bar, bankruptcy proceedings would be unnecessary; the insured, after a judgment has been rendered against him, can follow the more simple and less expensive procedure of assigning the cause of action against the insurer, directly, to his judgment creditor.”
Also, the following language from the Gray case (page 13 of 223 A.2d) negatives appellee’s contention that the use of the garnishee process to determine the validity of this alleged claim under the policy would defeat “the express purposes of Gray” (page 9 of appellee’s brief):
“As Judge Hoffman so ably reasoned in his dissenting opinion: ‘The fears of the lower court are unwarranted. The possibility of collusion between a judgment holder and an insured is no way increased by an assignment. If the insured’s liability on the judgment is not affected by the assignment, the interests of the parties are similarly unaffected. Whether the action would be brought in the name of the policyholder or in the name of the assignee, the policyholder would be intent upon relieving himself of the excess judgment, and the assignee would be seeking to secure the balance due him. If the insured’s liability is terminated by the assignment, as in the present case, the possibility of collusion is more remote. Having been relieved of the judgment, the insured no longer has any pecuniary interest in the outcome of the litigation.’ Gray v. Nationwide Mutual Insurance Co., 207 Pa.Super. at 10, 11, 214 A.2d at 639. (Dissenting opinion by Hoffman, J., in which Ervin, P. J., and Watkins, J., joined.)
“Permitting an insured to assign his claim to the injured claimant would put the claimant on more of an equal footing with the insured’s insurance company in settlement negotiations without tipping the balance against an insurer who could still refuse to settle in good faith. ‘This result may seem anomalous in that the plaintiff, who previously offered to settle his claim for $5,000, has now acquired the right to maintain against defendant insurer an action which arose by reason of that offer to settle. But it must be borne in mind that plaintiff merely stands in the shoes of the insured; it is the insured who has allegedly suffered the wrong at the hands of the insurer. It might be said that the result reached herein will cause more injured claimants to propose settlement for the policy limit when the insurance company is defending the action against an insured who is apparently judgment-proof. Yet the insurer has nothing to fear so long as its refusal to settle is made in good faith. And it is fundamental that the law favors settlements’. Brown v. Guarantee Insurance Company, [155 Cal.App.2d 679] 319 P.2d 69, 79, [66 A.L.R.2d 1202] (Emphasis added.)”
We conclude that the Pennsylvania garnishment proceeding is available to determine the validity of the alleged claim of the judgment debtor against the garnishee-insurer. The judgment of January 16, 1968, and the order of December 19, 1967, will be vacated and the case remanded to the District Court for further proceedings consistent with this opinion.
. The insurance policy issued by the insurer-garnishee includes virtually identical language to that in the policy before the court in Gray supra (see footnote 2 at 223 A.2d 9), as follows (V (2) at pp. 4-5 of policy attached to Document 27):
“ * * * the Company shall:
“(a) defend with counsel of its choice any suit against a person entitled to protection alleging such injury, sickness, disease or destruction and seeking damages on account thereof. Such suit shall be defended even if groundless, false or fraudulent. The Company may make any investigation, negotiation and settlement of any claim or suit as it deems expedient; sis * * * *
“(d) pay all interest on the entire judgment accruing after entry of judgment until the Company has paid, tendered or deposited in court such part of such judgment as does not exceed the limit of the Company’s liability thereon; * * * * *
“Payments under this insuring agreement, except settlement of claims and suits, are in addition to the applicable policy limits.”
. Rules 3144 and 3145 of the Pennsylvania Rules of Civil Procedure make clear that the Interrogatories filed by plaintiff, together with the Answers to them, if ordered by the District Court, will constitute the pleadings in the contract action between plaintiff and the garnishee-insurer. The Pennsylvania Rules give ample protection to the defendant as well as the garnishee (Rules 3119, 3121, 3123, 3140, 3143(f), 3147, and 3149) and the Pennsylvania cases make clear that the judgment of June 30, 1966, against the defendant will be satisfied if the garnishee pays the balance due or settles the claim with the plaintiff. See Gretz v. Esslingers, Inc., 428 Pa. 90, 236 A.2d 508 (1967).
. In this case the court used this language at pp. 131-133:
“The same question is presented in each of these cases, and it is whether an unadjusted and unliquidated claim for a loss upon a policy of insurance against fire, is subject to attachment in the hands of the insurance company. * * * The District Court held the claim attachable, and the company brought these writs of error.
“The objection to a recovery for such a reason seems technical in these cases, for there was no difference or dispute about the amount of the loss. It was settled on the proofs presented by the insured, without reference to the arbitrament provided for in the regulations attached to the policy in the case of dispute, or to the jury at the trial. It was settled by calculation, but notwithstanding this, it was insisted here that the claim was in the class of unliquidated damages when the writ was issued, and being so, was not subject to be attached.
“We agree with the District Court in their judgment on the point that it was attachable.
$ * * $ $
“When a loss by fire has taken place, can we doubt but that the sum agreed to be paid by the insurers, in consideration of the premium paid, is prima facie ‘goods and effects,’ and is parcel of the ‘personal estate’ of the defendant? Because it is a chose in action, it is not therefore outside of the meaning of these terms. * * * But the difficulty is not this under the attachment process. It is that the amount is unliquidated, and for this reason it is supposed not to be within the meaning of the act. But this will not hold; otherwise debts due for goods sold and delivered, or work, labour, and services done and performed without the price being fixed, might not be attachable. Barge debts on book-account might escape the process, which I do not believe has ever been considered to be the law.
“ * * * but I think what was said in Fisher v. Consequa, 2 W.C.C.Rep. 382, in defining the foundation of the process, very well defines also to what it may be applied; that is, to ‘a demand arising ex contractu, the amount of which was ascertained, or which was susceptible of ascertainment by some standard referrable to the contract itself, sufficiently certain to enable the plaintiff by affidavit to aver, or a jury to find it, might be the foundation of a proceeding by way of foreign attachment, without reference to the form of action, or the technical definition of debt, the expression used in the law.’ ”
. Neither the District Court nor appellee has referred to any provision in the policy precluding garnishment of this alleged claim. In Gray v. Nationwide Mutual Insurance Company, 207 Pa.Super. 1, 214 A.2d 634, 639 (1965), the Pennsylvania Superior Court cited in its dissenting opinion, which was approved by the Pennsylvania Supreme Court, the many Pennsylvania cases holding that policy provisions against its transfer without the insurer’s consent do not preclude assignment of claims for damages after the loss has occurred and rights under the policy have accrued.
. Estate of Warren L. Loose, Opinion of 1/29/68 (#51,115, O. C. Berks, Pa.), reaches this conclusion. Cases from other jurisdictions on this issue, which have differed in their results, are cited in Meyer, “Gray v. Nationwide and Beyond,” 71 Dick.L.Rev. 257, 260-65 (1967); see, also, Seider v. Roth, 17 N.Y.2d 111, 269 N.Y.S.2d 99, 216 N.E.2d 312 (1966); General Guaranty Insurance Co. of Fla. v. DaCosta, Fla.App., 190 So.2d 211 (1966). It is noted that the Pennsylvania Supreme Court has not been impressed by decisions from other states on the subject of attachment. See Girard Fire & Marine Insurance Co. v. Field, supra, where the court said at page 134:
“Authorities in other states were cited on argument, but we derive little light from them, as the attachment laws of the several states differ essentially amongst themselves and from, ours, # * $ ff
Question: What is the total number of appellants in the case that fall into the category "sub-state governments, their agencies, and officials"? Answer with a number.
Answer:
|
songer_appfed
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. The SCAM INSTRUMENT CORPORATION, Respondent.
No. 16599.
United States Court of Appeals Seventh Circuit.
May 15, 1968.
Rehearing Denied June 26, 1968.
Marcel Mallet-Prevost, Asst. Gen. Counsel, Allison W. Brown, Jr., Burton L. Raimi, Attorneys, N. L. R. B., Washington, D. C., Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, for petitioner.
George L. Plumb, Chicago, Ill., Peer Pedersen, Chicago, Ill., for respondent; Pedersen & Houpt, Chicago, Ill., of counsel.
Before KNOCH, Senior Circuit Judge, and CASTLE and KILEY, Circuit Judges.
CASTLE, Circuit Judge.
This case is before the Court upon the petition of the National Labor Relations Board to enforce an order of the Board issued on May 8, 1967, against the respondent, The Scam Instrument Corporation. The Board’s decision and order are reported at 163 NLRB No. 39.
The Board found and concluded that Scam violated Section 8(a) (5) and (1) of the National Labor Relations Act, as amended, by unilaterally modifying the benefit payment schedule of a group health insurance policy which Scam was required to carry for its employees under its collective bargaining agreement with the Union representing the production and maintenance employees in Seam’s Skokie, Illinois plant. The Board further concluded that the change in insurance benefits so effected constituted a modification of the collective bargaining agreement in violation of the requirements of Section 8(d) of the Act. The Board’s order requires Seam to cease and desist from unilaterally modifying the existing terms and conditions of employment and from unilaterally modifying the collective bargaining agreement without complying with the provisions of Section 8(d). Affirmatively, the order requires Scam to remove, retroactively, the rider modifying the insurance benefits, to make its employees whole for any loss suffered, and to post designated notices.
The record discloses that the collective bargaining agreement between Scam and the Union covering the two year period ending September 1, 1966, contained a provision obligating Scam to maintain during such contract period certain insurance coverage for the employees represented by the Union. The particular coverages and the benefits payable were set forth in an attached schedule. The employee coverage was furnished at Scam’s expense, but the monthly cost to an employee for medical and hospital services coverage for dependents was $9.-82 for an employee with one family member, and $15.78 for an employee with two or more family members. Except in the case of the “major medical” coverage neither the bargaining agreement nor the insurance policy contained a “nondupli-cating” provision allowing the benefits to be reduced by amounts the employee received from coinsurance obtained from other sources. Neither the agreement nor the policy reserved to Scam or its insurance carrier a right to modify the insurance coverage or benefits during the contract period.
In February 1965, without notification to or consultation with the Union, Seam and its insurance carrier agreed to the addition of a rider to the insurance policy. The rider issued in late February. It added a “nonduplieating” provision to the policy applicable to the medical and hospital services benefits. The rider provided for a reduction in the scheduled benefit payment in event a benefit was payable (or the item of hospital or medical service was furnished) because of like coverage of the employee or his dependent under some other group insurance or group benefit system involving participation by an employer in the form of contributions or payroll deductions. It provided like reduction in the scheduled benefit where the other benefit was due' to coverage afforded by any statute.
The Union first became aware of the policy change in early May 1965, when a Scam employee reported receiving a reduced insurance payment, and upon investigation a Union representative discovered that the rider had been added to the policy. Scam’s personnel manager when questioned about the change promised to investigate and assured that Scam would make restitution if shortages existed and that it was unnecessary to file a grievance. On May 18, Scam asked its insurance carrier to remove the rider retroactively from the policy. The carrier complied. This action, however, was not conveyed to the Union at the time, and on June 3, the rider was reinstated at Scam’s request.
On June 30, pending differences concerning insurance benefits payable to two of Scam’s employees remained unresolved and a grievance was filed under the grievance and arbitration provision of the contract. The grievance procedures culminated in the appointment of an arbitrator. The hearing before the arbitrator was postponed at the joint request of the parties pending disposition of the Board proceeding initiated by the July 14, 1965, charge filed by the Union.
Substantial evidence, on the record considered as a whole, establishes that the effect of the rider was to reduce substantially, in some instances, the insurance benefits otherwise receivable by employees where other insurance coverage existed in addition to that provided by Scam.
In support of its position in opposition to enforcement of the Board’s order Scam states that the reason for the addition of the rider arose because of the increasing number of employed women who are covered by union negotiated insurance while at the same time being covered as a dependent under their husbands’ union negotiated insurance and that an unintended dollar profit results from this double coverage which can in no way be considered as a bargained for employee benefit since it affects only a small number of employees and its payment does not flow from any of the traditional concerns that are normally an express subject of discussion between an employer and its employees. And on this basis, and the lack of disclosure by the record of any history of bargaining between the Union and Scam expressly directed to the factor of whether the employee insurance benefits should be either duplicating or nonduplicating, Scam argues that this particular phase of the employee insurance program does not fall within the scope of “other terms or conditions of employment” as that language has been construed and applied in cases such as Inland Steel Co. v. N. L. R. B., 7 Cir., 170 F.2d 247, 250-251, 12 A.L.R.2d 240 and W. W. Cross & Co. v. N. L. R. B. 1 Cir., 174 F.2d 875, 878. Scam contends that “there is a vast difference between an employer’s duty to bargain concerning the existence or the extent of benefits to be provided by an insurance plan and an employer’s duty to bargain concerning the dollar profit that may be received by an employee over and above the actual cost of the medical treatment received by the employee”.
But here the issue presented does not concern mandatory duty to bargain. In its collective bargaining agreement with the Union Scam had agreed to the employee insurance program incorporating the specific benefit payments set forth in the schedule. The “basic” benefit payments so scheduled were not made subject to a qualification that duplicating insur-anee coverage would serve to effect a reduction in the amounts otherwise allowable. And once the maintenance of that insurance program and the specific benefits payable thereunder became an obligation of Scam under its collective bargaining agreement that program and those benefits constituted a part of the terms and conditions of employment for the contract period involved.
Whatever merit or intrinsic equity a “nonduplicating” feature may possess, insofar as insurance programs maintained by different employers are concerned, is beside the point. The benefits here payable were frozen as a term or condition of employment for the contract period involved absent mutual consent of the contracting parties to their alteration or qualification, or compliance with the provisions of Section 8(d). They were not subject to the unilateral reduction Scam effected, without notice to or consultation with the Union, by means of the rider it requested of its insurance carrier. The reductions so effected were not without substantial impact although they affected only those of the employees who were the beneficiaries of additional employer-participating coverage and who happened to incur medical or hospital expenses covered by both of the insurance programs. We are of the opinion that the Board was correct in concluding that the unilateral change in benefits effected by Scam constituted an unfair labor practice violative of Section 8(a) (5) and (1) and of Section 8(d) of the Act.
And, the Board’s power to entertain the charges and to afford a remedy for the unfair labor practice found to exist was not precluded by the availability or the invocation of the contract’s grievance and arbitration provisions. Carey v. Westinghouse, 375 U.S. 261, 84 S.Ct. 401, 11 L.Ed.2d 320; N. L. R. B. v. Acme Industrial Co., 385 U.S. 432, 87 S.Ct. 565, 17 L.Ed.2d 495.
Accordingly, it is ordered that the order of the Board be enforced.
Enforcement ordered.
. Local 1031, International Brotherhood of Electrical Workers, AFL-CIO.
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_source
|
A
|
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.
SINCLAIR REFINING CO. v. REFINERS OIL CO.
No. 6571.
Circuit Court of Appeals, Sixth Circuit.
March 11, 1935
H. H. Altick and W. M. Matthews, both of Dayton, Ohio (Matthews & Matthews, of Dayton, Ohio, and W. R. Allen, of Chicago, 111., on the brief), for appellant.
Samuel S. Markham, of Dayton, Ohio (Irvin G. Bieser and McMahon, Corwin, Landis & Markham, all of Dayton, Ohio, on the brief), for appellee.
Before HICKS, SIMONS, and ALLEN, Circuit Judges.
ALLEN, Circuit Judge.
Action by appellant for money claimed to be due for gasoline purchased under a written contract. Two defenses were interposed: First, payment in full; second, accord and satisfaction. The case was tried to a jury which returned a verdict for ap-pellee.
The pertinent terms of the contract are as follows:
“Price based on the official tank wagon market price of the Standard Oil Company of Ohio of 17$ per gallon on gasoline as prevailing in Dayton, Ohio, as of October 22nd, 1923, and is to take full advance or decline of such tank wagon market price. Such advance or decline to be applied only when effective in the majority of said Standard Oil Company of Ohio stations in Ohio.”
Appellant contends that under this provision, during the period from June 24, 1924, to July 22, 1924, inclusive, the official tank wagon market price of the Standard Oil Company of Ohio was 19 cents per gallon. Appellee contends that it was 19 cents per gallon on all deliveries under 500 gallons in amount; that over that amount the price was 17 cents per gallon; that appellee was a quantity consumer, and hence required' to pay only the wholesale price. It is conceded that during this period both a wholesale and a retail price were charged by the Standard Oil Company of Ohio. If appel-lee’s contention is correct, and if the wholesale price falls within the terms of the contract above-given, appellant has been paid in full. ■ -
Two principal errors are urged:
(1) That the court erred in refusing to instruct the jury to return a verdict in favor of appellant upon its motion made at the close of all the evidence.
(2) That the court erred in refusing to dismiss the second defense.
The construction of an unambiguous contract is for the court. Empire Fuel Co. v. Lyons, 257 F. 890 (C. C. A. 6); Hurin v. Electric Vacuum Cleaner Co., Inc., 298 F. 76 (C. C. A. 6); Standard Oil Co. v. Wright Oil Service Co., 26 F.(2d) 895 (C. C. A. 4). However, when such construction depends not merely upon the language used, but upon collateral facts and the inference to be drawn therefrom, the question becomes one of fact or a mixed question of law and fact.Rankin v. Fidelity Trust Co., 189 U. S. 242, 252, 253, 23 S. Ct. 553, 47 L. Ed. 792; Canadian National Ry. Co. v. George M. Jones Co., 27 F.(2d) 240 (C. C. A. 6); Hettrick Mfg. Co. v. James A. Shepherd & Co., 295 F. 10 (C. C. A. 6).
Here it was competent to show, and it was shown, that in the particular trade the words “official tank wagon market price of the Standard Oil Company of Ohio” had a peculiar and special trade meaning, and that the parties being members of that trade must have understood the words in that special sense. Western Petroleum Co. v. Tidal Gasoline Co., 284 F. 82 (C. C. A. 7).
In accordance with these rules, both parties introduced testimony as to the meaning of the phrase. Two witnesses for appellant defined the term respectively as “the official price set by the proper authorities," and “the published price as announced by the Standard Oil Company of Ohio from time to :time as the price changed.” ■ Another witness for appellant said that “the best evidence of the official tank wagon price of the Standard Oil of Ohio at any given time was the Standard Oil Company of Ohio itself.”
On behalf of appellee, the manager of the bulk station sales department of the Standard Oil Company of Ohio defined the phrase as the “price at our bulk plant * * * the delivered price to the filling station or service station, to the dealer.” He identified and read an official letter authorized by the board of directors of the Standard Oil Company of Ohio and sent out by the marketing committee on June 17, 1924, placing in effect- as of June 23, 1924, two official tank wagon market prices, one a wholesale price of 17 cents for all purchases over 500 gallons, the other a price of 19 cents for purchases of less than that amount, effective in all bulk stations in Ohio for the period in controversy, which prices were announced to the division managers throughout the state. This evidence was not ■controverted, and was corroborated in material points by two other officials of the Standard Oil Company. Statements made that the tank wagon market price as published in trade journals during this time was 19 cents without any different wholesale rate are not conclusive, as against this testimony coming from witnesses for both parties.
It is urged that prior to June 23, 1924, a wholesale tank wagon market price had never been placed in effect by the Standard Oil Company of Ohio. Since the parties chose to contract for a price to be fixed in the future by the authorities of the Standard Oil Company of Ohio, they contemplated whatever price or prices, wholesale or retail, these authorities might fix.
The court did not err in submitting the •case to the jury.
Upon the second point, we do not consider the question of accord and satisfaction. The record does not contain the charge of the court, and hence does not disclose that the second defense of the amended answer was submitted to the jury.
The judgment of the District Court is affirmed.
Question: What forum heard this case immediately before the case came to the court of appeals?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Court of Customs & Patent Appeals
H. Court of Claims
I. Court of Military Appeals
J. Tax Court or Tax Board
K. Administrative law judge
L. U.S. Supreme Court (remand)
M. Special DC court (not the US District Court for DC)
N. Earlier appeals court panel
O. Other
P. Not ascertained
Answer:
|
songer_dissent
|
1
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the number of judges who dissented from the majority (either with or without opinion). Judges who dissented in part and concurred in part are counted as dissenting.
Barbara E. KIMMEL, Administratrix of the Estate of Frank C. Kimmel, Deceased, v. YANKEE LINES, a Corporation, Appellant.
No. 11511.
United States Court of Appeals Third Circuit.
Argued March 10, 1955.
Decided July 15, 1955.
Hastie, Circuit Judge, dissented.
Robert E. Kline, William C. Walker, Pittsburgh, Pa. (Dickie, McCamey, Chil-cote, Reif- & Robinson, Pittsburgh, Pa., on the brief), for appellant.
A. H. Rosenberg, Pittsburgh, Pa. (Rosenberg & Rosenberg, Pittsburgh, Pa., on the brief), for appellee.
Before McLAUGHLIN, STALEY and HASTIE, Circuit Judges.
McLAUGHLIN, Circuit Judge.
Plaintiff’s decedent was killed as a result of a collision in Pennsylvania between the automobile he was operating and a tractor trailer owned by and operated for appellant: Nine months after this action' had been commenced' suits were filed in the' state court on behalf of the passengers in the Kimmel car against plaintiff as administratrix of her deceased husband’s estate and Yankee Lines. Those cases' were consolidated and tried. The jury found negligence on the part of both Kimmel and Yankee Lines and awarded verdicts against both defendants. The state trial judge on motion entered judgment n. o. v. in favor of Yankee Lines and allowed the verdicts against Kimmel to stand. This suit was tried thereafter in due course and resulted in a verdict in favor of the plaintiff.
On motions for a new trial and for judgment n. o. v. appellant urged that the verdict in the federal court was against the weight of the evidence and that the state court judgment had resolved the issue of negligence making it res ad judicata.
The first point need not concern us long. There was evidence from which the jury could have concluded as it did that the Yankee Lines driver caused the accident by his negligence and that Kimmel was not contributorily at fault. Those were matters for the jury.
Since this is a diversity case we look to Pennsylvania law for the answer to the second question, whether recovery here is barred by the state court judgments. There is no appellate opinion directly in point but a common pleas decision of that state which is quite close to the situation before us squarely holds that a verdict against two joint defendants in an action such as the state court suit above mentioned does not foreclose the negligence issue as to the defendants in a later suit between them. Chenger v. Peccan, 1953, 88 Pa.Dist. & Co. 186. That opinion, while not controlling, is entitled to some weight. National Foam System v. Urquhart, 3 Cir., 1953, 202 F.2d 659.
The common pleas decision relied on Section 82 of the Restatement of Judgments, which says:
“The rendition of a judgment in an action does not conclude parties to the action who are not adversaries under the pleadings, as to their rights inter se upon matters which they did not litigate, or have an opportunity to litigate, between themselves.” (Emphasis supplied.)
An illustration given under Comment b to this section is particularly apropos to our case:
“1. A and B are driving automobiles, which collide. C, a passenger in B’s car, sues A and B. Whether the judgment is in favor of or against C as to either or both A and B, the issues as to negligence or other element of the cause of action are not res judicata in a subsequent action by A against B for damage to his car.”
Appellant leans heavily on Simodejka v. Williams, 1948, 360 Pa. 332, 62 A.2d 17. In that case, however, the former suit arose under Pennsylvania’s third-party practice rule. Thus instead of the parties being co-defendants in the first suit they were adversaries, i. e. third-party plaintiff and third-party defendant. On this basis the Pennsylvania Supreme Court properly distinguished the Restatement’s nonadversary rule as well as an earlier Pennsylvania case, Jordan v. Chambers, 1910, 226 Pa. 573, 75 A. 956, which had refused to apply the doctrine of res adjudicata in a subsequent suit between two co-defendants who had been successful in an ejectment action brought against them.
This is not the first time the federal courts have applied Pennsylvania law to this particular problem. In Hassenplug v. Victor Lynn Lines, 3 Cir., 1947, 163 F.2d 828, affirming, D.C.E.D.Pa.1947, 71 F.Supp. 70, the representatives of a deceased automobile passenger had recovered a judgment against decedent’s driver and the owner of a truck, the latter being the second vehicle involved in the fatal collision. This court, in a per curiam affirmance, refused to apply the doctrine of res adjudicata in the subsequent suit brought by decedent’s driver against the truck owner. In Greer v. Stanislau, D.C.E.D.Pa.1953, 118 F.Supp. 494, two automobiles collided on the streets of Philadelphia. A land owner brought suit for damages in the Municipal Court of Philadelphia County against the two drivers as joint tortfeasors. Greer did not contest the action and the jury returned a verdict against Greer but exonerated Stanislau. Greer then sued Stanislau in the federal district court. The latter’s motion to dismiss, on the res ad-judicata ground was denied. In his opinion Judge Ganey cited the Simodejka case, quoted Section 82 of the Restatement of Judgments and concluded: “We think the Pennsylvania Courts would follow this section of the Restatement.” The Greer case was not appealed. See also Hornstein v. Kramer Bros. Freight Lines, 3 Cir., 1943, 133 F.2d 143.
Exactly the same problem was before the Minnesota Supreme Court in Bunge v. Yager, 1952, 236 Minn. 245, 52 N.W. 2d 446, 451. What that court said about its contribution and cross-claim procedure could also be said by us about the law of Pennsylvania:
“Our statutes, as well as our new rules, simply provide a method whereby the right's and liabilities of co-parties mazy be litigated in an action in which they are aligned on the same side of the litigation, thereby preventing a multiplicity of suits. But where action is not taken to bring co-parties into an adversary relationship, their rights and liabilities as against each other are not ■ determined, nor is the determination of their liability to a third party a bar to a subsequent action by one of the codefendants against the other to recover damages which he may have suffered as a result of the same tort.” (Emphasis supplied.)
For cases in other jurisdictions to the same effect, see 152 A.L.R. 1066-1072 (1944); 9 Blashfield, Cyclopedia of Automobile Law-and Practice, Section 5835 (1955).
There is more than technicality behind the Restatement illustration. The state court suits were brought to obtain compensation for injuries suffered by the passengers in the present plaintiff’s car. The right of contribution which either defendant there might have been able to assert against the other is entirely collateral to the subject matter of the present cause of action based upon the personal injuries and wrongful death suffered by plaintiff’s decedent. The fact is that no such contribution right was asserted under the pleadings. Nor did plaintiff assert in the prior suit a separate cross-claim against her co-defendant for the injuries and death suffered by her decedent. Plaintiff, acting within Her rights, chose to remain in a non-adversary position with her co-defendant in the first suit. To preclude her now from litigating her cause of action would in effect superimpose a mandatory cross-claim rule on Pennsylvania practice.
We think the Restatement rule is sound and that the Pennsylvania courts would follow it. The judgment below will be affirmed.
. “When Williams, in answering George’s [the plaintiff in the first suit] complaint, also brought in Michael as additional defendant, he, Williams, pursuant to Rule 2255 [of the Pennsylvania rules] [12 P.S. Appendix], became a plaintiff as against Michael and Michael became a defendant opposed to Williams; * * * in other words, as the rule provided, they became adverse parties as to each other * Simodejka v. Williams, supra, 360 Pa. at page 335, 62 A.2d at page 18.
. Appellant also urges upon us Section 68 of the Restatement of Judgments which pertains to the doctrine known as “collateral estoppel”. That contention was also made before the Minnesota Supreme Court. As there indicated, Section 68 must be read in conjunction with Section 82. When that is done it is clear that the collateral estoppel doctrine is likewise limited to subsequent suits between adverse parties in the prior suit or their privies. Any exception to this principle such as where a person has accepted the benefits of a prior judgment bears no relevancy to the instant situation. Cf. Livesay Industries v. Livesay Window Co., 5 Cir., 1953, 202 F.2d 378, certiorari denied 346 U.S. 855, 74 S.Ct. 70, 98 L.Ed. 369. National Bondholders Corp. v. Seaboard Citizens Nat. Bank, 4 Cir., 1940, 110 F.2d 138, while containing broader language, is factually sui generis.
. Mere assertions in separate answers that the other defendant is the one at fault does not make the defendants adversaries. Pearlman v. Truppo, 1932, 10 N.J.Misc. 477, 159 A. 623; see also Cooke v. Kilgore Mfg. Co., D.C.N.D.Ohio, 1954, 15 F.R.D. 465.
Question: What is the number of judges who dissented from the majority?
Answer:
|
songer_r_subst
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "sub-state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Eugene Richard CYGAN, Administrator of the Estate of Eugene Frank Cygan, deceased, Plaintiff-Appellee, v. CHESAPEAKE & OHIO RAILWAY CO., a Virginia Corporation, Defendant-Appellant.
No. 14280.
United States Court of Appeals Sixth Circuit.
June 30, 1961.
Robert A. Straub, Detroit, Mich., for’ appellant.
James A. Markle, Detroit, Mich., for appellee.
Before MILLER, Chief Judge, and CECIL and O’SULLIVAN, Circuit Judges.
O’SULLIVAN, Circuit Judge.
Defendant-Appellant, Chesapeake & Ohio Railway Company, appeals from a judgment for $15,000.00, entered upon a jury verdict in favor of plaintiff-appellee, Eugene Richard Cygan, Administrator of the Estate of Eugene Frank Cygan, deceased. The action arose out of the death of Eugene Frank Cygan, the two and one-half year old son of the plaintiff-administrator, following such child’s fatal injuries inflicted when struck by the engine of a freight train operated by the defendant railroad. The accident occurred at the crossing of the railroad tracks with what the railroad claims was the right of way of Tireman Avenue, a street in the City of Detroit, Michigan. The deceased child, walking easterly, had approached the railroad tracks along a sidewalk on the south side of Tireman Avenue, and from the easterly end of such sidewalk had proceeded, walking or crawling, along a path extending across the tracks on the line of the sidewalk onto the tracks of defendant, where he was sitting when struck by defendant’s engine.
Plaintiff charged defendant with negligence, first in the claimed failure of the engine crew to make timely discovery •of the child and to exercise due care after they did discover the presence of the •child, and, second, in failing to have fenced its right of way at the point of the fatal accident. The district judge ■submitted both of plaintiff’s theories of recovery to the jury. The jury rendered .a general verdict for plaintiff. On this .appeal, defendant charges error only in the submission of the question of claimed negligence of defendant in failing to have erected a fence along its said right of way. Under the law of Michigan, and under decisions of this and other circuits, a new trial must be granted if there was error in submitting either of plaintiff’s theories of liability. Winnie v. Lake Shore, etc., R. Co., 160 Mich. 334, 125 N. W. 351; Detroit, T. & I. R. Co. v. Banning, 6 Cir., 1949, 173 F.2d 752, 755; See also Wilmington Star Mining Co v. Fulton, 205 U.S. 60, 77-79, 27 S.Ct. 412, 51 L.Ed. 708; Rashaw v. Central Vermont Ry., 2 Cir., 1943, 133 F.2d 253, 256; Northern Pac. Ry. Co. v. Haugan, 8 Cir., 1950, 184 F.2d 472, 478, 481; Atlantic Coast Line R. Co. v. Tiller, 4 Cir., 1944, 142 F.2d 718, 722.
A Michigan statute requires every railroad to erect and maintain fences on each side of its right of way (Mich.Stat.Anno. § 22.274, C.L.1948, § 466.15). The Supreme Court of Michigan has held that notwithstanding such statute, a railroad is not required to maintain such fences within the limits of its railroad yard. Katzinski v. Grand Trunk Ry. Co., 141 Mich. 75, 104 N.W. 409; Hoover v. Detroit, G. H. & M. Ry. Co., 188 Mich. 313, 154 N.W. 94; Rabidon v. Chicago & W. M. R. Co., 115 Mich. 390, 73 N.W. 386, 39 L.R.A. 405. Defendant asserts that railroads are also excused from the fencing requirement of the statute where its tracks cross a street or other public way. In the case of Hyman v. Ann Arbor Railroad Company, 141 Mich. 84, 104 N. W. 375, a railroad was held liable in damages where it erected an embankment and a fence along its right of way blocking an adjoining landowner from passage across the railroad tracks along the way of a street delineated on a recorded plat. The court held that the landowner was entitled to damages for such obstruction, irrespective of whether the streets on the plat had ever been legally accepted by the city or had been opened, repaired, or improved. Defendant claims that evidence established that Tireman Avenue existed as a public street across its tracks, at the place of the fatal accident, and that under the decision of Hyman v. Ann Arbor Railroad Company, supra, it had neither the right nor the duty to fence its right of way so as to close off passage across its tracks at that point. Cases more specifically dealing with this claimed exception to a railroad’s duty to fence its right of way are cited by defendant. Long v. Central Iowa Ry. Co., 64 Iowa 657, 21 N. W. 122; Lathrop v. Central Iowa Ry. Co., 69 Iowa 105, 28 N.W. 465; Gibson v. Central Iowa Ry. Co., 136 Iowa 415, 113 N.W. 927; Sikes v. St. Louis & S. F. R. Co., 127 Mo.App. 326, 105 S.W. 700; Walker v. Southwest Missouri R. Co., Mo. App., 198 S.W. 441.
Neither in the trial court nor here has plaintiff challenged defendant’s contention that if defendant’s tracks, at the point of the accident, were, as a matter of fact, within the limits of its railroad yard or within the limits of a public right of way for street purposes, it was not required to maintain a fence there. Plaintiff claims that whether either of such assertions was factually correct was, under the evidence, a question for the jury. Defendant contends, and requested the trial judge to so instruct the jury, that the undisputed evidence established that the scene of the accident was within the limits of its railroad yard and within the street right of way; also that there was no duty on the railroad to have erected a fence at the location involved and that no negligence could be charged against it for failure to have erected such a fence. The district judge’s charge left it to the jury to determine whether the scene of the accident was within the railroad’s yard limits, but did not discuss the matter of the street right of way. He told the jury that if, under the circumstances, the defendant “should have had a fence or other protection along the right of way that they did not have, you may find the defendant negligent.”
The questions for decision here, therefore, are whether as a matter of undisputed fact, the accident occurred within the railroad’s yard limits or within a public right of way for street purposes. If either question must be answered in the affirmative, a new trial should be ordered.
(1) Yard Limits. One of defendant’s employees was asked whether or not the area where the accident happened “is or is not within yard limits.” He answered, “It is.” There was no other oral testimony dealing directly with the subject. However, the general area was described by witnesses, the police report referred to the area as “open country” and photographs portrayed whatever use the defendant was making of the general locality. Except for one spur track, some distance from the crossing, there is nothing in sight supportive of the claimed existence of a railroad yard or yard limits. We think the physical condition of the area, indicating absence of any activity peculiar to a railroad yard, made a question of fact for the jury on the subject. Rabidon v. Chicago & West Michigan Railway Co., 115 Mich. 390, 73 N.W. 386. Neither the court nor the jury were required to consider only the statement of defendant’s engineer to the exclusion of other evidence from which an inference could be drawn against the existence of a railroad yard. See Andrew Jergens Co. v. Conner, 6 Cir., 1942, 125 F.2d 686, 689; Purcell v. Waterman Steamship Corp., 2 Cir., 1955, 221 F.2d 953, 954.
(2) Did the accident happen on a right of way for street purposes. We are of the opinion that no other conclusion could be drawn from the evidence in this case but that the fatal accident occurred on the railroad track of defendant, as asserted in plaintiff’s complaint, “at its intersection with Tireman (a public street) in the City of Detroit.” Plaintiff’s evidence showed that the deceased child had approached the defendant’s tracks along a sidewalk on the south side of Tireman Avenue, which was marked by a street sign, so designating it. The sidewalk stopped short of the defendant’s tracks. The plaintiff claimed, however, that:
“The people have worn a well-beaten path, continuing east from the east side of the tracks over the right of way and to where Tireman Avenue comes up to the right of way on the opposite side. * * * this is a public way and by long established use * * * was a place where pedestrians and particularly children were to be expected.”
Defendant’s witness Mueller, an employee of the Planning Commission of Detroit, identified a map prepared for the purpose of a condemnation proceeding whereby Tireman Avenue was to be widened as it crossed the defendant’s tracks. This map showed Tireman Avenue as a street 43 feet wide, extending across defendant’s tracks. It showed the city’s plan to condemn 33 feet on the north side of the existing street, to make the street 76 feet wide. The 43 feet of existing street right of way included the sidewalk upon which the child approached and the path upon which he was crossing the tracks. The witness Mueller testified that the city of Detroit owned the 43 foot right of way; that an easement for Tireman Avenue had been granted to the city of Detroit by the dedication of a recorded plat, and that this had occurred long before the accident in question. He identified this 43 foot right of way as “extending from Rutherford to Greenfield, which includes the crossing of the C. & O. Railroad.”
Plaintiff challenges defendant’s claim that the undisputed evidence shows that there was an existing public right of way across the C. & O. tracks at the point of the fatal accident. He asserts that “it is an exhibit which refutes defendant-appellant’s assumption.” The exhibit referred to is a photograph of the area showing a sign located east of the end of the sidewalk as it approached the crossing and just south of the path that proceeds easterly from the end of the sidewalk. This sign, presumably placed there by the C. & O. employees reads, “Chesapeake & Ohio Railway Property, No Trespassing.” There was no evidence one way or the other as to whether this sign was within the 43 foot right of way of the City of Detroit. Assuming, however, that it was located within the right of way, we do not think its presence created an issue of fact as to the existence of the city’s right of way. Clear and unimpeached evidence of the existence of the public right of way had been received. The C. & O. sign’s assertion of ownership could not, in our opinion, create an issue of fact against the clear proof to the contrary.
Where facts upon which a rule of law depends are undisputed, the jury should be so advised. Holbert v. Staniak, 359 Mich. 283, 102 N.W.2d 186, 189; Stearns v. Vincent, 50 Mich. 209, 15 N.W. 86, 45 Am.Rep. 37; Dondero v. Frumveller, 61 Mich. 440, 28 N.W. 712. The fact that Tireman Avenue was a public street, crossing the railroad right of way at the place in question, relieved defendant of any obligation to there erect and maintain a fence. The jury should have been so instructed, as requested by defendant.
Judgment for plaintiff is reversed and a new trial ordered.
Question: What is the total number of respondents in the case that fall into the category "sub-state governments, their agencies, and officials"? Answer with a number.
Answer:
|
songer_genapel2
|
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 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.
ARAGON et al. v. UNEMPLOYMENT COMPENSATION COMMISSION OF TERRITORY OF ALASKA et al.
No. 10425.
Circuit Court of Appeals, Ninth Circuit.
May 15, 1945.
Andersen & Resner, George R. Andersen, and Herbert Resner, all of San Francisco, Cal., for appellants.
E. Coke Hill, of San Francisco, Cal., for appellees Unemployment Compensation Commission of Territory of Alaska.
Marshall P. Madison, Francis R. Kirk-ham, Melvin E. Mensor, and Pillsbury, Madison & Sutro, all of San Francisco, Cal., and Faulkner & -Banfield, of Juneau, Alaska, for appellees Alaska Packers Ass’n et al.
Before DENMAN, HEALY, and BONE, Circuit Judges.
DENMAN, Circuit Judge.
This is an appeal from a judgment of the District Court of the United States for the Territory of Alaska, rendered in a proceeding to review a decision of the Unemployment Compensation Commission of the Territory. Under the Alaska Unemployment Compensation law appellant employees, hereafter called appellants, were admittedly entitled to unemployment compensation from the Commission for the several months’ period fixed by the Commission’s Regulation 10 of the fishing season of 1940 at the fishing and canning plants of the appellee corporations, hereafter called Canners, at Chignik, Karluk and Bristol Bay, Alaska.
The beneficent purpose of the Unemployment Compensation Law of Alaska is stated in its “Declaration of Territorial Public Policy,” as follows:
“Economic insecurity due to unemployment is a serious menace to the health, morals and welfare of the people of this Territory. Involuntary unemployment is therefore a subject of general interest and concern which requires appropriate action by the Legislature to prevent its spread and to lighten its burden which now so often falls with crushing force upon the unemployed worker and his family. The achievement of social security requires protection against this greatest hazard of our economic life. * * * ”
The question here for determination is whether eight weeks’ time should be deducted from the admitted period of unemployment and appellants’ awards reduced by the compensation otherwise due for that period by reason of a claimed labor dispute in active progress for the eight weeks at the “factory, establishment or other premises” of the Canners, within the meaning of an exceptive provision of the Act, as follows:
“Section 5. Disqualification for Benefits. An individual shall be disqualified for benefits :
* * * * *
“(d) For any week with respect to which the Commission finds that his total or partial unemployment is due to a labor dispute which is in active progress at the factory, establishment or other premises at which he is or was last employed; provided, that such disqualification shall not exceed the 8 weeks immediately following the beginning of such dispute; * *
Such an exception to the beneficence of the Act must be strictly construed. In the recent case of A. H. Phillips, Inc. v. Walling, 65 S.Ct. 807, that Court considered the question of the rule of construction of the word “establishment” in a similar exception to the Fair Labor Standards Act of 1938, 52 Stat. 1060, 1067, 29 U.S.C. § 213(a) (2), 29 U.S.C.A. § 213(a) (2), that the wage and hour provisions of the Act shall not apply with respect to “ ‘any employee engaged in any retail or service establishment the greater part of whose selling or servicing is in intrastate commerce.’ The issue posed by this case is whether employees working in the warehouse and central office of an interstate grocery chain store system are ‘engaged in any retail * * * establishment’ within the meaning of Section 13(a) (2) so as to be exempt from the wage and hour provisions.”
The Court states the rule of construction of exceptions to such humanitarian and remedial legislation, as here the Alaska Compensation Law is declared to be, as follows:
“The Fair Labor Standards Act was designed ‘to extend the frontiers of social progress’ by ‘insuring to all o„ur able-bodied working men and women a fair day’s pay for a fair day’s work.’ Message of the President to Congress, May 24, 1934. Any exemption from such humanitarian and remedial legislation must therefore be narrowly construed, giving due regard to the plain meaning of statutory language and the intent of Congress. To extend an exemption to other than those plainly and unmistakably within its terms and spirit is to abuse the interpretative process and to frustrate the announced will of the people. We accordingly agree with the two courts below that the exception contained in Section 13(a) (2) is inapplicable in this case and that the employees involved are entitled to the benefits of the wage and hour provisions of the Act. We hold, in other words, that the warehouse and central office of petitioner’s chain store system cannot properly be considered a retail establishment within the meaning of Section 13(a) (2).”
In so holding, the Supreme Court states that “Prior to the adoption of the Fair Labor Standards Act the term ‘establishmentwas used in the sense of physical place of business by many census reports, business analyses, administrative regulations, and state taxing and regulatory statutes. * * *” (Emphasis supplied.)
Prior to the Phillips decision this circuit held in Canadian Pac. R. v. United States, 9 Cir., 73 F.2d 831, 834, a similar strict construction of a proviso excepting certain carriers from liability for overtime pay to employees of the Emigration Service under the Act of March 2, 1931, 8 U.S.C.A. § 109a, and in Reynolds v. Salt River Valley Assn., 9 Cir., 143 F.2d 863, 868 with reference to an exception to the Fair Labor Standards Act. See also same holding regarding excepting provisos in Fair Labor Standards Act in Eighth, Third and First Circuits: Fleming v. Hawkeye Button Co., 8 Cir., 113 F.2d 52, 57; Fleming v. A. B. Kirschbaum, 3 Cir., 124 F.2d 567, 572; Calaf v. Gonzalez, 1 Cir., 127 F.2d 934.
It is obvious that a workman seeking to recover under the Alaska Act would not be denied recovery unless, in addition to his unemployment, he also ■ proved that he had no “disqualification for benefits.” We have held that the burden of proving that an unemployed person, otherwise entitled to the compensation, is deprived of it by reason of falling within the exception is upon the party asserting it, here the appellees. Canadian Pac. R. v. United States, supra; Reynolds v. Salt River Valley Assn., supra; Schlemmer v. Buffalo, Rochester etc. R., 205 U.S. 1, 11, 27 S.Ct. 407, 51 L.Ed. 681.
It does not deed the application of the rule of strict construction to construe the words “factory” and “establishment” placed before the words “or other premises” in Section 5(d) of the Alaska Act as ejusdem generis with the concluding phrase and that the principle of noscitur a sociis applies. Strict construction would require such a construction as the Supreme Court made of the word “establishment” in a similar exception, supra, as the “physical place.” Webster’s New International Dictionary, Second Edition, 1940, defines the word “premises,” the plural of the word “premise,” as
“Premise * * * 4. pi. Law. The property conveyed in a deed; hence, in general [emphasis ours], a piece of land or real estate; sometimes, esp. in fire-insurance papers, a building, or buildings on land; as, to lease premises;' the premises insured. Sometimes loosely applied to personal property, as a vessel.”
The question then is whether appellees have established their burden of proof that there was a labor “dispute which, is in active progress at the factory, establishment or premises at which he is or was last employed.”
The three appellee corporations, called the Canners, maintain salmon fishing and canning establishments in Alaska at Chignik, Karluk and Bristol Bay. The establishments consist of canning factories and the premises surrounding them with quarters for the fishermen and canners, fishing boats and housing for the supplies and equipment of the establishments and their employees. Appellants, over 1300 men, residing in California, had been the employees of the Canners at these establishments in the previous fishing season of 1939. They had been carried to San Francisco on the vessels chartered or owned by the Canners. Their employment, as shown by paragraph 15 of the 1939 agreement between the Canners and the appellants, began when the employees boarded the vessels bound for Alaska and terminated on arrival of the vessels on return to San Francisco, unless leaving the employment in Alaska.
Appellants were last employed under their contract for the 1939 fishing seasons in Alaska. In that contract there are 37 paragraphs with over a hundred agreements between the 1300 employees and the Canners concerning the rates of pay, overtime, food, housing, racial discrimination, and numerous other relations of the employers and employees in the canning and fishing establishments in Alaska and on board the vessels. Any one of these agreements well may have produced a labor dispute at the establishments or on the vessels or adjacent thereto. Section 5(d) excepts the employees in all of these possible hundreds of labor disputes from the compensation of the Act for a maximum of 8 weeks. There is no merit to the contention that the exceptive section 5(d) must be intended to include disputes other than “at” such premises to give meaning and effect to the compensation Act.
The Canners’ and the Commission’s brief attempt to meet appellants’ contention only by an inferential treatment of Section 5(d) as if the words “at the factory,” etc. were to be stricken from their place after the words “active progress” and transposed above in the paragraph after the word “unemployment.” With such striking and transposing the paragraph would appear
“For any week with respect to which the Commission finds that his total or partial unemployment — at the factory, establishment or other premises at which he is or was last employed — is due to a labor dispute which is in active progress -at-tfee-faetoryv estabíish-mgnt — e?—ethsf—pre-raises—sfe which-he is or was last employed^-’
Even in the absence of the rule of strict construction we would not be justified in so reforming the phrases of the Act. Applying the rule, it is plain that such construction is not valid.
That is to say, the premises at which the appellees must prove the dispute was in active progress are such premises as the land and “physical” structures and fishing vessels in Alaska or the Canners’ vessels on the return voyage to San Francisco at which appellants were last employed.
Under the provisions of the Alaska Unemployment Compensation law appellants’ claims had been heard by a referee appointed by the Commission. At the opening of the hearing the appellants stated three contentions, of which the third we deem determinative. It is a pure question of law on the facts adduced specifically referring to Section 5(d) and the. place at which the dispute is in active progress. Appellants’ three contentions there were
“Mr. Resner [for employee appellants]. Well, I want to make a brief statement as to what our position is.
In the first place, we are contending this is not a labor dispute but simply a refusal on the part of the Alaska Packers to negotiate an agreement with the Union for the present season in Alaska affecting the Alaska Cannery Workers, Local No. 5, of San Francisco, and that is not a labor dis pute; and, therefore, these men are just out of work because of the refusal to enter into this agreement and are entitled to their benefits.
We want to contend, secondly, if under any circumstances this can be considered a labor dispute it is not such labor dispute within the meaning of the Act for these reasons: This is a seasonal industry and the contracts heretofore have been signed for' one year — have been negotiated and signed anew for each season. The contract of last year had expired and a new contract was to be signed for or negotiated for the coming season. There was no contract arrived at. And we contend the failure or the inability to arrive at a contract does not constitute a labor dispute.
Third, going to the Act itself, referring to Section 5(d), we contend this is not a labor dispute which is in active progress at the factory, establishment or other premises at which the workers were last employed." (Emphasis supplied.)
The referee states the controversy actually submitted to him to have been stipulated by the. parties to be confined to the “sole question” as to the dispute in progress “at” the Alaska plants, as follows:
“Pursuant to stipulation and understanding with Counsel for the respective parties the sole question before the Referee is to determine whether or not the facts show that at the commencement of the canning season in 1940 a labor dispute was in active progress at the plants at Karluk, Chignik and in Bristol Bay being the plants operated by the Employers in 1939 and at which the members of the Union were then employed." (Emphasis supplied.)
Appellees offered no testimony before the referee as to any dispute at the ships in which any appellant was last employed. No further testimony was taken at the subsequent proceeding before the Commission or the district court. Hence the appellees have not proved appellants within any excepted dispute at the appellees’ ships where they were last employed.
On the issue, so restricted, the referee decided adversely to the contentions of appellants, (a) that there had been no labor dispute and (b) if there were it did not exist at the Alaska plants. The referee found that there had been a labor dispute between appellants and the Canners, but found that it was in active progress for but six days “with reference to the Karluk plant operated in 1939 by the Alaska Packers Association” and for but twelve days “involving operation of the Chignik plant operated by the Alaska Packers Association” and that “at the time of the commencement of the season in Bristol Bay no labor dispute was in active progress at any of the plants operated in that District in 1939.” (Emphasis supplied). He decided that the Karluk employees should be denied six days’ compensation and the Chignik employees twelve days.
It is our opinion that the referee erred in holding against appellants on the question of law under consideration that the words of Section 5(d) “at the factory, establishment or other premises” mean “with reference to” or “involving operation of” such premises.
The evidence shows that early in 1940 a dispute arose between appellants and the Canners concerning the terms of the future fishing and canning employment of appellants for the approaching 1940 season at above mentioned establishments in Alaska and on the voyages to and from the canneries there. For the purpose of this opinion we assume, but do not decide, that it continued during the eight weeks in question. The beginning and entire activity of the dispute was “at” some unnamed place or places in San Francisco, California, and, it is claimed by the Canners, in part “at” some unnamed place in Seattle, Washington. Obviously, the dispute was not at the premises of any of the Alaska establishments.
The former Karluk and Chignik employees took no appeal to the Commission from the referee’s decision. We hold that there should be at least these deductions from the claims of the Karluk and Chignik employees, deductions which they apparently were willing to accept if the controversy there ended. There was no reason for an appeal by the Bristol Bay men.
However, the controversy continued. The referee’s decision was appealed to the Commission by the Canners, the Commission stating the Canners’ contention before it to involve the question of the premises “at” which the dispute was in progress as follows:
“The employers-respondents claim that the unemployment of the claimants-appellees is due to a labor dispute which was in active progress at the factory, establish ment or other premises of zvhich said claimants, and all of them, were last employed during the seasonable working period of the salmon industry of the Territory of Alaska, as set forth in said Commission’s Regulation No. 10.” (Emphasis supplied.)
The Commission considered the appeal on the record, made for it by the referee, of the parties’ contentions and stipulation and of the evidence taken on the stipulated issue. It thus had before it the contention of the insured men that
“Third, going to 'the A.ct itself, referring to Section 5(d), we contend this is not a labor dispute which is in active progress at the factory, establishment or other premises at which the workers were last employed” (emphasis supplied), and the stipulation of the parties confining the question to the existence of a dispute at the Alaska plants as follows:
“Pursuant to stipulation and understanding with Counsel for the respective parties the sole question before the Referee is to determine whether or not the facts show that at the commencement of the canning season in 1940 a labor dispute was in active progress at the plants at Karluk, Chignik and in Bristol Bay being the plants operated by the Employers in 1939 and at which the members of the Union were then employed.” (Emphasis supplied.)
The Commission evidently agreed with the referee that since the dispute was undeniably “with reference to” or “involving operation of” the Alaska plants in the future, it was a labor dispute then existing “at” the plants within section 5(d). Hence it confines its finding to the mere existence of the dispute during the eight weeks as follows:
“That there was an active labor dispute existing between said parties at the opening of the season; that said dispute continued, and that paragraph (d) under Section 5, under the title ‘Disqualification for Benefits’ provides * * * [followed by the words of Section 5(d)]”.
Obviously, a statement that a statute exists and setting forth its terms is not a minding of fact that the dispute between the. appellants and the Canners was actively pursued “at” the plants in Alaska named in the stipulation. In any event, there was no evidence to support such a finding had it been made. The dispute’s existence was “at” some place in California and possibly in Washington.
The appellants petitioned the district court for a review of the Commission’s decision. As before the Commission, they contended in assignments (a) to (c) that there was no dispute in active progress within the meaning of the word “dispute” in Section 5(d), 'and also, in assignment (d), that, assuming its existence, it was not “at” the premises of last employment as follows:
“d. The decision is in error in that there is neither finding nor conclusion that petitioners’ unemployment during the 1940 salmon canning season was ‘due’ to a labor dispute in active progress AT the premises where last employed (which means at the conclusion of the 1939 season), and not ‘due’ to other causes.” (Emphasis supplied.)
The hearing before the district court was upon the record before the referee stating the position of the insured men. The district court affirmed the Commission’s decision and, in its finding 10, found against appellants’ claim of error “d” supra, and that a labor dispute was in active progress at the Alaska canneries. This although throughout the proceedings in the three tribunals it was admitted that whatever dispute existed began and was carried on in either California or in Washington.
This appeal followed, appellants assigning here as error, inter alia, that finding 10 “that this labor dispute was in active progress at the cannery at which they were respectively last employed,” is not supported by the evidence.
Appellants’ brief here, at page 3 thereof, states the question as to the premises of the existence of the dispute as it was in issue before the referee, the Commission, and the district court
“Were appellants unemployed during the 1940 Alaska salmon season because of a labor dispute in active progress at the establishment at which they were last employed within the meaning of Section 5(d) of the Act?”
Appellants’ brief later answers the question, stating in its caption of section E of its argument
“E. There was no labor dispute in active progress at the ‘factory, establishment, or other premises’ where appellants were last employed.”
The argument is summarized as the last times appellants worked at any of the employers’ plants was in 1939. When the 1939 season ended appellants ceased to be employees of the employers. Work never started at any of the employers’ Alaska plants during 1940. It follows that there was no labor dispute at the place of last employment.
The Commission’s brief recognizes the challenge of the question of appellants’ brief by repeating it in full. Instead of construing the words of Section 5(d), the Commission apparently again assumes it to be sufficient that it is conceded that the dispute was “with reference to” or involved the “operation of” the plants referred to in the stipulation for the approaching season. Its brief says of the appellants’ challenging question as to the place of the dispute, “We think that statement not entirely accurate, that it is a little too broad,” and restates the question, omitting all reference to the premises “at” which the dispute was in active progress, as follows:
“We think the questions to be decided in this Court are: Is there substantial evidence to support the findings of fact of the Commission and' the District Court, and, can it be said as a matter of law that the Commission and the District Court were in error in finding that appellants’ unemployment was due to a labor dispute which was in active progress during the weeks for which appellants claim compensation ?”
At the hearing here counsel for appellants, in obvious distress at a sudden illness of the preceding night in his family, relied upon his brief. The court itself then pressed on counsel for the appellees the question so raised by appellants’ brief concerning the construction of the words of Section 5(d). Appellees’ counsel answered that they did not consider this question before us — and this with appellants’ assignment of error here as to finding 10 of the district court and the issue raised by the question and argument in appellants’ brief, which question is repeated in its exact words in the Commission’s brief.
To summarize, the attempt of the Commission here to treat the contention that the question of the “establishment at which they were last employed” as not under consideration throughout the litigation is in direct contradiction (1) to appellants’ opening contention “Third” and to the stipulation of counsel in the record before the referee upon which the entire proceeding is based; (2) to the Commission’s statement, supra, that this was the contention upon which the Canners appealed to the Commission; (3) to the ground “d” of appellants’ petition to the district court for review, supra; (4) to appellants’ claim of error here in finding 10 of the district court, supra, holding there was such a dispute but at the Alaska canning plants, and (5) to the brief of appellants here. It seems clear to us that the record in this regard cannot be misunderstood by anyone as showing that the Commission, either here or in the three prior hearings in the proceeding, has not had its day in court on the question of the construction of Section 5(d) of the Alaska Act.
We hold that appellees have not maintained their burden of proof that during the first eight weeks of the 1940 employment period there was a labor dispute at the premises of the appellants’ last employment. We further hold that regardless of the burden of proof, the evidence establishes affirmatively that no such dispute existed at the stipulated Alaska canning plants during appellants’ admitted unemployment. ,
Because of the lack of appeal of the Karluk and Chignik employees from the referee’s decision, a deduction must be made from the award for 12 days at Karluk and the 6 days at Chignik. There should be no deduction, because of the dispute, ■ from the claims of the Bristol Bay employees.
Section 6(i) of the Act, providing for this “judicial proceeding” in the district court and appeal to this court, requires that
“Upon the final determination of such judicial proceeding the Commission shall enter an order in accordance with such determination.” (Emphasis supplied.)
It is our determination that the evidence shows appellants are entitled to their compensation for their unemployment in the fishing season of 1940 above considered, without deduction by reason of the labor dispute here in question, other than that for the Karluk and Chignik employees, held to be deducted by the referee as above recited; and that the Commission shall enter an order in accordance with such determination.
The judgment of the district court is reversed and the district court instructed to enter a judgment in accord with this opinion.
Reversed.
Alaska Stats., Ch. 4, Extraordinary Session Laws of 1937, as amended by Ob. 1 and 51, S.L.1939 — hereafter designated Act.
“15. On days of arrival or departure the hour twelve (12) midnight shall be considered the basis for the computation of the payroll. On days of arrival or departure one full day shall be paid irrespective of exact time of arrival or departure with regards to the hour of 12 midnight. Wages shall commence on the day of departure and terminate on the day of return to the port of dispatching, except as herein otherwise provided.
“In the event that any employee does not elect to return to original port of embarkation upon a suitable vessel by and at the direction of the Company at the termination of the season, his employment shall be considered terminated and he shall be paid all wages due him within forty-eight (48) hours, subject to all provisions of this agreement, in which event the Company will be relieved of all obligations to the employee for return transportation.”
“10. That the unemployment of claimants in the 1940 fishing and canning season, and the whole thereof, was due to a labor dispute existing between the employers, the respondent companies herein, and the claimants, and that this labor dispute was in active progress at the cannery at which they were respectwely last employed, and there was an active labor dispute between the claimants and the respondent employers during the entire canning season as defined by the Commission at , the respective canning plants at Chignik, Karluk and various points in Bristol Bay, Alaska.” (Emphasis supplied.)
Question: What is the nature of the second listed appellant whose detailed code is not identical to the code for the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
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songer_casetyp1_1-3-1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "criminal - federal offense".
GOVERNMENT OF the CANAL ZONE, Plaintiff-Appellee, v. Samuel Gene PEACH, Defendant-Appellant.
No. 78-5414.
United States Court of Appeals, Fifth Circuit.
Sept. 10, 1979.
Arthur J. O’Donnell, Chicago, 111., Daniel D. Douglas, Balboa, Canal Zone, for plaintiff-appellee.
Frank J. Violanti, U. S. Atty., William H. Beatty, Asst. U. S. Atty., Balboa, Canal Zone, Mervyn Hamburg, U. S. Dept, of Justice, Washington, D. C., for defendant-appellant.
Before SIMPSON, TJOFLAT and HILL, Circuit Judges.
TJOFLAT, Circuit Judge:
Samuel Gene Peach appeals his conviction for the first degree murder of Ruby Gutierrez. He contends that a confession introduced at trial was obtained from him in violation of his right to counsel under the sixth amendment and rule 44 of the Federal Rules of Criminal Procedure. Finding no reversible error in the proceedings below, we affirm the conviction.
I
During the early evening hours of December 29, 1977, Bertha Rubiella (Ruby) Gutierrez, a 21-year-old Panamanian maid, was brutally beaten and stabbed to death in the Canal Zone residence of her employer, Gary Anderson. The Andersons were all away from home at the time. Anderson discovered the body when he returned to his house at 8:45 p. m. He called the Canal Zone police; the police pathologist determined the time of death to be approximately 7:00 p. m.
The police soon commenced interviewing friends and acquaintances of the Anderson family and of the deceased in an effort to develop leads. One of the more than 40 persons interviewed was the appellant, Peach, a 19-year-old soldier stationed at Fort Kobbe, Canal Zone, who had dated Anderson’s 14-year-old daughter, Carrie. Peach was first interviewed on January 5, 1978, when he responded to a request to come to the Balboa police station for questioning. Detectives Don Ruby and Mel Attkinson conducted the interview, during which Peach affirmed that he knew Carrie Anderson and admitted having sexual intercourse with her on one occasion six months earlier. When asked to account for his activities on December 29, Peach said that he had gone to the Anderson residence at about 6:30 p. m. on that day, but, upon being told by the maid that Carrie was not there, he had left.
Up to this point, Peach had not been given the warnings set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), but he had been told that he did not have to answer any questions, and, by his own admission, felt free to leave the stationhouse at any time. At the close of this first phase of the interview, he was read his rights, and, since he indicated that he did not totally understand them, they were explained to him in detail. He then said that he understood them; he gave no indication that he wished to consult an attorney.
The questioning resumed briefly prior to a break for lunch and continued afterwards for a short time until Peach asked to see a chaplain. One of the detectives drove him back to his barracks, and Peach agreed to be available for questioning the next day. After his return to the barracks, Peach went to see a friend, PFC Donald Jeeninga. Peach confessed to Jeeninga that he had raped the maid who worked for the parents of his girlfriend and had then killed her because she would recognize him if he ever returned to the Anderson home. Peach gave Jeeninga some clothing and asked him to dispose of it.
Peach next went to see a very close friend, Sgt. Robert Perry, at his home and asked to talk with him privately. Peach again confessed to the murder. Perry urged Peach to turn himself in and said that if Peach did not do so by the following Monday, January 9, Perry would report their conversation. Peach said, “Okay.” Record, vol. 5, at 132.
The next day, the detectives came to the barracks and asked Peach if he would return to the stationhouse for further questioning. Peach declined but said he would answer questions there on the base. He was asked if he recalled his rights as they had been explained the day before, and he said he did. He was questioned about the clothes he was wearing on December 29. He consented to a search of his room, during which the police seized some of his clothing. While at the barracks, the detectives met an Army Criminal Investigation Command Agent, Anthony Japuntich. The police asked Japuntich’s aid in obtaining photographs and fingerprints of Peach since they were afraid he might flee. Japuntich cleared this request with Peach’s commanding officer, and the group went to the agent’s headquarters at Albrook Air Station where Peach was photographed and fingerprinted. While alone with Japuntich in the latter’s office, Peach asked if he was entitled to an army lawyer. Japuntich called the army legal office and was told that if Peach were arrested by the civilian authorities, the army probably would not represent him, but Japuntich was given the names of some military lawyers to contact directly. Japuntich attempted, unsuccessfully, to call them, after which he gave the list of names and phone numbers to Peach.
Peach and Japuntich then left the office and walked to the waiting room where they rejoined the detectives. Japuntich could not recall whether he told the police officers about his conversation with Peach, but he testified that Peach had never asked for a lawyer and Japuntich did not tell the detectives that he had. The detectives had been in touch with their superior in the interim, and, soon after Peach walked into the room, they arrested him for the statutory rape of Carrie Anderson. They advised Peach of his rights, then took him to the Canal Zone jail where he was booked, again given full Miranda warnings, and placed in a cell. A phone was available for his use, but Peach made no attempt to contact either a military or civilian lawyer.
The next day, Saturday, January 7, Peach was brought before the Balboa magistrate for his initial appearance pursuant to Fed. R.Crim.P. 5. There is no transcript of this hearing, but the testimony at the suppression hearing and the magistrate’s brief report of proceedings indicate the following sequence of events. Peach appeared in person, unrepresented by counsel. The statutory rape complaint was read to him, and Peach was informed of his rights, including the right to retain counsel of his choice or to have an attorney appointed for him if he could not afford one. Peach stated he understood the charge against him and his rights as they had been explained. There followed a colloquy between Peach and the magistrate regarding Peach’s financial ability to employ an attorney. The magistrate was evidently of the opinion that since Peach was employed by the Army he was not indigent and did not need appointed counsel. Peach said nothing to counteract this impression, and one witness testified that Peach indicated he would take care of obtaining counsel. Acting on instructions from the magistrate, Detective Attkinson obtained a list of Canal Zone attorneys for Peach to contact, and this list was given to Peach at the hearing. At no time did Peach request or indicate to the magistrate that he wanted an attorney appointed.
Peach was returned to his cell and the officer on duty was instructed that Peach could call his family, friends, or an attorney, but Peach made no attempt to contact anyone. About two hours after the hearing, Detective Attkinson came to Peach’s cell and asked him if he had retained an attorney. Peach said no. He was then escorted to an interrogation room where he agreed to answer questions after hearing his rights read to him again. After about 40 minutes of questioning about the statutory rape and his whereabouts on the day of the murder, Peach said he would tell the police what they wanted to know but first he wanted to talk to his friend Sgt. Perry.
Perry came to the police station and talked with Peach alone for about fifteen minutes. During this discussion Peach said he was ready to come clean with the police. The two men may also have discussed the possibility of obtaining a lawyer for Peach, but the court found that this discussion, if it occurred, was never communicated to the police. Two detectives then reentered the room, and in Perry’s presence again read the Miranda warnings. Peach then gave a disjointed oral statement of his activities on December 29, 1977, including the killing of Ruby Gutierrez. Following this statement, he agreed to go with the police to the Anderson home to reenact the crime. He also took the police to the place where he had thrown the murder weapon into the canal. Perry was not permitted to come along on this trip. After returning to the police station, Peach dictated a confession to a police stenographer, read the typed statement twice, and signed it. The confession states in the first paragraph, “I understand my rights. I do not want a lawyer present at this time.” Government Exh. 18.
Peach had his initial appearance before the magistrate on the murder charge the next day, January 8. He did not request an attorney and none was appointed for him. At the continuation of this hearing on January 12, 1978, the public defender was appointed to represent Peach at the request of the United States Attorney when Peach said he was unable to retain his own counsel because he was paying off outstanding bills.
An information was filed against Peach on February 3, 1978. Following a jury trial, he was found guilty and sentenced to life imprisonment. His sole claim on this appeal is that the district court erred in failing to suppress his confession.
II
Peach does not contend that he was denied any rights due him under Miranda v. Arizona. Rather, he argues that he had a sixth amendment right to counsel under Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), and that he never waived that right in the manner required by Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977). We agree that Peach had a right to the assistance of counsel beginning at least with his first appearance before the magistrate on January 7, but we think that the district court’s finding that he waived that right must be upheld.
There can be no doubt that Peach understood his right to retain counsel or have counsel appointed for him. He had an eleventh grade education, and he was given Miranda warnings seven times before he confessed to the police. On the one occasion that he said he did not completely understand his rights they were explained to him in detail. He never once indicated to the authorities a desire to exercise his right to counsel. The court below and the parties to this appeal agree that the January 7 hearing is critical in this regard. At that time he was advised of his right to have an attorney for the fifth time, and the question whether he could afford to retain one was raised. Peach did not assert that he was indigent and did not request that counsel be appointed to represent him. If he intended at that time to retain his own counsel, the police did everything they can reasonably be expected to have done to facilitate that end. Peach was given a list of attorneys to contact and given access to a phone, but he made no effort to call any of them.
The written statement that was introduced at trial plainly states, “I do not want a lawyer present at this time.” The testimony indicates that these were not Peach’s words; they are part of a standard government introduction to confessions. Nevertheless, Peach carefully read the statement twice before signing it and testified that he understood at the time that he was giving up his right to have an attorney present. Record, vol. 3, at 101. This is not a case like Brewer v. Williams where the police were aware that the defendant was represented by counsel and deliberately set out to get a confession before he could consult his attorney. Peach’s actions and words, as disclosed by this record, fully support the district court’s finding of waiver.
Ill
The second argument on this appeal is that the federal magistrate violated Fed. R.Crim.P. 44 when he failed to appoint counsel for Peach at the January 7 hearing. Rule 44(a) states: “Every defendant who is unable to obtain counsel shall be entitled to have counsel assigned to represent him at every stage of the proceedings from his initial appearance before the federal magistrate or the court through appeal, unless he waives such appointment.” The Advisory Committee notes to the rule state that it is “intended to require the assignment of counsel as promptly as possible after it appears that the defendant is unable to obtain counsel.” 18 U.S.C. Federal Rules of Criminal Procedure App. at 1471 (1976). As we have stated, at the hearing Peach was advised for the fifth time of his right to retain counsel or to have an attorney appointed to represent him if he could not afford to obtain one himself. The magistrate conducted an inquiry regarding whether Peach could afford a lawyer. The evidence clearly preponderates in favor of the view that Peach failed to give any indication to the magistrate either that he could not afford an attorney or that he wanted one appointed. Under these circumstances, we do not think the rule required that anything more be done. At no time during this hearing did it “appear[] that the defendant [was] unable to obtain counsel.” Id. What we said in De La Fe v. United States, 413 F.2d 543, 544 (5th Cir. 1969), accurately describes our view of the rule: “The burden of furnishing an attorney only attaches upon representation of an individual that he is indigent and that he wishes an attorney.” Cf. United States v. Williams, 544 F.2d 1215, 1218 — 19 (4th Cir. 1976) (waiver of statutory right to two counsel in capital case presumed absent request or clear necessity for additional counsel).
Peach cites Carnley v. Cochran, 369 U.S. 506, 513, 82 S.Ct. 884, 889, 8 L.Ed.2d 70 (1962), for the proposition that the right to be furnished counsel does not depend on a request. In Carnley, the defendant was never advised of his right to counsel, and the Supreme Court refused to imply waiver from a silent record. The record here is not silent. Peach was repeatedly advised of his rights, and we have already held that he waived his sixth amendment right to counsel before confessing. Under rule 44, once a defendant is advised of his right to have counsel appointed and an inquiry is made as to his ability to retain counsel, it is incumbent on the defendant to give some indication that he wants an attorney appointed for him. The authorities are not required to read his mind or discern that, although he says he will obtain an attorney, he really cannot afford one and should have appointed counsel. This is not a case where a defendant was required to plead or go to trial without the assistance of counsel. As soon as Peach indicated he could not afford an attorney, the magistrate appointed the public defender. The conviction is
AFFIRMED.
. We do not suggest that indigency is the sole ground for appointing counsel. “If a defendant is able to compensate counsel but still cannot obtain counsel, he is entitled to the assignment of counsel even though not to free counsel.”' Advisory Comm. Notes to Rule 44(a), supra. Peach gave no indication that he was unable to obtain counsel to represent him.
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:
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songer_respond1_7_5
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A
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers).
ORDER OF UNITED COMMERCIAL TRAVELERS OF AMERICA v. KING.
No. 5559.
Circuit Court of Appeals, Fourth Circuit.
April 9, 1947.
F. Dean Rainey and C. F. Haynsworth, Jr., both of Greenville, S. C. (Haynsworth & Haynsworth and Rainey and Fant, all of Greenville, S. C., on the brief), for appellant.
Miller C. Foster and Jesse W. Boyd, both of Spartanburg, S. C. (Johnson, Johnson & Foster, of Spartanburg, S. G, on the brief), for appellee.
Before PARKER, SOPER, and DOBIE, Circuit Judges.
DOBIE, Circuit Judge.
The scope of an aviation exclusion clause in a contract of life insurance is the question raised by this appeal. The insured, Lieutenant Drew L. King, a resident of South Carolina, was a flight observer serving with the Civil Air Patrol. He met his death on February 9, 1943, and this suit was instituted by the beneficiary of the policy, the appellee here, against the insurance company, appellant, for the full amount of the policy. The lower court awarded judgment to the plaintiff on stipulated facts. The insurance company has duly appealed.
At eight o’clock in the morning of the day mentioned the insured and a pilot left their base for a routine coastal patrol flight off the shores of North Carolina. The patrol was made in a land based plane along with another plane of like make. About an hour and one-half after take-off, the plane in which the insured was riding developed serious engine trouble. This emergency forced the pilot to bring the plane down at sea some thirty miles from the coast. Apparently the descent was sufficiently controlled to permit putting the plane on the water in a normal landing position. The men managed to inflate their life jackets and free themselves from the plane before it sank a few minutes later.
There is no question that both men were alive at this time as they were seen to signal the other plane. 'A subsequent examination confirmed the belief that the men were not injured by the impact of the plane striking the water. Meanwhile the occupants of the second plane, after dropping an emergency kit, circled the distressed men and tried to establish radio contact with the base. At Noon, which was two and one-half hours later, no help had arrived and the second plane, because of a shortage of gasoline, was forced to return to the base. The men in the- water were alive at that time. When a Navy boat finally arrived at two in the afternoon, both men were dead.
A Naval physician (not an eyewitness to the events) issued a statement of death after examining the bodies, which contained the diagnosis: “Drowning as result of exposure in the water after failure of airplane motor.”
The contract of insurance, which the insured had made in South Carolina with the appellant insurance company, contained the following clause: “This order shall not be liable to any person for any benefit for death resulting from participation, as a passenger or otherwise, in aviation or aeronautics, (except as a fare paying passenger in a licensed aircraft operated on a regular schedule).”
Although South Carolina law would be controlling, the highest court in that State has never considered the precise question here involved. Accordingly the lower court, in an effort to apply South Carolina law, resorted to some general maxims of insurance law that have been invoked on occasions by South Carolina courts. By stressing particularly the insured’s uninjured physical dis-engagement from the airplane, and coupling this with the rule of construction that ambiguous or doubtful clauses must be resolved against an insurer, the District Court reached the conclusion that the exclusion clause of the policy was not applicable. We are unable to agree with that conclusion either on reason or authority.
Aside from the many authorities on this question (to which we will advert later in this opinion), we think the exclusion clarise clearly comprehends the very situation that here developed. Any other conclusion must ignore the plain meaning and presence of the word “resulting.” To give that word the effect that it must have in everyday speech (and as understood by laymen as well as lawyers) obviates the necessity for technical and artificial rules of construction. In our view of the case it is as undesirable as it is unnecessary to borrow from the law of torts the nuances and subtleties which attend such a phrase as “proximate cause” and to attempt an application of these nuances and subtleties to the facts of the instant case. There is little, if anything, to construe. In undertaking an aerial flight over the ocean in a land-based plane, man must reckon with the perils of the sea which are as imminent and real as the unrelenting force of gravity. Just as flight over the land brings forth the danger of violent collision with the earth, we have the dangers of the sea in over-water flight. That men may remain alive for varying periods of time before succumbing does not change the picture. We think it a rather violent fiction to say that death, under such circumstances, comes from accidental drowning. Common knowledge and experience fairly shout of the dangers of shock, exposure and drowning when a flight is taken over water in the winter time in a land based plane.
Out of the abundance of wisdom that comes with hind-sight it might have been better to have also inserted the words “directly or indirectly” in the exclusion clause. Actually such words were not vital here and would have added little to the force of the word “resulting.”
We are asked by counsel for appellee to notice the harrowing experiences and remarkable rescue of Captain Eddie Rickenbacker. The contention is made that when a man leaves a plane under such conditions he is in a position of “potential safety,” i. e., he can be saved. To pursue this somewhat ingenious argument is to invert the real question of the case. It is true that rescue, routine or fortuitous, may remove a man from peril. But it does not follow that the failure of rescue brings the peril that causes death. When the insured was in the cold waters of the Atlantic Ocean in February, he was not in a position of “potential safety.” He was in imminent peril of death, unless rescue came and also came quickly. We are unable to see how, under these circumstances, death resulted in any way other than from participation in aviation.
There is more than ample authority to support this view. In Neel v. Mutual Life Ins. Co. of N.Y., 2 Cir., 131 F.2d 159, the insured, after landing his plane on the ocean, was drowned while trying to reach shore. Under a similar aviation exclusion clause, the insurer was held not liable. Judge Augustus Hand, speaking for the Court, said (131 F.2d at page 160) : “The policy provides that Double Indemnity shall not be payable if death resulted ‘from participation in aeronautics’ and it seems quite contrary to the natural meaning of the proviso to say that Stubbs did not meet his death from ‘participation in aeronautics’ merely because he may hot have been killed by impact upon the water. If he landed in the open sea, even though without immediate injury, drowning was an almost inevitable consequence. To say that his death did not result ‘from participation in aeronautics’ would exclude from the proviso of the policy the most ordinary risks involved and limit the effect of the clause in an unexpected and unreasonable way. As Judge Cardoza said in Bird v. St. Paul F. & M. Ins. Co., 224 N.Y. 47, 120 N.E. 86, 87, 13 A.L.R. 875: ‘General definitions of a proximate cause give little aid. Our guide is the reasonable expectation and purpose of the ordinary business man when making an ordinary business contract. It is his intention, expressed or fairly to be inferred, that counts. * * * The same cause producing the same effect may be proximate or remote as the contract of the parties seems to place it in light or shadow. That cause is to be held predominant which they would think of as predominant. A common-sense appraisement of everyday forms, of speech and modes of thought must tell us when to stop. It is an act of “judgment as upon a matter of fact.” ’ ”
This was followed in Green v. Mutual Benefit Life Ins. Co., 1 Cir., 144 F.2d 55, in which the insured, a Naval aviator, was forced to land his plane on the water and was drowned while attempting to reach his life raft. Other instructive cases are Pittman v. Lamar Life Insurance Co., 5 Cir., 17 F.2d 370; Wendorff v. Missouri State Life Ins. Co., 318 Mo. 363, 1 S.W.2d 99, 57 A.L.R. 615; and Blonski v. Banker’s Life Co., 209 Wis. 5, 243 N.W. 410. Compare: Commercial Union Assurance Co. v. Pacific Union Club, 9 Cir., 169 F. 776; Pacific Union Club v. Commercial Union Assurance Co., 12 Cal.App. 503, 509, 107 P. 728; Tierney v. Occidental Life Insurance Co. of California, 89 Cal.App. 779, 265 P. 400.
Counsel for the beneficiary virtually conceded in oral argument (as indeed they must) that the Neel and Green cases, supra, are indistinguishable in principle from this case. They rely, however, on Bull v. Sun Life Assurance Co. of Canada, 7 Cir., 141 F.2d 456, certiorari denied, 323 U.S. 723, 65 S.Ct. 55, 89 L.Ed. 581. In that case the insured went down a few hundred yards from shore, after his plane was damaged by anti-aircraft fire. After the emergency landing, the insured was seen standing on the fuselage, attempting to launch a rubber boat. Other members of the crew, who had already escaped in a rubber raft dived into the water when a Japanese plane swept low to strafe the crippled American plane. An explosion was heard, the crippled plane burst into flames, and the insured was never seen again. In holding the insurer liable, the Court, by a two to one decision, emphasized the war risk of enemy fire and noted that the jury could have found this intervening force caused death. We agree with the observation in the Green case which viewed the intervening force in the Bull case as a distinguishing feature. 144 F.2d 55 at page 58.
We come, then,' to the last argument of the plaintiff (appellee) which is that, irrespective of the foregoing, the South Carolina law would permit recovery in a case of this character. This phase of the argument rests primarily on the dictum in Bolt v. Life & Casualty Ins. Co. of Tennessee, 156 S.C. 117, 152 S.E. 766, 767: “* * * our court has made it the almost universal rule to construe any clause of an insurance policy against the insurer, when there existed the least doubt as to the meaning of the language employed.”
We agree that this is an exceedingly broad statement. Nevertheless, in our view of the instant case, the meaning of the language employed in the policy is clear on its face. In any event, we believe that the highest court in South Carolina would not make specific application of such a generalized dictum, which, if applied to the facts here, would fly in the face of reason and the very considerable authority that has expressed the view we now follow. It would certainly not conform with accepted theories of proximate cause. See Horne v. Atlantic Coast Line R. Co., 177 S.C. 461, 181 S.E. 642.
Counsel for appellee, while not contending that we are bound by it, have cited a decision rendered in the Court of Common Pleas for the County of Spartanburg which allowed the same plaintiff to recover on a similar policy with another insurance company on the same statement of facts now before us. That opinion, not binding on other South Carolina courts, is not binding' on us and we cannot treat it as a final expression of South Carolina law. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487. While we entertain nothing but respect for that court, we must reject its view of this case for the reasons previously expressed. That opinion, it might be added, which was rendered July 29, 1946, relied on the District Court’s ruling in the instant case now before us.
The case of Goethe v. New York Life Ins. Co., 183 S.C. 199, 190 S.E. 451, is urged as an instance in which terms in insurance policies should be construed according to the ordinary and usual understanding of its signification by “common people.” We are unable to see how this strengthens the plaintiff’s case, for our conclusion is reached by the express adoption of the rule urged by plaintiff.
We have carefully considered other cases cited by the plaintiff: McGee v. Globe Indemnity Co., 173 S.C. 380, 175 S.E. 849; Young v. Life & Casualty Ins. Co. of Tennessee, 204 S.C. 386, 29 S.E.2d 482; Myers v. Ocean Mftg. Co., 4 Cir., 99 F.2d 485; Manufacturers Accident Indemnity Co. v. Dorgan, 6 Cir., 58 F. 945, 22 L.R.A. 620, and find them inapplicable and not controlling.
The judgment of the lower court is reversed.
Reversed.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant?
A. not ascertained
B. poor + wards of state
C. presumed poor
D. presumed wealthy
E. clear indication of wealth in opinion
F. other - above poverty line but not clearly wealthy
Answer:
|
songer_circuit
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
BOWLES, Adm’r, Office of Price Administration, v. FRANCESCHINI et al.
No. 3997.
Circuit Court of Appeals, First Circuit.
Nov. 10, 1944.
Karl Lachmann, Atty., Office of Price Administration, Thomas I. Emerson, Deputy Adm’r for Enforcement, and John M, Durbin, Territorial Enforcement Atty., all of Washington, D. C. (Fleming James, Jr., Director, Litigation Division, and David London, Chief, Appellate Branch, both of Washington, D. C., of counsel), for appellant.
Frank Torres, of Ponce, Puerto Rico, for appellees.
Before MAHONEY and WOODBURY, Circuit Judges, and PETERS, District Judge.
MAHONEY, Circuit Judge.
The Administrator of the Office of Price Administration brought this action in the District Court to enjoin the defendants from violating the price regulations promulgated under the Emergency Price Control Act of 1942, 52 Stat. 23, 50 U.S.C.A. Appendix §§ 901-946, hereinafter called the Act, and to recover damages in the sum of $1,461.93, being three times the amount by which the alleged sales prices exceeded those permitted by the regulations.
The defendants are Enrique Franceschini and Octavio Busquet, doing business as partners under the name of “Juan E. Torres & Co., Suers., S. en C.” They are engaged in the business of selling foodstuffs at wholesale in the City of Ponce, Puerto Rico. By stipulation, the defendants admitted that they had sold and delivered to retailers in the course of business commodities at prices which exceeded those set by the price regulations and consented to the entry of an injunction. The Administrator admitted that the transactions in question were effected by defendants in good faith. The District Court granted the injunction but dismissed the complaint as to the claim for damages. From the order of dismissal the Administrator has appealed.
Because the Administrator claimed damages in the sum of $1,461.93 defendants challenged the jurisdiction of the District Court on the ground that the amount in controversy does not exceed $3000. 28 U. S.C.A. § 41(1). It is sufficient to say that this limitation on the jurisdiction of District Courts is not applicable to this case arising under § 205(e) of the Act because in § 205(c) it is specifically set forth that the District Courts have jurisdiction of criminal proceedings for violations of § 4 of the Act, and concurrently with State and Territorial courts, of all other pro» ceedings under § 205. The lower court was correct in taking jurisdiction and this court has jurisdiction of the appeal under § 128 of the Judicial Code, 28 U.S.C.A. § 225.
The defendants also attack the legal sufficiency of the amended complaint because it nowhere alleges the reason why the Administrator and not the buyer brings this action. They admit, however, that the sales complained of were made to retailers in the course of trade or business. Such purchasers were not buying “for use or consumption” and they are not entitled to bring suit for overcharges under § 205(e). That section provides that the -Administrator may bring the action on behalf of the United States where the buyer is not entitled to bring such suit or action.
We are asked to determine whether the Administrator may recover damages under the provisions of § 205(e) for violations of the Maximum Price Regulations when such violations are committed in good faith. The pertinent provisions of that section are as follows:
“If any person selling a commodity violates a regulation, order, or price schedule prescribing a maximum price or' maximum prices, the person who buys such commodity for use or consumption other than in the course of trade or business may bring an action either for $50 or for treble the amount by which the consideration exceeded the applicable maximum price, whichever is greater, plus reasonable attorney’s fees and costs as determined by the court. * * * If any person selling a commodity violates a regulation, order, or price schedule prescribing a maximum price or maximum prices, and the buyer is not entitled to bring suit or action under this subsection, the Administrator may bring such action under this subsection on behalf of the United States. * * *”
The District Court dismissed the complaint as to the claim for damages because the defendants had . acted in good faith in selling commodities at over ceiling prices. We think the court was in error. It cited the recent case of Hecht Co. v. Bowles, 321 U.S. 321, 325, 64 S.Ct. 587, 591. There the question before the court was whether the Administrator under § 205(a) was entitled as of right to an injunction restraining violations or whether the court had some discretion to grant or withhold such relief. The Supreme Court states that it seemed apparent from the language of the statute that there was room for the exercise of discretion on the part of the District Court “For the requirement is that a ‘permanent or temporary injunction, restraining order, or other order’ be granted. Though the Administrator asks for an injunction, some ‘other order’ might be more appropriate, or at least so appear to the court.” It stated that it was dealing with the requirements of equity practice and held: “Hence we resolve the ambiguities of § 205(a) in favor of that interpretation which affords a full opportunity for equity courts to treat enforcement proceedings under this emergency legislation in accordance with their traditional practices, as conditioned by the necessities of the public interest which Congress has sought to protect.”
The case before us is an action for damages under § 205(e) and not an action in the nature of a suit in equity under § 205 (a). The position of the lower court appears to be that the Act confers upon the trial court discretion to grant damages or not to grant damages, as the court might think reasonable, where the seller “unwittingly” violated the price ceilings. We find no language in § 205 (e) which supports this view. The statute unequivocally provides that if a seller violates the maximum price ceilings he may be subject to an action either for $50 or treble damages, whichever is greater. The court in Bowles v. American Stores, 1943, 78 U.S.App.D.C. 238, 139 F.2d 377, 379, certiorari denied 322 U.S. 730, 64 S.Ct. 947, referred to the “unqualified language” of § 205(e) and said that the argument for discretion in awarding damages in an amount less than $50 is “further refuted by the fact that the same sentence of the Act, while it says nothing about reasonableness or discretion in regard to the award of $50, provides for the award of ‘reasonable attorney’s fees and costs as determined by the court.’ ”
In the absence of any provision in the statute for the exercise of discretion upon the part .of the trial court, it would seem that good faith, unless expressly provided for, cannot serve as a defense, and that if a seller violates the maximum price regulations, his liability is absolute. Bowles v. American Stores, supra; Brown v. Cummins Distilleries Corp., D.C., 53 F.Supp. 659. It may appear to be a severe hardship cast upon the seller who acts in good faith, but the protection of the public as a whole in its struggle against inflation seems to have merited the strictest sanctions in the eyes of Congress.
From the inclusion of the word “willfully” in § 205(b), which provides for criminal penalties, and its omission in § 205(e), we can reasonably infer that Congress intended to omit the word “willfully” from the latter section and that, therefore, good faith is immaterial. That Congress could make use of “good faith” as a defense when it wanted to appears in § 205 (d) which provides for no liability “in respect of anything done or omitted to be done in good faith pursuant to * * * any regulation, order, price schedule * * The purpose of this section is to protect those who act “pursuant to” the provisions of, or regulations under the Act as distinguished from those who “violate” it. It does not appear that the sales made in good faith in the instant case were made “pursuant to” any provision or regulation under the Act. Section 205(d) does not apply in this situation. When the bill was before the Senate, the Committee on Banking and Currency reported that “of course Section 205(d) does not confer any immunity upon any person who violates any such provision, regulation, order or requirement”. (Sen.Rep. 931, 77th Cong., 2nd Sess.) In Bowles v. Rock, D.C., 55 F.Supp. 865, 868, the court said: “For civil liability the violative act is adequate; its willfulness is not required and need not be alleged. The language of Title 50 U.S. C.A.Appendix, § 925(d) is simply inapplicable to suits brought, as this one is, under Title 50 U.S.C.A.Appendix, § 925(e), and merely absolves persons from possible liability for damages or penalties arising out of their compliance in good faith with the Act and its implementing regulations. It has no reference to liabilities created by the Act itself for its own violation.” Zwang v. A. & P. Food Stores, Inc., 181 Misc. 375, 46 N.Y.S.2d 747; Maitland v. Krieger, Ct.Com.Pl. N.D., O.P.A. Service P. 622:-340.
While this action was pending, § 205(e) was amended by §§ 108(b) and 108(c) of the Stabilization Extension Act of 1944. Under § 108(b) good faith is made a factor in the mitigation of damages. “If the defendant proves that the violation of the regulation, order, or price schedule in question was neither wilfull nor the result of failure to take practicable precautions against the occurrence of the violation” his damage liability is reduced to “the amount of the overcharge or overcharges or $25; whichever is greater.” It seems clear from the unqualified language of the Act that good faith alone is not a sufficient defense under § 108(b). Not only must the defendant show that the violations were not “willful” he must also show that he took “practicable precautions” to avoid violating the regulations before he is entitled to the benefits of the reduction in damages.
Section 108(c) of the Stabilization Act, supra, makes the amendment applicable to pending proceedings. This is not an action by a buyer, nor is it an action which may be instituted by the Administrator only after the buyer has failed to bring suit within thirty days from the occurrence of the violation. Defendants are therefore entitled to claim the benefits of the amendment.
The order of the District Court dismissing the claim for damages is reversed and the case remanded for further proceedings in accordance with this opinion.
“Sec. 205(a). Whenever in the judgment of the Administrator any person has engaged or is about to engage in any acts or practices which constitute or will constitute a violation of any provision of section 4 of this Act, he may make application to the appropriate court for an order enjoining such acts or practices, or for an order enforcing compliance with such provision, and upon a showing by the Administrator that such person has engaged in or is about to engage in such acts or practices a permanent or temporary injunction, restraining order, or other order shall be granted without bond.” 50 U.S.C.A. Appendix § 925.
“Sec. 205 (d). No person shall be held liable for damages or penalties in any Federal, State, or Territorial court, on any grounds for or in respect of anything done or omitted to be done in good faith pursuant to any provision of this Act or any regulation, order, price schedule, requirement, or agreement thereunder, or under any price schedule of the Administrator of the Office of Price Administration or of the Administrator of the Office of Price Administration and Civilian Supply, notwithstanding that subsequently such provision, regulation, order, price schedule, requirement, or agreement may be modified, rescinded, or determined to be invalid. In any suit or action wherein a party relies for ground of relief or defense upon this Act or any regulation, order, price schedule, requirement, or agreement thereunder, the court having jurisdiction, of such suit or action shall certify such fact to the Administrator. The Administrator may intervene in any such suit or action.”
Sec. 205(e) as amended by §§ 308(b) and 108(c) of the Stabilization Extension Act of 3.944 (Act of June 80, 1944, Public Laws 883, 78th Cong., 2nd Sess.) 50 U.S.C.A. Appendix §§ 901-946:
“ ‘(e) If any person selling a commodity violates a regulation, order, or price schedule prescribing a maximum price or maximum price,s, the person who buys such commodity for use or consumption other than in the course of trade or business may, within one year from the date of the occurrence of the violation, except as hereinafter provided, bring an action against the seller on account of the overcharge. In such action, tlie seller shall bo liable for reasonable attorney’s fees and costs as determined by the court, plus whichever of the following sums is tho greater: (1) Such amount not more than three times the amount of the overcharge, or tho overcharges, upon which the action is based as the court in its discretion may determine, or (2) an amount not less than $25 nor more than $50, as the court in its discretion may determine: Provided, however, That such amount shall be the amount of the overcharge or overcharges or $25, whichever is greater, if the defendant proves that the violation of the regulation, order, or price schedule in question was neither wilfull nor the result of failure to take practicable precautions against the occurrence of the violation. * * *
“If any person selling a commodity violates a regulation, order, or price schedule prescribing a maximum price or maximum prices, and the buyer either fails to institute an action under this subsection within thirty days from the date of the occurrence of the violation or is not entitled for any reason to bring the action, the Administrator may institute such action on behalf of the United States within such one-year period. If such action is instituted by the Administrator, the buyer shall thereafter be barred from bringing an action for the same violation or violations. Any action under this subsection by either the buyer or the Administrator, as the case may be, may be brought in any court of competent jurisdiction. A judgment in an action for damages under this subsection shall be a bar to the recovery under this subsection of any damages in any other action against the same seller on account of sales made to the same purchaser prior to the institution of the action in which such judgment was rendered.’ (c) The amendment made by subsection (b), insofar as it relates to actions by buyers or actions which may be brought by the Administrator only after the buyer has failed to institute an action within thirty days from the occurrence of the violation, shall be applicable only with respect to violations occurring after the date of enactment of this Act. In other cases, such amendment shall be applicable with respect to proceedings pending on the date of enactment of this Act and with respect to proceedings instituted thereafter.”
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_numappel
|
2
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of appellants in the case. If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Mitchell T. HELLER and M & M Investment Company, Plaintiffs-Appellees, v. David I. NAMER and National Financial Management, Inc., both d/b/a Financial Management Services, Defendants-Appellants. NATIONAL FINANCIAL MANAGEMENT SERVICES, INC., d/b/a Financial Management Services, Plaintiffs-Appellants, v. Mitchell T. HELLER, II, Mitchell T. Heller, III, Golden West Corporation, Inn Crowd and Kent White, Defendants-Appellees. FIDELITY FINANCIAL OF FLORIDA, INC., Plaintiff-Appellant, v. Mitchell T. HELLER, II, Mitchell T. Heller, III, Golden West Corporation, Inn Crowd and Kent White, Defendants-Appellees.
No. 79-2579.
United States Court of Appeals, Fifth Circuit. Unit A
Feb. 1, 1982.
Terry A. Bell, Gretna, La., for defendants-appellants.
Stone, Pigman, Walther, Wittmann & Hutchinson, Stephen H. Kupperman, Campbell C. Hutchinson, New Orleans, La., for defendants-appellees.
Before BROWN and POLITZ, Circuit Judges.
Former Fifth Circuit case, Section 9(1) of Public Law 96-452 — October 14, 1980.
Due to his death on May 15, 1981, Judge Gewin did not participate in this decision. The case is being decided by a quorum. 28 U.S.C. § 46(d).
JOHN R. BROWN, Circuit Judge:
This diversity action arises from the alleged breach of a contract to secure from a savings and loan association a commitment to finance the acquisition of a hotel. As part of the contract, for processing the application fee, the finance company received two checks — the first of which was dishonored by the bank for payment and the second, a replacement for the dishonored check. Subsequently, the first check was re-presented by the payee and paid by the drawee bank. The finance company retained the funds from both checks presumably as partial payment of its fee for securing the loan. The District Court granted summary judgment to the borrower for the amount of both checks and dismissed the counterclaim of the finance company. Finding that no genuine issue of material fact exists since as a matter of law no commitment to finance was issued, we affirm the granting of summary judgment as to the refund of both checks. We find, however, that due to a missing transcript we are unable to review the lower court determination of personal liability and therefore remand for a determination of this limited issue.
The Inn Crowd
In 1977, Mitchell T. Heller (Heller) was seeking a standby loan commitment to help finance the acquisition of a hotel in Odessa, Texas, the Inn of the Golden West. If financing were secured, the hotel was to be acquired by Inn Crowd, a partnership to be formed by Heller, his father, M. T. Heller, II, and Kent White. Frederick Wohlfeld, a loan broker employed by Fidelity Financial of Florida (Fidelity), suggested that Heller contact David Namer to assist in procuring the loan. Namer was president of National Financial Management, Inc. d/b/a Financial Management Services (Financial) in New Orleans. Apparently, Namer and Heller had prior dealings within the previous year, but that transaction aborted prior to securing a loan. Heller came to New Orleans to meet with Namer on September 12, 1977, at which time Heller executed an application form for the loan and delivered to Namer: (1) a check for $25,000, drawn on Heller’s father’s account in the Arizona Bank maintained under the name “M & M Investment Company,” a nonexistent entity, and (2) a transmittal letter. The check was a good faith deposit required to accompany the submission of the application for a loan. At this meeting, the name of the payee of the check was changed from Management Service Consultants to Financial Management Services and the notation on the bottom was also modified. The transmittal letter, signed by Heller’s father, was also corrected by the addition of two paragraphs, one correcting the name of the addressee to indicate that “Name of the corporation is Financial Management Services, and not Management Services Consultants,” and one amending the provisions concerning the handling of the deposit. The application form provided for Financial to receive $104,000 in fees if an acceptable (i.e., substantially in accordance with the application conditions) commitment was “granted and/or offered”, less the application deposit of $25,000. The terms of liquidated damages for failure to accept the commitment and return of the application fee if the commitment was not acceptable were also covered by the form. Fidelity, for its assistance in securing the loan, was also to receive llh% fee “payable l/z% on acceptance of the Namer commitment and 1% on funding.”
On or about September 23, 1977, Heller was informed that his bank had refused to pay the $25,000 check because of the change in the name of the payee and had returned the check to Namer.- After notifying Nam-er of this wrinkle and negotiating with him, Heller agreed to send Namer a replacement check, but this time for $26,000. This $1000 increase in the amount of the second check reflected the change ih the amount of the loan being requested. Although Heller was supposed to deposit 1% of the total loan sought, he had anticipated only a $2.5 million loan in early September and Namer had agreed to accept the smaller deposit. Apparently, the first check was subsequently re-presented for payment and cleared sometime prior to October 14, 1977. Thus through a fortuitous series of events, at least from Mr. Namer’s standpoint, Financial came to hold $51,000 (the amount of the first check and the replacement check), rather than a $25,000 deposit.
Standing By
On October 11, 1977, Heller and Namer spoke by telephone, during which conversation Namer informed Heller that a commitment would be issued and that Heller should be in New Orleans not later than October 21 to accept the commitment and pay, by cashier’s check, the balance of the fee. Heller apparently was not particularly receptive to paying the fees without first receiving a copy of the commitment to review, but Namer agreed to send Heller sample language which arrived in Heller’s Arizona office on October 13, 1977. On or about October 14, Heller discovered that the first check for $25,000, previously dishonored, had been paid by his bank and requested Namer to return the excess funds. On October 19,1977, Heller received a telegram stating that a commitment had been issued and requesting that the remaining $53,000 balance of the fees ($104,000 minus deposits of $26,000 and $25,000), now due, be forwarded by October 21 and informing Heller that the commitment would expire if not accepted prior to October 28, 1977. This telegram was also confirmed by a letter dated October 19,1977. Heller responded to the telegram and letter with another demand for return of the $25,000, informing Namer that the retention of these funds constituted a breach of contract. According to Namer’s brief, he never agreed with Heller to return the excess funds because he believed they were already earned and because of the problems he had had in prior dealings with Heller. Counsel for Namer admitted that his client decided unilaterally to retain the full $51,000. Namer responded on October 21, 1977 to Heller’s letter, clarifying that the contract was with Financial Management Services as a corporate entity, not David Namer, and stating that Financial had “granted and offered” a commitment substantially in accordance with the terms of the application, both verbally and in writing on October 12,1977 and on October 19, 1977.
Namer’s Show and Tell
On October 27, 1977, Heller, his attorney, and a secretary met in Namer’s office with Namer, Wohlfeld of Fidelity, and Namer’s attorney. At that time Heller demanded return of the $25,000 which Namer refused, declaring that a commitment had been issued and that all fees were then due. According to Namer, a commitment was tendered and refused. Namer declined to show Heller the commitment or tell who the purported lender would be until Heller either (1) proved that funds sufficient to pay all fees were present in New Orleans or (2) paid all fees. At this meeting, which carried over to October 28, Heller and his attorney were eventually provided with a copy of the “commitment”, but with the name of the lender and all signatures whited out. Considerable discussion occurred about the substantive aspects of the commitment, including whether any problems existed in complying with state usury laws and whether Heller would be able to obtain an interim lender based on the commitment. Heller and his attorney were not convinced that the commitment was substantially in accordance with the application and were not willing to pay any fees without first knowing the name of the issuer to verify the stability of that institution. Namer asserts that Heller had no intention of complying with his obligations under the application or of accepting the commitment. Concerning the issue of the anonymity of the proposed lender, Namer points to Wohlfeld’s statement that he (Wohlfeld), knowing the name of the lender, believed the commitment was proper, that he could obtain an interim lender on the basis of the commitment, and that he had verified its financial integrity. The meeting of October 28, 1977 ended after Heller demanded a return of his money and Namer refused to return the funds.
Apparently on the same day as the first meeting, October 27, 1977, Heller filed an action in federal court to sequester $25,000 (the amount'of the dishonored first check subsequently re-presented and paid) in the bank account of Financial. A writ of sequestration did issue on November. 1, 1977, but no funds were present in the account sequestered. Heller’s amended complaint demanding a return of $51,000 named Financial as an additional defendant. The defendants counterclaimed for damages in the amount of $250,000 caused by the allegedly wrongful sequestration and for additional damages caused by the plaintiff’s initiating of allegedly improper criminal complaints with state and local governmental authorities. Financial instituted a separate action in federal court against Heller, his father, Golden West Corporation, Inn Crowd and Kent White to obtain the remainder of the fees ($53,000) allegedly due under the application for the loan commitment. Fidelity also filed suit in federal court against both Hellers, Golden West, Inn Crowd, and Kent White, the same defendants as Financial had, seeking to obtain a commission of $39,000 for the procurement of the loan commitment allegedly obtained by Financial. These cases were subsequently consolidated after which the plaintiffs filed a motion for summary judgment on all issues, including the claims by Financial and Fidelity. Following oral argument, on March 14, 1979, the District Court orally assigned reasons for judgment, granting summary judgment (entered April 11, 1979) against Financial and Namer for $51,000 and dismissing all other actions. A motion for reconsideration was denied on June 6, 1979.
In this appeal, Namer, Financial, and Fidelity assert that summary judgment was improper because issues of fact remained. In addition, they assert that the District Court undertook to make credibility choices in the competing affidavits and drew inferences of fact against the party opposing the summary judgment.
Hide and Seek — The Missing Record
[1] During oral argument before this Court it was revealed that the record was incomplete, lacking (1) the transcript of the hearing for summary judgment, during which the District Court judge orally assigned his reasons for granting the motion, and (2) the transcript of the hearing on the motion for reconsideration. At that time we indicated that the parties were to insure that the transcripts were filed promptly. Presently, we have a full transcript of the June 6, 1979 hearing on the motion for reconsideration but only a partial transcript of the March 14,1979 hearing on the motion for summary judgment. The court reporter not only delayed transcribing the March 14 hearing but also managed to lose a portion of his notes. We mention the lost transcript to emphasize our dismay with the court reporter’s carelessness. Fortunately, the hole created in the record can be rewoven but the reconstructing of it requires needless judicial time and effort.
We do not find it necessary either to reverse the decision of the District Court on the basis of the lost transcript or to refer the issue back to the District Court for resolution pursuant to F.R.A.P. 10(e). Although nothing in F.R.Civ.P. 56, governing summary judgment, technically requires a statement of reasons by a trial judge for granting a motion for summary judgment, we have many times emphasized the importance of a detailed discussion by the trial judge. Here the parties were informed by the District Court of the basic reason for which the summary judgment was granted. Although we are missing a portion of the transcript of the March 14 hearing, the judge reiterated sufficient reasons for his having granted the motion at the later hearing on the motion for reconsideration on June 6, the transcript of which we have available at this time. As we will discuss in more detail below, Judge Gordon specifically stated that as a matter of law no commitment had been issued.
No Issue of Fact — No Commitment Issued
[2,3] Summary judgment is proper under F.R.Civ.P. 56 when no genuine issue of material facts exists and the moving party is entitled to judgment as a matter of law. From the transcript of the hearing on the motion for reconsideration on June 6, 1979; the District Court’s granting of summary judgment was based on the judge’s conclusion that as a matter of law no commitment had been offered. From the pleadings, affidavits, documents, answers to interrogatories, depositions, and arguments and memoranda of counsel, it is undisputed that two checks from Heller, one for $25,000 and one for $26,000, were negotiated at some time prior to October 14, 1979, the date on which Heller discovered that the first check had been re-presented and paid. There also is no dispute that on October 19, 1979, Namer telegraphed Heller that a commitment “has been issued” even though the commitment itself, eventually submitted with the defendants’ motion opposing summary judgment, is dated October 21, 1977. Nor is there any disagreement as to the undisputed fact that at the meeting on October 27, 1977, a copy of the commitment, with the name of the lender and the signatures whited out, was provided to Heller and his attorney. The record contains the loan application which provided that the fee of $104,000 would be earned “should a commitment and/or loan be granted and/or offered substantially in accordance with the conditions” of the application.
We agree with the District Court that there was a total failure to prove that a commitment “substantially in compliance” was offered or granted. Heller was not given the name of the lender and could not verify the stability of the proposed lender, or indeed whether a commitment actually existed. Certainly, the lack of the name of the lender made it impossible to determine if the commitment conformed even minimally with the application requirements. Even viewing the evidence in the light most favorable to the party opposed to the motion for summary judgment, the defendants on the evidence asserted by them wholly failed to prove performance of the contract, that is, the granting of a commitment. This determination was not one of the credibility of witnesses or disputed facts, but rather a determination that as a matter of law the presentation of the commitment with the whited out name of the lender and signatures does not constitute proof of the offering or granting of a commitment.
Defendant Financial attempts to cloud the water by raising several issues of fact which are peripheral to Heller’s establishment of the right to judgment as a matter of law. First, Financial’s primary contention is that at the time the first check for $25,000 was re-presented and paid, a commitment had been “issued.” Whether the commitment was “issued” or merely “forthcoming”, it is undisputed that Heller did not see even a whited out copy of the commitment prior to October 27, almost two weeks after Namer was notified that the second check had been paid. Thus, at the time Financial retained the additional funds, as a matter of law no commitment had been “offered” to Heller.
Namer also argues that there is a factual dispute concerning whether he intended to require Heller to pay the fees or only demonstrate the ability to pay the fees prior to being allowed to review the commitment. We find that this issue is irrelevant to Heller’s right to recover since it is undisputed that there was no requirement that Heller either pay or prove his ability to pay the fees prior to viewing the commitment. Nor did any evidence from any party raise the possibility of an inference of any such precondition.
Since it is clear as a matter of law that Financial could not establish a defense based on performance of the contract, even when viewing the facts in the light most favorable to Financial, we find that the granting of summary judgment for the return of $51,000, the amount of both checks, was proper. No commitment as a matter of law had been offered and therefore no fees had been earned. Financial was not entitled to retain the amount of the deposit since under the application all funds were to be returned if a commitment not substantially in compliance was not accepted. And the retention of the additional funds ($25,000) is equally unsupported since we have determined that no commitment was issued and therefore no fees of $104,000 were due. This also disposes of the separate claim by Namer and Financial for the remainder of the fees. Based on the uncontradicted fact that all Namer showed Heller was a commitment with the name of the lender whited out, there was no performance of the contract. Heller simply does not owe Financial a dime.
What’s In a Name?
While the determination that summary judgment was proper leads us to affirm the judgment as to Financial and Fidelity, we must remand the case for further consideration of the issue of Namer’s personal liability. The District Court held Namer personally liable, as well as Financial, for the judgment. Unfortunately, the end of the court reporter’s transcript of the March 14, 1979 hearing roughly corresponds with the beginning of the argument on personal liability and thus we have no indication of the District Court’s reasoning for finding Namer personally liable. Namer raised a factual dispute whether due to the prior course of dealings between the parties Heller was aware of the corporate status of Financial Management Services. Also Namer asserts that the modification to the September 9, 1977 letter, stating that “Name of the corporation is Financial Management Services, and not Management Services Consultants”, along with the verbal discussion, called Heller’s attention to the corporate status of Financial Management Services. Heller, both in his motion for summary judgment and in his brief, argued that Namer had a duty affirmatively to bring his agency relationship to Heller’s attention and failed to do so. Relying on Louisiana Civil Code, Article 2324, Heller also asserts that the officer, director or shareholder of a corporation who participates, aids or abets the corporation in the commission of a tort or unconscionable act is solidarily liable with the corporation for all loss or damage sustained by a third party. Bluefields S. S. Co. v. Lala Ferreras Cangelosi S. S. Co., 133 La. 424, 63 So. 96 (1913). Heller contends that since the deposit funds were to be held “in tact” and Namer’s personal representations induced' Heller to send the second check, Namer, as the president, aided in wrongful and tortious conversion.
From the abbreviated state of the March 14, 1979 transcript, we cannot determine whether the District Court improperly resolved the factual dispute of Heller’s awareness of corporate status or whether, as a matter of law, the District Court concluded that Namer was personally liable. We therefore remand to the District Court the issue of Namer’s liability personally both as to the $26,000 application fee and the $25,-000 check re-presented and paid. We believe that at the minimum there is no question that Financial was not entitled to retain at any time the $25,000 over and above the amount of the $26,000 required deposit. We do not here decide whether or not Louisiana law views this action, as well as the later refusal to return the deposit of $26,-000, as one unlawful under art. 2324, whether Namer actually assisted in an unlawful act, or whether Namer failed to meet any duty to disclose an agency relationship. We leave for the District Court to determine upon remand Namer’s personal liability, if any, for tortious conversion or breach of fiduciary duties. While we regret the duplication of judicial effort, we cannot, due to the inexplicable and inexcusable loss of the portion of the court reporter’s notes for the March 14, 1979 hearing, here determine whether the District Court acted properly in assessing individual liability.
A Noncommittal Closing
Having disposed of Heller’s claim, we briefly touch on the issues raised in the other lawsuits consolidated with this one. We hold that the District Court correctly granted summary judgment in favor of Heller and against Fidelity. The agreement between Heller and Fidelity provided for the payment of fees “on acceptance of Namer commitment” and “on funding.” It is undisputed that Heller never accepted the commitment since we found that it was not offered for him to accept, and it is clear that the commitment was never funded. Thus, Fidelity is entitled to no fees. Fidelity’s argument that Heller’s actions were solely responsible for the failure to fulfill the terms of the application is clearly incorrect based on our holding that Namer did not perform his part of the bargain.
Since we found that Namer did not perform his contract, it is clear that he has no basis to recover the remainder of the fees. As to the counterclaim in the original suit, that for malicious prosecution, defamation, and abuse of process, we find these claims frivolous. Before an action for malicious prosecution or defamation stemming from allegations in a lawsuit can be asserted, Louisiana law generally requires that the suit must have terminated. Brown & Root, Inc. v. Big Rock Corp., 383 F.2d 662 (5th Cir. 1967); Marionneaux v. King, 331 So.2d 180 (La.App. 1st Cir. 1976); Calvert v. Simon, 311 So.2d 13 (La.App. 2d Cir. 1975). Not only was the lawsuit not terminated, but in view of the District Court’s primary holding and our decision there is no basis in this record for the contention, much less the conclusion, that Heller lacked probable cause for initiating his litigation, especially when Namer re-presented the first check without notice to Heller. Since there was no improper use of process, the abuse of process claim is also without merit.
AFFIRMED IN PART, REVERSED IN PART.
. According to Namer, Heller first approached Financial in October 1976 after contacting Eleven West Mortgage and Investment, Inc., requesting a permanent mortgage loan. Namer contacted Heller directly to inform him that while a permanent loan was not available, a standby loan for acquisition and renovation was feasible. Heller had RLS Real Estate Services Corp. submit a proposal which was forwarded to Financial in November 1976. Subsequently Heller contacted Financial, and according to Namer, set up and cancelled three separate appointments before advising Financial that he was no longer interested in financing.
The prior dealings are also substantiated by a letter of August 16, 1977, from Mitchell T. Heller to Wohlfeld of Fidelity, which states in part:
We’ve got two other potentials working at the moment... both qualified institutions that have expressed an interest despite the location, age, etc. Should have a yes or no within the next 14 days.
In the meantime, have Mr. Namer do what we’ve been doing for well over a year... cool his heels a little. As you know, we’ll not be rushed or bullied into taking on an extremely expensive standby. While I realize that a bird in the hand... I want to let nature take over ’til Labor Day.
Then, we’ll either accept the standby or the permanent, whichever is in hand.
. Dear Mr. Namer:
Attached is a check for $25,000 which is to be held as good faith deposit pending issuance of a commitment in connection with the purchase of the Inn of the Golden West in Odessa, Texas.
It is understood these funds wall be held in tact until such time as commitment is issued. It is further our understanding that should the transaction not materialize, for any reason whatsoever, this check will be returned forthwith.
Very truly yours,
M. T. Heller, II
. To the original notation on the check of “Good faith deposit as per ltr of 9/9/77” was added “and application of 9/12/77”.
. Check No. 1258, received along with this letter, is accepted with the following modifications
1. Name of the corporation is Financial Management Services, and not Management Services Consultants.
2. Paragraph 2 of this letter is hereby amended to read that in accordance with the application for loan commitment dated September 12, 1977, that should the loan commitment not be forthcoming as per the terms and conditions outlined therein, then the funds will be returned in full.
. 5. A. Should a commitment and/or loan be granted and/or offered substantially in accordance -with the conditions and authorizations of this Application, FMS and/or its nominee, will have earned a permanent and non-refundable fee of $104,000.00 and said fee is due and payable, less the Application deposit amount, without demand.
B. Application Deposit: A cash deposit of $26,000.00, representing one (1)% of the Loan Amount is enclosed herewith. Should this loan application be accepted and should a commitment substantially in accordance with the terms and conditions contained in this Application be offered and/or granted, then the cash deposit referenced above will be earned and retained by FMS and/or its nominee.
C. If applicant does not accept the loan and/or commitment, then the entire Loan Application Deposit will be retained as liquidated damages.
D. Should this Application not be accepted or should a commitment and/or loan be offered and/or granted substantially different from the above terms and conditions, and not acceptable to applicant, said deposit will be returned to the borrower, in full.
Should we, the undersigned applicant, elect not to accept the commitment requested within the time provided for herein, or fail to fulfill the terms and conditions of this authorization and Application, or fail to furnish all information, exhibits, and instruments required to obtain the requested commitment, close the requested loan, and/or fulfill the Application, then the deposit of $26,000.00 shall be retained by FMS, or its nominee, as liquidated damages.
. Wohlfeld, in a letter of September 26, 1977, told Heller that he would accept “a l‘/2% fee payable */2% on acceptance of Namer commitment and 1% on funding.” Heller confirmed this arrangement, stating that he agreed to “1.5%, payable 'A% on acceptance by us and our bank, the balance on funding.”
. At the hearing before Judge Gordon, on March 14, 1979, to consider Heller’s motion for summary judgment, the following exchange occurred:
COUNSEL FOR NAMER: We are now into the question of two checks. The factual issue here is whether or not Defendants at this time were entitled to their full $104,000 fee. The issue there turns on whether or not a commitment, in fact, be issued, or was forthcoming at the time and whether or not Plaintiffs had a right under the factual issues as they then stood, to retain funds. Now—
THE COURT: Aren’t you saying that Mr. Nam-er decided on his own, unilaterally that he had done that without giving the Plaintiff an opportunity to see whether there had been a commitment?
COUNSEL FOR NAMER: He wrote them a letter saying that he was retaining the funds at this time to be in his office in order to accept the commitment. At that time they would be given an opportunity to review the commitment and decide whether or not it was in substantial accordance and whether or not the fees were actually earned.
THE COURT: But, did you have anything to indicate that they acquiesced in the procedure to be suggested in that letter?
COUNSEL FOR NAMER: There is no indication that they ever acquiesced to that.
THE COURT: So, he unilaterally decided to keep the second amount?
COUNSEL FOR NAMER: Well, he decided to keep it.
THE COURT: Without regard to reason, for convenience or whatnot, you do concede that he unilaterally decided to keep it?
COUNSEL FOR NAMER: I cannot state differently at this point.
THE COURT: I am just talking about it before me, I am trying to get straight in my mind, I am not arguing with you.
COUNSEL FOR NAMER: At this point, he unilaterally decided to keep it, pending their arrival in New Orleans to review the commitment.
. In this letter of October 21, 1977 Namer stated:
Let us now place our objectives in priority, and understand that, if you want the commitment as applied for in your Application of September 12, 1977, you have but to come to New Orleans and accept same and pay the remaining fees due.
. Heller states that Namer refused to provide the commitment until all fees were paid. In contrast, Namer asserts that he only wanted proof that sufficient funds were available in New Orleans to pay the fees. We find it unnecessary to determine which of these factual characterizations of the situation is correct since the application for the loan commitment neither required Heller to prove that sufficient funds were available nor to pay such fees prior to receiving the commitment.
. Namer attached to his Memorandum in Opposition to the Motion for Summary Judgment a transcription of the meeting on October 27, which he apparently taped. Namer, in response to the request by Heller’s attorney to know who was offering the commitment so as to determine the financial strength of the institution, stated: “You’re not going to know who the bank is until I’ve been shown that you are prepared to accept this commitment and pay the balance of points. If it means that Mr. Heller you should wire those funds to your own name into an account here in New Orleans, and issue a certified check or cashier’s check based on that account, and then we reconvene in the morning at 9:00 or 9:30 we could do that.”
Subsequently, the following exchange took place:
Counsel for Heller: I’d like to see a commitment tendered.
Namer: Show me your money and you’ll see it.
. The complaint named the defendant as David Namer, doing business as Financial Management Services.
. The writ authorized sequestration of $25,000 in the account of Financial Management Services “or in the absence of such account”, in the account of Namer.
. F.R.Civ.P. 52 specifically states that “[flmdings of fact and conclusions of law are unnecessary on decisions of motions under Rules 12 or 56.... ” See Boazman v. Economics Laboratory, Inc., 537 F.2d 210, 213 n.5 (5th Cir. 1976); Jot-Em-Down Store (JEDS), Inc. v. Cotter and Co., 651 F.2d 245, 247 (5th Cir. 1981); Erco Industries Ltd. v. Seaboard Coast Line Railroad Co., 644 F.2d 424, 434 (5th Cir. 1981); Farbwerke Hoeschst A.G. v. M/V “DON NICKY”, 589 F.2d 795, 798 (5th Cir. 1979); Mosley v. Ogden Marine, Inc., 480 F.2d 1226, 1226 (5th Cir. 1973).
. Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 467, 82 S.Ct. 486, 488, 7 L.Ed.2d 458, 460 (1962). In deciding a motion for summary judgment, the District Court must view the evidence in the light most favorable to the party resisting the motion. Cubbage v. Averett, 626 F.2d 1307, 1308 (5th Cir. 1980); Joplin v. Bias, 631 F.2d 1235, 1237 (5th Cir. 1980); Northwest Power Products, Inc. v. Omark Industries, 576 F.2d 83, 85 (5th Cir. 1978), cert. denied, 439 U.S. 1116, 99 S.Ct. 1021, 59 L.Ed.2d 75 (1979); BAW Manufacturing Co. v. Slaks Fifth Avenue Ltd., 547 F.2d 928, 930 (5th Cir. 1977). The burden to establish the absence of a genuine issue as to material facts is thus on the party moving for the summary judgment and all doubts must be resolved against the movant. Erco Industries Ltd. v. Seaboard Coast Line Railroad Co., 644 F.2d 424, 428 (5th Cir. 1981). The court, on a motion for summary judgment, may not resolve material factual disputes. Environmental Defense Fund v. Marsh, 651 F.2d 983, 991 (5th Cir. 1981); Kennett-Murray Corp. v. Bone, 622 F.2d 887, 892 (5th Cir. 1980). Nor may it assess the probative value of evidence presented. United States v. An Article of Food Consisting of 345/50-Pound Bags, 622 F.2d 768, 773 (5th Cir. 1980). In essence, summary judgment is reserved for the situation where the moving party has established his right to judgment with such clarity that the non-moving party cannot recover under any discernible circumstance. Joplin v. Bias, 631 F.2d at 1237; Everhart v. Drake Management, Inc., 627 F.2d 686, 690 (5th Cir. 1980).
. THE COURT; If I concluded that there was no material issue of fact surrounding the point that a commitment was never offered, does all this make any difference? Didn’t I conclude that under the circumstances of this case that the failure of your clients to offer or disclose all facts pertaining to this alleged commitment, amounted to failure to provide a commitment, among other things, deprived the Plaintiffs of opportunity to examine the credit, integrity of the alleged party whose name you had whited out. I concluded that there was no material issue of fact, it was a matter of law. No offer had been made. If that’s so, does this make any difference?
COUNSEL FOR NAMER: Well, our interpretation, or our search, it is a contract or commitment was, in fact, granted and offered at the meetings between the parties.
THE COURT
Question: What is the total number of appellants in the case? Answer with a number.
Answer:
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songer_applfrom
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E
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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 A. BOYCE, Appellant, v. Dr. ALIZADUH, and his Insurance Company, c/o Washington County Detention Center, Hagerstown, Md. and “Dick” Ford, Sheriff, Washington County, Maryland, Hagerstown, Md. 21740 and Carl Frick, Director, Washington County Detention Center, Hagerstown, Md. and Spurrier, U. S. Marshall for the District of Maryland and Dr. Kolakowski, USPHS Hospital, Baltimore, Maryland, Appellees.
No. 77-2242.
United States Court of Appeals, Fourth Circuit.
Argued Jan. 8, 1979.
Decided April 2, 1979.
Jerrold B. Pinsker, Rockville, Md., for appellant.
Michael A. Anselmi, Asst. Atty. Gen., Baltimore, Md. (Francis B. Burch, Atty. Gen. of Md., Clarence W. Sharp, Asst. Atty. Gen., Chief, Crim. Div., Baltimore, Md., on brief), for appellees.
Before BUTZNER and RUSSELL, Circuit Judges, and FIELD, Senior Circuit Judge.
DONALD RUSSELL, Circuit Judge:
The plaintiff, a federal prisoner, incarcerated in a State Detention Center, has filed pro se a § 1983, 42 U.S.C. action, charging a constitutional violation of his right to medical attention and care. He accompanied his complaint with a motion for leave to proceed in forma pauperis. The district court permitted the docketing of the action but later dismissed the complaint without the issuance of a summons, ruling that “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.” The plaintiff has appealed that dismissal.
The district court rested its authority to dismiss on § 1915(d). The exercise of this statutory authority as a basis for dismissal of an action, particularly in connection with a forma pauperis suit by prison inmates, has long been approved in this Circuit. Graham v. Riddle (4th Cir. 1977) 554 F.2d 133, 134-5; Caviness v. Somers (4th Cir. 1956) 235 F.2d 455, 456; Fletcher v. Young (4th Cir. 1955) 222 F.2d 222, 224, cert. denied 350 U.S. 916, 76 S.Ct. 201, 100 L.Ed. 802; Mann v. Leeke (D.S.C.1974) 73 F.R.D. 264, 265, aff’d. 551 F.2d 307; Hawkins v. Elliott (D.S.C.1974) 385 F.Supp. 354, 357; Spears v. United States (S.D.W.Va. 1967) 266 F.Supp. 22, 25; Farley v. Skeen (N.D.W.Va.1953) 113 F.Supp. 736, 737, appeal dismissed for want of exhaustion of state remedies, with the statement that “[w]e would * * * affirm the decision below if the case were properly before us.” 208 F.2d 791, 792. The procedure to be followed in its exercise was outlined in the first case in this circuit to consider the question:
“Where a petition for habeas corpus by a poor person is meritless, the court may permit the filing of such petition and then dismiss it as frivolous, and in a patently frivolous proceeding respondent will not be called upon to make a return or answer.” 113 F.Supp. at 737.
The two-step procedure followed in Skeen, whereby the district court determines whether the plaintiff qualifies by economic status under § 1915(a), and then, after allowing the complaint to be docketed upon a finding of economic justification, proceeds to the next step of determining whether the action stated in the complaint is “frivolous or malicious” within § 1915(d) before permitting the issuance of process, is the very procedure followed by the district court in this case and is the very procedure recommended by Judge Aldisert’s committee in its “Recommended Procedures For Handling Prisoner Civil Rights Cases In the Federal Courts” (Federal Judicial Center, Tentative Report No. 2,1977). This is, also, the procedure followed in the district court in Gamble v. Estelle (5th Cir. 1977) 554 F.2d 653 (on remand from the Supreme Court, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251), cert. denied 434 U.S. 974, 98 S.Ct. 530, 54 L.Ed.2d 465.
In its Report, Judge Aldisert’s committee declared:
“Some courts have blurred the distinction between § 1915(a) and § 1915(d) by approving the practice of denying leave to proceed in forma pauperis on the ground that the complaint is frivolous or malicious. The practice observed by most courts is to consider only the petitioner’s economic status in making the decision whether to grant leave to proceed in for-ma pauperis. Once leave has been granted, the complaint should be filed and the court should consider whether to dismiss pursuant to § 1915(d). See commentary following standard D, infra.”
The language of the commentary following Standard D is:
“The committee recommends that the decision whether to dismiss pursuant to § 1915(d) be made prior to the issuance of process. In this way the defendant will be spared the expense and inconvenience of answering a frivolous complaint.
“The committee recommends dismissal with no opportunity to respond when the complaint is irreparably frivolous or malicious. If the defect in the complaint is reparable, the court should issue an order to show cause, permitting the plaintiff to respond and to amend. If there are multiple defendants, the complaint should be dismissed as to those defendants against whom a frivolous or malicious cause of action is alleged and should be allowed to continue against the other defendants. In borderline cases, the court should not dismiss, but should let the case proceed and rule on a subsequent motion to dismiss if one is presented.”
Turning from the procedure to be used under § 1915(d) to the substantive question of when the power thereby given is to be exercised, many decisions have declared that the exercise of that authority is discretionary and that the discretion is “especially broad” in civil rights- actions brought by prisoners. Flowers v. Turbine Support Division (5th Cir. 1975) 507 F.2d 1242, 1244; Diamond v. Pitchess (9th Cir. 1969) 411 F.2d 565, 566; Shobe v. California (9th Cir. 1966) 362 F.2d 545, 546, cert. denied 385 U.S. 887, 87 S.Ct. 185, 17 L.Ed.2d 115; Boston v. Stanton (W.D.Mo.1978) 450 F.Supp. 1049, 1053-4; Ramsey v. United States (N.D.Ill.1978) 448 F.Supp. 1264, 1275-6; Jones v. Bales (N.D.Ga.1972) 58 F.R.D. 453, 463-4, aff’d. 480 F.2d 805 (5th Cir.). But however broad the discretion may be, it may not be exercised arbitrarily and is limited in a pro se case, such as here, by the rule in Haines v. Kerner (1972) 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 and in every case by the language of the statute itself which restricts its application to complaints found to be “frivolous or malicious.” There is, it will be noted, little practical difference between the Haines rule and the definition to be given “frivolous” under the statute. The rule in Haines as reaffirmed in Estelle v. Gamble (1976) 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251, is that “a pro se complaint, ‘however inartfully pleaded,’ must be held to ‘less stringent standards than formal pleadings drafted by lawyers’ and can only be dismissed for failure to state a claim if it appears ‘beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ ” Frivolousness of a complaint under § 1915(d) has been defined in largely those same terms. Thus, Judge Bell in Watson v. Ault (5th Cir. 1976) 525 F.2d 886, 892, defined frivolity under the statute:
“The test of frivolity in the context of Section 1915(d) in the trial court, has not been defined. In Anders v. California, 1967, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493, 498, the Supreme Court in a criminal case defined a frivolous appeal as being one without arguable merit. In our view this same test or standard should be applied in the trial court but in terms of the arguable substance of the claim presented, both in law and in fact.”
To satisfy the test of frivolousness under § 1915(d), it is accordingly essential for the district court to find “beyond doubt” and under any “arguable” construction, “both in law and in fact” of the substance of the plaintiff’s claim that he would not be entitled to relief. Conley v. Gibson (1957) 355 U.S. 41, 45-6, 78 S.Ct. 99, 2 L.Ed.2d 80; Watson v. Ault, supra 525 F.2d at 892. And a dismissal under such standard is appealable. Roberts v. U. S. District Court (1950) 339 U.S. 844, 845, 70 S.Ct. 954, 94 L.Ed. 1326; Flowers v. Turbine Support Division, supra, 507 F.2d at 1244; Foster v. United States (6th Cir. 1965) 344 F.2d 698, 700. In resolving this appeal and in determining whether the district court abused its discretion in dismissing the action against all defendants, we must thus apply the standard of frivolousness and want of arguable merit declared in Haines and Watson to the facts, liberally construed, as set forth in the plaintiff’s discursive complaint.
The plaintiff alleges in his complaint that he developed an infection in both ears while incarcerated in Washington County Detention Center, Hagerstown, Maryland, as a prisoner. He had had such an infection on at least three occasions prior to his incarceration and had been successfully treated for it. When he reported his infection to the prison authorities on this particular occasion, he was directed to the prison physician, the defendant Alizaduh, for medical attention. When seen by Dr. Alizaduh, the plaintiff told the doctor of his previous successful treatment of the condition. This prior treatment consisted, according to him, of a “white kind of Kenalog Cream and Timmeral tablets for the itching” and some “little white pills called steriods or something like that.” He, also, identified certain drugs to which he was supposed to be allergic. He specifically identified “Keeplex” and certain “Otic drop solutions” as such drugs.
Despite what may be considered, under a liberal construction of the pleadings, plaintiff’s warning that “Otic drop solutions” might produce an allergic reaction from such treatment, Dr. Alizaduh proceeded to prescribe for his condition “Neo-Decadron Otic drops.” The result, plaintiff alleges, was a serious aggravation of the infection. At this point, the plaintiff referred Dr. Alizaduh to his prior medical records and the drugs which were used in his earlier successful treatment of the infection. These records, he said, were available in Baltimore. Dr Alizaduh, however, directed the continuance of the “Otic” drops, even though it is inferable from plaintiff’s allegation that such drops had caused the plaintiff’s condition to become more aggravated, as the plaintiff had previously warned the physician. Later, at a meeting with Dr. Alizaduh at his offices, the plaintiff renewed his request that the physician obtain his prior medical record or consult with an “ENT Specialist” on the treatment of his infection. On this visit, Dr. Alizaduh did make a culture of the infection and prescribed the antibiotic Amphicillin. The condition of the plaintiff, though, continued to deteriorate. He had swelling in both his arms and legs and some fluid emissions and a “host of watered pimples,” later diagnosed as “a general allergic id reaction.” Finally, his condition became such that he was transferred to the United States Public Health Service Hospital in Baltimore, Maryland, for treatment of his condition, which had by that time become serious and which, according to the plaintiff’s allegations, he heard described by some hospital personnel as looking like “the dreaded staff [staph] disease.” As a result of what he alleged to have been intentional mistreatment of his condition, he suffered intense pain and discomfort.
It was the position of the district court that these allegations of the plaintiff set forth no more than a disagreement between the plaintiff and the physician over the proper treatment of the plaintiff’s condition. Were this the full possible extent of plaintiff’s claim, the action of the district court could not be faulted. Estelle v. Gamble, supra, 429 U.S. at 104, 105, 97 S.Ct. at 292, makes it quite clear that mere error of judgment or “inadvertent failure to provide adequate medical care,” while perhaps sufficient to support an action for malpractice, will not constitute a constitutional deprivation redressable under § 1983, 42 U.S.C.; it is only when there is a “deliberate indifference to serious medical needs” of a prisoner that the conduct of the physician rises to the level of a constitutional deprivation. But it is possible to deduce from the inartful and over-discursive language of the complaint that the plaintiff is charging that he warned the prison physician of his possible allergic reaction to the medicine being prescribed by the physician, and that, even after this possibility had been established as a fact, the physician persisted in prescribing the very same medication which had caused the allergic reaction, with the result that the plaintiff suffered a serious and painful aggravation of his condition. We do not mean to find that such is the necessary thrust of the plaintiff’s allegations; we merely find that the allegations of the plaintiff are sufficient under these circumstances to overcome a charge of “frivolousness” against a pro se complaint under § 1915(d) and to make necessary a response from the prison physician, Dr. Alizaduh.
However, the prison officials other than the prison physician, are beyond any doubt not liable to the plaintiff under any conceivable state of facts. There is no intimation in plaintiff’s complaint that these officials were neglectful of the plaintiff’s needs. They promptly provided the plaintiff with medical attention. The prison physician, to whom they referred the plaintiff, promptly saw the plaintiff and engaged on a course of treatment. The plaintiff does allege that he complained to one of the prison guards about the medical treatment which was being given him but the guard could not be held liable for any alleged dereliction by the prison physician. The dismissal of the action against all the defendants other than the prison physician, Dr. Alizaduh, is accordingly affirmed but the dismissal of Dr. Alizaduh is reversed with directions that process should issue against him.
Affirmed in part and reversed in part and remanded to the district court with directions.
. 28 U.S.C. § 1915(d) provides:
“The court may request an attorney to represent any such person unable to employ counsel and may dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.”
. The Supreme Court’s sub silentio treatment of the procedure by the majority opinion in 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 was considered in Smart v. Villar (10th Cir. 1976) 547 F.2d 112, 113 — 4, to be an approval of the procedure followed by the district court here.
. Page 54.
. Pages 56 and 57.
. The language of the committee in its first report (1975) is substantially the same as that in its second report, quoted above. See Sinwell v. Shapp (3d Cir. 1976) 536 F.2d 15, 18-19, notes 9 and 10.
. The rationale for this “especially broad” discretion in prisoner civil rights cases is stated in Jones v. Bales, supra, 58 F.R.D. at 463:
“There are compelling reasons for allowing courts broader dismissal powers in forma pauperis suits — especially damage suits brought by convicted prisoners — than in other cases. Persons proceeding in forma pauperis are immune from imposition of costs if they are unsuccessful; and because of their poverty, they are practically immune from later tort actions for ‘malicious prosecution’ or abuse of process. Thus indigents, unlike other litigants, approach the courts in a context where they have nothing to lose and everything to gain. The temptation to file complaints that contain facts which cannot be proved is obviously stronger in such a situation. For convicted prisoners with much idle time and free paper, ink, law books, and mailing privileges the temptation is especially strong. As Justice Rehnquist has noted, ‘Though [an inmate] may be denied legal relief, he will nonetheless have obtained a short sabbatical in the nearest federal courthouse.’ Cruz v. Beto, 405 U.S. 319, 327, 92 S.Ct. 1079, 1084, 31 L.Ed.2d 263 (1972) (dissenting).”
. In Williams v. Field (9th Cir. 1968) 394 F.2d 329, 331, cert, denied 393 U.S. 891, 89 S.Ct. 213, 21 L.Ed.2d 171 the Court said that the discretion under § 1915(d) was to be exercised “generally only where it would be proper to dismiss the complaint sua sponte before service of process if it were filed by one tendering the required fees.”
. Some courts have defined a “frivolous” action within § 1915(d) as one in which the “plaintiffs realistic chances of ultimate success * * * are slight, * * Boston v. Stanton, supra, 450 F.Supp. at 1054; Serna v. O’Donnell (W.D.Mo.1976) 70 F.R.D. 618, 621; Clark v. Zimmerman (M.D.Pa.1975) 394 F.Supp. 1166, 1178; Jones v. Bales, supra, 58 F.R.D. at 464. The basis for this definition is forcefully stated in Jones v. Bales and the language of the court in that case has often been quoted in later cases, expressing the same rule. We, however, are not certain that such rule can be squared with the language of the court in Haines and Estelle and we are inclined to accept the definition of frivolity stated in Watson, quoted in the text. The Aldisert committee, too, appears to adopt the Watson standard. Page 57.
. See, also, Russell v. Sheffer (4th Cir. 1975) 528 F.2d 318 at 319:
“Questions of medical judgment are not subject to judicial review” and do not present a constitutional violation regressable under § 1983.
. See Thomas v. Pate (7th Cir. 1974) 493 F.2d 151, 158, cert, denied 419 U.S. 879, 95 S.Ct. 143, 42 L.Ed.2d 119 (plaintiff brought to attention of nurse his allergy to penicillin, but was nonetheless given shot with bad results); Williams v. Vincent (2d Cir. 1974) 508 F.2d 541, 544 (choice of less efficacious treatment than that requested by plaintiff-prisoner may amount to deliberate indifference.) Both of these cases are cited with approval in Estelle, 429 U.S. at 106, n. 14, 97 S.Ct. 285.
. Our position is that stated in Vinnedge v. Gibbs (4th Cir. 1977) 550 F.2d 926, 928:
“We think the complaint stated enough so that it should not have been dismissed, but we hasten to add we express no opinion as to whether or not the plaintiff with aid of counsel will be able to state a cause of action.”
. This accords with what the court did in Vinnedge v. Gibbs, supra, and what was done on remand from the Supreme Court in Gamble v. Estelle (5th Cir. 1977) 554 F.2d 653, 654, rehearing denied 559 F.2d 1217, cert, denied 434 U.S. 974, 98 S.Ct. 530, 54 L.Ed.2d 465. In Gamble, the court, in dismissing the action against the prison officials, said (p. 654);
“Here Gamble has failed to meet the rigorous guidelines described above. His complaint is directed primarily at the prison physician who actually performs the medical treatment, while the Director and the warden are parties, not for having failed to provide treatment, but more on respondeat superior principles in line with their official capacities. We can find no evidence in the record that either exhibited ‘deliberate indifference’ to Gamble’s medical needs by means of interference with the prison doctor’s performance or in any other manner which would satisfy the Supreme Court standard.”
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_othcrim
|
E
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule for the defendant on grounds other than procedural grounds? For example, right to speedy trial, double jeopardy, confrontation, retroactivity, self defense." This includes the question of whether the defendant waived the right to raise some claim. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
NATIONAL LEAD COMPANY, a Corporation, Appellant, v. Bernard M. WOLFE and Frederick J. Dannenfelser, Individuals and Copartners, Doing Business Under the Names and Styles “Dutch Paint Co.,” and “Manning-Mitchell Paint Co.,” Appellees.
No. 13737.
United States Court of Appeals Ninth Circuit.
May 17, 1955.
Rehearing Denied July 14, 1955.
See, also, 15 F.R.D. 61.
Robert E. Burns, Crimmins, Kent, Draper & Bradley, San Francisco, Cal., James D. Ewing, New York City, Milton Handler, San Francisco, Cal., John B. Henrick, New York City, for appellant.
James M. Naylor, Frank A. Neal, Naylor & Lassagne, San Francisco, Cal., for appellee.
Before DENMAN, Chief Judge, POPE, Circuit Judge, and BYRNE, District Judge.
POPE, Circuit Judge.
The plaintiffs-appellees, citizens of the State of California, brought a suit for declaratory relief against the defendant-appellant, a New Jersey corporation, praying for an adjudication that the plaintiffs’ use of the words “Dutch”, “Dutch Paint Company” and “Dutch Paint” in connection with the paint and.paint products manufactured and processed by them does not infringe the rights of appellant in its trade mark “Dutch Boy”.
Appellant, by counterclaim, alleged its prior adoption and use of the trade mark “Dutch Boy”, the registration of this mark, for paint products, in the United States Patent Office in 1937; that it has built up a large and profitable business in its products identified with that trade mark and has spent large sums in advertising it; that since 1949 the appellees, with knowledge of appellant’s trade mark, have used the words “Dutch Paint Company”, “Dutch” and “Dutch Paint” in connection with their manufacture and advertising of paint products in a manner calculated and liable to confuse and deceive the public in believing that appellees’ products are manufactured by or originate with the appellant; that this was unfair competition as well as infringement of appellant’s trade mark and its registration.
Upon this counterclaim the appellant sought an injunction against further use by the appellees of the words objected to; an accounting of profits from the alleged infringement of the trade mark, and an award of damages.
The case was tried and all testimony taken before Honorable Herbert W. Erskine, District Judge, who died before he could make or file any findings in the case. By agreement of the parties the cause was submitted to the Honorable Edward P. Murphy upon the record of the testimony and other evidence previously presented to Judge Erskine. The court made findings of fact and entered a judgment in favor of the appellees as plaintiffs and dismissed the appellant’s counterclaim. Upon this appeal the specifications of error in the main assert the right of appellant- to have judgment upon this counterclaim.
The record shows that the appellant -is a large and well known manufacturer of paint and paint products which it has sold to the trade and the consuming public throughout the country for more than 40 years. In 1907 it adopted a picture of a Dutch boy as its trade mark for white lead. Subsequently it commenced using the words “Dutch Boy” in its advertising and these words were applied successively to linseed oil, red lead paint, white lead paint, flatting oil, wall primer and other paint products. The word trade mark “Dutch Boy” was registered in the Patent Office in 1937 for a number of paints and paint products including inside and outside paints, primers, undercoats, lacquers and varnishes. All these uses antedated by a considerable number of years the appellees’ entry into the paint business. In connection with its sales of Dutch Boy paints appellant made very large expenditures devoted to advertising its Dutch Boy trade mark. Its products were shown to be regularly sold through independent dealers as well as through its 39 retail stores. There were some 1200 of these dealers in the eleven' Pacific Coast states. Appellant's sales of paint products bearing this trade mark have aggregated over six hundred million dollars and it has expended in excess of nineteen million dollars in national advertising.
The appellees on the other hand entered the paint business in 1946 after their discharge from the Navy where they had had some training in connection with the naval paint program. After initiating the paint business and incorporating their enterprise under the name of Manning-Mitchell, Inc., they had some difficulty in procuring raw materials for their marine paints. Then in the same year they acquired for some $9,000 a partnership concern known as “Dutch Paint Co.” at San Francisco which operated a small paint factory and which had on hand some labels marked “Dutch Paint”. Thereafter the apellees formed a new corporation called “Dutch Paint Company” and continued to increase the manufacture and sale of household and other paints using labels and other marks with the names “Dutch” and “Dutch Paint”. It is of this use that appellant complains in its counterclaim.
The record shows beyond possible controversy that the appellants had a trade mark valid both at common law and under the applicable federal acts. Neither the word “Dutch”, nor the words “Dutch Boy” are used otherwise than in a fictitious, arbitrary and fanciful manner. Of course the word “Dutch” is capable of being used as a geographical term. If used to indicate a product made in Holland or by some Dutch process, it could be a descriptive term. However, the record shows without doubt that appellant’s trade mark does not contain words having either a geographical or descriptive sense. In this respect the case is governed by Hamilton-Brown Shoe Co. v. Wolf Brothers & Co., 240 U.S. 251, 36 S.Ct. 269, 271, 60 L.Ed. 629, where the court said: “We do not regard the words ‘The American Girl,’ adopted and employed by complainant in connection with shoes of its manufacture, as being a geographical or descriptive term. It does not signify that the shoes are manufactured in America, or intended to be sold or used in America, nor does it indicate the quality or characteristics of the shoes. Indeed, it does not, in its primary signification, indicate shoes at all. It is a fanciful designation, arbitrarily selected by complainant’s predecessors to designate shoes of their manufacture. We are convinced that it was subject to appropriation for that purpose, and it abundantly appears to have been appropriated and used by complainant and those under whom it claims. * * * ‘The American Girl’ would be as descriptive of almost any article of manufacture as of shoes; that is to say, not descriptive at all.”
Here there is no likelihood that the use of the name “Dutch” or “Dutch Boy” in connection with the appellant’s goods would be understood by purchasers as representing that the goods or their constitutent materials were produced or processed in Holland or that they are of the same distinctive kind or quality as those produced, processed or used in that place.
The record and briefs do not disclose any assertion on the part of the appellees that appellant’s trade mark was wholly without validity. Appellees however contend that the mark is not a “strong” but a “weak” mark, citing as their authority for this position this court’s decisions in Sunbeam Furniture Corporation v. Sunbeam Corporation, 9 Cir., 191 F.2d 141, and Sunbeam Lighting Co. v. Sunbeam Corporation, 9 Cir., 183 F.2d 969. We find no resemblance between this case and our Sunbeam cases for in those cases it was pointed out that the name Sunbeam was “a meaningful word, a joyful word, a word of comfort, and of health.” It was therefore held that its use was not sufficiently fanciful to warrant the granting of an injunction not merely against the use of the term “Sunbeam” on the defendants’ lamps but against the use of the firm name “Sunbeam Furniture Corporation.”
The fact that' “Dutch” as a dictionary term has a geographical significance and that it would be possible for a manufacturer to use that word in connection with his business in its primary geographical sense is beside the point here. Thus one who manufactures paint in Holland cannot be restrained from selling his product as “Dutch” paint any more than a watch manufacturer in Switzerland can be prevented from selling his “Swiss” watches. No use of the word “Dutch” in a geographical sense is involved here for neither appellant nor appellees are marketing products or goods “likely to be understood by purchasers as representing that the goods or their constituent materials were produced or processed in the place designated by the name or that they are of some distinctive kind or quality as the goods produced, processed or used in that place.”
The distinction is well made by the Supreme Court in Hamilton-Brown Shoe Co. v. Wolf Brothers & Co., supra, where it contrasted with the valid use of “The American Girl” the supposititious use of a mark “American Shoes”. As the appellees are not making their paints in Holland or using any Dutch processes or giving them any distinctive Dutch quality, the fact that others might have done so is of no significance in this case. There is no question also that “Dutch” has certain descriptive meanings. Thus “Dutch Kalsomine Brushes”, the record shows, are paint brushes of a special construction; “Dutch White” and “Dutch Blue” are terms describing certain colors under which some paints are sold although not those of the appellees; “Dutch Process”, or “Old Dutch Process” is a means of making white lead used in Holland and some manufacturers of white lead use that process and make reference to it on their labels; “Dutch Enamel” is a term descriptive of a kind of enamel first developed in Holland. Neither appellant nor appellees are engaged in the utilization of any such processes and the words “Dutch”, “Dutch Paint”, or “Dutch Paint Company” used by appellees are not claimed to have any relation to any product now or ever made in Holland or any process, color, or other description related to Holland or the Dutch.
We conclude therefore that the appellant’s trade-mark was one entitled to full protection both under the rules of the common law and under the federal acts.
Under the rules and decisions generally applicable, the appellees’ use of the terms here complained of would constitute an actionable infringement of the appellant’s trade-mark. We note here, in connection with appellees’ competing business, the use of a designation which is “confusingly similar to the [appellant’s] trade name.” Under § 32 of the Lanham Act, 15 U.S.C.A. § 1114, to the protection of which appellant is entitled, the infringement is the use, without the registrant’s consent, of “any registered mark in connection with the sale, offering for sale, or advertising of any goods or services on or in connection with which such use is likely to cause confusion or mistake or to deceive purchasers as to the source of origin of such goods or services * *
That we have a case here of confusing similarity is very apparent and the facts of the case are not to be distinguished from those in a multitude of decisions finding infringement. Among those cases are Armstrong Paint & Varnish Works v. Nu-Enamel Corporation, 305 U.S. 315, 59 S.Ct. 191, 83 L.Ed. 195; Brooks Bros. v. Brooks Clothing of California, 9 Cir., 158 F.2d 798, adopting opinion D.C., 60 F.Supp. 442; Lane Bryant, Inc. v. Maternity Lane, 9 Cir., 173 F.2d 559. Here there is confusing similarity between the appellant’s trademark and the words used by the appellees in respect to appearance, sound and meaning. The great mass of cases cited by Callman in § 82.1 of his work on Unfair Competition and Trade-Marks, 2d Ed., in which confusing similarity in sound, appearance or meaning, or in some of these respects, was found to exist, make it clear that in using the words “Dutch”, “Dutch Paint”, or “Dutch Paint Company” in connection with their products, appellees are guilty of infringement of the appellant’s trade mark. The evidence here satisfies the standards of proof set forth in Mershon v. Pachmayr, 9 Cir., 220 F.2d 879: “There is ample evidence in the case to require the finding that there was material confusion just as the court said there would be, and that there was strong likelihood that there would be confusion, although actual confusion is not essential in the proof of infringing a trade-mark.”
However, the appellant produced a mass of evidence which was uncontradicted showing some 290 instances in which paint dealers, painters, industrial users of paints and retail customers were actually deceived or misled by the appellees’ use of “Dutch”, “Dutch Paint”, “Dutch Paint Company”, and by their advertisements, into believing that appellees’ paints were actually the appellant’s Dutch Boy paints. This evidence of actual confusion showed that it occurred in some 20 communities in California, and in communities in Washington, Oregon, Idaho, Utah, Wyoming, and Nevada, and even in Hawaii. Some of these witnesses were experienced painters or construction superintendents; others were individual consumers purchasing for their own use. Testimony was given by some of appellant’s dealers and employees who related many instances of confusion on the part of the consumers visiting the stores. In addition there was substantial testimony that dealers in paints who were accustomed to purchase paint at wholesale, were confused into believing that the appellees’ “Dutch Paint” was appellant’s “Dutch Boy Paint”.
Notwithstanding this extensive proof not only of likelihood of confusion but of actual confusion as well, and notwithstanding the evidence was uncontradicted, the trial court found that there were no purchasers who were confused as between defendant’s and plaintiffs’ products and concluded that there was a lack of similarity because the names differed in sound, significance and appearance. We are unable to perceive how the court could have made such a finding in the light of this record. The court’s findings upon this point are clearly erroneous.
The record also shows that not only did the appellees beginning in 1946 adopt these confusingly similar names but shortly thereafter the method of advertising their paint showed that their continued use of these names and the passing off of their products thereunder was intentionally false and misleading and done with a purpose on their part of deceiving prospective purchasers. Thus appellees advertised “New Lower Than Pre-War Prices on Dutch Paint”. The facts were, as appellees knew them, that their Dutch paints were not in business before the war and they had no pre-war prices. They also knew that the appellant’s Dutch Boy paint had been sold long prior to the war. They also advertised “How - Can $2.95 Buy $6 Paint?”, offering their Dutch paint “at approximately 50% of the normal price”. Appellees never sold $6 paints; $2.95 was their normal price, although it was approximately 50% of the normal Dutch Boy price. They advertised “Quality Famous Dutch Paint” which they represented as selling for half price at $2.95.
The proof of this deliberately false and misleading use of advertising in connection with the appellees’ own infringement, has an important bearing upon the inferences to be drawn with respect to the existence of confusion. The rule respecting the consequences of this intent to deceive was stated in My-T-Fine Corporation v. Samuels, 2 Cir., 69 F.2d 76, 77, as follows: “But when it [intent to deceive] appears, we think that it has an important procedural result; a late comer who deliberately copies the dress of his competitors already in the field, must at least prove that his effort has been futile. Prima facie the court will treat his opinion so disclosed as expert and will not assume that it was erroneous. * * * He may indeed succeed in showing that it was; that, however bad his purpose, it will fail in execution; if he does, he will win. * * * But such an intent raises a presumption that customers will be deceived.”
Appellees attempt to meet the appellant’s showing of infringement by setting up defenses of laches, acquiescence and estoppel. The record does not sustain any of them.
The record is that early in 1947, a then partner and associate of the appellees assured the appellant’s manager that they intended to discontinue their use of the name “Dutch” as soon as they had exhausted their supply of labels. In March, 1948, there was a discussion between appellant’s advertising manager and the appellees in which the former discussed with appellees the question of the appellees abandoning the use of the word “Dutch”. The advertising manager testified that appellees indicated their intention to drop this brand as soon as there was an ample supply of raw materials for other kinds of paints. The appellees’ version of the conversation is that the manager asked them if they had thought of abandoning the use of the word “Dutch” and they replied that they could not do so as they were obliged to manufacture Dutch paints because of pigment shortage.
Whichever be the correct version, plainly appellant was endeavoring to canvass the possibility of removing the infringement in 1948. The suit was begun in October, 1949. The attempted proof of laches is too trivial to require serious consideration. In the light of the intentional and fraudulent use of appellant’s trade mark, the defense here is a frivolous one. Menendez v. Holt, 128 U.S. 514, 523, 9 S.Ct. 143, 32 L.Ed. 526.
The claim of acquiescence is equally groundless. Thus, it is argued that on the occasion previously mentioned when the advertising manager of appellant met with the appellees, the manager confined his objections to certain radio advertising on a Sacramento radio station; but that the failure of the advertising manager to make additional objections particularly to the newspaper advertisements which appellees were running, and his failure to make a stronger showing of force against the use of the word “Dutch Paint” in connection with appellees’ product, amounted to an acquiescence.
The record also shows that some of the appellant’s employees and salesmen during the years 1946-1947-1948 occasionally visited the appellees’ offices and knew that the word “Dutch” was displayed on signs and paint cans. There was also produced at the trial a letter written by one Kaegebehn, the manager of appellant’s patent department, to the appellant’s advertising manager. This contained a statement that “Dutch” is a geographical name, and as such, it is not registrable as a trademark, but if used exclusively, it may acquire secondary trademark significance. However our mark is Dutch Boy and we can only enforce that mark against others under the trade mark laws.” The writer of the letter was not a lawyer; the letter was an intra-company communication, never addressed to anyone outside the appellant company, and there was no reliance upon it by appellees. Cf. Aunt Jemima Mills Co. v. Rigney & Co., 2 Cir., 247 F. 407.
Appellees began their use of the words here objected to in 1946. In 1947 they gave assurance they would shortly discontinue this use. In March,. 1948, appellant was negotiating with appellees in an effort to procure a promise to discontinue. Formal notice of infringement was given in July, 1949, and the suit begun in October of the same year. Laches, acquiescence, or estoppel are wholly wanting here.
The appellees attempted to show that a large number of other persons had used the name “Dutch” or some combination thereof in connection with sales of paint, and it is contended that the showing made in this respect justifies the trial court’s findings and judgment against the appellant’s claim of a valid trade mark and infringement thereof. The suggestion is that these third party uses of the term “Dutch” in the paint industry have been so numerous and so general that the mark must be held to be a weak mark within the meaning of the Sunbeam cases, supra, and further, that the term “Dutch” has become publici juris as in the cases of “aspirin” and “cellophane”.
Appellees have attached to their brief in this court a tabulation which was an exhibit in the court below showing uses which third parties, manufacturers or dealers in paint have made of names which include the word “Dutch”. Substantially the same information was portrayed in a photograph which was also an exhibit and which showed in color paint cans to which were attached labels with trade marks using the word “Dutch”. A study of the 39 listed uses of the word “Dutch” reveals that some of them are duplications, some relate to uses discontinued many years ago, some were used but to a limited extent and in single communities or limited localities far from the Pacific Coast to which appellees’ operations were confined, and for the most part in the eastern portion of the United States, and some with respect to which there was no proof of any isale whatever; some relate to non-paint products such as floor wax. The remaining proven third party uses of the word “Dutch” in connection with paint sale or manufacture are too inconsequential to establish a claim of pub-lid juris or the claim that appellant’s mark has become a weak mark or to justify on any other theory the acts of these appellees. It may be that some of these third persons may also have been guilty of wrongful infringement, but such would not be a defense or justification for the appellees. It is no excuse for them to say that others have been guilty of the same wrong. Del Monte Special Food Co. v. California Packing Corp., 9 Cir., 34 F.2d 774; Potter-Wrightington, Inc., v. Ward Baking Co., 1 Cir., 298 F. 398, affirming D.C., 288 F. 597. Uses of the offending word in local areas in the East are no justification for acts of appellees on the Pacific Coast.
The findings of the trial court fail to note that these third party uses fall into these various categories. The court failed to note that, as earlier here indicated, no one questions the possibility of using the word “Dutch” in a geographical or descriptive sense. Some of the third party uses listed in the findings, without noting this distinction, were instances where such proper and unobjectionable uses were made, as in the case of “Dutch Kalsomine”, “Dutch White”, “Old Dutch” process. Again there was no breakdown of those uses which were local and far distant from the area of appellees’ user. And since the trial court’s findings were based upon the same cold record which is before us, we are “in as good a position as the trial court was to appraise the evidence.” We find no evidence to warrant a holding that appellant’s trade-mark had become publici juris, or that the word “Dutch”, when used as appellees have done, was publici juris. The third party uses as are shown are not such as would permit an inference of acquiescence. We find here no evidence that an originally distinctive mark changed or developed into a generic term.
There is also a contention that there was an abandonment of the trademark by the appellant. No evidence thereof appears in this regard for there was no evidence of any intent whatever to abandon. Saxlehner v. Eisner & Mendelson Co., 179 U.S. 19, 31, 21 S.Ct. 7, 45 L.Ed. 60.
What we have said heretofore has in terms referred to the trade-mark infringement. That, however, is but one aspect of the larger field of unfair competition. It requires no extended discussion in view of what we have said to demonstrate that the acts here complained of are not only an infringement of trade-mark but they constitute acts of unfair competition. The law is stated in Weinstock, Lubin & Co. v. Marks, 109 Cal. 529, 541, 42 P. 142, 146, 30 L.R.A. 182: “ * * * Upon what principle of law can a court of equity say, ‘If you cheat and defraud your competitor in business by taking his name, the court will give relief against you, but, if you cheat and defraud him by assuming a disguise of a different character, your acts are beyond the law?’ Equity will not concern itself about the means by which fraud is done. It is the results arising from the means — it is the fraud itself — with which it deals. The foregoing principles of law do not apply alone to the protection of parties having trademarks and trade-names. They reach away beyond that, and apply to all cases where fraud is practiced by one in securing the trade of a rival dealer; and these ways are as many and as various as the ingenuity of the dishonest schemer can invent.”
In order to make out a case of unfair competition, it is only required that the natural and necessary consequence of appellees’ conduct in this respect was such as'to cause deception. The case of Ross-Whitney Corp. v. Smith Kline & French Lab., 9 Cir., 207 F.2d 190, sufficiently demonstrates that wholly apart from trade-mark infringement, the appellant had here made out a case of unfair competition and that the court below had jurisdiction thereof.
In view of the demonstration in the court below that the appellees’ use of “Dutch Paint” and “Dutch Paint Company” was by false and misleading advertising, and the consequent demonstration that there was a deliberate and intentional design to cause confusion and mistake and to deceive purchasers, the conclusion must be that whether the cause be viewed as one of unfair competition or as one of infringement of a registered trade-mark, appellant is entitled not merely to relief by injunction but to an accounting of profits and damages as well. “But where an injunction is had against unfair competition, willfully conducted by the defendant with knowledge of the plaintiff’s rights, an accounting normally follows.” Matzger v. Vinikow, 9 Cir., 17 F.2d 581, 584.
As for appellant's rights under the trade-mark acts, since this is not a case where there has been “no showing of fraud or palming off”, cf. Champion Spark Plug Co. v. Sanders, 331 U.S. 125, 131, 67 S.Ct. 1136, 1139, 91 L.Ed. 1386, but where the showing is quite to the contrary and the intentional misleading has been demonstrated, appellant is entitled not merely- to an injunction as prayed for but to an accounting of appellees’ profits and a - recovery of any-damages sustained under the provisions of Title 15 U.S.C.A. §1117, pursuant to the rule of Mishawaka Rubber & Woolen Mfg. Co. v. S. S. Kresge Co., 316 U.S. 203, 62 S.Ct. 1022, 86 L.Ed. 1381.
Accordingly, the judgment is reversed- and the cause is remanded with directions to dismiss the appellees’ complaint, to grant to the appellant an injunction as prayed for in its answér and- counter-, claim, and to proceed to take ah accounting of the' appellees’ profits, and to determine appellant’s, damages as.directed in this opinion.
. The findings reflect the difficulty of the trial judge in dealing with a record of evidence none of which he had heard from the lips of witnesses. Thus he appears to have overlooked the extensive testimony, uncontradieted, as to the many years of selling and advertising Dutch Boy paints, long prior to the appellees’ commencement of the business, and limited himself on this subject to a finding as follows: “The earliest national advertisement of the ‘Dutch Boy’ blue and white label products was in 1947, and the earliest reference to ‘Dutch Boy’ paints as distinguished from white lead, in defendant’s national advertising, occurred in 1950”. The impression given is that appellant did not begin to advertise its paints, and particularly its mixed ready to use paints, at least on the national scale, until 1947 or even 1950.
The record is quite otherwise. As appears from the deposition of appellant’s advertising manager, since 1913 appellant had been promoting the sale, on a national scale, of ready mixed paint bearing conspicuous labels with its trade mark. In the early 1930’s ready mixed paints called “Colors in Oil” were sold throughout the country under the conspicuous Dutch Boy label. Its 1937 trade mark registration was for numerous paints and paint products including “ready mixed paints for exterior use” and “ready mixed paints for interior use”. Beginning in 1918 what were known as “flatting paints” were sold under the Dutch Boy trade mark; and in the years between 1930 and 1940 similar Dutch Boy labels were applied to white lead paint, lead mixing oil, gloss enamels, varnish, quick drying enamel, enamel undercoat, semi-gloss, flat wall paint, wall primer, one coat flat-wall base and liquid dryer. The record includes numerous photographs of samples of appellant’s paint containers bearing the Dutch Boy label as distributed nation-wide in the years prior to 1940. Some of these were on products such as linseed oil and flatting oil, apparently for u-se of professional painters in mixing paint, but many of them are of mixed ready for use paints designed for sale to the consumers such as “Dutch Boy Outside White”, “Dutch Boy Satin Egg-Shell”, “Dutch Boy Interior White”.
Since 1938 appellant produced a full line of more than 30 types of ready mixed paints, each in a variety of colors, and all particularly designed for consumers’ use. All were displayed bearing this label among the stocks of independent dealers nation-wide as well as in the company’s own retail stores. These products were pushed with particular vigor in the area west of the Rocky Mountains. About 1930 appellant took over a concern manufacturing a full line of paints known as Bass-Heuter of San Francisco, and thereafter put out the full line of paint products of that concern using the Dutch Boy label thereon with a smaller insert marked “formerly Bass-Heuter”.
During the period following 1914 appellant advertised its trade mark products by distributing for use of painters millions of “wet-paint” signs bearing the Dutch Boy trade mark. From 1928 on it advertised its Dutch Boy products in approximately 200 newspapers throughout the country of which 40 or 50 were on the Pacific Coast. Displayed in the record are exhibits of circulars advertising Dutch Boy painters’ products which were distributed to dealers throughout the country in quantities aggregating hundreds of thousands. During this period the Dutch Boy trade mark was advertised in national magazines such as the Saturday Evening Post and Colliers, and in the farm journals.
The independent dealers in Dutch Boy paint were furnished fluorescent and Neon signs. At least 30,000 of such signs have been distributed since 1915, about 15% of which were installed at the stores selling the products on the Pacific Coast. Mammoth Neon signs bearing the trademark were located for outdoor advertising at places of maximum automobile traffic in New York, Los Angeles, Buffalo, Philadelphia, St. Louis, Chicago, Pittsburg, Cleveland and Cincinnati.
The case was tried in 1950 and the appellant’s advertising manager in testifying produced color advertisements currently appearing that year in national magazines bearing the phrase “Dutch Boy Paints”. The unfortunate reference in the quoted finding to the year 1950 is based upon the testimony of appellant’s advertising manager that “that particular phrase” first appeared in those 1950 advertisements. The result of this wholly unwarranted finding is that it gives an erroneous impression that appellant had only “come lately” with its trade mark into the mixed paint field.
. The district court’s findings erroneously recite that this Dutch Paint Co. had been producing “Dutch Paint” since 1941. There is no evidence upon the subject other than that “Dutch Paint Co.” was listed in the telephone hook from 1941 on. When it began producing, or when it made its “Dutch Paint” labels, does not appear.
. Although the record discloses no attack on the registration of appellant’s trade mark, the trial court failed to make any finding thereon, or even to note the fact of registration in the findings.
. See comment on Subdivision (a) of § 720 Restatement of Law of Torts, as follows:
“Arbitrary or fanciful use. The reasons for the rule that geographical names cannot be trade-marks do not weigh heavily when the geographical name has obviously only an arbitrary or fanciful significance in connection with the goods upon which it is used. Thus Gibraltar may be a trade-mark for automobiles since there is no likelihood that such use of the name would lead purchasers to suppose that there is any particular relation between the automobiles and the geographical locations known by that name, or any likelihood that it would seriously interfere with the freedom of merchants at Gibraltar to use that name. Again, Ethiopian may be a proper trademark for ladies’ stockings; for, while -suggestive of a certain color and sheen, it is only fancifully so and there is no likelihood that other merchants may have occasion properly to use the name Ethiopia on stockings since there is no factor of importance associating stockings with Ethiopia. Such is also the case of Pacific for bread or Arctic for refrigerators.”
. The words quoted are taken from Restatement of Torts, § 720(a).
. It was alleged in the counterclaim and admitted in the response that a valid registration of the mark “Dutch Boy”, obtained under the Act of February 20, 1905, is entitled to the benefits and remedies provided under the Lanham TradeMark Act of July 5, 1946, 60 Stat. 427, 15 U.S.C.A. § 1051 et seq., by virtue of § 46(b) of that Act, 15 U.S.C.A. § 1051 note. The section mentioned provides that “registrations now existing under * * * the Act of February 20, 1905 shall continue in full force and effect for the unexpired terms thereof * * *. Such registrations and the renewals thereof shall be subject to and shall be entitled to the benefits of the provisions of this Act [with certain exceptions not here applicable].”
. The quoted words arfe from Restatement of Torts, § 717 (1) (a).
. See the discussion in Callman, Unfair Competition in Trade-Marks, 2d Ed., §§ 82.3 and 80.6.
. Apparently appellees have abandoned any effort to sustain this finding of no confusion, for speaking of the testimony of appellant’s witnesses on this point, appellees’ brief says that “it is apparent that the presence of the common word “Dutch” was the sole cause of their several mistakes.”
. To the same effect see comment “f” to § 729(b) Restatement of Torts: “But if he adopts his designation with the intent of deriving benefit from the reputation of the trade-mark or trade name, his intent may be sufficient to justify the inference that there is confusing similarity.” See also Safeway Stores v. Dunnell, 9 Cir., 172 F.2d 649, 656: “Dunnell, witb his eyes open, thus chose to seek ■ the benefit of Store’s vast expenditures for advertising on the chance that it might prove enjoinable.” Cf. Stork Restaurant v. Sahati, 9 Cir., 166 F.2d 348.
. This was the occasion previously mentioned on which, according to the testimony of both appellees, appellant’s representative asked them “Have you ever given any thought to abandoning the use of the word ‘Dutch’?” It was appellant’s version of this conversation that appellees indicated an intention ultimately to drop the Dutch Paint brand and to go into a line of marine paints. Disregarding appellant’s version, it is plain that the parties then discussed the matter of appellees’ giving up the use of the Dutch Paint name.
. Appellees learned of this letter only after the action was begun, and through discovery processes. It was not even admissible in evidence. Overlooking this, and the rule of the Aunt Jemima Mills case, the trial court appears to have attached considerable significance to it for its finding 33
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_usc1
|
28
|
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.
Jack W. WHITE, Petitioner-Appellant, v. Hubert D. GNANN, Warden, Effingham Public Works Camp, Springfield, Georgia, Respondent-Appellee.
No. 28499
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
Feb. 19, 1970.
Jack W. White, pro se.
Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Exec. Asst. Atty. Gen., Courtney Wilder Stanton, Marion O. Gordon, Asst. Attys. Gen., Atlanta, Ga., for appellee.
Before WISDOM, COLEMAN, and SIMPSON, Circuit Judges.
PER CURIAM:
We have concluded on the merits that oral argument is unnecessary in this case. Accordingly, we have directed the Clerk to place the case on the Summary Calendar and to notify the parties of this fact in writing. See Huth v. Southern Pacific Co., 5 Cir. 1969, 417 F.2d 526; Murphy v. Houma Well Service, 5 Cir. 1969, 409 F.2d 804; 5th Cir. R. 18.
Jack White, represented by court-appointed counsel, was convicted and sentenced upon his plea of guilty in state court to the charge of larceny of a motor vehicle. When he had exhausted state remedies, White filed a petition for habeas corpus in the district court. He alleges that he was held in jail incommunicado for sixty-five days prior to arraignment and not permitted to get in touch with counsel during that time; that he was wrongfully denied the right to make bond; and that his plea of guilty was coerced in that his lawyer advised that if he did not plead guilty “he stood a good chance of getting ten years” instead of the two years his lawyer had bargained for if he entered a guilty plea. The district court denied relief without holding an evidentiary hearing.
In a prior habeas corpus proceeding on March 13, 1969, the Superior Court of Effingham County, Georgia, held a hearing on all of these contentions. White was represented by counsel. Upon consideration of the evidence presented, the Superior Court denied the petition for habeas corpus with findings of fact and conclusions of law. This judgment was affirmed on appeal to the Supreme Court of Georgia. White has not alleged nor have we discovered anything to justify rejecting these findings of fact. 28 U.S.C. § 2254 instructs us that in these circumstances the state court’s findings are “presumed to be correct”. Thomas v. Simpson, 5 Cir. 1968, 391 F.2d 283.
As characterized by the district court, the Superior Court of Effingham County, Georgia, concluded that the evidence demonstrated White’s guilty plea to have been entered knowingly, deliberately, and voluntarily. White’s fear of receiving a greater sentence by standing trial does not vitiate his plea. Schnautz v. Beto, 5 Cir. 1969, 416 F.2d 214, 215-216; Parrish v. Beto, 5 Cir. 1969, 414 F.2d 770; Rogers v. Wainwright, 5 Cir. 1968, 394 F.2d 492. Since a plea of guilty entered voluntarily and understandingly waives all prior non jurisdictional defects, File v. Smith, 5 Cir. 1969, 413 F.2d 969, we affirm the judgment of the district court.
. 28 U.S.C. § 2254(d) reads:
In any proceeding instituted in a Federal court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court, 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, unless the applicant ' shall establish or it shall otherwise appear, or the respondent shall admit—
(1) that the merits of the factual dispute were not resolved in the State court hearing;
(2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing;
(3) that the material facts were not adequately developed at the State court hearing;
(4) that the State court lacked jurisdiction of the subject matter or over the person of the applicant in the State court proceeding;
(5) that the applicant was an indigent and the State court, in deprivation of his constitutional right, failed to appoint counsel to represent him in the State court proceeding;
(6) that the applicant did not receive a full, fair, and adequate hearing in the State court preceding; or
(7) that the applicant was otherwise denied due process of law in the State court proceeding;
(8) or unless that part of the record of the State court proceeding in which the determination of such factual issue was made, pertinent to a determination of the sufficiency of the evidence to support such factual determination, is produced as provided for hereinafter, and the Federal court on a consideration of such part of the record as a whole concludes that such factual determination is not fairly supported by the record:
And in an evidentiary hearing in the proceeding in the Federal court, when due proof of such factual determination has been made, unless the existence of one or more of the circumstances respectively set forth in paragraphs numbered (1) to (7), inclusive, is shown by the applicant, otherwise appears, or is admitted by the respondent, or unless the court concludes pursuant to the provisions of paragraph numbered (8) that the record in the State court proceeding, considered as a whole, does not fairly support such factual determination, the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by the State court was erroneous.
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_appnatpr
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
MESCALERO APACHE TRIBE, Plaintiff-Appellee, v. STATE OF NEW MEXICO and William S. Huey, Individually and as Director of New Mexico Department of Game and Fish, or his Successors in Office, Defendants-Appellants.
No. 78-1790.
United States Court of Appeals, Tenth Circuit.
Argued Oct. 17, 1979.
Decided Aug. 13, 1980.
Jeff Bingaman, Atty. Gen. and Thomas L. Dunigan, Deputy Atty. Gen., Santa Fe, N. M. (Thomas Patrick Whelan, Jr., Asst. Atty. Gen., Santa Fe, N. M., with them on briefs), for defendants-appellants.
George E. Fettinger, Alamogordo, N. M. (Kim Jerome Gottschalk, Santa Fe, N. M., with him on brief), Fettinger & Bloom, Alamogordo, N. M., for plaintiff-appellee.
Steven E. Carroll, Atty., Washington, D. C. (James W. Moorman, Asst. Atty. Gen., Robert L. Klarquist and Edward J. Shawaker, Attys., Dept, of Justice, Washington, D. C., on brief), for the United States as amicus curiae.
Paul A. Lenzini and Susan A. Glotz, Attys., Chapman, Duff & Paul, Washington, D. C., filed an amicus curiae brief for the Intern. Ass’n of Fish and Wildlife Agencies.
Daniel H. Israel, Native American Rights Fund, Boulder, Colo., Robert J. Nordhaus and Adelia W. Kearny, Nordhaus, Moses & Dunn, Albuquerque, N. M., filed an amicus curiae brief for the Jicarilla Apache Tribe.
Robert B. Hansen, Utah Atty. Gen., Richard L. Dewsnup and Dallin W. Jensen, Asst. Attys. Gen., Salt Lake City, Utah, filed an amicus curiae brief for the State of Utah.
Before DOYLE, BREITENSTEIN and McKAY, Circuit Judges.
McKAY, Circuit Judge.
This case involves a challenge to the State of New Mexico’s attempt to regulate the management and harvesting of wildlife resources within the boundaries of the Mescalero Apache reservation. The Tribe carried its challenge to the district court where it secured a judgment declaring that the State may not apply its hunting and fishing laws to any person, Indian or non-Indian, within the boundaries of the tribal reservation. The court also enjoined the State from enforcing its game laws “against any person either on the Reservation or after they [sic] have left the Reservation for acts done on the Reservation.” Record, vol. 1, at 221. The State concedes its lack of jurisdiction over tribal members on the reservation, but appeals the district court’s resolution as to non-members of the Tribe.
In 1977 the Tribe, as part of “an extensive tourism program designed to bring income and employment to the Reservation,” Record, vol. 1, at 205, adopted various hunting and fishing ordinances to improve management of reservation wildlife resources. These ordinances were adopted pursuant to the tribal constitution and were duly approved by the Secretary of the Interior. Some of the ordinances are clearly inconsistent with state laws. For example, the Tribe specifically does not require that a hunter on its reservation purchase a state license and, in contrast to state law, the Tribe permits elk and antelope hunters to purchase permits in consecutive years. In addition, tribal hunting seasons do not all correspond with those of the State, and bag limits differ. By obeying the more restrictive of the regulations, a non — member hunter on the reservation could conform his behavior to the dictates of both Tribe and State. His doing so, however, would render much of the tribal regulatory scheme a nullity.
The revenue derived directly and indirectly from visiting sportsmen comprises a significant portion of the tribal budget, but reservation hunting and fishing by nonmembers is but a minuscule part of the overall state total. Although the State argues that wildlife management efficiency requires its jurisdiction over reservation activities, no claim is made that any species is endangered. Cf. Puyallup Tribe, Inc. v. Department of Game, 433 U.S. 165, 176-77, 97 S.Ct. 2616, 2623-24, 53 L.Ed.2d 667 (1977). In fact, the State agrees that tribal management of reservation wildlife resources has been exemplary, and in conformance with accepted wildlife management procedures. Record, vol. 1, at 134. The Tribe maintains a large, well-trained enforcement staff and receives support from the Bureau of Indian Affairs.
In the factual situation presented by this case, the State is unable to claim that either it or its lands played any significant role in the creation and preservation of the reservation wildlife resources. Instead, much of the reservation wildlife is effectively a creation of the Tribe and the federal government. For example, the antelope population on the reservation is nonmigratory, and few animals ever cross the boundaries. In recent years, the herd’s protection has been entirely in tribal hands. Furthermore, the Tribe has taken affirmative steps to build an elk herd. Prior to 1966, only 13 elk grazed in the general area of the reservation. In 1966-67, the National Park Service donated 162 elk. Through considerable range development, the Tribe removed cattle from direct competition with the elk for grazing land. The elk herd has grown to 1200, many of which wander off the reservation during part of the year. The migratory elk thus provide significant hunting opportunities for non-members outside the reservation, and the Tribe, despite its fundamental role in herd development, makes no attempt to limit that hunting.
The reservation has no natural lakes. Several man-made lakes have been constructed with federal funds and are stocked from a national fish hatchery on the reservation. Federal officials from the hatchery also provide the Tribe with technical assistance. The State has never stocked reservation lakes and no longer stocks any reservation streams. The entire tribal fishing program now exists independent of the State.
I. Justiciability
Before proceeding to the merits, we must dispose of several preliminary matters raised by the State. The State challenges, as it unsuccessfully did below, the Tribe’s right to bring this suit. The State asserts that the Tribe has no standing and that the suit is otherwise not justiciable.
On the standing issue, the State argues that “[t]he Tribe is seeking to enjoin the enforcement of State penal statutes which do not apply to it and which do not threaten it or its members in any real, direct and immediate sense.” Brief for Appellant at 20. In the State’s view, a challenge to the state regulations may be prosecuted only by an aggrieved non-member sportsman. Since the Tribe has sold nearly all of its available hunting and fishing permits, the Tribe has allegedly suffered no revenue losses and no other “injury in fact” by the regulations the State would impose on non-member sportsmen.
The State’s understanding of standing requirements is overly narrow. For purposes of standing, federal courts may certainly consider the principles of elementary economics. The State’s imposition of higher costs on individual sportsmen clearly limits the Tribe’s ability to raise the prices of its own licenses. Cf. Agua Caliente Band of Mission Indians v. County of Riverside, 442 F.2d 1184, 1186 (9th Cir. 1971). We have no reason to assume that the demand curve for reservation hunting and fishing is so inelastic that the Tribe could charge and receive any imaginable price for its licenses. Even though all tribal licenses are now sold, and applications for licenses exceed the number available, that fact merely reflects the Tribe’s conservative adjustment to market forces in devising its own fee structure. Similarly, other conflicts between the tribal and state regulatory structures-e. g., variations in hunting seasons-necessarily deter some non — member hunters from entering the reservation at some times. These conflicts affect the Tribe’s own regulatory scheme. They also influence the prices the Tribe may charge and impinge on the Tribe’s revenue-raising powers. These effects are not merely speculative, but are the straightforward and immediate results of economic forces. Cf. United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 683-90, 93 S.Ct. 2405, 2413-17, 37 L.Ed.2d 254 (1973).
Beyond economics, the Tribe has another legitimate basis for standing. When one sovereign entity is alleged to have usurped the authority lawfully belonging to another, the injured sovereign must have standing to challenge the usurpation. Other circuits have routinely found standing, without discussion, when Indian tribes have sought judgments that states were unlawfully interfering with tribal regulation of hunting and fishing. See, e. g., Confederated Tribes of Colville Indian Reservation v. Washington, 591 F.2d 89 (9th Cir. 1979); Eastern Band of Cherokee Indians v. North Carolina Wildlife Resources Commission, 588 F.2d 75 (4th Cir. 1978).
No other barrier to justiciability is present. The impact of the state regulation upon the Tribe is “sufficiently direct and immediate as to render the issue appropriate for judicial review at this stage.” Abbott Laboratories v. Gardner, 387 U.S. 136, 152, 87 S.Ct. 1507, 1517, 18 L.Ed.2d 681 (1967). The limits of state jurisdiction on the reservation is an issue now as ripe for resolution as it will ever be. The State has made clear that prosecution of non-member violators of state game laws, with the attendant effects on tribal regulation and revenue-raising, is intended and probable. Record, vol. 1, at 204. Cf. Poe v. Ullman, 367 U.S. 497, 501-02, 81 S.Ct. 1752, 1754-55, 6 L.Ed.2d 989 (1961).
Finally, all indispensable parties are named in the suit. As the district court noted, “A determination that New Mexico game laws are not applicable to non-Indian activity within the Mescalero Apache Reservation cannot injuriously affect the interests of the United States....” Record, vol. 1, at 204. In addition, “no act would be required of the Secretary [of the Interior] regardless of the outcome of the suit.” Id. at 205.
II. Federal Preemption
Any attempt by a state to exercise regulatory powers within the confines of a federally recognized, “semi-independent” Indian reservation is precluded if the subject matter has been preempted by federal law or if the state regulations infringe on the tribe’s rights of self-government. White Mountain Apache Tribe v. Bracker, - U.S. -, -, 100 S.Ct. 2578, 2583, 65 L.Ed.2d 665 (1980). Accordingly, in this jurisdictional dispute between a state government and an Indian tribe, we must first determine whether the applicable treaty and federal statutes, read against the “backdrop” of Indian sovereignty, preempt exercises of state power. See McClanahan v. Arizona State Tax Commission, 411 U.S. 164, 172, 93 S.Ct. 1257, 1262, 36 L.Ed.2d 129 (1973); Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148, 93 S.Ct. 1267, 1270, 36 L.Ed.2d 114 (1973); Warren Trading Post Co. v. Arizona Tax Commission, 380 U.S. 685, 690-91, 85 S.Ct. 1242, 1245-46, 14 L.Ed.2d 165 (1965). Under a standard of construction followed from the time of the Marshall Court, we must construe the applicable treaty and statutes liberally in order to further Indian interests. See, e. g., Bryan v. Itasca County, 426 U.S. 373, 392, 96 S.Ct. 2102, 2112, 48 L.Ed.2d 710 (1976); McClanahan v. Arizona State Tax Commission, 411 U.S. at 174, 93 S.Ct. at 1263; Squire v. Capoeman, 351 U.S. 1, 6-7, 76 S.Ct. 611, 614-15, 100 L.Ed. 883 (1956); Carpenter v. Shaw, 280 U.S. 363, 366-67, 50 S.Ct. 121, 122-23, 74 L.Ed. 478 (1930); Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 582, 8 L.Ed. 483 (1832).
The sovereign powers of the Tribe in wildlife management are so pervasive that sovereignty here moves from a mere backdrop into a leading role on the litigational stage. The historical relationship between Indian tribes, their lands, and the wild game thereon has of necessity been one of great interdependence. Access to and control of wildlife was “not much less necessary to the existence of the Indians than the atmosphere they breathed.” United States v. Winans, 198 U.S. 371, 381, 25 S.Ct. 662, 664, 49 L.Ed. 1089 (1905). After a careful, thoughtful analysis, the district court properly determined that, before the signing of the Treaty with the Apaches, July 1, 1852, 10 Stat. 979 (1852), the Tribe “had inherent and complete authority to control the fish and game found within the confines of the tribal territory.” Record, vol. 1, at 208. Since the treaty is “not a grant of rights to the Indians, but a grant of rights from them-a reservation of those not granted,” id. (quoting United States v. Winans, 198 U.S. at 381, 25 S.Ct. at 664), the Tribe retains its authority even though the treaty itself did not fix the boundaries of the tribal reservation. Cf. Antoine v. Washington, 420 U.S. 194, 95 S.Ct. 944, 43 L.Ed.2d 129 (1975). Abrogation of any rights protected by treaty, particularly fundamental hunting and fishing privileges, must be explicit to be effective, see Menominee Tribe of Indians v. United States, 391 U.S. 404, 413, 88 S.Ct. 1705, 1711, 20 L.Ed.2d 697 (1968), and no congressional enactment here meets that standard. See United States v. Wheeler, 435 U.S. 313, 323, 98 S.Ct. 1079, 1086, 55 L.Ed.2d 303 (1978).
The Tribe’s inherent authority stems largely from the traditional reliance on wild game for basic survival needs. See F. Cohen, Handbook of Federal Indian Law 286 (1942). However, the Tribe’s historical use of only some species within its territory does not mean that the game control powers reserved by treaty are less than all-encompassing. It is quite irrelevant whether the Mescalero at one time were primarily hunters, fishermen, or gatherers. At the treaty’s signing, the United States must certainly have understood that the Tribe could alter its use of wildlife as conditions changed. For example, “[it is] inconceivable that the United States intended to withhold from the Indians the right to sustain themselves from any source of food which might be available on their reservation.” United States v. Finch, 548 F.2d 822, 832 (9th Cir. 1976), vacated on other grounds, 433 U.S. 676, 97 S.Ct. 2909, 53 L.Ed.2d 1048 (1977).
The Tribe’s sovereign powers are not, of course, limited to control of wildlife. The Tribe’s historical powers extend to the territory itself. The State acknowledges that the Tribe has, at a minimum, the power of any landowner to exclude non-official persons from the reservation. In the State’s view, the Tribe may altogether forbid permission to hunt and fish or may condition the grant of permission upon compliance with state laws, but the Tribe may not exempt a non-member hunter from the application of state laws. The power of a landowner, however, provides only one source-and a secondary one-of tribal authority. See Powers of Indian Tribes, 55 Interior Dec. 14, 48-50 (1934). The Supreme Court has repeatedly stressed “that Indian tribes are unique aggregations possessing attributes of sovereignty over both their members and their territory, they are ‘a separate people’ possessing ‘the power of regulating their internal and social relations.’ ” United States v. Mazurie, 419 U.S. 544, 557, 95 S.Ct. 710, 717, 42 L.Ed.2d 706 (1975) (emphasis added) (citations omitted) (quoting United States v. Kagama, 118 U.S. 375, 381-82, 6 S.Ct. 1109, 1112-13, 30 L.Ed. 228 (1886)). See Merrion v. Jicarilia Apache Tribe, 617 F.2d 537, 541-43 (10th Cir. 1980); United States v. New Mexico, 590 F.2d 323, 327-28 (10th Cir. 1978) (“Indian nations [are] distinct political communities, having territorial boundaries in which their authority is exclusive”). In its most recent statement, the Court “emphasized that there is a significant geographical component to tribal sovereignty, a component which remains highly relevant to the preemption inquiry;... it remains an important factor to weigh in determining whether state authority has exceeded the permissible limits.” White Mountain Apache Tribe v. Bracker, - U.S. -, -, 100 S.Ct. 2578, 2587, 65 L.Ed.2d 665 (1980).
The State questions the existence of any inherent tribal powers in this case. It argues that the Tribe could not have exclusive rights in any traditional territory because, in effect, there is no traditional territory: “the Mescaleros were being swept from their lands by a tide of white settlers.” Brief for Appellants at 37. If we were to accept the State’s argument, we would be enshrining the rather perverse notion that traditional rights are not to be protected in precisely those instances when protection is essential, i. e., when a dominant group has succeeded in temporarily frustrating exercise of those rights. We prefer a view more compatible with the theory of this nation’s founding: rights do not cease to exist because a government fails to secure them. See The Declaration of Independence (1776).
In regulating game on the reservation, the Tribe thus seeks to exercise its sovereign power in an area in which it unquestionably has a “significant interest.” Cf. Washington v. Confederated Tribes of Colville Indian Reservation, - U.S. -, -, 100 S.Ct. 2069, 2081, 65 L.Ed.2d 10 (1980). This case is therefore quite unlike Colville, in which the Court rejected tribal claims to an exemption from state taxation of reservation cigarette sales to non-members. Reservation sales outlets were, except in location, identical to their off-reservation competitors, and the product taxed was in no sense a tribal creation. Unlike the situation in this case, no significant tribal interest was involved.
This case is further unlike Colville in that here a definite conflict exists between the tribal regulatory structure and that of the State. In Colville the tribal and state taxing schemes were purely revenue-raising in nature, and dual systems of pure taxation are not inherently conflicting. In contrast, dual regulatory schemes, as the Court implied, necessarily create mutual dislocations. - U.S. at -, 100 S.Ct. at 2083. It is because of this characteristic of regulation that we presume, when Indian tribes under federal protection seek to regulate their traditional interests, that federal law has preempted state jurisdiction. See D. Getches, D. Rosenfelt & C. Wilkinson, Cases and Materials on Federal Indian Law 295-99 (1979). “[T]hose standards of pre-emption that have emerged in other areas of the law” generally do not apply “to federal enactments regulating Indian tribes.” White Mountain Apache Tribe v. Bracker, - U.S. -, -, 100 S.Ct. 2578, 2583, 65 L.Ed.2d 665 (1980). As this court has recently emphasized, “[T]he cases stress that regulatory powers in Indian country or on Indian lands belong to the Congress except for inherent jurisdiction of the tribes. Congress may delegate this authority to the state, but when it does so it must be in specific terms.” United States v. New Mexico, 590 F.2d 323, 328 (10th Cir. 1978) (emphasis added).
As important as sovereignty is in this case, we need not consider whether the Tribe’s sovereign powers alone are sufficient to preempt state jurisdiction. The Supreme Court has not ruled on that question but has noted, given the pervasiveness of federal treaties and statutes, that it is “something of a moot question.” McClanahan v. Arizona State Tax Commission, 411 U.S. 164, 172 n.8, 93 S.Ct. 1257, 1262, 36 L.Ed.2d 129 (1973). See Note, Tribal Preemption, 54 Wash.L.Rev. 633, 639 (1979). In this case, the treaty and statutory basis for federal preemption is strong. We see as sources of preemption (1) the treaty; (2) the Enabling Act for New Mexico; (3) the Indian Reorganization Act of 1934; (4) the tribal constitution and ordinances enacted pursuant to the IRA; (5) the extensive federal developmental assistance; and (6) the negative inferences from Public Law 280. These factors, considered in light of the Tribe’s inherent powers over reservation land and wildlife, compel our conclusion of preemption.
The applicable treaty, as we have noted, implicitly reserves to the Tribe control over reservation hunting and fishing. In addition, the treaty is explicit in its expression of federal dominance on the reservation. In Article 1 of that document, the Tribe submits itself “exclusively [to] the laws, jurisdiction, and government of the United States of America.” Treaty with the Apaches, July 1, 1852, 10 Stat. 979 (1852) (emphasis added). Further, the treaty provides that the United States shall “designate, settle, and adjust [the Tribe’s] territorial boundaries, and pass and execute. such laws as may be deemed conducive to the prosperity and happiness of [the Mescalero Apaches].” Id., art. 9, 10 Stat. 980.
The treaty’s exclusivity language aids our interpretation of the Enabling Act for New Mexico, 36 Stat. 557 (1910), in which New Mexico Indian lands were placed “under the absolute jurisdiction and control of the Congress of the United States.” Although Organized Village of Kake v. Egan, 369 U.S. 60, 68, 82 S.Ct. 562, 567, 7 L.Ed.2d 573 (1962), said that “ ‘absolute’ federal jurisdiction is not invariably exclusive jurisdiction,” Egan “did not purport to provide guidelines for the exercise of state authority in areas set aside by treaty for the exclusive use and control of Indians.” McClanahan v. Arizona State Tax Commission, 411 U.S. 164, 176 n.15, 93 S.Ct. 1257, 1264 n.15, 36 L.Ed.2d 129 (1973). In the area of resource management, the treaty language in this case suggests that “absolute” jurisdiction is indeed “exclusive” jurisdiction.
The tribal constitution gives to the Mescalero Apache Tribal Council the power “[t]o protect and preserve the property, wildlife and natural resources of the tribe, and to regulate the conduct of trade and the use and disposition of tribal property upon the reservation.” Mescalero Apache Tribe Revised Const. art. 11, § 1(c). That constitution was adopted and approved pursuant to the Indian Reorganization Act of 1934, 25 U.S.C. § 476, under which Congress provided that the adoption of a tribal constitution reconfirms in the tribe “all powers vested... by existing law.” The statute thus reconfirms all preexisting powers of the Tribe and itself becomes a source of preempting power. See White Mountain Apache Tribe v. Bracker, - U.S. -, -, -, 100 S.Ct. 2578, 2583, 2584 n.10, 65 L.Ed.2d 665 (1980); Note, Balancing the Interests in Taxation of Non-Indian Activities on Indian Lands, 64 Iowa L.Rev. 1459, 1463, 1463 n.27 (1979).
Tribal power over reservation hunting and fishing was unquestionably vested prior to 1934. Tribal ordinances enacted to implement traditionally held, and congressionally approved, powers, may themselves serve to preempt the State. The Supreme Court saw another similarly enacted tribal ordinance as the implementation of “an overriding federal policy which is clearly adequate to defeat state jurisdiction.” Fisher v. District Court, 424 U.S. 382, 390, 96 S.Ct. 943, 948, 47 L.Ed.2d 106 (1976). Any constitutional limitations on congressional authority to delegate its legislative powers are “less stringent.. where
[as here] the entity exercising the delegated authority itself possesses independent authority over the subject matter.” United States v. Mazurie, 419 U.S. 544, 556-57, 95 S.Ct. 710, 717, 42 L.Ed.2d 706 (1975). The tribal scheme also negates any argument that the Tribe has not manifested an intent to preempt state jurisdiction. Cf. Confederated Tribes of Colville Indian Reservation v. Washington, 591 F.2d 89 (9th Cir. 1979).
The Fourth Circuit has held that extensive federal participation in reservation wildlife development is itself an element indicating federal preemption. Eastern Band of Cherokee Indians v. North Carolina Wildlife Resources Commission, 588 F.2d 75, 78 (4th Cir. 1978). In Eastern Band, as here, the federal government and the Tribe had developed the reservation fishing program with no state assistance. Where the State plays no role in stocking reservation waters, it “has no perceivable interest in reservation fishing.” Id See White Mountain Apache Tribe v. Bracker, - U.S.--, -, 100 S.Ct. 2578, 2587, 65 L.Ed.2d 665 (1980). See also Central Machinery Co. v. Arizona State Tax Commission, - U.S. -, 100 S.Ct. 2592, 65 L.Ed.2d 684 (1980).
Finally, we infer federal preemption from the statutory structure of Public Law 280, 67 Stat. 590 (1953), and its later amendments. Under that statute, New Mexico had the option until 1968 of unilaterally asserting civil and criminal jurisdiction over the Mescalero Apache reservation. It did not do so. See McClanahan v. Arizona State Tax Commission, 411 U.S. at 177-79, 93 S.Ct. at 1265-66. Even had the State assumed jurisdiction, the statute in its present form specifically protects the tribes from the deprivation of “any right, privilege, or immunity afforded under Federal treaty, agreement, or statute with respect to hunting, trapping, or fishing or the control, licensing, or regulating thereof.” 25 U.S.C. § 1321(b). If those states which accepted Public Law 280 jurisdiction may not hinder traditional hunting and fishing rights, New Mexico a fortiori may not do so.
The presumption of federal preemption is clearly not overcome by a treaty and statutory scheme which reassert the exclusivity of federal and tribal regulation of hunting and fishing. The State may not apply its game laws to persons for acts done on the reservation.
III. Tribal Self-Government
The second test for determining the propriety of state regulation on Indian reservations analyzes the impact of the regulation on tribal self-government. Even if the treaty and statutory scheme, read against the backdrop of sovereignty, were insufficient to create federal preemption, the Tribe’s authority is here protected under a tribal self-government analysis.
In the landmark case of Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959), which upheld tribal court jurisdiction over non-Indians, the Supreme Court restated the controlling test: “Essentially, absent governing Acts of Congress, the question has always been whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them.” Id. at 220, 79 S.Ct. at 271. To apply that test, a court must “[seek] an accommodation between the interests of the Tribes and the Federal Government, on the one hand, and those of the State, on the other.” Washington v. Confederated Tribes of the Colville Indian Reservation, - U.S. -, -, 100 S.Ct. 2069, 2083, 65 L.Ed.2d 10 (1980). Congress has identified one overriding federal interest by “recognizing] the obligation of the United States to respond to the strong expression of the Indian people for self-determination.” 25 U.S.C. § 450a(a).
In the context of its analysis of the pure-taxation schemes of the tribe and state in Colville, the Supreme Court delineated the relevant considerations for the balancing process:
While the Tribes do have an interest in raising revenues for essential governmental programs, that interest is strongest when the revenues are derived from value generated on the reservation by activities involving the Tribes and when the taxpayer is the recipient of tribal services. The State also has a legitimate governmental interest in raising revenues, and that interest is likewise strongest when the tax is directed at off-reservation value and when the taxpayer is the recipient of state services.
- U.S. at -, 100 S.Ct. at 2083. In the case before is, the scales tip decisively in the Tribe’s favor.
Unlike Colville, we here have a clear state interference with a traditional tribal regulatory power. To restrict the application of the tribal scheme to members only would be to complicate excessively the enforcement process and to render the very idea of “regulation” an absurdity. Here the Tribe has, with the aid of the federal government, generated the “value. on the reservation” which it now seeks to control and whose benefits it seeks to enjoy. The state services received by on-reservation sportsmen are minimal-incidental spillover effects of state activities outside the reservation. In fact, the spillover benefits to the State from the tribal conservation scheme-e. g., development of the migratory elk herd-may well be more significant. Although New Mexico has a legitimate interest in the conservation of its wildlife, the Tribe’s activities do not threaten that interest in any way.
The Ninth Circuit held, in United States v. Sanford, 547 F.2d 1085 (9th Cir. 1976), that Montana’s elk hunting laws were applicable to non-Indians hunting on a tribal reservation. The court found no indication that Montana game laws interfered with tribal self-government. Id. at 1089. In distinguishing Sanford, the Fourth Circuit emphasized that “there was no showing in Sanford that the applicability of Montana’s game laws... would materially affect or frustrate the Indians’ governance of themselves or any commercial, conservationist or other program administered by the Indians for their own advantage.” Eastern Band of Cherokee Indians v. North Carolina Wildlife Resources Commission, 558 F.2d 75, 78-79 (4th Cir. 1978). In this case, precisely that sort of showing was made.
Washington v. Confederated Tribes of the Colville Indian Reservation, - U.S. -, 100 S.Ct. 2069, 65 L.Ed.2d 10 (1980), indicates that state regulation of an activity in which a tribe has no significant interest- and where the only effect on the tribe is to limit tribal revenues-does not infringe upon tribal self-government. Id. at ---, 100 S.Ct. at 2082-83. However, such an effect still remains a factor to be considered, for “financial self-sufficiency” is “one major goal of tribal self-government.” Eastern Band of Cherokee Indians v. North Carolina Wildlife Resources Commission, 588 F.2d at 78. See also White Mountain Apache Tribe v. Bracker, - U.S. -, -, 100 S.Ct. 2578, 2586, 65 L.Ed.2d 665 (1980). The unquestioned importance to the Tribe of the game revenues contributed to the district court’s determination that tribal self-government was infringed upon, and we affirm that finding.
Finally, we note that underlying the infringement test is a desire to promote the development of indigenous Indian institutions. Congress has declared that its policy is “to help develop and utilize Indian resources... to a point where the Indians will fully exercise responsibility for the utilization and management of their own resources.” 25 U.S.C. § 1451. If we were to permit state interference with the tribal scheme, we would be effectively “deny[ing] Indians the opportunity of developing their own system.” Chino v. Chino, 90 N.M. 203, 561 P.2d 476, 479 (1977). The federally declared policy of
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_adminrev
|
O
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the federal agency (if any) whose decision was reviewed by the court of appeals. If there was no prior agency action, choose "not applicable".
UNITED STATES of America, Plaintiff-Appellee, v. Dale Edmund CROWDER, Defendant-Appellant.
No. 71-2980.
United States Court of Appeals, Ninth Circuit.
Aug. 22, 1972.
Rehearing Denied Sept. 27, 1972.
J. Patrick Heron (argued), San Francisco, Cal., J. Douglas McVay, Phoenix, Ariz., for defendant-appellant.
Joseph Jenckes, Asst. U. S. Atty. (argued), William C. Smitherman, U. S. Atty., Patricia Whitehead, Asst. U. S. Atty., Phoenix, Ariz., for plaintiff-appellee.
Before BARNES, KILKENNY and CHOY, Circuit Judges.
PER CURIAM:
Appellant was tried by a jury and convicted of violations of statutes with reference to interstate transportation of firearms. Additionally, he was convicted of violating 18 U.S.C. § 2314 [interstate transportation of stolen goods]. All convictions grew out of the same factual background.
On appeal, appellant makes the following assignments of error: (1) that the refusal of the trial judge to bifurcate the trial on the first two counts resulted in an improper admission of prejudicial evidence; (2) that the admission of appellant’s statements relating to his conduct in connection with seizing and transporting a female across state lines was prejudicial error, and (3) that the court erroneously instructed the jury on the question of intent on one of the counts.
(1) On the first assignment, we hold that the trial judge did not abuse his discretion. United States v. Roselli, 432 F.2d 879 (CA9 1970). Neither Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), nor Erwing v. United States, 296 F.2d 320 (CA9 1961), is in point on this record before us. Beyond that, the Judge’s cautionary instructions prohibiting the use of the evidence relative to Counts I and II in connection with the other counts were more than adequate to dispel any possible impropriety in overruling the motion.
(2) Neither appellant nor his attorney objected to the statements of the witnesses with reference to the abduction and transportation of the female witness. In the absence of plain error, appellant is in no position to raise the point. Here, plain error is not presented. Consequently, Rule 52(a), FRCrim P, as construed in United States v. Machado, 457 F.2d 1372, 1375 (CA9 1972), precludes us from considering the point.
Further, the evidence was properly received under the well-established rule that where two offenses are so inseparably connected that proof of one necessarily involves the proof of the other, the evidence of the other crime or crimes is admissible. United States v. Hughes, 441 F.2d 12 (CA5 1971), cert. denied 404 U.S. 849, 92 S.Ct. 156, 30 L.Ed.2d 88; Schwartz v. United States, 160 F.2d 718 (CA9 1947); Johnston v. United States, 22 F.2d 1, 5 (CA9 1927), cert. denied 276 U.S. 637, 48 S.Ct. 421, 72 L.Ed. 745.
(3) Appellant’s contention with reference to the absence of evidence of intent is answered by United States v. Freed, 401 U.S. 601, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971).
Judgment affirmed.
. 18 U.S.C. § 922(g); 18 U.S.C. § 924(a); 18 U.S.C. § 922 (k).
Question: What federal agency's decision was reviewed by the court of appeals?
A. Benefits Review Board
B. Civil Aeronautics Board
C. Civil Service Commission
D. Federal Communications Commission
E. Federal Energy Regulatory Commission
F. Federal Power Commission
G. Federal Maritime Commission
H. Federal Trade Commission
I. Interstate Commerce Commission
J. National Labor Relations Board
K. Atomic Energy Commission
L. Nuclear Regulatory Commission
M. Securities & Exchange Commission
N. Other federal agency
O. Not ascertained or not applicable
Answer:
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songer_r_bus
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0
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "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.
The TAYLOR-WINFIELD CORPORATION, Petitioner-Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
No. 72-1409.
United States Court of Appeals, Sixth Circuit.
Oct. 24, 1972.
John C. Klotsche, Chicago, 111., for petitioner-appellant; Thomas M. Hader-lein, Chicago, 111., on brief; Baker & McKenzie, Chicago, 111., of counsel.
Charles E. Anderson, Atty., Tax Div., Dept, of Justice, Washington, D. C., for respondent-appellee; Scott P. Crampton, Asst. Atty. Gen., Richard W. Perkins and Meyer Rothwacks, Attys., Tax Div., Dept, of Justice, Washington, D. C., on brief.
Before EDWARDS and MILLER, Circuit Judges, and BRATCHER, District Judge.
Honorable Rhodes Bratcher, United States District Judge for the Western District of Kentucky, sitting by designation.
ORDER
On consideration of the briefs of the parties and the files and records in this case; and
Finding that the appellate issues have been fully and accurately dealt with by the opinion of the Tax Court, 57 T.C. 205 (November 8, 1971),
The decisions of the Tax Court are affirmed for the reasons set forth in the Tax Court opinion just cited.
Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
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songer_casetyp1_7-2
|
E
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation".
EUCLID NATIONAL BANK, Plaintiff-Appellant, v. The FEDERAL HOME LOAN BANK BOARD and the Federal Savings and Loan Insurance Corporation, Defendants-Appellees.
No. 17831.
United States Court of Appeals Sixth Circuit.
May 7, 1968.
Certiorari Denied Oct. 14, 1968.
See 89 S.Ct. 130,
Maxwell J. Gruber, Cleveland, Ohio, for plaintiff-appellant, R. Dugald Pearson, Zellmer & Gruber, Cleveland, Ohio, on the brief.
Daniel J. Goldberg, Atty., Federal Home Loan Bank Bd. etc., Washington, D. C., for defendants-appellees, Kenneth E. Scott, Gen. Counsel, Max Wilfand, Assoc. Gen. Counsel, Washington, D. C., on the brief.
Before O’SULLIVAN, McCREE and COMBS, Circuit Judges.
ORDER
This is an appeal by the Euclid National Bank, formerly Euclid Savings Association, from a judgment of the District Court which holds that the bank is not entitled to recover certain insurance premiums paid to the Federal Savings and Loan Insurance Corporation.
The Euclid Savings Association was converted from an Ohio chartered building and loan association to the Euclid National Bank on February 1,1966. During its life as a building and loan association its savings accounts were insured by the appellee Federal Savings and Loan Insurance Corporation under the provisions of the National Housing Act, 12 U.S.C. § 1727. When it became a national bank its deposits were insured by the Federal Deposit Insurance Corporation.
Under the terms of the National Housing Act the Euclid Savings Association became obligated on November 21, 1965, to pay an annual premium in advance to the Federal Savings and Loan Insurance Corporation. One-half of the premium was paid in November, 1965, and the other one-half was deferred to April, 1966, and then paid pursuant to demand. The bank contends that the portion of the premium covering the period beyond February 1, 1966, when it became a national bank, is unearned and should be returned to it.
The trial judge held in a well reasoned memorandum opinion, D.C., 286 F.Supp. 125, that there is no federal statute or agency regulation applicable to this situation and, in the absence of an express agreement or one that may be implied in law, the rule is that “an insured may not have any part of his premium returned once the risk attaches, even if it eventually turns out that the premium was in part unearned.” Citing Fleetwood Acres v. Federal Housing Administration, 171 F.2d 440, 442 (2nd Cir. 1948).
For the reasons stated in the District Judge’s memorandum opinion, the judgment is affirmed.
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:
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songer_genapel2
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A
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task 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.
UNITED STATES of America, Plaintiff-Appellee, v. 5.96 ACRES OF LAND, more or less, situated in Skamania County, State of Washington, Knappton Towboat Company, a corporation, and the State of Washington, Department of Natural Resources, Defendants-Appellants.
Nos. 77-1557, 77-2215.
United States Court of Appeals, Ninth Circuit.
March 22, 1979.
J. Lawrence Coniff, Jr., Asst. Atty. Gen. (argued), Olympia, Wash., Robert M. Schaefer (argued), Vancouver, Wash., for defendants-appellants.
Jacques B. Gelin, Atty. (argued), Dept, of Justice, Washington, D.C., for plaintiff-appellee.
Before WRIGHT and ANDERSON, Circuit Judges, and TAKASUGI, District Judge.
The Honorable Robert M. Takasugi, United States District Judge for the Central District of California, sitting by designation.
J. BLAINE ANDERSON, Circuit Judge:
To expedite completion of the Bonneville Second Powerhouse Project, the United States filed this action seeking flowage easements and condemnation of certain lands adjacent to the Columbia River. Appellant Knappton Towboat Company (Knappton) leases aquatic lands from the State of Washington (the State). Pursuant to these leases, Knappton has constructed pilings, dolphins, and dikes in and along the waters near the juncture of the Wind and Columbia Rivers. The district court granted the United States partial summary judgment against Knappton, ruling that no compensation was due for damages that the proposed enlargement of the existing dam would cause to the structures built by Knappton. The court reasoned that since these structures were below the river’s ordinary high-water mark and the permits issued by the Army Corps of Engineers authorizing their construction were revocable at will, the United States’ dominant navigational servitude precluded Knappton’s claim for compensation.
The district judge certified an interlocutory appeal. 28 U.S.C. § 1292(b). We affirm the judgment against Knappton and dismiss the State’s appeal.
I. FACTS
For a small annual rent the State of Washington leases to Knappton aquatic lands located immediately upstream from the Bonneville Dam. Knappton built various pilings, dolphins, and dikes on the leased lands for timber storage. Completion of the Second Powerhouse Project will raise the water level behind the dam thereby weakening the structures Knappton has already built. To preserve them, Knappton must rebuild the structures at considerable expense.
Knappton contends this constitutes a compensable taking of private property under the fifth amendment. The State’s claimed loss is predicated on an anticipated decrease in rental value of its aquatic lands.
II. PROCEEDINGS
The United States filed its Complaint in December 1974. The State and Knappton filed Notices of Appearance in January 1975. The United States moved for partial summary judgment in July 1976, but limited its motion to Knappton's claim. Both Knappton and the State filed memoranda in opposition to the motion. The United States then filed a supplemental memorandum in support of partial summary judgment and again addressed its argument only to Knappton’s claim for compensation for injury to the physical structures.
In a Memorandum and Order filed November 19, 1976, the district court granted partial summary judgment, ruling that the United States had established, as a matter of law, that the Second Powerhouse Project served a navigational purpose, and therefore no compensation was due. The court excluded from its ruling the State’s claim for compensation:
“The court would emphasize that the decision reached here is limited to the facts of this case. The collateral issue raised by the State of Washington, in a case not part of this motion and relating to the river bottom, has not been considered.” (R. 165)
The Order also specified that the court would certify an interlocutory appeal pursuant to 28 U.S.C. § 1292(b), “should either party so desire.”
Knappton moved the court for certification, and the court entered an order certifying this appeal (R. 167). Knappton then filed a Notice of Appeal and a Cost Bond on Appeal (R. 168-69). The State did not file a notice of appeal or a cost bond, nor did it join in Knappton’s motion for certification.
Both Knappton and the State petitioned this court for leave to file an interlocutory appeal. Neither Petition clearly explains the procedural background of the State’s attempt to appeal. A motions panel of this court granted both Knappton and the State leave to appeal. All parties then submitted briefs and participated in oral argument.
III. APPEAL OF THE STATE OF WASHINGTON
Although a motions panel did grant the State’s Petition, we are free to reconsider its standing on appeal. United States v. Emens, 565 F.2d 1142, 1144 n.2 (CA 9 1977); see United States v. Patrick, 532 F.2d 142, 147 (CA 9 1976).
The State argues that the district court’s ruling that the Bonneville Second Powerhouse Project has a navigational purpose will effectively control the outcome of its claim for compensation. Therefore, the State concludes, it is a proper party to this interlocutory appeal. The district judge apparently disagreed: he specifically reserved for separate consideration the effect of the navigational servitude on the State’s claim. Although the State’s argument is logical, it is premised on the belief that the district court’s ruling and this appeal will establish the navigational servitude as the law of the case.
For reasons discussed infra, we do not reach the navigational servitude issue in considering the appeal of Knappton. We decide Knappton’s appeal on another ground. Thus, the State and Knappton (with respect to other claims for compensation) will be unaffected by this appeal, and they may further develop a factual record and address further arguments to the district court should the United States again assert the navigational servitude as a bar to just compensation.
The appeal of the State of Washington is dismissed. See Libby, McNeill, and Libby v. City National Bank, 592 F.2d 504, slip op. 3918 at 3926, # 75-3218 (CA 9, Nov. 28, 1978) (“A party may appeal only to protect its own interests, and not those of a coparty.”) Insofar as its briefs are pertinent to the issues raised by Knappton, we treat the State as amicus curiae.
IV. THE APPEAL OF KNAPPTON TOWBOAT CO.
Section 10 of the Rivers and Harbors Act, 33 U.S.C. § 403, expressly forbids the construction of any structure in navigable waters unless authorized by the Secretary of the Army. The United States alleges that the structures built by Knappton were authorized by permits that are revocable at will and therefore Knappton has no property interest cognizable under the fifth amendment.
Knappton points out that the permits are not included in the record. Copies are included in the record, and Knappton has never alleged that permits were not obtained or that the copies inaccurately or incompletely state the attendant conditions. In fact, Knappton’s Memorandum in Response to plaintiff’s Motion for Summary Judgment (R. 38) implicitly admits that permits were obtained. Even in its briefs to this court, Knappton has not denied that permits were obtained. Despite the asserted deficiency in the record, Knappton’s attempt to raise this phantom issue of fact comes too late.
Moreover, if no permits had been obtained, the structures would be unlawful, and their removal would not require compensation.
In the alternative, Knappton contends that issuance of the permits cannot be conditioned on waiver of its fifth amendment right to compensation for damages to the structures. There are two variants to Knappton’s contention, one directed to each of the two pertinent permit clauses (see n.4, supra).
A.
The first variant is that the permits grant Knappton a property right for which it must be compensated, unless the navigational servitude applies. Cf. Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974) (six justices held procedural due process criteria applicable in determining whether good cause existed for termination of federal employee). This misconstrues the effect of the permit: the permit granted Knappton a mere license to build and maintain these structures.
The permits expressly negate the conclusion that the permit holder received any property right. (E. g., “[T]his instrument does not convey any property rights either in real estate or material.” R. 84.) In United States v. Chandler-Dunbar Water Power Co., 229 U.S. 53, 33 S.Ct. 667, 57 L.Ed. 1063 (1913), the power company had built similar structures pursuant to a revocable permit. The Court denied any compensation to the power company:
“That it did not [by reason of the permit] acquire any right to maintain these constructions in the river [any] longer than the government should continue the license needs no argument.” 229 U.S. at 68, 33 S.Ct. at 674.
This court has held that comparable permits issued for maintaining outdoor signs along the nation’s highways do not require compensation when revoked. In Ryan Outdoor Advertising, Inc. v. United States, 559 F.2d 554 (CA 9 1977), the panel concluded that once the permits were revoked, there was no longer any interest to be compensated. We find no reason to distinguish these cases.
Although these permits were not revoked, we agree with the district court that the effect was identical:
“The direct language of the permit itself is evidence that [Knappton] knew the government could require removal . . . and that it was acquiring no property interest. It would be an anomaly to argue that the government can require the removal of structures within the river without payment of compensation, yet damage done to the same structures by the exercise of the same inherent rights must be compensated.” R. 164-65.
Cf. United States v. Fuller, 409 U.S. 488, 93 S.Ct. 801, 35 L.Ed.2d 16 (1973) (revocable grazing permits could not be considered in determining value of ranch land though permits had not been revoked). This court has impliedly recognized this fact. In a condemnation action, this court rejected evidence of the land’s value as a port site even though permits had been obtained and may have actually been used, and never revoked, to construct improvements on a navigable river. United States v. 87.30 Acres of Land, 430 F.2d 1130 (CA 9 1970). The permits were revocable at will. We agree with their conclusion:
“This type of permit is not such a vested property right as, on termination, requires payment of just compensation under the Fifth Amendment.” 430 F.2d at 1133.
Even if Knappton’s conclusion that the permits are conditioned on waiver of its right to compensation is correct, the Supreme Court’s analysis in United States v. Appalachian Electric Power Co., 311 U.S. 377, 61 S.Ct. 291, 85 L.Ed. 243 (1940), indicates the condition is constitutional. The Court upheld the validity of a condition in a dam license that allowed the United States to acquire the dam in the future for less than fair market value. The Court also stated that the licensee could be required to convey existing riparian rights to the United States at a reduced price in order to secure the right to build a dam, even though payment of full value would be required for these same rights if the government built the dam itself.
B.
Knappton next contends that the exculpatory clause for damages caused by future government operations is invalid.
This court has implicitly rejected the same argument in Pacific Northwest Bell Telephone Co. v. United States, 549 F.2d 1313 (CA 9), cert. denied, 434 U.S. 820, 98 S.Ct. 62, 54 L.Ed.2d 76 (1977) (hereinafter Bell). In that case, the permittee contended the condition conflicted with the waiver of sovereign immunity contained in the Public Vessels Act and the Suits in Admiralty Act. Although the argument here is couched in constitutional and public policy terms, the court’s reasoning is nonetheless applicable.
In Bell, the telephone company had been granted a permit to lay a cable underneath Lake Washington. The permit exculpated the United States from liability for damages that might be caused to the cable by future government operations. While setting buoys for a regatta, a Coast Guard vessel fouled the cable. The telephone company sued the United States for damages; the theory of liability was negligence.
The court upheld the validity of the exculpatory clause. The telephone company had asserted that the condition violated the policy embodied in the statutes waiving sovereign immunity by unfairly favoring the United States solely because of its sovereignty. The court responded:
“This does not serve to place the United States in a position more favorable than that which a private person would occupy . . .. The private person hypothesized in these circumstances is the owner of land from whom an easement is sought by one having no power to compel a grant or demand passage. The question is whether such a private person, in his power to attach conditions to an easement he was not otherwise obliged to grant, is less favored in the law than the United States is here held to be. We do not perceive that he is.
“Finally, we note that holding clause (g) to be unenforceable would do more than relieve Bell of a condition it regards as improper. It would, in effect, operate to render persons incompetent to secure desired benefits by way of contract, since they could no longer effectively commit themselves to conditions they may be entirely willing to assume in order to obtain their permit.”
549 F.2d at 1317.
The State of California argues that the court’s analogy is inapposite because the conditions, in both instances, were imposed, not bargained for at arm’s length. This argument, however, denies the United States the power to place reasonable conditions on private use of public waterways in the same manner as private persons may condition use of their real or personal property. Actually, the government is more constrained. Unlike a private individual, government actions must reasonably further a valid public purpose. See United States v. River Rouge Improvement Co., 269 U.S. 411, 46 S.Ct. 144, 70 L.Ed. 339 (1926); Scranton v. Wheeler, 179 U.S. 141, 21 S.Ct. 48, 45 L.Ed. 126 (1900). An individual property owner may refuse to grant an easement or license as he pleases or condition the grant on any lawful grounds.
In Boston Edison Co. v. Great Lakes Dredge & Dock Co., 423 F.2d 891 (CA 1 1970), the permittee argued that the exculpatory clause violated public policy, relying primarily on Bisso v. Inland Waterways Corp., 349 U.S. 85, 75 S.Ct. 629, 99 L.Ed. 911 (1955). Bisso holds that a tugboat company cannot contractually insulate itself from liability for damages caused by its own negligence when towing another vessel. The court in Boston Edison distinguished Bisso :
“Finally, Edison argues that Clause (g) should be struck down as violative of public policy, relying primarily on Bisso v. Inland Waterways Corp., 349 U.S. 85, 75 S.Ct. 629, 99 L.Ed. 911 (1955). Bisso, however, enunciates a rule of contract law and arises in a context in which the Supreme Court ruled, in substance, that where two parties to a contract are of unequal bargaining power it is against public policy for the stronger of the two parties to force the weaker to accept a clause exculpating the stronger from liability for its own negligence.
“The instant situation is totally distinguishable from Bisso in that Clause (g) does not appear in a contract. The permit in question was neither negotiated for nor sold, but was issued by the Secretary of the Army acting under discretionary authority clearly conferred on him by 33 U.S.C. sec. 1 et seq. If the insertion of such a clause under authority given to the Secretary be now thought to be against public policy, the entity enunciating that a policy clearly contained in a statutory grant of power to the Secretary is no longer held in favor should be the Congress and not this court.”
423 F.2d at 897. We also note that absent here is the special relationship between a tow for hire and a helpless vessel that the court expressly relied on in Bisso. 9 349 U.S. at 91, 75 S.Ct. 629. Compare The Steamer Syracuse, 79 U.S. (12 Wall.) 167, 20 L.Ed. 382 (1870) with Sun Oil Co. v. Dalzell Towing Co., Inc., 287 U.S. 291, 53 S.Ct. 135, 77 L.Ed. 311 (1932).
We find the panel’s analogy in Bell apposite and follow its reasoning. We hold that “[t]he effect of the condition here imposed is simply to place upon the permittee the risk of damage to the permitted structure.” Id. at 1316. Irrespective of the condition’s validity in a contract setting, it is valid when the United States is discharging its “special duties and responsibilities” over navigable waters.
The State of California also asserts that Bell should be distinguished because Bell relies on the fact that the Coast Guard was serving a navigational purpose. We disagree. The opinion expressly disavows reliance on the United States’ navigational servitude. 549 F.2d at 1317 n.5. Both the permit here and the one in Bell conditioned the license on the permittee assuming the risk of damage caused by government actions in the public interest.
Finally, the State of California invites us to distinguish Bell on the ground that Bell involved a tort action whereas here the government action involves an alleged taking of private property without compensation. We decline. In Bell, the damage was caused by the government’s negligence; by definition, then, the damage was not necessary to further the public interest. Here, the damage was an unavoidable consequence of a project undertaken to further the public good. The policy supporting insulating the government from liability is therefore much stronger in the case at bar.
Finally, we emphasize that, although the district court relied primarily on the navigational servitude, our decision is in keeping with its conclusion regarding the effect of the permits. The question whether this project serves a navigational purpose may be considered by the district court when ruling on the State’s claim for compensation. This, again, is in keeping with the district court’s initial ruling.
The appeal of the State of Washington is DISMISSED. The judgment is AFFIRMED, and the case is REMANDED for further proceedings.
. For purposes of this appeal, we assume the alleged damage could, in other circumstances, constitute a taking of private property. Thus we do not decide whether the anticipated rise in pool level and consequent weakening of these structures is a sufficient encroachment on private property to constitute a “taking” under the fifth amendment. Similarly, we do not decide whether diminution in rental value can constitute a “taking.” Cf. Gibson v. United States, 166 U.S. 269, 275-76, 17 S.Ct. 578, 41 L.Ed. 996 (1897) (alternative ground); Brothers v. United States, - F.2d -, slip op. 459, # 77-3044 (C.A.9, Feb. 8, 1979) (“there is a taking of property when government action directly interferes with or substantially disturbs the owner’s use and enjoyment of the property.”)
. F.R.A.P. Rule 5, 28 U.S.C.A., provides:
“Appeals by Permission Under 28 U.S.C. § 1292(b)
(d) If permission to appeal is granted the appellant shall file a bond for costs .
A notice of appeal need not be filed.
. Ҥ 403. Obstruction of navigable waters generally; wharves; piers, etc.; excavations and filling in
The creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is prohibited; and it shall not be lawful to build or commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any port, roadstead, haven, harbor, canal, navigable river, or other water of the United States, outside established harbor lines, or where no harbor lines have been established, except on plans recommended by the Chief of Engineers and authorized by the Secretary of the Army; and it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of, any port, road-stead, haven, harbor, canal, lake, harbor of refuge, or inclosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army prior to beginning the same.”
33 U.S.C. § 403.
. “[Tjhis permit may be revoked by authority of the Secretary of the Army ... if the Secretary determines that, under the existing circumstances, such action is required in the public interest.” Copy of Permit, R. 84.
The permits also contained an exculpatory clause:
“(j) [T]he United States shall in no way be liable for any damage to any structure or work authorized herein which may be caused by or result from future operations undertaken by the Government in the public interest.” Copy of Permit, R. 85.
Although Knappton contends the present project does not serve a navigational purpose, it does not contend that the project fails to serve a legitimate public interest. Knappton does contend that the Secretary has expanded his authority by changing the wording of these conditions. We have examined the wording in all the permits submitted to the court, including the ones attached to Knappton’s petition for leave to file this appeal and in the regulations promulgated by the Secretary of the Army. In light of the facts and issues raised in this appeal, the variations in wording are immaterial. In each, the government’s power to revoke and its exculpation from liability are clearly stated. See n.6, infra.
. This case also puts to rest Knappton’s contention that conditions unrelated to navigation are invalid per se. See also Zabel v. Tabb, 430 F.2d 199 (CA 5 1970), cert. denied, 401 U.S. 910, 91 S.Ct. 873, 27 L.Ed.2d 808 (1971) (Secretary must consider effects other than navigation and may refuse a permit under the Rivers and Harbor Act on conservation grounds). And Knappton’s assertion that the Secretary exceeded his authority in imposing these conditions is unsupported by case law. See id. at 207.
. The condition reviewed in Bell was differently worded, but essentially the same as the condition in the permits issued to Knappton:
“That the United States shall in no case be liable for any damage or injury to the structure or work herein authorized which may be caused by or result from future operations undertaken by the Government for the conservation or improvement of navigation, or for other purposes, and no claim or right to compensation shall accrue from any such damage.”
549 F.2d at 1315. Compare 33 C.F.R. § 209.-130(c)(2)(vii) (1974) with 38 Fed.Reg. 12217 (1973) and 33 C.F.R. § 209.120(g) (1976).
. We granted the State of California leave to file a brief as amicus curiae.
. Any special relationship that exists between the United States and potential users of the nation’s waterways is assured by the requirement that the United States must always act reasonably and in the public interest.
. The district judge in Bell had found that the Coast Guard was negligent per se. 549 F.2d at 1316.
. In Bisso v. Inland Waterways Corp., 349 U.S. 85, 75 S.Ct. 629, 99 L.Ed. 911 (1955), the court grounded its decision on the need:
"(I) to discourage negligence by making wrongdoers pay damages, and (2) to protect those in need of goods or services from being overreached by others who have power to drive hard bargains.” (footnote omitted) 349 U.S. at 91, 75 S.Ct. at 632, 633.
Upholding the validity of the instant clause under these facts jeopardizes neither of these policies. As noted in the text, negligence is not involved. There can be no overreaching in bargaining when, as here, the government grants a gratuitous license.
Question: What is the nature of the second listed appellant whose detailed code is not identical to the code for the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
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songer_const2
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0
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the second most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if fewer than two constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the second greatest number of headnotes. In case of a tie, code the second mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
UNITED STATES of America, Plaintiff-Appellee, v. Albert Lonzo CANTRELL, Defendant-Appellant.
No. 78-1750.
United States Court of Appeals, Tenth Circuit.
Argued Sept. 13, 1979.
Decided Jan. 7, 1980.
Bruce C. Houdek of James, Odegard, Mil-lert & Houdek, Kansas City, Mo., for defendant-appellant.
John Oliver Martin, Asst. U. S. Atty. (with James P. Buchele, U. S. Atty., Topeka, Kan., on brief), Kansas City, Kan., for plaintiff-appellee.
Before McWILLIAMS, BARRETT and McKAY, Circuit Judges.
McKAY, Circuit Judge.
This case involves two loads of firearms sold to a government “sting” operation. Cantrell and a cohort were indicted under 18 U.S.C. § 922(i) for transporting each of the loads from Missouri to Kansas on September 19 and 20, 1977. Cantrell, a previously convicted felon, was also indicted under 18 U.S.C. § 922(h) for “receiving” the same firearms in Kansas on the same dates. He was convicted and sentenced to consecutive terms of imprisonment for the four counts. The government’s apparent theory and actual proof was that the defendants stole the weapons in Missouri and transported them to Kansas for sale to the sting operation. Cantrell challenged the obvious inconsistency between the indictments for transportation from Missouri into Kansas and receipt of those same weapons in Kansas. There is no doubt that the government’s proof supports its theory that the guns were stolen by the defendants in Missouri and transported into Kansas. The problem arises from the government attempt to sustain the convictions and sentences for receiving the guns in Kansas.
In order retroactively to support these apparently inconsistent convictions, the government imaginatively refashions the English language. It suggests that “receipt” is a continuous act under 18 U.S.C. § 922(h) and that Cantrell therefore “received” the weapons at all times that he possessed them — from Missouri to Kansas. To bolster its contention that receipt and possession are synonymous the government quotes from one of the congressional committee reports for the Federal Gun Control Act of 1968. As quoted by the government, the passage reads:
The principal purposes of title IV [of which 18 U.S.C. § 922(h) is a part] are to aid in making it possible to keep firearms out of the hands of those not legally entitled to possess them because of age, criminal background or incompetency . . . . S.Rep.No. 1097, 90th Cong., 2nd Sess., reprinted in [1968] U.S.Code Cong. & Admin.News, pp. 2112, 2113.
Brief for Appellee at 12 (emphasis added by appellee). Rather than accepting a common sense interpretation of this passage — that by making particular acts like “receipt” criminal, Congress intended to deter the ultimate act, possession — the government contends in effect that ultimate statutory purpose should blur precise statutory language: “Clearly, § 922(h) was not designed to discourage the momentary offense of receiving, but rather the continuing offense of receiving or of possession.” Brief for Appellee at 12. Taken one step further, the government’s argument would in effect lead to the absurd conclusion that §§ 922(h) and 922(i), because of their common purpose, are indistinguishable. Under this analysis, we would be left with a double conviction for the same “continuing offense of receiving or of possession,” a result we could not countenance.
In another attempt to sustain its position, the government argues that the jury could have found that Cantrell “re-received” the weapons in Kansas after having transported them there. Since the weapons remained in the trunk of the co-defendant’s car and the co-defendant picked up Cantrell on the way to the sting operation, the government suggests that Cantrell “temporarily lost possession” and later regained it. Brief for Appellee at 9-10. We believe that no jury would formulate such a bizarre theory and, as a matter of law, no jury should be permitted to attach such a meaning to “receipt.” Under neither common sense nor the law do we “receive” our possessions anew each time we come upon them.
The government suggests a final theory to salvage the apparently inconsistent counts of the indictment. It argues that evidence of receipt in Missouri satisfies the indictment for receipt in Kansas and that this case involves a mere harmless variance between indictment and proof. If Cantrell had been charged with receipt only, the variance in the place of the offense would perhaps have been harmless. See United States v. Frazier, 545 F.2d 71 (8th Cir. 1976), cert. denied, 429 U.S. 1078, 97 S.Ct. 823, 50 L.Ed.2d 798 (1977). However, when a defendant is charged with apparently inconsistent counts in a single indictment and the government removes the inconsistency only at trial, if at all, we cannot say that the defendant “could . . . have anticipated what the evidence would be at trial.” Brief for Appellee at 10, citing United States v. Freeman, 514 F.2d 1184 (10th Cir. 1975). The government has succeeded in sustaining consecutive sentences for unlawful transportation. We cannot say that the unfairness involved in the substantial variance between the indictment on the one hand and the government’s theory on the other hand is sufficiently harmless to sustain the addition of two more lengthy terms in sequence.
The conviction is affirmed as to counts one and three (interstate transportation) and reversed as to counts two and four (receipt).
. Section 922(i) reads: “It shall be unlawful for any person to transport or ship in interstate or foreign commerce, any stolen firearm or stolen ammunition, knowing or having reasonable cause to believe that the firearm or ammunition was stolen.”
. In pertinent part, § 922(h) reads: “It shall be unlawful for any person . . who is under indictment for, or who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year . to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
Question: What is the second most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Answer:
|
songer_fedlaw
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant.
SITTERDING v. COMMISSIONER OF INTERNAL REVENUE (three cases).
Nos. 3961-3963.
Circuit Court of Appeals, Fourth Circuit.
Jan. 6, 1936.
Frank J. Albus, of Washington, D. C., for petitioner.
L. W. Post, Sp. Asst, to the Atty. Gen. (Frank J. Wideman, Asst. Atty. Gen., and Sewall Rey, Sp. Asst, to the Atty. Gen., on the brief), for respondent.
Before NORTHCOTT and SOPER, Circuit Judges, and CHESNUT, District Judge.
NORTHCOTT, Circuit Judge.
These are petitions for review of decisions of the United States Board of Tax Appeals, involving income taxes of the petitioners for the year 1929. The decision of the board was entered May 4, 1935. The three cases were consolidated and it was stipulated that the decision in one case would control the other two cases.
The Board of Tax Appeals filed no separate findings of fact, but the material facts are stated in the decision of the board and the petition here discussed will be that of Agnes Sitterding in case No. 3961.
The petitioner is an individual residing at Richmond, Va. Her father, Fritz Sitterding, died testate April 14, 1928, and two of his sons and the Virginia Trust Company qualified as executors of the estate in April, 1928. The inventory of the estate filed by the executors valued the assets of the estate at approximately $3,000,000. The will of the deceased directed his executors to set aside and hold in trust $300,000, the income from this trust to be divided quarterly among his three children. The balance of the estate was also to be equally divided among his three children. At the time of the decision of the Board of Tax Appeals the estate was still in the process of administration.
During the year 1929 the executors and trustees made three distributions to the beneficiaries as follows:
Agnes William H. Fred B. Date Sitterding Sitterding Sitterding
Jan. 30, 1929 $7,242.59 $7,242.59 ' $7,242.58
July 30, 1929 3,746.84 3,746.84 3,748.84
Oct. 30, 1029 5,451.45 5,451.45 ‘ 5,451.45
Total “ 16,440.88 16,440.88 16,440.87
The record kept by the executors for the estate contained an account entitled “Income Account” and an account entitled “Principal Account.” The above distributions were charged to and entered in such income account on the above dates and in the above amounts, with an explanation as follows:
Income
Miss Agnes Sitterding......:...... 1/3
W. H. Sitterding.......*........... 1/3
To a/c (or “acc’t”) Fred B. Sitterding ......................... 1/3
Such distributions exhausted the funds as reflected in the credit balance in the income account at the respective dates of distribution.
During the calendar year 1929 the estate had a gross income of $96,998.84, and in March of that year the executors paid a federal estate tax in the amount of $34,555.56, and in April of the same year paid state inheritance tax in the amount of $138,582.41, both of which payments were charged, on the books kept by the executors, to the principal account. The Virginia Trust Company advanced the executors the money to make these federal and state tax payments to the extent that they did not have the money on hand with which to make them.
The respondent increased the reported net income of the petitioner, for the year 1929, by adding thereto the amount of $16,440.88 as representing total distributions from the estate including the amount received from the trust fund and, upon review by the Board of Tax Appeals, the respondent’s action was sustained and this petition for review was filed. Petitioner agrees that the amount received from the trust fund, $1;781.25, should be added to the reported income.
The sole question here involved is whether the board was correct in sustaining the action of the Commissioner in adding $14,659.63 to petitioner’s 1929 income as a distribution of income received from her father’s estate, or whether such amount was distributed from corpus, as contended by petitioner.
The statutes involved are sections 22 (b) (3), section 23 (c) and section 162 (b, c) of the Revenue Act of 1928 (26 U.S.C.A. §§ 22 and note, 23 note, 162 and note) and Treasury Regulations 74, arts. 83, 154, 862, and 863.
It is first urged on behalf of the respondent that the record, as prepared for this court, contains no statement of evidence whatsoever, and that the board’s findings of fact are not here reviewable to determine whether they are supported by substantial evidence. Commissioner v. Continental Screen Company (C.C.A.) 58 F.(2d) 625; Evergreen Cemetery Ass’n v. Burnet, 59 App.D.C. 397, 45 F.(2d) 667. While this is undoubtedly the correct rule of law, there are incorporated - in the decision of the board findings of ultimate facts and it is not necessary to quote authorities to the effect that we can review the action of the board in applying the law to the facts so found.
It is uniformly held that “under the revenue acts taxable income is computed for annual periods.” That the revenue acts uniformly assess the tax on the basis of annual returns is unquestioned. Burnet v. Sanford & Brooks Co., 282 U.S. 359, 51 S.Ct. 150, 75 L.Ed. 383; Burnet v. Thompson Oil & Gas Co., 283 U.S. 301, 51 S.Ct. 418, 75 L.Ed. 1049.
The year involved is the year 1929 and in that year the estate did not collect total income enough to pay the state and federal taxes properly chargeable to it. It follows that there was no income to be distributed for that year and therefore no income to be taxed either to the estate or to the heirs. The federal and state taxes paid are a proper deduction from the gross income of the estate (Revenue Act 1928, § 23 [26 U.S.C.A. § 23 and note]), and more than covered the entire income collected. The action of the Commissioner and of the Board of Tax Appeals seems to be based largely upon the fact that the distribution made to the taxpayer was from an income account kept by the executors and while it is true that book entries are evidential (Doyle v. Mitchell Brothers Company, 247 U.S. 179, 38 S.Ct. 467, 62 L.Ed. 1054), the authorities are clear that such entries are no more than evidential and the decision must rest upon the actual facts, especially, where these facts are not in dispute. Doyle v. Mitchell Brothers Company, supra.
Where there is no question of bad faith with regard to the bookkeeping entries, the rights of the parties can neither be established nor impaired by the ■bookkeeping methods employed. Mere bookkeeping entries cannot preclude the government from collecting its revenues, nor are such entries conclusive upon the taxpayer. The bookkeeping creates nothing, and the question must be decided according to proven and established facts. Douglas v. Edwards (C.C.A.) 298 F. 229; Mitchell Brothers Company v. Doyle (D.C.) 225 F. 437.
The matter must be considered in the light of the applicable probate and administration law. By this law the duty of the executors was to receive the principal of the estate, to inventory it, to ascertain the debts to be paid, including all taxes, and after paying all creditors and taxes and expenses of administration, to strike a balance from which should be paid specific or particular legacies, trust funds should be set up as required by the will, and final balance should be distributed to the residuary legatees, of whom the taxpayer was one. As this was not done during the year 1929, there is certainly nothing to show that the comparatively small sums distributed to the taxpayer during that year were in excess of her principal interest as residuary legatee in the estate. It is not shown by the record what the total charges against the estate were, including debts to be paid. The estate has not been fully administered. It is not possible, therefore, to say that the distribution to the taxpayer was income and not merely an advance on account of the corpus. It is still undetermined what amount of corpus the residuary legatee will receive from the estate.
In dealing with the law of the case, we must also consider the federal taxing statutes. The Virginia probate and administration law is typical of what is generally the law in the different states of the United States. It is reasonable to assume that Congress, in providing for the payment of income tax by estates, had this general situation in mind. Congress has definitely provided for the taxation of income of estates in the course of administration whether the decedent died testate or intestate. Particular provisions are made with regard to the taxation on the income of an estate where it is held in trust. In such a case it is specifically provided that the income actually paid or accumulated for payment to the beneficiary shall be allowed as a deduction from income of the estate but shall be taxable as income to the individual beneficiary.
With regard to the income of estates not specifically held in trust, it is provided that the taxes, including those paid by the executors in this case in 1929, are deductible from income.
The effect of this legislation as a whole seems to be that Congress realized that for a certain period after the death of a decedent the corpus of his estate would be held by the executors before actual distribution and that while so held and therefore before distribution to the beneficiaries under the will or by the intestate law, there would be income of the estate received by the executors or administrators. And such income after* certain deductions provided for by law is taxable to the executors and administrators. The income of this estate, therefore, during 1929 and before its distribution to the legatees, was taxable to the executors and not to the beneficiaries, except to the extent that they received income on principal disbursements.
While the record does not expressly and affirmatively so show, yet it is necessarily inferable from the facts stated, that the executors in this case were not taxable on the income of the estate because the credits against the income on account of the taxes paid greatly exceeded the total gross income. Nevertheless the apparent purpose of the Commissioner in this case is to tax some portion of this net income of the estate to the taxpayer. Or, in other words, there is here an attempt to collect income taxes which are not payable by anybody.
The decision of the Board of Tax Appeals is accordingly reversed.
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_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.
HARTFORD-EMPIRE CO. v. SWINDELL BROS., Inc., (AMSLER-MORTON CO., Intervener).
No. 4273.
Circuit Court of Appeals, Fourth Circuit.
Oct. 4, 1938.
For prior opinion, see 96 F.2d 227.
Sidney F. Parham, of Hartford, Conn. (Edwin F. Samuels, of Baltimore, Md., William J. Belknap, of Detroit, Mich., and Robson D. Brown and- Lloyd G. Bates, both of Hartford, Conn., on the brief), for appellant.
Lawrence C. Kingsland, of St. Louis, ^a’,a“d 13. Jaspert’ of -,PlttS3 burSh> Pa- (Cook & Markell and Edward A. Smith, all of Baltimore, Md., on the brief), for appellees.
Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.
PARKER, Circuit Judge.
A careful consideration of the briefs and oral arguments on rehearing lead to no change in the conclusions of the Court as embodied in its opinion filed April 21, 1938. 96 F.2d 227. One statement of fact should be modified. This modification relates to the statement that the defendants’ expert corrected his testimony as to the top of the tunnel of defendants’ lehr being hotter than the bottom. At page 231. The correction made by the witness related to testimony as to the relative temperatures of the top and bottom of lehr of the reissue patent, not the lehr of defendants. We are satisfied, however, that, as a matter of fact, the tunnel ot defendants’ lehr, as well as of that of plaintiff, has a hotter bottom than top throughout the entire annealing range, When the firebox above the entrance to the tunnel is heated, the heat is maintained at a temperature 300 degrees lower than that of the bottom flue. The top firebox extends for only a very short distance, and beyond this there is no heat whatever above the tunnel, whereas the temperature of the bottom flue is very high. In this situation, it seems to us inevitable that vertical convection currents should be'produced and the lehr of defendants operate on the same principle as that of plaintiff. .
Defendants earnestly contend on rehearing that the function of the dampered cold air inlets of the reissue patent is to cool the flue beyond the annealing range and that the function of the dampered hot air outlets of defendants’ lehr is to contr.ol the heat gradient within the annealing range. From this it is argued that the function of the inlets and outlets in the two cases is entirely different and that there is consequently no basis for a finding of equivalency. We are satisfied from the evidence, however, that the inlets of the reissue patent are used for controlling the heat gradient within the annealing range as well as for cooling the flue beyond that range. And irrespective of this, we think there is ample basis for the finding of equivalency. The gist of the patent is the application of heat to the bottom only of the heatless unit lehr of the prior art. One o'f the problems of the combination was to control the heat of the flue so that it would be reduced in the second annealing stage and nullified in the cooling stage. This was solved in the patent by admitting cool air to the flue through dampered inlets. The accused lehr uses the “unit” lehr of the prior art in combination with the lower heating flue, just as does the lehr of the patent. Heated air is drawn through this lower flue by suction, just as in the lehr of the patent. The only difference is that in the accused lehr the héating flue ends where the cooling stage begins so that the bottom of the tunnel comes directly in contact with the outside atmosphere, and that for controlling the heat gradient within the annealing zone dampered outlets for the heated air are provided so that, by opening those near the entrance end of the tunnel and closing those near the cooling end, a portion of the hot a-ir will be drawn off near the entrance end and will not exert its influence in the second anneal-ing stage. While there is thus a slight change of form in the apparatus used, the same result, i. e. the cooling of the tun-nel, is accomplished in substantially the same way, i. e. by reducing the heat of the heating flue in the annealing stage and hy letting cool air come in contact with the bottom of the tunnel in the cool-ing stage. The fact that, in the anneal-ing stage, .the cooling of the flue is ac-complished in the one case by admitting cool air and in the other by drawing out heated air, and that, in the cooling stage, the cooling is accomplished in the one case by drawing cool air into the heating flue and in the other by ending the flue altogether, is not sufficient to avoid in-fringement on the part of one who has appropriated the real gist of the invention,
Another point zealously stressed on rehearing is that vertical convection cur-rents are not employed in the annealing zcme of the lehr of the reissue patent and n°t at all in the accused lehr. The theory of vertical convection currents is the one upon which the success of the lehr of the reissue patent is explained; but neither the success of the lehr nor the validity of the patent is dependent upon the correctness that theory. The patent was granted for the combination of elements described in our former opinion, not for the theory of operation which it_ was supposed to embody. It was infringed when a lehr was built involving substantially the same combination, whether the^ theory advanced to account for its actaon correct or not. As said by Mr. Justice McKenna in the case of Diamond Rubber Co. v. Consolidated Tire Co., 220 428, 435, 31 S.Ct. 444, 447, 55 L.Ed. 527:
“A patentee may be baldly empirical, seeing nothing beyond his experiments and the result; yet if he has added a new and valuable article to the world’s utilities, he is entitled to the rank and protection of an inventor. And how can it take from his merit that he may not know all of the forces which he has brought into operation? It is certainly not necessary that he understand or be able to state the scientific principles under-lying his invention, and it is immaterial whether he can stand a successful examination as to the speculative ideas in-volved. * * * He must, indeed, make such disclosure and description of his invention that it may be put into practice, In this he must be clear. He must not put forth a puzzle for invention or experiment to solve, but the description is sufficient if those skilled in the art can understand it. This satisfies the law, which only requires as a condition of its protection that the world be given something new and that the world be taught how to use it. It is no concern of the world whether the principle upon which the new construction acts be obvious or obscure, so that it inheres in the new construction.”
Nothing in the file wrapper of Ingle patent No. 1,764,791 can have any bearing upon the validity of the Ingle patent in suit; for the patent in suit was granted before application was made for the other. patent. Century Electric Co. v. Westinghouse Electric Co., 8 Cir., 191 F. 350, 352; Claude Neon Lights, Inc., v. Machlett & Son, 2 Cir., 27 F.2d 702, 707; Thomson-Houston Electric Co. v. Ohio Brass Co., 6 Cir., 80 F. 712, 727. Furthermore, as we were at pains to point out in our former opinion, there was no novelty in the drive used by the Ingle patent in ^ suit. The novelty consisted in the combination of the drive with the woven wire belt in such way as to make that type of belt usable for transporting ware ^ through the tunnel; and it is this combination, and not the mere drive, which the defendants are imitating.
Finally it is argued by defendants on rehearing that the success of the lehr of the reissue patent, to which we referred in our former opinion, was not as pronounced as there stated and that, at any event, it was attributable to the “unit” lehr construction, old in the art. The “unit” lehr of the prior art, however, was a failure precisely because no method had been devised for heatinsr it effectivelv It "Jo n ly In con.K„.,i"n with teS ing device of the patent that it came to have any practical value. Nothing can obscure the fact that the result of the invention embodied in plaintiff’s structure has been to revolutionize the art with respect to annealing the type of glassware produced by automatic forming machines; and it is the lehr of this invention which defendants are manufacturing, not the old unit lehr of the prior art which had failed.
For the reasons set forth in our former opinion, to which should be added what is herein contained, we are of opinion that the decree appealed from should be affirmed in so far as it relates to Mulholland patent No. 1,840,463 and reversed as to Mulholland reissue patent No. 17, 263 and Ingle patent No. 1,583,046, and that the cause should be remanded for further proceedings.
Affirmed in part, reversed in part and remanded,
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_confess
|
E
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court conclude that a confession or an incriminating statement was improperly admitted? Consider only incriminating statements made by the defendant." Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
STEEL VALLEY AUTHORITY, Appellant, v. UNION SWITCH AND SIGNAL DIVISION, American Standard, Inc., Westinghouse Air Brake Division, American Standard, Inc.; Radice Corporation; F. Emmett Meyer, Jr.; Louis D. Kopsa Radice-East Hills, Inc., Appellees.
No. 86-3402.
United States Court of Appeals, Third Circuit.
Argued Nov. 7, 1986.
Decided Jan. 20, 1987.
Rehearing and Rehearing In Banc Denied Feb. 11, 1987.
Joseph S. Hornack (argued), Edward Jaffee Abes & Associates, P.C., Pittsburgh, Pa., for appellant.
Robert W. Hartland (argued), Reed, Smith, Shaw and McClay, Pittsburgh, Pa., for appellees — American Standard, Inc., Louis D. Kopsa and F. Emmett Meyer, Jr.
Robert W. Murdoch (argued), Vincent J. Grogan, Grogan, Graffam, McGinley & Lucchino, P.C., Pittsburgh, Pa., for appellee — Radice-East Hills, Inc.
Before SLOVITER, STAPLETON and GARTH, Circuit Judges.
OPINION OF THE COURT
GARTH, Circuit Judge:
The Steel Valley Authority (Steel Valley) has appealed from an order of the district court dismissing Steel Valley’s complaint against various named defendants for failure to state a cause of action. We do not reach the question of whether Steel Valley stated a viable cause of action because we have determined that the addition of an indispensable, nondiverse party defendant to Steel Valley’s action deprived the district ■ court of federal subject matter jurisdiction.
I.
The circumstances giving rise to this case, the migration of heavy industry from long-dependent Pennsylvania communities to new locations outside Pennsylvania, have become all too familiar in the industrial areas of that state. The players in this economic drama are by no means unique. The main defendant in this case is American Standard Corporation, the parent company of both Westinghouse Air Brake Division (WABCO), located in Wilmerding, Pennsylvania since 1889, and Union Switch and Signal Division, located in Swissvale, Pennsylvania since 1887. The plaintiff in this case is the Steel Valley Authority, an organization formed by nine Allegheny County municipalities for the purpose of, among other things, promoting industrial development projects, both new and existing.
The dispute between the parties developed after American Standard’s announcement in the latter part of 1985 that it would close down all of the Union Switch plant and most of the WABCO plant by the end of 1987. Not surprisingly, the decision was unpopular in the communities to be affected by the closings. Reaction was particularly bitter because of extensive community efforts over the past twenty years to keep the plants open.
In an effort to salvage the 2,000 jobs which would be lost as a result of this corporate migration, Steel Valley began to formulate a plan to acquire and operate the WABCO and Union Switch plants and properties as industrial development projects. Apparently, during this initial planning period, American Standard threatened the removal of various equipment and fixtures necessary to the successful operation of the plants.
Forced to take action to preserve the feasibility of its project, Steel Valley brought an action on March 24, 1986 in the Court of Common Pleas of Allegheny County, Pennsylvania against the Union Switch and Signal Division; Westinghouse Air Brake; Louis Kopsa and F. Emmett Meyer, Jr., both employees of the American Standard subsidiaries; and Radice Corporation, a Florida corporation. Steel Valley’s goal in the filing of this action was to preserve the plants in their operable form until it could formulate and implement a plan for the acquisition of the plants through an exercise of its eminent domain power.
In its complaint, Steel Valley alleged that American Standard’s removal of specialized machinery and equipment from the property constituted waste; it therefore sought an injunction prohibiting such waste of the property. Steel Valley argued that it was entitled to an injunction against waste of the property at issue because of its reversionary interest in the land arising out of its power of eminent domain. Steel Valley also alleged the need to preserve the status quo until it could formulate its plan of acquisition and development, asserting that its prospective taking would be mooted by the “destruction of the underlying res.” App. at 73a. It therefore sought, among other relief, an injunction against the destruction or razing of the buildings or fixtures forming part of the real estate. Affirmatively, it sought the protection and maintenance of the property until it could file a declaration of taking.
On March 25, 1986, American Standard filed a petition for removal in the District Court for the Western District of Pennsylvania alleging the jurisdictional ground of diversity. No hearing had yet been held in state court on the preliminary injunction sought by Steel Valley.
American Standard alleged in its petition for removal that the nondiverse individuals Meyer and Kopsa were “fraudulently and improperly joined” as defendants to Steel Valley’s action in an effort by Steel Valley to prevent removal of its case to federal court. App. at 25a. Moreover, American Standard asserted that Radice Corporation, a Florida corporation, which was a diverse defendant, was merely a “nominal party” to the action, because Steel Valley had alleged no wrongdoing by Radice, and thus had not stated any cause of action against Radice to support its claims of relief. Id.
The district court granted American Standard’s petition for removal on March 25, 1986, implicitly agreeing with American Standard’s assertion that Meyer and Kopsa were fraudulently joined and that Radice Corp. was a nominal party, and therefore need not be considered in satisfying diversity jurisdiction requirements.
Steel Valley filed an “Emergency” Motion to Remand on March 26, 1986. The following day, Steel Valley, claiming that it had been mistaken as to the identity of the record owner of the Union Switch property, amended its complaint as of right under Rule 15(a), substituting Radice-East Hills, Inc. (Radice-East), a Pennsylvania corporation, for Radice Corporation. Radice-East had been the record owner of the Union Switch site since November 4, 1985 when Radice Corporation, the original defendant, assigned its interest in the property to Radice-East. Steel Valley’s amended complaint asserted that Radice-East was the owner of the land and buildings occupied by Union Switch, and, among other relief specified, Steel Valley sought to enjoin Radice-East to maintain the property and buildings in their present condition.
Steel Valley argued at the district court hearing on the motion to remand that Rad-ice-East was an indispensable party to the action and therefore, because the addition of Radice-East, a Pennsylvania corporation, destroyed diversity, the motion to remand to the state court should have been granted. In an order filed April 11, 1986, the district court rejected this argument and denied the motion to remand, holding that Radice-East also had been fraudulently joined by Steel Valley because no colorable claim was asserted against it. App. at 130a.
After the denial of Steel Valley’s motion to remand, the defendants filed Rule 12(b)(6) motions to dismiss and Steel Valley sought a preliminary injunction prohibiting, among other things, American Standard’s removal of equipment from the property. The district court in an order dated June 17, 1986 dismissed Steel Valley’s complaint against Meyer, Kopsa, and Radice-East with prejudice. It dismissed the action against American Standard without prejudice, leaving open the option of another action if Steel Valley moved to condemn the property.
Steel Valley timely appealed from the final order of dismissal, raising before us the merits of the dismissal and the failure of subject matter jurisdiction. Our resolution of this appeal necessarily must focus on whether Radice-East was an indispensable party whose joinder would require a remand of the proceeding to state court. Although a district court’s determination of indispensability is subject only to review for abuse of discretion, see Haas v. Jefferson Nat’l Bank of Miami Beach, 442 F.2d 394, 395 (5th Cir.1971), where, as here, the district court did not make an explicit Rule 19 determination, we shall engage in an independent analysis of indispensability. See Walsh v. Centeio, 692 F.2d 1239, 1242 (9th Cir.1982).
II.
Section 1447(e) of Title 28 of the United States Code mandates that: “[i]f at any time before final judgment it appears that the case was removed [from state court] improvidently and without jurisdiction, the district court shall remand the case____” See Adorno Enter. v. Federated Dep’t Stores, 629 F.Supp. 1565 (D.R.I.1986) (accepting the plain meaning of the statute that jurisdiction must be monitored after removal). It is settled that the removal statutes are to be strictly construed against removal and all doubts should be resolved in favor of remand. Abels v. State Farm Fire & Casualty Co., 770 F.2d 26, 29 (3d Cir.1985).
Ruling on whether an action should be remanded to the state court from which it was removed, the district court must focus on the plaintiff’s complaint at the time the petition for removal was filed. Id. In so ruling the district court must assume as true all factual allegations of the complaint, Green v. Amerada Hess Corp., 707 F.2d 201, 205 (5th Cir.1983), cert. denied, 464 U.S. 1039, 104 S.Ct. 701, 79 L.Ed.2d 166 (1984), and while nominal or fraudulently joined parties may be disregarded, indispensable parties may not. Cf. supra note 2. It remains the defendant’s burden to show the existence and continuance of federal jurisdiction. Abels, 770 F.2d at 29; see also 14 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3739. That burden continues through judgment if not beyond. Adorno Enter., 629 F.Supp. at 1567; cf. Rubin v. Buckman, 727 F.2d 71 (3d Cir.1984) (where plaintiff after trial claimed lack of diversity jurisdiction the district court was compelled to vacate the jury verdict in favor of the defendant and dismiss plaintiff’s complaint).
These principles have developed because the lack of subject matter jurisdiction voids any decree entered in a federal court and the continuation of litigation in a federal court without jurisdiction would be futile. Thus when a nondiverse party is added to a federal proceeding and that party's presence is indispensable to the furnishing of complete relief, remand is mandated where federal subject matter jurisdiction depends on diversity jurisdiction, even though removal was originally proper. Takeda v. Northwestern Nat’l Life Ins. Co., 765 F.2d 815, 819 (9th Cir.1985); Adorno Enter., 629 F.Supp. at 1573 (“It is beyond doubt that the emergence of an indispensable party, if nondiverse, should defeat subject matter (diversity) jurisdiction and require remand.”); Kaib v. Pennzoil Co., 545 F.Supp. 1267, 1269 (W.D.Pa.1982) (“The fact that plaintiff sought to add non-diverse parties following discovery does not [divest] this court of original jurisdiction and compel remand, unless they are indispensable parties.”); Lamar Haddox Contractor, Inc. v. Potashnick, 552 F.Supp. 11 (M.D.La.1982) (addition of non-diverse indispensable defendant required remand to state court); see also Field v. Volkswagenwerk AG, 626 F.2d 293, 297 (3d Cir.1980) (“Whether a party may be dropped depends upon whether the party is ‘indispensable’ to a just and meaningful litigation of the claims____”); 1A J. Moore & B. Ringle, Moore’s Federal Practice 110.161[2],
Applying these principles to Steel Valley’s complaint, Steel Valley argues that when it amended its complaint to add Rad-ice-East, a Pennsylvania corporation, the district court was divested of jurisdiction because Radice-East was an indispensable party.
III.
The outcome of this appeal thus hinges upon our resolution of Radice-East’s status as an indispensable party under Federal Rule of Civil Procedure 19. Indispensable parties, defined succinctly and clearly in the Supreme Court case of Shields v. Barrow, 58 U.S. (17 How.) 130, 15 L.Ed. 158 (1854), are “[p]ersons who not only have an interest in the controversy, but an interest of such a nature that a final decree cannot be made without either affecting that interest, or leaving the controversy in such a condition that its final termination may be wholly inconsistent with equity and good conscience.” Id. at 139. “Indispensable parties are persons who, in the circumstances of the case must be before the court,” 3A J. Moore, Moore’s Federal Practice 1Í 19.02, and “[w]hether a person is ‘indispensable,’ that is, whether a particular lawsuit must be dismissed in the absence of that person, can only be determined in the context of the particular litigation.” Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 118, 88 S.Ct. 733, 742, 19 L.Ed.2d 936 (1968); see also Haas, 442 F.2d at 396-97, citing Shields, 58 U.S. (17 How.) at 139.
Of necessity, an indispensability analysis is fact-specific, guided by the legal analysis outlined in Rule 19 of the Federal Rules of Civil Procedure. Therefore, “[t]he question of whether a person not joined is an indispensable party is determined on a case-by-case basis by (1) appraising his interest, and then (2) considering the equitable principles described in Rule 19.” 3A J. Moore, supra, U 19.02 n. 9. Moreover, in an action which involves real property, as is the case here, consideration must be given to the type of legal interest asserted in the property and the type of relief demanded by the plaintiff. 3A J. Moore, supra, 1119.09[1].
A.
We turn first to an examination of Steel Valley’s amended complaint. Assuming as we must that the allegations in the complaint are true, B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir.1981), Rad-ice-East has been joined as the owner of the land and buildings where Union Switch is located and operates. The deed vesting title in Radice-East was made a part of Steel Valley’s amended complaint. App. at 76a-83a. Steel Valley claimed that the status quo of the plants had to be maintained to enable its plan of acquisition and development to proceed. It asserted that any taking would be mooted by “the destruction of the underlying res.” App. at 73a.
Steel Valley’s complaint therefore sought to enjoin all defendants, including RadiceEast, from, among other things, dismantling, demolishing, destroying, or razing the buildings, machinery, equipment or fixtures forming part of the real estate of Switch Signal. ...” App. at 74a. In addition, Steel Valley asked that the court require the defendants “to take reasonable measures to maintain and protect the condition of the property identified above until such time as the SVA [Steel Valley] can file its declaration of taking.” App. at 75a.
Steel Valley’s allegation of Rad-ice-East’s interest in the Union Switch property is not disputed. This allegation, which we take as true, requires us to discern whether the property interest RadiceEast holds as the owner of the Union Switch real estate would be affected if the relief requested by Steel Valley were to be granted. If Radice-East is determined to be an indispensable party then the district court abused its discretion in (1) finding that Radice-East was fraudulently joined and (2) failing to find that Radice-East was indispensable.
Because there is no question that RadiceEast is the owner of the land and the buildings, we direct our attention to the relief sought by Steel Valley. If Steel Valley’s injunction were to be granted, it is obvious that Radice-East would be restricted to maintaining the buildings and property in their present condition and would be prevented from demolishing or altering them in any effort to utilize the Union Switch property for other purposes.
American Standard and Radice-East argue on appeal, however, that any relief given to Steel Valley by the district court would not affect Radice-East’s interest in the property, because they claim that Rad-ice-East is not entitled to possession under the terms of its sales contract with American Standard until 1988. American Standard specifically argues in its brief that “... any planned development by RadiceEast clearly does not, and never did, represent a threat to the SVA.” Appellee American Standard’s Brief at 20. American Standard asserts that because Radice-East cannot develop the property until 1988, and no court would grant a temporary injunction which would extend until 1988, Steel Valley cannot complain about Radice-East Hill’s conduct relative to the property. Consequently, American Standard contends that Radice-East is not a “factually indispensable party.”
The record, however, does not contain the American Standard — Radice-East sales contract nor does the record disclose that Radice-East’s possessory interest in the property will not vest until 1988, although that argument was made to us orally and in American Standard’s brief. In this latter respect, the record is completely silent. Even assuming, however, that the postponement of possession by Radice-East was established by the record, which it is not, it would not alter our conclusion. Any injunction against dismantling, razing, or demolishing the Union Switch buildings obviously would have a direct impact on Rad-ice-East’s interest, even if its right to possession of the buildings was delayed. Moreover, even though we cannot evaluate, let alone adjudicate, the property rights of Radice-East and American Standard, if a material breach of the sales agreement were to occur, the possibility exists that Radice-East’s right of possession might accelerate.
We also recognize that the relief sought by Steel Valley is essentially the maintenance of the status quo (i.e., the plants are to remain as industrial facilities) until its plan of acquisition and development can be implemented. The preservation of such a status quo would obviously defeat any prospects that Radice-East might have to develop the property for residential or other commercial purposes.
In sum, as we have pointed out, giving credit to Steel Valley’s allegations, there is nothing that appears in the complaint concerning Radice-East’s postponed possession. Only Radice-East’s real property and building ownership is established. The relief sought by the complaint is an injunction prohibiting all defendants at all times from disturbing the buildings and their contents. Steel Valley also sought, as an essential component of relief, an affirmative injunction to have the property owners maintain the Union Switch property in its present condition.
Thus the complaint establishes Radice-East as the owner of the Union Switch property and buildings and reveals that Steel Valley, as a part of its relief, seeks to restrict, limit, and affect RadiceEast’s rights and/or interests in the property.
B.
An “indispensability” analysis must start with Federal Rule of Ciyil Procedure 19(a), which states that:
A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party____
If a party falls into either of the above two categories, but may not be joined because jurisdiction would be destroyed, the court must determine under Rule 19(b) whether “in equity and good conscience” the action should proceed without the absent party or whether the absent party is indispensable and the action should be dismissed (or, in the case of removal, remanded).
Under the factors set out in Rule 19(a), Radice-East is clearly a party to be joined if feasible. First, Steel Valley would not be able to obtain complete relief if Radice-East were not joined. Any actions taken by Radice-East with respect to its property, particularly actions which required razing or demolition of the buildings, would undoubtedly affect the success of Steel Valley’s development plans. Conversely, any injunction requiring RadiceEast to maintain the status quo of its property as industrial property would undoubtedly affect the rights of Radice-East as a property holder, and the injunction sought by Steel Valley, if granted, would necessarily affect the alienability of Rad-ice-East’s property and its ability to improve the property in accordance with any plans it may have made. Thus, in terms of 19(a), complete relief could not be accorded to Steel Valley without Radice-East’s presence nor could Radice-East protect its very substantial real estate interest in the property if it were not a party to Steel Valley’s action.
C.
Having concluded that Radice-East had to be joined as a party to the action if feasible, we turn to the provisions of Rule 19(b) to ascertain whether the district court could have proceeded without Radice-East being joined as a party. The factors that must be considered in an analysis under Rule 19(b) are:
... first, to what extent a judgment rendered in the person’s absence might be prejudicial to him or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person’s absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.
Since Radice-East could not be made a party without destroying the district court’s subject matter jurisdiction, the district court was required to “... determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent party [Radice-East] being thus regarded as indispensable.” Fed.R.Civ.P. 19(b).
To arrive at such a determination, Rule 19(b) provides four factors to be taken into consideration. In an earlier discussion of Rule 19(a) of this opinion we touched upon considerations bearing on the first factor of 19(b), i.e., prejudice to the parties. We concluded that any judgment rendered in Radice-East’s absence would necessarily be prejudicial to Radice-East’s property interests.
The second factor of 19(b) directs the court to consider the extent to which the shaping of relief might avoid or lessen any prejudice to the parties. There has been no suggestion made that the relief which Steel Valley seeks could be decreed without significantly affecting Radice-East’s property interest. Any injunction that precluded Radice-East’s full use of its property for purposes other than for which it is presently being utilized, would of necessity prejudice Radice-East. We cannot envisage how such prejudice could be lessened or avoided if an injunction, no matter how shaped, were to issue.
The third factor requires us to consider “whether a judgment rendered in the person’s [Radiee-East’s] absence will be adequate.” Fed.R.Civ.P. 19(b). Focusing on Steel Valley, we are obliged to conclude that Steel Valley would not be able to receive full relief without the joinder of Radice-East. Because of its ownership interest and landlord status, Radice-East could readily undermine Steel Valley’s plan, and therefore the effectiveness of any injunction decreed, by entering and possessing the buildings (with or without American Standard’s permission) if it were not bound by a district court order. It is obvious to us that, in the absence of Rad-ice-East as a party, it will be impossible to resolve the controversy between Steel Valley and American Standard. Necessarily inherent in Steel Valley’s cause of action is that the buildings and property owned by Radice-East are integral to Steel Valley’s industrial development plan. Therefore, because no plan could be proposed or succeed without taking into consideration these particular buildings, a judgment rendered in Radice-East’s absence would not bind Radice-East and thus, without question, would undercut Steel Valley’s industrial development plan. Hence, in terms of Rule 19(b), a judgment, even though rendered in favor of Steel Valley, but in the absence of Radice-East, would be inadequate.
Finally, we are instructed to consider “whether the plaintiff [Steel Valley] will have an adequate remedy if the action is dismissed for nonjoinder.” Fed.R.Civ.P. 19(b). Clearly, the Pennsylvania state court is a ready forum available to all parties. This fact favors a finding of indispensability and thus would require a remand to the state court. Not only is the state court available for resolution of this controversy, but it also may be the most appropriate forum for consideration of Steel Valley’s particular cause of action, see Tick v. Cohen, 787 F.2d 1490, 1495 n. 5 (11th Cir.1986) (“presence of a state forum has been found to be particularly compelling in diversity jurisdiction cases”), which, among other features, includes real property interests — traditionally a state concern. Therefore, consideration of each of the Rule 19(b) factors leads to the conclusion urged upon us by Steel Valley that Rad-ice-East is an indispensable party to Steel Valley’s action.
As a result of our independent Rule 19 analysis, we are satisfied that Radice-East must be joined in the present action, and that the district court abused its discretion by failing to so hold. Because it improperly exercised its discretion, first in its finding of fraudulent joinder, and, second, in failing to find Radice-East to be an indispensable party pursuant to a Rule 19 analysis, the district court declined to remand Steel Valley’s action to the state court. In so doing, the district court improperly retained jurisdiction over Steel Valley’s claims and resolved the merits of Steel Valley’s action, which it should not have addressed, let alone have decided.
IV.
Having concluded that Radice-East is an indispensable and nondiverse party to Steel Valley’s action, we will reverse and direct the district court (1) to vacate its order of June 17, 1986, which granted the defendants’ motions to dismiss on the merits and (2) to remand this proceeding to the Court of Common Pleas of Allegheny County, Pennsylvania.
. At the time of the filing of the original complaint, Steel Valley alleged that Radice Corporation was the record owner of the Union Switch real estate.
. At the time the district court assumed jurisdiction, all defendants had not concurred in the petition for removal. Nonetheless, removal without the consent of Meyer, Kopsa, and Rad-ice Corp. was proper because the district court considered them fraudulently joined or nominal. "In applying this general rule, [that all parties must join in the removal petition] nominal or formal parties, unknown defendants, and defendants fraudulently joined may be disregarded.” 1A J. Moore & B. Ringle, Moore’s Federal Practice ¶ 0.168[3.-2-2]; see also 14 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3731.
. Rule 15(a) allows the amendment of a complaint as of right if the opposing party has not yet answered the complaint, as was the case here. Fed.R.Civ.P. 15(a).
. We hold that the claims against Union Switch and Westinghouse Air Brake, although dismissed without prejudice, have been finally resolved. American Standard relies on Borelli v. City of Reading, 532 F.2d 950 (3d Cir.1976), in support of its argument that the dismissal was not a final and appealable order. Unlike Borelli, however, an amendment of the complaint would not cure what the district court perceived as the fatal defect of the complaint. Indeed, the district court indicated that “should the situation change and the Authority [Steel Valley] condemn the property," app. at 162a, only then could the action proceed. In such an instance, however, the cause of action would be entirely different than the cause of action which the district court dismissed.
Here, Steel Valley chose to stand on its current cause of action (“waste"). We are satisfied that the district court order from which Steel Valley appealed is final and therefore appeal-able. See B., Inc. v. Miller Brewing Co., 663 F.2d 545, 547-48 (5th Cir.1981); Hall v. Pennsylvania State Police, 570 F.2d 86, 88-89 (3d Cir.1978).
. The federal removal statutes are found in 28 U.S.C. §§ 1441-1452.
. In refusing to remand this case to state court, the district court concluded that Radice-East was fraudulently joined. A removing defendant, in this case American Standard, who charges that the plaintiff, Steel Valley, has fraudulently joined a party (Radice-East) in order to destroy diversity jurisdiction, has a heavy burden of persuasion. B., Inc., 663 F.2d at 549. We have noted that the "[cjourts have found joinder to be fraudulent where there is no reasonable basis in fact or colorable ground supporting the claim against the joined defendant, or no real intention in good faith to prosecute the action against the defendant or seek a joint judgment.” Abels v. State Farm Fire & Cos. Co., 770 F.2d 26, 32 (3d Cir.1985) (quoting Goldberg v. CPC International, 495 F.Supp. 233, 239 (N.Cal.1980)); see also Nobers v. Crucible, Inc., 602 F.Supp. 703, 706 (W.D.Pa.1985). Fraudulent joinder analysis, however, is only appropriate in determining the propriety of removal. Here, Steel Valley admits that the initial removal was proper. Appellant's Brief at 11.
Where a plaintiff seeks to force remand of a properly removed case by the addition of a nondiverse defendant, the appropriate inquiry is whether that proposed defendant is indispensable under Rule 19. E.g., Takeda v. Northwestern Natl Life Ins. Co., 765 F.2d 815, 819 (9th Cir.1985); Kaib v. Pennzoil Co., 545 F.Supp. 1267, 1270 (W.D.Pa.1982). This more stringent inquiry supports "the long-settled (and salutary) policy that a plaintiff cannot artificially force a retreat to the first (state) forum by embarking purposefully on post-removal steps designed exclusively to foster remand.” Adorno Enter., 629 F.Supp. at 1570.
The district court disposed of Steel Valley's claim that Radice-East was an indispensable party without performing, a Federal Rule of Civil Procedure Rule 19 analysis. It held that Radice-East was fraudulently joined and that the claim against Radice-East was not colorable. It did so without regard to Steel Valley’s assertion that the Union Switch buildings and plants were an integral part of Steel Valley’s plan of taking and redevelopment.
. Steel Valley cites Singer v. Redevelopment Auth. of Oil City, 437 Pa. 55, 261 A.2d 594 (1970) as support for its assertion in its complaint that Radice-East Hills "is the owner of the buildings, machinery, equipment and fixtures forming part of the real estate of Switch Signal." App. at 60a (emphasis added). Under the Pennsylvania common law Assembled Industrial Plant Doctrine ”[i]f the machinery, whether fast or loose, is vital to the business operation of an 'industrial plant’ and is a permanent installation therein, it is considered to be part of the real estate." Id. at 59, 261 A.2d at 596. This doctrine apparently has been applied in the areas of industrial mortgage situations, of local real estate taxation, and eminent domain law. Id.
However, for the reasons discussed in the text, infra, we do not find it necessary to rely on Steel Valley’s theory of Assembled Industrial Plant Doctrine in our disposition of this appeal.
. We recognize that Radice-East became a party to this action after Steel Valley amended its complaint to add Radice-East, a Pennsylvania corporation, in place of Radice Corp., a Florida corporation. The district court retained jurisdiction of the proceedings only because it found that Radice-East had been fraudulently joined, and thus on that theory, its joinder did not divest the court of its jurisdiction.
. Steel Valley’s brief analyzed the 19(b) factors as follows:
With respect to the first factor, a judgment rendered in the absence of Radice-East Hills would be prejudicial to Radice-East Hills. For example, "freezing" the Switch and Signal industrial facility impairs Radice-East Hills’ right to use and enjoy that property. Such a judgment would be prejudicial to SVA as well since complete relief could not be accorded if Radice-East Hills is able to pursue its own development of the land and buildings at Switch and Signal. SVA submits, with respect to the second factor, that prejudice to RadiceEast Hills or to itself could not be avoided by the shaping of relief because SVA’s prayer is diametrically opposed to the announced interest of Radice-East Hills to change the entire character of the property. Third, and without repetition of the above stated contentions, a judgment rendered in the absence of RadiceEast Hills would be inadequate in protecting the interests of Radice-East Hills and/or SVA. With respect to the fourth factor, the fact that remand is an option in the case at bar provides SVA with an adequate, available remedy in state court.
Appellant’s Brief at 23.
Question: Did the court conclude that a confession or an incriminating statement was improperly admitted? Consider only incriminating statements made by the defendant.
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
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songer_summary
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A
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What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on the appropriateness of summary judgment or the denial of summary judgment favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
Darius IRBY; John S. Neal; Charles W. White; James Samuel Williams, Jr.; Cora Lee Tucker; Willie Powell; Milton Richardson; the Virginia Unit of the Southern Christian Leadership Conference; Citizens for a Better America, Plaintiffs-Appellants, v. VIRGINIA STATE BOARD OF ELECTIONS; et al., Defendants-Appellees, and Robert P. Lawler, in his official capacity as a member of the Board of Supervisors of Halifax County, Defendant.
No. 88-2919.
United States Court of Appeals, Fourth Circuit.
Argued June 8, 1989.
Decided Nov. 24, 1989.
Rehearing and Rehearing In Banc Denied Jan. 9, 1990.
Neil Bradley (Kathleen L. Wilde, Laugh-lin McDonald, Derek Alphran, Atlanta, Ga., ACLU Foundation, Inc., Susan L. Quig-Terry, ACLU, Gerald T. Zerkin, Gerald T. Zerkin & Associates, Richmond, Va., on brief), for plaintiffs-appellants.
Gail Starling Marshall, Deputy Atty. Gen. (Mary Sue Terry, Atty. Gen., Stuart, Va., H. Lane Kneedler, Chief Deputy Atty. Gen., Guy W. Horsley, Jr., Sr. Asst. Atty. Gen., Richmond, Va., E.M. Wright, Com. Atty., Buckingham, Va., William W. Bennett, Jr., Halifax, Va., Robert A. Bruce, Farmville, Va., County Attys., Michael R. Packer, City Atty., Petersburg, Va., on brief), for defendants-appellees.
Before PHILLIPS, MURNAGHAN, and WILKINSON, Circuit Judges.
MURNAGHAN, Circuit Judge:
A number of black residents and two civil rights organizations brought an action challenging Virginia’s method of local school board selection as violating the First, Thirteenth, Fourteenth and Fifteenth Amendments to the United States Constitution and Section 2 et seq. of the Voting Rights Act of 1965, 42 U.S.C. § 1973 et seq. Virginia law requires appointment, rather than election, of local school board members. The plaintiffs allege that Virginia adopted and maintained the appointment system with the intent to discriminate against blacks, and that the system currently has a discriminatory effect. The district court refused plaintiffs’ request for class certification.
The district court granted summary judgment for the defendants on the First and Thirteenth Amendment claims, as well as that portion of the Fourteenth Amendment claim that relied on the Due Process Clause. 692 F.Supp. 610. A trial proceeded on the equal protection, Fifteenth Amendment and Voting Rights Act claims.
After trial, the district judge found for the defendants on all remaining claims. The plaintiffs appealed.
I.
The case was brought by seven individual black citizens who reside in the City of Petersburg or in the counties of Nottoway, Buckingham, Prince Edward or Halifax, and by two organizations — Citizens for a Better America and the Virginia Unit of the Southern Christian Leadership Conference. The suit named three sets of defendants: (1) members of the appointing bodies for local school boards in Petersburg and the four Virginia counties named above; (2) members of the Electoral Boards of each of those five jurisdictions; and (3) Susan H. Fitz-Hugh, Secretary of the State Board of Elections.
The method of appointing school board members varies widely among Virginia’s counties and cities. In Nottoway and Buckingham counties, a three-person selection commission, whose members are chosen by a local circuit court judge, appoint the school board members. The county Board of Supervisors appoints school board members in Prince Edward and Halifax counties. The City Council selects Peters-burg’s school board members.
The appointive system for selection of school board members in Virginia dates to 1870, when the state legislature passed a law providing for appointment of local school trustees by the state Board of Education. The trustees performed functions similar to those of present-day school boards. The district court found no evidence “that the original decision to make school boards appointive rather than elective was motivated by racial discrimination.” Irby v. Fitz-Hugh, 693 F.Supp. 424, 427 (E.D.Va.1988). The court also found conflicting evidence as to whether discriminatory intent motivated various modifications in the appointive scheme between 1870 and the turn of the century. Id.
However, discriminatory intent did figure prominently in Virginia’s decision to retain the appointive system during the Virginia Constitutional Convention of 1901-02. That convention drafted a new constitution that the state concedes was designed, in part, to disenfranchise blacks. During the convention, the state education commission proposed adopting a system of electing school board members. The convention rejected the proposal, however, after several delegates warned that such a change could lead to selection of blacks for school boards. The district court found that
[rjace was a ‘substantial’ or ‘motivating’ factor ... behind the 1901-02 Constitutional Convention’s decision to retain an appointive system. Several members of the Convention cast the decision in racial tones, and the plain purpose of the Convention was to disenfranchise as many impoverished people, including most blacks, as the delegates could.... The appointive system was maintained, therefore[,] for constitutionally impermissible reasons in 1902.
Irby, 693 F.Supp. at 432 (citations omitted).
The state legislature made some modifications to the appointive system in 1903. In the 1920s and 1930s, it rejected various recommendations to adopt an elective system for local school boards. The district court found no racial motivation in those decisions. Id. at 433.
In 1947, the General Assembly departed from the purely appointive scheme by passing a law permitting “any county operating under the county manager plan ... and in which county magisterial districts have been abolished” to hold popular elections to fill school board positions. Id. at 428. At the time, only Arlington County had a form of government allowing it to qualify for the election option. Arlington County voters approved the changes and elected a school board.
The elective system continued in Arlington County until 1956, when the County school board agreed to desegregate its school system in compliance with Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). The state legislature, in an effort “to impede Arlington’s ability to comply with court-ordered desegregation,” Irby, 693 F.Supp. at 433, repealed the 1947 law that had allowed elected school boards. The new law proclaimed that “no school board shall be elected by popular vote in and for any county or city.” Id. at 428.
Between 1968 and 1971, Virginia considered changes in its constitution. The plaintiffs concede that one of the purposes for the constitutional revision “was to close the door on the era of massive resistance to school integration.” Virginia established a Constitutional Revision Commission in 1968 to recommend changes to the 1902 Constitution. The commission made no recommendation for changing the school board selection method. The district court found that debates leading to adoption of the new constitution showed “no evidence that the means of selecting school boards was tainted by racial considerations.” Irby, 693 F.Supp. at 429. The court further found that legislators “simply could not agree on which method was the best and put the debate off to another day by agreeing to preserve the flexibility that currently existed.” Id. The district court never pointed to specific details of those debates to show what arguments legislators made in support of the appointive system.
The state legislature considered the school board selection process again in 1984 by commissioning a study to decide whether school board members should be popularly elected. The 1984 subcommittee report took no stance on the issue but reported the various arguments for and against electing school boards. Many of the arguments arose at public hearings that the subcommittee held throughout the state. The arguments in favor of appointed school boards included:
(1) insulating school governance matters from direct political pressures;
(2) promoting stable school board membership;
(3) encouraging the service of individuals who would not seek elective office;
(4) promoting diversity in viewpoints which otherwise may not achieve representation on an elected school board;
(5) avoiding the division of fiscal authority among multiple elected bodies;
(6) avoiding the fragmentation of local political authority; and
(7) avoiding the problem of single issue campaigns which frequently occur with elected school boards.
Since issuance of the study in 1984, the Virginia legislature has considered various bills to allow popular election of school board members. Irby, 693 F.Supp. at 429, n. 1. It is unclear, however, to what extent legislators discussed or considered the findings of the 1984 study in rejecting those bills.
Turning to the issue of black participation on school boards, the district court found that the percentage of school board seats in Virginia held by blacks increased from 12% in 1974 and 1981 to 15.9% in 1985 and to 18% in 1986 and 1987. Irby, 693 F.Supp. at 430. The court also found that blacks comprised 18% of the voting age population in Virginia. Id.
However, all five jurisdictions at issue in the present case reported a smaller black representation on their school boards than in their population as a whole. The district court found the following disparities in 1987:
General Population School Board
42% black 14.2% black Buckingham
40% ” 22.2% Halifax
37% ” 20% Nottoway
37% ” 25% Prince Edward
61% ” 44.4% City of Petersburg
Irby, 693 F.Supp. at 430.
II.
To establish an. equal protection violation, a plaintiff must show discriminatory intent as well as disparate effect. Crawford v. Board of Education, 458 U.S. 527, 544, 102 S.Ct. 3211, 3221, 73 L.Ed.2d 948 (1982); Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 265, 97 S.Ct. 555, 563, 50 L.Ed.2d 450 (1977); Washington v. Davis, 426 U.S. 229, 239, 96 S.Ct. 2040, 2047, 48 L.Ed.2d 597 (1976). The plaintiffs argue that once they prove the state adopted or maintained the appointive system in the past for discriminatory reasons, the burden then shifts to the defendants to prove that the system is not currently being maintained for discriminatory purposes. We need not decide whether the Equal Protection Clause mandates the burden-shifting scheme proposed by the plaintiffs because, even assuming that the burden shifted to the defendants, they have proved that racial discrimination no longer motivates Virginia’s decision to retain an appointive system for selecting school board members.
The plaintiffs satisfied their initial burden of proving that Virginia maintained the appointive system for purposes of minimizing or precluding black participation on school boards. The district court expressly found that the Constitutional Convention of 1901-02 retained the appointive system for racially discriminatory reasons. Irby, 693 F.Supp. at 432. Moreover, the Virginia legislature clearly acted with a discriminatory purpose in passing the 1956 law forbidding popularly elected school boards anywhere in the state. As the district court found, the state legislature passed the law to impede one school district’s willingness to comply with the desegregation mandate of Brown v. Board of Education. Irby, 693 F.Supp. at 428.
The defendants, however, have proved that the state does not currently maintain the system of appointed school boards for discriminatory reasons. The district court held that the defendants had carried that burden by “demonstrating that at least since 1971 the system has not been maintained for racially discriminatory reasons.” Id. at 433. Specifically, the district court found such proof in the 1971 revision of the state constitution. In the atmosphere of the United States, which has had to suffer the complexities of a massive Civil War, reconstruction, Plessy v. Ferguson, massive resistance, and Brown v. Board of Education, it is understandable that there is abroad a skepticism that the 1971 constitutional revision represented sufficient proof that Virginia had purged the discriminatory intent originally underlying the appointive system for school boards. Although all parties agree that a major purpose of the revision was to break with the massive resistance policies of the past, the 1971 redrafting of the constitution did not involve any alterations of the school board selection process and apparently no debate over the relative merits of appointed and elected school boards. Although the 1971 constitution wrought dramatic (and racially progressive) changes in other areas pertaining to education, one cannot readily assume that such breaks with the past carried over to the school board selection provision which was retained without change and with virtually no debate.
Nonetheless, the district court also relied on a much more persuasive piece of evidence in finding that the defendants had met their burden of rebutting the inference of discriminatory intent. The court pointed to the 1984 study commissioned by the state legislature to evaluate the pros and cons of elected and appointed school boards. That study clearly set forth solely legitimate reasons for choosing an appointed school board over a popularly elected body. The evidence also showed that the state legislature subsequently considered bills that would have changed the law to allow elected school boards. The district court did not clearly err in finding such evidence sufficient to demonstrate a lack of discriminatory intent in the current maintenance of the appointive system. Accordingly, the plaintiffs’ equal protection claim must fail.
III.
The Supreme Court has emphasized that “racially discriminatory motivation is a necessary ingredient of a Fifteenth Amendment violation.” Mobile v. Bolden, 446 U.S. 55, 62, 100 S.Ct. 1490, 1497, 64 L.Ed.2d 47 (1980) (plurality opinion). Accord, Washington v. Finlay, 664 F.2d 913, 919 (4th Cir.1981). Since the defendants proved the absence of discriminatory intent in the current maintenance of the appointive system for school boards, the plaintiffs cannot establish a Fifteenth Amendment violation.
IV.
Plaintiffs purport to assert a due process claim under the Fourteenth Amendment. However, they raise no arguments in support of the claim other than those asserted under their equal protection claim. In reality, their claim is one alleging a violation of equal protection rather than of due process. The district court properly dismissed the plaintiffs’ Fourteenth Amendment Due Process claim.
V.
Plaintiffs’ voting rights claim presents a closer question, if the question is properly before us at all. Whereas a plaintiff must prove discriminatory intent to succeed on a claim under the Equal Protection Clause or the Fifteenth Amendment, a showing of discriminatory effect may suffice to establish a violation of Section 2 of the Voting Rights Act of 1965. See Thornburg v. Gingles, 478 U.S. 30, 35, 106 S.Ct. 2752, 2758, 92 L.Ed.2d 25 (1986), citing S.Rep. No. 97-417, p. 28 (1982).
At the outset, we have considerable doubt as to whether Virginia’s choice of an appointive system over an elective scheme for selecting school board members even implicates Section 2 of the Voting Rights Act. The defendants argue that Section 2 applies only where the state decides to choose officials through an election. The language of Section 2 offers some support for the defendants’ position:
A violation of subsection (a) is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.
42 U.S.C. § 1973(b) (emphasis added). The defendants argue that where no one, black or white, has the right to participate in a popular election of school board members, Section 2 is inapplicable. The few courts that have addressed the issue have found Section 2 inapplicable to appointive offices. Searcy v. Williams, 656 F.2d 1003, 1010 (5th Cir. Unit B 1981) (school board), aff'd without op. sub nom. Hightower v. Searcy, 455 U.S. 984, 102 S.Ct. 1605, 71 L.Ed.2d 844 (1982); Williams v. State Board of Elections, 696 F.Supp. 1563, 1568-69 (N.D.Ill.1988) (state circuit judges). See also Dillard v. Crenshaw County, 831 F.2d 246, 251 n. 12 (11th Cir.1987).
Nonetheless, we will refrain from holding Section 2 inapplicable here because of the ambiguity of congressional intent. In such a circumstance as the present one, concluding, as we do, that, even if applicable, Section 2 has not been violated, we are reluctant to rush to decision that it does not apply when decision is not required and a situation similar to but not identical with what is here presented may arise in a subsequent case. The situation is one calling for us to eschew dictum although, seen in the light of the instant case, it appears more probable than not that Section 2 is not applicable to appointive offices. Congress clearly believed that the choice between an elective and an appointive scheme implicated Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c, which requires certain jurisdictions in the United States to obtain “preclearance” of proposed changes in procedures or requirements that could affect voting rights. See S.Rep. 97-417 at 6-7, reprinted in 1982 U.S.Code Cong. & Admin.News 183; Perkins v. Matthews, 400 U.S. 379, 389-90 n. 8, 91 S.Ct. 431, 437 n. 8, 27 L.Ed.2d 476 (1971); Robinson v. Alabama State Dep’t of Education, 652 F.Supp. 484, 485 (M.D.Ala.1987); County Council v. United States, 596 F.Supp. 35, 38 (D.D.C.1984). In addition, Congress recently expressed concern about shifts from appointive to elective systems in discussing the 1982 amendments to the Voting Rights Act, but failed to make clear whether such shifts implicated only Section 5 of the Act or Section 2 as well. See H.Rep. 97-227, 97 Cong. 2d Sess. 18 (1982) (discussing “discriminatory elements of the elections process such as at-large elections, high fees and bonding requirements, shifts from elective to appointive office_” (emphasis added)).
Congress did not necessarily intend that acts covered by § 5 would also implicate § 2. Section 5 covers only certain jurisdictions in the country, those which Congress has found to have the worst record of voting discrimination. See S.Rep. 97-417 at 15, reprinted in 1982 U.S.Code Cong. & Admin.News 192. Congress might have wished to keep a closer eye on those states than on jurisdictions with a more benign history in voting matters. We have some doubts as to whether Congress intended the scope of Section 2 to extend so broadly as to encompass a state’s choice between an elective and an appointive system for filling a given office, even when that choice was made years before enactment of the Voting Rights Act. Extending Section 2 that far could have dramatic and far-reaching effects.
We leave open the question whether Section 2’s reach extends so broadly. Even if Section 2 applied here, the plaintiffs have failed to prove that the appointive system for school boards has produced discriminatory results. The plaintiffs argue that they have shown two types of discriminatory effects: (1) blacks are underrepresented on school boards in relation to their numbers in the general population, and (2) blacks are underrepresented in the offices or governing bodies that ultimately appoint school board members. However, we conclude that the district court did not clearly err in finding that the appointive system did not create discriminatory effects insofar as the representation of blacks on school boards is concerned. Moreover, insofar as the plaintiffs challenge the racial composition of the officials who appoint school board members, they seek relief that far exceeds the scope of this lawsuit, which focuses on the selection of school boards rather than on the manner of choosing the selecting officials.
First, we examine the alleged underrep-resentation of blacks on school boards. Clearly, no disparity exists on a statewide basis. The district court found that in Virginia as a whole, “blacks comprised approximately 18% of the voting population and approximately 18% of all school board members statewide.” Irby, 693 F.Supp. at 433-34. However, we believe the proper comparison must focus not on the statewide averages, but rather on the figures for the five local jurisdictions at issue in this appeal: Buckingham, Halifax, Notto-way, and Prince Edward counties and the City of Petersburg.
Although the district court found a “significant disparity” in Buckingham and Halifax counties between the percentage of blacks in the population and the racial composition of the school boards, the court found no proof that the appointive process caused the disparity. Irby, 693 F.Supp. at 434. The court’s findings on this point are not clearly erroneous. The evidence showed that “although blacks comprise a large portion of the population, they are not seeking school board seats in numbers consistent with their percentage of the population.” Id. For example, since late 1971 every black individual who formally requested appointment to the Buckingham County School Board was placed on the board. In Halifax County, the evidence showed at least one instance where a black individual was nominated for the school board but voluntarily withdrew before appointment.
In the other three jurisdictions, the district court discounted the significance of the disparities between the percentage of the population that was black and the percentage of school board seats held by black individuals. In Nottoway and Prince Edward counties, the addition of one extra black on each school board would cure the disparity. Most, though not all, of the statistical disparity would vanish in Peters-burg if one more black were appointed to the school board. The wide statistical swing produced by the addition of a single black school board member in each of the three jurisdictions raises serious doubts as to whether the disparities are statistically significant. The defendants produced expert testimony discounting the statistical significance of the figures in the defendant jurisdictions. Moreover, the Supreme Court has recognized the dangers of drawing conclusions from statistics involving boards with relatively few members. See Mayor of Philadelphia v. Educational Equality League, 415 U.S. 605, 611, 94 S.Ct. 1323, 1328-29, 39 L.Ed.2d 630 (1974) (upholding district court finding that there was no significance in the differences between the percentage of blacks on a board and the percentage of blacks in the city’s population; “the number of positions on the Panel was too small to provide a reliable sample; the addition or subtraction of a single Negro meant an 8% change in racial composition.”). The panel at issue in Educational Equality League had 13 members. Id. None of the school boards at issue in the present case has more than nine members; one has only five members.
In sum, the district court did not clearly err in finding that the appointive system did not produce discriminatory effects insofar as black representation on school boards was concerned. The evidence cast considerable doubt on the existence of a causal link between the appointive system and black underrepresentation in Buckingham and Halifax counties. In addition, the plaintiffs failed to establish that the disparities in the other three jurisdictions were statistically significant.
Alternatively, the plaintiffs attempt to prove discriminatory effects by focusing on the racial makeup of the officials who appoint school board members in the defendant jurisdictions. The plaintiffs argue that blacks are denied the opportunity to participate equally in the appointment process because most of the officials who select school board members are themselves white. Plaintiffs assert that blacks are underrepresented on the governing bodies that appoint school board members in Pe-tersburg and in Halifax and Prince Edward counties. In Buckingham and Nottoway counties, white circuit judges appoint the selection commission which in turn chooses the school board members.
We reject the plaintiffs’ attempt to prove a discriminatory impact by focusing on the racial makeup of the officials who appoint, either directly or indirectly, the school board members. First, to the degree that blacks are underrepresented on the elected governing bodies in Halifax and Prince Edward counties and the City of Petersburg, the plaintiffs’ remedy is to bring a suit under the Voting Rights Act challenging directly the electoral schemes for choosing members of those bodies. Plaintiffs have not mounted such a direct challenge in the present case. As for the fact that white judges are ultimately, though indirectly, responsible for selection of school board members in Buckingham and Nottoway counties, the plaintiffs have produced no evidence of racial discrimination in the selection of those judges. Circuit judges in Virginia are generally chosen by the state legislature. Va.Code § 17-121. Yet the plaintiffs have produced no evidence as to the circumstances surrounding the legislature’s selection of the circuit judges for Buckingham and Nottoway counties. Many questions are unanswered. For example, did black legislators support the white circuit judges who were ultimately selected? Were the judges endorsed by white legislators who had received widespread black support in the most recent election? The plaintiffs never attempt to answer these questions, but instead focus merely on the race of the circuit judges. The mere fact that the judges were white does not prove that discrimination existed.
In short, the district court did not clearly err in concluding that the appointive system did not have a discriminatory impact on blacks in the five defendant jurisdictions. Having proved no discriminatory effect, the plaintiffs cannot establish a violation of Section 2 of the Voting Rights Act of 1965, even if it applies (a matter of some doubt).
VI.
Having found no violations of the Equal Protection Clause and the Fifteenth Amendment, we likewise conclude that plaintiffs’ First and Thirteenth Amendment claims must fail. In voting rights cases, the protections of the First and Thirteenth Amendments “do not in any event extend beyond those more directly, and perhaps only, provided by the fourteenth and fifteenth amendments.” Washington v. Finlay, 664 F.2d 913, 927 (4th Cir.1981), cert. denied, 457 U.S. 1120, 102 S.Ct. 2933, 73 L.Ed.2d 1333 (1982).
VII.
In conclusion, the plaintiffs have failed to establish a violation of Section 2 of the Voting Rights Act of 1965 or of the First, Thirteenth, Fourteenth or Fifteenth Amendments. The judgment of the district court is
AFFIRMED.
. In some Virginia jurisdictions, none of which are defendants here, the county board of supervisors and the city council jointly appoint the school board where the school district overlaps the city and county boundaries. Va.Code § 22.1-53.
. The district court’s findings would be more convincing had it investigated the legislative debate over the various bills to determine whether supporters of appointed school boards articulated the arguments found in the 1984 study. Nonetheless, the district court’s failure to discuss the content of the legislative debates after 1984 does not necessitate reversing its factual findings as clearly erroneous.
Question: Did the court's ruling on the appropriateness of summary judgment or the denial of summary judgment favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_numappel
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3
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of appellants in the case. If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, Plaintiff-Appellee, v. William BENTVENA, William Struzzieri and Samuel Monastersky, Defendants-Appellants.
No. 63, Docket 29732.
United States Court of Appeals Second Circuit.
Argued Oct. 20, 1965.
Decided Feb. 23, 1966.
Howard L. Jacobs, Asst. U. S. Atty., Robert M. Morgenthau, U. S. Atty., Neal J. Hurwitz, Asst. U. S. Atty., for ap-pellee.
Jerome Lewis, Brooklyn, N. Y., for appellants Bentvena and Struzzieri.
Robert Kasanof, New York City, for appellant Monastersky.
Before WATERMAN, MOORE and FRIENDLY, Circuit Judges.
WATERMAN, Circuit Judge:
By this opinion we affirm the convictions of three codefendants, who, having been charged with violations of 21 U.S.C. §§ 173, 174 on January 6 and January 13, 1959, were each severally found by a jury to be guilty as charged. Samuel Monastersky and William Struz-zieri were convicted of unlawful involvement on both occasions, William Bent-vena as to the January 13 violation only.
On this appeal, appellants Bentvena and Struzzieri argue that the judgments against them should be reversed and the pertinent counts of the indictment dismissed as to them, because the Government’s proof tending to show their guilt was so meager that the trial court erred in failing to direct verdicts in their favor at the close of the Government’s case. Appellant Monastersky states his willingness to adopt his codefendants’ argument as his own should it commend itself to this court, but he mainly relies upon the argument that the Government should not have been allowed to avail itself of the evidentiary rule contained in 21 U.S.C. § 174 because it failed to prove he had possession of the heroin that was the subject matter of the transactions of January 6 and January 13. He concludes that without the benefit of this rule his conviction cannot stand. We take up these separate contentions in order.
I.
The initial issue is whether the evidence presented by the Government during its case-in-chief was sufficient to permit the cases against any or all of these defendants to be submitted to the jury. We look first to the evidence relating to the January 6 transaction in which only Monastersky and Struzzieri were allegedly involved. The case against these two codefendants, based almost entirely on the trial testimony of several federal narcotics agents, can be briefly summarized. On January 5, Agent Giorgio had arranged with Monastersky to purchase from him on the following day one-half kilogram of heroin for $6,000. At about 8:40 P.M. on January 6 several agents observed Monastersky enter 525 East 88th Street. Several minutes later a car arrived on the scene and parked. Struzzieri got out and entered the same building Monastersky had previously entered. A second federal agent, Agent Ward, testified that when Struzzieri left the car and entered the building he was carrying a package wrapped in blue paper on which appeared a white snow man design. Shortly thereafter Struzzieri left the building empty handed and drove off in the same car in which he had arrived. At about 9:30 P.M. one Richard McGovern left 525 East 88th Street carrying a package and proceeded to 448 East 87th Street. A short time later Monastersky brought Agent Giorgio to 448 East 87th Street. There they met McGovern in an apartment in this building, McGovern produced a package wrapped, according to Giorgio, in blue paper on which appeared a white snow man design and the package, when opened, contained a white powder later proved to be heroin. The three men then left the apartment; once outside Giorgio handed McGovern $6,000 and McGovern gave the agent the package, which contained about one-half a kilogram of heroin. Giorgio took the package to an automobile where a third agent, Agent Mangiaracina, was waiting. There was also testimony tending to show that Struzzieri met McGovern for a few minutes later in the evening.
Assuming for the moment that the trial court correctly charged the jury that it could find Monastersky had “possession” of the heroin sold on January 6 sufficient to justify reliance on the rule contained in 21 U.S.C. § 174 it is quite clear that the Government's case against Monastersky relative to this January 6 sale was sufficient to go to the jury. Indeed, the evidence tending to prove that Monastersky was actively involved in this unlawful sale was largely uncon-tradicted. We surely cannot disturb a jury verdict based on such evidence. See United States v. Dardi, 330 F.2d 316 (2 Cir.), cert. denied, 379 U.S. 845, 85 S.Ct. 50, 13 L.Ed.2d 50 (1964).
Whether the Government’s case concerning the January 6 sale of heroin made out a case against Struzzieri sufficient to go to the jury is a closer question. Essentially, the Government’s case against Struzzieri consists of Giorgio’s testimony that he received the heroin from McGovern and Monastersky in a package wrapped in blue paper on which appeared a white snow man design, and the testimony of Ward that he observed Struzzieri carrying just such a package enter 525 East 88th Street shortly after Monastersky had entered the building and only a few hours before a package so wrapped was passed to Giorgio. The Government contends this evidence was sufficient to allow a reasonable jury to find that Struzzieri brought to McGovern and Monastersky the heroin that the latter pair then sold to Giorgio. Struz-zieri argues that the issue of his guilt should not have been submitted to the jury because crucial testimony of several narcotics agents was “meager,” “remote,” and “incredible." (
In support of his argument Struzzieri first points to the fact Agent Man-giaracina, who waited in an automobile for Giorgio to return with the heroin on the evening of January 6, testified the package Giorgio brought with him to the automobile was brown in color. Unquestionably, this testimony as to the color of the package varied from Gior-gio's testimony that the package was blue and white. Nevertheless, the jury could well have determined that Mangiaracina was mistaken in his recollection of the color and that Giorgio’s testimony was to be believed. Such a resolution of the variance, which would tend to incriminate Struzzieri, would be supported by the testimony of Agent Ward who stated that the páckage Struzzieri carried when he entered 525 East 88th Street was wrapped in blue paper on which appeared a white snow man design. We cannot say that such a resolution of this evidential variance would be unreasonable; therefore we should not replace it with our own. This is not a case in which two segments of the Government’s proof were absolutely essential to support a conviction and each contradicts the other. United States v. Moret, 334 F.2d 887, 893 (2 Cir. 1964) (Waterman, J., dissenting), cert. denied, 379 U.S. 993, 85 S.Ct. 707, 13 L.Ed.2d 612 (1965). Rather, here there was a conflict in the Government’s proof tending to establish only one fact among many facts that together tended to prove Struzzieri was carrying the package that contained the heroin subsequently sold to Giorgio. Undeniably the variance as to the color of the wrapping paper weakened the Government’s case against Struzzieri. Nevertheless, the jury concluded the package that Giorgio received from Monastersky and McGovern was the package Struzzieri brought to the latter pair earlier in the evening. We should not disturb this permissible resolution of the variance since this is precisely the sort of task that juries are best able to perform. United States v. Dardi, supra; United States v. Tutino, 269 F.2d 488 (2 Cir. 1959).
Struzzieri also contends the Government’s case tending to involve him in this January 6 transaction was fatally weak because Agent Ward’s testimony that he observed Struzzieri enter 525 East 88th Street carrying a package wrapped in blue paper on which appeared a white snow man design was incredible and unworthy of belief because of the distance separating Ward from Struzzieri and the poor lighting conditions at that time. In other words, Struzzieri’s claim is not that the Government failed to present evidence from which reasonable men could be convinced of a certain fact beyond a reasonable doubt; rather he claims that the physical facts so contradict Ward’s testimony as to render that testimony unbelievable. We disagree. Deciding whether certain evidence should be believed is precisely the task set the jury in a prosecution such as this; we should not interfere with the jury’s decision in this case that Ward’s testimony was credible.
We next turn to consider whether the Government’s evidence relating to the January 13 transaction in which all of the defendants were allegedly involved was sufficient to permit the cases against any or all of them to be submitted to the jury. Again, the case against Monaster-sky, Struzzieri and Bentvena was based almost entirely on the trial testimony of seyeral narcotics agents, and it, too, can be briefly summarized. Agent Giorgio made arrangements with Monastersky to purchase another half kilogram of heroin on January 13 from Monastersky and McGovern for $6,000. On that date, at about 9:25 P.M. Bentvena and Struzzieri arrived in a car on East 88th Street-; they parked and entered the apartment building numbered 525. Shortly thereafter Monastersky came out of this building and met Agent Giorgio who had been waiting in the immediate vicinity for some time.. Giorgio introduced Agent Mangiaracina to Monastersky as his partner and while Mangiaracina waited in the lobby of the building Monastersky and Giorgio made their way to apartment 2-H, which was McGovern’s apartment. While doing so they met Struz-zieri and Bentvena coming toward them in the opposite direction. When Bent-vena and Struzzieri arrived in the lobby Mangiaracina observed Bentvena stop and speak into the intercom system; at approximately the same time Giorgio observed McGovern go to the intercom connection in apartment 2-H and speak into it, saying, “Everything is okay.” Man-giaraeina then saw Struzzieri leave the building, while agents outside saw them walk to their car, remove a brown package from the trunk, and together return to the lobby where Mangiaracina saw them go upstairs again. Shortly thereafter, according to Giorgio, the doorbell rang in apartment 2-H, McGovern answered the bell and returned with a brown package ultimately found to contain heroin. Bentvena and Struzzieri were observed leaving the building a few minutes after their last entry. In the meantime, McGovern had asked Giorgio for the money. Giorgio summoned Man-giaracina, his supposed partner, from the lobby, the agents handed an envelope containing $6,000 to Monastersky, and Mon-astersky handed the package of heroin to Giorgio. Subsequently Struzzieri and Bentvena returned to 525 East 88th Street, where they remained for about an hour.
Considerations similar to those that caused us to affirm the jury’s verdict of guilty based on the evidence relating to the January 6 sale cause us to hold that the evidence introduced by the Government relating to the January 13 sale was sufficient to support the jury’s verdict of guilty as to the latter transaction. Viewing the evidence, as we must, in the light most favorable to the Government, United States v. Tutino, supra, and recognizing that involvement in an illegal sale of narcotics may be proved by circumstantial evidence, United States v. Moret, supra, we cannot say that reasonable jurors could not have found beyond a reasonable doubt that Struzzieri and Bentvena delivered the heroin to Monastersky and McGovern which they, in turn, sold and delivered to Giorgio. And, of course, Monastersky’s involvement in the transaction is firmly established.
II.
We now examine the claim of appellant Monastersky that his conviction on both counts should be reversed because, as the record does not show that the heroin sold to the agents was illegally imported, or that Monastersky knew from where it came, his conviction can only stand if the Government proved he had “possession” of the drugs, which, he maintains, the Government failed to do. Monastersky contends the Government’s proof establishes only that he was a “casual facilitator” of the sales in question, in other words that he merely introduced a willing seller to a willing buyer, activity that we held was insufficient to establish possession, either actual or constructive, in United States v. Jones, 308 F.2d 26 (2 Cir. 1962). We disagree with appellant. We believe the evidence in this case established that Monastersky had, on both occasions, power to control the disposition of the heroin sufficient -to constitute “possession” within 21 U.S.C. § 174. See United States v. Jones, supra. In Jones we reversed a conviction under §174 that equated mere participation in a sale of narcotics with “possession” of the narcotic drug. In discussing the facts of that case we said:
We believe the evidence in this case negates a conclusion that defendant Jones had dominion and control over the narcotics handed to Brown by Moore. The pains Jones took in the first instance to find Moore indicate that Jones was unable to consummate the transaction as a business dealing of his. The price and place of delivery were not even discussed with the would-be purchaser until defendant spoke with Moore. No one can say that Jones established these essential details of the affair unless he engages in speculation wholly unwarranted by the trial record. After consummation of the transaction Moore told agent Brown to purchase directly from him in the future and not to deal with anyone else. This statement by Moore negates a finding that Jones could assure, as a matter of course, delivery by Brown to a customer Jones might discover. 308 F.2d at 31.
The facts here are quite different. On both January 6 and January 13 Monastersky apparently set the price of the heroin without consulting with McGovern. On January 6 Monastersky was in the building when Struzzieri delivered the heroin. At both sales to Giorgio, •Monastersky remained with McGovern throughout. And during the January 13 transaction Monastersky had the heroin package in his hands, Giorgio paid the money directly to Monastersky, and Mon-astersky handed the heroin directly to Giorgio. This evidence brings Monaster-sky’s case well within our statement in Jones that “evidence showing that a given defendant set the price for a batch of narcotics, had the final say as to means of transfer, or was able to assure delivery, may well be sufficient to charge the defendant with a constructive possession of the narcotics * * 308 F.2d at 31.
Monastersky also contends that the trial court’s charge relating to constructive possession was improper. We would be hard pressed to detect error in this charge. In any event, since Monastersky failed to object to the charge at trial, or to request a different charge, he may not, barring special circumstances not present here, raise the issue on appeal. See United States v. Indiviglio, 352 F.2d 276 (2 Cir. 1965), cert. denied, Feb. 21, 1966, 86 S.Ct. 887.
Affirmed.
. The indictment out of which these convictions arise was filed on May 5, 1960. It named twenty-nine defendants and contained eight counts. The first trial on the indictment ended in a mistrial after six months. The second trial resulted in the conviction of thirteen defendants, including the present appellants, on counts four and five charging substantive violations of the narcotics laws and on count eight, the general conspiracy count. On June 13, 1963 our court affirmed the convictions of nine of the defendants but reversed the convictions of appellants and the defendant Salvatore Pánico and remanded for a new trial. United States v. Bentvena, 319 F2d 916 (2 Cir.), cert. denied, 375 U.S. 940, 84 S.Ct. 345, 11 L.Ed.24 271 (1963). This appeal follows the third trial.
. Appellants Bentvena and Struzzieri seek only a reversal with directions that the indictment be dismissed, they do not seek a new trial.
. It is a federal offense under Section 174 to import narcotics illegally or to deal in such drugs with knowledge that they have been illegally imported. The statute goes on to provide: “Whenever on trial for a violation of this section the defendant is shown to have or to have had possession of the narcotic drug, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains the possessio’n to the satisfaction of tlie jury.” In the present case Monastersky argues the Government did not prove he had or had had possession of the heroin which was the subject of the illegal transactions.
. See note 3, supra.
Question: What is the total number of appellants in the case? Answer with a number.
Answer:
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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.
W. S. KILROY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent.
No. 9358.
United States Court of Appeals Tenth Circuit.
Oct. 23, 1968.
J. Evans Attwell, and Vinson, Elkins, Weems & Searls, Houston, Tex., filed a statement on behalf of petitioner.
Peter H. Schiff, Sol., Federal Power Commission, filed a statement on behalf of respondent.
Before LEWIS, BREITENSTEIN and SETH, Circuit Judges.
BREITENSTEIN, Circuit Judge.
Petitioner Kilroy seeks review of Opinions Nos. 498 and 498-A, and accompanying orders, of the Federal Power Commission. The issues relate to the authority of the Commission to order refunds on unconditioned temporary certificates granted pursuant to § 7 of the Natural Gas Act and to the manner of exercise of that authority. Six other petitions relating to the same opinions and orders were either filed in or transferred to this court. Because of the pendency of Supreme Court review of our decision in Sunray DX Oil Company v. Federal Power Commission, 10 Cir., 370 F.2d 181, all petitioners agreed that the review of Opinions Nos. 498 and 498-A should be deferred until the Supreme Court had acted on Sunray DX. Accordingly, we ordered all the petitions to be held in abeyance.
In Federal Power Commission v. Sun-ray DX Oil Co., 391 U.S. 9, 40-47, 88 S. Ct. 1526, 20 L.Ed.2d 388, the Supreme Court upheld not only the authority of the Commission to order such refunds but also the manner in which that authority was exercised in Opinions Nos. 501 and 501-A. We then directed the petitioners attacking Opinions Nos. 498 and 498-A to express their views in regard to further proceedings. All those petitioners except Kilroy have agreed that their petitions should be dismissed. Kilroy urges that the Commission erred in failing to consider his equities and in requiring 7% interest on the refunds.
In Sunray DX the Court upheld the refunds ordered pursuant to Opinions Nos. 501 and 501-A. Those opinions followed Opinions Nos. 492 and 492-A which we considered and upheld in Skelly Oil Company v. Federal Power Commission, 10 Cir., 401 F.2d 726. In that decision we said that, on the refund issue presented, Sunray DX is controlling in the absence of exceptional and distinguishing facts. We have now examined Opinions Nos. 498 and 498-A and the Kilroy petition for review and find no exceptional and distinguishing facts. Accordingly, Sun-ray DX is decisive.
Kilroy’s attack on the interest rate is disposed of in our Skelly opinion mentioned above and needs no further elaboration.
The petition for review is denied.
. 36 FPC 149 and 981.
. 15 U.S.C. §§ 717-717w.
. See our docket Nos. 9220, 9307, 9340, 9341, 9357 and 9359.
. 36 FPC 309 and 962.
. Appropriate orders of dismissal were entered on July 15, 1968.
. 35 FPO 849 and 36 FPC 143.
. The Commission considered the unusual situation of Kilroy in one of its dockets and ordered no refund in that particular instance. See Opinion No. 498, 36 FPC 149, 153-154.
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_genstand
|
B
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the agency articulate the appropriate general standard?" This question includes whether the agency interpreted the statute "correctly". The courts often refer here to the rational basis test, plain meaning, reasonable construction of the statute, congressional intent, etc. This issue also includes question of which law applies or whether amended law vs law before amendment applies. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
COMMISSIONER OF INTERNAL REVENUE v. GERSTLE.
No. 8426.
Circuit Court of Appeals, Ninth Circuit.
March 25, 1938.
James W. Morris, Asst. Atty. Gen., and Sewall Key, J. Louis Monarch, Louise Foster, and M. Leo Looney, Jr., Sp: Assts. to Atty. Gen., for petitioner.
Francis W. Murphy, of San Francisco, Cal., for respondent.
Before DENMAN, MATHEWS, and HEALY, Circuit Judges.
HEALY, Circuit Judge.
This case was brought here on petition to review a decision of the Board of Tax Appeals. The question presented is whether the respondent is entitled to deduct for income tax purposes his proportionate share of operating losses sustained by syndicates of which he was a member. Specifically, it is whether the syndicates are associations within the meaning of section 2(a) (2) of the Revenue Act of 1926, and section 701 (a) (2) of the Revenue Act of 1928, 26 U. S.C.A. § 1696(3), providing that for the purposes of the act “the term ‘corporation’ includes associations, joint-stock companies, and insurance companies”; or whether, as contended by respondent and as held by the Board, the syndicates are joint ventures. If the latter, the members are taxable as individuals and have the right to deduct each year their proportionate share of the operating losses of the syndicates. If the syndicates are associations, and therefore, taxable entities, their losses are personal to them and cannot be deducted by any one else.
Income taxes for the years 1927, 1928, and 1929 are involved. The material facts are stipulated and disclose the following situation: For many years prior to 1927 the respondent and the several other members of the syndicates involved had been directors of corporations owning large department stores in San Francisco and Oakland. In 1927 it was decided to build a new store in Oakland some blocks away from the then business district. The respondent and his associates decided to purchase properties in the immediate vicinity of the proposed new store in order that they might realize profits from an expected increase in value of the neighboring real estate. The original plan was expanded somewhat to include the purchase of other properties in Oakland in anticipation of a general rise in real estate values. Four syndicates in all were organized within a few weeks of each other, the members contributing to a pool to be used for the purchase of the properties thereafter acquired. At the outset it was their purpose to purchase certain properties which they believed could be quickly resold at a profit. It was not then the purpose to improve any of the properties acquired. The management of the properties was intended to be such only as would be necessarily incident to the ownership in the interim between purchase and anticipated sale.
The syndicate agreements were made in writing by three syndicate managers and those who affixed their signatures as members. All four agreements are identical in form. It was recited that the syndicate members are desirous of acting jointly in the purchase, management, and sale of real properties in Oakland, and for that purpose have requested the syndicate managers to act as their agents and trustees. The parties agreed that the managers should purchase, manage, and sell the real properties for the account of the members, the managers to have complete discretion in the selection of the properties to be purchased, the amount of the purchase price, the details of management, the terms of sale and of mortgage, and of all other matters related to the syndicate operations. The properties purchased might be taken in any names the managers might determine'. It was provided that each member on executing the agreement should set down after his name the amount he would contribute to the operations, “and his interest in the properties, profits, obligations, debts and losses of the syndicate shall be that proportion thereof which the amount set after his signature bears to the total of the amounts set after the signatures of all the syndicate members.” It was agreed that the funds required for the operations of the syndicate should be provided by the members, who were to pay to the manag -rs, on call, their respective proportions of the total sum called for, “provided that no syndicate member shall be called upon, prior to the termination of the syndicate, to pay a greater aggregate amount than that set after his signature hereto.” The managers were empowered to borrow money in their own names or in the names of others for the benefit of the syndicate, and the members were liable for the repayment thereof in proportion to their respective interests. The managers, who might act by majority, were not'to be responsible for any act performed in good faith, and were to be indemnified and held harmless by the members from any loss or liability that they might be subjected to. In the event of vacancies, successors to syndicate managers might be appointed by the members. The managers were entitled to compensation under certain conditions. The syndicate might be terminated by the managers or by members holding at least two-thirds of the beneficial interest, and upon termination the syndicate property was to be delivered to the members in their proper proportions, and if there should be a loss, each member was required forthwith to pay his proper proportion to the managers. No assignment by a syndicate member of his interest could be made effective until written notice thereof had been delivered to the managers, “nor shall any assignment release the syndicate member so assigning from liability hereunder unless the syndicate managers shall so agree in writing.” The agreements were to be executed in any number of counterparts, each constituting a single agreement. No certificates or other evidence of interest were provided for in the agreement, nor were any ever issued.
Syndicate No. 1 was the original syndicate, through which six properties were purchased. The purpose of syndicate No. 2 was the purchase and resale of St. Mary’s College property. Syndicate No. 3 acquired two properties, and syndicate No. 4 was formed to acquire what is called the Gross property. No other properties were purchased.
The anticipated rise in values did not occur. There was instead a decline which continued throughout the subsequent years. By reason of these circumstances, the syndicate managers were compelled to operate certain of the buildings and to rent the remaining unimproved properties, these latter being temporarily appropriated for a variety of purposes. Prior to 1930, two properties only were resold, the remainder in the latter year being transferred to corporations.
At the commencement of the operations an arrangement was made with 'a bank to provide the funds origjnally required for the purchase of the several properties, these funds being advanced on the notes of the syndicate managers. The acquisitions were made on the recommendation of the bank and a firm of real estate brokers in Oakland. Believing that a disclosure of the identities of the real parties in interest would result in an immediate increase in. prices, precautions were taken to conceal the identities of the members of the syndicate. Accordingly, title to all properties was taken in the name of one or the other of two title companies.
The syndicates, as such, had no name. There were no officers except as the managers might be so considered. The agreements provided the sole evidence of the interest of the several members, and each member received an executed counterpart. While the agreements gave the managers broad and exclusive powers, the practice was to decide all questions of importance only after the views of all concerned had been obtained. The managers did not organize. The bank, as fiscal agent, kept all records pertaining to syndicate affairs. It rented the improved properties, collected the rents, and paid all expenses. From time to time the syndicate members were called upon to supply funds to the bank proportionate to their respective subscriptions. The funds advanced by the bank on the notes of the syndicate managers, both for the acquisition and subsequent maintenance of the properties, were repaid directly to the bank by the members on calls prepared and issued by the bank directly to the members. As security for the repayment of advances, the bank held declarations of trust covering the syndicate assets executed- by the title companies — the holders of the record title — these declarations of trust being executed with the consent of the managers. The bank was compensated for the services rendered by it.
Large operating losses were sustained by the syndicates during the years in question. The members deducted on 'their individual returns for those years their respective proportions of the losses, and these were disallowed by the Commissioner. The Boai;d disagreed with the Commissioner, holding that the syndicates were not associations taxable as corporations, and that operating losses were allowable to the members.
In Morrissey v. Commissioner, 296 U.S. 344, 56 S.Ct. 289, 295, 80 L.Ed. 263, the court, after reviewing the decisions in Crocker v. Malley, 249 U.S. 223, 39 S.Ct. 270, 63 L.Ed. 573, 2 A.L.R. 1601; and Hecht v. Malley, 265 U.S. 144, 44 S.Ct. 462, 68 L.Ed. 949, said: “While it is impossible in the nature of things to translate the statutory concept of ‘association’ into a particularity of detail that would fix the status of every sort of enterprise or organization which ingenuity may create, the recurring disputes emphasize the need of a further examination of the congressional intent.” Definitions-of the term “association” showing the ordinary meaning of the term as “applicable to a body 'of persons united without a charter ‘but upon the methods and forms used by incorporated bodies for the prosecution of some common enterprise,”’ were there said to be helpful, but not to be accepted to the extent of making mere formal procedure a controlling test. “While the use of corporate forms may furnish persuasive evidence of the existence of an association, the absence of particular forms, or of the usual terminology of corporations, cannot be regarded as decisive.” Again, it is said that “the inclusion of associations with corporations implies resemblance ; but it is resemblance and not identity.” Certain salient features of corporate organization, as furnishing analogies, are pointed out by the court. Thus it is said, in substance, that a corporation, as an entity, holds the title to the property embarked in the undertaking; it furnishes centralized management through representatives ; it insures continuity of enterprise; it facilitates the transfer of beneficial interests and the introduction of large numbers of participants; and it permits the limitation of personal liability of participants to the property embarked in the undertaking.
Certain of these features were present in the syndicates involved. While title to the assets was not taken in. the supposed entity or in the syndicate managers, continuity of the enterprise was effected, insuring against disturbance resulting from death or from the transfer of ownership of beneficial interests. Centralized management was provided for in the agreements, notwithstanding in practice there was general consultation before important decisions were reached. See - Helvering v. Coleman-Gilbert Associates, supra, note. In other respects, these syndicates lack analogy to corporations. Two of the characteristic advantages of corporate organization have been generally thought to be the limited liability of the members, and a ready divisibility and transferability of beneficial interests, making toward the inclusion in the enterprise of large numbers of participants. The liability of the syndicate members was not limited. Their beneficial interests were not readily or conveniently transferable. There were no shares, certificates, or other evidence of interest beyond each member’s copy of the agreement. While, in a few instances, divisions were made of their interest by members, orally or in writing, those acquiring proportionate shares of the interest of these members' were never consulted, and no calls were ever made upon them. Their relations were entirely with the member with whom they had originally dealt and from whom their respective interests were acquired. While, as was said in Morrissey v. Commissioner, supra, “the test of an association is not to be found in the mere formal evidence of interests or in a particular method of transfer,” yet the absence of familiar provision for adequate evidence of interest or of any convenient method of transfer is important to be considered.
In A. A. Lewis & Co. v. Commissioner, 301 U.S. 385, 57 S.Ct. 799, 801, 81 L.Ed. 1174, it was said that the trust reviewed in Morrissey v. Commissioner, supra, “was a medium for the carrying on of a business enterprise by the trustees-and participation in the profits by numerous beneficiaries whose interests were represented by transferable share certificates, thus permitting the introduction of new participants without affecting the continuity of the plan. The certificates represented both preferred and common shares. We pointed out that the corporate analogy was evidenced by centralized control, continuity and limited liability, as well as by the issue of transferable certificates.”
An attempted analysis of the character and functions of the syndicates here involved leads to no entirely satisfying conclusion as to what they are. In some respects they resemble partnerships, in others corporations, and in the main they are markedly different from either. The Board held that they were joint ventures, citing the definition of such given in 33 C.J. 841 as “a special combination of two or more persons, where, in some specific venture, a profit is jointly sought, without actual partnership or corporate designation.” It was thought by the Board that the assets acquired through the syndicate activities were the property of the members, as tenants in common, citing McCausey v. Burnet, 60 App. D.C. 201, 50 F.2d 491, and Clark v. Sidway, 142 U.S. 682, 12 S.Ct. 327, 35 L.Ed. 1157. It seems clear that the members were equitable owners of the real property acquired, and that their beneficial interests were not merely personal claims against the syndicate managers.
No useful purpose would be 'served by further review of the many authorities dealing with various aspects of this difficult subject. Attention will be called only to two recent cases involving opposite sets of facts and illustrating the views that have been taken following on the decision of Morrissey v. Commissioner, supra. These are Monrovia Oil Co. v. Commissioner, 9 Cir., 83 F.2d 417, decided by this court, and Myers v. Commissioner, 89 F.2d 86, decided by the Circuit Court of Appeals for the 7th Circuit.
We hold that the syndicates were not associations within the meaning of the applicable statute, and the decision of the Board is therefore affirmed.
And see the cases immediately following: Swanson v. Commissioner, 296 U.S. 362, 56 S.Ct. 283, 80 L.Ed. 273; Helvering v. Combs, 296 U.S. 365, 56 S.Ct. 287, 80 L.Ed. 275; Helvering v. Coleman-Gilbert Associates, 296 U.S. 369, 56 S.Ct. 285, 80 L.Ed. 278.
Question: Did the agency articulate the appropriate general standard? This question includes whether the agency interpreted the statute "correctly". The courts often refer here to the rational basis test, plain meaning, reasonable construction of the statute, congressional intent, etc. This issue also includes question of which law applies or whether amended law vs law before amendment applies.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_respond1_1_4
|
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)", specifically "financial institution". Your task is to determine what subcategory of business best describes this litigant.
DORSEY v. OLD SURETY LIFE INS. CO.
No. 1644.
Circuit Court of Appeals, Tenth Circuit.
Sept. 6, 1938.
H. L. Stuart, of Oklahoma City, Okl. (R. R. Bell and E. P. Ledbetter, both of Oklahoma City, Okl., on the brief), for appellant.
Charles Swindall, of Oklahoma City, Okl. (Russell M. Chase, of Ava, Okl., on the brief), for appellee.
Before PHILLIPS, BRATTON, and WILLIAMS, Circuit Judges.
PHILLIPS, Circuit Judge.
Dorsey brought this suit against Old Surety Life Insurance Company, hereinafter called Insurance Company, for alleged infringement of copyrights on three forms of life insurance policies, seeking an injunction against future infringements and damages for alleged past infringements.
In his hill Dorsey alleged that he is the originator and author of three types of insurance policies, denominated “Family Group Life Insurance Policy,” “Family Group Policy,” and “Reserve Loan Life Insurance Co. Policy Family Group”; that copyrights covering such policies were duly granted to him in October, 1927, November, 1928, and September, 1930, respectively, and that he is now the owner of such copyrights; that such policies were composed, edited, prepared, arranged, and compiled by him at great expense after extended research and as a result of more than thirty years of actuarial and sales experience in the life insurance field; that such publications are of the value of $100,000; that commencing on a date unknown to him and continuing until on or about July'28, 1936, the Insurance Company had without license, leave, right, or authority knowingly published, issued, and sold certain insurance policies denominated “Family Group Policy” which infringed vital portions of Dorsey’s copyrighted publications.
The bill sets out the parts of the copyrighted forms alleged to be infringed and the parts of the Insurance Company’s policies alleged to infringe them.
The trial court sustained a motion to dismiss the bill and entered its decree dismissing the suit. Dorsey has appealed.
The right secured by a copyright is not the right to the use of certain words, nor the right to employ ideas expressed thereby. Rather it is the right to that arrangement of words which the author has selected to express his ideas.
In Kaeser & Blair, Inc., v. Merchants’ Ass’n, Inc., 6 Cir., 64 F.2d 575, 577, the court said:
“It has been frequently held that the copyright law does not afford protection' against the use of an idea, but only as to the means by which the idea is expressed.”
It follows that Dorsey’s copyrights in nowise restricted the right of the Insurance Company to use the plans of insurance embraced in the copyrighted policies. They only restricted the use or copying of the means of expression selected by Dorsey to the extent that such means were original with Dorsey.
To be copyrightable a work must be original in that the author has created it by his own skill, labor, and judgment. If he takes matter which has been dedicated to the public by publication without copyright and adds thereto materials which are the result of. his own efforts a copyright thereon is not void, but is valid as to the new and original matter. However, the degree of protection afforded by the copyright is measured by what is actually, copyrightable in the publication and not by the entire publication.
Insurance policies were old at the time Dorsey’s copyrights were granted. Standard provisions had been worked out through long'study and experience. Many of such standard provisions are now inserted in life insurance policies pursuant to statutory requirement. Oklahoma requires that certain provisions be included in each policy of life insurance issued or delivered in Oklahoma or issued by a life insurance company organized under the laws of Oklahoma. See Section 10524, O.S.1931, 36 Okl.St.Ann. § 218.
The copyrighted forms here involved in the main are an aggregation of these standard provisions including those required by statute. As to those provisions it is clear that there is no infringement. One work does not violate the copyright in another simply because there is a similarity between the two if the similarity results from the fact that both works deal with the same subject or have the same common source. Affiliated Enterprises, Inc., v. Gruber, 1 Cir., 86 F.2d 958, 961. The provisions dealing specifically with the family group are alleged to be new and original. The copyrights if valid at all must be limited to those particular provisions and to the particular means employed by Dorsey to express the contractual terms thereof.. The provisions in the policies of the Insurance Company dealing particularly with; the. family group are neither an exact nor a substantial copy of the family group provisions in the copyrighted policies. There is no more similarity than might naturally be expected in policies embracing the same plan of insurance and incorporating like contractual provisions. There can be no doubt, that the Insurance Company is free to make contracts embracing like contractual provisions as those included in the copyrighted policies and to use suitable words to express the provisions of such contracts so long as it does not copy the particular means of expression originated by Dorsey.
A copyright upon a form of contractual. provision should not be construed so, as to impinge upon the natural right of persons to make contracts containing the same, contractual provisions and creating like contractual .rights and obligations, and similarity of expression should not be held to constitute infringement in such cases. Necessarily, where the same contractual .provision is to be expressed there will be similarity of language. To constitute infringement in such cases a showing of appropriation in the exact form or substantially so of the copyrighted materia} should be required. See Brightley v. Littleton, C.C.Pa., 37 F. 103, 104.
Hence, we think the trial court was fully warranted in holding upon the face of the bill that the policies of.the Insurance Company did not infringe Dorsey’s copyrighted forms.
The decree- is affirmed.
Holmes v. Hurst, 174 U.S. 82, 86, 19 S.Ct. 606, 43 L.Ed. 904; Hartfield v. Peterson, 2 Cir., 91 F.2d 998, 999; Guthrie v. Curlett, 2 Cir., 36 F.2d 694, 696; Ansehl v. Puritan Pharmaceutical Co., 8 Cir., 61 F.2d 131, 137, 138; Harold Lloyd Corp. v. Witwer, 9 Cir., 65 F.2d 1, 25; Kaeser & Blair, Inc., v. Merchants’ Ass’n, Inc., 6 Cir., 64 F.2d 575, 577; Dymow v. Bolton, 2 Cir., 11 F.2d 690, 691. See, also, Affiliated Enterprises, Inc., v. Gantz, 10 Cir., 86 F.2d 597, 598, and Affiliated Enterprises, Inc., v. Gruber, 1 Cir., 86 F.2d 958, 961.
American Code Co., Inc., v. Bensinger, 2 Cir., 282 F. 829, 834; Harold Lloyd Corp. v. Witwer, 9 Cir., 65 F.2d 1, 23.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "financial institution". What subcategory of business best describes this litigant?
A. bank
B. insurance
C. savings and loan
D. credit union
E. other pension fund
F. other financial institution or investment company
G. unclear
Answer:
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songer_respond1_1_4
|
F
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "other". Your task is to determine what subcategory of business best describes this litigant.
LARTER & SONS, Inc. v. DINKLER HOTELS CO., Inc. et al.
No. 14224.
United States Court of Appeals Fifth Circuit.
Nov. 15, 1952.
Ogden Doremus and Estes Doremus,. Atlanta, Ga., for appellant.
Edward E. Dorsey, James N. Frazer and! Hamilton Douglas, Atlanta, Ga., for appellee.
Before BORAH, STRUM and RIVES,. Circuit Judges.
RIVES, Circuit Judge.
This appeal is from a judgment-dismissing the action. The motion to dismiss was filed by one of the defendants, Dinkier Hotels Company, Inc. So far as-the record shows, the other defendant,. Atlanta Baggage & Cafo Company, did not enter an appearance. As to that defendant, it is apparent that the dismissal was inadvertent, and that the judgment must be reversed insofar as it is concerned.
Dinkier Hotels Company’s motion to dismiss was based upon two grounds: one, the general ground that the complaint fails to state a claim against this defendant upon which relief can be granted; and two, upon the further ground that all matters and issues in the action were res judicata, having been finally adjudicated and settled in a prior action in the Civil Court of Fulton County, Georgia, brought by the plaintiff on the same cause of action against the same defendants or their privies.
The general ground of failure to state a claim upon which relief can be granted is not seriously urged. The plaintiff was a jewelry salesman. lie was checking out of the hotel, and a hotel porter had given to him the baggage company’s claim check for a trunk loaded with jewelry to be transported by the baggage company to the railroad station. While the trunk and jewelry were on the sidewalk adjacent to' the hotel awaiting transportation, they were stolen. The complaint fixes their value at $41,376.-11. The plaintiff claims that the hotel company was the agent of the baggage company for the purpose of handling its claim checks, and of delivering to it baggage of guests for transportation to railroad stations, and that both defendants were negligent resulting in the loss of the plaintiff’s trunk and jewelry.
The hotel company insists that the issue of res judicata was properly raised by its motion and that the record facts show that the action had been finally adjudicated in the Civil Court of Fulton County, Georgia. With respect to a specific affirmative defense such as res judicata, the rule seems to foe that if the facts are admitted or are not controverted -or are conclusively established so that nothing further can be developed by a trial of the issue, the matter may be disposed of upon a motion to dismiss whether the decision of the District Court be considered as having been arrived at under the provisons of Rule 12(b) (6) or Rule 56(c), F.R.C.P., 28 U.S.C.A. 2 Moore’s Federal Practice (2nd Ed.) 1698, 2256, 2257; Chappell v. Goltsman, 5 Cir., 186 F.2d 215, 218.
In response to requests for admission under Rule 36, the plaintiff admitted that there had been a suit in the Civil Court of Fulton County, Georgia, by the same plaintiff against the same two defendants or their privies asserting the same cause of action as asserted in this case, that no appeal had been taken from the order of said State court in the prior case and that the time for appeal had expired. The plaintiff’s admission stated “that - it took no appeal for the reason that it affirmatively appears from said order that its suit in the Civil Court of Fulton County, was dismissed by plaintiff without prejudice before the entering of said order.” A copy of the order of the Civil Court of Fulton County is attached as Appendix A to this opinion. There is vigorously debated between the parties the question of state practice and procedure as to whether that suit was effectively dismissed by the plaintiff so as to deprive the Court of jurisdiction to enter its order, and many state cases are cited in support of the respective contentions of the parties.
We do not think that this Court has any authority to pass upon that question of state practice. The State court had the parties before it and invited them to remain while it determined the issues in the case which included the question of that Court’s jurisdiction or power to enter any order after the plaintiff’s attempt to dismiss the action. The plaintiff retired from the State courtroom at its own peril. Thereafter the court adjudged that it did have jurisdiction to enter the order, and that the plaintiff’s petition stood dismissed as of a date prior to its attempted voluntary non-suit. The merits or demerits of the decision of the Civil Court of Fulton County cannot be put in issue here. American Surety Company v. Baldwin, 287 U.S. 156, 166, 53 S.Ct. 98, 77 L.Ed. 231; Baldwin v. Iowa State Traveling Men’s Ass’n, 283 U.S. 522, 525, 51 S.Ct. 517, 75 L.Ed. 1244.
In Georgia, “A ruling on a general demurrer to a petition is a judgment on the merits of the case.” Darling Stores Corp. v. Beatus, 199 Ga. 215, 33 S.E.2d 701. The final judgment of the State court is conclusive in this court. Jarrard v. Southeastern Shipbuilding Corp., 5 Cir., 163 F.2d 960. The dismissal of the action against Dinkier Hotels Company, Inc. is affirmed; its dismissal against Atlanta Baggage & Cab Company is reversed; the costs of appeal are taxed against the appellant.
Affirmed in part and reversed in part.
Appendix “A” “Civil Court of Fulton County. “Larter & Sons, vs. No. 237470. “Ansley Hotel Operating Company.
“Order.
“On November 26, 1951, this 'Court entered an order sustaining the defendant Ansley Hotel Operating Company’s general demurrer to' count two of the plaintiff’s petition, without leave to the plaintiff to amend, and sustaining the defendant Ansley Hotel Operating Company’s general demurrer to count one of the petition with ten days leave to amend. The order recited that if the plaintiff failed to amend within the stated period, the plaintiff’s petition ‘shall stand dismissed’. The ten day period allowed was later extended for an additional five days.
“On December 11, 1951, which date was within the period allowed by the Court for amendment, the plaintiff tendered an amendment to his petition which was conditionally allowed and ordered filed by the Court.
“After plaintiff tendered this amendment, defendant Ansley Hotel Operating Company filed defensive pleadings by way of a written motion to dismiss the amendment, objections to, the allowance and filing of the amendment, and general demurrers thereto. Defendant took the position in its objections that the amendment failed to meet the requirements of the Courts order of November 26, 1951.
“The motion to dismiss, objections and demurrers, just referred to, were set down for'a hearing on February 1, 1952. The case was regularly sent out to this division of the Court. When the case was called for hearing in this division, plaintiff’s counsel stated that he then and there dismissed the action and wrote upon the original petition a statement of dismissal. Counsel was invited by the Court to remain during determination by the Court of the issues in the case,' but counsel retiréd from the Courtroom, contending that the action had been dismissed.
“The defendant Ansley Hotel Operating Company then made an oral motion to strike the purported dismissal by plaintiff and to expunge the writing of plaintiff’s counsel from the pleadings, and also to expunge any similar entries from the dockéts and other records of the Court. The Court then proceeded to hear argument upon the oral motion and upon the written defensive pleadings referred to above. After consideration, the Court concludes that the plaintiff’s amendment of December 11, 1951, failed to meet the requirements of the order of November 26, 1951, and, further, that the petition as amended failed to meet the original general demurrer of this defendant. Therefore, since plaintiff undertook to comply with the Court’s order of November 26, 1951, and failed to do so, the Court considers that the plaintiff’s petition stood dismissed as of December 11, 1951, the order of November 26, 1951 having provided for dismissal upon plaintiff’s failure to amend the petition with respect to the rulings in Section 3 of that order. The pleadings being in this state, there was nothing for the plaintiff to dismiss.
“It is, therefore, decreed, ordered and adjudged that the plaintiff’s petition stood dismissed as of December 11, 1951; all other and further proceedings by the plaintiff in said case were null and void; the defendant Ansley Hotel Operating Company’s formal motion to dismiss said attempted amendment of the plaintiff is sustained; the defendant Ansley Hotel Operating Company’s formal objection to the allowance and filing of the plaintiff’s amendment is sustained; the defendant Ansley Hotel Operating Company’s motion to expunge from the record all writings and entries on the pleadings, dockets and other records of this Court relative to the plaintiff’s attempted dismissal is sustained, and all such writings and entries on the pleadings, dockets and other records of this Court are hereby ordered expunged and physically stricken from the records of this Court.
“The cost of the proceedings are cast on the plaintiff.
“This 12th day of February, 1952.
Sam F. Lowe, Jr., Judge, Civil Court of Fulton County.”
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "other". What subcategory of business best describes this litigant?
A. medical clinics, health organizations, nursing homes, medical doctors, medical labs, or other private health care facilities
B. private attorney or law firm
C. media - including magazines, newspapers, radio & TV stations and networks, cable TV, news organizations
D. school - for profit private educational enterprise (including business and trade schools)
E. housing, car, or durable goods rental or lease
F. entertainment: amusement parks, race tracks, for profit camps, record companies, movie theaters and producers, ski resorts, hotels, restaurants, etc.
G. information processing
H. consulting
I. security and/or maintenance service
J. other service (including accounting)
K. other (including a business pension fund)
L. unclear
Answer:
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songer_r_natpr
|
1
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
CAPITAL TRANSIT CO., Inc., v. GAMBLE et al.
No. 9244.
United States Court of Appeals District of Columbia.
Argued Jan. 9, 1947.
Decided March 10, 1947.
Mr. Howard Boyd, of Washington, D C. , for appellant. Mr. Edward Bennett Williams, of Washington, D. C., also entered an appearance for appellant.
Mr. Wilbert Mclnerney, of Washington, D. C., with whom Mr. Morris Benson, of Washington, D. C., was on the brief, for appellees. Mr. Lewis A. McGowan, Jr., of Washington, D. C., also entered an appearance for appellees.
Before GRONER, Chief Justice, and CLARK and PRETTYMAN, Associate Justices.
CLARK, Associate Justice.
This is an appeal from a verdict and judgment of the District Court awarding damages for personal injuries. Defendant moved for a directed verdict at the close of the plaintiffs’ evidence and again at the close of its evidence. These motions were denied. After the jury returned a verdict in favor of plaintiffs and judgment was entered thereon, defendant moved for judgment notwithstanding the verdict which was denied. Defendant, as appellant here, urges that this action of the trial court was error.
Considering the case as we do, it presents a single question which can only be answered by an analysis of the evidence. If the evidence, construed most favorably to the plaintiffs, is insufficient to form "a basis for a verdict for plaintiffs, the court erred in submitting the case to the jury. We agree with the contention presented by appellant that the court should have directed a verdict in its favor at the close of the evidence. While we are of opinion that defendant’s motion made at the close of plaintiffs’ evidence should have been granted, defendant’s introduction of evidence was a waiver of that motion and the court’s failure to grant it cannot be alleged as error on appeal. See Wigmore, Evidence (3d Ed. 1940) § 2496. However, defendant’s evidence in no way strengthened plaintiffs’ case and plaintiffs are in no better position as a result of it than they were at the termination of their own presentation.
Appellant’s streetcar was proceeding west in the 1200 block of C Street, Northeast, a one-way street thirty-two feet wide with a single streetcar track four feet eight inches wide laid in the center. Along side the south sidewalk and curb of the street was stacked furniture extending from in front of the premises 1209 C Street east to 1213 or 1215 C Street. Peggy Ann Gamble, an infant five years of age at the time of the accident, had been playing on the sidewalk along the south side of the street when she ran from the curb in front of the premises at 1209 C Street directly into the left front side of appellant’s streetcar.
Mrs. Massicotte, plaintiffs’ only eyewitness, testified that she was knocking at the door of 1209 C Street and that she turned around just in time to see the child “run directly into the trolley car”; that she saw the streetcar prior to the time it struck the child; that she “knew she (the child) was going to be hit with the streetcar”; that she wouldn’t estimate how far away the streetcar was when she saw the child start from the curb but that in reference to the furniture piled on the sidewalk the “streetcar might have been about maybe around 1213, 1211; it wasn’t very far”; that the child was running fast; that when she saw the child run off the curb she knew she was going to be hit because the trolley car was so close; that “she couldn’t escape if she was going to keep right on going”; that she did not become aware of the fact that brakes on the streetcar were being applied until after the child was hit; that she didn’t know how far the streetcar went after it struck the child before it came to a complete stop but that “it didn’t go very far.” Other witnesses for plaintiffs who came upon the scene after the accident happened testified that the child was lying, with respect to the streetcar, “just to the rear of the front trucks”, or “about mid-dleway of the car”; that the width of the houses along the street was from 12 to 14 feet (the exact measurement was not given) ; that the rear of the streetcar when stopped was at 1215 C Street; that the streetcar was about 35 feet long.
We are of opinion that the evidence adduced by plaintiffs, considered with all the inferences which justifiably can be drawn from it in their favor, is not sufficient to properly support a verdict for them. “When a plaintiff produces evidence that is consistent with an hypothesis that the defendant is not negligent, and also with one that he is, his proof tends to establish neither.” Gunning v. Cooley, 281 U.S. 90, 50 S.Ct. 231, 232, 74 L.Ed. 720; Kelly Furniture Co. v. Washington Ry., 64 App.D.C. 215, 76 F.2d 985; Ewing v. Goode, C. C., 78 F. 442, 444.
One undisputed fact which is entirely apart from the estimates by witnesses of speeds and distances, seems to answer the question of negligence by the motorman. The child, running fast, darted from behind the stack of furniture and ran a little less than thirteen feet into the side of the car just to the rear of its curved front. So the maximum time which the motorman had to avoid the accident was a little less than the time it took the child to run fast the thirteen feet. We say a little less time, because to avoid the accident he would have had to stop the car before it reached the spot where the child was, which, as we have said, was slightly to the rear of the front of the car. Anything less than a complete stop before the spot of the collision would have brought the child into the front of the car instead of into its side. We cannot see how the motorman could possibly be held to have been negligent in failing to stop in so brief a moment of time.
It was strongly urged on the part of ap-pellee that a child of five could not be guilty of contributory negligence. There is conflict of authority on this point and we understand the rule to be that the question of the ability of a child of five to be guilty of contributory negligence depends on the child and the degree of intelligence it is shown to have possessed. But where, as here, the evidence as to primary negligence produced by the plaintiff is so weak that to submit it to a jury would be to allow them to speculate as to the defendant’s negligence the question of contributory negligence does not enter and the court should rightfully exercise its lawful discretion and withhold that evidence from the jury. Appellant’s motion for a directed verdict made at the conclusion of the evidence should have been granted. Failing this, the court should have granted appellant’s motion for judgment notwithstanding the verdict. The judgment is reversed and the case remanded with instructions to dismiss the complaint. See Cone v. West Virginia Pulp and Paper Co., 67 S.Ct. 752.
Reversed.
Question: What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number.
Answer:
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songer_trialpro
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on procedure at trial favor the appellant?" This includes jury instructions and motions for directed verdicts made during trial. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
UNITED STATES of America, v. James J. YOUNG, Appellant.
No. 24161.
United States Court of Appeals, District of Columbia Circuit.
Argued June 14, 1971.
Decided March 30, 1972.
Rehearing Denied May 31, 1972.
Mr. Patrick W. Lee, Washington, D. C. (appointed by this court), for appellant.
Mr. John R. Dugan, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., at the time the brief was filed, and John A. Terry and William H. Collins, Jr., Asst. U. S. Attys., were on the brief, for appellee.
Before LEVENTHAL, ROBINSON and WILKEY, Circuit Judges.
LEVENTHAL, Circuit Judge:
Appellant was indicted for first degree murder and convicted of the lesser-included offense of second degree murder. His appeal claims that questions and remarks by the prosecutor in cross-examination and argument to the jury were improper and, in the absence of corrective instructions, deprived him of a fair trial. We affirm.
I. THE FACTS
The Government's Case
Margaret May related the following events: On Thursday, August 14, 1969, decedent Willie R. Jefferson participated in a card game held in the yard in back of his apartment building with appellant James J. Young and others. All the participants were drinking. The game began around 2:30 p. m. and continued until 6:30 or 6:45 p. m. Shortly thereafter Jefferson, the big winner, offered to return his winnings to the others because he didn’t need the money. As he started to hand the money back to the players Mr. Young “snatched” his share. Jefferson then “reached after Mr. Young, and Mr. Young got back,” and Jefferson “told him if he do that again, he would have to get his gun.” Mr. Young said he would likewise get his gun. Both men then left.
Jefferson entered his apartment, on the ground floor. Young went out onto the street and returned fifteen minutes later, came into the hallway, and knocked on Jefferson’s apartment door. He had a gun in his right hand. Mrs. May’s account continues:
He knocked on Mr. Jefferson’s door real loud, and the door didn’t open right then; so he took his foot and kicked the man’s door in; and at that time, the door flew open; Mr. Jefferson at the door; and that is when Mr. Young asked, told him, you thought I wouldn’t come back, and called him a bad word. [M.F.]
She then saw and heard Young shoot Jefferson three times and run out of the building. Jefferson had said nothing, had made no movement, and had nothing in his hand. This account was corroborated.
The Alibi Defense
Appellant testified: He, Jefferson, and Mary Young played the entire game until it ended at 5:00 p. m. He testified that Jefferson had lost all his money and had to borrow from friends to continue. At one point Young caught Jefferson cheating, “and so I told him, if you all going to start cheating, I might as well get out the game.” Appellant denied getting angry or arguing with Jefferson; he simply left the game. On the way over to pick up his car, he was met by Rudolph Ford, who had previously left the card game and gotten the car. They went to two bars until 7:00 p. m. and thereafter they went to Ford’s apartment where they spent the rest of the night. Appellant learned of Jefferson’s death by shooting on Sunday, August 17, the day he was arrested.
Edna Mae Green testified that she had seen Rudolph Ford and Clinton Lee leave the game around 4:30 p. m.; appellant left the game a short time later and was not present when Jefferson later left the game.
Rudolph Ford, the principal alibi witness, testified to the same effect as appellant Young, with some difference in details. He said he and Young had left their construction job early on August 14, cashed their paychecks at a liquor store, and gone to Mrs. Green’s house where they decided to play cards. Ford left the game three times, first to buy some liquor, second, to check on Young’s car which was being repaired, but was not yet finished, and the third time to pick the car up. He drove back to the area of the game at about 5:00 p. m. and picked up Young, who had left the game and was waiting for Ford at a corner.
Ford testified that he was with appellant until the next morning. They visited two bars and then spent the rest of the night at Ford’s house in the company of Ford’s relatives. Ford learned at work the next day that Jefferson had been shot. On Monday, August 18, he learned that Young was charged with shooting someone. When he visited Young in jail, he learned that Young was charged with shooting Jefferson.
II. PROSECUTOR’S CROSS-EXAMINATION OF ALIBI WITNESS AND REMARKS TO JURY
This trial presented the jury with a classic conflict, two irreconcilable lines of testimony. Appellant claims that the prosecution overstepped permissible bounds in attempting to discredit his alibi defense.
A. Failure of Alibi Witness Ford to Contact the Police
1. During his cross-examination of Rudolph Ford, the prosecutor asked:
Q. By the way, sir, you didn’t give a statement to the police did you?
A. No, sir, I didn’t.
Q. You didn’t give a typewritten statement the next day like some of the other witnesses, did you?
A. No, sir, because I don’t know nothing about it.
The trial judge interrupted, warning,
There is no indication Mr. [Prosecutor] this man was interviewed by the police. I think that question is not appropriate unless there is some indication that police interviewed him.
The prosecutor then asked whether Ford had contacted the police; he had not. In his argument to the jury, the prosecutor, seeking to portray Ford’s alibi testimony as a fabrication, put it:
A man who never gave a statement, his name never comes up in the investigation, all of a sudden he shows up and testifies that the Defendant was with him.
* -x- -X- * *x- *
Rudolph Ford, who never, even talked to the police, never even gave a statement, he tries to criticize Margaret May for not reporting it, but she gave a statement the next day. Ford never gave a statement. What kind of witness is that? That is the alibi defense.
We agree with the trial judge that it was improper for the prosecutor to examine the witness on whether he had given a statement to the police. And it was certainly improper for the prosecutor, after being cautioned, to make this point twice in his summation to the jury.
The same conclusion applies to the prosecutor’s questions and comment concerning the witness’s failure to contact the police. Ford was not interviewed by the police, and if, as he claimed, he did not know that appellant was charged with shooting Jefferson until he visited him in jail, he would not have had any reason to go to the police previously.
Nor is there any reasonable inference from Ford’s failure to contact the police after he learned of the charge against appellant. When a person is approached by the police for questioning, our cases have “commented on the duty of every person to cooperate with police and to respond unless a Fifth Amendment claim is involved.” Coates v. United States, 134 U.S.App.D.C. 97, 100, 413 F.2d 371, 374 (1969); see also Hicks v. United States, 127 U.S.App.D.C. 209, 212, 382 F.2d 158, 161 (1967). But no inference can be drawn from the fact that a witness did not go to the police when he learns they have made an arrest of a defendant for a crime committed at a time for which he can provide alibi testimony. He might reasonably presume that it was sufficient for him to relate his knowledge to the attorney retained or appointed to represent defendant.
However, we do not think this improper questioning and comment was so prejudicial as to require reversal. As to the question concerning failure to contact the police, there was neither objection or warning. There was no repetition. Ford gave a satisfactory explanation. We see no substantial prejudice; in all likelihood the jury took it for a strained argument by the prosecution. As Judge Danaher has commented, prosecutors often overtry their cases, and in their zeal say things that are regrettable but are not significant in terms of influencing a conviction. Turner v. United States, 135 U.S.App.D.C. 59, 62, 416 F.2d 815, 818 (1969).
B. Prosecution Ref erenees to “Missing Witnesses”
Appellant’s major attack concerns efforts by the prosecutor to discredit his alibi by inferences to be drawn from the absence of persons mentioned in the alibi account.
On cross-examination, after appellant testified that one Hazel Davis drove him to the card game, the prosecutor asked “Is he here now?” and “Did you make any efforts to get him here?” Referring to Young’s testimony that he cashed his paycheck at a liquor store, the prosecutor asked:
“Q: This man that cashed the cheek at the liquor store, did you make any efforts to get him here?
A: For what reason.
Q: Can you answer the question, yes or no?
A: I can’t answer.”
THE COURT: I think that is a proper answer. What possible reason would he have to have him here? I think the question is quite inappropriate and if an objection was made I would sustain it.
******
[At bench conference.]
THE COURT: I have indicated to you before, Mr. _, not only on this trial but on other trials, that I am not favorably disposed toward asking a man who is incarcerated in jail what efforts he has made to get witnesses present. The question of the choice of witnesses is a matter for the tactics and determination of his counsel in connection with the trial. I think it carries to the jury perhaps an implication that he had some obligation to bring these people where, frankly, I can’t see where the testimony would be material.
* * * * * *
“He doesn’t have to corroborate times that are not alibi times. You are talking about what he did in the morning in terms of whether he got two beers or six beers, which has nothing to do with alibi. I think in any event it is counsel’s obligation to make those determinations and not an incarcerated man with no particular legal experience.”
In cross-examining Rudolph Ford, who had testified that he and appellant went to a bar after leaving the card game, the prosecutor asked if he remembered the name and address of the bar. Ford was not sure. The trial judge sustained defense counsel’s objection to the question “You never went back and checked out what address it was?” and observed, “There is no requirement he do that.” Later, after Ford said that he had talked briefly with the bar’s proprietor, the prosecutor asked, “By the way, sir, that proprietor is not here at this trial, is he?” The trial judge sustained the defense objection, saying “He has no obligation in any regard.”
The prosecutor had another occasion to advert to missing witnesses when he focused on Ford’s testimony that Young went to Ford’s home after they left the bars and stayed there all night. The prosecutor asked Ford who else was at the house that night and Ford gave the names of three witnesses: his cousin, aunt and aunt’s boyfriend, and said that they all sat together talking. (Tr. 252-253). No question was raised in advance of summation to the jury concerning the presence or absence of these witnesses. But in closing argument to the jury the prosecutor said:
“You saw Ford. Are you going to believe him ? Ford works with the Defendant, has worked with him, he said, for a couple of years. Are you going to believe him? With the Defendant. Poor recollection of times, places, names, people. He says they talked to people in the two bars. Doesn’t recall any of the names. People not here. He says that the Defendant went to his house and stayed there that night. Three of his relatives were there that night when they came. You haven’t heard from them, have you? Are you going to believe Ford?” (Emphasis supplied.)
It is the rule, applicable in criminal as well as civil cases, “if a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it permits an inference that the testimony, if produced, would have been unfavorable.” Both comment by counsel and instruction by the judge as to absent witnesses is prohibited if either of the conditions is lacking, that the witness was peculiarly within the power of the party to produce, and that his testimony would elucidate the transaction. See Wynn v. United States, 130 U.S.App.D.C. 60, 397 F.2d 621 (1967); Pennewell v. United States, 122 U.S.App.D.C. 332, 353 F.2d 870 (1965); Richards v. United States, 107 U.S.App.D.C. 197, 199-200, 275 F.2d 655, 657-658, cert. denied, 363 U.S. 815, 80 5. Ct. 1253, 4 L.Ed.2d 1155 (1960).
Plainly the persons referred to by appellant as the man in the liquor store who cashed the paychecks, and the man (Hazel Davis) who drove them earlier in the afternoon, were not “witnesses whose testimony would elucidate the transaction” within the meaning of the missing-witness rule for their testimony would barely have been relevant and certainly could not be considered material. These witnesses encountered Young and Ford well before Young and Ford were admittedly present at the card game. The trial judge was correct in his comments. Their testimony was so remote in time as not to be material, and the Government would not have been entitled to a missing witness instruction. It was not proper for the prosecutor to make a comment during his summation in order to persuade the jury to draw an inference against defendant from the fact that they had not been called by the defense as witnesses.
If a prosecutor engages in prejudicial summation it is not dispositive that defense counsel did not object, especially since objection cannot always procure a realistic cure for the damage. The question is one of degree, and it counts against this prosecutor that he made his improper comment after having been admonished by the judge to abstain, from this line. Nor is it decisive that part of the prosecutor’s argument was justified — such as the comment on the failure of appellant and Ford to remember the names of the persons they met in the bars. The intermesh of the proper may actually escalate the impact of the improper, just as some truth may bait the hook for the impact of a partial lie or libel.
However we do not discern that the references to these relatively remote witnesses wrought the kind of prejudice which warrants reversal. This is not the kind of repetition of references to insignificant absences that “cumulate to the point of distortion.” These references, like the prosecutor’s questions and comment concerning Ford’s failure to contact the police and give a statement, are more fairly condemnable for their weakness than prejudicial impact, a possibility that was further muted by the fact that the trial judge made it clear to the jury that this approach of the prosecutor “is quite inappropriate.” This matter is appropriately left by treating it as not ground for reversal but as context wherein more weight may accrue to other objectionable comments of prosecutor.
We now consider the three persons who, Ford said, saw Young at Ford’s house. Their testimony would have been material, indeed would have provided important corroboration of the alibi if they had testified in court, and hence would have “elucidated” the issues. Ford’s testimony was bolstered by the specific detail provided by his naming his relatives who were present that night, and a desire on the part of the prosecution to comment on their absence is understandable.
We turn to the prosecutor's comments concerning Ford’s relatives, for we cannot bypass these on the claim of harmless error. We begin with the fact that he did not follow the specific procedures prescribed by this court to be followed before a party may comment on the absence of witnesses from the trial, in order to avoid the prejudice which can result from improper use of such comment. Surely it should not be put to the jury, as either instruction or argument, that an inference should be drawn from a party’s failure to produce witnesses if the judge concludes that the party was powerless to do so, Gass v. United States, 135 U.S.App.D.C. 11, 19, 416 F.2d 767, 775 (1969); Wynn v. United States, supra, 130 U.S.App.D.C. at 64 and cases at n. 19, 397 F.2d at 625 n. 19.
To avoid prejudicial misuse of comment on a party’s failure to call witnesses we required in Gass, supra, 135 U.S.App.D.C. at 19-20, 416 F.2d at 775-776:
. that for the future when counsel, either for the prosecution or the defense, intends to argue to the jury for an inference to be derived from the absence of a witness, an advance ruling from the trial court should be sought and obtained.
The Government’s brief acknowledges the prosecutor’s failure to follow the Gass procedure, but seeks to soften the departure by referring to the language in Gass as a “suggestion.” (Br. 14). It was more than a suggestion; it stated a rule of practice to be followed unless there is good reason to the contrary. If the prosecutor’s failure to follow the Gass procedure means that he is now unable to show the permissibility of a comment he could have established at the time of trial, he must abide the consequences.
The prosecutor’s comment would have been improper as to any witnesses defendant would have been powerless to produce at trial, e. g., because he did not know their whereabouts or could not make them amenable to subpoena. We take into account, as the court did in Gass, that defense trial counsel did not raise an objection, and that several witnesses were involved. In Gass there were eight witnesses, and the court put it as likely that at least one of them was available, a circumstance supporting the prosecutor’s comment to that extent. In the case at bar, there are three witnesses, and the overall context is one in which several of the card players could not be found by the marshal (see note 1).
Defendant’s counsel on appeal would have it that the prosecutor erred, by failing to follow the Gass procedure; that the burden of overcoming that error cannot be put on defense trial counsel, by requiring an objection; and in sum the proper remedy is reversal. We cannot accept this approach. Even if there is plain error, there must be some determination that it was prejudicial. Here the plain error was procedural, and reversal would require an appraisal that if the correct procedure had been followed the comment would not have been permitted. If we visualized both the possibility of plain error in the comment and reason for lack of defense objection, the course that would be indicated for this court is a remand, for further inquiry into the underlying facts, as was done in Stewart v. United States, 135 U.S.App.D.C. 274, 418 F.2d 1110 (1969), where we retained jurisdiction and ordered that the pertinent information be developed and transmitted to us in the form of a supplemental record.
In the case at bar, however, defense trial counsel did not shrink from presenting objections to the prosecutor’s summation which he thought appropriate; and indeed he made one shortly prior to these references. If he were concerned lest he emphasize objectionable matters in the mind of the jury, he could have sought a bench conference.
What in the last analysis seems decisive in this case is that defense trial counsel not only failed to object to the prosecutor’s references, he tried to use these as a predicate for offering his own comments, in argument, to the absence of Clinton Lee and Johnny Edwards. The fact that his maneuver was properly rejected, since the Government had tried but had been unable to subpoena these men, does not lessen the impact of his earlier silence. In the circumstances, including the fact that although the witnesses were not linked to defendant directly they were relatives of his friend, we think the probability of a substantial claim of defense inability to call or subpoena Ford’s relatives, is not sufficient, given the failure to object, the attempt to make tactical use of the reference, the lack of any motion in the trial court or this court, supported by a meaningful affidavit of such defense inability, to result in a reversal or remand in the interest of justice.
Our conclusion that the uncontested comments of the prosecutor should not occasion reversal is fortified by our appraisal that it is most unlikely that the defense could have succeeded in any alternative contention that the prosecutor’s comment be hushed on the ground that even assuming the witnesses were available to the defense they were equally available to the prosecution. We are aware that in Brown v. United States, 134 U.S.App.D.C. 269, 414 F.2d 1165 (1969), the court said that a missing witness instruction cannot be given against a defendant unless there is a showing that the witness was not available to be subpoenaed by the Government. But Brown is subject to the qualification that “availability” of a witness to the Government, as to any other party, must be judged “practically as well as physically.” Stewart v. United States, 135 U.S.App. D.C. 274, 279, 418 F.2d 1110, 1115 (1969) ; Burgess v. United States, 142 U.S.App.D.C. 198, 440 F.2d 226 (1970). Thus, no inference may arise from the failure to call a witness to give testimony implicating himself And whether a person is to be regarded as equally available to both sides may depend not only on physical availability but on his “relationship” to the parties. The central question is whether from all the circumstances an inference of unfavorable testimony from an absent witness is a natural and reasonable one. United States v. Craven, 147 U.S.App.D.C. 383, 458 F.2d 802 (1972).
We are aware that the foregoing does not by any means answer all of the questions that arise with respect to missing witnesses. But it serves to assure us concerning the present case, that it presents a context which makes it improbable that any serious claim of unfairness or prejudice would lie against the prosecutor for comment on the failure of defense to call Ford’s relatives, even assuming it could have been established that the Government had opportunity to obtain their attendance by process.
We also take note that this was a case where there was no instruction by the judge. This factor merits some exposition. There is a difference b.etween an instruction, which has the weight of law, and argument of counsel, which is only that. Argument of counsel is limited, however, by requirements such as that • it must not be in conflict with the law to be declared by the trial judge and it must not taint the trial with unfairness. As our rulings in Wynn and PenneweU make clear, when the judge concludes that the witness was not peculiarly available to a party, or that his testimony would not be such as to elucidate the transaction, comment of opposing counsel arguing for an inference from his absence is contrary to law and unfair, and cannot be permitted in argument to the jury. We suggested in Wynn and required in Gass that a lawyer proposing to comment or. absence of a witness first bring the matter to the attention of the trial judge, in order to avoid unnecessary prejudicial error in the case.
We also pointed out in Gass that ordinarily a judge permitting argument by counsel should prepare an instruction concerning the inference so as to avoid the risk of prejudicial error and enable the jury to discharge its functions. The judge has the duty to give an instruction if he concludes that the case is clear for a missing witness inference against a party, e. g., the party had the physical ability to locate and produce the witness, and there was such a relationship, in legal status or on the facts as claimed by the party as to make it natural to except the party to have called the witness. But in the in-between case where each side has the physical capacity to locate and produce the witness, and it is debatable which side might more naturally have been expected to call the witness, there may be latitude for the judge to leave the matter to debate without an instruction, simply permitting each counsel to argue to the jury concerning the “natural” inference of fact to be drawn. Permitting the issue to be debated in argument generates a duty to provide an elucidating instruction if one is sought; it is only in the context of lack of request that we contemplate some latitude to omit an instruction.
The basis for omitting the instruction, though ordinarily provided pursuant to Gass, would be the conclusion of the judge, first, that even in the absence of instruction the situation is sufficiently clear cut that counsel’s argument can be fairly understood and appraised by the jury, without prejudicial impact; and second, that the preparation of a careful instruction to state the ground rules for appraising counsel’s argument would be unnecessary and time-consuming; and, possibly, third, that such instruction might even be distracting, conceivably counter-productive, leading a jury, respectful of the court’s concerns, to focus unduly on the non-evidence rather than the evidence in the case.
In many cases, perhaps most cases, however, the trial judge may conclude that an instruction would be helpful, and toward that end we have included in the Appendix to this opinion, a specimen instruction which the trial judge may find it useful to use or adapt.
In this case there was argument without an instruction, and the context of the argument was such that we discern no prejudicial error.
Affirmed.
APPENDIX
Specimen Instruction on Absent Witnesses
Counsel have argued that you should draw an inference from the absence of certain witnesses. The court has determined that each side had the ability to produce the witnesses. If you conclude that the testimony of a witness would have cast significant light on the issues, and that it would have been natural for one of the parties to have called that witness in support of his presentation if the facts known by the witness had been favorable to the position of that party, you may infer that if the witness had been called he would have given testimony that would have been unfavorable to that party which failed to call him. But you are not required to draw that inference. And if you think that it would have been equally natural for each of the parties to have called the witness, and that each might equally have been expected to do so, then you may rightly conclude that since an equal inference could be drawn against each party, they cancel each other out. And if the matter seems doubtful, then you may rightly decide that no inference should be drawn from the absence of the witness. In that event, your verdict should be based on the evidence that was presented in court, and should not be affected by the witnesses who were not called.
. The other players were Tommy Davis, who left the game at about 4:00 p. m., John Edwards, who replaced Davis, Louise Young, and another man who may or may not have been Rudolph Ford. Also present, but not participating in the game, were Clinton Lee and Etta (Edna) Mae Green.
The card game was in the backyard of 1835 Capitol Avenue, N.E., which adjoined the lot of 1834 West Virginia Avenue, N.E., where both deceased and Mrs. May had-first floor apartments.
. By two other eyewitnesses, Mrs. May’s two daughters who were present in and around the building that day. All had seen Young before. The Government put in evidence a stipulation that subpoenas were issued to Clinton Lee, Louise Young, Johnny Edwards and Carlton Bradshaw, and none could be located by the Marshal.
. Young said he and Ford quit work early because it was raining; Ford said it was because of the heat. Young said that they left work in a car owned by Hazel Davis; his own car had been taken to the mechanic the night before August 14. Ford testified that they left work in appellant’s car and had taken it to the mechanic that afternoon.
. During cross-examination Ford testified that on three occasions lie talked to defendant in jail about his difficulty; that defendant did not say he wanted Ford to be a witness; that defendant did not discuss Ford’s testimony with him. But Ford must have had a conference with defendant’s attorney after that counsel learned from defendant, or perhaps Ford direct, of Ford’s pertinent knowledge.
. Graves v. United States, 150 U.S. 118, 121, 14 S.Ct. 40, 37 L.Ed. 1021 (1894). See generally 2 J. Wigmore, Evidence § 287 at 286 (3rd ed. 1940).
. King v. United States, 125 U.S.App.D.C. 318, 331, 372 F.2d 383, 395 (1966).
. Afro-American Pub. Co. v. Jaffe, 125 U.S.App.D.C. 70, 76, 366 F.2d 649, 655 (en banc, 1966).
. United States v. Free, 141 U.S.App.D.C. 198, 202, 437 F.2d 631, 636 (1970).
. The Government argues that even if these prosecutor references were improper the error was harmless. That approach is available where the uncontested facts confirm defendant’s guilt, e. g., United States v. Jones, 140 U.S.App.D.C. 1, 433 F.2d 1107 (Jan. 27, 1970) (fingerprints on a rifled money box not accessible to the public), or where there is physical corroboration, like possession of stolen property. But here the strong Government cíase of testimony of eyewitnesses as to defendant’s presence at the time of death is matched by testimony of other eyewitnesses, as to his presence elsewhere, which in principle stand on the same plane. In this situation we cannot say that comment on missing witnesses could not have been significant,
. Stewart v. United States, supp. opin., 185 U.S.App.D.C. 274, 279, 418 F.2d 1110, 1115 (1969).
. In this court the motion could have shown ground to request a Stewart-type remand to amplify the record.
. The court stated that this showing must take into account the Government’s opportunity to call the witness after learning of his identity before or during trial. We need not pursue the issue of “availability” of a witness whose identity was learned only late, see United States v. Stevenson, 138 U.S.App.D.C. 10, 13-14, 424 F.2d 923, 926-927 (1970), especially in view of the District Court’s new Rule 87, Defense of Alibi, promulgated October 12, 1970, after the trial in the instant case was concluded. This rule requires a defendant who proposes to offer the defense of alibi to serve notice of his intention, within 20 days after the prosecutor serves a demand stating the time, date and place at which the alleged offense was committed. Defendant must state the places he claims to have been and the names and addresses of witnesses upon whom he intends to rely to establish the alibi.
. The court noted that McClanahan v. United States, 230 F.2d 919, 926 (5th Cir. 1956) stated that availability is to be determined not from a witness’s mere physical presence or accessibility or subpoena but may also depend on bis relationship to the parties, and the nature of the testimony he may be expected to give.
. Bowles v. United States, 142 U.S.App.D.C. 26, 439 F.2d 536, 541 (en banc, 1970) ; Pennewell v. United States, 122 U.S.App.D.C. 332, 333, 353 F.2d 870, 871 (1965).
. Milton v. United States, 71 App.D.C. 394, 397, 110 F.2d 556, 559 (1940) ; Egan v. United States, 52 App.D.C. 384, 396, 287 F. 958, 970 (1923).
Thus, a historic “relationship” settled by a long established rule, see Gallagher v. Hastings, 21 App.D.C. 88, 98 (1903), renders comment permissible on the failure of a party to call his employee, notwithstanding the other party’s ability to secure attendance and testimony by process, since the witness is regarded, ordinarily, as peculiarly available to the employer, by virtue of his likely favorable disposition to the employer, and the employer’s better opportunity to ascertain his testimony in advance of taking the stand. See Note, 68 A.L.R.2d 1072 (1957).
. While we accept this aspect of Judge Fahy’s opinion in Burgess, see 142 U.S. App.D.C. at 209, 440 F.2d at 235, we are not so clear concerning Judge Fahy’s distinction which would permit some comment in counsel’s argument on the fact that a witness is missing so long as he stopped short of saying that an inference could be drawn that the testimony of the absent witness would be adverse to the other side had he been called. Whether or not a lawyer explicitly uses the word “inference,” when his comment, as in •argument to the jury, emphasizes the fact that witnesses were not called by the other party, he is, ordinai’ily at least, in fact arguing to the jury that they may conclude that the testimony of these witnesses would be adverse to the party who failed to call them.
. See Gass v. United States, supra, 135 U.S.App.D.C. at 19-20, 416 F.2d at 775-776.
. Presumably this is the situation that led Wigmore and eminent judges to say that even when a witness is “available” to both parties inferences may be drawn against both parties, with the strength of the inference against either depending on the circumstances. 2 Wigmore, Evidence § 288; United States v. Llamas, 280 F.2d 392 (2d Cir. 1960) (Clark, J.) ; United States v. Jackson, 257 F.2d 41 (3d Cir. 1958) (Goodrich, J.) ; United States v. Beekman, 155 F.2d 580 (2d Cir. 1946) (Frank, J.).
We noted the existence of this approach (a) in Billeci v. United States, 87 U.S. App.D.C. 274, 278-279, 184 F.2d 394, 398-399 (1950), where we reversed an instruction that advised the jury solely of an inference that might be drawn against defendant, and (b) in United States v. Free, 141 U.S.App.D.C. 198, 202-203, 437 F.2d 631, 635-636 (1970), where we permitted the prosecutor to ask defendant where certain persons were, provided the questioning was not handled unfairly.
In the case at bar, the trial judge correctly rejected any questioning of defendant as to why witnesses were not present, since this was a matter for defense counsel, but permitted questions as to whether defendant gave names of persons involved to his counsel.
. The judge would consider this issue in the pre-summation conference pursuant to Gass, assuming that opposing counsel has not brought forward any matters that would render comment by counsel unfair. The exact content of any instruction may have to be “tailored” to the case.
The judge has discretion to preclude absent witness comment by either counsel, though the matter is debatable, when he concludes that there would be need for ground rules in instructions to avoid speculation and unfairness, and that the entire matter is a disproportionate burden on the trial. This may be likened to his discretion to limit proof and consideration of matters .that are collateral.
Question: Did the court's ruling on procedure at trial favor the appellant? This includes jury instructions and motions for directed verdicts made during trial.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_respond1_1_2
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D
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed 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".
UNITED STATES of America, Appellant, v. R. H. TAYLOR et al., Appellees.
No. 20516.
United States Court of Appeals Fifth Circuit.
June 22, 1964.
Adhered to on Rehearing Sept. 14, 1964.
See 336 F.2d 149.
Robert E. Hauberg, U. S. Atty., E. R. Holmes, Jr., Asst. U. S. Atty., Jackson, Miss., Alan S. Rosenthal, Stephen B. Swartz, Attys., Dept. of Justice, Washington, D. C., John W. Douglas, Asst. Atty. Gen., for appellant.
Vardeman S. Dunn, Jackson, Miss., Bruce C. Aultman, Hattiesburg, Miss., William H. Cox, Jr., Jackson, Miss., Sim-rall, Aultman & Pope, Hattiesburg, Miss., Cox, Dunn & Clark, Jackson, Miss., of counsel, for appellees.
Before HUTCHESON and GEWIN, Circuit Judges, and HOOPER, District Judge.
HUTCHESON, Circuit Judge.
The United States as assignee of its contractor’s claims and demands against a subcontractor for contractual overpay-ments instituted this action for recovery on those claims. An order granting appellee-subcontractor’s motion for summary judgment was entered, and the United States appeals that order. The order was in error. The United States’ motion for summary judgment should have been granted. On this appeal the primary questions before the court are, what law applies to the interpretation of a disputes clause in a subcontract under a contract to perform work on a government project and how such a clause should be interpreted.
Peter Keiwit Sons contracted with the United States Government acting through the Atomic Energy Commission for the construction of a gaseous diffusion plant near Portsmouth, Ohio. On March 3, 1953, appellee TaylorWheless entered into a subcontract with Keiwit to remove and grade dirt at the plant site. The subcontract required that payment should be made to the subcontractor on the basis of the number of cubic yards of material acceptably excavated. The amount of material excavated was to be determined by measuring it “in original position from cross-sections taken before stripping and after excavation and computed by the average end area method.” The parties later orally agreed to substitute the load count method for the average end method of material measurement as a practical way of making periodic quantity determinations upon which to base progress payments.
The work under the subcontract was completed in November, 1953. Keiwit then computed by the average end area method the work performed by Taylor-Wheless. Based on this computation in November, 1954, Keiwit issued Taylor-Wheless a final pay estimate indicating that payments made by the load count method exceeded those due under the average end area method, after subtracting retainage, by approximately $383,000.00. Taylor-Wheless rejected this estimate as inaccurate. Keiwit requested the Atomic Energy Commission to employ an independent survey group to determine if there was an overpayment. Such a group was employed, and they concluded that under the average end area method the overpayment less retainages amounted to $337,973.52. This computation presented to Taylor-Wheless on July 25, 1955, was also refused as inaccurate.
The parties failed to resolve their dispute and Keiwit referred the dispute to the Commission’s General Manager of Oak Ridge Operations under the provisions of the subcontract’s disputes clause. The clause was subsequently amended by agreement between the parties to provide for disputes determination by the Commission. The dispute was, therefore transferred to the Atomic Energy Commission Advisory Board of Contract Appeals (Board). No hearing had been held prior to this transfer.
The Board, after a hearing, found that after Keiwit’s initial submission of the dispute, as prescribed by the disputes clause of the contract, Keiwit and Taylor-Wheless agreed to modify the disputes clause by agreeing to submit disputes to the Commission rather than the Manager of Oak Ridge Operations. They further found that Taylor-Wheless and its attorney suggested times and places of hearing, that the chairman set a hear-' ing, that Taylor-Wheless indicated it was preparing for the hearing, agreed to a postponement of the hearing date, requested further postponements of the hearing, and, after failing to negotiate a settlement with Keiwit in December, 1956, objected to the jurisdiction of the Board and withdrew from the proceedings.
The Board proceeded to determine the issue as to overpayment under the average end area method of computation. Taylor-Wheless did not participate in the hearing. The Board did consider a document previously presented Keiwit by Taylor-Wheless entitled “Statement in Support of Taylor-Wheless Co.’s Final Estimate”. The document attempted to justify accuracy of the load count computations and attacked the accuracy of the average end area computations made by Keiwit prior to the independent survey. After considering oral and documentary evidence and Keiwit’s brief, the Board found an overpayment in the amount determined by the independent surveyors. They relied on this survey since they found that there was no showing that the final figures reflected inaccurate application of the computation principle called for in the contract, and there was adequate basis in the record for finding that the computations were accurate. This fact finding of an overpayment of $337,973.52 was adopted by the Deputy General Manager of the Atomic Energy Commission on April 8, 1958.
On August 4, 1958, the Commission’s Portsmouth Area Manager, as Contracting Officer, determined Keiwit’s overpayment to Taylor-Wheless was an allowable cost and discharged Keiwit from any obligation with respect to government funds advanced for these payments. On August 19, 1958, Keiwit assigned its claims for overpayment against Taylor-Wheless to the United States. The United States instituted this action in the district court praying for judgment in the amount of the disputes award on both the decision of the Board and the underlying claim. Taylor-Wheless moved to dismiss, then moved for summary judgment on the grounds that: withdrawal from the disputes procedure invalidated the award; the Atomic Energy Commission and not the Board was the proper hearing agency; the assignment was invalid and unenforceable; and, finally, the suit constituted a suit on an implied contract and was, therefore, barred by the Mississippi Three Year Statute of Limitations. The United States moved for summary judgment on the grounds that the award and the underlying claim were valid, viable, and enforceable. The court granted the motion of Taylor-Wheless and denied that of the United States.
The court held that: the parties had entered into an arbitration agreement; this was a remedial rather than a substantive matter; and the law of Mississippi would apply to the enforcement of the agreement in a suit such as this in which the government claimed as as-signee. Under Mississippi law the court held that “a party has a complete right, to withdraw from arbitration proceedings any time prior to the making of an award”. Therefore, the court reasoned, the award was invalid. Both parties admit that this is an accurate statement, of the law of Mississippi. They both rely on McClendon v. Shutt, 237 Miss. 703, 115 So.2d 740 (1959) and Machine Prod. Co. v. Prairie Local No. 1538, 230 Miss. 809, 94 So.2d 344, 95 So.2d 763 (1957).
The government insists, however, that federal law applied to the interpretation of subcontracts executed under government contracts and that, under such law, administrative remedies must be exhausted before resort is made to the courts. They rely on American Pipe & Steel Corp. v. Firestone Tire & Rubber Co., 292 F.2d 640 (9th Cir. 1961). Here the court applied federal law to the interpretation of a subcontract under a federal contract since the area was one dominated by the sweep of federal statutes, the contracts were connected with national security, and, in this instance, a possible increase in the cost of national security was involved. The government is correct. The subcontract in this case would be interpreted by federal law under the sweeping command of the Firestone decision. It is not necessary, however, to paint with such a broad brush.
The trial court erred in treating the disputes clause as an agreement to arbitrate which ousted the court of jurisdiction and was historically viewed with a jealous eye by the courts. The clause is an ordinary disputes clause and so far as possible should be treated as similar clauses in contracts between the government and its contractors. The subcontract disputes clause reads as follows:
“ARTICLE VIII — DISPUTES
“Except as otherwise specifically provided in this subcontract any and all questions, issues, and disputes arising under this subcontract shall be settled if possible by negotiations and mutual agreement of the parties hereto, but in the event of their inability to agree, shall be decided by the Commission’s Manager of Oak Ridge Operations or his duly authorized representative, representatives or board, whose decision shall be final and conclusive on the parties. In the meantime, the Subcontractor shall diligently proceed with the contract as directed.”
This clause was modified by mutual agreement on February 28, 1956 substituting the word “Commissioner” for the words “Commission’s Manager of Oak Ridge Operations or his duly authorized representative, representatives or board”.
The disputes clause in a contract between the government and a contractor has long been recognized and approved as a valid provision for the determination of fact issues arising out of the contract. The purpose of the clause is to provide for a quick efficient determination of disputes on an administrative level, thus mitigating or avoiding large claims which might otherwise arise. The Atomic Energy Commission has made its disputes settlement procedure available to parties to subcontracts under contracts let by them. And the Commission regulations are written in terms of appeals by contractors of subcontractors.
In this case the parties to the subcontract have adopted this method of disputes determination between themselves. The subcontract is one in which many aspects of the relations between the contractor and the subcontractor were directly supervised by the government. The contract under which this subcontract was let was a cost type contract, and in fact the cost of the alleged contractual overpayment was assumed by the government as discussed above. The expeditious administrative determination of disputes arising under this contract is a matter of such importance to the federal government that the law controlling such determinations between government and prime contractors so far as applicable should apply to the construction of the disputes clause.
We are aware, as was the court in American Pipe and Steel Corp. v. Firestone Tire & Rubber Co., 292 F.2d 640 (9th Cir. 1961), that there is generally considered to be no privity between a subcontractor and the government when the issue is whether the subcontractor may sue the government. We also recognize the validity of opinions applying state law to the construction of contracts between government contractors and their subcontractors. However, it is clear that federal law will control contracts between private parties if there is sufficient federal interest. It is just such an interest that we have outlined above.
Though the question of what law applies to interpret a disputes clause in a subcontract has apparently never arisen before, federal courts have applied the body of law surrounding the interpretation of disputes clauses in government contracts to a similar clause in private subcontracts under government contracts. In United States v. United Enterprises, 226 F.2d 359 (5th Cir. 1955), a Miller Act dispute between a contractor and a subcontractor, the private subcontract contained a clause providing that the United States Engineer would determine construction and meaning of drawings and specifications. His determination was held binding on the subcontractor under the authority of United States v. Moorman, 338 U.S. 457, 70 S.Ct. 288 (1950) and United States v. Wunderlich, 342 U.S. 98, 72 S.Ct. 154, 96 L.Ed. 113 (1951) . Both of these cases involve the construction under federal law of the typical disputes clause in a government contract. In E. I. DuPont DeNemours & Co. v. Lyles & Lang Const. Co., 219 F.2d 328 (4th Cir. 1955), a disputes clause in a private subcontract under a government contract was held inapplicable to a dispute of law. The court cited as authority cases involving disputes clauses in government contracts, United States v. Wunderlich, 342 U.S. 98, 72 S.Ct. 154 (1951) and United States v. J. A. Holpuch Co., 328 U.S. 234, 66 S.Ct. 1000 (1946). The court also held that as an arbitration agreement the clause was inapplicable. Despite the language analyzing the clause as an arbitration agreement, the case has been cited as authority for the interpretation of disputes clauses in government contracts in United States v. Hamden Co-Operative Creamery Co., 297 F.2d 139 (2nd Cir. 1961) and Jacobs v. United States, 239 F.2d 459 (4th Cir. 1956). There are still more examples of the application of federal law to clauses in private subcontracts and the law of the private subcontract cases to government contract cases. In Liberty Products Corp. v. H. K. Ferguson Co., 90 F.Supp. 673 (E.D.N.Y.1950) a disputes clause in a private subcontract was held governed by United States v. Moorman, 338 U.S. 457, 70 S.Ct. 288 (1950) a public contract case; and in Moran Towing & Transp. Co. v. United States, 192 F.Supp. 855 (S.D.N.Y. 1960) the Liberty Products case was cited as authority for interpreting a disputes clause in a government contract case. In this opinion we merely verbalize what is implicit in the foregoing decisions.
The application of federal law to this disputes clause to determine the effect of withdrawal on the subsequent ex parte award is in this case made simple for us by the Atomic Energy Regulations governing disputes. The Regulations specifically provided that “In the event of the unexcused absence of a party at the time and place set for a hearing, the hearing will proceed and the appeal will be deemed as having been submitted without oral testimony or argument on behalf of that party.” Withdrawal does not invalidate the award any more than a withdrawal would invalidate a disputes determination by •an architect or engineer in a private ‘contract.
The remaining issues are easily «disposed of. The district court held that the amended disputes clause called for ‘determination by the commission and that representatives of the commission were eliminated from the clause by omitting reference to them in the amended version. The implication of this was that the Board which heard the dispute was not designated in the clause, and, 'therefore, its decision was of no effect. ‘The omission of the reference to representatives in the amended clause might be troublesome had not the subcontract (defined Commission as the Commission •or its duly authorized representatives. 'The Board was the proper administrative ■body to determine the dispute.
The district court held that the •assignment of all claims for overpayment to the government materially prejudiced "the rights of Taylor-Wheless, since Taylor-Wheless could not counter claim -against the government for retainage, nor did it have the same powers of 'discovery against the government to ■which it would have been entitled had the litigation been between parties to the contract. We need not determine the •accuracy of this holding. The short of it is that the subcontract provided that “This Subcontract, or any part thereof, is assignable to the Government by the •Contractor.” No matter what the case absent this clause in the subcontract, .given its presence the claims to overpayment were validly assigned to the gov■ernment.
The district court finally holds that the Mississippi three year statute of limitations bars recovery. Possibly applicable to the underlying claim, though we express no opinion on the matter, the statute is not applicable to a suit based on the disputes award made merely a few days more than one year before the assignment. The statute, of course, ceased to run at the time the claim is assigned to the government.
Taylor-Wheless in this court asserts that, since the disputes clause indicated that the subcontractor should proceed with the contract during the determination of disputes, the clause is applicable only to disputes arising during the performance of the contract. This is a much litigated issue. The better view is that the clause has no such limitation. Again, however, we do not have to determine this issue. The act of the parties in modifying the disputes clause after the termination of the work under the subcontract conclusively demonstrates that the clause was to apply to post completion disputes. This was so found by the Board.
There are no further legal issues to be determined and no facts in dispute. We hold that the judgment below must be reversed and the cause be remanded with directions to enter judgment for the United States.
The judgment of the district court is hereby reversed and remanded for further proceedings not inconsistent herewith.
. 2S U.S.C.A. § 1345.
. Appellees will be referred to as TaylorWheless for convenience. They are, in fact, R. H. Taylor and J. L. Taylor individually and as co-partners in Taylor-Wheless Co., and Taylor-Wheless Co., Inc., successor in business to the partnership.
. Taylor-Wheless has never asserted that there had been an inaccurate application of the end count principle by the independent surveyors.
. Sec. 729, Mass.Code (1942).
. United States v. Moorman, 338 U.S. 457, 460, 70 S.Ct. 288, 94 L.Ed. 256 (1950).
. United States v. Joseph A. Holpuch, 328 U.S. 234, 239, 66 S.Ct. 1000, 90 L.Ed. 1192 (1946).
. 10 C.F.R. Sec. 3.1 (1959) (In effect during all periods here pertinent). See Cuneo, Disputes Between Sub-Contractors and Prime Contractors Under Government Contracts, 16 Fed.Bar J. 246 (1956).
. 10 C.F.R. Secs. 3.1 et seq. (1959) (In effect- during all here pertinent).
. “SUBCONTRACT ART. II The Commission had to approve any change in the scope of the subcontract that the contractor might wish to make. The Commission had to approve any equitable adjustment in the cost of the subcontract due to such changes.
“ART. IV Contractor’s findings of material changes in condition that would re-suit in an increase or decrease in cost to the subcontractor must be concurred in by the Commission.
“ART. VI The disputes clause quoted in Text.
“ART. IX Neither the subcontractor, nor any interest therein, or claim thereunder, nor any sum or sums which may be due thereunder, shall be assigned without the written approval of the contractor and the Commission.
“ART. XI Subject to the approval of the Commission the contractor could terminate the subcontract for reasons other than breach of the subcontract provisions.
“ART. XII (2) Any time after the completion of 50 per cent of the work the contractor might make the remaining partial payments in full to the subcontractor with the approval of the Commission.
“ART. XII (3) All material and work covered by partial payments made became the sole property of the government.
“ART. XII (4) The amount due under the contract after completion and acceptance of all work would be paid the subcontractor after subcontractor furnished contractor with a release of all claims against the contractor and the government arising by virtue of the contract.
“The contract also evidences many instances of direct control over the subcontractor by the Commission.
“ART. 2(111 (b) The subcontractor agreed to conform to all security regulations and requirements of the Commission.
“ART. XVII The subcontractor agreed to comply with all health, safety, and fire regulations of the Commission.
“ARTS. XXI and XXII The Commission shall always have access to drawings and specifications, and all memoranda of record value were to be property of the government.
“ART. XXVIII The subcontractor agreed to save the contractor and the government harmless from all suits, claims, and demands arising out of the work.
“ART. XXXI Subcontractor agreed to comply with all federal and state, and other laws and regulations applicable to the work performed.
“ART. XXXVII The subcontract was subject to the written approval of the Commission.
“The subcontract also contained many provisions often found in contracts between the United States and a prime contractor.
“ART. XV Subcontractor shall not employ any person undergoing sentence of imprisonment at hard labor.
“ART. XVI Subcontractor in performing the work shall not discriminate against any employee or applicant for employment because of race, creed, or color, or national origin.
“ART. XVIII No Congressman or Commissioner shall benefit from this subcontract.
“ART. XIX Subcontractor agreed that he had not employed anyone to solicit the contract on a contingent fee basis.
“ART. XXXIII Subcontractor agreed to use domestic articles in the construction unless the Commission determined otherwise.
“ART. XXXVII The subcontract was made subject to the Renegotiation Act.”
. Rumsey Mfg. Corp. v. United States Hoffman M. Corp., 187 F.2d 927 (2d Cir. 1951); D. W. Winkleman Co. v. Barr, 178 F.2d 341 (6th Cir. 1949).
. Cf. Bank of America Nat. Trust & Sav. Ass’n. v. Parnell, 352 U.S. 29, 77 S.Ct. 119, 1 L.Ed.2d 93 (1956).
. 10 C.F.R. Secs. 3.1-3.40 (1959) (In effect during all time here pertinent).
. 10 C.F.R. Sec. 3.20 (1959). Though the Regulations, note 13, supra, speak only to a disputes procedure that submits the dispute first to the parties, then to a hearing examiner, and finally by appeal to the Board for a de novo determination, the fact that the parties choose to omit the submission to the hearing examiner, an omission acquiesced in by the commission’s approving the contract and making the Board available to the parties, does not exempt them from the plainly declared ex parte policy of the board. The factual determination of the board is binding on the subcontractor though he was absent from the hearing. This is true unless such a factual determination is found to be “fraudulent (sic) or capricious or arbitrary or so-grossly erroneous as necessarily to imply bad faith, or is not supported by substantial evidence.” 41 U.S.C.A. § 321 (1954). No attack has been here made on the fact findings of the Board.
. 10 C.E.R. Sec. 3.3 (1959).
. Note 3, supra.
. United States v. John Hancock Mut. Life Ins. Co., 364 U.S. 301, 81 S.Ct. 1, 5 L.Ed.2d 1 (1960); United States v. Summerlin, 310 U.S. 414, 60 S.Ct. 1019, 84 L.Ed. 1283 (1940).
. Silverman Bros. Inc. v. United States, 324 F.2d 287, (1st Cir. 1963).
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_respond1_7_5
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers).
CONTINENTAL CASUALTY COMPANY, Appellant, v. James A. JACKSON and William R. Jackson, by His Brother and Next Friend, James A. Jackson, Appellees.
No. 18903.
United States Court of Appeals Eighth Circuit.
Aug. 12, 1968.
John A. Blanchard, of Hurlburt, Blanchard, Cless & Porter, Des Moines, Iowa, for appellant; Philip H. Cless, Des Moines, Iowa, on the brief.
Max Putnam, Des Moines, Iowa, for appellees.
Before VOGEL, Senior Circuit Judge, LAY, Circuit Judge, and BECKER, Chief District Judge.
LAY, Circuit Judge.
The Continental Casualty Company appeals after a denial of its motion for judgment notwithstanding verdict and for a new trial after an unfavorable verdict was rendered against it on an accidental death policy. The plaintiffs are beneficiaries of the insured, Robert D. Jackson, deceased. On February 6, 1965, the decedent-insured was stricken with a heart attack after assisting in the manual carriage of one Herman F. Anderson, his father-in-law, from the bathroom to the den of the Anderson residence. At the time of his death the insured was a Judge of the Iowa District Court in Des Moines, Iowa. The decedent, Judge Robert D. Jackson, was hospitalized on the same day and died on February 18, 1965, as a result of a myocardial infarction.
The accidental death policy in question insures against “bodily injury caused by an accident occurring while this policy is in force and resulting directly and independently of all other causes in loss covered by this policy.” The jury found that the death of the decedent was caused by an “accident” within the meaning of the policy and awarded a verdict for the full coverage. Continental Casualty Company brings this appeal on the grounds:
1. That there was insufficient evidence to sustain a finding of liability under the policy
(a) in that the decedent was not the victim of an “accident” because he was engaged in a voluntary act at the time of his heart attack, and
(b) in that the decedent’s death did not result “directly and independently of all other causes of loss covered by this policy.”
2. The defendant also requests a new trial alleging that the court erred in admitting certain evidence.
We affirm.
It is stipulated that the policy is to be interpreted and governed by Iowa law.
The facts briefly summarized show that decedent’s father-in-law, Herman Anderson, became sick and disabled as he was getting out of his car. He later recovered. He was assisted by an Emil Carlson into his house to the bathroom. A short time later Mr. Anderson called for help as he could not get up from the toilet stool. Judge Jackson and his son, William Jackson, age 19, were summoned and arrived some ten or fifteen minutes later. The three men decided to carry Mr. Anderson from the bathroom to the den and place him upon a couch. Carlson held Anderson around the shoulders beneath the armpit, William Jackson took a position at the midsection area and the decedent lifted his thighs and ankles. William Jackson stated that the three of them lifted Mr. Anderson from the toilet stool, prying his hand off the seat itself and his one leg or foot from the lavatory support. The testimony shows that in the process of the carriage Herman Anderson grabbed onto the bathroom door frame and various objects while he was being removed. Mr. Anderson also placed his hands against the wall and throughout the carriage was “completely uncooperative.” William Jackson asked him not to grab onto these things but he continued to do so. Herman Anderson himself testified that he did not remember any of the events which had transpired and that he thought he had been unconscious. The testimony is that as Mr. Anderson grabbed onto the various objects and walls, he disrupted the carriage and caused a jerking motion. This testimony demonstrates that there was an unusual strain placed upon the various parties throughout their movements in carrying Mr. Anderson. William Jackson testified that the jerking motion tended to stop them “just like box cars hitting together.” This testimony was stricken by the trial court, but the testimony that there was a jerking motion throughout their movements remained.
The evidence established that the decedent had had no symptoms of prior heart trouble. Shortly after carrying Mr. Anderson, the decedent experienced severe chest pain and was thereafter admitted to the hospital. He suffered a “coronary artery occlusion” with resultant myocardial damage. Twelve days later he died. His family doctor, Dr. Anderson, and a specialist in internal medicine, Dr. Chambers, both testified that the “probable cause of the myocardial infarction * * * was the heavy lifting previous to the chest pain.” The evidence shows that when an “infarction” occurs, the heart muscle is damaged because a blood clot occurs depriving the muscle of proper circulation. Dr. Chambers specifically related causation to a “serious strain,” pain and the shock which occurred. Dr. Chambers made a finding of coronary artery disease, which he indicated was a generic term covering coronary occlusion. He added, “quite usually” infarction was just the end result of arteriosclerosis. The underlying cause is coronary heart disease. However, Dr. Chambers specifically stated on cross-examination that he did not find that the decedent had arteri-osclerotic disease. No autopsy was performed. He stated that “an excessive strain which causes a greater demand on the heart muscle than it normally is expected to produce may cause * * * the process * * * described as myocardial infarction.”
Dr. Chambers related the strain to the “timing” and added “he might have lived longer under better circumstances with the same amount of coronary artery disease.” He stated that in his experience he has never seen a case which did not have an underlying disease as the functioning cause. And finally, Dr. Chambers added that in his opinion the strain combined with the disease to produce the occlusion which then resulted in the infarction. He described the “strain” as the “provocative” cause. The defendant called two heart specialists. Both doctors in substance related that extraordinary physical strain can initiate events leading to a myocardial infarction but that the major contributing cause of Judge Jackson’s death was the arterio-sclerotic condition of his arteries.
THE “ACCIDENT” QUESTION
The trial court instructed the jury as to the definition of accident:
“The word ‘accident’ as used in this case means happening by chance, unexpectedly taking place, not according to the usual course of things.
“You are instructed in this regard that if the insured does a voluntary act, the natural and usual, and to be expected result of which is to bring injury upon himself, then a death so occurring is not an accident. But if the insured does a voluntary act, without knowledge or reasonable expeetation that the result thereof will be to bring injury upon himself from which death may follow, then a bodily injury resulting in death is caused by an accident.”
We think this instruction clearly reflects proper definition under Iowa law. Cf. Poweshiek County Nat’l Bank v. Nationwide Mut. Ins. Co., 156 N.W.2d 671, 679 (Iowa 1968). Defendant filed an exception to the court’s instruction in that it failed to instruct in order to be an “accident” something “unforeseen, unexpected or unusual must occur in the act which precedes the injury.” But this request does not accurately reflect Iowa law. See Comfort v. Continental Cas. Co., 239 Iowa 1206, 34 N.W.2d 588, 590 (1948). We find no error in the court’s instruction defining the meaning of “accident” under Iowa law.
On rehearing the Iowa Supreme Court in Lickleider v. Iowa State Traveling Men’s Ass’n, 184 Iowa 423, 166 N.W. 363, 367 (1918) quoted with approval from an 1898 Eighth Circuit opinion. The Iowa Supreme Court said:
“The rule, clearly deducible from the overwhelming weight of authority, is that when injury or death follows or results from a voluntary act of the insured, and the act is one which is not manifestly dangerous, but which is ordinarily done or performed without serious consequences to the doer, such result is caused by accidental means. This is nowhere better stated than by Sanborn, J., in [Western Commercial Travelers] Association v. Smith, 85 Fed. 401, 29 C.C.A. 223, 40 L.R.A. 653, where he says:
“ ‘An effect which does not ordinarily follow and cannot be reasonably anticipated from the use of those means, an effect which the actor did not intend to produce and * * * cannot be charged with the design of producing, * * * is produced by accidental means.’ ”
See also Comfort v. Continental Cas. Co., supra. In Lickleider the insured had experienced an excessive strain in “jerking” off a tire casing. The court held these facts to be sufficient to submit to a jury to determine whether an “accident” had occurred within the meaning of the policy. The Iowa Supreme Court relied upon the early decision of the United States Supreme Court in United States Mut. Accident Ass’n v. Barry, 131 U.S. 100, 9 S.Ct. 755, 33 L.Ed. 60 (1889), stating:
“There Dr. Barry, with two or three companions, in leaving a railway station platform jumped to the ground below, a distance of four or five feet. His act was perfectly voluntary, but in some way not shown by any direct proof he sustained a jar which it was claimed caused an injury to his bowels, resulting in his death, and although there was no evidence by any witness that he was seen to slip or fall, or that he alighted in any other manner than he intended, it was held that the jury were at liberty to find that by some unexpected or unforeseen or involuntary movement of his body in his descent from the platform to the ground the injury was caused. The Supreme Court also examined and approved an instruction to the jury to the effect that while if Barry jumped and alighted just as he intended, and nothing unforeseen, unexpected, or involuntary occurred affecting his movement or causing him to strike the ground in any different way than he intended, then his injury was not caused by accidental means; but if ‘there occurred from any cause any unforeseen or involuntary movement, turn, or strain of the body which brought about the injury, or if there occurred any unforeseen circumstance which interfered with or changed such a downward movement as he intended to make, or as it would be natural to expect under such circumstances, and injury resulted therefrom, the injury would be attributable to accidental means.’ If this be good law (and the eminence of the court pronouncing it commands our respect), then the case at bar was one for a jury.” 166 N.W. at 366-67.
See also Budde v. National Travelers’ Ben. Ass’n, 184 Iowa 1219, 169 N.W. 766 (1918) (excessive strain carrying heavy load of ashes), and Annot. 56 A.L.R.2d 796.
In the instant case, we feel the trial court’s submission to the jury of the “accident” question was proper under Iowa law.
CAUSATION
The primary error alleged by the defendant is that the insured’s death did not result solely from accidental injuries. The defendant asserts that for coverage to exist plaintiff must prove that the death was directly caused by the accident alone and was independent of all other causes.
Defendant asserts that if any disease contributed to the insured’s death, there cannot be any recovery under the policy. The Iowa Supreme Court has faced this precise problem on many occasions.
In Delaney v. Modern Acc. Club, 121 Iowa 528, 97 N.W. 91 (1903) recovery was allowed since a wound caused the disease, to-wit, blood poisoning. However, the court said in dicta:
“If Delaney, in the case before us, had been suffering from erysipelas, or some other disease, at the time he received the injury on his finger, and it appeared that the wound was more dangerous on that account, or that his previous diseased condition contributed to and augmented the danger from the wound, then, under the cases last cited, it might well be argued that, within the language of the certificate, his death did not ‘result solely from accidental injuries.’ ” Id. at 95.
To the same effect, see Keen v. Continental Cas. Co., 175 Iowa 513, 154 N.W. 409 (1915); Vernon v. Iowa State Traveling Men’s Ass’n, 158' Iowa 597, 138 N.W. 696 (1912).
In Binder v. National Masonic Accident Ass’n, 127 Iowa 25, 102 N.W. 190 (1905), citing Delaney, a plaintiff with a diseased condition of the arteries was denied recovery under an accident policy when he allegedly fell in a bathtub and ruptured an artery. However, it is significant that under the terms of the policy liability was denied if the injury was “directly or indirectly, wholly or in part, because of or resulting in or from any disease or bodily infirmity.” (Emphasis ours.) The trial court instructed:
“ [I] f Mr. Haverstock sustained a fall, and if the bursting of the artery was caused thereby, the plaintiff would be entitled to recover, even though it was found that the artery was in a weakened condition by reason of disease.” 102 N.W. at 194.
The Iowa Supreme Court held this was error, since the express terms of the contract excluded it.
In Michener v. Fidelity & Cas. Co. of New York, 200 Iowa 476, 203 N.W. 14 (1925), having the same exclusionary policy terms with respect to “disease”, the court relies upon Binder in denying recovery since the plaintiff proved nothing more than an aggravation of a prior disease.
Other Iowa cases (one very recent) clearly sustain the propriety of submitting the question of causation to the jury under the facts and terms of the policy existing here. See Poweshiek County Nat’l Bank v. Nationwide Mut. Ins. Co., (Feb. 6, 1968) supra; Lickleider v. Iowa State Traveling Men’s Ass’n, supra; and cf. Watters v. Iowa State Traveling Men’s Ass’n, 246 Iowa 770, 69 N.W.2d 1 (1955).
The defendant excepted to the trial court’s instruction on causation, which reads as follows:
“The insurance policy in question; states that death must be caused by accident and result directly and independently of all other causes.
“Direct cause means the moving or precipitating cause. A disease or condition may contribute to death from a medical standpoint or as a remote cause; but if this factor would not apart from the accident, if any you find, have caused the death, then and in that event, the disease would not be the moving or precipitating cause of the death.
“Independently of all other causes means independent of any other cause which would have apart from any accident have caused the death.
“An accident may be a direct cause of death even though the accident aggravated a disease or condition which then contributed to the death if that disease or condition would not without the accident have produced the death at that time.
“In that case, you are further told that if you find that the sole and direct cause of the death of Eobert D. Jackson was due to disease, then there can be no recovery for the plaintiffs.”
This instruction, although not using the words “proximate cause” is essentially the definition of proximate cause that is generally found applicable to “accident” policies with language identical to the terms involved in the present case. See Couch, Insurance 2d § 41:380 (1962). The significance of the Binder decision, supra, may be that different rules exist where a specific exclusion or exception to “disease” is provided within the policy. See also Poweshiek County Nat’l Bank v. Nationwide Mut. Ins. Co., supra, 156 N.W.2d at 680. We need not decide this since there is not any exclusionary clause as to disease involved here; the language of the policy in the instant case is identical to that explored within the recent Poweshiek case.
The early case of Delaney v. Modern Acc. Club, supra, although factually distinguishable, lends authority to the common sense rule that where a party is suffering from a preexisting disease and the accident occurs thereafter, even though the disease itself may have had some contributing remote role in the death, nevertheless, such a disease is only a condition and not the proximate cause of death. The “proximate cause” rule is generally derived from, the Massachusetts rule found in Freeman v. Mercantile Mut. Ass’n, 156 Mass. 351, 30 N.E. 1013 quoted with approval by the Iowa Court in Delaney v. Modern Acc. Club, supra, 97 N.W. at 94:
“ ‘The principal question in the case is, what kind of cause is to be deemed ‘proximate,’ within the meaning of the policy? Where different forces and conditions concur in producing a result, it is often difficult to determine which is properly to be considered the cause; and, in dealing with such cases, the maxim, ‘Causa próxima non remota speetatur,’ is applied. But this does not mean that the cause or condition which is nearest in time or space to the result is necessarily to be deemed the proximate cause. It means that the law will not go further back in the line of causation than to find the active, efficient, procuring cause, of which the event under consideration is a natural and probable consequence, in view of the existing circumstances and conditions. The law does not consider the cause of causes, beyond seeking the efficient, predominant cause, which, following it no further than those consequences that might have been anticipated as not unlikely to result from it, has produced the effect. An injury which might naturally produce death in a person of a certain temperament or state of health is the cause of his death, if he dies by reason of it, even if he would not have died if his temperament or previous health had been different. * * * ’ ” (Emphasis ours.)
In Lickleider v. Iowa State Traveling Men’s Ass’n, supra, 166 N.W. at 365, the Iowa Supreme Court said:
“As we have seen, it is not open to doubt that the question whether he died of disease was for the jury. The only evidence tending to show that the death was the natural result of disease is that of the two physicians who express the opinion that he died of arteriosclerosis, which, as we understand it, is the technical term for hardening of the arteries, but this is met by other evidence that the sclerosis discovered in this case was such only as is ordinarily found in men of his size and age, and the weight and influence to be accorded to these conflicting opinions was for the jury. If the arteries of the deceased were sclerotic, but the sclerosis was such only as is the natural or usual accompaniment of increasing years, the fact, if it be a fact, that a bodily injury sustained by him would more likely be fatal than would be the case if such condition did not exist would not prevent a recovery on the policy should it otherwise appear that the injury was of the nature or kind described in the contract. Freeman v. [Mercantile Mutual] Association, 156 Mass. 351, 30 N.E. 1013, 17 L.R.A. 753.” (Emphasis ours.)
Under the circumstances we find no error under Iowa law in the trial court’s instruction on “causation” nor in the submission of the evidence to the jury.
NEW TRIAL QUESTIONS
A. Instructions.
The defendant insists that the trial court erred in refusing to give certain requested instructions. These requests concern defendant’s disagreement with overall definitions of “accident” and “causation” submitted by the court. However, as indicated, we find no error in these instructions. Furthermore, due to its failure to object properly pursuant to Rule 51, the defendant is estopped from claiming error in the refusal of the lower court to give its requested instructions. See Cone v. Beneficial Standard Life Ins. Co., 388 F.2d 456, 461 (8 Cir. 1968).
B. “Hearsay” statement.
Defendant seeks a new trial alleging erroneous admission of the decedent’s statement to his family doctor as to how the “accident” occurred. The trial court admitted this statement for purposes of “history” only, but later overruled defendant’s objection in oral argument when plaintiff’s counsel argued as to the truth of the facts the decedent had related to the physician.
We agree that ordinarily such statements would be inadmissible under the hearsay rule. Krug v. Mutual Benefit Health & Accident Ass’n, 120 F.2d 296 (8 Cir. 1941); London Guar. & Accid. Co. v. Woelfle, 83 F.2d 325 (8 Cir. 1936). The Iowa Supreme Court has held that a physician’s testimony concerning statements made by a patient to a doctor is admissible solely to allow the doctor to give the basis upon which his opinion is founded. However, such evidence cannot properly be used to prove the truth of the facts related by the patient to the doctor. See Schuler v. Cudahy Packing Co., 223 Iowa 1323, 275 N.W. 39 (1937) ; Poweshick County Nat’l Bank v. Nationwide Mut. Ins. Co., supra. Even this rule limits the history to the event and not the details of causation. Poweshick County Nat’l Bank v. Nationwide Mut. Ins. Co., supra. At best these facts in the ordinary case should be restricted to “history” and not as truth of the evidence asserted.
However, it is apparent that the statement is admissible under Iowa law for reasons constituting an exception to the hearsay rule. The doctor testified that the decedent gave him this history at approximately 5:00 p. m. The initial onset of symptoms occurred at approximately 4:00 p. m. When Dr. Anderson arrived, Judge Jackson was ashen gray, cold and still in shock. He was prostrate. Under these circumstances, even though the statement was made over an hour after the accident, such evidence is admissible as part of the res gestae under Iowa law. Cf. Stukas v. Warfield, Pratt, Howell Co., 188 Iowa 878, 175 N.W. 81 (1919); Califore v. Chicago, St. P., M. & O. Ry., 220 Iowa 676, 263 N.W. 29 (1935) and Watters v. Iowa State Traveling Men’s Ass’n, supra. The Supreme Court of Iowa said in Stukas:
“We have repeatedly said that the proper test of admissibility of such statements is whether they relate to the principal transaction and are explanatory of it and are made under such circumstances of excitement still continuing as to show they are spontaneous and not the result of deliberation or design. Within this general rule the admissibility of the declaration under the circumstances of the particular case is largely within the discretion of the trial judge. The facts and circumstances of no two cases can be precisely alike and the exact length of time is not mathematically controlling.” 175 N.W. at 84-85.
The fear of fabrication and unreliability of the decedent’s version, related in the manner described, appears de minimus. Defendant’s assertion that the statement was written up by the doctor many months later goes only to its weight and not its admissibility. We find no error in the court receiving the evidence and allowing the oral argument relating to it.
C. Mortality tables.
Plaintiff offered life expectancy tables theoretically to show the expectation of life of a man 59 years of age to be 16.09 years. Defendant objected that such evidence was irrelevant and immaterial to the issues in the case. We agree. The only issue being tried was whether decedent’s death was caused by an accident. Plaintiff reasons that the tables show decedent would have lived a longer life but for the “accident.” In other words, he would not have died of natural causes or disease at the age of 59 since he still had a life expectancy of sixteen years. We feel this is a complete non sequitur, and the evidence should have been excluded.
Life tables are generally admissible on a limited basis in wrongful death or damage actions for consideration of the probabilities of damage over a period of years. They in no way serve to show whether a person will or will not die by natural causes or otherwise at any particular age. Nor do they tend to prove probabilities of such. And even when life expectancy tables are received into evidence it has long been held the court should fully instruct the jury as to their limited use. See Scott v. Chicago, R. I. & P. Ry., 160 Iowa 306, 141 N.W. 1065 (1913).
However, we feel such evidence is harmless error and does not necessitate reversal. See Fed.R.Civ.P. 61. The relevant consideration is whether the evidence is sufficient to cause reasonable jurors to change their minds and reach a different verdict. Although dealing with a criminal conviction, we think the principle of Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), is applicable to an objective decision here:
“The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence.” Id. at 765, 66 S.Ct. at 1248.
We fail to understand how this evidence could have even a “slight effect” upon the verdict.
Judgment affirmed.
. The defendant erroneously relies on Feder v. Iowa State Traveling Men’s Ass’n, 107 Iowa 538, 78 N.W. 252 (1899) and other Iowa cases which distinguished between “accidental results” and “accidental means.” This rule was modified by later cases which recognized that the two elements are somewhat identical, and proof of one may be considered to be proof of the other. See Dawson y. Bankers’ Life Co., 216 Iowa 586, 247 N.W. 279, 282 (1943); Miser v. Iowa State Traveling Men’s Ass’n, 223 Iowa 662, 273 N.W. 155 (1937).
. The Lickleider case had an unusual history in the Iowa courts. Originally, the facts presented were held not to be sufficient to prove an accident, and the case was dismissed. See 151 N.W. 479 (1915). Then in 166 N.W. 363, upon rehearing, the decision was reversed. However, this was modified again on rehearing as follows:
“A petition for rehearing has been submitted in the above-entitled case, and, upon further consideration thereof, it is ordered that all that portion of the opinion filed therein beginning with and following the sentence, ‘When a person engaged in some act or work of an ordinary and legitímate character is by some unforeseen and unexpected, or perhaps inexplicable, chance or contingency subjected to injury or death, it savors strongly of the absurd to say that the cause which produced this result was not accidental, but his own voluntary act,’ be withdrawn, and that in lieu thereof the following bo substituted :
“It is manifest, from what we have said, that the injury was accidental. To come within the terms of the policy, such accident must have been external and violent. Myrtle Caldwell was asked on cross-examination: ‘Did you not notice Mr. Dunbar slip, did you? A. Only when the tire came off. It came off suddenly with a jerk.’ If then Dunbar in pulling the tire from the wheel slipped as might be found from this testimony, and fell in consequence thereof, the jury might have concluded, not only that the injury was accidental, but that it was due to slipping as the wheel came off, and that this was accidental means. No argument is required to demonstrate that such means might have been found external and violent. For the reason stated, we are of the opinion that the trial court erred in directing a verdict, and the judgment is reversed.
“The reporter in publishing will correct the opinion accordingly.” Lickleider v. Iowa State Traveling Men’s Ass’n, 168 N.W. 884 (1918).
. After retrial on remand a verdict for plaintiff was affirmed by an evenly divided court, 181 N.W. 388 (Iowa 1921).
. The plaintiff urges that Watters make exceptions for heart eases. However, Watters involved a traumatic injury to the heart resulting from crushed ribs causing the myocardial infarction. The coexistence of arteriosclerotic disease was not related as a causal factor. But cf., this court’s reasoning in a pre-Erie case, where arteriosclerosis was held not to be a “disease” under the policy if it was not too far advanced. This court felt this question deserved special instruction and reversed. See Preferred Accident Ins. Co. of New York v. Combs, 76 F.2d 775 (8 Cir. 1935) (excluded: death “caused directly or indirectly by disease in any form”).
. The Iowa cases indicate if there exists ' an exclusionary clause, this becomes an affirmative defense and the defendant must assume the burden of proof thereunder. Even when there is evidence of some preexisting disease, if there is sufficient evidence to show that there was an accident, it is left to the jury to determine whether the accident was the cause or whether the disease was causal or contributory so as to exclude coverage.
See Meyer v. Fidelity & Cas. Co., 96 Iowa 378, 65 N.W. 328 (1895). See also Lickleider v. Iowa State Traveling Men’s Ass’n, supra, and Watters v. Iowa State Traveling Men’s Ass’n, supra, 69 N.W.2d at 12. It is made clear there that if the disease was only temporal or unexpected, the disorder was of a temporary character and not considered to be a contributory factor. 65 N.W. at 330.
. In Cone v. Beneficial Standard Life Ins. Co., 388 F.2d 456, 460 (8 Cir. 1968), interpreting Missouri law, we quoted Prof. Prosser:
“ ‘The event without millions of causes is simply inconceivable; and causation alone can provide no clue of any kind to singling out those which are to be held legally responsible.’ Prosser, Torts 243 (3d ed. 1964).”
. The rule is the same in Missouri. See Mutual Benefit Health & Accident Ass’n V. Francis, 148 F.2d 590 (8 Cir. 1945), where this court following Missouri law held:
“An injury which causes the death of a person in impaired health or suffering from disease is the cause of his death even though he would not have died if his health had not been impaired.”
See also Fetter v. Fidelity & Gas. Co., 174 Mo. 256, 73 S.W. 592, 61 L.R.A. 459 (1903). The Fetter case is cited with approval in Lickleider v. Iowa State Traveling Men’s Ass’n, supra, 166 N.W. at 367.
. Rule 51 reads in part:
“No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury.” (Emphasis ours.) Fed.R.Oiv.P. 51.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant?
A. not ascertained
B. poor + wards of state
C. presumed poor
D. presumed wealthy
E. clear indication of wealth in opinion
F. other - above poverty line but not clearly wealthy
Answer:
|
songer_numresp
|
2
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Kevin McKENNA and Barbara McKenna, Plaintiffs-Appellants, v. CITY OF MEMPHIS and William Sarden, Defendants-Appellees.
No. 84-5608.
United States Court of Appeals, Sixth Circuit.
Argued Feb. 24, 1986.
Decided March 12, 1986.
Ronald D. Krelstein (argued), Holt, Batchelor, Krelstein & Nicholson, Memphis, Tenn., for plaintiffs-appellants.
Henry L. Klein (argued), Clifford E. Pierce, Jr., City Atty., City of Memphis, Memphis, Tenn., for defendants-appellees.
Before LIVELY, Chief Judge, MERRITT, Circuit Judge, and GILMORE, District Judge.
The Honorable Horace Gilmore, Judge, United States District Court for the Eastern District of Michigan, sitting by designation.
PER CURIAM.
This is an action under 42 U.S.C. § 1983 in which the plaintiffs allege that their due process rights guaranteed by the Fourteenth Amendment were violated by the defendants. Kevin McKenna was a Memphis police officer. While pursuing a fleeing suspect on foot McKenna was shot by a fellow Memphis police officer, the defendant Sarden, who was also chasing the suspect.
McKenna charged in his complaint that Sarden “recklessly fired his revolver under circumstances not warrantying [sic] the use of deadly force.” This was so, according to McKenna, because the only offenses known to have been committed by the suspect at the time of the shooting were traffic violations, not serious crimes. McKenna also alleged that Sarden was acting pursuant to a regulation of the Memphis Police Department “outlining the circumstances under which officers were permitted to use deadly force.” He charged in his complaint that his injury resulted from execution of this policy.
. McKenna introduced evidence from which it might be inferred that Sarden’s supervisors should have recognized that he was incompetent. He showed that Sarden did not meet either the minimum education or I.Q. requirements for appointment to the police force. McKenna did not prove that Sarden was following regulations in firing his revolver. In fact, the district court held that Sarden acted in violation of, not pursuant to, such regulations.
The district court submitted the case to the jury on interrogatories. 544 F.Supp. 415. The jury answered “No” to four questions concerning the City’s conduct:
1) Was the City of Memphis reckless or grossly negligent in failing to require William Sarden to meet its police recruit qualification standards?
2) Was the City of Memphis reckless or grossly negligent in failing to train adequately Sarden, as a recruit, and/or as an inservice officer, as to use of deadly force?
3) Was the City of Memphis reckless or grossly negligent in failing adequately to supervise William Sarden as an officer of the Memphis Police Department?
4) Was the City of Memphis reckless or grossly negligent in failing adequately to discipline Sarden and its officers for misuse of deadly force when it was determined that deadly force was improperly used by its officers?
On the basis of its answers to the quoted interrogatories the jury entered a general verdict for the City. McKenna requested additional interrogatories, all related to the claim of reckless or grossly negligent conduct by the City. He also requested an instruction on simple negligence on the part of the City in recruiting, training, supervising and disciplining Sarden.
On the plaintiffs’ waiver, the district court considered their pendent state claim without the intervention of a jury, and awarded damages of $20,000 against Sarden and the City. That judgment was not appealed. This appeal is from the judgment for the City under 42 U.S.C. § 1983. In their motion for judgment notwithstanding the verdict and for a new trial the plaintiffs relied solely on their claim that the City was negligent in hiring, training, supervising and disciplining Sarden. They relied only on these alleged failures of the City with respect to Sarden; there was no reliance on the City’s regulation concerning the use of deadly force, and no claim that the district court erred in failing to submit to the jury an issue related to the allegation in the complaint that Sarden was following a police regulation when he fired his revolver.
On appeal, however, the plaintiffs contend that they produced sufficient evidence to require judgment in their favor on the theory that McKenna suffered a constitutional deprivation by reason of a policy, custom or practice of the City, relying on Monell v. City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The problem with this argument is that the case was not tried on this theory. They seek to bootstrap a claim of negligence in hiring, training and supervising into a claim of injury caused by Sarden’s following a custom, policy or practice.
The case against the City was tried on a theory of gross negligence or reckless conduct. In an abundance of caution the district court submitted a separate set of interrogatories requiring the jury to determine if the City was guilty of simple negligence. The jury absolved the City of liability under this theory as well.
It is clear since the decisions of the Supreme Court in Daniels v. Williams, — U.S. —, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986), and Davidson v. Cannon, — U.S. —, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986), that there can be no liability under 42 U.S.C. § 1983 for simple negligence. As the Court stated in Daniels, “where a government official’s act causing injury to life, liberty or property is merely negligent, ‘no procedure for compensation is constitutionally required.’ ” (Quoting Powell, J. in Parratt v. Taylor, 451 U.S. 527, 548, 101 S.Ct. 1908, 1919, 68 L.Ed.2d 420 (1981), and adding emphasis). Daniels v. Williams, — U.S. at -, 106 S.Ct. at 666. The Court in Daniels did leave open the question of whether § 1983 might afford relief for a higher degree of negligence:
Accordingly, this case affords us no occasion to consider whether something less than intentional conduct, such as recklessness or “gross negligence,” is enough to trigger the protections of the Due Process Clause.
Daniels, at-, n. 3,106 S.Ct. at 667, n. 3.
Under the current interpretation of § 1983, that statute is applicable at best to provide a remedy for due process claims when one acting under color of state law intentionally inflicts an injury or acts with gross negligence or reckless disregard of the rights of an injured party. The jury determined that no act or omission of the City of Memphis in the areas of recruiting, hiring, training, supervising or disciplining Sarden constituted reckless conduct or gross negligence. This finding determined that the City was not liable to the plaintiffs under § 1983 on the only basis upon which liability could have been predicated.
We have considered other issues presented by the plaintiffs and find them to be without merit.
The judgment of the district court is affirmed.
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
|
songer_usc1
|
18
|
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.
ADERHOLD, Warden, v. ASHLOCK.
No. 1660.
Circuit Court of Appeals, Tenth Circuit.
Sept. 22, 1938.
Homer Davis, Asst. U. S. Atty., and Summerfield S. Alexander, U. S. Atty., both of Topeka, Kan., for appellant.
No appearance for appellee.
Before PHILLIPS, BRATTON, and WILLIAMS, Circuit Judges.
PHILLIPS, Circuit Judge.
Charles Ashlock was charged by indictment returned in the District Court of the United States for the Eastern District of Kentucky with a violation of 26 U.S.C.A. § 692, now 26 U.S.C.A. § 1043. He pleaded guilty and was sentenced to a term of imprisonment of two years from November 13, 1933. On June 21, 1935, he was conditionally released from the Penitentiary Annex, at Leavenworth, Kansas, by .the United State Parole Board. '
. , , , , . ,. , Thereafter, he was charged by indictment returned m the District Court of the United States for the Southern District of West Virginia with a violation of the Harrison Anti-Narcotic Act. He pleaded guilty to the charge and on September 18, 1935, he was sentenced to serve k term of three years in the United States Penitentiary Annex, at Leavenworth, Kansas. He was delivered to the Penitentiary Annex on September 28, 1935.
A warrant for his arrest, based on a violation of his parole was issued, and upon completion of his second sentence he was arrested and recommitted to the Penitentiary Annex to serve the unexpired portion of his first sentence.
Ashlock filed an application for a writ of habeas corpus in the District Court of the United States for the District of Kansas, predicated on the contention that upon his commitment to the penitentiary on the second sentence, hé immediately began service of the unexpired term of his first sentence and that both sentences had been fully served '
The trial court sustained Ashiock’s contention and entered its judgment discharging him'from custody.
The Warden has appealed,
Section 723c, 18 U.S.C.A., reads in part as follows:
“The Board of Parole * * * or any member thereof, shall have the exclusive authority to issue warrants for the retaking of any United States prisoner who has vio!ated. his' Parole; The ^expired term of imprisonment of any such prisoner shall be-g¡¡n run fr0m the date he is returned to the institution, and the time the prisoner was on parole shall not diminish the time he was originally sentenced to serve.”
in Zerbst v. Kidwell, 304 U.S. 359, 362, 363, 58 S.Ct. 872, 873, 82 L.Ed. 1399, 116 A. L.R. 808, the Supreme Court of the United States in construing the above provision in connection with facts identical with those presented here, said:
. . . ro Obviously, this provision [Sec. 723c,. suPra^ does ?ot require that a parole violator s onSmal> unexpired sentence shall be-gm to run from the date he is imprisoned for a new and separate offense. It can only refer t0 reimprisonment on the original sentence under order of the paroIe Board.
“Since service of the original sentence was interrupted by parole violation, the full term of that sentence has not been com-pleted. Just as respondent’s own misconduct (parole violation) has prevented com-pletion of the original sentence, so has it continued the authority of the board over respondent until that sentence is completed and expb es. * * *
“If the parole laws should be construed as respondent contends, parole might be more reluctantly granted, contrary to the broad humane purpose of Congress to grant relief from imprisonment to deserving prisoners,
“Respondents have not completed servjce 0£ Bieir original sentences and were not entitled to realese.”
. .... "b'b.e cause is reversed with instructions vacate the order of discharge, to order *-b.at Ashlock be redelivered to the custody of the Warden, and to issue and execute suc,h writ °r PTOCtsJ as. may be necessary t0 make sudl order effectlve’
Reversed.
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_prejud
|
E
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Was there prejudicial conduct by prosecution? (including prosecutor refusing to produce evidence which would aid defendant)" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
In re B. HOLLIS KNIGHT COMPANY, Debtor. Charles Darwin DAVIDSON, Trustee, Appellant, v. UNION NATIONAL BANK OF LITTLE ROCK, Appellee.
No. 79-1054.
United States Court of Appeals, Eighth Circuit.
Submitted May 18, 1979.
Decided Aug. 30, 1979.
Charles Darwin Davidson, Little Rock, Ark., pro se.
W. R. Nixon, Jr., Little Rock, Ark., for appellee.
Before GIBSON, Chief Judge, and HEA-NEY and McMILLIAN, Circuit Judges.
HEANEY, Circuit Judge.
The trustee in bankruptcy appeals from a decision of the District Court directing him to pay Union National Bank of Little Rock $8,444.69, the amount owed to Union National by the debtor, B. Hollis Knight Company, Inc. (BHK), on the date BHK filed its petition in bankruptcy. The sole issue on appeal is whether Union National has a security interest in an account receivable of BHK that was perfected prior to the lien of the trustee. We conclude that the District Court applied an incorrect legal standard and, therefore, reverse and remand for further proceedings.
BHK, a mechanical contractor, received a $12,000 loan from Union National on November 26, 1976. The loan was evidenced by a promissory note and secured by various accounts receivable and other collateral. The security interest was supposedly perfected by means of financing statements that Union National had filed on all accounts receivable and contract rights owned or thereafter acquired by BHK. These financing statements had been prepared in connection with another loan to BHK and were filed on August 29, 1974, at the Pulaski County Circuit Clerk’s office and at the office of the Arkansas Secretary of State. The filing in the office of the Secretary of State designated Ben H. Knight and BHK as debtors. The filing in the Circuit Clerk’s office, however, designated only Ben H. Knight as the debtor. Thus, as of November 26, 1976, Union National did not have a perfected security interest in BHK’s accounts receivable since it failed to list BHK as a debtor on the filing in the Circuit Clerk’s office as required by Arkansas law. See Ark.Stat.Ann. §§ 85-9 — 401, 85-9-402.
On January 11, 1977, BHK received another loan from Union National in the amount of $6,800. The loan was evidenced by a promissory note and secured by an assignment of an account receivable from a general contractor who owed $9,720 to BHK for work on a construction job completed on January 3, 1977. The assignment stated that it was intended
as security for the repayment of indebtedness owing by the undersigned [BHK] to the said Union National Bank of Little Rock now in the sum of Six Thousand Eight Hundred & No/100 — ($6,800.00) and of any other indebtedness that may become due to the said Bank by the undersigned so long as any of the debt mentioned herein remains unpaidf.]
The assignment was signed by the president of BHK and a notice of the assignment was acknowledged by an authorized representative of the general contractor on January 11, 1977. This assignment was the only assignment to Union National from BHK. No financing statements were filed in connection with the transaction. On January 11, 1977, BHK’s accounts receivable totaled $68,374.58.
On January 19, 1977, BHK filed a voluntary petition in bankruptcy. On that date, it owed Union National $6,814.90 on the January 11, 1977, note and $1,629.79 on the November 26, 1976, note for a total indebtedness of $8,444.69. The schedules filed with the petition listed accounts receivable of $68,364.68. The trustee, however, was unable to collect any accounts receivable other than the account which had been assigned to Union National. The trustee collected $8,919.72 of this account and placed this sum in a special bank account by agreement of the parties pending the outcome of this action.
In his complaint, the trustee alleged that Union National’s security interest in the account receivable was unperfected and subordinate to the trustee’s lien which came into existence on the date of bankruptcy. The Bankruptcy Court disagreed. It determined that Union National’s security interest in the account receivable was perfected on January 11, 1977, prior to the trustee’s lien. The court reasoned that the assignment of the account receivable was not a “significant part” of BHK’s outstanding accounts receivable within the meaning of Ark.Stat.Ann. § 85-9-302(l)(e) and, thus, Union National was not required to file a financing statement. Consequently, Union National’s security interest was perfected without filing under Ark.Stat.Ann. § 85-9-303(1). The court directed the trustee to pay Union National $8,444.69. The District Court affirmed' the Bankruptcy Court.
The parties agree that for Union National to prevail, it must show that it has a perfected security interest in the account receivable under Arkansas law. The answer to this question turns on an interpretation of Ark.Stat.Ann. § 85-9-302(l)(e) which provides:
(1) A financing statement must be filed to perfect all security interests except the following:
* * * * * *
(e) an assignment of accounts which does not alone or in conjunction with other assignments to the same assignee transfer a significant part of the outstanding accounts of the assignor[.]
The parties have not cited to, nor has our research disclosed any Arkansas state court cases that discuss subsection (e). The only case that has interpreted it appears to be Standard Lumber Company v. Chamber Frames, Inc., 317 F.Supp. 837 (E.D.Ark. 1970). In Standard, Chamber Frames, Inc., the debtor, a manufacturer of picture frames, sold K-Mart picture frames valued at $2,212.20. Standard Lumber Company, the secured party and a seller of building materials and millwork, was Chamber Frames’ supplier. In order to secure its debt for supplies, Chamber Frames assigned Standard Lumber the $2,212.20 account receivable from K-Mart. Standard Lumber did not file a financing statement. In an action to recover on the debt, the United States was permitted to intervene and assert a claim under liens arising from unpaid taxes. The District Court determined that Standard Lumber had a perfected security interest in the account receivable notwithstanding its failure to file a financing statement which was perfected prior to the government’s lien. The court reasoned that since the total of accounts receivable assigned amounted to only sixteen percent of Chamber Frames’ outstanding accounts receivable, the assignment was not a significant part of the total accounts. Consequently, Standard Lumber was not required to file a financing statement under Ark. Stat.Ann. § 85-9-302(l)(e) to perfect its security interest.
The District Court relied on Standard in reaching its decision. It reasoned that the account receivable assigned to Union National represented roughly fourteen percent of the outstanding accounts and, thus, was not a “significant part” within the meaning of Ark.Stat.Ann. § 85-9-302(1)(e).
The trustee argues, initially, that the District Court erred in considering the bulk of BHK’s accounts receivable as outstanding accounts, since most of the accounts were unearned by performance at the time of the assignment and, thus, were uncollectible by the trustee after bankruptcy intervened. The evidence established that out of the $68,374.58 listed by BHK as accounts receivable, approximately fifty percent of this amount constituted retainage on construction contracts. The retained amounts were listed on BHK’s balance sheet as accounts receivable, although successful completion of the job was a condition precedent to receiving payment. Since BHK did not complete its work on any projects after it filed bankruptcy, the retainage proved to be uncollectible due to various counterclaims and setoffs.
In our view, the District Court correctly included the retainage in the total outstanding accounts of BHK. Ark.Stat. Ann. § 85-9-106 defines “account” as “any right to payment for goods sold or leased or for services rendered * * * whether or not it has been earned by performance.” Since an account need not be earned by performance, the retainage was properly classified as part of BHK’s outstanding accounts although it would not be paid until the job was satisfactorily completed. Moreover, the mere fact that the trustee was unable to collect certain accounts after bankruptcy would not remove these accounts from inclusion as BHK’s outstanding accounts. The determination of whether an assignment constitutes a significant part of the assignor’s outstanding accounts must be made on the basis of the facts available at the time of the assignment.
The trustee also argues that the District Court’s interpretation of Standard was unduly restrictive. He contends that the court should have examined all of the circumstances surrounding the transaction in deciding whether the assignment was a significant part of the outstanding accounts.
The term “significant part” is not defined in the U.C.C. Although most courts have not undertaken a careful analysis of this term, see In re Munro Builders, Inc., 20 U.C.C.Rep. 739 (W.D.Mich.1976), two tests appear to have emerged as aids in its interpretation, the “casual or isolated” test and the “percentage” test. See generally J. White and R. Summers, Uniform Commercial Code § 23-8 at 807-809 (1972).
The casual or isolated test is suggested by the language of Comment 5 to U.C.C. § 9-302 which provides that
[t]he purpose of the subsection (l)(e) exemptions is to save from ex post facto invalidation casual or isolated assignments: some accounts receivable statutes have been so broadly drafted that all assignments, whatever their character or purpose, fall within their filing provisions. Under such statutes many assignments which no one would think of filing may be subject to invalidation. The subsection (l)(e) exemptions go to that type of assignment. Any person who regularly takes assignments of any debtor’s accounts should file.
The test requires a court to examine the circumstances surrounding the transaction, including the status of the assignee, to determine whether the assignment was casual or isolated. See, e. g., Abramson v. Printer’s Bindery, Inc., 440 S.W.2d 326 (Tex.Civ.App.1969). If a court finds that the transaction was not part of a regular course of commercial financing, it will not require filing. The underlying rationale behind the test appears to be the conclusion that it would not be unreasonable to require a secured creditor to file if he regularly takes assignments of a debtor’s accounts, but it would be unreasonable if this was not a usual practice.
The percentage test, in contrast, focuses on the size of the assignment in relation to the size of the outstanding accounts. Standard Lumber Company v. Chamber Frames, Inc., supra, is generally cited as a case applying this test. J. White and R. Summers, Uniform Commercial Code § 23-8 at 808. See also In re Boughner, 8 U.C.C.Rep. 144, 149-153 (W.D.Mich.1970). The test attempts to define the term “significant part” in a manner that is consistent with the statute and that promotes certainty in application. J. White and R. Summers, Uniform Commercial Code § 23-8 at 808-809.
Some courts have taken the approach that a proper interpretation of the section requires application of both tests. See, e. g., City of Vermillion, S. D. v. Stan Houston Equipment Co., 341 F.Supp. 707, 712 (D.S.D.1972). We are in substantial agreement with the courts that take this eclectic approach.
Both of the policies underlying the two tests appear to be valid limitations on the scope of U.C.C. § 9-302(l)(e). The language of the section would not permit an assignee to escape the filing requirement if he received a large proportion of an assign- or’s accounts whether or not the transaction was an isolated one. See In re Boughner, supra. On the other hand, it is not unfair to require a secured party who regularly takes such assignments to file, since the comments to U.C.C. § 9-302(l)(e) indicate that the section was designed as a narrow exception to the filing requirement — not applicable if the transaction was in the general course of commercial financing.
We note, moreover, that Standard Lumber Company v. Chamber Frames, Inc., supra, is not inconsistent with this position. In Standard, the secured party, Standard Lumber Company, did not regularly take assignments from its suppliers. There was no question that the assignment was an isolated one and, thus, there was no reason for the District Court to consider the issue.
Thus, in the absence of any Arkansas law to the contrary, we hold that in determining what is a significant part of the outstanding accounts of the assignor, a court must examine all ’ of the facts and circumstances surrounding the transaction, including the relative size of the assignment and whether it was casual or isolated.'
The trustee contends that we should not consider the assignment an isolated or casual one simply because Union National is a national banking institution that regularly lends money and has, on previous occasions, made loans to BHK. We disagree with the trustee’s analysis. The relevant question is whether Union National regularly took assignments of accounts receivable. There is no evidence in the record that they did. The Bankruptcy Court found that BHK had not assigned any. other account receivable to Union National and the trustee does not dispute this finding. The record does not indicate that Union National ever received another assignment of accounts receivable from any other person. While Union National may do so as a matter of fact, the assignment of accounts receivable is a specialized method of securing loans, and we are not willing to assume that it was a regular practice.
The trustee also contends that, under the circumstances of this case, it was inappropriate for the District Court to have applied an arbitrary percentage. We agree. The District Court improperly limited its inquiry since its analysis ignores the qualitative differences in accounts receivable.
The ultimate uncollectibility of an account receivable standing by itself would not remove the account from consideration as one of the assignee’s outstanding accounts. If, however, the assignee knew when an assignment was made that certain accounts were uncollectible, he would also recognize that their value as outstanding accounts is minute. The reasoning is similar when there are significant limitations on the collectibility of some accounts.
An assignee would have to discount their value as outstanding accounts to determine whether his assigned account constituted a significant part of the total.
This analysis merely recognizes that the liquidity of an account receivable is one of the primary considerations of a lender who is secured by a lien on the account. An assignee who receives accounts that are not subject to any limitations is usually in a better position than one who receives accounts that are subject to some limitations, although each may hold the same dollar amount of accounts. Thus, the account assigned to Union National may be a significant part of BHK’s outstanding accounts although it represented only fourteen percent of the total amount since it was the only account that was not subject to significant limitations on collectibility.
Although the District Court did not make a specific factual finding in this regard, there is sufficient evidence in the record to support a finding that Union National knew there were significant limitations on the collectibility of BHK’s accounts receivable. The president of BHK testified that he knew the only account he could collect within thirty days was the account assigned to Union National. It is reasonable to infer that he communicated this knowledge to Union National when he applied for the $6,800 loan, since Union National specifically requested the assignment of that particular account. Moreover, Union National had some familiarity with BHK’s business practices and its assets insofar as it had loaned money to BHK on prior occasions. We infer from this that Union National may have known of BHK’s precarious financial position and that there was a substantial risk that the remaining accounts would not be collected because the jobs would not be completed.
Since additional factual findings must be made prior to a determination of whether the account assigned to Union National constituted a significant part of BHK’s outstanding accounts, we remand the cause to the District Court. On remand, the District Court shall examine the extent of Union National’s knowledge of BHK’s accounts receivable and determine how Union National’s knowledge affected, or should have affected, its valuation of BHK’s accounts. The court- must then decide whether the account assigned to Union National was a significant part of the outstanding accounts in light of this valuation. The District Court should look at all of the facts and circumstances surrounding the transaction in making its decision.
The decision of the District Court is reversed and remanded for further proceedings consistent with this opinion.
. Ben H. Knight was the owner of BHK prior to July 1, 1976.
. Of course, the language of Ark.Stat.Ann. § 85-9-302(l)(e) requires a court to examine the total of all assignments to the secured party whether or not they took place in a single transaction.
. Union National knew of this fact because it had actual knowledge of it. See Ark.Stat.Ann. § 85-1-201(25).
Question: Was there prejudicial conduct by prosecution?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
songer_usc1
|
8
|
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.
ACHESON, Secretary of State, v. NOBUO ISHIMARU.
No. 12690.
United States Court of Appeals Ninth Circuit.
Dec. 4, 1950.
Ray J. O’Brien, U. S. Atty., Howard K. Hoddick, Asst, Honolulu, T. H., Edgar R. Bonsall, Asst. U. S. Atty., San Francisco, Cal., for appellant.
Wilfred C. Tsukiyama, Honolulu, T. H., A. L. Wirin, Los Angeles, Cal., for appellee.
Before HEALY, BONE, and POPE, Circuit Judges.
PER CURIAM.
This matter is befo-re us on a motion to dismiss the appeal of the Secretary of State on the ground that the order of which he seeks review ’is not appealable. By agreement of .the parties, the appeal is likewise before us for decision on the merits in event the motion to dismiss is denied.
•In 1948 appellee (hereafter called the plaintiff) brought suit against the Secretary pursuant to § 503 of the Nationality Act of 1940, 8 U.S.C.A. § 903, *to obtain a judgment declaring him to be a national of the United States. The Secretary answered, but notwithstanding the suit has long been at issue it has not been tried, allegedly because of the refusal of the 'Consular authorities to grant the plaintiff’s application for a certificate of identity so that he may come to Hawaii, where the suit is pending, to testify in his case. 'Consult Statute, note 1, supra. In March of 1950 plaintiff moved for an order directing the Secretary to issue such a certificate, supporting the motion by an affidavit of his counsel giving an account of the circumstances. The matters stated in the affidavit were not controverted by the Secretary, and the court ordered the latter to issue a certificate, or other equivalent document, enabling the plaintiff to return to Hawaii for the purpose of attending the trial and being a witness in his own behalf. It is from this order that the appeal was taken.
lt appears to be undisputed that the plaintiff, as alleged in his complaint, was born in the Territory of Hawaii and went as a minor to Japan. As conceded by the Secretary in his argument here, the sole issues raised below are: “1. Did the Appellee expatriate himself, under the provisions of Section 80,1c, Title 8, United States Code, by serving in the Japanese Army? 2. Did the Appellee expatriate himself, under the provisions of Section 801e, Title 8, United States Code, by voting in a political election in a foreign state, namely Japan?”
We are of opinion that the order below is not appealable. It appears not to fall “in that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528. By this order the district court but took a step toward final disposition of the merits of the case. The order is more nearly analogous to that held purely interlocutory in Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783, involving an attempted appeal from the denial of a motion to quash a subpoena duces tecum.
The appeal is dismissed.
. The statute reads: “If any person who claims a right or privilege as a national of the United States is denied such right or privilege by any Department or agency, or executive official thereof, upon the ground that he is not a national of the United States, such person, regardless of whether he is within the United States or abroad, may institute an action against the head of such Department or agency in the District Court of the United States for the District of Columbia or in the district court of the United States for the district in which such person claims a permanent residence for a judgment declaring him to be a national of the United States. If such person is outside the United States and shall have instituted such an action in court, he may, upon submission of a sworn application showing that the claim of nationality presented in such action is made in good faith and has a substantial basis, obtain from a diplomatic or consular officer of the United States in the foreign country in which, he is residing a certificate of identity stating that his nationality status is pending before the court, and may be admitted to the United States with such certificate upon the condition that he shall be subject to deportation in case it shall be decided by the court that he is not a national of the United States. Such certificate of identity shall not be denied solely on the ground that such person has lost a status previously had or acquired as a national of the United States; and from any denial of an application for such certificate the applicant shall be entitled to an appeal to the Secretary of State, who, if he approves the denial, shall state in writing the reasons for his decision. The Secretary of State, with approval of the Attorney General, shall prescribe rules and regulations for the issuance of certificates of identity as above provided.” 8 U.S.O.A. § 903.
. By reference to the statute (footnote 1, supra) it is seen to provide that “Such certificate of identity shall not be denied solely on the ground that such person has lost a status previously had or acquired as a national of the United States”.
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_stateclaim
|
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 dismiss the case because of the failure of the plaintiff to state a claim upon which relief could be granted?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".The issue hereby considered also pertains to cases where the court concluded that there was no proper cause of action.
John J. BURKE, Jr., Petitioner, Appellant, v. COMMISSIONER OF INTERNAL REVENUE et al., Respondents, Appellees.
No. 5964.
United States Court of Appeals First Circuit.
April 23, 1962.
Solomon Sandler, Gloucester, Mass., .for appellant.
Donald P. Horwitz, Attorney, Department of Justice, with whom Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson and Robert N. Anderson, Attorneys, Department of Justice, W. Arthur Garrity, Jr., U. S. Atty., and Thomas P. O’Connor, Asst. U. S. Atty., were on brief, for appellees.
Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.
PER CURIAM.
The appellant filed a petition in the court below for a declaratory judgment setting forth whether or not he is entitled to trial before the Tax Court of the United States on his petition pending in that court for redetermination of his income tax liability for the years 1952 to 1955, inclusive, for an order directing the respondents, the Commissioner of Internal Revenue and the local District Director, forthwith to issue statutory notices of deficiency with respect to those years, and for general relief. The respondents moved to dismiss for lack of jurisdiction and after hearing arguments of counsel the court below from the bench, so we are told, but the appellant’s record appendix does not include a transcript of the proceedings at the hearing, orally dismissed the petition for lack of jurisdiction. Immediately after the hearing counsel for the plaintiff filed notice of appeal.
It is true that a docket entry reflects the action taken by the court below on the bench. But a docket entry is not per se a judgment. It is but a minute of action taken by the court, for courts render judgments; clerks only enter them on the court records. What is determinative therefore is the action of the court, not that of the clerk, and lacking a transcript we do not know whether the court intended its announcement from the bench to be its “final decision” or not. That is to say, we cannot tell on the record presented to us whether the court’s statement from the bench embodied the essential elements of judgment. or was merely a forecast of the final action it intended to take. No specific form of words are required to constitute a judgment. Intention controls and a final decision may even be embodied in an opinion. United States v. F. & M. Schaefer Brewing Co., 356 U.S. 227, 232, 78 S.Ct. 674, 2 L.Ed.2d 721 (1958). But since we know full well that it is the general, indeed the universal, practice of the court below to express its judgments in separate documents clearly so labeled, we can only assume, in the absence of clear evidence to the contrary, that it intended to follow its established practice in this case and did not intend its oral pronouncement from the bench to constitute its final determinative action. No judgment ever having been rendered:
An order will be entered dismissing this appeal for lack of appellate jurisdiction.
Question: Did the court dismiss the case because of the failure of the plaintiff to state a claim upon which relief could be granted?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_casetyp1_1-3-2
|
I
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "criminal - state offense".
Victor LANGDEAU, Appellant, v. STATE OF SOUTH DAKOTA and Its Agents, et al., Appellees.
No. 71-1149.
United States Court of Appeals, Eighth Circuit.
June 30, 1971.
Gary J. Pashby, Sioux Falls, filed brief for appellant.
Gordon Mydland, Atty. Gen., Pierre, S. D., and Roger Schiager, Special Asst. Atty. Gen., William J. Srstka, Jr. Asst. Atty. Gen., filed brief for appellee.
Before LAY, HEANEY and BRIGHT, Circuit Judges.
LAY, Circuit Judge.
This is a post conviction appeal from a denial by the federal district court of habeas corpus to a state prisoner in South Dakota. The petitioner raises two issues on appeal: (1) whether the requirement of a $3,000 cash bond was in violation of the defendant’s “constitutional right to bail,” and (2) whether the defendant’s plea of guilty was involuntarily entered.
The defendant was arrested on or about July 10, 1964, and charged with the crime of indecent molestation of a child in violation of S.D.C. § 13.1727 (Supp.1960) now S.Dak.Comp.Láws 22-22-7 (1967). A $3,000 cash bond was required pending trial. As an indigent he was unable to post the bail required. On July 15, 1964, petitioner was appointed trial counsel. On November 18, 1964, he was brought to trial. •This resulted in a hung jury. Thereafter, he was returned to jail until January 4, 1965, when he asked leave to withdraw his previous plea and enter a plea of guilty to the charge. He was sentenced to 10 years in the South Dakota penitentiary.
Petitioner has exhausted his state remedies. He was given a full eviden-tiary hearing in the state court. The decision denying him post conviction relief was affirmed by the South Dakota Supreme Court. Langdeau v. State, S. D., 179 N.W.2d 121 (1970).
Petitioner asserts that he pled guilty because of the conditions of his confinement in the Hughes County Jail. The evidence shows that the jail was not segregated by separate cells, that it was crowded beyond its normal capacity, that petitioner was harassed (primarily because of the nature of the charge pending against him), and that the petitioner did not like the food that was being given to him. At the time petitioner pled guilty he made known to the trial court his overall discontent with the jail conditions. The court then examined petitioner in detail as to whether he was entering his plea solely because of these conditions or whether he knowingly and voluntarily wanted to do so. The trial judge who accepted the plea was the same judge who heard the evidence at petitioner’s trial. We have reviewed this evidence. As the trial court commented in accepting the guilty plea, the evidence clearly substantiates petitioner’s guilt of the crime charged. In view of petitioner’s confinement under the conditions of which he complained, before accepting the plea of guilty the state trial court offered to impanel a jury and give the petitioner an immediate trial. The petitioner then answered that this would not be necessary because he wanted to enter his plea. Petitioner stated at the state post-conviction evi-dentiary hearing that his appointed counsel had told him that if he pled guilty he would get a reduced sentence. Although there is nothing of record demonstrating any plea bargaining, the statement of the trial judge indicates that the defendant did receive a reduced sentence by reason of his guilty plea.
Our analysis of the record leads us to conclude that petitioner’s discontent with his preconviction existence in the community jail served only as a circumstance, perhaps at best motivating the timing of his decision to plead guilty. Petitioner’s' distaste for his jaii food is no more a factor than his interest in obtaining a reduced sentence. As taught in Brady v. United States, 397 U.S. 742, 750, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), such factors serve only as “but for” reasons surrounding the guilty plea. The significant test remains yet to be answered: whether the plea of guilty was “an intelligent act ‘done with sufficient awareness of the relevant circumstances and likely consequences.’ ” McMann v. Richardson, 397 U.S. 759, 766, 90 S.Ct. 1441, 1446, 25 L.Ed.2d 763 (1970). Using Brady as the paradigm, the fact that the jail conditions “caused” the plea does not demonstrate that petitioner was unaware of all the surrounding factors and their “likely consequences.” Here the record unequivocally demonstrates to the contrary. The facts are insufficient to hold as a matter of law that invidious discrimination or psychological coercion induced an involuntary guilty plea. The state trial court, as did the federal district court, placed emphasis on the fact that the petitioner was represented by competent counsel and waived the court’s offer to immediately retry the case. Petitioner’s deliberate choice to waive trial cannot be easily eradicated years after the event. Many considerations may influence a defendant to plead guilty. However, these influences cannot serve to set aside a guilty plea made where counsel is present and the defendant is shown to be capable of making a deliberate and knowing decision. We cannot say that there did not exist sufficient facts to support the state trial court’s, and the federal district judge’s, finding that the plea was voluntarily made. The decisions of McMann v. Richardson, supra; Brady v. United States, supra; and Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970), along with North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), require a prisoner represented by competent counsel, where a full and fair guilty plea hearing has taken place, to assume a heavy burden to set aside his guilty plea.
In view of the conviction being sustained, the issue concerning the constitutionality of preeonviction bail is moot.
Judgment affirmed.
. According to the trial judge the verdict stood at 11 to 1 for conviction.
. See McGee, “Our Sick Jails,” Federal Probation 3, March 1971.
Question: What is the specific issue in the case within the general category of "criminal - state 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 state crimes
R. state offense, but specific crime not ascertained
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.
SHINGLETON et al. v. ARMOUR BOULEVARD CORPORATION.
No. 11067.
Circuit Court of Appeals, Eighth Circuit.
April 22, 1938.
Rehearing Denied May 12, 1938.
Eaton Adams and John B. Pew, both of Kansas City, Mo. (G. W. Humphrey, Arthur N. Adams, Arthur N. Adams, Jr., Eaton Adams, and W. H. L. Watts, all of Kansas City, Mo., on the brief), for appellants.
David M. Proctor, of Kansas City, Mo. (Phineas Rosenberg, William Buchholz, C. H. Ewald, and David M. Proctor, Jr., all of Kansas City, Mo., on the brief), for appellee.
Before GARDNER, SANBORN, and THOMAS, Circuit Judges.
GARDNER, Circuit Judge.
This is an appeal from a judgment of the bankruptcy court dismissing an amended involuntary petition in bankruptcy filed against Armour Boulevard Corporation and refusing to adjudge it a bankrupt. The ground upon which the court dismissed the petition and refused adjudication was that the petition did not state facts sufficient to constitute an act of bankruptcy. The sole question on this appeal is therefore whether the amended petition was sufficient.
The allegations of the petition pertinent to this inquiry are substantially as follows: That the Armour Boulevard Corporation did, on or about the 16th of February, 1937, while insolvent, and with .full knowledge of its insolvency, cause, suffer, and permit a creditor, one Lillian E. Meyenschein, to obtain a judgment against it in the circuit court of Jackson county, Mo., for $2974.82; that the Armour Boulevard Corporation entered its appearance in said cause and filed a confession of judgment and through its counsel presented this confession of judgment to the circuit court of Jackson county, Mo., where the cause was pending, and thereupon caused, permitted, and consented to the rendition by the said court of a judgment based upon such confession, the judgment being entered on the 16th day of February, 1937. That after judgment, the alleged bankrupt caused, suffered, and permitted general execution to issue thereon, and on or about the 3d day of March, 1937, pursuant to a general execution on such judgment, caused, suffered, and permitted the sheriff to seize and attach all debts due or to become due by the Modern Woodmen of America to said alleged bankrupt, or so much thereof as would be sufficient to satisfy its said judgment. That the alleged bankrupt, on or about the 5th of March, 1937, likewise caused, suffered, and permitted the sheriff to attach, levy upon, and seize in the hands of Thomas F. Sotham and Harold E. Sotham, both of Jackson county, Mo., all debts owing by them to the alleged bankrupt, together with all personal property, money, rights, credits, bonds, bills, notes, drafts, checks, and other choses in action, and also all other personal property of whatever kind liable to garnishment of said Armour Boulevard Corporation in possession of or under control or charge of or owing by the said named garnishees. That said transfer of property while insolvent was with the intent to prefer Lillian E. Meyenschein as a creditor over other creditors, including the petitioners; that Lillian E. Meyenschein had full knowledge of said intent. That the alleged bankrupt is asserting a claim against Thomas F. Sotham and Harold E. Sotham, the garnishees, said claim being the basis of a suit pending in the circuit court of Jackson county, Mo., entitled Armour Boulevard Corporation v. Harold E. Sotham and Thomas F. Sotham; that said suit is to recover money; that in said suit the attorneys of record of Armour Boulevard Corporation, the plaintiff, are the law firm of Proctor & Proctor. That Lillian E. Meyenschein is one of the original incorporators of the Armour Boulevard Corporation, and was its executive secretary at all times mentioned in the petition; that the books, records, and accounts of the corporation have been in her care and custody. The petition contains the usual jurisdictional allegations, sets out the character and amount and number of petitioners’ claims, but, as no question is raised as to these allegations, they need not be here reproduced.
Appellants contended in the lower court, and contend here, that the action by Lillian E. Meyenschein against Armour Boulevard Corporation, the alleged bankrupt, followed by confession of judgment and levy under execution, constituted a transfer of a portion of debtor’s property, it being alleged that Armour Boulevard Corporation was insolvent, and that such transfer was with the intent to prefer the creditor Meyenschein over the other creditors of the debtor.
Under the Bankruptcy Act, section 3a (2), 11 U.S.C.A. § 21(a) (2), a debtor who transfers while insolvent any portion of his property to one or more of his creditors with intent to prefer such creditors over his other creditors commits an act of bankruptcy. It was the manifest purpose of this subdivision of the Bankruptcy Act to .protect creditors from the voluntary act of the bankrupt in an attempt to prefer one creditor over another.
The word “transfer,” as used in the Bankruptcy Act is defined in subsection (25) of section 1, 11 U.S.C.A. § 1 (25) as follows: “ ‘transfer’ shall include the sale and every other and different mode of disposing of or parting with property, or the possession of property, absolutely or conditionally, as a payment, pledge, mortgage, gift, or security.” It may be either directly to a creditor or indirectly. Whatever the nature of the mechanics employed, if the result is to procure a creditor a preference over another creditor, the transaction is forbidden. A debtor who actively aids a creditor in obtaining a judgment by means of which his debt is secured transfers his property, and, if it is done with intent to prefer, and as a result the creditor obtains security or payment of his debt in preference to other creditors, the transaction is an act of bankruptcy. In re Truitt, D.C., 203 F. 550; Folger v. Putnam, 9 Cir., 194 F. 793; In re Nusbaum, D.C., 152 F. 835.
The lower court, in sustaining the motion to dismiss the petition, expressed the view that, if the proceeding alleged results in the giving of security on the debt- or’s property, it would constitute an act of bankruptcy, but expressed the view that the proceeding did not create a lien upon any of the debtor’s property and, hence, the' transaction did not result in giving security.
It is to be noted that the petition charges the debtor with affirmative acts. It is charged that it caused its creditor Lillian E. Meyenschein, who, by the way, was one of its officers, to obtain a judgment against it; that it filed a confession of judgment and it caused judgment to be rendered against itself upon that confession. In addition to this, it is alleged not simply that it permitted acts to be done by third parties, but that it affirmatively caused the issuance of execution, and that it caused the sheriff to attach all debts due it in the hands of Thomas F. Sotham and Harold E. Sotham, and that it levied upon all personal property in their hands due it, including choses in action. According to these allegations, it was the instigator and the prime actor in this entire proceeding.
In the case of In re Musgrove Mining Co., D.C., 234 F. 99, 100, an involuntary petition in bankruptcy was filed against the mining company. The acts of bankruptcy alleged were two confessions of judgment by the mining company. No execution had issued, but the statutes of Idaho, where the property was located, gave a judgment creditor a lien on all real estate owned by the debtor, so that in that case there was no doubt of the existence of a lien. In discussing section 3, subd. (a) (2) and subdivision (a) (3), 11 U.S.C.A. § 21 (a) (2, 3),'the court, among other things, said: “Upon consideration it is concluded that while a preference effected through judicial proceedings may fall within one class or the other, the two provisions do not necessarily overlap. The distinction is to be found in the presence or absence of an intent on the part of the debtor to give a preference, and by intent is meant an actpal, and not merely a constructive,' intent. If the debtor has acted in such a way as to give a preference with the intent and purpose so to do, it is quite immaterial by what means such purpose is accomplished, whether by judicial proceedings or in some other manner. In such case the act falls within a (2). Upon the other hand, if, through legal proceedings, a preference has in fact been permitted or procured, but without any intent or purpose on the part of the debtor to give it, then the act falls within the terms of subdivision a (3).”
In that case, no execution had issued, but there was real estate. In the instant case, execution issued and attachments were levied upon property which the alleged bankrupt said it owned. In a judicial proceeding brought against Thomas F. Sotham and Harold E. Sotham, it alleged that they were indebted to it for money had and received. And, it must be remembered, it was the alleged bankrupt who caused execution to issue and garnish-, ment proceedings to be levied, and by so' doing it again declared that Thomas F. Sotham and Harold E. Sotham were indebted to it. It is here argued that the proceedings did not constitute an act of bankruptcy because the garnishees had not admitted they had money or property in their hands. The garnishees are not parties to this proceeding, but the alleged bankrupt is- a party, and it has not only admitted, but has affirmatively declared, both by the proceedings taken and by proceedings it caused to be taken by Lillian E. Meyenschein, that these garnishees had property in their hands belonging to it. The manifest purpose of the proceeding was to reach that property, and it was the purpose of the alleged bankrupt to subject it to the payment of the judgment which it had procured against itself in favor of Lillian E. Meyenschein. Manifestly, whatever these garnishees had was subjected to the payment of this debt and it became secured thereby. It was not essential that the garnishees admit that they had money or property belonging to the alleged bankrupt. It had itself in the most convincing manner admitted this to be a fact. Having so declared and admitted when it was presumably to its advantage so to do, it should not now be permitted to escape the results of its acts by taking an inconsistent position. Holly Hill Citrus Growers’ Ass’n v. Holly Hill Fruit Products, 5 Cir., 75 F.2d 13; Texas Company v. Gulf Refining Co., 5 Cir., 26 F.2d 394; Williams v. Mason, D.C., 289 F. 812; Michels v. Olmstead, 157 U.S. 198, 15 S.Ct. 580, 39 L.Ed. 671. In any event, there was a chose in action which by the garnishment proceeding was levied upon,'and this was property within the meaning of the statute. Section 655,.Revised Statutes of Missouri 1929, Mo.St.Ann. § 655, p. 4899; section 9977, Revised Statutes of Missouri 1929, Mo.St.Ann. § 9977, p. 8015; Womach v. City of St. Joseph, 201 Mo. 467, 100 S.W. 443, 10 L.R.A.,N.S., 140.
But it is said that, even if there were property in the hands of Thomas F. Sotham and Harold E. Sotham which belonged to the alleged bankrupt, it was not by the proceedings taken under the Missouri statutes subjected to any lien, and the inference is that it was not made available for the payment of the judgment secured in favor of Lillian E. Meyenschein in preference to the bankrupt’s other creditors.
Section 1397 of the Revised Statutes of Missouri 1929, Mo.St.Ann. § 1397, p. 1612, provides as follows: “Garnishees summoned, how. When a fieri facias shall be issued and placed in the hands of an officer for collection, it shall be the duty of the officer, when directed by the plaintiff, his agent or attorney, to summon garnishees, and with like effect as in case of an original attachment.”
Section 1296 of the Revised Statutes of Missouri 1929, Mo.St.Ann. § 1296, p. 1507, provides the manner for serving writs of attachment as follows: “When the credits of the defendant are to be attached, the officer shall declare to the debtor of the defendant that he attaches in his hands all debts due from him to the defendant, or so much thereof as shall be sufficient to satisfy the debt and interest, or damages and costs, and summon such debtor as garnishee.”
In Kansas & Texas Coal Co. v. Adams, 99 Mo.App. 474, 74 S.W. 158, 160, it is said: "This statutable declaration of sequestration to the garnishee takes the place of manual seizure on account of the intangibility of the credits there referred to. It constitutes constructive seizure of the credits.”
Section 1399 of the Revised Statutes 1929, Mo.St.Ann. § 1399, p. 1615, provides that: “Notice of garnishment, served as provided in this article, shall have the effect of attaching all personal property, money, rights, credits, bonds, bills, notes, drafts, checks or other dioses in action of the defendant in the garnishee’s possession or charge, or under his control,” etc.
As before observed, the claim of the bankrupt which was the basis of an action at law against Thomas F. Sotham and Harold E. Sotham was at least a chose in action, and under this statute it was reached by this garnishment proceeding. .As between the alleged bankrupt and Lillian E. Meyenschein, it gave over to her the right to collect the Sotham debt when it caused it to be levied on under execution. Whether or not there is a lien upon physical properties levied upon in the hands of a garnishee which will follow it into the hands of third parties without notice is not, we think, here material. No such question is presented.
In Marx v. Hart, 166 Mo. 503, 66 S.W. 260, 266, 89 Am.St.Rep. 715, cited and relied upon by appellee, it is said: “By that service of the writ of attachment, the plaintiffs, while not obtaining a full and clear lien upon the specific property in their hands as against third persons, did obtain such a lien as against garnishees as gave plaintiffs the right to hold the garnishees personally liable for its value.” (Italics supplied.)
Under statutes similar to the Missouri statutes, the Supreme Court of Michigan in National City Bank v. Torrent, 130 Mich. 259, 89 N.W. 938, held that garnishment proceedings were security even before any judgment had been taken against the garnishee.
In Re Standard-Detroit Tractor Co., D. C., 275 F. 952, 954, the court, in discussing the effect of garnishment proceedings under a Michigan statute quite similar to the Missouri statute, said: “The effect, therefore, of the service of the writ of garnishment, was to fasten a lien upon the indebtedness of the garnishee defendants to the principal defendant in the garnishment proceedings, the bankrupt herein, and to thereby subject the property of such bankrupt, consisting of its right to recover such indebtedness, to the lien of such garnishment. In re Ransford [6 Cir.], 194 F. 658.”
The effect of the service of the garnishment under execution after judgment entered was at least to create an equitable lien upon whatever property was in the hands of these parties. That there was such property in their hands was admitted and declared by the alleged bankrupt, and it is not in position to complain if its declaration be accepted as true. The object and purpose of the Bankruptcy Act, 11 U. S.C.A. § 1 et seq., being to secure an equal and just distribution of the property of the bankrupt among creditors, to hold that an act of bankruptcy was not committed under the facts, as described by the amended petition, would go far to break down and destroy that purpose and object.
The judgment appealed from is therefore reversed, and the cause remanded to the lower court for further proceedings consistent herewith.
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_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.
Oscar WHITE, and all others similarly situated, Plaintiffs-Appellants, v. Edmund G. BROWN, Jr., Secretary of State, Defendant-Appellee.
No. 72-2560.
United States Court of Appeals, Ninth Circuit.
Sept. 29, 1972.
Thomas J. Gundlach (argued), San Francisco, Cal., for plaintiffs-appellants.
Robert R. Granucei, Deputy Atty. Gen. (argued), William E. James, Edward P. O’Brien, Asst. Attys. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Evelle J. Younger, Atty. Gen., San Francisco, Cal., for defendant-appellee.
Before BROWNING, ELY, and WRIGHT, Circuit Judges.
PER CURIAM:
White appeals a dismissal of his action to remove Proposition 17, the California Death Penalty Initiative, from the state’s November ballot. That initiative on its face purports to reinstate all of California provisions for the imposition of the death penalty that were in effect on February 17, 1972. February 17th is the date the California Supreme Court declared all such provisions violative of the California Constitution. People v. Anderson, 6 Cal.3d 628, 100 Cal.Rptr. 152, 493 P.2d 880 (1972).
White’s basic claim is that Proposition 17 would violate the Eighth Amendment of the United States Constitution, as applied by the United States Supreme Court in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972). In our view, White lacks standing to assert this claim.
According to White, the mere possibility of Proposition 17’s passage, regardless of the election’s actual result, will cause him the requisite injury in fact. See, e. g., Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972); Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). White is presently charged with the crime of first degree murder arising out of acts allegedly committed on or about J une 24,1972, approximately four months after the California Supreme Court’s decision in People v. Anderson, supra. Prior to Anderson, section 190 of the California Penal Code had authorized discretionary death sentencing in cases of first degree murder. White argues that the mere possibility of Proposition 17’s passage and subsequent interpretation to reinstate section 190’s death penalty and apply it retroactively to him is encouraging him and other criminal defendants similarly situated to waive various federal constitutional rights and even plead guilty now rather than risk the death penalty by stretching out their trials past the initiative’s probable effective date. Such encouragement, asserts White, is analogous to that held impermissible in United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968).
There is no substance to White’s fear that passage of Proposition 17 might subject him to the death penalty.
Proposition 17 does not apply to White’s case. By its own terms, it speaks only in the present tense: “All statutes in effect on February 17, 1972, requiring, authorizing, imposing, or relating to the death penalty are in full force and effect . . . ” (emphasis added). Even though retroactive application would arguably be insulated from attack on state constitutional grounds, there is no basis for asserting such application here.
If Proposition 17 were interpreted to apply to White’s alleged June 24th commission of first degree murder, the proposition would constitute a patent violation of article I, section 10, clause 1 of the United States Constitution: “No State shall . . . pass any . ex post facto Law . . ..” Since the California Supreme Court had on February 17th voided section 190 of the California Penal Code to the extent it authorized imposition of the death penalty for White’s alleged crime, the maximum penalty provided for that crime on the date of its alleged commission was life imprisonment. According to Justice Field, an ex post facto law is “one which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed . . ..” Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325-326, 18 L.Ed. 356 (1867) (emphasis added); see Ex parte Garland, 71 U.S. (4 Wall.) 333, 377-378, 18 L.Ed. 366 (1867). Or, in the words of Chief Justice Marshall, it is a law “which renders an act punishable in a manner in which it was not punishable when it was committed.” Fletcher v. Peck, 10 U.S. (6 Cranch.) 87, 137, 3 L.Ed. 162 (1810). There is simply no possibility that California could now sentence White to death consistently with the United States Constitution.
Finally, the representative of the Attorney General of the State of California has represented to this court, both orally and in writing, that it is the official position of the State of California that Proposition 17, if enacted, will not revive the death penalty with respect to violations of section 187 of the California Penal Code, under which White is charged; that to so apply it would contravene both the federal and state Constitutions; and, accordingly, that White may not be sentenced to death for the offense with which he is charged even if the initiative is enacted.
Since we find that White’s assertion of standing was frivolous, we need not reach the issue of whether a dismissal for want of standing could otherwise be made only by the three-judge district court requested by White. See Scott v. Hill, 449 F.2d 634, 635-637 (6th Cir. 1971), cert. denied 405 U.S. 928, 92 S.Ct. 979, 30 L.Ed.2d 801 (1972). The judgment of dismissal is accordingly affirmed. This court’s mandate shall issue forthwith, and no petition for rehearing will be entertained. See Rule 2, F.R.App.Proe.
So ordered.
. “The undersigned hereby propose that the Constitution of the State of California be amended by adding Section 27 to Article 1 thereof, permitting the death penalty as a form of punishment for criminal offenses, and petition the Secretary of State to submit this proposal to the electors of California for adoption. The text of the proposed measure is as follows:
“ ‘Section 27 is added to Article 1, to read:
“ ‘Sec. 27. All statutes of this state in effect on February 17, 1972, requiring, authorizing, imposing or relating to the death penalty are in full force and effect, subject to legislative amendment or repeal by statute, initiative, or referendum. The death penalty provided for under those statutes shall not be deemed to be, or to constitute, the infliction of cruel or unusual punishments within the meaning of Article 1, Section 6, nor shall such punishment for such offenses be deemed to contravene any other provision of this Constitution.’ ”
Brief for Appellant at 38 (App. a).
. Although California constitutional and statutory law (Cal.Const., art. I, § 16; Pen.Code, § 3) prohibits any enactment that increases criminal penalties for conduct occurring prior to the enactment’s effective date, the initiative provides that its reinstatement of the death penalty “shall not be deemed ... to contravene any other provision of this Constitution.” See note 1, supra.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_r_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.
Vella Dee JOHNSON, Plaintiff-Appellee, v. CENTRAL STATES, SOUTHEAST AND SOUTHWEST AREAS PENSION FUND, et al., Defendants-Appellants.
No. 74-1377.
United States Court of Appeals, Tenth Circuit.
Argued Jan. 23, 1975.
Decided April 7, 1975.
Maynard I. Ungerman of Ungerman, Grabel & Ungerman, Tulsa, Oklahoma (Alan M. Levy of Goldberg, Previant & Uelmen, Milwaukee, Wis., on the brief), for defendants-appellants.
Before HOLLOWAY, McWILLIAMS and DOYLE, Circuit Judges.
WILLIAM E. DOYLE, Circuit Judge.
The cause which is here appealed was originally an action seeking to recover a surviving widow’s pension. This was allegedly derived from the employment of her husband who had been a driver for Red Ball, Inc. and a member of Teamsters Local 523. The action was originally filed in state court and removed to federal district court for the Northern District of Oklahoma. Following a trial judgment was entered for plaintiff in the amount of $15,000. The Pension Fund is the appellant.
Under the terms of the collective bargaining agreement which covered him, the company paid $6.00 per week to the Pension' Fund for each employee. At the time of Johnson’s death, the company had made payments for 128 weeks, almost two and one-half years.
A booklet which was furnished to plaintiff’s husband explained the pension plan (pp. 1-28) and also included the text of the plan itself (pp. 29-44). Defendant now contends that under the terms of the Plan, plaintiff’s entitlement was limited to a death benefit of $320. Plaintiff maintains she is entitled to a survivor benefit of $250 per month for 60 months ($15,000). Her contention is founded not on the words of the plan but on several statements in the introductory explanation of the plan which she contends are ambiguous and on a letter dated August 25, 1967 sent to Johnson by the union assistant business manager.
The plan itself is not ambiguous. It allows for monthly survivor benefits only if certain specified payments have been made into the fund for the employee. Otherwise, it limits entitlement to the death benefit. The conditions for qualification for survivor benefits are as follows:
If the employee dies after his Normal Retirement Date . . . and if such employee or pensioner dies after his last employer has made contributions on his behalf under a collective bargaining agreement providing for contributions at the rate of $7.00 per week for two years and $8.00 per week thereafter or $8.00 per week for one year, $9.00 per week for the second year, $10.00 per week thereafter, a survivor benefit shall be payable to his surviving spouse.
Art. Ill, § 9(B).
If contributions of $7.00 and $8.00 have been made, the survivor is entitled to $250 per month; if contributions of $8.00, $9.00, and $10.00 have been made, the survivor is entitled to $300 per month.
In the explanation portion of the booklet, the survivor benefit is described briefly:
$135 per month payable to spouse or dependent children under 23 years of age for five months upon death of active member. $250 or $300 per month payable to spouse for balance of five years upon death of normal retirement pensioner. (Applicable only to classes of $5-$6-$7-$8 and $8-$9-$10, respectively.)
(R. 86, p. 7 of booklet).
Later the explanation recites that if death occurs after the employee becomes eligible for normal retirement, “the amount of the monthly Survivor Pension is the Normal Pension payable for 60 months to your surviving wife (or husband).” (R. 97, p. 18 of booklet). On the same page it states that the surviving wife is eligible for the pension if the last employer contributed “under an agreement providing for payments of $5-$6 — $7—$8 or $8-$9-$10 over a three year period.”
The letter relied on is that of August 1967 to Johnson from Nye, the assistant business manager, which stated that the $6 per week payment would entitle each employee to a pension of $250 per month for five years and $110 per month thereafter. According to the booklet explanation, payments by the employer of $5— $6-$7 — $8 per week over a three year period entitle the employee to the pension Nye said would be available. The Plan provision makes clear that $6 per week is not sufficient for the $250 per month pension. The Nye letter says nothing about survivor benefits.
At the trial Mr. Murtha, the administrator of pension benefits, testified that the Trustees of the Fund have never granted a survivor benefit where the employer only contributed $6 per week. He also testified that any amendments to the plan had to be approved by the Internal Revenue Service.
Plaintiff contends that she is entitled to rely on the general description of the plan contained in the introductory pages of the booklet her husband received at the plan’s inception. She further contends that this description is ambiguous and that the ambiguities ought to be resolved strictly against the scrivener. The trial court accepted these contentions and held that the payment of $6.00 per week by her husband’s employer placed her in the “$5-$6-$7-$8” category which provided for survivor benefits of $250 per month for 60 months.
This holding is clearly erroneous. Unfortunately for plaintiff, neither the plan nor its description is ambiguous. The first mention of survival benefits occurs at the front of the booklet under the heading “your pension in brief.” The description states that the survivor benefit is applicable “only to classes of $5-$6-$7-$8 and $8-$9-$10, respectively.” Immediately adjacent to this is a description of the lump sum benefit, which is applicable “to all classes other than $5-$6-$7-$8 and $8-$9-$10.” The descriptive portion of the booklet does not precisely delineate the composition of these two classes, but the plan itself (which follows the description) is explicit in this regard. It declares that survivor benefits are payable only if the employer contributed “$7.00 per week for two years and $8.00 per week thereafter or $8.00 per week for one year, $9.00 per week for the second year, $10.00 per week thereafter.”
The description in the front of the booklet does not expressly represent that employer contributions give the worker the right to be in one of the two classes of surviving beneficiaries; it could, however, lead the ordinary, unwary reader to this belief. But the plan clarifies this vagueness so that if one had been confused after reading the description (regarding the legal result of the $6 per week contribution), an examination of the plan itself serves to dispel any such belief, for it is clear from a reading of the plan that in order for a survivor to have entitlement there must have been employer payments in increasing amounts over a three year period.
Gould v. Continental Coffee Co., 804 F.Supp. 1 (S.D.N.Y.1960) and Dictaphone Corp. v. Clemons, 488 P.2d 226 (Colo. App.1971) are cited by the plaintiff-ap-pellee for the proposition that where there is a variance between the general description and the plan itself it is to be construed against the draftsman. These cases are, however, different because the plans themselves were not in those instances submitted to the beneficiaries. Only the summaries were given. It is not, therefore, surprising that the courts in those cases held that the employees had a right to rely on the summaries.
A reading of the plan makes clear the belief that a survivor’s pension is paid to anyone whose employer paid $5-$6-$7 and $8 and that a higher pension is paid to those whose employer paid $8-$9 and $10.
The letter from Nye to plaintiff’s husband is somewhat misleading. However, it does not mention survivor pensions. The mistake in that letter was made in saying that plaintiff’s husband would receive upon retirement $250 each month for five years and $110 per month thereafter. This is the amount that is received from someone who is in the higher classification of employer payments. But there could have been no reliance on that letter for the purpose of survivor benefits. Although the memorandum which was sent to the union and which is relied on by appellant did mention survivor benefits, read in its entirety it was incapable of misleading anyone.
Finally, it cannot be said that the plan itself is positively deceptive. True, it is much less than perfect in that it presents a picture of glowing generosity, whereas for the $6 per week the surviving widow receives only a small percentage of the amount paid in. This is indeed a poor plan which ought not to be available to an employer. Moreover, if there is to be a description of a plan of this kind it should describe not only the benefits but should also note the deficiencies.
Plaintiff finally urges that the appellant has violated the Welfare Pension Plan Disclosure Act, 29 U.S.C. § 301 et seq. This requires a complete description of pension plans like the one involved here. Even though the, description together with the plan is unsatisfactory, we cannot say that the appellee has violated this Act.
We are constrained to hold that the judgment of the district court is clearly erroneous from the standpoint of the facts found and must be reversed. The cause is remanded to the district court with directions to vacate the judgment and dismiss the action.
. A check, dated April 5, 1972, in the amount of $320 was tendered to Mrs. Johnson, but she refused it.
. Nye admitted at the trial that he “goofed” in including a description of the pension in his letter. It had always been his understanding that interpretation of the benefits would be left to the Pension Fund.
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_respond1_3_3
|
F
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "F" thru "N"". Your task is to determine which specific federal government agency best describes this litigant.
JANEWAY et ux. v. COMMISSIONER OF INTERNAL REVENUE. SHIELDS v. SAME.
Nos. 29, 30.
Circuit Court of Appeals, Second Circuit.
Feb. 6, 1945.
Wright, Gordon, Zachry, Parlin & Ca-hill, of New York City (Charles C. Parlin and Robert C. Brown, both of New York City, of counsel), for petitioners.
Samuel O. Qark, Jr., Asst. Atty. Gen., and Sewall Key, A. F. Prescott, and Newton K. Fox, all of Washington, D. C., for respondent.
Before CPIASE, HUTCHESON, and FRANK, Circuit Judges.
FRANK, Circuit Judge.
We read the findings of the Tax Court taken together with its opinion as saying that, as a matter of fact, all the payments made by the taxpayers to the corporation were capital contributions of such character that, as against any third persons (such as, e.g., persons contracting with the corporation) the taxpayers would have to be regarded as stockholders and nothing else. As the Tax Court’s conclusion rests upon a determination of fact supported by substantial evidence, we cannot disturb it, even under a restricted interpretation of Dobson v. Commissioner, 320 U.S. 489, 64 S.Ct. 239. Accepting that conclusion, the decision of the Tax Court is correct.
Affirmed.
That we may do so, see, e.g., Insurance & Title Guarantee Co. v. Commissioner, 2 Cir., 36 F.2d 842, 845; California Iron Yards Co. v. Commissioner, 8 Cir., 47 F.2d 514, 518; Producers’ Creamery Co. v. United States, 5 Cir., 55 F.2d 104, 108; Emerald Oil Co. v. Commissioner, 10 Cir., 72 F.2d 681, 683; Flynn v. Commissioner, 5 Cir., 77 F.2d 180, 183; California Barrel Co., Inc. v. Commissioner, 9 Cir., 81 F.2d 190, 193; Baker v. Commissioner, 6 Cir., 115 F.2d 987, 989.
Involved is the question of the credibility of the witnesses as to the taxpayers’ intentions, a question surely for the Tax Court.
See Paul, Dobson v. Commissioner: The Strange Ways of Law and Fact (1944), 57 Harv.L.Rev. 753, 822-831; Buckminster’s Estate v. Commissioner, 2 Cir., 1944, 147 F.2d 331.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "F" thru "N"". Which specific federal government agency best describes this litigant?
A. Food & Drug Administration
B. General Services Administration
C. Government Accounting Office (GAO)
D. Health Care Financing Administration
E. Immigration & Naturalization Service (includes border patrol)
F. Internal Revenue Service (IRS)
G. Interstate Commerce Commission
H. Merit Systems Protection Board
I. National Credit Union Association
J. National Labor Relations Board
K. Nuclear Regulatory Commission
Answer:
|
songer_initiate
|
G
|
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.
BEN KANOWSKY, Inc., Appellant, v. John W. ARNOLD, Appellee.
No. 16603.
United States Court of Appeals Fifth Circuit.
March 12, 1958.
G. H. Kelsoe, Jr., Dallas, Tex., for appellant.
Joe H. McCracken, III, Dallas, Tex., for appellee.
Bessie Margolin, Asst. Sol. U. S. Dept, of Labor, Washington, D. C., for amicus curiae, James P. Mitchell, Sec. of Labor.
Before CAMERON, JONES and WISDOM, Circuit Judges.
PER CURIAM.
Upon considering the petition for rehearing, along with the brief of the Secretary of Labor filed in support thereof, it is ordered that the figure $33,125.95 in Note 7 of the opinion filed December 10, 1957, 250 F.2d 47, be and it is changed to $39,751.71; and the opinion having been so modified, it is further ordered that the petition for rehearing be, and it is denied.
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_appel1_1_3
|
E
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "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.
POWELL BROS. TRUCK LINES, Inc., v. PIATT.
No. 1548.
Circuit Court of Appeals, Tenth Circuit.
Nov. 12, 1937.
W. E. Green, of Tulsa, Okl. (Grover C. James, of Joplin, Mo., and J. C. Farmer and Robt. J. Woolsey, both of Tulsa, Okl., on the brief), for appellant.
Frank Nesbitt, of Miami, Okl. (Nelle Nesbitt, of Miami, Okl., and E. B. Morgan, of Galena, Kan., on the brief), for appellee.
. Before PHILLIPS and WILLIAMS, Circuit Judges, and SYMES, District Judge.
PHILLIPS, Circuit Judge.
Piatt brought this action against Powell Brothers Truck Lines, Inc., to recover damages for personal injuries resulting from an accident which occurred about eight o’clock P. M. on September 27, 1935, on the driveway of the Oklahoma Port of Entry situated on Highway No. 66. At the close of the evidence the trial court denied a motion for- a directed verdict in favor of Truck Lines. A verdict was returned in favor of Piatt. From a judgment entered thereon Truck Lines has appealed.
Highway No. 66 runs north and south. The office of the Port of Entry is located in a one-story building about 16 feet square situated a short distance west of the highway. A semicircular driveway between 25 and 30 feet in width and between 200 and 230 feet in length extended from a point on the highway north o’f the office, past the front of the office, to a point on the highway south of the office. It was provided for the convenience of persons required to register at the Port of Entry. The eastern boundary of the driveway was marked by a wall constructed of boulders.
Piatt was engaged in selling breakfast cereal. He used in his business a Plymouth Coupé with a pickup body. On the evening of the day of the accident he was traveling north on Highway No. 66. He arrived at the Port of Entry and drove into the driveway and parked his automobile on the east side thereof, in front of the office and as close to the boulder wall as he considered it safe to drive. When he arrived a truck of the Truck Lines was parked on the west side of the driveway with its front end to the south. The radiators of the two motor vehicles were approximately opposite each other and there was a clear space of four to five feet between the two vehicles. The motor of the truck was running and the lights were on. Piatt entered the office to register. At that time there were in the office two Port of Entry employees and three truck drivers. The truck drivers completed their business and left the office. After having registered Piatt left the office and proceeded to his automobile, approaching it from the left hand side. He set hi's left foot on the running board and seized the door handle with his left hand. The Truck Lines truck started forward toward the south exit of the driveway. There was a heavy Wind blowing and Piatt feeling that his hat was about to blow off took hold of it with his left hand. The truck cut sharply to the left so that its left wheels were well over on the east half of the driveway, and the body of the trailer of the truck passed within three to four inches of the left rear fender of Piatt’s automobile. The trailer of the truck struck Piatt’s left elbow, threw him off balance, caught him and rolled him from the door of his automobile to the rear bumper thereof and threw him on the ground. His body touched the rear fender of his automobile as he was rolled by the force of the truck. His right leg caught under the rear bumper of his automobile. The left rear dual wheel on the trailer passed over his left leg, crushing it and breaking his knee-cap in three places. The truck did not stop.
At the time Piatt took his position alongside of his automobile, it and the Truck Lines truck, were the only motor vehicles in the driveway, and none were immediately approaching the driveway.
It is contended that Piatt was guilty of contributory negligence as a matter of law.
The presumption is that a duty established by law or custom will be duly discharged. One to whom a duty is owed has a right to assume that it will be performed. He is not required to anticipate negligent acts or omissions on the part of others. While reliance upon the' performance of duties by others does not excuse one from exercising due care for his own safety, it does excuse him from taking active measures for his own protection.
Piatt had the right to assume that the truck driver would keep on his side of the driveway. There were no other vehicles in the driveway and none were approaching it when Piatt took his position near the door of his automobile. There was ample space between Piatt and the truck and the position he assumed would not have exposed him to danger had the truck driver performed his statutory duty to drive on the right side of the driveway. We do not think it can be said under the attendant circumstances as a matter of law that in taking his position at the door of his automobile Piatt failed to exercise due care for his own safety.
It is true that immediately before the truck struck Piatt his hat was caught by a gust of wind and he reached for it with his left hand to prevent it from being blown off, and that the truck first struck the elbow of his left arm. It is clear, however, that the truck was cutting closer to him as it moved forward, and that its trailer would have struck his body had his left arm not been somewhat extended. In fact, the truck did strike Piatt’s body and rolled him back against his left fender and bumper and threw him on the ground. We conclude, therefore, that the act of Piatt in reaching for his hat did not contribute to his injuries as a proximate cause. Furthermore, the act of seizing one’s hat when it is about to blow off is so automatic as to be almost involuntary. Hence, if we assume that the act did contribute to the injuries, we do not think it could be said that Piatt’s act was not consistent with what a man of ordinary prudence would have done under like circumstances. Barker v. Ohio River R. Co., 51 W.Va. 423, 41 S.E. 148, 149, 90 Am.St.Rep. 808; Barry v. Terkildsen, 72 Cal. 254,, 13 P. 657, 658, 1 Am.St.Rep. 55.
It is also urged that the act of, Piatt in reaching for his hat was the immediate cause of his injuries. In Snider v. Sand Springs Ry. Co. (C.C.A.10) 62 F.(2d) 635, 638, this court said:
“One guilty of negligence is answerable for consequences flowing directly from his negligent act which should reasonably have been foreseen, unless the chain of causation is interrupted by an efficient independent cause which was not in itself reasonably foreseeable.”
In Littell v. Argus Production Company (C.C.A.10) 78 F.(2d) 955, 957, this court said:
“An intervening efficient cause is a new, intermediate, and self-executing act which breaks the causal connection between the original wrong and the injury. But, in order to absolve the initial wrongdoer from liability, the intervening act must break the chain of events in such a manner that the injury cannot be said to be the natural and probable consequence of the original wrong or to have been anticipated. In the absence of such an intervening eaus?, the original wrong extends to the result and proximates it.”
Here the act of Piatt in reaching for his hat neither caused nor would its omission have prevented the injuries. The evidence clearly showed that the truck was cutting closer to Piatt as it traveled forward and that its trailer would have struck him had he not changed the position of his left arm. It cannot be said that Piatt’s act in reaching for his hat was an intervening efficient cause.
O.S.1931, § 10327 (69 Okl.St.Ann. § 583), in part reads:
“Vehicles in meeting each other shall keep to the right of the center of the road.”
O.S.1931, § 10322 (47 Okl.St.Ann. § 91) in part reads:
“ ‘Highway’ shall mean to include any thoroughfare, highway, county road, state ■highway or state road, public street, avenue, public park, driveway, public square or place, bridge, viaduct, trestle or any other thoroughfare, or structure, public or private, designed, intended or used by or for the general public for travel or traffic or the passage of vehicles, within the State of Oklahoma.” (Italics ours.)
The trial court instructed the jury that the driveway on which the accident occurred was a public highway and if the Truck Lines driver drove past the center line of the driveway over on to the left hand side of the road he was guilty of negligence as a matter of law.
Chapter 50, art. 1, p. 208, Okl.Sess.Laws 1935 (47 Okl.St.Ann. §§ 11, 191-195), authorized and directed the Oklahoma Tax Commission to designate certain highways as Port of Entry highways, to establish a primary registration office on each of such designated highways at a suitable place, and to maintain facilities for the proper registration of all motor vehicles at such registration stations.
The driveway here involved was a part of the facilities established and maintained by the public authorities for the proper registration of motor vehicles. It was a public thoroughfare designed, intended and used by the general public for travel, traffic, and passage of vehicles. It was a driveway and the Oklahoma statute defining highway specifically includes the term “driveway."
In Southern Kansas Ry. Co. v. Oklahoma City, 12 Okl. 82, 69 P. 1050, 1054, the court said:
“The term ‘highway’ is a generic name for all kinds of public ways, including county and township roads, streets and alleys [in cities], turnpikes and plank roads, railroads and tramways, bridges and ferries, canals and navigable rivers. In short, every public thoroughfare is a highway.”
We entertain no doubt that the driveway here involved was a highway within the meaning of the Oklahoma statutory definition and that the instructions given by the court were proper.
The judgment is affirmed.
J. Maury Dove Co. v. Cook, 59 App.D.C. 61, 32 F.(2d) 957, 959, 960; Harris v. Johnson, 174 Cal. 55, 161 P. 1155, 1156, L.R.A.1917C, 477, Ann.Cas.1918E, 560; Cosse v. Ballay (La.App.) 149 So. 285, 286; Dippold v. Cathlamet Timber Co., Ill Or. 199, 225 P. 202, 206; Adams v. Gardiner, 306 Pa. 576, 160 A. 589, 591; Adams v. Fields, 308 Pa. 301, 162 A. 177, 178; Miehener v. Lewis, 314 Pa. 156, 170 A. 272, 273; Barker v. Ohio River R. Co., 51 W.Va. 423. 41 S.E. 148. 149, 90 Am.St.Rep. 808; Deputy v. Kimmell, 73 W.Va. 595, 80 S.E. 919, 51 L.R.A.(N.S.) 989, 1003, Ann.Cas.1916E, 650; Ritter v. Hicks, 102 W.Va. 541, 135 S.E. 601, 602, 603, 50 A.L.R. 1505.
Gornstein v. Priver, 64 Cal.App. 249, 221 P. 396, 401; Rosella v. Paxinos, 110 Cal.App. 299, 294 P. 39, 40; Cosse v. Ballay (La.App.) 149 So. 285, 286; Dippold v. Cathlamet Timber Co., 111 Or. 199, 225 P. 202, 206.
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:
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songer_usc1sect
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723
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 28. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
FISKE et al. v. BUDER et al.
No. 12013.
Circuit Court of Appeals, Eighth Circuit.
Feb. 16, 1942.
Rehearing Denied March 13, 1942.
Jesse T. Friday, of St. Louis, Mo. (E. J. Doerner, of Tulsa, Okl., on the brief), for appellants.
G. A. Buder, Jr., of St. Louis, Mo. (Oscar E. Buder, of St. Louis, Mo., on the brief), for appellees.
Before THOMAS and JOHNSEN, Circuit Judges, and REEVES, District Judge.
THOMAS, Circuit Judge.
In 1898, Ehrhardt D. Franz of Saint Louis, Missouri, died testate, leaving an estate consisting of stocks, bonds and real estate. By the terms of his will his widow, Sophie Franz, was given a life interest in the estate with remainder over in equal shares to his ten children.
In 1909 the surviving widow created a trust, the res of which consisted of all the property owned by her in her own right and also as life tenant under the will of her deceased husband. The appellee, G. A. Buder, and G. A. Franz, now deceased, one of the sons of Ehrhardt D. Franz and Sophie Franz, were named as trustees in the instrument creating the trust. A clause of the instrument also provided that the law firm of Buder and Buder consisting of G. A. Buder, a trustee, and his brother, Oscar E. Buder, should be employed by the trustees as their counsel.
About 1924 dissension arose between the trustees and the owners of 6% shares of the remainder estate on one side and the owners of 3% shares on the other. The dissension resulted in litigation which has been carried on in the courts of Missouri and the Federal courts ever since. The facts necessary to a complete understanding of this controversy will be found in the reported decisions of the Supreme Court of Missouri, of the Supreme Court of the United States, and of this court.
Sophie Franz died in 1930, and her life estate was thereby terminated. The trustees under the trust agreement of 1909 claimed as compensation for their services a commission of five per cent estimated not only upon that part of the trust res which had been owned by Sophie Franz in her own right, but also upon the remainder interests of her deceased husband’s estate. The owners of 3% of the remainder interests objected to the allowance against their property but the owners of the 6% interests, then also represented by Buder and Buder, consented to the allowance. On April 1, 1932, an order was entered in the district court denying the commission upon the 3% shares of the objecting remainder-men but providing “that the said Trustees be allowed a credit for a commission of five per cent upon the value of the remaining 6% shares of the corpus of the estate in their possession.”
In 1939 the five appellants, who are among the owners of the 6% shares, moved the court to modify the order of April 1, 1932, “so as to vacate * * * that portion * * * which allows the claim of the trustees to a 5 per cent commission upon” the appellants’ remainder interests. The trustees filed an answer to the motion, and after a full hearing at which evidence was offered and received an order was entered on December 17, 1940, overruling the motion. The appeal is from this order.
The trust estate was brought under the jurisdiction of the district court in 1924 in the case of E. W. Franz v. G. A. Buder, et al., a case in which jurisdiction is based upon diversity of citizenship. See Franz v. Franz, 8 Cir., 15 F.2d 797. That case is still pending for the purpose at least of administering and closing the trust. In all the proceedings and litigation growing out of the trust the law firm of Buder and Buder represented the trustees and from 1926 until 1935 that firm also represented the appellants. On May 17, 1930, the appellants with the assistance of Buder and Buder, their attorneys, filed a Petition for Distribution of Remainder Interests in which it was stated that they were informed that the trustees under the conveyance of January 30, 1909, had filed, or would file, their petition asking for instructions as to making a distribution of the remainder estate. Among other recitations of the petition it was said: “And your petitioners inform the Court that they have agreed with divers other remaindermen that the said Trustees shall be allowed five per cent (5%) on the Trust Estate as compensation for their services as such trustees, and your petitioners consent to and hereby request that such allowance be made and that the Trustees be permitted to deduct and retain such five per cent (5%) out of their remainder interests aforesaid.”
The report of the trustees was filed about a year later, and in it they claimed a credit for a five per cent commission on the remainder estate.
The grounds of the motion to modify the order of April 1, 1932, by vacating the allowance of a commission to the trustees based upon the remainder interests were: (a) That Buder and Buder, while acting as appellants’ attorneys, for the purpose of enhancing the trustees’ commissions had by fraudulent representations, upon which they relied, procured appellants to sign the Petition for Distribution of May 17, 1930, consenting to the allowance of such commission, and (b) that as a result of the fraud complained of the appellants were deprived of their day in court to contest the allowance of said commission.
The fraudulent representations alleged to have been made were (1) that the trustees were entitled to a five per cent commission based upon the value of the interests of the several remaindermen; (2) that the remaindermen were legally obligated to pay such commission; and (3) that (a) unless appellants followed their advice and agreed to pay the commission the distribution of their remainder interests would be indefinitely postponed, and (b) that upon application of the trustees the court would allow a commission upon the remainder interests in excess of five per cent.
In their answer to the motion appellees admit the historical background alleged in the motion and as defenses plead (1) that the motion is a collateral attack upon the order; (2) that at various times prior to the death of the life tenant appellants had agreed that the trustees should be given a five per cent commission upon their remainder interests; (3) deny the alleged fraudulent representations; and (4) allege laches.
The questions presented upon this appeal for determination are: (1) Does the district court have power to grant the relief asked in appellants’ motion? (2) If so, are the appellants guilty of laches so as to deprive them of the right to relief? And (3) if not guilty of laches, are they entitled to relief on the merits?
1. The Power of the District Court.— After appellants had filed their motion to modify the order of April 1, 1932, appellees moved to dismiss and strike it on the ground that the court was without jurisdiction over the subject matter of appellants’ motion. Appellees’ motion was overruled by the court, and no cross appeal has been taken. The only question which can be raised on this appeal, therefore, is the power of the district court to act in the premises. It is the contention of appellees that the relief asked by appellants’ motion is barred by Rule 60(b) of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c. The motion was not filed within six months after the order sought to be modified was entered. Rule 60(b) provides: “On motion the court, upon such terms as are just, may relieve a party or his legal representative from a judgment, order, or proceeding taken against’ him through his mistake, inadvertence, surprise, or excusable neglect. The motion shall be made within a reasonable time, but in no case exceeding six months after such judgment, order, or proceeding was taken. A motion under this subdivision does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court (1) to entertain an action to relieve a party from a judgment, order, or proceeding, or (2) to set aside within one year, as provided in Section 57 of the Judicial Code, U.S.C., Title 28, § 118, a judgment obtained against a defendant not actually personally notified.”
It is argued that this proceeding does not come within the first saving clause of the rule which provides that the rule “does not limit the power of a court (1) to entertain an action to relieve a party from a judgment, order, or proceeding * * *” for the reason that this clause
applies only to original “actions”, and that appellants’ motion is not such an action. It is conceded by appellants, as it must be, that the motion to modify is in the nature of an ancillary proceeding. Simkins: Federal Practice, § 812; Thompson v. Schenectady Ry. Co., C.C.N.Y., 124 F. 274, 277, 278; Wallace v. Fiske, 8 Cir., 80 F.2d 897, 901, 902, 107 A.L.R. 726; St. Louis-San Francisco R. Co. v. Byrnes, 8 Cir., 24 F.2d 66; Dickey v. Turner, 6 Cir., 49 F.2d 998; 1 Moore’s Federal Practice, pp. 462, 465, 466. In this situation the effect and proper construction of Rule 60(b) must be determined. Here the case in which the motion was made is still pending, and the order sought to be modified relates to the administration of a fund in the custody of the court. The question is, does the court in the administration of justice have power under the circumstances to hear and determine the issue presented by the motion and the answer; or more than six months having elapsed after the order was entered before the motion was filed, does Rule 60(b) deprive the court of such power?
Rule 60(b) is based upon § 473 of the Code of Civil Procedure of California, and the question arises whether we should follow the construction placed upon it by the Supreme Court of that state. The general rule is that when a statute is adopted from another jurisdiction, in substantially the same language, the provisions so adopted are to be construed in the sense in-which they were understood at the time in the jurisdiction from which they were: -taken. Metropolitan Railroad Co. v. Moore, 121 U.S. 558, 572, 7 S.Ct. 1334, 30 L.Ed. 1022; United States v. Lecato, 2 Cir., 29 F.2d 694, 695. This is not in conflict with the rule that new legislation must be construed and applied consistently with the construction placed upon the related parts of the general law. United States ex rel. Demarois v. Farrell, 8 Cir., 87 F.2d 957, 962, 963; United States v. Jefferson Electric Co., 291 U.S. 386, 396, 54 S.Ct. 443, 446, 78 L.Ed. 859. And the latter rule does not impair the application of the first to the construction of Rule 60(b). 18 Hughes, Federal Practice, Rules Civil Procedure, p. 445, § 25631 et seq.
The Supreme Court of California has several times had occasion to construe § 473 of the California Code of Civil Procedure in cases where it was sought to vacate a judgment or decree after the period limited by the statute had expired. In Chiarodit v. Chiarodit, 218 Cal. 147, 21 P.2d 562, 564, the court said: “We now turn to consider whether the notice to set aside and vacate the decree was timely given. The notice was served before the expiration of six months but the time set for making the motion fell beyond the limit of section 473 of the Code of Civil Procedure. Those authorities which hold that the motion must actually be made within the period are beside the point in the present case for the reason that here the fraud established by the showing of the respondent was extrinsic. (McGuinness v. Superior Court [196 Cal. 222, 237 P. 42, 40 A.L.R. 1110], supra; Tomb v. Tomb, 120 Cal.App. 438, 7 P.2d 1104), and it has been determined that where it is of that character, the court has the inherent power to set aside the decree regardless of the limitations prescribed by section 473. McGuinness v. Superior Court, supra; Aldrich v. Aldrich, 203 Cal. 433, 264 P. 754; McKeever v. Superior Court, 85 Cal.App. 381, 259 P. 373; Tomb v. Tomb, supra.”
Applying the construction thus placed upon the California statute to Rule 60(b), the district court had power to decide the issue presented by the motion and answer provided the fraudulent representations alleged constitute extrinsic fraud. That question may be discussed more appropriately hereinafter in connection with our decision on- the merits of the controversy. Our conclusion there is that the alleged fraud is extrinsic or collateral. We hold,- therefore, that the district court had power to hear and determine the issues. See, also, Preveden v. Hahn, D.C.S.D.N.Y., 36 F.Supp. 952, 953.
2. Laches. — The contention that appellants’ right to relief is barred by laches, although serious, should not be sustained.
By far the greater part of the property subject to the life estate of Sophie Franz and transferred by her to the trustees consisted of stock dividends issued by corporations. In the early history of the trust it was contended by the trustees that such stock dividends were income belonging to the life tenant and consequently a part of the trust fund subject to a commission to the trustees. It was further contended that the remainder interests had been cancelled by advancements made by the life tenant to the remaindermen. Another claim was that the appellants had by valid contract as early as 1909 agreed to pay the trustees a five per cent commission upon their remainder interests. Practically all of these matters were adjudicated by this court in Buder et al. v. Franz et al., 8 Cir., 27 F.2d 101, decided in 1928. It was there held that stock dividends on stock held in a trust estate are part of the corpus of the estate and not income. It was also held that the remaindermen under the Franz will were not estopped to assert their interest in the securities held by the trustees. The state of Missouri, however, claimed that these stock dividends had by gift or otherwise been surrendered by the remaindermen and belonged to the life tenant. Had this contention been sustained the value of such stock dividends would have been subject to the inheritance tax of the state of Missouri. They would also have been a part of the trust res and liable to the trustees’ commission, because the trust agreement was a Missouri contract and subject to Missouri law. State of Missouri v. Fiske, 290 U.S. 18, 23, 54 S.Ct. 18, 78 L.Ed. 145. In Re Franz’ Estate, 344 Mo. 510, 127 S.W.2d 401, decided March 15, 1939, rehearing denied April 20, 1939, the Supreme Court of Missouri decided these contentions against the state and the trustees.
This ancillary proceeding was filed by the appellants on May 12, 1939, within two months after the decision of the Supreme Court of Missouri in the Franz’ Estate case supra. It was, in view of these circumstances, seasonably filed. It is true that it might have been filed more than six years earlier, but the appellants until that time had no conclusive reason for not believing the representations of Buder and Buder, and for believing that their interests would not be held to belong to their mother’s estate -and to be a part of the trust estate. There could be no distribution of the estate until after the decision of the Supreme Court of Missouri in the Franz’ Estate case supra. See State of Missouri v. Fiske, supra.
in the case of Wallace v. Fiske, supra, this court, at page 912 of 80 F.2d, 107 A.L.R. 726, said:
“ ‘Laches does not, like limitation; grow out of the mere passage of time. But it is founded upon the inequity of permitting the claim to be enforced — an inequity founded upon some change in the condition or relations of the property or the parties.’ Galliher v. Cadwell, 145 U.S. 368, 12 S.Ct. 873, 36 L.Ed. 738. ‘The length of time during which the party neglects the assertion of his rights, which must pass in order to show laches, varies with the peculiar circumstances of each case, and is not, like the matter of limitations, subject to an arbitrary rule. It is an equitable defense, controlled by equitable considerations, and the lapse of time must be so great, and the relations of the defendant, to the rights such, that it would be inequitable to permit the plaintiff to now assert them.’ Alsop v. Riker, 155 U.S. 448, 461, 15 S.Ct. 162, 167, 39 L.Ed. 218.
' “The chancellor will determine the extraordinary’ case in accordance with the equities which condition it. Kelley v. Boettcher, [8 Cir.], 85 F. 55.
“ ‘Laches which will bar a suit in equity depends on the peculiar circumstances of each case, and where the complainant’s inaction does not appear to have worked injury to any one, and.it is not shown that there was any occasion for more promptly asserting his rights, the defense will not prevail.’ Hanchett v. Blair [9 Cir.], 100 F. 817.”
Since, as shown supra, no distribution of the property was possible while the litigation was pending in . the Missouri courts, the parties could not be injured by the delay. It is argued by appellees that certain fights of Honorable James A. Reed had intervened during the delay and that he will be injured by a reversal of the order appealed from. The order of April 1, 1932, directed the trustees to pay Reed $14,000 out of the commissions paid to them. It does not appear that the commissions pay-' able to the trustees in.any event'will not be sufficient to pay this sum. Further, this allowance was made pursuant .to a request of the trustees contained in their report. Reed was not a party to the .suit, and he was given no judgment against the appellants.
Appellees 'assert further that they are prejudiced because of the death of G. A. Franz on July 30, 1939, prior to the trial of this case. His testimony, they assert, would have been important in reference 'to a certain resolution adopted by the parties at Las Vegas, New Mexico, in May, 1909. But the minutes of that meeting were introduced in evidence; and other witnesses were present at that and all other meetings material to the issues, and testified at the hearing. It does not appear' that appellees are in any way prej udiced by the death of Franz. The appellants should not be barred by laches.
3. The Merits. — The’merits of the controversy depend (I) upon the establishment of the alleged fraudulent representations of Buder and Buder inducing appellants to sign the Petition for Distribution on May 16, 1930; that such fraud prevented appellants from excepting to and defending against the allowance of:the claimed com-: mission; and (2) that such fraud, if established, was in its nature extrinsic rather than intrinsic. ■ •
It is the law that fraud must be proved by clear and convincing evidence. Continental Nat. Bank v. Holland Banking Co., 8 Cir., 66 F.2d 823, 830. It must appear also that the, fraud was practiced in the very act of procuring the judgment or order sought to be vacated or' modified and that it was extrinsic or collateral as distinguished from intrinsic fraud. United States v. Throckmorton, 98 U.S. 61, 25 L.Ed. 93; Phœnix Finance Corporation v. Iowa-Wisconsin Bridge Co., 8 Cir., 115 F.2d 1 (reversed on other .grounds by the Supreme Court in Phœnix Finance Corporation v. Iowa-Wisconsin Bridge Co., 62 S.Ct. 139, 86 L.Ed. -).
The evidence upon this question is conflicting. The appellants without dispute, following the death of the.,life tenant on April 14, 1930, met at the Chase Hotel in Saint Louis on May 16, 1930, for the- purpose of consulting their. attorneys, Buder and Buder, and to procure -a prompt distribution of their remainder; .interests in their . deceased father’s - estate. • ■ Some of them consulted G. A. Buder at his law office in the city the preceding day. Oscar E. Buder met with them at the hotel in both a forenoon and an afternoon session.
At the hearing the appellants testified unequivocally that the alleged representations were on the occasions mentioned made by both the Buders, and both the Buders unequivocally denied having made the statements attributed to them. Both parties claim that their testimony is corroborated by many pertinent facts.
It is the claim of appellees that it was the expressed wish of the life tenant that the trustees should be paid a commission of five per cent estimated upon the value of both the life and remainder estates; that her wish was communicated to the appellants and the appellants consented to the carrying out of her wishes.
It is next claimed that in May, 1909, within four months after the execution of the trust agreement of January 30, 1909, and twenty-one years prior to the execution of the Petition for Distribution, a family conference was held at Las Vegas, New Mexico, at which all the members of the family were present except Mrs. Zimmermann and E. W. Franz; and that at that conference a valid contract was entered into fixing the compensation of the trustees at five per cent of the entire property in the trustees’ hands.
. As showing adherence to the alleged agreement of May, 1909, the appellees refer to an agreement made in 1920, by the terms of which the remaindermen paid the trustees a five per cent commission on the distribution of 12,600 rights to subscribe to stock of the Burroughs Adding Machine Company.
Again, in November, 1929, at a family gathering called by the life tenant an instrument was prepared by Buder and Buder for the purpose of distributing a portion of the trust estate. That instrument, signed by the appellants, contained a provision that the trustees should receive a five per cent ■commission upon all the property distributed. That agreement did not become effective because E. W. Franz refused to sign it.
Finally, the Petition of May 17, 1930, the execution of which appellants claim was obtained by fraudulent representations of Buder and Buder, contained a provision that the trustees should retain a commission of five per cent of the market value of the stock distributed for their services in handling the assets of the trust.
Further, the appellees say the evidence of fraud is not clear and convincing but vague and indefinite because the testimony of appellants as to attendant circumstances is not clear and because their positive and direct testimony is denied by both the Buders.
The appellants contend, first, that there is no basis in either law or equity for the allowance of a commission to the trustees appointed by the life tenant payable out of the remainder estates. A life tenant is a quasi trustee for the remainder-men and liable for waste. It was so held by this court in Buder v. Franz, 8 Cir., 27 F.2d 101, 114. In the opinion of Judge Faris in connection with the order of April 1, 1932, he declared that remaindermen are not liable to burdens placed upon their remainder interests by the life tenant and that counsel for the trustees concede the bare bones of the law to be according to the contentions of the 3% excepting interests on this point, and that the trustees relied only upon a species of estoppel resting partly upon the former recognirion of the trust and partly upon the request of practically all of the beneficiaries. The trustees’ charges are lawfully deductible only from the income of the life tenant as a part of the expenses of the trust created by her. Missouri Central Building & Loan Ass’n v. Eveler, 237 Mo. 679, 141 S.W. 877. Their charges are not deductible from the remainder estate because they did not “create, enhance, preserve, or protect” that estate. Abbott, Puller & Myers v. Peyser, Receiver, App.D.C., 124 F.2d 524, 525, decided December 31, 1941.
Second, Buder and Buder, as counsel for the trustees and for more than nine years attorneys for these appellants, consistently claimed and advised that the trustees were entitled to a five per cent commission upon the remainder estates. They consistently endeavored by the instruments which they drew for appellants’ signatures to extinguish the remainder interests and to merge them with the life estate; and that appellants’ signatures were obtained to these various instruments because of their confidence in Buder and Buder and their reliance upon the advice and counsel so given them. The evidence supports these contentions of appellants. G. A. Buder admits their truth. That is the position taken by Buder and Buder in the litigation in both the federal and the state courts. Their explanation of this conduct is that it was a mistake of law, and that the law of Missouri was not settled with respect to the question of whether a stock dividend is income or corpus during that period. That question was settled, however, by the Supreme Court of Missouri in 1927 by its decision in the case of Hayes v. St. Louis Union Trust Co., 317 Mo. 1028, 298 S.W. 91, 99, 56 A.L.R. 1276. In that case the question was whether stock dividends on stock held in trust constituted income or whether they were a part of the corpus. The court held “that the stock dividends were not income of the trust estate but an accretion to the corpus * * After that decision was rendered there was no excuse for a Missouri lawyer to maintain or advise to the contrary.
The other contentions of Buder and Buder as to the validity of contracts prior to May 17, 1930, and as to the effect to be given the conduct of the appellants is answered by the decision of this court in Buder v. Franz, 8 Cir., 27 F.2d 101, 115. In our opinion in that case, Judge Stone, speaking for the court, said: “It is clear, from this record, that this entire controversy has been caused by the trustees. They have consistently and persistently refused to accord the cross-appellants the rights which were due them. They have gone further than this and have and do deny the existence of any and all rights and interest in the cross-appellants. Such course of conduct has compelled this litigation to establish those interests and to enforce and protect the resulting rights.” In that case the appellant and cross-appellants were the owners of 3% remainder interests, but the same conduct of the trustees applied with equal or greater force to these appellants because at that time they were subj ect to the influence of Buder and Buder as their attorneys.
The course of conduct of the trustees condemned by the court in the last cited case, as shown by this record, did not end with the decision of that case. Acting through their counsel, Buder and Buder, they continued in the determination to secure a five per cent commission on the remainder estates. The procuring of the signatures of the appellants to the Petition for Distribution of May 17, 1930, was but a part of that continued purpose. When the record is studied as a whole this fact is established by evidence so clear and convincing that it cannot be doubted. As late as 1931 the trustees filed a claim in the probate court of Saint Louis against the estate of Sophie Franz, deceased, for a five per cent commission upon both the life estate and the remainder interests as constituting the trust fund- in the amount of $810,001.22 as compensation for their services, alleging that all parties in interest had acquiesced in and consented to the charge. That the appellants trusted and relied upon Buder and Buder in signing the Petition is shown by appellants’ entire course of conduct during the period of their employment of Buder and Buder from 1926 until 1935.
The conclusion is also irresistible that appellants did not except to the trustees’ report nor make any defense to the claim of the trustees for credit for a commission upon the remainder interests for the same reason that they signed the Petition for Distribution containing a consent to the allowance of such credit. At that time the life tenant was dead and they were anxious to come into the possession of their remainder interests. They believed that the way to accomplish that desire was to follow the advice of their counsel. To do so involved a failure to file exceptions and contest the allowance which upon the representations and advice of their counsel they had requested the court to make. It is undisputed that Buder and Buder did not tell their clients, the appellants, that they had a right to contest the claimed commissions, nor that the law did not support the contention that the trustees were entitled to such a commission.
Another matter of concern to the court is the undisputed fact that the fiduciary duty of G. A. Buder as attorney for the appellants was in direct conflict with his interest-as a trustee claiming a commission upon their property to which under the law he was not entitled. Such a position is not tenable. It has always been condemned by courts. The relation obviously inspires confidence in the client, and a mere breach of fidelity to the client’s interest is constructive fraud and gives the client a right to redress. Jones v. Byrne, C.C.Ark., 149 F. 457, 464; Baker v. Humphrey, 101 U.S. 494, 495, 25 L.Ed. 1065; Parkerson v. Borst, 5 Cir., 264 F. 761; In re Conrad, 340 Mo. 582, 105 S.W.2d 1. In the litigation pending in the courts from 1926 to 1935 G. A. Buder occupied a fiduciary relation of several angles. He was one of the trustees of the trust estate of S.ophie Franz by reason of which the trustees had possession of the remainder interests under the will of Ehrhardt D. Franz. He had been attorney for the testator. He was Sophie Franz’ attorney. He and his brother were attorneys for the trustees and they were also attorneys for the appellant remaindermen.
Turning to the question of the nature of the fraud complained of as a ground for relief, it is the rule that fraud is extrinsic or collateral within the meaning of the rule when its effect is to prevent an unsuccessful party from having a trial or from fully presenting his case, as, for instance, when his attorney fraudulently connives at his defeat or sells out his client’s interest. Montgomery v. Gilbert, 9 Cir., 77 F.2d 39, 45. It is always extrinsic fraud for an attorney to fail fully to disclose to his client all material facts in any transaction in which their interests are adversary and when such fraud results in a failure of the client to defend against the claim of his attorney. Hockenberry v. Cooper County State Bank, 338 Mo. 31, 88 S.W.2d 1031, 1036. Fraud which prevents a person from presenting an available defense is proper ground for relief against a judgment. Footnote 12, 31 Am.Jr., § 6'54, p. 232. If the fraud really prevents the complaining party from making a full and fair defense it will justify setting aside a decree, whether extrinsic or intrinsic. Toledo Scale Co. v. Computing Scale Co., 261 U.S. 399, 421, 43 S.Ct. 458, 67 L.Ed. 719. In the present instance the conduct and fraudulent advice and representations of Buder and Buder had the direct effect of preventing the appellants from presenting an available defense to the claims of the trustees for a commission based upon the value of the appellants’ remainder estates. For that reason the allowance of the credit claimed in the trustees’ report and granted in the order of April 1, 1932, should be vacated and set aside. The motion should not be denied because of lapse of time under the circumstances of this case since this is purely an ancillary proceeding, since the fund being administered is under the control of the court and undistributed, and since the parties cannot be prejudiced by such an act of justice. In such a case technical considerations should be accorded little weight, unless their effect is to deprive the court of power to act.
The order appealed from is reversed with directions to enter an order sustaining appellants’ motion.
Franz v. Buder, 8 Cir., 11 F.2d 854; Franz v. Franz, 8 Cir., 15 F.2d 797; Buder v. Franz, 8 Cir., 27 F.2d 101; Franz v. Buder, 8 Cir., 34 F.2d 353; Franz v. Buder, 8 Cir., 38 F.2d 605; Mississippi Valley Trust Co. v. Buder, 8 Cir., 47 F.2d 507; Mississippi Valley Trust Co. v. Franz, 8 Cir., 51 F.2d 1047; Fiske v. State of Missouri, 8 Cir., 62 F.2d 150; Wallace v. Franz, 8 Cir., 66 F.2d 457; Wallace v. Franz, 8 Cir., 68 F.2d 313 ; Fiske v. State of Missouri, 8 Cir., 69 F.2d 683; Wallace v. Fiske, 8 Cir., 80 F.2d 897, 107 A.L.R. 726; Fiske v. Wallace, 8 Cir., 117 F.2d 149; In re Franz’ Estate, 344 Mo. 510, 127 S.W.2d 401; State of Missouri v. Fiske, 290 US. 18, 54 S.Ct. 18, 78 L.Ed. 145.
Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 28? Answer with a number.
Answer:
|
songer_subevid
|
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's interpretation of the substantial evidence rule support the government? For example, "such evidence as a reasonable mind might accept as adequate to support a conclusion" or "more than a mere scintilla". This issue is present only when the court indicates that it is using this doctrine, rather than when the court is merely discussing the evidence to determine whether the evidence supports the position of the appellant or respondent." 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. Robert OWENS, Eugene Howell, Joseph Lyle and Zenobia Owens, a/k/a Zenobia McKinley, Defendants-Appellants.
No. 14681.
United States Court of Appeals Seventh Circuit.
June 2, 1965.
Rehearing Denied June 29, 1965.
Stephen Love, Ellis E. Reid, George N. Leighton, Chicago, 111., for appellant.
Edward V. Hanrahan, U. S. Atty., Gerald M. Werksman, Asst. U. S. Atty., Chicago, 111., John Peter Lulinski, John Powers Crowley, Asst. U. S. Attys., of counsel, for appellee.
Before ENOCH, CASTLE and KILEY, Circuit Judges.
KILEY, Circuit Judge.
Defendants appeal from their convictions, by a jury, of narcotics laws violations : Lyle under two substantive counts, and all under a conspiracy count. We affirm.
Defendants contend that the evidence was not sufficient to sustain the verdicts finding them members in, and guilty of, the general conspiracy charged in the indictment. On this contention we must view the evidence and draw the inferences therefrom in the light most favorable to the Government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1941); United States v. Iacullo, 226 F.2d 788, 795 (7th Cir. 1955), cert. denied 350 U.S. 966, 76 S.Ct. 435, 100 L.Ed. 839 (1956).
There is ample evidence from which the jury could infer that Eugene Howell and Robert Owens were at the top of a heroin hierarchy and that the narcotics passed from them down through “Red” Thomas and Joseph Lyle — all aided by Zenobia Owens — to the addicts at the base, and that they all knowingly joined in the unlawful conspiracy charged in the indictment. That the members had varied duties does not change the fact that they all acted in furtherance of the same conspiracy. United States v. Micele, 327 F.2d 222, 225 (7th Cir. 1964); United States v. Wenzel, 311 F.2d 164 (4th Cir. 1962); Poliafico v. United States, 237 F.2d 97 (6th Cir. 1956), cert. denied 352 U.S. 1025, 77 S.Ct. 590, 1 L.Ed.2d 597 (1957).
There is evidence that Marvin Moses in looking for a source of narcotics was introduced by Owens to “Red” Thomas; that when Moses called the number given him by Thomas, Zenobia Owens would take the messages for Thomas; that Thomas sold narcotics to Moses; that Zenobia Owens, at least once, picked up money for Thomas at the place where the money and narcotics were customarily exchanged; that Moses later became an informer and introduced Agent Gibson to Thomas, who sold Gibson heroin; that Howell and Owens were arrested together on the Pennsylvania Turnpike and Howell was found in possession of narcotics ; that Howell admitted to the Pennsylvania police that he was returning from a trip to New York to obtain narcotics; that following the arrests Thomas told Moses he could not do anything for him then because “his men” had been arrested in Pennsylvania; and that Thomas later told Gibson that “his people * * * had gotten popped” on the Turnpike but that the stuff that was found did not belong to “his man, Robert.”
There is evidence also that Lyle sold a small sample of heroin to Agent Dayle and told him there would be a delay in supplying larger quantities because “my people” were arrested on the Pennsylvania Turnpike, but that he would have heroin in quantity for Dayle “as soon as they get back from Pennsylvania”; and that Lyle also said “they found the stuff on Gene.”
The evidence is further that Moses brought together Dayle and Owens, who said his “partner” and he “got busted along the turnpike”; that Owens gave Dayle the same telephone number given to Gibson by Thomas; that Owens and Thomas were seen together in a night club and that Thomas, after making sales of narcotics, went to a house where he was let in by Owens; that Owens drove Lyle’s car on several occasions; that Thomas gave Gibson a second telephone number to use; and that Owens was the owner of the building in which were located the two telephones involved in the transactions, one registered to Zenobia Owens and the other to Lily Starkey, who owned the car in which Owens and Howell were arrested.
We think this evidence was clearly sufficient to support the jury’s verdict.
Defendants challenge the rulings of the district court in denying motions to suppress heroin seized from Howell by the Pennsylvania State Police following his arrest there and in refusing to suppress evidence seized from the residences of Howell and Zenobia Owens at the time of their arrests.
Howell was driving with Owens and one Hightower in a new Cadillac convertible on the Pennsylvania Turnpike when he was arrested for speeding. An on-the-spot interrogation disclosed the suspicious circumstance that the car was registered in the name of Lily Starkey, whom Howell said he did not know and from whom neither Owens nor Howell could show permission to drive the car. The Pennsylvania officer, suspecting that the car was stolen, questioned Owens about the contents of the trunk, which Owens opened, revealing three suitcases. Owens disclaimed ownership of one of the suitcases, which was unlocked, and when opened by the officer contained, in open view, a crude hypodermic needle of a type used by addicts. Searching further in the suitcase the officer found a burnt spoon with a bent handle, also an addict’s tool, and a loaded revolver. A search of Howell at the police station disclosed in his shoe a package of nearly pure heroin.
It is clear from the facts in the record that the arrest for speeding was not “a mere excuse to search” for narcotics as in Taglavore v. United States, 291 F.2d 262, 265 (9th Cir. 1961), and that the arrest was valid under Pennsylvania law, which controls that question. United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1948); United States v. Viale, 312 F.2d 595, 599 (2d Cir.) cert. denied 373 U.S. 903, 83 S.Ct. 1291, 10 L.Ed.2d 199 (1963). The surrounding circumstances justified the arresting officer in suspecting that he was dealing with a situation more serious than routine speeding and he had reasonable grounds for believing that the car might be stolen. There is nothing to indicate that the officer suspected the presence of any narcotics or other violation until the suitcase was opened, disclosing the needle. Considering the situation which faced the officer, his attempts to determine whether the car was stolen were not unreasonable or violative of the Fourth Amendment, and the evidence which was turned up was not the fruit of any “poisonous tree.”
The arrests of Howell and Zenobia Owens in Chicago were concededly valid. The question is whether the district court erroneously ruled that the attendant searches were not unreasonable under the Fourth Amendment. Both Howell and Zenobia Owens were arrested on May 6, 1963. At Howell’s home two books lying in open view were seized, each containing the second telephone number given to Gibson by “Red” Thomas, and the notation “Red.” In the residence of Zenobia Owens a slip of paper bearing the same number and notation “Red” was found in her purse in the bedroom.
Defendants argue that the books and slip of paper were seized unlawfully in a general search “solely for evidence.” There is no merit in the argument. The items were seized pursuant to a lawful arrest where the officers were looking for “Contraband, fruits of the crime,” as the arresting officer testified. The items seized were closely related to the means of communication by telephone essential to the successful conduct of the conspiracy and fall within the class of instrumentalities of crime properly subject to seizure incident to arrest. Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed.2d 1399 (1947); Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960); United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950); Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231 (1927); United States v. Boyette, 299 F.2d 92 (4th Cir.), cert. denied sub nom. Mooring v. United States, 369 U.S. 844, 82 S.Ct. 875, 7 L.Ed. 2d 848 (1962).
Lyle was charged with selling heroin on February 15, 1963 to Agent Dennis Dayle, and with fraudulently and knowingly receiving, concealing and facilitating the transportation and concealment of unlawfully imported heroin on the same day. The evidence taken most favorably for the Government, United States v. Iacullo, 226 F.2d 788, 795 (7th Cir. 1955), substantially proves the offenses charged.
Lyle testified in support of his defense of entrapment that his friend and former attorney, who had become a Government informer, by persistent importuning arranged the meeting with Dayle. Dayle’s testimony shows that Lyle readily agreed to the transaction and that he tried to impress Dayle with his connection with Owens and Howell, and spoke of doing business “in a million dollar way.” In this testimony and that of Agent Cook, in rebuttal, of sales of narcotics by Lyle to him in April 1962, the jury had sufficient basis to find that Lyle was predisposed to the transaction and was not entrapped.
Defendants contend that Cook’s testimony was improper and prejudicial to them since the testimony was of transactions unconnected with the charges in the indictment. The testimony was proper as an inquiry into Lyle’s predisposition to commit the crime, Sorrells v. United States, 287 U.S. 435, 451, 53 S.Ct. 210, 77 L.Ed. 413 (1932), and the court’s instructions to the jury properly limited the rebuttal testimony to Lyle’s defense of entrapment. The other defendants, therefore, were not prejudiced.
The judgments are affirmed.
. Charging a sale of heroin to a federal narcotics agent in violation of 26 U.S.C. § 4705(a) and fraudulently and knowingly receiving, concealing and facilitating the transportation and concealment, after unlawful importation, of a quantity of heroin, knowing it to have been unlawfully imported into the United States, in violation of 21 U.S.C. § 174.
. Charging conspiracy to violate 21 U.S.C. § 174.
. The Pennsylvania state policeman clocked the speed of the car as being in excess of the 70 m. p. h speed limit of Title 75 Pennsylvania Statutes, Section 1002, and he made the arrest for speeding pursuant to his authority under Title 71 Pennsylvania Statutes, Section 252.
. “The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize tilings connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody is not to be doubted.” Harris v. United States, 331 U.S. 145, 151, 67 S.Ct. 1098, 1101 (1947), quoting Agnello v. United States, 269 U.S. 20, 30, 46 S.Ct. 4, 70 L.Ed. 145 (1925).
Question: Did the court's interpretation of the substantial evidence rule support the government? For example, "such evidence as a reasonable mind might accept as adequate to support a conclusion" or "more than a mere scintilla". This issue is present only when the court indicates that it is using this doctrine, rather than when the court is merely discussing the evidence to determine whether the evidence supports the position of the appellant or respondent.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_procedur
|
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 rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
Robert E. IANNELLI and Dolores Iannelli, his wife v. H. Alan LONG, District Director, Pittsburgh, Pennsylvania, and Johnnie M. Walters, Commissioner of Internal Revenue of the United States of America, successor to Harold T. Swartz, Appellants.
No. 72-1418.
United States Court of Appeals, Third Circuit.
Argued Feb. 27, 1973.
Decided June 29, 1973.
Certiorari Denied Nov. 19, 1973.
See 94 S.Ct. 541.
Robert E. Lindsay, Tax Div., Dept. of Justice, Washington, D. C., Scott P. Crampton, Asst. Atty. Gen., Tax Div., Meyer Rothwacks, Chief Appellate Section, John P. Burke, John M. Brant, Attys. Tax Div. Dept. of Justice, Richard L. Thornburgh, Pittsburgh, Pa., of counsel, for appellants.
James E. McLaughlin, McArdle, McLaughlin, Paletta & McVay, Pittsburgh, Pa., Charles Alan Wright, Austin, Tex., William A. Camp, of counsel, for appel-lees.
Before HASTIE and ALDISERT, Circuit Judges, and DITTER, District Judge.
OPINION OF THE COURT
HASTIE, Circuit Judge.
The order from which the government has taken this appeal enjoined the District Director and the Commissioner of Internal Revenue from seizing or selling, until further order of the court, any property of Robert Iannelli or his wife Dolores to satisfy jeopardy assessments against them for alleged failure to pay overdue federal wagering taxes. In its opinion, W.D.Pa.1971, 333 F.Supp. 407, the court explained that the purpose of this temporary injunction was to protect the taxpayers against possible necessity for self incrimination if, in normal course, they should undertake to establish in a civil suit a right to refund of sums collected pursuant to these assessments while criminal proceedings growing out of their alleged wagering business were pending. The government contends that the district court lacked jurisdiction to grant this injunctive relief because section 7421(a) of the Internal Revenue Code of 1954, U.S.C. § 7421(a), provides, with irrelevant exceptions, that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person”.
The parties agree that section 7421(a) is comprehensive and that on its face it seems to prohibit such a suit and such an injunction as we have here. Cf. Enoch v. Williams Packing & Navigation Co., 1962, 370 U.S. 1, 82 S.Ct. 1125, 8 L.Ed.2d 292; Johnson v. Wall, 4th Cir. 1964, 329 F.2d 149. It reflects an evident purpose to protect the public revenue from court imposed delays in the collection of taxes, leaving aggrieved taxpayers to sue for refunds of any amounts improperly collected. Thus, the section presupposes a bona fide attempt of the government to collect revenue. Therefore, if a levy on property is in formal guise an effort to collect taxes but in fact is only a device for harassing and punishing a wrongdoer without honest anticipation that the levy may yield money owed for taxes, it is arguable that a suit to restrain the tax collector’s enterprise is not in reality a suit to restrain the collection of taxes. Accordingly, it is relevant to consider whether we have here a bona fide effort to collect revenue.
The taxpayers do not dispute that they may owe the government substantial sums of overdue taxes, though they dispute the claimed amount of their total indebtedness. Moreover, at the time of the jeopardy assessment and resultant levies the taxpayers, who had not filed a complete inventory of their possessions, appeared to be the owners of mortgaged income producing rental property, a furnished home, a life insurance policy, bank accounts, automobiles and the contents of a safe deposit box. It is not disputed that in the aggregate the levies on their property were intended to and probably would yield substantial revenue, although in the district court counsel for the government conceded that at least some of the real property was so heavily mortgaged that a forced sale would not in likelihood benefit the government.
Though one of the government’s objectives in this undertaking to seize all of the taxpayers’ discoverable property may have been to put economic pressure upon persons believed to be engaged in large scale criminal activities, the jeopardy assessment and consequent levies also appear to have been bona fide and potentially productive attempts to collect revenue. And bona fide efforts to collect taxes through lawful procedure are the very undertakings that Congress has protected through the enactment of section 7421(a) against frustration or delay by litigation.
The district court was understandably and properly concerned that the taxpayers not be forced to choose between forfeiting their property without contesting the tax assessments on the one hand and, on the other, incriminating themselves by admitting in a tax refund suit that they had been engaged in an illicit enterprise for which they already had been indicted. But a tax refund claim and complaint adequate to toll the running of the statute of limitations could be drafted and filed without damaging admissions concerning the details or even the nature of taxpayers’ business. And further proceedings in such a suit would properly be deferred on the plaintiffs’ request until the conclusion of related criminal proceedings against them or until the running of all applicable periods of limitations on prosecutions. Cf. United States v. Kordel, 1970, 397 U.S. 1, 12 note 27, 90 S.Ct. 763, 25 L. Ed.2d 1; De Vita v. Sills, 3d Cir. 1970, 422 F.2d 1172, 1181. And in the unlikely case of an arbitrary refusal of a district judge to grant such a stay, the abuse of discretion would be reviewable in this court.
For these reasons we have concluded that section 7421(a) of the Internal Revenue Code prohibits the relief granted to the taxpayers in this case.
The judgment will be reversed.
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_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.
Lawrence SCHREIBER, Plaintiff-Appellant, v. ALLIS-CHALMERS CORPORATION, Defendant-Appellee.
No. 78-1357.
United States Court of Appeals, Tenth Circuit.
Argued May 17, 1979.
Decided Nov. 27, 1979.
Rehearing Denied Jan. 21, 1980.
Larry Latham, Jackson, Miss. (R. Daniel Lykins of Jones, Schroer, Rice & Bryan, Topeka, Kan., on brief), for plaintiff-appellant.
Barry E. Warren, Overland Park, Kan. (Frank Saunders, Jr., of Wallace, Saunders, Austin, Brown & Enochs, Overland Park, Kan., on brief), for defendant-appellee.
Before McWILLIAMS, BARRETT and DOYLE, Circuit Judges.
McWILLIAMS, Circuit Judge.
Lawrence Schreiber, plaintiff-appellant, appeals the summary judgment entered in favor of Allis-Chalmers, the defendant-appellee. The Memorandum and Order of the trial court now appears as Schreiber v. Allis-Chalmers Corp., 448 F.Supp. 1079 (D.Kan.1978).
Schreiber filed the instant action in the United States District Court for the Southern District of Mississippi, Jackson Division, on June 16, 1977. Allis-Chalmers, the defendant, is incorporated in Delaware, and has its headquarters in Milwaukee, Wisconsin. Since 1932 Allis-Chalmers has been duly licensed, qualified and authorized to do business in the State of Mississippi. Service of process was made by serving Allis-Chalmers’ statutory agent for service of process. Additionally, the general manager of Allis-Chalmers’ manufacturing facility, located just south of Jackson, Mississippi, was personally served with process.
In the complaint Schreiber alleged that he is a resident and citizen of Kansas and federal jurisdiction is thus based on diversity of citizenship. Schreiber further alleged that on June 22, 1971, he was severely injured near Soldier, Kansas when working on an Allis-Chalmers Roto Baler, causing amputation of his arms. It was alleged that Allis-Chalmers had defectively designed and manufactured the Roto Baler in question and Schreiber’s cause of action was grounded on ordinary and gross negligence, breach of implied warranty and strict liability. Damages were sought in the amount of $5,000,000.
Allis-Chalmers filed an answer and a motion for change of venue pursuant to 28 U.S.C. § 1404(a). The motion was based on a belief that since the accident complained of occurred in Kansas, the case should be transferred to the United States District Court for the District of Kansas. A federal district judge in Mississippi denied the defendant’s motion for change of venue.
In an original proceeding brought in the United States Court of Appeals for the Fifth Circuit that Court, by minute order, ordered the federal district court in Mississippi to transfer the case to the United States District Court for the District of Kansas. In due time the case was thus transferred.
In the Kansas federal court Allis-Chalmers filed a motion for summary judgment, and also sought, and obtained, an order staying discovery until a ruling on the summary judgment motion. The motion was predicated on two propositions: (1) the Mississippi federal court was without jurisdiction to adjudicate Sehreiber’s cause of action; and (2) assuming jurisdiction, the cause of action was barred by the 2-year Kansas statute of limitations. After oral argument, the trial court granted Allis-Chalmers’ motion for summary judgment, holding that the Mississippi federal court did not have jurisdiction to hear the case, and, alternatively, that if the Mississippi federal court did have jurisdiction, it would have applied the Kansas 2-year statute of limitations, which would bar the action. Schreiber now appeals the summary judgment entered for Allis-Chalmers.
The trial court in a detailed Memorandum and Order, consisting of some 20 printed pages, made no findings of fact, of course, since the case was disposed of by way of summary judgment. The critical portions in the Memorandum constitute conclusions of law, with a comprehensive review of the many legal authorities which have bearing thereon. We would parenthetically note that authorities dealing with the troublesome questions of federal jurisdiction and conflict of laws here involved are not only numerous but often contradictory.
We summarize the trial court’s Memorandum and Order as follows: (1) The transferee court, the Kansas federal court, must decide this case as would the transferor court, the Mississippi federal court, and the Mississippi federal court in turn must apply Mississippi state law. We agree. (2) The Mississippi federal court would hold that a Mississippi state court under Mississippi statutory and case law could assume jurisdiction of this case. We agree. (3) The attempted assumption of jurisdiction by the Mississippi state court, however, must fail because such would violate federal due process. Therefore, the hypothetical Mississippi state court has no jurisdiction of the case. With this we disagree. (4) However, assuming jurisdiction on the part of the Mississippi state court, which in turn would give the federal district court in Mississippi jurisdiction to hear the case, under present Mississippi law the Mississippi state court would normally hold that the statute of limitations of the forum state, i. e., the 6-year statute of Mississippi controls. With this we agree. (5) However, if this particular case were presented to a Mississippi state court at this point in time, the Mississippi state court would, for the first time, abandon the lex fori rule and would apply the 2-year statute of limitations of the State of Kansas. With this we disagree.
As indicated, then, we agree with the trial court that it must sit as though it were a federal district court sitting in the Southern District of Mississippi. Although Allis-Chalmers apparently argued to the contrary in the trial court, on appeal it does not press the matter. The trial court’s determination in this regard finds support in Van Dusen v. Barrack, 376 U.S. 612, 639, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964), where the Supreme Court held that the transferee federal district court is obligated to apply the state law that would have been applied if there had been no change of venue. A corollary of the foregoing is that in the instant case the Mississippi federal court in this diversity proceeding must apply Mississippi’s state law, and the same rule extends to the field of conflict of laws. Klaxon Company v. Stentor Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941) and Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).
As indicated, we also agree with the trial court in the instant case that a Mississippi state court, and therefore the Mississippi federal court, would hold that under Mississippi statutory and case law a Mississippi state court could assume jurisdiction of this case. In just so many words, a Mississippi statute provides that a foreign corporation doing business in Mississippi is subject to suit in Mississippi to the same extent that corporations of Mississippi are, “whether the cause of action accrued in this state or not.” Section 79-1-27, Miss. Code 1972. In support of the trial court’s interpretation of that statute, see S. & W. Constr. Co. v. Douglas, 244 Miss. 498, 142 So.2d 33 (1962) and the cases cited therein. In Douglas the Mississippi Supreme Court held that under Mississippi law a Mississippi state court had jurisdiction to hear a case wherein the plaintiff, a resident of Tennessee, was injured in an accident occurring in Tennessee and the defendant was a Tennessee corporation, which, however, had qualified to do business in Mississippi and had appointed a resident agent for service of process upon whom service had been effected.
As indicated, we do not agree that the assumption of jurisdiction by the Mississippi state court would offend federal due process. Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437, 72 S.Ct. 413, 96 L.Ed. 485 (1952) held that federal due process neither forbids, nor compels, a state from opening its courts to a proceeding against a foreign corporation doing business within the state even though the cause of action does not arise from events occurring within that state. In Perkins the foreign corporation there involved was described as having carried on in Ohio “a continuous and systematic, but limited part of its general business.” 342 U.S. at 448, 72 S.Ct. at 414. Based on the record before us, the same can be said of Allis-Chalmers as concerns its connection with the State of Mississippi. As mentioned at the outset, since 1932 Allis-Chalmers has been continuously duly licensed, qualified and authorized to do business in the State of Mississippi. Historically, the business transacted in Mississippi has been sales and sales promotion, although since 1973 Allis-Chalmers has maintained a manufacturing plant near Jackson, Mississippi. That particular plant of Allis-Chalmers manufactures power breakers for electrical utility companies.
The Court of Appeals for the Ninth Circuit in Wells Fargo & Co. v. Wells Fargo Express Co., 556 F.2d 406 (9th Cir. 1977) has reviewed the pertinent authorities and has concluded that if a foreign corporation has sufficient deliberate “minimum contacts” with the forum state, a court may acquire in personam jurisdiction over such corporation in actions which arise from those forum contacts, and if the foreign corporation’s activities in the forum state are so “continuous and systematic” that the foreign corporation may in fact be deemed “present” in the forum state, then the foreign corporation may be served in causes of action unrelated to forum activities. In the instant case Allis-Chalmers not only had deliberate minimum contacts with Mississippi, it also had continuous and systematic activities within the state and indeed for nearly 50 years has qualified and been statutorily authorized to do business in Mississippi.
The trial court was of the view that Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977) sapped the continued vitality of Perkins. We do not agree. Shaffer is distinguishable from the instant case. Shaffer involved a quasi in rem action, filed in a Delaware state court, which was used as a springboard to obtain in personam jurisdiction over non-resident defendants. It was in such a setting that the Supreme Court held that the Delaware state court proceeding had to meet the minimum contacts standard of International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). In our case Allis-Chalmers, though a foreign corporation, had been duly qualified to do business in Mississippi, and for now nearly 50 years has been conducting “a continuous, systematic, but limited part of its general business” in the State of Mississippi. In sum, the local Mississippi law which would permit a state court to assume jurisdiction over the instant case does not in our best judgment violate federal due process.
As indicated, we agree with the trial court that, assuming jurisdiction lies with the hypothetical Mississippi state court, the latter on the basis of present Mississippi state law would normally apply the lex fori, insofar as it relates to the Mississippi 6-year statute of limitations. Such in fact has been the precise holding of Mississippi federal courts in diversity cases. See Steeie v. G. D. Searle & Co., 422 F.Supp. 560 (S.D. Miss.1976), on rhg. 428 F.Supp. 646 (S.D. Miss.1977), and Cummings v. Cowan, 390 F.Supp. 1251 (N.D.Miss.1975).
As indicated, we disagree with the trial court’s conclusion that, notwithstanding the fact that under present day law the Mississippi state court would ordinarily apply its 6-year statute to such a case, the Mississippi court, if this exact case were presented to it, would abandon the lex fori rule. It is the duty of the Kansas federal court, under the present circumstances, to follow Mississippi law as it presently exists, and not to anticipate that “the next time around” the Mississippi court would abandon its present law on the subject.
Mitchell v. Craft, 211 So.2d 509 (Miss. 1968), relied on by the trial court as indicating “progressive thinking of Mississippi courts on choice of law problems,” does not support the theorization that a Mississippi state court handling the present case would abandon the lex fori rule and apply the 2-year statute of limitations of Kansas. In Mitchell the Mississippi Supreme Court merely adopted the “center of gravity” test for application of the proper substantive law, and in that case applied Mississippi substantive law to an automobile accident which occurred in Louisiana involving Mississippi residents. It does not follow, however, that Mississippi would abandon its long-adhered-to rule that in a proceeding in a Mississippi court the Mississippi statute of limitations governs. To the contrary, subsequent decisions by that court indicate continued adherence to the rule. Vick v. Cochran, 316 So.2d 242 (Miss.1975).
From a reading of the trial judge’s Memorandum and Order it is quite evident that he was disturbed by the fact that though the present case could not be maintained in the first instance in Kansas federal court, because of the Kansas 2-year statute, it possibly could be maintained in a Mississippi federal court where a 6-year statute of limitations would control. There is perhaps a degree of incongruity in such result. However, it is axiomatic that hard cases make bad law. We think it preferable to adhere to accepted legal principles rather than strive to achieve, at the expense of those principles, a result which might appear to some as being more fair and just than the alternative.
Judgment reversed and cause remanded for further proceedings consonant with the views herein expressed.
. Mississippi has a 6-year statute of limitations governing tort and warranty actions, and therein lies the root of the present controversy.
. In this general connection, it is agreed that the Roto Baler which allegedly caused Schreiber’s injuries was not manufactured in Mississippi.
. It is agreed that under Kansas law the Kansas 2-year statute of limitations bars- only the remedy, and does not extinguish the right.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_genapel1
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
Joseph TRICHILO, Plaintiff-Appellee, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellant.
No. 1129, Docket 87-6023.
United States Court of Appeals, Second Circuit.
Argued July 16, 1987.
Decided Nov. 4, 1987.
James M. Baker, Baker, Clark & Satter, Syracuse, N.Y., for plaintiff-appellee.
William Kanter, Jay S. Bybee, U.S. Dept, of Justice, Appellate Staff, Civ. Div., Washington, D.C., for defendant-appellant.
Before VAN GRAAFEILAND, PRATT, and ALTIMARI, Circuit Judges.
PER CURIAM:
Presently before the court is Trichilo’s motion for $10,037.96 in attorney’s fees and litigation expenses incurred on the government’s appeal of the district court’s award of attorney’s fees for counsel’s district court work. On that appeal, we ruled in favor of plaintiff in all respects. Trichilo v. Secretary of Health & Human Services, 823 F.2d 702 (2d Cir.1987). We now reaffirm the holding and rationale of our earlier opinion, and, in addition, grant Trichilo’s motion for attorney’s fees on the appeal.
We assume familiarity with our earlier opinion in which we held, in part, that a litigant is entitled to attorney’s fees under the Equal Access to Justice Act not only for the successful prosecution of a suit under the act, but also for the time spent preparing and litigating the fee issue itself. Id. at 707. As we noted:
Since the purpose of the EAJA is to remove counsel fees as an impediment to challenging unreasonable and unjustified governmental actions, where a governmental action has been shown to have been unjustified, there should be as little disincentive for plaintiffs to obtain attorney’s fees as there is for them to challenge the action itself
Id. (emphasis added). This reasoning applies equally to the time and effort expended by counsel on appeal. Indeed, this case provides a prime example of the reason why fees such as Trichilo’s must be recoverable. He incurred fees of over $10,000 on appeal, when the amount in controversy on the original appeal was under $1,000. Were there no possibility of recovering the fees on appeal, counsel might well simply forgo the relatively small amount at issue arid not contest the government’s position on issues such as those raised by the ap-p6al in this case, which, we note, the government lost.
The government contends that it is unfair to subject the government to attorney's fee liability when, as here, the position it advocated on appeal-as distinguished from the original, "substantially unjustified" position it adopted toward Tn-chilo that triggered this litigation-was reasonable, although not ultimately persuasive. However, as we noted in our original opinion, congress has made clear that it is inappropriate to examine separate parts of the litigation to determine whether the government's position in each phase was justified. Instead, as long as the government's underlying substantive position was not "substantially justified", the plaintiff is entitled to recover all reasonable attorney's fees incurred. Trichilo, 823 F.2d at 707-08. If the government wishes to avoid such liability, it need only refrain from taking positions that are not "substantially justified". Plaintiffs such as Triehilo, on the other hand, are unable to avoid these fees, which are forced upon them by the government's unreasonable positions.
We reject the government's position that the reasonability of its position on appeal amounts to a "special circumstance" that would "make an award unjust". 28 U.S.C. § 2412(d)(1)(A). Reading the "special circumstances" exception so broadly would, in effect, swallow the very rule we announced in our earlier opinion. This we decline to do.
We therefore reaffirm our earlier holding in this case, and extend it to include the reasonable attorney's fees incurred by plaintiff on the appeal. In case the law of this circuit is not now clear to the government, we hold that where the government's underlying position is not substantially justified, plaintiff is entitled under the EAJA to recover all attorney's fees and expenses reasonably incurred in connection with the vindication of his rights, including those related to any litigation over fees, and any appeal. Since the government challenges none of the particular amounts of fees and expenses claimed by plaintiff, there is no need to remand for an evidentiary hearing in the district court, and plaintiff's motion is granted in its entirety.
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_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.
Allen L. GRIFFIN, Appellee, v. INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW, Appellant.
No. 72-1126.
United States Court of Appeals, Fourth Circuit.
Argued Sept. 11, 1972.
Decided Oct. 24, 1972.
Bernard G. Link, Baltimore, Md. (Stephen I. Schlossberg, John A. Fillion, and Jordan Rossen, Detroit, Mich., on brief), for appellants.
Hugh G. Casey, Jr., Charlotte, N. C. (George S. Daly, Jr., and Casey & Daly, P. A., Charlotte, N. C., on brief), for ap-pellee.
Before SOBELOFF, Senior Circuit Judge, and WINTER and BUTZNER, Circuit Judges.
SOBELOFF, Senior Circuit Judge:
Allen Griffin, the appellee, brought a civil action for damages against the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America. He claimed that the UAW had breached its duty of fair representation in handling the grievance based on his discharge by the Ford Motor Company. The case was tried before Judge McMillan and a jury and resulted in a verdict in favor of Griffin in the amount of $12,000. From this judgment, the UAW appeals.
In its brief the appellant raised several issues which were not pursued at oral argument. After a careful examination of the record, the briefs of the parties and the pertinent authorities, we conclude that these contentions are without merit. The only issue deserving discussion is whether there was sufficient evidence to support the jury’s finding that the Union breached its duty of fair representation.
I
The phrase “duty of fair representation” is a legal term of art, incapable of precise definition. St. Clair v. Local 515, Int’l Bhd. of Teamsters, etc., 422 F.2d 128, 130 (6 Cir. 1969). There is no code that explicitly prescribes the standards that govern unions in representing their members in processing grievances. Whether a union breached its duty of fair representation depends upon the facts of each case. Thompson v. Brotherhood of Sleeping Car Porters, 316 F.2d 191 (4 Cir. 1963); Trotter v. Amalgamated Ass’n of Street Railway Employees, 309 F.2d 584 (6 Cir. 1962), cert. den., 372 U.S. 943 (1963). But pronouncements made from time to time by the Supreme Court, articulating the somewhat hazy contours of the union’s obligations, do furnish a measure of guidance.
The doctrine of the “duty of fair representation” was first given currency by the Supreme Court in Steele v. Louisville & N. R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944). Although first propounded in the context of racial discrimination under the Railway Labor Act, the Court extended this duty to cases under Section 301 of the National Labor Relations Act. Ford Motor Co. v. Huffman, 345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. 1048 (1953). In representing its members, declared the Court, a union is permitted “a wide range of reasonableness,” but this latitude is “subject always to complete good faith and honesty of purpose in the exercise of its discretion.” Id. at 337-338, 73 S.Ct. at 686.
The outline of the duty of fair representation cognizable under Section 301 was further clarified in Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). That case declared that a union is accorded considerable discretion in the handling and settling of grievances. The individual employee has no absolute right to insist that his grievance be pressed through any particular stage of the contractual grievance procedure. A union may screen grievances and press only those that it concludes will justify the expense and time involved in terms of benefiting the membership at large. Encina v. Tony Lama Boot Co., 448 F.2d 1264 (5 Cir. 1971). In the Vaca decision itself, the Court held that a union did not necessarily breach its duty of fair representation when it refused to take a member’s grievance to arbitration.
Nonetheless, the Supreme Court did not invest the union with a carte blanche. It sought to fashion an appropriate standard by which to measure union conduct. “[The doctrine of fair representation] includes a statutory obligation to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct.” Vaca v. Sipes, supra, 386 U.S. at 177, 87 S.Ct. at 910. A union must conform its behavior to each of these three separate standards. First, it must treat all factions and segments of its membership without hostility or discrimination. Next, the broad discretion of the union in asserting the rights of its individual members must be exercised in complete good faith and honesty. Finally, the union must avoid arbitrary conduct. Each of these requirements represents a distinct and separate obligation, the breach of which may constitute the basis for civil action.
The repeated references in Vaca to “arbitrary” union conduct reflected a calculated broadening of the fair representation standard. Retana v. Apartment, Motel, Hotel & El. Op. U., Local 14, 453 F.2d 1018, 1023 n. 8 (9 Cir. 1972); Feller, “Vaca v. Sipes, One Year Later” in N.Y.U. Twenty-First Annual Conference on Labor 141, 167 (1969). While negligence in handling grievances has not been identified as breaching the union’s duty of fair representation, Bazarte v. United Transportation Union, 429 F.2d 868, 872 (3 Cir. 1970), the courts have adopted the position that a union may not arbitrarily ignore a meritorious grievance or handle it in a perfunctory manner. Vaca v. Sipes, supra 386 U.S. at 191, 194, 87 S. Ct. 903; Retana v. Apartment, Motel, Hotel & El. Op. U., Local 14, supra, 453 F.2d at 1024 n. 10; De Arroyo v. Sindi-cato de Trabajadores Packinghouse, 425 F.2d 281, 284 (1 Cir. 1970); St. Clair v. Local 515, Int’l Bhd. of Teamsters, etc., 422 F.2d 128, at 130. Without any hostile motive of discrimination and in complete good faith, a union may nevertheless pursue a course of action or inaction that is so unreasonable and arbitrary as to constitute a violation of the duty of fair representation. A union may refuse to process a grievance or handle the grievance in a particular manner for a multitude of reasons, but it may not do so without reason, merely at the whim of someone exercising union authority. A union must especially avoid capricious and arbitrary behavior in the handling of a grievance based on a discharge — the industrial equivalent of capital punishment.
For a successful suit against a union for breach of its duty of fair representation, the employee “must also have proved arbitrary or bad-faith conduct on the part of the union in processing his grievance.” Vaca v. Sipes, supra, 386 U.S. at 193, 87 S.Ct. at 918 (emphasis added). We believe that looking at the evidence in the light most favorable to Griffin — as we are bound to do at this stage — there is sufficient evidence to support a conclusion of arbitrary or bad-faith conduct.
II
For seven years Allen Griffin worked for the Ford Motor Company at its parts depot in Charlotte, North Carolina. His problems apparently began in July, 1965, when he was disciplined by the Warehouse Operations Manager, D. J. Cashion, management’s second ranking member at the forty men depot, for allegedly reading a newspaper that lined the handtruck used by Griffin in his work. Cashion’s disciplinary action was successfully appealed by the Union. Subsequently, the relationship between the two men further deteriorated until they became embroiled in a fight at a local hockey game, with Cashion sustaining facial lacerations and cracked ribs. As a result of these fisticuffs, Griffin was discharged by Depot Manager Meares upon his return to work. In addition, a local court fined Griffin $50 for the assault.
J. W. Brown, who worked immediately under Cashion, was the chairman of the Union’s Local House Committee. His responsibilities included handling the preliminary stages of the grievance procedure. He filed with Cashion, the very man with whom Griffin had the fight, the grievance seeking Griffin’s reinstatement. Not surprisingly, Cashion, representing Ford, refused reinstatement. After Griffin’s assault conviction, Brown recommended to his fellow committee members that Griffin’s grievance be withdrawn. When one of the committee members objected, Brown threatened to resign. The grievance was withdrawn by a 2-1 vote.
Griffin then appealed to the membership of his Local to reverse the decision to withdraw his grievance. A vote was taken and it was decided that Griffin’s grievance be pursued. In protest of the members’ action, House Committee Chairman Brown resigned his position as House Chairman. But the action of the House Committee in withdrawing Griffin’s grievance was upheld by an appeals committee of the International; although the committee recommended that efforts to secure Griffin’s reinstatement continue. Finally, Ford agreed to reinstate Griffin’s grievance and allow it to be processed through normal channels on the condition that Griffin waive any claim for back pay prior to the time the grievance was reinstated. Griffin accepted this proposal. The revived grievance, “frozen dead” after the two-year hiatus, was eventually heard by the Ford Umpire, who on March 22, 1968, upheld the discharge.
Ill
The Union’s insistence on filing the discharge grievance with Cashion, the man with whom Griffin had fought, cannot be justified. It represents a stubborn refusal to recognize the inequity of placing the matter in the hands of a hostile person — Griffin’s antagonist. Although the Union may have acted in good faith, grieving the discharge in this manner can be viewed — as the jury apparently viewed it — as the equivalent of arbitrarily ignoring the grievance or handling it in a perfunctory manner. Vaca v. Sipes, supra, 386 U.S. at 191, 194, 87 S.Ct. 903. The “arbitrary” standard elucidated in Vaca was thus breached.
The Union attempts to justify submitting the grievance to Cashion by pointing out that the only other person with whom the grievance could have been filed was Meares, the Depot Manager. This, the UAW maintains, “was at best a Hobson’s choice: Cashion, the man Griffin assaulted on the one hand, and Meares, the man who discharged Griffin, the very act that was being protested, on the other hand.”
The Union’s contention overstates the case. Cashion had a history of difficulties in supervising the men under him. There was evidence that he was “very high tempered” and that he was willing to use his position of authority to punish those “who crossed him.” Meares, at the time of the discharge, had heard only Cashion’s version of the fight and the incidents that led np to it. It is quite possible that if the grievance had been immediately filed with Meares and Cashion’s history of pugnacity with workers in general, and his goading of Griffin in particular, had been adequately presented, Meares would have mitigated his disciplinary action. The fact that Meares refused the grievance after it was reinstated nearly one and one-half years later has no relevance. The passage of time and the hardening of positions had taken their effect.
There was also evidence presented to the jury from which it might have found the Union’s handling of the grievance to have been motivated by bad faith. After the membership of the Local voted to pursue Griffin’s grievance, House Committee Chairman J. W. Brown resigned his position to protest the members’ action. He was replaced by George R. Kennedy. On April 8, 1966, Kennedy wrote Walter P. Reuther, the late president of the UAW, to express his opinion that the action of the Local in dropping Griffin’s grievance was the result of the friendship between Cashion and J. W. Brown. In the course of the letter Kennedy stated poignantly:
Mr. Cashion, having been a personal friend of the former Chairman [Brown] for many years, as well as a very good friend with one of the committeemen and a close friend of the union member who testified against Mr. Griffin, used these friendships to influence the committee’s decision to drop the case as far as the committee was concerned. Therefore, when the membership overruled the committee, the Chairman, Mr. J. W. Brown resigned.
In my opinion those officers who were in a position to help Mr. Griffin, were trying to find as many reasons as they could not to help him. This is illustrated by the very fact that I am writing this letter because Mr. T. C. Brown, our Recording Secretary, and the brother of Mr. J. W. Brown, the resigned Chairman, refused to answer your letter of March 80, 1966. (Emphasis added.)
There is sufficient evidence in the record to support the jury’s finding that the Union breached its duty of fair representation in handling Griffin’s discharge grievance. Therefore, the judgment of the District Court is hereby
Affirmed.
. Earlier in the summer, the two men almost became involved in a fight when Cashion invited Griffin outside the plant behind the railroad tracks to settle their difference and to “whip his blank” — an invitation declined by Griffin.
. This characterization was given the reinstated grievance by Judge McMillan. (Tr. 403.)
. Appellant’s Reply Brief at 2-3.
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_othcrim
|
E
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule for the defendant on grounds other than procedural grounds? For example, right to speedy trial, double jeopardy, confrontation, retroactivity, self defense." This includes the question of whether the defendant waived the right to raise some claim. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
SOUND, INC., Appellee, v. AMERICAN TELEPHONE AND TELEGRAPH COMPANY, Bell Telephone Laboratories, Inc., Western Electric Company, Inc. and Northwestern Bell Telephone Company, Appellants.
No. 80-1047.
United States Court of Appeals, Eighth Circuit.
Submitted April 15, 1980.
Decided Aug. 25, 1980.
Harvey Kurzweil, Dewey,. Ballantine, Bushby, Palmer & Wood, New York City, for appellants; Joseph Angland and Robert W. Hirth, New York City, and Nyemaster, Goode, McLaughlin, Emery & O’Brien, Des Moines, Iowa, on brief.
Donald Polden, Hawkins & Norris, Des Moines, Iowa, for appellee; Lex Hawkins and Glenn L. Norris, Des Moines, Iowa, on brief.
Ron M. Landsman, Atty., Appellate Section, Antitrust Div., Dept, of Justice, Washington, D. C., for amicus curiae U. S.; Sanford M. Litvack, Asst. Atty. Gen., Robert B. Nicholson, Attys., Dept, of Justice, Washington, D. C., on brief.
Before HEANEY and ARNOLD, Circuit Judges, and VIETOR, District Judge.
The Honorable HAROLD D. VIETOR, United States District Judge for the Southern District, of Iowa.
HEANEY, Circuit Judge.
This case presents the difficult problem of reconciling the pro-competitive policies of the antitrust laws with federal and state regulation protecting the public interest in the context of the terminal telephone equipment market.
Sound, Inc., an Iowa corporation, brought this antitrust action against the Bell System (Bell), American Telephone and Telegraph Company and its subsidiaries, Bell Telephone Laboratories, Western Electric Company and Northwestern Bell Telephone Company, alleging violations of sections 1, 2 and 3 of the Sherman Act, 15 U.S.C. §§ 1, 2, 3, and of Iowa tort law. Bell moved for judgment on the pleadings, contending that the conduct alleged in the complaint was immune by virtue of regulation by the Federal Communications Commission (FCC) and the Iowa State Commerce Commission (ISCC). The district court denied the motion, holding that the conduct alleged was subject to antitrust scrutiny. The district court certified its decision for interlocutory appellate review and we granted Bell permission to appeal pursuant to 28 U.S.C. § 1292(b). The complaint alleges the following facts. Sound, Inc., began to sell and lease key telephone terminal equipment in Cedar Rapids, Des Moines and Waterloo, Iowa, in 1970. This equipment consists of telephone sets containing six to thirty buttons which allow the telephone user access to several incoming and outgoing lines. Beginning in 1971, Bell engaged in a concerted effort to destroy Sound’s business and to exclude Sound, from the terminal telephone equipment market in violation of the Sherman Act by predatorily pricing its own equipment, making false and slanderous statements to Sound’s customers and potential customers, making threats of economic retribution to Sound’s customers, and threatening to withhold telephone service from those purchasing or leasing Sound’s equipment.
In June, 1971, Bell filed a tariff with the ISCC that substantially reduced the rates for all the equipment that was in competition with Sound’s equipment. The ISCC suspended the rates and later rejected them because Bell had not provided sufficient cost justification. During the suspension and even after the rejection of these rates, Bell’s sales personnel represented to Sound’s customers that the lower rates would quickly be approved and that the customers should not do business with Sound. In 1973, Bell filed another tariff proposing lower rates for the competing equipment. Again, the rates were suspended and again, Northwestern Bell’s sales personnel represented to Sound’s customers that the lower rates were assured and that the customers should not purchase Sound’s equipment. In January, 1975, the ISCC approved the tariff filed in 1973.
In late 1974, Bell filed tariffs involving a new series of terminal key equipment offerings known as ComKey. The tariffs established a “two-tier” price system. Rates denominated “Vintage I” automatically went into effect upon filing, and they were substantially modified and increased by tariffs denominated “Vintage II” in 1975. Sound alleged that these tariffs were filed by Bell with knowledge that they were grossly non-compensatory.
The complaint also alleged that Sound was damaged by Bell’s requirement that Protective Connecting Arrangements (PCA’s) be attached to any telephone terminal equipment owned or leased by anyone other than Bell. Sound alleged that Bell required the PCA’s knowing they were unnecessary, poorly designed, harmful to Sound’s equipment, unnecessarily and anti-competitively expensive and improperly installed and maintained. Bell required these PCA’s by tariffs filed with the FCC until 1975.
The complaint further alleged that Bell deprived Sound of free and unlimited access to the FCC and state regulatory agencies and that Bell interfered with Sound’s business relations in violation of state tort law.
In its answer, Bell claimed that its rate-related conduct is exempt from antitrust scrutiny by the state action doctrine. It also alleged that all activity undertaken by Bell regarding the interconnection of privately owned terminal telephone equipment is impliedly immune because the antitrust and regulatory standards are inconsistent and because the conduct is pervasively regulated. Bell further alleged that its marketing practices are exempt and immune because they are an integral part of the regulated conduct.
We affirm the district court’s denial of Bell’s motion for judgment on the pleadings.
I
IMPLIED IMMUNITY
This appeal involves no question of express immunity. Bell does not argue that the Communications Act of 1934 contains any explicit grant of statutory immunity from the antitrust laws. Nor has Bell attempted to demonstrate that Congress, in passing the Communications Act, intended to immunize the telecommunications industry generally from the antitrust laws; in fact, the explicit immunization of certain FCC-approved consolidations and mergers of telephone companies, 47 U.S.C. §§ 221(a), 222(c)(1), indicates that Congress did not contemplate a blanket immunity. See Mt. Hood Stages, Inc. v. Greyhound Corp., 555 F.2d 687, 691 (9th Cir. 1977), cert. denied in part, 434 U.S. 1008, 98 S.Ct. 716, 54 L.E.2d 750, rev’d in part, 437 U.S. 322, 98 S.Ct. 2370, 57 L.Ed.2d 239 (1978).
The question presented here, one of implied immunity, is whether the tension between the antitrust laws and the scheme of FCC regulation of the interconnect industry impliedly repeals the Sherman Act. The statutory schemes of regulation, the implementation of those schemes and the competitive situations have varied so greatly from industry to industry that no clear path for determining whether implied immunity exists has been illuminated. Some guiding principles have been established, however. Implied repeal of the antitrust laws “is not favored and not casually to be allowed. Only where there is a ‘plain re-pugnancy between the antitrust and regulatory provisions’ will repeal be' implied.” Gordon v. New York Stock Exch., 422 U.S. 659, 682, 95 S.Ct. at 2611 (1975) (quoting United States v. Philadelphia Nat’l Bank, 374 U.S. 321, 350-351, 83 S.Ct. 1715, 1734, 10 L.Ed.2d 915 (1963)). See United States v. National Ass’n of Secs. Dealers, 422 U.S. 694, 719-720, 729-730, 95 S.Ct. 2427, 2442-2443. 2447-2448, 45 L.Ed.2d 486 (1975); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Ware, 414 U.S. 117, 126, 94 S.Ct. 383, 389, 38 L.Ed.2d 348 (1973). The antitrust laws and the regulatory statutes must be reconciled where feasible, United States v. National Ass’n of Secs. Dealers, supra, 422 U.S. at 720, 95 S.Ct. at 2443; Gordon v. New York Stock Exch., supra, 422 U.S. at 683, 95 S.Ct. at 2611, and “ ‘[rjepeal is to be regarded as implied only if necessary to make [the regulatory statute] work, and even then only to the minimum extent necessary.’ ” Gordon v. New York Stock Exch., supra, 422 U.S. at 683, 95 S.Ct. at 2612 (quoting Silver v. New York Stock Exch., 373 U.S. 341, 357, 83 S.Ct. 1246, 1257, 10 L.Ed.2d 389 (1963)). The pervasive nature of the regulatory scheme is a factor in determining whether implied repeal exists, Gordon v. New York Stock Exch., supra, 422 U.S. at 688, 95 S.Ct. at 2614; however, certain activities by industries perceived to be heavily regulated have been held subject to the antitrust laws. Silver v. New York Stock Exch., supra (securities); Otter Tail Power Co. v. United States, 410 U.S. 366, 93 S.Ct. 1022, 35 L.Ed.2d 359 (1973) (generation and transmission of electric power); United States v. Philadelphia Nat’l Bank, supra (national banking); United States v. RCA, 358 U.S. 334, 79 S.Ct. 457, 3 L.Ed.2d 354 (1959) (broadcasting).
The Court’s application of these principles has resulted in a finding of implied immunity when enforcement of the antitrust laws, would interfere with the operation of the regulatory agency. Interference has been found when the antitrust laws would prohibit action specifically contemplated by the regulatory statute, Gordon v. New York Stock Exch., supra; United States v. National Ass’n of Secs. Dealers, supra, or when the antitrust laws would prohibit conduct falling precisely within the detailed statutory scheme of enforcement and that statutory scheme specifically required consideration of competition. Hughes Tool Co. v. Trans World Airlines, Inc., 409 U.S. 363, 93 S.Ct. 647, 34 L.Ed.2d 577 (1973); Pan Am. World Airways, Inc. v. United States, 371 U.S. 296, 83 S.Ct. 476, 9 L.Ed.2d 325 (1963).
Bell relies on Gordon v. New York Stock Exch., supra, to sustain its view that the challenged activities are impliedly immune. In Gordon, a group of investors challenged the SEC-sanctioned system of fixed stock commission rates as being violative of the antitrust laws. The Court rejected the challenge. It held that Congress, in enacting the Securities Exchange Act, intended to leave supervision of the fixing of reasonable rates of commission to the SEC and thus impliedly immunized the practice from antitrust challenge. The Court found two factors to be dispositive: (1) the supervisory power was granted seven years after the Court’s decision that price fixing is a per se violation of the Sherman Act, United States v. Trenton Potteries Co., 273 U.S. 392, 47 S.Ct. 377, 71 L.Ed. 700 (1927); and (2) the Securities Exchange Commission actively supervised and approved the fixing of commission rates over a period of years. The Court concluded that the enforcement of the antitrust laws “would preclude and prevent the operation of the Exchange Act as intended by Congress and as effectuated through SEC regulatory activity.” Gordon v. New York Stock Exch., supra, 423 U.S. at 691, 95 S.Ct. at 2615.
In United States v. National Ass’n of Secs. Dealers, supra, the Court found that vertical restrictions on secondary market activities designed to maintain prices in brokerage transactions of mutual funds were exactly the type of curbs on competition that Congress thought necessary in enacting the Investment Company Act of 1940, 15 U.S.C. § 80a-l et seq. The Court found the SEC’s regulatory authority so pervasive as to confer an implied immunity on the alleged horizontal conspiracy to prevent a secondary market in mutual fund shares, particularly in view of the SEC’s consistent approval of the agreements to which the subject matter of the antitrust action was ancillary.
Two other cases upon which Bell relies, Hughes Tool Co. v. Trans World Airlines, Inc., supra, and Pan Am. World Airways v. United States, supra, involved even more explicit statutory schemes of regulation. In Hughes Tool, TWA brought an antitrust suit challenging Toolco’s exercise of its control over TWA’s acquisition and financing of aircraft. Toolco had developed its control over TWA through stock acquisitions specifically investigated and approved by the Civil Aeronautics Board; further, each acquisition of aircraft by the airline had been approved by the CAB. Because the CAB had exercised its authority to approve Toolco’s acquisition of TWA’s stock pursuant to section 408 of the Federal Aviation Act of 1958, 49 U.S.C. § 1378, and because that section required an appraisal of the impact of the proposed action on monopoly and competition, the Court held Toolco’s actions impliedly immune from the antitrust laws. In Pan Am, the Court similarly held immune the anticompetitive interference by Pan Am with acquisition of a route by Panagra, a joint venture of Pan Am and.Grace Company. The Court relied on the statutory grant in section 411 of the Federal Aviation Act, 49 U.S.C. § 1381, authorizing the CAB to investigate and regulate unfair methods of competition among air carriers. Both Hughes Tool and Pan Am emphasize section 414 of that Act, 49 U.S.C. § 1384, which explicitly immunizes from the antitrust laws any action taken pursuant to a CAB order.
Our approach, then, is to consider both the statute under which the industry is regulated and the exercise of regulatory authority over the challenged activity pursuant to the statute.
Prior to passage of the Federal Communications Act of 1934, 47 U.S.C. § 151 et seq., the telecommunications industry was subject both to the jurisdiction of the Interstate Commerce Commission and the antitrust laws. The Communications Act provides that the carriers generate tariffs showing all charges and all classifications, practices and regulations affecting such charges, and file those tariffs with the FCC, 47 U.S.C. § 203(a); that the FCC and the public be given thirty days notice of any proposed change in a tariff, id. § 203(b); and that no charge be demanded or collected, refunded or remitted except in accordance with a filed tariff. Id. § 203(c). The FCC is empowered, either upon a complaint or on its own initiative, to conduct a hearing concerning the lawfulness of a tariff, and has been authorized to suspend the tariff for up to three months pending completion of the hearing. Id. § 204 (subsequently amended to five months). The FCC is also authorized “to determine and prescribe what will be the just and reasonable charge * * * to be thereafter observed, and what classification, regulation, or practice is or will be just, fair, and reasonable, to be thereafter followed * * *.” Id. § 205(a) The FCC’s guiding standard is the public interest. Id. § 201. The Communications Act also provides a saving clause:
Nothing in this Act contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this Act are in addition to such remedies.
Id. § 414.
Nothing in the language of the Communications Act or its history convinces us that Congress, in establishing a system of regulation of the telecommunications industry, sought to displace the antitrust laws. Accord, Essential Communications Sys., Inc. v. American Tel. & Tel. Co., 610 F.2d 1114 (3d Cir. 1979); MCI Communications Corp. v. American Tel. & Tel. Co., 462 F.Supp. 1072 (N.D.Ill.), mandamus denied, 594 F.2d 594 (7th Cir. 1978), cert. denied, 440 U.S. 971, 99 S.Ct. 1533, 59 L.Ed.2d 787 (1979); United States v. American Tel. & Tel. Co., 461 F.Supp. 1314 (D.D.C.1978). Since no goals are set forth in the statute that are clearly repugnant to the antitrust laws, we must examine the FCC’s exercise of its authority over the interconnect industry to determine “whether allowance of an antitrust suit would conflict with the operation of the regulatory scheme * * Gordon v. New York Stock Exch., supra, 422 U.S. at 688, 95 S.Ct. at 2614.
Bell has provided terminal equipment to customers since its inception and effectively cornered the market on such equipment by filing tariffs with the FCC that prohibited the attachment to the Bell System of any equipment not furnished by Bell. This broad prohibition was held violative of the Communications Act by the Fifth Circuit in 1956. Hush-A-Phone Corp. v. United States, 238 F.2d 266 (D.C. Cir. 1956). The Hush-A-Phone was simply a cup-shaped device that snapped on a telephone receiver to afford privacy to the speaker. Bell construed the decision narrowly and filed new tariffs prohibiting all direct electrical connection with the telephone system. In 1968, the FCC ruled this tariff illegal and encouraged Bell to adopt technical standards that would weed out harmful devices while allowing the interconnection of safe equipment. Use of the Carterfone Device, 13 F.C.C.2d 420, 423-424, reconsideration denied, 14 F.C.C.2d 571 (1968). Bell then filed tariffs permitting interconnection of customer-supplied equipment but requiring the use of Bell-supplied “protective connecting arrangements.” The FCC undertook an investigation of the tariff, expressly stating that- its decision not to immediately grant relief to those challenging the tariff should not be interpreted as tacit approval. AT&T “Foreign Attachment” Tariff Revisions, 15 F.C.C.2d 605, 610 (1968), reconsideration denied, 18 F.C.C.2d 871 (1969). The FCC contracted with the National Academy of Science for a study of interconnection, and the Academy concluded that Bell’s protective connecting arrangements were not necessary and were potentially harmful to competitor’s equipment.
In 1975, the FCC invalidated ’ the tariff and established its own technical standards for interconnection. Equipment meeting those standards was to be registered with the FCC, and Bell could not require PCA’s for that equipment. Proposal for New or Revised Classes of Interstate and Foreign MTS and WATS, First Report and Order, 56 F.C.C.2d 593 (1975), on reconsideration, 57 F.C.C.2d 1216, 58 F.C.C.2d 716, 59 F.C. C.2d 83 (1976); Second Report and Order, 58 F.C.C.2d 736 (1976), on reconsideration, 61 F.C.C.2d 396, 64 F.C.C.2d 1058 (1977), aff’d sub nom. North Carolina Utils. Comm’n v. FCC, 552 F.2d 1036 (4th Cir.), cert. denied, 434 U.S. 874, 98 S.Ct. 222, 54 L.Ed.2d 154 (1977). That registration program is still in effect.
Bell contends that the “public interest” standard enunciated by the Communications Act and applied by the FCC conflicts with the pro-competition standard of the antitrust laws. We do not agree. The record does not show that the FCC has exercised its supervisory authority over the industry in an effort to prevent the development of competition in the terminal equipment market; rather, its rulings have indicated that Bell’s attempts to retain its monopoly in that market are disfavored. Although the FCC’s attempts to interject competition into this market may have been sluggish, they have been real and have not reflected an approval of Bell’s interconnect-related conduct. In light of this, the maintenance of an antitrust suit will not conflict with the operation of the regulatory scheme authorized by Congress but will supplement' that scheme. See Gordon v. New York Stock Exch., supra, 422 U.S. at 690, 95 S.Ct. at 2615.
Bell, not the FCC, proposes its rates, regulations and restrictions, subject, of course, to FCC approval. In filing each tariff, Bell implements its own business judgment in regard to its relationship with competitors. “When these relationships are governed in the first instance by business judgment and not regulatory coercion, courts must be hesitant to conclude that Congress intended to override the fundamental national policies embodied in the antitrust laws.” Otter Tail Power Co. v. United States, supra, 410 U.S. at 374, 93 S.Ct. at 1028. We see nothing in the public interest standard that would prevent Bell from making business judgments that conform to the requirements of antitrust law, and nothing unfair in requiring it to do so.
Bell’s argument also rests on the pervasiveness of the Communication Act’s regulatory scheme. The extent of the regulatory framework’s control of an industry is a factor to be considered in determining whether certain conduct is impliedly immune from the antitrust laws, see United States v. National Ass’n of Secs. Dealers, supra, 422 U.S. at 732-733, 95 S.Ct. at 2448-2449; Hughes Tool Co. v. Trans World Airlines, Inc., supra; Pan Am. World Airways v. United States, supra, but we do not view the FCC’s control over the interconnect industry to be so pervasive as to warrant a finding of immunity, particularly in the absence of a showing that the two statutes conflict. See Mid-Texas Communications Sys., Inc. v. American Tel. & Tel. Co., 615 F.2d 1372 (5th Cir. 1980); MCI Communications Corp. v. American Tel. & Tel. Co., supra.
We find support for our interpretation of the Communications Act in the views of the FCC. Unlike the SEC in the stock exchange cases, the FCC has strongly urged that its jurisdiction should not displace the antitrust law, writing: “The Commission has never considered its authority over equipment interconnection to displace the antitrust laws.” Memorandum of FCC as Amicus Curiae (in United States v. American Tel. & Tel. Co., 461 F.Supp. 1314 (D. D.C. 1978)), 62 F.C.C.2d 1102, 1114 (1975).
While we recognize that there has been some division in the cases considering the question of implied immunity for Bell’s interconnection-related activities, we think the better-reasoned solution lies in holding that Bell is not impliedly immune but is liable for the antitrust violations that may be proven. See Mid-Texas Communications Sys., Inc. v. American Tel. & Tel. Co., supra; Essential Communications Sys., Inc. v. American Tel. & Tel. Co., supra; Litton Sys., Inc. v. American Tel. & Tel. Co., 487 F.Supp. 942 (S.D.N.Y.1980); MCI Communications Corp. v. American Tel. & Tel. Co., supra; United States v. American Tel. & Tel. Co., 461 F.Supp. 1314 (D. D.C. 1978); Jarvis, Inc. v. American Tel. & Tel. Co., 481 F.Supp. 120 (D. D.C. 1978); United States v. American Tel. & Tel. Co., 427 F.Supp. 57 (D. D.C. 1976). Contra, Monitor Business Machines, Inc. v. American Tel. & Tel. Co., 1978-1 Trade Cas. (CCH) ¶ 62,030 (C.D. Cal. 1978); Phonetele, Inc. v. American Tel. & Tel. Co., 435 F.Supp. 207 (C.D. Cal. 1977), appeal pending; DASA Corp. v. General Tel. Co., 1977-2 Trade Cas. (CCH) ¶ 61,610 (C.D. Cal. 1977), appeal pending.
II
STATE ACTION EXEMPTION
Bell contends that its rate structure and marketing practices relating to the terminal equipment market are exempt, as state action, from antitrust challenge because Iowa regulates the rates Bell charges for the installation and monthly use of Bell’s equipment. Bell relies on the Parker doctrine and its recent articulation in California Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S. 97, 100 S.Ct. 937, 63 L.Ed.2d 233 (1980). On the basis of this record, we reject Bell’s argument.
As a public utility, Bell is required to file tariffs with the Iowa State Commerce Commission setting forth its proposed rates. Iowa Code § 476.6. “[A]ny person or body politic” may request the Commission to determine the reasonableness of “rates, charges, schedules, service, regulations, or anything done or omitted to be done by any public utility * * Id. § 476.3. Upon such complaint or the Commission’s own motion, the public utility is required to satisfy the Commission of the reasonableness of the challenged action. The Commission may institute a formal proceeding and conduct hearings. If it finds the utility’s action to be “unjust, unreasonable, discriminatory or otherwise in violation of any provision of law,” it may determine and enforce reasonable rates or regulations. Id.
The tariffs prepared by Bell have been the subject of formal hearings and extensive investigation by the ISCC over the past several years. The ISCC has rejected some rates and charges as anticompetitive. See Reasonableness of Certain Rates and Charges for Business Phone Service Provided by Northwestern Bell Telephone Company Under TF1-115 and TF1-161, Iowa State Commerce Commission Docket No. U-366, Order at 2 (Dec. 23, 1971) (rejecting, proposed rates); Northwestern Bell Telephone Company, Iowa State Commerce Commission Docket No. > U-514, Decision and Order (Dec. 21,1976) (approving certain rates with modification but rejecting equipment lease termination charge as an illegal penalty).
The ISCC has recognized that it should apply antitrust considerations in its deci-sionmaking, saying,
[O]ur inquiry must also be based upon “an awareness * * * of the opportunities for competition in the markets supplied by public utilities, and the growing insistence of remedial action by the courts and regulatory agencies so that access to those opportunities may be realized as the law permits.”
Northwestern Bell Telephone Company, Iowa State Commerce Commission Docket No. U-467, Decision and Order at 2 (Jan. 28, 1975). The ISCC has denied certain rates proposed by Bell for multiline telephone equipment because the evidence showed a “distinct anticompetitive effect.” Docket No. U-366, supra at 2. The ISCC has also noted that its functions include “establishing a first line of defense against those competitive practices that might later be the subject of antitrust proceedings.” Docket No. U-467, supra at 3 (quoting Gulf States Utils. Co. v. FPC, 411 U.S. 747, 758 (1973)). The ISCC stated that it had “fully accommodated” the policies of state and federal antitrust laws in Docket No. U-514, supra at 7.
With this overview of the Iowa regulatory scheme in mind, we turn to an analysis of the state action exemption cases relevant to this factual situation. In Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943), the plaintiff sought to enjoin the enforcement of an agricultural prorate program administered pursuant to state legislation intended to stabilize the market price of various commodities, including raisins. The Court held that Congress did not intend the Sherman Act to apply to state action, saying:
We find nothing in the language of the Sherman Act or in its history which suggests that its purpose was to restrain a state or its officers or agents from activities directed by its legislature. In a dual system of government in which, under the Constitution, the states are sovereign, save only as Congress may constitutionally subtract from their authority, an unexpressed purpose to nullify a state’s control over its officers and agents is not lightly to be attributed to Congress.
Parker v. Brown, supra, 317 U.S. at 350-351, 63 S.Ct. at 313.
For thirty years, the Supreme Court'offered little guidance in the application of Parker. In 1975, the Court decided Goldfarb v. Virginia State Bar, 421 U.S. 773, 95 S.Ct. 2004, 44 L.Ed.2d 572 (1975), holding that the minimum fee schedule for title examination promulgated by the county bar, a voluntary association, and enforced by the state bar, an administrative agency, was not immune from Sherman Act attack. The fee schedule was not required by any state statute or by any rules of the state supreme court. In fact, the state supreme court’s rules directed lawyers not to be controlled by fee schedules. The Court’s “threshold inquiry” was whether the activity was “required by the State acting as sovereign,” id., 421 U.S. at 790, 95 S.Ct. at 2015, and the Court held that it was not.
The next year, in Cantor v. Detroit Edison Co., 428 U.S. 579, 96 S.Ct. 3110, 49 L.Ed.2d 1141 (1976), a sharply divided Court held that a public utility’s program of providing free light bulbs to customers was not immune from the Sherman Act in spite of the state’s approval of tariffs filed by Detroit Edison establishing the program. Mr. Justice Stevens, writing for the Court, identified the issue as “whether the Parker rationale immunizes private action which has been approved by a state and which must be continued while the state approval remains effective.” Id. at 581, 96 S.Ct. at 3113. In those portions of the opinion in which five members concurred, the Court held that the commission’s approval and the fact that the practice could not be discontinued without approval did not render the conduct immune. The state’s policy was “neutral on the question whether a utility should, or should not, have [a light bulb] program.” Id. at 585, 96 S.Ct. at 3115. No specific statute referred to regulation of the light bulb business, and other state utilities did not have such a program. The Court noted that the decision to provide free light bulbs was one in which both the commission and Detroit Edison participated, but that the option to have or not have the program was “primarily” Detroit Edison’s. Id. at 593-594, 96 S.Ct. at 3118-3119. Further, Detroit Edison, not the state, had initiated the program. The Court applied a fairness analysis and determined that, under the circumstances, there was “nothing unjust” in requiring the utility to make business choices that conformed to federal law.
The Cantor Court further noted that it was not logically inconsistent to require a utility to “meet regulatory criteria insofar as it is exercising its natural monopoly powers and also to comply with antitrust standards to the extent that it engages in business activity in competitive areas of the economy.” Id. at 596, 96 S.Ct. at 3120 (footnote omitted). The Court found that Michigan’s regulatory scheme did not conflict with antitrust policy and concluded that no exemption from the antitrust laws existed.
In Bates v. State Bar, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977), the Court addressed the question of whether Arizona’s prohibition of attorney advertising was exempt from Sherman Act challenge under Parker v. Brown, supra. The Court held that the disciplinary rule, the affirmative command of the state supreme court, was exempt. The Court distinguished Cantor on three grounds.
First, and most obviously, Cantor would have been an entirely different ease if the claim had been directed against a public official or public agency, rather than against a private party. Here, the appellants’ claims are against the State.
* He * * * *
Second, the Court emphasized in Cantor that the State had no independent regulatory interest in the market for light bulbs. There was no suggestion that the bulb program was justified by flaws in the competitive market or was a response to health or safety concerns. And an exemption for the program was not essential to the State’s regulation of electric utilities. In contrast, the regulation of the activities of the bar is at the core of the State’s.power to protect the public. * * *
Finally, the light-bulb program in Cantor was instigated by the utility with only the acquiescence of the state regulatory commission. The State’s incorporation of the program into the tariff reflected its conclusion that the utility was authorized to employ the practice if it so desired. The situation now before us is entirely different. The disciplinary rules reflect a clear articulation of the State’s policy with regard to professional behavior.
Id., 433 U.S. at 361-362, 97 S.Ct. at 2697 (citations and footnotes omitted).
In Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 98 S.Ct. 1123, 55 L.Ed.2d 364 (1978), the Court held that a municipal utility operator was not excluded from the antitrust laws. The plurality opinion expressed the view that Parker v. Brown, supra, exempted only acts of government by the state as sovereign or by a municipality pursuant to the state’s policy of replacing competition with either regulation or monopoly public service. The plurality emphasized the need for a clearly articulated state policy of displacing competition with regulation and active supervision by the policymaker. Significantly, it distinguished Cantor’s analysis because it presented the question whether “anticompetitive activity in which purely private parties engaged” could be insulated from antitrust attack. Id. at 410 n. 40, 98 S.Ct. at 1136 n. 40.
We turn, finally, to Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S. 97, 100 S.Ct. 937, 63 L.Ed.2d 233 (1980), which Bell contends is controlling. Midcal involved a challenge to California’s statutorily created wine-pricing program, which constituted resale price maintenance in violation of the Sherman Act. California charged Midcal, a wine wholesaler, with violating state law by selling wine below the effective price schedule of E. & J. Gallo Winery. Midcal filed a writ of mandate seeking to enjoin the state’s program. A state court of appeals granted the mandate and enjoined the program. The California Retail Liquor Dealers Association, as inter-venor, sought certiorari in the United States Supreme Court. The question presented involved the exemption of state conduct from the antitrust laws—an exemption that, does not necessarily coincide with that for a private defendant.
The Court briefly reviewed the leading cases, including those we have discussed, and articulated two standards for applying a state action exemption from the antitrust laws: “First, the challenged restraint must be ‘one clearly articulated and affirmatively expressed as state policy’; second, the policy must be ‘actively supervised’ by the State itself.” Id., 445 U.S. at 105,100 S.Ct. at 943, 63 L.Ed.2d at 243.
The Court held that thé California system satisfied the first standard because the legislative policy was “forthrightly stated and clear in its purpose to permit resale price maintenance^]” id., which would otherwise be a per se violation of the Sherman Act. It held that the second standard was not satisfied, however, because the state simply authorized the
Question: Did the court rule for the defendant on grounds other than procedural grounds? For example, right to speedy trial, double jeopardy, confrontation, retroactivity, self defense. This includes the question of whether the defendant waived the right to raise some claim.
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
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songer_applfrom
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J
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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).
PEELLE CO. v. SECURITY FIRE DOOR CO.
No. 9314.
Circuit Court of Appeals, Eighth Circuit.
April 14, 1932.
Thomas J. Johnston, of New York City (J. Granville Meyers, of New York City, on the brief), for appellant.
Joseph J. Gravely, of St. Louis, Mo. (James A. Carr and T. Percy Carr, both of St. Louis, Mo., on the brief), for appellee.
Before STONE and BOOTH, Circuit Judges, and WYMAN, District Judge.
STONE, Circuit Judge.
This is an action for alleged infringement of claims 1, 2, 3, 4, 7, 8, and 9 of patent No. 1,414,387, to Benjamin Wexler. The defenses are invalidity of the patent and noninfringement. Prom a decree adjudging the claims involved invalid, plaintiff takes this appeal.
This patent is for a dumb-waiter door structure. The structure embodies a rigid metal frame at the door opening having guides or tracks wherein vertically travel two counterbalanced half doors. The entire construction, including the doors, is made and shipped as a unit. The main object of the invention is stated to be a construction capable of installation as a unit and, at the same time, insuring a fixed permanent relation of parts which will insure free easy movement of the doors after installation.
The court found that the claims involved were invalid because anticipated by various patents and by several catalogued disclosures cited in the memorandum opinion.
We have carefully examined each of the numerous urged citations against the patent. Some of these citations show only a part or only some of the principles involved in these claims, but several of them rather clearly set out the entire idea. It is unnecessary to discuss these in detail, since one of them, Dugdale No. 1,133,794, is sufficient to avoid this patent. However, we may observe that the elements are old. The angle side members are found in numerous patents such as Cross, No. 560,396; Dug-dale, 1,133,794; and others; also in Catalogues A and B of Variety Manufacturing Company; and in Thorpe Catalogue, all of which were offered in evidence. The two-part doors counterbalanced are also found in many patents including Dugdale and Cross and prior Wexler patents; also in the Catalogues of the Variety Manufacturing Company. The guides or tracks secured to a flange of the vertical side bars are found in the Variety Manufacturing Company Catalogues B and A; in the Cross patent; and in the Dugdale patent. The use of anchors for embedding in the wall are found in the Appleton patent, No. 931,714, and in the Variety Manufacturing Company Catalogue B. Sill and lintel members secured to the vertical angle side members and spaced apart are found in Dugdale, and in the Variety Manufacturing Company Catalogues A and B. Nor is the combination new. It is found in Dugdale; in the Catalogues A and B of the Variety Manufacturing Company; and, furthermore, is covered by the fact testimony given on the trial.
In Dugdale there are the same character of doors, door movement members and frame, and the entire device is designed to be manufactured as a unit “ready to be set up at the place of the chute which said doors are to occupy.” Not only are all of the outlines of the patent in suit shown in Dugdale, but there is much similarity in detail.
It is contended by the appellant that the prior art disclosed by some of the patents is not of dumb-waiter doors, but of freight elevator doors, and that freight elevator doors are not in the same art with dumbwaiter doors. We discover no merit in this contention. An examination of the structures disclosed shows that the main difference is one of size, and the evidence on the trial also disclosed that dumb-waiters were considered in the same art as freight elevators, only that they were smaller. We are therefore of the opinion that the prior art, including freight elevator door construction, is to be considered.
The decree should be and is 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_appel1_2_2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private organization or association". Your task is to determine what category of private associations best describes this litigant.
ACTION FOR CHILDREN’S TELEVISION, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, CBS, Inc., National Association of Broadcasters, Washington Association for Television and Children, Office of Communication of the United Church of Christ, American Broadcasting Companies, Inc., Communication Commission of the National Council of Churches of Christ in the U.S.A., Association of Independent Television Stations, Inc., Forward Communications Corp., et al., National Broadcasting Company, Inc., Intervenors.
No. 84-1052.
United States Court of Appeals, District of Columbia Circuit.
Argued Jan. 18, 1985.
Decided March 19, 1985.
See also, 546 F.Supp. 872.
Petition for Review of an Order of the Federal Communications Commission.
Henry Geller, Washington, D.C., with whom William August, Cambridge, Mass., was on the brief, for petitioner.
C. Grey Pash, Jr., Counsel, F.C.C., Washington, D.C., with whom Bruce E. Fein, Gen. Counsel, and Daniel M. Armstrong, Associate Gen. Counsel, F.C.C., Washington, D.C., were on brief, for respondents. George Edelstein and Robert B. Nicholson, Dept, of Justice, Washington, D.C., entered appearances for respondent Dept, of Justice.
Sally Katzen, Washington, D.C., with whom Carl R. Raney, Joel Rosenbloom, Carol H. Fishman, Valerie G. Schulte, Washington, D.C., Corydon B. Dunham, New York City, and Howard Monderer, Washington, D.C., were on joint brief, for intervenors American Broadcasting Companies, Inc., et al. Erwin G. Krasnow, Washington, D.C., also entered an appearance for intervenor Nat. Ass’n of Broadcasters.
Barbara R. Shufro, Wilhelmina Reuben Cooke, Washington, D.C., and Donna De-mac, New York City, were on brief, for intervenors Wash. Ass’n for Television and Children, et al.
J. Laurent Scharff, Jack N. Goodman and Robert J. Aamoth, Washington, D.C., were on brief, for intervenor Ass’n of Independent Television Stations, Inc. James M. Smith, Washington, D.C., also entered an appearance for intervenor Ass’n of Independent Television Stations, Inc.
Robert M. Gurss and Andrew Jay Schwartzman, Washington, D.C., were on brief, for amicus curiae Nat. Educ. Ass’n urging reversal.
Before WRIGHT, GINSBURG, and SCALIA, Circuit Judges.
Judge Ginsburg took no part in the decision of this case.
Opinion PER CURIAM.
PER CURIAM.
Petitioner Action for Children’s Television and supporting intervenors (“petitioners”) challenge the Federal Communications Commission’s January 4, 1984 Report and Order defining the obligations of television broadcast licensees to their child audiences. See In re Children’s Television Programming and Advertising Practices, 96 F.C.C.2d 634 (1984) (“1984 Order”). There the Commission found that the video market, considered as a whole, does not exhibit a clear failure to serve the needs and interests of the child audience, and that mandatory programming rules (including flexible processing guidelines for license renewal applications) raise serious problems of law and policy; and accordingly elected simply to reaffirm “the general licensee obligations emphasized by the Commission in its [Children’s Television Report and Policy Statement, 50 F.C.C.2d 1 (1974) (“1974 Statement”), aff'd sub nom., Action for Children’s Television v. FCC, 564 F.2d 458 (D.C.Cir.1977) ] and ... the general requirement that stations provide programming responsive to the needs and interests of the communities they serve.” 96 F.C.C.2d at 655 (footnote omitted). Petitioners assert that the agency improperly considered the children's programming available from all video sources in finding no market failure warranting more intensive regulation of commercial broadcasting; that it gave insufficient consideration to flexible processing guidelines; that it arbitrarily and without explanation dropped the 1974 Statement’s requirement that licensees make a reasonable effort to provide age-specific, informational, and educational children’s programming; and that it ignored relevant evidence.
After carefully considering petitioners’ arguments, we conclude that the Commission’s decision was within the broad scope of its discretion and was adequately explained by the 1984 Order. See FCC v. WNCN Listeners Guild, 450 U.S. 582, 593-96, 101 S.Ct. 1266, 1273-75, 67 L.Ed.2d 521 (1981); NAACP v. FCC, 682 F.2d 993, 998 (D.C.Cir.1982). The differences between the 1984 Order and the 1974 Statement are attributable to changes in the Commission’s judgment about how best to serve the public interest, convenience and necessity, and the reasons for these changes are stated in the Order with sufficient clarity to withstand judicial scrutiny. See Motor Vehicle Manufacturers Ass’n, Inc. v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 42-43, 103 S.Ct. 2856, 2866-67, 77 L.Ed.2d 443 (1983).
Only two issues raised by petitioners require brief discussion. First, petitioners assert that it was improper for the Commission, in making its determination of public needs for children’s programming, to take into account such programming available on cable television or on noncommercial television broadcasting stations. We think not. As to cable: While that medium is not available in all areas or to all segments of the viewing community, it has a sufficiently broad and increasing presence that the Commission may appropriately consider its offerings in determining the necessity for such nationwide rules as petitioners favored. This does not mean, and we do not interpret the Commission to suggest, that in a particular service area where cable penetration is insubstantial or nonexistent that medium can have any effect upon the broadcaster’s assessment of the most significant needs of his community; or that the broadcaster in any community can disregard the needs of those not served by cable. We also see no need for the Commission to blind itself to the contribution of noncommercial television. To be sure, Congress did not intend noncommercial broadcasting to “relieve commercial broadcasters of their responsibilities to present public affairs and public service programs, and in general to program their stations in the public interest,” S.Rep. No. 222, 90th Cong., 1st Sess. 6, reprinted in 1967 U.S.Code Cong. & Ad.News 1772, 1777. But that does not mean that the Commission must require commercial broadcasters to pursue those responsibilities in disregard of the fact that some gaps in the public interest may have been filled by that source while other needs remain entirely unmet.
The second issue relates to age-specific programming. The 1974 Statement set forth the Commission’s expectation that broadcast licensees would henceforth make a reasonable effort “to present programming designed to meet the needs of three specific age groups: (1) pre-school children, (2) primary school aged children, and (3) elementary school aged children.” 50 F.C.C.2d at 7. Petitioners express the fear that the 1984 Order, which does not explicitly discuss age-specific programming, will relieve licensees of that obligation, echoing concerns voiced by Commissioner Rivera in his dissent from the Order. See 96 F.C.C.2d at 660 n. 11. We do not read the 1984 Order that way — nor, based on their representations at oral argument, do the broadcasters or the Commission. While it imposes no detailed age-specific requirements on licensees, and expresses doubts about a number of the programming categories relied on by the 1974 Statement (e.g., “informational” and “educational”), it explicitly affirms that “there is a continuing duty, under the public interest standard, on each licensee to examine the program needs of the child part of the audience and to be ready to demonstrate at renewal time its attention to those needs.” 96 F.C.C.2d at 656. It is absurd to believe that “the program needs of the child part of the audience” were thought to be uniform, from pre-school through elementary school. It seems clear to us that under the 1984 Order broadcasters faced with renewal challenges based on the adequacy of their children’s programming can be called upon to explain why they chose to focus on the needs and interests of certain age groups or other segments of the child audience, or why they emphasized emotional rather than cognitive needs. Licensees can expect the Commission to defer to reasonable programming decisions in this field, but that is a far cry from the wholesale abolition of licensee responsibility perceived by petitioners.
Petition denied.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private organization or association". What category of private associations best describes this litigant?
A. business, trade, professional, or union (BTPU)
B. other
Answer:
|
songer_const1
|
0
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if no constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the greatest number of headnotes. In case of a tie, code the first mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
COMMISSIONER OF INTERNAL REVENUE, Petitioner, v. O. LIQUIDATING CORPORATION.
No. 13420.
United States Court of Appeals Third Circuit.
Argued Feb. 23, 1961.
Decided June 14, 1961.
Douglas A. Kahn, Washington, D. C. (Charles K. Rice, Asst. Atty. Gen., Lee Jackson, Harry Baum, Attorneys, Dept, of Justice, Washington, D. C., on the brief), for petitioner.
John S. Chapman, Jr., New York City, for respondent.
Before KALODNER, STALEY and FORMAN, Circuit Judges.
KALODNER, Circuit Judge.
Did the Commissioner of Internal Revenue abuse his statutory discretion in refusing to grant his consent to a change in the taxpayer’s method of accounting for a material item of gross income ?
That is the critical question presented by the Commissioner of Internal Revenue’s petition for review of the Tax Court decision which answered it in the affirmative.
Treasury Regulations 118, § 39.41-2, relating to Sections 41 and 42 of the Internal Revenue Code of 1939 provide in relevant part as follows:
“(c) A taxpayer who changes the method of accounting employed in keeping his books shall, before computing his income upon such new method for purposes of taxation, secure the consent of the Commissioner. * -x- * Permission to change the method of accounting will not be granted unless the taxpayer and Commissioner agree to the terms and conditions under which the change will be effected. * * * ”
The relevant facts, as stipulated and found by the Tax Court, are not in dispute and may be summarized as follows:
The O. Liquidating Corporation (“taxpayer”), has at all times kept its books and reported its income on a calendar year and accrual basis. In 1918 taxpayer established, and has since broadened and continuously maintained, a group insurance plan for its employees. The premiums on the policies obtained pursuant to that plan were paid by taxpayer in monthly installments. All of the policies here involved were written by one mutual insurance company and all had a policy year coterminous with the calendar year. With one exception, each of the policies contained an identical provision, which is set out in the margin, for the payment of annual dividends. Pursuant to that provision, the actuarial department of the insurance company would, in January of each year, compute the surplus earned in the prior year and recommend a dividend formula to the board of directors. At its regular meeting in February, the board would consider the actuarial report and determine the amount of dividend, if any, to be distributed.
The policies here involved were purchased on varying dates beginning with 1941. Taxpayer has consistently followed the practice of recording on its books the amount of the monthly insurance premiums as an expense in the calendar year in which paid. During the years 1941 through 1952, inclusive, taxpayer consistently followed the practice of recording as of the year end an amount representing an accrual of the dividends to be paid by the insurance company and to be received by taxpayer in the subsequent year, which amount was recorded in the insurance expense account as an off-set to the gross premiums recorded therein for such year. In its federal income and excess profits tax returns for all years prior to 1953, petitioner claimed as a deduction for group insurance expense the net amount remaining after the reduction of the amount of gross premiums paid within the calendar year by the amount of dividends recorded as an accrual as of the year end.
Thus, for the year 1949, taxpayer recorded in its insurance expense account gross premiums in the amount of $170,-641.05 and an accrual in the amount of $37,713.05, representing dividends to be paid by the insurance company and to be received by taxpayer in the year 1950, leaving a net expense of $132,928.00 which was claimed and allowed as a deduction in its federal income tax return for such year. During the calendar year 1950 taxpayer received insurance dividends in the amount of $37,713.05.
During the years 1941 through 1949, taxpayer accrued as of the end of the year, the exact amount of dividends that were to be received by it in the subsequent year. In 1950, taxpayer under-accrued the amount of the dividend it subsequently received in 1951, and in 1951, taxpayer overacerued this item. In 1952 taxpayer again estimated the exact amount.
Taxpayer, in order to correct the 1950 underaccrual and the 1951 overaccrual, made adjustments in its 1951 and 1952 tax returns, the years in which the dividend was actually received. The Commissioner, however, upon auditing taxpayer’s returns for 1950, 1951 and 1952 made the necessary adjustments in the years in which the dividend was accrued, 1950 and 1951 respectively.
In 1953, taxpayer made a significant departure from its prior consistent method of accounting for the insurance dividends. In that year, taxpayer, without requesting the consent of the Commissioner, accrued no dividends and deducted the full amount of its group insurance premiums from its federal income and excess profits tax return. In 1954, taxpayer received dividends totalling $114,-117.44, which amount it reported on its return for that year. The obvious effect of this change was a deduction for group insurance expense for the year 1953 consisting of gross premiums only with no corresponding off-set for insurance dividends.
In 1956, upon examination of taxpayer’s federal income and excess profits tax return for the year 1953, the Commissioner made an adjustment decreasing taxpayer’s claimed deduction for group insurance expense by $114,117.44, i. e., he determined that the dividend received by taxpayer in 1954 should have been accrued and reported in 1953. As a result of this adjustment, taxpayer’s net deduction for insurance expenses was reduced from $265,327 to $151,209.56. It is this adjustment which is the single item in dispute here.
The Tax Court held that, since the taxpayer had no right to receive the insurance dividends prior to the determination of the board of directors of the insurance company to set aside a certain amount of surplus for distribution, which determination was always made in the year in which the dividend was paid, the taxpayer’s method of accruing and reporting this item in the year prior to payment (receipt) was erroneous. The court further held that the change in the treatment of this item by taxpayer in its 1953 federal tax return did not constitute a change in its method of accounting which would require the prior approval of the Commissioner. Accordingly, the Tax Court held that the dividend received by taxpayer in 1954 accrued in that year rather than in 1953 and that the dividend was properly reported in the later year. However, the court accepted the Commissioner’s alternative argument that, in view of the above holdings, the taxpayer erred in failing to report in 1953 the dividend it received in 1953 but which it had accrued and reported in 1952. The court adjusted the 1953 return accordingly and determined a deficiency of $50,-772.28 for that taxable year. In a dictum, however, the court stated that since the dividend received in 1953 had already been accounted for in 1952, “it appears that petitioner [taxpayer] will have adequate relief from double inclusion of an item of gross income by virtue of those sections [1311 et seq.] of the 1954 Code.” The net result of the Tax Court’s holding, and of its dictum (if applied), is that one year’s dividend will be deleted and the net insurance expense deduction for that year increased to that extent.
On this appeal, the Commissioner does not contest the Tax Court’s determination that the annual dividends accrued in the year of receipt so that the taxpayer’s former method of reporting the insurance dividends was incorrect under the accrual method of accounting. He contends, however, that under the applicable statutes and Regulations, a taxpayer may change the method of accounting employed in reporting his income only if he first obtains the consent of the Commissioner; that the reason for this rule is that a change of accounting method will normally involve a distortion of the taxpayer’s income for the year of change and, in order to protect the Government against a loss of revenues, the Commissioner conditions his consent to the change on the taxpayer’s acceptance of adjustments which would prevent the avoidance of tax liability. The Commissioner further urges that this rule applies not only to a change in an over-all method of accounting but also to a change in the method of accounting for a material item; that the change which the taxpayer made in the instant case constitutes a “change” requiring the prior approval of the Commissioner notwithstanding that taxpayer’s prior method of accounting for this item was erroneous, and, therefore, the Commissioner properly, in making the adjustments here in issue, refused to allow taxpayer to unilaterally change its method of accounting for this item.
Taxpayer, on the other hand, contends that, in view of the uncontested determination of the Tax Court that the insurance dividends were properly reportable in the year of receipt under the accrual method of accounting, no other method would “clearly reflect income” and that the Commissioner “may not insist upon adherence to a method which fails to ‘clearly reflect income.’ ” It argues “that correction of an error to conform to a long-standing method of accounting is not a change in accounting method and the Commissioner may not require the taxpayer to perpetuate an error.” Taxpayer further asserts that if equitable considerations are relevant in this determination, it is not possible here to determine where as between the Government and the taxpayer the equities rest in view of the fact that for years taxpayer has been prepaying the tax on this item and that taxpayer paid taxes to which it would not otherwise have been subject at the expiration of the excess profits tax of World War II in 1946 and whenever the tax rates were reduced. Finally, taxpayer urges that we modify the Tax Court’s decision, which brought into 1953 the dividend which had already been reported in 1952 (relief from which the Court indicated could be secured by way of a claim for refund under § 1311 et seq. of the 1954 Code, 26 U.S.C.A. § 1311 et seq.), by directing the deletion of this item from the 1953 return' — execute the dictum of the Tax Court as it were.
Section 42 of the Internal Revenue Code of 1939 provides that “items of gross income shall be included in the gross income for the taxable year in which received by the taxpayer, unless, under methods of accounting permitted under section 41, any such amounts are to be properly accounted for as of a different period.” Section 41 of the 1939 Code provides that
“The net income shall be computed upon the basis of the taxpayer’s annual accounting period (fiscal year or calendar year as the case may be) in accordance with the method of accounting regularly employed in keeping the books of such taxpayer; but if no such method of accounting has been so employed, or if the method employed does not clearly reflect the income, the computation shall be made in accordance with such method as in the opinion of the Commissioner does clearly reflect income.”
Pertinent Treasury Regulations, earlier set forth, provide that a taxpayer who desires to change the method of accounting employed in reporting his income must first “secure the consent of the Commissioner” to the change, and that permission to make it will not be granted “unless the taxpayer and the Commissioner agree to the terms and conditions under which the change will be effected.”
The taxpayer’s argument proceeds as follows:
“The taxpayer may not employ a method of accounting which does not clearly reflect income. If the taxpayer’s method fails clearly to reflect income, then under Section 41 of the Internal Revenue Code of 1939, the Commissioner can insist that a method be employed which does clearly reflect income. * * * ”
“However,. the Commissioner has not power to require a taxpayer, for any reason, to employ an accounting method which fails clearly to reflect income. His right to determine what method a taxpayer shall employ has limitations. One important limitation — the limitation which here controls — is that no authority is vested in the Commissioner to disregard the actual transaction and to readjust the income on a basis which would not clearly reflect income.”
This argument is premised on Caldwell v. Commissioner, 2 Cir., 1953, 202 F.2d 112; Commissioner of Internal Revenue v. Frame, 3 Cir., 1952, 195 F.2d 166; Commissioner of Internal Revenue v. Mnookin’s Estate, 8 Cir., 1950, 184 F.2d 89, and subsequent similar cases. Those cases involved involuntary changes in the method of accounting of taxpayer required by the Commissioner because the old method of accounting did not clearly reflect income and in them the Commissioner attempted to make the necessary adjustments so that items would be neither omitted nor duplicated. The courts held that the taxpayer could not be required to make such adjustments. As stated in Advance Truck Co. v. Commissioner, 9 Cir., 1958, 262 F.2d 388, 391-392:
“We believe that it is a fair statement to say that the rationale of such cases is that the Commissioner is not empowered in the year of change-over to assess a deficiency in tax for the year of the change-over premised on items of income which the taxpayer should have, but failed to include, in his income tax return for the tax year or years prior to the change, based upon the method employed by the taxpayer in keeping his books of account for such prior year or years.”
The rule stated is not applicable here for the simple reason that the Commissioner did not attempt to change taxpayer’s method of accounting and impose adjustments, but, on the contrary, he sought only to prevent a change in the taxpayer’s method of accounting for this item to which he had not first given his consent and to require adherence to the method used for many years prior to 1953. This distinction was recognized in Goodrich v. Commissioner, 8 Cir., 1957, 243 F.2d 686, at pages 688-689, where it was said:
“It [the Regulation] allows him [the Commissioner] to impose adjustments in relation to a taxpayer’s income status of other years, only as a term or condition on which he will consent to a change in the taxpayer’s method of accounting for purposes of the latter’s current tax return. But it does not allow him to impose such adjustments in relation to the taxpayer’s income status of other years, except as a matter of agreement or acceptance on the taxpayer’s part.
“If the taxpayer refuses to agree to the terms or conditions so imposed and to accept the adjustments required by the Commissioner to be ■ made, the result is in general to leave the situation simply as one in which the taxpayer is without legal right to make use of a change in his accounting method for purposes of his current taxability and return. * *
“It is not open to either the Commissioner or the taxpayer unilaterally to make a shift, whether of income or of outgo, to another year than that for which its tax status, ‘in accordance with the method of accounting regularly employed in keeping the books of such taxpayer’, has properly been created. Security Flour Mills Co. v. Commissioner, 321 U.S. 281, 286-287, 64 S.Ct. 596, 599, 88 L.Ed. 725.” (Emphasis supplied.)
The rationale of the Regulation here involved is that virtually any material change in the method of reporting income or deduction items will result in a distortion of taxable income, and it is the Commissioner’s responsibility to insure that the distortion will not be to the detriment of the Government. The Commissioner accomplishes this by withholding his consent until the taxpayer agrees to adjustments that will prevent, inter alia, duplication of deduction items or omission of income items as a result of the change. Brookshire v. Commissioner, 4 Cir., 1960, 273 F.2d 638, certiorari denied 363 U.S. 827, 80 S.Ct. 1597, 4 L.Ed.2d 1523.
On review of the record we agree with the Commissioner’s contention that while taxpayer did not change its overall method of accounting it did change its treatment of a significant item — the insurance dividends which amounted to |114,000 — and that its action constituted a change in the method of accounting within the meaning of the Treasury Regulations. The Tax Court, in our opinion, erred in finding to the contrary.
In Rev.Rul. 59-285, 1959-2 Cum.Bull. 458, the Internal Revenue Service, in confirming its interpretation and practice with respect to Section 41 of the Internal Revenue Code of 1939 stated in part (1959-2 Cum.Bull. pp. 459-460) :
“Under the 1939 Code, the prior consent of the Commissioner is required in order for a taxpayer to change his method of accounting with respect to a material item. Pri- or consent must be secured from the Commissioner whether or not the taxpayer regards the method from which he desires to change to be proper. * * *
“Accordingly, under the 1939 Code as well as under the 1954 Code, taxpayers, employing the accrual method of accounting, who have consistently deducted a material item in the year paid rather than the year accrued, must obtain the prior consent of the Commissioner before changing such method of accounting, whether or not the taxpayer regards the method from which he desires to change to be proper.” (Emphasis supplied.)
It is well-settled that administrative interpretation of the Internal Revenue Service is entitled to great weight and should be followed unless clearly inconsistent with the statute. Corn Products Refining Co. v. Commissioner, 1955, 350 U.S. 46, 52-53, 76 S.Ct. 20, 100 L.Ed. 29. The interpretation stated is certainly not inconsistent with the statute.
It is not dispositive that taxpayer’s former consistent method of reporting the insurance dividends in the instant case was not correct under the accrual accounting system since it could not be changed without the Commissioner’s pri- or consent.
As was said in Advertisers Exchange, Inc., 1956, 25 T.C. 1086, 1092-1093, affirmed 2 Cir., 1957, 240 F.2d 958,
“Consistency is the key and is required regardless of the method or system of accounting used. * * * And a change from one method of accounting to another is seldom possible without some distortion of income. Thus, respondent [Commissioner] may, as here, reject any change in the accounting treatment of items of income made without his prior consent and approval of compensating adjustments to insure that distortions arising therefrom are not at the expense of the governmental revenue. Kahuku Plantation Co. v. Commissioner [9 Cir.], 132 F.2d 671.
“As heretofore noted, the effect of respondent’s determination is to require the continued use of the accounting method consistently employed by petitioner for a number of years. To do so is within the broad administrative discretion accorded respondent under the statute and is not to be disturbed unless an abuse of discretion is evident. * * * ” (Emphasis supplied.)
To the same effect see 2 Mertens, Federal Income Taxation, §§ 12.08-.09 (rev. ed. 1955).
The “broad discretion” of the Commissioner in determining whether to consent to a change was settled in Brown v. Helvering, 1934, 291 U.S. 193, 54 S.Ct. 356, 78 L.Ed. 725. See also Commissioner of Internal Revenue v. Hansen, 1959, 360 U.S. 446, 467, 79 S.Ct. 1270, 3 L.Ed.2d 1360.
It may be noted that the Tax Court, in its opinion, did not advert to the “broad discretion” of the Commissioner and did in fact not hold that he had abused his statutory discretion in refusing to give retroactive consent to taxpayer’s change in its method of accounting for the insurance dividends here involved.
On consideration of the record we certainly cannot say that the Commissioner abused his statutory discretion in refusing to grant retroactive consent in the instant case to taxpayer’s unilateral change in its method of accounting of the very sizeable dividend income involved.
For the reasons stated the Decision of the Tax Court will be reversed and the cause remanded with directions to proceed in accordance with this opinion.
. The Memorandum Findings of Fact and Opinion of the Tax Court are reported at 19 CCH Tax Ct.Mem. 154 (1960).
. 26 U.S.C.A. 1952 ed., Sections 41, 42.
. “The surplus, if any, to be distributed upon this policy as a dividend shall be ascertained and distributed by the Society annually as of each policy anniversary provided this policy shall have been continued in force by the payment of all premiums hereunder to such policy anniversary; otherwise the Society shall not distribute any surplus upon this policy. Any surplus apportioned to this policy in accordance with this provision shall be paid in cash to the Employer, or, upon written notice to the Society by the Employer, may be applied by the Employer to the payment of any premium hereon.”
. The record does not disclose the dividend provision contained in one of the policies.
. Taxpayer received a dividend of $72,531.-79 in 1953. However, that item had been accrued and reported by it in 1952, pursuant to its consistent accounting practice. Had taxpayer adhered to its prior method of accounting for this item, it would have accrued and reported in 1953 the dividend it received in 1954.
. The deficiency determined by the Commissioner, using the dividend for 1954 rather than 1953, was $78,851.43.
. 19 CCH Tax Ct.Mem. at 159.
Question: What is the most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Answer:
|
songer_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.
VIRGIN ISLANDS HOTEL ASSOCIATION (U.S.), INC., a corporation, Appellant, v. VIRGIN ISLANDS WATER & POWER AUTHORITY.
No. 72-1996.
United States Court of Appeals, Third Circuit.
Argued Jan. 19, 1973.
Decided April 12, 1973.
Evelyn N. Cooper, Isherwood & Colianni, Christiansted, St. Croix, V. I., for appellant.
Ronald H. Tonkin, Atty. Gen. of the Virgin Islands, Sidney H. McKenzie, III, Asst. Atty. Gen., St. Thomas, V. I., Wallace L. Duncan, Duncan & Brown, Washington, D. C., for appellee.
Before VAN DUSEN and ADAMS, Circuit Judges, and BARLOW, District Judge.
OPINION OF THE COURT
VAN DUSEN, Circuit Judge.
This is the second time that these parties, the Virgin Islands Hotel Association (the Hotel Association) and the Virgin Islands Water and Power Authority (the Authority), are before this court. On the first occasion, in Virgin Islands Hotel Ass’n v. Virgin Islands Water & Power Authority, 465 F.2d 1272 (3d Cir. 1972), this court upheld with modification an injunction the district court had issued against the Authority. By order of October 3, 1972, the district court vacated that injunction, and the Hotel Association appeals. We affirm the October 1972 order of the district court.
I. BACKGROUND
It is necessary only to summarize the facts stated in our earlier opinion and in the first opinion of the district court, reported at 54 F.R.D. 377 (D.V.I.1972).
In the late fall of 1971, the Authority became worried that its revenues would soon fail to provide the coverage over interest required by its outstanding debt instruments, with devastating impact on its ability to procure additional needed financing. On November 10, 1971, it issued a press release indicating its intention to raise electric rates by from about 19% for residential users to about 25% for large power users. Public hearings were held one week later, and on December 3 the Authority put the proposed increases into effect.
The Hotel Association was understandably upset, since its members are classified as “large power” users. It immediately sought an injunction against the rate increase. The district court ruled that the Authority had violated 30 V.I.C. § 105(a) (12) in two ways. First, because the Authority did not have at its disposal information on the cost of providing electricity to its various classes of customers, the Authority had failed “to determine . . . reasonable rates.” Second, the public hearings held pursuant to this section 105(a) (12) were altogether inadequate. Among other defects, notice to the public was too short to allow adequate preparation time and the reports the Authority relied on were not made available publicly until the first public hearing. The district court, on February 4, 1972, ordered the Authority to rescind the increases, to have made an appropriate study of costs (called a “rate” study), and to hold proper public hearings on the proposed increases. However, to avoid possible disruption, the court stayed this injunction for ten months.
By decision of June 28, 1972, this court, although ruling that the Authority’s determination of rates is not subject to judicial review, held that review is available when the Authority has “ignored a plain statutory duty, exceeded its jurisdiction, or committed constitutional error.” 465 F.2d at 1275. “The rate fixing procedure created by 30 V.I. C. § 105(a) (12) contemplates a meaningful public hearing at which interested persons can present their views and present evidence in support thereof. Concomitant with such a hearing are the essential requirements of adequate notice, dissemination to the public of the facts and figures on which the Authority relies, and an opportunity afforded to those attending the hearing to rebut such facts and figures.” Id. at 1276. This court agreed with the district court that the Authority’s hearings did not comply with these requirements. This court did not, however, agree that § 105(a) (12) imposed any duty “to make rate studies as such,” id. at 1276, and modified the district court injunction accordingly.
To comply with this court’s mandate, the Authority commissioned new reports from R. W. Beck & Associates and from D.S.S. Engineering, Inc. (hereinafter D.S.S.); it also had Jackson & Moreland prepare an update of the report they had prepared earlier. On July 5, 1972, the Authority issued a press release stating, inter alia, that new hearings would be held and that the earlier Jackson &. Moreland study was available to the public. Beginning on August 12, 1972, the Authority had published in the local newspapers notices that new public hearings would be held on September 11, 12 and 13. The Authority made the Beck and the Jackson & Moreland reports available to the public on August 8, the D.S.S. report on August 28.
The Authority held these hearings as scheduled. At each hearing various officials of the Authority commented on the proposed rate increases, and representatives from the three engineering firms summarized and discussed the contents of their reports. In accordance with the procedure announced at the beginning of each meeting, all persons could submit written questions, which would be answered by either an official of the Authority or a representative from one of the firms. In addition, all persons could submit written statements or, at the conclusion of the Authority’s presentation, deliver oral statements. According to an affidavit of the Authority’s Executive Director, “All questions which were asked were responded to. In addition, any person desiring to make a statement with regard to the proposed subject rate increases were [sic] permitted to do so.”
The Secretary of the Hotel Association’s St. Thomas-St. John Chapter testified at the September 12 hearing held on St. Thomas. In addition, counsel for the Hotel Association and an expert the Association had hired, Constance W. Bary, attended the September 13 hearing held at Christiansted on St. Croix. Counsel objected to the testimony not being sworn and not being subject to oral cross-examination. Counsel had no written questions to submit, but was allowed to give orally an “offer of proof” of what the Hotel Association would have established if an opportunity for cross-examination had been granted. Admitting that Mr. Bary had not been contacted until September 7, such counsel also requested that the hearing be adjourned until November 9. This adjournment would give the Authority time to prepare, and for Mr. Bary to review, data which counsel said were necessary to examine the reasonability of rates. Counsel and Mr. Bary then stated that without such data the Hotel Association was unable to demonstrate the unreasonableness of the proposed rates.
Following the hearings, the Authority determined that the rates it had proposed the previous December were reasonable. The Authority then filed a motion in the district court to vacate the injunction. The district court, after considering the Hotel Association’s allegations of substantive and procedural infirmities, vacated the injunction by its October 1972 order.
II. PROCEDURAL ISSUES
The Hotel Association argues either that the September 1972 hearings did not comply with 30 V.I.C. § 105(a)(12) as interpreted by this court in deciding the previous appeal or that, assuming compliance, the statute itself fails to provide the due process of law required by 48 U.S.C. § 1561 (1970). Specifically, the Hotel Association urges that the notice of the hearings and the prior dissemination of the engineering studies were inadequate; that these deficiencies were perpetuated by the denial of the adjournment it requested; that the hearings themselves should have been trial-type, rather than legislative-type; that they should have been conducted by an impartial hearing officer; and that in making its final decision the Authority improperly relied on evidence not in the record.
“Whether [due process] requires that a particular right obtain in a specific proceeding depends upon a complexity of factors. The nature of the alleged right involved, the nature of the proceeding, and the possible burden on that proceeding, are all considerations which must be taken into account.” Hannah v. Larche, 363 U.S. 420, 442, 80 S.Ct. 1502, 1515, 4 L.Ed.2d 1307 (1960). Accord, Goldberg v. Kelly, 397 U.S. 254, 263, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); Marine Space Enclosures, Inc. v. Federal Maritime Commission, 137 U.S.App.D.C. 9, 420 F.2d 577, 589-590 (1969).
While this court, in its prior opinion, did not state precisely how many days in advance the schedule of the new hearings had to be announced or the reports disseminated, it stressed the importance of notice and dissemination adequate under the circumstances. To be considered, for example, was the complex nature of the data.
The Hotel Association now complains that notice of about one month was too short. What the Hotel Association in effect asks us to ignore is the district court’s injunction which had been stayed for only ten months. As of June 28, when this court handed down its affirmance of that injunction, it was clear to all concerned that the Authority would have to hold new hearings. Moreover, the July 5th press release was sufficient to warn the Hotel Association of the need to retain its expert. Thus, the Hotel Association has only itself to blame for waiting until the end of August before seeking an expert qualified to present its case. Similarly, the question whether or not the public had enough time to evaluate the three engineering studies should be considered in light of the ability of the public under these circumstances to have been ready for the reports. We are not prepared to reverse the decision of the district court and rule as a matter of law that notice and dissemination were inadequate.
The Hotel Association’s request for a two-month adjournment was properly denied, particularly since the Hotel Association did not' make the request sooner, for example, when the schedule of meetings was announced, but at the last meeting held. Moreover, the argument the Authority presented to the district court, that any additional delay would seriously hamper the sale of new bonds, is a persuasive factor.
The Hotel Association’s most telling argument is that the hearings should have been conducted not as legislative hearings but as adversary proceedings. The chief difference between the two modes as regards this case is that a trial-type hearing typically permits oral cross-examination of witnesses. Our earlier opinion did not decide this question.
The Administrative Procedure Act, 5 U.S.C. § 551 et seq. (1970), is instructive. Rule-making proceedings are controlled by § 553, which requires only that interested parties be given adequate notice of the proposed rule, see § 553(b), and “an opportunity to participate in the rule making through submission of written data, views or arguments with or without opportunity for oral presentation,” § 553(c). The procedure for adjudication is set out in §§ 554 and 556, under which “[a] party is entitled to present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts,” § 556(d). If the Administrative Procedure Act governed the Authority’s rate-making, the appropriate proceeding would be rule-making, because the rates in question have only prospective application. § 551(4); Law Motor Freight, Inc. v. CAB, 364 F.2d 139, 143-144 (1st Cir. 1966); see Jones v. District of Columbia, 116 U.S.App.D.C. 301, 323 F.2d 306, 308-309 (1963).
A second distinction which has been relied on by the federal courts is whether the proposed agency action affects a small or a large number of persons. Compare Bi-Metallic Investment Co. v. State Board of Equalization, 239 U.S. 441, 36 S.Ct. 141, 60 L.Ed. 372 (1915), with Londoner v. Denver, 210 U.S. 373, 28 S.Ct. 708, 52 L.Ed. 1103 (1908). The two rationales underlying this distinction are that decisions affecting large numbers of persons are likely to be more concerned with general policies than with specific facts and that permitting many persons to cross-examine each witness would make proceedings totally unmanageable. See United States v. Florida East Coast Railway Co., 410 U.S. 224, 93 S.Ct. 810, 35 L.Ed.2d 223 (1973). In the present case, of course, the proposed increases affected every person in the Virgin Islands. We do not know, however, that there would have been a multitude of cross-examiners at the September hearings if cross-examination had been available.
A third factor, somewhat overlapping the second, is whether the facts in question are “legislative” or “adjudicative.” See 1 K. C. Davis, Administrative Law Treatise, § 702 (1958). That is, will the agency decision depend chiefly on policy considerations or on specific, especially historical facts which are provable or disprovable? The Authority’s decision here appears to have been made, as 30 V.I.C. § 105(a) provides, in reliance on both types of facts — for example, the costs of providing electric service to its various classes of customers and “making the benefits [of water and electric power systems] available to the inhabitants of the Virgin Islands in the widest economic manner consistent with sound fiscal management, and by this means to promote the general welfare and increase commerce and prosperity. ...” § 105(a).
While Professor Davis would thus suggest that cross-examination would be appropriate at least as to the adjudicative facts, a number of courts have held in cases which, like the one before us, involved complex and technical factual controversies, that written submissions, possibly supplemented by oral argument, suffice. United States v. Florida East Coast Railway Co., supra; Phillips Petroleum Co. v. F. P. C., 475 F.2d 842 (10th Cir. 1973); National Air Carriers Association v. CAB, 141 U.S.App.D.C. 31, 436 F.2d 185, 191-194 (1970); American Airlines, Inc. v. CAB, 123 U.S.App.D.C. 310, 359 F.2d 624 (1966); cases cited note 10. One recent case countenances the restriction that questions be submitted in writing. International Harvester Co. v. Ruckelshaus, 478 F.2d 615 (D.C.Cir., 1973), at p. 18-23. On the other hand, the absence here of any specific statutory procedures such as the Administrative Procedure Act necessitates greater leeway than those courts had.
The present case does not compel us to hold that cross-examination will never be required in hearings under 30 V.I.C. § 105(a) (12). Instead, we rely on the failure of the Hotel Association to have demonstrated the inadequacy of written questions, which were permitted. The Hotel Association could easily have informed itself of this aspect of the Authority’s procedures by attending the September 11 meeting. In fact, a representative of the Hotel Association did attend the September 12 meeting on St. Thomas and no doubt could have told counsel in time to prepare for the September 13 hearing that questions had to be in writing. We have carefully examined the Hotel Association’s “offer of proof” at the September 13 hearing, and no reason appears to us that the points there raised could not have been formulated in written questions. Consequently, we hold that the Hotel Association has not shown that it was prejudiced, and on this basis we decline to reverse the district' court. See Woodbury v. McKinnon, 447 F.2d 839, 844 (5th Cir. 1971); Citizens for Allegan County, Inc. v. FPC, 134 U.S.App.D.C. 229, 414 F.2d 1125, 1134 (D.C.Cir. 1969).
The Hotel Association’s other two procedural claims can be quickly disposed of. First, it did not appear that the officials who conducted the hearings in any way intimidated counsel for the Hotel Association or otherwise deprived it of privileges available to other participants. Moreover, because the Board of the Authority had the responsibility for the final decision on the rate increases, it is not at all evident how having a trial examiner take testimony would have altered that decision in any way. Second, in claiming that the Authority went beyond what was in the record at the hearings, the Hotel Association relies on certain language in the resolution in which the Authority adopted the increases. We find that the Hotel Association’s interpretation of this language is contrary to its obvious meaning.
III. SUBSTANTIVE ISSUES
The Hotel Association contends that the Authority did not have adequate information on which to determine whether or not the rates were reasonable. The essence of this argument is that the Authority does not know how to allocate various expenses between water and power distribution and does not know, how much it costs it to supply power to the various types of power users. However, the three engineering studies introduced at the hearings seem to provide just this type of information. The Hotel Association has clearly failed to demonstrate the type of statutory violation subject to review by this court. See V. I. Hotel Association v. V. I. Water & Power Authority, supra, 465 F.2d at 1274.
Finally, we note that the Hotel Association did not attempt to establish in the Authority’s September 1972 hearings or in the subsequent district court proceeding, and does not now urge, that the increase in electric rates is confiscatory. At the district court proceeding held on December 21, 1971, where the Hotel Association challenged the first set of hearings held by the Authority, there was uneontradicted testimony by various witnesses that the electric power bills of Virgin Islands hotels accounted for between four and eight percent of all operating costs (including debt service). See N.T. 136, 143, 145-146, 153. With the proposed increase in mind, the district court at that time computed that the rate increases would increase overall operating costs by about two percent, an amount which it concluded was not going to put the hotels out of business. N.T. 175-176.
The October 3, 1972, order of the district court will be affirmed.
. This affidavit was submitted with the Authority’s Motion to Vacate Injunction. The Hotel Association neither filed a counter-affidavit nor disputed these assertions at the September 1972 hearings held on the motion.
. Transcript of September 13 hearing at Christiansted, at 74-75; September 29 bearing on Motion to Vacate Injunction, at 7-9.
. Transcript of September 13 hearing at Christiansted, at 7-12.
. Id. at 51-57.
. Id. at 59.
. Id. at 63, 67-71.
. We note that the Authority’s decision as to rates concerns rates which the members of the Hotel Association must pay. That factor distinguishes this case from cases such as Morgan v. United States, 298 U.S. 468, 56 S.Ct. 906, 80 L.Ed. 1288 (1936), where an arm of the Government fixed prices that regulated persons could charge to customers. The distinction is that the latter situation is much more fraught with the potential for taking without just compensation and, consequently, places heavier demands on procedural due process. We recognize, however, that there could be such a taking in the present situation.
. September 29, 1972, hearing on Motion to Vacate Injunction, at 9. Counsel for the Authority reiterated the desirability of a prompt resolution in oral argument before this court. Apparently one practical, and perhaps legal, requirement of selling these municipal bonds is an opinion letter from counsel that there is no litigation in progress which would materially affect the bonds.
. The Hotel Association also is dissatisifed with the failure of the testimony to be sworn. Because the persons who testified did so in their professional capacities, it does not seem particularly significant that they were not under oath.
. Law Motor Freight also holds that, as regards setting agency policy for the future, 5 U.S.C. § 553 provides due process of law. Accord, NLRB v. Delaware Valley Armaments, Inc., 431 F.2d 494, 499 (3d Cir. 1970); California Citizens Band Association, Inc. v. United States, 375 F. 2d 43, 50 (9th Cir. 1967).
. This court is reluctant to hold that cross-examination is never needed, since the Authority has such broad discretion not subject to judicial review, see 465 F. 2d at 1274, and since, in the view of several commentators, cross-examination of experts on technical matters can contribute significantly to the decision-making process. Robinson, The Making of Administrative Policy: Another Look at Rulemaking and Adjudication and Administrative Reform, 118 U.Pa.L.Rev. 485, 521-524 (1970); Spritzer, Uses of the Summary Power to Suspend Rates: An Examination of Federal Regulatory Agency Practices, 120 U.Pa.L.Rev. 39, 95-97 (1971); Comment, Public Participation in Federal Administrative Proceedings, 120 U.Pa.L.Rev. 702, 743-744 (1972).
However, as noted at page 1269 above, several federal cases have held that cross-examination is not mandated in such a situation.
. The Hotel Association made no attempt to offer similar data at the September 1972 district court hearing.
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_casetyp1_7-2
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E
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation".
AMERICAN PRESIDENT LINES, LTD., et al., Petitioners, v. FEDERAL MARITIME BOARD (now Federal Maritime Commission) and United States of America, Respondents.
No. 16198.
United States Court of Appeals District of Columbia Circuit.
Argued Nov. 8, 1961.
Decided May 24, 1962.
Mr. Seymour H. Kligler, New York City, with whom Mr. Elkan Turk, New York City, was on the brief, for petitioners.
Mr. Edward Aptaker, Asst. Gen. Counsel, Federal Maritime Commission, at the time of argument, with whom Mr. Robert E. Mitchell, Deputy Gen. Counsel, Federal Maritime Commission, and Mr. Irwin Seibel, Atty., Dept. of Justice, were on the brief, for respondents.
Mr. Richard A. Solomon, Atty., Dept. of Justice, entered an appearance for respondent United States of America.
Before Wilbur K. Miller, Chief Judge, Edgerton, Circuit Judge, and Prettyman, Senior Circuit Judge.
PRETTYMAN, Senior Circuit Judge.
This is a petition to review an order of the Federal Maritime Board, for which the successor Federal Maritime Commission is now responsible. Petitioners are common carriers by water in the foreign commerce of the United States. The subject of the controversy is demurrage charged for cargo on docks in New York.
Ships bringing transoceanic freight into port are required by their transportation obligation, absent a special contract, to unload the cargo onto a dock, segregate it by bill of lading and count, put it at a place of rest on the pier so that it is accessible to the consignee, and afford the consignee a reasonable opportunity to come and get it. This was settled by the courts many years ago. *Circuit Judge Goodrich stated, in North American Smelting Co. v. Moller S. S. Co., that “There is no doubt that in discharging the cargo onto the pier and notifying the consignee the carrier was no longer in possession of the goods so as to suffer the risk of loss not due to any negligence on its part.” The work of unloading and putting the cargo on the dock is done on behalf of the carrier by longshoremen, who are laborers skilled in this sort of thing, or by stevedoring companies under contract with the carriers, these stevedores employing longshoremen. There is not now, and does not appear ever to have been, absent a special contract, any obligation on the part of the carriers to put such cargo actually into the hands of consignees, as by putting it into trucks and hauling it to the consignees’ places of business. Consignees are obligated, after notice and reasonable opportunity, to come and pick up their goods at the pier.
A public interest is involved in the problem created when consignees leave cargo on piers for indefinite periods. A port could be blocked by such practice, to the great, detriment of the whole community. This problem became acute in-the port of New York. The Maritime-Commission, by an order of May 29,1947, instituted an investigation and rule-making procedure. After long consideration, involving hearings before an Examiner, exceptions, and argument before-the Commission, the Commission on October 19, 1948, issued its General Order-69, dealing with the amount of time a consignee must be given to remove his-goods from a pier (called “free time”), and the charges to be made upon him if he leaves his goods there too long (called' demurrage charges), on import property at the port of New York. The supporting “Report of the Commission” was long- and carefully done. The practices of the industry are clearly described. The Commission pointed out mishaps which may-prevent a carrier from performing its-duty of tender for delivery, and it diagnosed the responsibility. It pointed out that a period of “free time” is part of the transportation service of the carrier. It concluded that under conditions prevailing in New York “five days is the shortest time that affords to consignees, a reasonable opportunity to take delivery of imports.” It held a tariff which failed “to assure to consignees a minimum of five days of free time” would be unjust and unreasonable.
The Commission then discussed the-matter of demurrage charges, which are, on a progressively increasing scale, authorized after “free time” has expired on a shipment. The Commission said “it is undisputed that the demurrage rate structure is penal in purpose, intended to clear the piers.”
Then the Commission discussed the problems posed by inability of either party to perform its obligation. It depicted the difference between events which affect the carrier, so that “cargo •cannot be tendered for delivery”, and a •case in which an event “effectively prevents consignees from removing their ■shipments.” It referred, by way of example, to a trucking strike which blockaded the port so that “many shipments which, although available for delivery, •consignees could not remove.” The Commission said, “In such cases, neither carriers nor consignees are at fault.” Neither, said the Commission, should be ■subjected to an avoidable penalty or permitted to profit from the other’s disability. It held that a carrier was entitled to fair compensation for sheltering •and protecting the consignee’s property under such circumstances, that the demurrage charge at the lowest rate (i. e., for the first period after “free time”) represented a compensatory charge, but "that the increased demurrage rates were penal and could not be charged under these conditions. In the order then entered (General Order 69) were two provisions as to demurrage, one in respect to carriers and the other in respect to consignees. They were:
“3. Where a carrier is for any reason unable, or refuses, to tender cargo for delivery, free time must be extended for a period equal to the duration of the carrier’s disability or refusal.
“4. Where a consignee is prevented from removing his cargo by factors beyond his control (such as, but not limited to, trucking strikes or weather conditions) which affect an entire port area or a substantial portion thereof, carriers shall (after expiration of free time) assess demurrage against imports at the rate applicable to the first demurrage period, for such time as the inability to remove the cargo may continue. * * * ”
The ruling was quite clear, it seems to us. Its language fitted precisely into the practice of the trade. Referring to the carriers it said that if a carrier is for any reason unable, or refuses, “to tender cargo for delivery,” free time must be extended. The clear underlying premise was that the obligation of the carrier was to tender for delivery, i. e., leave the goods in the designated place of pick-up, for five days.
We pause at this point to note what will become important to a decision here. “[Tjender for delivery” and “deliver” are distinct and different terms. The point comes up in various contexts. “Delivery”, as respects goods contracted to be sold and delivered, and “tender of delivery” are distinct terms. Under a contract of carriage the carrier made a proper “tender” when it offered the goods to the consignee at the pier. If a seller notifies his buyer of the time and place of delivery according to the terms of a contract, and delivers at the time and place, there is a tender. In the industry concerned in this case there seems to us to be no room for dispute over the nature of the obligation of the carrier. It tenders for delivery; it does not deliver. It makes a valid and complete tender when it puts the cargo on the dock, reasonably accessible, properly segregated and marked, and leaves it there for five days; with notice, of course.
The second pertinent part (par. 4) of General Order 69 is likewise clear. It uses language which describes precisely
what happens. Its expression is “Where a consignee is prevented from removing his cargo by factors beyond his control”, and it goes on to insure its meaning by specifying “such as, but not limited to, trucking strikes”. Under those circumstances, says the General Order, the carrier shall assess demurrage at the first demurrage period rate.
Years later (November, 1956, and February, 1957) massive strikes of longshoremen at New York occurred. Cargo was immobilized on the docks. A dispute arose between carriers and consignees as to wharf demurrage during these periods. The carriers said that under General Order 69, where demurrage had begun before the strike took eifeet, they would charge the first period rate for the time during which the goods could not be moved. In other words, the carriers said that, where consignees, unimpeded, had left their goods on the dock after the free time had expired and demurrage had begun to accrue, the consignees should continue to pay, but not at penalty rates. The Board was notified of the practice. Two years later the Board instituted a proceeding. Arguments were presented in written form. The Board then promulgated the order here and now disputed. It read:
“It is Ordered that General Order No. 69 (46 C.F.R. 226) is interpreted to bar common carriers by water from assessing demurrage or storage charges against import property at New York for any period during which they are unable to deliver such property because of a strike by longshoremen, regardless of whether the cargo has been made available for delivery during the entire prescribed period of free time.”
In the Federal Register the foregoing order appears under its opening designations thus:
“Chapter II — Federal Maritime Board, Maritime Administration, Department of Commerce
“Subchapter B — Regulations Affecting Maritime Carriers and Related Activities
“[Docket No. 859; General Order 69, Amdt. 2]
“PART 226 — FREE TIME AND DEMURRAGE CHARGES ON IMPORT PROPERTY APPLICABLE TO ALL COMMON CARRIERS BY WATER
-»**»**
“Part 226 is hereby amended by adding the following new section and center heading:
“Interpretation
Ҥ 226.2 Applicability of decision and order.
“This part is interpreted by the Federal Maritime Board to * *
The first phase of the controversy is whether the new order is an interpretation of General Order 69 or is an amendment of it. We think it is clearly an amendment. Whereas General Order 69 deals, correctly, with the carriers’ obligation to tender for delivery, the new order speaks of a period “during which they [the carriers] are unable to deliver such property * * *, regardless of whether the cargo has been made available for delivery during the entire prescribed period of free time.” The Board’s position, as made clear by its brief and argument here, is that the legal duty of the carrier to deliver continues until the consignee calls for the cargo; that even after free time has expired the carrier has the duty of making the eargo physically available to the consignee’s trucks; and that the carrier must provide the labor to load the consignee’s trucks. A longshore strike, the Board says, prevents the carrier from fulfilling this obligation. This is a violent shift from the provisions of General Order 69 and introduces a new concept into the industry. A carrier does not, as we have pointed out, under long-established customs and official rules, deliver goods to consignees; it tenders them for delivery, makes them available for delivery. We think the proposal to deny the carriers demurrage charges at the first period demurrage rate, where goods have been properly marked, etc., on the dock for more than five days before the strike began, is a violation of General Order 69; and, as the Commission itself pointed out in its 1948 Report, is a denial of just compensation for a service rendered.
The next question is whether the order is invalid for procedural defects. Section 4(b) of the Administrative Procedure Act provides that, after the notice required for proposed rule-making (excepting interpretative rules), opportunity for interested persons to participate, and “consideration of all relevant matter presented, the agency shall incorporate in any rules adopted a concise general statement of their basis and purpose.” In the Senate Judiciary Committee print of June, 1945, which is explanatory of the proposed Administrative Procedure Act and is included in the Legislative History of the Act printed by order of the ■ Senate, the following appears: “The statement of the ‘basis and purpose’ of rules issued will vary with the rule, but in any case should be fully explanatory of the complete factual and legal basis as well as the real object or objects sought.”
No statement of the basis and purpose of the new rule appears, either in the rule itself or in any accompanying report or opinion. The Board says a complete statement of basis and purpose accompanied General Order 69. This is true, but that statement cannot encompass the different rule incorporated in the new order. The Board argues that the new order is an interpretation and therefore this statutory requirement does not apply. We have held hereinabove that the order is not an interpretation but is an amendment of the existing rule. It establishes a new requirement as to the payment of demurrage, clearly different from the requirement which is in the heretofore existing order (General Order 69). Since the premise for the Board’s argument falls, the argument falls. We hold that the quoted provision of Section 4(b) of the Administrative Procedure Act applies and that therefore the new order of the Board must, for procedural validity, include or be accompanied by a statement of the basis and purpose of the order.
For the foregoing reasons the order entered by the Board on December 15, 1960, in Docket No. 859, Free Time and Demurrage Charges — New York, is set aside as invalid and the matter is remanded to the Board for further proceedings in accordance with this opinion.
So ordered.
. See, e. g., The Eddy, 5 Wall. 481, 495, 72 U.S. 481, 495, 18 L.Ed. 486 (1866) ; Ex parte Easton, 95 U.S. 68, 75, 24 L.Ed. 373 (1877) ; The Grafton, 10 F.Cas. 907 (No. 5656) (S.D.N.Y.1844), aff’d, 10 F.Cas. 905 (No. 5655) (C.C.S.D.N.Y. 1846) ; The Titania, 131 F. 229 (2d Cir. 1904) ; Southern Pac. Co. v. Van Hoosear, 72 F.2d 903, 907 (9th Cir. 1934) ; Baltimore & O. R. Co. v. United States, 201 F.2d 795, 797 n. 3 (3d Cir. 1953) ; Miami Struct. Iron Corp. v. Cie Nationale, Etc., 224 F.2d 566, 568 (5th Cir. 1955).
. 204 F.2d 384, 386 (3d Cir. 1953).
. For simplicity’s sake we omit discussion of lighterage, which sometimes is involved.
. The problem in connection with the port of San Francisco was rather exhaustively discussed in California v. United States, 320 U.S. 577, 64 S.Ct. 352, 88 L.Ed. 322 (1944).
. Free Time and Demurrage Charges at New York, Docket No. 659, 3 U.S.M.C.. 89, as amended, 46 C.F.R. § 226.
. Inland Products Corp. v. Donovan, Inc., 240 Minn. 865, 62 N.W.2d 211, 218 (1954).
. Dohrmann Hotel Supply Co. v. Owl Transfer & Storage Co., 19 Wash.2d 522, 143 P.2d 441, 149 A.L.R. 1108 (1943).
. Carnation v. Pridgen, 84 Ga.App. 768, 67 S.E.2d 485 (1951).
. 46 C.F.R. § 226.1(d).
. The facts recited in the text were developed in exchanges of correspondence, which was complicated in its detail.
. 25 Fed.Reg. 13696 (1960).
. 60 Stat. 238 (1946), 5 U.S.C.A. § 1003 (b).
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:
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songer_circuit
|
A
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
COGGINS v. O’BRIEN, Warden.
No. 4501.
United States Court of Appeals First Circuit.
March 15, 1951.
Rehearing Denied March 29, 1951.
Michael F. Coggins, Jr., pro se.
Lenahan O’Connell, Asst. Atty. Gen. (Francis E. Kelly, Atty. Gen., Massachusetts, and William F. Marcella, Boston, Mass., on the brief), for appellee.
Wilbur G. Hollingsworth, Boston, Mass., amicus curiae.
Before MAGRUDER, Chief Judge, WOODBURY, Circuit Judge, and FORD, District Judge.
WOODBURY, Circuit Judge.
This is an appeal on certificate of probable cause, Title 28 U.S.C.A. § 2253, from a final order of the United States District Court for the District of Massachusetts dismissing an application for a writ of habeas corpus without prejudice and denying the writ.
The petitioner and one Ralph P. Dupont were indicted and tried together on pleas of not guilty in the Massachusetts Superior Court for the County of Middlesex for a homicide committed in the course of an attempted armed robbery. Both were found guilty by the jury of murder in the second degree and both were sentenced to life imprisonment in conformity with Massachusetts law. Neither appealed and they were forthwith committed. At the trial, which took place in November, 1947, the petitioner was represented by counsel appointed by the court whose skill and competence is unquestioned.
Subsequently in June, and again in September, 1948, the. petitioner acting pro se, filed separate motions for a new trial on the ground of after discovered evidence. These motions were heard by the judge who presided at the trial and both were denied without findings of fact, conclusions of law, or memorandum opinion. The petitioner appealed from the denial of both motions to the Supreme Judicial Court of Massachusetts and asked that Court to appoint counsel to assist him therein. He withdrew his request for counsel, however, when the counsel who had represented him at the trial volunteered to aid the petitioner in prosecuting his appeal, and in due course on July 21, 1949, the Supreme Judicial Court handed down its opinion affirming the Superior Court. Commonwealth v. Coggins, 324 Mass. 552, 87 N.E. 2d 200. The Supreme Court of the United States denied certiorari. 338 U.S. 881, 70 S.Ct. 152.
Thereupon the petitioner, again acting pro se, applied to the court below for a writ of habeas corpus alleging that his “trial, conviction, and sentence, individually or collectively, was rendered * * * in contravention of (his) Federal Constitutional Rights to ‘Due Process of Law’ as related and guaranteed * * * by virtue of the Fourteenth Amendment to the Constitution of the United States.” As already appears the District Court dismissed the application and denied the writ, and obtaining a certificate of probable cause from that court, the petitioner comes here on appeal.
On this appeal the petitioner filed a brief pro se and also asked us for a writ of habeas corpus ad testificandum to permit him to appear and argue in person. We denied his application for the writ, not because we doubted our power to issue it, but because in the exercise of our discretion we felt that oral argument by the petitioner himself was not reasonably necessary to our adequate understanding of the case. Price v. Johnston, 334 U.S. 266, 278-286, 68 S.Ct. 1049, 92 L.Ed. 1356. The petitioner also asked us to appoint counsel to aid him on this appeal and we did so. But the petitioner objected to representation by the counsel whom we had appointed asserting his incompetence in matters of federal constitutional law.- We well knew that the petitioner’s objection was utterly unfounded, and we did not deem it incumbent upon us to appoint some other attorney to represent the petitioner. Nevertheless, in view of the petitioner’s objection, we changed the designation of the counsel we had appointed from counsel for the petitioner to amicus curiae so that we might have the benefit of his skill and learning at oral argument.
The petitioner’s basic contention is that the prosecuting authorities knowingly used perjured testimony in order to bring about his conviction, and that this action on their part under the rule enunciated in Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791, constituted a denial of that due process of law to which he is entitled under the Fourteenth Amendment of the Constitution of the United States. Undoubtedly if the petitioner’s premise is sound, and his conviction did in fact rest upon perjured testimony knowingly used by the prosecuting authorities for that purpose, he has indeed been deprived of due. process of law as guaranteed to him by the Fourteenth Amendment. But he has once tried to establish the factual basis upon which his constitutional contention, rests in the courts of the Commonwealth of Massachusetts, and failed. This does not mean, however, that as a necessary consequence he is forever barred from again trying to- establish the factual basis for his contention in the court below, for it was established in Salinger v. Loisel, 265 U.S. 224, 44 S.Ct. 519, 68 L.Ed. 989, that the doctrine of res judicata is not applicable in habeas corpus cases. On the other hand it does not follow from the inapplicability of the doctrine of res judicata that in spite of his unsuccessful attempt in the Massachusetts courts he is entitled as of legal right, or without more appearing, even in judicial discretion, to try his basic factual issue over again in the court below. While state courts have full discretionary power either to hear again or summarily to dispose of repeated applications for habeas corpus grounded on the same facts filed by prisoners in state custody, and federal courts have like powers with respect to prisoners in federal custody, different considerations apply in cases like the present. Due respect for the delicacies of the relationship between the United States and its courts, and the states and theirs, under a federal system such as ours (see Darr v. Burford, 339 U.S. 200, 205 et seq., 70 S.Ct. 587, 94 L.Ed. 761, and cases cited) requires that the federal courts withhold their relief in state custody cases until it is made to appear that the state has not afforded a constitutionally adequate opportunity to prove the factual basis for a constitutional contention such as this unless “exceptional circumstances of peculiar urgency are shown to exist.” United States ex rel. Kennedy v. Tyler, 269 U.S. 13, 17, 46 S.Ct. 1, 3, 70 L.Ed. 138; Ex parte Hawk, 321 U.S. 114, 64 S.Ct. 448, 88 L.Ed. 572. In my view the area of judicial discretion in cases like the present is limited to the evaluation of the urgency of any exceptional circumstances which may be present in a particular case. Thus, finding no “exceptional circumstances of peculiar urgency” whatever in the case at bar, the primary question for us as I see it is whether under Massachusetts law Coggins has been afforded an opportunity consonant with the due process requirements of the Fourteenth Amendment to prove that perjured testimony was in fact knowingly used by the prosecuting officials to obtain his conviction. For it is only after this question has been answered in the negative that the court below is open to him for a hearing on the merits.
At this point, however, I am confronted with two perplexing problems, arising from certain language used by the Supreme Court in recent cases.
The Supreme Judicial Court of Massachusetts did not rest its decision in Commonwealth v. Coggins, 324 Mass. 552, 87 N.E.2d 200, upon some nonfederal ground. On the contrary, taking it for granted that Massachusetts law provided Coggins with an adequate remedy by motion for a new trial, it held that Massachusetts practice and procedure had been fully complied with in the disposition of his motions for new-trial, and that by that practice and procedure Coggins had not been deprived of any right secured to him by the due process provision of the Fourteenth Amendment. Thus the highest court of the Commonwealth never reached Coggins’ basic federal constitutional question for the reason that in its view Coggins, although afforded due process of law, had failed to establish any foundation in fact for it to rest upon. That court did, however, consider a federal question, i. <?., the adequacy under the Fourteenth Amendment of the local system for administering the criminal law, and hence the Supreme Court of the United States had jurisdiction to grant Coggins’ petition for a writ of certiorari directed to the Supreme Judicial Court of Massachusetts. The Supreme Court’s denial of Coggins’ petition for the writ under these circumstances presents the question of what weight if any, we should give that denial.
Raising this question does not indicate that I am unaware of the many occasions upon which the Supreme Court has emphasized that its denial of certiorari is not to be taken as a ruling upon the merits, or, indeed, even as having any bearing whatsoever upon the merits. I pose the question for the reason that the Supreme Court in House v. Mayo, 324 U.S. 42, 48, 65 S.Ct. 517, 521, 89 L.Ed. 739, while reaffirming the proposition that its denial of certiorari “imports no expression of opinion upon the merits of a case”, nevertheless, closely paraphrasing Ex parte Hawk, 321 U.S. 114, 118, 64 S.Ct. 448, 88 L.Ed. 572, (which it cites) goes on to say: “It is true that where a state court has considered and adjudicated the merits of a petitioner’s contentions, and this Court has either reviewed or declined to review the state court’s decision, a federal court will not ordinarily reexamine upon writ of habeas corpus the questions thus adjudicated. * * * But that rule is inapplicable where, as here, the basis of the state court decision is that the particular remedy, sought is not one allowed by state law, for in such a case this Court lacks jurisdiction to review the decision.”
Moreover, the Court of Appeals for the Second Circuit in Schechtman v. Foster, 1949, 172 F.2d 339, 342, certiorari denied, Schectman v. Foster, 339 U.S. 924, 70 S.Ct. 613, interpreted the foregoing language as requiring it to give effect on the merits to a denial of certiorari by the Supreme Court in prior state proceedings. And the subsequent opinion of the court in Darr v. Burford, 339 U.S. 200, 214-216, 70 S.Ct. 587, 595-597, 94 L.Ed. 761, written by Mr. Justice Reed and concurred in by the Chief Justice and Mr. Justice Minton, handed down over a year after the Schechtman case, mentions but avoids decision of the question of the significance, if any, of a denial of certiorari to the highest state court in cases like this. See Mr. Justice Frankfurter’s dissenting opinion in Darr v. Burford, supra, 339 U.S. 224, 70 S.Ct. 600.
The other perplexing question confronting me at the threshold of this case is whether it falls within our province to disagree with the Supreme Judicial Court’s decision of the federal question it considered on Coggins’ appeal should we feel disposed to do so. I pose this question because in the opinion of the court in Darr v. Burford, supra, 339 U.S. 216, 70 S.Ct. 596, in which on this point Mr. Justice Burton and Mr. Justice Clark agreed, it is said: “It is this Court which ordinarily should reverse state court judgments concerning local criminal administration.” And in the sstme case on the following page it is said: “It is this Court’s conviction that orderly federal procedure under our dual system of government demands that the state’s highest courts should ordinarily be subject to reversal only by this Court and that a state’s system for the administration of justice should be condemned as constitutionally inadequate only by this Court.”
If the language quoted above is to be taken literally and given general application, then it would appear that even though a prior denial of certiorari to the highest state court is of no moment, it is not our function, except in extraordinary cases, to disagree with that court’s determination that the local system for the administration of justice squares with federal constitutional requirements. Hence, if it is not for us to disagree with the highest state court, it would seem that the function of the inferior federal courts in these cases would be only to expedite the applicant for habeas corpus along his secondary road through the federal courts to a second petition to the Supreme Court for certiorari to review the federal question which it has once declined to consider. , And, on the other hand, if the denial of certiorari to the highest state court is to be given any weight at all by the inferior federal courts in cases like the present, it would seem to follow that we ought also to expedite the applicant on his way for, as pointed out by Judge Learned Hand- in the Schechtman case, supra, 172 F.2d 343, “unless we are altogether to disregard the action of the court of last resort in the very case itself, the denial ought to be conclusive.” However, until clearer sailing directions are forthcoming I do not care to dispose of this case summarily, or perhaps even, perfunctorily, on the basis of either the proposition that in these cases denial of certiorari to the highest state court is conclusive upon us on the merits, or else that it is not our function as an inferior federal court to disagree with the Supreme Judicial Court of Massachusetts as to the constitutional adequacy of the system for administering criminal justice in that Commonwealth even if we should feel so inclined. I turn, therefore, to the petitioner’s contention.
Coggins filed both of his motions for new trial pro se. But at the hearings on those motions he was represented by the counsel who had represented him at the trial. He was also present at both hearings personally pursuant to writs of habeas corpus ad testificandum issued on his application by the justice of the Massachusetts Superior Court before whom the motions were heard, who as already appears was also the justice who had presided at the trial.
His first motion was supported by the affidavit of a witness for the Commonwealth at the trial who said in her affidavit that, motivated by jealousy, (she had been Coggins’ fiancée but he had broken their engagement) she had then testified falsely with respect to statements indicative of guilt made to her by Coggins while he was confined in jail awaiting trial. This affidavit was corroborated by those of three others to the effect that the first affiant had admitted to them that she had testified falsely' at Coggins’ trial, and by that of still another to the effect that he was present when the first affiant visited Coggins in jail and nothing was then said by the latter tending to indicate his guilt. In addition, the affidavits of two persons were introduced tending to establish an alibi, and also those of two more tending to show that two police officers who had been subpoenaed to testify at the trial would have said had they been called, which they were not, that the- Commonwealth’s star identification witness at first had had great difficulty in identifying Coggins. Moreover, affidavits of Coggins’ codefendant, and of the latter’s brother, Alfred J. Dupont, Jr., were also introduced; the former to show the falsity of the testimony of a police officer with respect to incriminating statements made by Coggins in jail, and the latter to show that the Commonwealth’s principal witness on the issue of identity had originally identified the affiant as an assailant, but that in spite of this identification he had never been formally charged with participation in the crime.
All of these affidavits were presented to the justice at the hearing, who said he would consider them, and he also heard oral testimony by some of the affiants who were present in court.
Coggins’ second motion for new trial was supported by another affidavit of the affiant who previously had sworn that she had testified falsely at the trial in which she reiterated her perjury, and also added, what she had significantly omitted from her first affidavit, that the falsity of her testimony was not only known to the prosecuting attorney, but also that he had encouraged her to give it. In addition to this affidavit Coggins requested the court to issue compulsory process to require the attendance at the hearing on this motion of the two Duponts, of one of the affiants who had corroborated the first affiant above, and also of one of the jurors who Coggins stated would say that he had given weight to the first affiant’s testimony at the trial in arriving at his verdict. The court granted Coggins’ request for process as to the juror and the corroborating affiant, but not as to the Duponts, and also granted an application made by Coggins for a writ of habeas corpus ad testificandum to enable him to attend the hearing, which was set for December 7. Thereupon Coggins applied for writs -of habeas corpus ad testificandum to produce both Ralph P. Dupont, and .also the brother Alfred J. Dupont, Jr., (who was also confined in the Massachusetts penitentiary) at the hearing. The court refused these writs and Coggins was so informed by letter from the clerk in which it is stated that the court would, however, consider the affidavits of the Duponts already on file. Coggins then wrote to the court that affidavits from the two Duponts were “practically out of the, question” and that he would like to have them personally in court ■at the hearing “because they hold testimony and evidence which is one of the assignments of my motion” which “has nev'er been discussed during my trial or hearing for a new trial.” This request was not acted upon, and at the' outset of the hearing on December 7, at which Coggins, his counsel, and the witnesses who had been summoned were present, Coggins repeated his request for the production of the two Duponts and asked for a recess to “have these men brought before this Court, as they are my first witnesses and are very important witnesses.”
The court then said:
"Coggins, it was brought to your attention by the Court, whether your counsel brought it to your attention or not, I have no way of knowing, but I rather suppose he did, knowing him to be a very able attorney, and that he, as you have already said, did everything that possibly could be done in your behalf, but certainly I brought it to your attention at the hearing on June 25, 1948, on your motion for new trial at that time, that by Rule 46 of the Superior Court Rules, and I quote the rule:
. “ ‘The Court need not hear any motion or opposition thereto grounded on facts unless the facts are verified or are apparent upon the record and files or are agreed and stated in writing signed by the attorneys for the parties interested.’
“I say I brought that to your attention June 25, if you did not already know it, but in spite of the rule, as I recall it now, on June 25, 1948, I did take some testimony at your request, and at your request at this hearing I have caused summons to be issued for two witnesses at your request. It isn’t the practice to take oral testimony in such situations as this and the time has come when I must make it clear to you that I do not propose to take any oral testimony; that you must comply with the rule of the court in respect to this matter, and you can understand that I do not propose, because I have already indicated to you, to bring either or both of the Duponts here to testify orally, I repeat what had already been said to you by the Clerk in his letter to you, that I am willing to consider the affidavits already on file from both of these individuals.”
Coggins replied that as a.prisoner he was unable to “get a notary public.to notarize such documents” as affidavits and the court replied: “That is a very interesting comment, sir, but it so happens on June 22nd, 1948, you filed in your behalf many .affidavits, the number of them I am not attempting. to state, and since then you have filed affidavits. Anything further, Cog-gins?”
Coggins then said that he was:
“ * * * trying to explain they will notarize affidavits but they will not notarize affidavits that are going to hurt somebody or are incriminating themselves, and a notary public there, Mr. Joseph Tambeau, Chief Clerk of the prison, definitely refuses to notarize any such paper as what his testimony shall be, and I am a prisoner and. I must obey the rules. If he says he shall not notarize it, he will not, and there is nothing I can do about it.”
******
“That is why, sir, I have requested those witnesses. They have very important testimony.”
After some further colloquy the court terminated the discussion by saying: “I have already told you, sir, I am not going to bring the Duponts to court. What do you want to say about the motion, anything?”
The hearing' then proceeded with oral testimony from the juror, and from the other witness who had been summoned, who said that the affiant who had sworn to her perjury at the trial had told the witness that she had been questioned by . the police about her second affidavit, and told by them “that if she didn’t take back what she had stated in her affidavit, they would send her to prison for life for perjury.”
Coggins himself was then allowed to take the stand to tell the court that if Ralph P. Dupont were present he would testify that he was an eye witness' to the homicide for which Coggins had been convicted, that he knew the persons who had participated therein, and that Coggins was not one of them, and that the brother, Alfred J. Dupont, Jr., if present, would testify “that it was he who had suggested to Ralph Dupont that the truth be told to prove the innocence of the petitioner.”
In opposition to the motion the Commonwealth presented a police officer who testified that he had questioned thé affiant who swofe that she had perjured herself, and had shown her the statutory penalty for perjury, and that “while he questioned her as to the truth of her affidavits, she orally admitted that her testimony on the trial was true.”
After considering matters with respect to the affidavit and testimony of the juror, and hearing arguments of counsel and of Coggins personally, the court took the motion under advisement and the next day denied it without opinion.
Coggins then succeeded in obtaining an affidavit from Ralph P. Dupont in which the affiant said that he was an eye witness to the homicide for which Coggins had been convicted, that he knew the persons who had participated therein, and that Coggins “was not present at the time the crime was committed.” Coggins sent this affidavit to the clerk of the Massachusetts Superior Court with a motion to vacate judgment which the clerk refused to accept for filing on the ground of lack of statutory provision therefor. Coggins thereupon took his appeal from the denial of both of his motions for new trial to the Supreme Judicial Court of Massachusetts.
The foregoing facts are taken from the voluminous application for habeas corpus filed by Coggins in the court below. Since that court denied the application without requiring the respondent to answer and without a hearing, we assume them to be true. House v. Mayo, 324 U.S. 42, 45, 65 S.Ct. 517, 89 L.Ed. 739. Taking them as true, however, Coggins has not made out a case for the issuance of a writ of habeas corpus by the District Court. The reason for this is that, absent “exceptional circumstances of peculiar urgency”, a federal court ought not to entertain applications for habeas corpus by persons in state custody unless otherwise the applicant would be without a remedy which is constitution-ally adequate to redress the wrong complained of. And here it seems to me clear, first, that Massachusetts law afforded Cog-gins a remedy by motion for a new trial, and second, that the remedy afforded was constitutionally adequate in that under the law of the Commonwealth Coggins in the pursuit of the remedy afforded had a full and fair opportunity to prove the factual basis for the federal constitutional question presented within the requirements of the due process clause of the Fourteenth Amendment. See Ex parte Hawk, 321 U.S. 114, 118, 64 S.Ct. 448, 88 L.Ed. 572, cited with approval by this court in Buchanan v. O’Brien, 1 Cir., 181 F.2d 601, 603, in which, after stating that a federal court will not ordinarily re-examine on habeas corpus the merits of contentions once considered and adjudicated by the state courts, and certiorari has either been granted or denied, the court goes on to say, (omitting citations) : “But where resort to state court remedies has failed to afford a full and fair adjudication of the federal contentions raised, either because the state affords no remedy, * * * or because in the particular case the remedy afforded by state law proves in practice unavailable or seriously inadequate, * * * a federal court should entertain his petition for habeas corpus, else he would be remediless.”
It is true that the Massachusetts trial justice decided Coggins’ motions without opinion so that we are in the dark as to his reasons for that action. Hence, although we know that the highest court of the Commonwealth found it unnecessary to consider Coggins’ basic constitutional contention, we do not know whether or not the trial justice also found it unnecessary to do so. It may be that the trial justice believed Coggins’ evidence, but, in ignorance of the rule of Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791, failed to appreciate that the deliberate use of perjured testimony required vacation of the conviction. On the other hand it is equally probable that the trial justice, having presided at the trial and therefore having seen the affiant who swore that she had then perjured herself, and believing the police officer who testified for the Commonwealth at the hearing on the second motion for new trial, found Coggins’ evidence that perjured testimony was knowingly used to obtain his conviction wholly unworthy of belief, and thus did not reach the constitutional question at all.
The first assumption, i. e. that the trial justice believed Coggins’ evidence but made, an error of federal constitutional law, is not open to us for two reasons. In the first place an applicant for habeas corpus to make out a case has the burden of alleging and proving primary facts, not inferences, that show, notwithstanding the presumption of constitutional regularity in state court proceedings that he has been in fact denied due process of law. Schechtman v. Foster, 2 Cir., 172 F.2d 339, 342; Darr v. Burford, 339 U.S. 200, 218, 70 S.Ct. 587, 94 L.Ed. 761, and cases cited. In the second place the. assumption that the trial justice was unaware of the well settled rule that a conviction obtained by the deliberate use of perjured testimony deprived the accused of due process of law would be a rather violent one in view of the clear pronouncement several years ago in Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791, later reaffirmed in Pyle v. Kansas, 317 U.S. 213, 216, 63 S.Ct. 177, 87 L.Ed. 214, and White v. Ragen, 324 U.S. 760, 65 S.Ct. 978, 89 L.Ed. 1348. Moreover, it has long been the rule that we are not at liberty “to presume that the decision of the state court would be otherwise than is required by the fundamental law of the land, or that it would disregard the settled principles of constitutional law announced by this court, upon which is clearly conferred the power to decide ultimately ' and finally all cases arising under the constitution and laws of the United States.” Ex parte Royall, 117 U.S. 241, 252, 6 S.Ct. 734, 740, 29 L.Ed. 868, cited with approval in Darr v. Burford, 339 U.S. 200, 205, 70 S.Ct. 587, 94 L.Ed. 761. See also Bute v. Illinois, 333 U.S. 640, 671-672, 68 S.Ct. 763, 92 L.Ed. 986.
I think we ought therefore to assume, in the silence of the trial justice, that he disbelieved Coggins’ evidence, and hence found no occasion to consider the validity under the due process clause of the Fourteenth Amendment of a conviction obtained by the conscious use of perjured testimony. In short, I agree with the Court of Appeals for the Second Circuit that a prisoner in state custody makes out a case in the District (Court for federal habeas corpus in cases like this only in the event that he can affirmatively show that the state court denying his application either failed to give any consideration at all to his evidence, or else failed to understand that as a matter of federal constitutional law the deliberate use of perjured testimony vacates a conviction based thereon. Schechtman v. Foster, 172 F.2d 339.
Moreover it is also true that under Massachusetts law a party moving for a new trial in a criminal case does not have an absolute legal right to present the testimony of witnesses in support of his motion, but may under rule of court in the discretion of the trial justice be relegated to the use of affidavits only to support his factual contentions. This rule of criminal procedure does not in my opinion run afoul of the Fourteenth Amendment for it does not deprive one who has been convicted of a crime of any right which can properly be classified as fundamental, such as the right to notice of the criminal charge and the right to' an adequate opportunity to be heard in defense. The rule merely provides an expeditious method for handling motions grounded on facts in that it authorizes the trial court in its discretion to require proof by affidavit rather than by the time consuming method of oral testimony. It is merely a rule of administrative convenience which does not offend any fundamental principle of justice of which I am aware, and it is well settled that “The commonwealth of Massachusetts is free to regulate the procedure of its courts in accordance with its own conception of policy and fairness, unless in so doing it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked' as fundamental.” Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674. In brief the rule impresses me as a practical one which I can by no means say “is so flagrantly unjust that the Constitution of the United States steps in to forbid it.” Id., 291 U.S. 115, 54 S.Ct. 336.
It might, however, still be objected that invoking the rule with respect to prisoners whose affidavits are unobtainable serves to prevent the production of any evidence at all, and hence deprives a moving party of due process of law. In the first place it is doubtful if prison rules in fact prevented Coggins from obtaining affidavits from the Duponts. He obtained affidavits from them in support of his first motion, which the court said it would consider on his second one, and furthermore he obtained an affidavit from one of them the day following the second hearing. It may well be, and perhaps the trial justice well knew, that prison rules did not prevent prisoners from executing affidavits. In the second place the trial court permitted, and presumably considered, a statement by Coggins at the second hearing with respect to what the substance of the Duponts’ testimony would be if called to the stand. Thus it appears that Coggins in fact succeeded in placing all his evidence before the court on his second motion for new trial despite the rule.
One more matter calls for brief mention. In the court below Coggins for the first time asserted that he had been denied due process of law because at the trial the court admitted the testimony of a police officer secreted in a cell between him and his codefendant who used “disguise, misrepresentation and psychological tactics” to prevent them from sleeping and in this way elicited from them “information and statements”, presumably of a damaging nature, as to which he was allowed by testify. The District Court refused to consider this contention for the reason that Coggins had never attempted to raise it in the Massachusetts courts and hence had not exhausted his state remedies. This action on the part of the court below is correct. Darr v. Burford, 339 U.S. 200, 203, 70 S.Ct. 587, 94 L.Ed. 761.
The order of the District Court is affirmed.
. Ex parte Hawk, in turn, refers to Salinger v. Loisel, 265 U.S. 224, 230-232, 44 S.Ct. 519, 68 L.Ed. 989, as authority. That case, however, does not involve any question of certiorari to the highest court of ¿ state, or even an application to a federal court for habeas corpus by a prisoner in state custody. It involves the question of the effect to be accorded by a federal court in habeas corpus proceedings brought by a prisoner in federal custody to the prior refusal of another federal court to discharge the prisoner on a like application.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
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songer_appel2_2_3
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F
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed appellant. The nature of this litigant falls into the category "private organization or association", specifically "business, trade, professional, or union (BTPU)". Your task is to determine what subcategory of private association best describes this litigant.
LOCAL 553, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. MEENAN OIL CO., Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
Nos. 208, 209, Docket 25306, 25307.
United States Court of Appeals Second Circuit.
Argued April 17, 1959.
Decided May 14, 1959.
Samuel G. Cohen, New York City (Jack Last, New York City, of counsel), for petitioner Local 553.
Hannon, Evans, Nolan & Halpin, New York City (Jerome T. Nolan, New York City, of counsel), for petitioner Meenan Oil Co., Inc.
Jerome D. Fenton, Gen. Counsel, Thomas J. McDermott, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Frederick U. Reel and James C. Paras, Attys., Washington, D. C., for respondent.
Before CLARK, Chief Judge, and SWAN and MOORE, Circuit Judges.
SWAN, Circuit Judge.
These cases are before us upon separate petitions of Local 553, hereafter referred to as the Union, and Meenan Oil Co., Inc., which employs members of the Union. It will be referred to as the Company. The petitioners seek to have set aside a decision and order of the National Labor Relations Board which holds that the Union and the Company have engaged in unfair labor practices and orders them to take remedial action. The Board’s answer to the petitions requests the court to enforce its order.
The Board found that the Company and the Union violated section 8(a)(1), (2) and (3) and section 8(b)(1)(A) and (2) of the Act, 29 U.S.C.A. § 158, by entering into, maintaining and enforcing their 1956 collective bargaining contract which the Board held delegated to the Union final control over the employees’ seniority status. The Board further found that the Union used its control over seniority to cause the Company to discriminate against an employee named Wolny, and that both petitioners thereby violated the same provisions of the Act.
The Company is engaged in the business of selling fuel oil. Since the volume of its business is dependent upon the demand for heating oil, it is inherently a seasonal business which reaches its peak during the months of October to May. In this period it employs the maximum number of drivers. Only a limited number of them are able to maintain year-round employment with the Company. Seniority controls the retention of jobs during the slack summer period, as well as the allocation of driving assignments and shift preferentials during the entire year. The collective bargaining agreement contains the seniority provision set forth in the margin. The Board takes the position that this provision delegates to the Union final control over the seniority status of the Company’s drivers. It relies upon N.L.R.B. v. International Brotherhood of Teamsters, etc., 8 Cir., 225 F.2d 343, 347 which held that delegation to a union of complete control over seniority is violative of the Act “because it tends to encourage membership in a Union.” In accord is N.L.R.B. v. Dallas General Drivers, etc., 5 Cir., 228 F.2d 702, 706. The petitioners apparently concede the correctness of these decisions but maintain that the seniority provisions considered in them differ from the provision under consideration in the case at bar because here the contract provision merely vests the shop steward with ministerial functions to be performed according to an objective standard.
We disagree with the Board’s interpretation of section 10 of the contract and agree with that advanced by the petitioners. Concededly the Company’s business .is seasonal. During the slack season many drivers of its trucks are laid off and take other employment. Some may never return; others will return to the Company’s employ and do not wish to lose their seniority status by reason of .the summer lay-off. To the employer it is important to know by October 15 how many may be expected to return and be available for work. Section 10 of the contract was devised to meet the needs of both the employees and the Company. It requires the drivers who have been laid off during the summer to sign the “seniority roster” by 8 A.M. on October 15 and requires the Company to “accept the certification of said shop steward as to ’ the availability of such men when called by the employer.” The certification is purely a ministerial act to be performed according to an objective standard. The shop steward is vested with no discretion to determine whosé names may appear on the list or the order in which they shall be rehired by the Company. He merely certifies that such men as have signed the seniority roster have done so by 8 A.M. on October 15 and are therefore available for work when and if the employer seeks to hire additional drivers. This seems to us to be an entirely reasonable provision to include in a collective bargaining contract.
The Board further argues that the practice as revealed by the record establishes that the Company in fact surrendered seniority control to the Union. This is based on the Conklin and Wolny episodes. Conklin’s position on the list certified by the shop steward was below that of other men to whom he was senior. Wolny’s name, although he showed up at the plant on the morning of October 15, was not on the list. Superintendent Slater of the Company questioned shop steward Johnson as to these matters. He explained that Conklin had signed late and that Wolny had not signed at all. These explanations and Mr. Slater’s testimony refute in our opinion the Board’s contention that the Company in fact surrendered seniority control to the Union. Nor can we accept the argument that application of the seniority provision to Wolny was discriminatory. While working for another employer Wolny had disregarded a strike-call and the Union had imposed a fine of $500 which he refused to pay. Johnson, who preferred the charges that led to the fine, had developed such animus against Wolny that possibly he might have refused to certify Wolny’s name had he signed the seniority roster. In an affidavit Johnson stated: “If Wolny would have demanded to sign the seniority list, I would not have permitted him to sign until I had called the Union at about 9 A.M. to get advise [sic], in view of my understanding that he quit the past season.” Much was made of this statement by the Trial Examiner in his Intermediate Report. We regard the statement as irrelevant. The fact that Johnson might have discriminated against Wolny is no evidence that he or the Union committed any discriminatory act. Johnson’s only act, namely, omitting Wolny’s name from the roster was ministerial in character and in strict accordance with the seniority provision of the contract, since Wolny had not signed.
For the foregoing reasons the petitions are granted and the Board’s order is set aside.
. “Section 10. Dealers with more than one depot will establish a seniority list for each classification in each depot. It is understood and agreed, however, that men formerly employed in a depot either temporarily or permanently closed, must be placed at the end or other single steady list.
It is further understood and agreed that during the dull season of the year preference shall be given to the chauffeurs on the seniority list and that the Shop Steward shall be the No. 1 man on that list, except as provided in Section 2, paragraph 1.
During the slack season, April 15 to October 15, any employee who according to seniority would not have steady employment shall be entitled to a leave of absence and mai/ntain his full seniority rights during that period. Any man so described must report to the Shop Steward not later than 8 A.M. on October 15 and sign the seniority roster in order to protect his seniority, and, the Employer agrees to accept the certification of said Shop Steward as to availability of such men when called by the Employer. If October 15 falls on a Saturday or Sunday, the reporting day shall be the neait work day. Any man failing to report as above specified shall forfeit all seniority rights.
-No' Shop Steward has the right to tie up a' bar unless authorized' by the delegate, who so authorized in full accordanee -with the terms and provisions of this contract.” (Emphasis supplied.)
Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "private organization or association", specifically "business, trade, professional, or union (BTPU)". What subcategory of private association best describes this litigant?
A. Business or trade association
B. utilities co-ops
C. Professional association - other than law or medicine
D. Legal professional association
E. Medical professional association
F. AFL-CIO union (private)
G. Other private union
H. Private Union - unable to determine whether in AFL-CIO
I. Public employee union- in AFL-CIO (include groups called professional organizations if their role includes bargaining over wages and work conditions)
J. Public Employee Union - not in AFL-CIO
K. Public Employee Union - unable to determine if in AFL-CIO
L. Union pension fund; other union funds (e.g., vacation funds)
M. Other
N. Unclear
Answer:
|
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.
Arnold T. FORSETH, Gerald R. Formsma and Constance Y. Formsma, Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
No. 86-1209.
United States Court of Appeals, Seventh Circuit.
Argued Oct. 1, 1987.
Decided May 6, 1988.
Edward G. Lavery, Hercules & Lavery, Dallas, Tex., for petitioners-appellants.
Kenneth L. Greene, Tax Div., Dept, of Justice, Washington, D.C., for respondent-appellee.
Before CUDAHY and MANION, Circuit Judges, and WILL, Senior District Judge.
The Honorable Hubert L. Will, Senior District Judge for the Northern District of Illinois, sitting by designation.
WILL, Senior District Judge.
This is a somewhat complicated case involving the tax treatment of losses allegedly incurred by taxpayers as a result of their investment in a commodity straddle tax shelter. Although here we are dealing with only three appellants (Mr. and Mrs. Formsma and Mr. Forseth), the case was originally a consolidated trial at the tax court level involving several different persons similarly situated. The five other parties involved in the tax case have already appealed the tax court’s adverse decision to the Fifth, Sixth, Ninth, and Eleventh Circuits. In each of these appeals, the decision of the tax court has been affirmed. Bramblett v. Commissioner, 810 F.2d 197 (5th Cir.1987) (unpublished opinion); Mahoney v. Commissioner, 808 F.2d 1219 (6th Cir.1987); Enrici v. Commissioner, 813 F.2d 293 (9th Cir.1987); Wooldridge v. Commissioner, 800 F.2d 266 (11th Cir.1986). Moreover, in each of these cases, the other appellants (who were represented by the same counsel as the instant appellants) raised issues identical to the issues appellants are now raising here. Thus, it appears we have a serious case of multiple forum shopping.
The particular facts of the case are detailed in the lengthy published opinion below. Forseth v. Commissioner, 85 T.C. 127 (1985). Essentially, the tax court held that the purported commodities trades giving rise to the “losses” allegedly incurred by appellants were shams and accordingly that such losses were not deductible. In concluding that the entire tax straddle arrangement was an artifice, the tax court found that Interact (an advisory firm providing informational services as to how to contact broker-traders who deal in foreign markets), LMEI (a commodity firm), and LMEC (LMEI’s successor) took advisory fees and alleged “margin deposits” from appellants; entered into forward contracts for gold or platinum with appellants on an unregulated foreign market for which there were no published prices (and without laying off the contracts with any real third-party brokers); created fictitious losses for appellants by closing out “losing” positions at prices and terms set by LMEI/LMEC to generate a theoretical tax loss that largely offset the type and amount of income the taxpayers needed to shelter; and then closed out the winning position in a subsequent year at a price set by LMEI/LMEC to generate losses that uniformly equaled the amount of margin deposits, which were in reality fees for delivering the artificial tax “losses.” Thus, the tax court concluded that the straddle transactions were shams lacking economic substance because the appellants had really just paid a fee to buy fictitiously generated tax losses. Accordingly, the tax court disallowed the de-ductibility of the tax losses.
Discussion
In the instant case, taxpayers, Mr. For-seth and Mr. and Mrs. Formsma, appeal the tax court’s decision as to the deductibility of the tax losses sustained by them. To be deductible under the Code a transaction must be “entered into for profit.” I.R.C. § 165(c). As the Sixth Circuit has noted, although this phrase is “a term of art that has not been interpreted the same by all courts, it is clear that the transaction cannot be a complete sham. If it is a sham, then such niceties as whether it was ‘primarily’ for profit, or whether the test is an objective or subjective one are simply not involved. Regardless of the definition, the transaction must be bona fide.” Mahoney v. Commissioner, 808 F.2d 1219, 1220 (6th Cir.1987).
Here, because the tax court determined that the commodities straddle transactions were a sham, it never reached the “entered for profit” issue. The tax court’s finding that the forward contracts were shams, is reviewable under the “clearly erroneous” standard because it is “essentially a factual determination.” Thompson v. Commissioner, 631 F.2d 642, 646 (9th Cir.1980), cert. denied, 452 U.S. 961, 101 S.Ct. 3110, 69 L.Ed.2d 1972 (1981). See also Enrici, supra, 813 F.2d at 295.
In finding that the alleged gold and platinum straddles were no more than preconceived shams, the tax court relied on the following six factors:
1. The remarkable correlation of the tax needs of each taxpayer and the nature and the amount of tax losses delivered by LMEC/LMEI and Interact. Tax losses were correlated to tax needs in two ways: first, the taxpayer generally suffered losses equal to the amount of income each taxpayer needed to shelter; and second, the type of loss created matched the type of income that needed to be sheltered.
2. Interact’s “extraordinary” ability to predict the amount of losses that would be incurred depending upon the margins posted.
3. The willingness of LMEI/LMEC to commence trading in clients’ accounts before receipt of the required margin deposits with the result that they were not protected against client default. Had actual bona fide trades been carried out on behalf of appellants, at least some appellants would have been required to post additional margin deposits to cover trading losses.
4. The margin balances in the accounts were “zeroed out” by closing out the clients’ gains at prices that made the taxpayers’ overall losses equal the margin deposits the appellants initially placed with LMEI/LMEC.
5. Opposite positions were never actually entered into with market making brokers to “lay off” trades.
6. The apparent manipulation of certain trading records by LMEI/LMEC.
Forseth v. Commissioner, 85 T.C. 127, 149-166 (1985).
To demonstrate that the trades were not shams, appellants primarily argue that many of these grounds would also have existed even if they had entered into straddles on the open commodities market, and that the losses suffered in their forward straddles were in fact correlated to the losses and gains they would have suffered in the American commodities market. Each court of appeals that has reviewed the tax court’s opinion has rejected this argument, however. For example, in Enrici, supra, 813 F.2d at 296, the Ninth Circuit stated that
even if these factual assertions are accepted as true, the Tax Court was entitled to infer from both the precision of the tax advantages obtained and the undocumented nature of the transactions that the parties were merely rigging paper prices, losses, and gains to effectuate a sale of generated tax losses. The fact that Congress may have permitted similar tax advantages to be obtained from real commodities straddles does not make the losses from these sham transactions deductible.
Thus, the tax court’s finding that the entire tax straddle arrangement was an artifice, the essence of which was the sale of bogus tax losses to appellants for a fee, does not appear to be clearly erroneous; rather the finding appears to be right on the mark. As this circuit stated in Saviano v. Commissioner, 765 F.2d 643, 654 (7th Cir.1985), “[t]he freedom to arrange one’s affairs to minimize taxes does not include the right to engage in financial fantasies with the expectation that the Internal Revenue Service will play along. The Commissioner and the courts are empowered, and in fact duty-bound, to look beyond the contrived forms of the transactions to their economic substance and to apply the tax laws accordingly.”
In addition to the above, one more item needs to be addressed: whether the tax court correctly found that appellants were liable for a negligence penalty under I.R.C. § 6653(a). Section 6653(a) imposes an addition to tax when any part of an underpayment of income tax is due to negligence or intentional disregard of the rules and regulations. Negligence, for the purpose of § 6653(a), is defined as a lack of due care or failure to do what a reasonable and ordinary prudent person would do under the circumstances. Marcello v. Commissioner, 380 F.2d 499, 506 (5th Cir.1967). The determination of the Commissioner is presumptively correct. See Beatty v. Commissioner, 676 F.2d 150, 152 (5th Cir.1982). The taxpayer has the burden of showing that he was not negligent, and the tax court’s determination that a taxpayer is liable for a negligence penalty under § 6653 is subject to the clearly erroneous rule. See Enrici, supra, 813 F.2d at 296; Patterson v. Commissioner, 740 F.2d 927, 930 (11th Cir.1984).
Here, the tax court’s determination that appellants did not meet their burden does not appear to be clearly erroneous in light of the fact that in reporting their “losses” they gave as little information as possible on their tax returns. For example, Forseth reported his loss as “Platinum Contract Cancelled” and the Formsmas reported their loss only as “Contract Can-celled.” Moreover, none of the taxpayers checked the “yes” box in response to the question on the Schedule B’s filed with their 1980 returns that asked if they had any interest in a foreign account. At the very least, even if Mr. and Mrs. Formsma and Mr. Forseth were not knowing participants in the scheme, they obviously paid little or no attention to the rather suspect workings of LMEI/LMEC, and thus can be said to have acted without due care. The tax court must therefore be affirmed on this ground as well.
Conclusion
For the reasons set forth above, like the Fifth, Sixth, Ninth, and Eleventh Circuits in the related cases, the decision of the tax court is
Affirmed.
. The Formsmas, in addition to arguing that the forward contracts were not shams, contend that the tax court erred in finding that the $2,000 advisory fee paid to Interact in 1980 was nondeductible. Specifically, the Formsmas argue that such fee is deductible under I.R.C. § 212 because it falls under the category of "tax advice.” But if the forward contracts were shams, then the fee could not have been spent for production of income, nor for informational services concerning bona fide investments, nor for tax advice. Thus, we also affirm the tax court’s finding on the disallowance of the fee.
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_fedlaw
|
A
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What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant.
ILLINOIS COMMERCE COMMISSION and Patrick W. Simmons, Petitioners, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents, Association of American Railroads, Rails to Trails Conservancy, and Iowa Trails Council, Intervenors. COMMISSIONER OF TRANSPORTATION OF the STATE OF NEW YORK, Petitioner, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents. RAILS TO TRAILS CONSERVANCY, IOWA TRAILS COUNCIL, and Conservation Federation of Maryland, Petitioners, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents.
Nos. 86-1687, 87-1015, 87-1278.
United States Court of Appeals, District of Columbia Circuit.
Argued Feb. 25, 1988.
Decided May 24, 1988.
As Amended May 24, 1988.
Gordon P. MacDougall, Washington, D.C., with whom James E. Weging, Sp. Asst. Atty. Gen., Chicago, Ill., were on the brief for petitioners Illinois Commerce Com’n and Patrick W. Simmons in No. 87-1687.
William J. Dwyer, Albany, N.Y., for petitioner Com’r of Transp. of the State of N.Y. in No. 87-1015.
Charles H. Montange, Washington, D.C., for petitioners Rail to Trails Conservancy, Iowa Trails Council, and Conservation Federation of Maryland in No. 87-1278.
Louis Mackall, Atty., ICC, with whom Robert S. Burke, General Counsel, Ellen D. Hanson, Associate Gen. Counsel, Anne S. Almy, Asst. Chief, Land and Natural Resources Div., Dept, of Justice, and J. Carol Williams, Atty., Dept, of Justice, Washington, D.C., were on the joint brief for Respondents the ICC and the U.S.
John T. Sullivan and J. Thomas Tidd, Washington, D.C., were on the brief for intervenor, Ass’n of American Railroads.
Before MIKVA, STARR and SILBERMAN, Circuit Judges.
Opinion for the Court PER CURIAM.
Opinion concurring in part and dissenting in part filed by Circuit Judge MIKVA.
PER CURIAM:
This case is before us a second time following a remand to the Interstate Commerce Commission. The controversy relates to the ICC’s relaxation of regulatory strictures triggered by a railroad’s proposed abandonment of rail lines that have fallen into a state of rail-traffic desuetude. In our prior consideration, we concluded that the ICC’s order establishing a class exemption for abandonments was, in certain respects, deficient under the applicable standards of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A) (1982). Specifically, we concluded that in three particulars the Commission failed adequately either to address salient points adumbrated in comments submitted to the ICC or to marshall the requisite factual support for the conclusions undergirding the Commission’s final rule.
The question now before us is whether the ICC complied on remand with both the APA’s strictures and the specific requirements previously articulated by this court. In addition, an entirely new set of questions arose during the course of the proceedings on remand, namely, whether the ICC’s actions comply with various federal environmental statutes. For the reasons that follow, we uphold the Commission’s decision.
I
The order in question involves an expedited method of effecting abandonment of “out of service” rail lines, which are defined as those carrying no local traffic for at least two years. The Commission promulgated the regulation, 49 C.F.R. § 1152.50 (1985), pursuant to the deregulatory mandate of the Staggers Rail Act of 1980, specifically section 10505. 49 U.S.C. § 10505 (1982). Section 10505 requires the ICC to exempt a transaction or class of transactions from regulation when the Commission finds that (1) regulation is not necessary to carry out the multi-faceted national rail transportation policy (RTP), as set forth in 49 U.S.C. § 10101a; and (2) either (a) the transaction is of limited scope, or (b) regulation is not needed to protect shippers from the abuse of market power. Id. § 10505(a). The statutory and procedural background of the rulemaking is thoroughly chronicled in our previous opinion, the upshot of which was to dispatch the rulemaking back to the Commission for further consideration and explanation. Illinois Commerce Comm’n v. ICC, 787 F.2d 616 (D.C.Cir.1986).
In directing a remand, our colleagues faulted the Commission’s order in several respects. First, the ICC had failed adequately to consider whether the abandonment regulations from which it was exempting eligible rail lines were necessary to effectuate relevant goals of the RTP, specifically: (1) energy conservation, (2) maintenance of reasonable rates, (3) meeting the needs of the national defense, and (4) cooperation with States in respect of transportation matters. Id. at 629-32. Second, the Commission had neglected to assess the adequacy of its findings concerning the limited scope of the exemption and the potential for abuse of market power, in light of the expanded definition of “out of service” adopted in the final rule. Id. at 634r-35. The originally proposed definition of “out of service,” which encompassed only rail lines carrying no traffic at all for at least two years, had been expanded in the final rule to include lines carrying overhead traffic, i.e., traffic that neither originates nor terminates on a line and can be rerouted over other lines. Id. at 634. Finally, the original regulation had specified no clear procedure for challenging the sufficiency of employee protections automatically provided under the exemption. Id. at 636.
On remand, the ICC readopted the class exemption for “out of service” lines, but elaborated on the points found wanting in our prior opinion. Exemption of Out of Service Rail Lines, 2 I.C.C.2d 146 (1986). Unenamored of this result, the Illinois Commerce Commission and Patrick Simmons (Illinois) filed a petition with the ICC requesting a stay of the decision’s effective date pending appeal. Expanding the already broad horizons of the proceeding, Rails to Trails Conservancy (RTC), joined by two other nonprofit organizations, entered the fray for the first time by petitioning the ICC for reconsideration and a stay of its decision. Ex Parte No. 274 (Sub-No. 8) Exemption of Out of Service Rail Lines, (not printed) decided June 15, 1987. RTC argued, first, that the rulemaking constituted a major federal action triggering the requirements of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332 (1982), with which the Commission had failed to comply; second, that the exemption requirements failed to assure compliance with a number of applicable environmental statutes, including NEPA and the National Historic Preservation Act (NHPA), 16 U.S.C. § 470f (1982); and, finally, that the ICC failed adequately to consider the effect of the regulations on public use of abandoned lines under the National Trails System Act, 16 U.S.C. § 1247 (1982), and the public use provision of the Interstate Commerce Act, 49 U.S.C. § 10906 (1982). Id. The Commission denied all the petitions, and these petitions for review followed.
II
A
In our earlier decision, the first area of concern articulated by our colleagues related to the ICC’s treatment of the RTP or, more specifically, the agency’s examination of the five RTP goals listed above. See 49 U.S.C. § 10505(a)(1). Now, after reviewing the agency’s analysis on remand of each of these five factors, we are persuaded that the Commission’s conclusion (that application of the abandonment regulations to “out of service” lines is not necessary to carry out the RTP) is neither arbitrary nor capricious; to the contrary, the Commission’s analysis is reasonable and adequately supported by the record. Cf. Illinois Commerce Comm’n v. ICC, 819 F.2d 311, 317 (D.C.Cir.1987) (applying “arbitrary and capricious” standard to trackage rights agreements); Brae Corp. v. ICC, 740 F.2d 1023, 1038 (D.C.Cir.1984), cert. denied, 471 U.S. 1069, 105 S.Ct. 2149, 85 L.Ed.2d 505 (1985) (“arbitrary and capricious” review of exemption of boxcar freight rates from regulation).
In our prior consideration of this case, the court faulted the agency’s finding that exemption would promote energy conservation, 49 U.S.C. § 10101a(15), as being “utterly lacking in record support.” Illinois Commerce Comm’n, 787 F.2d at 629. On remand, the agency modified this particular determination, concluding “upon further reflection... that energy conservation is unlikely to be affected in any significant way.” Out of Service, 2 I.C.C. 2d at 148. In arriving at this latter, more modest conclusion, the Commission reasoned as follows: where a line has carried no traffic at all, abandonment will have no effect on energy consumption since there is no traffic to be cut off or diverted to other routes or modes of transportation. Although abandonment of a line that has carried overhead traffic may result in some increase (or decrease) in fuel consumption due to rerouting, any such change, the ICC reasoned, should be insignificant since it is in the carrier’s interest to maintain the most efficient routes and to aggregate traffic in order to minimize energy costs. Id.
Illinois attempts to derail this line of reasoning by arguing that even if carriers operate efficiently, they will nonetheless reroute traffic in ways that save costs elsewhere in their operations, but not necessarily in a manner that conserves energy. Brief for Illinois at 13. Illinois further contends that rerouting traffic may involve much more than a minimal increase in fuel consumption. Id. Illinois cites nothing, however, in support of either of these speculative assertions. Nor do petitioners point to anything indicating that application of the abandonment regulations is, as the statute contemplates, necessary to the promotion and encouragement of energy conservation. In contrast to petitioners’ creative exercise in the realm of the hypothetical, the ICC’s analysis logically and persuasively explains why the agency believes the effect on energy matters will be de minimis; in the absence of an indication that the agency’s judgment is flawed, we are persuaded that the explanation is amply reasoned to pass muster under the APA.
B
The second RTP-related concern which had been inadequately addressed in the ICC’s earlier decision involved the effect of the class exemption on rate reasonableness. In the court’s view, the ICC had failed to consider whether abandonment of “out of service” lines will expose shippers to excessive rates in circumstances where there is a want of competition. Illinois Commerce Comm’n, 787 F.2d at 630.
Upon reexamination of this point, the Commission concluded that the class exemption will not affect the agency’s ability to assure the reasonableness of rates. Out of Service, 2 I.C.C.2d at 148. In so concluding, the ICC observed that exemption will not in any way alter the Commission’s authority to regulate rates nor will it provide carriers with an opportunity to initiate previously forbidden rate actions. With or without an exemption for abandonments of “out of service” lines, the ICC emphasized, carriers are at liberty to set rates at levels of their choosing, subject to protest by shippers. Id. at 149. Nothing in the exemption works a change to this carefully crafted scheme.
Illinois attacks the Commission’s finding as to rate reasonableness on several fronts, only two of which merit discussion. Illinois contends, first, that the exemption will have an adverse effect on rates because the abandoned lines would no longer be available for constructing more favorable rates in what is known as “short line rate-making.” Brief for Illinois at 15. But this argument, on reflection, largely ignores the process by which rates are established. “Short line ratemaking” is completely voluntary; carriers may terminate the use of a particular “short line” rate at any time, regardless of whether the line has been abandoned and, if it has been abandoned, regardless of whether abandonment was effected pursuant to the statutory or exemption abandonment procedures. Conversely, carriers may maintain a favorable rate, based on an abandoned line, simply by filing a tariff to that effect. Out of Service, 2 I.C.C.2d at 149. In short, the abbreviated abandonment procedures have little if anything to do with a carrier’s ability, obligation, or incentive to continue offering a particular rate.
Next, Illinois questions the ICC’s reliance on its authority to regulate rates as sufficient to prevent carriers’ imposing unreasonable rates following on the heels of an abandonment, asserting that a rate can be “unreasonable” yet lawful and thus beyond the ICC’s rate-regulatory reach. Brief for Illinois at 17-19. Illinois cites no authority for this proposition, however. This should come as no surprise. The ICC is empowered to regulate any unreasonable rate charged by a carrier with market dominance. 49 U.S.C. § 10709. In the absence of such dominance, however, the statute assumes that competition in the marketplace will, as it were, “regulate” rates; all rates outside a market-dominant setting are presumed to be reasonable (and thus lawful). The ICC is without power, either with or without the exemption for “out of service” lines, to alter lawful rate increases.
In sum, Illinois’ attempts to demonstrate that the statutory abandonment procedures are necessary to ensure rate reasonableness are unavailing. The Commission’s determination that the exemption does not affect the rate reasonableness policies of section 10101a, undergirded as it is by a reasoned explanation, readily withstands APA scrutiny.
C
In our previous decision, the court condemned the agency’s treatment of a third RTP goal, namely developing a sound rail transportation system to meet the needs of the national defense, 49 U.S.C. § 10101a(4), as inadequate by virtue of the Commission’s failure to respond to comments submitted by the Department of Defense. Illinois Commerce Comm’n, 787 F.2d at 630-31. Illinois asserts that the Commission on remand once again failed to do its job in this respect. Brief for Illinois at 29-30. The two main points flagged by DOD in its comments back in 1982 were, first, that advance notice of abandonments is essential to safeguard the national defense and, second, that the financial assist-anee procedures available in the statutory abandonment provisions (designed to provide for the rescue of about-to-be-abandoned lines) should be made available under the exemption. Illinois Commerce Comm’n, 787 F.2d at 630 n. 102. Both concerns, we are satisfied, received adequate consideration on remand.
For one thing, the ICC effectively mooted DOD’s earlier comments on the financial assistance program since the agency promulgated rules specifically providing for application of those provisions in exemption cases. See Ex Parte No. 274 (Sub-No. 16) Exemption of Rail Line Abandonments or Discontinuance—Offers of Financial Assistance, decided Dec. 14, 1987. As to DOD’s concern over the adequacy of impending abandonments, the Commission observed that, in a separate proceeding, it had in fact extended the period for notice provided to the Defense Department. Out of Service, 2 I.C.C. at 151. Railroads invoking the class exemption are now required to notify DOD in writing at least ten days prior to the filing of a notice of exemption with the ICC, thereby according the Department at least sixty days’ notice before the abandonment’s effective date. 49 C.F.R. § 1152.50(d). The Commission determined that, although this provides less notice than DOD had originally requested, the sixty-day period should afford ample time to identify lines that should be preserved by virtue of national defense considerations.
Illinois’ sole criticism of this analysis is that “[t]he System Diagram Map requirement... is the critical notice period.” Brief for Illinois at 30. The System Diagram Map, which is part of the statutory abandonment scheme, provides interested parties with four months’ notice of potential or proposed abandonments. See supra note 13. Illinois neglects to explain why this four-month period, while obviously helpful, is critical or why, if additional time is necessary to meet the Nation’s defense needs, DOD failed to reiterate its concern by petitioning for review. Although additional notice would presumably be helpful from DOD’s standpoint, Illinois provides us with nothing to indicate that additional time beyond the sixty-day period is in any way necessary to DOD’s evaluation of proposed abandonments. In the absence of evidence to the contrary, we are satisfied as to the reasonableness of the agency’s determination that sixty days’ notice is adequate.
D
A related issue which was remanded for further consideration involved the RTP goal of cooperation with the States in transportation matters, 49 U.S.C. § 10101a(9). Illinois Commerce Comm’n, 787 F.2d at 631. In our previous decision, the court faulted the ICC’s failure to consider comments submitted by States protesting the lack of notice of proposed abandonments under the class exemption. Id. Basically, the States contended that retention of the System Diagram Map, or its equivalent, is necessary both to the States’ rail planning efforts and to provide notice to rail users who might oppose the abandonment. Id. Illinois and New York continue to press that point before us. Brief for Illinois at 30-31; Brief for New York at 7-8. On remand, the Commission considered and rejected these contentions, providing a thorough and well-reasoned explanation for doing so. We turn, then, to the Commission’s explanation.
Although rejecting the argument that the statutory abandonment procedures, specifically System Diagram Maps, are necessary to further the goals of the RTP, the Commission squarely responded to the position that notice should be afforded prior to consummation of an abandonment. Under the exemption procedures, States receive notice at least sixty days before the exemption is effective and an abandonment can occur. 49 C.F.R. § 1152.50(d). In justifying the adequacy of the sixty-day period, the Commission observed that the exemption, which by definition applies solely to lines that have generated no traffic for at least two years and carry only overhead traffic that can be rerouted (and thus readily accommodated), results in no loss of service to shippers. Out of Service, 2 I.C. C.2d at 154-55. Furthermore, the transactions encompassed by the exemption tend to be noncontroversial, as evidenced by the small number of abandonments generating opposition under the exemption (only 10 of the first 200 cases). See id. at 150. In light of this factual predicate, the Commission concluded that the benefits of the additional notice accruing to the small number of States and shippers affected by aban-donments of out-of-service lines are outweighed by the costs to railroads both in maintaining the Maps and in delaying desired abandonments for four months. Id. at 154.
The ICC’s reliance on the sufficiency of the sixty-day notice period did not rest on this balancing alone, however. The Commission considered the situations of various parties who might potentially be affected or involved in rail planning and explained why the notice provided by the System Diagram Maps is unnecessary to protect the interests of such groups. For example, if, in spite of the absence of local traffic, a particular line is important to the State’s rail system, the State should monitor its activity, as lack of use will tend to herald eventual abandonment. Id. at 153-54. Similarly, a shipper dependent on a particular line but who (somehow) fails to use the line for two years can likewise be expected, in reason, to shoulder the burden of monitoring material developments under such rather unusual circumstances; a shipper of that sort cannot reasonably presume an indefinite continuation of service on a manifestly marginal line. Id. at 154. Finally, a new business that wishes to employ the affected line can reasonably be expected to inquire into the line’s future, with the railroad presumably having no reason to be less than forthright about any plans to abandon the track. Id.
In the absence of indications that additional notice is necessary to promote cooperation with the States, the Commission’s classic line-drawing choice of sixty days’ notice appears reasonable. We are further persuaded that the Commission’s determination, predicated as it is on the agency’s experience, is entirely in keeping with the deregulatory thrust of the Staggers Act.
Ill
We turn to the next major area of concern articulated in our prior visitation to this case, namely the ICC’s treatment of section 10505’s second prerequisite to exemption. To recap, in order to qualify for an exemption, section 10505 requires either that the transaction be of limited scope, or that application of the statutory provision be unnecessary to protect shippers from the abuse of market power. 49 U.S.C. § 10505(a)(2) (emphasis added). In its original decision, the Commission failed to examine whether its findings on these points were valid in light of the expanded definition of “out of service” contained in the final rule. Illinois Commerce Comm’n, 787 F.2d at 634-35. On remand, the ICC reaffirmed its conclusions, finding that the exemption, as expanded, was limited in scope and that regulation was unnecessary to protect shippers from market power abuses. Out of Service, 2 I.C.C. at 156.
Illinois challenges both determinations, arguing that the exemption, as expanded, is not limited in scope and that regulation is necessary to protect shippers. Brief for Illinois at 20-29; Brief for New York at 8. We need not plumb the depths of the first point, however, inasmuch as we are satisfied that the agency acted properly under the “abuse of market power” clause. See Illinois Commerce Comm’n v. ICC, 819 F.2d at 314 (requirements of section 10505(a)(2) are disjunctive; as long as the ICC properly determined that regulation is unnecessary to protect shippers from abuse of market power, it need not find the exempt transaction to be limited in scope).
The Commission provides a reasonable explanation for its conclusion that regulation of abandonments is unnecessary to prevent the abuse of market power. Essentially, the ICC relies on the proposition that a carrier’s market power is unaffected by an abandonment. Out of Service, 2 I.C.C.2d at 156. The carrier’s market power is determined not by the presence or absence of particular lines, but by the existence (or lack) of transportation alternatives available to shippers. Obviously, a carrier does not compete with itself, with one routing option vying with another for the greater share of traffic. If a carrier lacks market power prior to abandonment, then the carrier’s decreasing the number of available routes on its own lines will do nothing to create power that did not otherwise exist. That is to say, after the abandonment, the carrier will be subject to the same competitive forces as previously. Conversely, if a carrier possess market power prior to an abandonment, reducing its routing options will neither augment nor diminish that power. Id. Although, as Illinois elaborately explains, abandonments may obviously alter a carrier’s operations, see Brief for Illinois at 21-24, such alterations do not bear on the extent of competition (either from other rail carriers or from other modes of transportation) to which the carrier is subject.
Somewhat more specifically, the challengers emphasize the effect of abandon-ments on shippers located adjacent to the abandoned line. Illinois and New York hypothesize that railroads will employ the exemption as a device to sever important lines providing service to overhead shippers. Id. at 31-33; Brief for New York at 6-8. According to this gloomy view, when a line is severed, shippers located on the segments adjacent to the abandoned section will suffer from the exercise of the carrier’s increased market power. Id. Although Illinois cites a specific instance of abandonment within its borders as an example of this phenomenon, the State fails to explain how, if at all, the abandonment led to an abuse of market power. The sole evidence adduced by Illinois is a difference in rates charged to shippers on the two segments of line that were severed by the abandonment. Brief for Illinois at 33. For starters, however, Illinois does not explain how the rate differential constituted an abuse of market power. Nor does Illinois demonstrate how the abandonment enabled the carrier to charge the differential; presumably, for reasons previously set forth, the carrier could have increased the rate charged the shippers on both segments of the line prior to the abandonment. See Illinois Commerce Comm’n v. ICC, 819 F.2d at 314-15 (although the acquisition of trackage rights under a class exemption may enable carriers to alter routes or raise rates on old routes under threat of abandonment, such behavior is not an “abuse of market power,” but rather reflects the economics of the marketplace.)
Thus, the rationale informing the Commission’s “market power” determination appears sound; indeed, on remand the agency has more than adequately covered its tracks. In the absence of concrete evidence to the contrary, we are satisfied that the ICC’s treatment of the “abuse of market power” factor was neither arbitrary nor capricious.
IV
The final issue remanded to the ICC involved the protection of railroad employee interests. Section 10505(g) prohibits the Commission from exercising its exemption authority to relieve a carrier of its obligation to protect employee interests. 49 U.S.C. § 10505(g). Pursuant to this mandate, the ICC ordered the standard labor protections, adopted by the agency in Oregon Short Line R.R. — Abandonment—Goshen (OSL), 360 I.C.C. 91 (1979), applicable to carriers seeking to abandon lines under the auspices of the Commission-fashioned exemption. Observing that the OSL protections constituted only the requisite minimum, the court faulted the ICC for failing to clarify the appropriate procedures for seeking enhanced labor protection conditions. Illinois Commerce Comm’n, 787 F.2d at 636.
Responding to the court’s directive, the Commission on remand established that the appropriate procedure by which labor organizations may seek higher levels of employee protection is a petition for partial revocation. Out of Service, 2 I.C.C.2d at 157. In the wake of the Commission’s ameliorative action, the attack on this point is now waged all alone by Simmons, who claims (for the second time) that protective conditions in abandonment proceedings must be implemented prior to consummation. Simmons contends that OSL requires preservation of the status quo until the necessary labor protections are embodied in an agreement. Brief for Illinois at 34-35. Simmons claims that reconsideration rather than revocation should have been the procedural vehicle embraced by the ICC. Id. at 35 n. 35.
Although the Commission’s discussion fails expressly to address Simmons’ point, we nevertheless find nothing arbitrary or capricious in its action. Undoubtedly, we would have been edified by the agency’s views as to the proper interpretation of OSL. But in view of our express rejection of Simmons’ argument the last time around, see supra note 19, we cannot fault the Commission for failing to set forth its views in this particular. See Illinois Commerce Comm’n, 787 F.2d at 636 n. 157. As the old saying goes, enough is enough. What is more (than enough), the ICC provided a sensible explanation for its determination that post-abandonment revocation constitutes an adequate procedure to safeguard employee interests. The Commission pointed to the extremely limited number of abandonment cases under the statutory procedures in which labor interests had established a case of protections going beyond the OSL conditions. Out of Service, 2 I.C.C.2d at 157. The ICC further predicted that the labor-related effects of abandonment of “out of service” lines would be minimal, since few employees would likely be serving lines that had generated no local traffic for over two years. Id. Moreover, to the extent that the OSL conditions may prove inadequate, the Commission’s procedures expressly permit, as we have just seen, those conditions to be augmented as circumstances warrant. Id.
Simmons says nothing that undermines the agency’s reasoning, nor does he indicate how the legitimate interests of employees are prejudiced by consideration of protection issues post abandonment (again, in view of the panoply of remedies afforded by the standard OSL conditions). In light of (1) the small number of cases in which labor protection conditions would likely require augmentation, (2) the limited universe of railroad employees involved, and (3) the absence of any showing of prejudice to labor interests, it was reasonable for the Commission to conclude that pre-consum-mation consideration of labor protection issues beyond the OSL conditions is unnecessary to protect employees’ interests.
V.
Having determined that the Commission has adequately addressed the concerns expressed in our previous opinion, we proceed to consider the arguments raised by Rails to Trails Conservancy (“RTC”) in its appeal from the Commission’s denial of RTC’s petition for reconsideration. RTC argues, first, that inadequate consideration was given to environmental consequences during the rulemaking itself, in violation of section 102 of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332 (1982). In its order denying reconsideration, the ICC rejected this contention, in part because the rulemaking would not result in more or less abandonments being granted, but instead would simply reduce regulatory burdens on abandonments that would occur in any event, and hence could have no environmental impact. The ICC’s reasoning here is unsatisfactory, for it is not at all apparent that a change in procedure alone will not affect the environment — the new procedure may, for example, lessen the opportunity for environmental groups to influence the agency’s final decision. The procedural nature of a regulation does not, therefore, exempt an agency from complying with NEPA and preparing an environmental assessment (“EA”) or an environmental impact statement (“EIS”) where appropriate.
Contrary to RTC’s suggestion, however, we do not believe the Commission did, in fact, ignore environmental factors when it promulgated this regulation. In its first rulemaking (prior to remand), the Commission noted that track removal and dispositions of rights-of-way could affect the environment and correctly stated that its exemption authority did not extend to exempting transactions from relevant environmental laws. Thus the Commission required parties seeking exemptions to submit evidence on environmental issues. 49 C.F.R. § 1152.50(d)(4) (1985). The Commission also cautioned that individual exemption authorizations “may at times be conditioned upon compliance with environmental conditions.” Exemption of Out of Service Rail Lines, 366 I.C.C. 885, 890 (1983); Illinois Commerce Comm’n, 787 F.2d at 629 n. 89. Furthermore, subsequent to the rulemaking, in response to concerns raised by its own staff, the Council on Environmental Quality (“CEQ”), and RTC, the Commission has engrafted onto the abandonment regulations additional procedures to ensure compliance with NEPA and other environmental statutes at the individual abandonment stage.
It is true, nevertheless, that the Commission was obligated by its own regulations and those of CEQ to prepare at least an EA prior to promulgating this regulation. But because the Commission did not ignore environmental consequences during the rule-making, and subsequently has developed procedures to focus on those consequences when individual abandonments are authorized, we decline to remand. An order to the Commission to prepare an EA or an EIS and engage in rulemaking for a third time would be a meaningless gesture, not necessary to guarantee that the Commission will consider environmental concerns when it authorizes abandonments. See Kerner v. Celebrezze, 340 F.2d 736, 740 (2d Cir.1965) (Friendly, J.) (remand for procedural error not necessary where it would accomplish nothing “save further expense and delay”).
We turn next to RTC’s contention that the actual procedures established by the regulation will result in the violation of NEPA each time the Commission authorizes an exemption. Under the regulation as promulgated, a carrier seeking an exemption must file a notice with the appropriate state Public Service Agency ten days prior to filing with the Commission. The carrier’s application to the Commission itself must address environmental issues, and must be submitted fifty days before the date of abandonment. Within twenty days after receiving the application, the Commission publishes notice of abandonment in the Federal Register, and the exemption is effective thirty days later without any further Commission action. Under the regulation as originally promulgated, petitions to stay the exemption had to be filed within ten days of publication of notice in the Federal Register, and petitions to reconsider within twenty days. Those deadlines have since been modified by the Commission, as will be discussed below.
RTC attacks this regulation on grounds that it impermissibly shifts to private parties the burden of raising environmental concerns, that it allows the Commission to authorize an abandonment without considering the effect of that action on the environment, that it sets such a high burden on an applicant for a stay or reconsideration that abandonments will go forward despite submission of valid objections, and that the short notification period does not provide a reasonable opportunity for public participation.
RTC raises several powerful points, and if the regulation had not been modified at all in response to environmental concerns, the appropriate disposition of RTC’s petition would be a remand to the Commission. Nevertheless, a remand is no longer necessary, for in several subsequent orders the Commission has addressed RTC’s concerns by adding additional procedures and clarifying the burden that intervenors must meet to stay an abandonment proceeding. These subsequent orders, in addition to representations by. counsel for the Commission at oral argument, persuade us that the current procedural regime for authorizing abandonments is not facially inconsistent with NEPA and other environmental statutes. Nothing we decide here, however, affects the rights of these petitioners or any others to challenge the adequacy of the Commission’s procedures as applied to a particular abandonment.
We agree with RTC that, under the regulation as originally promulgated, the Commission’s reliance on private parties to raise environmental concerns was unlawful. The Commission may not delegate to parties and intervenors its own responsibility to independently investigate and assess the environmental impact of the proposal before it. Harlem Valley Transp. Ass’n v. Stafford, 500 F.2d 328, 336 (2d Cir.1974); see also Steamboaters v. FERC, 759 F.2d 1382, 1394 (9th Cir.1985); Calvert Cliffs’ Coordinating Comm., Inc. v. Atomic Energy Comm’n, 449 F.2d 1109, 1118-19 (D.C.Cir.1971). In December 1987, however, the Commission instructed its Section of Energy and Environment to complete and make available to the public an environmental assessment within five days of publication of the exemption notice in the Federal Register. At oral argument, counsel for the Commission represented that this EA would be the product of independent staff investigation and evaluation of the abandonment proposal — not a pro forma reworking of the applicant’s assertions regarding environmental impact.
RTC questions whether an adequate EA can possibly be prepared in the time allotted. We review the Commission’s judgment that its procedure satisfy NEPA for abuse of discretion. See Vermont Yankee Nuclear Power Corp. v. Nat’l Resources Defense Council, 435 U.S. 519, 554, 98 S.Ct. 1197, 1217, 55 L.Ed.2d 460 (1978); Kleppe v. Sierra Club, 427 U.S. 390, 412-14, 96 S.Ct. 2718, 2731-32, 49 L.Ed.2d 576 (1976). While the time for preparation of an EA is abbreviated, particularly if the proposed abandonment is extensive, see Scientists’ Inst. for Pub. Information, Inc. v. Atomic Energy Comm’n., 481 F.2d 1079, 1092 (D.C.Cir.1973) (NEPA statements will vary in length and complexity in relation to size of project being considered), we cannot say, in the context of this facial challenge, that the Commission has acted arbitrarily. Furthermore, if an abandonment application does present complex environmental problems, the Commission may on it own motion stay the exemption to allow an adequate EA or EIS to be prepared by its staff.
RTC also contends the EA comes too late in the authorization process to be meaningful. Council on Environmental Quality regulations require that “NEPA procedures must insure that environmental information is available to public officials and citizens before decisions are made and before actions are taken.” 40 C.F.R. 1500.1(b) (emphasis added). RTC asserts that the publication of notice of abandonment in the Federal Register is the relevant agency action or decision, and argues that the EA must therefore be prepared prior to publication, and not five days later, as provided by current procedures.
We think this argument is overly technical — an order to the Commission to prepare the EA five days earlier so as to coincide with publication of notice would exalt form over substance. The decision at issue here—that a particular abandonment is not subject to regulation — is not made at the moment notice is published in the Federal Register. While it is true, as RTC notes, that the exemption may become effective thirty days after publication without further action by the Commission, publication is nevertheless not the final step. The Commission’s staff continues to investigate and assess environmental issues after publication, and if the staff or any intervenors raise questions suggesting the exemption should not be granted, the Commission will stay authorization while it considers such issues. Hence, publication of notice prior to completion of the EA does not conflict with NEPA, for it does not diminish the Commission’s capacity to take environmental concerns into account in its decisionmaking. No “irretrievable commitments” of agency or private resources occur upon publication, nor are options precluded or positions finally determined. See Scientists’ Institute, 481 F.2d at
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:
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songer_genapel1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
BANK OF AMERICA NAT. TRUST & SAVINGS ASS’N v. DOUGLAS et al.
No. 7354.
United States Court of Appeals for the District of Columbia.
Argued March 30, 1939.
Decided May 8, 1939.
William Stanley, of Washington, D. C., T. W. Dahlquist, of San Francisco, Cal., and Charles W. Collins and Donald R. Rich-berg, both of Washington, D. C., for appellant.
Chester T. Lane, of Washington, D. G, for appellees.
Before GRONER, Chief Justice, and EDGERTON and VINSON, Associate Justices.
GRONER, G J.
Plaintiff Bank brought this suit against the members of the Securities and Exchange Commission to prevent the public disclosure by the Commission of information claimed to have been illegally obtained and for injunction restraining the Commission from enforcing subpoenas requiring the production of the records of the Bank.
Plaintiff is a national bank, a member of the Federal Reserve System, with deposits insured by the Federal Deposit Insurance Corporation, and has its principal place of business in San Francisco, California. It has outstanding capital stock of $50,000,000, has total capital assets in excess of $114,000,000, and does business in 308 communities in the State of California through its main office and its branches.
Transamerica Corporation (not a party to this suit) owned practically the entire voting stock of the Bank prior to July 15, 1937, but on that date distributed to its own stockholders all but 42%, which it still retains.
None of the Bank’s stock is registered on any national securities exchange.
Transamerica in August, 1937, filed with Securities Commission an application for registration of 11,590,784 shares of its own capital stock of the par value of $2 per share. The registration became effective the following September 10. Since Transamerica had owned all of the Bank’s capital stock during the years 1934-36, its application included balance sheets, profit and loss statements, and other financial information with respect to the Bank for those years — furnished substantially in the same form as the report of condition of the Bank filed with the Comptroller of the Currency.
In November, 1938, the Commission, in anticipation of proceedings to determine whether Transamerica’s registration should be suspended, obtained from the Secretary of the Treasury permission to examine the reports of bank examiners made to the Comptroller of the Currency with reference to the Bank. Subsequently, in response to the Commission’s request, the Secretary consented to the public official use of the information.
The Commission then issued an order directing that a public hearing be held in Washington on January 16, 1939. The Bank was not summoned or joined as a party, but the Commission caused a subpoena duces tecum to be served on the Bank’s cashier in San Francisco, commanding him to appear within four days and bring with him records relating to numerous banking items and practices from 1929 to date; another subpcena was directed to the Bank’s vice-president, commanding him to produce records from 1929 to date relating to nearly two hundred loans made by the Bank. The subpoenas admittedly were based upon information derived from the reports furnished by the Secretary. On the hearing day, the Bank filed this complaint, alleging that the proposed investigation of the Bank’s affairs constituted an unlawful exercise of visitorial powers; that the Secretary had unlawfully given access to the bank examiners’ reports; and that their publication as proposed by the Commission would irreparably injure the Bank. It prayed for a declaratory judgment and for an injunction.
The Commission answered, challenging the jurisdiction of the court and averring affirmatively that neither the action of the Secretary in furnishing the information nor the act of the Commission in using it was contrary to law.
The trial court heard the cause on the merits and concluded: (1) that although the Commission intends at a public hearing to make its own appraisal and valuation of a substantial portion of the assets of the Bank and to make an investigation of the reserves of the Bank, such action does not constitute the exercise of any visitorial power over the Bank; (2) that even if such action is visitorial, it is within the lawful power of the Commission; (3) that although the evidence does not disclose that the bank examiners’ reports have ever been furnished to any officer, agency, or department of the government for use in a public hearing without the consent of the bank involved, except for use in criminal proceedings, the Secretary of the Treasury was authorized to furnish them to the Commission for its public official use; and (4) that the court had jurisdiction and that the suit was not prematurely brought. Judgment was entered dismissing the complaint.
From what has been said, it is apparent that the issues concern: (1) the power of the District Court to grant the relief prayed; (2) the scope of the Commission’s investigatory powers; (3) the right of the Commission to demand and receive and thereafter to disclose information contained in the reports of the bank examiners; and (4) the validity of the subpoenas issued by the Commission based on such information.
First. We think the court had jurisdiction. The Bank alleged that disclosure of the information would result in irreparable injury. Since other remedy was entirely lacking, the cause was a proper one for equitable relief. Utah Fuel Co. v. National Bituminous Coal Commission (decided January 30, 1939), 59 S.Ct. 409, 83 L.Ed. 483. If the Bank had prayed solely for an injunction against enforcement of the subpoenas, the question would be different. Federal Trade Com’n. v. Millers’ Nat. Federation, 60 App.D.C. 66, 47 F.2d 428; cf. Federal Power Com’n. v. Metropolitan Edison Co., 304 U.S. 375, 386, 58 S.Ct. 963, 82 L.Ed. 1408. But the complaint asks for other relief which a court of equity may grant, as well as for a declaratory judgment. “ ‘A court of equity ought to do justice completely and not by halves,’ and to this end, having properly acquired jurisdiction of the cause for any purpose, it will ordinarily retain jurisdiction for all purposes, including the determination of legal rights that otherwise would fall within the exclusive authority of a court of law”. Rice & Adams Corp. v. Lathrop, 278 U.S. 509, 515, 49 S.Ct. 220, 222, 73 L.Ed. 480.
And since the case is one arising under the laws of the United States, the court had power to enter a declaratory judgment. Zenie Brothers v. Miskend, D.C., 10 F. Supp. 779.
Second. Sec. 19(a) of the Securities Exchange Act of 1934 authorizes the Commission, if in its opinion such action is necessary for the protection of investors — “(2) after appropriate notice and opportunity for hearing, by order to deny, to suspend the effective date of, to suspend for a period not exceeding twelve months, or to withdraw, the registration of a security if the Commission finds that the issuer of such security has failed to comply with any provision of this title or the rules and regulations thereunder.”
Sec. 12(b) (1) requires as a condition of the registration of securities the filing with the Commission of — “Such information, in such detail, as to the issuer and any person directly or indirectly controlling or controlled by, or under direct or indirect common control with, the issuer, * * * as the Commission may by rules and regulations require, as necessary or appropriate in the public interest or for the protection of investors. * * *”
Sec. 21(a) authorizes the Commission in its discretion to make such investigation as it shall deem necessary to determine whether a registrant has violated any provisions of the Act or the rules of the Commission.
The Commission’s order alleged that Transamerica had failed to comply with the provisions of Sec. 12(b) and the Commission’s regulations, in that it had filed false and misleading statements of material facts, that is to say, a large amount of losses and doubtful accounts had been written off the books of the Bank by pretended sales to other subsidiaries of Transamerica and by write-ups of the value of investment securities; the figures for “loans and discounts” included a large number of worthless and doubtful accounts; the valuation of certain bonds included arbitrary write-ups; the depreciation figures for real estate were inadequate; the “reserve for contingencies” was misleading since there was no indication that it represented not only a self-insurance fund but a reserve for all the losses and doubtful accounts, and was therefore inadequate; the profit and loss statements included the write-ups but made no provision for the losses; as a consequence the Bank had paid out in dividends a large sum in excess of its actual current earnings.
The Act, being primarily for the protection of investors, imposes civil liability and criminal penalties upon any person who knowingly makes false and misleading statements in an application for the registration of a security for sale on a national exchange. The purpose is to require complete and truthful exposure of all matters in relation to the registrant’s financial condition. We do not doubt, therefore, that the Commission, in the exercise of its powers to enforce the Act, may inquire into the affairs of a company controlled by a registrant. And on the record in this case we are of opinion that Transamerica’s interest in the Bank, past arid present, brings the latter within the scope of that power.
Third. The next question turns upon the authority of the Secretary of the Treasury to furnish the Commission copies of the examiners’ reports and whether, if there was authority, the information must be held in confidence.
Admittedly, there is no statute of prohibition.
According to a practice of long standing, the reports of bank examiners made to the Comptroller have been considered as private, and access to them for use by other government officials has been granted only in tax investigations and criminal prosecutions. In a number of instances Congress has specifically authorized use of reports “in confidence”, and the only statutory reference to publicity is in the Comptroller’s qualified authority to publish the report on any bank which fails to comply with his recommendations.
Other instances to show that by unbroken custom reports of bank examinen, have been regarded as privileged are (1) the testimony of Chairman Douglas of the Commission in the hearings on the Barkley bill, to the effect that examiners’ reports ought not to be made public; (2) the testimony of the Comptroller in the Pujo investigation that the reports of examiners had always been regarded as confidential; (3) legislation on the subject, where in each instance in which the rule was modified, Congress recognized the necessity of effecting it by express language even as to those agencies and instrumentalities authorized to deal with banks. And to all of this may be added the uncontradicted testimony that examiners’ reports had never at any previous time been publicly used in any civil proceeding. It is obvious, therefore, that this case presents a direct conflict in congressional purposes; for on the one hand the Securities Exchange Act vests in the Commission power to make examinations of registrants and their controlled companies without excepting banks and, as part of its power, to compel the production of their books, records and papers for scrutiny' by the Commission— whereas on the other, the National Banking Act, in deference to the delicate and sensitive interests involved, contemplates exclusive supervision of banks by the Comptroller of the Currency and the confidential treatment by him of the matters developed as to their internal affairs.
And this brings us back to the question with which we began this inquiry — the authority of the Secretary of the Treasury to furnish the information in question and, assuming that, whether it should be published by the Commission. The first part of the question was answered in the affirmative by Attorney General Wickersham on an inquiry from the President relative to the Money Trust or Pujo Committee Investigation in Congress. After a comprehensive review of the duties and powers of the Comptroller, he said: “Thus the banking laws clothe the Comptroller with authority to examine into the affairs of national banks for three main purposes: First, to ascertain the financial condition and soundness of management of national banks; second, to determine whether or not such banks are operating in conformity with the banking laws; third, to enable him to recommend amendments to the existing law. Nowhere in the law is there any express provision that the information thus acquired by the Comptroller shall be confidential. While, if in your opinion, the interests of the' Government require that this information shall be so treated, you have the right to refuse to divulge it (Boske v. Comingore, 177 U.S. 459, 469 [20 S.Ct. 701, 44 L.Ed. 846]), yet, I am clearly of the view that if, in your opinion, it is proper to give this information to the House committee you have the lawful power to do so.” 29 Op. Atty. Gen. 555, 560.
The Commission insists that equal power is lodged in the Secretary by R.S. 161, which authorizes the head of each Department to prescribe regulations not inconsistent with law for the custody, use, and preservation of its records and papers. We think this is correct, and that the power includes the right to determine whether records may be withdrawn and used by other departments. In this view and since the Comptroller’s records are within the Treasury Department and the Comptroller, by statute, is under the general direction of the Secretary, it follows that no distinction can be made between the two classes of records. See, generally, 25 Op. Atty. Gen. 326; 35 Op. Atty. Gen. 5. Without more, therefore, we hold that the act of the Secretary in furnishing the Commission with the reports of the bank examiners in the present case “was not inconsistent with law”.
Whether the information so furnished should be used by the Commission only for the purpose of conducting its inquiry into the financial affairs of the Bank or whether its use was unrestricted, presents a more difficult problem. As we have already pointed out, the unbroken administrative practice of the Secretary and the Comptroller, as well as the course of Congressional legislation, manifests a fixed purpose to confine the outside use of such information to criminal prosecutions, tax suits, and the like. And this is true because of the nature of banking, as to which, by universal recognition, public confidence is essential. The plenary power of the Comptroller over the conduct of the business and affairs of banks always has been considered ample to assure reasonable protection to depositors and the public.
In the instant case it is said by the Bank that the Commission has already made public much of the information obtained from the examiners’ reports. In this respect the record shows that the Commission,, upon receiving the permission of the Secretary to make “public official use” of the reports, made an order for a hearing before one of its examiners to determine whether Transamerica had violated any of the provisions of the Act. The order, which was released to the public, set out the particulars of the subjects to be investigated, together with all of the facts believed by the Commission to show the respects in which Transamerica’s statement of the condition of the Bank was untrue. The specifications of alleged misconduct are so serious in their implications as to warrant the Commission in characterizing them as having, potentially, criminal aspects “which may yet lead to criminal prosecutions” and are set out in such meticulous detail as, backed by the great power of the Commission, to cause serious prejudice to the Bank and bring it, in advance of any hearing, into public disrepute. The Securities Exchange Act authorizes the Commission in its discretion to make investigations and to make public its findings, but there is nothing in the Act which authorizes publicity in advance of hearing. In the present case the order was made pursuant to Sec. 19(a) (2) of the Act, 15 U.S.C.A. § 78s, which empowers, after notice and hearing, suspension or cancellation of the registration statement. Under regulations prescribed by the Administrative Committee of the Federal Register, notices of hearing must be published in the Register, but the rule does not require the publication as part of such notice of the evidentiary facts; and where, as in this case, the latter are obtained from confidential sources, neither the purpose nor intent of the Act contemplates their broadcast to the public. It is not difficult to see that such a power might easily be made an instrument of oppression and, lacking specific congressional authorization, we think it ought not to be indulged. In addition to this, pretrial publication of evidence — labeled as believed to be true— ought, we think, to be avoided, especially as emanating from the tribunal charged with the judicial responsibility of weighing it and assuring .the accused a fair hearing. And, if this is the correct view, it is particularly pertinent here, for after all the Bank is not a party in the proceeding instituted by the Commission. Its connection with the investigation gro.ws wholly out of the fact that its largest stockholder, Transamerica, in certifying its own-financial condition, is believed by the Commission to have violated the provisions of the Securities Exchange Act. So far as the Bank is concerned, even if the charge, as to it, is true, any possible violation by it of the banking laws, is a matter not within the Commission’s reach. And certainly until findings are made, the Bank is entitled to have judgment, public and official, suspended. This does not suggest or contemplate that the government should be hampered or restrained in its investigation or in its prosecution of violations of the laws, or that in this case the Commission, under its duty to develop the actual facts by which to test the bona fides of the Bank’s financial statement, should be circumscribed in their proper pursuit.
And so, as we think, while it must be decided that the Secretary was authorized to deliver the reports, their use should be confined to an investigation of the charges in proper proceedings by the Commission in the discharge of its duties under the Act. And this the Commission now assures us is the length and breadth of the purpose it has in mind. It says that it does not desire or intend to introduce the reports in evidence and that it will not make them public by any other means. This assurance we accept as conclusive of this branch of the case, and relying upon it we hold that the Commission may use the information at hand in preparation for the hearing and to aid it in obtaining the evidence believed by it to be necessary and proper in the hearing on its notice to Transamerica to show cause why its registration statement should not be suspended. In saying this, we are not holding that the Commission has any “visitorial” power over the Bank, or that it has the slightest right to manage or control the Bank’s affairs or policy, or to do any of those things which are visitorial in character. If in the discharge of its duty to hold hearings and make findings business secrets are necessarily disclosed, the result is attributable only to the necessity of carrying out the purposes of the Act. The difference between this and the exercise of visitorial powers, which are restricted by Congress to itself and certain particular agencies of government, is pointed out in First Nat. Bank of Youngstown v. Hughes, C.C., 6 F. 737, in this language : “Visitation, in law, is the act of a superior or superintending officer, who visits a corporation to examine into its manner of conducting business, and enforce an observance of its laws and regulations. Burrill defines the word to mean ‘inspection; superintendence; direction; regulation.’ The exercise of no such authority is contemplated by defendants. They do not contemplate inspection, supervision, or regulation of complainant’s business, or an enforcement of its laws or regulations. On the contrary, their purpose is to ascertain, in a legal way, and by legitimate testimony, whether any person had, at the time mentioned, on deposit with complainant any money subject to taxation in said county which had not been returned by the owners thereof for that purpose. Hence, the subpoena commanding the production of the complainant’s books, in the manner and for the purpose stated, is not an exercise of ‘visitorial powers;’ * * '*Pages 740, 741.
This distinction is recognized and approved in Guthrie v. Harkness, 199 U.S. 148, 158, 26 S.Ct. 4, 50 L.Ed. 130, 4 Ann. Cas. 433. But the Bank objects that, even if this is so, speaking generally, it does not apply here for the reason that the controlled company is a bank, and bebause banks are under the direction of the Comptroller, any examination by the Commission into its affairs is a duplication of supervision which ought not to be countenanced. The answer to this is that, the value of the assets of Transamerica depends in large measure on the value of its shareholding in the Bank. An investigation of the one which did not include also an investigation of the other would be futile, and in this view we are unable to find anything, either in the statutes or in reason, to justify putting the Bank in a class by itself. The Bank insists this is done by Sec. 13(b) of the Act, 15 U.S.C.A. § 78m, but we do not so read the section. It provides that the Commission may prescribe the form in which the required information shall be set forth — “but in the case of the reports of any person whose methods of accounting are prescribed under the provisions of any law of the United States, or any rule or regulation thereunder, the rules and regulations of the Commission with respect to reports shall not be inconsistent with the requirements imposed by such law or rule or regulation in respect of the same subject matter * * * ”
The Bank argues that, since it is required by the National Banking Act to file with the Comptroller a “report of its condition”, it is “inconsistent” to require Transamerica to file a different report with the Commission. The reasonableness of this argument may be conceded, and yet not reach the heart of the question. For here it is not a question of form or of the adoption of a different method of accounting. In all of these respects — as well as in the manner of appraisal of assets — the Bank must follow the Comptroller’s orders. And if Transamerica can show the Bank’s compliance therewith, we may assume the Commission would have no right to substitute its opinion in place of the Comptroller’s. But that is matter for another day. The Comptroller’s opinion of the Bank’s practices does not appear. The case we have concerns a charge that items involving large sums of money have by fictitious transfers between the Bank and its branches and other subsidiaries of Transamerica been made to reflect an incorrect value in the Bank’s assets and reserves, so that its footings are consequently unreal and untrue. To deny the right to investigate this charge and make public findings in relation thereto, would be destructive of the basic purpose of the Act.
Fourth. This brings us then, to the question whether 'the subpoenas in their present form are so limitless in their scope as to make them unreasonable. The one to Ferrari commands him to bring from San Francisco to Washington, all loan and discount records, collateral records, ap-. praisal records, charged off loan and discount records, loan approval records, and any other books of account not heretofore enumerated together with all supporting data and records of correspondence for and covering the period from January 1, 1929, to January 13, 1939. The only limit to this requirement is that the books relate to matter concerning some two hundred loans in the Bank and its branches.
The subpoena to Smith commands him to bring to Washington all records of loans and discounts, records of assets other than loans and discounts, records of collateral, records of charged off loans and discounts, records of charged off assets other than loans and discounts, loan approval records, investment records, records of inter-company accounts, general and expense ledgers, payroll and expense records, and any other books of account and records in support thereof not heretofore enumerated, records of appraisal, real estate tax bills, insurance policies, receipted bills and expense vouchers, contracts, guarantees, options, pledges and other agreements, minute books and records of correspondence, for and covering the period from January 1, 1929, to January 10, 1939, which relate to payments and credits to A. P. Giannini; to agreements in relation to assets amounting to thirty-five million dollars previously carried on the books; the character of such assets; the collateral pledged for them; the obligations created under sundry agreements for reduction of the obligations or guarantees thereof; loans and discounts, including losses, doubtful and slow accounts, write-ups of United States and municipal securities; the accounting methods employed to reflect such write-up; the character of the reserve maintained for contingencies; the adequacy of this reserve to cover self-insurance; losses on real estate; depreciation of bank premises, furniture, fixtures; losses on bonds and other securities; the amount and character of foreign exchange and credits held abroad; agreements between the Bank and subsidiaries of Transamerica relating to charged-off assets; sale, transfer, assignment, assumption of the guarantees of rights or liabilities under the agreements; repurchase guarantees; an agreement between the Bank and Transamerica relating to 56,000 shares of National City Bank stock; the manner of creation, treatment, and adequacy of the reserves set up on the books of the Bank and its predecessors and the charges thereto. It is perfectly clear, we think, that compliance with these demands will, for all practical purposes, close the Bank, and it is equally clear that by transferring the place of hearing from Washington to San Francisco the Commission may carry on its investigation without unduly and unreasonably hampering the Bank in its business. If this is so, then any other course is so unreasonable as to require correction. In Hale v. Henkel, 201 U.S. 43. 26 S.Ct. 370, 50 L.Ed. 652, the Supreme Court had before it a similar case, which is well described in the following quotation :
“Applying the test of reasonableness to the present case, we think the subpcena duces tecum is far too sweeping in its terms to be regarded as reasonable. It does not require the production of a single contract, or of contracts with a particular corporation, or a limited number of documents, but all understandings, contracts, or correspondence between the MacAndrews & Forbes Company, and no less than six different companies, as well as all reports made and accounts rendered by such companies from the dale of the organization of the MacAndrews & Forbes Company, as well as all letters received by that company since its organization from more than a dozen different companies, situated in seven different states in the Union. If the writ had required the production of all the books, papers, and documents found in the office of the MacAndrews & Forbes Company, it would scarcely be more universal in its operation, or more completely put a stop to the business of that company. Indeed, it is difficult to say how its business could be carried on after it had been denuded of this mass of material, which is not shown to be necessary in the prosecution of this case, and is clearly in violation of the general principle of law with regard to the particularity required in the description of documents necessary to a search warrant or subpcena. Doubtless many, if not all, of these documents may ultimately be required, but some necessity should be shown, either from an examination of the witnesses orally, or from the known transactions of these companies with the other companies implicated, or some evidence of their materiality produced, to justify an order for the production of such a mass of papers. A general subpoena of this description is equally indefensible as a search warrant would be if couched in similar terms.” 201 U.S. pages 76, 77, 26 S.Ct. page 380, 50 L.Ed. 652.
While it is true the Act authorizes the Commission to subpoena witnesses from any part of the United States, we think it a fair statement that Congress never intended that the power should be exercised to bring from one side of the country to the other the principal officers of a bank and the books and records covering a period of ten years to appear before an examiner of an administrative commission. The right to be free of suit except in the District of which one is an inhabitant is a fixed part, ot our federal judicial history. Its statutory requirement arose out of the experience of colonial days. Its wisdom has been proved in the passage of time, and no more obvious reversal of its spirit could be cited than is shown in the facts of this case. For all of these reasons, we are of opinion the subpoenas are unreasonable under the rule laid down in Hale v. Henkel, supra. Federal Trade Com’n. v. American Tobacco Co., 264 U. S. 298, 44 S.Ct. 336, 68 L.Ed. 696, 32 A.L. R. 786; Mobile Gas Co. v. Patterson, D.C., 288 F. 884; Id., D.C., 293 F. 208, 228; Cudahy Packing Co. v. United States, 7 Cir., 15 F.2d 133.
We therefore hold:
1; That the delivery to the Commission by the Secretary of the Treasury of the examiners’ reports was authorized and legal;
2. That their use in proceedings to obtain the necessary facts 'and information whereby to carry out the investigatory function of the Commission, is proper;
3. That except to the extent necessary to carry out the purpose just above mentioned the reports should be treated as confidential; and
4. That the subpoenas in their present form are unreasonable and should not be enforced.
We, therefore, remand to the trial court, with instructions to revoke the decree dismissing the complaint. But the Commission, by counsel, having given assurances' that the examiners’ reports will not be given publicity except as authorized in this opinion and the subpcenas having expired by limitation and being now ineffective, no injunction need issue. The cause will remain on the trial docket of the District Court with the right to the Bank to apply for further relief if it should become necessary by subsequent events contrary to the views expressed herein.
Affirmed in part; reversed in part; and remanded.
48 Stat. 881, 15 U.S.C.A. § 78a et seq.
See. 18, 15 U.S.C.A. § 78r.
See. 32(a), 15 U.S.C.A. § 78ff.
Federal Farm Loan Act: The Comptroller is “authorized and directed” to furnish his information concerning national banks and to make special examinations for the “confidential use” of any Federal Intermediate Credit Bank. 42 Stat. 1458, 12 U.S.C.A. § 1091.
Reconstruction Finance Corporation Act: The Comptroller is “authorized” to make available to the Corporation “in confidence” such information as he may have concerning applicants for loans. 47 Stat. 709, 714, 15 U.S.C.A. § 608.
Federal Home Loan Bank Act: The Comptroller is “authorized” to make available “in confidence” to the Homo Loan Bank Board such information as he may have respecting institutions with which any Home Loan Bank may have transactions. 47 Stat. 739, 12 U.S.C.A. § 1442(a).
Federal Deposit Insurance Corporation Act: The Corporation’s examiners may examine national banks only with the written consent of the Comptroller, and the Corporation is given access to information in possession of the Comptroller. 49 Stat. 693-694, 12 U.S.O.A. § 264 (k)(2-4).
12 U.S.C.A. § 481.
Hearing, Senate Committee on Banking and Currency, S. 2344, 75 Cong. 1 Sess. (1937), p. 71.
Hearings, House Committee on Banking and Currency, H.R. 429 and 504 (1912-1913), Money Trust Investigation, 62 Cong. 2 Sess., Vol. 2, pt. 19, p. 1391.
See note 4, supra.
R.S. § 5133 et seq., 12 U.S.C.A. § 21, et seq.
5 U.S.C.A. § 22.
R.S. § 324, 12 U.S.C.A. § 1.
The Reconstruction Finance Corporation has announced that in transactions between the corporation and a bank it will be guided by the reports of the latter to the Comptroller.
Hearings, House Committee on Banking and Currency, H.R. 5357, 74 Cong. 1 Sess. (1935), p. 135.
12 U.S.C.A. ,j§ 484: “No bank shall be subject to any visitorial powers other than such as are authorized by law, or vested in the courts of justice or such as shall be or shall have been exercised or directed by Congress, or by either House thereof or by any committee of Congress or of either House duly authorized. (R. S. § 5240; Feb. 19, 1875, c. 89, 18 Stat. 329; Dec. 23, 1918, c. 6, § 21, 38 Stat. 271.)”
See. 51, Judicial Code, 28 U.S.C.A. § 112.
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_usc1sect
|
405
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 42. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
EWING v. BLACK.
No. 10723.
United States Court of Appeals Sixth Circuit.
Feb. 2, 1949.
Melvin Blumenthal, of Baltimore, Md. (H. G. Morison, of Washington D. C., Ward Hudgins and S. E. Wasson, both of Nashville, Tenn., on the brief; Edward H. Hickey, Vincent P. Russo, Leonard B. Zeisler and Robert Hannings, all of Washington, D. C., of counsel), for appellant.
Judson Harwood, of Nashville, Tenn. (Judson Harwood and Cecil Sims, both of Nashville, Tenn., on the brief), for appellee.
' Before'HICKS, Chief Judge, and MARTIN and McALLISTER, Circuit Judges.
MARTIN, Circuit Judge.
The appellee, Robert W. Black, of Nashville, Tennessee, was employed from January 1, 1937, to February, 1943, by Gladstone Brothers of New York, manufacturers of clothing for men and boys. He was a commission salesman assigned to a definite territory.
In 1937, Black complied with the request of his employers that he procure a social security number, so that they might report the amount of commissions paid him and make payment of social security taxes due thereon to the Bureau of Internal Revenue. The employers made regular deductions at the lawful percentage rate from his wage commissions, but at no time reported officially any wages paid him or any amounts deducted from his wages for social security taxes, and made no remittances on his account to the Bureau of Internal Revenue, as required by law.
Appellee had no knowledge that the commissions paid him by Gladstone Brothers had not been reported to the social security administration until, upon attaining age 65, he filed an application for benefits under the Social Security Act, 42 U.S.C.A. § 301 et seq. When informed by the Nashville field office manager of the Social Security Board, in April 1946, that the records of the board showed no postings whatever of any wages to his credit, Black wrote Gladstone Brothers, disclosing to them the information which he had received. The employers replied that they had always considered him an independent contractor on whom no taxes need be withheld; and that their purpose in making social security deductions on the wages paid him was that it would not then be necessary for them to malee deductions at one time for all amounts due him, should it be decided that he was an employee. He was, of course, surprised, inasmuch as he had assumed that because regular deductions had been made from his wages for social security purposes his employers had made the required reports and paid the proper taxes on his behalf.
About two and a half months later, Gladstone Brothers mailed Black a check for $85.26, stating that this represented the monies which had been withheld for social security purposes; and that they had understood him to be classified as an independent agent “not subject to social security.” The appellee had been paid commission wages of $50 or more in each of 25 calendar quarters to the total amount of $8,626.93, thus qualifying him for primary insurance benefits under section 202(a) of the Social Security Act, as a fully insured individual who has attained age 65 and has filed application for primary insurance benefits.
The application of appellee for these benefits was made on June 7, 1946, and was denied three and a half months later by the Bureau of Old-Age and Survivors Insurance of the Social Security Administration, Federal Security Agency. The determination by the bureau that the claimant was not a “fully insured individual” at the time of his application was based on the assertion that the amounts earned by him prior to January 1, 1942, could not be included in his wage record, in consequence of the provisions of section 205(c) (2) of the Social Security Act, which provides: “After the expiration of the fourth calendar year following any year in which wages were paid or are alleged to have been paid an individual, the records of the Board as to the wages of such individual for such year and the periods of payment shall be conclusive * * Section 405(c) (2), Title 42 U.S.C.A.
Appellee requested and obtained a hearing before a. Referee of the Appeals Council of the Social Security Administration. H^ was the only witness who testified at that hearing, but documentary evidence was received. The finding was made by the Referee that an employer-employee relationship between Gladstone Brothers and Black had existed continuously from January 1, 1937, to the termination of his services in 1943, inasmuch as the proof showed conclusively that his employers not only had the right to control his services, but had exercised such control as a matter of fact.
The Referee sustained the ruling of the Bureau that the remuneration received by appellee from his employers constitutes wages; and found that the employers had made regular deductions from his commissions for social security purposes, but had at no time reported the amounts paid him, nor had they remitted any taxes affecting him to the Bureau of Internal Revenue. The official further found no evidence in the record which would indicate that the Social Security Administration had notice of Black’s employment, or that he was being paid wages, “until just before April 1946.” The Referee stated that, this being true, section 205(c) (2) of the Social Security Act, as amended, is applicable, with the resultant that the Social Security Administration has no lawful authority to credit the claimant with wages paid him by Gladstone Brothers prior to January 1, 1942, unless that firm, “in accordance with the provisions of section 205(c) (4), should report such wages and remit the taxes thereon to the Collector of Internal Revenue.”
It was asserted by the Referee that in case such report and remittance were made, the Social Security Administration could revise its wage records to conform to the tax returns made to the Bureau of Internal Revenue, thereupon crediting claimant’s wage account with the total wages paid him, and could also credit him with 25 quarters of coverage. Gladstone Brothers failed to take any such action in behalf of Black.
Conceding that Black “a man of intelligence and absolutely sincere in his intentions,” had been misled by his employers to the deprival of his benefit status through no fault of his- own, “as he had every reason to believe that his employers were making timely reports,” the Referee, nevertheless, held that, though regrettable, Black has no remedy. The concluding paragraph of the .Referee’s decision states that the claimant can be credited only with wages paid subsequent to 1941 in the amount of $2,864.51, covering only six quarters; and .that, inasmuch as the claimant is required to have had 15 quarters of coverage, Black was not a fully insured individual when he filed his application and, accordingly, is not entitled to the primary insurance benefits for which he applied.
The request of appellee to the Appeals Council of the Social Security Administration to review the Referee’s decision was denied; and, in conformity with the practice of the Federal Security Administrator, the decision of the Appeals Council became his final decision. In due time and in compliance with the right granted him in section 205(g) of the Social Security Act, as amended, section 405(g), Title 42 U.S.C.A., appellee instituted this action in the United States District Court for the Middle District of Tennessee to review and reverse the administrative decision. He prayed that the Federal Security Administrator and the Commissioner for Social Security be required to cause payments, based on his. earnings including the wages paid him by Gladstone Brothers, to be made him according to the provisions of the Social Security Act. Other and further relief as may be just and equitable was also prayed. Appellee filed a motion for summary judgment on the pleadings, on the admitted facts therein contained. The district court granted his motion.
The final judgment entered remanded the cause to the Federal Security Administrator with directions to him “to credit the plaintiff on his wage records ■ with the amount, of wages paid to him by Gladstone, Brothers Company during the years 1937, 1938 and 1939 and to compute the amount of benefits to which he is entitled, upon the basis of such wage record and for further proceedings in conformity with section 205 (i) and the other applicable provisions of Title II of the Social Security Act, as amended.”
The district court’s decision was grounded upon the opinion, expressed orally, that the four-year period provided for in section 205(c) (2) of the Act is not retroactive and was intended to start with the year 1940; and that it could not be considered to be a four-year statute of limitations for any period of time prior to 1940.
Many finely drawn challenges to the correctness of the district court’s decision have been .presented by the government in its brief, as well as in its oral argument. In our analysis of the case, we find it unnecessary to pass upon all the propositions argued.
Whether or not the provisions of section 205(c) (2) of the Social Security Act, if applied generally, are constitutionally infirm need not be decided here. Moreover, we deem it unimportant here whether the pertinent section is, in general, a qualification of a right newly created by the Act of which the section is a part. Therefore, we have considered but will not discuss cases cited by the government to the point. The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358; Pennsylvania Company for Insurances, etc. v. Deckert, 3 Cir., 123 F.2d 979, 985; Matheny v. Porter, 10 Cir., 158 F.2d 478; Damiano v. Pennsylvania R. Co., 3 Cir., 161 F.2d 534; Madden v. Lancaster County, 8 Cir., 65 F. 188. Not long ago, this court manifested its accord with the principle of these authorities in two opinions upon the subject matter, neither of which is cited by the government although certiorari was denied in both cases: Maki v. George R. Cooke Co., 124 F.2d 663, 146 A.L.R. 1352, with annotation, certiorari denied 316 U.S. 686, 62 S.Ct. 1274, 86 L.Ed. 1758; Wilson v. Massengill, 124 F.2d 666, certiorari denied, 316 U.S. 686, 62 S.Ct. 1274, 86 L.Ed. 1758.
Nor. are w.e concerned with whether the section is reasonable, or unreasonable, as to the time limit within which the admin-
istrator’s wage records for the period from 1937 through 1939 may be revised. We deem it unnecessary to discuss the argument of the government that “if section 205(c) (2) cannot be construed retroactively it forbids revision of the administrator’s wage records for the years 1937-1939, inclusive, after February 29, 1944.” We have not neglected, however, to read and consider the authorities cited: Sohn v. Waterson, 17 Wall. 596, 21 L.Ed. 737; Carscadden v. Territory of Alaska, 9 Cir., 105 F.2d 377, 379; Philadelphia Nat. Bank v. Raff, 6 Cir., 76 F.2d 843, certiorari denied 296 U.S. 601, 56 S.Ct. 118, 80 L.Ed. 426; The Fred Smartley, Jr., 4 Cir., 108 F.2d 603; American Mut. Liability Ins. Co., of Boston v. Lowe, 3 Cir., 85 F.2d 625.
Our concern is with the exact issue which we must decide. That issue does not involve a revision of the records of the Board. This is not a case of challenging the conclusiveness of records. There are no records to challenge. The Board has none at all pertaining to Black. The employer wrongfully failed to furnish them; but records affecting Black can now easily, accurately and completely be made by the Board from the exhibits introduced in evidence in this case. Section 205(c) (2) of the Act, reasonably construed, constitutes no bar to the Board’s receiving these records and making them official, so that the employee may obtain his just benefits under the Social Security Act.
It will be observed that the provision of section 205(c) (1), section 405(c) (1), Title 42, U.S.G.A.j that the absence of an entry as to an individual’s wages in the Board’s records for any period shall be evidence that no wages were paid such individual in such period does not carry with it the conclusive^ ness of such records. The section merely says that the absence of entries shall be “evidence” that no wages were paid. It does not say that such absence shall be conclusive evidence. To the contrary, in section 205(c) (2), the records of the Board [which we think means records made, not omitted, by the Board], are expressly made “conclusive.”
Appellant contends that, even though Black did not know that the administrator’s wage records for the three years prior to 1940 failed to show that wages had been paid him by Gladstone Brothers, and notwithstanding the fact that he was led by his employers’ actions to believe that the wages paid him had been reported to the Commissioner of Internal Revenue, he had the right, under section 205(c) (3), to request an opportunity to prove that the wages had been paid him during the crucial years and failed to exercise that right, bringing upon himse.lf, thereby, the bar of section 205(c) (2). We cannot accede to* this reasoning. There was no suspicious circumstance to put him upon notice that his employers had been derelict in performing their lawful duty in obedience to the Social Security Act. Why should he make inquiry when he was justified in feeling secure?
The beneficent purpose of Congress in the enactment of the Social Security Act must not be ignored. After painstaking investigation and elaborate research through experts, Congress reached the conclusion, upon which it acted, that the award of old-age benefits is conducive to the general welfare. See opinion of Mr. Justice Cardozo in Helvering v. Davis, 301 U.S. 619, 641-645, 57 S.Ct. 904, 909, 81 L.Ed. 1307, 109 A.L.R. 1319, where the legislative history of the Social Security Act is reviewed. In his logical reasoning, the eminent jurist did not strain eloquence when he said: “The hope behind this statute is to save men and women from the rigors of the poor house as well as from the haunting fear that such a lot awaits them when journey’s end is near.”
In Social Security Board v. Nierotko, 327 U.S. 358, 364, 66 S.Ct. 637, 640, 9C L.Ed. 718, 162 A.L.R. 1445, affirming our decision in 149 F.2d 273, the Supreme Court, asserting that the “purpose of the Federal Old Age Benefits of the Social Security Act is to provide funds through contributions by employer and employee for the decent support of elderly workmen who have ceased to labor”, gave a liberal interpretation to the Act; and held that “back pay” awarded under the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., to an employee is to be treated under the Social Security Act as wages for which the employee is entitled to credit on his Old Age and. Survivors Insurance Account. This holding was made despite a contrary administrative determination by the Social Security Board.
Again, in United States v. Silk, 331 U.S. 704, 712, 67 S.Ct. 1463, 1467, 91 L.Ed. 1757, the Supreme Court made it clear that the Social Security Act must be liberally construed: “As the federal social security legislation is an attack On recognized evils in our national economy, a constricted interpretation of the phrasing by the courts would not comport with its purpose. Such an interpretation would only make for a continuance, to a considerable degree, of the difficulties for which the remedy was devised and would invite adroit schemes by some employers and employees to avoid the immediate burdens at the expense of the benefits sought by the legislation. These considerations have heretofore guided our construction of the Act.”
Attorneys for Black insist, and the district court ■ agreed, that Congress did not intend that the limitation contained in section 205(c) (2) should apply to.wage records for the years 1937-1939, inclusive. Hassett v. Welch, 303 U.S. 303, 314, 58 S.Ct. 559, 82 L.Ed. 858, is cited to the proposition that a law is presumed, in the absence of clear expression to the contrary; to operate prospectively. Sections 204(a) and 204(b) of the Act, sections 404(a) and (b), Title 42, U.S.C.A. relating to correction of errors with respect to payments to an individual are pointed to as indicative that Congress did not, intend that section 205(c) (2) should apply to wage records prior to the 1939 amendment.'
We cannot accept such interpretation as sound. We think it apparent that the purpose of Congress was to give conclusiveness to the records for the years 1937 to 1939, inclusive, after the period of time and upon the conditions prescribed in the statute; but, where no records at all have been kept for those years relating to a particular employee, who had conformed to all lawful requirements which would .qualify him to enjoy the benefits of the Social Security Act and with reason rested secure in the belief that his employers had likewise complied, the case is different. As we have attempted to show, it would defeat the obvious purposes of the Social Security Act and give judicial sanction to gross injustice to hold that, in the detailed circumstances of this case, the employee must be deprived of his social security old-age benefits.
Accordingly, we affirm the judgment; but we have attempted to make clear that we are not in accord with the reasoning upon which the district court based its decision.
Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 42? Answer with a number.
Answer:
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songer_dissent
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2
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine the number of judges who dissented from the majority (either with or without opinion). Judges who dissented in part and concurred in part are counted as dissenting.
UNITED STATES of America, Plaintiff-Appellee, v. Thurlester WILSON, Defendant-Appellant.
No. 71-1764.
United States Court of Appeals, Seventh Circuit.
Reargued Jan. 23, 1973.
Decided May 23, 1973.
Kiley, Circuit Judge, filed dissenting opinion in which Duffy, Senior Circuit Judge, joined. Duffy, Senior Circuit Judge, filed dissenting opinion.
Joseph Cohn, E. St. Louis, 111., for defendant-appellant.
Henry A. Schwarz, U. S. Atty., Jack A. Strellis, Asst. U. S. Atty., E. St. Louis, 111., Michael L. Levinson, Asst. U. S. Atty., Danville, 111., for plaintiff-ap-pellee.
Before SWYGERT, Chief Judge, DUFFY, Senior Circuit Judge, and KIL-EY, FAIRCHILD, CUMMINGS, PELL, STEVENS and SPRECHER, Circuit Judges.
PELL, Circuit Judge.
Thurlester Wilson appeals from his conviction for violating 26 U.S.C. §§ 5861(d), 5871, possession of an unregistered firearm. The principal issue raised in this appeal is “whether the sawed-off shotgun which was the basis for the indictment and which was found by police officers during a search for which a warrant had been procured, was tainted by previous police action and conduct which uncovered evidence forming the probable cause basis for the issuance of the search warrant.” A panel of this court reversed the conviction by a 2 to 1 vote, holding that the police officer did not have probable cause to make the initial arrest of Wilson. 465 F.2d 1290. On rehearing, we have reached the conclusion that the police did have sufficient probable cause to stop Wilson, and we, therefore, affirm the conviction.
On January 21, 1971, Wilson stopped at a service station near Effingham, Illinois, on Interstate Highway 57. While there he charged a purchase of less than $25.00 to an American Express card issued to William Kotinas. Because the purchase was less than $25.00, no authorization was needed from American Express. He then asked to charge purchases amounting to approximately $100.00. A woman cashier called “American Express to get verification from the number.” However, Wilson asked to speak to the American Express people and after a short conversation indicated to the cashier that he no longer wished to make the purchases. When the assistant station manager, Robert Mayhaus, was informed of this he in turn called American Express via a Texaco company number and was informed that the credit card Wilson had sought to use was listed as stolen.
Mayhaus then called the highway patrol and informed them “that a man had made a purchase of gasoline at our station and had used a credit card, and that we didn’t check on it, you know, because it was for an amount under twenty-five dollars; and then he attempted to make purchases in the store for over twenty-five; and we called; and at this time I was informed that it was a stolen card.” A police bulletin was issued: “a red Ford Torino, 1970, with license plates HC [8196] . . . one colored male, had in his possession an American Express credit card which was stolen; and he had asked the direction to St. Louis; and it was passed at the Roadway Truck Stop in Effingham, Illinois, where he had purchased gas.” Wilson was stopped by three officers. He was “patted-down” by Trooper James Williams, who, during the course thereof, reached in Wilson’s pocket and withdrew the American Express card. Subsequently, another officer, on the basis of the fact that Wilson had in his possession a stolen credit card, applied to a state court judge for a warrant to search Wilson’s automobile for other credit cards and papers which might have been stolen from Kotinas. The search warrant was issued. During the course of the search of the car the sawed-off shotgun was found.
Prior to trial, Wilson moved to quash the search warrant and suppress the evidence deriving from the warrant. Several of the grounds advanced to support the motion are not relevant here. However, one of the grounds was that “[t]he issuing Judge incorrectly found probable cause for the issuance of the warrant in the affidavit(s).” This, of course, is not the same as alleging that the police did not have probable cause to stop Wilson initially. The two contentions are, nonetheless, interrelated since what Wilson was apparently attempting to show was that the fact alleged in Trooper Weems’ complaint for a search warrant was based purely on the radio bulletin and that in turn was based only on the call from Mayhaus. Thus, we are led back to the question of whether Mayhaus’ call standing alone constituted probable cause to believe that Wilson had a stolen credit card in his possession. It is unfortunate that Wilson’s motion was not clear on this point. Because of the lack of specificity in Wilson’s challenge in the pre-trial hearing, the Government did not question May-haus closely as to the total content of the call to the police. Indeed, when the Government attempted at the suppression hearing to develop specific information from Mayhaus which would have reflected upon the basis of his information that the card was stolen, the effort was thwarted by the sustaining of Wilson’s objections that the evidence was hearsay. The testimony of Trooper Williams indicates that Mayhaus conveyed far more information to the state police than the answers he gave in the pretrial hearing would reflect. Because Wilson did not clearly raise in the trial court the ground which he now claims requires reversal of his conviction, we hold that he is not in a position to challenge any reasonable inferences from or any claimed lack of greater specificity in Mayhaus’ testimony.
The warrantless search of Wilson at the time of his arrest, during which search the credit card was found, was valid only if it was a search incident to a lawful arrest. Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Even if such a “pat-down” could have been justified by fear that one who allegedly tried to use a stolen credit card might be armed, Trooper Williams’ reaching into Wilson’s pockets and extracting the credit card went beyond the permissible scope of a non-arrest “pat-down” for weapons. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The fact that the arrest was made pursuant to a police bulletin does not add or detract from the necessity of probable cause as an underlying requirement for an arrest. Whiteley v. Warden, 401 U.S. 560, 568, 91 S. Ct. 1031, 28 L.Ed.2d 306 (1971). For this arrest to be valid, the officer who caused the radio bulletin to be issued must have had sufficient information to establish probable cause to believe that the person driving the specified car had committed a crime. Further, if the police had probable cause, the facts of this case — particularly that the appellant was driving away from the scene of the alleged crime — provide sufficient exigent circumstances to relieve the police of the requirement of obtaining a search or arrest warrant before stopping him. Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).
The test for determining whether probable cause exists for the issuance of a search warrant, being the same standard applicable to a warrantless arrest, is set out in Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723 (1964): “Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant . . . was ‘credible’ or his information ‘reliable.’ ” The Aguilar two-pronged test was applied in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), in which the Supreme Court emphasized that the affiant must make more than a conclusionary assertion concerning the informant’s reliability and that the tip must contain supporting facts to show why the informer concluded that the defendant was committing illegal acts.
We turn then to the question of whether, at the time the police bulletin was issued, the police had sufficient information to establish probable cause under the Aguilar-Spinelli test. From the record before us, which, because the suppression hearing was only tangentially related to this issue, is not as complete as might be desired, the only evidence that the police had at that crucial time was the call from Robert Mayhaus. The case, therefore, hinges on the narrow factual question of whether that call was sufficient under the two-pronged probable cause test.
As to the first prong of the test, the reliability of the informant, we know that Mayhaus informed the police as to where he worked since it was part of the radio bulletin received by Trooper Williams. The fact that Mayhaus was not a paid informer is significant. A citizen in the position of Mayhaus would ordinarily not have had the opportunity to establish a prior history of reliability for tips to the police. On the other hand, as then Circuit Judge Burger stated in Brown v. United States, 125 U.S. App.D.C. 43, 365 F.2d 976, 979 (1966), “[although the police could not here judge the reliability of the information on the basis of past experience with the informant, . . . the victim’s report has the virtue of being based on personal observation . . . and is less likely to be colored by self-interest than is that of an informant.” A serious charge, such as that made by Mayhaus, when volunteered by an identified party in the circumstances before us, carries with it indicia of reliability of the informant. See, e. g., Adams v. Williams, 407 U.S. 143, 146-147, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). That reliability was reinforced by the “internal content” of the call which “intrinsically proves the truth of the ‘responsible’ citizen’s word.” United States v. Roman, 451 F.2d 579, 581 (4th Cir. 1971), cert. denied, 405 U.S. 963, 92 S.Ct. 1171, 31 L.Ed.2d 239 (1972). In United States v. Unger, 469 F.2d 1283 (7th Cir. 1972), this court adopted the above language in upholding a search warrant the affidavit for which omitted completely any allegation as to the reliability of the informant. We need not go so far in the present case. Cf. United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971).
Aguilar also requires some knowledge of the underlying facts to support the conclusion that a crime has been committed. Although Mayhaus’ testimony is sparse, we think it sufficient in light of contemporary business dealings of which every citizen is aware. As noted above, Mayhaus testified that “we called; and at this time I was informed that it was a stolen card.” Very few individuals today are not familiar with the ritual associated with credit card purchases. A book of numbers is consulted, and if the purchase is over a moderate sum, a call is made to confirm credit. Thus, although Mayhaus’ explanation of how he knew the card tendered by Wilson was stolen may have been truncated, it was sufficient in its business context to show the police “the underlying circumstances from which the informer concluded that” Wilson had a stolen credit card. Spinelli v. United States, supra, 393 U.S. at 416, 89 S.Ct. at 589.
Wilson makes a further attack on the sufficiency of the information available to the police in that he contends that Mayhaus did not tell the police whom he called. As noted above, Mayhaus’ testimony was abbreviated, in part because of Wilson’s objections to questions put to Mayhaus and in part because of lack of emphasis on the particular point now under consideration. The police bulletin, however, reflects the fact that May-haús specified that it was a stolen American Express card. The only logical inference that can be drawn from the statement “we called” in light of modern credit practices is that Mayhaus called American Express or some agent of American Express which was authorized to approve substantial credit purchases.
Finally, Wilson attacks the reliability of the information furnished by American Express. Initially we are confronted with the fact that the information imparted to the police was hearsay based on hearsay. If hearsay information is acceptable in arriving at probable cause, and it is, Jones v. United States, 362 U.S. 257, 269, 80 S.Ct. 725, 4 L.Ed. 2d 697 (1960), then hearsay based on hearsay should be acceptable as long as the police officer has sufficient information so that both levels of hearsay meet the two-pronged test spelled out in Aguilar. Since we have held that the hearsay information involved in Mayhaus calling the state police was sufficient under Aguilar, assuming that he gave the police an accurate summary of the telephone call to American Express (and we make this assumption because Mayhaus had been determined credible under Aguilar), we need only determine whether the American Express report was itself sufficiently credible under Aguilar.
There is no indication that Mayhaus had any idea of the identity of the person to whom he was speaking at American Express. He, in a routine manner following ordinary business procedures applicable to this particular type of transaction, had called Texaco, which had referred the call to American Express. The call was placed to a number provided for this very purpose. While it is required that “if the informant came by the information indirectly,” he must explain “why his sources were reliable,” Spinelli v. United States, supra, 393 U.S. at 416, 89 S.Ct. at 589, we have no difficulty finding reliability, not in the fact that the person to whom Mayhaus talked had personal knowledge of the theft, but rather in the fact that such person was one functioning part of a large business mechanism established for the very purpose of collating and disseminating this type of information to customers who regulated their daily business affairs in reliance thereon.
“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, 338 U.S. 160, 175, 69 S. Ct. 1302, 1310, 93 L.Ed. 1879 (1949). The Government argues that the hearsay of the American Express operator meets the Aguilar test because it is comparable to the business records exception to the hearsay rule. There is merit in the comparison. For many years we have recognized the reliability of records made in the regular course of business and have accepted such records into evidence for their truth. 28 U.S.C. § 1732. Furthermore, Rule 406 of the Proposed Federal Rules of Evidence makes “[ejvidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses . . relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.”
In sum, we are of the opinion that the mechanism of today’s system of credit confirmation is sufficient to support the type of reliability and credibility required by Aguilar. When the police were told that Mayhaus checked with American Express and was told the card was stolen, they knew that there was a very high degree of reliability in the fact that the card was actually reported as stolen. Furthermore, that a card was reported as stolen supports the conclusion that the use of the card was either use of a stolen credit card or else, at least, use without the permission of the owner, which would also be' a crime. Thus, the second requirement of Aguilar is met by the information conveyed to Mayhaus by American Express.
In his original brief, Wilson also argued that this conviction should be reversed because the Assistant United States Attorney who tried the case purposefully introduced at trial evidence concerning other crimes allegedly perpetrated by Wilson for which he was not then being tried, e. g., armed robbery of Kotinas and fraud in using Kotinas’ stolen credit card. Wilson argued in the district court that such evidence was irrelevant and highly prejudicial since the Supreme Court in United States v. Freed, 401 U.S. 601, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971), held that 26 U.S.C. § 5861 does not require proof of specific intent or knowledge that the firearm was unregistered.
As the Government pointed out, Freed did not eliminate the need to prove possession. Since the car Wilson was driving was not his but was rented, the Government argued that proof that Wilson had rented the car (by showing that he had done it with a credit card stolen from Kotinas) was essential to establish that he had in fact possessed the illegal firearm. Since the evidence was relevant to show knowing possession, we find no reversible error in its admission. Nor did Wilson ask for any partial limitation of the Government’s inquiry into this area- — a request which might have met with more favor from the district court. Finally, we note that the district court, in instructing the jury, did state that Wilson was on trial only for the crime charged and that the jury should not consider whether he was guilty of any other crime. As to two other incidents in which objectionable answers were made by witnesses, we note that the testimony was immediately objected to and those objections were sustained with the material ordered stricken from the record. Moreover, as to all of "the alleged prejudicial statements, we observe that they would qualify as harmless error under the rule of Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969), in light of the overwhelming evidence against the defendant on all material issues.
For the reasons given hereinbefore, the judgment of the district court is affirmed.
Affirmed.
. United States v. Wilson, 465 F.2d 1290, 1292 (7th Cir. 1972).
. Although not specified in the search warrant, the shotgun was contraband and was properly seized if taken in the course of a legal search. See discussion in dissenting opinion, United States v. Wilson, supra at 1295-1296.
. As Wilson’s counsel stated at reargument: “What I do contend is that the telephone conversation Mr. Mayhaus had with the police dispatcher by analogy must be comparable to the information given by a complainant to a magistrate to obtain either a warrant for search or a warrant for arrest.”
. McCray v. Illinois, 386 U.S. 300, 304, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967).
. When the case was reargued, counsel for Wilson conceded that Mayhaus must have identified himself to the police.
. We note that the district court’s jury instructions erroneously, in light of Freed, required the Government to prove specific intent and that even that heavier burden was met.
Question: What is the number of judges who dissented from the majority?
Answer:
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